Part 7: 07/15/2008 Doc 339
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2. Altomare’s Bank Records.
The SEC’s contentions relating to the Altomare bank records continue to distract the Court from the narrow issue at bar, Altomare’s present ability to pay, are contained within documents in the exclusive possession of the Receiver and the SEC, and have been answered since the Altomare deposition.
First, (admittedly redundant)the source of the $100,000.00 payment to Premier Estate Properties, Inc., refunded on September 6, 2006 (depo. Ex. 1). In his testimony, Altomare was unsure whether the original source of the $100,000.00 refund emanated from his own Wachovia joint checking account or Universal Express. (Depo at 21).The SEC counsel stipulated that analysis of the checking account confirmed the deposit was not sourced by an Altomare check. (Id.) The absence of a check issued from the joint checking account leaves Universal Express as the sole source. Those documents are in the exclusive possession of the SEC and the Receiver.
Second, the reason for the $1,000.00 check to Caldwell Bankers: (see ¶20 and n. 10, ante; RAA-2446 and 2433; RAA-2447-49; RAA-2453). See also DX-42 through DX-45. Moreover, a $1,000.00 check to a broker 26 months ago cannot assist this Court’s addressing the issue of Altomare’s current ability to pay.
Third, the inspection fees paid in July and September 2006. This comment by the SEC is especially curious since they have obviously conducted public record searches [35] which readily would have revealed Altomare’s acquisition of any additional real estate if there were any. Obviously there are none. In addition, real estate inspection fees paid two years ago are irrelevant to the current issue before the Court in light of the inescapable fact that no other real estate appears of public record or otherwise as owned by Altomare individually or in combination with one or more others.
[35] During his deposition SEC counsel questioned Altomare about another family with the same name and learned that the two are unrelated. The inquiries referenced deposition exhibits which necessarily were derived from the public records of Palm Beach County, Florida. I have intentionally omitted the deposition page references and exhibit numbers to maintain as much privacy as possible to the other, unrelated Altomare family.
Fourth, the $1,296.00 check (Depo. Ex. 8). The check is 26 months old and was written by Mrs. Altomare. The payee line on it was/is blank. Post-deposition investigation confirmed the check is a payment on a Bloomingdales account, the account number being inscribed in the journal section the check.
Fifth, the $8,000.00 currency deposit into the joint account was not in November, 2006 (Depo. Ex. 9) as stated in the SEC submission at 4. It appears in Depo. Ex. 12 at line 41 and RAA-1893 within Depo. Ex. 9 as a deposit made September 5, 2006. It is written in Mrs. Altomare’s handwriting.
Sixth, bank deposits coinciding with regular salary payroll checks and payroll records 26 months old also do not assist the Court in rendering and supporting a finding on the current, narrow issue before the Court. The fact of the matter is that the USXP payments were deposited into the Altomare joint account and all deposits and disbursements from that account have been identified item by item, memo by memo, credit by credit and debit by debit. Every item of USXP disbursement directly to Altomare or for his personal benefit was timely booked against his accrued salary or the loan account. Whether all were picked up by the payroll company keeping the payroll check records and issuing regular payroll checks 26 months ago, or through August 24, 2007, is irrelevant to the issue at bar. The undisputed evidence is the disbursements from USXP to Altomare or for his personal benefit were posted to the payroll check account or his accrued salary or loan account, or both, as might have been appropriate. Nothing is missing.
Seventh, the 16,313,118 shares of Universal Express stock purchased with promissory notes and subsequently cancelled by the SEC’s own admissions (submission at 4). This subject is irrelevant to the issue of present ability to pay. In addition to the obvious, namely, that no money changed hands, the shares were cancelled. The transfer agent’s records, exclusively possessed by the SEC and the Receiver, would reveal any untoward conduct relating to those shares. The report on Form 4 to the SEC is a 6 ½ year old event involving shares in a defunct corporation which should be considered by any observer to be worthless.
Eighth, the payment of insurance premiums (Depo. Exhibits 24, 25, 26 and 27), concededly were not explained in detail during the Altomare deposition, but were documented immediately after by Altomare’s counsel’s investigation and immediately delivered to SEC counsel. (DX-48; RAA-2389 through RAA-2428).
Ninth, the August, 2006 trip likewise does not assist the Court in rendering a finding regarding Altomare’s present ability to pay and does not counter the overwhelming evidence he has presented demonstrating his inability to pay. Depo Exhibit 30 involves 23 month old payments by check to various vendors or merchants in Italy. Although they total a substantial amount of money, those disbursements are confirmed as having been made from the Altomare joint account, the checks were mostly written and signed by Mrs. Altomare, the records of USXP confirm that the disbursements were properly booked to Altomare’s salary which meant they were duly and timely reported to both the SEC and the Internal Revenue Service. Moreover, they involve 23 month old personal purchase transactions by Mrs. Altomare. That Altomare could not identify what jewelry his wife purchased on checks drawn and signed by her two years ago totaling $4,313.00 does not aid the Court in the fact-finding process when addressing the issue of current ability to pay.
Tenth, Altomare’s interest, if any, in the Jackson memorabilia was not the subject of an SEC interrogatory requiring the articulation of details, and, even had such an interrogatory been posed, its answer does not aid the Court in deciding the narrow issue of current ability to pay. In addition, it is well known that the Receiver has substantial exposure to the foreign litigation involving the controversies surrounding the various claims of ownership in the memorabilia. None of this aids the Court in addressing the narrow issue of current ability to pay. Ownership interest must await the outcome of pending foreign court litigation. Moreover, Altomare promised and pledged the worth of any interest he might ultimately be determined to possess in the memorabilia to be applied against the disgorgement judgment, pre-judgment and judgment interest.
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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) |
