Wednesday, December 14, 2011
Taxes Paid by Top Corporations/Plus Lobbyist Fees
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Operation Lease Fleece Sentencing Donnybrook
In November, 2007 the FBI investigation dubbed “Operation Lease Fleece” charged 23 in their roles in a fraud scheme that allegedly caused more than $20 million in losses to several lending institutions that believed they were financing equipment leases. All 23 have admitted and signed an agreement, most with both fines and jail time. At this date, less than half have been sentenced.
In up-dating the changing of sentencing of those who pled guilty in Operation Lease Fleece, 30 to date, forging sale/leasebacks and sometimes no equipment in leases to funder, it appears a group of alleged victims do not like the lenient sentences being given out, as well as contend that several of those who pled guilty are still active in the same schemes they had plead guilty to.
In the sentencing of Kirk A. McMahan, Newport Beach, California, of Brickbanc, some pretty strong things were said about McMahan, and one of the alleged ring leaders, Adam Zuckerman of Brickbanc and many other companies. On November 29, 2011, Plaintiffs Mark Warner, Michael Roberts, Glenn Puit, Darren Meade, Keith Lewis, Rachel Green, Jerry Gilbert, Charlene Egland, Jeff Corbett, Scott Connelly, Don Aspinal, and Vince Andrich showed up to protest the light sentence of Kirk A. McMahan, recommended by the Assistant US Attorney Jennifer L. Waier, as well as state that and McMahan and Zuckerman were continuing the same "criminal scheme." A formal petition was presented (1).
There are over 200 pages concerning the hearing where Judge Cormac J. Carney insisted on hearing those in attendance about their claims. In reading the documents, it appears Assistant U.S. Attorney Jennifer L. Waier was not happy about the comments from those in attendance, was recommending a lighter sentence, claiming Mr. McMahan was not the man he was when arrested November 7, 2007, and the charges being heard in court were unsubstantiated, although the alleged victims did provide exhibits.
As those in the hearing were introduced, it almost appears like a donnybrook, although Judge Carney seems to have it all under control; the Assistant US Attorney seems thrown by the accusations as if the alleged victims were from another planet.
The alleged victims claimed that Kirk A. McMahan and Adam Zuckerman were using “Mercury Ventures" and "The X Banker," "...which offers small business owners the offer of equipment leases---the core of the BrickBanc scheme. In one part, they note he was introducing himself as "Adam Stuart' and when discovered tied to "Operation Lease Fleece," said he had dropped using Zuckerman, according to Jeff Corbert, to avoid anti-Semitism (3, page 52.)
The case has been going on for over four years, with sentencing continuing to be postponed. In the “exhibits” both the judge and Assistant US Attorney explain why and give their opinions, as well as alleged victims talking about testimony to the FBI agent who appeared in charge of the case, with Judge Carney seeming not wanting this time to take the recommendation of Assistant U.S Attorney Waier, which is the general procedure to accept what the defendant and prosecutor have worked out. Judge Carney appeared to genuinely want to learn more about what the alleged victims were claiming, and particularly not directly in an ad hoc proceeding, but taking it a step higher with attorney representation and evidence. Judge Carney will be making a ruling on the matter.
Other trial sentences continued:
Houshang Jangi of CapitalWerks Sentencing to 12/12/2011 11:00 AM before Judge Cormac J. Carney (no additional information available at press time).
Ziya Arik of CapitalWerks Continuing Sentencing hearing to 4/30/2012 11:00 AM before Judge Cormac J. Carney.
Les Spitzer, Grenada Hills, who worked at Pyramid Infinite, sentencing sent for 4/9/2012 10:00am before Judge Cormac J. Carney
Adam Zuckerman, head of BrickBanc and others, sentencing set for 3/19/2012 11:00am before Judge Cormac J. Carney (going on four and a half years since pleading guilty!)
Here are typical sentences received, and may be considered “lenient” as well as this case has been open for over four years and a half years, quite a long time for cases in recent history, especially this dollar amount:
(1) McMahan Preliminary new charges
(2) Exhibits A -court hearing (107 pages)
(3) Exhibits B -court presentation (93 pages)
Previous Operation Fleece Stories:
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Equipment Lessor Gets Stung in Assignment Trap
Assignments of equipment leases are less common than they were in the heyday of leasing, but many lease cases are still going to trial, and many of those cases are still assignments.
