Motion to Determine Property of the Estate Essays

Motion to Determine Property of the Estate Essays Motion to Determine Property of the Estate Paper Motion to Determine Property of the Estate Paper Morgan and/or Edwards Company, LLC (Edwards Children) that the Probate court awarded her Copyrights and Royalties under a executed but not approved document entitled Settlement Agreement dated July 30, 1997 as well as a co-Publishing agreement which Arose out of this agreement. See both agreements attached hereto as Composite Exhibit C. 7. In October 2011, in the MARCI v Jess S. Morgan litigation, Richard Mandela of Jess S. Morgan Co testifies that the document dated July 30, 1997 was Probate Court Approved see Declaration of Richard Mandela attached hereto as Exhibit D. Counsel for Jess S. Morgan and BECK, LLC have alleged that the July 9, 1997 Stipulated Agreement is not on the Probate Court Record (See Doc 103 Page 2 paragraph 6 Attached hereto as Exhibit F On February 15, 2012 Counsel for Jess S. Morgan says Earlier you heard Mr Jennies say that theres a dispute over which of the agreements in the probate court and ask Judge, Judge, which one did you mean? when in fact all is was, was a mediated settlement agreement thats pretty broad, and then that mediated settlement was refined down, and again this was many years and years ago. Mrs Edwards was presented by counsel, and thats what the dispute is ultimately going to be about See Transcript Page 28 Line 14-25 (Exhibit F) 4 The alleged Co-publishing Agreement contains a fake Probate Court Stamp in the Top Right Corner that Reads Received September 5, 1997 The Westport Probate Court has confirmed that this is NOT the official Seal of the Westport Probate Court and this alleged agreement is Blank and completely unexpected in the Sealed File. Page 2 of 12 8. On or about November 27, 2012 after over a year of extensive investigation and due diligence by Consultant Eric Moore, the Westport Probate Court determined that Eries theory of the Case was correct and Ms. Edwards was only bound by the Probate Corresponded Stipulated Agreement dated July 9, 1997. 9. The Copyrights and Royalties Including Administration Rights subject to Adversary 641 are already Property of the Estate because the debtor has possession of the recovered title, as these issues have already been adjudicated, and therefore the litigation is moot. 0. Collateral Estoppels principles are applicable to a subsequent proceeding only if: 1) the identical issues were presented in a prior proceeding; 2) there was a full ND fair opportunity to litigate the issues in the prior proceeding; 3) the issues in the prior litigation were a critical and necessary part of the prior determination; 4) the parties in the two proceedings were identical; and 5) the issues were actually litigated in the prior proceeding. Porter v. Saddlebags Resorts, Inc. , 679 So. Ad 1212, 1214815 (Flaw. Didst. Ct. App. 996) (citing Depot of Health and Rehab. Serves. V. B. J. M. , Copyright and Royalties rights have already been adjudicated by a Court, and so the issue surrounding the ownership of the property to Adversary 641 is moot. 11. The courts have emphasized that Collateral Estoppels precludes re-litigation of issues actually litigated in a prior proceeding. B. J. M. , 656 So. Ad at 910 As with res Judicial, collateral Estoppels is an affirmative defense, and the party asserting it bears the burden to show that such an issue was formerly determined with sufficient certainty. Freewheeling v. MAGIC Financial Corp , 437 So. Ad 191, 193 (Flaw. Didst. Ct. App. 1983). It would be unjust to re-litigate the prior Courts findings as to the Copyright and Royalties rights. 5 The Debtor needs to file the Recovered title dated July 9, 1997 with the Copyright Office and Royalty payers so that the Future Royalties will be paid to her directly, absent a Certified Probate Court Approved Copy of the Alleged Shipbuilding Agreement the Payers will not Pay Jess S. Morgan or any other entity except the debtor who is the Real Owner. Page 3 of 12 12. Creditor, Eric Moore fulfilled his obligations under the Consulting Agreement by determining and locating copyrights and other assets due to the debtor. This recovered Title procured by Moore and Referenced by Debtors bankruptcy Counsel David Jennies in open court on February 15, 2012 has enhanced the Estate by at least $25,000,000. Per independent appraisal, the total value of the debtors Copyrights is now roughly Moore reasonably relied upon the promise of the debtor made under the Consulting Agreement, and in return fulfilled his own obligations under the agreement. Because of that reliance Moore has been injured or damaged. Under the legal doctrine of promissory estoppels, Moore is entitled to payment under the Consulting Agreement. This determination and recovered title procured by Moore is performance of the agreement. 