ATM LEASEBACK SCHEMES-- any insight?

[grimreaper]

Nonsense. There is always a defense and an army of attorneys isn't necessary. I suppose the phrase "motion practice" is not something you're familiar with.

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.”

[The Observer]

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

And again you demonstrate that you have no understanding about what you are saying. No one has said that there is going to be a defense for Joel and Ed for their fraudulent and scamming ways. Nor has anyone said that clawbacks will not ever be awarded in this case.

What has been said and what you have been unable to disprove is that any judgments awarded are not going to result in significant recoveries for the victims. You somehow have gotten the ideal that because there is no defense to the fraud that was perpetrated, that somehow means that individuals cannot fight the judgments that are awarded. On that simple basis alone, you are completely and sadly, not to mention stubbornly, wrong.

Judgments can be contested and are. The reason that most are not contested is because the defendant is already judgment-proof (hence the phrase "sue a beggar, get a louse"). In those case where the defendant goes to court to fight the judgment, the issue is not going to be over whether the judgment is correct or not - that has already been decided. The issue is instead going to focus on the ability of the plaintiff to execute that judgment on the assets or income of the defendant. You do not simply show up at the defendant's door and take his car away. There has to be permission from the judge to take an asset, and you will have to show the judge that the asset belongs solely to the defendant, that there is enough equity in the asset for recovery, that any senior lien holders are protected and that no other parties will be harmed if the asset is taken. You will have to show that the asset is not exempted under law from judgment. And that is just for starters - before the defendant gets a chance to tell his side of the story to a judge.

The fact that you would irrelevantly use a word like "repo" in regards to pursuing a judgment only shows how truly ignorant you are in this area of the law. The fact that you relied on the case that you cited as somehow being proof that this meant that the defendants actually paid up again proved that you cannot differentiate between getting a judgment and recovering from a judgment. Far from proving anything that you claim to know about the NASI situation and its outcome, the only thing you are proving is that you don't know what the hell you are talking about.

[Judge Roy Bean]

Nonsense. There is always a defense and an army of attorneys isn't necessary. I suppose the phrase "motion practice" is not something you're familiar with.

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.”

More nonsense. You are seriously confused and at the risk of being redundant, you are hopelessly confused.

I didn't mention a motion to dismiss. That's akin to a 60-yard field goal attempt on second down.

Nor can you attach the above noted case where the "debtor" was allegedly "managing" the scheme. That would be an apples-to-bicycle comparison. The people the Receiver is going after would have to be proven to be "managing" the scheme for that to apply. Good luck with that.

Between a filing and a settlement or trial there can be any number of motions and challenges to allegations. A simple procedural or evidentiary error can exclude something that results in a case being impossible to prove in front of a jury. That's part of how the game is played and part of why it's done if a party can afford it.

One can only hope you're not relying on yourself as your legal counsel in this situation. If you have anything at stake a few thousand for competent TRIAL counsel might be well worth it. If nothing more than to disabuse you of unrealistic expectations.

[notorial dissent]

Three things, at least, are going to have to happen before the Receiver sees dime one from the so called "winners". First they are going to have to compile a list with real figures and backing and go before the judge to get permission to actually pursue the clawbacks, this is problematical depending on what the Receiver provides and the mood of the judge, THEN, they have to properly serve and get in to court the people they are trying to sue and there will be, guaranteed, a lot of legal wrangling before much else happens, then they get to go to trial and convince a judge/jury that the money is in fact there and owed, this may or may not happen. Once that is all over and done with, then the Receiver will have to go back to court to actually get the judgments enforced, again may or may not happen. EVERY one of these steps is going to cost money, lots and lots of money, that ultimately comes out of the NASI carcass, and although the current cash in hand is better than i thought it was, that could all disappear quickly in legal fees and expense with little possibility of recovery. It is anything but a slam dunk at any step along the chain, and most particularly at the end.

The Receiver should if he is diligent and careful, and the court most likely will, do a cost benefit analysis on ANY potential litigation, and what looks like a big recovery number now may quickly dissipate as they review the figures. In fact, unless the procedures have changed drastically, the court will require a VERY detailed CBA and litigation plan from the Receiver before any further authorization is granted.

[grimreaper]

Motion of Authority to Pursue Claback 3/17/2015

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

Procedural Requirements:
If you oppose this Motion, you are required to
file your written opposition with the Office of the Clerk, United States District
Court, 312 North Spring Street
, Los Angeles, California 90012 and serve the same
on the undersigned not later than
twenty-one (21) calendar days
prior to the hearing.
IF YOU FAIL TO FILE
AND SERVE A WRITTEN OPPOSITION by the
above date, the Court may grant
the requested relief without further notice. This
motion is made following the conference of counsel pursuant to
L.R. 7-3, which took place on March 13, 2015.

