# Update on My Dad's Estate



## JLB (Apr 6, 2006)

I believe it has been more than a year since I last reported.

Sixteen months ago I attended the mediatation that settled the NASD case against the brokerage whose employee (broker) stole from my Dad.  That appeared at the time to be all that was left to take care of.

However, the estate is still open (going on four years now).  

Starting two years ago I had badgered the attorney handling the estate to provide records to the tax preparer to resolve some issues I saw with state and federal taxes, things I could not pin down while analyzing my Dad's records for the securities case.

The attorney ignored my requests.

Now he is involved with the State, trying to resole those loose ends I brought to his attention, that he ignored.  When the State contacted him, him asked me to provide him the records that I had asked him to provide me, but he never did!

In addition, the broker who stole from and defrauded my Dad has now stopped making restitution payments.  In lieu of prison time he was given 5 years of probation and a 17-year restitution agreement.  He has around $90,000 left to pay over about 15 years.

At the time of the Mediation with the brokerage I had also tried to cash out the balance he owed, by discounting it  The perp's dad is really the one paying, and that family indicated at the time that after the probation period ended we would likely not see any more money.  They offered to pay only the amount due during the probation period~~~at that time $21000 of the remianing $92000.

I contacted the County Prosecutor at that time and he was very sympathetic, saying how agregious the case was.  He said he would see to it the the perp fulfilled his sentence, even after probation ends.  He called a Probation Review Hearing back then.

Now he is not replying to either myself or the Executrix.


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## arlene22 (Apr 6, 2006)

JLB said:
			
		

> At the time of the Mediation with the brokerage I had also tried to cash out the balance he owed, by discounting it  The perp's dad is really the one paying, and that family indicated at the time that after the probation period ended we would likely not see any more money.  They offered to pay only the amount due during the probation period~~~at that time $21000 of the remianing $92000.



Put a theif on the honor system. That's a great idea. Good grief! Was anyone surprised that he stopped paying? I know you weren't-- you've been expecting it all along...


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## riverdees05 (Apr 6, 2006)

Sounds like the never ending story.  Hope you can get some satisfaction and closure on this in the near future, but doesn't sound like it.  It is amazing that if a kid would go out and rob a convenience story the law would be all over him, but on white collar crime, they just dilly dally around.  Not right!


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## Icarus (Apr 6, 2006)

Can you contact the Judge? What about a monetary judgement?

-David


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## JLB (Apr 6, 2006)

Since posting this morning I got an email from the Prosecutor.  He said he has talked to my stepsister and was surprised that she had not told me anything.

In a reply I told him I do not find my stepsister handling my Dad's affairs to be appropriate, that that should be done by one of Dad's _issue_.  I am the one that has done everything else concerning the Estate, so I would be the natural choice.

The Prosecutor said we need to contact the probation officer.

I reminded him that a year ago I brought this possibility to his attention and that he assured me that the perp would fulfill his sentence.  I reminded him of the Probation Review Hearing held on March 31, 2005.  The last line of the judge's order from that hearing is, *"Upon motion by any party, the Court will set a further hearing to address restitution."*

I have suggested to the Prosecutor that he ask the court to accelerate the balance of the restitution, and that if it is not paid in full (the perp's family has the money to pay it) then declare a violation of probation and send the perp to prison.

There already is a monetary judgement.  It is the non-payment of it that is the current issue.





			
				Icarus said:
			
		

> Can you contact the Judge? What about a monetary judgement?
> 
> -David


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## GrayFal (Apr 6, 2006)

Unbelievable that this is still going on......


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## Icarus (Apr 6, 2006)

I should have known you'd already gone down that road. Hope you can get Mr. Prosecutor to do his job.

-David


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## JLB (Apr 7, 2006)

The judge's words, printed above, says _any party_ can ask for another hearing.  The parties for _our_ side were the Prosecutor, the attorney for the estate, and the probation officer.

I have asked the Executrix to ask the attorney for the estate to do that.
- - - - - -
The idea to cash out the balance of the restitution came up during the Mediation with the brokerage.  In the first round laundry list, one thing our side asked is that the brokerage pay off the balance of the restitution because the broker was thier employee.  Their lead attorney discounted in his head, out loud . . . $92000 . . . so we're talking around $60000? . . . Yup

In the second round he reported that the brokerage did not go for that, but they threw some more money on the table to get us to move on.  I believe our attorneys thought, "Wow!  That money plus the $92000 (maybe)  We done good!"

Of course, a third of the money on the table at Mediation went to the NASD attorney, so if we had gotten the $60000 it would have turned into $40000.


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## JLB (Apr 23, 2006)

I haven't had to spend time on this matter in a long time, but now the attorney for the estate is forcing that.  He has always had a nack for sending informational letters to the heirs that only raise more questions than they answer.

One came yesterday.

First, he said the estate has paid the inheritance tax for a non-lineal heir, a step-granddaughter, and enclosed a copy of his letter to her asking her to pay the $3000 back!  I've never heard of that!

He did not even mention anything about the same issue with my two step-sisters, also non-lineal heirs, as to whether they paid inhertiance tax, or the estate paid it for them, or anything.

Then he talked about the $90000 in unpaid restitution, the payment of which has stopped.  He mentioned me specifically as being the one asking the Excutor to ask him to call for a Probation Review Hearing.  Then he essentially said he does not plan to pursue it as he does not feel it will amount to the collection of any money, which is his obligation in running the estate.

He is the sole person who drafted the restitution agreement.  He ignored the heirs requests to be involved in putting it together.  Of course, it is written such that the obligation is to the Estate, not to each of us as heirs.  It is his doing and now he is planning on closing the Estate and telling the judge it is not worth pursuing.

He also enclosed a copy of a letter he has sent to the convicted thief's attorney.  In that letter he indicates he *is* pursuing it!

Unbelievable!


