Confessions of a Common Man

LAW IS A RACKET

Arek — Sat, 21 Apr 2012 19:48:16 +0000

April 21, 2012.
Ms. Roberta L. Tepper, Esq., Senior Bar Counsel
State Bar of Arizona
4201 N. 24th Street, Suite 200
Phoenix, AZ 85016-6288

Re: Systemic flaw.
State File Nos. 12-0941, 12-0942, 12-0943, 12-0944, 12-0945, 12-0946, 12-0947, 12-0948, 12-0949, 12-0950.
Attorneys: John S. Craiger, Joseph T. Tadano, Daryl Manhart, Corey Ray Foley, Philip G. Mitchell, Hilary L. Barnes, Michael James Curley, Clifford L. Mattice, James Rigberg, Jeffrey T. Murray,

You left out Gary Birnbaum, Managing Partner of Mariscal Weeks.

Dear Roberta:

There is a systemic flaw in your use of discretion as explained in your letter dated April 17, 2012. In your approach to the administration of ethics, you wish to have final adjudication of litigation before determining whether an attorney has violated rules of professional conduct.

The problem with this approach is that litigation can reach finality incorrectly due to the violations of conduct or discovery necessitating a judgment to be vacated and thereby creating a whole lot of extra work and trouble contrary to the intended purpose of the rules and discovery.

The State Bar of Arizona is an extension of the Supreme Court. The Arizona Supreme Court operates the Court system and regulates the practice of law in the courts. All of this takes money. In order to generate revenue, lawyers need to be hired by clients and file lawsuits or defend lawsuits, and clients billed for services.

The theory behind the Rules of Professional Conduct is to hold “Officers of the Court” to a higher standard of ethics; however the way that you enforce the Rules creates cash flow for the entire chain of the legal system at the expense of judicial integrity.

In my instance, the Town of Cave Creek created two ultra vires subdivisions. I seriously doubt the Town has the legal acumen or intellectual bandwidth to create two ultra vires subdivisions based on bogus exactions without the assistance of highly experienced legal counsel in Mariscal Weeks.

They may argue mistake, but it sure feels like a fraudulent/ criminal scheme where the consequences of promulgating the rules of professional conduct based on conditions subsequent to litigation means that over the last 10 years, 16 court related actions have transpired, costing approximately $1 Million in legal fees and related costs. Maybe this is what it means to be a rain-maker. Share the wealth with other lawyers while you are at it.

The time and money spent in litigation could have been better used in a myriad of other ways but based upon your approach to enforcement and discretion; over $1,000,000 was extorted on behalf of your syndicate to use RICO nomenclature. General Butler exposed that War is a Racket. Litigation is no different.

My inclination at this time is file a RICO action against the Town of Cave Creek et al, to conceivably include the State Bar based on your refusal to prosecute ethical violations. Had the ultra vires nature of the lots splits been avoided at the onset, a lot of time and money would not have been wasted on unnecessary litigation.

This is why a legal system must be built on integrity, and not revenue generation by the proliferation of law suits completely avoidable, but for the unethical actions of attorneys. Currently, discretion and legal fictions form the basis of jurisprudence creating a house of cards which the public finds revolting. A system is what it does. Perhaps you understand this; perhaps your vision is clouded by being in the system.

Ethical conduct especially concerning discovery is fundamental to due process.

I respectfully urge that the State Bar consider my well-documented assertions previously made against the named attorneys, at least, concurrently with—and apart from—any ongoing legal proceedings as such consideration is at the very heart of the Bar’s responsibilities, and will not impact or interfere with the legal outcome of these proceedings. I reserve all rights and claims.

Respectfully,

Arek Fressadi.

Cc: http://www.fressadi.com/blog/

Ps I would also direct you to my recent filing in CV2010-029559 incorporated by reference herein (sent under separate cover) with respect to the Supreme Court’s ruling in Panzino and “positive attorney misconduct.”

Push Me, Pull Me. How Peer Pressure Works along Scientific Laws

Arek — Sun, 12 Feb 2012 18:59:53 +0000

Push me, pull me
New Scientist vol175 issue 2357 – 24 August 2002, page 42
[edited to American English]

Put people together and they behave like atoms in a magnet. Welcome to the new physics of peer pressure, says Bruce Schechter

YOU probably think you base decisions such as who to vote for, or which brand of coffee to buy, on a rational weighing up of the facts. Well, maybe, but try this simple experiment, first performed four decades ago and reproduced many times since. Stand on a busy street corner and look up at the sky. The crowd will part around you; indifferent to whatever it is you may be looking at. Now enlist the help of a friend to stand beside you and also look skyward. Soon, others will stop and gaze up as well. A similar thing would happen if you and your friend boarded an empty elevator and faced the rear wall. As more passengers boarded many would face the back wall too. These well-known illustrations of peer pressure seem like amusing ticks, of little relevance to any important decisions. But physicists have begun to show how this fundamental human “force” can determine how opinions spread in a population. Their work suggests that the swings in public opinion or the distribution of votes in an election have as much to do with people’s tendency to be influenced by their neighbors as the details of a candidate’s policies.

Jozef Sznajd and his wife Katarzyna Sznajd-Weron, both physicists at the Polish Academy of Sciences in Warsaw, were the first researchers to investigate the physics of peer pressure. Since then, many others have followed what is now known as the Sznajd model. This is based on the idea that, in certain aspects at least, human society is not so different from a bar magnet. The basic tool the physicists apply is known as the king model, which was developed in the 1920s to understand how iron and similar materials become magnetized. In the equations of the king model, clumps of iron atoms are represented as little “spins”, regularly spaced on the corners of a lattice. At high temperatures, the axis of each spin is as likely to point one way as another, as they’re all jiggled into disarray by thermal vibrations. In this state, a piece of iron has no overall magnetization. But because the clumps feel the influence of their nearest neighbors, it’s actually more comfortable for them if the axis of their spins all point in the same direction. So as the temperature, and therefore thermal vibration, is reduced, one by one the spins flip to point in the same direction as their nearest neighbors (see Diagram). At a critical temperature they will all have flipped so that all the spins end up pointing in the same direction. This is the most comfortable -or, in physics terms, lowest energy – state, and is what gives a piece of iron its magnetism.

The king model is a standard tool for physicists studying the behavior of magnets, but the Sznajds decided it might also be able to model other systems composed of small, shifting units – human society, for example. So they substituted animal magnetism for electromagnetism in the king model. And when they did, out popped a surprisingly accurate model of human behavior. They first considered a rather simple situation. Individuals are arranged along a line and can vote for one of two parties. Each initially (and randomly) prefers either party A or party B. If your two neighbors both prefer A then you will also come to prefer A – if you don’t already, that is. A similar thing happens with B, of course. And that’s all there is to it.

In this model the eventual result is dull: it’s always unanimity or a stalemate. But the evolution of the model – how overall public opinion changes over time – tells a much more interesting story. Take a simple question, of the kind pollsters ask every day: do you think the future will be good? When Sznajd ran a computer simulation of this, it showed that opinions fluctuate wildly in time, as you might expect. But the opinion an individual holds at a certain time can be correlated with the opinion they have a short time later. The researchers found that the probability that an individual would change their mind after a certain length of time had elapsed followed a power law: the probability of changing their mind after time t is f’.5. Power laws occur in many natural phenomena, from sand dunes to earthquakes, and indicate the existence of “self-organized criticality”. In other words, the system repeatedly moves into a state where things are finely balanced and a small disturbance in one part of the system can trigger massive changes across its entirety.

