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March 3, 2009
MARTHA BRONSON, PLAINTIFF,v.GREEN TREE SERVICING, LLC, GREEN TREE FINANCIAL SERVICING CORP., GREEN TREE INVESTMENT HOLDINGS, LLC (FKA CFN INVESTMENT HOLDINGS, LLC) VENAE VALDEZ, RANDY LAKE, US BANK TRUST NATIONAL ASSOCIATION, US BANK NATIONAL ASSOCIATION, GREEN TREE HE/HI BORROWERS, LLC, SPECIALIZED, INC., ELVIA BOUCHE, FORTRESS TRUST II, FORTRESS INVESTMENT GROUP, LLC, DEFENDANTS.
Martha Bronson ("Plaintiff") filed this action against the defendants alleging unlawful conduct with respect to the execution and servicing of two loans. Plaintiff filed a Third Amended Complaint ("TAC") which several defendants failed to answer in a timely manner. Entries of default were ordered by the Court against Green Tree Servicing, LLC ("Green Tree Servicing") and Fortress Investment Group, LLC ("Fortress Investment"). Defendants Green Tree Servicing and Fortress Investment move to set aside the entry of default filed against them, arguing that it is void because there is "good cause" to set aside the entry and that service of process was defective. There is also a motion to dismiss the TAC by the following defendants: Green Tree Servicing, Green Tree Financial Servicing Corp., Green Tree Investment Holdings, LLC (fka CFN Investment Holdings, LLC), US Bank Trust National Association, US Bank National Association, Green Tree He/Hi Borrowers, LLC, Fortress Trust II, and Fortress Investment Group, LLC. For the following reasons, this Court GRANTS the Motion to Set Aside the Entry of Default and GRANTS the Motion to Dismiss the Third Amended Complaint.
Plaintiff obtained two loans from Green Tree Financial Servicing Corporation, one in 1994 and one in 1999. (Third Amended Complaint "TAC" ¶¶ 11-13.) The 1994 loan was acquired to finance the construction of a swimming pool. (TAC ¶ 11.) Bronson alleges that the 1999 loan was solicited by the defendants late in 1998 under the promise of consolidating her 1994 loan and an unrelated car loan with a lower interest rate.
(TAC ¶ 12.) She alleges that the defendants told her to stop making loan payments on her car in reliance of the consolidation loan. (TAC ¶ 13.) As a result of this advice, Bronson went into default on her car loan and the vehicle was repossessed in April of 1999, just a month before her consolidation loan finally went into effect. Id.
Sometime around the late 1990s, Green Tree Financial and its subsidiaries were purchased by Conseco Inc. (Defs.' Mot. Dismiss Third Am. Compl. 3:14.). After this acquisition, Green Tree Financial became known as Conseco Finance Corporation ("CFC"). Id. at 3:16-18. Then on December 17, 2002, CFC and their subsidiary, Conseco Finance Servicing Corp., filed for relief under Chapter 11 of the Bankruptcy Code in the Northern District of Illinois. Id. at 3:20-23.
The bankruptcy court's ruling approved the CFC debtors Sixth Amended Chapter 11 plan which contained a distribution scheme for the sale of CFC's assets free of all future claims against them. Id. at 4-5. The September 9, 2003 ruling stated that "[e]xcept as expressly permitted by the Purchase Agreement, all persons and entities . . . holding Interests or Claims of any kind or nature whatsoever against the CFC Debtors or in the Purchased Assets . . . are forever barred, estopped, and permanently enjoined from asserting, prosecuting or otherwise pursuing against the Buyer . . . such persons' or entities' Interest or Claims." (Schwartz Decl. Ex. A at 11-12).
Based on the allegedly unlawful execution and servicing of the two loans, Plaintiff asserted ten*fn1 causes of action in her Second Amended Complaint ("SAC"). She claimed, inter alia, that from approximately September of 1993 through 1997 "plaintiff encountered a myriad of problems with Green Tree including its unauthorized and illegal charges of insurance; misapplication of payments received; delayed posting of payments resulting in unlawful interest charges; repeated failures to provide explanations about apparent errors on statements and repeated failures to correct the same; repeated refusals to explain how and on what basis the [p]rincipal/interest is applied; repeated failures to send accountings upon request; repeatedly sending misleading, deceptive and confusing monthly account statements." (SAC ¶ 11.) Based on this alleged misconduct by the defendants, Bronson brought the following ten causes of action in her SAC:
(1) Misrepresentation, undue influence, fraud; (2) Rescission based on contracts of adhesion and unconscionability; (3) Rescission based on lack of agreement; (4) Breach of loan extension agreements and of contract to negotiate a settlement of both loans; (5) Home Owners Equity Protections Act; (6) Rosenthal Fair Debt Collection Practices Act; (7) California Unfair Business Practices Act; (8) California Code of Civil Procedure §§ 1803.2, 1720; (10) RESPA, 12 U.S.C. § 2607, Regulation X, 12 C.F.R. § 3500.14(c); and (11) California Business and Professions Code § 17500.
In response to the SAC, defendants Green Tree Investment Holdings and Green Tree Servicing moved for partial summary judgment on all claims against them. (Docket at 52.) Based on the bankruptcy court order prohibiting all future claims on the CFC assets, this Court granted a partial summary judgment in favor of the moving defendants on March 28, 2005, ruling that all of the ten causes of action asserted in Bronson's SAC were barred against Green Tree Servicing and Green Tree Financial under the Sixth Amended Chapter 11 plan. (Docket at 66.)
Over two years after the partial summary judgment, Bronson filed a TAC. The amended complaint reasserts all of the causes of action from the SAC, several new causes of action, and is directed at all of defendants from the SAC as well as some new ones, most of whom she believes are liable as assignees.
A. Motion to Set Aside Entry of Default for Good Cause
1. Legal Standard
An entry of default may be set aside "for good cause." Fed. R. Civ. P. 55(c). The standard of "good cause" is slightly more favorable for the party in default when it is an entry of default, rather than a default judgment. Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986) ("The standards for setting aside entry of default under Rule 55(c) are less rigorous than those for setting aside a default [judgment]."); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2696, at 142 (3d ed. 1998) ("[A] default entry may be set aside for reasons that would not be enough to open a default judgment.").
A default judgment or entry of default may be set aside for good cause if the moving party shows "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). However, the motion to set aside an entry of default may be denied if, "(1) the plaintiff would be prejudiced if the judgment is set aside, (2) defendant has no meritorious defense, or (3) the defendant's culpable conduct led to the default." In re Hammer, 940 F.2d 524, 525-26 (9th Cir. 1991). The test is disjunctive. Id. at 526. Although these grounds for relief provided in Rule 60(b) are for default judgments, given the parallels between a default entry and judgment, their use is appropriate in determining whether to set aside default. See Hawaii Carpenters' Trust Funds, 794 F.2d at 513. The grounds, however, should be "liberally interpreted when used on a motion for relief from an entry of default." Id. Furthermore, decisions of setting aside default judgments and entries of default are left to the court's discretion, see Savarese v. Edrick Transfer & Storage, Inc., 513 F.2d 140, 146 (9th Cir. 1975). In fact, the discretion to set aside an entry of default is "especially broad." Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986).
