Fraud in the Court!

STATE OF SOUTH CAROLINA
COUNTY OF RICHLAND
COURT OF COMMON PLEAS

This following case arises from a judgment enforcement (Supplemental) proceeding, in which Glen K. LaConey attempted execution of a judgment against Xavier Troy Smith. The trial court dismissed the proceedings in favor of Xavier Troy Smith. LaConey filed his Notice of Motion and Motion to Alter or Amend Judgment. Special Referee Corbett denied the motion. LaConey appealed.

FACTS

In 2002, realtor, Lori Pelzer and her brother, realtor, Xavier Troy Smith, defrauded their great-aunt, Lynn G. Yacoubian, by promising to invest Yacoubian's money in their real estate company, Home Assist Real Estate, LLC. Additionally, Smith convinced Yacoubian to purchase distressed homes as investments. Instead, Smith and Lori Pelzer converted Yacoubian's money for their personal use. Smith left Yacoubian with two defaulted mortgages.

Yacoubian sued and was awarded a default judgment against Home Assist Real Estate, LLC in the amount of $26,500.00; and against Xavier Troy Smith for conversion and breach of trust in the amount of $95,743.69 on February 28, 2005. The default judgment was not joint and several. Yacoubian subsequently assigned the default judgment to LaConey for "valuable consideration" and duly filed the assignment on September 23, 2005. The assignment contained no recital of the specific nature of the consideration. Additionally, the assignment recited the amount of $26,500.00 entered against co-defendant Home Assist Real Estate, LLC and erroneously omitted any recital of the amount of $95,743.69 entered against co-defendant, Xavier Troy Smith as a scrivener's error. [Additionally, there are state and federal tax liens, filed against Xavier Troy Smith, in the Richland County Register of Deeds Office, totaling about $60,000.00!]


LaConey moved to enforce the judgment through supplementary proceedings against Smith. The matter was referred to James J. Corbett, Esq. to serve as Special Referee (a lawyer appointed to serve as a judge in special cases) by Order of Reference filed by the Honorable L. Casey Manning on April 3, 2013.

Special Referee Corbett filed his Order and Rule to Show Cause on August 27, 2013 directing Smith to appear for supplementary proceedings on September 13, 2013. Smith was personally served at his real estate office, Aggressive Realty, LLC by Serve One, Inc on August 29, 2013. On or about September 5, 2013, Smith, represented by his counsel, Robert L. Reibold, Esq., submitted to Special Referee Corbett and to LaConey, a Notice of Motion and Motion for Relief from Default Judgment pursuant to Rule 60(b)(4), SCRCP, supported by his affidavit, to vacate the default judgment entered against him alleging that he was not served with the Summons and Complaint in the underlying suit; that he was unaware of the underlying suit filed, or of entry of the default judgment against him; and that the default judgment is void for lack of personal jurisdiction. Additionally, Smith submitted a Notice of Motion and Motion to Dismiss and/or Stay Supplemental Proceedings, alleging that because the South Carolina Supreme Court ruled that LaConey was engaged in the unauthorized practice of law previously, LaConey must be doing so in this case. (See Roberts v. LaConey, below.) Neither the Motion for Relief and Smith's supporting affidavit, nor the Motion to Dismiss were filed in the court record.


Special Referee Corbett excused Smith from appearing for supplementary proceedings and heard arguments on Smith's motion in lieu of supplementary proceedings. Special Referee Corbett issued no Order amending the nature of the proceeding. Additionally, during the September 13th hearing, no evidence was submitted in support of Smith's affidavits that he was not or could not have been served with the Summons and Complaint, or otherwise noticed of any hearings in the matter.
Smith swore in his affidavit, in support of his Motion for Dismissal, that he was in fact employed at Bob Capes Realty office on the date and at the address of purported service; however, that he was "meeting with clients and viewing homes" at the time of purported service. Smith has presented no evidence that he was "meeting with clients and viewing homes" or otherwise engaged in any activities that would have precluded service upon him on the date and time of purported service.


On November 18, 2013, Special Referee Corbett filed his Order on Motion to Dismiss directing the parties to conduct limited discovery in support of their positions. LaConey served Smith with a Request for Admissions via Certified Mail, Return Receipt Requested, which was delivered on December 20, 2013. Smith's responses to Requests to Admit included a denial, stating that he was unable to recall his activities on the date and time of purported service of the Summons and Complaint on the basis that LaConey sought information about events "at a specific hour on a specific date over 10 years ago". Smith conducted a deposition of Yacoubian on December 30, 2013, which LaConey elected not to attend. LaConey was not served with any other discovery requests. LaConey duly filed the originals of his Request for Admissions and his Discovery Status Report, and LaConey served copies of same upon Robert L. Reibold, Esq. and upon Special Referee Corbett.


Smith did file a Notice of Motion and Supplemental Motion to Dismiss on March 4, 2014 alleging that LaConey was engaged in the unauthorized practice of law. Amazingly, Smith raised no claims whatsoever in his Supplemental Motion to Dismiss that he was not served with the Summons and Complaint or, otherwise, that he lacked any knowledge of entry of the default judgment.


