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IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA.

CASE NO.: 16-2008-CA-013005

DIVISION: CV-E

BANK OF AMERICA, N.A., a nationally

chartered banking association,

Plaintiff,

vs.

GWINNETT, LLC, et al.,

Defendants.

MOTION TO DISQUALIFY THE RECEIVER AND HIS COUNSEL FOR PERPETUATING FRAUD ON THE COURT AND REQUEST FOR APPOINTMENT OF AN EXAMINER

COME NOW: The Defendant/Counter Plaintiff Sam Kazran (“Defendant”) hereby moves this court to issue an order disqualifying the Receiver Michael Moecker and Associates, Inc. (“Moecker”), Michael Phelan (“Receiver”), Akerman Senterfitt (“Akerman”) and Jacob A. Brown (“Counsel”), for perpetuating fraud on this court. The Defendant further state:

1. The Receiver and his counsel have used this public office very aggressively to assist Bank of America, N.A. (“BOA”) and injure those who

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oppose it. In doing so, they have committed Fraud on this court in the most vagarious and unrighteous manner. The court is urged to initiate an investigation to uncover the magnitude of dishonesty and criminal conduct that’s transpired to date in BOA’s Receivership.

PRELIMINARY STATEMENT

2. Pursuant to US supreme court, and the Florida supreme court, an

action shall be dismissed with prejudice when alleged misrepresentations and/or omissions were carried out by corrupt officers of the courts in a deliberate and willful manner intended to interfere with the courts ability to impartially adjudicate the claim, and/or when perpetrators engaged in willful misconduct that threaten public safety.

3. THE U.S. SUPREME COURT has consistently held that “Fraud on

the court” makes void the orders and Judgments of that court. A void order is void at all times, does not have to be reversed or vacated by a judge, cannot be made valid by any judge, nor does it gain validity by the passage of time. The order is void ab initio. Valley v. Northern Fire & Marine Ins.Co. 254 U.S. 348, 41S. Ct. 116(1920). “

4. FLORIDA SUPREME COURT: Has consistently held that Striking

of pleadings or entry of a default judgment is appropriate sanctions when violations or conduct were accompanied by “deliberate and contumacious disregard of the court’s authority,” and/or “bad faith, and/or willful disregard, and/or nondisclosure. . or “conduct which evinces deliberate callousness. Mercer v. Raine, 443 So. 2d 944 (Fla. 1984),

5. In Cox, the Fifth District set forth the public policy supporting

dismissal based on Fraud on the court.

“The integrity of the civil litigation process depends on truthful disclosure of facts. A system that depends on an adversary’s ability to uncover falsehoods is doomed to failure, which is why this kind of conduct must be discouraged in the strongest possible way.”This is an

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area where the trial court is and should be vested with discretion to fashion the apt remedy(706 So. 2d 43.47 )(Fla. 5th DCA 1998):

I. MATERIAL UNDISCLOSED CONFLICT

4. The Receivers counsel has a long list and a history of omitting material facts including inter alia, reckless omissions of no less than three long term continues and significant conflict of interests upon which the entire foundation of this Receivership was built on.

5. Not too long ago, the Defendants learned Mr. Brown, willfully and

intentionally omitted Akermans substantial and continuing business dealings with Mercantile Bank. (“Mercantile”).

6. These substantial and continuing MERCANTILE-AKERMAN

economic relationships were never disclosed to the Court or the Defendants. Moreover, there is evidence that the Receiver masterminded this act while wasting the assets of the estate under the responsibility of this court. Defendants “MOTION FOR SANCTIONS AGAINST BOA AND THE RECEIVER.” is incorporated herein as if it was fully stated herein.

II. EVIDENCE OF FRAUD ON THE COURT

7. The following represent “clear and convincing evidence” that the Receiver authorized Mr. Brown to retain Attorney Aaron Cohen to sign certain documents prepared and drafted by Mr. Brown. In short, to solve (omit) what the Receiver characterized as “issues”, Mr. Brown purchased Mr. Cohen’s signature for sum total of $3,742.32. ( Receiver’s Depo, Pg.202, L 19-25 is attached as EXHIBIT 1).

