Motion for Withdraw of Plea

7/30/2019 Motion for Withdraw of Plea

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Theodore S. Flier, Esq.State Bar No. 23734Andrew Reed Flier, Esq.State Bar No. 137372FLIER AND FLIER15250 Ventura Blvd., Ste. 600

Sherman Oaks, California 91403(818) 990-9500Fax: (818) 990-1303

Attorney for DefendantLENNY DYKSTRA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE OF ) CASE No. PA070678CALIFORNIA, )

) NOTICE OF MOTION AND MOTIONPlaintiff, ) FOR ORDER WITHDRAWING PLEA

) OF GUILTY; MEMORANDUM OFvs. ) POINTS AND AUTHORITIES;

) DECLARATION OF ATTORNEYLENNY DYKSTRA, ) ANDREW REED FLIER

)) DATE : March 5, 2012

Defendant. ) TIME : 8:30 a.m.) DEPT : G

TO THE DISTRICT ATTORNEY OF LOS ANGELES COUNTY AND/OR HIS

REPRESENTATIVE DEPUTY DISTRICT ATTORNEY: ALEXANDER KARKANEN

PLEASE TAKE NOTICE that on March 5, 2012, at 8:30 a.m., or as soon thereafter

as the matter may be heard in Department G of the above-entitled court located in San

Fernando, California, the defendant, LENNY DYKSTRA, will move this court for an order

withdrawing and vacating his earlier plea of no contest to Counts 13, 15, 17 and 20 of

the felony complaint.

This motion is made on the grounds that Mr. Dykstra did not enter into his plea of

no contest knowingly, intelligently, nor of his own free will. This motion is based on

this notice of motion, the attached declaration of Andrew Reed Flier, the memorandum of

1

MOTION FOR ORDER WITHDRAWING PLEA OF GUILTY


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points and authorities served and filed herewith, on the records on file in this action and on

such oral and documentary evidence as may be presented at the hearing of this motion.

Dated: February 23, 2012 FLIER AND FLIER A Law Corporation

By:ANDREW REED FLIER,THEODORE S. FLIERAttorneys for DefendantLENNY DYKSTRA

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MEMORANDUM OF POINTS AND AUTHORITIES

I

STATEMENT OF FACTS

The defendant, Mr. Dykstra, was charged in the felony information with violating

20 counts of the Penal Code [Penal Code section(s) 664/487(d) - 5 counts; 532(a)(1) - 8

counts; 530.5(a) - 4 counts; 487(d)(1) - 3 counts], 3 counts of the Health and Safety Code

[Health and Safety Code section(s) 11350(a) - 2 counts and 11377(a) - 1 count]; and 2

counts of the Business and Professions Code [Business and Professions Code section(s)

4060 and 4140]. The defendant, Mr. Dykstra, entered into a plea on this matter on October

19, 2011 to Counts 13, 15, and 17 and 20 for a maximum lid of four years. Mr.

Dykstra served almost six months of actual custodial time on this case. Further, My.

Dykstra did not have adequate access to prepare for his matter.

II

UPON A SHOWING OF GOOD CAUSE, THE COURT

MAY ALLOW A DEFENDANT TO WITHDRAW HIS OR

HER PLEA

California Penal Code section 1018 states in relevant part:

. . . On application of the defendant at any time before

judgment . . . , the court may, . . . , for a good cause shown,

permit the plea of guilty to be withdrawn and a plea of not

guilty substituted. . . .

Mr. Dykstra understands all of the consequences that could result if his earlier plea

is vacated. Mr. Dykstra, if he does not prevail on his case, will accept all of the associated

consequences.

Where the facts establish that counsel was ignorant of facts or the law and it

appears that such ignorance caused the withdrawal of a crucial defense, his client is entitled

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to relief. (People v. Stanworth (1974) 11 Cal.3d 588, 612.)

Moreover, courts should not deny withdrawal of a plea of

guilty where it is evident that the interests of justice would be

better served by permitting the defendant to plead not guilty

instead. The least surprise or influence causing a defendant

to plead guilty when he has any defense at all should be

sufficient cause to permit a change of plea from guilty to not

guilty. (People v. Hunt (1985, 2d Dist) 174 Cal.App.3d 95,

106, referring to People v. McGarvey (1943) 61 Cal.App.2d

557 564.)

