ATM LEASEBACK SCHEMES-- any insight?

[The Observer]

I have maintained that there will be>>NO TRIALS, law suits not withstanding

And now you are moving the goalposts. Previously you maintained there would be no trials - period. What you are not understanding is that the filing of a lawsuit is the initiating of a trial. There is no other way that the receiver will get into court unless he initiates a trial by filing a lawsuit. You have have been holding out in the past that all the receiver has to do is ask for summary judgment from the court and he will get it. You have maintained that the defendants will not get a right to defend themselves.

What form it acutally takes and what it results in may not be a full-blown trial as you may be thinking of, but that isn't what you have been saying. It just goes to show that you don't really know what you are talking about.

15-CV-05737...Do your really think this will go to trial? Same with the other three mentioned.

Well, let's look at the possibilities:

(1) August 10 shows that Service of the Summons and Complaint were executed upon Stephen D. Marks, Esq., Attorney for Barbara Adler. Ms. Adler has obviously lawyered up. And she must have done this at some point in time prior to the summons and complaint being served so that the receiver's attorney knew where to serve the summons. Apparently the defendant is entertaining the idea that she wants to defend herself in court.

(2) September 03 shows that the judge approved an extension for the defendant to respond to the complaint filed against her. Looks like her attorney is making some attempt to defend her.

(3) Nowhere in that docket does it show that the receiver has moved for a summary judgment to be issued. If this is the surefire, hands-down winning strategy for the receiver as you have described it, then why hasn't he already done it?

Does any of this mean that this particular case is going to head into a full trial with witnesses, testimony, cross-examination? No. Anything can still happen in this case and still will. The defendant may decide to not fight the case in court and not contest a summary judgment claim. She may decide to prolong the proceedings until such time that she feels she can get better terms in a settlement with the receiver. She may fight it out in a full blown trial. The receiver may decide to drop the trial if things are not going his way in the courtroom due to evidence or testimony. The point is Grim, neither you or I know what is going to happen in this case. The only thing we (or at least I know and you are stubbornly refuse to admit) is that the receiver had to initiate a lawsuit, not a summary judgment to get the ball rolling.

ou failed to admit you were wrong here didn't you? I pointed out there were 155 net winners investigated, but you want to bash me and ignore your ignorance. How convenient.

What was I wrong about? There were 155 net winners investigated but only mention of 33 actually actually being collected against. The 155 were mentioned as being billed, but I did not include them in my ratio calculation since there were no funds collected from them. When we get solid reports that funds were collected from these 155 (which is a figure you calculated based on your interpretation of the receiver's report) then I can re-do my ratio again.

And when and if we get to add the 155 to the ratio, we are still going to fall well short of the 1:1 ratio that you claimed would be the final result.

And you have failed to answer this question:

Correct me If I'm wrong, but the receiver has stated that compensation would NOT be based on nor derived from the proceeds of the claw back.

Well, if it does not come from the clawbacks, where is the receiver going to get the money?

But before you answer that, I would like to see the source of the statement above that you are relying on.

If anything is convenient, it is you ducking this question.

[Tednewsom]

Y'know, guys... if a "trial" means "trial," as in Observer's definition-- "a full trial with witnesses, testimony, cross-examination" -- Grim's probably right. In legal fees alone, a defendant is probably looking at a minimum of $15,000 to God knows how much going the full Monte. Unless they're an early partner to the scam with a boatload of contracts all in the right (or wrong) time frame, how much ATM profit could they have made? You have to weigh that against a potential output of 15, 30, 50 grand or more to the attorney. A sensible counselor will look at the evidence and decide the best course to get his client the best deal. In this case, as far as any of us are aware, there are no mitigating facts in favor of investors. Since it appear to be established case law that the "investors" cannot claim innocence simply because their names are not Gillis or Wishner, there are damned few bullets in the defense bandelero.

