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8/4/2019 Memo to Motion to Deny Motion to Dismiss With Line Numbers
1/12Summary of Pleading - 1
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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re:) Case No. 11-46702 WJL
RONALD BROOKS MILLER and ) Chapter 11USOALII NIKOTEMO MILLER, )
) Date: August 3, 2011Debtors. ) Time: 9:30 a.m
) Room: 220
MEMORANDUM IN SUPPORT OF
ANSWER TO AMENDED MOTION BY UNITED STATES TRUSTEE TO CONVERTOR DISMISS CASE, AND
MOTION TO DENY MOTION TO DISMISS ANDMOTION FOR COURT TO TAKE JUDICIAL NOTICE OF ECONONIC COLLAPSE
Jurisdiction This is the only court with jurisdiction over the claims
of the debtors against the U.S. Government. The debtors has in each
of the four preceding cases been thwarted by motions for dismissal by
the U.S. Government: two motions from the U.S. Trustee, one from the
U.S. Attorney, and one by the IRS representative to the court.
By mentioning these cases the U.S. Trustee is inferring that the
debtors are at fault for the necessity to file repeated bankruptcy
petitions, and ignoring the truth that the U.S. Government, in
continuing to resist the debtors efforts to receive due process, are
in fact the cause of the repeated filings.
Memo in Support of Judicial Notice
The debtors move the court to take judicial notice that there has been an economic
collapse in the United States economy beginning with a collapse in home value in the
winter of 2007 and which has caused a corresponding loss in jobs in the national
economy.
Answer to Numbered Allegations
1 admit
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2 admit
3 missing entirely
4 missing entirely
5 admit
6 admit
7 admit
8 missing entirely
9 admit
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12 admit
13 admit
FACTS SUPPORTING STATUTE 11 1112.(b)(2)
11 1112.(b) (2) The court may not convert a case under this chapter to a case under
chapter 7 or dismiss a case under this chapter if the court finds and specifically identifies
unusual circumstances establishing that converting or
dismissing the case is not in the best interests of
creditors and the estate, and
THE DEBTORS SUBMIT THE FOLLOWIN TO BE UNUSUAL
1. The U.S. Government has thwarted efforts of the debtor to due
process through four attempts to have his case heard. This is denial
of due process under the Constitution of the United States. This
denial has been implemented through the vagueness of law which the
Debtors are now addressing.
2. The Debtors have suffered financial losses of approximately 5
million dollars in stock gains as a proximate result of U.S.
Government actions and inactions which the debtors intend to seek
restitution or recompensation for damages in an adversary proceeding.
3. The U.S. Government has claimed income taxes not due which in the
present case are claimed to be over two million dollars for the period
2000 through 2005.
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4. For that selfsame period the debtors have had a net decrease in
their assets from a home with a mortgage of $130,000, one hundred and
thirty thousand dollars to the present assets of the same home with a
mortgage of $420,000 and a second mortgage of 60,000.
5. It is not possible to have a taxable income year by year from
2000 to 2005 when the taxpayers have a loss of 350,000 for the entire
period. This is not only counter intuitive but is fraudulent.
DISMISSAL OR CONVERSION
NOT IN THE BEST INTERESTS OF CREDITORS AND THE ESTATE.
1. Technology Credit Union, the holder of a second mortgage of
$60,000 and a non-secured loan of over $8,000 due to no fault of their
own will lose all this. Note that Technology Credit Union has donenothing wrong and the debtors wish to pay them.
2. The estate will lose everything, and the debtors will be homeless
and potentially destitute.
3. The debtors will have been denied the right to due process in
never having had their cause heard before a court.
REASONABLE LIKELIHOOD PLAN CONFIRMATION ( 11 1112 continues)the debtor or any other party in interest establishes that there is
a reasonable likelihood that a plan will be confirmed within the
timeframes established in sections 1121(e) and 1129(e) of this
title, or if such sections do not apply, within a reasonable period of
time; and
A. The debtors have begun legal training using
JurisdIctionary, Niel Garfield Foreclosure
Defense done significant on-line research and have
subscribed to Loislaw, an online legal research site
in order to achieve success in the bankruptcy and in
Adversary Proceedings,
http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001121----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001121----000-.html#ehttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001129----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001129----000-.html#ehttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001121----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001121----000-.html#ehttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001129----000-.htmlhttp://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00001129----000-.html#e8/4/2019 Memo to Motion to Deny Motion to Dismiss With Line Numbers
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B. the debtor is now actively engaged in preparing
documents for an adversary proceeding against the U.S.
Government Losses as a direct result of Department of
Interior inaction in the affairs of American Samoa,
and
C. the debtor is now actively engaged in preparing
documents for an adversary proceeding against
Carrington Mortgage Services and Wells Fargo Bank NA.
et. al For numerous fraudulent document filings
violating various laws and for damages to the debtors
and
D. The debtors are committed to preserving their home,
and have the time and willingness to pursue this case
until final victory is achieved even in the face of
the adversarial and prejudicial attitude of the U.S.
