in the Court of Appeals 8 May 2019.
by Defendant Stephen D. Saieed from Order entered 7 May 2018
by Judge R. Kent Harrell in New Hanover County No. 10 CVS
3647 Superior Court.
Crouch, Keeter, Behm & Sayed, LLP, by Christopher K.
Behm, for plaintiff-appellee.
& Perdue, P.A., by Matthew W. Buckmiller, for
and Procedural Background
D. Saieed (Defendant) appeals from an Order to Amend Charging
Order (Order) filed on 7 May 2018, amending 4 April 2017
Charging Orders (Charging Order) to reflect that
O'Mahoney Holdings, LLC-and not O'Mahoney Holdings,
LTD-is the assignee and holder of the Charging Order against
corporate entities in which Defendant has an interest. The
Record tends to show the following:
August 2010, the Bank of Hampton Roads (Bank) filed a
complaint against Defendant and others, seeking to collect on
a defaulted loan by Brunswick Professional Properties, LLC,
on which loan Defendant was a guarantor (10-CVS-3647 Action).
On 20 April 2011, the trial court entered its Order Granting
Summary Judgment Against all Defendants
(Judgment). Pursuant to a Purchase Agreement, Bank
then assigned the Judgment to "O'Mahoney Holdings,
LTD" on 14 March 2016 (Assignment of Judgment).
Thereafter, on 4 April 2017, O'Mahoney Holdings, LTD
sought and obtained the Charging Order against eight
limited-liability companies in which Defendant allegedly had
the Charging Order was obtained in favor of O'Mahoney
Holdings, LTD, a separate lawsuit was filed by O'Mahoney
Holdings, LLC against Defendant and various limited-liability
companies allegedly associated with Defendant (17-CVS-4280
Action). Sometime after the filing of the 17-CVS-4280 Action,
Defendant filed a motion to dismiss apparently alleging,
inter alia, that O'Mahoney Holdings, LLC was not
the holder of the Judgment and therefore not the real party
in interest. This motion appears to have been based on
the fact that the Assignment of Judgment and Charging Order
instead named "O'Mahoney Holdings, LTD."
response, O'Mahoney Holdings, LLC filed its Motion to
Correct Order Nunc Pro Tunc Based on Misnomer of
O'Mahoney Holdings, LLC (Motion to Correct) on 28
February 2018. In its Motion to Correct, counsel for
O'Mahoney Holdings, LLC explained that the designation of
LTD instead of LLC was a "clerical error" created
by the LLC's principal and sole managing member, Matthew
F. Collins (Collins), who-since the creation of O'Mahoney
Holdings, LLC-believed the corporate descriptor was LTD not
LLC. This mistake was repeated by counsel for O'Mahoney
Holdings, LLC on all contracts and court documents up until
2018. In its Motion to Correct, O'Mahoney Holdings, LLC
sought to amend, pursuant to Rule 60(a) of the North Carolina
Rules of Civil Procedure, the Assignment of Judgment, the
Charging Order, and all other related court proceedings to
correct this misnomer.
March 2018, the trial court entered an order in the
10-CVS-3647 Action, the 17-CVS-4280 Action, and a separate,
related action, finding O'Mahoney Holdings, LLC was not
the holder of the Judgment and thus was not the real party in
interest. The trial court noted the Assignment of Judgment
was a private contract and that the Charging Order therefore
was not subject to revision under Rule 60(a) until the
Assignment of Judgment was corrected. The trial court then
allowed O'Mahoney Holdings, LLC six months to correct the
issues regarding the Assignment of Judgment.
March 2018, O'Mahoney Holdings, LLC filed an Amendment to
the Assignment of Judgment (Amended Assignment of Judgment),
which "correct[ed] a scrivener's error contained in
the [Purchase] Agreement and [Assignment of Judgment] whereby
O'Mahoney Holdings, LLC was inadvertently referred to as
O'Mahoney Holdings, Ltd." On 6 April 2018,
O'Mahoney Holdings, LLC filed in this 10-CVS-3647 Action
its Renewed Motion to Correct Order Nunc Pro Tunc
Based on Misnomer of O'Mahoney Holdings, LLC (Renewed
Motion to Correct) seeking again to correct this misnomer in
the Assignment of Judgment, Charging Order, and all related
proceedings under Rule 60(a). The same day, O'Mahoney
Holdings, LLC filed its Motion for Ratification on Standing
seeking to ratify the standing of O'Mahoney Holdings, LLC
as the real party in interest in the various actions.
May 2018, the trial court entered its Order amending the
Charging Order under Rule 60(a) "to reflect that
O'Mahoney Holdings, LLC is the assignee and holder of the
judgment against [Defendant]." The trial court also
noted the "Charging Order as amended shall be effective
as of the date originally entered." The same day, the
trial court entered its Order Addressing Real Party in
Interest (Real Party in Interest Order) finding
"O'Mahoney Holdings, LLC is the real party in
interest as Plaintiff and that their status as the real party
in interest will relate back to the filing of the
commencement of this action." On 6 June 2018, ...