ATM LEASEBACK SCHEMES-- any insight?

[grimreaper]

Oh what a tangled web we weave,
When first we practise to deceive!

[BBFlatt]

So how do I account for the $5,000 a week I spend on hookers and blow? Should I be looking for a coke dealer who invoices me?

I thought you had accountants pay for it all. Do they not keep accurate records?

You're thinking of Joe Walsh, not Keith Richards.

[Gregg]

So how do I account for the $5,000 a week I spend on hookers and blow? Should I be looking for a coke dealer who invoices me?

I thought you had accountants pay for it all. Do they not keep accurate records?

Well, yes, but in Switzerland, and you'll never see those...

[Gregg]

Okay, so I didn't spend it all in all cash borderline illegal underground activity.
So, yes, the receiver can go back and get all my credit card, loan, mortgage, debit card, charitable contributions and basically everything I've spent for the last seven years. And after they do this to me and a few hundred other net winners, how cost effective and timely is it gonna be.
I'd remind you that I'm going to fight every step of the way and they'll have to go to court, here, where I live, to get every piece of information. In my case, they'll have to do it twice, because I live in more than one place.

Oh, and it doesn't apply to me, but I'm betting at least half of the people they are going after are married, and the spouse will be say she or he wasn't involved and didn't know anything about the details so she's claiming innocent spouse like exemptions, which reduces the equity in any property by half. Oh, and another 6 months just got tacked onto the time its gonna take.

Ooops,, sounds like another "If...." just popped up.

"If" I were really a net winner here (and I'm not)
and
"If" I were up, say, half a million (which I'm not)
and
"If" I had no conscience about being a total dick about keeping my admittedly ill gotten gains (well, I might)
and
"If" I didn't think I'd win but was willing to try....

I'd spend up to and including $499,999 on legal bills fighting it. Pure cost effectiveness. And it I still lost, I'd likely be noncollectable and you'd still never get a dime.

And all of that still doesn't even take into account sovereign citizen types who just ignore the courts, people who don't care and flee to a non-extraditable island with the money and, as I've said before, half a dozen other types of people you'll never get a dime from for reasons I haven't even thought of.

Five cents on the dollar.

[grimreaper]

I guess it all comes down to how they perceive the court order...rolling the dice if you will.
Either settle for the discount or get a lawyer and go through the aggravation with no guarantee as to the outcome. One thing for sure, there's NO DEFENCE..only stonewalling.

[notorial dissent]

Not really, you're not only putting the cart before the horse, you don't even have the horse.

The Receiver can send out whatever paper, demand letters etc, that he wants to, and those receiving same can pretty much ignore them as they see fit. Unless, if, AND most particularly UNTIL, he gets them in to court, and gets the court to agree that there is something valid there, and that there is actually money to be got and that can be got, he's just basically whistling in the wind. If you thought they were slow getting started on this, then you ain't seen nothing yet, civil litigation could add as much as two years, or more, to the process, depending on how busy the court is, and how successful they are at getting people served, then they have to try it and convince a judge, and that could add even longer to it. Cost benefit is still the deciding factor in these, and usually it doesn't decide in favor, and every day the Receivership is alive, cuts in to the final payout, drastically.

[The Observer]

Not really, you're not only putting the cart before the horse, you don't even have the horse.

And standing there with the empty reins thinking he is already halfway home. The point that grimmie is either missing or purposely ignoring is there are a multitude of steps and processes that must be gone through before you can start screaming "Pay up!" with any semblance of authority to back you up. And that doesn't even begin to address the issue of finding something that will be worth collecting on. As Greg said, and a multitude of Ponzi cases have shown, pennies on the dollar, years down the road.

On another note, that Gregg only sort of touched on, there is another joker in the deck, a big nasty one, called the IRS. My suspicion, well experience really, tells me that whatever the Receiver turns up, they will forward to the IRS, and it is more than likely that they are going to want to play too, about unreported or incorrectly reported income, and guess what, they get to go to the head of the line, so someone could have made out big time, and end up losing it all to the IRS, leaving the Estate with nothing to collect.

That is a timing issue and really depends when the receiver decides to provide that unreported income situation to the IRS. If the net winners already reported it accurately as income on the returns, then no reason for the IRS to get involved. If not, the IRS can only open audits on years where the 3 year statute for assessment has not expired (from the time the return was actually filed - unless the IRS can show there was fraud involved). That may take a while and quite possible for receiver-based judgments to occur first ahead of the IRS lien arising. Since we operate generally on a basis of "first in time- first in right" in this country regarding competing creditors, that doesn't mean that the IRS is a superpriority creditor. They are going to have to perfect their liens and get in line like everyone else. My guess is that the state taxing agenices will be the ones who will swoop in first and get their claims in on any unreported income - they seem to be more efficient and/or ruthless in protecting their interests.

