UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW MEXICO In re: JEFFERY WATSON POTTER No. 05-14071-s7 Debtor.
YVETTE GONZALEZ, TRUSTEE Plaintiff, Adversary No. 11-1042-s V. MARTIN S FRIEDLANDER, RICHARD P COOK, EL LLANO COMPANY, INC., SARCO. INC, VALLEY NATIONAL BANK, PHASE ONE REALTY, INC., W. JAMES METHANY, ERNEST ROMERO, LOS ALAMOS NATIONAL BANK, AND ROBERT ENGEL Defendants, ______________________________________________________________________ ALL CROSS COMPLAINANTS AND COUNTER CLAIMANT WHO HAVE FILED ANSWERS, COUNTER CLAIMS AND CROSS COMPLAINTS, ET AL.
FRIEDLANDER’S REPLY TO OBJECTIONS OF GONZALES, COOK, AND VALLEY NATIONAL BANK TO FRIEDLANDER’S EMERGENCY MOTION TO APPOINT A MEDIATOR TO CONDUCT A SETTLEMENT CONFERENCE AMONG ALL PARTIES IN THE ABOVE TITLED PROCEEDING TO CONDUCT A SETTLEMENT CONFERENCE THAT INCLUDES (DOES NOT EXCLUDE FRIEDLANDER) SECURED CREDITOR FRIEDLANDER ON THE INITIAL COMPLAINT FILED BY TRUSTEE, ALL COUNTERCLAIMANTS, AND CROSSCOMPLAINTS IN THIS ENTIRE ADVERSARY PROCEEDING FOR LACK OF JURISDICTION; FOR A STAY OF THIS ENTIRE ADVERSARY PROCEEDING; AND FOR A STAY OF THE NEW ADVERSARY PROCEEDING JUST FILED BY TRUSTEE, NAMING FRIEDLANDER AS A DEFENDANT IN THAT NEW ADVERSARY PROCEEDING IN WHICH FRIEDLANDER WOULD MOVE FOR A CONSOLIDATION OF BOTH PROCEEDINGS. BRIEF STATEMENT OF RESPONSE 1. ALL OF THE PARTIES TO THE EXTANT SETTLEMENT AGREEMENT ENTERED INTO A FRAUDULENT CONSPIRACY TO DEPRIVE ME OF MY CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AS TO MY LIEN 1
RIGHTS ON PROPERTY OF THE ESTATE, WHICH IS THE SUBJECT MATTER OF THE SETTLEMENT. I WAS CHEATED AND I DO NOT SUFFER CHEATERS LIGHTLY. THIS IS ALL THE WAY FOR ME. THAT IS WHY I ATTACHED MY RESUME PREPARED IN 2007 TO SHOW MY QUALIFICATIONS TO SEEK VINDICATION AND JUSTICE. SHARP PRACTICE OF LAWYERS MUST BE DISCOURAGED BY EXAMPLE. THAT IS WHY I WISH TO AMEND MY COMPLAINT TO CHARGE LAWYERS WITH CONSPIRACY TO DEFRAUD ME. THAT IS DEFINITELY A MATTER FOR AN ARTICLE III JUDGE. I TRUST JUDGE BROWNING AS I APPEARED PERSONALLY BEFORE HIM MANY TIMES. 2. EACH OF MY OPPONENTS INTENTIONALLY, AND WITH MALICE AFORETHOUGHT, FILED A MOTION FOR A MEDIATOR IN A STATE COURT CASE IN WHICH I WAS NOT A PARTY SINCE I WITHDREW AS A PARTY AS A RESULT OF THE SETTLEMENT I MADE WITH GONZALES IN GOOD FAITH. ALL OF THE ATTORNEYS FOR GONZALES, COOK, AND VALLEY NATIONAL BANK ARE COMPLICIT AND I WISH TO AMEND MY THIRD PARTY COMPLAINT TO NAME THEM AS INDIVIDUAL DEFENDANTS WITH A CIVIL RIGHTS ACTION THROWN IN FOR GOOD MEASURE. THE STATE ACTION IS THE ORDER OF THE STATE COURT JUDGE AND THE MOTION FILED BY GONZALES TO THIS COURT TO APPROVE A SETTLEMENT OBTAINED IN VIOLATION OF MY CIVIL RIGHTS. I HAVE LITIGATED THESE CASES BEFORE. GONZALES HAS NO IMMUNITY AND I WILL SUBMIT AUTHORITY TO SUPPORT MY POSITION.
