Zeek Ponzi pimp troll counter-claims dismissed
In total around a million dollars was requested, mostly by way of unpaid Ponzi ROI earnings. This was done via claiming that Zeek Rewards had contracts with the net-winners, and that unpaid ROI earnings should be paid out. Funds seized from Zeek’s payment processors were also requested.
And as ridiculously trollish as it all sounds, I kid you not that’s what was filed.
Not surprisingly, an order issued on the 14th of January has seen every one of these counter-claims rejected.
First up we have Trudy Gilmond, Jerry Napier and Darren Miller’s “breach of contract” counter-claim.
(Gilmond, Napier and Miller’s) breach of contract claims allege that they had enforceable contracts with RVG pursuant to which they performed services for RVG.
They claim that RVG owed them money when the Receiver was appointed, and that the Receiver is liable for RVG’s failure to pay them under the purported contracts.
By “performed services”, Gilmond, Napier and Miller of course mean nothing more than “we invested money in Zeek”.
(Gilmond, Napier and Miller’s) breach of contract claims fall squarely within the definition of a Claim pursuant to the Claims Order.
The Claims Order set a Bar Date of September 5, 2013, after which the holders of any
None of the Defendants filed a Claim with the Receiver requesting any money owed under any alleged contract with RVG.
Any breach of contract claim is therefore barred.
The reason no claims were filed of course was that at that stage, clawback litigation hadn’t been filed and the top investors still thought they had a shot at keeping the millions the collectively stole.
Moreover, some or all of these claims concern funds that the Court has already determined are Receivership Property, not the property of any Defendant.
The second batch of counter-claims were filed by Aaron and Shara Andrews, Durant Brockett and Rhonda Gates.
All allege: “The Receiver, acting as RVG, and by confiscating the funds in [Defendants’] RVG NxPay account, has failed and refused to pay [Defendants] for the services that [Defendants] performed.”
Whereas the first counter-claims pertain to funds not paid, in this second batch the net-winners are demanding they be paid funds seized from their NxPay accounts.
In the SEC Action this Court ruled that “NxPay® properly froze the accounts and the funds determined to be RVG funds must be returned to the Receiver pursuant to the Agreed Order.
Gotta love troll lawsuits based on emotion instead of facts…
Instead of intimidating the Receiver, which was obviously the intention behind the counter-claims, this happened:
Aaron Andrews, Shara Andrews, Innovation Marketing, Brockett, and Gates all assert identical counterclaims for tortious interference (with contract).
Defendants allege that they each had a contract with NxPay, and that the Receiver somehow “interfered” with that contract by accepting the funds that NXPay turned over to the Receivership pursuant to this Court’s Order.
The Receiver, however, cannot be liable for tortious interference simply by doing his job as Receiver as ordered and authorized by this Court.
Aaron Andrews, Shara Andrews, Brockett, and Gates next seek to hold the Receiver liable under the common law claim “Money
Had and Received,” contending that the Receiver is in possession of funds of which Defendants are the rightful owners.
The crucial issue in this type of action is whether the defendant has the right to retain the money.
This question has already been answered by the Court. The Court has already determined that the funds at issue do not belong to the Defendants.
Innovation Marketing, LLC, Aaron Andrews, Shara Andrews, Brockett, and Gates next seek damages for an alleged violation of their constitutional rights pursuant to 42 U.S.C. § 1983 or, alternatively, under a common law claim for violation of their rights under the Fourth Amendment to the United States Constitution.
Defendants contend that the Receiver violated their constitutional rights by confiscating the funds in their RVG NxPay accounts “without any adequate process to determine the true ownership of the funds,” thereby depriving Defendants of the “value, use and benefit” thereof.
First, the Receiver is a court-appointed officer and accordingly, cannot be held liable.
Despite Defendants’ allegation that the Receiver wrongfully “confiscated” the funds at issue, the Receiver took possession of these funds only pursuant to the Court’s Order that such funds be turned over to the Receiver.
Because Defendants do not allege the Receiver was acting outside his court-appointed authority in taking possession of the NxPay funds, their claim under § 1983 fails as a matter of law.
In their final counterclaim, Defendants Innovation Marketing, Aaron Andrews, Shara Andrews, Brockett, and Gates seek to hold the Receiver liable under North Carolina’s Unfair and Deceptive Trade Practices Act.
In addition to the fact that the Receiver is immune from this claim as described above, Defendants fail to allege sufficient facts of
deceptive conduct by the Receiver.
While Defendants describe the Receiver’s conduct with a variety of disparaging adjectives, including “illegal, offends public policy and is immoral, unethical, oppressive, unscrupulous, and deceptive,” such allegations are conclusory and speculative and are therefore insufficient to withstand a motion to dismiss.
Defendants have identified no representations, omissions or deceptive or misleading acts by the Receiver that affected commerce and caused them harm.
Defendant Miller asserts a counterclaim for conversion in his Amended Complaint.
This counterclaim must be dismissed for the same reason the “money had and received” claim is dismissed: Miller never owned the funds at issue.
Judge Mullen’s January 14th order was made on the filing of a collective Motion to Dismiss by the Receiver. The Reciver’s motion was granted in full.
The only outstanding issue between clawback from Zeek’s more notorious net-winners is the upcoming appointment of a pro-Ponzi rebuttal expert.
It’s expected that after an expert is appointed and pro-Ponzi arguments that have already been shot down are trotted out and dismissed, that the net-winners still holding out will finally have to pay the millions they stole.
Footnote: Our thanks to Don@ASDUpdates for providing a copy of Judge Mullen’s January 14th order.