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## JLB (Apr 24, 2006)

I notice I forgot to mention that my uppity step-sister, the one who somehow has become in charge of handling the current matter, has sent two conflicting emails.  I sent her one asking for a clarification, with a copy going to the other heirs, and she now has blocked my mail!

I talked to the Executrix today.  I told her all I want is for someone, anyone, to call the creep before the judge for a probation review hearing.  I told her we, the heirs, cannot do that since the restitution agreement is with the estate.  She agreed.

But she said that since the attorney for the estate has already sent a letter to the creep's attorney, asking him to ask creep what his plans are, the attorney for the estate has to at least wait for an answer to that.

So I am going to let this ride.  If in a couple of weeks it has not been handled, then I will make my phone calls.

The fact of the matter is that the money in the estate is all gone, so the attorney does not want to do anything any more, even the undoing of stuff he has done.


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## JLB (May 26, 2006)

Unlike me, I have let this matter rest.

This week I picked it up again.  The attorney for the Estate has told me nothing and the Executrix has basically covered for him, also not helping.  I had resisted calling the prosecutor or the probation officer because I know their workload.  My stepsister has not been reporting, but I assumed she had been contacting them.

I broke down and called the Probation Officer and he said there is a Probation Revocation Hearing on June 26.  I made a few more calls to the court system and found a site to review the entire case.  All the stuff the attorney for the estate and the executrix had not been telling us is there.

I now have my brother (estranged) and two stepsisters up to snuff and am awaiting for them to speak their mind, what it is they want done on June 26, assuming it does not get continued.

I also reviewed the restitution agreement and it gives the holder of the agreement the right to accelerate it, to demand full payment of the unpaid balance, without notice.

In reviewing the case file, I saw that creep has a 10-year suspended prison sentence, so I assume that would be an option if he does not pay.  I have not mentioned it, but creep's family has money.  The have a very successful family business, his dad is in his 70's, and has the ability to pay.

I say accelerate the balance and see if dad will let son go to prison.  If he will, we weren't going to get the money any way.


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## Gadabout (May 26, 2006)

JLB said:
			
		

> In reviewing the case file, I saw that creep has a 10-year suspended prison sentence, so I assume that would be an option if he does not pay.  I have not mentioned it, but creep's family has money.  The have a very successful family business, his dad is in his 70's, and has the ability to pay.
> 
> I say accelerate the balance and see if dad will let son go to prison.  If he will, we weren't going to get the money any way.



Are you implying the Dad had something to do with this in any way?


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## KristinB (May 26, 2006)

Gadabout said:
			
		

> Are you implying the Dad had something to do with this in any way?



No, he's saying that since creep's Dad has the means, he might be willing to pay what his son owes in order to prevent his son from going to jail.


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## Gadabout (May 26, 2006)

KristinB said:
			
		

> No, he's saying that since creep's Dad has the means, he might be willing to pay what his son owes in order to prevent his son from going to jail.



He probably wouldn't be going to *real* jail--more like a "Camp Cupcake" jail.   

But I bet any one else standing to inherit from dear old Dad is telling him not to pay it....and I don't think he should either. Why punish the rest of the family for what he did?


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## Patricia (May 26, 2006)

Hi JLB:

I am so sorry to hear of your legal woes....

But I have a great idea !!! 

You mention that the criminal's Father runs a successful business... Yes?

Wellllll, I would threaten to "go public" and tell them you are calling a reporter
or the local "help consumer" hotline unless you get some satisfaction.

What type of business does the Father run?   Surely, he must be concerned
for his customers, I mean nobody wants BAD publicity.

I think you have suffered long enough !!!

Good luck, we are all hoping for a successful resolution !! 

Regards,
Patricia


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## JLB (May 28, 2006)

This has been going on since 2002, and there are things said before that I have not said here.

Creep's dad was not involved in the theft, which, BTW, led to the death of my dad, but I won't go there today.  When I talked to the Prosecutor early 2005, he said it was the most egregious case of elder financial abuse that he has been involved in.

The creep's dad has the money.  Creep is broke.  When the attorney for my dad's estate negotiated the restitution agreement with the creep's attorney, it was actually with the creep's dad, who pretty much controlled it.  It went from him paying all of the restitution lump-sum, to paying just a third upfront, with the balance to be paid monthly over 17 years, with no interest.

When we settled with the securities firm at mediation in November, 2004, they would not cash out creep's (their former employee) unpaid balance and when we asked creep to cash it out, at a discount, his attorney only offered the amount that would be due during the probation period, about 1/5 of what was still owing.

As far as going public with this, at one point when creep and the brokerage were jacking us around I contacted the editor of the newspaper.  We had an email exchange and he said when I was ready they will take a look at it.  The families of both sides are prominent locally.  I did not take it further because I did not want to jeorpardize the proceedings.

I don't think there is anything in the settlement with the brokerage that would prevent that, but one has to be careful of liable and slander suits.


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## Patricia (May 29, 2006)

I did not take it further because I did not want to jeorpardize the proceedings.


Sorry to hear all the complications; however, at this point, it really seems
there is nothing that will jeorpardize the situation.  I feel you have been
more then patient....time for action.

For example, if you called one of the TV consumer help shows, they are
pretty good at explaining the situation without any slander.  

To my way of thinking, you would be helping ALL ELDERLY INVESTORS, not
just  your Father.   If it happened to your Father, it could happen to
anyone.

I think it should be publicized so other elderly people can be saved.

It really would a public service.

Just my two cents, but I hope you can find a resolution.

Take care,

Patricia


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## JLB (May 30, 2006)

I won't go into the gory details, what getting ripped off by the one person in the world he trusted, a person that wrote a check to himself from my dad's bank account the day my stepmother died, but I spent a lot of time studying and working on exactly what you suggest.

There are some places, some states, where elder fraud is treated very harshly, and some states where there is no more weight given to the fact that the victim is helpless.  Unfortunately, Iowa is one of the latter.  There are no stiffer penalties because the victim is elderly.