Indeed, the Sznajds found that, in certain critical situations, one person changing their opinion could cause an “avalanche” of opinion changes, just as one extra grain of sand can cause a critically loaded sand dune to collapse. To check the accuracy of his model, Sznajd found some data that tracked the fluctuations in optimism among the people in the Polish study. Pollsters asked a group of people the vague question, “Are things getting better?” and their data reproduced the same fluctuations and correlations computed by the Sznajd model. It seemed that the ebb and flow of feelings on the matter didn’t follow external events as much as it did gossiped opinion. Simple solution When Dietrich Stauffer, professor of theoretical physics at Cologne University, came across Sznajd’s findings he was hooked by the simplicity of the idea. “I liked it immediately, and was angry that I did not invent this model myself years earlier.” Channeling his anger, Stauffer quickly took up Sznajd’s model and began to play. First, he wanted to make the model more realistic. So he allowed the individuals to rest on a two-dimensional lattice. In this arrangement, if an individual’s four nearest neighbors share an opinion, the individual will be converted to that opinion. Stauffer also tried some other models. He let his population move randomly around the lattice, sharing opinions and exerting influence, as people do at a cocktail party, say. To make it even more realistic, he also tried a model designed to mimic the evolution of actual networks of friends and relations. This connects people together in a manner that faithfully reproduces what we know of the characteristics of real social networks. Finally, convinced that the Sznajd model could be an effective mirror of human influence, Stauffer and his colleagues A. T. Bernardes and .I. Kertesz looked for a real world test. The best option, they found, was in elections. They analyzed the distribution of the number of votes different candidates obtained in Brazilian council elections – that is, say, six candidates get 14,000 votes, 12 get 10,000 and so on – and worked out the number N(v) of candidates getting v votes each. Plot a logarithmic graph of N(v) against v and you get a curve whose slope gives you an “exponent” – a way to characterize the democratic process. In the Brazilian elections that Stauffer’s team looked at, the exponent was about -1. The team then used their Sznajd model to run a simulation of people influencing their neighbors’ vote on square and cubic lattices, and using a complex social network. All three methods reproduced the observed distribution of votes in the Brazilian election with uncanny accuracy. And all gave slopes close to -1 (see &gram). That was no fluke, Stauffer believes. He has also tried to model the process using what he once thought was the best model of democracy that physics had to offer. In this attempt, he assumed that the distribution of votes must be caused by “clustering”. Metallic atoms in solutions gather together to form clusters, whose size depends on the characteristics of the “seed” particle which initiates the process. Stauffer thought people would cluster around candidates in groups whose size depended on the attractiveness of their ideas. But when he modeled the election with the physics used to describe the clustering process, the result failed to match the real election data. The number of clusters of a given size gave a characteristic exponent of about 2.

Now this might be disappointing to advocates of the democratic process, who would like to think that it’s all about people being drawn to the candidates and their ideals. It seems that is just plain wrong. According to Stauffer and his colleagues, we’re at the mercy of peer pressure. Its social factors that strongly influence the outcome of an election. At the start of the election period, each candidate has their own group of voters. Some weeks go by, people argue with their friends, and a vote is taken. The results indicate that people are heavily influenced more by those arguments than by what the candidates do or say. And if you accept that peer pressure has a lot to say about the democratic process, Stauffer has a further warning for would-be politicians. When the opinion polls come in halfway through your campaign, don’t think that being in second place is OK. It’s a disaster – even if a second-place final result would be good enough.

Stauffer obtained this insight when he ran a system whose population can hold one of four possible opinions covering the spectrum of beliefs from one extreme to another – call them A, B, C and D. People holding similar opinions can influence one another, so a block of four people who believe B would influence their neighbors to believe B if they currently believe A or C, but would not affect someone believing D. Start with a random distribution of opinions and let it run. Almost everyone, unsurprisingly, usually settles on the same opinion. Sometimes a second opinion survives, but the others are eliminated. But the opinions that are eliminated are almost never the ones you’d expect. Put your confidence in the halfway opinion poll rankings and you could be shocked. Stauffer ran 10,000 simulations of this evolution of four opinions. Whoever was second at half-time ended up coming third in 92 per cent of the simulations. “To be first or third is good,” Stauffer says. “Second place is dangerous.” The opinions that won were always moderate – either B or C – but the second place went to an extreme: A or D. When the electorate talk and influence one another, you’d better watch out if you’re looking like a comfortable runner-up.

This lesson seems consistent with the events of the French presidential elections held in April. The far-right candidate, Jean- Marie Le Pen, came from behind to oust the socialist Lionel Jospin in the first round of voting, much to everyone’s shock. People were so outraged by the idea of an extreme right-wing candidate having a chance at the presidency that spontaneous protests broke out on city streets. But Stauffer’s result seems to indicate that a large group of people were initially close enough to the right-wing vote to be influenced by their more extreme neighbors. Add in the fact that this vote came almost exclusively from one block of the country, and the role of local influence seems obvious. Stauffer says he would expect similar laws to be at work in elections worldwide. Physicists have observed that vastly different systems, from boiling water to Ferro magnets and traffic jams, all exhibit the same behavior. This universality, he suspects, is at work in human systems as well. Details, such as how much television they watch, should have only a minor effect on the final outcome. Peer pressure is a human phenomenon, he believes, and won’t change from country to country. Far more important would be the form of the election – whether it is for candidates or parties, for example. “In a vote dominated by parties instead of candidates, we just have a handful of parties and thus a handful of results,” he says. The effects of peer pressure might still be there, but there’s simply not enough data for an ironclad statistical analysis.

More recently. Stauffer and his collaborator have begun to include such phenomena as “frustration”. This occurs in complex materials like glasses and certain metal alloys. When the spins inside the material can’t find an arrangement that suits them all, the spins are said to be frustrated. The result is many different possibilities for the final arrangements of spins, but none of them is the perfect, low-energy solution. It’s an area of study that is helping physicists get a handle on the processes behind protein folding in biological systems – especially when the folding goes wrong. And, Stauffer believes, exactly the same kind of frustration arises when people receive conflicting advice. By studying the physics of frustration, he and his colleagues have found that neighbors reach a consensus more easily when they get together in informal, small groups than when they meet only in large, scheduled committee meetings. This result could have some bearing on corporate decision making, and perhaps throw some cold water on the currently popular “town hall” meetings in American politics. Indeed, Stauffer believes his results could provide many useful pointers to social scientists looking for explanations and predictions of the way groups of people, from neighborhood watch committees to national political parties, might reach consensus. Of course, that’s not to say that Stauffer simple simulations hold all the answers. They can’t predict an election result, even if they can expose the type of process behind it. After all, the shifts and swings in opinions must surely be far more complicated than the flips of an atom in a magnet – or is that just what the politicians would have us believe? The new physics of peer pressure says there’s only one way to be sure that our future elections are not determined by the opinions of our neighbors. We need to abolish the right to free speech: it’s undermining democracy.

2012.

Arek — Sun, 01 Jan 2012 19:38:22 +0000

Kudos to Valeria Maltoni.

http://www.conversationagent.com/

To start the New Year, Valeria comments on Czikszentmihalyi’s question of what makes a life worth living. Pursuing ‘the flow’ as Czikszentmihalyi puts it, is completely absorbing and existence is temporarily suspended. Czikszentmihalyi says that creation at that level happens after 10,000 hours (i.e. Ericsson’s work on expertise).

Csikszentmihalyi contrasts pleasure with enjoyment. Pleasure is conservative-it feels good but simply maintains the status quo. Enjoyment however, is happiness in action, which leads to greater skills. Enjoyment creates psychological capital (eudaemonia Ancient Greek: εὐδαιμονία) and triumphs over the forces of entropy.

Learning to love Linda Bentley

Arek — Fri, 16 Sep 2011 18:21:15 +0000

What really happened.

Arek — Fri, 13 May 2011 20:35:08 +0000

What really happened.
For the last ten years, I have been in dispute with the Town of Cave Creek and its Official Newspaper, the Sonoran News published by Don Sorchych. On numerous occasions, I have attempted to redress the grievances created by Sorchych and Abujbarah to no avail.
It’s a simple matter really. Cordwell told me to split my property with a series of lot splits. It was bad advice as Cordwell later admitted. I corrected Sorchych at a Town Council meeting regarding the development of a Town Center and became persona non grata.
The Town Manager and Sorchych along with a few others have a junta that runs the town. Sorchych even admitted his fondness of the Town Manager in an editorial, on January 19, 2011

