Opposition Filed by Friedlander to Trustee's Motions 3.27.13.

7/29/2019 Opposition Filed by Friedlander to Trustee's Motions 3.27.13.

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UNITED STATES BANKRUPTCY COURTDISTRICT OF NEW MEXICO

In re:JEFFERY WATSON POTTER

No. 05-14071-s7Debtor.

FRIEDLANDERS OPPOSITION TO THE RELIEF SOUGHT IN DOC 1056 AND 1057

OPENING STATEMENT

Had it not been for my expert legal service performed by me prior to the trumped

up Bankruptcy filing by an incompetent bankruptcy lawyer by the name of Pierce there

would be no Estate for this corrupt Trustee and her attorneys the David Giddens law

firm to administer. I am only casting these stones on the Trustee (also a lawyer) and

the Giddens law firm, not Judge Thuma, who competently represented the Trustee in

the litigation against me and others that resulted in the SETTLEMENT AND RELEASE

AGREEMENT that was filed by the Trustees attorney on 3/4/13 as Doc 1057 while I

was flying from Bangkok to LA. I did not read this document until the day before the

hearing on 3/7/13 while I was jet lagged from 20 flights over 32 days in Asia. The

Trustee and Giddens both knew that I was not traveling with a computer and that I

would be reading this document just before the hearing without having an opportunity

to respond. Then the Trustees attorney had the gall to tell this Court that I did not

need the time to file a written response, which this Court disregarded and allowed me to

file an opposition on or before 3/28/13. I have delayed preparing or filing this opposition

until 3/27/13 to give myself a cooling off period. I am cooled off

I request this Court to take Judicial Notice of my Request for Status Conference

that I prepared on a hotel computer on 2/10/13 in a hotel in Agra India. It not only set

forth the facts but it set forth my request that the Court set the two Adversaries filed by


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the Trustee challenging my claims as a secured creditor setting forth spurious facts

and claims against my lien claims, and also insulted me by stating that my work was

worth very little and that all I had was an unsecured claim. The Trustee and her

attorneys cast the first stone.

This is what I did BEFORE the bankruptcy petition was filed by Pierce with false

schedules in 2005 to cover up Bregmans malpractice and abandonment of Potter as an

attorney. The Chapter 11 was a false pleading. I have alleged this claim before, which

has never been adjudicated, due to the cover-up by the US Trustees Office.

At the time I became Potters lawyer, Potter claimed he was broke (no money).

I do not vouch for anything Potter says in that regard because I did not know whether he

had any money to pay lawyers or not. I just took his word for it. I believed but did not

verify violating President Reagans advice. Potter had received foreclosure Notices by

the Bank of America on his house, which he valued in his sworn schedules to be

$1,750,000 based upon my present memory. He filed the BK in 2005 and he retained

me in 2003. I do not know what his house was worth in 2003. Mel O Reilly, the lawyer

he hired to represent him in the Cook action in State Court, had not only malpracticed,

but he had filed a motion to be relieved as counsel without notice to Potter, and the

Court granted that Motion. Thus, Potter was without an attorney in the Cook action. His

attorney malpracticed in that he allowed a Receiver to be appointed over the Potter-

Cook real estate properties and did not file a Motion to Dismiss the false complaint on

that grounds that the Operating Statement for the joint LLCs required a coin toss to

resolve disputes. Cook and his shady lawyers wrongly captioned the Complaint, which

was verified, and did not make any demand on Potter to TOSS THE COIN to settle the


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disputes. They attached the Operating Statement to their Verified papers, which stated

the COIN TOSS provision in black and white. In other words, Cook and his shady

attorneys intentionally breached the contracts requiring the COIN TOSS. The coin

toss was a condition precedent and a violation of the contracts. I characterize these

lawyers as shady because they intentionally violated the provisions of the contract and

caused the State Court Judge to appoint a Receiver. Where I come from lawyers who

commit those acts are shady. These lawyers violated the Rule 11 provisions set forth

in the NM Codes, which are similar to Rule 11 of the FRCP.

Then the Receiver entered into a collusive arrangement with the Receiver

prior to the filing of the complaint and Motion for a Receiver by entering into a

sweetheart employment agreement and sought approval of the State Court judge. It

was a Sweetheart agreement because of a prior relationship between the Receiver

and Cooks bank. The employment agreement sought fees for performing Receiver

work and earned commissions as a broker on each sale. The Receiver and Cook both

knew that Potter had the Exclusive. The Receivermilked the appointment by collecting

BOTH fees and commissions for doing the same work. The Receiver appointed an

attorney who applied to the Court for both fees and costs for BOTH of them. The

complaint that I filed in Federal Court in NM alleged causes of action against the

Receiver, who the Bankruptcy Trustee entered into a collusive settlement agreement to

pay the Receiver additional fees and costs. For what? The Trustee had to obtain

approval of the State Court Judge for additional fees and costs. No approval was

sought.