13. ADMISSION: Debtor Bambini Hearer-Edwards has admitted to this court, ownership of name Copyrights at issue in Paragraph 1 of Debtors Chapter 11 Case Management Summary, in Turnover Motions, in her Disclosure Statement, as well as in Court. See debtors adversary complaint filed on July 29, 2012. In fact, the Bernard Edwards State and Bernard Edwards Estate Federal Taxes clearly reflect that the Governing Agreement is dated July 9, 1997. The State and Federal Taxes were filed and paid in June 1999 by Jess S. Morgan according to this agreement, taxes were paid on the Administration Rights, Publisher Share, Writers Share, Producer Royalties and Artist Royalties See attached, therefore Ms. Edwards OWNS those rights. Exhibit E. 6 The $37,000,000 dollar valuation includes the Recovered Copyrights and her Historical Royalties which Appraised at roughly $12,000,000 dollars, this amount does not include any unpaid or underpaid royalties. Debtors pre-petition Entertainment Counsel Signed an Affidavit in support of Mr Moors performance of the Consulting Agreement 8 The Recovered Title procured by Moore is used in Adversary 641 Page 4 of 12 15. PROBATE COUNSEL OPINION: BY the Debtors own admission her probate Counsel, Boone Weinstein have confirmed that the July 9, 1997 Stipulated Agreement was 10 proved by the Westport Probate Court on September 4, 1997. See Adversary Complaint 247, Document 1, Paragraph 29. 16. The adverse Possessor(s) in this Case are Jess S. Morgan and/or Bernard Edwards Company, LLC and to some degree 1 1 Warner Chapel, as neither party has provided a Certified Probate Court Copy of the Document dated July 30, 1997 or the Co- publishing Agreement dated August 21, 1997 or July 21, 1997 with court orders attached. These Documents were not approved by the Westport Probate Court and the Co-pub doesnt even appear in the Probate Card Catalog of that Court, in fact the Corner, Therefore clear title could not and did not pass to Jess S. Morgan, Wallace Frisson, Bernard Edwards Company, LLC or earners Chapel under the Co- publishing Agreement or the Document Entitled Settlement Agreement Dated July 30, 1997 from the Estate of Bernard Edwards. See attached Probate Card Catalog and Letter from the Westport Probate Court attached hereto as Exhibit F. DISCUSSION 17. Bankruptcy Code 5541 (a) provides that when a debtor files a petition, an estate is created consisting of all legal or equitable interests of the debtor in property as of the commencement of the case. 11 U. S. C. 5541 (all) (emphasis added). Congress intended said section 9 Boone Weinstein acknowledge in writing on December 10, 2012 that they Received Documents and a Summary All Prepared by Eric Moore 10 The Probate Court Confirmed to me in writing on November 27, 2012 that the alleged Co-publishing Agreement and July 30, 1997 document were not Probate Court Approved and had No corresponding Court Orders attached. 11 Warner Chapel is the actual Publishing Administrator but they have no agreement with the debtor and the 10% fee has never appeared on the debtors royalties Statements, for the last 15 ears she was mislead and informed that Jess S. Morgan or BECK, LLC were her administrator and therefore charged her a 5% fee (See Exhibit D Paragraph 4) 12 Warner Chapel plead that the Debtor was bound by the agreement dated July 30, 1997 that arrived to the Probate Court on August 28, 1997, See Doc 98 Page 3 Paragraph 7, this alleged Settlement Agreement Was not approved by the Westport Probate Court and the Co-publishing Agreement that Arose out of it contains a Fake Probate Court Stamp Page 5 of 12 to be construed as broadly as possible to encompass all types and kinds of property. Matter of Hundreds, 85 B. R. 99, 1003 (Banks. S. D. Iowa 1988). As such, all legal or equitable interests of Debtor Hearer-Edwards needs to be ascertained by this Court for the purpose of distribution and/or the creation of the debtors plan. 18. The alleged Settlement Agreement dated July 30, 1997 was not approved by the Probate Court and is therefore a false document. The alleged Co-publishing Agreement arose out of that Unapproved July 30, 1997 Settlement Agreement and is, therefore also false. It is well settled that one cannot rely upon a document that has sprung forth from a false document. This is considered fruit of the poisonous tree. Although that legal doctrine is