Free Motion to Vacate - District Court of Arizona - Arizona

1 2 3 4

Grant H. Goodman, State Bar #009463 GRANT H.thGOODMAN, PLLC 4156 N. 49 Street Phoenix AZ 85018 Phone: (602) 840-2393 [email protected] Attorney for Plaintiffs

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 1 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Case No. CV-03-01587-JAT ) ) FIRST VERIFIED CONSOLIDATED ) INDEPENDENT ACTION ) ) ) Fed.R.Civ.P. 60 INDEPENDENT ACTION ) TO VACATE JUDGMENT; Fed.R.Civ.P ) Plaintiffs, 65(a)(1)(2); INJUNCTIVE RELIEF ) ) vs. ) ) GENERAL ELECTRIC CAPITAL CORP., as successor-in-interest, for and on ) behalf of, CITICAPITAL TECHNOLOGY ) ) FINANCE CORP., CITICAPITAL ) LEASING CORP., et al., ) & ) LEWIS & ROCA, LLP; THE LAW OFFICES OF DAVID N. INGRASSIA, ) ) P.C., DAVID M. REAVES, ESQ., TRUSTEE; MICHAEL W. CARMEL, ) ESQ., TRUSTEE'S SPECIAL COUNSEL, ) ) ) Defendants. ) ) ) ) ) ) ) GRANT H. GOODMAN and TERI B. GOODMAN, husband and wife, (as Guarantors-Sureties for GTI Capital Holdings, LLC, G.H. Goodman Invest. Co., LLC (Arizona limited liability companies); West Highland Water & Power, LLC (a Delaware limited liability company);

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 1 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Plaintiffs, for their First Verified Independent Action, and application for Injunctive Relief against defendants, state: Parties, Jurisdiction & Venue 1. Jurisdiction before this Court is authorized under Fed.R.Civ.P. 60(b),

60(b)(3)(4)(5), and 60(b) (Independent Action-Savings Clause). Defendants have "appeared" and accepted jurisdiction within the Arizona Federal District Court in the above referenced action. Jurisdiction over the parties and law firms is specifically authorized under Rule 60(b) (Independent Action), Fed.R.Civ.P. 65. The complainants state; (1) that the underlying judgment from which this cause of action arises, was (and is) void, as a matter of law, having issued during the pendency of defendants' collective claim/issue preclusive conduct. Defendants' post-judgment waivers arose out of conduct, contracts, agreements, and issue-claim preclusive Arizona Bankruptcy Court (Hon. Sarah S. Curley) preemptive Orders, Judgments, Decrees, Memorandum Decisions, and Findings of Fact and Law. Judicial Notice of the various Bankruptcy Dockets affecting this case includes, but is not limited to: a) the "claims docket" (CitiCapital/General Electric Capital Corp.); b) Adversary Proceeding No. 07-00031 (Reaves v. Comerica Bank); c) jointly administered GTI/G.H. Goodman Invest. Co., Nos. 03-07923-SSC through 03-07924-SSC. 2. The Bankruptcy Court has acted in its original and exclusive jurisdictional

capacity to address "core" proceedings. The Bankruptcy Court issued approximately sixty-five (65) pages, of signed and entered Judgments (March 11-17, 2008), Amended Judgments (April 7, 2008), Orders incorporating Memorandum Decisions detailing Comerica Bank's Fraud on the Court, by Officers of the Court (August 30, 2007) surrounding a "compromise and settlement" of all creditor "Proof of Claim" compromises brought before the bankruptcy court by GTI estate fiduciaries, March 11,

- 2 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 2 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

