What is it Worth When You Catch a Lawyer Lying: Briefs from Appeal of $83M Verdict Against Debt Buyer PRA
Portfolio Recovery Associates appealed a jury verdict of $83 million. The argument was that the Goliath debt buyer continued to sue a woman for debt that did not belong to her until after she filed a counterclaim based on the FDCPA, and the judge sanctioned the company for its abusive litigation tactics by deciding liability in favor of the alleged debtor and letting the jury decide only the damages.
An attorney for PRA said in a hearing that the debt collector thought the counterclaim would be dropped after it acknowledged the woman may not have owed a debt. (They waffled, and made their dismissal without prejudice, just in case they could find any evidence supporting their claim against the woman.) When she refused to drop her suit, the PRA Group, Inc. subsidiary fought her full force and dirty.
It sounds a lot like my personal experience with Portfolio Recovery. Unfortunately, the judge on my case, Lee P. Rudofsky says no reasonable juror can find it is particularly annoying to have the debt collector ring my phone hundreds of times and not tell me who is calling or what they are calling about until I agreed to answer interrogatories on a recorded line. Judge Rudofsky dismissed the majority of my claims.
I am busy this next three weeks preparing for a hearing on May 23, 2023 in which I hope the Court reconsiders his opinion. So, with no more ado, here are the briefs filed by both parties in the jury verdict case and an amicus brief favoring the alleged debtor. Hopefully they will help you help your clients or yourself (pro se) so you don’t have to settle for the pittance Portfolio tosses your way.
How Many Reasons do Courts Have to Show Favoritism to Debt Buyers? About a Hundred Million Reasons.
Old credit card debt is often sold to a junk debt buyer for pennies on the dollar. The debt buyer makes approximately 30% of its revenue from alleged debt collected through legal proceedings. A vice president for one of the most active debt buyers in the nation, Portfolio Recovery Associates, LLC, said of the judgements obtained, 90% are by default.
Some of the no shows owe the debt. But many cannot take off work, don’t understand the process, do not actually receive a summons, or may even be dead.
But PRA is notorious for bringing actions against alleged debtors on debt that cannot be verified, and even worse, that PRA knows is from inaccurate records. The majority of the time that an alleged debtor shows up to court, the case is dismissed. Ooops, says PRA, my bad.
Why do the judges not require the unopposed debt buyer to show at least a minimal amount of old account level documentation that shows when debt was supposedly incurred and where? This is as simple as showing the account statements from the last time the account was zero until it was at the current balance.
The judge would not need to look at every entry. A spattering would do.
Call me a cynic. I think the courts like the income from the litigious collectors.
Portfolio Recovery Associates is a wholly owned subsidiary of PRA Group, Inc, a publicly traded company that has the symbol PRAA.
In PRA Group’s consolidated financial statement for 2021, Total Portfolio Revenue shows as $1,073,231,000. Of that, $78.3 million was “costs paid to courts where a lawsuit is filed for the purpose of attempting to collect on an account.” In 2020, the costs paid to courts was over $100,000,000, about 9% of revenue.
I’m not saying a debt buyer walks into a judge’s chambers with a briefcase full of cash and walks out empty handed.
I’m just wondering if the courts would put a little more consideration into their decisions if it was the alleged debtor who kept the court lights on and paid the staff’s salaries.
A Little Light Reading for Your Sunday Evening
Atheists call it “coincidence” or “kismet”. I call it a God thing.
God is good, all the time.
So, I was pulling up caselaw on Thursday at the Arkansas Supreme Court Library. They let patrons use their Westlaw subscription. There is an email function. This is a pro se litigant’s lifeblood.
Praise break: The staff at the library is great. Especially Ava. She and the rest of the crew go out of their way to help dig for the truth.
The wind finally calmed down this evening and I got a walk in. Then I sat down to read the emails from Thursday.
The first email from Westlaw was a case out of Massachusetts. The case discussed was the end of a line of dicta and persuasive law that I will use in my case against the greedy and obnoxious debt buyer, Portfolio Recovery Associates, LLC.
Once you learn the legal shorthand and style preferred by the courts, caselaw is so interesting. I may never read fiction again. (Though I am coming to find that much of what judges write is fiction also. Hint: Judge Susan Kaye Weaver, Judge Billy Roy Wilson, etc.)
I asked a therapist once if she thought I am litigious. She said no. She explained that because I had to protect important rights in court once, I learned about other rights and just try to protect them also. One case teaches me that I have another case.
Thus, I read a case to glean what I can about the Portfolio Recovery dispute, and it is as if this learned judge in Massachusetts is sitting with me, chatting about the Pietrczak and Shelter Insurance cases presided over by Judge Weaver. Here is what Judge Angel Kelley told me: (I did not make this up; her name really is Angel.)
