NO WITNESS – NO CASE (Installment 4)
NEW HAMPSHIRE’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) DEFENDS ITS BAR INSTEAD OF ITS CONSTITUTION AND RULE OF LAW
Definitions to consider with respect to the actions of the State of New Hampshire in its REPORT Testimony in re: State v Jean Allan docket nos. 09-cr-1293-04 and 09-cr-4147, Laconia District Court, Laconia, New Hampshire:
Note: "Willful ignorance" n. Has been defined as a bad faith decision to avoid becoming informed about something so as to avoid having to make undesirable decisions that such information might prompt.
Note: Gross negligence has been defined as "An indifference to, and a blatant violation of, a legal duty with respect to the rights of others."
Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of Punitive Damages, whereas gross negligence does not.
If you are a new Reader of this series "NO WITNESS-NO CASE", you may want to begin with reading the three prior installments before you read this one. If you are a serial Reader then you will note that this installment picks up from PART 1 "her attorneys" and, the State’s October 13, 2009 REPORT Testimony to the Laconia District Court in re: 09-cr-1293-04 and 09-cr-4147 (in both cases the DEFENDANT is charged with misdemeanor criminal trespass)
Incorporated into State’s Testimony in the REPORT, is a Section titled MENTAL STATUS AND CURRENT LEVEL OF FUNCTIONING that is material to the Reader’s analysis of this installment. Here are but a few excerpts:
- At the beginning of page 13 –REPORT the State Testified to LDC, to wit: "Prolific writings and grievances that she [DEFENDANT] has engaged in also are a hallmark feature of delusional disorders, and while the content is presumably paranoid, there is a certain grandiose quality to who she has written to and presumed a response, and how far reaching she believes the outcomes should be".
- Beginning on third paragraph of page 13 – REPORT the State continued to Testify that "When asked if her charges are serious, Ms Allan replied "Oh, sure", adding that the charges were serious "on several levels". The State’s Testimony continued to "quote" DEFENDANT: "She proceeded to say to "Our family is concerned that this Waukewan Holdings is using the state to take what they couldn’t get any other way," noting that "We need to have the opportunity to debunk the moving AFFIDAVIT and that it is still our house…and if we can’t we have lost hundreds of millions of dollars…it’s the family legacy, it’s clearly serious."
- And, the regular readers of this Series ("NO WITNESS- NO CASE") will recall the State’s very bold, unqualified, and affirmative defense of its NH BAR when it concluded that (also found on page 13 of REPORT): "As just one example, she has worked with many attorneys. She reports that virtually all were either compromised or ultimately refused to work with her, to the point that she could not retain an attorney. The idea that there might be some thing about her that has caused difficulties with her attorneys does not seem to have crossed her mind".
Assuming that the LDC judge is a reasonable person, a plain reading of the State’s testimony above, and here (in bold) is that all the "prolific writings and grievances" DEFENDANT had written, to include but not limited to, the New Hampshire Banking Department, the Bar’s Professional and Judicial Conduct Committee’s were " a hallmark feature of delusional disorders, and while the content is presumably paranoid, there is a certain grandiose quality to who she has written to and presumed a response, and how far reaching she believes the outcomes should be", and, therefore, the State concluded DEFENDANT must be "paranoid" to have expected any positive "outcomes" in response to her "prolific writings and grievances". Clearly by now Readers must realize that to expect the State not to "Cover-Up" for the malfeasance of its agents must be ‘delusional’. DEFEDANT, however, has not given up the hope that someday the State will be responsive to the competent and legitimate "grievances" and "complaints" of its ‘non-crony’ taxpaying citizens, of which, the Readers will find the DEFENDANT, and her family, among them.
