2 24 12 11-05078 hall msj

7/29/2019 2 24 12 11-05078 hall msj

http://slidepdf.com/reader/full/2-24-12-11-05078-hall-msj 1/31

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

GLADE L HALL Nev. Bar #1609105 Mt. Rose St.Reno, NV 89509Tele. (775) 324-6447Facs. (775) 324-5387

Attorney for CreditorsAllison Taitano (Moore)

UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEVADA

In Re: ) Case No. BK-N-11-51818 btb) Chapter 7

JOHN D. GESSIN, )) MOTION FOR SUMMARY) JUDGMENTR RE: DISCHARGEABILITY

Debtor. )) Hearing date:)

____________________________________) Hearing Time:)

ALLISON TAITANO (MOORE), ) Est. Time: 2O minutes)

Plaintiff, ))

vs. )

) Adv. Proc. No. 11-5078JOHN D. GESSIN, ))

Defendant. ) ____________________________________)

ALLISON TAITANO (MOORE), plaintiff herein, by and through GLADE L HALL, her

undersigned counsel, moves for summary judgment that her creditor’s claim, based on a Nevada

State court judgment is not dischargeable pursuant to Section 523 (a)(2) of the Bankruptcy Code.

This motion is made and based on said state court judgment and the following Points and

Authorities:

//

//

1

Case 11-05078-btb Doc 10 Entered 02/21/12 14:42:12 Page 1 of 9

7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

1. Background:

ALLISON MOORE’S (fka TAITANO) INITIAL ENCOUNTER WITH JOHN GESSIN:

Allison Moore (fka Allison Taitano when she met Gessin and hereinafter referred to as “Ms.

Taitano”) is a teacher at McQueen High School. Prior to January 14, 2009, she owned a certaincertificate of deposit in the amount of $29,949.00.

On January 7, 2009, Ms. Taitano met John Gessin through an on-line dating service called

“Match.com”. On his information listing, Gessin made representations that he was a successful

businessman with a Masters Degree in Business Administration, had an annual income of

$150,000.00, and owned two successful businesses, one in real estate and one as an automobile

broker. He later personally represented to Ms. Taitano that he was a successful stock market

investor. He displayed a stock account statement showing approximately $90,000.00 in assets,

albeit in the name of his father, Bernard Gessin. He explained that the stock account was his, but

was nominally in his father’s name to hide this asset from the mother of his son. Gessin made

further representations that he was only interested in Ms. Taitano’s best interests and could invest

her money wisely and prudently, earning a high rate of return. Gessin stated to Ms. Taitano that he

had the ability to make money through “smart investments”.

Ms. Taitano and Gessin entered into a dating relationship; however, Gessin seemed to takean unusual interest in Ms. Taitano’s financial and real estate holdings, and stated that the

certificate of deposit was a terrible way to make money and that he could do much better through

investments he would make on her behalf.

The foregoing representations by Gessin were false in that he was unemployed, and he later

claimed that the stock account was not his but actually that of his father, and that he had no assets

other than an automobile and an apparent interest in a contract of sale whereby he was to receive

payments in the amount of $39,000.00, plus interest, secured by the title to a mobile home he had

sold to one Gene Aquino. Gessin did have possession of the title to that mobile home, endorsed in

blank by the title holder, Kim Kaltenbrun.

2


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

In reliance on his representations that he could make better investments for her,

Ms. Taitano entrusted $30,000.00, in cash, to Gessin .1

In late February 2009, Gessin represented to Ms. Taitano that he had invested the cash she

had entrusted to him in the stock market and that most of those funds had been lost. Gessin later claimed that Ms. Taitano did not turn over any money to him.

Ms. Taitano commenced an action against Gessin claiming fraud, breach of fiduciary duty

for misuse of her funds, and failure to account therefor; conversion of Ms. Taitano’s funds; and

obtaining her funds through a false statement in writing, a violation of NRS 205.375.

In this action, Ms. Taitano sought to recover her funds in the amount of $30,000.00, together with

punitive damages, interest, costs and attorney’s fees. The case was assigned to Department 10 of

the Second Judicial District Court of the State of Nevada.

Judge Elliott ordered the issuance of a pre-judgment writ of attachment and garnishment,

but Gessin claimed that the asset sought to be attached (the mobile home contract of sale) did not

belong to him.

The matter was assigned to arbitration under the Court Annexed Arbitration Program. The

arbitrator, Patrick Martin, heard the matter on June 3, 2010 and rendered his ARBITRATOR’S

AWARD on June 11, 2010. (Exhibit 1, hereto). Gessin filed a request for trial de novo, but Ms.Taitano successfully moved to strike that request on the ground that Gessin had failed to

participate in the arbitration process in good faith. (There are numerous bases for this conclusion

set forth in the Arbitrator’s Award.) FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

JUDGMENT (Exhibit 2, hereto) was entered October 28, 2010, incorporating and adopting, by

reference, the findings set forth on pages 6 through 12 of the Arbitration Award. (Judgment,

paragraph 28)

SPECIFIC FINDINGS OF FACTS SUPPORTING FRAUD

Gessin insisted on cash, again to supposedly hide the flow of money from his ex-1

wife.

3


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

AND OBTAINING MONEY BY FALSE PRETENSES:

At the time of filing of the Adversary Complaint in this matter, the Debtor was indebted to

Ms. Taitano in the sum of $56,802.15 on a debt for an arbitration award and judgment finding

defendant obtained money by false pretenses, false representation and actual fraud.The Judgment also finds specific and detailed procedural abuse and fraud on the Court in delaying

and burdening the process and in avoiding the Court’s prejudgment attachment. It characterizes

Mr. Gessin as a “remarkably skilled prevaricator,” and finds he committed perjury during his

testimony in the arbitration hearing.