[notorial dissent]

True, a great lot will depend on what and how much info the IRS gets/has gotten. There hasn't been any real indication as to what has or hasn't been shared at this point, but there should have at least been 1099's sent out for last year, so that will be a starting point, and I may be misremembering, but I thought the IRS was ringside for all the festivities from the start. Still a lot of IFS floating around at this point. A lot will also depend on whether the IRS thinks there is anything there worth their time and effort. Lots of questions, not a whole lot of facts or answers at this point.

[grimreaper]

The Receiver can send out whatever paper, demand letters etc, that he wants to, and those receiving same can pretty much ignore them as they see fit.

From latest filing:

Procedural Requirements: If you oppose this Motion, you are required to
file your written opposition with the Office of the Clerk, United States District
Court, 312 North Spring Street, Los Angeles, California 90012 and serve the same
on the undersigned not later than twenty-one (21) calendar days prior to the hearing.
IF YOU FAIL TO FILE AND SERVE A WRITTEN OPPOSITION by the
above date, the Court may grant the requested relief without further notice.

[Tednewsom]

Grimster-- can you post a link to that, please?

[grimreaper]

Grimster-- can you post a link to that, please?

http://www.nasi-receivership.com/wp-con ... Claims.pdf

Page 2 Line 15

[notorial dissent]

I guess it all comes down to how they perceive the court order...rolling the dice if you will.
Either settle for the discount or get a lawyer and go through the aggravation with no guarantee as to the outcome. One thing for sure, there's NO DEFENCE..only stonewalling.

Sorry, that's not what that says or means. What the Receiver is doing is notifying respondents that he is going to the court to ask for permission to pursue clawbacks, hardly earth shattering or unexpected, and the permission to pursue will most likely be granted, whether anyone files an objection with the court is pretty much irrelevant, since these sorts of things are generally granted pro forma, but the Receiver has to formally ask for the authority since it wasn't granted in the original court order creating the Receivership and empowering him to act.

Translated in to standard English it means that once he has permission, he can send out the demand letters, and then if need be go to court everything else I've said about the process comes in to play.

[Gregg]

You're about obsessed with that "NO DEFENSE" thing, aren't you?

Here at the Well Armed Bunker Complex we have "NO DEFENSE" against the Joint G'Gugvuntt and Vl'hurg Battle Fleet, but we're not too worried about it much, either. (strictly speaking that would be Chili Dog's cup of tea to brew, also)

In our legal system, to say there is "no defense" is an overly broad statement to make or back up. It might be more accurate to say there is "no defense that you can figure out" but I'd bet a Pan Galactic Gargle Blaster that some attorney, somewhere, can come up with a defense, whether it works or not.

Hell, it could be Twinkies!

[Judge Roy Bean]

...
IF YOU FAIL TO FILE AND SERVE A WRITTEN OPPOSITION by the above date, the Court may grant the requested relief without further notice.

The "relief" being sought is procedural, not recovery from participants.

If someone is dumb enough to stick their head up into the line of fire and oppose the motion, have at it.

The burden of proof is still with the receiver. Perhaps you haven't heard the phrase "motion practice."

[notorial dissent]

Why bother opposing something the judge is going to grant pro forma anyway? Why waste money on a lawyer for something that is gonna happen.

All this means is that he judge has granted the Receiver the power to actually try and take some of the people in to court and one court to settle. He still has to get them in to court, and convince the judge that they do owe the money, and then get a judgment and then try and collect on it.

Hardly a slam dunk, or even a certainty.

[grimreaper]

In no way am I implying this is a *slam dunk* for recovery...there will certainly be a lot of resistance no doubt. The question is>>what avenues of resistance will be available and what are the consequences? Lawyering up is costly and the receiver has already implied that prosecutorial legal expenses will be passed on to those that *lose*, should they litigate.
I have already stated here that I'm familiar with one individual who has decided to settle (at least for now) for the discount and I will report on the others I know when that becomes known. I take it those here that think resisting is the way to go, would do so if they were in the same situation?

and then get a judgment and then try and collect on it

I'm curious, can liens and /or repossession of property and other assets be considered in collection?

