Albert L. Peia, Pro Se
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Albert L. Peia, Plaintiff ) CASE NO. 3:05cv1029 (SRU)
Richard M. Coan, Coan, Lewendon, )
Gulliver, and Miltenberger, LLC., )
John Doe Surety 1, John Doe Insurer 2, )
John Does 3 – 10, Defendants ) July 23, 2005
Declaration/Certification in Opposition to Defendants’
Motion to Dismiss (A) FOR LACK OF SUBJECT MATTER JURISDICTION,
(B) FOR A JUDGMENT ON THE PLEADING, OR ALTERNATIVELY,
(C) TO DISMISS FOR FAILURE TO STATE A CLAIM.
FOR ENTRY OF
PLEADINGS IN THE SUM CERTAIN AMOUNT DEMANDED IN THE
MORE FRAUD ON THE COURT AND PLAINTIFF BY DEFENDANT COAN ET ALS.
1. It should be emphasized at the outset that contrary to the blatently false and apparently
intended to be prejudicial against plaintiff assertion by defendant Coan, there have been not
six, but rather four actions against defendant Coan.
2. It is noteworthy that these actions as discussed immediately hereafter, followed
defendant Coan’s failed attempt by way of an action brought by defendant Coan against
plaintiff to preclude an action by plaintiff against defendant Coan for the substantial damages
caused to plaintiff by defendant Coan’s wrongful and culpable conduct, also discussed infra.
first case was commenced in the
contested personal jurisdiction.
second case was filed in the
presided over by J. Dorsey and in which defendant Coan, though acknowledging receipt of the
papers, contested sufficiency of service, and in which plaintiff was ordered to effect personal
service. Plaintiff effected personal service upon defendant Coan therein, at which time, despite
the prior ruling of Judge Robert N. Chatigny, Chief Judge, U.S.D.C., District of Connecticut,
to the contrary as discussed infra, defendant Coan moved to dismiss as here, for lack of subject
matter jurisdiction, which (quite embarrassingly for the court in light of Judge Chatigny’s
prior ruling) was granted by J. Dorsey.
5. It is noteworthy that as set forth in plaintiff’s Affidavit filed concurrently herein, plaintiff
attempted for the purpose of any purported leave of court application to determine the precise
status of plaintiff/debtor’s estate by way of some 25 phone calls to Defendant Coan et als
spanning almost five months (1-5-04 to 5-14-04) with no response other than from Mr.
Miltenberger that his client had not gotten back to him.
6. The third action was filed and served along with the concurrent application for leave filed
in both the RICO enterprise/associated in fact RICO enterprise bankruptcy court as well as in
assigned to Judge Kravitz,
7. On or about April 28, 2005, I received a call from a person named Sandra who identified
as an employee of the
subject bankruptcy case had been closed on October 20, 2004 and a final report filed, the
details of which I set forth in my affidavit dated 5-2-05, filed with the court on 5-4-05, and
referenced in my motion/application to withdraw as moot the application for leave to file the
complaint in light of same, which was granted by Judge Kravitz without prejudice while
denying the request for criminal referral except as to the local police which I delivered by hand
to the LAPD, Attention: William Bratton (LAPD Chief) as set forth in Exhibit “A“, and
consistent therewith. Said application to withdraw as moot preceded receipt of any purported
opposition by defendants coan et als.
8. Neither I, nor I presume by reasonable inference (not properly a part of this
declaration/certification) any creditor received notice of this consummated fraud by defendant
Coan et als. I did contact my largest general creditor, who had filed a claim, Edward and
Sandra Lundblad, who with two children are long-time residents of Connecticticut and who
(Edward) stated they had received nothing from either defendant Coan or the RICO
enterprise/associated in fact RICO enterprise bankruptcy court. Other legitimate creditors,
Danbury, CT., (approx. $750), Ken
($135), and Guaranteed Subpoena,
Group), Tom Williams,
(approx.$700), etc., should not be damaged by the culpable conduct of defendant Coan et als,
and upon entry of judgment and payment thereof, I am willing to do under penalty of perjury
what defendant Coan has failed to do, by paying, performing, and filing a report with this or
other court. Alternatively, the John Doe Insurer/Surety should assume their duties and
obligations as contractually they are so bound in the within matter. To repeat, the assets
substantially exceeded liabilities herein.