Specific Findings of the State Court:

1.1 Ms. Taitano is a teacher of U.S. History at a high school in Reno;2

1.2 Ms. Taitano met Mr. Gessin through an online dating service (Match.com);

1.3 Mr. Gessin represented in his Match.com dating profile:

that he was a successful businessmanthat he had a graduate degreethat he own(s) and operate(s) two business;that he made $150,000 per year;that he does extremely well in business;that he does extremely well in finances;that he does extremely well in career stability;

1.4 Ms. Taitano and Mr. Gessin began a dating relationship;1.5 Mr. Gessin represented in person to Ms. Taitano:

that he was a successful stock market investor;that he had a stock account with about $90,000.00 in securities;that the stock account was in his father’s name so that he could hide hisassets from the mother of his son;that he could invest Ms. Taitano’s money for a higher rate of return;

1.6 Ms. Taitano owned a Certificate of Deposit with Wells Fargo opened on November

21, 2008 with an initial deposit of $30,000 at an annual percentage yield of 1.65 % and a balance

on January 14, 2009 of $29,949.72;

1.7 Mr. Gessin took an unusual interest in Ms. Taitano’s financial affairs and learned of

These numbers and findings are a direct quote from the ARBITRATOR’S AWARD.2

4


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

the Certificate of Deposit and her retirement account with ING;

1.8 Mr. Gessin represented the he could invest Ms. Taitano’s money and do better

through investments than the Certificate of Deposit;

1.9 Mr. Gessin represesented to Ms. Taitano that ING was having difficulty and headvised Ms. Taitano to open an account with Fidelity Investments; an account was set up in which

without Ms. Taitano’s authorization, Mr. Gessin named himself as Primary Beneficiary;

1.10 Ms. Taitano cashed in the Certificate of Deposit in the amount of $29,949.72 and

added additional cash and on January 14, 2009 gave $30,000.00 in cash to Mr. Gessin; Mr. Gessin

insisted on cash so that he might hide this money from the mother of his child;

1.12 Ms. Taitano instructed Mr. Gessin not to invest in stocks as too risky for her;

1.13 False representations were made by Mr. Gessin:

he does not have a graduate degree;he does not own and operate two businesses;he does not make $150,000.00 per year;in 2007 his Form 1040 Line 7 gross was $26,466.00he could not remember the source of $2,935.00 taxable interest;he does not do extremely well in business;he does not do extremely well in finances;he does not do extremely well in career stability;he was unemployed in January 2009;he is not a successful stock market investor;

he claims he does not have a stock account with any amount in securities;he hides assets from the mother of his son;he could not and did not invest Ms. Taitano’s money for a higher rate of return;he has converted Ms. Taitano’s $30,000.00 to his own use;

1.14 Mr. Gessin made each representation with knowledge each one was false;

1.15 Mr. Gessin made each representation with knowledge that each was material;

1.16 Mr. Gessin made each representation with the intention of inducing Ms. Taitano to

rely upon it;

1.17 Subsequently to Ms. Taitano’s giving evidence, Mr. Gessin testified as an adverse

witness; Ms. Rissone testified after Mr. Gessin; This Arbitrator finds that Ms. Taitano justifiably

relied upon the Mr. Gessin’s false representation of material facts, intended to induce reliance by

5


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

Ms. Taitano; . . .

1.21 Ms. Taitano demanded that Mr. Gessin repay her money from his stock account and

learned from him that the stock account was his father’s; Mr. Gessin became very angry when Ms.

Taitano stated she intended to call his father; . . .

1.28 Mr. Gessin lied under oath when he stated that he did not receive any cash from

Ms. Taitano; . . .

1.34 There is clear and convincing evidence of Mr. Gessin’s oppression, fraud and

malice towards Ms. Taitano both express and implied:”

LAW

1. LEGAL STANDARD

The complaint alleges the State Court judgment is non-dischargeable under 11 U.S.C.

§523(a)(2).

11 U.S.C. §523(a)(2) excepts debts from discharge which arise from false pretenses, fraud

and false financial statements. 11 U.S.C. 523(a)(4) makes debts based on breach of a fiduciary

duty non-dischargeable. It also makes debts based upon embezzlement or larceny non-

dischargeable. Whether a relationship is a “fiduciary” one within the meaning of §523(a)(4) is a

question of federal law. In re: Lewis, 97 F.3d 1182 (9th Cir. 1996); Ragsdale v. Haller , 780 F.2d

794, 795 (9th Cir. 1986). The fiduciary relationship must be one arising from an express or

technical trust that was imposed before and without reference to the wrongdoing that caused the

debt. Id. Whether a fiduciary is a trustee in that strict and narrow sense is determined in part by

reference to state law. In re: Lewis, supra.

Defalcation is defined as the “misappropriation of trust funds or money held in any

fiduciary capacity; [the] failure to properly account for such funds.” Black’s Law Dictionary, 417

(6th Ed. 1990). Under §523(a)(4), defalcation “includes the innocent default of a fiduciary who

fails to account fully for money received.” In re: Lewis, supra.

To establish nondischargeability as a result of fraud under 523(a)(2), courts in the Ninth

Circuit employ the following test:

“1. Misrepresentation, fraudulent omission or deceptive conduct by the debtor;

6


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

2. Knowledge of the falsity or deceptiveness of his statement or conduct;

3. Intent to deceive;

4. Justifiable reliance by the creditor or the debtor’s statement or conduct;

and,

5. Damage to the creditor proximately caused by its reliance on the debtor’s statement or

conduct.” Harmon v. Kobrin, ( In re Harmon) 250 F.3rd. 1240, 1246 (9 Cir. 2001); Americanth

Express Travel Related Services Co. Inc. V. Hashemi, ( In re Hashemi), 104 F.3d 1122, 1125 (9th

Cir. 1996); Apte v. Japra, M.D.F.A.C.C., Inc., ( In re Apte) 96 F.3d 1319, 1322 (9 Cir. 1996).th

2. SUMMARY JUDGMENT

The Federal Rules of Civil Procedure provide for summary adjudication when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the party is

entitled to a judgment as a matter of law.” Fed. R. Bank. Pro. 7056; Fed. R. Civ. P. 56(c).

Material facts are those which may affect the outcome of the case. See: Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a

material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for

the nonmoving party. Id.

In determining summary judgment, a court uses a burden-shifting scheme. “When the

party moving for summary judgment would bear the burden of proof at trial, it must come forward

with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at

trial. In such a case, the moving party has the initial burden of establishing the absence of a

genuine issue of fact on each issue material to its case. C.A.R. Transp. Brokerage Co. v. Darden

Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).

If the moving party meets its initial burden, the burden then shifts to the opposing party to

establish a genuine issue of material fact. See: Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a

factual dispute, the opposing party need not establish a material issue of fact conclusively in its

favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to

7


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

resolve the parties’ differing versions of the trust at trial.” T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n., 809 F.2d 626, 631 (9th Cir. 1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on

conclusory allegations that are unsupported by factual data. See: Taylor v. List , 880 F.2d 1040,

1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

for trial.