OK, Grim stating that there absolutely, positively, beyond a shadow of metaphysical doubt will be no trial(s) ever ever ever... yup, that may be overstating things. But I think it's damned unlikely. Imagine trying to defend a guy or woman from paying back money that was stolen from retirees and hopeful middle-class dupes? This argument, put into the laps of a jury made up of retirees, low- to-mid-income citizens and people who will never see this kind of dough in their entire lives? Ohhhh... noooo... not something I'd want to risk if I was an attorney.

[Tednewsom]

More fascinating to me is the puzzle of where all the NASI profits all went. We do know for a fact the jugglers invested big money in the Fuel Doctor scam* and the Oasis thing. But both of these happened late in the life of the ATM scheme.

Yes, yes, yes, they paid out $300 bucks a month per machine to their investors, a thuddingly underwhelming $3600 a year. Their Ponzi arc, though, would peak years before the demise. Clearly the dough was rolling into NASI within the first five years. If I'm right and Gillis was telling something near the truth when he said NASI bought a share for every share they sold to a customer, they were raking simoleons in from the first sale.

That leaves nearly a decade of skimming profits on the deal before it collapsed. Yet the company was allegedly flat busted, and neither culprit appeared to be living the Life of Riley, and like their company, appeared to have no assets.

I'd check the bastards' passports for frequent vacations to Antigua and Panama, with a lot of heavy briefcases. Eh, maybe Lichtenstein while we're at it.
_______________________________________________________________________________

*Fuel Doctor really was a good scam. A useless device sold widely and excitedly, with the trappings of technology and happy-happy endorsements, would make a fortune before it finally vanished off the radar. And unlike the phantom ATMs, you actually get a real, tangible gizmo to plug into your lighter hole.

[Hyrion]

And now you are moving the goalposts.

Not sure I'd characterize it quite that way yet but "no trials lawsuits not withstanding" is a strange phrase. So I'm not altogether sure what Grimreaper means by that.

If he means "a lawsuit has been filed but there's no trial having occurred yet" then I agree with him. As you say, initiating the lawsuit is the first step and having a trial is one of the possibilities that can occur. Grimreaper has done the equivalent of walking into a casino and plopping everything down in a single bet on 00 on the roulette table then absolutely insisted that is what will occur - and I suspect getting 00 on the roulette table has better odds then none of the potential 10? 25? 50? 100? lessee.... possibly 155 - 33 = 122 lawsuits that will be raised having not a single one of them fighting to the point of getting to a trial.

Personally, I've never been that big a risk taker myself - I prefer working with the odds.

Well, let's look at the possibilities:

[snip]

(3) Nowhere in that docket does it show that the receiver has moved for a summary judgment to be issued.

[snip]

The receiver may decide to drop the trial if things are not going his way in the courtroom

Or in the alternative, he may drop the ball:

Plaintiff is hereby ordered to show cause in writing by not later than September 9, 2015 why this action should not be dismissed for lack of prosecution.

That one was close.... the receiver almost lost to Adler without her even trying. Just that one small step for the receiver and Grimreaper would have arguably lost because:

• A: The winner didn't fold

• B: The receiver would not have succeeded with a summary judgement

I say "arguably lost" because utlimately: by insisting on absolutely no trial, that there is no defense and everything resolved on summary judgement Grimreaper has conceivably put his bet on the receiver winning each and every time.

Granted:

• C: There would have been no trial for the dismissal

So technically for the very specific point of "there will be absolutely no trial" he wouldn't have .... fully - that's the word - wouldn't have fully lost yet.

[The Observer]

Not sure I'd characterize it quite that way yet but "no trials lawsuits not withstanding" is a strange phrase. So I'm not altogether sure what Grimreaper means by that.

And that is the problem with how Grim puts things across here. I have realized that long ago grimmie might be trying to say that he expects that there will be no complete trials due to the low bar set by case and statutory law for recovery from net winner. And I would have been fine with that.