http://www.sonorannews.com/archives/2011/110119/myview.html

In 2001, I split parcel 211-10-010 into three lots. Technically, it was four lots. The Town requested an exaction from my engineer and the engineer created a fourth lot, lot D which I refused to gift to the Town as it was an exaction.
One of these lots was too small for a septic system, so I requested to extend the sewer to serve my lots. The Town agreed and I drafted 11 reimbursement agreements to address an orderly way of allowing the sewer to be transferred to the town, none of which were ever executed. I built the sewer and terminated it between lot 211-10-010A and B.
In 2002, the town denied a lot split to The Cybernetics Group for parcel 211-10-003 because I owned a minority share in The Cybernetics Group and had already split my adjacent land, parcel 211-10-010 into three lots, A, B & C.
Cybernetics sold 211-10-003 to Keith Vertes conditional upon Vertes obtaining a lot split from the Town. Vertes was granted a lot split for three lots based conditional upon all three lots hooking up to my sewer.
Oops. The Town has no authority to require a hook up to a private sewer. It’s ultra vires.
The Town also categorized all three lots as hillside. See the Town Council Minutes for April, 2003. http://cavecreek.fileprosite.com/Documents/DocumentList.aspx?ID=9221
To extend all utilities to the 003 lots, and to avoid having 2 driveways, I drafted a reciprocal easement agreement, recorded with the Coutny #2003-1472588.
Oops. Vertes forgot to tell me that he SOLD lot 211-10-003A the day before he signed the agreement.
In 2004, when the Town failed to enter an agreement to reimburse the cost of the sewer, I billed the town for extending their infrastructure. The Town placed me under criminal investigation for an illegal subdivision and the Sonoran News ran it on the front page.
In 2005, Lot A disavowed the reciprocal easement agreement, so I rescinded the agreement. See Maricopa Recorded document #2010-070186.
Oops. Seems the Town issued building permits to Vertes to extend my sewer but Vertes is not licensed as a sewer contractor…the Town also issued building permits to Vertes to build houses on lots 211-10-003 B & C using my driveway.
In 2006, Kremer started building a house on their 211-10-003A lot and even though they disavowed the driveway agreement, they hooked up to all its utilities and even used my driveway to mobilize their construction.
In 2008, attempting to avoid damage to my driveway, I restricted the southern access. Vertes built an excessively elevated driveway using uncompacted fill on the 003 lots which was classified as a construction access. It violated the Town’s Zoning Ordinance. In fact, all of the houses constructed on the 003 lots violate the Town’s Zoning Ordinance.
In 2009, I filed a complaint with the town on the violations of the Zoning Ordinance. The Town did nothing.
In 2010, the Town violated numerous state statutes and granted the 003 B & C lots ultra vires variances as the excessive lot coverage was self imposed. Since the Town failed to enforce their zoning ordinance, I since my engineers indicated that the 003 driveway was unsafe, I removed rocks on my property adjacent to the 003 driveway to avoid any kind of comparative negligence.
In December, I filed a complaint with the Attorney General’s office regarding the Towns’ fraudulent scheme to take my property and other crimes. Their response was to file a criminal charge against me for removing rocks on my property.
The rocks were removed to elevate my land to support the unstable condition created by the driveway constructed on the 003 lots in violation of the Town’s Zoning Ordinance.
At any time, the 003 lot owners could have mitigated their damages by reforming the reciprocal easement agreement and instead chose to vilify me.
Unbeknownst to me, Jay Powell, my Bankruptcy attorney was a good friend of counsel for the owners of lot 003C. My attorney delayed the filing of my Bankruptcy such that the foreclosure occurred prior to the filing of my petition. Lot 003C sold their lot for $550,000 but is building the $75,000 retaining wall. They asked to access my property, and I allowed them to rip up the asphalt and dump dirt on my property to return the land to its native state.
I’ve filed bar complaints against the Town’s prosecutor, and my Bankruptcy attorney.
On December 1, 1955 Rosa Parks refused to obey a bus driver’s order that she give up her seat for a white passenger which turned into the Montgomery Bus Boycott. My circumstances pail in comparison to the prejudice and hatred imposed upon African Americans but there is a similarity.
Civil Rights. The Fifth and Fourteenth Amendment protect my use and enjoyment of property which have been denied. Thus I continue. Not for me, but for the good of our community, our country, that we protect these inalienable rights regardless of the hardship imposed upon us. If I give up, then little by little, our rights to property, liberty and pursuit of happiness erode. I have no angst, only compassion and tenacity.

The Four Way Test

Arek — Fri, 13 May 2011 19:21:45 +0000

Gandhi, Mandella, King and others have all shown extraordinary character in the face of false light and adversity. I claim no such virtue, but will for sake of repetition, repeat as I have done numerous times before, the Rotary International Four Way Test:
Is it the TRUTH?
Is it FAIR to All Concerned?
Will it Build GOODWILL and Better Friendships?
Will it Be BENEFICIAL to All Concerned?

http://www.4waytest.org/

When I was in high school 45 years ago, I was introduced through the 4 Way Test with Rotary International. It changed my life forever.

Best wishes to you.

What really happened, #2011-0102034

Arek — Fri, 13 May 2011 19:00:22 +0000

STATUS OF THE DRIVEWAY EASEMENT AND MAINTENANCE AGREEMENT

Properties to the reciprocal easement agreement:
211-10-003 A, 211-10-003 B, 211-10-003 C, 211-10-010 A, 211-10-010 B, 211-10-010 C

Pursuant to Article 9 of the Driveway Easement and Maintenance Agreement (hereinafter “DEMA” or “DMA”) officially recorded in Maricopa County on October 22, 2003, Records # 2003-1472588, and updated as of 2010-0708186 on 08/18/10, and 2010-1004770 on 11/17/10, Caretaker/Declarant Arek Fressadi (“Declarant”) hereby makes the following declaration regarding the above properties:

BACKGROUND
In 2001, Ian Cordwell, Cave Creek’s Zoning Administrator and Director of Land Planning suggested down zoning parcels 211-10-003 and 211-10-010 through a series of lot splits as the most efficient method of entitling the development of these two parcels. Cordwell approved the split of parcel 211-10-010 into three building lots (A, B & C) on December 31, 2001 . Parcels 211-10-003 and 211-10-010 A, B & C could address sanitation by onsite/ septic tanks, connecting to an existing private system, or annexing into the Town’s sewer district. In consideration of a development agreement pursuant to ARS §9-500.05, Declarant agreed to annexation and to extend the sewer. After numerous drafts of a development agreement, the Town Manager wrote Declarant a letter on June 28, 2002 stating,

“…the developer /subdivider is responsible for building the infrastructure to convey the wastewater from the development to the nearest connection point to the Town’s sewer system. Applicable excerpts from the Town Code of Ordinances are enclosed, (50.014 and 50.031). As we discussed, there are no designated charges or assessments that would be available from subsequent customers hooking to your line extension to provide for payback of some of your costs. For this reason it does not appear that any form of development agreement is viable.”

The Town and the Declarant continued to exchange development agreement drafts after the letter on June 28, 2002, because the Town intended to enact a sewer reimbursement ordinance. According to the Town Manager, the Town lacked the authority to enter into an agreement because the Town Council had not authorized an ordinance for reimbursement. Declarant submitted another draft on July 31, 2002 which the Town responded to with revisions on August 8, 2002. It should be noted that during the Town Council Meeting on August 5, 2002, the Town denied a lot split to parcel 211-10-003 based upon the perception that the lot split violated the Town’s subdivision ordinance but the Town continued to negotiate development agreements AFTER the 211-10-003 lot split was denied. Additional revisions and submissions of the reimbursement agreement were made on and after August 8, 2002.

Declarant applied to extend the sewer to lots 211-10-010 A, B & C on July 3, 2002. Permits #02-256, #02-260, and #02-263 were issued on October 30, 2002 and the work was finalized on April 21, 2003 as a private system. The Town as part of the permitting process requested the grant of additional land for easement for purposes of maintenance of the sewer to lots #211-10-010 A, B & C only. No other grant of easement was conferred or intended. The grant of easement for maintenance did not confer ownership of the sewer extension to the Town.

Keith Vertes bought parcel 211-10-003 as bare land (#20030317665) and applied for a split of three lots. On April 21, 2003, the Cave Creek imposed a requirement that the lots connect to Declarant’s sewer as a condition of the lot splits. On July 21, 2003, the Town Council granted the split of parcel 211-10-003 into three lots, A, B & C but did not acquire Declarant’s sewer extension in toto or enter into a development agreement with Declarant. Absent acquisition of Declarant’s sewer extension, or a Development Agreement to address subsequent customers hooking up to Declarant’s line extension, the Town is estopped from extending Declarant’s sewer extension, and the grant of lot split was ultra vires and void.

The Town issued three permits to Building Group Inc. as Owner/Builder to extend Declarant’s sewer onto the 003 lots. Pursuant to the Registrar of Contractor’s rules and regulations, Building Group is not licensed to install sewer lines and is not entitled to Owner/ Builder exemption . See, ARS §32-1121. Pursuant to the Town’s Building Code: R105.3: “The building official shall examine … applications for permits and … [i]f the application or the construction documents do not conform to the requirements of pertinent laws, the building official shall reject such application…” (Emphasis added). Pursuant to R105.4: “The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any code or of any other ordinance of the jurisdiction. Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of the jurisdiction shall not be valid.” (Emphasis added).

Building Group, Inc. and Golec sold parcel 211-10-003A with utilities to James and Jocelyn Kremer on October 15, 2003, recording #20031438387 and Kremer agreed to be bound by a driveway maintenance agreement in the purchase contract but Kremer disavowed the reciprocal easement agreement, recording #2010-0708186. Vertes executed the reciprocal easement agreement as manager of GV Group LLC purporting to own 211-10-003 A, B & C, on October 16, 2003, but GV Group did not exist, recording # 2003-1472588.

