                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA



BISCAYNE CONTRACTORS, INC.,

            Plaintiff,

      v.                                    Civil Action No. 14-mc-284 (GK)

JAMES REDDING,

           Defendant.


                            MEMORANDUM OPINION

      This case concerns the ongoing efforts of Plaintiff Biscayne

Contractors,    Inc.    ("Plaintiff")       to collect on a            Final Judgment

entered against Defendant James Redding ("Defendant" or "Redding")

in the District Court for the Eastern District of Virginia in Case

No.   13-765,   Biscayne    Contractors,          Inc.    v.   James    Redding.     See

Registration     of    Foreign   Judgment         [Dkt.    No.    1].    As   part    of

Plaintiff's collection efforts,             on July 30,        2015,    it obtained a

Judgment of Condemnation against Garnishee Mohammed Abu-El-Hawa

("Garnishee"    or "Abu-El-Hawa").          See    Order Granting         Plaintiff's

Motion for Judgment of Condemnation [Dkt. No. 13].

      On September 2, 2015, Abu-El-Hawa filed a Motion to Set Aside

the Judgment entered against him.             Motion to Set Aside ·Judgment

Entered Against Garnishee Mohammed Abu-El-Hawa ("Garnishee's Mot."

or "Motion to Set Aside")        [Dkt. No.        16]. On September 28,            2015,
                                        1
Plaintiff        filed   its     Opposition       to   Garnishee's    Motion     ("Opp.")

[Dkt. No. 19], and on October 15, 2015, Abu-El-Hawa filed his Reply

("Reply")      [Dkt. No. 24].

        On October 22,          2015,    Plaintiff filed a Motion for Leave to

File Surreply ("Surreply") [Dkt. No. 26]. On December 1, 2015, the

Court granted Plaintiff's Motion to file a Surreply and ordered

the parties to file responses to questions the Court posed in the

Order of December 1, 2015 Order [Dkt. No. 27]. On December 1, 2015,

Plaintiff filed a Surreply                [Dkt.    No.    28].   On January 14,      2016,

Plaintiff      and Abu-El-Hawa           both     filed   responses   to   the   Court's

December       1,     2016      Order.    Plaintiff's        Supplemental      Brief    in

Opposition to Garnishee's Mot. To Set Aside Judgment ("Pl's Supp.

Br.")    [Dkt.      No.· 29];    Garnishee's Response to Questions Posed in

Court's    December 1,          2015 Order        ("Garnishee's Resp.")        [Dkt.   No.

30] .

        Upon   consideration        of    the     Motion,    Opposition,    Reply,     and

Sur reply,     and the       entire      confusing record herein,          and for     the

reasons that follow,             Abu-El-Hawa' s Motion to set Aside Judgment

shall be granted in. part.1




1 Although it was not filed as a motion, Plaintiff's Opposition
also included a request that the Court amend a previously entered
Charging Order. For the reasons stated below, Plaintiff's request
to amend the Charging Order shall be denied without prejudice.
                               -2-
I .     BACKGOUND

        On March 18, 2014, Plaintiff Biscayne Contractors, Inc. filed

with the Clerk of this Court              a    Final Judgment entered against

Defendant      James   Redding   in the       District Court           for    the    Eastern

District of Virginia in Case No.                    13-765,   Biscayne Contractors,

Inc. v. James Redding. See Registration of Foreign Judgment.

        On March 31, 2014, Garnishee Mohammed Abu-El-Hawa, along with

Ahmad Ayyad, entered into an agreement with Defendant Redding to

purchase an interest in Defendant's company,                     TMB Holdings,          LLC.

Under    the   agreement,    Defendant        transferred        to    Abu-El-Hawa       and

Mr. Ayyad a 49% interest in TBM Holdings, LLC in exchange for a

Promissory Note        ("the Note")   with a principal amount of $350,000

(i.e., Defendant gave Abu-El-Hawa and Mr. Ayyad a 49% interest in

TBM Holdings, LLC in exchange for their promise to pay him $350,000

at a future date) . According to Attachment A appended to the Note,

Defendant      Redding    retained    a       51%     interest    in     TBM    Holdings.