My dad actually died, or allowed himself to die, in response to his victimization.  That is not unusual.  But do not make the mistake of saying that in Iowa!!!!

Despite the fact that the prosecutor said it was the most egregious case of elder financial abuse he has ever seen (and his dad was a long-time prosecutor, too), and despite a guilty plea, the perp got a suspended sentence, 125 hours of community service, and restitution.  He's not paying the restitution and I doubt that he did the community service.

Once again I am trying to rally my two stepsisters and my brother, to inform them and see what they want to do.  So far I think I have one stepsister refocused from her fairy-tale version of what will be, and I am waiting for the other two to reply.

Rather than wrap up this final loose end, the attorney for the estate, a person I hired for my Dad when my Dad was still living, and a person I paid out of my own pocket, just wants to dump it and leave.

The brokerage behaved just as badly, and when you get involved studying them, you learn that that is par for the course.




			
				Patricia said:
			
		

> I did not take it further because I did not want to jeorpardize the proceedings.
> 
> 
> To my way of thinking, you would be helping ALL ELDERLY INVESTORS, not
> ...


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## JLB (Jun 4, 2006)

Friday my uppity stepsister sent an email asking if the rest of us had gotten a letter from the attorney for the estate, saying he was turning this all over to us, the beneficiaries.

Today I replied that I had not gotten one yet, and would defer until I got a chance to read it.

She answered:  "He basically says he won't deal with your stuff any more and neither will (the Executrix) and because of that they quit."

My stepsister always has been good with people, and words.    

Anyway, I did not know Executors and attorneys for estates could do that, quit when a beneficiary asks them to do their job.   

I think they are POed because I have caught them not doing their job, not even knowing what's going on with agreements they wrote.  I also think the estate is out of money so they don't want to do any more work.


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## JLB (Jun 7, 2006)

Yup, I got my nasty letter.  I wish the attorney for the estate would have sent more of them to our adversaries and fewer to the beneficiaries.   

He is turning it all over to us.  Hiring another attorney to represent the beneficiaries, rather than the estate, is inevitable. 

Now my uppity stepsister, the one who is there, knows everyone, and will have to take care of this for the rest of us, is yelling at me, "WHAT DON'T YOU UNDERSTAND ABOUT ME AND MY SISTER DO NOT WANT TO SPEND MONEY ON ANOTHER ATTORNEY?!"

Ok, don't.   

You would think I had sent the letter.

At the same time she is asking what my plans are to resolve it.  Well, she has pretty much tied my hands.  The assignment is to do a lot of legal things, file a lot of stuff with the District Courts, both Criminal and Probate, don't hire an attorney, and get it done in 19 days . . . from 500 miles away.

Okey dokey.


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## Keitht (Jun 7, 2006)

JLB said:
			
		

> I think they are POed because I have caught them not doing their job, not even knowing what's going on with agreements they wrote.  I also think the estate is out of money so they don't want to do any more work.



It seems that they are the same the world over.  They will string things out as long as possible, because more hours 'worked' means more money in their back pockets.


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## Gadabout (Jun 7, 2006)

If the attorney is that bad, any chance of bringing him up before the Bar Association or the state?

And, from what you said earlier, it sounds like the news "human interest" story might be the way to go. Just stating the facts that "so and so is related to so and so". The public has a right to know about issues such as elder fraud.


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## dougp26364 (Jun 7, 2006)

I doubt that I'll toss any idea's on the table that you have not already looked at but here goes.

You have a monetary judgement that should be enforcable. Could you not put leins against anything owned by the perp, force liquidation of any bank accounts or monetary assets for settlement of the resitution order or garnish any future wages? Is it possible to hold the family responsible if it could be proven that they were the ones paying the judgement and have assumed financial responsibility (A reach I know but I'd ask). Can this judgement still be enforced even if the perp has or does file bankruptcy? If not already asked - and I'm assuming these questions have been - it's something that I'd want to know if I were in your place.


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## JLB (Jun 7, 2006)

The restitution cannot be discharged by bankruptcy, which he filed last year, with no one notifying us.

He also has alimony and child support, from the divorce brought on by his drug problem and his legal problems.

I don't hold out any hope of getting money from him.  The only hope of getting money would be from his dad and that would be to keep him from going to prison.

I find it fitting that we should try to take money from the dad of the jerk who took money from our dad, and caused his death.

So, in the next 19 days we need to accelerate the restitution agreement so that the full unpaid balance is due in full.  Then we need to report that at the Probation Revocation Hearing. Then it will be up to a criminal court judge.

Even if the money is not paid, we will have this ridiculous 17-year restitution agreement over with.  And we will still have a judgement, with interest running, that can never be discharged.

The attorney for the estate would be never be brought up on charges.

His letter asked me to cease and desist from sending emails to the Executor.

I sent her one more, to thank her for her four years of work, for always being there, and I said I am sorry things turned out the way they did.

She answered me saying she is still there and suggested I call her toll-free number.  So, anything is still possible.


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## riverdees05 (Jun 14, 2006)

From the other side:

Update on My Dad's Estate 
Update:

" I just spoke to the Executrix of my Dad's Estate and she said the attorney for the Estate has agreed to accelerate the Restitution Agreement entered into by my Dad's stock broker, prior to the Probation Revocation Hearing scheduled for June 26.

That means that instead of being $1500 or $2000 behind in payments, around $90000 will be due v. a 10-year prison sentence. It will also put an end to a very poor restitution agreement that had 14 more years to run!

This has been going on close to four years and a few folks have been following it Over Yonder, wishing me well with it over the years. Since I can't right now, could someone please add this good news to that thread?

Gracias."


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## Jestjoan (Jun 14, 2006)

Thanks for posting.........