A defendant may not withdraw his/her plea just because they changed his mind.

(People v. Nance (1991) 1 Cal.App. 4 1453, 2 Cal.Rptr.2d 670.) That is why a judge isth

empowered with an enormous amount of judicial discretion when discussing this subject.

Judicial fairness and the promotion of an equitable result is the main criteria. This section

is to be liberally construed to effect these objects and to promote justice.

For this reason, the defendant, Mr. Dykstra, hereby respectfully requests that his

plea of no contest to the four indicated counts be set aside.

III

A PLEA OF GUILTY MAY BE WITHDRAWN FOR

MISTAKE, IGNORANCE, INADVERTENCE, OR ANY

OTHER FACTOR OVERREACHING A DEFENDANTS

FREE AND CLEAR JUDGMENT

In People v. Dena, (1972) 25 Cal.App.3d 1001, 102 Cal.Rptr. 357, the court held

that:

Where there was clear and convincing showing that the free

will and judgment of Defendant, . . . , were overcome by

extrinsic causes, . . . , it was an abuse of discretion for trial

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court to deny his motion to set aside a plea of guilty. [Id at]

V

CONCLUSION

Based upon the facts, law and arguments set forth above, the defendant, Mr.

Dykstra, hereby respectfully requests that Your Honor allow Mr. Dykstra to set aside his

plea of no contest, entered earlier on in this matter and allow Mr. Dykstra to substitute a

plea of not guilty instead and in place of the indicated no contest plea. Mr. Dkystra

understands that there are risks in vacating his earlier pleas of no contest. However, due

to the evidence discovered and the overall and immediate consequences that Mr. Dykstra is

facing, Mr. Dykstra is willing to accept all of the risks.

Dated: February 23, 2012 Respectfully submitted,

FLIER AND FLIERA Law Corporation

By:ANDREW REED FLIER,THEODORE S. FLIERAttorneys for Defendant

LENNY DYKSTRA

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DECLARATION OF ANDREW REED FLIER

I, ANDREW REED FLIER, declare and state as follows:

1. I am the attorney for the defendant, Lenny Dykstra, in this matter;

2. On October 19, 2011, Mr. Dykstra entered into a plea of no contest to

counts 13, 15, 17 and 20. Mr. Dykstra pled to the four counts with a open

term of four years.

3. Mr. Dykstra was in custody at the time that he entered into his pleas. Mr.

Dykstra was originally arrested pursuant to this investigation on April 14,

2011. Mr. Dykstra was in custody for 7 days as to this initial arrest. Then,

Mr. Dykstra was arrested again on this matter on June 6, 2011. Mr. Dykstra

remained in custody on this matter continuously up until the day of his plea

on October 19, 2011. Therefore, Mr. Dykstra was in actual custody for over

160 days.

4. Mr. Dykstra was desperate and was never in custody before this

investigation. Mr. Dykstras phone privileges were limited. (See court file

pertaining to my law firms court order requests for phone privileges].

5. A thorough review of Mr. Dykstras two day preliminary hearing transcript

demonstrates significant contentions which support the defense position.

Examples of this are:

A. Mr. Gavanis was introduced to Mr. Dykstra by Mr. Hymers and by

Mr. Gavanis brother. (P. 105, L. 25-27).

B. Mr. Dykstras personal assistant emailed to Ford Mr. Gavanis

paycheck stub. (P. 107, L. 6-17).

C. The vehicles taken from Ford were recovered. (P. 108).

D. The investigator does not know what a Startup company is. (P.

111, L. 1-2).

E. The investigator did not speak to a business consultant. (P. 111, L.

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3-7).

F. The investigator did not check to ever see if $500,000 was put up at

the beginning to the Startup company.

A: I wasnt interested in a startup company, sir. (Page ?, L. 8-14).

G. The investigator did not look into to see if money was in the

company. (P. 111, L. 15-19).

H. The investigator did not make a determination as to when the

Startup company was to report income.

A: No. (P. 112, L. 1-4).

I. The investigation started with Wilberto Hernandez. He was a good

friend of Mr. Hymers. (P. 114, L. 15-18).

J. The Defendant had a credit repair business which fell through as to

Mr. Hernandez. (P. 115) Mr. Hernandez did not get his fee. (No

fraud). (P. 116).

