I hope tis the beginning of the end

[Terrel L. Shields]

get a fancy sign to hand them when this is all over which says some form of "it must suck to b u"

I thought about wearing a chicken suit to trial....crow when my side scores points, peck the opposition if they make their case.

More documents this week, counter filings.

After looking over the whole thing and the other defendants pleadings (am acting seperate until trial at least, just as a matter of appearance) It has dawned upon me that my part was thrown out (RICO charges which have the underlying fraud attached.)

The refiling charges me with "civil conspiracy" (which has the same underlying fraud attached.) My lawyer said that was "hanging on by the skin of their teeth". My fellow defendants high dollar Little Rock lawyers really flogged the L out of these charges. After being a little down and assuming we would have to go to depositions to have this over, I am much bouyed by the events of this week and the filings. The LR lawyers charged that this was merely a refile of the other charges only putting a few subheadings in the brief and replacing "RICO" or anti-Sherman Trust fraud with the words "civil conspiracy". Right they are. I compared the two documents and much is word for word. The only new thing was they made vague references to a former loan officer with the bank without naming him, but we know how he is and he was a consumer loan officer who was fired. He did not have any thing to do with lending on farms.
So now, the plaintiffs lawyers will file their objections to dismissal asked by my lawyer and the Bank lawyer, and the judge will rule again. He took 90 days last time, but had a couple of big trials, so we might get word back quicker. The Judge has already expressed a bias towards dismissal in that he wasn't buying some of the arguments. The initial Scheduling order does set trial at 12/15/03 and interrogatories by 4/15/03. December? 19 months after filed. And that date is likely to slip if we are forced to go the whole distance.

At this point my trial belongs in State court, not federal court, but the plaintiffs are saying they still have Federal case against the bank and poultry company regarding violations of the Stockyard and Packers Act and Enrichment - Federal laws, thus it is appropriate to address the state charges within the Federal system to avoid duplicating trials. They are still claiming the loan and the labor contract (between chicken company and grower) are "tying contracts" which prevented them from getting a loan elsewhere or a chicken contract from a competitor. (Not true)

PS - I was made an offer. If I would admit I committed fraud with Decatur State Bank (and thus perjure myself) they would drop me from the suit...yeah right.

 

[wyecoyote]

Terrel,

Keep us posted I'm kinda curious how this turns out. Could you slap them with a frivouls lawsuit charge, slander charge, or mental distress and detriment? How much is this costing you or is your E & O covering it?

Ryan

 

[Terrel L. Shields]

No E & O. And the appraisal was done in 1996...complaint in 2002. Really timely filing, eh? So far the bill (surprisingly) is well under $1,000. It is depositions that will be expensive. This is just lawyers writing each other nasty letters. But started in May,02 and trial date tenative is 12/03..and that would likely slide, but this cannot go forward surely past depositions. At that point the plaintiffs will be unable to produce any document or witness who can say I told them the value BEFORE the sale closed, and I can DOCUMENT when I first got the assignment (day of closing) and the dates of the appraisal (4 days after closing) How can they prove i provided the appraisal orally prior to the purchase? That they must do or the conspiracy between me and bank goes away.
ter

 

[David C. Johnson]

<span style='color:darkblue'>Terrel,

This thread has been one sorry read just now. Sorry you had to go through all that, and even more sorry you have more to look forward to apparently.

A couple of questions:

Had you thrown out the file at the earliest possible date per USPAP and/or Arkansas Appraiser law, would you have been "untouchable" from the start?

Since they filed bankruptcy, would they be able to personally keep any proceeds of such a case? Where are they likely getting the funds for their own legal representation? A contingency? -- have to be one real dumb bastar-- err, barrister.

You suggested the prospective chicken suit and the respective crows and pecks, shouldn't a strategically aimed room fan and a large fetid bag of chicken coop evidence be considered also?