In December of 2003, Town Council authorized Reimbursement Ordinance 50.016 for sewer line extensions, but the Town did not execute an Agreement to ratify the extension of sewer service to the 003 lots. Accordingly, Declarant submitted an invoice for the entire sewer extension on February 21, 2004. See, Exhibit A, to include an update as of February 1, 2011. In response, The Town issued a letter to Declarant on February 27, 2004 placing lots 211-10-003 and 211-10-010 under investigation for violation of ARS § 9.463.01. The Town stated in its letter: “…while the division on the above referenced parcels is under investigation, no new building permits shall be issued for the construction of any building or structure located on a lot or parcel created by the original lot division, which may be in violation of these regulations. In the event a building permit has been issued and it is later learned that the lot or parcel was created in violation of these regulations, the Town may declare a moratorium on construction and require compliance with these regulations and may take whatever steps necessary to insure compliance. In addition, a stop shall be in place on the further division of the remaining parcels created by the original lot splits.” The Town continues to claim a façade of subdivision even though it issued building permits on the 003 lots in direct contravention to its subdivision ordinance :

Lot # Permit Date issued Final C of O Remarks
#211-10-003A #06-225 12/13/06 6/3/08 Permit erroneously issued based on non-hillside status.
All utilities via DMA, disavowed by Kremer in 2005.
#211-10-003B #04-269 6/20/05 Expired
#211-10-003C #04-655 8/17/05 Permit transferred to Real Estate Equity Limited, Inc. on 7/8/08.

Pursuant to recording #2010-0708186, Declarant rescinded the reciprocal easement agreement as to the 003 lots (the GV Group Lots) on or about October, 2005 based upon Kremer’s disavowal of the DMA, recording 2010-0708186. Permit #04-269 for Lot 003B, and permit #04-655 for Lot 003C were issued based upon physical access from Declarant’s driveway. Legal access to lots 003 B & C are via an easement recorded over lots 003A and B pursuant to the Town’s ultra vires lot split of July, 2003. Section 5.1(C) (3) of the Town’s Zoning Ordinance requires that legal and physical access shall be the same. If the reciprocal easement agreement is found to be a covenant that runs with the land and still in force and effect, then the monies are due and payable to the Declarant pursuant to Exhibit B.

In 2008, an unpermitted driveway was constructed in the 003 easement built on uncompacted fill in violation of Section 5.11(G) (2) of the Town’s Zoning Ordinance. Prior to the Town reinstalling the sewer extension to the 003 lots, Declarant removed the decorative rock wall on Lots 211-10-010 A & B adjacent to Declarant’s driveway as these walls were not engineered or intended to be used as retaining walls. Sometime between October 2010, and January 3, 2011 a portion of the 003 driveway collapsed and fell onto Declarant’s property exposing uncompacted fill and a natural gas line. Fortunately, the natural gas line was not punctured. See Footnote 12 below. The driveway as built on the 003 property is in violation of the Town’s Zoning Ordinance, and if the reciprocal easement agreement is determined to be in force and effect, the driveway is in violation of the easement agreement.

The permitted construction drawings for Lot C depict over 70% lot disturbance regardless of access, Lot B is 36%, and Lot A is over 70%. As all of the 003 lots are hillside lots pursuant to the Town’s grant of the 211-10-003 lot split in 2003, all of the 003 lots contain excessive disturbance, which is evident and permitted in their construction documents. Allowed is 25%.

Pursuant to Section 1.4(A) of the Town of Cave Creek’s Zoning Ordinance: “This Ordinance shall govern the development and or the use of land and structures within the corporate limits of the Town of Cave Creek. All departments, officials and employees charged with the duty or authority to issue permits or licenses shall refuse to issue permits or licenses for uses or purposes where the same would conflict with any applicable provision of this ordinance. Any permit issued in conflict with the terms or provisions of this Ordinance shall be void.”

Section 5.11(E)(4) of the Town’s Zoning Ordinance states that if the grading is not in conformance with the town’s ordinance within 24 months from the date of issuance of the grading permit, then all authorized permits shall be revoked and become void and the construction site shall be restored to its original condition. None of the 003 lots are in conformance with the Town’s grading requirements. Parcel 211-10-010 was improved prior to the incorporation of the Town.

Pursuant to Section 2.3(D) (1), the Zoning Administrator may not make any changes in the terms of the Zoning Ordinance. “[t]he Zoning Administrator’s authority is statutorily limited to “enforcement of the zoning ordinance.” A.R.S. § 9-462(A)(4); see also, Aegis of Arizona, L.L.C. v. Town of Marana, 206 Ariz. 557, ¶ 32, 81 P.3d 1016, 1024 (App.2003). Any decision made by a [zoning administrator] beyond these restrictive powers is “ultra vires and void.” Applestein v. Osborne, 143 A. 666, 669 (Md. 1928)(finding decision a nullity and of no force and effect); see also, Kaufman v. City of Glen Cove, 45 N.Y.S.2d 53, 180 Misc. 349 (1943); Noonan v. Zoning Board of Review of Town of Barrington, 90 R.I. 466, 159 A.2d 606 (1960); DiPalma v. Zoning Board of Review of Town of Bristol, 72 R.I. 286, 50 A.2d 779 (1947)(holding decision was “legally meaningless”); Westbury Hebrew Congregation, Inc. v. Downer, 302 N.Y.S.2d 923, 926, 59 Misc.2d 387 (1969).

Rather than void the lot splits or the permits, in violation of ARS §13-2310 and 2311, the Town conspired with the 003 lot owners to defraud and knowingly obtain benefit by false or fraudulent pretenses, representations, promises or material omissions. Contrary to the 4-21-03 hillside determination, the Town issued a building permit to lot 211-10-003A as non-hillside, and granted variances to Lots 003 B & C based upon the false pretense that restricted access from the Declarant’s driveway was a special circumstance creating excessive lot disturbance when the permitted construction drawings caused the excessive, self-imposed lot disturbance.

Pursuant to Section 2.3(E) (1): “…the Zoning Administrator shall transmit to the Board of Adjustment all records related to the appeal.” (Emphasis added). In violation of ARS §13-2407, the construction drawings and other documents were fraudulently concealed in the variance hearing of 1-12-10 on Lot C. The Lot C variance was used as the basis for a variance on Lot B. Pursuant to Section 1.7(B),

“[i]t shall be unlawful for any person to erect, construct, enlarge, alter, repair, move, improve, remove, convert or demolish, equip, use, occupy or maintain any building or land or cause or permit the same to be done in violation of this Ordinance. It shall also be unlawful for any person to violate any provision designated as a condition of approval either by the plan review process or through an amendment, conditional use permit, temporary use permit, variance, site plan, or appeal by an office board, commission, or the Town Council as established by this Ordinance.”

Unlawful variances cannot cure void permits. “…a violation of the law does not attain legality by lapse of time.” State Bar of Arizona v. Arizona Land Title & Trust Co., 366 P. 2d 1 – Ariz: Supreme Court 1961.

“Under the provisions of A.R.S. § 12-902(B), an appeal from an administrative agency may be heard even though untimely to question the agency’s personal or subject matter jurisdiction in a particular case. Arkules v. Board of Adjustment of Town of Paradise Valley, 151 Ariz. 438, 440, 728 P.2d 657, 659 (Ariz. Ct. App. 1986).” “[T]he effect of the void decision by the Board of Adjustment [or zoning administrator] is the same as that of any void decision by a court: “the mere lapse of time does not bar an attack on a void judgment.” Wells v. Valley National Bank of Arizona, 109 Ariz. 345, 347, 509 P.2d 615, 617 (1973). Per the Arizona Court of Appeals a void judgment does not acquire validity because of laches. See, International Glass & Mirror, Inc. v. Banco Gan. Y Agr. S.A., 25 Ariz.App. 604, 545 P.2d 452 (1976). Statutes of limitation or rules of court are not applicable to void judgments. See, Preston v. Denkins, 94 Ariz. 214, 382 P.2d 686 (1963). Arkules v. Board of Adjustment of Town of Paradise Valley, 151 Ariz. 438, 440, 728 P.2d 657, 659 (Ariz. Ct. App. 1986).

False light and defamation- you decide

Arek — Fri, 13 May 2011 18:57:03 +0000

False Light

False light is one of the four categories of “privacy torts” (the others being misappropriation, intrusion, and publication of private facts). While the nature of false light claims vary by state, they generally protect people from offensive and false facts stated about them to the public.

Not all states recognize claims for false light. In the states that do recognize a cause of action for false light, the specific requirements to raise a claim vary. Accordingly, you should review your individual state section listed at the bottom of this page for specific information about your state.

Generally speaking, a false light claim requires the following:

The defendant published the information widely (i.e., not to just a single person, as in defamation);

the publication identifies the plaintiff;

it places the plaintiff in a “false light” that would be highly offensive to a reasonable person; and

the defendant was at fault in publishing the information.

