125 West Street
Hyde Park, MA 02136 (617)
To: The Judicial Council of the First Circuit to Review Judicial Complaints of Misconduct
Re: Chief Judge, Carroll J. Kenner
Case #: 96-10123-CJK
STATEMENT OF ALPHONSE MOURAD
On January 9,1996, V&M Management, Inc., of which I was President, founder and sole stockholder, filed for chapter 11 bankruptcy to stop a scheduled January 9,1996 foreclosure on V&M's 276 unit Roxbury property.
* The case was assigned to Judge Carroll J. Kenner. Judge Kenner's handling of this case from the start has been biased and prejudicial to me as a Lebanese immigrant. V&M's First attorney, Frank Kirby told me that Judge Kenner is biased against Arabs and that his last Middle Eastern client was financially destroyed by Judge Kenner. Kirby expressed concern to me mat V&M would suffer a similar fate with Judge Kenner. No words could have been more prophetic.
* Attorney Kirby filed an Adversary Complaint to Determine the Extent, Priority and Validity of Certain Liens. Judge Ker^ier refused to hear mis complaint or allow Attorney Kirby to explain why V&M was forced into bankruptcy, die forgery of my name on a bogus note dial never existed by a creditor named Mario Nicosia and his attorneys, and how diree notes of $50,000 eacli could accumulate $1,550,568 in principal, interest and penalties in addition 10 having received $449,500 in interest payments.
* Judge Kenner refused to allow Attorney Kirby to introduced colored exhibits costing $450 to produce, showing die claimed principle interest and penalties of Mario Nicosia. Judge Kenner accepted the $1.5 million figure purged by Nicosia's attorneys, widiout any examination of die evidence or exhibits or contested issues. Judge Kenner lionored the word of a friendly attorney, Gary Cruishank, over die word of V&M's attorney. Perjury lias been committed by Mario Nicosia and his attorneys in Judge Kenner's Court and she refuses to acknowledge it. Mario Nicosia is currendy being prosecuted and fined for illegal asbestos removal in a building he owns and for endangering die lives of die residents who live diere. All of die residents had to evacuate die building and are no longer allowed to toucli any ofdieir belongings. Please see Exhibit "A", The Boston Herald and Soudi End News articles about Mario Nicosia to furdier illustrate his character. Tills despicable human being is die man Judge Kenner defended and protected in her Court.
* Later, in June 1996, die Court-appointed Trustee challenged die validity of die Mario Nicosia note(s) and of a setdement proposal on die very grounds dial V&M offered. The Trustee filed Motions questioning die validity Nicosia's notes and claimed diat he was overpaid. After diese Motions were filed, diere was absolutely no opposition by Nicosia or his attorneys and has yet to make an appearance in die Bankruptcy Court since. The questions diat remains are, if Mario Nicosia was overpaid and he was die one who foreclosed on die property, forcing V&M into Chapter 11, and die Court and Trustee acknowledge die fact diat Nicosia was overpaid, dian whv dose V&M continue to be under die control of a Trustee and in die Chapter 11 Bankruptcy Court? Why wont Kenner return die Debtor, V&M Management, Inc. to its rightful owner when the foreclosure should never of taken place?
*When Judge Kenner refused to allow Attorney Kirby to speak , Kirby told me mat he could no longer be effective in die case, because Judge Kenner did not like him either. Kirby dien re-introduced me to Attorney Harold Murphy ofHanify & King, whom I had met eadier in December 1995. Murphy had requested a S25,000 up-front retainer dial V&M could not afford at diat time. V&M retained Kirby who took a $14,000 retainer. After Kirbv wididrew in late January 1996, Harold Murphy was retained, and die Court allowed, on 2/14/96, his application for employment and a $25,000 retainer.