Apparently the State likes to keep it very simple when it comes to the complaints of its ‘cronies’. For example, based upon merely an AFFIDAVIT of Ownership by Waukewan Holdings testimony of New Hampshire Attorney Peter Minkow, the State’s law officers arrested DEFEDANT in the kitchen of her family’s property located at 309 Waukewan Road, Center Harbor, NH. [page 1-State’s October 13, 2009 REPORT Testimony] Attorney Minkow’s AFFIDAVIT appears to be the only offer of proof that State needed to satisfy its Gerstein Requirement.
It is true that if the Readers would search the Belknap County Registry of Deeds they would find a "naked mortgage" recorded there, dating back to October, 1989, and recorded by lawyers of the failed BankEast, to include Daniel Sklar and, yes, one of "her lawyers" Karen McGinley of Devine Millimet. It is the tortuous history of the alleged Center Harbor "naked mortgage" that will the subject matter of the rest of this installment.
So, let’s now consider the origins, the DEFENDANT’s complaints, and "adverse effect" of the Center Harbor "naked mortgage" upon the DEFENDANT and her family. Most of the data supporting the DEFENDANT’s well founded arguments can be located in the State’s own REPORT Testimony Sources of Information 6). DEFENDANT’s arguments, which have been documented by public record, have nevertheless all been derogatorily coined, by the State, as being symptoms of her "delusional disorders". (Recall the definitions in above Note at the beginning of this installment.)
On page 23 of State’s REPORT Testimony - Sources of Information 6), DEFENDANT CASE STUDY explained to the OIG’s "I was served with a foreclosure notice brought by Robin Arkley II’s company SN Servicing, Inc. for the benefit of its client Ingomar, LP." (Later DEFENDANT learned that Ingomar LP was an ‘alter ego’ of Robin Arkley II (Herein known as SN/Arkley/Ingomar). SN/Arkley/Ingomar filed a Petition in the Belknap Superior Court in 2005. If offered the Court, as its proof of claim to foreclose upon the property in Center Harbor, and owned by the Jean Vorisek Family Trust [Trust] a document that DEFENDANT has now defined as the "BankEast naked mortgage". (More about the creation of Center Harbor "BankEast naked mortgage will be laid out later in this installment).
DEFENDANT’s testimony to the OIG’s continued on page 23:
- "Judge Kenneth McHugh heard the case in Belknap Superior Court. [The case file should be on record in the Belknap Superior Court]."
- "The foreclosure Petition was granted by Judge McHugh who determined that I [DEFENDANT] owed more than $850,000 on the October 12, 1989 Judgment. That judgment was granted only due to a ‘fraud upon the court’ that I have already described herein. [At the time of Judge McHugh’s decision I was still not aware of the circumstances of the October 12, 1989 fraud upon the North Hillsborough Superior Court. Therefore, I did not argue that defense.] I appealed the case and lost."
Considering the above definitions concerning the State’s actions, it could have, with a modicum of due diligence, independently investigated re: Gerstein requirements the probable cause, or not, of Waukewan Holding’s AFFIDAVIT claim that was the moving cause for the arrest of the DEFENDANT. The investigators would have found that:
- In July 1988 BankEast opened a line of credit for the benefit of the borrowers Senter Cove Development Company, Inc [Senter] and Business Assets Management, Inc. [BAM]: DEFENDANT’s affiliated companies. Collateral securing the line of credit was a second mortgage on approximately 120 acres of land in North Woodstock, New Hampshire(not 6 acres and a cottage in Center Harbor). The State would have also found that BankEast took a first secured interest in permitted engineering plans to develop a resort community to be known as High Birches. (It is important here for the Readers to recall that Senter and BAM were DEFENDANT’s two affiliated companies that DEVINE represented in the First Equity, Insurance purchase fraud (
- BankEast was one of the creditors that had been required by First Equity to substitute its secured mortgage collateral in the High Birches resort development project, in exchange for other collateral, to include the fraudulent Ecotech stock) Recall: Rule 1.7
- The civil cases records show undisputed evidence that DEVINE also represented BankEast in the July 1988 closing. Recall: Rule 1.7
- And, the civil case records also show undisputed evidence that DEVINE was corporate counsel for the engineering firm (Costello Lomazney & DiNapoli [CLD]) who were the engineers of record that created the plans that secured the BankEast line of credit in favor of Senter and BAM. The plans were later proved to be frauds, and the technical default was the proximate cause that forced BAM to sell Senter’s stock to First Equity. Recall: Rule 1.7
The State had been made aware of DEFENDANT’s claims as to the proximate cause of the ruination of the High Birches real estate development project; because it incorporated some of the issues into its REPORT Testimony to LDC in Sources of Information 6) page 4.
