June 30, 2009

Anonymous said...

Please, I will not ask again, gutter language comments have no place here. Most of you are good about what you say, and I appreciate that. I understand to an extent some frustration, but please, you all are above it.

I will turn off the ability to post anonymously if that should continue. There are better ways to express your displeasure with or in someone, without using the language that has been used.

As much as I would agree with some of what I have removed, this is not the venue for that. Our mission is to inform, not to be nasty, mean and vindictive.

Thank you for your continued support, it does mean a lot to us, and makes the effort all seem worthwhile.

A little lull before another storm?

We had again been granted a stay pending our appeal to the Michigan Court of Appeals. To say the plaintiff wasn't happy is an understatement. It looked like we'd enjoy another summer at the cottage afterall and scheduling of owner's "exclusive" use of the cottage was planned.

Remember Stu? Yeah, he defaulted. So, the schedule comes out, and since Stu had informed the court that "his family would never return", Katy contacted mother (who managed the schedule) that she would use the "deGeus" time for herself. Per our usual procedure, mother sent out the scheduled dates.

So what happened? Big surprise:


"Now comes, Defendant, Stuart deGeus, by his attorney, Philip A. Sturtz, and for Motion to Impose Scheduling of Cottage Use by the Parties Pending the Michigan Court of Appeal' Decision, states as follows:

1.,2.,3., etc. etc... (the case is presently on application for leave to appeal, This Court has jurisdiction over this motion...The Court denied Plaintiff David Symons's, Motion to prevent anyone from using the cottage during the pendency of the case... The Court indicated on the record at the April 9, 2007 hearing, that the Court would not prevent the parties from continuing to use the cottage as the parties have in the past. blah, blah, blah).

"WHEREFORE, Stuart deGeus asks this Honorable Court to enter an Order stating the following:

1. That Katrina Jenkins shall have her exclusive one-week period at the cottage beginning June 13 and ending June 22, 2008.

2. That Katrina Jenkins is barred from interfering with Stuart deGeus's exclusive use of the cottage for his three week period beginning June 23, and ending July 13.

3. Hold Katrina Jenkins in contempt of court for defying this Court's Order of April 9, wherin the Court ordered it would not prevent the parties from continuing to use the cottages as the parties have in the past: and

4. Award attorney fees and sanctions for having to bring this motion and grant such other relief the Court deems appropriate under the facts and circumstances of the case."

Sworn on 7th day of April, 2008 by Stuart deGeus.

Nice, real nice. And just who is Stu to decide WHEN Katy can have her week?????? What a guy! And hey... isn't it still a conflict of interest to use the same firm as the plaintiff????? Even if on paper it was Phil's son...never saw the guy!!! Nice.

June 29, 2009

Another flurry of motions....

We filed a "stay" pending our appeal to the Michigan Court of Appeals. That didn't go over well with the plaintiff. The Court of Appeals...Dismissed this claim "for lack of jurisdiction because the order of October 29, 2007, is not a final order as defined by MCR 7.202(6)(a)(i) because it does not adjudicate all the rights and liabilities as is required by MCR... . In the Order of April 18, 2007, the trial court stated, 'following confirmation of the sale and closing, the Court will determine the distribution of the proceeds of sale, including dower interests, if any, in the proceeds.' At this point there has been no closing and no order that distributes the proceeds of the sale."

So, a final order from the court isn't final until all proceeds are distributed, title is transfered, etc.. It seemed to make sense to us to do this BEFORE it all got split up and handed over to David. Guess it didn't make sense to the "gatekeepers" of the Appeal Court.

The plaintiff was pretty pissed off. They knew we were going to go back and appeal again. They demanded an "Order that an appeal bond be set in this matter in the amount of $718,750.00." Right. And this wasn't about money??

In the end, the judge set the appeal bond at $25,000. You have to wonder at the reasoning. She had a 1/3 interest in the property. The same interest as the plainiff. So, she had to get a $25,000 bond.

More motions to convey sale occured. In a letter dated January 2, 2008 our attorney reported that "he'd attended the hearing on plaintiff's motion to conform with the court of appeals. The judge agreed with our answer that he did not have jurisdiction over this matter because jurisdiction remained exclusively with the court of appeals pending our motion for reconsideration.. Therefore, the matter will be held in abeyance."

He went on to say, "In speaking with Judge Borchard, it appears that he will do whatever he can to insure that an appeal goes forward before any action is taken to convey the property. He also realizes that great prejudice would be created if the property were conveyed and then his decisions were reversed by the court of appeals. He agrees that the appeals process should be exhausted before any further action is taken by him in the trial court."

Plaintiff filed an answer /response to our motion for reconsideration of the Michigan Court of Appeals dismissal for lack of jurisdiction.

"Although Mr. Sturtz has filed this answer with the Michigan Court of Appeals, I assume that the Court of Appeals will return the answer to him because there is no provision in the court rules that allows for him to file an answer to our motion. The Michigan Court of Appeals is very strict in this regard. Where there is no provision in a court rule for filing an answer, the Court of Appeals will not consider the pleading and, in fact, simply returns the pleading to the filing party without considering it." Phil must have skipped the "procedural" part of his legal training. He kept doing this. Maybe he was just running up his bill?

This was all rather boring. Motions and more motions... mounting legal costs and on and on. Meanwhile, the plaintiff was pushing to get "his" cottage. From our attorney, "I am enclosing for your file a re-notice of the motion to confirm sale, convey real estate and payment of costs and expense that rescheules the hearing date from February 4, 2008 to February 11, 2008 at 9:00 a.m..