*I was told by both Kirby and Murphy dial Judge Kenner likes Attorney Murphy, and that they had an out-of-court friendship. Murphy made it very clear to me, from day one, diat he did not care if I fought or demonstrated against die BRA, die Attorney General, HUD, City of Boston, and state Judges, but he also stated diat "die day I take a public stand against Judge Kenner is die day I (Murphy) would resign from representing V&M's interests."
* On February 1, 1996, die BRA, City of Boston and die DOR filed a Motion for die Appointment of a Trustee, and an expedited determination of said Motion. An April 1,1996 hearing date was set. judge Kenner denied V&M discovery against die moving parties.
* At the April 1,1996 hearing. Judge Kenner severely restricted V&M's defense and cross-examination of die DOR witness. At die end of the hearing. Judge Kenner announced her decision to Appoint a Trustee before she considered or reviewed die evidence or documents. The Court's Findings and Conclusions on April 1,1996 were not correct. Judge Kenner delivered a political decision. By appointing a Trustee, die Judge accomplished in one day what die BRA, DOR, Attorney General's office. City of Boston, and HUD could not accomplish after 15 years of litigation against V&M and Mourad.
* One of Judge Kenner's reasons for appointing a Trustee is die $923,000 transaction/loans charged to Mourad in 1995. The Court did not allow Examiner Braunstein to complete his investigation to ascertain die sources of this $923,000, and the Examiner's report gave die false and erroneous appearance that Mourad took $923,000 from V&M in 1995. That is uoi true.
* According to Accountant Steven Slavin, in his February 6,1997 letter, see Exhibits, only $61,857 of die $923,000 in advances remain unaccounted for or is attributed to Mourad, and said sum is a reasonable compensation for Mourad's services to V&M for 1995. In view ofdiis information, I submitted a Motion To Correct The Courts April 1,1996 Findings and Conclusions. Slie denied my Motion on die only basis diat it contained rehashed arguments, wliich is not true. I would like dlis committee to keep in mind diat my business / my soul source of livelihood / for whicli I invested fifteen years of my life, was deliberately and maliciously sei2ed from me in one afternoon by a Judge whose incompetence and prejudicial bias mis-examined die facts and dogmatically refused to acknowledge new evidence, restoring my right to manage my property.
* I appealed dial ruling to die U.S. District Court, C.A. No. 96-CV-11199-NG, but on December 3,1996, the Court dismissed my appeal. On October 17,1996,1 moved to substitute myself for V&M Management in the Bankruptcy case. Judge Kenner said she was sending that Motion to Substitute to die U.S. District Court, but said Motion was never sent or entered on the U.S. District Court docket.
* For the past ten months. Judge Kenner has not given any of my motions due or fair consideration, on die merits, and has uai allowed me to speak at hearings or status conferences. No hearings on my Motions have ever been scheduled.
* On October 10,1996,1 made an offer to purchase me property with a $5.5 million commitment from The Multi-Loan Network - the only offer made during die ten mondi bankruptcy. Judge Kenner denied die Motion on January 27,1997 widiout a hearing.
* At an October 17,1996 status hearing. Attorney Leonard Krulewlch rose to speak to rebut me Trustee's assertion mat there has been no cash offer to buy die property. Attorney Krulewich sought to advise me Court about die $5.5 million dollar cash offer by Mourad, Owens & Associates. Judge Kenner cut Attorney Krulewich off, told him to sit down without allowing him to speak, and told him to put die offer into die form of a Motion. Judge Kenner said "You know where die clerk's office is Mr. Krulewich-"
* Attorney Krulewich, promptly on October 22,1996, filed a Motion to Compel Trustee to Accept Purchase Offer. Judge Kenner sat on die Motion until January 24,1997, when she denied it widiout a hearing. On January 14, 1997,1 requested dial Judge Kenner recuse herself. She denied said Motion on January 27,1997, widiout a hearing.
* On January 24,1997,1 filed a 44 page Motion For Relief from die April 1,1996 Order Appointing a Trustee, witli 31 Exhibits. On February 5,1997, she denied die Motion, on false grounds and widiout a hearing.