typically relied upon in criminal matters, the concept has also tree) of the evidence or evidence itself is tainted, then anything gained (the fruit) from it, is tainted as well. The Co-publishing Agreement cannot be valid because it sprung forth from a Settlement Agreement that was never approved by the Court. Fruit of the poisonous tree. Further, presenting the July 30, 1997 Settlement Agreement as a court approved document is fraud. A contract procured by fraud is unenforceable by the wrongdoer. The issue of whether a contract procured by fraud s void as to the wrongdoer is a matter of law. The standard of review of decisions of law is De novo. See Execute Bus. Sys. V. New OZ Paper Co. , 752 So. Ad 582 (Flaw. 2000). 19. Florists well-established public policy is not to permit nor tolerate a person to benefit from his own wrongful acts. Florida Federal Courts have enunciated the policy in Showed v. Patterson, 49 So. Ad 848, 849 (Flaw. 1951) holding that no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or found any claim upon his own inequity, or profit by his own crime. This basic and monumental principle has been applied to contracts. In Florida, [a] contract procured through fraud is never binding upon an innocent party thereto. As to him, such contract is avoidable; as to the wrongdoer, it is void. (emphasis added) Florida East coast Railway co. V. Thompson, 111 so. 525, 527 (Flaw. 1927); Winter park Telephone Co. V. Strong, 179 So. 289 (Flaw. Page 6 of 12 1937); Deforested v. Public super Markets, Inc. , 648 so. Ad 1256 (Flaw. 4th DC 1995); Buchanan v. Clinton, 293 so. Ad 120 (Flaw. 1st DC 1974). 20. When a contract is void as to a party, the contract is unenforceable by that party, and hat party cannot recover under the contract at law or in equity. Shall v. Race, 135 So. Ad 252, 257 (Flaw. Ad DC 1961). Florists public policy prohibits a person who procures a contract by fraud to benefit from his fraudulent acts at the expense of the innocent party. In furtherance of this policy, the First District Court of Appeal stated: [C]routs have an affirmative duty to avoid allowing a party who violates public policy to receive any substantial benefits from his or her wrongdoing. Thus, as a general rule, if the enforcement of a contract is contrary to the public policy of the forum Tate, the contract need not be enforced. This rule is based on the rationale that there can exist no legal remedy for that which is itself illegal. Title Trust Co. Of Florida v. Parker, 468 So. Ad 520, 521 (Flaw. 1st DC 1985) (citations omitted). (emphasis added) Based upon these clear and concise precedents, as well as public policy, the Settlement Agreement dated July 30, 1997 and the Co-publishing Agreement dated August 21, 1997 are void and unenforceable as a matter of law. 21. And is the result of a confidential and court-approved settlement agreement (Settlement Agreement) dated July 30, 1997 Paragraph 7 of Mandelas Declaration), is a violation of Flaw. Stats. S 92. 525 Verification of documents; perjury by false written declaration. S 92. 525(2) states: (2) A written declaration means the following statement: Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true, followed by the signature of the person making the declaration, except when a verificat ion on information or belief is permitted by law, in which case the words to the best of my knowledge and belief may be added. The written declaration shall be printed or hyped at the end of or immediately below the document being verified and above the signature of the person making the declaration. It has been proven by a preponderance of the evidence that Richard Mandelas Declaration is untrue because this alleged court-approved document does not appear anywhere in the Courts log. Further, pursuant to Flaw. Stats. S 92. 525(3): A person who knowingly makes a false declaration under Page 7 of 12 subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 75. 082, s. 775. 083, or s. 75. 084. So there may be other issues at play here as well, criminal issues, regarding presenting false, so-called court approved documents when they have never been court- approved. Jimmy D. Parrish, Sees. , attorney for Jess S. Morgan, Wallace Frisson and Bernard Edwards Company,LLC. , has stated in open court on February 15, 2013 in the Bankruptcy C ourt, Tampa Division, Case Number 12-BC-15725-CRM, that the full blown settlement agreement outlines that Ms. Edwards is entitled to 37-1/2 percent of an income stream in an interest in the composition -copyright from the compositions. See Hearing Transcript on page 26, lines 13-16, attached hereto as Exhibit F.