2. Defendants Have a Meritorious Defense
As discussed in more detail in section B of this order concerning the motion to dismiss plaintiff's TAC, defendants have a meritorious defense for all of the causes of action asserted and therefore successfully establish grounds for setting aside the entry of default.
3. Motion to Set Aside Entry of Default for Lack of Proper Service
The moving defendants also argue that the entry of default should be set aside because service of process was defective. This Court agrees that the lack of proper service further justifies setting aside the entry of default.
The Federal Rules of Civil Procedure 5(b)(1) requires that "[i]f a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party." (emphasis added)
Plaintiff argues that she attempted to serve the moving defendants' attorney, Donald Cram ("Cram") but that he refused to accept service for his clients. Cram states that his refusal was with respect to the clients he did not represent. In Plaintiff's request to Cram, she stated, "Please immediately advise if you will accept service on behalf of any of the clients you have told me that you represent, including, but not limited to: GREEN TREE SERVICING, LLC, GREEN FINANCIAL SERVICING CORPORATION . . ." (emphasis added). The list included parties not represented by Cram. This Court believes that given the language of this request, it was within defense counsel's reasonable discretion not to accept service for clients he did not represent.
Plaintiff also alleges that the moving defendants' counsel was served on the day that the court ordered the preliminary injunction and the TAC complaint was filed. Pls' Opp'n Mot. Set Aside Default 2:18-20. However, this Court finds no certificate of service that supports this conclusion. All of the certificates of service that are in the docket show that the TAC was served upon the actual defendants, not defense counsel.
Given this Court's particularly broad discretion in evaluating a motion to set aside an entry of default, the meritorious defenses available to the defendants, and the improper service of process that has not been adequately justified by Plaintiff, the Court hereby grants the motion to set aside the entry of default against Green Tree Servicing.*fn2
B. Motion to Dismiss Third Amended Complaint
The moving defendants' principle argument is to dismiss plaintiff's First, Second, Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action based on the res judicata effect of the partial summary judgment granted in favor of Green Tree Investment Holdings and Green Tree Servicing in 2005. The Court agrees that these claims are precluded from being relitigated but bases it upon the bankruptcy court order, which was a final judgment on the merits. The other, new causes of action, the Fourth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth, will be addressed separately.
1. Motion to Dismiss Plaintiff's First, Second, Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action
In March of 2005, Judge Levi granted partial summary judgment in favor of Green Tree Investment Holdings and Green Tree Servicing as to all claims asserted in the SAC. The partial summary judgment held that these claims concerning the 1994 and 1999 loans were barred by the asset purchase agreement and the related orders of the bankruptcy court. All of the claims in the SAC have been reasserted in the TAC, most of which in verbatim. This Court adopts the same findings as the partial summary judgment that all claims concerning the conduct of these defendants with respect to the 1994 and 1999 loans are barred.
Green Tree Investment Holdings bought the servicing rights to the 1994 and 1999 loan "free and clear" of all adverse claims arising from the conduct of the entities that went bankrupt. Under the asset purchase agreement, general unsecured creditors, like Plaintiff, had a right to participate in a distribution scheme on allowed claims. In exchange for this right to assert claims and participate in the distribution scheme, the creditor agreed to "a good faith compromise and settlement of claims or controversies relating to the contractual [and] legal . . . rights that a Holder of a Claim may have . . . ." and that all such rights are "settled, compromised and released." (Schwartz Decl., Ex. 2, art. VIII, ¶ L, p. 25; id., art. XI, ¶ A, p. 28.) Therefore, Plaintiff has already had an opportunity to assert all of her claims concerning the two loans and is barred from reasserting these claims under the doctrine of res judicata. The bankruptcy court's disallowance of claims concerning these loans is conclusive to all parties and their privies and can serve as the basis for a res judicata defense. Siegel v. Fed. Home Loan Mortgage Co., 143 F.3d 525, 529 (1998).
Res judicata, also known as claim preclusion, "precludes the parties from relitigating issues that were or could have been raised in [a prior] action," Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981), and can serve as the basis for the grant of a motion to dismiss. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). "The judgment prevents litigation of all grounds and defenses that were or could have been raised in the action." Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). Res judicata prohibits future lawsuits when there is "(1) an identity of claims; (2) a final judgment on the merits, and (3) identity or privity between parties." Id.
a. An Identity of Claims
Defendants argue that most of the TAC consists of the same claims as the SAC and should therefore be barred by res judicata. This Court agrees.
In determining whether there is an identity of claims for purposes of res judicata, this Court must consider:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.), cert. denied, 459 U.S. 1087 (1982). The last of these criteria is the most important. Id. at 1202.
Allegations of conduct by the defendant and other additional facts not alleged in the prior judgment are not sufficient to avoid the bar of claim preclusion. Costantini v. Trans World Airlines, 681 F.2d 1199, 1202 (9th Cir. 1982). Most of the causes of action asserted in the TAC are the same as in the prior SAC. Plaintiff has pled with more factual specificity in the TAC but this is insufficient to circumvent the bar of claim preclusion. The bankruptcy court order held that all claims concerning the 1994 and 1999 loans were barred. Moreover, the 2005 partial summary judgment further adjudicated the issue that Plaintiff has already had her chance in court to file claims concerning her two loans. All of her allegations essentially arise out of the same transactional nucleus of operative facts, namely the conduct of the defendants surrounding the execution and servicing of the 1994 and 1999 loans.
The only new assertion that Plaintiff raises in these repeated causes of action is that certain wrongful conduct that occurred prior to June 23, 2003 (when the Conseco asset sale closed) is presently ongoing and can now be reasserted as causes of action that are not barred by claim preclusion.
Returning to the basic tenet of claim preclusion, parties are prohibited from "relitigating issues that were or could have been raised in [a prior] action," Federated Dep't Stores, Inc., 452 U.S. at 398 (1981) (emphasis added). All of the wrongful conduct by the defendants that Plaintiff claims is presently ongoing was or could have been raised in the bankruptcy proceedings. "[T]he doctrine of res judicata provides that when a final judgment has been entered on the merits of a case, 'it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.'" Nevada v. United States, 463 U.S. 110, 129-30 (1983) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1877)).
b. A Final Judgment on the Merits
The bankruptcy court ruling in favor of Conseco and its subsidiaries was a final judgment on the merits and therefore satisfies the second requirement of res judicata. "[T]he allowance or disallowance of 'a claim in bankruptcy is binding and conclusive on all parties or their privies, and being in the nature of a final judgment, furnishes a basis for a plea of res judicata.'" Siegel, 143 F.3d at 529 (quoting United States v. Coast Wineries, Inc., 131 F.2d 643, 648 (9th Cir. 1942)).
c. Identity or Privity Between Parties
Green Tree Investment Holdings purchased the servicing rights to the 1994 and 1999 loans and were parties to the bankruptcy ordered sale of CFC's assets, "free and clear" of all claims. They are completely protected from being defendants against the same claims that were adjudicated in that judgment. As for the other moving defendants, this Court holds that they are all parties sufficiently in privity with Green Tree Servicing and Green Tree Financial to benefit from the res judicata effect of the prior 2005 adjudication.
