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Memorandum of Law filed 11/3/03
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several criminal defense counsel to mount a defense6 – which now appears to have been successful – against an anticipated indictment after an actual referral by USDC Judge Robert P. Patterson Jr. for prosecution in the Southern District.  In his comments on the record concerning his findings of criminal misconduct by Handler and Roth, Judge Patterson demonstrated that he – contrary to State Court judges who had an opportunity to view Handler’s criminal conduct, but instead condoned it – had a firm grasp on the scope and audacity of Handler’s frauds.  And on that basis Judge Patterson told Handler that he and those aiding him in obstructing enforcement of the federal judgment held by Plaintiff were going to jail.7

                In the course of the grievance proceedings against me, I discovered a letter, written by one of Handler’s criminal defense attorneys acting on Handler’s behalf, to Susan Korenberg, Esq., one of the Deputy Counsel for the Grievance Committee (with a salutation “Dear Susan”) suggesting that disciplinary action be taken against me.  Deputy Counsel for the Grievance Committee dutifully and immediately complied although the Committee continued to refuse, without explanation, to take any action on my grievances against Handler.  I adduced testimony demonstrating that counsel to the Grievance Committee asked Handler whether he wished the Committee to proceed first against me or against another attorney against whom he had also filed charges and that counsel to the Grievance Committee also tried to broker a deal which would result in plaintiff’s legal proceedings against Handler/Cleary Gottlieb and his associates withdrawn and resolved in an “extrajudicial” forum – where criminal investigation and prosecution would no longer be a threat.  Thus there is competence evidence to support my contention that the machinery for disciplining attorneys was corrupted – co-opted by Handler’s lawyers – and used as a vehicle for obstruction of justice and extortion.8

This action demonstrates beyond cavil how politically (and judicially) powerful law firms, when confronted with irrefutable evidence of their participation in multi-million dollar frauds and their subsequent cover up, utilized their “connections” to vilify and discredit their victim, the Plaintiff herein, so that their felonious conduct would not be acted upon by law enforcement authorities.  This case gives new meaning to the word “abomination.”  It exemplifies the total lack of morality and decency—let alone legality.  It is difficult for one to imagine a more hideous crime than stealing from the dead or from those whose death appears imminent.  Such conduct is even more outrageous when committed under the guise of court proceedings—when the victim is expected to be unable to defend himself.

HANDLER AND CLEARY GOTTLIEB STEEN & HAMILTON INVENT CLAIM

This case involves a situation in which a law firm, Cleary Gottlieb Steen & Hamilton, together with their client Emmerich Handler designed a scheme to steal properties worth millions of dollars from the Plaintiff, whose death from cancer and related medical problems appeared imminent.  So certain was Cleary Gottlieb and Handler that the Plaintiff would succumb to his illness, that it proceeded to participate in the felonious theft of the Plaintiff’s assets, before the Plaintiff’s demise.  When Plaintiff unexpectedly survived and discovered what had occurred, Cleary Gottlieb and Handler, hoping to forestall any investigation during the life of the Plaintiff, denied under oath that certain events (which were documented) had occurred. 

As hereinafter seen, it is ironic that when the Plaintiff survived and was able to demonstrate that the Cleary Gottlieb/Handler lawsuit was a hoax, contrived only in order to steal millions of dollars worth of properties from the plaintiff (Handler had previously sworn that he had no financial interest in the properties, Bernard Nussbaum, Esq., who subsequently represented Cleary Gottlieb Steen & Hamilton, faced with irrefutable evidence that Handler’s claims were bogus, theorized that Handler might have purchased an interest in the properties after the Plaintiff herein became the owner. That proposition was in total contradiction to a later “finding” made by a State Court Judge who held that Handler had “at all times” been the owner of said properties.  The Plaintiff was nevertheless able to marshal sufficient evidence of the pattern of criminal conduct perpetrated by Handler and his accomplices, including some of his attorneys, which he presented to U.S. Federal District Court Judge Robert Patterson, Jr.  Judge Patterson was so outraged at the pattern of fraud presented to him, that he referred said fraudulent conduct to the office of the U.S. Attorney.  Judge Patterson addressing the attorney then representing the Handlers before Judge Patterson stated, inter alia:

“I am not just talking about your clients.  I am talking about the whole world around them. It is just going to fall apart.  And everyone is going down with the ship.” (emphasis added.)