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## grest (Jun 14, 2006)

yippee!
Connie


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## riverdees05 (Jun 14, 2006)

More update:

"It is his dad who paid the upfront amount of the restitution agreement, his dad who has been paying the monthy amounts, and his dad vis-a-vis his son's attorney who said we would not see any money after probation ended, leaving 12 years of payments.

So if his dad will not pay now, to keep his son out of prison, then he will not pay once probation is over.

If it is a bluff they have been playing, hoping that we will take a little every month, for next to forever, and put up with missed payments, rather than risk getting nothing, we have called it.

The beneficiaries are unanimous, pay or go to prison.

There is always the possibility that the judge will not send him to prison, to fulfill his sentence, if he does not pay. That is what the Probation department and the Prosecutor are for, to continue to represent the victim, in this case deceased, after the fact."


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## JLB (Sep 12, 2006)

I see I have not updated this for awhile, but something came up today to remind me.

My brother and uppity stepsister attended the probation revocation hearing.  They said that the judge was very severe, but they did not indicate that anything had been said about accelerating the restitution and sending creep to prison if he did not pay.  The indication was that none of that even came up.

We beneficiaries had some email back-and-forths about that, and still neither of them mentioned anything about those topics coming up at the hearing.  So, I followed up with the County Attorney who represented the state, asking what he thought about us accelerating the restitution now.  All this time I have been thinking he and the estate's attorney totally blew me off on that.

Today a copy of the transcript arrived.  In his opening statement, the first thing he told the court was that the beneficiaries want to accelerate the restitution or have creep serve his 10-year prison sentence.  Then he recommended against that, asking for stricter probation and an increase in the amount of the monthly payment.

Well, duh, no wonder he didn't answer my follow-up emails!  He addressed those issues in court!  And where were my borther and stepsister?  What hearing were they listening too?  Did they purposely let me continue to pursue that, knowing it would make me look like a fool?

Needless to say, what little trust I had in them is gone.

Specifically, the judge increase the monthly payment, made it clear that this payment is creep's #1 priority, since he has no other obligations that carry a 10-year prison sentence if he does not pay them.  If he stops paying during the probation period, which runs through the end of 2008, he will be subject to the 10-year prison sentence *AND* if he misses payments after his probation is over, he will be subject to 6 months in the County Jail (a worse place) for every payment he misses (for contempt).

Originally there was a 5-year probation period and a 17-year restitution period.  It was not clear before what would happen if he stopped payments after the probation period, and his family had threatened that payments would stop at that time, but now it is on the record.

Oh yeah, the restitution agreement has been turned over to the beneficiaries, but the estate still has not been closed.


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## JLB (Sep 15, 2006)

I received notice that the hearing approving the Final Report will be September 27.  Dad's been gone for 4 years and 3 months.

When I have a slow day I will figure out how the attornies made out.  

My not-uppity stepsister is encouraging me to pursue _cashing out_ the restitution agreement, at a discount, of course.  I told her that if she can get the others to agree, then I will pursue it.



			
				JLB said:
			
		

> Oh yeah, the restitution agreement has been turned over to the beneficiaries, but the estate still has not been closed.


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## DrQ (Sep 15, 2006)

JLB said:
			
		

> My not-uppity stepsister is encouraging me to pursue _cashing out_ the restitution agreement, at a discount, of course.  I told her that if she can get the others to agree, then I will pursue it.


Sell the note to the mob.  They will get their money.


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## JLB (Sep 17, 2006)

Do you have their phone #, and may I use you as a referral?   



			
				DrQ said:
			
		

> Sell the note to the mob.  They will get their money.


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## JLB (Sep 18, 2006)

Wow!

All four siblings are now discussing stuff by email.

That is because I am not contacting brother and uppity stepsisters directly, but through non-uppity stepsister.  They would likely not reply if the message was directly from me, but this way they can take a position against me through her.

What I have to do to get us all talking?

Brother is suggesting what I advocated in June, but he would not because I was.   

He and uppity stepsister are twisting my intentions.


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## RonaldCol (Sep 19, 2006)

*Arbitration Is Not Legal*

There was a higher level court ruling in one of the states, I believe it was New York state, that any arbitration procedure cannot deny what is protected in the United States Constitution. I don't have access to LEXUS but anyone who does can find the recent ruling on this; this was within the last year and a half so that can narrow down the search.

What I am referrring to is the protection of the Constitution to a trial by jury. This is a protected right. 

Arbitrations, either in security cases, or insurance cases, etc., whatever the environment may be, may not supercede trial by jury.

If you don't like what you get in arbitration, you can always resort to civil trial within your municipality, within your state, and even go as high as the federal court. Arbitration is NOT binding, even though they say it is.


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## JLB (Sep 19, 2006)

I have no idea how this applies to our situation, since arbitration is not involved.  But it sounds like something my brother would say.   

The only question at hand is whether the beneficiaries accelerate or start charging interest on the unpaid balance of a restitution agreement in a felony theft case, when the State and the Court have determined that is not warranted.

Our email dialogue continues, me channeling my thoughts through non-uppity stepsister, and brother and uppity stepsister replying to her.

Sure, I would like to have lump-sum payment of the full amount, or to start charging the highest allowable rate of consumer interest, but not at the risk of alienating the Court, which just ruled in our favor by stipulating what will happen if creep misses a payment after his probation period ends--6 months in the county jail for each missed payment.  That was a huge decision in our favor.

I am leaning toward using that decision to negotiate a settlement with creep, through his attorney, or to saving it for the next time he misses a payment, when the Court may be favorable to us doing that then.

Except for missing three payments, he has complied with all other terms of his sentence, and the Court views that simply as a bad decision on his part since none of his other bills have a 10-year prison sentence if he doesn't pay them.