See Restatement (Second) of Torts § 652E.

Distinguishing Between False Light and Defamation Claims

False light is similar to defamation. Most states that allow false light claims recognize some differences between false light and defamation, but there is still a great deal of overlap. In fact, a number of states do not recognize false light claims at all because of the overlap with defamation and because the vague nature of the tort might chill free speech.

Several states that allow both false light claims and defamation claims differentiate the two by saying they protect people against different harms flowing from false statements. These states indicate that defamation protects a person’s public reputation while false light remedies the victim of a false statement for his or her emotional distress.
For example, California holds that unlike defamation, false light concerns untrue implications rather than directly false statements. For instance, an article about sex offenders illustrated with a stock photograph of an individual who is not, in fact, a sex offender could give rise to a false light claim, even if the article and photo caption never make the explicit false statement (i.e., identifying the person in the photo as a sex offender) that would support a defamation claim.

Several states view false light as more narrow than defamation in certain respects — that is, someone might be able to sue for defamation but not false light. For instance, false light requires broad publication to many people, while a defamatory statement could be made to only a few people. Some states note that false light requires the statement in question to be highly offensive to a reasonable person, while defamation does not require offensiveness so long as the statement actually harmed the reputation of the plaintiff. Finally, a number of states require the plaintiff to make a stronger showing that the defendant is at fault for false light than for defamation.

Avoiding False Light Claims

False light lawsuits often arise on the margins of stories, rather then at their core. For example, one might use a stock photo of a particular street to illustrate a story on local prostitution, and inadvertently create the impression that a person caught at random in the photo was frequenting the prostitutes. Be careful in what you use to illustrate your work.

Always be careful to check all your facts. Document the support you have for all of the information you publish. Statements that seem innocuous or harmless to you may offend a reader and could give rise to a lawsuit if they are also false.

When working online, be particularly mindful of the formatting of your site. Be sure that your website doesn’t get reformatted in such a way as to create an unwitting juxtaposition of images and stories that creates a connotation that you had not intended.

While you can’t reduce your risks entirely, we provide a number of helpful suggestions in the section on Practical Tips for Avoiding Liability Associated with Harms to Reputation.

Abujbarah’s kid

Arek — Thu, 17 Feb 2011 23:46:19 +0000

ILENE J. LASHINSKY (#003073)
United States Trustee
District of Arizona
RICHARD J. CUELLAR (#WI 01006631)
230 North First Avenue, Suite 204
Phoenix, Arizona 85003-1706
602.682.2600
EDWARD J. MANEY, Esq. (#012256)
Chapter 13 trustee
P.O. Box 10434
Phoenix, AZ 85064
(602) 277-3776 Ext. 213
ejm@maney13trustee.com
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ARIZONA
In re: ) CHAPTER 11
)
LARRY E. SMITH and ) Case No. 2-09-bk-21133-RTB
JOHNETTE E. SMITH )
) Adv. No. 2-10-ap-00988-RTB
Debtors. )
)
UNITED STATES TRUSTEE and )
EDWARD J. MANEY, )
Chapter 13, trustee, )
Plaintiffs, ) AMENDED COMPLAINT FOR SANCTIONS
v. ) AGAINST NASSER U. ABUJBARAH
)
NASSER U. ABUJBARAH )
)
Defendant. )
The United States Trustee, by and through her counsel, Richard J. Cuellar, and Edward
J. Maney, chapter 13 trustee, Plaintiffs, for their Complaint, respectfully allege the following:

I. JURISDICTION AND PARTIES
1. This is a proceeding over which this Court has jurisdiction pursuant to 28 U.S.C.
§§ 157(b)(1) and 1334.
2. Venue is proper pursuant to 28 U.S.C. § 1409.
3. This Court has authority to grant the relief requested pursuant to Rule 9011,
Federal Rules of Bankruptcy Procedure, Rule 9011-1, Local Rules of Bankruptcy Procedure adopted by General Order No. 67, 11 U.S.C. § 105 and the Court’s inherent authority to regulate the attorneys who practice before it.
4. The United States Trustee, plaintiff herein, has the statutory responsibility, pursuant to 28 U.S.C. § 586, among other things, to supervise the administration of cases filed in the United States Bankruptcy Court and, pursuant to 11 U.S.C. § 307, may raise and may appear and be heard on any issue in any case or proceeding under title 11, United States Code.
5. Edward J. Maney, chapter 13 trustee, plaintiff herein, (hereinafter referred to as “Maney”) is a duly appointed and now serving standing trustee with the responsibility of administering chapter 13 cases assigned to him. Maney filed an application for Order to Show Cause requesting, among other things, sanctions against Nasser U. Abujbarah. At the initial hearing on the Order to Show Cause, the parties hereto, for purposes of judicial economy and to limit costs and expenses, agreed to have the allegations in the Application for Order to Show Cause incorporated into this adversary proceeding and to join Maney as a plaintiff herein. The Court approved the stipulation of the parties.
6. Nasser U. Abujbarah (hereinafter referred to as “Abujbarah”) is a resident of the State of Arizona and practices bankruptcy law in the United States Bankruptcy Court for the District of Arizona.
7. Abujbarah is, and at all times relevant hereto, was a member of the State Bar of Arizona, having been admitted to practice law in Arizona on October 21, 2008.
8. Abujbarah is, and at all times relevant hereto, was a member of the federal bar having been admitted to practice before the United States District Court for the District of Arizona on May 18, 2009.
II. GENERAL
9. On May 21, 2009, Abujbarah filed his first petition in bankruptcy in In re Rundle, case no. 2-09-bk-11111-SSC, a chapter 11 proceeding.
10. Abujbarah’s first chapter 13 case, In re Almanza, case no. 2-09-bk-11882-SSC, was filed May 29, 2009. The case was dismissed for numerous deficiencies on October 7, 2009.
11. Abujbarah’s first chapter 7 case, In re Pisanelli, case no. 2-09-bk-20363-RJH was filed August 23, 2009.
12. From May 21, 2009 through April 19, 2010, Abujbarah has filed 258 bankruptcy cases of which 57 are chapter 11 cases, 15 are 7 cases and the remainder are chapter 13 cases. Some of the chapter 11 cases originally were filed as chapter 13 cases and some of the chapter 7 cases originally were filed as chapter 13 cases.
13. On information and belief, none of the chapter 13 plans filed by Abujbarah has been approved nor have any chapter 11 plans of reorganization been confirmed.
14. Prior to filing his first bankruptcy case in Rundle, Abujbarah participated in 9 chapter 13 cases that were filed on a pro se basis. The debtors in the 9 cases had retained Sellectricon, LLC (hereinafter referred to as “Sellectricon”) to seek modification of their mortgages and were advised by Sellectricon to file chapter 13. At the time, Abujbarah was under contract to provide legal services to Sellectricon. When motions to lift the automatic stays were filed in the 9 cases, Abujbarah filed responses and, on information and belief, billed Sellectricon for such services.
15. Over the short course of his bankruptcy practice, Abujbarah has exhibited a pattern of:
A. incompetence, negligence and failure to diligently represent clients;
B. asserting claims, defenses and other legal contentions not warranted or supported either by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
C. presenting or denying factual allegations and other factual contentions that have no evidentiary support;
D. violations of bankruptcy code provisions prohibiting fee sharing;
E. assisting non-lawyers in the practice of law in bankruptcy cases;
F. filing false claims;
G. conflicts of interest.
III. INCOMPETENCE, NEGLIGENCE AND FAILURE TO DILIGENTLY REPRESENT CLIENTS
16. In virtually every case filed by Abujbarah, schedules and statements are not properly completed and numerous errors, omissions and misstatements exist. For example, in the case of In re Mejia, case no. 2-09-bk-9223-GBN, the debtor’s name is spelled incorrectly on the petition, a prior ch. 13 case, filed by Abujbarah for the debtor, is not listed on the petition, life insurance is not reported on schedule B and rental income is not included on schedule I. In the case of In re Graham, case no. 2-10-bk-9614-RTB, absolutely no assets are listed on schedule B including wearing apparel, no income is listed at item 1 of the Statement of Financial Affairs (hereinafter referred to as the “SOFA”) even though schedule I shows the debtor is employed, item 9 of the SOFA indicates no payments were made to Abujbarah for representation in the case and the statement of intention indicates both that the debtor intends to retain her residence by reaffirming the debt and to surrender her residence.
17. In a response to a motion to convert or dismiss a chapter 11 case, Abujbarah stated, “Inaccurate information occurs in a substantial number of bankruptcy schedules, or certain information is omitted, thus corrections are made there is no intent to miss lead the Court and/or creditors.” (sic) See In re Neiswender, case no. 2-09-bk-18916-CGC, docket no. 69 at page 2.
18. A meeting of creditors was scheduled in Tucson for March 11, 2010 in the case
of In re Ventura, case no. 4-09-bk-32134-JMM. The meeting was properly noticed to all interested parties including Abujbarah who is attorney for the debtors therein. Debtors, traveling from their home in Casa Grande, appeared but Abujbarah did not appear. The meeting was continued to March 25, 2010 requiring the debtors to make another journey to Tucson.
19. On information and belief, Abujbarah has advised his clients to cease payment of mortgages and vehicle purchase agreements upon the filing of the petition resulting in stay relief being granted and loss of real and personal property to the secured creditors.
20. On information and belief, Abujbarah did not know he was required to seek
approval to be appointed as attorney for debtors in chapter 11 cases. Although Abujbarah had 10 pending chapter 11 cases by the end of August, 2009, he did not file any applications until after several direct demands by staff of the Office of the United States Trustee.
21. Abujbarah admitted in open Court that he was unaware that he is required to seek approval of compensation in chapter 11 cases and asserted that it was his understanding that a statement filed pursuant to F.R.B.P. 2016(b) justified application of retainer funds to his compensation. On information and belief, Abujbarah applied the retainers received in all chapter 11 cases to his fees without Court authority.
22. The United States Trustee conducts an Initial Debtor Interview (hereinafter referred
to as the “IDI”) in every chapter 11 case. Prior to the IDI, correspondence is sent to debtor’s attorney concerning issues to be discussed and documents to be produced at the IDI. Abujbarah inevitably fails to produce all the requested documents in a timely fashion, has failed to appear for scheduled IDIs, has appeared and been unfamiliar with the case, and, on numerous occasions, requested rescheduling on very short notice.
23. Local Rule 9011-1 makes the Rules of Professional Conduct as set forth in Rule
42 of the Rules of the Supreme Court of the State of Arizona (hereinafter referred to as the “Bar Rules”) applicable to attorneys who file any pleading or document or who are heard in any matter before the Bankruptcy Court.
24. Bar Rules provide that an attorney has an ethical duty to provide competent representation which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. [E.R 1.1] The very first petition in bankruptcy filed on behalf of a client of Abujbarah was in a chapter 11 case. Abujbarah had no experience in chapter 11 proceedings at the time although the application to employ attorney eventually filed by him provides that Abujbarah “is experienced in Bankruptcy practice and Chapter 11 proceedings.” Abujbarah has failed in every instance to exhibit the level of legal knowledge and skill reasonably necessary for the representation of a chapter 11 debtor.
The preparation of schedules and statements has been considerably less than thorough. In chapter 11 cases, Abujbarah consistently failed to schedule hearings when appropriate and he failed to properly notice hearings when set.
25. Virtually all of Abujbarah’s bankruptcy cases, whether chapter 11 or chapter 13, involve similar issues, i.e., individuals seeking to retain real estate. Despite the seemingly clear Bankruptcy Code prohibitions against modifying the rights of holders of claims secured only by the debtors’ principal residence, on information and belief, Abujbarah has informed his clients that he will be able to modify the rights of such holders.
26. Bar Rules provide that an attorney has an ethical duty to render candid advice. E.R.
2.1 Abujbarah may have misinformed his clients leading them to believe that he would be able to modify the rights of holders of claims secured by a first mortgage on their residences. It appears Abujbarah may have instructed his clients, possibly to their detriment, to cease making post-petition payments on such mortgages. Abujbarah did not fully inform his clients that he intended to seek a change to or modification of the current law, the likely process for the challenge and the ramifications thereof. Testimony of Abujbarah’s clients at meetings of creditors indicates that they do not understand the process or what is at stake.
27. Further evidence of incompetence is the fact that Abujbarah contacted the United States Trustee in In re Jonas, d/b/a Alba Investment Group, LLC, case no. 2-09-bk-31285-GBN, requesting the United States Trustee to “aid the estate in essentially rescinding the receivership in bankruptcy court.” Clearly, Abujbarah did not have the legal knowledge or skill reasonably necessary to provide representation to the Debtor in Possession.