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When I was employed, I was stuck with a negligent answer filed by O Reilly who

did not move to dismiss or defend based on a condition precedent. IT IS BLACK

LETTER LAW IN CALIFORNIA, NEW YORK, AND NEW MEXICO THAT THE

PLAINTIFF COOK HAD TO PLEAD AND PROVE THE CONDITION PRECEDENT. IT

WAS NEITHER PLED NOR PROVED BECAUSE IT DID NOT HAPPEN. That is a

winner for the BK Trustee. Pretty much, slam-dunk. I valued the Cook lawsuit that I filed

at a minimum of $10,000,000, not counting the punitive damages that I was seeking as

Plaintiff, pro se in that case. THERE WAS NO OTHER PERSON IN NEW MEXICO

THAT KNEW THE FACTS AND VALUE OF THAT CASE BETTER THAN I DID YET I

WAS NEVER CONSULTED FOR A VALUATION, NOR WAS ANY APPRAISER

APPOINTED TO EVALUATE THE VALUE OF THE LAWSUIT. As far as I am

concerned, the Trustee and the Giddens firm are taking a dive. I have standing to

allege that whether I am a secured creditor or unsecured creditor. Both the Trustee and

the Giddens law firm have violated the Bankruptcy Code and Rules by breaching their

fiduciary duties to me and the other unsecured creditors of this Estate, and they have

MILKED the Estate by all of the fees and costs they have run up with my objections to

the collusive settlement.

Prior to Bankruptcy, and when I was employed, Potter was in default for not

timely responding to discovery because OReilly did not do the work, nor did Potter

know how to do the work. IN OTHER WORDS, I SAVED THE ESTATE THE VALUE

OF THE COOK LAWSUIT, WHICH IS BEING SETTLED FOR PEANUTS. I earned my

fees and costs, and I was entitled to be paid out of the funds held by the Receiver. The


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Trustee did NOTHING TO PROSECUTE THAT LAWSUIT. She should be surcharged

and the collusive settlement set aside and not be approved.

I also stopped the Foreclosure by appearing in the State Court Lawsuit filed by

the sheister Bank of America (see the findings of the FDIC and the SEC on the frauds

pulled by that Bank requiring that Bank to pay billions to settle those claims along with

otherBankster. I not only stopped the Bank cold in its tracks, I discovered, not the

Trustee that Potters house was on 3 lots, only one being encumbered by the Bank. The

Homeowners Assn is contending that a foreclose requiring a sale of the House would

require a Lot Split prohibited by the CC&Rs. The Banks lien is worth Zero, as they could

not have caused a foreclosure sale for it would violate the Homeowner Rules. Since

Potters House was valued at $1,750,000 in his BK schedules, I saved the Estate

$1,750,000. What did the BK Trustee do, except sell the property using a Broker? Big

Deal. The Broker did the work and earned the commission while I saved the property

itself from foreclosure. What is that worth? Certainly more than the $350 and hour

that I am claiming. I gave a discount to Potter as I was charging my other clients

$450 an hour.

I did not pad my bills. I personally did all of the work. The research, the

preparation of papers, the Court appearances in the State Court in NM. I had no

associates or partners to do any of the work. All of my fees were not only reasonable

and necessary, they were very low.

Read my resume. Look at my qualifications. Frankly, I was able to determine a

course of action for Potter in only a few hours. All of the required knowledge was in my

head. I have almost total recall, even at the age of 75. I graduated from a Law School


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(Northwestern) that was ranked in the Top 10. My grades were high enough to be

selected to work on the Law Review and to be given, not even requested, a full tuition

scholarship, plus a matching non-interest bearing loan for the tuition amount. I was not

admitted with a scholarship. I earned it with my First Year Grades of being in the Top

10% in one of the Top 10 law schools. I also received the highest grade in my class in

Constitutional Law, which supports my constitutional arguments that I raised contending

that the Trustee violated my 1st, 5th, and 14th Amendment by trying to stifle me and to

take my property without payment and due process of law. Each of those contentions

gives me a Civil Rights action against the Trustee and others. The trustee does not

enjoy any immunity from her crimes.

Then I reviewed all of the pleading and law in the French & French lawsuit in

which a judgment of $750,000 was entered against Potter and the LLC, joint and

severally, which judgment created a lien on all property recorded in Potters personal

name, which included his house and the Galileo property. I prepared, researched NM

law, and filed the briefs. The judgment was overturned freeing both the Galileo and

House properties from the $750,000 judgment lien, which was recorded. I thus

saved the estate about $1,000,000. What is that worth? I overturned a NM

judgment without even being a NM lawyer.

Everything in the Estate is due to my work pre-bankruptcy. There would

have been no BK and no Trust Estate had it not been for my work. All of these papers

filed by the Trustee against me are not worth anything. They are trying to paper me to

death.