[grimreaper]

...
IF YOU FAIL TO FILE AND SERVE A WRITTEN OPPOSITION by the above date, the Court may grant the requested relief without further notice.

The burden of proof is still with the receiver. Perhaps you haven't heard the phrase "motion practice."

From the last filing:


The Ponzi Presumption
Actual intent to defraud is presumed when the payments were made from
entities operating a Ponzi scheme. In re Cohen, 199 B.R. 709,717 (B.A.P. 9th Cir.
1996); see also Donell, 533 F.3d at 767; In re AFI Holding, Inc., 525 F.3d 700, 704
9th Cir. 2008); In re Nat'l Consumer Mortgage, LLC, 2013 U.S. Dist. LEXIS 5986
at *32-33 (D. Nev. 2013) ("Courts presume actual intent in relation to a Ponzi
scheme because the debtor knows at the time of the transfer that the scheme
ultimately must collapse."). Once fraudulent intent is established, the burden then
lies with the transferee to show it took in good faith and provided equivalent value
in exchange. See Cal. Civ. Code § 3439.08(a); In re Cohen, 199 B.R. at 718-719. It
is the transferor's actual intent that matters – the transferee's intent does not matter
unless it can also show it provided value in exchange for the transfer. In re Cohen,
199 B.R. at 716-717 ("The focus of the inquiry into actual intent is on the state of
mind of the debtor."); In re Slatkin, 525 F.3d 805, 814 (9th Cir. 2008), holding that
transferor's operation of a Ponzi scheme "with the actual intent to defraud his
creditors conclusively establishes the debtor's fraudulent intent under 11 U.S.C.
§ 548(a)(1)(A) and California Civil Code § 3439.04(a)(1), and precludes relitigation
of that issue").

To the extent Clawback cases do not settle, the Receiver anticipates they will
be resolved via summary judgment. As discussed below, the law is very clear
regarding profits paid to investors, referral fees, and other transfers from Ponzi
Case 2:14-cv-07249-SJO-FFM Document 64 Filed 03/17/15 Page 10 of 26 Page ID #:1020
schemes being recoverable by federal equity receivers. The facts of the NASI Ponzi
scheme are clear and have been admitted by Defendants Gillis and Wishner, both in
this case and the parallel criminal case, in which they have entered guilty pleas.

[webhick]

A company I once worked for got a judgment against a client to the tune of $14k. Two asset searches and $3k in legal fees later and they cut their losses. Never saw a dime.

[Gregg]

. Once fraudulent intent is established, the burden then
lies with the transferee to show it took in good faith and provided equivalent value
in exchange. See Cal. Civ. Code § 3439.08(a); In re Cohen, 199 B.R. at 718-719. It
is the transferor's actual intent that matters – the transferee's intent does not matter
unless it can also show it provided value in exchange for the transfer.

I don't think that says what you think it does.

[grimreaper]

. Once fraudulent intent is established, the burden then
lies with the transferee to show it took in good faith and provided equivalent value
in exchange. See Cal. Civ. Code § 3439.08(a); In re Cohen, 199 B.R. at 718-719. It
is the transferor's actual intent that matters – the transferee's intent does not matter
unless it can also show it provided value in exchange for the transfer.

I don't think that says what you think it does.

http://www.willamette.com/insights_jour ... 011_11.pdf

The Ponzi Scheme Presumption
In the numerous bankruptcy clawback actions that
have resulted from the collapse of such fraudulent
schemes, trustees have frequently asserted a principle
called the “Ponzi scheme presumption” in an
attempt to simplify their burden of proof.Typically, the plaintiff has to prove actual fraud
through so-called “badges of fraud” or to prove
constructive fraud through valuation evidence and
testimony.
However, the Ponzi scheme presumption allows
trustees to obtain a finding of actual fraud by simply
showing:
1. that the transferor was engaged in a Ponzi
scheme (often by virtue of a guilty plea or
conviction) and
2. that the payment or transfer at issue was
made in furtherance of that Ponzi scheme.
And once actual fraud is established, the burden
immediately shifts to the defendant transferees, who
in turn must establish that they took for value and
in good faith.
Therefore, the presumption is a powerful tool. It
can provide a trustee with a shortcut to liability and
save the estate the financial burden of protracted
and valuation-driven litigation. But, more importantly,
the presumption can:
1. change the balance of the parties’ bargaining
positions and
2. force a settlement that favors the bankruptcy
estate.