2008. The court is requested to judicially notice: (1) Judge Curley's Memorandum Decision; Findings of Fact and Conclusions of Law, and Order incorporating same (August 30, 2007)-(appended); (2) June 13th, 2007, Official Reporter's Transcript of Proceedings (appended)-(oral argument on fraud-equitable subordination-bad faith complaint against Comerica Bank, its counsel, Greenberg Traurig, LLP, by the Trustee, Trustee's Special Counsel, on behalf of all creditors, unsecured, and secured alike, as the precursor for the Court's August 30, 2007 Memorandum Decision); (3) March 11, 2008 Official Reporter's Transcript of Proceedings (appended) on Trustee-Comerica BankGreenberg Traurig, LLP full and final settlement, release, and compromise of all nonobjecting creditor claims arising out of Adversary Proceeding (07-00031-SSC); (4) February 20, 2008 mediation and stipulated settlement and release of all creditor damage claims, official reporter's transcript (appended); (5) complainants confirmatory email and record of notice to defendants that the Goodman individuals, marital community, guarantors, and Goodman controlled creditors of the estates were not settling, compromising, or waiving their entitlement to damages, but that all other consenting creditors were. (Appended); and (6) plaintiffs' Motion for En Banc Rehearing to the 9th Circuit. 3. Estate fiduciaries (Trustee, David M. Reaves, Esq., and the Trustee's

Special Counsel, Michael W. Carmel, Ltd.) were, by law, statute, Code, and Rule, acting for and on behalf of non-objecting creditors, jointly and severally, and specifically for GE/CitiCapital in negotiation of a full and final compromise, release, and settlement, of all creditor damage claims including release and settlement of all damage claims arising under the judgment here. 4. Defendants' endorsed, approved, ratified, knowingly, voluntarily, and

intelligently waived their rights to contest, in a trial/hearing on the merits, with notice and

- 3 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 3 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

motivation to secure all claimed damages against Comerica Bank, opting for a "gleeful" (See, appended hearing transcript 3.11.2008) "Compromise, Settlement, and Release" of all claimed damage, (including all secondary obligor-guarantor claims, which were matured, known, unknown, or inchoate) of any kind or nature, "...forever...." (See, appended Compromise Agreements) in a "core" bankruptcy proceeding. 5. Defendants' "rules of engagement" with their joint defense partners

Comerica Bank-Greenberg Traurig, LLP, resulted in the extinguishment of all defendants' claimed damage, through defendants consensual agreement with estate fiduciaries Reaves and Carmel (on behalf of the estates and all non-objecting creditors i.e., GE/Citi). 6. Plaintiffs, and other entities controlled by the Goodman's as creditors to the

estates have claims totaling over $4,000,000.00. The Goodman's and Goodman entities objected to the compromise and settlement, engaged the litigation process, and are seeking exemption to the compromise to address the $4,000,000.00 deficiency owed the plaintiff creditors by Comerica Bank, and the estates. Damages unrelated to plaintiff claims brought outside of the bankruptcy process have not been entertained by the Bankruptcy Court, were never asserted or assertable before the Bankruptcy Court, and such proceedings, whether State or Federal, are specifically reserved and specifically not a part of these proceedings to vacate the judgment against the plaintiff guarantors. 7. This Independent Action seeks, on the grounds of res judicata, collateral

and judicial estoppel, (issue-claim preclusion), merger, federal complete and total preemption, comity, and full faith and credit principles; extinguishment, vacatur, and nullification, nunc pro tunc, of judgment obtained against the Goodman's in their capacities as guarantors or sureties by these defendants. Rivet v. Regions Bank, 522 U.S. 470, 118 S.Ct. 921 (1998); In re Gruntz, 202 F.3d 1074 (9th Cir. 2000); Nathanson v.

- 4 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 4 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Hecker, 99 Cal.App.4th 1158, 121 Cal. Rptr. 2d 773 (Cal.App. 2002); Siegel v. The Fed. Home Loan Mtg. Corp., 143 F.3d 525 (9th Cir. 1998); In re McGhan, 288 F.3d 1172 (9th Cir. 2002). 8. The Independent Action also seeks enforcement of the "second

judgment(s)". Rest. (Second) of Judgments § 15, cmt. (b); Valley National Bank v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997); Robi v. Five Platters, Inc., 838 F.2d 318, 328 (9th Cir. 1988). The res judicata effect of defendants' conduct and agreements arising in, or out of, "core" bankruptcy proceedings results in preemptive issue/claim preclusive judgments, orders, and findings against them. The preemptive bankruptcy judgments, orders, and decrees nullify all prior judgments, orders, and collection proceedings (which are ongoing and are resulting in irreparable damage to the guarantors) dealing with the same subject matter, same damages, same contracts, and identical issues, by the same parties, those in privity, and even those not in privity, but who have had reasonable notice and opportunity to intervene, object, and be heard in the Bankruptcy preemptive claim and issue preclusive orders, judgments, proceedings, and hearings of record. 9. Defendants' admissions against interest are recorded in Official Reporter's