On March 4, 2014, Smith submitted to Special Referee Corbett and to LaConey, an affidavit, which was not filed in the record, that the Bob Capes Realty office at 7335 Saint Andrews Road in Columbia, South Carolina had closed and relocated in early 2004, before Smith could be served by Certified Mail with notice of a damages hearing. Again, Smith presented no evidence that the office at 7335 Saint Andrews Road had closed or, otherwise, that mail could not have been forwarded to any other location accessible to Smith.


Special Referee Corbett asserted in his Order of Dismissal that a hearing was held on March 13, 2014, during which Smith purportedly presented copies of a letter and a magazine addressed to him at Bob Capes Realty office at 3561 Dreher Shoals Road in Irmo, South Carolina, which somehow evidences that the Bob Capes Realty office at 7335 Saint Andrews Road, had closed in early 2004; thereby, precluding Smith from being served with notice of a damages hearing. However, no order for and no official transcript of the purported hearing appears of record. "[A] party who controverts the validity of a judgment generally bears the burden of showing such invalidity by proper evidence." 47 Am. Jur. 2d Judgments Sec. 800, at 378-79 (2006). LaConey contends that avoidance of the default judgment, based solely on Smith's  affidavits, without any supporting evidence, would have a chilling effect upon all default judgments.


LaConey relies on the Affidavit of Service, duly filed by Belec's Process Service on September 16, 2003, which recites in pertinent part, that the process server, Gail Belec, did serve the Summons and Complaint, and other documents "on the Defendant by delivering to Xavier Troy Smith personally" at 7335 Saint Andrews Road, Columbia, South Carolina. The Affidavit of Service notes the date and time of service as September 15, 2003 at 12:26 p.m., respectively.


A review of public records in the Richland County Office of the Register of Deeds disclosed that Smith's wife, Paulette Parker-Smith, purchased a homestead at 203 Silverwood Trail in Richland County, South Carolina solely in her name in 2010, after entry of the default judgment in 2005. LaConey contends that the nature and timing of the transaction suggests that Smith did have knowledge of the default judgment on the basis that Smith withheld his name from the property deed to defeat execution against the property, or otherwise, that the default judgment adversely affected Smith's credit; thereby, precluding Smith's property purchase jointly with his wife.


In his Order of Dismissal, Special Referee Corbett's assertion that Lynn Yacoubian testified in her deposition that the only consideration she received in exchange for the assignment of judgment was the promise to receive a percentage of the proceeds LaConey recovered from the judgment is contradicted by Yacoubian's deposition. Contrary to Special Referee Corbett's assertion, the deposition reflects that Yacoubian testified that she did not recall with certainty that LaConey solicited to enforce the judgment on her behalf based on any promises, inducements or agreements; rather that their initial encounter was a casual meeting at the courthouse in which she believed with uncertainty that LaConey said "I can help you". Yacoubian was unable to produce any written contracts between her and LaConey. In fact, Yacoubian testified that she only "believed there were percentages involved".

Special Referee Corbett further omitted that Yacoubian testified that she failed to maintain contact with LaConey after the assignment, which suggests that there was no continuing business relationship between them, and that Yacoubian had no expectation of future payment from LaConey. Yacoubian further testified that while she would have enjoyed receiving money in exchange for the assignment, she sought greater satisfaction from the prospect that Smith would "pay somebody", even if Smith would not pay her. Special Referee Corbett omitted that Yacoubian further testified that she was so angry at Smith that the judgment had become a source of emotional distress to her and that "if he could get it he was welcome to it, Mr. LaConey", which indicates that the assignment was voluntary, and that there were no solicitations, promises or inducements from LaConey. Special Referee Corbett, in his Order of Dismissal of Supplemental Proceedings, declined to adopt "dislike and satisfaction" (whatever that means) as valuable consideration. LaConey contends that no money or other consideration was required based on Yacoubian's voluntary, unsolicited assignment.


There has been no authorities presented that prescribes what property, money or other consideration Yacoubian is allowed to accept as valuable in exchange for the stated assignment, if required. Additionally, there have been no authorities presented that precludes Yacoubian's right to voluntarily dispose of her judgment as she pleases without receiving any consideration. Likewise, because LaConey now owns the judgment, he has the right to share some of the proceeds with Yacoubian, if he pleases, to the extent that there was no prior agreement to do so.


Special Referee Corbett's assertion, in his Order of Dismissal of Supplemental Proceedings, that "LaConey admitted" and that both "LaConey and Yacoubian testified each was to receive a percentage of any recovery" or of any other admissions or testimony, during any purported hearing on March 13, 2014, is unsupported by the court record.