The problem with taking cases to trial based on an assigned lease is authentication. It is general rule of evidence that all documents, to be admitted into evidence, must be authenticated by a witness. Such authentication is generally to insure that the document is what it purports to be, and consists of an officer who is a custodian of the document and can testify as to its authenticity as a business record of the party, or by a person who saw it signed. In Lyon Financial Services, Inc. v. Fernando, Slip Copy, 2011 WL 5428738 (Wis. Ct. App. 2011), the equipment lessor went to trial in a Wisconsin trial court and out of the box attempted to introduce the assignment of the lease from Partners Equity Capital Company. However, the lawyers did not have a witness who negotiated the assignment, was familiar with the signatures, and since the document was not created by Lyon Financial Services, it was not a business record of the lessor.
After much legal wrangling, the lessor’s case was dismissed. The Court concluded that the lessor’s testimony did not authenticate Assignment, since it was not a business record of the lessor and no one was available to authenticate the signatures. Moreover, lessor’s representation had no personal knowledge of the assignment. Thus, the Court could not be sure that the document was what it purported to be.
Thus, on the first day of trial, the case was thrown out.
In defense of the equipment lessor, some states have “migration” evidence rules, when a document which is not a business record of the party becomes so, when the document is transferred to the new entity. Apparently, Wisconsin has no such legal standard.
The equipment lessor which is taking a lease by assignment should, if all possible, have a stand alone assignment, instead of a blanket assignment with an attached Schedule which was a problem here. There is some discussion in the Lyon case that the case might not have been thrown out if the matter involved a stand alone assignment as opposed to a multi-page schedule.
In addition, in order to self authenticate the signatures, notaries should be used, because notarized documents are self authenticating in many States. As a last resort, leasing attorneys need to obtain a stipulation in advance of the trial as to the authentication of the operative lease documents (often called “Requests for Admission” and failing that should have the appropriate employees ready to appear for trial to properly authenticate the disputed documents.
Lyon Financial Assignment (7 pages):
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John Caulfield, President, Forum Financial Services gave a challenge to reach the goal of $2500. At the time, the kettle had $525. He will match the donations if the kettle reaches $1,000 new contributions since the $525. (At this date, we are short)
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Letters!?---We get eMail
(In Chronological order)
"Reflections on Pearl Harbor” by Admiral Chester Nimitz
"Thanks for sharing those reflections of Pearl Harbor. Gave me Goosebumps. Admiral Nimitz was definitely the man for the job."
"This is a beautiful sentiment; thanks for sending it to me."
"Great excerpt Kit."
"Thanks for the time and effort you put in to inform our industry. Your article on Admiral Nimitz was great. I forwarded it to my Dad, who was stationed in Hawaii after WWII and he enjoyed it."
"Thanks for running this today!"
"A great story."
"Your story today is appreciated!”
John P Greco
"Great story… thanks for sharing… My son-in-law is in the Coast Guard and is career oriented. He served on a boat called the Nimitz… it is now clearer to be where it got its name… as you can tell I’m pretty proud of him."
"Great Message today, Kit. Very inspiring.
"Best wishes for your continuing success,"
Steve Dinkelaker, President
"Powerful, what a positive thinker...thanks so much for sharing. As many war movies that I have watched, and Pearl harbor being one of the most, why no one has ever chosen to place this in their script escapes me.
"I have saved this and will use it.
"All The Best!"
Don A. Marchant
"I would add/modify the Japanese errors. One of the major errors the Japanese made, since they had intelligence information, was not to wait until the Enterprise was docked in Pearl Harbor. Carriers were the new “battleships” of modern war. While the Japanese did not hit the storage tanks in the first attack, the real mistake was the decision making process. The Japanese cancelled a second wave attack. Very costly to them and very quickly costly and this was the really the major mistake behind the assets not hit as mistakes number two and three listed by Nimitz."