K. Mr. Hernandez was never provided any emails from Mr. Dykstra;

nor Mr. Hymers. (P. 117, L. 5-14).

L. Mr. Dykstra was upset that the detective did not know about his

company. (P. 120).

M. The detective does not know what a Shell Company is. (P. 121, L.

8-12).

N. Certain defense exhibits were introduced to demonstrate that the

corporation (Homefree Systems, LLC) did exist and was viable.

(Exhibits A-J). (P. 122-130).

O. The Detective was unaware that money was going into that

company. (P. 131, L. 23-26).

P. The detective had no idea how much money was in the company in

the beginning of last year. (P. 132, L. 2-5).

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Q. $47,000 deposits were in the companies bank statement in

December 1, 2010. (P #4)(P. 133, L.14-18); (P. 134, 1-7).

R. There was a beginning balance in March 12, 2011 which indicated

deposits of $73,000. (P. 135-136).

S. The only thing that the detective discovered was that Mr. Dykstra

submitted the record for Bob Smith Toyota. The investigator had no

idea whom prepared them. (P. 138, L. 7-28, P. 139, L. 3-11).

T. The records submitted to the Cadillac dealer were by Mr. Hymers

through email. (P. 139, L. 15-22).

U. Dorothy, Mr. Dykstras manager, was involved off and on in

submitting emails. (P. 139, L. 20-26).

V. The detective never made an effort to determine whom prepared the

documents. (P. 141, L. 16-20).

However, now he is making that effort. (P. 141, L. 21-27).

W. The only thing I discovered was Mr. Dykstra submitted it. (As to

one dealership). (P. 138, L. 20-24).

X. The detective never made an effort to determine whom actually

created that financial statement. (P. 139, L. 3-11).

Y. Mr. Dykstras bookkeeper handles his financial affairs. (P. 140, L.

1-26).

Z. I am not saying specifically that Mr. Dykstra was aware of that

$90,000 pay stub. (P. 144, L. 7-11).

AA. Mr. Hymers told the detective that he did not have the intent to

defraud his best friend, Mr. Hernandez. (P. 163, L. 17-19).

BB. No witness or co-defendant or suspect ever told the detective

that anyone personally saw Mr. Dykstra preparing any

document or exhibits that have provided. (P. 177, L. 19-26).

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CC. The two cars from Bob Smith Toyota never left the lot. (Page 177,

L. 17-26).

DD. The investigator has no information that Mr. Dykstra introduced Mr.

Hernandez to Mr. Hymers. (P. 182, L. 26-28).

EE. The detective never prepared a search warrant for any computer of

Mr. Hymers. (P. 184, L. 11-16).

FF. The investigation about Mr. Dykstra started approximately February

13, 2011. (P. 187, L. 25-28).

GG. With respect to all of the governments exhibits, there is no evidence

that Mr. Dykstra personally prepared them. (P. 188, L. 13-19).

HH. Three vehicles were purchased. Each defendant had one. (P. 189, L.

23-27).

II. Some payments were tendered as to these vehicles. (P. 191, L. 7-

14).

JJ. Mr. Dykstra told the detective about his Startup company. (P.

200, L. 26-28, P. 201, L. 1-2).

KK. Further, Mr. Dykstra told the detective that he had proof of over 200

potential clients. (P. 201, L. 7-17).

LL. The detective never even called Mr. Dykstras New York attorney,

Mr. Moshe Morten, about the Startup company. (P. 201, L. 21-

26).

MM. The detective never asked any salesmen about the value of these

returned vehicles versus when they left the lot. (P. 204, L. 22-25).

6. I was requesting from Mr. Dykstra and his business manager, Dorothy, for

relevant documents to properly defend Mr. Dykstra, whom was literally

suffering from being locked up for such a continuous and substantial period.

7. Mr. Dykstra, whom was in custody, could not assist as to paperwork,

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banking information, Startup records from his New York attorney, and

other important considerations.

8. In addition, Mr. Dykstras computers were seized. It was Mr. Blatt, whom

is Mr. Hymers attorney, that presented paperwork through defense exhibits

at the preliminary hearing. Mr. Hymers computers were not seized; nor was

Mr. Hymers in custody.