"'Privity' . . . is a legal conclusion 'designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.'" In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997) (quoting Southwest Airlines Co. v. Tex. Int'l Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). Historically, privity between parties was only recognized in limited categories of legal relationships when two parties had identical or transferred rights with respect to a particular legal interest, chiefly: co-owners and co-tenants of property; decedents and their heirs, successors in interest and survival claimants; bailors and bailees; joint obligees; assignors and assignees; parties to a contract, and in some cases promisees and third-party beneficiaries; indemnitors and indemnitees; corporations and their officers or shareholders; partners and their partnerships; and unincorporated associations and their members. Headwaters Inc. v. United States Forest Serv., 399 F.3d 1047, 1053 (9th Cir. 2005) (citing Restatement (Second) of Judgments, §§ 43-61 (1982)); see also FED. R. CIV. P. 23.2 (governing actions affecting associations).
All of the defendants who were not parties to the asset purchase agreement are in privity with the parties involved in the bankruptcy order. Green Tree Investment Holding, LLC, owned in part by Fortress Investment Group, purchased Green Tree's servicing rights to the 1994 and 1999 loans. (TAC 4:20-23.) US Bank Trust National Association and Green Tree He/Hi Borrowers, LLC hold the successor interests to the 1999 loan. (TAC 4:9-14.) Green Tree He/Hi Borrowers, LLC, owned in part by Fortress Investment Trust, is owned by Fortress Trust Group, LLC. Fortress Investment is a part owner of a corporation that purchased the servicing rights to the 1994 and 1999 loans executed by Green Tree Servicing. (TAC 4:20-23.) All of these defendants have either a corporate partnership, possess successor interests, or have an assignor/assignee relationship with Green Tree Investment Holdings and Green Tree Servicing that qualify them as parties in privity. This Court holds that these relationships in privity are sufficient to benefit from the bankruptcy order and the partial summary judgment of 2005.
d. Policy Justifications for the Application of Res judicata
There are sufficient policy justifications underlying the application of res judicata in the instant case. Res judicata "is motivated primarily by the interest in avoiding repetitive litigation, conserving judicial resources, and preventing the moral force of court judgments from being undermined." Haphey v. Linn County, 924 F.2d 1512, 1518 (9th Cir. 1991), rev'd in part on other grounds, 953 F.2d 549 (9th Cir. 1992) (en banc). In repeating these causes of action in her TAC, Bronson is attempting to relitigate issues that have already been resolved. The allegedly unlawful execution and solicitation of the loan agreements, the servicing and alleged breaches of contract claims are all causes of action that were asserted in the bankruptcy proceedings or could have been. It would be a waste of judicial resources to revisit these claims.
The motion to dismiss plaintiff's First, Second, Third, Fifth, Sixth, Seventh, Eighth and Ninth Causes of Action based on res judicata are justified for all of the moving defendants. This Court holds that there is an identity of claims based on the common transactional nucleus of operative facts, a final prior judgment on the merits, and an identity or privity of parties that is sufficient to trigger a res judicata effect of the bankruptcy court order for all of the moving defendants.
2. Motion to Dismiss the Fourth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action
Plaintiff alleges seven new causes of action in the TAC that are still barred by the res judicata effect of the bankruptcy court order.
a. Motion to Dismiss Fourth Cause of Action
In her fourth cause of action, Plaintiff alleges that in November of 2004, she sent a letter to Green Tree Servicing, CFN Investments (nka Green Tree Investment Holdings, LLC) and Conseco Financing demanding that they cease prohibited conduct under California Code of Civil Procedure Section 1770 et seq. upon which defendants failed to respond. This Court rules that the motion to dismiss the fourth cause of action is granted based on claim preclusion.
Although the defendants move to dismiss the TAC in its entirety, they do not offer an argument specifically against this cause of action. In the moving defendants' motion to dismiss, they argue that the "First, Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action in [the] TAC are mere restatements [of] the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Causes of Action in the SAC . . ." Motion to Dismiss Third Amended Complaint pg 11, lines 6-8. The motion to dismiss then lays out the defendants' arguments against the new causes of action without ever addressing the fourth cause of action.
In her November 2004 letter, Bronson states that the defendants engaged in "unfair methods of competition or unfair or deceptive acts and practices . . . with regard to the offering of and providing of mortgage[s] including unconscionable one sided terms a [sic] contract, advertising rates with the intent not to sell them as advertised, representing loans as being in consumers' best interests when they are not, failing to post payments when received." These complaints are based on the same allegedly wrongful conduct that was asserted in Bronson's SAC, namely the execution and servicing of the two loans. Claims based on the conduct of the defendants with respect to the two loans were barred by the bankruptcy order. The doctrine of res judicata precludes us from relitigating these issues under a newly named theory of recovery. Nevada v. United States, 463 U.S. at 129-30 (1983). Bronson's claims under this cause of action are essentially breach of contract claims where the breach occurred before the sale of CFC's assets. See McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986) (holding plaintiff's action for breach of contract was barred under doctrine of res judicata because breach arose prior to filing of original action for breach of contract). The claim preclusion applies to all of the moving defendants as they were in privity with the prevailing party in the bankruptcy proceedings. The fourth cause of action is dismissed for all of the moving defendants.
b. Motion to Dismiss Tenth Cause of Action
In her tenth cause of action, Plaintiff alleges unlawful foreclosure against the defendants. After failing to make payments on the 1999 loan from 12/1/2003 through the beginning of 2007, defendants notified her of defaulting on the loan and their election to sell Plaintiff's property. Plaintiff's claim is based on defendants' alleged failure to respond after she requested further explanations regarding her account history and current indebtedness. TAC 26. However, the defendants argue that Plaintiff has submitted an exhibit that contradicts facts laid out in her tenth cause of action. They argue that her exhibit proves that the defendants provided her with an account summary, as she requested, while her tenth cause of action is based on the lack of providing such documents. TAC Exhibit 3. When an exhibit contradicts facts alleged in the complaint, the facts in the exhibit take precedence. See Holland v. Morse Diesel Internat., 86 Cal.App.4th 1443, 1447 (2001); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1989). In fact, in her opposition brief, Plaintiff admits that Defendants replied to her request, directly contradicting her statement in the Complaint that "Green Tree Servicing has not responded to that qualified written request." Accordingly, this Court rules that the defendants' motion to dismiss the tenth cause of action is granted.
c. Motion to dismiss Eleventh Cause of Action
In her eleventh cause of action, Bronson argues that the 1999 loan was against article XV section 1 of the California Constitution prohibiting usury. Defendants claim they are exempt entities because they are licensed by the Department of Corporations under the California Residential Mortgage Lending Act and Finance Lenders Act. The parties are in dispute as to whether the contracting defendants were actually licensed at the time the 1999 loan was executed.*fn3 Despite this disagreement, this Court rules that the motion to dismiss the eleventh cause of action should be granted for all of the moving defendants based on the res judicata effect of the bankruptcy court order.
