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SEC CLAIM AGAINST A RELIEF DEFENDANT FOR UNJUST ENRICHMENT
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Others may know more than I, but I would not okay any stip. I would refer client to counsel with expertise in this area and let them approve the language. Unless this is your area, there are too many things that you don
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green
Attorney at Law
Fitzgerald & Green, Attorneys at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: (626) 449-8433
Fax: (626) 449-0565
pat@fitzgreenlaw.com
The post was migrated from Yahoo.
I think you really have to have a conversation with the SEC attorneys on this. I hear that there is a lot of fear here, but I think that absent an honest conversation with them about what your client has to work with, you will not get an agreement that allows your client to get the fresh start she desires. Also, you refer to her spouse as husband. Has she not filed for divorce from this criminal? If not, I think you should be prepared to explain that to the SEC as well.
Desiree Causey, Esq.
Law Office of Desiree Causey
17011 Beach Blvd., Suite 900
Huntington Beach, CA 92647
causeylaw@gmail.com
714-375-6663
714-908-7646 (fax)
Privileged And Confidential Communication.
This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited.
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I think of it as exactly the opposite. You have an opportunity to stipulate
that all these things are dischargeable in bankruptcy. Why not do it?
whereas "whatever the SEC wants"
Make sure these are not admissions that can be used for any other purpose
and that 5th protection rights, if needed, are not waived. You can't just
write it in, you literally have to make sure by operation of law, the
protections are not waived because she said one thing or another...
then stipulate to judgment(s) for X amounts and that such judgments are not
of the types enumerated in 523. That even if they were, the SEC waives
their right to pursue those debts.
Then a week after the SEC publishes a press release you can publish your
own!
Sincerely,
Michael Avanesian
On Sun, Oct 26, 2014 at 11:38 AM, Desiree Causey causeylaw@gmail.com
[cdcbaa] wrote:
>
>
>
>
> Desiree Causey
> 714-375-6663
> Sent from my iPad
>
> On Oct 26, 2014, at 10:11 AM, R Grace Rodriguez rgracelaw@gmail.com
> [cdcbaa] wrote:
>
>
>
> Hi Cliff & Desiree:
>
> Client has no money to defend the claims against her as a "Relief
> Defendant." A relief defendant based on unjust enrichment is that whatever
> she has that she got as a benefit of her husband's crimes has to be
> returned to the government. Her husband has been convicted criminally and
> has a restitution order. Now government wants a big money judgment against
> her so they can look good on paper, even though she is in bankruptcy and
> CLEARLY has no assets. The judgment would be dischargeable, BUT the STAY
> IS NOT EFFECTIVE against the government seeking money judgment against her
> to solidify their claim against her.
>
> " in accordance with the statutes and controlling cases, the filing of a
> petition under the Bankruptcy Code does not automatically operate as a stay
> against the enforcement proceedings brought by the Commission against a
> relief defendant. In particular, the Bankruptcy Code affords an
> exemption from the automatic stay to allow the continuation of the
> Commission-initiated federal securities law enforcement action against
> bankrupt debtor. *See *11 U.S.C. 362(b)(4). Moreover, this exemption
> from the stay is self-executing, so that a governmental unit, such as the
> Commission, may pursue legitimate enforcement ends without first seeking
> leave to lift the stay. *See, e.g., In re Charter First Mortgage, Inc.*,
> 42 B.R. 380, 385 (D. Or. 1984). Numerous bankruptcy court decisions have
> confirmed pursuant to this exemption that a civil enforcement action
> pursued by the Commission is excepted from the provisions of the automatic
> stay. *See*, *e.g., SEC v. Towers Fin. Corp., *205 B.R. 27 (S.D.N.Y.
> 1997); *SEC v. Elmas Trading Corp.*, 620 F. Supp. 231 (D. Nev. 1985),
> *aff'd*, 805 F.2d 1039 (9th Cir. 1986);*Bilzerian v. SEC*, 146 B.R. 871
> (Bankr. M.D. Fla. 1992).
>
> So they want her to STIP and I'm thinking a STIP is post petition
> agreement won't get discharged.
>
> A default is re pre-petition gains, so dischargeable. . . BUT Exactly
> what will they seek the default on?
>
> THE FEAR I have is Government asking for some sort of sanction or
> penalties that could be arguably non-dischargeable and she loses her chance
> of being free of the problems created by her husband. Client was stay-at
> home mom that basically thought she was with a good man and didn't know
> anything or really understand anything going on at his office.
>
>
>
> R. Grace Rodriguez, Esq.
> OFF: (818) 734-7223
> CEL: (818) 554-9922
>
>
>
>
I think of it as exactly the opposite. You have an opportunity to stipulate that all these things are dischargeable in bankruptcy. Why not do it?whereas "whatever the SEC wants"Make sure these are not admissions that can be used for any other purpose and that 5th protection rights, if needed, are not waived. You can't just write it in, you literally have to make sure by operation of law, the protections are not waived because she said one thing or another...then stipulate to judgment(s) for X amounts and that such judgments are not of the types enumerated in 523. That even if they were, the SEC waives their right to pursue those debts.Then a week after the SEC publishes a press release you can publish your own!Sincerely, Michael Avanesian
On Sun, Oct 26, 2014 at 11:38 AM, Desiree Causey causeylaw@gmail.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The post was migrated from Yahoo.