“But Lotus Foods’ interests in this case are ‘aligned closely enough’ to Zhuang’s that the company’s interests elsewhere will be adequately protected by Zhuang’s positions here. Merrill Lynch, 11 F.4th at 17 (‘We have explained that where the interests of an absent party are aligned closely enough with the interests of an existing party, and where the existing party pursues those interests in the course of the litigation, the absent party is not required under Rule 19.’); see Pujol v. Shearson Am. Express, Inc., 877 F.2d 32, 135-36 (1st Cir. 1989) (‘The mere fact … that Party A, in a suit against Party B, intends to introduce evidence that will indicate that a non-party, C, behaved improperly does not, by itself, make C a necessary party.’). Although Zhuang bears the burden to show that Lotus Foods should be joined, he fails to demonstrate why his own defense—ostensibly, that he did not commit fraud, intentionally interfere with New Ming’s business relations, or convert New Ming’s funds—will not protect Lotus Foods’ interests as well. Roy v. FedEx Ground Package System, Inc., No. 3:17-30116-KAR, 2020WL3799203, at*6-7(D. Mass. July 7,2020) (”'[A]n absent party’s interests cannot be harmed or impaired if they are identical to those of a present party.”‘ (quoting Bacardí, 719 F.3d at 11) (internal alternations omitted)). Presumably, the two would want to prove the same things. None of the cases defendant cites demonstrate that a corporate entity must be joined if one of its officers or directors issued individually for tortious conduct. Cf. Rivera Rojas v. Loewen Group Intern., Inc., 178 F.R.D.356,361-62(D.P.R. 1998) (finding subsidiary necessary party in contract dispute against parent company); Urquhart v. Wertheimer, 646 F. Supp. 2d 210, 213(D.Mass.2009) (finding partnership necessary and indispensable party where (i) plaintiff’s claims were derivative, and (ii) the general partner’s and the partnership’s interests were not aligned). Taking New Ming’s allegations as true, Lotus Foods is not necessary under Rule 19(a), and the court need not address Rule 19(b) at this time.”
Thank you, Judge Kelley. Can I pour you a glass of Moscato or do you prefer a cup of dandelion tea?
Judge Silly Sue Weaver demanded that I join my own living trust, of which I was sole trustee and non-contingent beneficiary, to a case against Shelter Insurance Company and Jeff Jennings Insurance. No attorney would represent the trust, because it would be professional suicide. The trust held no liquid assets, anyhow, so the trust would need to obtain funds for an attorney from me. I named the trust as a defendant, arguing that I paid for the insurance out of my individual funds, and will be harmed by the trust’s inability to retain counsel. I told the court that she was free to name the trust as an involuntary plaintiff.
While on another case Judge Silly Sue said I could not defend myself as an individual during a hearing to determine the amount of default damages awarded against the very same trust. After the kangaroo court hearing Judge Weaver dismissed me as an individual with prejudice. Then she went on to decide I personally did some illegal things. She gave the real property held in trust, my individual rights to use that property and my personal property that was on the real estate to a man who had sued me maliciously, twice, and had the case against me dismissed both times.
The Pietrczak case is on appeal and the Shelter insurance case will certainly need to be appealed, also. Hopefully, someday, an old lady or a modest means family that is fighting to keep the little they have will come across the writings of the Arkansas Court of Appeals on my cases and be able to say, “Praise God”. We can pray.
Spoliation and Cover-up by Portfolio Recovery Associates and Judge Lee P. Rudofsky
The jury is still out, so to speak, on the motivations for Trump appointed judge Lee P. Rudofsky to allow for Portfolio Recovery Associates to deem so much evidence in my case against them as “confidential”, and worse, to allow the evidence to be filed under seal. Turning the case into a Star Chamber is probably legal error. It definitely flies in the face of our Founding Father’s stated intent to give justice to all through a transparent legal system.
For fear of violating a court order, my report will lack my usual detail of the evidence. I feel comfortable telling you what is not in the sealed evidence.
Basic background: My claim is that the Goliath debt collector violated the FDCPA. Portfolio Recovery Associates,LLC is a wholly owned subsidiary of publicly traded PRA Group, Inc. I had no outstanding debt to them or the original creditor. PRA changed the balance on my account to zero, but only after I filed litigation against them. The FDCPA is a strict liability statute and I have a right to allow a jury to decide what the damages are. Instead of proceeding to trial, PRA filed a motion for summary judgment. The Court agreed to dismiss the majority of my claims based upon the evidence presented to the court, claiming no reasonable juror could find otherwise. Judge Rudofsky did allow me to proceed on one issue and a motion for reconsideration of the other issues, but did not allow me to discuss the evidence or lack of evidence openly with the public. This is concerning, since I showed the Federalist Society judge copies of similar evidence filed in other PRA cases.
I contend that some of the evidence is inconsistent and the company records have been altered.