The law is clear the Receiver has standing to
pursue claims to recover these transfers under the California Uniform Fraudulent
Transfer Act ("CUFTA") and that such transfers from Ponzi schemes are presumed
to be fraudulent transfers subject to recovery

If 60 days have passed from mailing of the demand letter and a
Prospective
Defendant has not accepted the
settlement offer, the Receiver may file a complaint
against each Prospective Defendant. In order to minimize the administrative
expenses associated with these
cases, it is important they all
be managed and
adjudicated by one District Court Judge and one Magistrate Judge who are familiar
with the underlying facts. Many
of the cases will likely be filed at the same time
and, for efficiency purposes, should be kept on the same track.
Having the cases
before one District Court Judge
and one Magistrate Judge will also avoid
inconsistent rulings, which would complicate the litigation and
potentially lead to
disparate treatment of similarly situated Prospective Defendants. Accordingly, the
Receiver proposes and seeks Court approval of having all Clawback cases
transferred to this Court as related actions. If the Court approves this request, the
Receiver will file a notice of related action with each complaint pursuant to Local
Rule 83-1.3.1.

The Receiver will request that all
settlement conferences be held be
fore the Magistrate Judge (assuming the Receiver's
proposal above is approved, settlement conferences will be held
before Magistrate
Judge Frederick Mumm). The Receiver will seek permission from Judge Mumm to
schedule multiple settlement conferences on the same day so as
to minimize
administrative expenses.
To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment.
As discussed below, the law
is very clear
regarding profits paid to investors, referral fees, and other transfers from Ponzi schemes being recoverable by federal equity receivers. The facts of the NASI Ponzi
scheme are clear and
have been admitted by Defendants Gillis and Wishner, both in
this case and the parallel criminal case, in which they have entered guilty pleas.

[grimreaper]

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?

[Hyrion]

presumed to be fraudulent transfers

If I received something with that clause in it that looked like it came from an official government agency of any kind, I think the first thing I'd have done is seriously consider speaking to a criminal defense attorney.

[grimreaper]

presumed to be fraudulent transfers

If I received something with that clause in it that looked like it came from an official government agency of any kind, I think the first thing I'd have done is seriously consider speaking to a criminal defense attorney.

They (Wishner and Gillis) pled GUILTY already..LOL. As far as anyone who has profits, they're in essence saying that there is NO LEGAL DEFENSE for the presumption of fraudulent transfers. Ergo..lawyers won't be able to SUCCESSFULLY argue that *winners* aren't subject to clawbacks. Of course they may be able to stall and possibly negotiate settlements.

[Judge Roy Bean]

presumed to be fraudulent transfers

If I received something with that clause in it that looked like it came from an official government agency of any kind, I think the first thing I'd have done is seriously consider speaking to a criminal defense attorney.

They (Wishner and Gillis) pled GUILTY already..LOL. As far as anyone who has profits, they're in essence saying that there is NO LEGAL DEFENSE for the presumption of fraudulent transfers. Ergo..lawyers won't be able to SUCCESSFULLY argue that *winners* aren't subject to clawbacks. ...

Utter nonsense.

There is no such thing as absolute guilt before trial.

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

I have no idea what your motive is, but anyone reading and giving any consideration to what you're spewing is in serious need of consultation with their own legal counsel.

Just because Wisher and Gillis have pleaded guilty to the charges against them does not automatically mean the ALLEGED (focus on the term, please - the ALLEGED) "winners" are automatically deemed guilty of ANYTHING.

What facet of "presumption" do you not understand? To be presumed a "winner" does not mean being adjudicated as such. Apparently, in your mind, we shouldn't need to bother with adequate representation if the case is so obviously weighted in favor of the plaintiff/prosecutor.

Guess what - it doesn't work that way. Those with the means to have effective counsel will probably fare far better than those who simply throw their hands in the air and sign off on the first offer the Receiver tries to hit them with.

As I have repeatedly recommended here - don't rely on your own advice and what you've gathered from the 'net.

[grimreaper]

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.

[notorial dissent]

You are more than seriously confused, and one might well say deranged as well. You also seem to have a severe reading comprehension problem as well, as you keep demonstrating. Your grasp of how the legal system, and particularly with regard to something like this is not just lacking, it is nonexistent.

All that filing from the Receiver you refer to earlier, and so badly misread, did was seek permission from the court to "maybe" possibly pursue clawbacks. The Receiver will still have to actually receive confirmation from the court before they go any further than sending out the demand letters. The legal boilerplate in them not withstanding, they basically amount to a "pretty please" and nothing more. When whatever deadline, real or imagined, has passed, the Receiver will then have to prepare a list of those they intend to pursue and present that to the court to get official permission to act. That is not a done deal or a guaranteed happening. If the court doesn't feel they have sufficient proof or more importantly chance of success, it will end right then and there.