I note on the notice that Mr. Sturtz has still noticed the wrong motion. As we previously discussed, the judge granted the motion several months ago. That is the order from which we are appealing.

I am preparing an application for leave to appeal to the Michigan Court of Appeals that will need to be filed this week before the Monday hearing. With the filing of the application, I would assume that the hearing on the motion will be cancelled because the trial court would not have jurisdiction over the matter."

And so it went. Back and forth, hearings rescheduled, cancelled, re-noticed, etc. etc. The final gist of all of this??? We jumped through all the hoops and landed in the hands of the Michigan Court of Appeals once again. Their backlog is such that it would be months if not years to go all the way through with this. Stay tuned.. we had a "time out" of sorts. Nice for us. Frustrating to the others. Poor Stu.. he had to wait even longer in hopes of getting some money. Awwwwwwww.

June 28, 2009

Enter Stu....

From a letter dated October 22, 2007, the court responded to a letter that Stu deGues sent to the judge. "Please be advised that it is inappropriate for a party to contact the Court directly. All further contact with the Court should be handled through the parties' legal counsel. Thank you, Fred L. Borchard." No kidding!

So, Stu defaulted. He was getting a bit antsy about his money. I'm sure there may have been some prompting for this letter from the plaintiff.. the letter?

To: The Honorable Judge Fred Borchard:

I am here today to present my views on, and opposition to, the latest motion to stay the sale of the family cottage.

My family and I are exasperated by the continuation of frivolous motions, intentional delays, and mounting legal and property tax costs.

We are asking that the property be sold immediately and proceeds be distributed immediately".

Stu goes on to list all the reasons why everything should be wrapped up, ending with, "IT IS TIME TO SETTLE THIS MATTER, AND MOVE ON."

"Finally, I would be remiss on behalf of my family if I did not personally comment on reason number four of the opposition's most recent motion to stay proceedings: "The defendants will suffer irreparable harm if the subject property is conveyed to plaintiff pending appeal."

"My family will never again visit Lakeside Camp. The actions, comments and innuendo made by the opposition have embarrased my family, and they can no longer face years' old friends. Please bring this matter to a close." signed, Stuart deGeus. No shit.

So, he defaults but somehow thinks he can just write a letter to the judge and tell him to move this forward. Duh. What a chump.

Meanwhile, the plaintiff is requesting that mother post a $75,000 bond. What??? Their arguement, if this goes to appeal, harm could come to the cottage. Really??? What else is up their sleeve??? What a mess.

June 26, 2009

Another deleted comment warning....

Going back to April 30th and again on May 27th

I really don't like removing comments, however, when we get so far from target, and things start bordering on slander, I get nervous, and for good reason. You've only seen the tip of the iceberg regarding the costs to defend, we don't need to incur more.

As long as we are careful in what we say and who we direct it too, I am good.

Distant family, children, and wives of those not directly affected by this are not issues and should be left out. They undoubtably will have to suffer the consequences by virtue of being related, that's penalty enough wouldn't you think?

I really do appreciate all who have commented and will continue to do so, you are what makes this fun to do, and I thank you for your loyal support.

Defendent's Motion to Stay Proceedings

The court... in a startling turn of events (ha ha ha)...denied our motion for reconsideration. Really! Can't say we were terribly surprised. Given the way things had been going, did we really think the judge would "reconsider" this mess and determine that perhaps they bungled things?? Oh well. It was an action we could take and it bought us a little time.

While the motion for reconsideration was pending, the plaintiff's attorney filed an answer (not allowed) as well as another motion. The motion wasn't allowed either. However, it produced a flurry of paperwork and legal expenses.

What next? Clearly the process set up by Mr. Meyer didn't work. The plaintiff was going to walk off with the cottage and he submitted multiple pages of attorney fees that he wanted paid. The total submitted by their counsel was $22,232.65 plus costs of $319.64. The pages of itemized expenses was rather revealing. Many calls to Stu, a lot of time spent with Rick, an amazing amount of money for trips to the court house and on and on and on. Example: On September 18, plaintiff's attorney charged 1 hour, 45 minutes ($350.00) to take the summons and complaint to the courthouse for filing. (it's about a 5 minute trip) 2. On Sept. 19, plaintiff's attorney charged 45 minutes to contact the process server. 3. On Nov. 8, plaintiff's attorney charged $200 to take the motion for summary disposition to the courthouse for filing. (he was getting quicker) Dictation must take Phil a very very very long time...numerous examples of just how long it took. Hmmm. Wow. Good work if you can get it. We argued that this was pretty stupid.

Motion for reconsideration was denied, motions to convey sale and reimburse attorney fees were filed, we filed a "stay" pending our appeal to the Michigan Court of Appeals. Boy were they pissed off. Stays are a good thing!!!

Lesson here, partition is costly. Things will happen you have no idea "could" happen. Naturally the relationship between siblings (David and mother) remained cool? Cold? Hostile? to say the least. Start talking about your future vision for your cottage. Are you all on the same page??? Are you sure??? Transfer to a LLC and start capturing this "good will".

June 25, 2009

All sorts of crazy....

As I mentioned earlier, David filed a motion to facilitate sale and filing of the receiver's report on Aug. 6. We filed an answer to the motion on August 15. The court ruled on Aug. 24 to sell the cottage to David. On September 6 we filed a motion for reconsideration. If anyone is lost in the time line you may reference everything by accessing the Saginaw County Circuit Court site and enter David Symons' name. It'll all come up. Pages and pages and pages.