9. The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. Sections
1961-1968, Section 904(a) of the Organized Crime Control Act of 1970 expressly provided that
“the provisions of this title [RICO] shall be liberally construed to effectuate its remedial
purposes.” The RICO predicate acts of (illegal drug) money laundering, bankruptcy
fraud/offenses involving fraud connected with a case under Title 11, U.S.C., obstruction of
justice, and racketeering are set forth with particularity at pages 4-18 in Plaintiff’s Verified
Complaint, pages 10-35 in Plaintiff’s Affidavit, and pages 1-12, 18-30 in Plaintiff’s RICO
Statement, and in Exhibits thereto.
10. It should be noted that a cause of
action under RICO is fundamentally recognized for losses (to ie.,
creditors, the debtor, lienholders, etc.) caused by sales of a debtor’s assets
in bankruptcy proceedings at submarket prices. See, e.g., Bivens Gardens
Office Bldg., Inc. v. Barnett Banks of
same violations apply to the adversary proceeding where the Trustee was named as a party plaintiff
concerning junkie and thief, David George Swann (DOB 4-6-60; three guilty pleas
to theft in less than 5 years residence in
11. There has never been a hearing on the merits of the RICO claims against defendant Coan who at all times has attempted to evade jurisdiction and avoid accountability for his wrongful and illegal conduct. As such, there is no res judicata argument other than in bad faith by defendant Coan.
12. The Chapter 13 plan provided for 100% payment to the (relative to assets) small (minimal amount of debt) number of creditors. As set forth in plaintiff’s Verified Complaint, RICO Statement, and Affidavit, the Chapter 13 proceeding was converted to a case under Chapter 7 on or about 5-1-96, after plaintiff had already filed a petition under Chapter 7 in California on or about 3-11-96, and had already consummated the 341A hearing in the California proceeding. Alan Shiff, U.S.B.C.J., (as defendant Coan), did utilize the mails in perpetrating said fraud (on courts, creditors, plaintiff, etc.), constituting the RICO predicate violation of mail fraud thereby, violative of Section 1341, fraudulently misrepresented the date of dismissal of a proceeding over which he himself had presided perpetrating a fraud connected with a case under Title 11 as proscribed in Title 18 U.S.C. Section 1961(1) (D); and further, brought a (retaliatory against a witness/victim/informant violative of Section l5l3) spurious contempt proceeding against plaintiff, obstructing justice thereby in violation of Section 1503 (and additionally was without jurisdiction to legitimately do so).
Quite simply, he lied (materially false fraudulent representation); knew he lied (scienter);
lied with the intention of deceiving (intent); the lies were relied upon (ie., government, courts, etc.)(reliance); said offense/fraud in connection with a case under Title 11 directly causing
damage to plaintiff’s property and business (and as well to plaintiff’s estate and creditors).
13. It should be emphasized as a
fundamental principle of RICO law that RICO standing requires only harm
resulting proximately from the predicate offenses. It does not also require
that this harm give rise to a civil claim based upon those predicate offenses. Holmes v. Securities Investor Protection Corp., 503
DEFENDANT COAN WAS NEGLIGENT
14. In the alternative, or additionally, defendant Coan was clearly negligent as set forth in Plaintiff’s Verified Complaint, negligence being pleaded generally. It is hornbook law that a reasonable (and competent) person/lawyer would have foreseen the damage to plaintiff as documented under penalty of perjury in the instant case (Verified Complaint, RICO Statement, Affidavit, Exhibits incorporated therein). Moreover, any bad faith assertion that no duty, fiduciary or otherwise, existed between the trustee (Coan) and beneficiary (creditors, debtor, lienholders, etc.) is frivolous on its face and demonstrates defendant’s unfitness to either practice law or act as a panel trustee. Moreover, defendant Coan et als have cost plaintiff the equivalent of hundreds of thousands of dollars attributable to defendant Coan’s wrongful conduct alone over a 9 year period based on current billing rates, fees, time expended, and for which plaintiff respectfully requests be awarded, along with the balance set forth in plaintiff’s schedule of damages, and hereby oppose any award of fees to defendant Coan and company whose own lack of communication/notice of the case closure (despite my requests for status) and wrongful conduct necessitated the re-filing reflecting same herein (nor do I have such amount if so ordered having been reduced to near abject penury by the wrongful conduct of defendants and the protracted proceedings herein).