Trustee and, his disregard for the well being and the
right to due process of the debtors.
DIMINUTION OF ESTATE ACT OR OMISSION OF THE DEBTOR (11 1112
continues)
(B) the grounds for converting or dismissing the case Include an act
or omission of the debtor other than under paragraph (4)(A) (4) For
purposes of this subsection, the term cause includes (A)
substantial or continuing loss to or diminution of the estate and the
absence of a reasonable likelihood of rehabilitation;
A. The decrease in market value of the estate is not due to the act
or omission of the debtor and is instead a proximate of the present
mortgage market collapse.
B. The debtor has in fact improved the estate and continues to do
so.
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DETAILED ANSWERS TO AND REFUTAL OF U.S. Trustees Motion to Dismiss.
note 2 to item 10 Object undue prejudice quoting the word hopeless out of
context showing the debtors. The real description and last words of the judge was get a
lawyer.
Legal Argument on page 3
Debtors Object to he U.S. Trustees argument that This Case Should be Dismissed Because
the Debtors Have Shown Substantial and Continuing Loss to or Diminution to the Estate and
There is No Reasonable Likelihood of Rehabilitation for the reasons listed below:
Statute is Misquoted; should be The absence ofper 11 U.S.C. 1112(b)(4)(A).
The U.S. Trustee is incorrect on both elements of cause to motion to dismiss
1. Substantial and continuing loss to or diminution to the estate
A. Reduction in property valuation are the direct
result of the housing market collapse rather than the real
long term value of property.
B. The debtors have in fact increased the value of the
estate by preparing the acre lot for subdivision
into two home-sites.1. A lot line adjustment was accomplished
with the adjacent property to allow the
necessary 20 feet wide driveway to the planned
new lot at the rear of the property. Fremont
Engineers prepared the necessary drawings and
application for the lot line adjustment.
2. A curb and sidewalk and driveway entrance
for access to the real lot was added by the
city at the request of the debtors.
3. Hookups for water and sewage were added by
Alameda County Water District, and Union
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Sanitation District add hookups for the new lot
at the debtors request.
4. Eight feet of frontage(1000 sf) was ceded
by the city of Newark to the property at the
request of the debtors based on engineering by
Fremont Engineers.
5. Over 20,000 cubic yards of fill were
added, compacted and leveled to provide a 0.5
percent slope toward the street for drainage.
6. The debtors has prepared forms for a
concrete retaining wall at rear of the property
to satisfy Newark city engineering requirementsC. The debtors through their own hard work has
converted an unattached garage and a rear outbuilding
into studio apartments and rented them out so they are
now generating income for further improvements.
D. So, there has been no loss or diminution to the
estate as alleged by the U.S. Trustee, but just the
opposite is true. It may be noted that the debtors
plan will include the subdivision of the second lot
leveraging on the time and work of the debtors
themselves
2. absence of Reasonable Likelihood of Rehabilitation
The U.S. Trustee has stated opinions based on a total lack of
knowledge. How can he know what he has not investigated?
Only upon facts should such allegations be made.
So, the debtors submit the following facts:E. The debtors have begun legal training using
JurisdIctionary, Niel Garfield Foreclosure
Defense done significant on-line research and have
subscribed to Loislaw, an online legal research
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site in order to achieve success in the bankruptcy
and in Adversary Proceedings,
F. the debtor is now actively engaged in preparing
documents for an adversary proceeding against the
U.S. Government Losses as a direct result of
Department of Interior inaction in the affairs of
American Samoa, and
G. the debtor is now actively engaged in preparing
documents for an adversary proceeding against
Carrington Mortgage Services and Wells Fargo Bank
NA. et. al For numerous fraudulent document filings
violating various laws and for damages to thedebtors and
H. The debtors are committed to preserving their home,
and have the time and willingness to pursue this
case until final victory is achieved even in the
face of the adversarial and prejudicial attitude of
the U.S. Trustee and, his disregard for the well
being and the right to due process of the debtors.
The debtors object to the U.S. Trustee inflammatory and unduly prejudicial
allegations to this court against the debtors before even consulting the
debtors or awaiting the debtors plan.
The debtors find the statements and purported facts to be irrelevant to the
elements of the cause to dismiss or convert, to be hearsay, to be incompetent,
resulting an unduly prejudicial bias toward the court and evidencing adisregard for the right of due process to the debtors .
CASE HISTORY
The debtors submit that the loss of approximately five
million dollars, the life savings and a stock option
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windfall in 2000 and 2001, by fraudulent offers of the sale
of a hotel owned by the American Samoa Government with the
intention of extracting a bribe and then denying the sale
when no bribe was tendered right under the Flag of the
United States of America, while the responsible U.S.
Department of Interior would not even acknowledge
complaints, and while the U.S. Department of Justice
claimed that they had no jurisdiction, in flagrant
disregard for the Treaty by which the United States
Government became the Sovereign over the islands of
American Samoa in April 10, 1900.