Transcript(s) of Proceeding(s) of June 13, 2008 (Fraud/Equitable Subordination against Comerica Bank/Greenberg Traurig, LLP); March 11, 2008 ("Compromise" hearing); February 20, 2008 (on the record "mediation", and defendants intent in providing a $325,000.00 direct cash payment to estate fiduciary lawyer (not the estates), Michael W. Carmel, Ltd., from Comerica Bank/Greenberg Traurig, LLP [for approximately 100 hours of "summarized" work product w/o depositions, discovery, etc.] in exchange for a "full and final" release of all fraud claims brought by the estates, defendants, and each of them, through David N. Ingrassia, P.C., and Susan Freeman of Lewis & Roca, LLP, as

- 5 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 5 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

defendants' GE/CitiCapital counsel of record in the bankruptcy proceedings, and on appeal relative to the same collection efforts. 10. The defendant lawyers (law firms) and entities are proper parties under this

Independent Action for fraud upon the court by officers of the court, and are indispensible parties to the injunctive proceedings. All parties, and their lawyers, have consented to jurisdiction in this court and all defendants have entered appearances, proffered testimony and "evidence", and actively litigated the underlying judgments, and collection efforts rendered moot and void by the bankruptcy court judgments. 11. The Independent Action is a direct attack upon the judgments, and not a re-

litigation of the contract issues underlying the prior adjudication. Nevada VTN, v. Gen. Ins. Co. of America, 834 F.2d 770 (9th Cir. 1987). A party engaging in fraudulent conduct in obtaining a judgment may not contest the viability of the Independent Action, though arising out of contract. Id. See, Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62 (1891); Root Refining Co., v. Universal Oil Products, 169 F.2d 514, (D.C. Cir. 1948) (trial counsel relationship of long standing to judge undisclosed to litigants; retention of counsel or invocation of counsel's name long associated and undisclosed by court subject judgment to set aside under Independent Action; court's undisclosed future association with litigation counsel related to instant proceedings properly inquired into). 12. A notice of appeal is not a prerequisite to trial court jurisdiction, nor does a

perfected appeal divest the trial court of jurisdiction to hear the Independent Action on the merits. No rights of intervening third parties have been affected by the judgment. Bros Inc., v. W.E. Grace Mfg., Co., 320 F.2d 594 (5th Cir. 1963); Caputo v. Globe Indemnity Co., 41 F.R.D. 239, (E.D.Pa.1966). 13. Venue is proper.

- 6 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 6 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
1

OPERATIVE FACTS 14. The defendants obtained judgment against the guarantor plaintiffs in this

Court arising out of identical amounts claimed and contracts lodged in the bankruptcy proceedings as GE/CitiCapital "Proof(s) of Claim" (also entered into evidence in the proceedings as "proof" of damage). 15. On August 30, 2007 in a Memorandum Decision: Findings of Fact and

Law; the Bankruptcy Court preemptively (related to its core proceeding exclusive jurisdictional prerogative via congressional mandate) found that Comerica Bank had effectively tampered with estate fiduciaries to accomplish its improper business goal of liquidation, not rehabilitation (pgs. 28-29); that the estate fiduciaries were complicit in responding to Comerica Bank performance demands at odds with any beneficial recourse to the debtors, the estates, the estate fiduciaries, the secured and unsecured creditors, administrative priority creditors, or any other ordered line of succession related to creditor priority. The Memorandum Decision portrayed the conduct of Comerica Bank and its counsel, Greenberg Traurig, LLP in terms of "bad faith" (pg. 29 among others cited below) bordering on a prima facie case of gross and egregious misconduct evident throughout, and before, the bankruptcy petition of May 8, 2003 (pgs. 29-31). Specifically, the Memorandum cites to Comerica Bank "Proofs of Claim" and "Omnibus Bank Affidavits" supporting its claims to valid perfection, attachment, liens, and security in all or "substantially all of the assets of the debtors" [and thus the guarantors]. The litany of Comerica/Greenberg lies and perjured testimony are punctuated throughout the Memorandum 1 .