Garnishee's Aff. at 10 [Dkt. No. 16-2].

      On April 10,       2014,   Plaintiff filed a Motion for a Charging

Order as to Defendant's interests in several companies, including

TBM Holdings, LLC. Motion for a Charging Order                        [Dkt.    No.   2]. On

May 5,    2014, the Court granted Plaintiff's Motion for a Charging

Order. Charging Order of May 5, 2014                  ("the Charging Order")           [Dkt.

No.   3]. Among other things,         the Charging Order states that "TBM
                                        -3-
Holdings,    LLC       shall    pay   and/ or   deliver     over   to   Plaintiff       all

present and future proceeds,              distributions,        drawings,      payments,

and property to which Defendant may be entitled as a result of

this interest in                 TBM Holdings, LLC[.]" Charging Order at 2.

       On May 6, 2014, Plaintiff filed the Charging Order with the

D.C. Department of Regulatory and Consumer Affairs, and on August

9, 2014, Plaintiff finally delivered a copy of the Charging Order

to Abu-El-Hawa.

       On June 16, 2015, Plaintiff served on Abu-El-Hawa a Writ of

Attachment on Judgment Other Than Wages, Salary and Commissions,

by which Plaintiff sought to garnish the stream of payments due

under the Note in order to satisfy its Judgment against Defendant.

See Affidavit of Service              [Dkt. No.    11]. Abu-El-Hawa,          who was an

experienced business man, did not retain an attorney and,                         acting

pro se, failed to respond to the Writ.

       On July 9,       2015,    Plaintiff filed a Motion for Judgment of

Condemnation Pursuant to Title 16,                 §   526(b)   D.C. Code      [Dkt.    No.

12],    seeking    a    Judgment      against     Abu-El-Hawa      in   the    amount    of

$350,000, i.e., the value of the Note Abu-El-Hawa and his partner

had    executed    payable      to    Defendant.       Because Abu-El-Hawa,        still

proceeding    pro      se,     did not   respond       to   Plaintiff's       Motion    for

Judgment,    on July 30,         2015,   the Court entered an Order granting

the Motion. Order of July 30, 2015 [Dkt. No. 13].
                               -4-
        On August 3, 2015, the Clerk of the Court entered a Judgment

against Abu-El-Hawa in the amount of $350,000. Clerk's Judgment of

August 3, 2015 ("the Judgment")         [Dkt. No. 14]. Slightly less than

a month later, on September 2,          2015, Abu-El-Hawa, having finally

retained counsel,        filed   his Motion to     Set Aside the      Judgment,

contending that the Judgment should be vacated under Federal Rule

of Civil Procedure 60(b) because Abu-El-Hawa had already paid the

$350,000 due on the Note and that his failure to respond to the

Writ was due to "mistake,          inadvertence,     surprise,     or excusable

neglect." Garnishee's Mot. at 4 (quoting Fed. R. Civ.                P. 60(b)).

After    requesting   an    extension   of   time,   which   was    granted   on

September 28,    2015,     Plaintiff filed its Opposition, arguing that

the Court should not vacate the Judgment because Abu-El-Hawa did

not, in fact, pay off the Note; Abu-El-Hawa's default was willful;

and Abu-El-Hawa made payments in violation of the Charging Order.

Pl.'s Opp'n at 3.

     After requesting an extension of time, which was granted on

October 15, 2015, Abu-El-Hawa filed his Reply. On October 22, 2015,

Plaintiff filed his Motion for Leave to File Surreply along with

a copy of the Sur reply itself,         which was granted on December 1,

2015 [Dkt. No. 27], and the Surreply was filed the same day.