On September 20 our attorney forwarded to us a letter that he received from Phillip Sturtz written to David Meyer dated Sept. 19th as well as a response to our motion for reconsideration. He also enclosed a copy of our answer to the new matter and affirmative defenses. He said "As you will note in the answer, a response to the motion for reconsideration is not allowed under the court rules. In filing such a response, plaintiff has violated the Michigan Court Rules". No big deal except you have to pay to respond and answer these crazy motions. The gist of their arguement was they wanted it sold NOW plus they were concerned about "payment of attorney fees for the Plaintiff for having to bring this suit pursuant to Court rule, and the Receiver's fees and costs to be deducted from the purchase/sale price.

While all this was going on, David Meyer was getting phone calls from a prospective bidder. In a letter addressed to counsel he relayed the concerns of the prospective bidder regarding the right of first refusal. He stated that "I explained that the right of first refusal was given to the Association..." He went on to say he'd had several letters from Mr. Sturtz asking to confirm that the right of first refusal in favor of family members continues. "I have not confirmed this, because I was concerned that by doing so it would jeopardize my ability to recieve additional bids."

We were actively in discussions with Mr. Meyer via the "third party". What we learned was rather astonishing and while the bid never did happen, it was not without serious consideration. What we got out of it?? A BIG FAT CASE for appeal.

June 24, 2009

Procedure for selling member's property..Artical VII

It is unclear to any of us whether these procedures were ever followed. From the association by-laws it states that a member may sell his real estate in this association to whoembver he deems a suitable buyer, provided that such buyer qualifies and is acccepted for membership in accordance with these bylaws. In SECTION 2. Right of first refusal. Within 10 days of the decision by a member to sell his real estate in the Association he shall notify the President or Secretary of the Association in writing that his interest in such real estate is for sale. Such notices shall specify the name and address of the prosepective purchaser and the terms and conditions of the purchase. Each member covenants and agrees that the Assoication shall have the first right and option to purchase such real estate at the same price and on the same terms and conditions as set forth in such notice. The board of directors, with the approval of the membership, shall determine whether or not to excersise such option. Within thrity days after receipt of such notice, the Secretary shall notify the member of the decision of the Association as to the exercise or non-exercise of such option.

Due to the confusion that first year, I believe that David Meyer did notify the camp when it was first determined that the cottage would be sold. The fall of '07 was ripe with motions, back and forth and back and forth. The order to sell to David Symons was made and then we filed for appeal. This put things on hold. Again, with the appeal being denied (didn't have a final order and the court of appeals refused to hear the appeal).. I think things got sort of lost in the dust. Zooming ahead a year, enter the Radke Trust. This was news to us and under the circumstances of the new purchaser, only the board would know if the notice to purchase was ever presented for first right of refusal. We have no paperwork on this.

As spelled out in the by-laws, transfer of ownership between immediate family starts with the person whose name is on the deed. From that person or persons the property can be trasferred, without a fee, to the spouse and to their issue.

(The question remains.. is the Radke Trust considered a spouse?) In real estate terms, no. It is an entity and therefore, subject to certain transfer taxes, etc. As far as the association goes?? I'm sure it was handled professionally and with utmost care considering the relationship of the owner/president, etc. Perhaps someone from the board could validate that this transfer of ownership was handled appropriately? Notice to members, etc.?

I suppose the annual meeting will address whether there was a transfer fee imposed. Did the association board and its members vote on this transfer of ownership?

June 23, 2009

Good questions...a few answers.

In reading some of the comments I think I'll try to clarify a few things and hopefully provide a few answers as well.

First, while it sure seemed that the whole group, i.e., the judge, Mr.Meyer, Sturtz and the plaintiff seemed to be in cahoots.. I don't think they were. Certainly the judge and Mr. Meyer were buddies and who knows what went down there. (We raised the issue of conflict of interest and it didn't go anywhere). Secondly, once it was handed over to Mr. Meyer, it was in his hands. He really had no interest except an eventual pay check. The work he did was pretty minimal. Could you tell? As much as we tried to argue all the wrong turns or bad turns, it just is what it is. We thought there was an agreement as to how the sale would be handled. Turned out the agreement was whatever Mr. Meyer wanted it to be. He did the least amount of work possible including never finishing any of the bidding instructions.

Yes the cottage sold for $575k. That was the offer David made per the "bidding" terms. The outline as proposed by Mr. Meyer allowed for outside bids (outside the family) for a period of a few weeks. Then, another set of instructions were to follow. They did not. Could we have submitted a bid? Sure. We did not. We were still hoping for an opportunity to obtain a fair market price.

What was Stu DeGeus's role in all of this? Nothing. In the very beginning, before the partition suit was even filed he e-mailed mother and David and indicated he would like to sell his share. He did not state a price. He expected his phone to start ringing. We expected to have some conversation with David, decide how to "buy out" Stu and move on. Quickly on the heels of Stu's statement, David filed his lawsuit. Stu defaulted. He chose not to have an attorney and did not show up for any of the legal actions until later in the whole mess. All he wanted was to keep everything private. I think he was embarrassed and stated he would never go back. He also said he'd "taken" what he wanted from the cottage so, he had no interest in anything else. (until later). At one point, Katy had decided to use Stu's time during the second summer and he took that to court. (Supposedly using Phil's son as his attorney since using Phil would have been a conflict of interest). Funny.. the son never showed. Stu was represented by Phil and the judge ruled that Stu's "time" could not be used by Katy. Was it a surpise that David and family used this time?? No.

Someone asked if we appealed.. would we get a different judge. The way it works is once a final order is made, we would appeal to the Michigan Court of Appeals. It takes this out of Saginaw, into a different court. Can we still appeal? Once a final order is entered.