MR. ECKARD: Can you tell me why that Mr. Cohen filed this motion instead of your lawyer Akerman Senterfitt?

MR. PHELAN: I believe that there was a conflict that would've between Akerman and Mercantile that would've been-- would've had to have been resolved by waiver and it was faster to get Mr. Cohen to do it since he didn't have the conflict.

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8. The conduct at issue exceeds far beyond violations of professional conduct, or disciplinary actions set forth by Florida Bar. Omission of this highly material fact was intentional, and with reckless disregard for the truth. These actors have set in motion some unconscionable scheme calculated to interfere with your honors ability to perform the task of impartial adjudication of this case.

“It is a wrong …which … cannot complacently be tolerated consistently with the good order of society….involv[ing] two victims: the individual litigant … and the court itself, whose integrity is compromised by the fraudulent behavior of its officers.) “The very temple of justice [is] defiled.” Universal Oil Products v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946).

III. OMISSIONS CONTINUE

9. Simply stated, BOA masterminded this Receivership through various

omissions and fraudulently induced perceptions to penetrate the judicial machinery. As it will be shown, this court and the Defendants are the only two that are not under the control of BOA.

10. Aside from Mercantile, the Receiver and his counsel enjoy an

undisclosed prior conflict with BOA that expands over several years. BOA, Mocker and Ackerman share a common and joint economic interest in this, and other similar projects both before, and after this action was commenced.

11. Ackerman’s act as Counsel to the Receiver. BOA is a five star client

of Ackerman. The firm's representation of the Bank is bountiful and long-standing. Ackerman has continued to represent BOA uninterrupted every day these receiverships have been in existence.

12. BOA has referred business to Moecker from which Moecker derived

significant fees and other economic benefits. These substantial and continuing BOA-AKERMAN & BOA-MOECKER economic relationships were intentionally omitted from the Court and the Defendants.

13. Record fully support, and the Receiver confirms that he improperly

acted to advance BOA’s economic interest, Akerman’s economic interest, Receivers economic interest, and their joint economic interest rather than the

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interest of his fiduciaries.( Receiver’s Dep, Pg. 39, Ln. 18-20 & Pg. 40, Ln. 2-11 attached as EXHIBIT 2).

MR. ECKARD: Has your company represented Bank of America before, this proceeding in receivership or assignee of benefits?

MR. PHELAN: I don't think we represent banks. We're normally court appointed, independent fiduciaries.

MR. ECKARD: Okay… Have you ever been involved as an independent fiduciary where Bank of America was a creditor?

MR. PHELAN: YES

MR. ECKARD: Do you know how many times?

MR. PHELAN: Probably two dozen.

"[T]he receiver is an officer of the court and should be as free from 'friendliness' to a party as should the court itself' Harkin v. Brundage, 276 U.S. 38,48 S.Ct. 268, 275-276, 72 L.Ed. 457. No one maybe appointed receiver whose personal interests would substantially conflict with his unbiased judgment and duties as receiver. Receivers, supra, § 115. Due to the fiduciary nature of his duty to the parties, a receiver is not permitted to deal with the trust estate for his own benefit and advantage or for that another. See Id.; Sanders v. Stevens, 51 F.2d 743, 7 (D.Miss.S.D.1931) In re Singer Furniture Corp., 47 F.2d 780, 784 (DCt.S.D.N.Y.l931); In re Insull Utility Investments, 6 F. Supp 653, 660 (D.C.ll1.l933). Accord Phelan v. Middle States Oil Corp., 154 F.2d 978, 991 (2d Cir.1946) (receiver must act openly and fairly, and must not use his position for their own profit or to further the interests of themselves or any other person with whom the receiver is associated). 14. The Receiver and his Counsels callous disregard for this court’s

integrity is further validated by the fact that THE RECEIVER CARELESSLY ADMITS HE KNEW HIS COUNSEL WAS A REPRESENTATIVE OF BOA PRIOR TO RETAINING HIS SERVICES. ( Receiver’s Depo Pg.46, Ln. 4-17 is attached as EXHIBIT 3).