Usually in a lawsuit, when one party starts shredding the evidence, the court will impose sanctions against them. But, up until recently, many courts opined that the spoliation must take place after litigation is filed. A wise appellate court justice in Massachusetts recently found how illogical this was and made the following order:
“Notice of docket entry received from Appeals Court Please take note that on January 30, 2023, the following entry was made on the docket of the above-referenced case: ORDER (RE #1): The plaintiffs JFF Cecilia LLC and Suffolk Construction Co., Inc. seek interlocutory review pursuant to G.L. c. 231, s. 118 (par. 1) of a January 6, 2023 order issued by a judge in the Business Litigation Session of the Suffolk Superior Court denying their motion for spoliation sanctions against the defendants Weiner Ventures LLC, and Stephen and Adam Weiner. As relief, the plaintiffs request that the single justice reverse the order or authorize the taking of an interlocutory appeal to a panel. ‘The doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.’ Scott v. Garfield, 454 Mass. 790, 798 (2009). Because the decision denying the motion notes the correct standard and also states that the ‘potential litigation must be probable . . . and not merely possible,’ and that the Weiners did not have an obligation to preserve evidence because ‘[a] reasonable person in the same position would, at that point, not think it very likely that they would be sued,’ I cannot tell if the judge applied the correct standard. Accordingly, the matter is remanded for the judge to determine if the defendants knew or reasonably should have known that evidence might have been relevant to a possible action. If the judge determines that the defendants spoliated evidence, they should then determine if it prejudiced the defendant. If so, they should determine if sanctions are appropriate. The order after remand is requested to be transmitted to this court within 30 days at MACClerkMatter@jud.state.ma.us. I also note that the plaintiffs request that they be permitted to present evidence of defendants’ alleged spoliation to the jury. I note that even where a judge denies a party’s motion for sanctions for spoliation, a plaintiff alleging spoliation is ‘free to argue that a trier of fact should hold the [defendant’s] failure to return [the documents] against the [defendant].’ Zaleskas v. Brigham & Women’s Hosp., 97 Mass. App. Ct. 55, 76 (2020). (Henry, J.) *Notice/attest/Salinger, J.”
Why have so many of the thousands of attorneys who have filed FDCPA cases against Portfolio Recovery Associates LLC and other junk debt buyers failed to question the practice of credit card companies and their successors of destroying the record before it is needed for litigation, even though there is a good probability that the documents will be needed?
In the cases connected to the collection of debt that are brought by the debt collectors, which vastly outnumber the cases against the debt collectors, the debt collector is tasked with producing enough documentation to verify the debt. Unfortunately judges like Lee P. Rudofsky hold the alleged debtor responsible for proving that the debt was either a clerical error or a fraudulent transaction, even though the old account level documentation was destroyed by the original creditor or its successors, and the statute of limitations for being sued on the debt has expired.
In my case, Portfolio Recovery took their destruction of evidence a step further. The records produced are not consistent. It is clear. A person of limited intelligence can look at one document and see that an event was documented and look at another document that covers the same time period and see that there is no indication of the same event.
Someone who has way too much time on their hands can look at my request for production of documents and see that certain documents requested were not produced on the open record. One of these is the company policy manuals. The public cannot look through my case file and learn what Portfolio Recovery Associates policies and procedures are. The public will not know from this case whether or not PRA representatives are required to log each time they make a phone call or not. The public will not know from this case whether or not PRA complies with 26 CFR section 1.6050P by issuing a 1099-C whenever it cancels debt, heeding the warning found in the IRS instructions, “Do not file Form 1099-C when fraudulent debt is canceled due to identity theft. Form 1099-C is to be used only for cancellations of debts for which the debtor actually incurred the underlying debt.”
PRA attorney from the firm of Troutman Sanders, LLP said in open court that PRA did not issue a 1099-C to me “in light of the litigation” but that should not be admissible as evidence because lawyers’ statements are not testimony. Because Judge Rudofsky hid most of the evidence from public scrutiny, when I report to the IRS, I can only tell them what happened to me, not what is in the record. That I did not receive a 1099-C ever in my life, but I had lawyers for Portfolio Recovery Associates LLC say there was a valid, not fraudulent debt and PRA waived it. Oh, and they waived it without including their largesse as part of a settlement.
A Little Light Music for Your Listening Pleasure
When I finally obtain a copy of the audio recordings of the hearings Backwoods Judge Susan Kaye Weaver and side kick Court Reporter Jana Perry fictionalized in the transcripts of the hearings, I hope rap singer “Afroman” will collaborate with me on a song or two that will memorialize the corrupt court’s conduct.
Joseph Edgar Foreman, AKA Afroman, is being sued by some Adams County, Ohio sheriff deputies. Afroman used surveillance video of the sheriffs breaking down his door and searching his home to illustrate two music videos. I chuckled a few times while I watched the videos that already have millions of views on YouTube. Apparently, the police officers found no humor in the videos what-so-ever.
Watch the music videos Lemon Pound Cake and Will You Help Me Repair My Door here and here.