                                      -5-
II.     STANDARD OF REVIEW

        "Pursuant           to    Rule   60(b)      of   the    Federal    Rules     of   Civil

Procedure a district court is permitted to 'relieve a party or its

legal representative from a final judgment, order, or proceeding'

on one of six enumerated grounds." Jarvis v. Parker, 13 F. Supp.

3d 74, 77         (D.D.C. 2014)          (quoting Fed. R. Civ. P.          60 (b)). What is

relevant in this case is that Rule 60(b) permits a Court to vacate

a    judgment         for   "mistake,         inadvertence,      surprise,      or   excusable

neglect" or "any other reason that justifies relief." Fed. R. Civ.

P.    60 (b) .    "The party seeking relief under Rule 60 (b)                        bears the

burden of         showing that he or she                  is   entitled to the        relief."

Jarvis, 13 F. Supp. 3d at 77 (citing Norris v. Salazar, 277 F.R.D.

22, 25 (D.D.C. 2011).

III. ANALYSIS

                 A.     Garnishee's Motion to Set Aside

       Although Abu-El-Hawa                   is   not   the   defendant   in    Plaintiff's

action, the Judgment against him arose from his failure to respond

to Plaintiff's filings,                  and thus,       it is properly regarded as a

default     judgment.            "Default      judgments are not      favored by modern

courts,     perhaps because              it    seems     inherently unfair to         use   the

court's power to enter and enforce                         judgments as      a penalty for

delays in filing." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir.


                                                   -6-
1980).      "Modern courts are also              reluctant      to enter and enforce

judgments unwarranted by the facts." Id.

       In exercising the discretion to grant relief from a judgment

courts      should        consider     (1)     whether    the    alleged      defense      is

meritorious,         (2) whether the default was willful, and (3) whether

a   set-aside would prejudice the ·plaintiff.                     Keegel v.       Key W.    &


Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980)                          (setting

forth three factors as they apply to motions to set aside under

Fed.   R.    Civ.    P.    55 (c));   Int' 1 Painters      &    Allied Trades Union         &


Indus.      Pension Fund v. H.W.             Ellis Painting Co.,        288 F.    Supp.    2d

22, 26 (D.D.C. 2003)           (applying Keegel factors to motion under Rule

60 (b)) .

                    1. Merits of the Alleged Defense

       By    his    own     admission,       Abu-El-Hawa       failed   to    respond      to

Plaintiff's filings and to make an appearance when he should have.

For that reason,           he faces a        ~udgment    in the amount of $350,000.

However, Abu-El-Hawa claims to have a meritorious defense against

the Judgement because he paid off the Note that gives rise to that

Judgment.     He     claims     he    has    already paid       $350, 000    as   the   Note

requires, and if the Judgment stands, he will have to pay another

$350,000 to Plaintiff, Defendant's creditor.

       Needless to say, if he is correct, $350,000 would be a sizable

"penalty for [a] delay[] in filing." Jackson, 636 F.2d at 835. If
                                -7-
Abu-El-Hawa did in fact pay the same debt earlier, and therefore

would be paying it twice if the Judgment stands,                           the situation

would weigh strongly in favor of granting relief.                          Wrecking Corp.

of Am., Virginia v. Jersey Welding Supply, Inc., 463 A.2d 678, 680

(D.C. 1983)    ("[A]      critical factor for this court [the D.C. Court

of Appeals] to consider in reviewing the trial court's exercise of

discretion is whether the garnishee was in fact indebted to the

judgment     debtor      or    possessed       any    property       belonging      to     the

debtor.").

      Many    of    the       payments    Abu-El-Hawa         states       were    made     in

satisfaction of the Note were made from accounts bearing the names

of   Abu-El-Hawa's        business       interests        rather    than    his    personal

account, and the vast majority of those same payments were made to

Defendant's creditors rather than directly to Defendant himself as

required in the Note.