			
				RonaldCol said:
			
		

> There was a higher level court ruling in one of the states, I believe it was New York state, that any arbitration procedure cannot deny what is protected in the United States Constitution. I don't have access to LEXUS but anyone who does can find the recent ruling on this; this was within the last year and a half so that can narrow down the search.
> 
> What I am referrring to is the protection of the Constitution to a trial by jury. This is a protected right.
> 
> ...


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## RonaldCol (Sep 19, 2006)

JLB said:
			
		

> I have no idea how this applies to our situation, since arbitration is not involved.  But it sounds like something my brother would say.
> 
> The only question at hand is whether the beneficiaries accelerate or start charging interest on the unpaid balance of a restitution agreement in a felony theft case, when the State and the Court have determined that is not warranted.
> 
> ...



The information I offered about arbitration being NONE binding can be used in your case, IF you decide to go back to the origination of your current dilemmas. 

From what I skimmed of prior posts in this thread it appears as if you and the broker agreed to terms in an arbitration. You complied with the terms from your perspective. The broker did not. This is a clear abrogation of the agreement. Hence, you are no longer bound by the terms of the arbitration. Even by minimal standards of adherence to contract law you are permitted to seek alternatives at this point. One of the alternatives I presented to you is that you no longer need to agree to the terms of the arbitration, i.e. you can now go directly to civil court to seek compensation.

I would say that by going to civil court for a jury trial to obtain your protection as put forth in the US Constitution would be better leverage than merely trying to change the agreed terms, to your detriment, of the original arbitration agreement.


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## JLB (Sep 19, 2006)

Nope.  That's where you went wrong.   



			
				RonaldCol said:
			
		

> From what I skimmed of prior posts in this thread it appears as if *you and the broker agreed to terms in an arbitration*.


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## JLB (Sep 22, 2006)

*Question for Legal Beagles*

Up until now the restitution agreement has been a two-party agreement, between my dad's Estate as one entity and creep as the other.

Now the RA has been assigned to the beneficiaries, five of us.  Not a group representing the beneficiaries, but the beneficiaries ourselves.

Prior to now, one entity, the Estate, dealt with the RA.  The attorney for estate conducted business regarding the RA with creep's attorney.

Can each of us not now deal (negotiate) with creep with respect to our share of the RA?  Do we need the permission of the others to, say, negotiate a settlement for just our share?


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## Dave M (Sep 22, 2006)

My understanding is that creep owes the estate, not each of you as individuals. I realize you are the beneficiaries, but it makes a difference. Assuming I'm correct in my understanding, if I were creep's attorney, I wouldn't negotiate with any one of you for a separate settlement.

Why? Because (for example) all but one of you might settle for discounts. Then the last remaining unpaid person might demand payment of the entire balance less what was paid to the rest of you. It would be messy. 

The bottom line: Unless there is a legal document - approved by the court - that divides creep's total responsibility into individual shares, creep's attorney won't consider agreeing to what you suggest.


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## JLB (Sep 22, 2006)

That is the cruxt of what I am trying to determine.  When there was an Estate, there was no question how many entities were involved.

Now there is a question. There are five beneficiaries, each a legal entity, that the agreement has been legally transferred to.  But still just one agreement.  

So, the question I am seeking a free legal opinion to is, absent anything in writing preventing each person from dealing on their own, could they?

Dealing with each of us separately may be messy or not.  Creep has been ordered to pay $600 a month until the entire debt is settled.  Settling lump-sum with one beneficiary would not change the court's order, it would just reduce the unpaid balance and reduce how long he has to pay to get the others paid off.

At any point in time it is easy to establish how much of the unpaid balance each of the beneficiaries is entitled to.  If I, for instance, agree to settle (for any amount), the amount of the unpaid balance will be reduced by my percentage share of it.

There would be benefits to creep.  If the beneficiaries wish to start charging the highest allowable interest, 22%, which they have the legal right to do, it would be in creep's best interest to settle, lump-sum, with as many beneficiaries as he could.

Like some other issues with me, it is not about money.  It is about simplifying and eliminating BS, in this case 11.45 more years of it.




			
				Dave M said:
			
		

> My understanding is that creep owes the estate, not each of you as individuals. I realize you are the beneficiaries, but it makes a difference. Assuming I'm correct in my understanding, if I were creep's attorney, I wouldn't negotiate with any one of you for a separate settlement.
> 
> Why? Because (for example) all but one of you might settle for discounts. Then the last remaining unpaid person might demand payment of the entire balance less what was paid to the rest of you. It would be messy.
> 
> The bottom line: Unless there is a legal document - approved by the court - that divides creep's total responsibility into individual shares, creep's attorney won't consider agreeing to what you suggest.


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## Dave M (Sep 23, 2006)

That's all fine from your standpoint. However, from creep's standpoint (and more importantly, his attorney's standpoint), there is no incentive to deal separately with any one of you. Unless the court approved such a deal, the court-ordered payments would remain in effect. 

If you're interested in trying, it should be through creep's attorney, with a suggestion that, if you can work something out, you seek court approval. You'll need legal counsel because the complexities of such a deal require a very carefully worded document.


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## JLB (Sep 23, 2006)

You are obviously missing the point that if 22% interest started running on the unpaid balance, the less unpaid balance he had the better off he would be, and, of course, the court-ordered payments would continue at the same rate, but it would not take him as long to pay it off with a reduced balance.

If one/some of us settle, we would file with the Court to amend the unpaid balance.

In case creep is slow with money figures, of which there is no indication, his attorney could say, "Would you rather pay 22% interest on $80,000, or $36000?"   

Another benefit would be that if creep could settle with one/some of the beneficiaries, that may encourage the others to follow suit, seeing the wisdom of our thinking.  

A third benefit may be that he may desire to negotiate our shares down a bit, and we may be willing to do that to eliminate 11.45 more years like the past 4.25 years have been.

But, as my brother would say, it all may be a _mute _point.  