Keep the questions coming. This is all pretty typical for a partition case. If you or someone in your family wants to either get out, or get you out.. this is how it works. It's ugly for sure. Don't go there. All it takes is one person.

Moving on.....

The July 31 deadline for "third party" bids came and went. There were no third party bids. There was however interest from some third parties. This interest however never resulted in a bid but did stir up much confusion.

On Aug. 6, the plaintiff motioned for sale. On August 24, 2007 the court ruled in favor of the sale to David Symons. (nice birthday for mother). On September 6, we filed a motion for reconsideration. The motion for reconsideration basically asks the court to "reconsider" their ruling. Did we think that the judge and his buddy Mr. Meyer were likely to say "hey..we screwed up. Let's do this right???" Not so much but, it put a hold on the sale for the moment.

Somewhere in all of this, the court decided that an additional 30 days be granted to entertain third party bids. Of course there was no discussion or effort made to let anyone know this. We however, started planning. It was never our intention to pull a "David". The cottage was a "family" cottage. We were not going to go to the mat and do what he had done. We thought we were taking the high road. It seemed to go nowhere good, but it was the choice we had made. This 30 days gave us pause to reconsider.

Meanwhile, a "third" party was evolving and ongoing discussions with Mr. Meyer proved very very interesting. The "third" party included us. We learned quite a bit during this time and were scrambling to put together a plan. It was a very interesting and revealing opportunity. Stay tuned....

June 22, 2009

Rules of the Blog...

We have worked hard to share our story with the hopes that someone out there will learn "how not to do this". I would like to talk for a minute about comments. My brother has, after careful consideration deleted comments that were "off track" or edging on the verge of distasteful. I prefer to think that our readers understand the message here and will honor this effort by not going into the dark belly of the "other sides" methods. I like to think we are all better than that.

I read a post last night that just p*ssed me off. It has no place here, it looks and sounds like something someone else would do and it has nothing to do with the topic at hand. We have lived the reality of a litigious relative. It's VERY expensive. If someone out there puts this blog into the realm of a lawsuit..thanks very much!! We will shut this down in a heartbeat. Please, sharing some emotion is fine. There have been some very good questions raised and I truly think we've enlightened some folks as to what needs to be done to protect what they love most. This is not just some big slamfest. We've worked too hard to let it be ruined. If someone has a personal issue with someone else..go work it out somewhere else. Thank you.

There is some confusion Mr. Meyer...

We were at the cottage. The deadline for "bids" was looming. Someone asked if there really were other interested buyers? The answer was yes. We were operating under the procedures set forth by Mr. Meyer. We showed the cottage to at least 3 groups of people and I understand a 4th group came through as well. We also considered the July 31, 2007 deadline as the deadline for "outside" offers. The only offer made was by David in the amount of the opening "bid" price.

While all this was going on, Mr. Meyer was getting phone calls and letters. Our attorney tried expressing our concerns...first, the confusion as to the "first right of refusal". In a letter dated July 2, Mr. Campbell writes "Some have viewed the making of an offer of purchase as a waste of time in that perhaps a family member or other could meet the offer, thus negating the efforts of the person making an offer of purchase." He went on to say..."there is confusion as to the low minimum offering price of $575k. For example, the XXX family has a cottage in cottage grove where a cottage that is much smaller than the Symons' cottage is currently on the real estate market with an asking price of over $800k. There are also other properties in the area of lesser size and quality that are priced much higher than that of the "Symons' cottage". Further, ownership of the Symons' cottage also entitles the owner to a 1/35th ownership of the Association property that has an S.E.V. of $8,595,800.00, or a fair market value of $17,191,600.00."..and finally, "my clients are uncertain whether the procedure for selling members' property as stated in the association's standing rules have been followed."

In a letter dated July 17th...(remember the looming deadline)..our attorney wrote to us.."As you and I discussed on this date, Mr. Meyer told me that he was not going to change course in the procedures that he has been following because he believes that it is "too late" to do so." Apparently he went on to tell our attorney that "he would not do anything rash" in regard to the sale of the cottage. Ok.

On August 6, 2007 the plaintiff with his counsel filed a MOTION TO FACILITATE SALE AND FILING OF RECEIVER'S REPORT TO THE COURT. I told you they were in a big fat hurry.

June 21, 2009

A price on beautiful?

With so much discussion on the SEV, fair market values, etc. etc... how does one set a price on beauty? WE know the camp property has value. The state determines a "value" and the market determines a value. As a cottage owner you get the benefit and "value" of the camp property but you can't sell it. The value is in "having it".

As Mr. Meyer worked (not) to put together his "instructions" for bidding and picked a starting bid (sort of out of thin air)...all we could do is try to persuade him that he wasn't "getting it". Remember, he was supposed to go up and take a look himself? Yeah. Well, I can tell you this. When we made the last trip to the cottage to get our things, he was there. He was "getting it". Too bad, too sad, too late. He got it. Course, he couldn't have been nicer then. Compared to the other two kooks..David and his counsel? He said they were acting like little boys.

Back to the story... we packed and went north. We scrubbed, hosed down and cleaned every square inch of the place. Windows, floors, inside and out. It looked mighty nice. We watched as a number of "interested" parties made their way through. We heard from our attorney from time to time about who had requested information etc. and we tried to enjoy what we thought would be our last time there. It was a bit tough. We had one last goodbye party. The Dinner Party from Hell. It was the day the power went out in the morning and we had about 100 people coming for supper. And..it was HOT. But of course we had a great time. We love to throw parties and we are already planning one up there sometime in July. Stay tuned.