The facts in support of this usury claim are, by nature, related to the circumstances surrounding the execution of the loan contracts. Bronson's claims alleging unlawful, exorbitant interest rates not agreed upon are based on events that occurred before the filing of her SAC in 2004. This cause of action should have been pleaded during the bankruptcy proceedings. The motion to dismiss the eleventh cause of action is granted for all moving defendants.
d. Motion to dismiss Twelfth Cause of Action
In her twelfth cause of action, Plaintiff claims that defendants breached their duty of good faith and fair dealing as parties to the 1994 and 1999 loan agreement. Specifically, Bronson alleges that defendants are guilty of "(a) refusing to timely credit Plaintiff and others, so as to create late fees and a deficiency and after creating a large deficiency, moving to foreclose on Plaintiff and others, and (b) assessing unauthorized charges; (c) illegally accelerating notes; and (d) pursuing foreclosure in lieu of other legal remedies."
Even a brief look at the SAC reveals that many of the facts Bronson presents in support of her twelfth cause of action were already used to support different theories of recovery in the SAC. Bronson cannot successfully reassert claims against the defendant when they are based on the same transactional nucleus of operative facts, disguised under a different name. Nevada v. United States, 463 U.S. at 129-30. Bronson herself concedes that the duties of good faith and fair dealing are "implied in every contract that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of their contract." TAC 28:21-25. Bronson's asserts breach of contract claims where the breach occurred before the filing of her SAC. Therefore, her claim is barred by claim preclusion. See McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986) (holding plaintiff's action for breach of contract was barred under doctrine of res judicata because breach arose prior to filing of original action for breach of contract). Defendants' motion to dismiss the twelfth cause of action is granted in favor of all of the moving defendants.
e. Motion to dismiss Thirteenth Cause of Action
In her thirteenth cause of action, Plaintiff alleges that Green Tree Servicing, Specialized, Inc., and their assignees breached their fiduciary duties as trustees. This Court grants the motion to dismiss the thirteenth cause of action with respect to Specialized, Inc. since they have been dismissed, with prejudice, from this case.
As for the other defendants, the complaint is not sufficiently pled to entitle Plaintiff to relief. Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim entitling the plaintiff to some relief. All that is required are sufficient allegations to put defendants fairly on notice of the claims against them. See Conley v. Gibson, 355 U.S. 41, 47 (1957); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202 (2d ed. 1990). Despite the liberal pleading standard, the complaint here fails to allege any facts or allegations against the remaining defendants aside from simply naming a potential theory of recovery.
However, even if this cause of action were sufficiently pled, the claim would be denied based on the res judicata effect of the bankruptcy court order. Bronson's claims concern the allegedly unlawful servicing of the loans, which as noted throughout this order, is not a viable source of relief for the plaintiff. The motion to dismiss the thirteenth cause of action is granted.
f. Motion to dismiss Fourteenth Cause of Action
In her fourteenth cause of action, Plaintiff alleges that the defendants unlawfully collected and applied payments to her loans thereby committing the tort of conversion. She offers as an example of the misconduct, two payments in 2001 that were never applied to her account. The motion to dismiss this cause of action is granted based on the res judicata effect of the bankruptcy court order.
Bronson alleges unlawful conduct that occurred prior to the CFC asset purchase in 2003. The relevant activity in support of this cause of action is within the same transactional nucleus of operative facts as the previously adjudicated matter. She is barred from raising the same complaint under a different theory of recovery. See Nevada v. United States, 463 U.S. at 129-30. Defendants' motion to dismiss this cause of action is granted.
g. Motion to dismiss Fifteenth Cause of Action
In her fifteenth cause of action, Bronson alleges a general breach of contract claim by the defendants. (TAC 31:1-2). All of the allegations arise out of conduct that occurred before both the bankruptcy court's ruling and this Court's partial summary judgment in favor of the defendants. There is an identity between this claim and those litigated in SAC which was adjudicated based on merit. Moreover, as stated several times in this opinion, all breaches of contract claims that could have been asserted before the bankruptcy court order are barred forever. See McClain v. Apodaca, 793 F.2d at 1034. Therefore, defendants' motion to dismiss the fifteenth cause of action is also granted.
For the foregoing reasons, the Court:
(1) GRANTS the motion to set aside the entry of default against Green Tree Servicing;
(2) GRANTS the motion to dismiss as to all causes of action, against all defendants with prejudice;
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Kids love having fun all the time. They are hard to keep quiet for long and on any given opportunity, they swing into action. Parents often feel worried as the restlessness of … [Read more...]
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Since its debut in May 2013, AMD's Kabini APU has only been available soldered onto motherboards and inside of pre-built systems. Now, a socketed version of the low-power chip appears to be in the cards. While visiting MSI at the Consumer Electronics Show in Las Vegas, Scott came across a Mini-ITX board with a 721-pin socket primed for Kabini APUs.
This Socket M1 board will be compatible with both dual- and quad-core chips up to 25W. Some of those APUs may bear the Sempron name, while others will likely retain the E-series branding associated with mobile Kabini variants. On the mobile side, the only 25W Kabini chip we've seen is the A6-5200, which has quad Jaguar cores clocked at 2GHz plus integrated Radeon HD 8400 graphics clocked at 600MHz.
The MSI motherboard is coming in March, and it looks like a pretty spartan package. All the basics are covered, though. You get dual USB 3.0 ports, DVI and HDMI outputs, (presumably Gigabit) Ethernet, and full-sized memory and PCI Express slots. Storage options include two SATA ports and a Mini PCIe slot that's likely compatible with mSATA SSDs. Since there doesn't appear to be any Wi-Fi on board, that slot might be better occupied by a wireless card.
This board should be affordable, and it could be a nice foundation for a budget home-theater PC. I wonder if Kabini is fast enough to sit on the receiving end of Steam's upcoming in-home streaming feature.
This discussion is now closed.
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Comfort Inn Foster is ideally located at the gateway to Foster, just a few minutes from the town centre and just a short drive from local beaches including Sandy Point and Waratah Bay. The entrance to Wilsons Promontory National Park is 25 minutes drive away while 40 minutes away is the Tarra Valley and Tarra-Bulga National Park.
The motel is nestled within landscaped gardens which are surrounded by native bushland. There are 29 spacious and comfortable guest rooms that are air-conditioned and well equipped with standard amenities, offering bush views. Spa and family rooms are available.
The Cafe Ole' restaurant is located on the premises for guest convenience.
Corporate travellers will appreciate the meeting room, which accommodates up to 30 people. Access to copy and fax services is also offered.
Nightly rates from
Property features
• Laundry facilities
• Pool
• Restaurant on-site
• Wireless internet


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Artificial Human Sperm And Eggs Could Be A Reality
Researchers at the University of Cambridge released findings suggesting artificial human sperm and eggs could be created.By Jasmine Bailey | December 26, 2014
Researchers from the University of Cambridge announced a breakthrough that could potentially result in successful lab-induced human fertilization as well as answer important questions about the aging process.
Using both stem cells and skin cells the researchers were able to begin the process of creating human sperm and eggs. Stem cells are able to grow to be any type of cell in the human body. Skin cells, on the other hand, can be manipulated into having similar abilities as stem cells.
"If some adult cell types are taken, grown in plastic dishes and given specific genetic instructions, over time a small number of these cells will reverse from their differentiated state and develop the ability to re-differentiate," explained Stem Cell Network.


