COMMONWEALTH
of MASSACHUSETTS
PROBATE
AND FAMILY COURT
ESSEX,
ss DOCKET NO. 04D
1906-DVI
___________________________
Robert
Paul Nickse,
Plaintiff
v.
Jane
C. Daniel,
Defendant
__________________________
DEFENDANT’S
MOTION to SET ASIDE DIVORCE as to SEPARATION AGREEMENT
of
the PARTIES and REQUEST for IMMEDIATE INJUNCTIVE RELIEF
The
extraordinary case at hand has a ten-year procedural history
including an unrelated but relevant collection action ongoing in
another court. Rulings in said action were improperly used behind the
scenes in the probate court, to influence the outcome of divorce
proceedings in order to favor the Husband. A third-party Judgment
creditor, Vera Lee (hereinafter “Lee”) held a $22 million Award
against the Wife.1
Lee was represented by Frank Frisoli (hereinafter “Frisoli”)
whose intent to collect on the Award coincided with the Husband’s
intent to maximize his share of the marital assets in the divorce.
The two entered into a written Agreement wherein the Husband assigned
to the judgment creditor his interest in the marital property. In
exchange, the judgment creditor agreed pay the Husband $250,000 upon
the sale of the marital property, thereby acting as agent for the
Husband in the divorce proceedings. Attorney Frisoli had recently had
the Wife incarcerated for failure to make payments, thus he held an
extraordinary power to apply extreme duress on the Wife. Together,
the Husband and Frisoli planned to sell the marital property during
the pendency of the divorce proceedings, outside the oversight of the
Probate Court. When that effort failed, using a stayed 20-day prison
sentence obtained in the other court, the judgment creditor and the
Husband hammered the Wife into accepting a grossly inequitable
divorce agreement, against her own free will, that favored both of
them.
Jane Daniel (hereinafter the
“Wife” or “Daniel”) and Robert Nickse (hereinafter the
“Husband” or “Nickse”) were married on December 24,1998. The
Husband vacated the marital property in December, 2002. The divorce
proceedings began routinely — a brief four-year marriage, with a
clear and unequivocal record of the assets/liabilities of the
parties.
Nickse filed for divorce on
10/25/04. Within days, the judgment creditor’s attorney stepped
into the middle of the divorce proceedings by bringing suit in
Middlesex Superior Court. (No. 04-4428) against Daniel and Nickse,
(Ex.1) for fraudulent
conveyance for the tenancy by the entirety on the marital property.
From that point forward the lawful divorce process derailed.
The claim was dismissed with
prejudice, but at the end, on 3/1/06, Nickse, his attorney Orestes
Brown, (hereinafter “Brown”) and Frisoli signed an Agreement for
Judgment. (Ex.3)
This Agreement was the blueprint
for an unconscionable scheme to perpetrate a Fraud on the Court by
hastily selling the primary marital asset, the marital home, (then
under Rule 411)
outside the oversight of the probate court. (Ex.4, pg. 69, lines 19-24; 70, lines 1-4)
This side agreement was never disclosed by Nickse, a violation of
Rule 410, Mandatory Self Disclosure.
Per the Agreement, Nickse
disclaimed any interest in the Hovey Street property [a violation of
Rule 411] (Ex.3, no. 4, 6, 7). In
return, Nickse would receive 30% up to $250,000 from the proceeds of
the sale of the Property. Frisoli would handle the sale. (Ex.3, no.3, 9)
Through the execution of this
Agreement, Frisoli became Nickse’s agent, a unique asset with
extraordinary power to inflict duress on the Wife by obtaining
rulings against Daniel in an unrelated case in another court.
Frisoli had begun Supplementary
Process proceedings in Gloucester District Court on 7/25/05 and had
obtained a monthly Payment Order for $2,000 that Daniel could not
afford. (Exhibit 5, pg. 2) In
return for his services as “enforcer”, Frisoli received from
Nickse a warrantee that he (Nickse) “will not, without the prior
consent of Vera Lee (which consent may be granted or withheld in her
sole discretion) occupy said property in the future as his primary
residence…” (Ex. 3, no.5) thereby
contractually closing the door on any reconciliation between the
parties and ensuring that Frisoli’s plan to sell the marital
property would go forward.