June 20, 2009

Off topic....Range Report

My sister Betsy and I went out to the pistol range at the Saginaw Field and Stream today. It's a beautiful place to shoot by the way. We each bought a new little gun a couple of weeks ago and figured we'd get some practice with them. My favorite gun of all time is my Kimber 1911 .45 ACP. I've put many thousands of rounds through it and I'd be hard pressed to find a better gun.

The new ones are Bersa Thunders. Betsy bought the carry model and I bought the deluxe model. They are .380 ACP's and they are very good deals. Made in South America they make a nice little gun to carry. I always thought they were a bit underpowered for a carry gun but with the new improved defensive ammo, it's a great little gun.

We put up some paper..(trap score sheets since we both forgot targets) and started firing. I always warm up with my .45 and then switched over to the Bersa. Nice. A very nice little gun. I say little since compared to the 1911 it's very small. Perfect little carry gun. If you're familiar with guns, they are much like the Walther PPK. (remember James Bond?).

We finished up our shooting with the bowling pins. That was fun. There were about a dozen or so and we each picked six and took them out. Bang, bang, bang, bang, bang and bang. I can't think of a better way to spend some outdoor time!!

The race to sell....

With much flurry and paperwork between counsel and Mr. Meyer, a letter was sent to the Association announcing the sale of the cottage. In addition, a letter was sent to "some" of the association members. In the letter dated June 7, 2007 Mr. Meyer sent the procedures for submitting an offer to purchase as well as the "offer to purchase form". He noted that (after much argument) that the minimum offering price has been changed to $575k and also admitted to "now" understanding that this minimum price is still below the offering price which was first proposed by the parties to this action. (duh). He also requested "sellers disclosures" from both parties.

This was followed by another attempt from our attorney to point out that in addition to his "minimum" bid price, the property also has a 1/35th stake in the SEV of the Association. At that time the fair market value of the association was $17,191.00. We shared additional concerns regarding the procedure to sell. Like, does the seller reserve the right to refuse all bids if an appropriate purchase price is not reached??? and.. What is the procedure after the July 31, 2007 deadline? The note to association members was very confusing to say the least. We also felt that expanding the marketing approach would be beneficial and again suggested this be done.

In response... Mr. Meyer mentioned his office had received several telephone calls regarding the property and said he'd provide additional information once it was available to interested parties. He said NO to additional advertising with the exception of allowing a contact person from the other associations to disseminate information. He went on to say if it turns out that there is little interest generated from the letter he sent it may be necessary to reconsider how the property is being marketed. Perhaps a real estate broker could handle it. He said, "let's wait a few weeks to see what materializes from the letter I sent out."

We were busy preparing to head north for a month. You can imagine how truly gut wrenching this mess was. This looked like our last summer. We were in the hands of some guy who didn't have a clue and people were going to be touring through the cottage to see if they'd like to make a "bid". Nice. Really nice. Already things were getting more confusing by the minute and the July 31, deadline was looming. It would not be changed. More to come....

June 19, 2009

Rules of Engagement or...

Dated March 21, 2007

Or... Stipulation for Entry of Order Establishing Procedure for Appraisal and Sale of Property

1. On or before March 25, 2007, the Plaintiff and Defendeants shall select two licensed real estate appraisers to appraise the subject property. One appraiser shall be appointed by Plaintiff, and the other appraiser shall be appointed by Defendants..

2. Each of the parties, through their coucnsel, shall notify the facilitator, David B. Meyer of the appraisers' identity on or before March 25, 2007.

3. The Facilitator shall recommend the appointment of a third appraiser on or before April 1, 2007.

4. Prior to March 25, 2007, each of the parties shall submit to the facilitator, in writing, any information which they believe should be provided to the appraisers appointed by the facilitator pertaining to the condition of the property. This will not, however, limit the information which is considered by the appraisers in determining fair market value of the property.

5. The appraisers shall complete their appraisals on or before May 15, 2007. Copies of the appraisals shall be provided to the facilitator and to all of the parties.

6. The following procedures shall apply following receipt of the appraisals:

a. Of the three appraisals, the appraisals with the lowest and hightest fair market value for the subject property shall be disregarded. The fair market value of the third (middle) appraisal, shall be the "Minimum Bid" for the property.

b. and c. This document goes on to outline the process for notifying the camp, notifying assoc. members, etc. of said sale and dates that bids must be received by. It also asked for each party to prepare of list of items (personal property) which each desire upon sale of property.

Did any of this happen? No. The "facts" that the other party prepared regarding the condition of the property is truly amazing. Because of the landlocked position of the property and the fact that a buyer would have to "buy in" to the association didn't look too appealing to any buyer. The list went on and on... The point here folks... Facts don't apply. We were in the hands of the "facilitator" and the process was to be followed. (at least by the plaintiff and defendants). At this point in time, we couldn't do anything except what was asked. Why did this mess drag out so long?? We did APPEAL. I will discuss that soon. It bought us time but... again..without a final order??? The gods of the "Appeal Gate" tossed it back.

June 18, 2009

Mr. Meyer goes to work.

With the issue of the costs/sanctions and injunctive relief behind us, Mr. Meyer got busy. First, he reviewed the requested appraisals. Remember back if you will for a moment. When this first started, David had an appraisal done and using the appraised value of $665k he proceeded to justify why he felt that his offer to the other owners of $600k (including all contents) was reasonable. The encroachment, critters, poor state of the cottage, landlocked issues, etc. included.

When directed by the court to obtain independent appraisals, we had one done in April of 2007. It was very close to the one David had used. Ours, $668,700.