My not-uppity stepsister wants to give it a shot, and a step-granddaughter to my Dad (niece to my stepsister) likely will, too, so if we have to deal as one group, and if majority rules, we would have it.

In any event, it doesn't make any difference in the first step, which would be to contact creep's attorney and see if creep is interested in settling, in light of the recent stiff Court decision.


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## Dave M (Sep 23, 2006)

I'm obviously _not_ missing the point. Of course he would be better off with a reduced balance, as you say. But only if the court agrees. 

Without court approval, there will be no deal, no matter how attractive it might otherwise seem to be for him. That's my point, which you seemed to gloss over until now.

You asked for help. I offered some. You got argumentative. My apologies for trying to help. I'll bow out.


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## JLB (Sep 23, 2006)

Maybe someone else would like to contribute.

Having dealt with the Court and the people involved for 4 years, I can't see the Court not approving anything the beneficiaries (one or all) and creep work out.  I will concede that there is a distant, remote, possibility that they might not, but that possibility is not enough to keep us from trying to work something out.

If we reach an agreement, the Court either will or will not approve it, if there is a need for them to do so.

I guess creep's attorney could refuse to deal with anyone but the beneficiary group as a whole, if he was inclined against the best interest of his client.

The issue I am trying to get advice on is whether settling with one or some of the beneficiaries (rather than the group as a whole) might be an avenue we can pursue, absent any verbiage stating otherwise.

I looked to the Restitution Agreement itself to see if it provides any guidance.  That was interesting in that draft versions of the agreement was between the beneficiaries (all named) and creep, and in the final version it was with the Estate of my father, and Creep.

So, the specific verbiage says creep is to make restitution _to the Estate_.  It also says that the Estate may assign the agreement.  There is no specific reference to assigning the agreement to the beneficiaries at the close of the Estate.  There is no mention of creep dealing with just one entity, or each of the beneficiaries individually.  There is no verbiage preventing a beneficiary from attempting to settle their share separate from the others.

I/we have not seen the order assigning the agreement to the beneficiaries and the only thing I have to go on is a statement the Executrix made, saying any of us, individually, have a right to (and I am trying to be precise with the exact words) contact people and conduct business regarding the restitution.

Here is the acceleration clause, with identities deleted:

If (deleted) fails, refuses, neglects to make any payment under the terms of this agreement by the date such payment is due, or fails to comply with other term or condition of this agreement, the entire principal balance due and owing shall at once become due and payable, without notice and without demand, at the sole option of the *holder of this agreement*.  In that event, the remaining balance owing shall bear interest at the highest rate applicable to loans to individuals in the State of Iowa.  Such interest shall accrue and be payable from and after the date that (deleted) fails, refuses or neglects to make any payment required under the terms of this agreement by the date such payment is due, or fails to comply with any other term or condition of this agreement.  In that event, (deleted) consents that this agreement may be filed immediately with the Polk County District Court, without further notice to him, and judgment entered against him for all sums that are due and payable.  (deleted) also agrees to pay attorney fees and all costs and expenses, including court costs, incurred by the *holder of this agreement* in connection with any efforts to collect, enforce or otherwise realize upon this agreement


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## JLB (Sep 23, 2006)

Now that I think about, I believe we have an Iowa attorney that posts, possibly from Carroll.  Care to take a stab at this--for free.   

While you're at it, maybe you can decipher *bear interest at the highest rate applicable to loans to individuals in the State of Iowa*.

Gosh, if that means payday loans, I guess we have the right to charge, what is it, 350%!!!  

I know the rate of interest on legal judgements in Iowa is fairly low, tied to a market interest rate, but this is not a legal judgement.


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## dougp26364 (Sep 23, 2006)

JLB,

I'm glad things have worked out on this one for you. Mixing family with extate settlements is bad enough without legal issues such as yours. Hopefully, before long this will just be another story you can relate to people having similar problems of their own.


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## JLB (Sep 24, 2006)

Thanks.

I guess you just keep plugging away.  You may not always get things to work out the way you want, but the plugging away lets those calling the shots know you're there, and has to affect their thinking and actions.


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## JLB (Sep 27, 2006)

I'm doubtful that it does, but the Executrix is sending a copy of the order assigning the RA to the beneficiaries, to see if the wording of it might be helpful.  It could be that if it assigns it from one entity (the estate) to several (the beneficiaries) that that would open the door.


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## JLB (Oct 3, 2006)

You know how sometimes something sounds right, and you don't catch what it is really saying, or what might be a problem?

Well, I read the order assigning the restitution when it arrived and it seemed OK.  This morning there has been another flurry of estate stuff, agreements to sign, final report to sign off on, emails, etc.  In the discussion with my not-uppity stepsister, the order came up again.

When I read it again, I noticed that it refers to the assignment of the restitution _*payments*_, not the restitution _*agreement*_, so all it does is give the beneficiaries rights to the payments, without all the other benefits of the original restitution agreement, such as the acceleration clause.  That clause is only a small part of the written agreement.

Having rights to the payments without the other rights clearly will not do.  I have asked the Executrix to get an opinion on this, and she has referred it on to the attonrey for the Estate.

I figure if I can notice this error, so can creeps attorney.

FWIW, the Estate is now closed and the agents discharged.  The order was submitted to the court June 14, but not shared with the beneficiaries until I requested a copy of it last week.  It arrived after the Estate was closed.


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## JLB (Oct 3, 2006)

I stand corrected.  Although the Final Report has been approved, handwritten into the second page of it, the Estate is not closed.  Proof of Final Distribution and a Supplemental Order are still to be done before the agents are discharged.



			
				JLB said:
			
		

> FWIW, the Estate is now closed and the agents discharged.  The order was submitted to the court June 14, but not shared with the beneficiaries until I requested a copy of it last week.  It arrived after the Estate was closed.


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## JLB (Oct 4, 2006)

There were some harsh words yesterday afternoon, then dinner, preview show, and Mickey Gilley's with Rapmarks, followed by harsh words around midnight last night.

