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As an initial matter, the penalties you describe for contempt of court are not the limit of your liability in the event you choose to violate this Court order. If you choose not to comply with the Order, you face civil penalties for any loss to the estate (remember, this does not necessarily mean that the estate loses money overall, but can only mean that the estate loses the ability to use the assets for a short period of time). You also face civil penalties for ongoing violations of the Court order which increase the Court's ability to impose civil confinement (jail time) or fines on you until you comply. Judicial fines are generally unrestricted, and can be very costly for an intentional disregard of a Court Order. (I mention these things as you noted you are unable to continue paying your current counsel, if costs such as reasonable attorney's fees are an issue, you would be ill advised to incur the unreasonable court sanctions associated with non-compliance with a Court Order).
Most importantly, if you intentionally disregard the Court Order, you place your errors and omissions insurance coverage at risk. Insurance cannot cover intentional conduct, and carriers generally look for ways not to spend money. If you are already engaged in intentional bad conduct, that will provide at least the beginning of a basis for them to deny coverage (timing and other factors make this less of an issue, but I do not know how important this coverage is to you).
If you want to get a stay on this matter while the decision is on appeal, you may do so in the California Court of Appeals, asking that the Appellate Court issue a stay pending the appeal. While these motions are not always granted, if you can show that the property in question will remain in safekeeping and the "status quo" will be be maintained by holding onto these metals pending the appeal, the Court may issue a stay during the appeal.
I wish that I had information that was more favorable to you, but I want to give you as accurate a statement of the law as possible so that you can plan accordingly. While you may have been treated badly in this court proceeding, and the decision may have been made on an incorrect (or even blatantly wrong) basis, it is generally not advisable to disregard a court order in these circumstances. You may of course do so at your peril, but I would recommend getting personal counsel to assist you in this matter where you can get attorney/client privileged information, advice, and strategy to support a more complete and competent decision.
I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!
Good answer but a couple of things you did not address and a couple of things I may have omitted--
I have not yet received an actual signed court order--only a verbal order in court so I am only sending the new trustee bills. Bank of America wants to get involved but not until I have a court order.
Second the codes I read say that if a judge's penalty exceeds a certain amount then I am entitled to a civil jury trial on my contempt case. With lower penalties I am entitled to a court appointed rep. I would love to get this thing into civil court.
Also says that two defenses against contempt are inability (as my family is currently in town and my new lawyer--from the insurance-- is not on board yet) plus I have visitors in town and am not able to comply and work on my final accounting--which is a priority because I need to get that out and into the hopper while I still have coverage.
The errors and omissions is important and I will not do anything blatant but I need to hold onto certain papers until I can vett and copy them and I also need to retain access to the bank account and brokerage accounts to complete the final accounting. I don't want to do anything to piss off my insurers but have not heard from an attorney there yet.
So maybe the solution is to proceed with the transfer at the rate I am able to and get her the bills first (which is what I have done) so those get paid. She will take over the brokerage accounts herself and the bank accounts at some point so I am not writing any checks or buying or selling any securities.
I had intended to hold onto the metals but--after talking to you and my attorney here in Az--think that might not be a good idea--too blatant. They are in safe deposit boxes in several institutions and the new trustee wants to send Morgan Stanley over to Arizona from California to pick them up. I told them that was ok (so far) but to have Morgan Stanley contact me directly. Reason is because the new trustee is a perjurer and I want the drivers to count and sign for the contents of each box and do it in my presence.
A couple of more questions.
The trust I am trustee on was originally located in California. When I became successor trustee two years ago I moved to Arizona and moved all the trust bank accounts and paperwork here as well. I also purchased property for the trust in Az. and bought metals--as I mentioned--and stored them in vaults here in Az--all the property of the trust as well.