9. A plea disposition was finally reached in this case. It was very difficult for

Mr. Dykstra to enter into these pleas.

10. The prosecutor, Mr. Karkanen, even spoke to Mr. Dykstra in lock-up right

before his plea. Mr. Karkanen could see, first hand, the struggles Mr.

Dykstra was having.

11. Exhibits, including paragraphs 5A through 5MM of this declaration, support

the defense contention to allow Mr. Dykstra to withdraw his plea.

A) Exhibit A is a declaration from Mr. Dykstra.

B) Exhibit B is a declaration from Mr. Dykstras business manager,

Dorothy Van Kalsbeek.

C) Exhibit C is a declaration from Mr. Dykstras prior attorney, Mr.

Mortner.

D) Exhibit D are records pertaining to the company Home-Free

System LLC.

E) Exhibit E is an email dated January 27, 2011 from Mr. Hymers

(co-defendant) to Mr. Gavanis (second co-defendant). (It is

interesting to not that both co-defendants received misdemeanors

and credit time served sentences).

F) Exhibit F is an e-mail from Mr. Dykstra to a Darren pertaining to

the fact that Mr. Hymers prepares Mr. Dykstras financial

statements. In addition, on that same document is an email from Mr.

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Hymers confirming this fact.

12. I have completed a lengthy sentencing brief on behalf of Mr. Dykstra. I

truly believe that this motion to withdraw Mr. Dykstras plea is well taken,

based on sold grounds and should be granted.

13. In addition, I have been preparing for two jury trial. People v. Ramos ( Case

No. FSB058748) is a Double Murder jury trial to commence on March 6 ,th

2012 in San Bernardino. In addition, I am preparing for a Death Penalty

jury trial to commence on April 9 , 2012 in downtown, Los Angeles.th

14. Mr. Dykstra has been a completely different individual since his release

from custody. Mr. Dykstra has been in full compliance with everything that

has been required as expected from him.

I declare under penalty of Perjury that the foregoing is true and correct.

Executed on February 23, 2011, at Sherman Oaks, California.

ANDREW REED FLIER

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PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am over the age of 18 years, not a party to the within entitled action; my businessaddress is 15250 Ventura Blvd., Ste. 600, Sherman Oaks, California 91403;

On the execution date below, I served the foregoing document as described as:

NOTICE OF MOTION AND MOTION FOR ORDER WITHDRAWING PLEA OFGUILTY; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONOF ATTORNEY ANDREW REED FLIER

on all interested parties through their respective attorneys of record in this action:

Alexander Karkanen, DDATaskforce for Regional Autotheft Prevention9040 Telstar Avenue, Suite 115

El Monte, CA 91731

METHOD OF SERVICE:

G (BY FACSIMILE TRANSMISSION) I caused the above-described document(s) to betransmitted via electronic facsimile.

G(BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in theUnited States mail. I am readily familiar with this firms practice of collection andprocessing correspondence for mailing. It is deposited with the U.S. Postal Service on thatsame day in the ordinary course of business. I am aware that on motion of party served,service is presumed invalid if postal cancellation date or postage meter date is more than

one day after date of deposit for mailing in affidavit.G(BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to theoffices of the above addressee(s).

I declare under penalty of perjury that the above is true and correct.

Executed on February 29, 2012, at Sherman Oaks, California.

_________________________________STACY A. WINBERG

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V.L181HX3


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DECLARATION OF LENNY DYKSTRAI, LENNY DYKSTRA, declare:1. On April 14,2011, Lenny Dykstra walks out of the horne he was renting and is

jumped by approximately 15 under cover cops (1 can only assume that the they were cops) I wasimmediately handcuffed, and thrown in the back of an unmarked car. After asking numeroustimes "What is going on? Who are you? Why are you handcuffing me and treating me like acriminal, am I under arrest?" The only answer I received was "we are taking you to see the bigman, he will explain everything." I asked numerous times "why are you treating me like acriminal, I have never committed a crime in my life." They would not give me an answer. Thistook place between approximately 7:00- 8:00 pm.