The invasion of privacy lawsuit would be humorous if there was not a good chance that corrupt judges would let it proceed and maybe even let the police officers prevail. That is the direction our legal system has taken. First judges gave themselves absolute judicial immunity from civil lawsuits. It takes an act of God to get the judicial ethics commissions and public integrity unit of the FBI to rein in the corrupt courts. Then just about every public employee, including cops, were extended “quasi-judicial” immunity.
Now these Adams County cops are demanding that video footage of them searching a man’s home and taking about $5,000 of his cash not be played for the public. (There was no illegal substances nor kidnapping victims found on the property, despite the police making claims that resulted in a search warrant.)
Here’s my music video concept. First an intro that says something like “Arkansas Injustice. Arkansas Injustice. Just listen and learn about Arkansas Injustice.”
Then we will use segments of the recording that Judge Weaver does not want the public to hear; but we will change the cadence when repeating certain phrases. “The motion for continuance must be in writing, must be in writing, must be in writing.”
We will use the read-along tool used in children’s videos, with a bouncing ball touching each word of the transcript in order. But the words spoken will not be the same as the written words, because they are not.
Where attorney William Zac White very loudly says “Bitch” and that was not captured on the transcript, the bouncing ball can land on red text alone on the screen that says “BLEEP”.
There will be an animated reenactment of the hearings interspersed with the lyrics. During this animation, the lip movement of the characters will be pronounced but inconsistent with the words spoken. It will be like watching a Japanese Karate movie dubbed poorly in English. The lip movement will be completely out of sync with what was said.
Citizens who have their Constitutional rights violated by rogue government officials usually cannot recover civil damages for the misconduct. Will the courts also try to limit our ability to create art and literature that exposes the bad behavior?
Stink Eye: Should Judge Weaver be allowed to dictate a litigant to keep a good pokerface?
“Lucky” was playing in a poker game with me last night; a 1/2 NLH at the Hard Rock in Tulsa, Oklahoma.
Lucky is a tough looking young man, about the same age as my son. He is Hispanic, wears a full beard, dark shades and muff style headphones. He has a take no prisoners style of play.
I was dealt an AQ off-suit, which I consider to be a good playable hand. If I was leading off with the betting, I’d probably raise from the minimum $2 bet to $6. But Lucky got to bet before me. With a dramatic display of calculation, picking out a few chips, then pausing and adding a few more from a different color stack, he announced his bet as $23 dollars and strew the chips across the table with aplomb.
Any bet over $20 pre-flop at this table meant a premium hand (or a bluff). He probably had an AK, KK, or AA and dominated me. So, after glaring at him, I folded.
Lucky took off his headphones and addressed me personally for the first time since I joined the game. Really he was talking about me in the third person to the whole group, but he intended to engage me. I don’t remember his exact words. It was something to the effect of look at the way she stared at me. She was harsh.
The hand played out and Lucky took down a sizable pot when the last remaining caller folded after the river. Lucky showed us his pocket jacks. JJ against AQ is actually a coin toss. There was an Ace on the turn, so if I had not folded, I would have won the hand.
I acted contrary to my own rules and told the players what I folded. We had a good laugh together and I told the men about a comment that Judge Susan Weaver made to me. It was during the hearing where she trampled all over my rights to due process and announced her intention to give my personal property and real estate held in trust to a man who put his intention to defraud me of $75,000 in writing.
Judge Weaver said to stop giving her “stink eye”. At the time she said that, I had a credible fear that the judge also intended to find me in contempt of court and incarcerate me. Her stink eye comment sounded like a set-up to find me in direct contempt.
Judges have gotten away with throwing people in jail for less. They should not. They should not be allowed to tyrannize litigants who are merely expressing disapproval of the judges’ errant denial of civil rights through a non-disruptive facial expression.
It is not as if I called Judge Weaver a bitch. Opposing counsel William White called me “bitch” loudly in court that day and Judge Weaver pretended not to hear it. Judge Weaver’s longtime colleague Court Reporter Jana Perry pretended not to hear it either, when she fabricated what was said in the fictionalized transcript she created.
My look of righteous anger, though, that Judge Weaver found worth noting for the record.
Lucky made me realize just how evil Susan Kaye Weaver was to demand that I hide my dismay with her Draconian commands. Lucky noticed the intense look I gave him, also. And we were playing poker. The whole idea behind poker is to mask your emotions, because showing your emotions conveys information that can help your opponent make educated decisions on future hands. You’re not playing a hand, you’re playing a game.
When the unethical jurist abused her power by forbidding me from defending my own property rights, I was justifiably angry. There is nothing disruptive about me looking at the judge with an angry look on my face. Had she not commented, there would be no record of my disapproval until I filed my appeal.
Judge Susan Weaver wants to bully and bluff and for me to maintain my best poker face. I complied that day in court, for fear of having my 60-year-old body thrown in jail. If I had the energy, I would have protected my Constitutional right to a fair trial from being treated as a game. (Hopefully the Court of Appeals addresses the issue when ruling on my unopposed appellate brief.)