ARGUMENT

In the instant case the state court judgment was entered after a contested trial-type hearing.

The debtor was present with his counsel. The judgment incorporates the findings of fraud and

false pretenses by the long and detailed ARBITRATOR’S AWARD. Those findings include the

specific findings necessary for this Court to find the judgment non-dischargeable under the law

cited above.

Specifically, there is misrepresentation, fraudulent omission, or deceptive conduct by the

debtor set forth in detail. (Paragraphs 1.3 and 1.5, hereinabove) The majority of such

misrepresentations were in writing, ie the Match.com dating profile. (Para. 1.3)

The judgment makes a specific finding of knowledge of the falsity or deceptiveness of his

statement or conduct. (Para. 1.14).

The judgment makes a specific finding of intent to deceive. (Para. 1.16)

The judgment makes a specific finding of justifiable reliance by the creditor or the

debtor’s statement or conduct. (Para. 1.17).

The judgment makes a specific finding of damage to the creditor proximately caused by

her reliance on the debtor’s statement or conduct (Para. 1.17).

CONCLUSION

This Court should enter summary judgment holding that the debt of $56,802.15 to Allison

Taitano is nondischargeable and granting the plaintiff such other further relief as is just, including

//

//

8


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

1718

19

20

21

22

23

24

25

26

27

28

reasonable attorney’s fees and costs.

Dated: February 21, 2012.

/s/ Glade L Hall

___________________________________ GLADE L HALLAttorney for Plaintiff Nev. Bar 1609105 Mt. Rose St.Reno Nevada 89509(775) 324-6447

CERTIFICATE OF SERVICE BY MAIL

Pursuant to FRCP 5(b), I certify that on the ____ day of February, 2012, I deposited for

mailing in the United State Post Office in Reno, Nevada, with postage prepaid, a true copy of the

within MOTION FOR SUMMARY JUDGMENT RE: DISCHARGEABILITY addressed as

follows:

Zach Coughlin, Esq.121 River Rock St.Reno, Nevada 89501

/s/ Glade L Hall ________________________________ GLADE L HALL

9


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Code: A201Patrick James Martin Nevada Bar No. 842LAW OFFICEPATRICK JAMES MARTINCHARTERED115 Ridge StreetReno, Nevada 89501-1937

(775) 329-1571Arbitrator

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

BEFORE THE ARBITRATOR, PATRICK JAMES MARTIN

ooOoo

ALLISON B. TAITANO,Case No. ARB09-00710

Plaintiff,Dept. No. ARB

VS.

JOHN DAVID GESSIN,

Defendant.

_____________ ___________ ____________/

ARBITRATOR'S AWARD

This Arbitrator was appointed on March 8, 2010 and now makes his award:

A. THE HEARING ON JUNE 3, 2010:

A.1 This case came before This Arbitrator on June 3, 2010.A.2 Plaintiff, Allison B. Taitano ("Ms. Taitano") was present with her

attorney, Glade Hall, Esq. ("Mr. Hall") and evidence was given in her case by: Ms.

Taitano, Gene R. Aquino ("Mr. Aquino"), Stacy Rissone ("Ms. Rissone"), and

Defendant, John David Gessin "Mr. Gessin") as an adverse witness; Exhibits were

ARBITRATOR'S AWARD

C:\Users\Glade\Documents\ArbitrationAward-Taitano[1].wpd

Law Office

Patr ick James Martin

Chartered

Ne vad a B ar No. 84 2

15 Ridge S treetReno, Nevada 89501

(775)329-1571

Case 11-05078-btb Doc 10-1 Entered 02/21/12 14:42:12 Page 1 of 14

7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

marked. Mr. Gessin's objections to exhibits were noted and sustained or overruled.

See: Paragraph C.2 (this Award).

A.3 Defendant, Mr. Gessin, was present with his attorney, Kenneth J.

McKenna, Esq. ("Mr. McKenna"); Mr. Gessin rested his case at the close of Ms.

Taitano's case; Mr. Gessin relied upon his closing argument that Ms. Taitano had not

proven any cause of action against him by a preponderance of evidence.

A.4 Mr. Gessin, "by and through counsel, Henry Egghart, Esq." ("Mr.

Egghart") filed a verified counterclaim in this case under date of April 14, 2009

alleging causes of action for Abuse of Process, Negligence, Conversion, and Attorney

Fees; Mr. Gessin presented no case, gave no evidence, and in fact, did not mention his

Counterclaim; Mr. Gessin makes no reference to his counterclaim in his rather cryptic

DEFENDANT'S PRE-ARBITRATION STATEMENT; This Arbitrator finds no

record of dismissal of the Counterclaim in the Court docket.

A.5 This Arbitrator cautioned Ms. Taitano and Mr. Gessin that his

impression from the file, including their pre-hearing statements, was that

witness credibility might be an important factor in this case; This Arbitrator

cautioned Ms. Taitano and Mr. Gessin that, albeit they were in the somewhat

informal atmosphere of This Arbitrator's office, they were testifying under oath

or affirmation as if they were giving evidence in a formal Courtroom; This

Arbitrator made it a deliberate point to administer the affirmation to each

witness with emphasis on the particular words in NRS 50.035.2.

B. PRIOR ARBITRATION PROCEEDINGS IN THIS CASE

B.1 Ms. Taitano filed a MOTION FOR ORDER FOR IMMEDIATE

ASSIGNMENT AND HEARING on February 2, 2010 (before this Arbitrator

was appointed); Mr. Gessin did not oppose that motion.

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

B.2 This Arbitrator was appointed on March 8, 2010; the Order

reflects service upon Mr. McKenna, Mr. Hall, Mr. Egghart, Herb Santos, Esq.

(Mr. Santos) and This Arbitrator without identification of the relationship of the

four lawyers to the file; on March 10, 2010, This Arbitrator issued his NOTICE

OF EARLY ARBITRATION CONFERENCE (he overlooked his routine of naming it "Arbitrator's Order No.1") footnoting the "four lawyers" concern;

Upon receipt of Arbitrator's Order No.1, Mr. Santos called This Arbitrator and

advised that he was the previous Arbitrator replaced by This Arbitrator, and Mr.