- DEFENDANT: "No more than three days later (after the final permits had been granted by the Town of Woodstock based upon the engineering plans of DEVINE’s client CLD, in August 1988) an abutter made a legal claim for 58 of the 120-acre property. Upon further investigation by my then lawyers, Merrill & Broderick after filing a Petition to Quiet Title, it was agreed that the abutter’s claim was valid". (Attorney Broderick was DEVINE partner that split to form his own firm with former Governor Steven Merrill. "Her attorney" John Broderick took her case file with him.)
- DEFENDANT: "The High Birches real estate development project was ruined. The law suits began."
- Upon the advice of DEVINE attorneys, DEFENDANT told the OIGs, "The clear solution was for Senter, to purchase the out parcel that had been claimed by the abutter, while at the same time, it (Senter) prepared to sue the surveyor and engineer CLD". The out parcel was purchased on September 11, 1989"
- DEVINE was Senter’s attorney of RECORD for the Purchase of the 58 acre out parcel. First American Title Co. [FATICO] loaned Senter $400,000 for the purchase price and took a 3rd secured mortgage interest in the land in North Woodstock. It was this mortgage that FATICO exchanged for substitute collateral, in February 1991, to include a portion of the Escrow Account that held the Ecotech stock, which we now all know to have been a fraud. Recall: Rule 1.7
- DEVINE had also represented BankEast for the closing of the July 1988 loan to Senter and BAM. And, now BankEast launched a law suit against the title insurer FATICO.
- The Reader should also note that the State had, at this time, sworn documented evidence, in several of the above cited civil matters, that it was one of "her DEVINE attorneys" (who was also concurrently representing BankEast) who told FATICO, in a MEMO, to "paper over" the CLD survey exception. FATICO, agent Brian Ray, knowing that DEVINE also represented the surveyor, did what "her DEVINE attorney", McGinley, instructed him to do.)
- The State knew, according to its own REPORT, on page 4-Sources of Information 6) of DEFENDANT’s claimed that unbeknownst to her, BAM, and Senter (Recall Rule 1.7 Consent requirements) that "In October 1989 the engineers’ and certain creditors corporate lawyers Devine Millimet Stahl and Branch along with litigation lawyers Shaheen Gordon conspired with the creditors. In one instance Shaheen Gordon failed to show up for court hearing against the first mortgagee, Cabral. And, in another matter Shaheen Gordon allowed a Devine Millimet lawyer to file an illegal agreement with the second mortgagee BankEast. The BankEast agreement was recorded in several New Hampshire Registry of Deeds."
- In order to avoid any confusion going forward, the above term "BankEast agreement" will be replaced with "BankEast naked mortgage". The BankEast naked mortgages secured certain properties owned by the Jean Vorisek Family Trust [TRUST]. The Center Harbor property was but one. The Trust was NOT a borrower of BankEast. There was no TRUST note. There was NO consideration given by BankEast by the TRUST. Devine Millimet was also attorney of record for the TRUST in 1989. DEVINE did not consult with TRUST prior to the filing of the "BankEast naked mortgages". RECALL Rule 1.7
For the Readers’ convenience ABA Model Rule 1.7. - Conflict of Interest - The General Rule that was utilized as a standard of conduct that "her attorneys" owed to DEFENDANT has been reprinted below:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation. ("Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.)
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) each client consents after consultation. ("Consult" or "consultation" denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.)