In furtherance of the scheme to
hastily sell the marital property, on 3/2/06, a Quit Claim was filed,
signed by Nickse, notarized by his attorney Orestes Brown and stamped
for return to Frank Frisoli. (Ex. 6) Daniel filed a
Disclaimer. For months Frisoli initiated a series of maneuvers in an
attempt to remove Nickse’s name from the deed in order to ready the
Property for a quick sale, as detailed the Complaint in Equity. (Ex.7)
The Complaint in Equity filed on
6/7/06 by Daniel’s attorney, Anthony Porcello, (hereinafter
“Porcello”) challenged the Agreement for Judgment and stated,
“The purpose of the transfer by [Nickse] was to circumvent the
divorce process and permit [Nickse] to obtain assets out of the
marriage that he would not otherwise obtain under M.G.L. c. 208, s.
34. (Exhibit7, pg.2, no.12)
On 3/2/06 Frisoli wrote Daniel
that she was behind in her payments, threatened to seek “sanctions”,
and stated he would be holding a Sheriff’s sale on the marital
property in two weeks [a
violation of Rule 411] if
she didn’t “resolve the matter of the balance of approximately
$23 million which is owed on the execution.”(Ex. 8,bottom pg.1)
On 5/5/06 Frisoli made good on
his threatened “sanctions” by procuring a Contempt Order from
Gloucester District Court (Ex.5). Daniel was
sentenced to serve 10 days in MCI Framingham, a traumatic experience
that left her particularly vulnerable to further threats of
imprisonment. (Ex. 9)
More than two years into the
divorce process, substantial discovery had been completed and the
divorce remained contested with respect to the appropriate division
of the marital estate. The relative financial positions of the
parties had undergone a drastic change.
At the time of the marriage, the
Husband had income consisting solely of a monthly $600 SSDI check. In
his deposition, he characterized himself as a “kept man.”(Ex. 10, p. 25, line 21)
In contrast, the Wife owned a
home (hereinafter the “Hovey Street property”) which she
purchased for $500,000, with a $200,000 down payment and subsequently
paid, from her own funds, all the principal, interest, taxes,
insurance, most of the household operating expenses, plus
approximately $100,000 in renovations.
At the time of the divorce,
however, the relative financial positions of the parties had
completely reversed. The Husband had minimal liabilities and had
recently inherited assets with a value in excess of ¾ million
dollars. (Ex. 11)
The Wife, conversely, was
insolvent, subject to a $33 million-plus-interest adverse Judgment.
Her publishing business was in ruins from the lawsuit and she was
relying on income from renting rooms in her home and monthly Social
Security payments of approximately $550. Her sole asset was her
yet-to-be-determined share of the marital home.
Porcello filed “Defendant’s
2nd Pre-Trial Memorandum” on 2/26/07, which states, “Defendant
contests that she should be required to share any of her assets with
the [Husband].” (Ex. 12)
On 12/20/06 the Probate Court
ruled that Daniel’s Complaint in Equity 06E 0061-GC1 would be
consolidated for trial with 04D 1906-DV1, assuring that the improper
Agreement for Judgment would be scrutinized by the Probate Court.
(Ex. 13) A trial, which
Nickse, Brown and Frisoli ultimately thwarted, would have provided
Daniel the opportunity to present her meritorious case in court.
Conversely, the fact that this improper agreement was scheduled to be
reviewed by the Court, provided good reason for the parties to the
agreement to avoid a Trial.
Frisoli’s attempt to sell the
marital property before the Court had a chance to order an equitable
distribution was running out of time. On 3/28/07, the divorce was set
for Trial on July 24, 2007 and all Sec. 34 issues remained contested.
(Exhibit 14)
On 7/19/07, five days before the
scheduled contested Trial, Frisoli obtained another Mittimus against
Daniel, from Gloucester District Court, this time for 20 days
incarceration. Frisoli requested a stay until 8/16/07, three weeks
after
the divorce Trial date. (Ex. 5)
On the eve of Trial, Daniel went
to her lawyer’s office to prepare for what she had expected would
be a contested divorce and learned that there was a proposed
Settlement Agreement, engineered by Nickse and Frisoli without
Daniel’s participation, that would require the Wife to give her
husband 30% of the proceeds from the sale of her home, up to
$250,000. This was the same formula for division of the marital
property as in the Nickse/Frisoli Agreement for Judgment.
Moreover, Porcello told her, he
had received a phone call from Frisoli stating that he would use his
Mittimus to have her incarcerated if she refused to assent to the
proposed terms of the Separation Agreement.
Daniel asked Porcello, “Do you
think this is a bluff?”
Porcello responded, “I think if
you don’t sign, you’re going to jail.”