A thorough investigation by the Office of the U.S. Attorney would have exposed the Cleary Gottlieb fraudulent conduct and thus, it became a matter of urgency for “the whole world around [Handler]” that the Plaintiff be discredited and silenced.

What followed was a concerted effort by well-connected criminal defense attorneys to silence the Plaintiff by seeking his disbarment through the friendly intervention of the Grievance Committee unless Plaintiff would discontinue his pursuit of justice.

Emissaries of Handler offered to have the Grievance Committee proceedings withdrawn if the Plaintiff would stop his efforts before Judge Patterson.  The Plaintiff was also warned that if he did not stop his pursuit of justice, one of (the many) Handler’s attorneys would fraudulently implicate the Plaintiff in an unrelated criminal matter.  Simply stated, that was a threat that Plaintiff would be framed.  Counsel for the Grievance Committee for the Second and Eleventh Judicial Districts of New York participated in the attempt to silence the Plaintiff and “suggested” that the Plaintiff discontinue his pursuit of justice in exchange for his license.  Upon the Plaintiff’s refusal to be intimidated, the Plaintiff was disbarred without a hearing for conduct that allegedly had taken place 17 years prior to his disbarment and notwithstanding that counsel for the Grievance Committee knew that the party that had made the claim of misconduct had recanted such claims under oath and had admitted the falsity of said claims to an agent of the Federal Bureau of Investigation. The descent to Gomorrah was complete!!!

HANDLER AND CLEARY GOTTLIEB USED THE JUDICIAL SYSTEM TO COMMIT FRAUDS

Subsequently, a jury unanimously found that my statements that Handler and his attorneys have committed frauds using the courts as a vehicle were true. 

After the trial and after the jury verdict was rendered in my favor, the members of the jury expressed shock and awe at how Handler and his attorneys were able to pervert justice and have me disbarred for exposing their frauds.  The irrefutable and documented fact was that Cleary Gottlieb Steen & Hamilton had agreed in writing that, pending the outcome of the case which it had initiated in behalf of Handler whether said lawsuit would be resolved by judgment or settlement, it would “see to it” that :

 

a)      Fee title to the properties would remain in the Corporation;

b)      No transfer or encumbrance thereof would be made, except as necessary or appropriate to refinance the mortgage and obtain a first mortgage from a lending institution.

 

The foregoing assurances were violated in 1987 when it appeared that the within Plaintiff’s death was imminent.  Title to the properties was transferred to a partnership headed by Handler’s wife; a mortgage loan of $3.8 million was taken from the First Nationwide Bank, of which $2.4 million was wired directly into Handler’s account; approximately $500,000 was paid to Cleary Gottlieb Steen & Hamilton.

The evidence of criminal wrongdoing was established beyond a shadow of a doubt.  Only by declaring that the within Plaintiff had no interest in the properties and that Handler was “at all times” the owner of all of the shares would Cleary Gottlieb get off the hook.  Despite all of the documentary evidence and Handler’s admissions under oath that he had no interest in the property, Justice Douglass, hand-picked by Justice Huttner (bypassing the random assignment part) gave Handler and Cleary Gottlieb the decision they needed to extricate themselves from what was clearly conclusive evidence of criminal and civil liability.  Handler’s sworn complaint that he and KYJ owned only 48 % of the Corporation was ignored by Justice Douglass as simply “lawyer talk” and not binding on Handler.  He awarded Handler 100%!!

                 I am 67-years-old, and my most fervent hope – apart from wishing for the continued well-being of my family – is that I will realize total vindication in my lifetime.  So, yes, I am a prospective witness with an “interest”.  But the vast majority of the evidence that I have presented requires no test of credibility: that evidence consists of the words, in sworn testimony and duly executed legal instruments, of Handler and his confederates, all expressed while they were in the care of the best lawyers money can buy.  Moreover, Handler has expressly and unequivocally admitted that he knowingly made and procured conflicting, material statements under oath and that the false statements made and procured by him were intended to deceive and thus conceal and/or misrepresent his assets. 

                What credibility, then, is to be ascribed to an admitted perjurer and suborner of perjury?9  The answer is that in the present judicial climate the power and prestige of his lawyers count far more than his admitted and conclusively demonstrated crimes.  Certainly that climate extends to those controlling federal prosecutions in New York.