If, and I really mean IF here, the court gives the go ahead, then those lucky souls will have to be served and gotten in to court, and that is never a sure fire thing. Then there will have to be a real, expensive, probably long drawn out trial, yes they by law have their day in court, whether you like it or not, and unless the Receiver can get a judgment against them it is all over at that point. If the Receiver can get a judgment, then he will have to go back in to court and get the judgment enforced, which then may or may not happen depending on what they are trying to go after. It could just as easily come to a screeching halt right here as well. None of this is a dead bang certainty.

The Receiver can send out all the demand letters he wants to, or can afford postage for, and they will mean exactly squat unless or until he can convince a judge and jury that what he is claiming is true. This is the really hard part, and where a lot of these things fall apart.

[The Observer]

You might as well as try to teach this to a stone wall. Grimmie isn't listening, Grimmie isn't paying attention, and Grimmie ain't learning a thing. He thinks because he has watched every episode of Perry Mason, Matlock,and LA Law, that somehow that means he can't be possibly wrong about the nonsense he is babbling on about here.

I have no idea what your motive is...

His motive is based on his oversized ego. He wants to be the center of attention and seen as the guy "in the know." So he continues to push on, despite coming off as totally out of the loop and ignorant about what the law says. And this indicates that he may have some problems in the way of self-awareness. He has been painted into a corner several times on this thread, finally backs off his nonsense, only to start repeating it again a few days later when he thinks everyone has forgotten his last delusional outing.

[grimreaper]

All that filing from the Receiver you refer to earlier, and so badly misread, did was seek permission from the court to "maybe" possibly pursue clawbacks. The Receiver will still have to actually receive confirmation from the court before they go any further than sending out the demand letter

Yes...I'm *confused*...you're not..??? Sending out *DEMAND Letter* is a foregone conclusion at this point.


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

Plaintiff Securities and Exchange
Commission respectfully states, in
accordance with C.D. Cal. Local Rule 7-
16, that it does not oppose the Receiver’s
Motion for Authority to Pursue Clawback Claims and Approval of Proposed
Procedures (Dkt. No. 64);

[grimreaper]

Damn...there are some people here who just don't *GET IT*
There is NO DEFENSE for distributions deemed fraudulent and >>>BY DEFINITION, ALL distributions of a PONZI are>>>>
Surprise>>>>FRAUDULENT. Investors may RETAIN those distributions only to the extent of their initial investment.
All other distributions are subject to claw back...PERIOD. No trials...no defense. Can those that profited negotiate?
Sure..they can try. Can they lawyer up and get off the hook? NO. Can they escape judgements by stone walling?? Time will tell.

[grimreaper]

If, and I really mean IF here, the court gives the go ahead, then those lucky souls will have to be served and gotten in to court, and that is never a sure fire thing. Then there will have to be a real, expensive, probably long drawn out trial, yes they by law have their day in court, whether you like it or not, and unless the Receiver can get a judgment against them it is all over at that point. If the Receiver can get a judgment, then he will have to go back in to court and get the judgment enforced, which then may or may not happen depending on what they are trying to go after. It could just as easily come to a screeching halt right here as well. None of this is a dead bang certainty.

The Receiver can send out all the demand letters he wants to, or can afford postage for, and they will mean exactly squat unless or until he can convince a judge and jury that what he is claiming is true. This is the really hard part, and where a lot of these things fall apart.

So, what you say of this???

The Receiver will seek permission from Judge Mumm to
schedule multiple settlement conferences on the same day so as
to minimize
administrative expenses.
To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment.
As discussed below, the law
is very clear
regarding profits paid to investors, referral fees, and other transfers from Ponzi schemes being recoverable by federal equity receivers. The facts of the NASI Ponzi
scheme are clear and
have been admitted by Defendants Gillis and Wishner, both in
this case and the parallel criminal case, in which they have entered guilty pleas.

The Receiver can send out all the demand letters he wants to, or can afford postage for, and they will mean exactly squat unless or until he can convince a judge and jury that what he is claiming is true. This is the really hard part, and where a lot of these things fall apart.

NO JURY...

[Hyrion]

presumed to be fraudulent transfers

If I received something with that clause in it that looked like it came from an official government agency of any kind, I think the first thing I'd have done is seriously consider speaking to a criminal defense attorney.

They (Wishner and Gillis) pled GUILTY already..LOL. As far as anyone who has profits, they're in essence saying that there is NO LEGAL DEFENSE for the presumption of fraudulent transfers.