2. This took place at the home I was renting in Encino. Then, I am taken downtownand placed in what I could only guess was an interrogation room. Then, I ask the FBI Agents"what is this about? Why was I treated like some kind of criminal - and nobody will tell me whatthis is about? I aked if I was being arrested and they said no, you are being detained. To mydisbelief - when the FBI Agents finally start talking to me thay ask me about my bankruptcy case.I responded: "my bankruptcy! Are you telling me that]5 undercover cops jumped me was] waswalking out ofmy house - handcuffme like I am some kind ofcriminal, cause a major scene, allto talk about my bankruptcy ?" I then responded to the FBI agents by saying "what do want toknow about my bankruptcy that is not already ion the docket? Then I said, "let me ask you a

question; "what is the cost these days ofa 23 year marriage?As the bankruptcy trustee isdirectly responsible for dismantling a 23 year marriage? Or, what about destroying the lives ofmy three sons?" Later that same night after the FBI could not get me (Dykstra) to sign a releaseof my rights for counsel, they left. Then, I (Dykstra) a man walks in and tell me his name is


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Detective Contreras, and I ask him "what is this?" Why am I being treated like a criminal? Whoare you? What do you want'?" I ask Detective Contreras repeatedly, "why am I here?" Contrerastells me that Home Fee Systems, LLC is not a real company, that it's a fake company used tosteal cars (the 3 cars that were leased).

3. On April 14, 2011, Lenny Dykstra tells Contreras numerous times to contact hisattorney, Moshe Mortner, regarding the company Home-Free Systems LLC, Dykstra tellsContreras that Mortner will give him all the company info, and the proof to show that Home FreeSystems is indeed rcal by providing him with all the legal documentation. Dykstra tellsContreras, "All you have to do is call my attorney, and he will give you everything you need,please call Mr. Mortner and he will prove that it is a real company. "Why are you trying to ruinmy life?"

4. That same night, after being detained for what was approxiamtcly 6 hours,Dykstra is told that he is going to be arrested for car theft (GTA) - I literally am in shock, indisbelief, and I plead with Detective Contreras once again to call my attorney, Moshe Mortner,and he will clear all of this up. Why would you arrest me before checking out my story, I saidagain, "please, it's only one phone call to my attorney, he will give you all the proof youneed." He would not repsond to me, so I said, "you are going to lock me up in jail without evenchecking to see if I am telling the truth?" Sir, my freedom is on the line, why are you trying toruin my life?"

5. I am then booked and thrown in jail - as I am still in complete disbelief as to whatwas happeningwith $500K bail for the state case with a 1275 hold, but also there was a no bailhold in place by the FBI. So, even if Dykstra would have bailed out, the FBI would have himpicked him up.


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6. When I was locked up I had no way to communicate with the outside world, as Iwas not permitted phone privileges. I was also not pennitted a visitor until approximately the 4thmonth of incarceration. Basically, I had no way to communicate with the outside world.

Moreover, shortly before I was locked up in jail, I fired my attorney, Mr. Moshe Mortner, whowas very upset at the time Ilet him go. I later learned after I was released that my assistant triednumerous times to get Mr. Mortner to turn over all of the information regarding HOME FREESYSTEMS, LLC. Mr. Mortner was also asked by my assistant to call my attorney, Mr. AndrewFlier, on numerous occasions but he refused.

7. The bottom line: My attorney, Mr. Flier, did not have sufficient informationregarding HOME FREE SYSTEMS, LLC. due to the fact Mr. Mortner would not return myassistant, Dorothy Van Kalsbeek's, calls.

8. But, what is more troublesome, is the fact that Detective Contreras completelyfailed to investigate the most critical issue in my case. I kept on explaining to DetectiveContreras that he must contact my New York lawyer, Mr. Moshe Mortner, whom set up andincorporated HOME FREE SYSTEMS, LLC. If the detective would have simply contactedattorney Mortner, then all of these relevant documents would have been procured by theGovernment's own investigator.

I declare under penalty of Perjury that the foregoing is true and correct.Executed on February 23, 2011, at Sherman Oaks, California.

1:::!J!tJ:--


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EXHIBIT B


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DECLARATION OF DOROTHY VAN KALSBEEKI, Dorothy Van Kalsbeek, declare as follows:

1. I currently work for the Defendant, Lenny Dykstra, who is charged in the above-captioned criminal case and have worked for the Defendant in some capacity sinceMarch 2006.