 

SAVING CLEARY GOTTLIEB

 

Submitted herewith as an Exhibit to Plaintiff’s affidavit is a list of 18 law firms and/or attorneys who have represented Handler and/or his confederates.  The list includes former White House counsel Bernard Nussbaumi (referred to by the New York Times as a “fixer”), to whom Cleary Gottlieb Steen & Hamilton turned to extricate said firm from the consequences of its criminal conduct, when its participation in the multi-million dollar fraud was discovered by Plaintiff.  Cleary Gottlieb had represented Handler for almost a decade.   It is noteworthy that although Cleary Gottlieb had significant connections to the State Judiciary as one of its partners was counsel to Governor Cuomo who in turn appointed Appellate Division judges, Cleary Gottlieb needed the assistance of Bernard Nussbaum. Ironically, Mr. Nussbaum’s presentation of the “facts” on behalf of Cleary Gottlieb, in a memorandum filed in the U.S. District Court for the Southern District of New York, was in total conflict with findings later made by State Court Justice Lewis Douglass.  It is also to be noted that Justice Douglass was not randomly selected but rather “hand picked” by Handler/Cleary Gottlieb’s interests.  Other attorneys on the list who were retained by Handler or his confederates are the attorneys who previously occupied positions in which they wielded governmental power and authority, including: Andrew Maloney, Esq., former U.S. Attorney for the Eastern District; Morvillo, Abramowitz, Grand, Iason & Silberberg, PC, a criminal defense law firm in which a number of former assistant U.S. Attorneys are either partners or associates; Richard Dolan, Esq., who formerly occupied an executive position within the Office of the U.S. Attorney for the Eastern District; Mel Barkan, former chair of the New York City Civilian Complaint Review Board and a former Assistant U.S. Attorney; and a former counsel to a Grievance Committee in the City of New York.    

 

PROSECUTOR JOINS CRIMINAL DEFENSE FIRM

 

After leaving government employment, Jonathan Sack, Esq., former Deputy U.S. Attorney for the Eastern District in charge of the criminal division of that office, became affiliated with the law firm of Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C. , which had been retained by Handler after Judge Robert P. Patterson, Jr. of the Southern District referred to the office of the U.S. Attorney for that district10 his findings that Handler had lied in the course of his fraudulent concealment of assets from his creditors, including Plaintiff, the FDIC, and others.  Diana B. Parker, Esq., another member of Morvillo Abramowitz, first appeared in court and professed that she represented only Mr. Roth and had never represented Handler.  Subsequently Plaintiff learned that Ms. Parker had written to the Grievance Committee on behalf of Handler to complain about Plaintiff –she later swore that she had never represented Handler. 

                To the best of Plaintiff’s knowledge, no attorney who has “changed sides” – i.e., moved from a position in which s/he performed a governmental function that could at least potentially have resulted in an action adverse to Handler to a private position in which s/he was engaged to further Handler’s interests – has ever been called to account for his / her actions.   To what level of public respect is the office of the U.S. Attorney for the Eastern District entitled after allowing such conduct to remain unscrutinized and unexplained?  Indeed, does the legal profession as a whole, which touts itself as a protector of the public, deserve public opprobrium for failing to establish and enforce safeguards against such conduct?

                Plaintiff also holds two judgments, amounting to approximately $2 millionii (See End Notes),that are at present uncollectible because Handler fraudulently “parked” his assets with others, filed a Chapter 11 bankruptcy petition (subsequently converted to a Chapter 7), and has continued to commit and suborn perjury concerning the ownership and availability of his assets to meet his creditors’ lawful demands.  As noted supra, two members of the federal bench have found that Handler fraudulently concealed his assets from his creditors.   As stated above,

Judge Patterson of the Southern District referred his findings of fraud and perjury to the Department of Justice for potential prosecution.  See Exhibit 1 to the Affidavit of Plaintiff filed herewith. 

                Judge Patterson expressed outrage, moreover, not just over Handler’s brazen lies that prevented Plaintiff from collecting upon his judgments.  Handler has acknowledged that he owes the Internal Revenue Service some $5 million, and the State of New York $500,000 in unpaid taxes – for the many years in which Handler filed no tax returns.  The IRS and the State have been stymied, just as Plaintiff, in their efforts to collect on the debts owed to them.

                Even as Handler had schemed to prevent his creditors from reaching his assets, he had submitted loan applications in which he professed to have the very thing his creditors are looking for:  millions in assets.

