Free Objection - District Court of Arizona - Arizona

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Burton M. Bentley, Esq. (Bar No. 00980) BURTON M. BENTLEY, P.C. 5343 North 16th Street, Suite 480 Phoenix, Arizona 85016 (602) 861-3055 (602) 861-3230 fax Attorney for Defendants IN THE UNITED STATES DISTRICT COURT

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IN THE DISTRICT OF ARIZONA LAWRENCE J. WARFIELD, RECEIVER, Plaintiff, vs. MICHAEL ALANIZ, et al. Defendants. CAUSE NO. CIV'03 2390 PHX JAT

DEFENDANTS' OBJECTIONS TO NOTICE OF LODGING PLAINTIFF'S REVISED PROPOSED FORM OF VERDICT
(Assigned to Hon. James A. Teilborg)

Defendants, by and through counsel undersigned, hereby file their Objections to Notice of Lodging Plaintiff's Revised Proposed Form of Verdict as follows:

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1.

Breach of Fiduciary Duty 1.1. 1.2 1.3 1.4 Objection: Fiduciary duty issue has been abandoned by the Receiver. Omit, Fiduciary Duty issue has been abandoned by the Receiver. Omit, Fiduciary Duty issue has been abandoned by the Receiver. Omit.

2.

Constructive Fraud 2.1 Objection: A confidential relationship cannot exist if there is no

fiduciary duty and that issue has been abandoned by the Receiver.

Case 2:03-cv-02390-JAT

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2.2

Insert "of all relevant facts known to him" between the word "facts"

and the word "related", third line. 2.3 3. Omit.

Negligence 3.1 Objection: The use of the term "non-negligently" is misleading.

Each defendant was required to act as an ordinary, prudent reasonable sales person under the same or similar circumstances in determining the suitability of a Charitable Gift Annuity for the persons who bought them. 3.2 3.4 4. Redundant. Omit.

Securities Fraud (Federal) 4.1 Objection: Must be more specific as to how defendants would have

violated securities laws, the Form of Verdict should read as follows: For each defendant below, do you find y a preponderance of the evidence that the defendant acted with intent to defraud his customers or with such recklessness as to the facts, that it amounted to fraud under § 10(b) and Rule 10b-5 of the '34 Exchange Act? 4.2 5. Omit.

Securities Fraud (State) 5.1 Objection: Should be more specific as to which state securities law

may have been violated, edit second sentence to read: that the defendant violated A. R. S. § 1991, only. 5.2 6. Omit.

Fraudulent Transfer 6.1 Objection: The form of verdict is a misstatement of the law and is

misleading to the jury.
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6.2

Objection:

The Defendants' burden of proof for the affirmative

defense of good faith is not by "clear and satisfactory evidence". 6.3 Objection: The Defendants' burden of proof for the affirmative

defense of reasonable value is not by "clear and satisfactory evidence". 6.4 6.5 7. Omit. Omit.

Conversion 7.1 Objection: The form of verdict should be more specific to read as

follows: For each defendant below, do you find my a preponderance of the evidence that the defendant converted property of Mid-America annuitants that purchased a Charitable Gift Annuity through such defendants by wrongfully exerting dominion or control over such property in denial of or inconsistent with the annuitant's rights in such property. 7.2 8. Omit.

Equitable Disgorgement 8.1 Objection: The form of verdict should be more specific to read as

follows: For each defendant below, do you find by clear and convincing evidence that the defendant has been unjustly enriched by monies that were unlawfully transferred to him from Mid-America Foundation, Inc. and/or MidAmerica Financial Group, Inc.? 8.2 /// /// Omit.

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Dated at Phoenix, Arizona this 13th day of February, 2007. BURTON M. BENTLEY, P.C.

_s/ Burton M. Bentley Burton M. Bentley Attorney for Defendants

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PROOF OF SERVICE
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On February 13, 2007, a true copy of the foregoing is being served on
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following persons by hand-delivery:

_/s/___Burton M. Bentley Burton M. Bentley Ryan W. Anderson, Esq. Guttilla & Murphy, PC Attorneys for the Receiver CM/ECF Registered Steve A. Bryant 3618 Mt. Vernon, # A Houston, TX 77006-4238 Co-Counsel for Rada Defendants

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