MR. ECKARD: Okay. Did you know at the time that you hired Mr.

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Brown, or Akerman, that -- whether they represented Bank of America?

MR. PHELAN: Yes.

MR. ECKARD: You did know?

MR. PHELAN: Yes.

MR. ECKARD: What did you know?

MR. PHELAN: That Akerman represents Bank of America from time to time. MR. ECKARD: Okay.

MR. PHELAN: Place to place.

MR. ECKARD: Did Mr. Feltel have any influence over your decision to hire Mr. Brown and his firm, Akerman?

MR. PHELAN: Not that I recall.

15. The Receiver agrees, it’s important for an official, and appointed officer of the court to be independent and neutral, and not show any favoritism towards any party. ( Receiver’s Depo Pg. 48, Ln. 9-16 attached as EXHIBIT 4)

MR. ECKARD: You would agree with me that it would be important for a receiver not to show favoritism for a party or act partially towards a party?

MR. PHELAN: I think it's important for a receiver to be independent, yes.

16. Despite actual and constructive knowledge of his obligations as the

fiduciary and an “Officer of the Court”, and with total disregard to his own words THE RECEIVER ADMITS HE DOES NOT CARE TO COMMIT FRAUD ON THIS COURT. (Receiver’s Depo Pg. 54, Ln. 4-9 attached as EXHIBIT 5).

MR. ECKARD: And before you hired Akerman and Mr. Brown, you said you knew that they represented Bank of America in other proceedings?

MR. PHELAN: Yes.

MR. ECKARD: And that didn't matter to you?

MR. PHELAN: No.

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17. The Receiver and his Counsel are under a strict duty to disclose any material fact that can significantly affect the outcome of the case. It is undisputed that the court has consistently relied on the Receiver and his counsels’ representation prior to entry of each order. Respectfully, the Receivers careless attitude is an insult to this court and the entire judicial process.

A fiduciary is required to make full disclosure to the beneficiary of all material facts. Breach of the duty to disclose is fraud. See Donahue v. Davis, 68 So.2dI63, 171 (Fla.1953). See also Restatement (Second) of Trusts § 170(2) (1957); accord First Union Nat. Bankv. Turney, 824 So.2d 172,188 -189 (Fla. 1st DCA 2110). 18. Its counsel’s fiduciary, ethical, moral and legal obligation to

know the law and disclose any matter that could affect his qualification to act as counsel for the Receiver and an adviser to the Court.

[W]e hold it is the duty of courts of chancery to strictly enforce the principle, clearly established, that a receiver will not be permitted to employ as his counsel one whose interests, in person or as attorney for another,… it being the duty of the attorney to know the law in that behalf, it was his duty to decline to accept employment by the receiver, and his doing so and seeking to act on both sides with such hostile interests, is fraud. (Emphasis supplied.) Farwell v. Great Western Tel. Co., 161 111.522,613,44 N.E. 891,920 (1896). Here, the conduct on display before this Court “fails to comport with the standards of integrity required by the judicial system [and] [s]uch misconduct must be discouraged in the strongest possible way.” Andrews v. Palmas De Majorca Condominium, 898 So.2d 1066, 1070 (Fla. 5th DCA 2005).

19. The Receiver and his counsel’s position are of a highly special

responsibility pursuant to which they each owe the strictest duties of full disclosure, fair dealing and honesty in fact. The Receiver has access to special knowledge, unprecedented authority and control over the Defendants. In the instant case, the Receivers counsels publicly admits that this Receivership is for the benefit of BOA.