                The truth concerning the actions of Defendants – and especially their multiple failures to act – in response to the evidence provided them regarding the Handlers, Roth, and their attorneys is an embarrassment to the Executive Branch and to this court, as well.  The court was on notice – from the averments of the complaint – that Plaintiff was seeking relief from the Defendants’ evasion of their duty to prosecute.  It is clear also that Plaintiff seeks prosecution of the Handlers, Roth and their accomplices because they have engaged in a pattern of fraud and deceit to avoid paying these debts11 and also to acquire more wealth. Yet the court shielded the Defendants’ “affidavits and memorandum of law” from scrutiny and contradiction by Plaintiff, thus allowing the Handlers, Roth, and their attorneys to continue to flout the law.  Surely a court should recognize that one of its most sacred duties is to insure that judgments are not rendered worthless by the fraudulent concealment of the judgment debtor’s assets, and that collection upon judgment is not impeded by frivolous claims by the judgment debtor.   Courts should also see that debtors who obstruct their creditors’ efforts to collect on valid judgments should pay a high price indeed.  Otherwise the integrity of the courts is undermined.  Here, the courts are confronted with perhaps the worse-case scenario, short of physical violence.

                If Emmerich Handler were someone of ordinary means – a renter who had failed to pay his landlord, for instance – who lied to obstruct collection on a judgment of $1,000, what court would tolerate any of the numerous acts of brazen deceit that have been documented in the instant case?  But Handler has for years insulated himself and his assets by hiring “well connected” lawyers – insulation that few, if any, debtors with$1,000 judgments against them can afford.   Furthermore, Handler’s insulation is far from passive: He routinely sues his creditors, files grievances against their lawyers, so it is they, his creditors, who pay the high price.  And even while being represented by attorneys with the best of connections, moreover, Handler has continued to insist that he is impoverished and therefore cannot pay his debts.12 

                Truly adding insult to injury, while Handler has insisted that he has no assets to satisfy the judgments held by Plaintiff, Handler has sought and received loans totaling millions of dollars by portraying himself as having sufficient wealth to repay such loans.  Thus, the fraud complained of here is massive in scale.

                Finally, Plaintiff wishes to disabuse the court of any notion that he is seeking to be “bailed out” by the Government, that somehow Plaintiff is seeking assistance that would not be available to the victim of a street crime.  Since recovering from a near-fatal illness in 1986, Plaintiff has pursued relentlessly his claims against the Handlers, Roth, and their attorneys, extensively documenting their fraudulent schemes.13  But Plaintiff, a private citizen, cannot initiate criminal prosecution.  And that, it seems absolutely clear, is the only effective remedy for the wrongs complained of herein.  Or, at a minimum, it is clear that without the remedy of criminal prosecution and conviction, civil remedies are meaningless.  Furthermore, it was not until it became clear that Handler had somehow neutralized the Government’s prosecutors – despite the referral by Judge Patterson and findings by U.S. Bankruptcy Judge Richard Bohanon that Roth had committed criminal misconduct in one of many bankruptcy proceedings instigated by Handler – that Plaintiff sought to enlist the aid of this court. 

                Thus far this court14 has seemed blind to the appearance of utter indifference to massive injustice – and a coordinate, commensurate injury to public confidence in the courts – that springs from its treatment of Plaintiff’s claims brought in the instant case.   That said, Plaintiff asks only to be treated with the neutrality that every litigant deserves – neutrality that should be the hallmark, in both appearance and reality, of every institution charged with the effective and fair administration of justice. 



          6  One of Handler’s strategies at this point was to complain about Plaintiff to the Grievance Committee, and to intensify the complaints as Judge Patterson’s intention to cause Handler to be prosecuted became increasingly apparent.

          7  At a hearing before Judge Patterson on Handler’s claims brought to prevent enforcement of the judgment held by Plaintiff after being previously held by the FDIC, Handler testified that Jack Walker – the client who had freely conveyed to Plaintiff an ownership interest in the subject apartment complex – had relinquished not only his own interest in the property in question, but also part of Handler’s interest in the property, thus contradicting the factual predicates of the decision of Justice Lewis Douglass of the Supreme Court, King’s County, that stripped Plaintiff of all interest in the apartment complex. At the same hearing, one of Handler’s attorneys, Edward Rubin, Esq., testified that Walker’s conveyance to Plaintiff of the interests in the subject property had satisfied a potential tort liability of $1.5 or $2 million. One could not find clearer and more conclusive evidence of the fraud perpetrated by Handler, Walker and their attorneys than the evidence adduced before Judge Patterson.  Hence the judge’s outrage and his referral for prosecution. 