But this morning it is all hugs and kisses, with the attorney for the estate seeing what I am seeing (or not seeing) in the order assigning restitution to the beneficiaries.

They have agreed to add a clarification in the supplemental report.

It's a shame when it takes harsh words to get to the nice words.


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## JLB (Nov 13, 2006)

I was organizing my records on this, putting 100s of sheets in chronological order, and kept track of the fees that have been paid as I did that.

So far about $76000.


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## JudyS (Nov 14, 2006)

JLB said:
			
		

> I was organizing my records on this, putting 100s of sheets in chronological order, and kept track of the fees that have been paid as I did that.
> 
> So far about $76000.


That's pretty scary!  How does that compare to the amount of money that your family has actually received so far?


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## JLB (Nov 14, 2006)

There four _full_ beneficiaries and one _1/2_, and that is pretty close to one full share!  

About $50,000 went to the NASD attorney and it didn't even go to arbitration.  That's the hardest pill to swallow because the brokerage did not have to drag it out more than two years and make us all agonize over it.  They could have stepped up and did what was right, which was the words they told me the first day I talked to them.  If they had, that $50,000 would have gone into our pockets.

The attorney for the estate is at a little over $20,000.

There's still another $80000 owed to us in the restitution agreement with the broker who stole/swindled the funds.  There's 10 or 11 years left on it.  His payment is late this month, but the Trust agent just emailed me a few minutes ago to say that it has arrived at the court clerk's office.

My mother's estate was simpler, but my brother's behavior created extraordinary attorney fees in it also.  Of course, 1/2 of those fees came from my brother's share.

He appeared at the Hearing to approve the Final Report, to object to a number of things, but all he got was a 900-mile drive home. 



			
				JudyS said:
			
		

> That's pretty scary!  How does that compare to the amount of money that your family has actually received so far?


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## JLB (Feb 13, 2007)

While heading to the golf course to meet Rapmarks in January, I got a phone call from the office of the attorney handling my Dad's estate.  They wondered if I had any idea why my brother had not cashed the last distribution check and signed off on the estate.

Today I got an email from the trust department that handled my mother's estate, asking if I knew why my brother had not cashed the distribution check from it.

Boy, that's what I want to be when I grow up, so well off that I can just ignore significant sums of money.  

I wondered how his wife feels about it?  I know how mine would.


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## JLB (May 8, 2007)

Another story that seems to have no end.

Creep has again defaulted on the restitution.  When he did that before the judge said next time would be automatic 10 days in the County jail, and possible probation revocation (10 years in prison).

I took that possibility up with my siblings in March, and two of them did not even reply.

Now they are all paying attention, and replying.  They are way off base, but paying attention.


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## JLB (May 10, 2007)

Even as I was replying to another person's thread inquiring about a similar topic, this is still playing out.  I just got an email from the County Attorney's office.

Of the beneficiaries, only my brother apopears to be marching out of step.


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## JLB (May 10, 2007)

Oops, as of her last email, add uppity stepsister to that.   



JLB said:


> Of the beneficiaries, only my brother apopears to be marching out of step.


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## JLB (Sep 29, 2007)

Another update:

Creep had another hearing and got 10 days in jail for numerous probation violations, including late restitution payments.  By the time of the hearing he had caught the payments up to date (excluding interest, in the words of the Prosecutor)

I don't know if I mentioned it before, but we have an acceleration clause that gives us the option of calling the full unpaid balance due and charging interest (21%) retroactive from the date of the first violation, which was the late payment Month 1.

That clause appears to require us to take action--file it in Court--to exercise that option and now the beneficiaries cannot all agree on whehter that is the case and whether we should do that, it being really, really onerous to go back two years and charge 21% interest.


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## Icc5 (Sep 29, 2007)

*And we thought ours was long*

We have been dealing the my wife's father's estate and the problems with IRA's, 3 houses and who ends up with what.  4 children involved and only 1 (us) already own our house.  
When he passed away we found IRA's not titled the way he intended and all sorts of problems.  Ongoing issues have caused one finanicial advisor to step away and his partner is dealing with my wife's sister.  Just now started getting more involved with the lawyer.  I've tried to stay out of it because it was my wife's father, not mine and I don't want any problems with the sibblings of my wife.  I can already see resentment between three of them and their sister.  
No fun.
Bart


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## JLB (Sep 29, 2007)

I don't believe I have said this, but the problems with both my mom's and dad's estate, and with others I have knowledge of, is that they (the departed) did not address this issue while they were here, or while they were able to.  

I have found that to be commonplace with the current, older generation that has this to deal with, that their upbringing, whether it be having lived through the Great Depression or whether it be that personal finances was not something they shared with others and something not to be asked about by others, but for a myriad reasons they seem reluctant to do planning of this nature with the children/heirs.  (Run-on sentence  )

Regardless of your age and _condition_, have you?  Do you have _things_ in order?


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## Rose Pink (Sep 29, 2007)

Just took Dad (FIL) to the lawyer's yesterday to sign his trust, etc.  We'd done it all before but he had wanted some changes--and simply wrote them on the trust.  I am now keeping the originals and gave him the copies so that if he writes on them, we still have a clean original.  He is gradually getting to the point where he will not be able to make rational decisions.  I've told him over and over that if he wants his money to be used a certain way, he needs to set it up legally or it won't happen.  His big hang-up?  Money.  DH paid for his Dad's original planning 5 years ago.  I had hoped that Dad would pick up the tab for the "repairs" but he was overcome by the $165/hr fee.  I told him he'd need about $200 and he reluctantly agreed to that.  I had discussed privately with the lawyer Dad's hangup about money and we arranged that he would give a bill to Dad for $200 and I would quietly pay the rest which I did.  It is worth it for my peace of mind.  If there is any money left in the trust after he dies, DH and I will reminburse ourselves for the lawyer fees.  If not, it was just the right thing to do.  Dad could have easily paid but he just can't bring himself to spend money.  I told him it was worth $200 to protect his $250K of assets (home and bank accounts).  I also think he thought he was giving up control putting his assets into a trust.  We keep telling him he is the trustee--it's his money, he can do with it what he wants.  He was never a very saavy man and has lost money in failed S&Ls and questionable stock purchases so I think he is leery of of doing things his generation didn't do.  He had had a generic type will drawn up at the senior citizens's center  many, many years ago (at a cost he could appreciate which was probably nothing or next to nothing).  It did not address so many issues.  But, he was familiar with what a will is and he is not familiar with what a trust is (or that it isn't just for milllionaires).  He is also leery of the POAs which give control to others.  I just don't think he fully understands that he is actually gaining control by designating these things in advance.  He's not stupid but these things just weren't done in his circle.