Desiree Causey
714-375-6663
Sent from my iPad
> On Oct 26, 2014, at 10:11 AM, R Grace Rodriguez rgracelaw@gmail.com [cdcbaa] wrote:
>
> Hi Cliff & Desiree:
>
> Client has no money to defend the claims against her as a "Relief Defendant." A relief defendant based on unjust enrichment is that whatever she has that she got as a benefit of her husband's crimes has to be returned to the government. Her husband has been convicted criminally and has a restitution order. Now government wants a big money judgment against her so they can look good on paper, even though she is in bankruptcy and CLEARLY has no assets. The judgment would be dischargeable, BUT the STAY IS NOT EFFECTIVE against the government seeking money judgment against her to solidify their claim against her.
>
> " in accordance with the statutes and controlling cases, the filing of a petition under the Bankruptcy Code does not automatically operate as a stay against the enforcement proceedings brought by the Commission against a relief defendant. In particular, the Bankruptcy Code affords an exemption from the automatic stay to allow the continuation of the Commission-initiated federal securities law enforcement action against bankrupt debtor. See 11 U.S.C. 362(b)(4). Moreover, this exemption from the stay is self-executing, so that a governmental unit, such as the Commission, may pursue legitimate enforcement ends without first seeking leave to lift the stay. See, e.g., In re Charter First Mortgage, Inc., 42 B.R. 380, 385 (D. Or. 1984). Numerous bankruptcy court decisions have confirmed pursuant to this exemption that a civil enforcement action pursued by the Commission is excepted from the provisions of the automatic stay. See, e.g., SEC v. Towers Fin. Corp., 205 B.R. 27 (S.D.N.Y. 1997); SEC v. Elmas Trading Corp., 620 F. Supp. 231 (D. Nev. 1985), aff'd, 805 F.2d 1039 (9th Cir. 1986);Bilzerian v. SEC, 146 B.R. 871 (Bankr. M.D. Fla. 1992).
>
> So they want her to STIP and I'm thinking a STIP is post petition agreement won't get discharged.
>
> A default is re pre-petition gains, so dischargeable. . . BUT Exactly what will they seek the default on?
>
> THE FEAR I have is Government asking for some sort of sanction or penalties that could be arguably non-dischargeable and she loses her chance of being free of the problems created by her husband. Client was stay-at home mom that basically thought she was with a good man and didn't know anything or really understand anything going on at his office.
>
>
>
> R. Grace Rodriguez, Esq.
> OFF: (818) 734-7223
> CEL: (818) 554-9922
>
>
>
The post was migrated from Yahoo.
Hi Cliff & Desiree:
Client has no money to defend the claims against her as a "Relief
Defendant." A relief defendant based on unjust enrichment is that whatever
she has that she got as a benefit of her husband's crimes has to be
returned to the government. Her husband has been convicted criminally and
has a restitution order. Now government wants a big money judgment against
her so they can look good on paper, even though she is in bankruptcy and
CLEARLY has no assets. The judgment would be dischargeable, BUT the STAY
IS NOT EFFECTIVE against the government seeking money judgment against her
to solidify their claim against her.
" in accordance with the statutes and controlling cases, the filing of a
petition under the Bankruptcy Code does not automatically operate as a stay
against the enforcement proceedings brought by the Commission against a
relief defendant. In particular, the Bankruptcy Code affords an exemption
from the automatic stay to allow the continuation of the
Commission-initiated federal securities law enforcement action against
bankrupt debtor. *See *11 U.S.C. 362(b)(4). Moreover, this exemption
from the stay is self-executing, so that a governmental unit, such as the
Commission, may pursue legitimate enforcement ends without first seeking
leave to lift the stay. *See, e.g., In re Charter First Mortgage, Inc.*,
42 B.R. 380, 385 (D. Or. 1984). Numerous bankruptcy court decisions have
confirmed pursuant to this exemption that a civil enforcement action
pursued by the Commission is excepted from the provisions of the automatic
stay. *See*, *e.g., SEC v. Towers Fin. Corp., *205 B.R. 27 (S.D.N.Y.
1997); *SEC v. Elmas Trading Corp.*, 620 F. Supp. 231 (D. Nev. 1985),
*aff'd*, 805 F.2d 1039 (9th Cir. 1986);*Bilzerian v. SEC*, 146 B.R. 871
(Bankr. M.D. Fla. 1992).
So they want her to STIP and I'm thinking a STIP is post petition agreement
won't get discharged.
A default is re pre-petition gains, so dischargeable. . . BUT Exactly what
will they seek the default on?
THE FEAR I have is Government asking for some sort of sanction or penalties
that could be arguably non-dischargeable and she loses her chance of being
free of the problems created by her husband. Client was stay-at home mom
that basically thought she was with a good man and didn't know anything or
really understand anything going on at his office.