McKenna replaces Mr. Egghart; On March 13, 2010, Mr. Hall, by letter which

he indicates "cc: McKenna," advised This Arbitrator that Mr. Santos had

"recused himself just before the continued date set for the arbitration hearing."

Mr. Hall provided This Arbitrator with a copy of the MOTION FOR ORDER

FOR IMMEDIATE ASSIGNMENT AND HEARING filed on February 2,

2010. See: Paragraph B.1 (this Award); This Arbitrator reviewed the Motion

and determined on an expediting process in light of the procedural posture of

the case, to wit:

·The Arbitration before Mr. Santos was set for December 7, 2009;·The Arbitration was continued to January 22, 2010, over Ms.

Taitano's objections due Mr. Gessin's claim of unavailability of witnesses (Bernard Gessin and Kim Kaltenbrun');·Mr. Santos granted the continuance with an Order that MobileHome payments be held in Mr. Egghart's trust account untilhearing;

·

·Mr. Santos' Order made on December 2 1,2009, in part, provides.

". . . all rent due on the mobile home to Bernard Gessin, father of Defendant, JOHN DAVID GESSIN, for the month of December 2009and January 2010, shall be forwarded to Henry Egghart, Esq., attorneyfor the Defendant, JOHN DAVID GESSIN, where it will be held in the

trust account with disbursement only upon order from the Court or thisArbitrator. The subject lot rent will continue to be paid directly to themobile home park. Mr. Egghart, Esq., has represented that witnessesBernard Gessin and Kim Kaltenbrun will be available for the arbitrationon January 22, 2010, at 9:30 a.m., and based on said representation, areexpected to appear for arbitration without further continuance."

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

·Mr. Gessin substituted Mr. McKenna for Mr. Egghart on January5, 2010;

·Mr. McKenna advised counsel and Mr. Santos on January 15, 2010that he was substituted in;

·Mr. Gessin, through Mr. McKenna, demanded that Mr. Santosrecuse himself due his and Mr. McKenna's representation of opposing parties in other litigation;

·Mr. Santos, over Ms. Taitano's objections, recused himself;·Mr. Egghart had received only the December payment and did not

deposit it in his trust account but held the checks in his file;

B.3 This Arbitrator's file reflects much effort by his staff to establish

telephonic contact with Mr. McKenna's office requesting Mr. McKenna to contact

Mr. Hall and agree upon available dates for the actual Arbitration hearing; Mr.

Hall provided 4 available weeks; no dates were provided by Mr. McKenna; This

Arbitrator issued his Arbitrator's Order No. 2 on March 19, 2010 and it provides:

"With reference to This Arbitrator's Order No. 1 filed March 10, 2010, please be advised as follows;

"In light of the information contained in the Motion for Order for Immediate Assignment and Hearing filed by Ms. Taitano under date of February 2, 2010 , This Arbitrator asks you to note that at this stage,2

the NAR 11 Meeting now scheduled at my office at 4:00 p.m. on March24,2010 will be devoted to scheduling The Arbitration Hearing in this case

to be heard on a day of one of the following weeks:

April 26,

May 10,

May 17, or

May 31."

B.4 The NAR 11 meeting was held (as scheduled) on March 24,

2010. This Arbitrator issued Arbitrator's Order No. 3 precipitated by This

Arbitrator's request for clarification of the status of this file in the Court

system; giving due consideration to the arguments of counsel, Arbitrator's

Order No. 3 contains this provision:

------------------------------------------------------------------------------------------

No objection or other responsive pleading has been filed by Mr. Gessin as2

of the date of This Award.

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

"8. This Arbitrator intends to hear all aspects of this case and make

his recommendation/Award on that basis. If Mr. Gessin expects to

limit the scope of This Arbitrator's authority, he shall have until

5:00 p.m. on April 15, 20 10 to file his Motion with Points and

Authorities with This Arbitrator stating the limitation he seeks. Ms.

Taitano shall have until 5.00 p.m. on April 30, 2010 to file her

Opposing Points and Authorities. There will be no Reply Brief.

This Arbitrator will then determine from these documents if a

telephone conference for arguments is necessary."

Mr. Gessin did not object to This Order; Mr. Gessin filed no motion pursuant to this Order.

C. PRIOR COURT PROCEEDINGS IN THIS CASE

C.1 The District Court issued its ORDER DIRECTING THE

ISSUANCE OF A PREJUDGMENT WRIT OF ATTACHMENT AND

GARNISHMENT on April 29, 2009; a STIPULATION AND ORDER TO

AMEND this ORDER DIRECTING THE ISSUANCE OF A

PREJUDGMENT WRIT OF ATTACHMENT AND GARNISHMENT was

filed on June 2, 2009; Mr. Gessin was present with counsel (Mr. Egghart) for

the hearing on April 16, 2009. The April 29, 2009 Order provides, in part

that:

"The court has heard and considered the testimony of the parties and the pleadings and the exhibits admitted into evidence at such hearing,. . ."7. The properties to be attached are the title to the 1990 Champion,Woodridge model mobile home, presently on deposit with the clerk of the Family Division of the Second Judicial District Court, in case fileFV09-00833; any and all payments of any amount from Gene andMaryann Kang to any person, other than for taxes and insurance, under that certain contract of sale and lot lease agreement between Gene andMaryann Kang and John Gessin. The value of all such payments, prior to judgment are estimated to be $8,800.00.

The amended order of the District Court on June 2, 2009 reduced the amount to

be garnished by the Washoe County Sheriff to $628.57 per month, and also

provided:

"It is further stipulated and ordered that the mobile home purchasers/garnishees will be instructed by joint letter from counsel for the parties to make the mobile home space rent payment directly to themobile home park.."

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

C.2 One of "the Exhibits admitted into evidence" (as Pltf Ex. 4) at the

Arbitration Hearing on June 3, 2010 was a printout explained at the Arbitration

Hearing as "February 24, 2009 Yahoo Instant Messaging Conversation." Mr. Gessin

objected to this Exhibit on grounds of surprise or "gotcha." Ms. Taitano had not

included this exhibit in her Pre-Hearing Statement Exhibits. Ms. Taitano represented

that this Exhibit had been admitted into evidence at the Prejudgment Hearing before

the District Judge. A recess was taken to allow Mr. Gessin an opportunity to have

his files examined at his Counsel's office (Counsel had no files with him). Following

the recess Mr. Gessin reported inability to locate the document in the files and the

objection was renewed and sustained. In fact, the Exhibit was admitted without

objection by Mr. Gessin at the Prejudgment Hearing on April 16, 2009. This

Arbitrator believes that substituted counsel takes the record as he finds it and theExhibit should have been admitted at the Arbitration Hearing; the prior ruling

sustaining the objection is withdrawn and the objection is overruled.