Have DH and I done our own planning?  Yes, but it is seriously outdated and needs to be redone.  If I can get DH in town on a weekday we'll be heading to the lawyer ourselves.  You can't just do these things once and forget about them.  Circumstances change and so should our estate planning and POAs.  This mess with my FIL has made me more aware of the potential mess I am leaving my own children and I don't want to do that to them.


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## JLB (Oct 1, 2007)

I have not reimbursed myself for anything, including hundreds of hours and many trips, for either my dad or my mom.

I declined the legal executor's fee for my mom's.

Of course, that did not win me any brownie points with any of those involved, but it did with those that matter most, my mom and my dad.  Trying to see that what they intended got done was the least I could do for the many years they had done for me, probably without enough gratitude from me.

But, sadly, I have learned the past five years that not many people think like me.

Even our attorney.  When I say I have done something like that--not taken money or taken less than I could have on something--because I simply felt it was the right thing, he says, "That's stupid!  Take the money."

Oh yeah, our former attorney.


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## DaveNV (Oct 1, 2007)

I've just last month laid my father's estate to rest (pun intended) after a year of back-and-forth with attorneys, out of state titling on a mobile home, and government bank accounts.  It was a huge exercise in making lawyers richer, and a solid lesson in "proper" estate planning.  I also learned a Will is only as good as what it says - not what it intends - and everything is up to "interpretation."  What a pain.  I'm SO glad it's finally over.

I wish all of you facing similar situations the very best.  The days of "you're the eldest child, so you inherit everything" are long gone.

Dave


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## JLB (May 24, 2008)

With the end of Creep's probation rapidly approaching, the threat from him and his father that restitution payments will end, the fact that he actually stopped making payments after a judge warned him not to in a Probation Review Hearing, and the fact that he will no longer be supervised and reporting, I have scheduled a hearing, June 11, to accelerate restitution and assess interest.  It means that I am asking that Creep pay the entire balance before the end of probation.

I knew I could not live with myself if I had all the warning we have had, and then did nothing.

I don't believe it is a slam dunk because of a word in the acceleration clause.  

The word is _immediately_, suggesting that this is an action that had to be taken at the time of the default.  At that time I requested it of the Executor and Attorney for the Estate.  I have that in writing, including the Executor's confirmation of that request and that the attorney was preparing the request, and a subsequent letter from the attorney saying he had decided not to because of the scheduled Probation Revocation Hearing.

I have the transcript from that hearing in which the Prosecutor mentioned that that was the desire of the beneficiaries, but that he was not requesting it.

At that time, the beneficiaries were stunned that it was not accelerated--by the Estate, the Prosecutor, or the Court--and we found out after the fact.

The saving word in the clause may be _may_, as in _may file this agreement in District Court_, creating a vagueness, that being that filing in District Court may not be a requirement to begin with.  My brother takes that position, that it is our option to accelerate it without notice (it does say that).  My position is that it says to go to District Court, so that is the intention (however poorly it may be worded).  How would the court know the proper balance if we did not do it through the Court?

Also in our favor is the judge's order from the Probation Review Hearing, which was called at the time Creep and his Dad threatend to stop payments after probation.  That order said that the matter of restitution could be scheduled for a hearing prior to the end of probation, and that is what I am doing.

I am doing it _per se_, making the 800-mile round trip because my stepsister, who lives within walking distance of the courthouse, will not.


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## lvhmbh (May 25, 2008)

Good luck JLB!!!  Linda


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## grest (May 25, 2008)

What a drag!  Good luck...
Connie


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## laxmom (May 25, 2008)

Good luck, JLB!!  Keep us posted.


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## Dori (May 25, 2008)

Wishing you the best of luck, JLB.  This has been an absolute nightmare for you.

Dori


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## JLB (May 26, 2008)

First, a correction.  Creep actually stopped making payments twice after being warned.  The first time he got a suspended 10-day jail sentence and the second time he served it.

The prosecutor did not support us exercising our option to accelerate it either time.

Second, the acceleration clause says we can do it _without notice_, but the Court has sent notice to _everyone_, the Prosecutor, DOC, PO, Creep and Creep's Attorney.  The clerk doesn't know not to do that since she doesn't know annthing about the acceleration clause.


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## JLB (Jun 7, 2008)

This coming Wednesday will be the day.

Not unexpectantly, but unfortunately, my brother concocted one of his extravagent tangents, and put it in letter form to the Court, the Prosecutor, and DOC, making his demands.   

Oh well, at least the judge will see how reasonable my request is.  (Doing my best to put a positive spin on it).


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## lvhmbh (Jun 8, 2008)

Good Luck!!!   Let us know how you do!


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## JLB (Jun 8, 2008)

Thanks.

I forgot to mention that I invited the attorney for Estate, the one who negotiated the Restitution Agreement and said he was going to accelerate it in 2006, and then did not, to assist us now.

He declined.   

I've said it before, but the attornies involved with the estate wound up with approximately the same amount as each of the beneficiaries.


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