Federal Courts Errantly Allow Non-Attorneys to Represent Corporations, as Long as They Lose
Supposedly, an individual who is not authorized to practice law is not allowed to represent another person in court. This applies even if the representative is a licensed attorney in another state.
But Judge Janis L. Sammartino, a Federal District Court Judge in Southern California allowed me to represent a limited liability company in what is called a “derivative action” until I discovered the error myself. She then required me to defend against a bogus attorney fee award.
After Judge Sammartino was transferred off the case, replacements Todd Robinson and Linda Lopez affirmed the ongoing proceedings and astronomical attorney fee award.
I have a pending appeal in the Ninth Circuit. Here are excerpts of the opening brief with the entire document below.
Silver Strand Plaza, LLC was formed in 2005. In 2009, there was an amendment that resulted in my ownership of 14.1571% of the shares.
Ellis Stern and his firm, Stern & Goldberg (“Stern”) represented my mother’s, SSP’s and the other individual members’ interests in SSP. The retainer agreement with SSP specified that Stern would oppose me, singling me out by name.
At the end of 2013, I demanded to see the company books and records. Stern allowed me to go to his office and make copies of what he claimed were the entire books and records. There were indications that pertinent documents were excluded.
I found discrepancies that concerned me and brought these to the attention of the other members in a special meeting by telephonic conference. The other members, who had the right and obligation to make “major” decisions in good faith and fair dealing, did not agree to have a professional accounting. Stern made an inaccurate written record of the meeting. I corrected him in writing.
On June 9, 2015, I wrote this in an email to my sisters, mother and Stern:
“It is about 18 months since I was included in any meeting of partners of SSP, LLC. I had a few concerns come up in the last couple days. My conclusion is that we would all be better off if the other partners bought me out of SSP, LLC.” I used the “tax basis” of my shares as the offer price, $516,839.
Stern authored a counter-offer couched as his opinion presented on June 15, 2015, of $218,000 from SSP for my share of SSP. My offer was clearly a transaction between me on the one side and my sisters on the other side. The counter-offer looked like it was from SSP. There was no company meeting of the members that I was informed about to decide how to handle the offer. There was no explanation about if I would be required to provide 14.1571% of the $218,000 capital to purchase the property from myself, as would be the literal meaning of the operating agreement, dropping my net to $187,138. I used $218,000 in my pleadings to the lower court, because my offer was to my sisters, not SSP. The statutory buyout provisions of the Cal. Corp. Code provide defendants in an involuntary dissolution action with a mechanism for avoiding dissolution by purchasing the plaintiff’s shares or other interests. It is not the corporation buying out the shares.
I rejected the counter-offer.
In May 2016, Sherman recommended selling the shopping center, and the members accepted that recommendation. (This came at about the time our sister Roberta Kramer (deceased) discovered she had cancer.) In October 2016, only 16 months after Stern wrote an offer of $218,000 for my interest in SSP, the shopping center went into escrow at a purchase price that valued my interest at nearly $1.5 million.
[After advising the manager to make four other breaches of fiduciary duty to me], in that same February 2, 2017 e-mail, Sherman used the excuse of the time spent communicating on the withhold issue as the reason she could not wire my distribution to me, even though other members were being paid, and even though Sherman’s e-mail claiming that she “will not have time today to go to the bank” was sent at 10:45 a.m. When I responded only an hour later that Sherman had a fiduciary obligation to wire the amount of my distribution less whatever amount Sherman believed had to be withheld for California taxes, Sherman responded through Stern and asserted for the first time that, in addition to California taxes, Sherman was required to withhold the amount of a Child Support Division lien against other property unrelated to SSP, and that determining the amount of the lien would further delay payment to me of my distribution. Sherman and Stern had been aware of the Child Support Division lien against other property for over a year and had never previously indicated that money would have to be withheld to pay that lien. With this excuse, Sherman delayed wiring any of my distribution (even the amount that was undisputed) until February 6, 2017.
Again, instead of Stern advising Sherman to make a full payment and leave the issue alone, he advised her to improperly withhold and convert $50,000 from my distribution wired on February 6, 2017. The stated reason: the funds were held as a litigation fund that Mary Sherman could use if I litigated to obtain the funds! Through Stern, Sherman not only defended this unlawful conversion and breach of fiduciary duty, Stern informed me that the funds would not be released until I released any of my claims against Mary Sherman for breach of fiduciary duty: “Perhaps we can discuss a method to protect the Manager [Mary Sherman] in connection with release of the reserved funds. Otherwise, they will be withheld to cover the litigation expense or for the period of time until the statute of limitations has run its course.”
Stern reiterated this effort to extort a release from me in a second e-mail to my attorney on February 9, 2017, in which he wrote: “The $50,000.00 will be released promptly upon your furnishing to me a signed General Release by your client [me], releasing Mary Sherman from all claims in her capacity as Manager of the LLC.” I did not respond to this blatant effort to extort a release from me. Realizing that she was only compounding her breach of fiduciary duty, Sherman released the $50,000 by wiring the funds to me on February 10, 2017.