1. FINDINGS OF FACT

1.1 Ms. Taitano is teacher of U.S. History at a high school in Reno;

1.2 Ms. Taitano met Mr. Gessin through an online dating service (Match.com);

1.3 Mr. Gessin represented in his Match.com dating profile:· that he was a successful businessman;· that he had a graduate degree;· that he own(s) and operate(s) two businesses;· that he made $150,000.00 per year;· that he does extremely well in business;· that he does extremely well in finances;· that he does extremely well in career stability ;3

·

1.4 Ms. Taitano and Mr. Gessin began a. dating relationship;

-----------------------------------------------

Mr. G essin admitted all representations in the Match.com p rofile. He prefers to3

characterize them as "puffing"

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1.5 Mr. Gessin represented in person to Ms. Taitano: that he was a successful stock market investor; that he had stock account with about $90,000.00 in securities;

that the stock account was in his father's name so that he couldhide this asset from the mother of his son;

that he could invest Ms. Taitano's money for a higher rate of return;

1.6 Ms. Taitano owned a Certificate of Deposit with Wells Fargo opened

on November 21, 2008 with an initial deposit of $30,000.00 at an annual percentage

yield of 1.65% and a balance on January l4, 2009 of $29,949.72;

1.7 Mr. Gessin took an unusual interest in Ms. Taitano's financial affairs and

learned of the Certificate of Deposit and her retirement account with ING;

1.8 Mr. Gessin represented that he could invest Ms. Taitano's money and do

better through investments than the Certificate of Deposit;

1.9 Mr. Gessin represented to Ms. Taitano that ING was having difficulty and

'he advised Ms. Taitano to open an account with Fidelity Investments; an account was

set up in which, without Ms. Taitano's authorization, Mr. Gessin named himself as

Primary Beneficiary;

1.10 Ms. Taitano cashed in the Certificate of Deposit in the amount of

$29,949.72 and added additional cash and on January 14, 2009 gave $30,000.00 in

cash to Mr. Gessin; Mr. Gessin insisted on cash so that he might hide this money

from the mother of his child;

1.11 This Arbitrator had to ask on this record: How could she? This

Arbitrator is impressed by Ms. Taitano's effort to recover her money and finds that

her efforts overcoming what must be some level of embarrassment at having been

persuaded to part with her savings as she did lends credibility to her testimony;

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1.12 Ms. Taitano instructed Mr. Gessin not to invest in stocks as too risky for her;

1.13 False representations were made by Mr. Gessin:

·he does not have a graduate degree;·he does not own and operate two businesses;

·he does not make $150.000.00 per year; in 2007 his Form1040 Line 7gross was $26,466.00; and he could not remember the source of $2,935.00 taxable interest;

·he does not do extremely well in business;·he does not do extremely well in finances;·he does not do extremely well in career stability;·he was unemployed in January 2009;·he is not a successful stock market investor;·he claims he does not have a stock account with any amount in securities;

he hides assets from the mother of his son;·he could not and did cot invest Ms. Taitano's money for a higher rate of

return;

·he has converted Ms. Taitano's $30,000.00 to his own use;

1.14 Mr. Gessin made each representation with knowledge each one was false;

1.15 Mr. Gessin made each representation with knowledge that each was material;

1.16 Mr. Gessin made each representation with the intention of inducing Ms.

Taitano to rely upon it;

1.17 Subsequent to Ms. Taitano's giving evidence, Mr. Gessin testified as

an adverse witness; Ms. Rissone testified after Mr. Gessin; This Arbitrator finds that

Ms. Taitano justifiably relied upon the Mr. Gessin's false representation of material

facts, intended to induce reliance by Ms. Taitano;

1.18 About the middle of February 2009, Mr. Gessin represented to Ms.

Taitano that he had a great investment for her in a mobile home that had been sold

by him on a lease option and would generate $650.00; leaving out the "great

investment" part this is probably the only "truth" to emerge from Mr. Gessin in

this entire case; Ms. Taitano advised M r. Gessin she was not interested and asked

about her $30.000.00;

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1.19 On or about February 24, 2009, Ms. Taitano learned from Mr. Gessin that

he had invested her money in the stock market contrary to her express instructions and

most of it had been lost;

1.20 On or about February 25, 2009 Ms. Taitano met Mr. Gessin at the

Tamarack Junction and demanded explanation for the loss of her money in the stock

market and demanded buy-sell tickets and brokerage statements; none were ever

provided; Mr. Gessin changed his story and represented to Ms. Taitano that he had not

lost the money in the stock market but had invested it in a mobile home which had

generated a promissory note in his favor;

1.21 Ms. Taitano demanded that Mr. Gessin pay her money from his stock

account and learned from him that the stock account was his father's; Mr. Gessin

became very angry when Ms. Taitano stated she intended to call his father;

1.22 On or about February 26, 2009 Mr. Gessin intended to deliver and did

deliver a mobile home title to Ms. Taitano as security for her $30,000.00; this was

Certificate of Ownership B-095 164 signed off by the Owner, Kim E. Kaltenbrun, on

April 2, 2007 and by Green Tree Servicing LLC FKA Green Tree Acceptance on

March 9, 2007;

1.23 Mr. Gessin sold a mobile home to Gene R. Aquino and Mary Ann D.

Kang by a written Agreement to Purchase ("The Agreement" "The Contract of

Sale") entered into on August 9, 2008; the basic terms are a purchase price of

$49,620.71 with a down payment of $10,000.00; "John Gessin" is Seller; "John D.

Gessin" is "Holder of mortgage. . ."; "John Gessin" is "Loss Payee" for Homeowners

Insurance purposes; The mobile home is not described in The Agreement; Mr.