      According     to     Plaintiff,      none      of    these    payments       count    as

performance    in     satisfaction        of   the    Note.        Plaintiff      points    to

language in the Note stating "Ahmad Ayyad and Mohammed Abu-El-Hawa

[] promise[] to pay to the order of James T. Redding []                                  . the

principal amount of Three Hundred Fifty Thousand Dollars and 00/100

Cents[.]" Garnishee's Aff. at 5. Plaintiff takes this language to

mean that only a          check drawn on Abu-El-Hawa's personal account


                                           -8-
    made payable to James Redding could satisfy the $350,000 debt owed

    under the Note.

         While it is true that the record is not entirely clear as to

    whether   all   of    the   payments   Abu-El-Hawa    claims          were      made   in

    satisfaction of the Note,        Plaintiff is wrong that none of them

were.

         It is black letter contract law that an obligor (in this case,

Abu-El-Hawa)        may    fulfill   his    contractual     obligations             through

performance that does not conform precisely to the terms of the

contract.      See Restatement       (Second)    of Contracts       §     278 (1)     (1981)

    ("If an obligee accepts in satisfaction of the obligor's duty a

performance offered by the obligor that differs from what is due,

the duty is discharged."). Moreover, the fact that payments might

have come from Abu-El-Hawa's business interests -- that is,                            from

distinct legal persons-or institutions--does not preclude those

payments from satisfying the Note. See id.            §   278 (2)        ("If an obligee

accepts in satisfaction of the obligor's duty a performance offered

by a third person, the duty is discharged .                  • II) • 2


2Abu-El-Hawa's payments from his business interests to Defendant's
creditors might also be characterized as a "novation," which the
Restatement  (Second)    of Contracts defines as a substituted
contract that includes as a party one who was neither the obligor
nor the obligee of the original duty."     See Restatement (Second)
of Contracts § 2 8 0 ( 1981) . "A novation discharges the original
duty[.]" Id. Comment b.

                                           -9-
     Thus, as long as Defendant accepted payments made by Abu-El-

Hawa's business interests (rather than by Abu-El-Hawa himself) as

well as payments made to Defendant's creditors            (rather than to

Defendant himself),        then those payments would serve to satisfy

Abu-El-Hawa's obligations under the Note.

     Abu-El-Hawa has offered sufficient proof that at least some

of his payments satisfied these conditions. Abu-El-Hawa states in

his affidavits that "the $350,000 owed pursuant to the promissory

note generally went to pay creditors of TBM Holdings, LLC [in which

Defendant still maintains a 51% interest] as of March 31, 2014,"

Abu-El-Hawa Aff.   CJI   10 [Dkt. No. 16-2], and that "[p] ayments against

the Note were made to creditors of Mr. Redding and his companies

pursuant to Mr. Redding's explicit request." Abu-El-Hawa Deel.           CJI




  Illustrations to § 280 demonstrate clearly that payment from
someone other than the obligor and payment to someone other than
the obligee may serve to satisfy a duty owed under the original
contract. See id. Illustration to Comment d. ("A owes B $1, 000. B
promises A that he will discharge the debt immediately if C will
promise B to pay B $1,000. C so promises. There is a novation under
which B's and C's promises are consideration for each other and A
is discharged."); id. Illustration to Comment f. ("A owes B $1,000
and B owes C $1,000. A promises B and C that he will assume B's
debt to C if B promises to discharge A's debt to Band if C promises
to discharge B's debt to C and accept A as his. debtor. Band C so
promise. There is a novation under which A's promise and B's and
C's promises are consideration for each other, and A's debt to B
and B's debt to Care discharged."). Accordingly, under a novation
theory, payments from businesses associated with Abu-El-Hawa to
Defendant's creditors would have served to satisfy the Note as
well.
                                -10-
1 [Dkt. No.        30-1].   For these reasons, Abu-El-Hawa claims,                        "I am

not indebted to Defendant[.]" Abu-El-Hawa Aff.                    ~    11. Abu-El-Hawa

also    cites      Defendant's        deposition      testimony,           which     is     not

challenged by Plaintiff,              to show that he accepted Abu-El-Hawa's

payments on the Note.          [Dkt. No. 12-3] at 8.