3. IF THESE PARTIES WISHED TO HAVE A MEDIATOR APPOINTED THEY SHOULD HAVE FILED A NOTICE OF MOTION TO THE BANKRUPTCY COURT WHICH HAD SUBJECT MATTER JURISDICTION OF ALL OF THE ASSETS OF THE ESTATE. INSTEAD THEY CIRCUMVENTED THE BANKRUPTCY CODE AND RULES TO SEEK A MEDIATOR APPOINTED, WITHOUT NOTICE TO ME AND AN OPPORTUNITY TO BE HEARD. THEN THEY FILED A MOTION TO HAVE THAT STATE COURT MEDIATORS FEES PAID BY THE BANKRUPTCY ESTATE. I WAS PRECLUDED FROM OBJECTING DUE TO THE TERMS OF MY SETTLEMENT. THIS BANKRUPTCY COURT ERRED BY APPROVING MEDIATOR FEES INCURRED BY A MEDIATOR BY A STATE COURT JUDGE. THE TRUSTEE SHOULD BE SURCHARGED FOR THOSE FEES. THE TRUSTEE HAD A DUTY TO DISCLOSE WHO, AND UNDER WHAT AUTHORITY, THE MEDIATORY WAS APPOINTED. SHE UNLAWFULLY AND INTENTIONALLY CAUSED A DISAPPATION OF ESTATE ASSETS SUBJECT TO HER REMOVAL AND PERSONAL SURCHARGED OF HER AND HER ATTORNEYS. THAT VIOLATED THE BANKRUPTCY CODE AND THE CONSTITUTION OF THE UNITED STATES. 4. FRIEDLANDER SEEKS THAT THE SETTLEMENT AGREEMENT THAT WAS MEDIATED WITHOUT NOTICE AND APPROVAL BY ME BE VOIDED AS A MATTER OF LAW, AND THAT A RETIRED JUDGE, NOT A “CRONY” LAWYER FROM NEW MEXICO WHO PROBABLY HAS RELATIONSHIPS WITH ALL THE LITIGANTS, BE APPOINTED MEDIATOR TO MEDIATE THE ENTIRE DISPUTE
BETWEEN THE PARTIES. I SUGGESTED THE FORMER JUDGE ON THIS CASE SINCE, EVEN THOUGH HE RULED AGAINST ME SEVERAL TIMES, I WAS WILLING TO PLACE MY TRUST IN A RETIRED JUDGE WHO KNOWS ALL OF THE DISPUTES AND ALL OF THE PARTIES. HOWEVER, IF THIS RETIRED JUDGE IS UNABLE OR UNWILLING TO SERVE, THEN I SEEK A RETIRED FEDERAL JUDGE TO BE APPOINTED MEDIATOR. THERE WAS A REASON FOR CHIEF JUSTICE ROBERTS SUBJECT MATTER DECISION WITH RESPECT TO ARTICLE III JUDGES. THEY ARE NOT SUBJECT TO POLITICAL PRESSURE. FACTS The email sent to me by the attorney for Gonzales who is grinding out attorney fees told me in no uncertain words that since I was not a party to the State Court Action in which the Mediator was appointed I was not entitled to Notice and a Right to be heard. This is an intentional violation of my due process rights under the 14th Amendment rendering Gonzales the principal, and all of her attorneys jointly and severally liable in damages to me. Later on I will cite to the record of those state court actions more facts than the email from Gonzales’ attorneys. Valley National Bank just filed an objection stating that “Martin Friedlander has and had no standing to participate in the resolution of the claims that were mediated and settled”. The attorney references “other parties to this proceeding”. That established my allegation of conspiracy. Common plan, with an overt act, and intentional wrongdoing. I have alleged and proved conspiracy many times in my 45 year career.