Aquino testified that he purchased a mobile home from Mr. Gessin and it is the

subject of The Agreement; This Arbitrator finds that this is the same mobile home to

which Mr. Gessin delivered title as security to Ms. Taitano; This Arbitrator

acknowledges, but does not find credible, Mr. Aquino's observation that there was

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

mention of Mr. Gessin's "father" at the time The Agreement was entered into between

Gene R. Aquino, Mary Ann D. Kang, and Mr. Gessin; Mr. Gessin offered no evidence that he

did not own the mobile home when he entered into The Agreement; This Arbitrator notes that

Bernard Gessin and Kim E. Kaltenbrun were unavailable to testify before Arbitrator Santos

and for this reason the scheduled hearing was continued to January 22, 2010; Bernard Gessin

and Kim E. Kaltenbrun were listed as "possible witnesses" by Mr. Gessin in Arbitrator's

Order No. 3 (resulting from the NAR 11 meeting);

Bernard Gessin and Kim E. Kaltenbrun were not listed in Mr. Gessin's or Ms.

Taitano's Pre-hearing Statement; Mr. Gessin rested his case at close of Ms. Taitano's

case; This of Greentree; it would have required little effort for Bernard Gessin to prove

that Arbitrator has reviewed two affidavits in the Court file in support of a MOTION

FOR RELIEF FROM ORDER NOTION TO DISSOLVE ATTACHMENT AND

GARNISHMENT; This Arbitrator is satisfied that the Affidavit of Bernard Gessin

makes no sense (he lives in New York) and is not credible and is a product of Mr.

Gessin's well developed skills; no reference is made to the amount that was paid to

discharge the lien payment by him; whatever the amount, according to his Form 1040

for 2007, Mr. Gessin (Defendant) generated taxable interest of $2,935.00 from some

account that would have him with liquid assets perhaps on the order of $90,000.00!

See: Paragraph 1.5; Ms. Kaltenbrun's affidavit is not credible and is similarly a product

of Mr. Gessin's well developed skills;

1.24 Mr. Gessin is the owner of The Contract of Sale on the mobile home;

Pursuant to The Contract of Sale, Mr. Gessin is entitled to collect the amount of

39,620.71 as of August 2008; no evidence was given that Mr. Gessin has assigned or

sold his interest in this contract of sale;

1.25 Mr. Gessin held the title to the mobile home as security for the payment

of The Contract of Sale;

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1.26 Mr. Gessin delivered title to the mobile home to Ms. Taitano intending it

as security for her $30,000.00;

1.27 Ms. Rissone delivered $25,000.00 in cash to Mr. Gessin based upon his

false representations of his skill and ability to generate profit from purchase and sale of

automobiles; Mr. Gessin knew that his representations to Ms. Rissone were false and he

intended not to perform; Mr. Gessin induced Ms. Rissone to give him $25,000.00 in

cash and Ms. Rissone did so in justifiable reliance upon Mr. Gessin's representations;

Mr. Gessin "lost" Ms. Rissone's money claiming her funds are held in an account

frozen by the IRS; no evidence of any account and or of such a "hold" or interception

was presented; This Arbitrator finds that Ms. Rissone demonstrated much credibility by

appearing as a witness in a matter that might be of some embarrassment to her;

1.28 Mr. Gessin lied under oath when he stated that he did not receive any

cash from Ms. Taitano; this finding is not intended to suggest that Mr. Gessin's present

counsel has aided or abetted or assisted Mr. Gessin's lying under oath; Mr. Gessin's

present counsel did a very competent and professional job with: a very skillful job of

cross-examination of witnesses; general conduct of the case he had to work with;

appropriate objections, and skilled argument, all directed to Ms. Taitano's burden to

prove her case by a preponderance of the evidence;

1.29 Mr. Gessin knew on April 14, 2009 and on May 8, 2009 that the

Certificate of Ownership B-095 164 now on deposit with the Clerk of the Court is the

title to the mobile home that is the subject of The Contract of Sale;

1.30 Bernard Gessin knew on May 8, 2009 that the Certificate of Ownership

B-095 164 now on deposit with the Clerk of the Court is the title to the mobile home

that is the subject of The Contract of Sale;

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1.31 Kim E. Kaltenbrun knew on May 8, 2009 that the Certificate of

Ownership B-095164 now on deposit with the Clerk of the Court is the title to the

mobile home that is the subject of The Contract of Sale;

1.32 Mr. Gessin's counsel, Mr. Egghart, knew on May 8, 2009, and on

December 2 1, 2009, that the Certificate of Ownership B-095 164 now on deposit with

the Clerk of the Court is the title to the mobile home that is the subject of The Contract

of Sale;

1.33 The counterclaim filed by Mr. Gessin was filed for an improper

purpose of harassing Ms. Taitano, causing needless delay, and increasing the cost of

litigation to Ms. Taitano and is in violation of every section of NRCP 11 (b) and

should be the object of sanctions under NRCP 11 (c); however, This Arbitrator finds

that the Counterclaim is a product of Mr. Gessin's machinations; This Arbitrator

finds that Mr. Gessin is a remarkably skilled prevaricator and his former counsel is

undoubtedly as much a victim as Ms. Taitano and Ms. Rissone (who knows how

many others are "out there");

1.34 There is clear and convincing evidence of Mr. Gessin's oppression, fraud

and malice towards Ms. Taitano both express and implied;

2. THE LAW

2.1 The Findings of Fact are adopted as conclusions of law;

2.2 Ms. Taitano has met her burden of proving each and every element of

Mr. Gessin's fraudulent misrepresentations by clear and convincing evidence.

Barmettler, v. Reno, Air, Inc. 114 Nev. 44.1; 956 P.2d 1382 (1998);

2.3 Ms. Taitano has met her burden of proving each and every element of

a claim for constructive fraud, not on the basis of a fiduciary relationship which This

Arbitrator does not find, but

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

on the basis of the special relationship which arose from her entrustment of her savings to

Mr. Gessin based upon his representations. Executive Management, Ltd. v. Ticor Title Insura

Company, 1 1.4 Nev. 823,963; P. 2d 465 (1998);

2.4 Ms. Taitano has met her burden of proving each and every element of a

claim for conversion. Ferreira v. P.C.H. Inc., 1055 Nev. 305, 774; P.21.10412 (1989);

2.5 This Arbitrator declines to rule on Ms. Taitano’s claim pursuant to

NRS 205.375; this statute is in the criminal code with its violation classified as a

misdemeanor; such a claim is appropriately within the province of the criminal

justice system - a milieu with which Mr. Gessin is intimately familiar and in which

he seems dedicated to pursuing a career.

