MOTION FOR LEAVE TO RECONSIDER STAY PENDING APPEAL, PAGE 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC., Et. Al. §
Plaintiffs, §
vs. § Civil Action No. 3-09CV0988-F
§
JEFFREY BARON, Et. Al. §
Defendants §
MOTION FOR LEAVE TO RECONSIDER STAY PENDING APPEAL
TO THE HONORABLE ROYAL FURGESON, SENIOR U.S. DISTRICT
JUDGE:
Defendant Jeff Baron moves for leave for the Court, pending appeal, to stay
or partially stay the Vogel receivership order, based on new material which
materially changes the facts considered by this Court in denying Baron’s original
Fed.R.App.P. 8 motion, as follows:
1. Movant understands the court does not want to retread water it has already
passed over. However, the rules contemplate that sometimes, in the interest of
justice, a case should be looked at anew. Cf. Fed.R.Civ.P. 60.
2. Attorneys have started to come forward and reveal information that was
previously hidden. As the Court is aware, in September 2010 after the global
settlement was completed Sherman had enough funds in the bank to pay all the
creditors in full and still have around a Million Dollar cash surplus. What the
Court is likely unaware
is that instead of immediately closing the Bankruptcy, as
was his duty under the global settlement agreement, Sherman actively worked to
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generate claims to ‘justify’ his further involvement and putting off closing the
case.
3. Recently, multiple attorneys came forward. One attorney was willing to
provide a sworn statement regarding Sherman’s solicitation. Then, another
attorney was willing to provide a sworn statement to corroborate those facts.
These corroborated sworn
statements are attached as Exhibits “A” and “B” for the
Court’s consideration and attention.
4. As testified to by the attorneys, in September, 2010, Sherman, used his
counsel Urbanik to actively and vigorously solicit attorneys to make claims
against Baron. It appears, moreover, that Sherman and Urbanik attempted to
actively and aggressively solicit every attorney they could find, seeking
‘referrals’– names of other attorneys they could solicit to make more claims
against Baron.
5. Further, as testified to in the attached exhibits, on Sherman’s behalf
Urbanik solicited that claims for fees be filed, even when told that Baron did
not owe any money. See Exhibit “A”.
6. New material has also been found that also materially changes the facts
considered by this Court in denying Barons’ FRAP 8 motion. The Court may
recall (a review of the Court’s order [DOC 268] denying FRAP 8 motion may
refresh the Court’s recollection if necessary) that the key specific instance which
convinced the Court that Baron was firing lawyers for the purpose of delay
was
Baron’s letter to his Bankruptcy Counsel Keiffer on September 1, 2009. On
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September 1, Keiffer received a letter informing him he was fired and asking him
to seek delay of the hearing (set that same day!). Taken at face value, that event
certainly does make Baron look like he was abusively firing his counsel for delay.
It clearly looked that way to the Bankruptcy Judge who the following day entered
a Show Cause order to appoint a Trustee. See Exhibit “N”.
7. As the Court is well aware, the undersigned is still unpaid as appellate
counsel and can only work as time allows on matters outside of the appeal of this
case, in order that the undersigned may work on paying cases and in turn pay his
own bills. The undersigned has no funding for staff to go over the volumes of
material related to the multiple matters involved in the underlying fact issues of
this case. However, the undersigned does go over a few more pages as time
permits, doing some of things that paid trial counsel (or their support staff) would
do if Baron were allowed to hire such legal counsel. Thus, what might take a
couple weeks for a paid trial lawyer with funding for staff to do the work, has
taken the undersigned months, maybe years. As unpaid appellate counsel it is the
best the undersigned is able to offer. The pace is slow but diligent. That
diligence has paid off. The Court may be shocked
to hear the facts disclosed by
Exhibit “E”.
8. As evidenced by Exhibit “E”, Baron did not desire to fire Keiffer
nor do so
of his free will. Rather, Baron was threatened
by Friedman On August 31,
2009, Friedman threatened Baron that this Court would confine Baron in prison
and fine him if Baron did not immediately sign letters Friedman had prepared to
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fire Keiffer. Friedman told Baron that he was at grave risk for being thrown in jail
unless he did as Friedman demanded. Baron believed he had no choice, and
complied. See Exhibit “P”. Baron signed the letter Friedman prepared as
Friedman demanded. Keiffer received it the next day, apparently from Friedman,
and because of that the Bankruptcy Court issued its show cause order for
appointing a Trustee. See Exhibit “N”.
9. This Honorable Court placed the receivership over Baron based on the
belief that Baron had abusively fired Keiffer to delay the September 1 hearing.
The evidence attached as Exhibit “E” establishes that is not the case and that it
was Freedman who was responsible.
10. Notably, there was no notice prior to the FRAP 8 hearing that Keiffer’s
firing was an issue. To the best of the undersigned’s recollection, Keiffer was not
mentioned before or at the FRAP 8 hearing. However, the Court clearly relied in
denying stay upon the Keiffer firing as well as the appointment of a chapter 13
trustee that resulted out of the Keiffer firing. In light of the evidence offered as
Exhibits “A”, “B”, and “E”, reconsideration of allowing a stay or partial stay at
this point will serve the interests of justice.
11. As discussed above, beginning immediately after the global settlement was
reached and there was no work left other than closing the bankruptcy case,
Sherman and Urbanik became a claim generation engine, vigorously attempting to
generate claims to be made against Baron. All of this, of course, was going on
behind the scenes.
See Exhibits “A” and “B”.