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Aboriginal activist Gary Foley speaking at Melbourne University
by admin
I had the privilege of hearing Gary Foley speak again recently at Melbourne University. He spoke about his experiences growing up in a small, rural coastal community in NSW. He recalled how as a young boy how he was unable to sit with his school friends in the local cinema, and was thrown out […]
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text: Parallels Desktop 7 for Mac on Sale for $28Thorin Klosowski6/28/12 9:00amFiled to: DealhackerDealsMac downloadsvirtualizationin briefDownloadsOs XMac OS X6EditPromoteShare to KinjaToggle Conversation toolsGo to permalink Parallels Desktop, our pick for the best virtualization software for OS X, is currently on sale for $28 for the next two hours. Parallels can handle running both Windows and Linux directly on your Mac's desktop. It's easy to set up and use. Once you do, you can share files, run programs, and even use your Mac gestures in the other operating system. The sale is part of the software's birthday sale. Starting right now at 9am PST the price is $28 and will rise every two hours until it's back to its retail price of $79.99. Thanks to Justin for sending this in. Advertisement Advertisement Parallels Desktop Birthday SaleGear from Kinja Deals Anker's SoundBuds Are Some of the Best Cheap Bluetooth Earbuds You Can BuyUmbra's Twilight Rod Takes Your Curtains from the Windows to the WallYou Need This 128gB Micro SD Card for $16 Even If You Don't Need The SpaceReply6 repliesLeave a reply


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17 Flower Craft Ideas: How To Make Paper Flowers, Easy Fabric Flowers and More
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Latest Comments
"I saw this pattern and thought it would be great to go in my gift tins for my homemade spa sets for Christmas. I started the pattern but kept having trouble with the puff stitch. When I try to pull through the loop the hook gets stuck and pull a strand or two out making it look un-neat. Is there a way to prevent this? Could it be the yarn I am using?"
"I love this pattern for making dishcloths! It is so simple and it's so easy to remember. It makes a great,durable dishcloth. Does anyone tried this pattern with that new yarn that is made for making dishcloths? I think it might be a rayon blend. I'm going to try it next time I need dishcloths."
"This is a great beginner project, it was easy to follow and gave great instruction. I was able to work up several of these for co-workers who thought it was so cute. I am going to make several more for my home for company to use when they come over and have coffee."
"These spiral beaded trees are so pretty! For extra sparkle, I am going to place a battery tea light candle in the center of the spiral. Several of these trees would look great placed within a strand of twinkle or small rice lights on a mantle or table center piece!"
"That's a great idea!"
Rosy Paper Flower
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These lovely Rosy Paper Flowers are great for decorating and accessorizing. Made using simple white card stock, these paper roses are a great alternative to real flowers when it comes to creating centerpieces or floral arrangements. Layers of paper petals make these flowers come to life, and adding a few sprays of color will completely transform these paper flowers into amazing works of art.
- White cardstock
- 6 leaves punch or die
- Shape scissors
- Two colors sprays
- Distress ink
Assemblage Rose
- Punch three flowers from white cardstock.
- Color three flowers with two colors of sprays on both sides. Rub gently on work surface to blend the colors. Dry completely with heat tool.
Prepare the Flowers
- First flower: make a slit to the center.
- Second flower: cut out one petal with two cuts to the center.
- Third flower: cut two petals out with two cuts to the center.
Assemble Layers of the Rose
- First layer: roll the single cut petal and secure with glue.
- Second layer: roll the two cut petals and secure with glue.
- Third layer: glue the 4 petals flowers together by closing the flower and attaching the two outside petals to each other.
- Fourth layer: glue the 5 petals flowers together by closing the flower and attaching the two outside petals to each other.
- Fifth layer: glue the 6 petals flowers together by closing the flower and attaching the two outside petals to each other.
Assemble the Flower
- Glue the layers together starting from the outside layer (fifth layer).
- Ink the edges of the rose and curl the petals a little.
Spiral Rose
- Cut a 4" X 4" square from white card stock.
- Spray both sides of the square with two colors sprays. Rub gently on work surface to blend the colors. Dry completely with a heat tool.
- Cut the square into a circle with shape scissors.
- Cut a spiral with shape scissors from the circle starting from the outside going to the center.
- Roll the spiral starting from the outer edge.
- Secure the rolled flower with glue.
- Ink the edges of the flower.
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nlewis5104 3554485
Apr 05, 2014
this is a very lovely rose but i think the instructions could have been told a little bit better or showed how to do it.
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We're sorry, this listing is off the market. Try these listings instead:
For Sale - Conference Owner & Producer #455551 posted Oct 9, 2016
- Australia
The Business is involved in the creation and ownership of a number of industry leading conferences which are held annually including: • Establishing, marketing and promoting the conference including websites and social media; • Developing the conference program including identification and sourcing...
Leading Hydraulic, Plumbing and Fire Consultancy #457023 posted Nov 1, 2016
- Brisbane, Queensland, Australia
- Between $744,491 and $1,488,982 (Converted from AUD)
A unique opportunity exists to acquire a leading Australian Hydraulic Engineering Consultancy with an enviable reputation and high repeat business from a blue chip client base. Since inception in the early 90's, the business has grown to become the first choice for hydraulic engineering design and...
Specialised Equipment Hire #457024 posted Nov 1, 2016
- Gold Coast, Queensland, Australia
- Between $11,167,365 and $14,889,820 (Converted from AUD)
Established 2009 a privately owned and operated company specialising in hire of Commercial Concrete Pumping Equipment, with operators, and is based in Queensland covering from the Gold Coast to the Sunshine Coast. The company focuses particularly on hiring concrete pumping equipment to major construction...
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Event: Farhan Akhtar, Sonam Kapoor, filmmaker, Rakeysh Omprakash Mehra and Milkha Singh were present at the trailer and music launch of their film BHAAG MILKHA BHAAG.
Guest List: Farhan Akhtar, Sonam Kapoor, Rakeysh Omprakash Mehra, Milkha Singh
Sizzling HOT Bollywood actress Sonam Kapoor was snapped at the airport.
Cricketer Virat Kohli and Bollywood actress Anushka Sharma were snapped at the airport. Also spotted was legendry lyrist Javed Akhtar.
Bollywood celebs Amitabh Bachchan, Sushant Singh Rajput, Karan Johar, Rajkummar Rao, Aditya Roy Kapur, Saif Ali Khan among others were snapped at the airport.
Bollywood actor John Abraham was snapped at the unveiling of 2017 Nissan GT-R.
Bollywood celebs Abhishek Bachchan, Farah Khan, Sajid Khan, Kayoze Irani, Rajkumar Hirani among others were seen at Boman Irani's birthday bash.


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The European Agency for the Evaluation of Medicinal Products
The European Agency for the Evaluation of Medicinal Products
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Hello fellow #investors! I am a real estate #wholesaler in the San Antonio, TX area. However, I have at least two buyers on my list that will evaluate any deal anywhere (thus making them nationwide buyers). 'Buyer A' pays a $10,000 #assignment fee as long as criteria are met. Basically he wants to see a $100,000 net #profit potential as well as 15% ROI. He is willing to do any form of #rehab and will purchase as many properties as we could bring him. He will evaluate any deal anywhere! He resides in Illinois.
