ATM LEASEBACK SCHEMES-- any insight?

[Gregg]

Yes of course a *Motion to dismiss*...goes>>NO WHERE

http://www.lexology.com/library/detail. ... 4c17c51eb4

We have *Fruadulent Intent* as the overriding judgement for a Ponzi for which there is NO LEGAL DEFENSE.

Denying defendants’ motion to dismiss the action, the court held that both claims were sufficiently pleaded. First, the receiver’s claim for fraudulent transfer was sufficient because “fraudulent intent,” as required under the Utah Fraudulent Transfer Act, “may be inferred from the mere fact that a debtor is managing a Ponzi scheme,” and therefore “the inference of fraudulent intent applies to transfers made by Mr. Southwick during the course of carrying out his scheme.”

Have you ever noticed that you're not only the one most certain in your legal arguments, but also the one hasn't gone to law school? Do some research there Sparky and see if there's any correlation that might explain this.

[Gregg]

I find it *interesting* that *only* 1150 out of 2400 investors have completed the receiver's questionnaire. It would seem that ALL net losers would be motivated to provide information. The receiver has an on line questionnaire and also MAILED one as well to all 2400. Are net winners holding back? They have nothing to lose by doing so do they?

Oh no, not unusual at all. Ken Bell is already mailing checks to people and he has 55,000 people WHO HAVE APPROVED CLAIMS, that is, who filled out enough or the paperwork to establish they had a claim and for how much, who have thus far not filled out the last form to receive a check for 60% of their loss. Some are just lost, forgotten or other, but you'd be surprised how many people don't want to admit they were such fools, or how many don't want to have any court drawing any notice of them even if a check is involved. I think Zeek had north of a million investors, almost 900,000 losers and somewhere around 3/4 of them filed the initial claims forms.

[Gregg]

There is no such thing as absolute guilt before trial.

Again - you are seriously confused and are only spreading misinformation.

There won't be a TRIAL. Sentencing is the next event.
I stand by my statement>>>
All those who are shown to have NET PROFITS will NOT be having a TRIAL. It will be presumed all profits were fraudulent
distributions because>>>The perpetrators have pled guilty in a Ponzi Scheme. Do you understand that??? Now, if it can be demonstrated the receiver is in ERROR in a specific situation as far as characterization of profits, then that's another matter.

Presumed, to begin with, doesn't mean "we don't need to have a trial here, kids" it means, from a practical standpoint that the burden of proof on one point of law will have to be proven differently by the party presumption is applied to. I am presumed innocent until proven guilty, so you have to have a trial before you say I'm guilty. It is presumed that defendant A has winnings subject to clawback, do he has to prove that the checks he got were for washing the screens on the ATMs every month or some other business service, which if he can do, means he has overcome the presumption. And we find that out, if all attempts to come to an agreement beforehand fail, at trial.
And again, assume I am a net winner in this. I got the money. I have the money to pay it back, not in some obscure off shore property with liens attached and such, but in an FDIC insured savings account. You're still a long way from getting it, if for no other reason than I might spend it all fighting you.

But other things can happen.* Your net winner could be a Canadian who subscribes to the Freeman on the Land doctrine and the first three times you try to serve her she just ignores it. You get a default judgement against her for say, $214,000. You're rich! You start interviewing biker gangs collection agencies to go get your money, and six months after the default judgement she starts responding to the court. She says she answered but the court lost it, she says the clerk is hiding it, she wants to see the appointment, commission, bonds, warranties and insurance of the judge, the clerk, the balliff and the guy who runs the hot dog stand in front of the courthouse, she says she's not the person in ALL CAPS on the case, she says she's not subject to the judgements of the court, she says she's a maritime vessel and must be tried in a special court, and finally she says nothing so far counts because the flag in the courtroom has gold fringe. So maybe this is gonna take a little longer than you thought, eh?

* for information on the batshit crazy Cathline Parker, clawback defendant extraordinaire mentioned above, see http://patrickpretty.com/2015/06/25/uns ... eivership/

[webhick]

The Receiver's third report states this about the clawbacks:

Clawback Claims
The Court has recently authorized the Receiver to pursue clawback claims and approved the Receiver's proposed procedures for prosecuting such claims. The Receiver is moving forward with settlement demand letters and will file complaints against profiting investors who choose not to accept the authorized settlement offer.

