Albert L. Peia, Pro Se
(213) 219-7649
UNITED STATES
DISTRICT COURT
DISTRICT OF
CONNECTICUT
----------------------------------------------------------
Albert L. Peia, Plaintiff ) CASE NO.
3:05cv1029 (SRU)
-vs- )
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.
PLAINTIFF’S CROSS-MOTION
FOR ENTRY OF
PLEADINGS IN THE SUM
CERTAIN AMOUNT DEMANDED IN THE
VERIFIED COMPLAINT.
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.
3. The
first case was commenced in the
contested personal
jurisdiction.
4. The
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
the
was
assigned to Judge Kravitz,
7.
On or about April 28, 2005, I
received a call from a person named Sandra who identified
herself
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,
scheduled/unscheduled/pre-post
conversion, in
Danbury, CT., (approx. $750), Ken
Williams,
($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.
Upon receipt
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
million dollars.
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
17.
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
laws
of the
Dated: 7-23-05 Respectfully Submitted/Signed:
_____________________________
Albert
L. Peia, Plaintiff Pro Se