Except he won't say that, he keeps trying to pretend that there will be no trials, there is no defense, and it will all be summary judgments against the 1200 or so net winners. And as you have pointed out, he keeps doubling down on these positions over and over again, even while admitting that he has nothing to show that this will be the outcome. The worst part about his claims is that it sends the impression to any person, who might be contacted by the receiver as a potential net winner, that they have no way to defend themselves from litigation that the receiver initiates against them. And that is wrong. Every person pursued by the receiver is entitled to due process and the right determine if and how they will defend themselves in court.

Since it appear [sic] to be established case law that the "investors" cannot claim innocence simply because their names are not Gillis or Wishner, there are damned few bullets in the defense bandelero.

You hedged with the word "appear" and we know why you did it. It is because you are honest person and realize that it cannot be absolute that there is no defense to being a net winner. There are, even if they are few in number. I posted one possible one a couple of months ago here. And you are correct that the best attorneys for a net winner will be considering the hazards of litigation for their clients when recommending what to do. Most people understand that a great deal of litigation never results in a jury or judge's decision, that along the way parties realize that it is cheaper to settle rather than fight the merits of the case, especially when the law is clear as to where liability is established and the evidence is leaning in favor to one party.

As one attorney taught in a business law class I took long ago, ideally there should never be a trial, given the two concepts I just mentioned. But he said that trials still occur, and usually due to human emotions, motivation, background and whatever else may have happened to rain down that day. There could be all sorts of reasons that a defendant will fight a losing cause that would not make sense to you or me. But if they choose to do so, they should be able to do so.

I'd check the bastards' passports for frequent vacations to Antigua and Panama, with a lot of heavy briefcases. Eh, maybe Lichtenstein while we're at it.

Yes, and I would hope that the receiver's office did look at obvious rat holes. But I haven't seen anything in the receiver's reports that indicate that they have found any instance of money moving offshore. Until then, my best assumption is that, like most Ponzi schemes, a lot of money got paid back to the investors, Joel and Ed blew a lot of it on themselves in terms of consumable items and services (vacations, liquor, gambling, yacht or country club memberships, spa treatments for the wives, cosmetic surgery, gifts to family and friends), stupidly investing in other scams like Fuel Doctor, and buying trailers so they could compete in a rental industry already dominated by others.

[Tednewsom]

I would hope that the receiver's office did look at obvious rat holes. But I haven't seen anything in the receiver's reports that indicate that they have found any instance of money moving offshore.

I haven't seen any indications that they even looked. One would hope that was S.O.P, yes.

That's an instance where Wisher's improvisational bookkeeping is a great mask for scooting money around. If no one can understand his wacky debits and credits in his handwritten ledger-- then no one can figure out where the money went. Damned clever, those dunderheads.

[Hyrion]

Except he won't say that, he keeps trying to pretend that there will be no trials, there is no defense, and it will all be summary judgments against the 1200 or so net winners.

[snip]

The worst part about his claims is that it sends the impression to any person, who might be contacted by the receiver as a potential net winner, that they have no way to defend themselves from litigation that the receiver initiates against them. And that is wrong.

That's my core problem with what he's presenting as well. Whether or not he realizes it... whether or not he's doing it deliberately... from the perspective of those who have heard from the receiver who might come here looking for options, he's basically saying:

• You have no hope - so give in and just pay up - there is no alternative and if you fight it'll be worse because it'll be resolved on summary judgement anyway and you'll likely have to pay costs on top of it!

And whether or not someone is guilty - or in the case of a civil situation liable: to present they have no hope...

.... I can't even begin to explain how very wrong that is.

I know enslavement is evil. Enslavement is the single worst act that any human can commit against another. As a result, if evil can be applied as a term to describe the harm one person can cause another - then by definition, since enslavement is the worst of such acts, enslavement must be evil.

To present a situation to another human being as having no hope.... I know that's very wrong.... does it cross the threshhold of an evil act?

