United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
Bertman, the third-party petitioner, objects to the final
order of forfeiture, which was entered on May 14, 2018.
(Docket Entry Nos. 694, 695). The government responded.
(Docket Entry No. 697). Considering Bertman's objections
as a reconsideration motion, her motion is denied based on
the parties' briefs, the record, and the applicable law.
The reasons for this decision are explained below.
October 27, 2015, the court entered a forfeiture order
imposing a $1, 150, 000.00 judgment against Fisch. (Docket
Entry No. 470). The order stated that “[t]he United
States of America may, at any time, move to amend this order
to substitute property to satisfy the personal money judgment
in whole or in part pursuant to Fed. R. Crim. P. 32.2(e) and
21 U.S.C. § 853(p).” Id. The court
granted the government's motion to amend the order of
forfeiture, (Docket Entry No. 471), forfeiting Fisch's
property at 9202 Wickford Drive in Houston, Texas as
Fisch's conviction, the taxing authorities, the Bank of
the Ozarks, and Bertman all petitioned under 21 U.S.C. §
853(n) for the court to adjudicate their alleged interests in
the Wickford property. (Docket Entry Nos. 502, 509, 511, 515,
552). Bertman represented that she contributed $200, 000 to
the purchase of the Wickford property. (Docket Entry No. 509
at 2). The court granted the government's motion for
interlocutory sale of the Wickford Property, and the
government moved to amend the order. (Docket Entry Nos. 599,
619). On May 12, 2017, the court granted the amendment and
confirmed Bertman's third-party interest in the property.
(Docket Entry No. 620 at 2).
February 2018, Bertman moved for reconsideration of the Bank
of the Ozarks' third-party claim for interest and
attorney's fees. (Docket Entry No. 677). Bertman asked
the court to order that she “be paid her separate
property contribution to the Wickford property in the amount
of $200, 000.00, an amount the government concedes is
Bertman's separate property contribution, . . . without
regard to resolution of any other Third Party claim and
without waiting to calculate her community share of the sale
proceeds.” Id. at 5. The court ordered that
the taxing authorities and the Bank of the Ozarks would be
paid after the Wickford property's interlocutory sale
from the gross sales proceeds, and that the remaining
proceeds would be deposited into the court's registry
until further order. Id.
April 6, the government moved for final order of forfeiture.
(Docket Entry No. 682). Bertman did not respond. The court
granted the government's motion on May 14. (Docket Entry
No. 694). The order stated:
Malkah Bertman, the Taxing Authorities, and the Bank of the
Ozarks successor by merger to OmniBank, N.A., filed petitions
claiming an interest in the Wickford Property (D.E. 502, 509,
511, 515, 552). The Court recognized the interests of the
Taxing Authorities; the Bank of the Ozarks; and Malkah
Bertman's $200, 000.00 separate property interest and her
undivided one-half community property interest in the
Wickford Property (D.E. 620).
The Wickford Property has been sold. Payments of amounts due
and owing were made to the Taxing Authorities for $129,
984.57 and to the Bank of the Ozarks for $786, 530.73, for a
total of $916, 515.30. After payment of all costs and
expenses, the remaining proceeds of $348, 344.13 were
deposited into the Registry of the Court. The Court finds
that $122, 289.12 represents the interest of the United
States-as Defendant Fisch's forfeited interest-and $226,
055.01 represents Malkah Bertman's separate and community
(Docket Entry No. 694 at 1-2).
18, Bertman objected to the final order of forfeiture.
(Docket Entry No. 695). The government responded. (Docket
Entry No. 697).
objects to the final order of forfeiture based on the
calculations used to assess liability on the Wickford
property sale proceeds. (Docket Entry No. 695). She argues
that her interest in the Wickford property was improperly
calculated because her separate interest was combined with
her community property interest. Id. at 1. Bertman
asserts that although she “has a right to reimbursement
for her separate property contribution to the community
estate, ” her “separate property contribution did
not give her a greater percentage ownership in the property
as the United States contends.” Id. at 2.
According to Bertman, because she had a 50% percent ownership
in the Wickford property, she does not “have a 10.5%
proportional share of liability greater than the United
States with respect to the payment of property taxes or the
government responds that its calculations were unopposed
because Bertman did not challenge its motion in a timely
manner. (Docket Entry No. 697 at 4). The government also
asserts that Bertman's filing, which should be treated as
a motion for reconsideration, should be denied as failing to
meet the requirements to alter or amend a court's order.
(Docket Entry No. 697 at 4-5). The government argues that
Bertman failed to satisfy Federal Rule of Civil Procedure
59(e), which provides that motions to alter or amend a
judgment “must clearly establish either a manifest
error of law or fact or must present newly discovered
evidence and cannot be used to raise ...