       Plaintiff does        not   challenge Abu-El-Hawa' s                statements       and

Defendant's        deposition         testimony       with     contrary        deposition

testimony     or     competing     affidavits.        Instead,     Plaintiff          relies

mainly upon its theory that Abu-El-Hawa could not tender -- and

Defendant could not accept -- any performance in satisfaction of

the Note other than a personal check from Abu-El-Hawa made out

directly to Defendant. Pl.'s Opp'n at 10-11.

       For the first time in its Supplemental Brief, Plaintiff cites

D.C.   Code § 28:3-602 and § 28:3-301 in support of its theory.

Plaintiff argues        that a        promissory note may only be satisfied

through   payments      made     to    "person [ s]    entitled       to    enforce"        the

promissory note.        D.C.    Code§       28:3-602.        A "person entitled to

enforce" means "(i)          the holder of the instrument,                    (ii)   a non-

holder in possession of the instrument who has the rights of a

holder, or (iii) a person not in possession of the instrument who

is entitled to enforce the instrument pursuant to section 28:3-

309 or 28:3-418(d). D.C. Code§ 28:3-301.


                                          -11-
        Although Plaintiff argues that none of the parties allegedly

paid in satisfaction of the Note and accepted by Defendant fit

into any of these categories, it has not provided any evidence to

support     that   argument.      In   contrast,     Garnishee   has     provided

statements and testimony indicating that neither he nor Defendant

disputes that TBM's creditors were entitled to receive payments on

the     Note.   Thus,   Plaintiff's      mere      theory   of   Abu-El-Hawa's

obligations under the Note is not enough to condemn Abu-El-Hawa to

pay the full amount of his substantial obligation twice.

        Nonetheless, the Court does not hold that Abu-El-Hawa has, in

fact,    satisfied all of the terms of the Note. Other defects with

payments he claims to have made in satisfaction of the Note remain.

Opp. At 11. Abu-El-Hawa submitted 5 payments totalling $18,855.98

made before the Promissory Note was signed. The terms of the Note

do not contemplate satisfaction by past payments, and in fact the

terms appear to require future payment. See Garnishee's Aff. at 5-

12.   Abu-El-Hawa's     defense   as   to   these    payments    would    not   be

meritorious and the Judgment of Condemnation will stand against

these payments.

        Plaintiff also asserts that Defendant owned only 51% of TBM

Holdings, LLC (a.k.a. Driftwood Kitchen), and was only responsible

for 51% of its debts. Thus, Plaintiff argues that only 51% of the

payments to creditors of TBM Holdings, LLC can constitute a payment
                               -12-
by Abu-El-Hawa on the Note. If this were true, the Court assumes

that    Abu-El-Hawa    should only get      credit     for    a    portion    of    the

payments made by MAAJ, Inc.3 (a.k.a. DarNa Restaurant and Lounge)

corresponding to Defendant's ownership interest in MAAJ, Inc.

        Abu-El-Hawa asserts that the payments made to creditors of

TBM Holdings, LLC were for debts incurred prior to the transfer of

the 49% interest. He makes no parallel assertions with regard to

the payments made by MAAJ, Inc. The Court finds that this defense

might     be   meritorious     if   it   were   supported          by    appropriate

documentation. At this time, the briefing and evidence submitted

by both parties       is    inconclusive on this       issue.      The Court will

reverse the Judgment of Condemnation as to these payments,                          and

will    accept    further    submissions   by   both    parties         as   to    what

percentage of these payments can satisfy the Note.