IV. ASSERTING CLAIMS, DEFENSES AND OTHER LEGAL CONTENTIONS NOT WARRANTED BY EXISTING LAW OR BY A NONFRIVOLOUS ARGUMENT FOR THE EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING LAW OR THE ESTABLISHMENT OF NEW LAW

28. As mentioned, virtually all of Abujbarah’s bankruptcy cases, whether chapter 11 or chapter 13, involve similar issues, i.e., individuals seeking to retain real estate. The Bankruptcy Code prohibitions against modifying the rights of holders of claims secured only by the debtors’ principal residence is clear. Regardless of the clarity of the law, Abujbarah has repeatedly filed pleadings asserting that the Bankruptcy Court has the authority to modify the rights of holders of claims secured only by the debtors’ principal residence.
29. The first pleading of any kind filed by Abujbarah in a bankruptcy case was filed on May 22, 2009 in In re Hernandez, case no. 2-09-bk-03247-SSC. The pleading, an objection to a motion for relief from stay, asserts, among other things, that “In a Chapter 13 reorganization there is an irrefutable presumption created that the debtor’s home is necessary to effectively reorganize where the debtor’s primary purpose in filing the Chapter 13 petition is to save debtor’s home.” Such assertion is not supported by existing law and, in fact, Abujbarah cites no authority for his assertion. In a Motion for Rule 3012 Valuation of Real Property filed in Hernandez, Abujbarah cites United Savings Association of Texas v. Timbers of Inwood Forest Associates Ltd., 108 S.Ct. 626, 484 U.S. 365, 98 L. Ed. 2d 740, for the proposition that “there would be no reason for a Chapter 13 reorganization without the residence.” Nowhere does the Timbers case refer to chapter 13 reorganization or a residence in that context. The “Valuation” motion goes on to argue that the Court should apply 11 U.S.C. § 506 to bifurcate the secured creditor’s claim even though the claim is secured only by the debtors’ principal residence which 11 U.S.C. § 1322(b)(2) excludes from such modification.
30. In the second pleading filed by Abujbarah, he made a frivolous argument for new law in an Objection to Motion for Relief from the Automatic Stay filed in the case of In re Khamis, case no. 2-09-bk-02344-RTB. In Khamis, Abujbarah argues the following in seeking to have the Court ignore 11 U.S.C. § 1322(b)(2): Law is the benchmark of society and now society comes before the Court with an urgent need for the Court to make new law. The current economic occurrence, the real estate market having collapsed has caused a great burden upon the “wage earner” to find a means of keeping the primary real property. The American judicial system has always protected the “castle.” The judicial system, while separate in power from Congress is still part of the government which the people may petition.
. . .
Historically, the law has allowed one to protect his home by reasonable force. But the application of Section 1322(2) now allows predatory practices and bad faith actions by undersecured mortgage holders to take the “castle.”
(sic).
31. Time and again in every bankruptcy case in which Abujbarah provides representation and a motion for relief from stay on a claim secured only by the residence of the debtor has been filed, Abujbarah has argued that the Court may ignore the specific language of 11 U.S.C. §§ 1123(b)(5) or 1322(b)(2) and modify the rights of such claim holders. Abujbarah continues to make the same argument even after being informed by various parties, chapter 13 trustees and the United States Trustee that the arguments are invalid, unwarranted or wrong.
32. Abujbarah has asserted in a pleading filed in In re Neiswender, case no. 2-09-bk-
18916-CGC, that, “ . . . the U.S. Trustee duties and powers is to help the Debtor-in-Possession to reorganize his business and personal financial status.” (sic). See Debtors’ Objection to United States Trustee’s Motion to Dismiss or Convert. There is no basis in law for such assertion.
V. PRESENTING OR DENYING FACTUAL ALLEGATIONS AND OTHER FACTUAL CONTENTIONS THAT HAVE NO EVIDENTIARY SUPPORT
33. Many of Abujbarah’s responses to motions for relief of the automatic stay on real property allege that the movant lacks standing based on the fact that the movant is not the holder in due course of the note. For example, in In re Slikker, case no. 2-09-bk-30245-CGC, two motions for relief from stay were filed. The first (at Docket No. 32) is a motion concerning the debtor’s residence. Abujbarah’s response (at Docket No. 39) alleges lack of standing and asserts that the movant did not comply with local rule 4001-1(b) and that the debtor has been making post-petition payments to the trustee. The allegation of lack of standing has no evidentiary support and Abujbarah did not make reasonable inquiry into the facts prior to making such allegation. The movant did, in fact, comply with local rule 4001-1(b) and filed a certification of such compliance (at Docket No. 34) prior to the submission of Abujbarah’s response. Finally, the debtor could not have been making post-petition payments to the trustee because the debtor is a debtor-in-possession. The second motion for relief was filed by a creditor asserting that it is the holder of the note and the beneficiary under the deed of trust (at docket no. 41). Abujbarah, without making reasonable inquiry into the facts to determine whether the movant is the holder in due course, filed a response (at docket no. 43) asserting the creditor is not the true holder of the note, that the movant did not comply with local rule 4001-1(b) and that the debtor was making post-petition payments to the trustee: the response is exactly the same as the response to the other motion for relief with only the secured creditors’ name and the common address of the property in the caption being changed. Because the subject property is not the residence of the debtor, local rule 4001-1(b) does not apply and there has been no trustee appointed in the case. In all similar situations in his cases, whether chapter 11 or chapter 13, Abujbarah has filed the same response and, as it has turned out in every instance to date, the movant is the proper party.
34. In In re Rundle, Abujbarah included in his response to a motion to lift stay on a vehicle that the creditor did not comply with local rule 400-1(b). The local rule is not applicable.
35. Abujbarah has filed disclosures of compensation in chapter 11 cases. Each and every disclosure filed provides: “Prior to the filing of this statement I have received [specified amount]” and, “The source of the compensation paid to me was the Debtor.” In In re Callahan, case no. 2-09-bk-19765-CGC, Abujbarah disclosed that he had received $1,500 from the debtor. In response to an inquiry from the United States Trustee, Abujbarah stated in a letter dated October 6, 2009, and in reference to the Callahan case, the “Amount remaining as a retainer for post-petition services – $3500.” In the letter referenced in the following paragraph, Abujbarah informed the United States Trustee that he received $836 in the Callahan case. The United States Trustee suspected that Abujbarah had applied pre-petition retainers in chapter 11 cases to his fees without first applying for court approval. This suspicion was confirmed in open court when Abujbarah admitted to doing so (it was at this time that Abujbarah informed the court that he believed the 2016(b) statement was sufficient to apply retainers to his fees – see paragraph 21 above). The Court, in In re Neiswender, case no. 2-09-bk-18916-CGC, ordered Abujbarah to reimburse the retainer and place it in an IOLTA account. To ensure conformity with the order, the United States Trustee sent a letter to Abujbarah requesting, among other things, an accounting of funds received as retainers and verification that such funds have been placed in an IOLTA account. Abujbarah responded by letter on April 30, 2010 that the amounts disclosed as received by him from the debtors in all the chapter 11 cases were not actually received by him and that the amounts received were paid by Sellectricon, LLC or Executive Real Estate Solutions, LLC. So, in the Callahan case referenced above, even though Abujbarah filed a document with the Court asserting he had received $1,500 from the debtor, and even though Abujbarah wrote in a letter to the United States Trustee that he had received $3,500 from the debtor, Abujbarah now says he only received $836, not from the debtor, but from a third party. Likewise, in In re Zaia, 2-09-bk-20214-CGC, Abujbarah disclosed to the Court that he received $4,995 from the debtor. In his April 30, 2010 letter to the United States Trustee, Abujbarah says he received $924 from a third party. In fact, Abujbarah now asserts that every disclosure of compensation statement filed in his chapter 11 cases is false. And Abujbarah has provide absolutely no evidence that money received for chapter 11 retainers has been deposited into an IOLTA account.
VI. VIOLATION OF BANKRUPTCY CODE PROVISIONS PROHIBITING FEE SHARING