- Jun 12, 2011 2011-06-12 14:01:22
- Salisbury, NC


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"Chinese Quarter" Mauritius Things to Do Tip by grets
Mauritius Things to Do: 444 reviews and 1,001 photos
A colourful part of town, albeit a little tatty and in need of modernisation, at least the buildings here had a little bit of character about them. Lots of fun little Chinese shops.
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YSN is lucky to have an audience of motivated, ambitious, career-minded people – many of whom are young and have long amazing professional lives ahead of them. A lot of these go-getters are entrepreneurial in spirit and will one day, if not already, own their own business. Earlier this year I founded my own company, Earbits.com, which will be launching in a few weeks. I want to share some of my experiences about how to get the most out of the resources you have. We are building a world class marketing platform and have gotten incredibly far on very little money. This is the first in a short series on how to be resourceful in starting a business.
Understanding Opportunity Cost
One of the most important lessons I ever learned in business is understanding opportunity cost. In the early stages of a business, you usually have a small team of people, hopefully with different and complementary skills. Knowing how to task these people is paramount to your success.
Hopefully, you've picked a business with a lot of different ways to make money, ways to get customers, ways to minimize expenses, etc. Your job as owner of the company is to look at all of the possibilities and opportunities available to your company and decide which ones are the most important, and whom to give each of these jobs. The same goes for managing a department, if you are not the business owner but are in charge of a team.
In a previous company I started, we had a significant amount of administrative work that needed to be done to update the content on our website. We had little money in the bank for hiring anybody and it seemed hard to justify hiring someone to do something that my partner and I could do ourselves. Why pay someone $10 per hour for 100 hours of work, when I can do the work myself for free? But, when you consider the other opportunities and tasks that we could be doing, such as sales calls, you start to look at the math differently.
If I can make 15 calls per hour and get one sale every 45 calls, that's one sale every 3 hours. If a sale to my company is worth $230, every hour I spend on the phone earns us about $77. So, while hiring someone to make site updates costs us $10 per hour, doing it myself is actually costing us $77 in missed revenue! In that case, paying someone $10 an hour to free myself up for sales calls is by far the best decision, even if the money you have is limited.
The same thing goes for analyzing not just who should do a particular task, but which task a person should do if there is only time for one. Take another sales example: If calling one type of client usually results in one sale every 45 calls, but another type of prospect closes once every 35 calls, the 2nd seems like a better use of time – unless of course, the value of the first sale is $230 and the value of the 2nd is only $120. You have to understand these issues and make the best decision every time.
The same types of decisions go for which partnerships to accept, which to prioritize with your development team, and more. Let's say you have three deals on the table, one is for a big client and pays $21,000, but would require your development team working on nothing else for 6 weeks. At the same time, you have 2 smaller deals that pay about $8,000 each and only require 2 weeks of work total. Perhaps the best thing to do is to knock out these two smaller deals first, and then move on to the bigger task. It's hard to pass on bigger deals, but you have to make the very best decisions about how to use your resources.
Understanding the metrics surrounding your various opportunities and making the absolute best use of your team is crucial to every business. As the leader of your team or company, your job is to look at these opportunities and make the right decisions. One great way to get help with that is to have strong advisors – people who have done what you're doing or something similar before, and asking them for guidance. There is no reason to do everything yourself, particularly if you can speed things up by asking for help.
Next time, we'll talk about how to get advisors, and much more. Talk to you soon
Joey Flores is CEO of Earbits.com – an online streaming radio and music marketing platform.


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Winner of numerous awards, voted Jazz Vocalist of the Year three times running.
This talented jazz vocalist and songwriter, whose influences range from Ella Fitzgerald to Cole Porter and Noel Coward, is '...one of the best vocal talents to emerge from the UK in a long, long while' (Michael Parkinson).
Clare won British Jazz Singer of the year in both 2005 and 2007, and BBC Jazz Singer Of The Year 2006.
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The Chicago Spire, a building designed by superstar architect Santiago Calatrava, is poised to become North America's tallest free-standing structure and the world's tallest all-residential building when it is completed in 2011. When the developers officially unveiled the project last September, their presentation included a slick five-minute animated promo. Pushing far beyond typical animated architectural renderings, the developers enlisted vfx houses Lightstream Pictures and Sony Imageworks to create a feature film-style piece complete with dramatic staging and lighting. A portion of the film can be seen on the building's website, TheChicagoSpire.com, and a video about the building with a few more animation clips can be seen on YouTube. It just goes to show that there's no product or idea that can't benefit from some well conceived animation.
Animating The Chicago Spire
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American Pit Bull Terrier
Kaiah is a very happy girl, she loves fruit and veggies, walks and especially hugs and cuddles.
She does not like her toe nails cut, but she does like to go to work with her dad. She tries to get along with the kitty, but the kitty is kind of grouchy. She makes my day every day.


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June 23, 1989
542 N.E.2d 392, 185 Ill. App. 3d 751, 134 Ill. Dec. 213 1989.IL.978
Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.
APPELLATE Judges:
JUSTICE McNAMARA delivered the opinion of the court. QUINLAN and LaPORTA, JJ., concur.
Following a jury trial, defendant Vincent Stiff was convicted of aggravated criminal sexual assault and aggravated battery. The trial court sentenced him to a term of 23 years' imprisonment. No sentence was imposed for the charge of aggravated battery. Defendant appeals, contending that the trial court improperly limited testimony regarding the victim's use of drugs; that prosecutorial remarks were prejudicial; and that his conviction for aggravated battery should be vacated where it was a lesser included offense of aggravated criminal sexual assault based on bodily harm.
The victim testified that on June 6, 1985, shortly after midnight, she drove to a game room where she played pool and looked for a friend, Willie. She saw defendant, whom she denied knowing, with several other men and heard him being called "Flavor." When the victim left the game room and walked across the street to her car, defendant approached her, grabbed the keys, pushed her into the car, and drove away. As she struggled, defendant struck her in the face with his fist, saying that he would take her to Willie. He parked the car and forced the victim into an abandoned building, repeatedly striking her in the face. Defendant raped the victim, as he held her down and continued to beat her. Defendant apologized, drove her back to the game room, and exited the car.
The victim testified that she drove for one block, stopped a police car, and reported that she had just been raped and beaten. Officer Quintin Black returned with her to the abandoned building, where they found her wallet, which she had not realized was missing. The victim was then treated at the hospital for her injuries. The victim identified defendant's photograph in a mug book and later identified him in a lineup.
Officer Gregory Baiocchi testified that he met Black and the victim at the abandoned building on June 6, 1985, where he saw fresh blood on the remnants of a hide-a-bed.
Officer Black testified that at 3 a.m. on June 6, 1985, the victim stopped his squad car. She was crying and there was blood around her mouth. They went to the abandoned building, which was filled with debris and animal excrement. The victim's wallet was lying on the floor.
Dr. Barbara Robinson testified that on June 6 she examined the victim at the hospital. The victim was in a great deal of pain. She had suffered a fractured nose, perforated right eardrum, blackened right eye, cut lip, other facial lacerations, a sprained left ankle, and decreased range of motion in her neck and right arm. The vaginal vault held a large amount of white fluid and blood which did not result from menstruation. There was a tear at the base of the vaginal opening and blood, indicating forced intercourse. On cross-examination, Dr. Robinson emphasized that the vaginal abrasion was inconsistent with consenting intercourse, particularly where the victim had vaginally delivered two children.