                 2. Willfulness

        Although Abu-El-Hawa's payment history and affidavit suggest

strongly that a       Judgment in the full amount of $350,000 is not

supported by the facts, the Court must next consider whether Abu-

El-Hawa's failure to respond to the Writ of Attachment on Judgment

Other    Than Wages,       Salary and Commissions       and       its   accompanying


3 DarNa Restaurant and Lounge is the d/b/a for MAAJ, Inc., another
restaurant owned in part by both Defendant and Abu-El-Hawa. Twelve
of Abu-El-Hawa's alleged payments on the Note were made by MAAJ,
Inc. or DarNa Restaurant and Lounge.
                               -13-
.

    interrogatories          ("the Writ")        [ Dkt.    Nos.    9,   11]    was sufficiently

    willful to preclude relief. The Court concludes that it was not.

            "The boundary of willfulness lies somewheie between a case

    involving a negligent filing error, which is normally                                 conside~ed


    an excusable         failure     to    respond,       and a     deliberate decision to

    default, which is generally not excusable." Int'l Painters, 288 F.

    Supp. 2d at 26 (citing Gucci Am., Inc. v. Gold Center Jewelry, 158

    F.3d 631,      634     (2d Cir. 1998)). In order to discern on which side

    of the boundary Abu-El-Hawa's conduct falls, both Parties point to

    an opinion from the Court of Appeals for the District of Columbia:

    Wrecking Corp.         of Am.,    Virginia v.           Jersey Welding Supply,             Inc.,

    463 A.2d 678 (D.C. 1983).

            In Wrecking Corp.,            the D. C.       Court of Appeals overturned a

    trial     court's       denial        of    Wrecking         Corporation         of   America's

    ("Wrecking Corp.") motion to reconsider a judgment of condemnation

    in the amount of $5,271.70 entered against Wrecking Corp. 463 A.2d

    at   678-79.    Like     Abu-El-Hawa,         Wrecking         Corp.      produced     evidence

    showing that it neither owed a debt to the judgment debtor nor

    held    property       belonging       to    it,      but,    again       like    Abu-El-Hawa,

    Wrecking Corp.         had failed to respond to the plaintiff's writ of

    attachment.      Id.    Unlike Abu-El-Hawa,             however,       Wrecking Corp.        did

    respond to the plaintiff's motion for a judgment of condemnation.

    Id. On those facts, the D.C. Court of Appeals held that "the trial
                                   -14-
court    abused    its    discretion      in    not    vacating   the    judgment      of

condemnation." Id. at 680.

        Abu-El-Hawa's failure to respond even after being served with

Plaintiff's Motion for Judgment of Condemnation is significant.

However, while Abu-El-Hawa, who was unrepresented by counsel until

shortly before filing his Motion to Set Aside, failed to formally

respond to Plaintiff's filings, he did cooperate with Plaintiff's

counsel and provided responses to Plaintiff's discovery requests

on a number of occasions beginning in late 2014.

      For     example,    on   December        19,    2014,   Abu-El-Hawa       provided

documents to Plaintiff.           Garnishee's Aff.         at 14-38     [Dkt.   No.   16-

2]. He provided additional information to Plaintiff in early 2015,

and on June 23, 2015, sent Plaintiff copies of checks evidencing

other payments on the Note.             Id. at 44-70. Even while Abu-El-Hawa

was   neglecting    his    duty    to    respond      to   Plaintiff's    Motion      for

Judgment of Condemnation, which was filed on July 9, 2015, he sent

Plaintiff additional evidence of payments on the Note on July 15,

2015 and August 10, 2015. Id. at 72-86.

      Thus,    despite Abu-El-Hawa' s          failure to formally respond to

Plaintiff's filings,       he actually provided Plaintiff with much of

the   information    it    sought.      Abu-El-Hawa's         informal    cooperation

definitely cuts against a finding of willfulness.


                                         -15-
       However,   Plaintiff   contends    that     Abu-El-Hawa        demonstrated

willfulness by making a payment to Defendant from the assets of

TBM Holdings,     LLC in violation of the terms of the May 5,                   2014

Charging Order. Plaintiff contends, and Abu-El-Hawa does not deny,

that Abu-El-Hawa did not receive actual notice of the Charging

Order until August 9,     2014.    The Court has not seen any evidence

that   Abu-El-Hawa,   operating     pro   se,    had    any    knowledge   of    the

restrictions of the Charging Order before August 9, 2014 or of any

obligations associated with these proceedings before that date.