So, as of the report he hadn't sent the offer letters. I checked the docket and there's nothing new there. I'm not sure if they'd show up there anyway.

[Gregg]

I know of one case, currently pending, in which there were 900 odd net winners and the receiver asked to try them as class action defendants instead of trying them individually, a motion the court granted. Its the only time I have seen this done.

[Judge Roy Bean]

I find it *interesting* that *only* 1150 out of 2400 investors have completed the receiver's questionnaire.

Why is that meaningful?

It would seem that ALL net losers would be motivated to provide information.

Not if they don't want to have their financial records scrutinized.

The receiver has an on line questionnaire and also MAILED one as well to all 2400. Are net winners holding back?

It would seem that some are.

They have nothing to lose by doing so do they?

Of course, if net winners are holding back, they may have something to lose. Or they may not. They may also be able to retain effective counsel to advise them.

Depending on their circumstances, they could opt to ignore the letter and let the receiver file suit for recovery. In those instances, their attorney will represent them, first perhaps by challenging the validity of the jurisdictional venue and then the factual allegations via various motions, some of which could be appealed if they go against the defendant. If their case is not dismissed, their counsel will represent them at the "cattle-call" settlement conference. If they don't settle, their case will be scheduled to go to trial and eventually, if a judgment is rendered against them (and again, if they have the resources, there might be appeals), the collection war begins.

Some of the alleged net winners may have retained counsel and have decided to settle. I wouldn't guestimate as to how many of which there are, but I can say with some confidence that there will be some that can afford to have a "let them prove it," attitude, which they are entitled to no matter what you think.

I would also venture to say this conversation or one like it took place at least once among one or more of the net winners and their counsel:

ATTY: "According to this letter, you netted what ...?"
CLI: "About a half million over three years. Then I started reading about it on a web site."
"ATTY: "You a promoter?"
CLI: "No. I told some people about it but they stayed away."
ATTY: "What's your current net worth?"
CLI: "Depending on which books I look at, about ten mill."
ATTY: "How long would it take to come up with the discounted money in cash?"
CLI: "A couple of months."
ATTY: "How much do you want to spend to not pay it?"
CLI: "What are the odds?"
ATTY: "Not good, but we can drag it out long enough to have a better shot at settling for less than they're asking for."
CLI: "How long?"
ATTY: "How long do you want?"
CLI: "How about late next year or early 2017? We're selling a piece of commercial property twelve months from now. I don't want to take a chance on them screwing that up."
ATTY: "And the venue is in California?"
CLI: "Yep."
ATTY: "Not a problem. I know a guy there we can use."
CLI: "So figure on settling for somewhere around two or three hundred after the end of next year?"
ATTY: "How much do you want to spend to not pay the half mill?"
CLI: "As long as it goes to the end of next year, I can cover two-hundred and fifty for you guys and two hundred and fifty in 2017. If I have to I can come up with more."
ATTY: "There's always a chance we can baffle them with bullshit or they may screw up and we'll get a dismissal. My guy in California is really good on appeals. Time is on our side."
CLI: "Go for it."

[grimreaper]

Demand letters have yet to be sent.
There won't be any *civil trials* for those who ALREADY HAVE STANDING JUDGEMENTS AGAINST THEM. There is no
recourse for them in a trial court. Having said that, I never implied that GETTING THE JUDGMENT EXECUTED would be
easy or timely. I'm sure that will be *THE RUB* for the receiver...big time.

Here>>

http://www.bna.com/what-do-you-mean-i-d ... transfers/

Investors that received distributions from a collapsed Ponzi scheme and are then sued to recover the distribution are behind the eight ball from outset of the suit due to the presumption that transfers made by a Ponzi scheme were made with actual intent to hinder, delay and defraud creditors, and are thus presumed to be fraudulent transfers. While investors' defenses are limited, however, they are not all eliminated. After a debtor makes out a prima facie case of actual or constructive fraudulent conveyance, a transferee nevertheless may avoid rescission of a transfer under Section 548(c) of the Bankruptcy Code under the following circumstances:

a transferee … of such a transfer … that takes for value and in good faith … may retain any interest transferred … to the extent that such transferee … gave value to the debtor in exchange for such transfer or obligation

Most state law fraudulent transfer statutes have a similar defense.11 Under this defense, a transferee must prove two elements: (i) that transferee took the transfer for value and (ii) in good faith.12 It is generally accepted, in the Ponzi scheme context, that an investor's principal investment gave value to the debtor.13 In addition, investors have tort claims for rescission against the fraudulent debtor to recover all of their initial investment based on fraudulent inducement.14 However, any transfers received by an investor in excess of its principal investment in the Ponzi scheme are generally deemed not to have been taken for value.