15. It is important to emphasize that the action brought by defendant Coan had a (this defendant) bankruptcy court reference, viz., Bankruptcy No. 95-51862, No. 3:97-CV1165(RNC). Indeed, in light of defendant Coan’s illegal acts to damage plaintiff and to benefit other RICO co-conspirators/defendants, I made no secret of my intent to utilize the judicial process to seek damages against defendant Coan for his intentional and illegal acts damaging me, and coincidentally, any legitimate creditors of my estate. (Parenthetically, it should once again be emphasized that it was defendant Coan’s own knowledge of his own illegal acts damaging me that did prompt the subject action before Judge Chatigny to preclude me from suing him without leave of court). This intent to sue defendant Coan for damages arising from his illegal acts in the context of his purported role as trustee of my Chapter 7 estate in bankruptcy was clearly articulated and subsumed in the proceeding before Judge Chatigny and included his past, current (and anticipated future) illegal acts
violative of RICO and other federal law. Specifically, in Judge Chatigny’s own concluding
words in pertinent part,
‘On the existing record, a “leave of court” requirement should not (emphasis supplied) be imposed on Peia with regard to any (emphasis supplied) future legal action he might bring against plaintiff Coan………………If Peia does sue Coan, and the complaint proves to be frivolous, appropriate sanctions can be imposed by the judge who gets that complaint, including an order prohibiting Peia from filing another action without leave of court.’
212 B.R. 217, 220 (D.Conn.1997).1
Additionally, in his own sworn testimony before Judge Robert N. Chatigny, Chief Judge, U.S.D.C., District of Connecticut, defendant Coan acknowledged his fiduciary duty to debtor’s estate and debtor thereby. His bad faith, frivolous assertions herein to the contrary demonstrate his unfitness to either practice law or act as a panel trustee.
of defendant Coan’s 7-14-05 motion herein, plaintiff contacted the (Hartford
Division) Court of Chief Judge Robert N. Chatigny (courtesy copies of the
instant filings, viz., Verified Complaint/Affidavit/RICO Statement, to
said court, as well) regarding the subject transcript of said proceedings and
was told by the court reporters they would try and contact the subject reporter
who was no longer on staff. Ultimately, I received a call from the court
reporter, Paul Callard, on 7-22-05 who indicated that he could complete same
within three weeks of receipt of payment. Said request and payment have gone
out concurrently with the posting of this opposition and cross-motion for
judgment for judgment on the pleadings. It should also be noted that the
filings, viz., Verified Complaint/Affidavit/RICO Statement, have been
sent to FBI Agent Barndollar, Exhibit “B“, to whom, along with then FBI
Director Freeh and FBI Agent Hayes
(California) prior inculpatory documents had been forwarded. This Court should
have the opportunity to review said transcript which is indicative of defendant
Coan’s bad faith and motivation for the culpable conduct as set forth herein.
Moreover, plaintiff will (on 7-26-05) send to the aforesaid FBI agent the
within opposition/cross-motion along with the bad faith motion of defendant
Coan [though not properly a part of the instant declaration/certification
plaintiff feels constrained to point to the reasonable inference to be derived
from, and for the first time, no one including Mr. Miltenberger other than
defendant Coan utilizing the mails in furtherance of this fraudulent (on
plaintiff, the Court, creditors., etc.) scheme,
Exhibit “C“. The actual violation of 18 U.S.C. §1341, a RICO predicate
act, is the mailing which must relate to but need not be an essential element
of the scheme to defraud (ie., plaintiff, creditors,
etc.). Pereira v.
I. THE 1881 CASE OF BARTON V. BARBOUR
IS NOT APPOSITE OR ALTERNATIVELY MOOT IN LIGHT OF CLOSURE OF THE BANKRUPCY CASE ON OCTOBER 20, 2004, FINAL
REPORT SUPPOSEDLY RENDERED, THE DAMAGE
TO DEBTOR CONSUMATED BY DEFENDANT COAN AT SAID POINT IN TIME (NO NOTICE
TO EITHER PLAINTIFF OR CREDITORS). The 1881 case of Barton v. Barbour,
104 U.S. 126 (1881), involved a plaintiff that had brought an action for
injuries sustained while a passenger in a train, which railroad was currently
in receivership. Said plaintiff brought the action against the receiver without
having sought leave of court from the court that had appointed him. It is
important to emphasize that there was no allegation or even a hint of
impropriety, culpability, or illegality on the part of either the receiver or
the subject court that had appointed him. Indeed, the fundamental and
underlying ratio decidendi and policy considerations leading ineluctably
to said Court’s conclusion was that to permit such an action without leave of
court would potentially impair the (value of the) property in the hands of the
receiver, to the detriment of existing creditors and prior claimants.