Officer Lawrence Fenlon testified that the victim made the photographic identification. She said that defendant's name was "Little Vince" and gave him defendant's telephone number, which somebody had given her.
Officer Richard Rybicki testified that on June 25, 1985, he approached defendant on the street. Defendant ran, and Rybicki chased and apprehended him.
Mary Baker and Jenevae Sawyer testified for defendant that they had seen the victim and defendant together in the neighborhood. They did not know the victim personally.
Willie Bolden testified for defendant that he had planned to meet the victim at the game room on June 5 at 11:30 p.m. but she did not arrive. The court sustained the State's objections to questions of Bolden regarding whether he had ever used narcotics with the victim and whether he had ever had sex with her.
Defendant testified that at 11:30 p.m. on June 5 he saw the victim, who used to be his girlfriend. They argued, and he slapped her. Shortly thereafter, the victim offered him a ride. They drove to his cousin's apartment, where they drank champagne, watched a movie and had sex. The victim was high on crack. She dropped defendant off shortly after midnight. The court sustained the State's objections to defense counsel's questions regarding whether defendant could remember any other times when the victim appeared high.
On cross-examination, defendant testified that he first met the victim in summer 1984, when she was looking for crack. He helped her buy some crack. When he saw the victim on the night of June 5 she was not injured. He denied seeing her on June 6 and denied causing her injuries.
In rebuttal, the State introduced evidence of defendant's two prior robbery convictions.
Defendant first contends that the trial court improperly prevented the introduction of evidence showing the victim used narcotics. On direct examination, defendant was asked whether he had ever gotten high with her. The court sustained an objection as to foundation. Defendant then testified that he had seen the victim use narcotics on some occasion. Asked when, defendant replied, "The first night I met her." The trial court sustained an objection as to relevancy, struck the answer and instructed the jury to disregard the question and answer.
In addition, Bolden was asked whether he used narcotics with the victim at their first meeting, three days before the rape. The court sustained objections, struck the affirmative answer, and instructed the jury to disregard it. Defendant now complains that evidence of the victim's use of narcotics on the night of the offense was vital to her ability to observe, recall and accurately report events, and that the impact of general drug use would affect her overall truthfulness and credibility. Defendant concedes that no offer of proof was made at trial, but maintains that the "details" can be brought out in a new trial.
Notwithstanding the failure to object at trial or include the issue in his post-trial motions (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), and the failure to introduce an offer of proof (see People v. Stalions (1986), 139 Ill. App. 3d 1033, 488 N.E.2d 297), we will address the issue. While evidence that a witness used drugs at or near the time of the crime may show an impaired ability to observe, recollect and narrate (People v. Castiglione (1986), 150 Ill. App. 3d 459, 501 N.E.2d 923), in the present case the stricken questions and answers did not focus on the victim's use of drugs at or near the time of the offense and therefore were improper. (See People v. Castiglione (1986), 150 Ill. App. 3d 459, 501 N.E.2d 923.) We find no abuse of discretion in the trial court's decision to limit this area of cross-examination. Moreover, as to the victim's use of drugs on the night of the offense, the court properly permitted testimony from her that she used no drugs that night and testimony from defendant that the victim did use crack that night.
Defendant's reliance on People v. Stalions is misplaced. In Stalions, this court held that it was improper to restrict cross-examination regarding the witness' glue-sniffing habit where an offer of proof showed the habit had lasted three years and may have affected her mental processes. No such suggestion or offer of proof was presented here which might place this case in a factual setting similar to Stalions.
Defendant next contends that prosecutorial comments in rebuttal closing argument distorted the evidence and unfairly attacked the defense. A prosecutor is allowed a great deal of latitude in closing arguments, and absent a clear abuse of discretion, the trial court's determination as to the propriety of the argument will be followed. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) The prosecutor argued here:
"PROSECUTOR: . . . [There] is no culture that accepts this, that tolerates this. None that I know of.
Ladies and gentlemen, defendant is surrounded by guilt. He has nowhere to go so he decides to kick out and lash out at the police and kick out and lash out --
DEFENSE COUNSEL: Objection, Judge.
PROSECUTOR: -- at [the victim] --
THE COURT: Overruled.
PROSECUTOR: -- because he is stuck, he is trapped because the defense would have you believe that everybody lied here. Everybody made this up."
These comments were supported by the evidence of defendant's flight from the arresting police officer, the victim's and Dr. Robinson's evidence of the injuries suffered, and defendant's admission that he struck the victim. The comments were not improper.
Defendant complains of prosecutorial argument that the case was "about freedom to go out at night"; "freedom to visit whoever you want to see"; "freedoms to shoot a game of pool, be with friends"; and "those such as the defendant who would take away those kinds of freedoms so he can satisfy his own dirty, filthy, selfish needs." A prosecutor may comment on the evils of crime, denounce the accused, and urge the fearless administration of Justice. People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467; People v. Grover (1983), 116 Ill. App. 3d 116, 451 N.E.2d 587.
Defendant also complains of the prosecutor's statements that defendant could not remember when he first met the victim and that defendant gave two different stories, first saying he was going to help her buy crack and then later saying he was taking her to visit her aunt. Defendant testified on cross- and re-cross-examination that he met the victim outside a pool hall when she was looking for "happy sticks." He drove her to a place where she bought some crack and smoked it. The victim then asked defendant to drop her off at the hospital to visit her aunt. On recross, the prosecutor insisted, "Didn't you just testify two minutes ago that you met her because she wanted to buy happy sticks?" Defendant again stated: "That's when I first met her. . . . She was looking for a stick. She smoked the stick, she said, 'Would you drop me off at the hospital? My auntie down there.' I say, 'Yeah, I drop you off.'" Thus, defendant did not offer two contradicting stories of their first meeting.
It is improper for a prosecutor to misstate the evidence. However, no reversal is necessary here where the issue of whether defendant drove the victim to see her aunt in the hospital was not a material factor in defendant's conviction, particularly where he was able to testify about the victim's alleged use of drugs on that first meeting. See People v. McKnight (1979), 72 Ill. App. 3d 136, 390 N.E.2d 379.
The prosecutor also commented that a person who has been convicted of a felony does not have respect for telling the truth. The prosecutor is permitted to refer to defendant's prior conviction in regard to defendant's credibility. People v. Smith (1980), 88 Ill. App. 3d 897, 410 N.E.2d 973.
In regard to the characterization of defendant as a liar, we have held that it is improper to charge a defendant with lying only where there is no basis for that charge in the record. (See People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467; People v. Strange (1984), 125 Ill. App. 3d 43, 465 N.E.2d 616.) There was some basis in the record for the charge. Defendant admitted striking the victim and then later having consenting sex with her, yet denied causing her the injuries. Her testimony, with corroboration from that of the police officers, evidence at the abandoned building, and the medical evidence, established the contrary. Furthermore, these arguments were made in rebuttal in response to defense counsel's repeated accusations in closing argument that the victim lied when she testified. (See People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) Moreover, if the comments were improper, we believe that the trial court's instruction to the jury to disregard any misstatement of the evidence makes reversal unwarranted. See People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285., Defendant complains that the prosecutor unfairly attacked defense witnesses and accused defense counsel of fabricating a defense in the following comment:
"PROSECUTOR: You heard the solid, credible, believable testimony from [the victim] and the police officers who investigated. And then you heard about the story from all the defense witnesses. The ladies in the neighborhood. I don't want to go through the testimony with you because you listened. You saw what they had to say. Needless to say, they are friends of the family. They want to help out [defendant's family]."