Attempts to have this matter brought to trial for the
debtors losses have been thwarted by the U.S. Governments
various departments in the preceding bankruptcy cases, and
the U.S,. Government has taken adversarial actions against
the debtors through the IRS making unreasonable demands
that defy all logic in an apparent attempt to reduce the
debtors to homeless on the streets of America.
By their motion to dismiss The U.S. Government through
their agents including the U.S. Trustee, the U.S. Attorney
and the U.S, Treasury caused the dismissal of the debtors
previous bankruptcy petitions have shown themselves to be
adversaries of the debtors and should be censured by the
court.
The debtors object strenuously to the prejudicial mention
of unnecessary details to the motion throughout the motion
and the memorandum by which the U.S. Trustee is painting
the debtors in an unnecessary light with intent to show a
lack of good faith. The lack of good faith dealing lies
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with the U.S. Government for the destruction of the debtors
fortune through attempts at bribery, by bait and switch, by
misleading the debtors regarding income taxes, by claiming
by then seizing the little remaining cash, by placing a
lien that interfered with an advantageous business
relationship in developing their property, by purposely
thwarting all efforts by the debtor to obtain due process,
within a situation where the IRS knows that there is no
possibility of the debtor paying any of their claims.
Accordingly, the debtors submit that these dismissals are
the result of agents attempting to cover improper orillegal actions by U.S. employees that would surface in
discovery.
CASE 1
The debtors initiated this first case without the benefit
of legal help because the IRS had seized their bank account
and placed a lien preventing borrowing to finance legal
action. So, the debtors without any knowledge or legal
help were dismissed at the motion of the U.S. Trustee.
CASE 2
The debtors were advised that they must be pro-active and
that the court system did not work automatically to
disseminate justice. So, the debtors filed an adversary
action against the U.S. Government within the next
Bankruptcy. However, lack of knowledge hampered the
debtors, and when faced with the U.S. Attorneys, the
adversary proceeding was dismissed on Motion by the U.S.
Attorneys.
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CASE 3
The debtors object to allegation 9 for the reason that the
last case was dismissed based on the testimony of the IRS
Representative to the court that the debtor should and could
be better receive justice in the US Tax Court and that tax
year 2000 could be considered along with 2001. However,
after dismissal and opening a case at the tax court, the IRS
immediately moved the tax court to deny consideration of 2000
in direct contradiction to their statements in the U.S.
bankruptcy court.
The tax court case was dismissed after the debtor wasdirected to work with the IRS representative which was
impossible.
CASE 4 The case was dismissed again at the motion of the
U.S. Trustee before the debtor could have the court hear the
IRS claims and the debtors case against the IRS.
The debtors object to the following Legal Arguments made by
the U.S. Trustee.
Because the Debtors' schedules show a negative cash flow of
(-$624) per
month, the estate is experiencing a significant loss each
month.
Object Competence Trustee is misinterpreting theschedules.
Object Relevance. In absence of plan inferences
are without foundation
Although this cash flow has also been calculated with a
rental income of $1,500 per month, according to the Debtors'
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SoFA, their rental income has only been about $960 per month
this year. This means the negative cash flow is likely even
greater.
Object Competence Relevance
The Debtors have also failed to show a reasonable likelihood
of rehabilitation because there is no indication that their
income will increase
Object Competence of Trustee to know debtors
plans
The debtors have not been asked to show
anything.
There is no duty for the debtor to showrehabilitation outside of the plan
With no equity in the house, fixed incomes, and massive
priority claims from the IRS, it is clear that the Debtors
will not be able to confirm a chapter 11 plan to pay these
debts without any positive cash flow.
Object Competence of Trustee to know debtors
plan or facts of IRS claims.
Object.Conclusion by Trustee
The Debtors are just as unlikely to confirm a plan in this
case.
Object. Competence facts not in evidence of
Trustee is stating opinion
The value of the Debtors' home has apparently decreased from
$700,000 to $260,000
Object competence of parties making estimate due tofluctuations and collapse of the housing market..
Debtors are just as unlikely, if not more unlikely, to
rehabilitate their financial
condition now as they were with the previous four unsuccessful
petitions.
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Object. Competence of Trustee
Continuation of this case would unnecessarily delay proceedings, allow debts to accrue more
interest, and inhibit the secured creditors' rights to foreclose on the Property. For these reasons,
the Court should issue an Order dismissing or converting this case pursuant to U.S.C1112(b)(4)(A).
Object Facts not in evidence (unnecessarily delay)
CONCLUSION
Based on the foregoing the debtors submit that the court
should deny the U.S. Trustees motion and censure the U.S.
Trustee for not acting in good faith.
___________ Ronald B. Miller ___________________________
date
___________ Usoalii N. Miller ___________________________
date
Within the context of present economic conditions it would
be unfair and unjustifiable to hold the debtors responsible
for the loss in value of real estate in the United States.