 

          8  It is axiomatic that the criminal law treats attempts to commit crimes as punishable as consummated crimes.   And in one sense the obstruction was successful: Plaintiff’s disbarment greatly undermined his credibility, and, so far, there have been no indictments, nor, Plaintiff submits, a good faith attempt by the Government to secure indictments. 

i         9  As will be shown infra in more detail, Handler admitted in trial testimony that he had lied about the ownership of a commercial property in Brooklyn, and had induced others to lie about it.  In some jurisdictions, convicted perjurers are disqualified, forever, from giving testimony in a State legal proceeding.

         

i               i) The preceding character “i” denotes an end note: footnotes are signaled in the customary manner by the use of Arabic numerals.

          10  But Mr. Sack was overseeing criminal prosecutions in the Eastern District when the case referred by Judge Patterson to the Southern District for prosecution was moved to the Eastern District, according to investigators from the Office of the Inspector General of the FDIC.  And there it was Mr. Sack who spoke with a member of Plaintiff’s law firm after correspondence from Plaintiff to that office had been ignored for several months. 

 

          11 Given the pattern of deception and fraudulent concealment of assets perpetrated by Handler before and after entry of the First Women’s Bank judgment, it seems obvious that Handler’s intention when he and his wife confessed the judgment was not to pay it.  But Plaintiff’s charges are far more straightforward than that: Handler has repeatedly made statements under oath concerning his assets – or, more specifically, his alleged lack of assets – that are irreconcilable with other sworn statements, such as statements made in loan applications, and manifestly has done so in order to frustrate his creditors’ efforts – including those of Plaintiff, the FDIC, IRS, and the State of New York – to collect on enrolled judgments or liens.   Many of Handler’s demonstrably false statements were made when he was represented by counsel, and, it must be presumed, with the prior knowledge of his counsel.  Yet none of Handler’s attorneys has ever come forward and disavowed Handler’s perjurious statements; nor has any attorney ever warned of prospective perjury by Handler, despite the duty of attorneys under the “crime-fraud” exception to the attorney-client privilege. 

          12  In the case of Alex Simke et al v. Emmerich Handler et al. (Superior Court of the State of California for the County of Los Angeles, Case. No. C 45279), Emmerich Handler filed a complaint against plaintiff's attorney with the
Disciplinary Committee, and sued him as well, after an attempt by the plaintiff to collect on a fraud judgment against Handler. 

 

Similarly, in the case of Joslin v. Handler (USDC, S.D.N.Y. Case No. 0668/93) Emmerich Handler brought an action against plaintiff and his attorneys for compensatory and punitive damages following attempts to enforce Joslin's judgment against Handler. See Emmerich Handler v. Dennis Joslin, Supreme Court Kings County, Index No. 25853/97).  

 

Handler also has complained against attorneys who represented him:  Mark Lichtschein, who, along with his firm, was also sued by Handler, Handler v. Lichtschein, et. al., Supreme Court Kings County Index No. 7237/94;  Edward Rubin, Esq., (who claims he had no records reflecting payment of fees to him by Handler) Handler’s counsel in the Lichtschein case and in the case of Handler v. Weinstock, Supreme Court Kings County Index No. 042682/1997; and Matthew King, Esq., in connection with a bankruptcy proceeding, In re: Twenty Six Realty Associates. L.P., Case No., 193-17065-260 in the U.S. Bankruptcy Court for the Eastern District of New York. 

          13  Plaintiff also has borne the burden and expense of a successful defense against multiple claims of defamation brought against him by Handler and Roth.  Ultimately a jury affirmatively agreed with Plaintiff’s allegations that he was a victim of use of the courts by Handler, Roth, and their attorneys as a vehicle for perpetrating and covering up their crimes.  Thus it is incomprehensible to Plaintiff t hat a Grand Jury did not return indictments, as alleged by the Government.

          14 Indeed,  there also appears to be a substantial likelihood that Judge Block may have dismissed the instant case because he is subjectively unable to accept the principal propositions advanced by Plaintiff:   that Government prosecutors knowingly and purposefully disregarded conclusive evidence of felonies perpetrated by Handler, Roth, and their attorneys, as found by two federal judges and a State (civil) jury; and that persons outside the respective governmental agencies can, and did, exert such overweening influence upon key governmental decision-makers as to frustrate totally the administration of justice. 

 


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