Cook asserts that I have no standing to assert claims or counterclaims against Cook because they were assigned to Gonzales. That is true so far as it goes. I also filed a Motion to Intervene on behalf of the Trustee. As a requirement of a motion to intervene I must submit a proposed pleading. The proposed pleading was filed against Cook and others. Thus a Court with subject matter jurisdiction must first rule on my Motion to Intervene and my Motion to Remove Gonzales as Trustee. Cook seeks denial of Friedlander’s motion solely on the standing issue as to Cook. THE RECORD 1. Valley National Bank v Potter D-101-CV-200300673. Case filed on 4/03/2003 by Valley National Bank. Complaint—“Debt and Money Due”. 5/22/2003. Potter’s Answer to Complaint on Promissory Notes and Defendant Potter’s Counterclaim and Third Party Complaint. 7/9/2003 Answer by Cook and El Llano to third party complaint. 10/23/2003 Entry of Benjamin Silva as attorney for Potter. Silva was my local counsel to enable Friedlander to appear pro hac vice. 2/17/2004. Defendant’s Opposition to Motion For Summary Judgment. 4/20/2004. Friedlander entered his appearance. 4/13/2004. Schwartz my new local counsel enters our appearance for Potter. I reviewed both the complaint and the 3rd party complaint. Valley National Bank asserted no lien claim or that the promissory notes were secured. Cook was a founder and Director of VNB and owned 40% of the stock of VNB. Cook was a “controlling person”. 1/5/2005. Motion For Summary Judgment denied. 2/18/2005. Bregman enters appearance. 5/20/2005 Bregman files a Notice of Automatic Stay due to Potter bankruptcy. 10/4/2005. Removal to BK court
filed. No other entries shown on docket after 10/4/2005. This case is still pending as to the Complaint and 3rd Party Complaint. Gonzales has not entered an appearance. No judgment on anything. However, VNJ is an unsecured creditor receiving a portion of the moneys held by the State Court Receiver. Gonzales is agreeing to pay an unsecured creditor, VNB, in violating of the Bankruptcy Code. She committed a wilfull tort and violated the Code and she should be removed forthwith and be liable in damages to me in my counterclaims. I should be permitted to Intervene to replace a tortfeasor and her complicit attorneys. This VNB case can still be litigated in State Court. Shame on Gonzales and her attorneys. She should be reported to the US Trustee’s Office and the Department of Justice for violation of Title 18 of the USC. 2. Richard P Cook v El Llano Case No. D-101-CV-200301251. 11/17/2003 Friedlander’s application to be admitted pro hac vice. 4/20/2004. Friedlander enters his appearance. 9/14/2004 Friedlander files opposition to all pending matter. 11/2/2004 Order granting Schwartz motion to withdraw and Potter is pro se. 6/3/2005 Potter files Notice of Automatic Stay. 3/23/2009 Gonzales files Motion to Substitute as Party Defendant. 5/11/2009 Order of Referral to Settlement Conference. No notice of Motion filed and no Notice given Friedlander. 12/2/2009 Certificate of Compliance with Settlement Conference Order. Case still pending. Friedlander not given any notice of anything. 3. Bank of America v Potter D-101-CV-200400254. Case still pending. 11/13/2009. Notice filed by Bank of America regarding Mediation. Not served
on Friedlander. Potter’s house sold free and clear of liens. Bank contends that it has lien rights. Friedlander contends it does not. Friedlander has briefed this issue ad nauseum and opines that the Bank has no lien rights and that Potter has counterclaims and 3rd party complaints that should be filed and litigated. Banks lien is worthless since its merged liens were on lot 12 of three lots. Bank could not foreclosure because it would cause a lot split allegedly in violation of the CC&R. That makes the entire net sales proceeds either subject to the security of Friedlander’s lien or an unsecured claim. We are talking big money here. Gonzales does not have the ethics nor the capability of adjudicating those complicated lien issues. Friedlander does have the ethics and capability as he has fully briefed these issues as we speak. Gonzales would just do another give away of Estate assets. We have claims and counterclaims against the Bank up the wazoo. Neither Gonzales nor her attorneys have a clue as how to proceed. I do. Let me do it as an intervener after Gonzales is given her walking papers. MEMORANDUM OF LAW ON DUTIES OF TRUSTEE. When a Chapter 7 bankruptcy case is filed, an estate is created that is comprised of the debtor's legal or equitable interests in property that exist at that time. The United States Trustee then appoints a member of the panel of private trustees to serve as trustee in the case. As a representative of the bankruptcy estate, the trustee has a fiduciary obligation to protect the interests of all beneficiaries (i.e., all classes of creditors, including those holding secured, administrative, priority unsecured
