Linda Thompson
Attorney at Law
Undisclosed
| Telephone: Undisclosed |
|
|
|
|
|
|
|
Internet: Undisclosed |
Mr. Neil Motenko
Mr. Joe Shea
Nutter, McClennen & Fish
One International Place
Boston, MA 02110-2699
By Fax: 617-973-9748
Copies to:
The Honorable John F. Tierney
U.S. House of Representatives
6th District, Massachusetts
Fax: 508-531-1996
The Honorable Edward Kennedy
U.S. Senate
Fax: 617-565-3183
The Honorable John Kerry
U.S. Senate
Fax: 617-248-3870
The Honorable Bruce Tarr
Massachusetts Senate
First Essex and Middlesex
District
Fax: 617-722-1014
The Honorable Tim Clark
Massachusetts House of
Representatives
Fourth Essex District
Fax: 617-722-2897
Andrew Hove
Acting Chairman, FDIC
Fax: 202-898-3772
Ms. Nancy J. McGillivray
Director
U.S. Marshal's Service
Fax: 617-223-9726
In re: FDIC v. Sweeney
Dear Mr. Mssrs. Motenko and Shea:
I have received no response to my second letter to you of July 8, nor to my subsequent letter
of July 9.
Several State legislators met at the Sweeneys' home last week and State Senator Tarr
subsequently wrote to Andrew Hove, Acting Chairman of the FDIC, with copies to numerous
congressmen and the Secretary of Treasury, requesting negotiations.
Yesterday, we received a letter from U.S. Congressman John Tierney who states he is also
actively involved in attempting to facilitate negotiations between FDIC and the Sweeneys.
Not surprisingly, however, the Congressman has been told, by either your firm or the
FDIC, or both, that the Sweeneys have refused to negotiate and that they have not had an
attorney since June, which, of course, is wholly false. This is consistent with the same false
representations made by the FDIC in publicly released statements to the media throughout last week.
To set the record straight, I wrote you nine letters from July 2 through July 9 (last week),
concerning the Sweeneys and their property. These letters included a formal settlement
proposal, as well as reciting numerous other proposals which I made to you in telephone conversations
on July 2, all of which you rejected; additionally, the Sweeneys sent their formal proposal to the
Secretary of the Treasury the same day I communicated this proposal to you (July 3), less than 24
hours after you communicated to me the demand by your client, FDIC, for this formal proposal.
We are providing copies of these letters to U.S. Congressman John Tierney, U.S. Senators
Edward Kennedy and John Kerry, and Massachusetts Senator Bruce Tarr and Massachusetts
Representative Tim Clark, and to the media.
Regarding the FDIC's public claims that it has made "offers" to the Sweeneys, on July 2
and by letter July 3, I requested that you put any such offer(s) in writing, which you refused to
do. I have seen the FDIC variously make claims in printed media that it has made "good faith"
offers to the Sweeneys in negotiations in June, so it is of some interest that FDIC refused to
provide them to the Sweeneys. In your last communication to me, you claimed that the FDIC had
made one such offer, but both you and the FDIC failed to mention this was an offer made a year
ago, not in the past week, as the media and I and apparently Congressmen, were led to believe.
Since June 30, the week the FDIC was claiming it had been making "good faith offers," I
have represented the Sweeneys and the FDIC's posture has been and continues to be to flatly
reject all offers to negotiate, and to respond with an edict to "get out or else we'll send in armed
federal agents." Of course, FDIC has not mentioned this continuous threat in its communications
with either the media or Congress, apparently, as it instead boasts of its "efforts to negotiate."
As I noted in my communications with you, you cannot in good faith make a threat of
armed force as you have against the Sweeneys, and at the same time, expect that any agreement
they would enter into, clearly under duress, would be legally binding, nor can you make a claim
that you are "negotiating in good faith" when you are in fact threatening armed force if the
Sweeneys do not capitulate to your demands.
Congressman Tierney also was apparently mislead about the conduct of the "mediation"
the last week of June, whereby the FDIC and an attorney who conveniently appeared on the scene
and "volunteered" his services, set up a "mediation" without the Sweeneys' knowledge or con-
sent, with a mediator who also apparently "volunteered." The FDIC has omitted these salient
details in its public claims that the "Sweeneys refused to show up."
It should be abundantly clear to all concerned who has been and continues to misrepresent
this situation, and it isn't the Sweeneys. The FDIC has been grandstanding and posturing with
falsehoods in the media and to Congress. This is no way for a government agency to conduct its
affairs. Prior to Andrew Hove becoming "acting Chairman" of the FDIC (and vice chairman of
the Board of the FDIC), I have a letter from early in the Sweeneys' case, in which the FDIC
refused public comment to the media on the basis that it would be against its own regulations to
publicly comment. Apparently this policy changed under Acting Chairman Hove.
I also note with great interest that the Inspector General of the FDIC has conducted an
independent investigation into certain matters concerning the First Lady and has subsequently
referred investigation to Andrew Hove as acting Chairman of FDIC.
I believe it is now a matter of grave importance to the interests of this country, that Hove's
character for less-than-candid and less-than-truthful statements, his habit of grandstanding and
posturing in the media, and his own failure to investigate the fraud committed by FDIC and RTC
and their attorneys, as well as the "settlement agreement" made by FDIC with the heads of these
failed banking agencies which allowed these ComFed officers to get off scott-free (all as
admitted in public filings with the Securities and Exchange Commission (SEC)), be made known to the
First Lady and her counsel.
