Summary Judgment

You be the Judge

Were the actions of the trustees’ attorneys fast and loose? Did their documented actions violate laws and professional conduct (see drop down attorney Conduct Code?)

According to the established record – the Courts early rulings were favorable to my case – establishing, according to the Court that even if I had breached a fiduciary duty the remedy was one of damages – not avoidance of dation. The Trustee could not look back past the prior one year in order to recover. The Court also ruled the trust was not” insolvent.

You be the Judge did the attorneys ignore these Court rulings, prolonging the trust case for ten  years while continuing to collect in excess of $330,000 in commissions. After the third unsuccessful attempt, They were finally granted a court order of protection from litigation, ordering that a petition must be filed with the trial Court to approve the filing of any litigation suit against them.

*Note there has been no activity in the case since February of 2010, yet the case as of April 2011 is still not closed. The trustee has not sold the assets as a chapter 7 requires. Opinions were that these plaintiffs were very much concerned about closing the case without having been granted protection from litigation.

In spite of the Court’s earlier rulings – then many months later after the Courts ruling which should have been a final decision, plaintiffs sought a reconsideration (without any new argument as required by FRCP 60).

In their judgment draft they avoided the dation, also seeking a double recovery of $60,000 which the 5th Circuit Court of Appeal reversed.

Cited: http://dunbarlawpc.com – The theory behind this provision of the Bankruptcy Code is that if some creditors got paid and others did not, it would be fair to recover all payments so they can be added to the pool of assets available for all creditors. Payments to creditors made by the debtor during the 90-day or one-year look back period will be recoverable “only” if the debtor was insolvent at the time it made the payment.

Cited: http://www.law.cornell.edu/rules/frcp/Rule56.htm  (in part)

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.  The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.  The court should state on the record the reasons for granting or denying the motion.

Cited: http://library.findlaw.com/2000/Jun/1/129488.html  –(in part)

The doctrine of “judicial estoppel” is another limitation on the reconsideration of summary judgment. That doctrine provides that a party is barred from making a particular factual assertion if that party successfully made an inconsistent factual assertion in a prior proceeding.22 The doctrine is intended to protect the integrity of the judicial system by preventing litigants from “playing fast and loose” with the court to “suit the exigencies of self interest.”23

Bell’s Motion for Summary Judgment and favorable rulings

With respect to avoidance of the dation en paiment executed to Bell in payment of services rendered – Bell briefed on the issue

“B. Proof of the allegation of breach of fiduciary duty on the part of Ms. Bell will not support an avoidance of the Act of Exchange or receipt of farm and royalty income subsequent to such transfer.”

Court Ruling: The Court agrees with Ms.Bell and Holdings in this regard. The Trustee asserts that Count I alleges numerous facts which will support a breach of fiduciary claim against Ms. Bell. Even if that is so, the remedy provided for such action is on in damages rather than avoidance of the transaction.

Court Ruling: (1) Paragraph 16 complains of certain “retainers” ($60,000) which Ms. Bell began paying to herself from the Trust beginning or about June 14, 1999. The Motion will be sustained with respect to any such transfers occurring more than one year prior to the Petition date insofar as Count II is concerned.

Please note, aside from the trustees attorney having provided fraud misrepresentation about Mr. Rolfes quantifying unrelated expenses, the entire Lou Rolfes report of $162,000 are trust expenses paid prior to one year of the petition filing.

Courts ruling 12/16/2003: “The Motion for Summary Judgment is granted in part. All causes of action relating to insolvency are dismissed with prejudice.