PART 2 – "HER LAWYERS" DEVINE MILLIMET STAHL & BRANCH; MERRILL & BRODERICK; SHAHEEN & GORDON; MCLANE GRAF LAW OFFICES; and, the alleged "BankEast naked mortgage", became the SN/Arkely/Ingomar offer of proof upon which the 309 Waukewan Road, Center Harbor, NH property was foreclosed on September 27, 2007. After the foreclosure auction, Mr. Minkow’s company, Waukewan Holdings. LLC, claimed to be the alleged highest bidder. The alleged ‘auction’ sale was the basis for Mr. Minkow’s claim that Waukewan Holdings, LLC was the DEFENDANT’s landlord, and therefore, she needed to be evicted, almost two years later.
It is true that if the Readers would go to the Public Records at the Belknap County Registry of Deeds, they would find a recorded document, filed by "her former attorneys" McLane Graf Law Office, that Waukewan Holdings, LLC was the winning bidder in the September 27, 2007 Foreclosure Action.
As it turned out, "her former attorneys" McLane Graf Law Office also represented ALL of the private alleged successors’ in interest in the "BankEast naked mortgages", dating all the way back to RFS partnership with FDIC’ agent RFS, Inc.
But, it gets better or worse, depending on the Readers’ point of view: The SN/Arkley/Ingomar offer of proof (BankEast naked mortgage to Center Harbor property) had been assigned at least a half a dozen times since it was first recorded in 1989 in the Belknap County Registry of Deeds:
- For almost two decades the alleged assignments were NOT recorded in violation of NH RSA 477:3-a, and in violation of other UCC requirements. The only sworn testimony that SN/Arkley/Ingomar was the legal owner of the ‘naked mortgage’ was from the August 2005 Affidavit of a known fraud, and uber ‘robo signer’, Victor Parisi. And, of course, Attorney Peter Minkow’s AFFIDAVIT that was the proximate cause of the DEFENDANT’s arrest on May 15, 2009.
- However, the above information will not come as a shock to Readers who have been following the news reports with respect to ‘foreclosure frauds’. These Readers will automatically recognize the issue of ‘robo signing’, among other examples of "frauds upon the courts" that have been perpetrated by a number of banks’ servicers. And, some of you frequent visitors to nhjustice.net may even recognize the sequence of events described herein from prior readings in CONSIDER THIS …
By this time, most red blooded Americans are, most likely, beginning to ‘smell a rat’ with respect to the "BankEast naked mortgages", and are asking themselves: How exactly did "her attorneys" do it! And Get away with it for all these years?
It appears that the State, however, did not share that general sense of smell, considering its conclusion about the DEFENDANT in the citings above. But, yet it incorporated DEFENDANT’s "I smelled a rat" reference citing its REPORT Testimony on page 23-Sources of Information 6), to wit:
Before going any further, the DEFENDANT has incorporated the following Q&As for the Readers to use as guidelines as the next part of this puzzle is laid out:
1. Who is an "officer of the court"?
A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must meet the same requirements. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).
2. What is "fraud on the court"?
Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
It has now been established within the State’s own REPORT Testimony that it was aware that "her attorneys" went to great lengths to keep her in the dark re: October 12, 1989 hearing in violation of Rule 1.7.
Now, we shall explore "her attorneys" acts, and the State’s support of those acts, as described in its REPORT testimony, with respect to Rule 3.3 - Candor Toward The Tribunal: (As the Readers will notice, the duty of "her attorneys", with respect to Rule 3.3, is to the Court itself; and, as the Readers will recall from the above definition of "fraud upon the court", an individual Judge is NOT the Court.
