More Headwinds for Borgata in Phil Ivey Nevada Garnishment

New Jersey’s Borgata Hotel Casino & Spa faces a growing legal challenge as it continues its battle to fully claim the $124,410 won by Phil Ivey in the 2019 WSOP Poker Players Championship in June. Following a filing on behalf of poker pros Daniel Cates and Illya Trincher, who claimed that they backed Ivey into the PPC and were thus entitled to most of his winnings in that event, Nevada attorney Richard A. Schonfeld has filed a supplement to Cates’ and Trincher’s earlier filing asserting that the Borgata’s initial garnishment writ should be declared invalid.

Schonfeld, who has served as Ivey’s attorney in other matters, filed the supplement to the garnishment objection on Monday, September 16. In the supplemental filing, Schonfeld declares that he learned that Jeremy Klausner, the counsel for the Borgata’s parent company, Marina District Development Co. LLC, is neither licensed to practice law in New Jersey nor, more importantly, received the proper court permission to file the writ of execution, which was served upon the World Series of Poker to garnish Ivey’s winnings. Those winnings remain held by the US Marshal’s Service.

Phil IveySchonfeld’s filing asks the court for a nunc pro tunc (Latin for “now for then” meaning to correct the record based on an omission that becomes part of the court record), and for the seized $124,410 to be returned to Ivey and his backers.

Schonfeld’s latest filing describes the process through which he determined that the writ may not have been filed properly. Schonfeld summarizes those findings as the introduction to the supplemental filing:

On August 30, 2019, Non Party Claimants Illya Trincher and Dan Cates filed their objection to the Writ of Execution issued to the Rio Hotel and Casino and Caesars on June 19, 2019. Claimants submitted verified claims pursuant to [Nevada law] and requested the return of $87,205 as they are the lawful owner of said funds. [] Claimants also requested a hearing[.]

On September 3, 2019, said filing was hand delivered to the U.S. Marshal’s office in Las Vegas, Nevada.

On September 12, 2019, counsel emailed out of state counsel Jeremy Klausner (Counsel for Judgment Creditor, Marina District Development LLC), and inquired if he was going to be filing a response, as undersigned had not received a response to said Objection and verified claims.

Counsel Klausner responded and indicated that he allegedly was not served with said filing and that he did “not have ECF privileges in the [District of] Nevada.” (This refers to electronic access to the US’s online ‘PACER’ court-document library system.) On September 13, 2019, undersigned counsel emailed Mr. Klausner a courtesy copy of said Objection as well as the filed receipt of copy to U.S. Marshals.

Upon further investigation, it appears that Mr. Klausner is not admitted to practice in the State of Nevada or the U.S. District of Nevada, and did not obtain pro hac vice permission to appear before this Honorable Court as required under [Nevada legal rules]. Moreover, Mr. Klausner does not appear to have obtained local counsel as required by the rules.

Thus, it is respectfully submitted that Marina District Development LLC obtained the Writ of Execution at issue without being properly admitted before this Honorable Court.

Accordingly, Claimants are requesting that the Writ of Execution be vacated nunc pro tunc and that the funds be returned.

The brief continues with an excerpt of the applicable rules, and an assertion that the Nevada court clerk with whom Klausner communicated also erred. “Moreover,” writes Schonfeld, “the Writ should not have been issued by the clerk, due to the apparent failure of counsel to comply with the rules.”

The next step is somewhat predictable: The Borgata and Klausner will argue that they were following the court’s instructions as issued by the clerk and which were a part of Klausner’s initial filing, to docket the $10.13 million judgment against Ivey into Nevada. Thus, they should thus not be penalized for following the procedure as explained. Expect such a response to be filed within the next two weeks.

Whether that argument will hold up, however, remains to be seen. Being licensed to practice law in a given state applies in every US state, not just Nevada, and this appears to be a valid (if technical) claim of omission or oversight. In any event, the Borgata’s failure to have partnered with Nevada-based legal representation will have to be addressed, and if further garnishment attempts targeting Ivey occur, the Borgata will likely have to bring on some additional legal help.

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