36. On information and belief, in or around March, 2009, Abujbarah entered into an
agreement with Sellectricon to provide legal representation to and for Sellectricon in a capacity that the parties to the agreement referred to as “in-house counsel.”
37. Sellectricon is a Canadian corporation registered with the Arizona Corporation Commission on or about January 28, 2009 and is owned and operated by Terry Daley, “hereinafter referred to as “Daley”), a Canadian citizen residing in the State of Arizona.
38. Sellectricon’s business involves promises of loan modification and/or debt reduction; customers were solicited by Daley and associated entities and individuals when the customers’ homes were subject to foreclosure and they were promised that the principal mortgage on their homes would be reduced to the current value of the home.
39. The entities and individuals feeding clients to Sellectricon include No BS Mortgage Solutions, Sterling Loan Modification, Start Again, LLC, CramDown Resources of America,
Executive Real Estate Solutions, Nexus Home Solutions, LLC, Home Retention, Lydia Renteria, Vincent Abramo, Juan Espinoza and Kent Axtell.
40. Most of Sellectricon’s clients, after paying exorbitant fees, some in excess of $8,000, and failing to obtain a modification of their loans or reduction of debts, are steered into bankruptcy with the promise that the principal mortgage on their homes would be reduced to the current value of the home.
41. Based on a review of solicitations for clients and procedures, it appears that shuttling clients into bankruptcy is the main goal of Sellectricon.
42. Sellectricon’s business included pre-bankruptcy planning and it required all new customers to fill out a bankruptcy worksheet providing information for the petition, schedules and statements to be filed in bankruptcy.
43. In the early stages of Sellectricon’s business, its customers filed bankruptcy without counsel and, in all cases, under chapter 13. From February 11, 2009 through May 20, 2009, 9 Sellectricon customers filed pro se petitions under chapter 13.
44. When legal issues such as motions for relief or objections to plans were filed, Abujbarah, as Sellectricon’s in-house counsel, would provide legal representation to the debtors and bill Sellectricon on an hourly rate for the services provided to the debtors. For example, in In re Khamis, Case no. 2-09-bk-03247-RTB, Abujbarah billed Sellectricon as follows:
6/4/2009 Notice of filing objection 0.6
Objection 1.7
Proposed order maintaining stay 0.7
6/7/2009 Review Bev’s motion and make edits 4.2
6/8/2009 Amended motion 0.5
8/11/2009 Trial prep 3.9
8/12/2009 Prelim. Hearing 1
9/16/2009 Telephone conference with trustee 1
& motion for extension
9/28/2009 Discussion with opposing counsel 0.4
5/20/2009 Draft motion 0.6
10/14/2009 Preliminary hearing 1.1
Moratorium 1.3
45. Abujbarah did not file a disclosure of compensation in the Khamis case nor did
he, at any time, disclose that he was providing the debtor representation as in-house counsel to Sellectricon. Instead, Abujbarah filed a Notice of Appearance indicating that he “has been retained by the debtor” when in fact he was retained by Sellectricon.
46. Abujbarah billed Sellectricon in many other bankruptcy cases including in chapter 11 cases. Purportedly, Sellectricon paid Abujbarah with the funds received from its customers prior to the bankruptcy filing. Through April 19, 2010, every retainer received by Abujbarah in chapter 11 cases came from Sellectricon. The process is that the entity or individual associated with Sellectricon solicits customers and charges a fee. A portion of the fee is transferred to Sellectricon who provides the prebankruptcy planning and gathers information necessary to file a bankruptcy petition. Sellectricon then pays Abujbarah a portion of its share for representation of the debtor in bankruptcy proceedings.

VII. ASSISTING NON-LAWYERS IN THE PRACTICE OF LAW IN BANKRUPTCY CASES
47. Through his association with Sellectricon and the various associated entities and individuals, none of whom are attorneys admitted to practice law, Abujbarah assisted those entities and individuals in the practice of law.
48. In addition, Abujbarah assisted Beverly Hall (hereinafter referred to as “Hall”), a de-certified legal document preparer, in the practice of law.
49. In some cases, Sellectricon referred its customers to Hall to prepare the petition, schedules and statements as well as chapter 13 plans to be filed in bankruptcy. Hall had access to the worksheets completed by Sellectricon’s customers to accomplish the tasks. In the 9 bankruptcy cases filed by Sellectricon customers on a pro se basis, Hall assisted the debtors in doing so even though she did not properly disclose her role as a bankruptcy petition preparer in all those cases.
50. Once Abujbarah began representation of the debtors in the 9 pro se cases, both Hall and Sellectricon continued providing legal services to the debtors with Abujbarah’s knowledge, consent and assistance. For example, in the Khamis case, the notice of appearance filed by Abujbarah says, “Please also be advised that Beverly Hall is an agent of the above mentioned attorney.”
51. Abujbarah assisted in drafting the forms and bankruptcy worksheets provided by his client, Sellectricon, to its new customers.
52. Sellectricon informed its customers that use of their “in-house counsel,” i.e., Abujbarah, was a matter of convenience for the customers because documents could then be filed under Abujbarah’s electronic case filing password and the customers would not have go to the courthouse to file documents.
53. After a petition was filed by Abujbarah as attorney for the debtor, whether in chapter 11 or chapter 13 cases, Sellectricon would continue to provide services to the debtors. Postpetition, Sellectricon would negotiate with creditors, monitor for violations of the automatic stay and review correspondence from creditors to debtors. Sellectricon also acted under Abujbarah’s direction to inform creditors to cease and desist collection efforts and instructions to debtors of what to expect after the petition is filed.
54. By assisting non-lawyers as detailed above, Abujbarah has violated E.R. 5.5 which
provides, “A lawyer shall not assist another in the unauthorized practice of law.”