I filed for court approval of our accounting here in Arizona a little more than a year ago and one of the beneficiaries filed a cross claim to have the jurisdiction for the trust returned to California. We lost in that decision so the trust was returned to California but I appealed. The appeal went in a year ago and most recently all the final briefs went in and the appeals court denied a request from our opposition to make verbal arguments (that was the last activity on May 15). We thin we will win because the original Arizona judge was requiring a useless act--I had the power of attorney for my mother and she was incapacitated so the judge basically ruled that I could not move the trust because I did not notify myself. The court in California proceeded anyway while the appeal was in and eventually took us off the trust. Does this make sense? Since they (Cal court) issued a court order to return all the trust assets, do we have grounds to hold on to some of them anyway pending the outcome of the appeal? On what basis did the Cal court move ahead? Do you think that the California court was in the right?
Can the Cal courts come over to Az to get me if I keep some trust assets pending the outcome of the appeal?
Second question--during the course of the hearings in California the judge-
+turned our trust into a guardianship.
+completely rewrote the trust and ignored half it's provisions. For example we were entitled to a conference and an arbitration via trust terms before a beneficiary is allowed to bring a case against us and we got neither. Also he appointed a conservator buddy of his to succeed us as trustee when the trust doc designates B of A as our successor.
+preliminary court order is worded so as to prevent us from putting together an accounting in that all records and funds have to be turned over immediately and there is no provision for the trust to pay for the accounting. Also the court order--when it even comes--will be worded to be retroactive to the time of the hearing which was a month ago. The trust on the other hand says that I can set up a reserve from the trust to do an accounting and pay the expenses of the transition.
Anyway. My question is--Can a judge totally ignore a trust and make up all his own rules? What parts of a trust does the judge have to respect?
Can't help but think if I came into this court with the Kennedy or Rockefeller trust, these clowns would not be trying to rewrite it. Why is it they think they can get away with rewriting mine??--because they think I am poor and stoopid? Can the judge get away with rewriting the trust??
The trust was not rewritten by the conservator. It was just totally ignored by the judge in everything he did. Also the durable power for medical treatment was ignored.
Here is the section of the probate code that seems to apply to our case. First we will try for a stay and appeal--
PROBATE CODE SECTION 15640-15645
These are excerpts from 15640- 15645--
(9) For other good cause.
(d) If the court finds that the petition for removal of the
trustee was filed in bad faith and that removal would be contrary to
the settlor's intent, the court may order that the person or persons
seeking the removal of the trustee bear all or any part of the costs
of the proceeding, including reasonable attorney's fees.
Here is what the judge used but he lied because we earned in excess of $1 million for the trust net of related expenses in 2011 and 2012—
(e) If it appears to the court that trust property or the
interests of a beneficiary may suffer loss or injury pending a
decision on a petition for removal of a trustee and any appellate
review, the court may, on its own motion or on petition of a
cotrustee or beneficiary, compel the trustee whose removal is sought
to surrender trust property to a cotrustee or to a receiver or
temporary trustee. The court may also suspend the powers of the
trustee to the extent the court deems necessary.
--but we never lost money. Made $1.2 million in 2 years.
If this doesn't work it seem that--if I am accused of contempt by this kangaroo court--that I should be able to go in and dispute the contempt charge on the grounds that the judge issued an illegal order?
Has the court ruled appropriately? This conservator's daddy has a 12 acre ranch in Ojai. She has 70 conservatorship cases. Out of those 70, 7 are ttrust. Out of those 7 trusts, Judge Dredd has replaced 6 trustees with this conservator. In many cases the trusts had successor trustees who were passed over.
Here is what I believe we are dealing with--
Isn't that a defense for not completely obeying a court order?? What other options do I have with a crooked court if the judge will not grant a stay (probably won't) and we do not get an appeal??
This is hard earned family money. These ambulance chasers, the crooked judge, and the crony conservator and ambulance chasing loser attorneys are feeding at the trust trough. As head of the family I feel I have a responsibility to try to do something.
We have counsel coming on the scene from our e and o carrier but I am still waiting for them. Maybe I just need to disobey a little of the court order and stall these vermin off until I get counsel??
Once I give up the money I am holding in Az, I have the feeling I will never get it back. The e and o attorneys will cover us for backcharges but will not defend the trust or get us back on it.
What to do?
What do you think about the idea of waiting for the conservator's attorney to file a motion to enforce the court order and then I file a counter petition to vacate the original court order on grounds that the accusations of the conservator were perjured--seems to be a bad faith argument available.
Would that work?
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