The Receiver and his Counsel are both officers of this Court. Lewis v. Gramil Corp" 94 So.2d 174, 175 -178 (Fla.l957). As court

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officials involved in a receivership, each owes specific fiduciary obligations to every party or person with a stake (stakeholders) in the receivership estate. Fleet. Bank v. H & D Entertainment, Inc.96 F.3d 532,540(l St. Cir.1996). (receiver is a "full-fledged fiduciary"); 16 Fletcher Cyc. Corp. § 7813 (receiver is a representative of the court and owes fiduciary duty to all the parties in interest and is "under the duty to act impartially toward, and protect the rights of, all parties.) accord Phelan v. Middle States Oil Corp.154 F.2d 978,991(2d Cir.1946).

20. It cannot be disputed in good faith that these omissions were intended to, and did in fact perpetuate fraud on the court. The direct and circumstantial evidence are overwhelming. The actors involved are both sophisticated and educated individuals that are charged by their respective positions with knowledge of the law and both required to disclose all material facts to the court. However, in this receivership, THE RECEIVER HAS PUBLICLY ADMITED THAT HE SIMPLY DOES NOT CARE.

STATEMENT OF GOOD FAITH OBSERVATION

21. The idea that a hired representative of an adverse party can simply omit material facts and recklessly deceive the Court to (a) gain judicial immunity to harm people (b) exercise judicial authority equal to the court itself without supervision; (c) recklessly seek injunctions against non-party entities without prior authorization of the appointing court; (d) seek injunctions against a private person who is not the conceivable subject of any claim made by the Bank; (e) obtain bank records of persons over whom the court has no jurisdiction; (f) obtain federally protected personal records(tax returns, bank accounts) of individuals and entities without notice, due process or authorization from the appointing court; (g) recklessly terminate the business operations of non-party entities after selling the assets of the estate to that same non-party; (h) terminate and eject their employees of their own property with threat of lethal force; (i) freeze the payroll/operating bank accounts of non-parties 24 hours prior to payday without notice, authority, or authorization from the appointing court; (j) confiscate moneys held in trust in favor of customers; (k) confiscate moneys held in trust for sales tax revenues, DMV tag and titles, child support obligations, healthcare premiums and payroll taxes; (l) agree to sell the alleged collateral of the bank free and clear of all liens only to resized the same assets after collecting lawful

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payment;(m) terminate healthcare premiums of innocent members of the public;(n) exercise unfair and undo control to recklessly destroy several million dollars of approved loans; (o) make intentional and false representations on record then; (p) publicly admit that he does not care would be shrugged off as the clownish gesture of an incompetent fool lost in the mountains of Afghanistan except for the fact that this Receiver has done exactly that while injuring so many people.

22. The above description is neither a cynical musing nor hyperbole. The observations constitute a dead accurate and objective description of documented events that have transpired to date in the BOA’s Receivership. In order to ensure absolute clarity for the court, the positions described is contrasted based upon the surreal parallax views of a deceitful and corrupted Receivership, versus reality which these actors will be forced to eventually face.

23. The undersigned Defendant has worked around the clock to bring

about the evidence in support of each of the foregoing allegation. In addition, the court will be provided evidence of several additional acts far greater that what is described herein including, “clear and convincing evidence that these actor intentionally, and with reckless disregard for the truth perpetuated fraud on the honorable Judge Schemer so repeated, so vagarious as to their bad faith and corrupt motives, to the point that the court became prejudice in adjudicating this action.

24. The undersigned does not seek any financial restitution, rather

criminal prosecution against the perpetrators should the court find that these actors are guilty of malicious attempts to subvert the administration of justice, and commit fraud on the very institution they seek protection from their odious conduct. No fraud is more odious than an attempt to subvert administration of justice Hazel-Atlas Glass co. v, Hartford-Empire Co. 322 U.S 238 (1944).

WHEREFORE: Based on the clear and convincing evidence described herein above, the undersigned Defendant respectfully request that this court find:

a. Appoint an independent examiner to investigate the conduct of the Receiver and provide the court with his findings.

b. Enter an order to disqualify the Receiver and his counsel for intentional omission of their monumental conflict.