THE PROBLEM


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Every issue in the State Court lawsuits was previously researched and handled

by me. I knew the law whether it be NM or California or Federal. I had written two

appellate briefs for the California Appellate Courts involving LLCs prior to Potter

employing me. I was one of the most knowledgeable attorneys in Los Angeles on this

subject involving these new LLC statutes adopted by the various states in the US,

including California and NM. I knew then and I know now that a Creditor cannot execute

on the LLC holdings of Potter, without first obtaining a Charging Order. No charging

order was ever obtained by any creditor. I listed to the nonsense spouted by

Bannerman during the hearing and I found it difficult to restrain myself from listening to

the wrong law coming out of the mouth of a good lawyer. Yes, Mr. Bannerman is a good

lawyer, but I am better. I could defeat Bannerman and Engel toute suite if the

malpractice case went to trial. I had previously handled at least six legal malpractice

cases in California going to settlement or trial by jury. I won every one. I am a

malpractice expert. So was my co-counsel, Mr. Baker, but I had the business

knowledge involving LLCs which Mr. Baker did not have. Therefore, I had the

malpractice and business knowledge, and thus was a more knowledgeable and

experienced lawyer by Mr. Baker. Mr. Baker, to his credit, wanted me to carry the

laboring law on damages relating to the destruction of Potters LLC assets, which I did.

On the day that I first met Bannerman, we had a repartee in a friendly way. He

told me that he was General Patton. I said monsieur, I am General Patton. I am a

military history expert, especially WWII. I have personally visited the Kaserine Pass in

Tunisia where Patton had his first battle in the Desert Campaigns against Rommel. I

visited El Alemain. I visited Sicily and every location where Patton s 7th Army fought.


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Sicily was Pattons biggest success in the beginning of the War. I visited the D Day

beachheads in Normandy twice using battle maps. To the chagrin of my wife, I did the

whole Battle of the Bulge, visiting every town and village including Bastogne with battle

maps. The 101st Airborne and Pattons 3rd Army are credited with defeating the German

Army and going all the way into Germany. I did a 7-day bike ride in Alsace at age 55

visiting all of the towns that Patton captured.

HERE I AM, AN ATTORNEY FROM ANOTHER STATE, NEVER HAVING BEEN

IN NM BEFORE, and I was knocking the crap out of my opposition. I am a burr under

their saddle, because I am smarter, more knowledgeable, than any attorney I opposed. I

was aggressive like Patton and audacious. That is why I was such a successful trial and

appellate lawyer. They all wanted to get rid of me then and now, but I stick like glue.

They either settle at a fair price or litigate. Do not think I do not hear the sighs in the

background from my attorney opponents during our telephone conferences.

Since I am responsible for securing all the assets in the Estate pre-bankruptcy, I

earned my money and I demand to be paid. THE TRUSTEE AND I CANT SETTLE

THE CASE BECAUSE THE TRUSTEE AND HER LAWYERS DONT KNOW THE

LAW AND FACTS, AND THEY ARE DISHONORABLE AND UNETHICAL. If they want

to get rid of me, either settle or go to trial. IF THEY REFUSE TO SETTLE, THEY ARE

STUPID, AS I WILL WIN AT TRIAL.

This Court is without jurisdiction to deprive me of my secured claims by

this stupid and collusive settlement without first trying the Adversaries against

me. Mr. Thuma will be a material witness for me since he and I personally negotiated

the settlement in good faith. I never promised to be a potted plant while the Trustee


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committed torts damaging my personal interests in the Estate Property. THEY WANT

TO SHUT ME UP AND SHUT ME DOWN. I am ready for these people. I WANT TO GO

TO TRIAL NOW, NOT LATER, AS I AM 75, WITH AN EXCELLENT MEMORY BUT

WITH SOME PHYSICAL DIFFICULTIES OF A MEDICAL NATURE. ARE THEY

WAITING ME TO DIE? Sorry I do not lose that way.

All of the Motions filed against me should be denied and this case should not be

settled without my prior approval or consent, as it would deprive me of my constitutional

rights. As President Bush stated, Bring it on.

ARGUMENT

Engel committed malpractice and through subterfuge, he bought the judgment

that resulted that resulted from his malpractice from French & French and purportedly

executed on that judgment. He is benefitting from his own wrongdoing. (See Doc 14

filed in 11-01042-s) filed by Engel in answer to the First Amended Complaint by the

Trustee. In other words, the Trustee herself was challenging the validity of any claim of

lien on the property of Potter.

I have practiced law for almost 50 years. I have handled many attorney

malpractice cases against Attorneys in my career. In my opinion, Engel committed

malpractice that caused the financial demise of Potter.

For the record, Potter recorded a deed in favor of the California Trust on the La

Vista Property September 15, 2003. On November 2, 2007, Gudwin assigned said

judgment to Engel on November 2, 2007. (See paragraph 3 of Engel Answer.) On the

date of the recordation, Potter was not in record title and therefore NO LIEN was

created on the La Vista house, let alone a lien superior to Friedlander.


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For the record, the LLCs which Potter controlled, assigned their interest in said

LLCs to the California Trust in which first Danilovic and then Friedlander was the

Trustee of this California Trust. Under New Mexico Law, execution liens are not

effective to create a lien on interests in LLCs. The only method to obtain a lien was by

charging order. No charging order was ever obtained by Gudwin or Engel. No

interest in the property of the LLCs was created by the execution. Engel does not have

any lien, let alone a prior lien.