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
Hi Cliff & Desiree: Client has no money to defend the claims against her as a "Relief Defendant." A relief defendant based on unjust enrichment is that whatever she has that she got as a benefit of her husband's crimes has to be returned to the government. Her husband has been convicted criminally and has a restitution order. Now government wants a big money judgment against her so they can look good on paper, even though she is in bankruptcy and CLEARLY has no assets. The judgment would be dischargeable, BUT the STAY IS NOT EFFECTIVE against the government seeking money judgment against her to solidify their claim against her.
The post was migrated from Yahoo.
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Why would the client, who is presumably innocent in the SEC violation, do this?
Desiree Causey, Esq.
Law Office of Desiree Causey
17011 Beach Blvd., Suite 900
Huntington Beach, CA 92647
causeylaw@gmail.com
714-375-6663
714-908-7646 (fax)
Privileged And Confidential Communication.
This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited.
Please consider the environment before printing this e-mail.
The post was migrated from Yahoo.
I don't understand what the client gains by signing. Is there some benefit
to the client if she signs, or some risk to her if she refuses?
Clifford Bordeaux
Certified Bankruptcy Specialist*
Bordeaux Law, P.C.
3731 Wilshire Boulevard, Suite 600
Los Angeles, CA 90010
T: 323-762-5529
F: 626-628-1820
E: cliff@bordeauxlaw.com
WEB: www.bordeauxlaw.com
*By State Bar of California Board of Legal Specialization
On Fri, Oct 24, 2014 at 11:57 AM, R Grace Rodriguez rgracelaw@gmail.com
[cdcbaa] wrote:
>
>
> Hi Everyone: I have a client who was married to someone who was
> incarcerated for SEC violations. Prior to BK the SEC filed a complaint for
> Unjust Enrichment as a Relief Defendant seeking disgorgement. Now after
> the bankruptcy is still pending, the attorney for SEC acknowledges that the
> debt is dischargeable, but wants Debtor to Sign a Stipulated Judgment.
> Client is asking me as BK attorney if she signs an agreement does that
> make it a post petition agreement which is now not subject to the
> bankruptcy and not enforceable? I have no clue where to begin to find the
> answer to this question.
>
> It seems to me if the SEC goes after a DEFAULT judgment then this is
> regarding a Pre-Petition debt which would be covered by the current
> Bankruptcy.
>
> ANy thoughts?
>
> R. Grace Rodriguez, Esq.
> OFF: (818) 734-7223
> CEL: (818) 554-9922
>
>
>
I don't understand what the client gains by signing.r if she refuses?Clifford BordeauxCertified Bankruptcy Specialist*Bordeaux Law, P.C.3731 Wilshire Boulevard, Suite 600Los Angeles, CA 90010T: 323-762-5529F: 626-628-1820 E: cliff@bordeauxlaw.comWEB: www.bordeauxlaw.com*By State Bar of California Board of Legal Specialization
On Fri, Oct 24, 2014 at 11:57 AM, R Grace Rodriguez rgracelaw@gmail.com [cdcbaa] <
Hi Everyone: I have a client who was married to someone who was incarcerated for SEC violations. Prior to BK the SEC filed a complaint for Unjust Enrichment as a Relief Defendant seeking disgorgement. Now after the bankruptcy is still pending, the attorney for SEC acknowledges that the debt is dischargeable, but wants Debtor to Sign a Stipulated Judgment. Client is asking me as BK attorney if she signs an agreement does that make it a post petition agreement which is now not subject to the bankruptcy and not enforceable? I have no clue where to begin to find the answer to this question.It seems to me if the SEC goes after a DEFAULT judgment then this is regarding a Pre-Petition debt which would be covered by the current Bankruptcy.ANy thoughts?R. Grace Rodriguez, Esq.OFF: (818) 734-7223CEL: (818) 554-9922
The post was migrated from Yahoo.
Hi Everyone: I have a client who was married to someone who was
incarcerated for SEC violations. Prior to BK the SEC filed a complaint for
Unjust Enrichment as a Relief Defendant seeking disgorgement. Now after
the bankruptcy is still pending, the attorney for SEC acknowledges that the
debt is dischargeable, but wants Debtor to Sign a Stipulated Judgment.
Client is asking me as BK attorney if she signs an agreement does that make
it a post petition agreement which is now not subject to the bankruptcy and
not enforceable? I have no clue where to begin to find the answer to this
question.
It seems to me if the SEC goes after a DEFAULT judgment then this is
regarding a Pre-Petition debt which would be covered by the current
Bankruptcy.
ANy thoughts?
R. Grace Rodriguez, Esq.
OFF: (818) 734-7223
CEL: (818) 554-9922
Hi Everyone: I have a client who was married to someone who was incarcerated for SEC violations. Prior to BK the SEC filed a complaint for Unjust Enrichment as a Relief Defendant seeking disgorgement. Now after the bankruptcy is still pending, the attorney for SEC acknowledges that the debt is dischargeable, but wants Debtor to Sign a Stipulated Judgment. Client is asking me as BK attorney if she signs an agreement does that make it a post petition agreement which is now not subject to the bankruptcy and not enforceable? I have no clue where to begin to find the answer to this question.
The post was migrated from Yahoo.