2. I currently hold a Bachelor's degree in accounting and have worked consistently asan accounting professional since the age of 23 and have held jobs as a bookkeeper,controller, corporate treasurer and CFO. When not working for Defendant, I alsowork as a small business consultant as a QuickBooks accounting software expert.

3. I am an individual above the age of eighteen years of age and have personalknowledge of the facts set forth herein, and if called and sworn as a witness, I couldand would competently testify thereto.

4. I make this statement in support of the motion for the Defendant to withdraw hisplea.

5. I am informed and believe that the facts so stated herein are true and correct.6. I am aware of the facts surrounding this case and was involved in the business

operations of the defendant, including but not limited to Home-Free Systems LLC.7. I was NOT named as a defendant in this case, although a warrant for evidence in

this case was served and computers from my home were confiscated for a time.They have been returned.

8. Prior to and after the removal of computers from my home, at NO time was Iquestioned in this case to provide evidence for or against the defendant, which Ibelieve would exonerate the defendant.

9. I believe that the moral character of the defendant has been maligned unjustly bythe charges brought against him in this case. Although he is often times impatientand unconventional, he is not a bad person and lives with an honor code that isdifficult to emulate. I have never met another individual that works harder.

10. The charges in this case are in a word: Ridiculous.1


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11. The defendant, with two other business associates whom he believed to be honestand trustworthy leased three cars from Galpin Ford.

12.ln my contact with those involved with the car transactions, there was no intentionto defraud; there was no intention to cause harm or loss.

13. Applications were completed at three separate dealerships that I am aware of, not todefraud additional dealerships into leasing more cars, but because credit for the newcompany and the defendant, who is going through a high-profile bankruptcy case did not qualify for credi t at the first two dealerships where he attempted to lease twoor three automobiles.

14. Had either of the first two dealerships approved leases and closed the deal, then noadditional applications would have been submitted further. They each only neededone car. Similar to the practice of going to one store, and if they don't have whatyou want and/or don't provide credit terms necessary to complete the sale, if youstill want the item, you try another store.

15. The cars that were leased were INSURED. Online payments with Ford MotorCredit were set up for each automobile, and payments submitted.

16. It was my responsibility to set up the payments and ensure timely remittance wastendered when due.

17. There was some mix up with the bank, as after the first payment was tendered, buthad not cleared - defendant closed out his account without leaving enough in theaccount for the payments to clear. That was an unintentional error of oversight onthe part of the defendant and not done with the foreknowledge that he was causingthe paymel1ts to be rejected. At the time he believed them already paid.

18. After he opened a new account, payments were tendered again. This time thepayments were either refused by Ford or by the bank. It is unclear what happened.Payments were set up online, information regarding the bank account and loaninformation was input into the online payment system. The payments were acceptedby Ford, and posted as "PENDING" at the bank for a day or two. But, wereeventually rejected. There were sufficient funds available in the bank to fully coverthe payments. But, they somehow bounced before clearing. It is unknown why.

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19. On a couple of occasions, I personally talked with a representative of Ford MotorCredit and provided information regarding the payments, insurance, where the carswere garaged and which individual was the primary driver for each car. I providedfull disclosure with regard to all that was required.

20. Ford Molor credit was not able to determine why the payments bounced withsufficient funds available. The bank was not able to determine why the paymentsbounced with sufficient funds available.

21. Home-Free Systems LLC was set up by Defendant's attorney in New York, MosheMortner.

22. Defendant's former attorney Moshe Mortner in New York had critical evidence inthe case for which it was difficult to obtain due to Mr. Mortner's distance andlifestyle. Mr. Mortner is a highly religious Orthodox Jew who spends considerabletime with religious studies. This makes him somewhat difficult to contact and get aresponse [rom him, due to his limited schedule.

23. I sent several emails and tried to reach out to Mr. Mortner by phone on severaloccasions - getting no response from him due to the fact that he has this very limitedwork schedule and also due to the fact he had concluded his representation ofDefendant.

24. Eventually Mr. Mortner was reached and the evidence in his possession wasforwarded to counsel for the Defendant to support this motion.

25. It was Mr. Mortner who prepared the documentation necessary to create the entityHome-Free Systems LLC and registered the name with the New York Departmentof Corporations. In addition, Mr. Mortner received the proceeds of the loan that wasprovided by an investor as seed capital for business operations of the new entity.