The upside is you appear to have gotten a decent judge maybe, and also the NCAB has reportedly given up all extradition efforts per last month's business meeting -- but some may have had chicken soup for lunch though.

dcj</span>

 

[Terrel L. Shields]

would you have been "untouchable" from the start?

Apparently not. The bank has the report in file and the borrowers have a copy now that they apparently got after the foreclosure. The scary part of having old records was the interrogatories which requested all files from 1992 - present. The logistics of rifling 10 years of files is a nightmare. They also wanted to know my computer, all computers I ever owned, all software I owned, invoices, etc. from every record. I have 8 - 4 drawerfuls of old records. When this is over, I will have about one-half that...

RICO has a 4 year Statute of limitations. Fraud has a 3 year limit provided the person is aware of the fraud...otherwise it does not "toll" until the first time the person thinks they are defrauded. The judge could care less about USPAP record-keeping requirements. Nothing from the appraisal has been accepted by the courts except the date of the report (Oct 30, 1996) and the claim that the plaintiffs knew about it earlier. Sadly, the dates of sale and the appraisal dates are so confused, the judge would not be able to make heads or tails of it...The bank had another appraisal did in 1998. Their lawyers referenced that appraisal, not the 1996 report. And the plaintiffs bought 2 places. One on 10/24/96 and one on 10/24/97..confused?

In foreclosure the state requires any claims of fraud to be brought at that time. It wasn't. ditto for bankruptcy. The plaintiffs did neither so now claim they could not have known the fraud until after foreclosure...But by their own statements they were 'suspecious' of fraud in 1996 regarding the income numbers. This is due diligence situation. The due diligence part comes that if they were suspecious, they should have investigated further. I argued that they had access to the appraisal via bank disclosure law and could have compared the bank's income estimates with my income approach AND the numbers provided by their cousin, the sellers....THUS, they did not perform due diligence, and the toll should not be delayed, therefore, the statutes of limitations has expired. We will see if the judge buys it.

The bank and chicken company are also accused of Packer and Stockyard violations, but that does not apply to me, therefore, if the civil conspiracy charges go away I am out of the suit...but would still likely be a witness to be called by the bank. On the other hand, my lawyer thinks that without me, the case has to go away and that is why they are trying so hard to keep me stuck to it. No so much for getting me, but to get to the Bank.

A contingency?

Must be. Bank repo'd their vehicles too. the elder couple has also divorced and when the repo man went to her place she attacked him and had to be drug off the guy by the police. He (the husband, not the repo man) has remained at large and with the truck...

 

[Terrel L. Shields]

Amusing sidelight....plaintiff failed to file his response to our motion to dismiss by 1 day. We are objecting to the filing...The judge will probably let it slide, but for a day or two we get the chance to make 'em sweat. Chuckle Chuckle.

 

[Farm Gal]

:rofl:

Terril:

you sure titled this thread appropriately, I didn't know you were that good!

 

[Terrel L. Shields]

AT LAST - JUNE 4 - 1YEAR AND 5 DAYS AFTER IT BEGAN

Suit thrown out on it's butt FINALLY. with prejudice. Never even made it to depositions. Saturday every file and appraisal will be boxed from 1991 to June 6, 1998 and taken to Ft. Smith to a SECURE shredder and they will be history.

 

[Pamela Crowley (Florida)]

Hurray!!!



:allcolors:

:jumping: :jumping: :jumping:

 

[Terrel L. Shields]

My joy is tempered not only by the fact I will pay my lawyer a lot of money and cannot even ask the court to require the plaintiffs reimburse me , but a friend called saying he is being sued over a poultry farm and the plaintiff filed a complaint to the board as well....

bad situation in that he appraised it subject to repairs, but the money got spent on horses not poultry houses. Now he faces a review from an appraiser for the board who's skills at appraising farms has been questioned by bankers on numerous occasions. This is the problem with appraising any complex property....how many people can actually review your appraisal with any sense of what the property involves? And with the overload of work the state has, can the reviewer do a competent job? will they?