Attorney Michael Early, Stanford and Hastings trained and with over two decades of experience, agreed that the books and records presented to me were inconsistent with the arm’s length valuation of the property. He represented me on contingency in an attempt to obtain a full disclosure of the financials and recover the capital in my account that was owed to me. We saw that the “corrected” prospectus stated expected income that was significantly higher than the income reported to me.
When I pressed for an explanation for the difference in NOI after the sale, Sherman responded through Stern, in pertinent part, as follows: “The numbers of the package were developed by the broker as part of his sales effort to maximize the sales price of the property, since the sales price is proportional to the net operating income. Our broker added back certain expenses to obtain a higher net operating income, and he reviewed these add backs with the buyer.”
When I then asked for 1) evidence that would verify the statement and 2) a brief description of the “certain expenses” that were added back “to obtain a higher net operating income,” Stern forwarded an e-mail from Sherman in which she stated that the buyer of the SSP property received the same financials that were used to prepare SSP tax documents and that: “the Buyer bought the building based on these numbers (with certain add backs, such as all management fees, earthquake insurance, and other costs that they deemed irrelevant since they would not be paying those costs once they owned the building).” No further explanation was provided.
When I inquired further of Sherman, Stern further muddied the waters by responding that: “There apparently were certain non-recurring expenses that formed the basis for the financial statements presented to the buyer, which, as [Mary Sherman] indicates, were fully identified and explained to the buyer.” In this “explanation,” items such as management fees and earthquake insurance are apparently described as “non-recurring expenses.”
Michael Early filed a lawsuit in the Central district of California on my behalf against SSP, and Mary Sherman as an individual and as manager of SSP about April 27, 2018.
In early May 2018, I was informed through Michael Early that SSP retained Patrick McGarrigle and his firm (“McGarrigle”) to represent it in the litigation.
McGarrigle said I would receive the full disclosure of SSP records if I dismissed the first lawsuit. I fell for his fraudulent statement and withdrew the suit.
I still have not received a full disclosure.
During the six years following the post-sale distribution, Sherman has not distributed any funds to me, even though the K-1s provided on behalf of SSP show over $70,000 in my capital account which fell by $54 this year.
There were a few random line items on the K-1s and bank records that were disclosed to me that indicate there is a loan and a property bought in part with my capital account that are self-dealing by the Shermans: “THE SHERMAN FA” as payee; “MSFP Loan”; “MSFP II LP”; and a “Sherman Family Limited Partnership” as real estate owned by SSP listed on a K-1. Sherman, Stern, McGarrigle and the current SSP attorney all refused to tell me what these line items indicate and there is a second bank account, “CBB”, for which they did not produce statements.
It is apparent to me that the Defendants intend to withhold my capital account indefinitely, so I agreed that Michael Early cannot afford to work on contingency for the protracted litigation that was threatened. I agreed to release him and handle the matter on my own with substitute counsel on limited scope. The attorney I consulted, LaToya Redd (“Redd”), informed me that the Southern District of California “frowns on” attorneys helping pro se litigants for distinct pieces of the case. She said I must obtain leave to hire her piecemeal before I could retain her.
Throughout 2019, McGarrigle advocated on behalf of the individual defendants. Dennis is the only member who communicated significantly with me directly in 2019. She wrote over 50 emails, most copied to the other members and McGarrigle. While Dennis showed some interest in getting an accounting, over 30 of her emails were disturbing, as detailed below.
McGarrigle authored over 40 emails, advocating for the position of the individual members and manager. It was obvious he was speaking on behalf of each member, Kramer as an individual, as well as for SSP. He claimed my emails used “pejorative”, “inflammatory language”, and “wild accusations”. Yet he said not a single word to rein in Diane Dennis.
Dennis sent several emails that are considered “defamation per se” in all but three states. I live in one of the states that breaks from the availability of “per se” protection against these kinds of comments. The recipients of the malicious emails and my business interest in SSP are in states that recognize “per se”.
McGarrigle admonished me for discussing SSP business, yet refrained from admonishing Dennis for completely inappropriate and disturbing emails.
McGarrigle, and Stern before him, represented both the competing interests of individuals connected to SSP and SSP as a separate entity. The money used to pay for representing the individuals was a distribution of capital to each member, without a distribution to me.
Early in the proceedings I moved the court for leave to retain an attorney on limited scope, which I described as for the purpose of [], to explain derivative actions and other issues that were too complex for me, [], or handle issues that have a fee shifting provision, such as [] if I could prove the anti-SLAPP motion was filed maliciously [by the attorney defendants], as it was. I filed two motions and was denied twice.
Issue:
Whether the court and licensed attorneys were allowed to proceed on the FAC or more specifically the derivative causes of action included in the FAC, even though the complaint was written and filed by someone unauthorized to practice law. It was clear legal error to allow the void proceedings.
Law: [allowed to exclude citations as a pro se litigant]
The Ninth Circuit employs a de novo standard of review for issues addressing the unauthorized practice of law.