On February 13,1997,1 filed six(6) Motions:
1. Motion To Correct the Court's Findings and Conclusions
2. Motion To Reconsider 2/5/97 Denial of Verified Motion For Relief From April 1,1996 Order
3. Motion To Clarify Standing To Represent V^yM Management
4. Motion To Reply to BRA's Opposition To Motion For Relief
5. Motion For a Change of Venue and Assignment of Case To Another Judge
6. Motion For Hearing To Allow Counsel To Argue Motions
* On February 24,1997, Judge Kenner denied four of the Motions, without a hearing and without allowing Counsel to argue the Motions. These Motions set forth the grounds for investigation under 28 U.S.C sec-372. On March 1 1997, Judge Kenner denied the Motion to Clarify Standing, widiout a hearing. She has not ruled upon die Motion For a Change of Venue or Reassignment of Case To Anodier Judge. On March 20,1997 I filed a Second Motion To Clarify Standing. Slie has vet to rule on it.
* Judge Kenner has lost the capacity to faidy or impartially adjudicate my rights. Her rulings have destroyed die financial and physical healdi and well-being of my family. Several attorneys, some of which are creditors of die debtor and whom I am aquatinted widi, have told me dial I have no chance of winning any Motions dial I presen before Judge Kenner because she "dislikes me so much."
*My former attorney, Harold Murphy, who had worked on this case and who knows judge Kenner very well, said "Mourad, you willoat have a fair hearing before Judge Kenner", and suggested that I do not file my Proof of Claim for $135,000 because "Judge Kenner would be bias and it would be more appropriate to litigate it in the State Court." He also said "Mourad, if you bring in a commitment letter to refinance, it would be wise to put it in someone else's name so that you might haw a fair chance."
*The original attorney that first litigated this case, Frank Kirby, hinted, after Judge Kenner would not allow him to explain why V&M was forced into bankruptcy, or speak at all for dial matter "Judge Kenner is biased toward Arabs or Lebanese People and you are now the second Arabic client I have represented in front of her, and lost." Leonard Knilewhich, the attorney representing Mourad, Owens & Associates, said to me "It doesn't matter how many Motions I file on jour behalf, even though you are correct and shouldn't be in this mess, you will lose because she completely dislikes you!!!"
*Judge Kenner has been prejudicial and detrimental to the administration of justice. The investigation other conduct and ability to hear and decide die case are requested and required. Judge Kenner intentionally and deliberately sabotaged every effort I have put forward to rectify die situation and as a result has tragically effected die Mourad family relatives who have mortgaged their homes for V&M, and who's homes are being foreclosed on. Judge Kenner also shut down tenant services such as die research center and multi-cultural groups-everyone is out on the streets. The tenants lost their community room and have been forced to meet out on die Streets as well. Judge Kenner is a disgrace to die Bankruptcy Court. She has destroyed many people's lives and the last chance for empowerment of die Black community of Lower Roxbury.
The following are a few points that were raised and never heard or decided in my appeal or Motion For Relief from the April 1,1996 order appointing a Trustee:
1. Judge Kenner summarily refused to consider these points when she abrupdy and abusively denied my Motion For Relief from the April 1, 1996 order appointing a Trustee, on February 5,1997, without a hearing or an opportuniny for me to be heard: The Court erred or abused her discretion by appointing a Trustee, during the debtors Sec. 1121 (b) exclusmfy period, and not protecting the debtor's rights to first litigate the unresolved tax and c. 121 A issues, damages and back room deals that would haw exposed federal, state, city and BRA officials, where HUD misrepresented the property's C.121A status as the time of the 1981 sale, under-budgeting tl.ie rents by 30%, failed to provide for a reserve replacement account and failed to transmit the DOR-sent C.121A tax bills to V&M when the City of boston was taxing V&M under G.L. c.59.