The Trustee knows this and has known this law for quite some time, yet she

continues to go forward with the Engel Settlement. That is why I have filed motions to

Intervene and to Prosecute as an interested third party. The Trustee has been conflicted

out and has breached her fiduciary duty.

BOTH THE ASSIGNMENT AND THE RECORDED DEED IN FAVOR OF THE

TRUST HAS BEEN FILED IN THESE CASES FOR A PERIOD OF YEARS. THE

TRUSTEE CANNOT CLAIM IGNORANCE.

FRIEDLANDERS CLAIM OF LIEN

My records reflect that I first met Potter at my home office in Los Angeles on July

17, 2003. I had never met or heard of Potter before said date. That meeting lasted 2

hours. During that 2-hour meeting, Potter told me that he had employed an attorney by

Jeff Baker, a licensed NM attorney who had offices in Albuquerque NM. Potter told me

that he had employed Baker to sue Engel for attorney malpractice and that there was an

action pending. Baker was being compensated on an hourly basis, plus costs. Potter

was running out of money and inquired as to whether I would take the case on a

contingent fee. After the meeting, I researched the law of attorney malpractice in NM


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even though I had handled over dozen-attorney malpractice cases in California. I

wanted to make sure that there were not any significant differences between NM and

California law. I devoted 1.5 hours to this research.

I then flew to NM on 7/28/2003 to meet with Potter on the Engel case and the

pending appeal from the judgment against Potter and Summit Investment Co, LLC since

I was to write the appellate brief. On 7/29/03, I prepared a letter to Baker about the case

and on 7/30/03; I had a telephone conference with Baker about the malpractice case. I

was looking at this malpractice as the proximate cause of all of Potters damages. I was

more familiar with LLCs, limited partnerships, and corporation than Mr. Baker was, and

came to an early opinion that Potters financial difficulties all arose out of the Judgment

that was on appeal.

On 8/18/03, I spent many hours reviewing the records sent to me by Baker.

Potters object in hiring me on a contingent fee was to relieve himself of the hourly fee

burden to Baker that was draining his financial resources.

I satisfied myself that Engel had malpracticed and that a potential recovery would

exceed $1 million and I was prepared to take the case on a contingent fee with Baker to

be my local counsel since I was not licensed in NM. I prepared the retainer Agreement

for the Engel case and sent it on to Potter for review. Potter wanted to make changes to

the documents, which were satisfactory to me. On 9/18/2003, I faxed to Potter the

Agreement. I have pasted hereto a copy of a portion of that fax.

Dear Jeff:

I have reviewed and discussed your changes to the retainer agreement. It is our

understanding based upon our discussions that you wish your fee and cost payments to


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Mr. Baker to be treated as a cost of litigation to be subtracted from any gross

recover, in order to arrive at the net upon which my 1/3rd fee is b ased. For example, if

I recover $300,000 without incurring any expenses, then my fee, under the original

agreement would be 1/3rd of $300,000, to wit: $100,000. Under the revised agreement,

we subtract Bakers fees (letus say $30,000) to arrive at a netof $270,000, and my

fees will be 1/3rd of $270,000. In other words, I will be picking up 1/3 of the fees you

pay to Baker as costs. That is agreeable, so long as my fees, based upon this formula,

based on an affirmative recovery at least equal Bakers fees. In other words, I do not

wish to earn less than Baker, so long as there is a sufficient recovery, to pay Baker and

myself, without dipping into your pocket to pay me any fees. If we lose the case, I

recover no fees and Baker retains whatever fees you paid him on an hourly basis.

Furthermore, the only case I have agreed to represent you on a contingent fee is

the malpractice case against Engel. If I handle the appeal or any other matter for you,

my fee will be $300 per hour plus costs. So far, the only litigation that I am handling for

you is the Engel malpractice case. I am trying to get Engel malpractice carrier to pay my

fees on the appeal. If that does not come to fruition, we will have to reach an agreement

on the appeal and other matters.

Attached hereto, please find the following:

1. The retainer agreement as revised by you bearing my initials to the

changes based upon our understanding reflected by this fax.

2. My letter to Bannerman as revised and approved by Baker.

3. My letter to OReilly.


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The original signed and initialed agreement may be located in the dozens of

boxes of files in storage or may be in possession of Potter. I have not spoken or

communicated with Potter in years. The same is true with respect to the other Retainer

Agreement. However, I specifically recall Potter signing all of the documents and that

they exist.

I have time records for all the work that I performed in my files.

On 8/26/2003, 8/27/03, 8/28/03, and on 8/29/03 I appeared in Sante Fe NM to

attend the depositions of Engel and Potter along with Baker and Bannerman.