I dunno. Perhaps that's one of those that fall into the grey area of "it depends". If Grimreaper (apt name given he's presenting a situation of no hope) said to someone that they have no hope of having that white mocha they wanted - unless the person was suffering from depression, I wouldn't care. But to present such a situation to someone in a serious situation.... not right.

[notorial dissent]

What I find and have found throughout this is that there is no real hard information available about the actual number of investors at any given point or over all, and so no way to even get a feel for what was happening or going on. We hear 1200 net winners and then 155 were investigated then 33, then we are down to 3 suits being filed. I would really like to know how many investors there were over the period in question, and how many contracts they had before I even start trying to make sense of any of this as far as the investors are concerned. Just too many open questions about money movement to make this easy to figure.

The fact that the Receiver filed suit, means at least to me, that he is serious about these three individuals, so I would assume that they were either very big investors or high on the list, or at the very least he has sufficient documentation to justify the expense of the suit. And let me emphasize EXPENSE. Just the act of filing papers starts a toll running that will rapidly mount up and be very costly to him if it doesn’t produce tangible results in the sense of money coming back, so they must think they have sufficient documentation and proof to back up their claim. The problem, is that the defendants in this may have sufficient proof to thwart that claim in court, or may just figure that fighting it is better than not, in things like logic and common sense are seldom co-conspirators.

As to where the money went, OY!!!, my feeling, and based on past experience, is that if the “boys” were rat holing money in Fuel Doctor, Oasis and their other enterprises most recently, they have probably been doing something similar all along. People are creatures of habit, and people with limited imagination, as previously noted, tend to do the same thing over and over and over again, usually with the same result. My sense is that the money is gone, I think Fuel Doctor got away with a good bit of it never to return, and that Oasis and subsidiaries swallowed up a good deal more of it. Fuel Doctor was never anything but a scam, even when I first encountered it more years ago than I want to admit, and I have the feeling that Oasis isn’t one bit different, just the method of losing money is different and considerably more complicated. Quite frankly, anyone who would loan or put money in to Fuel Doctor is a grade A fool and prime investment sucker, and if they got suckered on that, what else did they get suckered on. Their records are so bad it may be impossible to tell or find out, but I have a really bad feeling on that end of it. Oasis strikes me as a money black hole, and back from which not much will be coming.

[grimreaper]

Tednewsome:

if a "trial" means "trial," as in Observer's definition-- "a full trial with witnesses, testimony, cross-examination"

Yes..exactly what I mean. I indicated that HEARINGS could even take place as well...for clarification or summary rulings by a judge. I'm convinced there will be no trials using that characterization. Having said this>>>

I'M NOT SAYING VICTIMS (INCLUDING NET WINNERS) SHOULD NOT SEEK LEGAL COUNCIL!

Some here seem to interpret my *NO TRIALS* stance as implying legal council is useless and that's
NOT what I'm implying!

Tednesome:

OK, Grim stating that there absolutely, positively, beyond a shadow of metaphysical doubt will be no trial(s) ever ever ever... yup, that may be overstating things. But I think it's damned unlikely. Imagine trying to defend a guy or woman from paying back money that was stolen from retirees and hopeful middle-class dupes? This argument, put into the laps of a jury made up of retirees, low- to-mid-income citizens and people who will never see this kind of dough in their entire lives? Ohhhh... noooo... not something I'd want to risk if I was an attorney

Good point. When I say *no trials* I'm not saying they aren't within the realm of being *a possibility*..that's absurd, but I'm convinced that there simply won't be any for the reasons Ted states here AND the fact there's no legal defense to get you *off the hook*. If there are any errors/false claims in the receiver's calculations/determination of profit or loss, then that can be adjudicated in a hearing where the judge will rule on the merits of the investors claim. But this really amounts to MODIFYING an existing judgment or lawsuit. No *trials* as characterized above...yes, this my OPINION.

[worried]

grimreaper:
Why does this fine distinction matter to you so much? Am I, or others, missing something I/we should be concerned about?