26. Proceeds from the loan were used to create a website for the company, which wouldbe used to market the company to potential customers.

27. Businesses such as RealtyTrac were contacted in conjunction with the businessmodel to help us efficient!y find qualified customers for our services.

28. Interviews were conducted to hire sales representatives for the new entity.

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29. The company was promoted on the Alex Jones internet radio broadcast whichresulted in a flood of web hits and phone calls to the company's toll free line.Nearly 200 people called in within the first week, after a 10-15 second blurb aboutthe company that wasn't even scripted.

30. After Defendant was taken into custody I tried to see him. I needed to fill out anapplication prior to being allowed in due to the location where he was being held,and the approval process which states on the application to take up to 30 days tookin this case nearly three months. The application was submitted in June and my firstvisit was allowed mid-September.

31. Additionally, Defendant was not allowed to make phone calls. On occasion (aboutone in 7-10 days), while waiting to take a shower he was abk to use the phone for amoment or two, but in general - he was denied phone privileges. It took severalphone calls to the watch commander and chaplain's office to get authorization forthe Defendant to place a phone call to the hospital prior to his mother's death. Ifound it to be inexplicable that such a request would not be instantly granted. It wasas though they honestly wanted to deny him the opportunity to speak to his mom forthe last lime.

32.lL is my belief that the defendanl should be allowed the opportunity to have his dayin court and the chance to exonerate himself of all charges.

I declare under penalty of perjury under the laws of the United States of America that theforegoing is true and correct.

DATED: February 28, 2012 Dorothy Van Kalsbeek

Dorothy Van Kalsbeek

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Exhibit C


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DECLARATION OF MOSIIE MORTNERI, Moshe Mortncr, declare as follows:

1. I am an attorney admitted to the practicc oflaw in thc State of New York and beforethc United States District Court for the Southem District of New York. In, 2010 Iapplied for admission before thc US Bankruptcy Court for the Central District ofCalifornia, San Fernando Valley Division, to be admitted pro hac vice for thelimited purpose of representing the Defendant Lelmy K. Dykstra in connection withthe aspect of his bankruptcy proceedings that concerned the secured claim of JPMorgan Chase.

2. Additionally, I was engaged by Dcfendanllo set up the company Home-FrceSystems LLC.

3. Accordingly. I arrangcd for the fornlation ofthe entity Home-Free Systems LLC onJuly 12.20 IO. which I caused to be registered with the New York Department ofStatc. Division of Corporations and Records.

4. Homc-Free Systems LLC. and the Defendant raised $300,000 from an investor whowas given equity in the start-up company and a promissory note. As Mr. Dykstra'sattorney, I was responsible for preparing the promissory note in the amount of$300,000 for the investor.

5. The S300,000 invcstment for Home-Free Systems LLC was wired directly tomy Client Trust Account, and I immediately distributed thosc funds per thcinstructions of my client, Defendant.

6. I-IOME-FREE-SYSTEMS, LLC, received all of the legal documentation requiredunder the law to become a legal and active limited liability company in the Stale ofNew York.

7. In additlOn, pursuant to Defendant's instructions, I applied to the IRS on behalf ofHome-Free Syslems LLC for an EIN, and the number was issued on August 3,2010.

8. Upon infonnation and belief, defendant created Home-Free Systcms LLC lO dobusiness undcr the namc Predatory Lending Recovery, which Defendant laterchangcd to StoptheGrcedyBanks.com.


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9. At various times I was asked by Defendant to provide consulling services forHome-Free Systems LLC in matters pertaining to residential foreclosure defenseand related services In fact, 1spcnt two full days in Los Angeles consulting withDcfcndant and his associatcs as to the dcvelopment of the company's businessmodcl.

10. Residing and practicing law in the State ofNew somewhat limits my availability fortile Dcfendant frolll time to time.

II . When the Defendant was taken into custody, I was out of the office and unavailableto produce needed docwnents for the Defendant's case. Additionally, I was notaware they were needed at the time.

12. At no time prior to or subsequent to DefenEiant's arrest was I contacted by lawcn lorcement officials or investigators asking for any infonnation with regard to theDefendant or Home-Free Systems LLC.

13.11 was not intcntional that the information in my possession concerning Home-FreeSystems LLC was not made available to the defense in this case in a timely manner.I am a commercial attorney and I had no involvement in Defendant's criminaldeflmsc.