24 25 26

The Memorandum Decision has been appended. The Findings have been "highlighted" referable to this complaint. Judicial Notice is requested of the entire document, but the court is asked to first review page 2, line 18, through page 3 (intentional misrepresentation of accounting documents/concealed witness tampering), page 4 ¶¶2-3 (document spoliation, intentional withholding of material evidence, lack of
- 7 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 7 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

16.

Defendants knowingly, voluntarily, and intelligently waived and forever

discharged their respective damage claims when they surrendered by collective compromise the Court's admonition, as a matter of law, that "...the Court will determine...only after all other creditors of this estate, be they secured, priority, or unsecured, have been paid in full." (See, Memorandum, page 19, lines 4-5, 7-10). 17. All defendants withheld the August 30, 2007 Memorandum from the

federal trial and appellate courts. All defendants had the legal duty to supplement, correct, and ensure that the evidentiary record in support of the judgment reflected defendants "settlement" and compromise with the Trustee, the Trustee's lawyers, Comerica Bank, and Greenberg Traurig, LLP. Defendants negotiated their damage waivers and complete discharges which directly rendered void the validity of prior federal court judgments issued in opposition to the preemptive claim/issue preclusive settlement entered into by and between defendants, to the guarantors' legal detriment. 18. Defendants negotiated the "broadest possible release of liability" in the last

week of January 2008. The defendants dismissed all pending appeals against Comerica Bank and Greenberg Traurig, LLP shortly thereafter. By February 20, 2008, the defendants had negotiated the terms and substance of the "release and waiver

candor to the tribunal, intentional misrepresentation, failure to disclose dispositive evidence favorable to the debtors estates and the guarantors under contracts at issue, bankruptcy fraud, unnecessarily and vexatious litigation 28 U.S.C. § 1927); and, "Defendant's actions taken throughout the litigation before this Court and the Panel, and its behavior outside the courtroom, were undertaken in bad faith." at page 10, lines 6-7. The Court frames creditor bankruptcy fraud to gain financial advantage without legal entitlement at page 14, lines 2-4. In personam liability of the 56 billion assets under management bank was granted at page 17, lines 5-7, 24-27. Defendant "blatantly misstates the record" (pg. 20, line 10), acts by implementing "frivolous" litigation (pg. 23, lines 4-5), "...Defendant acted inequitably in just such a manner. From the beginning of the case, the Defendant made misrepresentations (never corrected) on which other creditors relied." (pg. 28, lines 2-25).
- 8 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 8 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

agreements", under stipulated admission, in open court, by avowal to Arizona Bankruptcy Judge, the Hon. Randolph Haines. (See, Rptr.Tr. February 20, 2008). 19. On February 27-28, 2008, defendants disclosed the release contracts. A

"fairness hearing" and "trial" were set for March 11, 2008. All defendants were notified of their right to object to the settlement and full release of liability affecting their right to full redress of all damage claims from Comerica Bank, directly. The defendants did not timely object, or object at all, or file even a "position paper" on or before March 11, 2008. The plaintiffs did. The plaintiffs are requesting this court specifically enforce the provisions of the "agreements" and "waivers of damage" by defendants vis-a-vis the estates, the debtors, and guarantors, including injunctive relief. 20. All federal (non-bankruptcy) trial and/or appellate court judgments against

the guarantors were signed and/or entered during the pendency of the bankruptcy proceedings, and the final judgment(s), orders, or decrees in bankruptcy adversary proceeding No. 2:07-ap-00031: March 11, 2008; March 17, 2008; April 7-9, 2008 preempt all federal non-bankruptcy ("core" proceeding/adversary proceeding) judgments against these guarantors. 21. Bankruptcy preemption applies. Bankruptcy Judgments (as here) which

arise out of a "core" proceeding, based upon a federal congressional statutory grant of original and exclusive jurisdiction, advanced in this case by the Trustee acting for the estates and the non-objecting defendants (GE/CitiCapital), the Trustee's Special Counsel, unopposed by the U.S. Trustee, signed and entered into the record by a District of Arizona Bankruptcy Court is an irrevocable issue and claim preclusive damage waiver by defendants, prospectively, and retrospectively.