On July 29, 2003, I prepared a letter to Jeff Baker and Potter wherein I analyzed

and commented on the malpractice case and the pending appeal. Pasted hereto is that

letter:

July 29, 2003

Mr. Jeffrey L. Baker

The Baker Law Firm

20 First Plaza

Suite 402

Albuquerque, New Mexico

Re: Potter v. Engel

Dear Jeff:


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Both you and Jeff have requested the undersigned to analyze and comment

upon the present appeal and malpractice action. Some of my comments are as follows:

1- Potter stated that Engel received a portion of the real estate commissions,

disguised as legal fees, for closing the purchase transaction, in which he negligently

counseled his client to substitute Summit for French & French and to execute an

indemnity agreement both personally and as manager of Summit in favor of the seller.

Engel breached his fiduciary duty to both Potter and Summit since Engels interest was

generating a commission for himself disguised as legal fees. He was not a licensed

broker in New Mexico. He violated his duties under the rules of professional practice

promulgated by New Mexico. In California, that would be a separate ground for

malpractice. Breach of fiduciary duty is an intentional tort for which punitive damages

may be claimed. There are other facts that you related to me yesterday that would also

support a malpractice claim v Engel. He also had a course of dealing in which Engel

would extract commissions from Potter in the guise of legal fees, in violation of New

Mexico law.

2- You also advised me that Engel defended Potter and Summit in the ensuing

action brought by French & French, who was subsequently substituted out in favor of

the attorneys who ultimately tried the case. Now it is in the hands of new attorneys who

are purporting to write the appeal for Potter and Summit. In my opinion, all of these

attorneys have malpracticed for the following reasons:

A. Aside from the seller of the property, the two defendants were Summit

Investment Company LLC, a New Mexico LLC; and Jeffery W Potter, individually. The


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exhibits attached to the complaint reflect that Potter signed for Summit as its Manager.

Bells should have rung for any competent attorney. Potter signed for Summit as its

authorized agent, i.e., its manager. Summit was the contracting party, not Potter. I am

sure that Potter will advise you that Potter was the Responsible Managing Employee for

Summit, as far as the Real Estate License held by Summit. In other words, Summit was

a licensed broker in New Mexico solely due to Potter being a licensed broker who was

the RME for Summit. Potters agency was on the face of the complaint. Under general

contract law if a disclosed agent enters into a contract on behalf of a disclosed principal,

the agent cannot be held liable personally for breach of contract.

B. The face of the complaint reflects that Summit was an LLC. I am enclosing

the relevant New Mexico statutes, which shield its members and managers from

personal liability when acting for and on behalf of the LLC. I am also enclosing the

operating agreement for Summit, which reflects Potter as its Manager. The articles were

filed with the State of New Mexico. If this document is not in evidence, then the Court of

Appeal should be requested to take Judicial Notice of the same as wells as the

enclosed amendment. The Amendment made Jeffrey the sole member. Engel and the

other attorneys representing Potter and Summit should have known of the limited

liability status of Summit and that Potter was its disclosed agent, and should have

moved to dismiss Potter on the contract claim as well as the tort claim.

C. Potter, when he substituted Summit for French & French did so as the

disclosed manager of Summit. As the disclosed manager, he cannot conspire with or

cause a breach of a contract that he signed as its agent. I am enclosing the California

Supreme Court cases on this subject. Engel and all the succeeding attorneys should


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have moved to dismiss the interference claim on which the tort and punitive damage

claims are based. Failure to defend or appeal on this issue is malpractice. I am

enclosing all of the relevant cases for Potters New Mexico attorney to read, analyze,

and assert.

D. The bottom line is as follows. If there was to be a judgment for breach of

contract, which I will discuss later, the cause of action should only have been asserted

against Summit, which is a separate legal entity under New Mexico law. A judgment

against Summit would be worthless; however, a judgment against Potter has destroyed

him. The recordation of the contract and tort judgment against Potter in counties in

which Potter owned real property in his personal name, such as his home, and the

interest with a 3rd party friend, has created a judgment lien against Potters real

property assets, precluding their sale or refinancing, which totally has precluded Potter

from hiring competent legal counsel to defend and prosecute his legal actions vis a vis

Cook. Potters credit and reputation has been destroyed. His damages can be

calculated in the millions of dollars. If he loses his house, we have a $750,000 loss

there, if he cannot sell his interest, we may have a 6-figure loss there since his co

tenant may sue Potter for the lost profits due to her inability to sell her undivided

interest.

E. It appears to me that the maximum exposure would be a contract

judgment against Summit for the commission, attorney fees, and court costs. There

should be no judgment against Potter personally.

CONCLUSION


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I would make demand on the insurance carrier for Engel to bond off the judgment

on Potter only, that is now on appeal, so that Potters assets can be released for his

legal defense and curing of the default on the first mortgage on Potters house. The

insurance company, which is an admitted carrier in New Mexico, can post the bond,

without security and without payment of fees. If they refuse to do so, then they will be

acting in bad faith toward Engel, since they are refusing to mitigate Engels damages to

Potter. The insurance company should also be requested to fund the appeal from the

judgment against Potter and Summit. Summits damages are the commissions, attorney

fees, costs, and be subjected to a charging order in the big litigation. The judgment is

joint and several.

Then I would make a policy limits demand on Engels carrier thereby opening up

Engels policy for a judgment in excess of the policy limits.