The theory is that the creditors of the fraudulent scheme did not receive any benefit from payment of fictitious profits and thus, no value was given. Accordingly, the defense that an investor took a transfer for value and in good faith will only protect against the avoidance and recovery of the investor's principal investment. The defense is not available to prevent the recovery of distributions in excess of the principal investment.

[grimreaper]

I'm not arguing that legal counsel shouldn't be retained. At a minimum, a lawyer should be consulted as to
the CONSEQUENCES of refusal to comply with a judgment and what can REALISTICALLY be done to foil
attempts to execute judgments. In addition, what can REALISTICALLY be done to reduce the demand
offer. Of course winners must weigh the COST of legal fees and getting a judgment to pay the FULL AMOUNT vs the initial discount offer of 20-30% and no legal fees. Note, none of these strategies is targeted to DEFEND the net winner against
the judgment, because of what I previously posted. Any defense will ultimately fail for distributions deemed *profits*
in a Ponzi.

[grimreaper]

If their case is not dismissed, their counsel will represent them at the "cattle-call" settlement conference. If they don't settle, their case will be scheduled to go to trial and eventually, if a judgment is rendered against them (and again, if they have the resources, there might be appeals), the collection war begins.

So, what does this mean then?

"To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment."

"In law, a summary judgment (also judgment as a matter of law) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case."

[grimreaper]

I would also venture to say this conversation or one like it took place at least once among one or more of the net winners and their counsel:

ATTY: "According to this letter, you netted what ...?"
CLI: "About a half million over three years. Then I started reading about it on a web site."
"ATTY: "You a promoter?"
CLI: "No. I told some people about it but they stayed away."
ATTY: "What's your current net worth?"
CLI: "Depending on which books I look at, about ten mill."
ATTY: "How long would it take to come up with the discounted money in cash?"
CLI: "A couple of months."
ATTY: "How much do you want to spend to not pay it?"
CLI: "What are the odds?"
ATTY: "Not good, but we can drag it out long enough to have a better shot at settling for less than they're asking for."
CLI: "How long?"
ATTY: "How long do you want?"
CLI: "How about late next year or early 2017? We're selling a piece of commercial property twelve months from now. I don't want to take a chance on them screwing that up."
ATTY: "And the venue is in California?"
CLI: "Yep."
ATTY: "Not a problem. I know a guy there we can use."
CLI: "So figure on settling for somewhere around two or three hundred after the end of next year?"
ATTY: "How much do you want to spend to not pay the half mill?"
CLI: "As long as it goes to the end of next year, I can cover two-hundred and fifty for you guys and two hundred and fifty in 2017. If I have to I can come up with more."
ATTY: "There's always a chance we can baffle them with bullshit or they may screw up and we'll get a dismissal. My guy in California is really good on appeals. Time is on our side."
CLI: "Go for it."

So, this strategy would be preferable to paying the $350K saving $150K and be done with it? Or even, take the 25% discount to pay it off in a year with $375K? Keep in mind>>NO GUARANTEES with the legal wrangling either.

[webhick]

If their case is not dismissed, their counsel will represent them at the "cattle-call" settlement conference. If they don't settle, their case will be scheduled to go to trial and eventually, if a judgment is rendered against them (and again, if they have the resources, there might be appeals), the collection war begins.

So, what does this mean then?

"To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment."

"In law, a summary judgment (also judgment as a matter of law) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case."

Here's the same quote, with appropriate emphasis added:

"To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment."

Anticipates: "regard something as probable or likely"

[webhick]

Also, I thought summary judgments were a quick way to wrap shit up before it goes to trial. As in, the trial is scheduled and then one party puts forth a motion for a summary judgment. If it succeeds, then the trial disappears and then the opportunity for appeals arise. If it fails, or is overturned on appeal, the trial either goes on as planned or is rescheduled.

