Professional Documents
Culture Documents
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GLADE L HALL
Nev. Bar #1609
105 Mt. Rose St.
Reno, NV 89509
Tele. (775) 324-6447
Facs. (775) 324-5387
Attorney for Creditors
Allison 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. 11-5078
JOHN D. GESSIN, )
)
Defendant. )
____________________________________)
ALLISON TAITANO (MOORE), plaintiff herein, by and through GLADE L HALL, her
undersigned counsel, moves for summary judgment that her creditors 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:
//
//
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1. Background:
ALLISON MOORES (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 certain
certificate 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 fathers name to hide this asset from the mother of his son. Gessin made
further representations that he was only interested in Ms. Taitanos 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 take
an unusual interest in Ms. Taitanos 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.
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In reliance on his representations that he could make better investments for her,
Ms. Taitano entrusted $30,000.00, in cash, to Gessin .
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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. Taitanos 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 attorneys 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 ARBITRATORS
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 Arbitrators 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-
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wife.
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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 Courts 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;
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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 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 fathers name so that he could hide his
assets from the mother of his son;
that he could invest Ms. Taitanos 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. Taitanos financial affairs and learned of
These numbers and findings are a direct quote from the ARBITRATORS AWARD.
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the Certificate of Deposit and her retirement account with ING;
1.8 Mr. Gessin represented the he could invest Ms. Taitanos 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 he
advised Ms. Taitano to open an account with Fidelity Investments; an account was set up in which
without Ms. Taitanos 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 $26,466.00
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 not invest Ms. Taitanos money for a higher rate of
return;
he has converted Ms. Taitanos $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. Taitanos 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. Gessins false representation of material facts, intended to induce reliance by
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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 fathers; 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. Gessins 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. Blacks 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;
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2. Knowledge of the falsity or deceptiveness of his statement or conduct;
3. Intent to deceive;
4. Justifiable reliance by the creditor or the debtors statement or conduct;
and,
5. Damage to the creditor proximately caused by its reliance on the debtors statement or
conduct. Harmon v. Kobrin, (In re Harmon) 250 F.3rd. 1240, 1246 (9 Cir. 2001); American
th
Express Travel Related Services Co. Inc. V. Hashemi, (In re Hashemi), 104 F.3d 1122, 1125 (9
th
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
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resolve the parties differing versions of the trust at trial. T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Assn., 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 ARBITRATORS 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
debtors statement or conduct. (Para. 1.17).
The judgment makes a specific finding of damage to the creditor proximately caused by
her reliance on the debtors 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
//
//
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reasonable attorneys fees and costs.
Dated: February 21, 2012.
/s/ Glade L Hall
___________________________________
GLADE L HALL
Attorney for Plaintiff
Nev. Bar 1609
105 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
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Code: A201
Patrick James Martin
Nevada Bar No. 842
LAW OFFICE
PATRICK JAMES MARTIN
CHARTERED
115 Ridge Street
Reno, Nevada 89501-1937
(775) 329-1571
Arbitrator
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
Patrick James Martin
Chartered
Nevada Bar No. 842
15 Ridge Street
Reno, Nevada 89501
(775)329-1571
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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
C:\Users\Glade\Documents\ArbitrationAward-Taitano[1].wpd
Law Office
Patrick James Martin
Chartered
Nevada Bar No. 842
15 Ridge Street
Reno, Nevada 89501
(775)329-1571
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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 Mobile
Home payments be held in Mr. Egghart's trust account until
hearing;