I would act immediately on this to prevent Potter from going down the drain.

Then I would write a letter to Potters appellate attorneys to cover the issues

raised in this letter for the appeal. If they fail to do so, they will be malpracticing. I would

prefer this letter coming from you, as you suggested. I would also appreciate your

sending this letter to me for my review prior to it being mailed. If you would like me to

work with you on this matter, I would be happy to do so if I can be admitted pro hac

vice.

Very truly yours,

cc: Jeff Potter Martin S. Friedlander, Esq.

On September 10, 2003, I wrote a letter to Bannerman, Engels attorney that is

pasted hereto.


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LAW OFFICES OF MARTIN S. FRIEDLANDER

10350 Wilshire Blvd.

Suite 603

Los Angeles, California 90024

Telephone (310) 278-1808; Fax: (310) 278-7330

E-Mail: [email protected]

September 10, 2003

Mr. John Bannerman

Bannerman & Williams PA

6400 Uptown Blvd., N.E.

Suite 200W

Albuquerque, New Mexico 87110-4278

Re: Potter v. Engel No. D-0101-CV-97 Via fax only 505-837-1800

Dear Mr. Bannerman:

You have now received a letter from Eric Sommer as to what his client is willing to

do with releasing the lien on both the Galisteo property and the residence.

Let us first address the Galisteo property. That is real, not just a prospect. The

amount of the bond is set forth in Sommers letter of 9/10/03. I do not know what the

ultimate sale price will be, but the encumbrances are set forth in the preliminary title

report in the possession of Barker Realty, which you are authorized to obtain. Let us say

that the net proceeds to Potter will be $50,000, after the payment of the first mortgage,

the tax lien, property taxes, the commissions, and the escrow costs. The bond will be

$50,000.


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All of the proceeds of the sale will be released to Potters Trustee, which now owns

his interest in the Galisteo property and his residence, the purposes for which will be the

funding of the appellate fees and costs to appeal from the French & French judgment, to

cure the default on his residence, and the payment of litigation costs in the Cook

litigation, as well as Potters living expenses. None of the proceeds will be left in escrow

as security for the bond.

If, and when, Potter secures a buyer for his residence, we will then be in a position

to discuss the amount of the CNA bond since the net proceeds will be in a position of

Mathematical determination.

I have outlined my theories of malpractice to you, which are not exclusive. There are

many theories of recovery, and to me they all look viable. I have not been able to pass

on your $25,000 settlement offer to Potter since he is out of town, and therefore I have

no response at this time.

In conclusion, let us do the Galisteo deal, to enable Potter to have the funds to pay

for the appeal, attempt to cure the default on his house, and to litigate against Cook.

Very truly yours,

cc: Baker and Client Martin S. Friedlander, Esq.

Bannerman refused to act.

I thereupon prepared and submitted the Appellate Brief to the NM Court of

Appeal. Even though I was not a NM attorney, I was successful in obtaining a published

opinion reversing the judgment against Potter, individually with the Judgment against

Summit Investment Co, LLC remaining. The recording of the Judgment of Reversal

against Potter individually discharged any judgment lien of French & French against any


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real property where title stood in the name of Potter. This freed up Potters house and

the Galisteo property from the Judgment lien. At the time of the reversal of the

Judgment against Potter individually, the execution of the French & French judgment

against any property standing in the name of Potter attached to nothing. The automatic

stay was also violated by Engel buying the judgment against Potter and then enforcing it

by writ of garnishment.

BOTTOM LINE

Engel has nothing except a huge liability to the Trustee standing in the shoes of

Potter. For the Trustee to say that my work is worthless and that I do not have a prior

lien on the claim of the Trustee against Engel is very specious. I did all the work and

produced the results for which the Trustee has dealt away my rights.

GROUNDS TO INTERVENE, TO REMOVE THE TRUSTEE, AND TO DENY

THE COLLUSIVE SETTLEMENT.

1. Gonzalez has done nothing to prosecute Friedlander v. Cook filed by Friedlander

and assigned to Gonzales. (Estimated Value $10 million)

2. Gonzalez has done nothing to prosecute Potter v. Engel. (Estimated Value of $1

million plus) Discovery conducted by both Friedlander and Baker reflected many

grounds of attorney malpractice, including, but not limited to, advising Potter not

to pay French & French a real estate commission; not raising the meeting of the

minds defense. Said negligence resulted in the F & F judgment and the

subsequent collapse of Potters vast real estate holdings. Now, Engel, with the

connivance of others has attempted to buy F & Fs judgment to become a

secured creditor. Gonzalez promoted that settlement.


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3. Gonzales failed to prosecute Potters Insurance Claimsrelating to Potters house.