16 11 declarc under penalty ofpeTjury under the laws of the Umted States of America that the17 foregoing is true and correct.1819 DATED: Febmary 28.20122021

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Moshe Mortner, Esq.

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004

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How To Balance Your Bank of America Accountstart with your Account Register/Checkbook:

List your Account Register/Checkbook Billoi1ce here $---Subtract "my servicC! charges or othN deductions nat previous',y recorded lhat are listed on this statement ..__M.M_M_'_' .MM._... $---Add any credlls not previously recorded that arc listed on this statement (for example interest) .M_M._... "' 'M"'_.__._ $---This is your NEW ACCOUNT REGIS fER BALANCE $---

with your Account Statement:List your Statement Ending Balance here $---Add any deposits not shown on Ihl$ statement ................................................ _ _ $----

SUBTOTAL $==== LIS', and total all outstanding checks ATM Check Card and other electronic withdrawalsChecks. ATM, Check Card, Checks, ATM. Check Card, Checks, ATM, Check Card,Elecl:Ionic Withdrawals Electronic Withdrawals Electronic Withdrawals

Date/Check # Amount Date/Check # Amount Date/Check # Amount

$OF DUTSTANDING CHECKS. ATM, Check Card and other electronic withdrawals . ._._._.. __ ._M.M.....SubtrClct total outstanding checks, ATM. Check Card and Olher electronic withdrawals from SubtotalnllS Balance should match your new Account Register Balance ._.__ ._.M.MM.M. __ _. ._. " _. __.M.M ................_ _..... $

if any, should be reported to the bank promptly tn writing and in accordance WIth provisions in your depositIMPORTANT INFORMATION FOR BANK DEPOSIT ACCOUNTS

hange of Address. PIQ8Sf' call at the lelephone number listed on the front of this statement 10 tell us about a change of address.Deposit Agreement. When you opened your account, you received a deposit agreement and fcc schedule and agreed that your account would beoverned by the terms of these documents. as we may amend Ihem from time to time. These docume nts are part of tlie contract for your deposit accOuntand govern all transactions relating to your account. inclUding all deposits and withdrawals. Copies of both the depOSit agreement and fee schedule,hich contain Ihe current verSion of the t e r m ~ and conditions of your account relationship. may be obtained al our banktng centers.Electronic Transfers: In case of errors or questions about your electronic transfersIf you trllnK your statement or receipt IS wrong or )f you need more Information about an electronic transfer (e.g" ATM transaclions, direct deposits orw,thdrawals, pOint-of-sale transac tions) on the statement or receipt, telephone or write us at the ilddress and number listed on the front of th,s stalementas soon as you can. We must hear from yOll no later than 60 days after we sent yOll the FIRST stalement on which the error or problem appeared. Tell us your name and acco unt mHnber. Describe the error or the transfer you arc unsure about and explain as clearly as you can why yOll believe there is an error or Why you need moreInformation. Tell us the dol'iar amount of Ihe suspected error.For cor,SL:mer account::. used primarily ror personal. filmily or household purposes, we will Investigate your complaint and will correct any errorpromplly. If we take more than 10 bUSiness days (10 calender days If you are a Massachusetts customer) (20 business days If you are a new customer.for electronic transfers occurrtng durmg the first 30 days after the first deposit is made to your account) to do this, we will recredlt your account for theamount you think is tn error, so that you wdl have use of the money during [he time it takes us to compleJe our investigation.For olr.er accounts, we investigate, and if we lind we hiwe made an error. we credit your account at the conclusion of our investigatIOn.Reporting Other Problems. You must examine your statement carefully and promptly. You are in the best position to discover errors and unauthorized\ransanlons on your account. If you fail to notify us in writing of suspected problems or unauthOrized transactions Within me time periods specified inthe deposit agreemenl (Which periods arQ no more than 60 days after we make the statement available to you and In some cases are 30 days or less). wearc not liable to you for. and yOL. agree not to make a claim against us for the problems or unauthorized transactions.DIrect Depos its. If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, youmay call us at the telephone number listed on the front or this statement to find out if the deposit was made as scheduled.

Bank of America, N.A. Member FDIC atld Equal Housing Lender


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Documents

Motion for Withdraw of Plea