[Tednewsom]

What I find and have found throughout this is that there is no real hard information available about the actual number of investors at any given point or over all, and so no way to even get a feel for what was happening or going on. We hear 1200 net winners and then 155 were investigated then 33, then we are down to 3 suits being filed. I would really like to know how many investors there were over the period in question, and how many contracts they had before I even start trying to make sense of any of this as far as the investors are concerned. Just too many open questions about money movement to make this easy to figure.

Too true. Hard to make correct deductions in the absence of evidence.

Fuel Doctor was never anything but a scam... Quite frankly, anyone who would loan or put money in to Fuel Doctor is a grade A fool and prime investment sucker.

Ohhhhh.... well, now, I gotta rise up and defend my old pals Gishner and Willis. OK, they may not be as honest as the day is long, but they ran a successful multi-million dollar scam for two decades. They were crooks, but I doubt they were simpletons. They'd recognize a good grift when they saw it, and Fuel Doctor was a great grift. I don't believe for one moment they thought the product was legitimate. I do believe, however, that they saw great possibilities in being part of a wide-scale con selling a useless product which, properly marketed with print ads, TV spots and infomercials (all of which would cost money, hence the outfit needing investors), could sell millions of units at a reasonable $50 a pop until that particular bubble burst. Naturally, you bail a couple months before that.

There is a sucker born every minute. Just because your product is useless doesn't mean a load of people won't buy it.

http://www.toptenz.net/top-10-hilarious ... oducts.php

[Hyrion]

Some here seem to interpret my *NO TRIALS* stance as implying legal council is useless

Not at all - that your position could easily have been understood as implying "attempting to fight is useless" <- absolutely.

When I say *no trials* I'm not saying they aren't within the realm of being *a possibility*..that's absurd

That's all most of us are saying - that trials, and even the "net winner" potentially winning - are indeed within the realm of possibility.

Was it really that difficult for you to accept that position that it took you 3 months to state it?

3 Months in which some who are involved in the situation and are under serious financial stress, having read your position - which you now clearly state is nothing but your opinion even while you still have not admitted you are neither trained in the Law nor practice it - can reasonably understand your position to be one of "you have no hope, so cave to the receiver and pay up, that's your cheapest option".

the fact there's no legal defense to get you *off the hook*

Ironically you then immediately state a contradiction:

If there are any errors/false claims in the receiver's calculations/determination of profit or loss

That sure sounds like a defense to me. Additionally, the questions surrounding such calculations are one of fact - not Law. Therefore, as I understand, any attempt by the Receiver to get summary judgement when a reasonable question of fact is outstanding will fail.

Summary Judgement - again, as I understand - is only available when there are no questions of fact and only questions of the Law are to be decided upon.

So... if there is a dispute regarding the receivers calculations and neither the receiver nor the "net winner" are willing to bend - a trial will likely occur.

As you suggest, the Judge could hold a hearing: for example, to determine whether or not the evidence presented by the receiver and "net winner" will be submitted for consideration - but, to make a determination of the fact which could deprive an individual of property - a trial, whether by Judge alone, or by Judge and Jury would - again, in my understanding - be required.

[The Observer]

grimreaper: Why does this fine distinction matter to you so much? Am I, or others, missing something I/we should be concerned about?

Plain old hubris. He is the Internet version of the guy in the local bar who has an opinion about everything and insists that he is right.

Was it really that difficult for you to accept that position that it took you 3 months to state it?

See above. Want more proof?:

Ironically you then immediately state a contradiction:

See what I mean?

And grim, again for the third time, this is the question you are still evading and ducking:

grimreaper wrote:
Correct me If I'm wrong, but the receiver has stated that compensation would NOT be based on nor derived from the proceeds of the claw back.

Well, if it does not come from the clawbacks, where is the receiver going to get the money?

But before you answer that, I would like to see the source of the statement above that you are relying on.

What I find and have found throughout this is that there is no real hard information available about the actual number of investors at any given point or over all, and so no way to even get a feel for what was happening or going on. We hear 1200 net winners and then 155 were investigated then 33, then we are down to 3 suits being filed.