3 THE AWARD

3.1 Based upon the evidence presented at the Arbitration Hearing

concerning the causes intimately familiar and in which he seems dedicated to

pursuing a career of action for fraudulent misrepresentation, constructive fraud and

conversion, This Arbitrator finds in favor of Ms. Taitano and awards damages as

follows:

General damages - cash: $30,000.00Exemplary and punitive damages: 20,000.00

Total Award: $ 50,000.00

3.2 Ms. Taitano should have attorney fees awarded in the amount of

$3,000.00;

3.3 Ms. Taitano should have interest on $30,000.00 at the rate allowed by

statute from January 14, 2009;

3.4 Ms. Taitano should have interest on the balance other Judgment at the rate allowed by

statute from the date allowed by statute;

3.5 Ms. Taitano should have her costs allowed by statute;

3.6 Mr. Gessin should be found to be the owner of the Mobile Home

under Certificate of Ownership B-095 164 subject to The Contract of Sale to

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Gene R. Aquino and Mary Ann D. Kang entered into on August 9, 2008;

3.7 Mr. Gessin should be found to have delivered to Ms. Taitano the

Certificate of Ownership B-095 164 intending completed delivery as security for

$30,000.00 cash given to Mr. Gessin; such delivery is subject to the right of Gene R.

Aquino and Mary Ann D. Kang to have Certificate of Ownership B-095 164

delivered to them upon their full payment of The Contract of Sale amounts.

3.8 The Order Directing the Issuance of a Prejudgment Writ of

Attachment and Garnishment presently in effect in this case should be continued in

effect pending judgment and execution and resolution of how payments are to be

made by Gene R. Aquino and May Ann D. Kang

3.9 Mr. Egghart should be instructed to turn over all funds in his trust

account and checks in his possession to Mr. Hall for deposit into his Trust account or

in the alternative deposit with the Clerk of the Court; Gene R. Aquino and Mary Ann

D. Kang should be instructed to furnish a replacement check if deposit difficulty is

encountered.

DATE: _______________________ LAW OFFICEPATRICK JAMES MARTINCHARTERED115 Ridge StreetReno, NV 89501-1937(775) 329-1 5'71

By: /s/ Patrick James MartinPATRICK JAMES MARTIN Nevada Bar No. 842Arbitrator

ARBITRATOR'S AWARD


Law Office


Chartered



(775)329-1571


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Code 3250

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

****

ALLISON B. TAITANO, an )

individual, )

)

Plaintiff, )) Case No. CV09-00710

VS. )

) Dept. No. 10

JOHN DAVID GESSIN, an )

individual, )

)

Defendant. )

____________________________________)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGEMENT

This matter was brought on for hearing before the Court Annexed Arbitrator.

Patrick Martin, on June 3, 2010. Said arbitrator entered an Arbitrator's Award on

June 11, 2010, awarding to the plaintiff $30,000 in general damages; $20,000 in

punitive damages; an attorney's fee of $3,000X;X interest on the $30,000X;X and

costs. Defendant filed a REQUEST FOR TRIAL DE NOVO on June 22, 2010.

Thereafter, Plaintiff, Allison Taitano, moved for an order finding that

defendant failed to defend this case during the arbitration proceeding in good faith

pursuant to NAR 22 and had otherwise engaged in conduct designed to obstruct,

delay or otherwise adversely affect the arbitration proceeding.

- 1


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Such motion was submitted to the Court on written points and authorities;

however, the Court elected to hold a hearing for the presentation of oral

arguments on the merits of the motion.

Such oral arguments came on for hearing before the Court on October

12, 2010. Plaintiff was present with her attorney, Glade L Hall. Defendant was

present with his attorney, Kenneth A. McKenna. After hearing the arguments of

counsel the Court made detailed FINDINGS OF FACT, CONCLUSIONS OF

LAW and ORDER, directing the entry of judgment in this matter. Based on such

FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER, the Court

makes the following:

FINDINGS OF FACT

1. Allison Taitano (Taitano)? Now known as Allison Moore, is a resident

of Reno, Washoe County, Nevada.

2. Prior to January 14, 2009, Taitano was the owner of a certain

certificate of deposit in the amount of $29,949.

3. Defendant, John David Gessin (Gessin), is a resident of Washoe

County, Nevada.

4. Taitano commenced this action alleging that Gessin has been guilty of

fraud; breach of fiduciary duty for misuse of her funds and failure to account

therefore, conversion of Allison's funds; and obtaining her funds through a false

statement in writing, a violation of NRS 205.3'75, in perpetrating the foregoing

acts. Taitano sought to recover her funds in the amount of $30,000 and punitive

damages up to the limits of arbitration, together with interest, costs and

attorney's fees.

- 2


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5. Pursuant to an application and hearing for prejudgment attachment

and garnishment, this Court ordered the issuance of such attachment and

garnishment based on findings which included the following:

"2. The facts and reasons why these grounds exist are Plaintiffs allegation

and the supporting testimony which show that Defendant received $30,000 under

false pretenses and has converted the same to his ow n use and benefit, and in

breach of his fiduciary duty, and or has used such funds in a m anner other than that

for which it was given to Defendant.''

"3. It appears that the Plaintiff has a meritorious claim for relief and is likely

to prevail on the merits of her claims."

6. The garnishment was served on the garnishees, but they falsely swore

that they were not making any payments to John Gessin and did not owe any debt

to John Gessin.

7. The title to the mobile home was deposited with the Court and attached

by the Washoe County Sheriff. However, in response to request for production,

John Gessin has produced a document showing that the Manufactured Housing

Division has issued a new title to the mobile home in the name of Bernard

Gessin, in violation of that attachment. This title new title was obtained by false

affidavits filed in the names of Bernard Gessin and Kim Kaltenbrun during the

time the arbitration hearing was awaiting the scheduled hearing.

8. The arbitrator's lengthy and well supported decision finds Taitano's

claims are well supported.

9. Gessin's email belies any claim he might make that he did not receive

the money Allison testifies she gave him.

10. Gessin's deposition was taken during the arbitration proceeding and

provides the basis for findings of deceit on the part of' Gessin.

- 3


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11. Gessin has used the time between the issuance of the prejudgment

attachment and now to attempt to thwart the ability of Taitano to collect on any

judgment she will receive. The contract of sale on the mobile home is a wasting

asset in that it declines in value by- the month and the security provided by the

mobile home itself is at risk. Accordingly, any delay of this matter has worked

to the great prejudice of Taitano.

