Part 5: 07/15/2008 Doc 339
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4. “Altomare produced some, but not all, of the records requested by the plaintiff prior to his deposition.”
Again contrary to the SEC’s assertion, every document requested reasonably in advance of the deposition was produced prior to its commencement. Some documents requested well within 30 days of the deposition were marshaled at break neck speed to deliver prior to the deposition. Any bank records, including the Wachovia account 2006 monthly statements requested within 12 days of the taking of the deposition, were again sought by Mrs. Altomare and counsel at break neck speed and at great expense. Any document not produced prior to the deposition 2007 records are numbered RAA-528 through RAA-1151. The monthly statements for 2006, which were not requested until June 12, 2008, merely summarize the transaction items received on June 6, 2008. And as previously said, SEC counsel posed dozens of questions, relating to dozens of checks dated in 2006 during Altomare’s deposition. Even more importantly, the monthly statements for 2006 do not help answer the core question in these proceedings: whether Altomare is currently unable to pay more towards the disgorgement judgment.(mostly the Wachovia account 2006 monthly statements) is the result of the SEC’s belated request and its evershifting line in the sand, rendering it impossible to timely satisfy. More importantly, by June 6, 2008 the SEC had possession of every Altomare account transaction item from January 1, 2006 through January 8, 2008 and monthly statements covering late 2006 through January 8, 2008.
The 2007 records are numbered RAA-528 through RAA-1151. The monthly statements for 2006, which were not requested until
June 12, 2008, merely summarize the transaction items received on June 6, 2008. And as previously said, SEC counsel posed dozens of questions, relating to dozens of checks dated in 2006 during Altomare’s deposition. Even more importantly, the monthly statements for 2006 do not help answer the core question in these proceedings: whether Altomare is currently unable to pay more towards the disgorgement judgment.
5. “Some 2006 records were produced…on…June 27, 2008, as a result of which plaintiff was unable to question Altomare about them…”
This assertion is unfair, especially in light of its only subject being the Wachovia account (#5480) monthly statements for 2006. The SEC received every item of deposit and withdrawal, every memorandum of credit or debit evidencing every bank transaction the Wachovia bank account for the 2006 on June 6, 2008 when it received documents Bates stamped numbered RAA-1451 through RAA-2093. These items of transactions, as distinguished from monthly statements, were not requested by the SEC until its second request for production served after hours on May 13, 2008 and observed for the first time on May 14, 2008. The monthly statements for 2006 were not requested until June 12, 2008, 12 days prior to the deposition. To say, therefore, that SEC counsel was “unable to question” Altomare during his deposition is belied by the strength and import of the source documents, namely the items of transaction, and by the many dozens of questions posed by SEC counsel during the deposition relating to particular items of bank transactions in the Wachovia account during 2006.
6. “Altomare testified to a lack of knowledge regarding many financial matters…(and) referred the SEC to his wife, and to the former comptroller of Universal Express.
Again, with all due respect, this SEC contention also is unfair, the result of its own inaction by not posing the few subject questions in interrogatories that would have allowed time to investigate as in the case of DX-42 through DX-46, given the fact that USXP documents were in the exclusive possession of the SEC and the Receiver since September 7, 2007, and presupposes that Altomare is clairvoyant. To provide information to the SEC, one most know the subject which is gained by the positing of a question, the service of an interrogatory or request for production of particular documents. Manifest since the SEC’s service of its first request for production, is the Commission’s initial very limited area of inquiry and investigation into assets, and then its ever moving or shifting line in the sand. Despite that shifting “line,” no question asked of Altomare during the deposition was previously posed in an interrogatory.
Many of the deposition questions which Altomare could not answer without resort to additional documentation involved only minute aspects of several of thousands of bank item transactions during a 2 ½ year period of time. Well known to the SEC and the Receiver is the fact that all checks written on the Altomares’ accounts were written and signed by Mrs. Altomare, except a very few.[28]
[28] In 2006 645 checks were drawn against the Wachovia accounts (5480 checking and 4286 primary credit). Mrs. Altomare drew/signed 576 of them. In 2007 ___ checks were drawn of which Mrs. Altomare drew/signed ____. (DX-46; RAA-2455-RAA-2538; and RAA-0528 through RAA-1151; RAA-1451 through RAA 2093). Mrs. Altomare drew/signed all of the few WAMU account no. 9286 checks. (First motion for relief, attachment 1).
The Commission could have subpoenaed both Mrs. Altomare and the former comptroller of USXP for deposition any time after the rendering of final judgment, action it obviously, intentionally elected not to do. To state as late as July 2, 2008 that “..it is necessary at a minimum to depose the two additional witnesses…before advising the court concerning its position as to Altomare’s ability to pay more toward his disgorgement obligation…” concedes dilatory conduct and presents an inherent unfairness to Altomare.
It also proceeds from the false premise that Altomare is clairvoyant and presumed to know in advance every question raised in the minds of SEC counsel relating to information bearing on his present ability to pay by inquiring of a few financial transactions from a joint checking account drawn by his wife up to 30 months ago. Altomare has been incarcerated for a civil contempt but serving hard time otherwise reserved for sentence inmates are who disciplinary violators since May 2, 2008, a period of 70 days. He has been unemployed and seeking to establish new business, except for his term of incarceration, since August 31, 2007, a period of 315 days. The SEC could have served witness subpoenas and deposed the former comptroller of Universal Express who cooperated extensively with the Receiver any time since March 2004 when this action commenced. The same for Mrs. Altomare. The 2006 bank monthly statements were not requested until June 12, 2008.
Uncontradicted and incontrovertible evidence previously presented to the Court explained the sale of the jewelry, mostly his wife’s, as driven by her correct perception of the need for liquidity in order to satisfy regularly established monthly commitments and other personal expenses since August, 2007. Compare DX-46 with DX-51 through DX-58.
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07/15/2008 339 RESPONSE in Opposition re: 191 MOTION for Sanctions and Entry of Contempt against Universal Express, Altomare and Gunderson. Response to Plaintiff's Second Submission on Issue of Contempt and Second Motion for Relief from Contempt. Document filed by Richard A. Altomare. (Tifford, Arthur) (Entered: 07/15/2008) |