It is clear on the face of the FAC that I chose to file the cause of action for legal malpractice as a derivative action only. It is therefore a nullity.
If this court upholds the opinion of the lower court that certain rights that I claimed were violated were not my rights, but belonged to SSP, and must be brought as a derivative action, then amendment is not futile, as long as I can hire an attorney on limited scope for the derivative causes.
Judge Lopez’s spin on my motion to vacate the void orders that were the fruit of the void pleading is found in Doc. 266. Her conclusion: “Because no judgment was rendered on Plaintiff’s now-dismissed claims against the Attorney Defendants, none of the cases cited by Plaintiff support a finding of clear error by this Court.” It is well settled that a presiding judge must strike any document written by one not licensed to practice in that jurisdiction on behalf of anyone but herself. In Pietrczak v. [Hammett] and the Rural Revival Living Trust, Searcy County case 65CV-21-20, I was named as a common defense doctrine defendant. I prevailed as an individual. But the court granted default judgment against the trust after a hearing in which the court forbid me from defending the trust in any way or giving testimony as the trustee of the trust. (That case is on appeal. One reason, I was sole beneficiary, settlor and trustee of the trust, and therefore would only be representing myself.) In two related cases against Goodman Manufacturing Company Inc., et al in which I am plaintiff, an answer written by a Texas attorney was found void, and a Home Depot attorney’s signature on a settlement agreement was struck out with a written admonishment that he was not licensed to practice law in Arkansas. California usually treats this situation the same as Arkansas, but if the district court is allowed to veer from the California law on my case alone, and if choice of law is Arkansas law for defamation per se, then it must be choice of law for this issue also.
When the Attorney Defendants and their counsel first read the cover page of the FAC, they knew or should have known I was not allowed to proceed on a derivative cause of action. There is caselaw stating this. The court failed to deem the impermissible pleading void ab initio and then ordered me to pay attorney fees to the licensed attorneys who purposefully multiplied the proceedings by continuing to file hundreds of pages of argument and alleged evidence in support of the unnecessary anti-SLAPP motion.
Judge Lopez titled section “A” of her order “Plaintiff’s Voluntary Dismissal is Not Void”. I argued that all the proceedings on the derivative cause were void. The court should have dismissed the derivative cause or the entire pleading on her own or by motion of the Attorney Defendants on those grounds alone.
Judge Lopez wrote: “There is no merit to Plaintiff’s contention that the Attorney Defendants or the Court failed to adequately aid in the prosecution of her claim.” I never demanded “aid in the prosecution” of my claim. I notified the court of something the court knew or should have known, that the pleading on the derivative action and everything based on that pleading was a nullity.
An Arkansas court, if honorable, would disregard the California judgment as it is void ab initio. But this does not protect me, because most of my assets and anticipated assets are in California, (one indication the choice of law for all issues including defamation should have been California law).
Judge Lopez quoted me as writing, “[w]ith diligence, [P]laintiff could have known the law.” She left out the following sentence. “But as discussed earlier, the one exception to knowing the law is when the law makes an order void.” The derivative action did not become less void because I could have known it was void.
*******************
The court awarded the attorney defendants over $70,000 in fees paid to their attorneys to advocate to strike the pleadings against them on the grounds that a malpractice and conversion cause of action were filed as a Strategic Litigation Against Public Participation. Neither cause is subject to the “anti-SLAPP” statute. The pleadings could easily be stricken as void because I was not authorized to practice law. But that would carry no fee shifting provision.
So, Judge Sammartino, Robinson and Lopez (the Three Stooges?) decided to let me practice law for a limited period of time, in order to rack up fees for other attorneys.
Did Judge Sammartino, a clerk, Attorney Keith Cochran and my sister Lynn Kramer commit conspiracy against rights?
I think so.
Here is the pertinent language in the code 18 U.S.C. 241:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same they shall be fined under this title or imprisoned not more than ten years, or both.
This is what I allege happened, as I wrote it within an informal appellate brief filed in the Ninth Circuit Court of Appeals:
(“Sherman” is Mary Sherman, the member-manager of Silver Strand Plaza, LLC. “Kramer” is Lynn Kramer. Both are my sisters.)
Sherman allowed Kramer to transfer her shares in SSP to a living trust that benefitted and had her husband as co-trustee. This was disallowed by the SSP OA and I received no notification of a vote as required by the OA.
Sherman stalled transmitting the updated member list to me until after I filed my complaint in which I named Kramer as an individual, but not her trust. I did not know Kramer transferred her shares to a trust until I received the updated member list. I had to make an immediate amendment to the complaint.