- 9 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 9 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

COUNT I. The Independent Action 22. Plaintiffs incorporate all matters of fact, all specific Fed.R.Civ.P. 9(b) fraud

assertions in support of plaintiffs fraud on the court by officers of the court, all enumerated paragraphs above, all judicially noticed documents of record, and reincorporate all transcripts of record, all Orders, Judgments, Memorandum Decisions, and Findings of Fact and Law referenced above. 23. The power of the Court to grant relief in an Independent Action is based

upon the Court's inherent power to vacate judgments on proof that a fraud on the Court has been committed. In re The General Adjudication of all Rights to Use Water in the Gila River System and Source, Supreme Court of Arizona, en banc., 212 Ariz. 64, 127 P.3d 882 (2006), citing to In re Levander 180 F.3d 1114, 1118 (9th Cir. 1999). 24. Alternatively, plaintiffs acknowledge that despite procuring the judgments

through fraud, the judgments may not be void, and thus, voidable, until effectively set aside under Rule 60(c)(5), Fed.R.Civ.P. "...or its enforcement enjoined in an Independent Action". See, e.g., Lamb v. Superior Court of the State of Arizona, In and For the County of Maricopa, Supreme Court of Arizona, en banc, 127 Ariz. 400, 621 P.2d 906 (1981). 25. A party is conclusively presumed to have been denied a fair adversary

proceeding where he has been deliberately kept in ignorance of the action or proceeding or in some other way fraudulently prevented from presenting his claim or defense. "Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, . . . a false promise of a comprise; . . . being kept in ignorance by the acts of the plaintiffs; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his clients' interests to the other side

- 10 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 10 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

­ these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new trial and fair hearing. United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878). 26. A fraud on the Court occurs where it can be demonstrated, clearly and

convincingly, that a party has set in motion an unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing parties' claim or defense. Aoude v. Mobil Oil Corporation, 892 F.2d 1115 (5th Cir. 1989); Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989); Cleveland Demolition Company v. Azzon Scrap Corp., 827 F.2d 984, 986 (4th Cir. 1987) (fraud on Court may exist where witness and attorney conspired to present perjured testimony); Rozieo v. Ford Motor Company, 573 F.2d 1332, 1338 (5th Cir. 1978) (where party with counsel's collusion, fabricates evidence); Wiley v. RJ Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983) ("courts have inherent power to dismiss an action when a party has willfully deceived the Court and engaged in conduct utterly inconsistent with the orderly administration of justice"). 27. It is legally permissible and, in fact, required that in a civil case that the

judgment debtors resist enforcement in a civil judgment for money where the judgment has been obtained without due process of law voiding said judgment. Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949). 28. There is no significant question as to whether the genuine likelihood that

the status or misconduct of the attorneys in question affected the outcome of the proceedings before the Court(s). Gregori v. Bank of America, 207 Cal.App.3d 291, 309 (1989).

- 11 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 11 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

COUNT TWO Injunctive Relief

29.

Plaintiffs reincorporate all previously enumerated paragraphs and assert the

law firms and parties, their privies, and agents, are proper parties pursuant to Fed.R.Civ.P 65(a). 30. Pursuant to Fed.R.Civ.P. 65 plaintiffs request an immediate hearing for

preliminary injunctive relief, this document serving as Notice and request for setting an Order to Show Cause Hearing. The OSC is recommended for consolidation (Fed.R.Civ.P. 65(a) (2)) with a full and timely hearing on the merits. 31. Factors mitigating in favor of preliminary injunctive relief include; (1)