David however felt the need to quickly obtain ANOTHER appraisal. In regard to the comparables, both David's appraisal and ours used a property at 151 Old Stage Road that had a sale price of $620,000.

The new appraisal estimated the fair market value of the property at $545k. With the various adjustments, their appraisal came in at $558,900.00. A major deduction in value under the new and improved Symons appraisal was the subjective amount of $50,000 because of the "encroachment" onto the neighboring property. Also, the Symons appraisal deducted an additional $66,000 from the comparable price due to the "site".

So what did Mr. Meyer do with this information? Ignoring the plan for a third appraisal if the two that were obtained weren't close, he decided that the "sale" would be held in the manner of an auction and the starting bid price would be $545,000. What???????????? As we've said... you can't make this crap up if you tried.

June 16, 2009

There is a lesson here....

This blog has a purpose. The Red Door Journal is an opportunity to share our story in hopes of providing a glimpse into the real perils of partition. It happened to us and it can happen to you. It's a sad story of loss but it is also an opportunity for anyone with a cottage they love to take the necessary steps to prevent this from happening to them.

The cottage is a haven. We go to "get away". To relax, enjoy old traditions, renew old friendships, savor the smell of our childhoods, connect with our history and generally enjoy the magic. The distant (or not so distant) rumblings of family discord are set aside, ignored or buried. The attitude of "it won't happen to us" or, "we'll deal with it later" won't protect you when the time comes and it does come. It will come.

We sincerely hope that the message doesn't become buried in the mired muck of this mess. It's natural to want to identify the evil doer and point fingers. The facts of the matter, we are all to blame. We all failed to plan. We were not innocent bystanders in any way. We simply failed to plan. Start planning now. The magic wand of Lakeside won't make it go away.

June 15, 2009

Meanwhile...back at the ranch..er, cottage

So we got the ruling that said we could use our cottage. One for the good guys!! They didn't come our way often so, we were happy about that. Meanwhile, Mr. Meyer held a phone conference with Mr. Sturtz and our attorney Mr. Campbell regarding the procedures for selling the cottage.

First, Mr. Meyer requested that both parties provide to him a copy of our appraisals. (we did).

Mr. Meyer stated that he would review both appraisals and make a determination as to whether he would obtain a third. He stated that he would prefer not to incur the additional expense of another appraisal if the two appraisals were fairly close. He also intimated that he might use his discretion in determing which appraisal to use as the standard for the asking price.

He also stated that he would use the same procedures for the sale of the property that were reached by the parties at the last facilitation before David Symons rejected the procedures. He would only change the dates for those procedures in light of the passing of time since the faciltation took place on March 21, 2007.

Ok.. it sounded like a plan at least. Ha, ha, ha, ha, ha. BIG FAT LIE.

June 14, 2009

Something nice to look at...

I've been in a pistol class for three days. I haven't had time to get the next post ready for the blog so I thought I'd share a nice photo of my girls. Carlie went to visit Katy in North Carolina this weekend and got a little sunshine. They are hot little things!!!!

June 13, 2009

Old swing, new swing....

It's hard to see the old swing with my daughter Katy and her friend Jason sitting on it, but it's clear that the swings are very different. I wonder if the new owners will plant some flowers in the flower boxes? We did it the past few years. Maybe I can find a photo of the front porch looking good.

"Somebody is going to get locked up"...

In reading back over the giant mound of paperwork, I found the transcript from the Excerpt- Judge's Opinion BEFORE THE HONORABLE FRED L. BORCHARD, CIRCUIT JUDGESaginaw, Michigan-April 9, 2007

The Court: "All right. Thank you. The court would note for the record, I have looked at the court file and I'm familiar with this case from its inception, when the attorneys were initially before the Court. Efforts were made as both counsel have indicated to try and resolve this case through facilitation and has not been successful.

The Court is going to order sale of the property. I am going to appoint David Meyer as the individual that will be in charge of the sale at the best possible price. The Court is not going to order costs or sanctions at this time, and I will take the matter under advisement as to payment of any attorney fees following the sale of this property.

The Court also is going to order that the property is not to be wasted in any way, shape or form, nor any of the personalty that is within the property. I'm not going to stop the parties from using the property as they've done in the past, and the sale will move forward as expeditiously as possible under the sole direction and discretion of Mr. Meyer.

The Court would note if after reasonable time the property cannot be sold, then--that it will be put up for auction and auctioned off at the best possible price. ...that is the decision of the Court.

MR. STURTZ: One clarification, Your Honor, you mentioned something about personal property. Personal property is to remain in the cottage?

THE COURT: Yes. It's not to be removed, sold, stolen, anything of that nature, and if the property does turn up missing, somebody's going to get locked up, so--"

This is an excerpt from the judge's opinion that was rendered on April 9, 2007. On April 27th, our attorney spoke with Mr. Meyer in regard to the court's order of April 18, 2007 appointing him as a receiver to carry out the sale of the property. Mr Meyer was suprised by the phone call because he was unaware that an order had been entered by the court. The court had not provided to him a copy.

And so it went. We were now in the hands of Mr. Meyer. Let's just see how much he could bungle this up. More to come.... in the meantime.. "nothing is to be removed.."

June 11, 2009

Now back to your regularly scheduled broadcast.


Recently Michelle Obama went to serve food to the homeless at a government funded soup kitchen.

Cost of a bowl of soup at homeless shelter: $0.00 dollars

Having Michelle Obama serve you your soup: $0.00 dollars

Snapping a picture of a homeless person who is receiving government funded meal while taking a picture of the first lady using his $500 Black Berry cell phone:


We have a ruling!!