II. IN RE LEHAL ASSOCIATES DOES NOT
EVEN REMOTELY SUPPORT DEFENDANT COAN’S POSITION. In re Lehal Associates, 101
F.3d 272 (2nd Cir. 1996), is clearly distinguishable from the instant case
inasmuch as the trustee in that case had benefitted the estate through his
actions, as opposed to coan who has purposefully and illegally damaged
plaintiff’s estate, benefitting RICO defendants, consistent with the RICO
violations and conspiracy. Specifically, in In re Lehal Associates, the
trustee’s efforts in the bankruptcy case resulted in payment of all legitimate
creditors and administration expenses in full and a return to debtor of several
III. DEFENDANT COAN IS ESTOPPED FROM RELITIGATING AN ISSUE DECIDED AT THE EVIDENTIARY HEARING BEFORE JUDGE CHATIGNY BY THE DOCTRINES OF RES JUDICATA/COLLATERAL ESTOPPEL. Contrary to defendant’s unsupported/bald assertion, defendant coan’s illegal acts are part of the pattern of racketeering activity set forth in the subject litigation /adversary proceedings; that is, defendant coan is merely another RICO conspirator (continuing) in the RICO violation to commit bankruptcy fraud, obstruct justice, etc., as set forth in plaintiff’s verified complaint, and to defraud plaintiff’s estate, creditors thereof, and plaintiff herein.
16. In accordance with federal
court Order of The Honorable Mark R. Kravitz, U.S.D.C.J., District of
Connecticut, filed on May 19, 2005, along with the subject filings under penalty
of perjury, viz., the RICO Verified Complaint, Affidavit, and RICO
Statement, I respectfully requested the criminal prosecution of the culpable
parties as clearly set forth therein. While the RICO statute is a federal
criminal statute with civil damage remedies incorporated therein, there is
concurrent jurisdiction between the state and federal authority. This is
especially apposite in this case where
Contrary to defendant Coan’s bad faith assertion, plaintiff has set
forth at pages 4-18 in Plaintiff’s Verified Complaint factually specific (what,
who, when) instances of the RICO predicate/wrongful conduct/pattern of
racketeering with the offense(s) involving fraud connected with a case under
Title 11, violative of 18 U.S.C. § 1961(1)(D), said overt act causing damage to
plaintiff’s property and business, construed under RICO along with the
“associated with the enterprise” as questions of fact. See, eg.,Miranda v.
18. The following counts from the verified complaint are set forth for the Court’s ease of reference in rebutting the bad faith, false assertion by defendant Coan at page 6 that “19. His (my) complaint never alleges, nor can it, that Mr. Coan owed a fiduciary duty – or any other kind of duty – to Mr. Peia. 20. Mr. Peia never alleges that Mr. Coan had any duty whatsoever to Mr. Peia that could be breached by any act or failure to act.”
In contra-distinction to defendant Coan’s empty/false rhetoric, the Verified Complaint says:
“THIRD COUNT - NEGLIGENCE/BREACH OF FIDUCIARY DUTY
50. Plaintiff repeats and realleges the averments contained in paragraphs 1 through 49 as if set forth at length herein.
51. On or about May 1, 1996, defendant Richard M. Coan succeeded to the interests of the estate of plaintiff herein in his capacity as Chapter 7 Trustee, said case having originated under Chapter 13 of Title 11, U.S.C., and designated as Case No. 95-51862, United States Bankruptcy Court, in the District of Connecticut.
52. At all times relevant hereto, Richard M. Coan had a fiduciary duty to said estate, creditors thereof including the U.S. government, which duty he breached through wrongful and otherwise negligent and culpable conduct.