II. The evidence relied upon by the governmental entities (the BRA, DOR, and City of Boston) in support of their motion for a Trustee, and by the Court in her allowance of the motion, relating to advances taken in 1984, wvre too old, stale and insufficient to find that the debtor's principal mismanaged corporation to warrant the appointment of a Trustee under 11 US.C. Sec. 1104 (a)(1), where
III. V&M was under no C.121A Agreement 1984 when V&M paid off its HUD mortgage, and was free from any BRA or federal. financial controls.
IV. The Court erred in allowing, and not disqualifying, the lead attorney for the three goiiernmental entities, Saul Schapiro, to submit a detailed Aflidawt of the debtor's finances and testify at the hearing at the same time he represented the movingparties; had Schapiro been disqualified or his Affidavit stricken, there would have been insufficient evidence to warrant the appointment of a Trustee. Here Attorney' Schapiro breached this most basic of evidentiary and ethical rules (DR 5-101 (B), DR 5-102).
V. The Court exhibited an unfair bias against tljc debtor in refusing to hear evidence oft/je back room deals and bad fait)) oftfje BRA. Mayor Flynn, Stephen Cojie, Peter Drier and BRA Attorney'S aul Schapiro, the recipient of over f 500,000 in legal fees for BRA/VI^M litigation.
VI. The Court unfairly denied the Debtor its right to cross-examine the DOR Tax Examiner on the DOR'S cancellation of its December 20, 1989 agreement to subordinate the balance of its disputed tax Hens, upon payment of $500,000, in a sdieduled $3 million refinancing by Grey stone 'Funding Corporation, as showing the DOR'S political agenda, in conjunction with t))e BRA and City of Boston, to remove Mourad and V&M Management from the Mandela Development in order to cover up the back room deals that killed the 1986 contracted-sale between V&M and Edmund Shamsi and Shamir Construction Corp.
VII. The Court incorrectly construed 11 US.C. Sec. 1104(A)(1) in allowing the governmental entities' (BRA, DOR and City of Boston) Motion for Appointment of a Chapter 11 Trustee within the 120 DAY exclusivity period for fling a reorganisation plan, of a privately-owned, low income. Section S-subsidized project housing 1,500 tenants, before permitting the debtor to flit a reorganisation plan.
VIII. The Court erred or abused her discretion in denying the Debtor's Motion to Continue the Hearing wl)en the goivmmenta! entities refused any discovery and failed to appear at tl)ree noticed depositions.
* Most recently and perhaps even more disturbing, judge Kenner denied my motion to allow me to visit my property
with die appraisers. The motion was denied without an explanation. This is vindictive and is blockading my efforts to provide my bank with the information necessary to fully satisfy die requirements of die loan. (see exiiibit) I was able to maneuver around dlis blockade and complete die appraisal.
* What remains most perplexing and strongly substantiates my claim of bias is mat I have provided die court widi a commitment letter totaling $5.5 million dollars to remove die property from Chapter 11. The Judge would not even allow my attorney to disclose die information in court. The court appointed trustees have valued die propem at $100,000 and here I secure $5.5million (die highest bid dius far) and still die struggle goes on. We are now submitting our management plan and know diat Judge Kenner's bias will prompt her to rule against our plan, against our bid, matter what die terms - no matter how much money we bring forward - die property will never be returned to me. Creditors, lawyers, and numerous odier entity involved have made it clear to me diat dlis Judge's bias is so strong diat I will never own or manage the Mandela property again, (see exiiibit).
Do to the lack of personal funds, exhibits have been kept to a minimum. Full disclosure of submitted court documents can be found upon request at die federal courdiouse. Please examine die docket at die U.S. Bankruptcy Court at 10 Causewav Street, Boston, for full disclosure. The case number is 96-10123-CJK. Any consideration vou give to dlis claim will be gready appreciated.
I declare under the penalties of perjury that the statements made in this complaint are true and correct to the best of my knowledge.,
Aiphonse Mourad - April 8th, 1997