IT IS HEREBY ORDERED and ADJUDGED that the matter of costs and sanctions and payment of attorney fees are taken under advisement until the sale of the property is consummated.

IT IS FURTHER ORDERED and ADJUDGED that the real property not be wasted in way, shape or form.

IT IS FURTHER ORDERED and ADJUDGED that any personal property located upon the real estate is not to be removed. That all personal property is to remain within the real estate (cottage), and if the parties cannot agree upon the division of personal property, then said personal items shall be auctioned off and/or sold at a date to be established by the Court in the future. Any personal property be it, personal property of Josephine ***, or any other persons, may be distributed if there is an agreement among all parties. If there is any disagreement, all personal property is to remain, and it will be taken up at a later time and/or sold or auctioned.

IT IS FURTHER ORDERED and ADJUDGED that the Court will not enjoin the parties from using the property as they have done in the past. The interested parties may use the cottage as they have in past practices and for their personal enjoyment.

(This order was signed by Leopold R. Borrello acting in the absence of Honorable Fred L. Borchard.)

Of course it was... Borchard would do just about anything to NOT rule.

Well... chalk one down for the good guys.

As you have probably already guessed... we spent a lovely time at the lake in the summer of '07. Sorry David.

June 10, 2009

Old swing...new home!

This is my first attempt at uploading an image. I just wanted everyone to see that I've been busy decorating! Maybe I'll submit it to "Rate my Space". I feel like I'm in my private little world out there. If I put a tarp over the top I can pretend that I'm camping in my own little fort. Bring in my laptop, a vodka on the rocks, some music...yeah... nice.

June 9, 2009

The Plaintiff was "fearful"...

In my previous post regarding the plaintiff's motion for Imposition of Costs and Sanctions/Injunctive Relief, the actual motion contains a number of points that support the plaintiff's "fear". As far as I can see in reading back over all the paperwork, these "fears" are nicely fabricated in an attempt to basically block us from using the cottage, removing any items (including those that belong to us) and paying for his attorney fees.

This is HOW NOT to handle a cottage issue. If any of you readers own a cottage or piece of property as tenants in common please, please do yourself a favor and read the book, Saving the Family Cottage by Stuart J. Hollander, Esq. I know. I should be getting kickbacks.

From the motion filed April 2, 2007 the plaintiff expresses his "fears", requests that the court prevent anyone from using the cottage and in addition, pay all his attorney costs. He does this by listing one lie after another. It is hard to read, even now. When it was happening we all just felt kicked in the gut. How can anyone make such false statements and SWEAR to them? (perjury?)

The second facilitation that failed??? This is how they "characterized" it in the motion.."5. Thereafter the parties met for a second facilitation on March 21, 2007 from 1:00 p.m. until 5:00 p.m., and all attempts to resolve the issues have been thwarted by unreasonable demands of the Defendant, Josephine".

Of course each time these motions are filed, our attorney has to file a response. You should see the boxes of paper. Our response to #5. "In answer to the allegations in paragrah 5, defendants admit that the parties met for a second facilitation before David Meyer on March 21, 2007 from 1:00 p.m. to 5:00 p.m. Defendants deny the remaining allegations in said paragraph. Defendants further state that plaintiff David was not present at the facilitation, but was represented through a power of attorney by his son, Richard, an attorney with the firm ***. At the outset of the facilitation, plaintiff's counsel informed defendants that plaintiff had changed his mind in regard to the issue of the three appraisals and would only consider the middle appraisal as the "mean price". Further, plaintiff's counsel informed defendants that he would insisit upon the reimburesement of his attorney fees from the sale of the property. These were two changes from the plaintiff's position in the previous facilitation. Despite these new demands, the defendants attempted, in good faith, to work toward a settlement of the case. In fact, a settlement was reached between the parties and Mr. Meyer drafted the agreement for siguature by the parties. While waiting to sign the agreement drafted by Mr. Meyer, defendants were informed that plaintiff's counsel and Richard had telephoned David who, in turn, summarily rejected the agreement that had been reached by his representatives at facilitation and by defendants. Therefore, defendants had wasted the complete afternoon in negotiating with the plaintiff's representatives, who apprently had no authorization from the plaintiff to act on his behalf."

In answer to the paragraph (10) of the plaintiff's motion, "...defendants state that plaintiff's "fears" are unfounded and not based upon fact. There has never been any waste or damage to the cottages as alleged by plaintiff, and such allegations are spurious and insulting. More specifically, there has been no painting or "graffiti" committed to the cottage in the past several months. Defendants are not aware of any such "graffiti". In regard to the painting of the door to the cottage, defendants state that the door was painted in August 2006 because the paint on the door was peeling and needed painting. Defendants painted the door a tasteful red...."

Again, the plaintiff's fears were expressed in paragraph 10.. "That e-mails and letters have been sent indicating very hostile and intentional negative feelings towards the Plaintiff." (join in... awhhhhhhhhhh)

June 8, 2009

The problem with facilitation...

After it was determined that the cottage property could not be "partitioned"..or parcelled off in equal lots, the judge ruled that it would be sold. To do this, he appointed his partner/friend to facilitate the terms of the sale. Now I have some experience with facilitation and mediation processes. In my previous career as a chief deputy director with the Ohio Dept. of Commerce one of my responsibilities was as a liason to the Office of Dispute Resolution and Mediation. I learned the techniques and various processes of facilitation and mediation. I conducted many facilitations and a number of mediations. What our court appointed facilitator/mediator did was in no way NOTHING like any facilitation processes I ever learned. Perhaps that is why both sessions failed.