A lawyer can correct me if I'm wrong, which I probably am.

[grimreaper]

Also, I thought summary judgments were a quick way to wrap shit up before it goes to trial. As in, the trial is scheduled and then one party puts forth a motion for a summary judgment. If it succeeds, then the trial disappears and then the opportunity for appeals arise. If it fails, or is overturned on appeal, the trial either goes on as planned or is rescheduled.

A lawyer can correct me if I'm wrong, which I probably am.

From Wikipedia:

"A party moving (applying) for summary judgment is attempting to avoid the time and expense of a trial when the outcome is obvious. A party may also move for summary judgment in order to eliminate the risk of losing at trial, and possibly avoid having to go through discovery (i.e., by moving at the outset of discovery), by demonstrating to the judge, via sworn statements and documentary evidence, that there are no material factual issues remaining to be tried. If there is nothing for the factfinder to decide, then the moving party asks rhetorically, why have a trial?"

Yes, the quote from the receiver's document says they *ANTICIPATE* a summary judgment should the claw back settlement fail to materialize for the reasons stated above.

[grimreaper]

http://www.lexology.com/library/detail. ... a9523418d0

Fifth Circuit affirms summary judgment against “net winners” of Stanford Ponzi scheme

Here, the CDs issued by Stanford were void and unenforceable, invalidating any contractual claim to interest; thus, the court concluded the investors failed to provide any value for the interest payments that they received. The court explained that, in the context of a Ponzi scheme such as Stanford, each payment of interest to an investor (made possible by a later investor’s deposit) decreases the net worth of the entity operating the scheme. Accordingly, the district court’s grant of partial summary judgment in favor of the Receiver on its TUFTA claims was affirmed.

[Gregg]

So, what does this mean then?

"To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment."

"In law, a summary judgment (also judgment as a matter of law) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case."

In this case it means that he doesn't think the defendants will bother to show up for the trial, and he'll get a summary judgement. He's right, a good deal of them will just ignore him, when he sends a letter, when he sues them, when he wins, when he tries to enforce a judgement. Some just hope he goes away, some think he might go away because they're not going to be easy to collect from, some might do what T LeMont Silver did, facing a multi million dollar judgement, he fled Florida for the Island of Dominica, where they don't have extradition and he says the domestic help is cheap and the weather is great. I've been there, I can vouch for the weather, in season the place is paradise.

[Gregg]

Also, I thought summary judgments were a quick way to wrap shit up before it goes to trial. As in, the trial is scheduled and then one party puts forth a motion for a summary judgment. If it succeeds, then the trial disappears and then the opportunity for appeals arise. If it fails, or is overturned on appeal, the trial either goes on as planned or is rescheduled.

A lawyer can correct me if I'm wrong, which I probably am.

You're not all wrong. A summary Judgement means one side asks the court to look at the undisputed facts, the law and on any facts in dispute, give the other side the benefit of the doubt, and see if we still win, on the law. A trial determines facts, juries decide facts, but a Judge decides the law and sometimes, when you look at the facts, even IF what Pro Se Polly says is absolutely true, she still loses because the law says so. Summary Judgements can be appealed, and I think its boilerplate in certain types of cases for one side or the other to ask for one at the beginning of a trial, just to see if it flies.

[notorial dissent]

I find it *interesting* that *only* 1150 out of 2400 investors have completed the receiver's questionnaire.
It would seem that ALL net losers would be motivated to provide information.

And I don’t find it in the least unusual, or even particularly meaningful. You would surprised/terrified, at least if you had a brain, at the number of people who DO NOT look at their financial statements at all, and some maybe only once a year around tax time. A certain percentage will have forgotten about it altogether for various reasons, my suspicion is that a number of them do not want to be any further connected to this than they can help and so will ignore any and all statements coming from this quarter, and some will have just written the whole thing off as a loss and don’t want to be reminded of it any further. My suspicion is that the ones who did reply were actually thinking they were investing in a going business and play by the rules. Just at a rough guess, the numbers look about statistically right.

At last count, I was getting periodically about six settlement notices or whatever you want to call them because I had at some point possibly used a product or service, or they just drew my name out of a hat, never really have figured out a couple of them. I routinely throw them in the trash since it would cost me more to reply to them than I would ever see back. I think the biggest one I ever got was for a $10 coupon to a service or some such that I would never ever use. Lots of people feel that way. For some reason I'm also on the settlement list for some pharmaceutical company for a product I don't even recognize and certainly never used. I've been getting notices for this one for years now it seems. Lots of people just ignore these since they don't amount to anything, or they think they won't.