I had to receive leave to file electronically, so the Clerk of the Court filed my documents for me until Docket entry 9 on July 16, 2019. I did not notice Linda R. Kramer missing from the docket. After I filed the FAC to add the trustees of the Lynn and Erik’s Trust (which I think might be a misnomer for the Erik and Lynn’s Trust), the Clerk added the new defendants, but Linda R. Kramer as an individual was either removed or had never been included. Kramer seized upon the opportunity to try to extract herself from the litigation as an individual by excluding herself as an individual from her response to the complaint. I informed the deputy clerk of the error and asked him specifically if he could grant a default. He said yes. After I filed a less than stellar motion for default, he informed me of a case that had a successful motion for default filed to use as a template.
While I was correcting my motion, the deputy clerk did a favor for Kramer by adding her to the docket entry 19, her trustee’s response, without notating the correction. (The District Court Clerk in the Eastern District of Arkansas always notes every change made to the docket entries.) After the clerk learned that I had taken a copy of the original docket entries, the clerk changed the altered entry back, again without notation of the change. This appeared to me that I would receive unequal treatment on this case. It reminded me of activity on my custody case. It showed an intent to falsify the record for my litigation adversaries, which is malicious.
My allegation against the district court clerk is plausible, supported by evidence and it is true.
Kramer knew about my horrible experience in family court. She told me I “took on the mafia and won.” She knew that I checked into a hospital with anxiety and depression caused in major part by my experience in court. It was especially cruel for her to abuse the process by enlisting the Clerk to alter the docket, like was done to me in my family law case. In that paper file case, the alterations started small and culminated in the entire 14 volumes going missing for years at a time.
I immediately reported the falsification of the record to the Court through filed documents. The Court gave me no relief, and in fact threatened me for making the report, as I will discuss further in another section.
I filed a 42 USC 1983 case in Arkansas district court concerning the clerk’s misconduct. It was dismissed before reaching the merits on issues concerning immunities. I disagreed with the MTD but did not respond. I was low on energy.
Throughout these proceedings and the 42 USC 1983 suit the Clerk did not provide the electronic history of changes to the docket. The system software was changed subsequently, and I am afraid that evidence has now been destroyed.
The harm, because the clerk changed the alteration back, was the innate harm implicit in the violation of my Constitutional Rights. I made the reasonable inference that the court would not provide me a fair adjudication of my grievances. And I was right.
In response to the alteration of the docket and the improper collusion between attorney Keith Cochran and the deputy clerk to deny me a clerk’s default against Linda R. Kramer as an individual, I asked for sanctions under Rule 11 and for the court to order the clerk to enter default.
[After Judge Sammartino denied my relief and threatened and intimidated me from bringing any corrupt conduct to the court’s attention] I asked Judge Sammartino to recuse, Doc. 153.
[Lynn] Kramer as an individual was in default by excluding herself from the MTD filed timely on behalf of the co-trustees of the Lynn and Erik’s Trust.
[The Ninth Circuit Court of Appeals asked:]
What issues are you asking the court to review in this case? What do you think the district court did wrong?
Whether omitting one of two capacities in which Linda Kramer was named from the list of represented defendants joined on the cover of an MTD means that separate defendant was in default. If so, whether the clerk must grant default, which can only be set aside after a successful motion to set it aside that explains that the party was omitted by error and why she should be allowed to late file.
The clerk erred and the court upheld the error by allowing the clerk to look to a footnote on page 6 of the MTD, Doc. 19-1, and make an improper inference that the attorney who wrote the MTD represented Ms. Kramer in all her capacities.
The court erred by writing an intimidating footnote in her Order of March 23, 2020, Doc. 111. “The Court cautions Plaintiff against impugning the Clerk or other staff of this Court or District based on gratuitous speculation regarding relationships of favoritism toward litigants or their counsel. See, e.g., ECF No. 85 at 2, 4. Such accusations should not be made lightly and, absent evidence supporting such claims, the Court will not countenance them.”
My testimony given through declaration and documents certified under Rule 11 was evidence, exhibits attached were evidence, and the revision history of the docket software was available to the court.
The court erred by failing to follow simple procedure, FRCP Rule 55(a) and (c).
The court erred by failing to sanction attorney Keith Cochran and his firm for convincing the clerk to include Linda Kramer as an individual on the electronic record days after her deadline and violating Rule 11 in defending his misconduct.
[The Ninth Circuit Court of Appeals asked:]
What law supports these issues on appeal? (You may refer to cases and statutes, but you are not required to do so.)
In determining whether to grant default, a clerk may look no further than the cover of a document. If a separate defendant is left off the list of represented defendants, in other words not joined, whether purposefully or inadvertently, they must file a motion to have default set aside pursuant to F.R.C.P. Rule 55.
Obviously, Linda R. Kramer as an individual was not joined to the co-trustees’ timely response. That separate defendant was not on the docket until two days after the MTD was filed as Doc. 19.
***********************
I did not cite 18 U.S.C. 241, Conspiracy Against Rights in the brief. I wonder if the Justices of the Ninth Circuit will notice the criminal conduct on their own, and if they will uphold our Constitution as they are sworn to do.
You may download the entire brief which is posted below.
Email: bohemian_books@yahoo.com
A Higher Law 