Are you a criminal defense attorney? An attonrey of any kind? Have you studied Law at all?

If not, don't be surprised that I don't take either your word or the word of the receiver with regards what is or is not allowed by Law - or is or is not in my best interest.

There is a basic principle involved in having attorney's for both sides. The attorney for myself is expected to represent my best interests. The attorney working for the other side, in this discussion the attorney for the receiver is expected (whether on a civil or criminal basis) to represent the best interest of the Estate that the receiver is overseeing. The receiver's attorney is not required to look into the tiniest details of what would possibly benefit me. That's my attorney's job.

I've never studied Law... but given I understand that basic principle that appears to have escaped you - perhaps I understand a little more then you do.

[grimreaper]

I've never studied Law... but given I understand that basic principle that appears to have escaped you - perhaps I understand a little more then you do.

This isn't a pissing contest...sorry you don't get it. I wish you the best.

[Hyrion]

This isn't a pissing contest...

You're absolutely right, it's not. And your deliberate choice not to answer the question pertaining to your Legal qualifications speaks quite highly that you haven't any.

As a result, this particular non-Lawyer would suggest anyone involved in the situation choose not listen to any opinion you're providing on the situation and seek their own Attorney's advice.

[Hyrion]

There won't be a TRIAL. Sentencing is the next event.

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

Although the payments were made pursuant to consulting agreements and investment contracts, the receiver’s allegation “that these contracts were in fact illegal instruments used to carry out Mr. Southwick’s fraudulent scheme” rendered the validity of those contracts a question of fact to be decided at trial. (Wing v. Wharton, 2009 WL 1392679 (D. Utah May 15, 2009))

Bolding mine.

I stand by my statement

But apparently the real Lawyers you're quoting do not agree with what you're representing.

Oooopps.

[notorial dissent]

Grimmy, I never said that the Receiver wasn’t going to send out demand letters, in fact, unless I misread the latest spate of filings they/he have/has done exactly that, and gotten zip all in response.

Asking the SEC if they object is a formality, why should they care, it is the judge the Receiver has to convince before he can do anything, and he will have to ask the judge's permission every step of the way.

You are the one who doesn’t get it. They got a plea from Gillis and Wishner NOT anyone else. The Receiver, or you for that matter, can claim that they were part of the Ponzi and profited from it from now until the cows come home, BUT, unless and until they get a judge and jury to say so and get a judgment of same, that is all it is an unsubstantiated claim. You are blathering about what the standards and usual procedures are, HOWEVER, unless and until there is a judgment against EACH of those individual parties, it doesn’t mean squat, and contrary to your deeply held delusion, the Receiver does have to go to court, AND WIN before any of that can even start to happen.

So, what you say of this???

The Receiver will seek permission from Judge Mumm to
schedule multiple settlement conferences on the same day so as
to minimize
administrative expenses.
To the extent Clawback cases do
not settle, the Receiver anticipates they will
be resolved via summary judgment.
As discussed below, the law
is very clear
regarding profits paid to investors, referral fees, and other transfers from Ponzi schemes being recoverable by federal equity receivers. The facts of the NASI Ponzi
scheme are clear and
have been admitted by Defendants Gillis and Wishner, both in
this case and the parallel criminal case, in which they have entered guilty pleas.

A lot of self delusion. That is not how it works at all. There will be no settlement conferences if someone chooses to settle. They will accept or make their offer, in writing, and the offers will be accepted by the Receiver and then submitted to the judge for approval. The ones who do not settle will have to be taken to court, sued civilly, and that will take time and money. The courts do not work the way you fantasized that they do. Each and every person who is determined to be a “winner” in this will have to be sued individually and the presumption will be until proven otherwise that they are not subject to any action by the Receiver. I don’t know where you are getting the summary judgement nonsense, but that is all that it is. What Gillis and Wishner did or didn’t admit to in either their civil or criminal cases is irrelevant to the investors cases when they come before the court. The Receiver will have to prove his claim against the funds to the satisfaction of the court, and then get a judgment before anything else can happen. Then he will have to get the judgment enforced, and that may never happen at all.

As things stand now, it appears that NONE of the 20, I think it is, net winners have responded to the demand letters and less than half, IIRC, of the possible claimants have responded to the Receiver. Not good odds to my way of thinking. I say this simply based on the common sense point of view that if there had been response then it would have been reported to the court to show some movement for their efforts, and there was no such report. Right now it is looking like the only funds recovered have been from the sister of one of the Relief Defendants, and a little from Oasis, hardly encouraging, and barely even a drop in the bucket.

None of these people have been charged criminally, and so far this is just a civil matter, and as such there are certain court rules that HAVE to be followed, and you are quite apparently clueless as to what they are.