From a letter dated March 22, 2007 David Meyer wrote: "Although progress was made with respect to certain issues, including the scheduling of appraisals and determination of minimum bid, other procedural issues regarding the mechanics of sale continue to separate the parties." He went on to say, "I do not believe that further facilitation will resolve the matter." Duh!

As you may recal from previous posts, the first session ended prematurely when the plaintiff and his attorney left early. The second session was somewhat productive with Rick negotiating on behalf of his father. Apparently his limited power of attorney was VERY limited. All parties worked towards an agreement of terms to abruptly end when a phone call to the plaintiff undid everything. Sorry to have wasted everyone's time? Not.

So.. the bottom line.. a general idea that there would be appraisals conducted to determine the fair market value. The facilitator would obtain a third. The high and low would be thrown out, a visit to the property would be made and a price would be set. If the parties couldn't agree on the time line and process for selling said property, it would be listed with a realtor and offered up for sale to the public. Or, something like that. Yeah. Or something.

At this point, summer was approaching and the plaintiff did not want us any where near the cottage. In the Plaintiff's Motion for Imposition of Costs and Sanctions/Injunctive Relief filed on April 2, 2007 he stated "That the Plaintiff, David C. Symons, is fearfull that the cottage, would sustain damage or waste and that articles of personal property would be lost or misplaced while the matter is pending. That Plaintiff is fearful that waste or damage will be committed to the cottage in that there has already been painting and graffiti committed to the cottage in the past several months; to wit the painting of a door, painting of walls and brick fireplace..." (ok, so we painted the front door. The walls in the back cottage had been painted about 10 years earlier as was the fireplace that he agreed to).

And so we waited. Back to court again to hear this motion. Would the judge rule? Would we get to use our cottage??? More to come....

June 4, 2009

Now more than ever....get busy.

In thinking about the "family" cottage and our lifelong experiences growing up in Lakeside it is clear that simply driving in from the main road, our rose colored glasses appear automatically. It is magical. It starts with the first smell of pine air. It overwhelms our senses as we catch that first twinkle of the lake, notice the small changes here and there, a tree down, a smoother road, a new car at someone's cottage and then, home. Wherever we come from, the cottage is home. Our happy place. Like an old friend, the doors open and we are welcomed back into the fold. Or are we? Taking off the rose colored glasses isn't easy. And now? In these new economic climates, you must take them off and take a serious look at reality.

In the late nineties a law review article referenced by the late author of Saving the Family Cottage, Stuart J. Hollander revealed that 130,000 potential partition disputes will arise. That number was predicted to rise substantially as the baby boomers generation acquired second homes, cottages. With the current economic climate, everyone will face new challenges. No one is exempt. Take off the rose colored glasses and do it quickly.

Our unfortunate experiences with partition and the perils of tenants in common should serve as a real life example of what not to do. Or better yet, what to do now to save your family cottage. There are no winners in partition.

And so... after two failed facilitations, one held on January 15, 2007 and another held on February 23, 2007 the plaintiff, anxious to push this mess through quickly filed a motion for imposition of costs and sanctions and injunctive relief. This motion (I've lost count now) was filed on April 2, 2007. It was scheduled for hearing on April 9, 2007 and it was a doozie. I will be happy to share the full version of this "mean spirited and vindictive attempt to close the cottage down and bar access to the cottage until the sale of the property" with you. Our attorney, Gary Campbell also stated to us in his correspondence in regards to this motion, "The motion contains a number of insulting and spurious claims that are attempting to inflame the court. This is another attempt by plaintiff to try to convince the judge that the parties are so opposed to one another that sharing the cottage this summer would not be practial." This motion will be the focus of my next post.

June 1, 2009

Let's try this facilitation thing again....

David and his counsel decided after leaving early from the first meeting, a legal document existed and there fore should be enacted. Problem was several fold, one, it was deficient in addressing all issues, leaving early might have lead to that I suspect, and since it was not signed by all parties it was not a legally binding agreement. So David filed the first of many motions, all of which required a response and those little annoyances typically cost about $1,000.00 each time one is filed. Lets keep count shall we, this was motion #3. And the judge ruled correctly this time and agreed with our filing that it was not a legal agreement.

The judge ordered all parties and legal counsel to show up for another round. And since time seemed to be of the essence, a hurried up date was pushed upon us.

We showed up again planning on all day because you just never know what will or wont happen. The first surprise was no David, that's right, NO DAVID, apparently was working on his all over tan on the beaches in Florida. In comes the B team, his counsel and stand in counsel, son #2.

And surprise surprise, again we are sequestered in separate rooms. Apparently lesson never learned. Well why not it worked so well the first time didn't it?

The back and forth begins anew, and almost from the start it is apparent that their goal is get this done before camp opens and do not give an inch. We do make some head way, agreeing again on the number of appraisals, and the method for arriving at a listing price. We agreed on the time frame for marketing to the other associations first, and then if necessary listing it with a Real Estate agent.

Wow, that was easy, now all it seems we needed was a final printed agreement and we had a done deal. But.....while that was being typed, it appears that a phone call was made to David. Mr. Facilitator came in to say that David did not agree to the time line and had ordered his counsel to walk out.

He then filed an another motion, # 4 or 5, kinda loosing count now, to say that we were uncooperative. Where does he come up with this stuff, he walks out of the first, and then doesn't show up for the second and we are the uncooperative ones. What an ass.

Back to court again because David needs things to go his way, and the judge decides the facilitator has done such a splendid job of screwing things up twice already, a third must be the charm.

Here is where I am going to take a break from writing for while, but don't think for a moment your not going to be entertained, heck no, the better writer is going to take over, and for a while I will sit back and relax.

Enjoy the journey.