and non-priority unsecured claims, as well as the debtor's interests in exemptions and any possible surplus property). Duties of the Trustee The overarching duty of the trustee is to collect and liquidate the property of the estate and to distribute the proceeds to creditors. The trustee's specific statutory duties, as set forth in Section 704 of the United States Bankruptcy Code, include the following: 1. To collect and reduce to money the property of the estate and close the estate as expeditiously as compatible with the best interests of the parties in interest; 2. To be accountable for all property received; 3. To ensure that the debtor performs his or her intention as to retaining or surrendering property of the estate that secures consumer debt; 4. To investigate the financial affairs of the debtor; 5. If a purpose would be served, to examine proofs of claims and object to any that are improper; 6. If advisable, to oppose the discharge of the debtor; 7. Unless the court orders otherwise, to furnish information concerning the estate and the estate's administration as requested by a party in interest; 8. If the debtor's business is authorized to continue operating, to file with the court appropriate reports and summaries, including a statement of receipts and disbursements; and
9. To file a final account of the administration of the estate with the United States Trustee and the court. THE TRUSTEE HAS BREACHED THOSE DUTIES. What are the consequences of that breach? I direct the Court’s attention to a very comprehensive analysis of the Bankruptcy Trustee Liability, discussing and criticizing the approach taken by the 10th Circuit as being out of step with all of the other circuits and the US Supreme Court. Yes the US Supreme Court that has created a whirlwind of controversy and major litigation in the billions of dollars in the major bankruptcies erupting throughout the US. The court will note that in my resume that I prepared in 2007 that I had a mission to accomplish a reform of the Bankruptcy Reform Act of 2005. 2007 was 1 year before the meltdown which I forecasted in 2007. The Act was put before Congress in 2009 and was filibustered by the GOP Senators and the Senate failed to obtain cloture by 1 vote to meet the 60 vote requirements. That is when Senator Durbin made that famous remark: “The Banks Own Us”. Believe me, they do. Residences should have been allowed to be put into bankruptcy with cram downs. Student loans that have accumulated to $1 Trillion should be dischargeable under certain prescribed circumstances. Deadlock in Congress, the President, and the Supreme Court as we “melt down” like the ice up in the North Pole. I cited an article written in the Lewis & Clark Law Review of 2/13/2011 by Elizabeth H McCullough, Associate Professor of Law, Charleston School of
law, entitled “BANKRUPTCY TRUSTEE LIABILITY: IS THERE A METHOD IN THE MADNESS.” I have read it and it goes through the entire history of Trustee Liability in the United States. It supports my position. It discusses immunity, wilfull, and intentional acts. As to Gonzales we are dealing with intentional acts, and I can prove it, but before which Court. That is one of the reasons I filed a Motion that this Court appoint a retired Federal Judge as a paid mediator as if there was no prior mediation by the parties’ crony. I reject any attorney recommended by any party to be a mediator. Everyone is connected in this small state. Even if it has to referred to an out of State Federal Judge if Judge McFeeley is not appointed as requested by me. I contemplated that since Judge McFeeley and I locked horns intellectually throughout the proceedings he would be acceptable to all. He is a Federal Judge and I respect his office, but have challenged certain of his decisions. WHY I SEEK A COURT APPOINTED MEDIATOR BY THIS COURT TO ATTEMPT RESOLUTION WITHOUT FURTHER LITIGATION I am 73 years old as of this date. I have not handled any legal matter on behalf of 3rd party clients for the past two years. I am presently engaged in very vigorous litigation in the Los Angeles State and Appellate Court due to my son being fraudulent foreclosed and fraudulently evicted from his home by “corrupt” lenders, trustees, buyers, and attorneys involving the entity we all know as MERS, that is nothing but a Ponzi scheme enabler to put the world in financial meltdown. Three or Four State Attorney Generals (including Texas, New York, Delaware, and Ohio) have filed state court lawsuits seeking to permanently enjoin MERS from committing