Since your firm represents Emanuel Pinez, charged with federal felonies in connection
with insider trading and altering financial records of Centennial Technologies, a company owned
by Fidelity, I find it extremely curious that in your late night forays at taxypayer expense, you were
able to send three overnight packages to me last week, all from Fidelity's offices, using Fidelity's
express mail accounts and billing information, and all of which were picked up after normal pick-
up hours for the express companies solely "because Fidelity is such a big account" (I obtained this
information personally. I also obtained the original billing information, before it was
subsequently altered to reflect your firm on the billing information, which alteration I also note with
interest).
I found it even more curious that immediately thereafter, the only newspaper story
attacking the Sweeneys appeared this past weekend in a newspaper that, just coincidentally, is also
owned by Fidelity. The article makes the same misstatements of fact we have come to expect, as
if quoting you and Andrew Hove, personally. It also quotes John Hanify, the attorney who was
somehow able, despite the clear conflicts presented, to represent both the failed ComFed bank and
the RTC in the court cases with the Sweeneys.
Questions which I have posed to you remain unanswered from my previous two letters:
Does your firm presently represent any undisclosed government agency or private party in
this situation?
How does the FDIC square its publicly proclaimed posture of being willing to negotiate
and claiming the Sweeneys are not willing to negotiate, when all the efforts to negotiate have
been extended, in writing, by the Sweeneys (as proven by the nine letters to you from July 2
through 9, all of which negotiation efforts were flatly rejected by FDIC) and the FDIC's actual
posture has been to threaten the Sweeneys with armed force if they do not capitulate to FDIC's
demands?
Your client continues to ignore a binding State Court judgment against ComFed,
including ComFed Mortgage who was not part of the removal action to Federal Court and could not
have been (if you claim it was and could have been, then you are conceding that the removal was
beyond the 30-day time limits for any such removal, since the removal was not done for two years.
If ComFed Mortgage's status was "federal," thereby rendering it subject to removal and to
conservatorship and receivership by the RTC, then it was "federal" from the inception of the case two
years previously; ergo, the removal was too late; otherwise, ComFed Mortgage, as a state entity,
could not be removed other than by invoking the Federal Court's supplemental state jurisdiction,
which was not done).
The outright fraud committed to remove the remainder of the action from State Court to
federal court, including Hanify's secreting the entire Court file in his office for a month –
apparently without any sanction or investigation by anyone – is without precedent, to my knowledge,
and is clearly a crime. His proffered excuse that he was "conferring with the State Attorney
General" does not negate the criminal conduct of taking a Court file, which he has no authority
to take, and keeping it in his office, which he not only had no authority to do, but is specifically
precluded from doing by law and by ethical canons.
In reviewing 1994 and 1995 SEC filings by ComFed (which were not available to the
Court or the Court Appeals in the previous actions), it is clear that the removal action was pre-
mature since it relied upon RTC being appointed receiver (as opposed to conservator) and that the
RTC had no basis for removal (that did not exist two years earlier and was therefore untimely on
that basis) on January 11, 1991. RTC was not appointed receiver until February 1, 1991. The
Federal Court's jurisdiction was therefore clearly and improperly invoked.
Neither RTC nor FDIC was ever substituted as a party prior to any action by the federal
court and the request for substitution, more than a year later, was never ruled upon, so neither was
ever properly before the Court at any time, even if the removal action had been accomplished
timely and properly.
Your clients, with your help, conducted an "auction" of the property, selling the property
for $789,000 from the RTC to the RTC, supposedly while active negotiations with the Sweeneys
were taking place. This "auction" occurred when the Sweeneys left the property to visit relatives
over Thanksgiving week, relying in good faith upon the negotiation process then under way. In
other words, the "auction" was yet another underhanded tactic exercised against the Sweeneys by
taking unconscionable advantage by misrepresentations to secure their absence from the property.
Further, your client asked the Court to reinstate the jury verdict in the case, which includes
a judgment for Mrs. Sweeney, as well as additur to that judgment by the Court, all of which have
been conveniently ignored by your clients.
You have ignored my last two letters to you which addressed many of these issues.
The Sweeneys await a copy of the offers, in writing, your client has repeatedly claimed it
made. As always, the Sweeneys await a meaningful effort at settlement of this matter from your
clients.
It is time that both you and your clients stopped bullying and threatening the Sweeneys,
wasting everyone's time and billing the taxpayers thousands upon thousands of dollars to do
nothing but posture and threaten to use armed force to evict the Sweeneys on a fraudulently obtained
"judgment." It is past time that FDIC stopped ignoring the legitimate judgment, now totaling
more than $6 million, obtained in State Court by the Sweeneys, far in excess of any claim
ComFed had against them originally, which your previous client, RTC, conceded was actually
worth only $789,000.00 (by its purchase of the properties from itself at the "auction" for that
amount).
The Sweeneys have broken no laws and are law-abiding, well-respected members of the
local community. They have been defrauded and worse, they have been treated like criminals and
wrongdoers, libeled, maligned, and terrorized by a government agency whose purpose is
supposedly the protection of the public.
They are peacefully occupying their property. They are unarmed. They have
continuously and openly agreed to negotiate settlement and continue to do so. Your response is to threaten
to send in armed federal agents to oust them, period.
We again request that the FDIC come to the negotiation table in good faith, prepared to
address these issues with a meaningful and intelligent proposal to resolve this situation.