On the day of the Trial, Daniel
with her lawyer, and Nickse with his, sat at a table in the Clerk’s
office. Daniel was shown for the first time the final version of the
Separation Agreement she was to sign, giving her husband 30% of the
proceeds from the sale of the house, up to $250,000, with the house
to be sold within one year. Daniel could lose both her home and her
livelihood within the next twelve months. (Ex. 15)
Daniel entered the courtroom
frozen with fear. When the judge asked her if she had signed the
Separation Agreement of her own free will, to avoid imprisonment, she
replied the only way she could. She answered, “Yes.”
Years later, while preparing for
this action, Daniel saw for the first time the joint “Motion to
Convert Divorce Proceedings to a Joint Petition Pursuant to M.G.L.
208 Sec 1A” filed on July 24, 2007. (Ex. 16) It states,
[after] “extensive negotiations by the parties represented by
counsel, the parties have reviewed the Separation Agreement and are
satisfied it is fair and reasonable… [and] an equitable division of
the marital estate.” It is signed by Porcello and Brown. This
pivotal document contained intentional misrepresentations directed at
the Court to mislead the Court into believing that the Separation
Agreement of the parties had been accepted by both
parties after being
fully and fairly negotiated. It was perpetrated for the sole purpose
of avoiding a trial on the merits.
The barrage of threats from
Frisoli did not end with the divorce. The real estate bubble burst in
2007, just as Frisoli was attempting to sell the Hovey Street
property at the grossly inflated price of $1.8 million. Frisoli’s
threats of imprisonment continued unabated in dozens of letters and
emails to Daniel as he struggled to sell the overpriced Property in a
collapsed marketplace.
On 4/17/2012, in Gloucester
District Court, Daniel was sentenced to 20 days at MCI Framingham.
(Ex. 17) She served the
entire sentence.
Daniel’s Settlement Agreement
with Vera Lee, dated 8/16/07, contained a provision that Daniel could
not file bankruptcy. (Ex. 18,line 1) Daniel
relied on that prohibition until she met Bankruptcy attorney Peter
Kaplan and learned that the provision was unenforceable.
Daniel’s Bankruptcy filing on
10/31/13, with its automatic restraint on creditors’ collection
actions, halted Frisoli’s threats and freed Daniel, for the first
time since the divorce, from the fear of incarceration. The
Bankruptcy action sought to discharge both Nickse and Lee. The Nickse
matter was referred to the Probate Court for resolution. The Lee
matter is pending.
Brown’s firm, Metaxas Brown,
picked up where Frisoli left off at the time of the Bankruptcy
filing. Metaxas Brown has filed a Contempt action and sought an Order
for the sale of the Hovey Street property, the control of which was
acquired by fraud. Metaxas Brown has continued the threats to the
present time. (Ex. 19)
The Hovey Street property has
been placed in the hands of a Special Master and, on information and
belief, there is currently an offer to purchase.
This case rises to a very high
level of egregiousness in that it involved not one, but two, Officers
of the Court who colluded with the Husband to perpetrate an
elaborately orchestrated Fraud on the Court. The improper activities
comprised not one or two events, or even a month of reprehensible
conduct, but rather a decade of knowing and intentional misconduct,
buttressed by a decade of knowing and intentional infliction of
duress on the Wife, in order to secure her submission to their
wrongful purposes.
Fraud on the Court carries no
statue of limitations, however an action seeking relief must be
brought in a timely manner. Given the extraordinary circumstance
surrounding this case and the ongoing nature of the misconduct, this
action is filed in a timely manner.
Allowing the Settlement Agreement
to stand would constitute a grave miscarriage of justice.
The
Wife, Jane Daniel, and her tiny publishing company, were sued by
co-authors of a Holocaust memoire, Misha Defonseca and Vera Lee, for
alleged breach of contract. In August, 2001, at the conclusion of an
11-day jury trial, the Court issued two awards, $22 million to the
purported Holocaust survivor, $11 million to ghostwriter Vera Lee,
totaling more than $33 million plus interest, the third largest
award in the history of the Commonwealth. In 2008, Daniel exposed
Defoseca’s tragic Holocaust tale as a hoax. Defonseca’s $22
million award was subsequently vacated by a Mass Appeals Court,
which ruled that Defonseca had perpetrated “an extraordinary Fraud
upon the Court.” (Ex. 2)
Despite the Court’s finding that “the entire trial was infected
by fraud,” the $11 million award to Vera Lee was allowed to stand;
in her case the one-year statute of limitations under 60(b) (2) and
(3) which might have granted relief, had expired before the hoax was
discovered.