(Estimated ValueValue of House in 2005) Friedlander investigated these

claims as an experienced Insurance law litigator and he opined, with the advice

of experts he employed, that Potter had viable claims for both compensatory and

punitive damages.(Estimated Value--$1.3 million plus)

4. Gonzales sold Potters Claims v Mountain States for approximately $5,000 and

the claim v. Patterson for approximately $7,000.00 Friedlander was precluded

from objecting due to the terms of his Settlement Agreement. (Estimated Value

All of Potters Defense Costs and expenses in defending the lawsuits

commenced by Cook and the entities he owned and/or controlled, including the

damages caused Potter by virtue of his Bankruptcy and Objection to his

Discharge) (Estimated Value--$10 million) Friedlander commenced this lawsuit

as he was an experienced Bad Faith Insurance litigator and in his opinion, the

claims were wrongfully denied by Mountain States.

5. Gonzalez recommended a settlement with Cook who was not personally a

member of any of the two party LLCs and certainly was not a secured creditor of

Potter. Cook is owed nothing but Cook has damaged Potter in excess of $10

million.

6. None of Cooks LLCs filed claims as a Creditorin the Potter bankruptcy and are

not creditors, but debtors.

7. Cooks lawyers filed a lawsuit representing LLCs owned by Potter without

Potters authority and put Potter into Receivership. Intentional misalignment of

the parties. (Estimated Value--$10 million)


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8. Cook and his lawyers breached the Membership Agreement by not alleging a

condition precedent namely the coin toss BEFORE filing the spurious lawsuit

that put the entities that Potter and Summit managed into Receivership.

(Estimated Value--$10 million)

9. Gonzalez recommended a settlement paying Valley National Bank, which was

not a secured creditor of Potter, but controlled by Cook, and in so doing,

knowingly violated the Bankruptcy Code as to payment of creditors by class.

Gross mismanagement of Estate Assets and deprived Friedlander of his security

interest in the funds. Gonzalez has no immunity for this intentional

wrongdoing.

10. Judge Browning permitted the lawsuit v. the Receiver to go forward for the

Receivers wrongful activities before the State Court Judge signed the

appointment order. Friedlander had evidence of those pre lawsuit activities by the

Receiver. Gonzales never requested such evidence from Friedlander.

11. The Receiverinterfered with Potter and Summits exclusive right to receive

commissions from sales of real estate owned by the joint LLCs. The Receiver

and Cook were duplicitous in seeking double compensation for doing the same

work. Commissions for sales and fees for the same sales. The Receiver sold

these properties at less than fair market value over the objection of Potter and

the undersigned. The Receiver should be surcharged not rewarded. (Estimated

value--$1 million plus)

12.Gonzalez recommended paying a portion of the funds in the Receivers

possession to the Receiver, which was not compensable, without an order of the


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than Friedlander. Gonzales failed to allege that the CC & R against lots 10, 11,

and 12 were invalid and not lawful. Gonzales failed to allege the claims asserted

in the State Court lawsuit filed by Friedlander in the LA Superior Court. Gonzales

has been so utterly negligent in performing her duties as case trustee that all of

the fees and expenses incurred by her equally negligent attorneys should be

barred as an enforceable administrative expense of the Estate in the event that

there are funds left over to pay the administrative expenses of the estate. The

same would be true as to all other administrative expenses of the estate incurred

by Gonzales former lawyers, one of which has been appointed a Bankruptcy

Judge in this District. Last, by not least, the Trustee breached her settlement

contract with Friedlander, by breaching the implied covenant of good faith and

fair dealing. That is both a breach ofcontract and constitutes the tort of Bad

Faith and Prima Facie Tort under NM law. That Agreement was approved by

this Court and has the force of a judgment which may be enforced as such by

and Order to Show Cause for Contempt.

14.Gonzalez has an irreconcilable conflict of interest in representing the Estate and

paying secured creditors, such as the undersigned, since secured creditors get

paid prior to administrative expenses. The Trustees attorneys who are

representing Gonzalez in these proceedings are also conflicted out for the same

reason. That is the sole wrongful reason that the Trustee and her attorneys

have put such a settlement before the court before she objected to my secured

claim. So long as my secured claim exists, Friedlander has a protected

property interest under the law and under the 5 th Amendment. Due Process of


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Law cannot be accorded Friedlander so long as Gonzalez remains Trustee. The

attention of this court is brought to all of the fee and expense awards to the

attorneys for Gonzales, which amount to a six figure amount against the assets

recovered by Gonzales by the efforts of Gonzales and her attorneys, which

amount to almost zilch, as contrasted with all of the assets protected by

Friedlander pre bankruptcy and post-bankruptcy. It is Friedlander that should be

awarded the fees and expenses for his pre and post-bankruptcy work he

performed, the benefits of which inured to the Estate. This is what we call

UNJUST ENRICHMENT.This is the most inept work performed by lawyers,

except for Gonzales prior attorneys, one of which sits as a Judge, which this

lawyer of 45 years has observed as a practicing lawyer in many jurisdictions,

including the Court of Appeal of the State of New Mexico. Friedlander, a non-

New Mexico lawyer, was successful in researching and applying New Mexico law

to secure a partial reversal of a New Mexico judgment resulting from the

malpractice of Engel. Just because a lawyer puts in billable hours (grinding the

case) and produces no tangible assets for the Estate does not warrant the

compensation this Court ordered. Gonzales and the Giddens law firm have the

nerve of insulting my knowledge of the law by stating in their complaint that

Friedlander was inept which diminished the value of the Estate. They should look

in the mirror. This is a court of equity and equity should be done.