53. To wit, Richard M. Coan, in his capacity as successor plaintiff was ordered by the court to file papers consistent with his capacity and duty as successor plaintiff and Trustee, in a number of adversary proceedings brought by debtor/plaintiff herein for which the entry of default had been requested and the entry of default judgment appropriate inasmuch as proper service had been made with some matters being without defense, ie., properties (outside the state of Connecticut, ie., New Jersey) sold during the pendency of the automatic stay pursuant to §362 of Title 11, U.S.C., unaccounted for substantial funds (in New Jersey) generated from said wrongful acts, theft of personalty/business assets (in California, New Jersey, and Connecticut), loss of rents (in New Jersey, California, and Connecticut), among other causes and damages, including a substantial fraud on debtor/plaintiff herein perpetrated by R.I.C.O. defendants/co-conspirators involved in laundering drug money through the Trump (of New York) casinos (in New Jersey) along with other criminal activities covered by and violative of federal law.
54. All of said matters were meritorious, substantial, some without defense, as well as some for which partial settlements and/or payments had been made.
55. Richard M. Coan, in his capacity as Trustee and to cover-up various criminal activities including, inter alia, illegal drug money laundering, bribery, fraud, theft, other violations of federal law including §362 of Title 11, U.S.C., and the illegal, wrongful and culpable failure to conclude the 1989 Virginia Chapter 7 proceeding under Title 11 in accordance with federal law, among others, wrongfully, negligently, and culpably failed to file any document whatsoever.
56. As a direct consequence of the aforesaid negligent, wrongful and culpable breaches of fiduciary duty the subject adversary proceedings were dismissed with prejudice as set forth in Exhibit “A“, annexed hereto and incorporated herein by reference thereto, causing and resulting in great damage to plaintiff herein.
57. Defendant Richard M. Coan is liable to plaintiff for the damages caused by said negligent, wrongful and culpable breaches of fiduciary duty, in amounts compensatory and punitive, to be determined at trial.
FOURTH COUNT - NEGLIGENCE
58. Plaintiff repeats and realleges the averments contained in paragraphs 1 through 57 as if set forth at length herein.
59. On or about May 1, 1996, defendant Richard M. Coan succeeded to the interests of the estate of plaintiff herein in his capacity as Chapter 7 Trustee, said case having originated under Chapter 13 of Title 11, U.S.C., and designated as Case No. 95-51862, United States Bankruptcy Court, in the District of Connecticut.
60. At all times relevant hereto, defendant Richard M. Coan, acting within the scope of his employment, and defendant Coan, Lewendon, Gulliver, and Miltenberger, LLC., thereby
(1) had a duty to act as a reasonable and prudent person in performing his duties in his capacity as Chapter 7 Trustee, consistent with his duties as a fiduciary and the foreseeabilty of harm/injury/damage to plaintiff in failing to so conform to said standard of care;
(2) defendant Richard M. Coan, acting within the scope of his employment and defendant Coan, Lewendon, Gulliver, and Miltenberger, LLC., thereby, breached said duty of due care in failing to perform his duties in accordance with reasonable prudence by, inter alia, failing to timely file documents pursuant to court order and otherwise act in a reasonably prudent manner;
(3) as a direct and proximate result of the aforesaid breach of duty by defendant Richard M. Coan, acting within the scope of his employment and defendant Coan, Lewendon, Gulliver, and Miltenberger, LLC., thereby,
(4) plaintiff has sustained substantial harm/injury/damage.
61. As a result of the negligence of defendant Richard M. Coan, acting within the scope of his employment and defendant Coan, Lewendon, Gulliver, and Miltenberger, LLC., thereby, said defendants are liable to plaintiff for damages in an amount to be determined at trial.”
The within referenced filings with exhibits thereto, along with the specious, spurious opposition by defendant Coan have been sent to FBI. Defendant Coan has not rebutted even one sworn statement by plaintiff herein and in the paramount judicial interests of truth and justice, plaintiff respectfully requests that defendant Coan et als’ relief be denied and respectfully cross-moves and requests the entry of judgment in the sum-certain amount as demanded in the Verified Complaint, and supported by the sworn Affidavit, RICO Statement and exhibits thereto. In the alternative, plaintiff respectfully requests that defendant(s) be ordered to turn the instant case over to their (John Doe Surety1/ Insurer 2) carrier(s) pursuant to the duty to defend for independent evaluation in accordance with the contractual provisions and obligations under the applicable policies/coverages.
The foregoing statements made by me are true under penalty of perjury pursuant to the
Dated: 7-23-05 Respectfully Submitted/Signed: _____________________________
Albert L. Peia, Plaintiff Pro Se