unfair trade practices which have deprived property owners of recorded mortgages, recorder offices of hundreds of million dollars of recording fees, and the slicing, dicing, and gambling contracts that 5 Senators in the US Senate, including some of its female members of calling it “shit” and “crap” to enable a hedge fund operator by the name of John Paulson to bet against the “shit” sold by Goldman Sachs to Public Pension Funds throughout the United States, one of which is CALPERS, that provides pensions to the California State Employees. That case I am handling “pro bono” and I am active politically to stop this “scam”. The only other case I am handling is my own, this case, due to my being “swindled” by my “fiduciary” and her cohorts. She has asserted that New Mexico should determine my lien rights even though Judge McFeeley has consistently interpreted my lien rights under California Law. The Trustee’s assertions to the contrary are “frivolous”, which may subject her to malicious prosecution counterclaims, which in this state of New Mexico may be asserted now in the main action, so held Judge Browning. That claim, if asserted by me, would not be the subject of litigation in this Court but by an Article III judge, other than this Court. Frankly stated, I would prefer a “fair” settlement than unending litigation and appeals. I assert the Settlement Agreements presented to this court by a “corrupt” Trustee is not worth the paper it is written on. If I was younger she would have been taught a very serious lesson by a very serious constitutional lawyer and litigator. My resume is attached hereto as Exhibit 1. I have handled 1st Amendment cases, 4th Amendment cases, 5th Amendment cases, a sovereign immunity case before the Chief US District Judge of the SD of New York, a Full Faith and Credit
Case before the 5th Circuit which was remanded back to the Chief US District Judge of the Northern District of Mississippi, one of the leading life insurance bad faith cases by jury verdict, numerous fraud cases, numerous malpractice cases, and numerous bad faith cases. I wrote the first appeal in California on the UCC code in California, a California Supreme Court Case, whose holding became the closing instruction in every special verdict case in California and set aside a $4.2 million jury verdict against VW. I have not earned any money as a lawyer for the past two years. I can live without these fees and expenses based on my past successes, but I cannot tolerate the fraud that has been practiced against me, and I am willing to call this case my “swan song” and to say goodbye to the “sharp Practice” that has been fostered upon me by these lawyers. I know the facts and law of all the cases I handled for Potter, and was able to write an appeal to the District Court of Appeal to New Mexico, which was published. I have a full set of NM law books in my home library.
CONCLUSION If retired Judge McFeeley is willing to act as a retired judge mediator I am willing to tender this case to Judge McFeeley for Mediation. The judge and I may have had our professional differences, but I trust this Judge to be fair and just to all the litigants. He is familiar with all the issues of this case and he would not have to spend the time and expense of bringing himself up to date on the facts and the law. He knows all of the litigants, including the undersigned.
Wherefore I request a stay of all litigation in both adversaries, including the jurisdiction issue submitted to this court for decision, and seek the assistance of this court to encourage Judge McFeeley to be a paid mediator at the expense of the Estate. Happy Thanksgiving to All. Dated: November 23, 2011 Signed and served electronically Respectfully submitted, ____________________________ Martin S Friedlander, Esq. Creditor in pro se 10350 Wilshire Blvd., Suite 603 Los Angeles, Ca. 90024 (310) 435-1519