defendants have engaged in wrongdoing during the pendency of litigation; (2) violations of bankruptcy core proceeding judgments are ongoing, repetitive, and irreparable damage is being sustained by the guarantors as a result; (3) irreparable threat of continuous and ongoing litigation despite the finality of the bankruptcy rulings, spawning a multiplicity of litigation which must be extinguished severally, or here, collectively through consolidation in a single action; (4) irreparable threat not remediable by damages; including, damage to reputation, damage to credit, damages incurred in the prospect of engaging multiple litigation venues to extinguish the judgments, but for defendants ongoing conduct in breach of their collective joint and several final settlement; (5) given the lawyer and defendant conduct the public would be well-served by elimination of the conduct which has ripened into misrepresentation, mischaracterization, fabrication, oppressive and harassing conduct; and (6) the guarantors shall be the prevailing party as a matter of law.

- 12 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 12 of 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

32.

Specific Performance is requested on the binding contracts and certainty of

the agreement terms incorporated into the bankruptcy final Orders, Judgments, and Decrees, leaving the guarantors no remedy at law. The guarantors have received, but not yet given, "inequitable conduct", impairing their right to specific performance, or impairing their right to any remedy in equity.

WHEREFORE, plaintiffs incorporate by reference all separately enumerated paragraphs in this matter into this Verified Independent Action and application for Injunctive Relief. The plaintiffs respectfully request the following: a. Consolidation and reasonably immediate set aside, stay, nullification,

enjoinment, and vacatur of the GE/CitiCapital Judgment, Orders or Decrees against the guarantors; consolidation and extinguishment of all post-judgment Orders, Judgments, or Decrees, and the consolidated voiding of all provisional remedy Judgments, Orders, or Decrees related to said Judgments, Orders, or Decrees entered against the plaintiffs; b. All allowable contract, statutory, and discretionary attorney fees, costs, and

expenses reasonably incurred in pursuit of this cause of action under applicable uniform, commercial, state, and federal law, as well as an award of reasonable attorney fees, costs, and expense associated with the underlying litigation; c. An Order to Show Cause notice, setting, and hearing relative to plaintiffs

count for preliminary injunctive relief and Order of Appearance to Give Testimony to; David N Ingrassia, Esq., David Reaves, Esq., Trustee, Michael M. Carmel, Esq., Trustee Special Counsel, and designated corporate representatives authorizing GE's full and final release and compromise of its damage claims.

- 13 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 13 of 15

1 2 3 4 5 6 7 8 9 10

e.

Injunctive relief pursuant to Fed.R.Civ.P. 65, together with an award of

reasonable attorney fees, costs, and expense in association with the injunctive relief requested; f. Specific enforcement of Arizona Bankruptcy Court Judgments, Orders, and

Decrees, arising out of "core" Adversary Proceeding 07-00031-SSC, under complete federal preemption, merger, full faith and credit, and comity; incorporating claim/issue preclusion, res judicata, equitable estoppel, collateral estoppel, judicial estoppel, or other appropriate means as the court deems just and necessary to effectuate the original and exclusive federal-bankruptcy jurisdiction over its core proceedings. Dated this 13th day of June 2008.

11

GRANT H. GOODMAN, PLLC
12

/s/ Grant H. Goodman (SBN 009463)
13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 14 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

________________________________ Grant H. Goodman

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 14 of 15

1

VERIFICATION
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 - 15 ­
Bankruptcy "Core" Preemption/res judicata-issue/claim preclusion

Grant H. Goodman, plaintiff in the above-entitled action, verifies that the contents of the above Independent Action are true, correct, and faithful to the evidentiary record. This verification is knowingly and intentionally submitted under penalty of perjury. The factual averments of this document were taken from official reporter transcripts of proceedings, affiant testimony, and documents of record in state and federal proceedings, submitted by defendants under penalty of perjury (28 U.S.C. § 1746). Factual findings of fraud were taken directly from Court Orders, Memorandum Decisions, Findings of Fact and Conclusions of Law issued by the federal bench. DATED this 13th day of June 2008. /s/Grant H. Goodman (SBN 009463) Grant H. Goodman

Case 2:03-cv-01587-JAT

Document 132

Filed 06/13/2008

Page 15 of 15