Rule 3.3 Candor Toward The Tribunal. (October 12, 1989 Hearing Hillsborough Superior Court BankEast v Business Assets Management Inc., Senter Cove Development Company, et al)
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
- Shaheen Gordon filed an appearance with the court in re: BankEast v BAM, Senter et al. Although Shaheen Gordon was notified that a hearing on the matter had been scheduled, it omitted to inform the court that it had not notified its clients’ of the scheduled hearing
- Shaheen Gordon at the time of the hearing was fully aware of the many DEVINE conflicts in violation of Rule 1.7, yet there is no record that it informed the court of the conflicts: to include the fact, that DEVINE had represented the Plaintiff BankEast and the DEFENDANT’s companies simultaneously, in the instant matter, a clear violation of Rule 1.7
- Shaheen Gordon failed to impart any of the ‘conflict’ information to the Court when it agreed to allow "her DEVINE attorney" Karen McGinley to file an "Appearance" to represent BAM, Senter et al at the hearing. Shaheen Gordon did not get the consent of its clients BAM, Senter et al in violation of Rule 1.7.
- Shaheen Gordon failed to inform the court that the technical default that was the proximate cause of BankEast’s claim of default, and the reason for the scheduled hearing, had been satisfied a month earlier, on September 11, 1989. BAM, Senter e tal had paid $400,000 for the ’58 acre out parcel’. "Her attorney" Karen McGinley was the closing attorney of record for the sale.
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
- Neither "her attorneys", nor Attorney Sklar, all knowing that they were engaging in violations of Rule 3.3, turned themselves into the court then, or EVER.
- Neither "her attorneys", nor Attorney Sklar, all knowing that they had engaged in violations of Rule 3.3, in the October 12, 1989 hearing, informed any of the other courts where the ‘BankEast naked mortgages’ had been offered as proofs of claims against any of the TRUST’s properties.
- In BAM and Senter’s Petition to Quiet Title re: BankEast naked mortgage against Center Harbor property, Attorney Sklar affirmed the BankEast naked mortgage. (PART 3- "her attorneys" will explore Attorney Sklar’s actions in more detail)
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the that the lawyer reasonably believes is false.
- An alleged Settlement Agreement between BankEast and BAM, Senter et al borrowers was offered to the Court by "her attorneys" Shaheen Gordon and DEVINE. "Her attorneys" knew that they did not have DEFENDANT’s consent to offer the alleged Settlement to the Court, a violation of Rule 1.7 and 3.3.
- Incorporated into the alleged Settlement were attached ‘BankEast naked mortgages’ that secured properties owned by the Jean E. Vorisek Family Trust [Trust]. "Her attorneys" Shaheen Gordon and DEVINE knew, and did not inform the Court, that they did not have Trust’s consent to offer those ‘naked mortgages’ as part of the Settlement, in violation of Rule 1.7 and 3.3
- Attorney Daniel Sklar, a former DEVINE partner, now representing BankEast in the instant matter, knew, or had reason to know all the above laid out facts to be true, and did not do his duty to the court pursuant to Rule 3.3, and inform the court that the Settlement document was a fraud.
An ‘enquiring mind’ may well say, all of the above arguments pursuant to Rule 3.3 are well and good, but… Why should they matter at all?
- If the alleged October 12, 1989 Settlement that created the alleged "BankEast naked mortgages" securing TRUST properties (albeit illegal) were exchanged for the 1991 Superseding Creditor Agreement that BankEast signed discharging ALL its mortgage rights on February 5, 1991, to include its claims in BankEast v Business Assets, Senter et al, and that AGREEMENT was incorporated into the First Equity Insurance purchase agreement with BAM, for the Sale of Senter Stock, then the ‘naked mortgages’ should have been discharged as a matter of law? Ah! And, "therein lies the rub"…..
For the above questions to be answered the State’s Report in Sources of Information 6) may offer some guidelines to the answers:
Upcoming: #5th Installment in Series:
NO WITNESS – NO CASE: NEW HAMPSHIRE’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) DEFENDS IT’S BAR INSTEAD OF ITS CONSTITUTION AND RULE OF LAW
"HER ATTORNEYS" PART 3 - Devine Millimet Stahl & Branch; Shaheen Gordon; McLane Law Office; Orr & Reno; Upton Sanders & Smith