15.A clean sweep is absolutely required to bring Justice back into the justice

system. That means the termination of the Gonzalez regime and the members of

that regime, her attorneys who have extorted and threatened Friedlander that if


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he pursues his claims they will assert claims against him for malpractice that was

committed by Bregman. But for Friedlanders diligent and honest representation

of Potter, including advancing attorney fees and costs, there would be no Estate

for these vultures to feed on.

16.Once Friedlander assigned all of the assets over to Gonzalez, his role was over

and Gonzalez began. Unfortunately, for reasons unbeknownst to Friedlander,

she never got off the ground. That constitutes a Breach of Fiduciary Duty pure

and simple.

LEGAL AUTHORITY TO INTERVENE

I. Rule 24 (a) (2) of the FRCP, provides, on timely motion, the court

must permit anyone to intervene who: (2) claims an interest an

interest relating to the property or transaction that is the subject of

the action, and is so situated that disposing of the action may as a

practical matter impair or impede the movants ability to protect its

interest, unless existing parties adequately represent that

interest.

Friedlander is a party to this litigation. Friedlander has filed a

secured claim No. 15 claiming a prior security interest in both the

funds held by the Receiver and the lawsuit entitled Potter v. Engel.

Under Rule 24, (a) (2) Friedlander has an unconditional right to seek

intervention as he has a legal and protectable interest in the subject

matter of the suit, i.e., the funds, and the Engel lawsuit. US v. Albert Inv.

Co., 585 F.3rd1386, 1397-1398 (10th Cir. 2009). John Doe #1 v. Glickman,


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256 F. 3rd371, 379 (5th Cir. 2001).Friedlanders retainer agreements filed

as Claim No. 15 are real and not speculative. Gonzales actions have

demonstrated that she has and will continue to sell me and the unsecured

creditors out to realize fees for herself and her attorneys. See

Friedlanders Counterclaim in the other adversary. Gonzales and her

attorneys have an irreconcilable conflict of interest. They refused

Friedlanders settlement offer of $250,000 outright with no counter offer.

Thus, unless Gonzales is removed forthwith, this case will be litigated

through trial and appeal if necessary, provided that Friedlanders health

and age permits. The amount in the Estate does not warrant such litigation

expenses at the expense of the Estate. I am retired with just two cases to

finish off, this, and my sons wrongful foreclosure case. I seek no other

legal business. I litigate these cases for vindication and justice. I am

entitled to both.

Friedlander is a creditor in pro se. He is not required to be a

member of the NM State Bar or the NM Federal Bar. Friedlander was

licensed in NY in 1963 and the US District Court SD of NY and the

Second Circuit Court of Appeal. Friedlander was licensed by the State of

California in 1965 and all the US District Courts in Cal. and the Ninth

Circuit Court of Appeal. My biography was attached as Exhibit 1 to the

Motion to Intervene in the prior adversary. I have a full NM library at my

office and Westlaw at my disposal.


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I also investigated and filed the Friedlander v Cooklawsuit and I am

very familiar with the law and facts. I participated in the discovery stages

of the Engel lawsuit and I am very familiar with the law and facts in that

lawsuit.

I was successful in obtaining a published opinion from the Supreme

Court of California, which opinion is utilized by all jury trial judges as part

of their closing instructions to the jury in special verdict cases. I was

successful in obtaining a published opinion from the 5 th Circuit Court of

Appeal in New Orleans on full faith and credit which has become one of

the leading cases in that area of constitutional law.

Friedlander has cited 16 plus reasons why there is a substantial

risk that Gonzales is unqualified by her actions and inactions to

represent Friedlanders secured claims, or any other legitimate creditor in

these proceedings See:Albert Inv. Co., 585 F. 3rdat 1398-97. Gonzalez

must step aside or be removed.

Wherefore, Friedlander does hereby request that:

1. The Motion for Reconsideration be denied.

2. The Motion to Approve the Settlement with Engel be denied.

3. Motion to Intervene be granted; and Motion to remove the Trustee be

granted; surcharging the Trustee, permitting Friedlander, an individual, as pro se, to

intervene to prosecute the Cook case, the Engel case, and to collect all assets

belonging to the Estate. Friedlander seeks to be paid his post-petition claims for


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preserving the Estate for the benefit of the Estate pursuant to noticed motion and

adjudication by this non article III court.

Dated: March 27, 2013

Signed and served electronically on all persons to be served electronically.

Respectfully submitted,

____________________________Martin S Friedlander, Esq.Creditor in pro se10350 Wilshire Blvd.,Suite 603Los Angeles, Ca. 90024

(310) 435-1519

Opposition Filed by Friedlander to Trustee's Motions 3.27.13.

Documents

Transcript of Opposition Filed by Friedlander to Trustee's Motions 3.27.13.