VII. FALSE CLAIMS AND CONFLICTS

55. In many chapter 13 cases, Abujbarah would include Sellectricon in the proposed plan as an administrative claimant.
56. Sellectricon’s fee agreement with its customers included, among other things, a provision for continuing administrative fees generally in the amount of $99 per month.
57. Sellectricon’s post-petition fees do not fall within any category under 11 U.S.C. § 503.
58. By including Sellectricon’s putative post-petition claims as administrative claims, Abujbarah essentially filed false claims on behalf of his client, Sellectricon, against his client, the debtor.
59. Bar Rules provide that an attorney has an ethical duty not to represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. E.R. 1.7 Abujbarah was retained by Sellectricon to represent it as “in-house counsel.” Abujbarah then undertook representation of Sellectricon’s customers and included in their chapter 13 plans what he classified as administrative claims of Sellectricon which claims are neither administrative in nature nor legitimate claims. Such actions were directly adverse to the bankruptcy debtors. In addition, Abujbarah took legal direction from Sellectricon in his representation of bankruptcy clients by deferring to the advice given to them by Sellectricon, to wit: that the Bankruptcy Code would allow the cram down of the first mortgages on their homes to the current value of the homes and to discontinue making mortgage payments and/or payments on vehicles.
60. Abujbarah’s involvement with Sellectricon and with other entities brings into question his associations with non-lawyers relative to ensuring that the non-lawyers’ conduct is compatible with the professional obligations of the lawyer and may be in violation of E.R. 5.3.
61. Further, because Abujbarah was aware of and consented to Sellectricon’s assertions to its customers that Abujbarah was part of Sellectricon’s legal team, as well as agreeing to the sharing of fees, Abujbarah entered into a de-facto partnership with Sellectricon the activities of which included the practice of law.
62. The association of Abujbarah and Sellectricon was so entwined that Sellectricon developed a case management system for tracking actions taken in bankruptcy cases in which Abujbarah is or was attorney of record. The system is located at www.principalreductionportal.com and is accessible only with a password. Copies of numerous documents obtained from the case management system will be produced as evidence herein.
63. A lawyer shall not form a partnership with a non-lawyer if any of the activities of the
partnership include the practice of law. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. E.R. 5.4
64. By his association with Sellectricon, Abujbarah violated E.R. 5.4.
65. By letter dated March 10, 2010, the United States Trustee expressed concerns to
Abujbarah relative to possible ethical violations, Abujbarah’s knowledge and competence as well as his case load, which, at the time was approximately 157 chapter 13 cases and approximately 41 chapter 11 cases. It was suggested that it may be appropriate for Abujbarah to focus on the then pending cases and gain further experience rather than continuing to increase his case load. Abujbarah responded on March 12, 2010 indicating he would scale back to accepting 4-5 new chapter 13 cases and 1-2 chapter 11 cases per month. By April 19, 2010, however, Abujbarah had filed 60 new bankruptcy cases.
66. Abujbarah has been provided numerous opportunities to develop the skills and knowledge reasonably necessary to provide adequate and competent representation to his bankruptcy clients. His failure to do so is manifested by, among other things, the fact that, in his cases, not one chapter 13 plan has been approved, not one chapter 11 plan has been confirmed, not one motion for relief has been successfully contested and as a result, people have lost their homes even though Abujbarah and Sellectricon had promised they would be able to cram down the loans on them under bankruptcy law.
VIII. FALSE OATH, FALSE CERTIFICATION, FALSIFICATION OF DOCUMENTS AND
VIOLATIONS OF 11 U.S.C. §§ 526, 527 AND 528
67. On March 16, 2010, a voluntary petition was filed by Abujbarah commencing the
bankruptcy case of Addison and Sherri White, case no. 2-10-bk-07150-RTB.
68. Exhibit B on the petition provides the following:
I, the attorney for the petitioner named in the foregoing petition, declare that I have
informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title
11, United States Code, and have explained the relief available under each such chapter.
I further certify that I delivered to the debtor the notice required by 11 U.S.C. § 342(b).
69. Exhibit B to the said petition has the signature of Abujbarah and Abujbarah also signed the petition as attorney for the debtors.
70. The said petition indicates that it has been signed under penalty of perjury by Addison and Sherri White.
71. Various exhibits, schedules and statements accompanying the petition and other documents filed in the case also indicate that Addison and Sherri White signed the documents under penalty of perjury.
72. The petition indicates that the Whites have not filed a bankruptcy case within the last 8 years. In fact, the Whites had a pending bankruptcy case at the time that Abujbarah filed a petition without their knowledge. The case is In re Addison and Sherri White, case no. 2-09-bk-33035-RTB filed on December 22, 2009.
73. The statement of financial affairs filed by Abujbarah in the White case, at item 9, discloses that the Whites paid Abujbarah for representation in bankruptcy $1,250 on October 9, 2009, $1,000 on November 1, 2009 and $2,000 on December 1, 2009. Information at the said item Abujbarah failed to disclose is $6,500 paid to Kent Axtell and/or Executive Real Estate Solutions, a non-attorney bankruptcy petition preparer, for consultation concerning debt consolidation or relief under the bankruptcy law.
74. Abujbarah filed a disclosure of compensation statement in the White case certifying that he is the attorney for the Whites and that they paid him $4,000 for services rendered or to be rendered in the bankruptcy case.
75. Prior to the filing of the petition in the White case, Abujbarah had never met, spoken
to or consulted with Addison or Sherri White.
76. The Whites never signed any of the documents filed by Abujbarah.
77. The Whites never paid Abujbarah any money.
78. The Whites never authorized Abujbarah to file a petition in bankruptcy on their behalf.
79. The Whites never retained Abujbarah to represent them in any capacity.
80. Information used to complete all the documents filed by Abujbarah in the White case
was provided to Abujbarah by Kent Axtell.
81. The $4,000 paid as disclosed by Abujbarah was paid to Abujbarah by Kent Axtell.
82. The Whites were unaware of the filing of the petition in bankruptcy by Abujbarah.
83. The petition filed by Abujbarah while another case was pending caused City of Mesa and Salt River Project to demand additional deposits which the Whites had to pay. Additionally, the Whites’ bank account was closed and they did not receive pension funds which were to be deposited directly into the account that was closed.
84. Abujbarah is a debt relief agency as that term is defined at 11 U.S.C. § 101(12A).
85. Abujbarah has failed to perform a service that he informed assisted persons or
prospective assisted persons that he would provide in connection with a bankruptcy case.
86. Abujbarah has made statements in documents filed in bankruptcy cases that are untrue and misleading, or that upon the exercise of reasonable care, should have been known by Abujbarah to be untrue or misleading.
87. Abujbarah misrepresented to assisted persons or prospective assisted persons the benefits and risks that may result if such person becomes a debtor in a bankruptcy case.
88. Abujbarah’s errors, omissions, misrepresentations and other defalcations were, at best, negligent and, at worst, intentional.
89. Abujbarah has provided bankruptcy assistance to an assisted person in a bankruptcy case that was dismissed because of his intentional or negligent failure to file required documents.
90. Abujbarah failed to provide the Whites with any pre-bankruptcy disclosures as required pursuant to 11 U.S.C. § 527.
91. Abujbarah failed to obtain a written fee agreement with the Whites as required pursuant to 11 U.S.C. § 528.
WHEREFORE, the United States Trustee and Edward J. Maney, chapter 13 trustee, Plaintiffs herein, respectfully request that the court grant the following relief:
1. Issue an injunction prohibiting Nasser U. Abujbarah from practicing law in the United States Bankruptcy Court for the District of Arizona.
2. Disgorgement of fees.
3. Payment of a penalty to the Court.
4. For whatever other relief the Court deems just, appropriate or necessary.
RESPECTFULLY SUBMITTED THIS 15th day of June. 2010.
ILENE J. LASHINSKY
United States Trustee EDWARD J. MANEY
District of Arizona Chapter 13 trustee
/s/ RJC (#WI 01006631) EJM #012256
RICHARD J. CUELLAR EDWARD J. MANEY
Chapter 13 trustee

Have a nice day…

Arek — Tue, 28 Dec 2010 06:21:11 +0000

When in doubt, blow it up