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12. Sherman’s action of generating a cloud of ‘chaos’ instead of closing the
bankruptcy appears to be a pattern. The Court may take notice that when the
“global settlement” was just about completed, literally hours away from
agreement, Sherman refused to participate in the final settlement talks and filed a
motion with the Bankruptcy Court to order the talks cancelled. The Bankruptcy
Judge was surprised, and in a rare admonishment of Sherman, called his request
“unreasonable
”. See Exhibit “C”. Sherman was then ordered to continue to
participate in the settlement negotiations. The global settlement was reached
shortly thereafter. A copy of the Bankruptcy Judge’s finding and order is attached
as Exhibit “C”.
13. A copy of the Hall contract has also been located and is attached as exhibit
“L”. No discovery was allowed Baron in objecting to the attorney ‘claims’, and
Hall’s contract was withheld by Hall at that time. As can be seen from the written
contract, Hall’s flat fee was $10,000.00 per month, an amount he acknowledged
was paid, for ten full months. According to Hall, some months more money was
paid, although not called for in the written contract, and in total, Hall was paid
over $100,000.00. Hall’s “claim”, typical of the other claimants, is that the last
month he was only paid the $10,000.00 called for in his written contract
. Hall’s
claim, like almost every other claim made against Baron, came after Sherman,
behind the scenes, solicited attorneys to make claims against Baron. Notably,
Sherman sought attorneys to make claims even after being told that Baron didn’t
owe them any money. See Exhibit “A”.
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14. The Court has extensive experience in the law, and can form an opinion as
to whether in state court summary judgment against Hall would be entered on his
claim based on a written contract with a merger clause setting the monthly rate at
$10,000.00, (See Exhibit “L”) and the attorney’s admission he was paid at least
that amount every month.
15. At this point, in light of all the facts that have come to light since the
receivership order was issued, the question is whether there really is cause to
continue to subject Baron to what is truly sub-human treatment
-- denying him
(A) the right to possess his own property, (B) the right to engage in business
transactions, (C) the right to personal privacy in his private affairs, (D) the
right to work, (E) earn money, and (F) retain hired counsel, (G) etc.
16. Vogel and Sherman will blame Baron– this is the well-grooved pattern in
these proceedings– and the Court may believe them. The undersigned notes that
Baron still does not have a functional vehicle and is still trapped in an apartment
with no air conditioning or heat. Vogel has refused to release funds for either of
these. The undersigned has done all he can as unpaid appellate counsel to resolve
the issues. At this late date, ordering Vogel to do this or that specific act is not the
solution. Staying the receivership, or partially staying it, is called for.
17. In case the Court is influenced by the underlying allegations that the
plaintiff had originally alleged against Baron, (i.e,, that Baron ‘hijacked’ the
plaintiff’s domains), Exhibit “M” is attached. As seen from the exhibit, the
plaintiff’s allegations should not be afforded credibility– The plaintiff is a convict
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with a string of felony indictments for crimes of dishonesty including fraud and
forgery.
18. Further, to make clear the relationship between the attorney claimants,
their purpose and intent, and Mr. Baron, Exhibit “G” is attached for the Court’s
consideration. The exhibit is Mr. Garrey’s email to Baron with a copy of the
receivership order, and what appears to be a clear admission that Garrey played a
concerted role in its issuance. Garrey’s email to Baron states sarcastically “Happy
Thanksgiving” and attached a copy of the receivership order.
19. Finally, attached for the Court’s consideration are the following: (1) As
Exhibit “F” are Emails showing that MacPete was not hired by the plaintiff’s after
Baron allegedly ‘hijacked’ domains as MacPete has represented to the Court.
Rather, MacPete was hired by the Plaintiff and Baron jointly, and ‘took sides’
well prior to the joint breakup, and then ‘took sides’ with the plaintiff; (2) As
Exhibit “H” are record transcripts making clear that Baron was not in breach of the
global settlement agreement; (3) As Exhibit “I”, an email showing Vogel’s
intention to liquidate all of the receivership assets (in case the Court was not aware
of this); (4) As Exhibit “J”, Pronske’s testimony from the September Bankruptcy
hearing showing the threat to ‘move assets offshore’ was actually the ‘threat’ to
change the trustee of the Village Trust, as agreed to by all parties and approved by
the Bankruptcy Court, and required under the global settlement agreement; As
Exhibit “K”, a docket sheet from the Bankruptcy court showing that Baron did not
‘flood’ the court with new counsel and only two
(2) substantial contribution
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claims were filed, not the “nineteen” represented by Urbanik on behalf of
Sherman; As Exhibit “N”, the Bankruptcy Court’s show cause order that shows,
contrary to the representations to this Court, the order was not imposed based on
any finding (or even consideration) that Ondova filed bankruptcy so that Baron
could avoid or delay a contempt hearing on discovery; and as Exhibit “O” the
notice informing Baron that there would not
be a hearing on the contempt motion,
which Baron received prior to Ondova’s filing for bankruptcy. The Court had
apparently forgotten that the contempt motion was not set to be heard, and
erroneously believed that Baron took Ondova bankruptcy to avoid the contempt
hearing set on July 7, 2009. The exhibit shows that Baron did not take Ondova
Bankruptcy to avoid the contempt hearing—the opposite, Baron only took Ondova
into bankruptcy after he was informed that there would not
be a contempt hearing.
WHEREFORE, Jeff Baron moves this Court to grant leave, and to stay, or
partially stay the Vogel receivership order.
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Respectfully submitted,
/s/ Gary N. Schepps
Gary N. Schepps
Texas State Bar No. 00791608
(972) 200-0000
(972) 200-0535 fax
Drawer 670804
Dallas, Texas 75367
E-mail: legal@schepps.net
APPELLATE COUNSEL
FOR JEFFREY BARON
CERTIFICATE OF SERVICE
This is to certify that this document was served this day on all parties who
receive notification through the Court’s electronic filing system.
CERTIFIED BY: /s/ Gary N. Schepps
Gary N. Schepps
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