I think the late Yogi Berra summed it up best - "It ain't over until its over." We will just have to wait for the dust to settle to make any sense of what really happened.

The fact that the Receiver filed suit, means at least to me, that he is serious about these three individuals, so I would assume that they were either very big investors or high on the list, or at the very least he has sufficient documentation to justify the expense of the suit.

As well, it signifies that the defendants decided to not play ball in regards to the 30% discount offer for settling. If they were big net winners, they may have the deep pockets to fight this thing tooth and nail for whatever reasons.

The problem, is that the defendants in this may have sufficient proof to thwart that claim in court, or may just figure that fighting it is better than not, in things like logic and common sense are seldom co-conspirators.

There is that as well. Once the retainer runs out, they may think again.

[Judge Roy Bean]

grimreaper:
Why does this fine distinction matter to you so much? Am I, or others, missing something I/we should be concerned about?

Because for months, grimmy has been adamant that investors would be essentially undefendable and the outcome had already been decided. Having been proven wrong he's attempting to walk-back from that position to save face. As to a motive for this kind of behavior, we have to leave that to our own imaginations.

[Judge Roy Bean]

FYI, grimmy - it's not legal "council" in this context; it's legal "counsel."

[grimreaper]

FYI, grimmy - it's not legal "council" in this context; it's legal "counsel."

I stand corrected

[grimreaper]

Regarding how receiver would be paid, I found this:



Importantly, the Receiver has considered whether the Clawback Claims
should be pursued on a contingent fee basis. After careful consideration, the
Receiver determined that the net recovery will be greater if counsel is paid on an
hourly basis. The Receiver does not
anticipate controversial issues of law or fact
with the Clawback Claims, other than perhaps the accounting of
transfers performed
by the Receiver's staff. Because
any debate over the amount or
timing of transfers would primarily involve work by the Receiver and his staff, rather than counsel, the
anticipated time expended by counsel on any given Clawback Claim would not
necessarily support the amount of fees paid under a typical contingent fee
arrangement. Moreover, as noted
above, once judgments are obtained, the Receiver
will use his business judgment in
pursuing collection and managing the fees and
costs associated therewith, including potentially engaging a third-party agent to
pursue collection for a contingent fee based on the amount collected. Accordingly,
the Receiver believes the net recovery for the receivership estate will be greater if
his counsel is compensated on an hourly basis, subject to Court
approval, rather than
on a contingent fee basis

It's unclear WHERE funds are coming from right now, but this doesn't rule out claw back proceeds as a source either.
It simply states compensation will not be based on the % recovered.

[grimreaper]

grimreaper:
Why does this fine distinction matter to you so much? Am I, or others, missing something I/we should be concerned about?

Because for months, grimmy has been adamant that investors would be essentially undefendable and the outcome had already been decided. Having been proven wrong he's attempting to walk-back from that position to save face. As to a motive for this kind of behavior, we have to leave that to our own imaginations.

No that's YOUR interpretation..which is self serving. Outcomes have not been decided and I never said that. What I said was that there is NO DEFENSE if you're a net winner....none. Now, if a net winner has a LEGITIMATE argument (ie, has evidence) and can demonstrate the FACTS against them are incorrect, then they may have amount of the judgment reduced accordingly at a hearing.
This is very different from saying that there's a defense that can shield them from a judgement to relinquish all profits.
SETTING THE FACTS STRAIGHT IS NOT A *DEFENSE*. A Defense implies arguments as to the application of the law and why this law does not apply in a particular case.

[Judge Roy Bean]

SETTING THE FACTS STRAIGHT IS NOT A *DEFENSE*. A Defense implies arguments as to the application of the law and why this law does not apply in a particular case.

Nonsense.

Utter nonsense.

Please, don't ever try to represent yourself.

[Tednewsom]

Oh, girls, girls, stop. You're both pretty.