The receiver has an on line questionnaire and also MAILED one as well to all 2400. Are net winners holding back?

Magic Eight Ball says YES. Why should they reply? The more distance they put between themselves and this the better it looks from their standpoint, and they can always claim ignorance. I can think of any number of reasons for them to do so, but they are just guesses, however, didn’t feel like it will do as a base point. My personal opinion, and experience says that if they have any contact at all it will be through their attorneys who won’t be in the least bullied or impressed by anything the Receiver says or does, and that way he has to play by certain very restraining rules.

I either mis-read, or misinterpreted, something I saw when I was going through the pages and pages of billing by the Receiver, as I thought that they had completed and sent out the Demand Letters. I was apparently wrong. So they are in the almost ready to go out stage then. They may be waiting on finishing the audit and book restoration, or there could be any number of other reasons. Previous operations I was aware of still had to go before the judge to get permission to send them out even after they had been authorized. I don’t know how this judge works, and can’t really tell from what has been released so far. He sounds more laid back than some I’ve seen, but then again that may just be a surface appearance. At this point it is wait and see.

There won't be any *civil trials* for those who ALREADY HAVE STANDING JUDGEMENTS AGAINST THEM. There is no recourse for them in a trial court. Having said that, I never implied that GETTING THE JUDGMENT EXECUTED would be easy or timely. I'm sure that will be *THE RUB* for the receiver...big time.

I’m sorry, just what unregistered reality are you calling in from?

That is the biggest load of caca I’ve yet to see you post. THERE ARE NO JUDGMENTS of any kind shape or form against anyone but the boys. You are delusional, and just simply and completely WRONG. There will NO JUDGMENTS against any of the parties unless and until one is granted by the court, after a trial.

Whole long Grimmy diatribe amounting to blah blah blah blah and nothing of substance, snipped for boredom. “Anticipates” is Receiver speak for I really really hope so. You can anticipate winning the Bazillinoaire Lottery, but it don’t mean it gonna happen. The Receiver is “anticipating” no problems with any of the legal actions. No one, including the Receiver believes that.

The ONLY way the Receiver will get a summary judgement is if one of the defendants doesn’t show up to trial, after they’ve bene properly served and a trial has been set, and even then it isn’t guaranteed. If they show up, the Receiver still has to prove to a jury’s satisfaction that the money wasn’t really the investor’s. So far from being a done deal.

[grimreaper]

There will NO JUDGMENTS against any of the parties unless and until one is granted by the court, after a trial.

WHAT TRIAL?? .....there won't be any trials. I REPEAT>>NO TRIALS>>> It's a DONE DEAL....yes...A DONE DEAL.
Anyone who profits will either have to settle or a Judgement will be rendered...unless they can demonstrate the #s are incorrect. Now., as I pointed out, this doesn't in any way insure receiver will RECOVER funds in demand.

Did you read this??? NET profits were subject to a SUMMARY JUDGEMENT..NO TRIALS.

Fifth Circuit affirms summary judgment against “net winners” of Stanford Ponzi scheme

Here, the CDs issued by Stanford were void and unenforceable, invalidating any contractual claim to interest; thus, the court concluded the investors failed to provide any value for the interest payments that they received. The court explained that, in the context of a Ponzi scheme such as Stanford, each payment of interest to an investor (made possible by a later investor’s deposit) decreases the net worth of the entity operating the scheme. Accordingly, the district court’s grant of partial summary judgment in favor of the Receiver on its TUFTA claims was affirmed

[Hyrion]

WHAT TRIAL?? .....there won't be any trials. I REPEAT>>NO TRIALS>>> It's a DONE DEAL

And if there is a trial, just one little trial. Will you be man enough to admit you were wrong?

The future will tell.

[Hyrion]

The Receiver is “anticipating” no problems with any of the legal actions. No one, including the Receiver believes that.

Well... to be fair, that's not entirely true.... the "no one" part that is.

After all, I think Grimmy has produced enough repetitions of the same statements that it should be reasonably considered that he believes it to be true there will be no problems with the summary judgements.