The prosecutor may comment on the credibility of the witnesses. (People v. Thomas (1988), 172 Ill. App. 3d 172, 526 N.E.2d 467.) We find no error here.
We conclude that, taken as a whole, the entire record, including closing arguments, establishes that the prosecutorial comments at issue did not improperly prejudice defendant or require reversal. Moreover, proper jury instructions were given to disregard argument not based on the evidence and to consider only the evidence presented to the jury. See People v. Perez (1983), 113 Ill. App. 3d 143, 446 N.E.2d 1229.
Defendant finally contends that he was improperly convicted of aggravated battery since it was a lesser included offense of aggravated criminal sexual assault, and the State agrees. The conviction for aggravated battery must be vacated. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.) We find it unnecessary to remand for resentencing. There is no indication that the vacated conviction was considered in sentencing defendant for the aggravated criminal sexual assault conviction. (See People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1; People v Johnson (1987), 161 Ill. App. 3d 551, 515 N.E.2d 173; People v. Hines (1982), 105 Ill. App. 3d 35, 433 N.E.2d 1137.) The 23-year sentence falls within the maximum 30-year sentence permitted for Class X felonies and was proper in view of the particularly brutal nature of the attack, the serious injuries suffered by the victim, and the fact that defendant has been convicted of robbery twice. We find no abuse of discretion.
Accordingly, the judgment of conviction for aggravated criminal sexual assault is affirmed. The judgment of conviction for aggravated battery is vacated.
Affirmed in part, vacated in part.
Affirmed in part and vacated in part.
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Spokane area students place in DECA competition - Thu, 18 Dec 2014 PST
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In Reply Dr Sistermans and colleagues recommend that NIPT results of autosomal monosomy not be reported to the patient. First, it is the Illumina clinical laboratory's policy to report all NIPT results directly to the submitting laboratory or referring health care clinician, not the patient. Second, we think there is clinical utility in reporting autosomal monosomy. In response to the letter, we reviewed a clinical database containing more than 113 000 sequential cases and found 65 reported cases (0.06%) of single autosomal monosomy. We have follow-up clinical or karyotype information on 27 cases (41.5%).
Halks-Miller M, Chudova D, Bianchi DW. Maternal Malignancies Detected With Noninvasive Prenatal Testing—Reply. JAMA. 2015;314(20):2192-2193. doi:10.1001/jama.2015.12925
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ever so clear lyrics – bushwick bill
see, most of my life i never had sh*t
i felt like an outcast, treated like a misfit
d*mn near didn't make it on my day of birth
thinking was i really supposed to be on this planet earth
i take a deep breath, and then another follows
cos hardship is kinda hard to swallow
see, it's rough bein a loner
not knowin any given day and time i could wind up a goner
see, people got it bad from jump street
and bein short is just another strike against me
i used to get funny looks cos i was small
and tryin to make it was like runnin through a brick wall
given the odds i was up against, bro
the average n*gg* woulda quit a long time ago
but now i've got a record out
i'm doin shows, people payin to see me turn it out
now i'm the spice around town
it's funny how an alb*m can change a n*gg*'s life around
i got friends and b*tches on my d*ck
but when they look at richard all they see is bushwick
sometimes i don't know a friend from a foe
and every different day it's a different f*ckin hoe
and now that my pockets are gettin bigger
i'm meetin hoes who only wanna juice a n*gg*
they tell me that they love me and all that
but really they just wait for me to fall flat
so they can get me for my income
take me for all i got, and then some
like trina, you dig
i f*cked up and got too attached to the b*tch's kid
knowin that she used the baby to use me
took him out my life, mentally abusin me
but as the time went by i got another slimmy
and she was just like the first one screamin gimme
but not in the exact same way
she had a different type of game she liked to play
her name was crystal, she played the quiet type
and for a little while sh*t seemed alright
but just like the first hoe, homie
when sh*t got hectic the b*tch broke out on me
and it's gettin outta hand, gee
cos n*body seems to understand me
reminiscin got me feelin kinda low
i broke out the ever-clear and then i drunk some mo'
until it was all gone
now i'm lookin for somebody to take my pain out on
but not just anybody, gee
i'ma take that on to mica cos she's the closest to me
full of that ever-clear and high on that buddah
get to the house all i'm thinkin bout is shootin her
cos shootin her would be sweet
but you know what'd be sweeter? if i make her shootin me
call me crazy, but that's what i'm thinkin
i'm trippin from all that smokin weed and drinkin
but i knew she wouldn't do it on her own, so i provoked her
punched her, kicked her, and chocked her
she still wouldn't grab the gun
and at that time i wasn't thinkin about no one
d*mn near crazy i went and grabbed the baby
held him by the door and said i'ma throw his *ss out, hoe
she went to cryin, somebody stop him
i said: you better grab the m*th*f*ckin gun or i'ma drop him
she sn*tched the baby out of my hands
we started fighting, punching, scratching, and biting
when we fell on the bed, check this sh*t
all kinds of crazy sh*t was goin through my head
so i ran and got the gun and came back to her
loaded it up and handed the gat to her
i grabbed her hand and placed the gun to my eye muscle
she screamed stop and then we broke into another tussle
yo, durin the fight the gun went off quick
d*mn! aw sh*t, i'm hit
(aw… my eye, i can't see
why you shot me in the eye?
i woulda shot you in the body
why you shot me in the eye?)
ridin in the ambulance everything is hectic
i can't get a grip, i just can't check this
everybody's cryin, could it be i'm dyin
bullet in my head, in the bed was lyin
where's mica? i wanna tell her i love her
with an [ ] in my arm i took a picture for an alb*m cover
godd*mn, the sh*t's a trip, gee
five different doctors with needles tryin to stick me
i hear my family hollerin he needs us
durin the confusion, man, i seen jesus
my mom's on the phone long-distance from new york
here comes the doctors again tryin to rip me apart
i got a monkey on my back, i can't shake it
i'm havin suicidal thoughts hopin that i don't make it
but i'ma make it cos something's steady urgin me
five hours p*ssed, i made it through surgery
and the doctor said i wouldn't make it through the night
but god told me everything is gonna be alright
and i'm glad that i'm here, gee
but it's f*cked up i had to lose an eye to see sh*t clearly
aw man, i made it
i made it
and everyone gets to hear my story
i made it
but don't try this at your home
learn from my mistakes
kick the beat in, bido
- c'mon all my niggas, c'mon all my bitches lyrics – busta rhymes / busta rhymes lyrics
- dangerous lyrics – busta rhymes / busta rhymes lyrics
- do it to death lyrics – busta rhymes / busta rhymes lyrics
- do my thing lyrics – busta rhymes / busta rhymes lyrics
- do the bus a bus lyrics – busta rhymes / busta rhymes lyrics


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