(Of course, Admiral Nimitz was not aware at the time that a second wave was planned, but cancelled. However, it does prove his point that someone above was on our side. The battleship “Lucky Lou” made it out to sea, an air craft carrier was not in port when the raid happened, and as "Victory at Sea" series show, the Japanese Admiral worried that so many planes were shot down, they didn't get all the battleships and carrier, and decided it was safer to move out of the area than risk another attack.
(The major point of the story was his positive attitude, turning something very negative into a fighting viewpoint. Editor)
"Thanks for all the years of information and new programs…
Best of good health and Merry Christmas to you and your family."
(Leasing News received many more such comments about Admiral Nimitz, but these are people who responded that we could quote them in "We get eMail." Editor)
Copier Wars---It's more than the lease payment
"We very much enjoyed your article last week that called attention to one of the most common ploys used in copier leasing, i.e. the evergreen clause. Can we reprint part of that article to use in our newsletter that we send to customers?"
Kevin F. Clune, CLP | President | Clune & Company LC
(Except for licensed cartoons, any article may be quoted from Leasing News. editor)
"Another great article about evergreen provisions. Keep ‘em coming!"
Brandon J. Mark
#### Press Release #############################
Lynne Wicker Named Chair of National Equipment Finance Summit
Raleigh, NC. – Lynne Wicker, National Remarketing Manager of RTR Services Incorporated, has been named Chairperson of the 2012 National Equipment Finance Summit to be held in San Diego, California, March 22-24, 2012.
“Lynne is an active member of the National Equipment Finance Association, (NEFA), who is widely known and respected by equipment finance professionals across the country,” said Gerry Egan, Executive Director of NEFA, in making the announcement. “She’s been involved in planning other events for us and is a great choice as Chairperson of this popular, early spring event.
The National Equipment Finance Summit will be held, March 22-24, at the beautiful Hilton San Diego Resort and Spa. The Summit attracts NEFA members and other industry professionals from across the US and Canada for educational programs as well as to meet with exhibitors from leading edge suppliers and funding sources, participate in industry discussions, make valuable industry networking connections, and enjoy social events.
“I’m excited to be the Chairperson of the 2012 Summit” said Wicker. “We’ve chosen a beautiful location at a great time of year and we’re putting together a high-value program of presentations. We’ll have programs for brokers who are interested in transitioning to lessors as well as topics geared toward more experienced, larger companies. But with all there is to do in and around San Diego, especially at the end of winter, my real challenge,” she said, “will be to keep people thinking about equipment financing!”
Registration for the 2012 National Equipment Finance Summit will be open immediately following the holidays. For more information, visit: www.EquipmentFinanceSummit.org; or: www.NEFAssociation.org.
##### Press Release ############################
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“Fifi is a darling 1 year old poodle mix. She has gorgeous fluffy white hair that has been groomed so she looks her best for her new family. Her hair is considered to be hypoallergenic. Fifi is as sweet as they come, she loves everybody. She enjoys walks, chasing balls, and tugawar. Fifi also adores the creature comforts of life such as big soft doggie beds.
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Fed Takes No Action, Citing Signs of Moderate Growth
HP Introduces "Step Payment" FMV Lease Program
Municipal Leasing Remains Strong Despite Dire Forecasts
Do Big Banks Lend Enough to Small Business?
Ex-WaMu Executives Settle FDIC Lawsuit for $64MM
Playboy Magazine moving to Los Angeles
Taxes Paid by Top Corporations/Plus Lobbyist Fees
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SparkPeople--Live Healthier and Longer
Workout for Skiers and Snowboarders
Eddie DeBartolo likes this San Francisco 49ers team -- a lot
Santa Clara votes to OK 49ers stadium financing
Spinning Records With Spinoza
Spinning records with Spinoza
Lawrence P. Murren, Jr.
Stanford Study pegs California Pensions' shortfall at $500 billion
Gov. Brown tells state agencies to quit 'churning out' their 2,600 reports
With Port Actions, Occupy Oakland Tests Labor Leaders
Folsom-based Waste Connections to move headquarters to Texas
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This Day in History
1763 – Fifty-Seven whites enter Conestoga Indian settlement, and in violation of a treaty made between the tribe and William Penn — to last "as long as the sun should shine, or the waters run in the rivers" — shot, stabbed, and hatcheted the three men, two women and one young boy they found there (more on 27 December).
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