Therefore, the Court finds that Abu-El-Hawa did not willfully fail

to respond before he had actual notice of the Charging Order and

these proceedings. However, Abu-El-Hawa's decision to direct TBM

Holdings, LLC to make payments in violation of the Charging Order

after he had actual notice does           cut in       favor   of a    finding of

willfulness.

       Finally,   Abu-El-Hawa     did   not     unreasonably      delay    in   his

attempt to set aside the Judgment after it had been entered.                    The

Clerk of Court entered the Judgment against Abu-El-Hawa on August

3, 2015.   Having finally hired an attorney, less than a month later

on September 2,    2015, Abu-El-Hawa filed his Motion to Set Aside

Judgment entered against him.

       Thus, the Court finds that Abu-El-Hawa's failure to respond

was willful after August 9, 2014, when he had actual notice of the
                               -16-
    Charging Order, and by extension of these proceedings. The Court's

    Judgment of Condemnation will therefore stand as to the $59,000 in

    payments Abu-El-Hawa made after August 9, 2014.

        As      to        the      remaining        payments,        while         Abu-El-Hawa

    unquestionably        failed    to   comply      with   his    duty      to    respond         to

    Plaintiff's filings,           his failure was not so willful as to merit

the penalty of potentially paying the full $350,000 debt twice.

The     Judgement         of Condemnation is         therefore       reversed as          to   the

remaining $272,144.02 that was neither paid before the date of the

Note (see supra at 12) nor after Abu-El-Hawa had actual notice of

the Charging Order.

                     3. Prejudice to the Plaintiff

        Finally, the Court must consider any prejudice to Plaintiff

that granting Abu-El-Hawa's Motion to Set Aside would cause. As

the facts above make clear, it would appear that Abu-El-Hawa has

already      paid     a    large    portion    of    the    amount    due     on    the    Note.

Substantively,            therefore,     setting aside       the     Judgment would not

prejudice Plaintiff as much as deny it the opportunity to receive

a    windfall    in the         form of an additional             source     from which to

collect on its Final Judgment against Defendant James Redding.                                 4




4The Court is well aware that Defendant is currently incarcerated
for two years.  However, that information is of no relevance in
this instance.
                              -17-
        Accordingly, the Court concludes that partial relief from the

Judgment      entered       against   Abu-El-Hawa    is   justified     under   Rule

60 (b) .

                    B. Plaintiff's Request to Amend the Charging Order

        In its Opposition, Plaintiff requests that the Court clarify

the Charging Order to state that Plaintiff has a lien on 100% of

TBM Holdings, LLC rather than just the 51% retained by Defendant.

Defendant's sale of a 49% interest in TBM Holdings, LLC on March

31, 2014 preceded issuance of the Charging Order on May 5, 2014,

so it is not clear why the lien should extend to Abu-El-Hawa's

interest in TBM Holdings, LLC. Plaintiff appears to contend that

a lien against Defendant's interest would extend to Abu-El-Hawa's

interest until the Note was fully satisfied. However, because the

record and the Parties' briefs on these points remain unclear, the

Court      denies    Plaintiff's      request   without   prejudice.     Plaintiff

remains free to renew its request as a separate motion.

IV.     CONCLUSION

        For the foregoing reasons, Abu-El-Hawa's Motion to Set Aside

Judgment      shall    be    granted    in   part   and   denied   in   part;   and

Plaintiff's request that the Court amend the Charging Order shall

be denied without prejudice. The Judgment entered against Abu-El-

Hawa shall be reversed and reduced by $272,144.02. The Judgment of


                                         -18-
Condemnation   shall   be   amended   to   $77,855.98.   An   Order   shall

accompany this Memorandum Opinion.




November ~'f, 2016



Copies to: attorneys on record via ECF




                                 -19-