Special Referee Corbett asserted that the assignment of judgment is void against Smith on the basis that the assignment recited only the amount entered against the co-defendant, Home Assist Real Estate, LLC and omitted any recital of the amount of the judgment against Smith. However, Special Referee Corbett omitted that Yacoubian testified repeatedly in her deposition that she sought to assign the judgment against "him" (Smith) to LaConey and that she testified that she "assigned everything to Mr. LaConey", and "isn't Smith Home Assist?", which suggests that Yacoubian intended and believed that she had in fact assigned the judgment against Smith to LaConey.


LaConey contends that in this matter in equity, Special Referee Corbett failed to recognize the assignment as an equitable assignment, requiring no particular form, which, if not cognizable at law, would be recognized and protected in equity. Additionally, any language showing an intent to transfer property interests would be recognized no matter how poorly expressed. Parol and written assignments are of equal validity. See Player v. Player, 240 S.C. 274, 125 S.E.2d 636 (1962), and Troublefield v. Heyward, 111 S.C. 293, 97 S.E.2d. (1919). Special Referee Corbett failed to consider the intent of Yacoubian as well as extrinsic circumstances that would be admissible to aid in interpreting the written instrument. See Lawrence v. Burnett, 116 S.C. 347, 108 S.E. 142 (1921). 


Special Referee Corbett did acknowledge in his Order of Dismissal that "Yacoubian did not reserve any rights in the judgment"; therefore, Yacoubian retained no interests that could be represented directly by LaConey.


Special Referee Corbett's assertion that in Roberts v. LaConey, 375 S.C. 97, 650 S.E.2d 474 (2007), the South Carolina Supreme Court held that LaConey was engaged in the unauthorized practice of law based on purported threats made by LaConey to Roberts, constituted the unauthorized practice of law is unsupported by the Supreme Court's ruling. Those matters were not before the Court. See note 2 of the Supreme Court's opinion. Additionally, Special Referee Corbett's assertion that LaConey sent Smith a handwritten letter threatening to turn Smith into the IRS Criminal Division, if he "failed to pay LaConey on the judgment", is unsupported by any evidence in the record. Even if it were true that LaConey issued such threats, such threats, per se, would not constitute the unauthorized practice of law, as decided in Roberts. Go to Fraud in the Court!

Special Referee Corbett's blatant and numerous false assertions, and omissions favorable to Smith evinces Special Referee Corbett's bias towards Smith and prejudice against LaConey.


The Petitioner contends that Special Referee Corbett acted in an arbitrary, capricious, and unreasonable manner; and that Special Referee Corbett's ruling has a palpably incorrect or irrational basis. Further, it is obvious that Special Referee Corbett either did not consider, or failed to appreciate the significance of competent, probative evidence.


In an action in equity, the appellate court will disturb the ruling of a special referee when the ruling is wholly unsupported by evidence or controlled by an erroneous conception or application of the law. See Maddux Supply Co. v. Safhi, Inc., 316 S.C. 404, 450 S.E.2d 101, 102 (Ct. App. 1994); T.W. Morton Builders, Inc. v. von Buedingen, 316 S.C. 388, 450 S.E.2d 87, 92 (Ct. App. 1994); Jefferies v. Phillips, 316 S.C. 523, 451 S.E.2d 21, 22-3 (Ct. App. 1994).


Additionally, in an action in equity, the appellate court may find facts in accordance with it's own view of the preponderance of the evidence. See  Mi Co. Ltd. v. McLean, 325 S.C. 616, 623, 482 S.E.2d 597, 601 (Ct. App. 1994); Hayne Federal Credit Union v. Bailey, 327 S.C. 242, 248, 489 S.E.2d 472, 475 (1997); Houck v. Rivers, 316 S.C. 414, 418, 450 S.E.2d  106, 109 (Ct. App. 1994); S.C. Federal Savings Bank v. Atlantic Land Title Co., 314 S.C. 292, 442 S.E.2d 630, 631 (Ct. App. 1994).


James Corbett charged LaConey a fee of $475 to serve as special referee in the Xavier Smith case, and charged another $475 to serve as special referee in the case of Glen K. LaConey v. Lori Pelzer, Judgment Roll No. 247572. LaConey remitted the fee for the Pelzer case by credit card. Corbett issued no orders, nor has Pelzer been served with any orders since attorney Corbett was appointed as special referee. Corbett refused to refund the fee in the Pelzer case, upon LaConey's request, after LaConey sought appointment of a substitute special referee. Additionally, Corbett has ceased all communication with LaConey. LaConey disputed the $475 charge to Corbett and the credit card provider credited the amount to LaConey's account.


On information and belief, Xavier Troy Smith absconded to Conyers, Georgia only days before Special Referee Corbett's Order of Dismissal. Smith is now a realtor with Crown Realty Professionals in Conyers, after abruptly resigning his employment with Aggressive Realty, LLC in Columbia, South Carolina. Coincidence or conspiracy?


LaConey will seek civil arrest of Xavier Troy Smith, for absconding from the jurisdiction of the court, with intent to defraud a judgment creditor, as allowed by law.


James J. Corbett is a pirate of a lawyer who is a partner with the law firm of Holler, Dennis, Garner, Corbett, Ormond, Plante & Dunn.