12. This matter was scheduled for hearing before Herb Santos,

Arbitrator, on 11 December 7, 2009. It was continued, over Taitano's strenuous

objection, to January 22, 2010, based on a claim by Gessin of unavailability of

key witnesses critical to Gessin’s defense, namely Bernard Gessin and Kim

Kaltenbrun.

13. Such hearing was continued conditioned on an order that the mobile

home payments being received by Gessin were to be held in Gessin's then

counsel's trust account until hearing, and on the assurance that the "key

witnesses' would be available and the matter would proceed as scheduled.

14. However, on January 5, 2010, Gessin signed a substitution of

counsel, substituting Mr. McKenna for Mr. Egghart, who had been his attorney

since the outset of this matter.

15. Mr. McKenna waited until January 15, 2010 to advise counsel and

the arbitrator that he was substituted in as Gessin's attorney. Mr. McKenna then

demanded the arbitrator recuse himself because Mr. Santos the arbitrator and

Mr. McKenna were representing opposing parties in other 1itigation.

16. Taitano strenuously opposed such recusal but Mr. Santos did recuse

himself on condition that the mobile home payments be held in the trust account

of Mr. McKenna.

17. Mr. Egghart only received the December mobile home payment and

then, in violation of Santos' order, did not deposit that payment in his trust

account, but held the check in his file.

- 4


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18. Mr. McKenna made no effort to comply with the order that he

receive and hold the garnished mobile home payments. Accordingly, the mobile

home payments are being made to Gessin in spite of the garnishment and the

orders of arbitrator Santos and that Gessin's attorneys hold those funds in their

trust accounts.

19. The garnishee's mobile home payment check that was delivered to

Mr. Egghart became stale, was submitted to the garnishee for replacement, but

has not been replaced by him. Accordingly, the prejudgment attachment has

been nullified in its entirety.

20. Taitano's ability to collect her judgment was impaired by any delays

of this matter, coupled with the violation of orders set forth hereinabove.

21. Patrick Martin was appointed as the replacement arbitrator. He

scheduled the arbitration for June 3, 3010, and set deadlines for briefing of

issues raised by Mr. McKenna at the Rule 12 pre-hearing conference.

22. No briefs were filed on behalf of Gessin.

23. Gessin failed to respond to Taitano's motion for expedited hearing.

24. The Arbitrator's staff went to much effort to establish telephone

contact with Gessin's counsel to obtain agreed hearing dates, but no dates were

provided by Gessin's counsel.

25. The arbitrator, further, ordered the filing of the Pre-hearing

Statement required by NAR 13. Gessin's Pre-Arbitration Statement consisted of

twenty-three lines with virtually no discussion of the real issues in the case and

nu citations to my legal authority. The Arbitrator's Award describes the

statement as

- 5


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

"rather cryptic."

26. The arbitration hearing was held on June 3, 2010. Mr. Gessin

appeared but presented no testimony or exhibits in his defense, and rested his

case after the close of Taitano’s case.

27. Gessin gave no explanation as to why the "key witnesses’” whose

alleged unavailability had caused the matter to be continued for six months,

were not produced as promised.

28. The arbitrator rendered his ARBITRATOR'S AWARD on June 11,

2010. The award is 16 pages in length and is detailed in its specific findings in

favor of Taitano on her claims of fraud and conversion. Such findings are based

on documentary evidence and are un-rebutted by any evidence produced by

Gessin. The Court hereby incorporates and adopts the FINDTNGS OF FACT,

set forth on pages 6 through 12 of the ARBITRATION AWARD, by reference.

29. The Arbitrator's Award notes that "Mr. Gessin . . . filed a verified

counterclaim in this case under date of' April 14, 2009 alleging causes of action

for Abuse of Process, Negligence, Conversion, and Attorney Fees: Mr. Gessin

presented no case, gave no evidence, and in fact did not mention his

Counterclaim. Mr. Gessin makes no reference to his Counterclaim in his rather

cryptic DEFENDANT'S PRE-ARBITRATION 30. STATEMENT."

30. The arbitrator found that "The counterclaim filed by Mr. Gessin was

filed for an improper purpose of harassing Ms. Taitano, causing needless delay,

and increasing the cost of litigation to Ms. Taitano and in violation of every

section of NRCP 1l(b) and should be the object of sanctions under NRCP 11(c)."

- 6


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31. The arbitrator describes Gessin as a 'remarkably skilled prevaricator".

He notes, further, that "Mr. Gessin rested his case at the close of Ms. Taitano's

case."

32. The arbitrator specifically finds "1 -28 Mr. Gessin lied under oath

when he stated that he did not receive any cash from Ms. Taitano."

33. The arbitrator holds that Mr. Gessin committed fraud and conversion

in his dealings with Ms. Taitano.

34. The arbitrator awarded $30,000 in general damages; $20,000 in

punitive damages; an attorney's fee of $3,000; interest on the $30,000 and costs.

35. On June 22, 2010, Mr. Gessin filed his request for trial de novo and

demanded a jury trial.

Based on the foregoing FINDINGS OF FACT, the Court makes the following

CONCLUSIONS OF LAW

1. This Court has jurisdiction over the parties and subject matter of this

case.

2. The Defendant, John David Gessin, has failed to defend this case in-

good faith during the arbitration proceedings.

3. Such failure is found to constitute a waiver of Gessin's right to a trial

de novo.

4. The defendant's Request fur Trial De Novo, filed herein on June 22,

2010 should be stricken.

Based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF

LAW the Court enters the following:

- 7


7/29/2019 2 24 12 11-05078 hall msj


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

JUDGMENT

IT IS HEREBY ORDEED that the defendant's Request for 'Trial De Novo, filed herein

on June 22, 2010, is stricken;

IT IS ORDER AND ADJUDGED that the plaintiff ALLISON B.

TAI'I'ANO recover of the defendant, JOHN DAVID GESSIN the sum of

$50,000 together with an award of attorney's fees in the amount of $3,000,

interest on the $30,000 at the rate of 5.25% from March 9, 2009 to October 18,

2010 in the amount of $2,538.36 and costs in the amount of ___0____.

Making a total judgment of $__55,538.36__

Dated this _27 day of October, 2010.th_
