Wednesday, January 9, 2019

Choosing an Attorney for your best Medical Advice

As the frost covered grounds of Indiana begin to thaw during the closing days of Winter the amorous carnal longings of my extended family seem to burst forth. December births are common among my cousins who added to the clan this year in furtherance of this synchronized generational expansion. While the two newborns healthfully departed their maternal denizens their respective forays into the greater world have proceeded at distinctly contrasting rates.

Following the ritual Winter family gathering my parents queried between themselves why one baby is being brought into the throngs of fellow beings while the other is kept hunkered down in its domestic fortress. More particularly why is one doctor saying do not take the baby out of the house while the other encourages wanderings.

Such contrasting suggestions bring forth no bewilderment to my mind. However, they may not be apparent to those outside my fields of practice. Thus, I present this examination of general professional counsel using these babies as case in point.

The answer for why two medical professionals advising differently on the same circumstance comes down to their respective legal counsel and statistically probabilities of harm. In this case I will use a hypothetical statistical risk assessment using bacterial meningitis.

Let’s say that, while only considering whether a child is quarantined for the first two post-utero weeks of life, 1/3 of meningitis cases are of quarantined children while 2/3 are of environmentally exposed children. Based upon this 2:1 ratio legal counsel for the insurer of the first doctor says that newborns should be quarantined for the first two weeks. The reasoning behind this is that in a medical malpractice lawsuit against the doctor an attorney would raise the issue that the doctor knew that the risk was twice as high for babies not quarantined. Thus, the insurer for that doctor or a medical association includes the quarantine recommendation in its “best medical practices for doctors” guidebook.

So, what about the second doctor? Well, her insurer has legal counsel which read a medical journal article stating that 2/3 of cases contracted by babies outside the home occur from just a few risky scenarios. These included being bottle fed rather than breast fed [contaminated bottle] or exposure to the environment of livestock carrying e-coli or the workers around the livestock. Keep in mind that this is simply my imaginary statistics and causes.

Here is how this works out mathematically thus far;
3/9 cases occur in quarantined children
2/9 cases occur in exposed children
4/9 cases occur in exposed children

Setting aside cases from these few risk factors the ratio of contracting bacterial meningitis for quarantined versus exposed children is 3:2. Armed with this information the insurer for the second doctor publishes an advisory that says newborns are less likely to become infected if they are environmentally exposed but livestock environments and bottle feeding should be avoided.

This dichotomy demonstrates two contrasting styles of thinking. The first is the blanket approach that does not allow for judgment or deliberate action. The second is the case specific approach which requires deliberation and decision which reduce risks by a greater degree. The second approach is on the decline.

The overall goal is the reduction of risks. That is risks to the professional not you the consumer. Again, in the medical field this is apparent in the scheduling of elective surgery. It could be for a knee replacement. The doctor has two years of medical history, x-rays, and field knowledge about the scope, progression, and pain associated with the joint failure. The patient asks, “When should I get this done?” In years gone by the answer may have been, “You could wait until the end of Summer when your son goes off to college.”

But someone who had been told that message was going down some stairs the week before the post Summer surgery was scheduled. While doing so she lost her balance and fell which resulted in numerous fractures. During trial one expert said the deteriorating knee was a likely contributor and that the doctor should have scheduled the surgery earlier.

So, now the response from the doctor is, “I suggest doing it as soon as possible but I will schedule it for when you feel like you want it done.” Thus, if some adverse experience should occur pre-operative time then the doctor can fall back on the patient deciding to wait, against medical advice.

This professional decision making based upon legal advice is ubiquitous in our litigious society. Here is a hiring example.

This is based on actual events. A school hired a teacher based upon educational credentials, work experience, and a criminal background check. The necessary teaching degree/certifications had been obtained, there was positive employment experience, and he had not committed any of particular crimes of violence, sexual in nature or against children that would disqualify him. So, he was hired. Then he was criminally charged for sexual relations with a student.

~ ~ ~ A quick side note. If you want to know where the most prolific and proficient sexual molesters of children are go to where there is ready access to children and look for people not on the sex offender registry. ~ ~ ~

The school had protected itself in two ways. First, it relied upon information provided by others that are reasonable measures to filter potential sexual abusers of children from the employment pool. Second, no one could be held liable for wrongful termination for firing him on a “hunch” that he was going to do this.

The legal protection scheme goes like this. Create a record trail to say we tried to prevent the abuse through hiring procedures, if the potential for abuse is suspected then monitor but let it happen unless you have clear proof of intent, then terminate based upon the judgment of police or a prosecutor that abuse did happened. Using this scheme the sexual abuse risk is reduced. Not for the children but of the financial liability for the insurer of the school corporation.

Our society shuns responsibility. The cacophony of lamentations over parents not being responsible for their children. The lawsuits against tobacco companies for causing people to smoke. Now it’s obesity is caused by the so-called foods industry or portion sizes. People steal because of drugs. And the falsehoods and rationalizations for avoiding responsibility proliferate and have a common basis.

The root for it comes from the top. The white collar professionals have clearly demonstrated a near uniform avoidance of personal accountability for making judgments. Of the few domains where judgments are made those actors are protected by statutory immunity or legislatures are scrambling to expanding immunity to include them. Instead of making judgments based upon experience, intuition, or logical thinking the professionals have outsourced that to attorneys.

So next time you are seeking medical advice make sure it comes from a competent attorney.

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©2008, 2019 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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Monday, December 17, 2018

Winning against eBay buyers making fraudulent Item Not as Described claims - Return Fraud

If you have ever bought an item just to use once and then return for a full refund or have had someone do it to you then you will want to read this entire article including the criminal complaint.

Many eBay sellers have had an unscrupulous buyer make a bogus claim against them only to realize that eBay holds a bias in favour of these buyers including those acting illegally. If it happened to you and you have done a search for that topic then you have also found that you are not alone. But this doesn’t mean that sellers have to accept this habitual practice by eBay. I recently experienced another of these cases and I am pursuing this fraud vigorously.

When a consumer buys an item makes use of it and then returns the item to the retailer for a refund that person has committed the criminal act of fraud punishable by imprisonment. This particular type of fraud is called “theft of use” and is also commonly known as “return fraud”. This type of crime is common in the apparel and electronics categories. When a person buys an article of clothing to wear to an event that evening and then returns it the next day claiming that “it doesn’t fit” or “doesn’t go with” some other attire and gets a refund that person has committed a crime. Basically, the “buyer” rented the item without compensating the retailer. This type of theft costs retailers in the United States billions of dollars each year. These costs are passed on to legitimate consumers.

In my case an ebay user bought a used DVD, received it, viewed it, and then initiated a return case through eBay’s Dispute Resolution Center claiming that the item was “Not as Described”. I responded by asking for a photograph of the received item and for particular details as to what didn’t match the description. Further, that upon receipt of that information I would have US Postal Inspectors open a theft/tampering investigation. He replied, “The package you sent matches your ad ,so no tempering[sic] involved”. Yet, eBay found in his favour, refunded his payment and billed me for the return postage plus an additional fee.

That is straight up fraud and eBay not only facilitated it but collaborated in the crime and profited by it.

But the title of this article says “winning” against this type of fraud. Well, I did. At least partially. How I did it follows in the Complaint I filed with the Attorney Generals of the states of California, Indiana, and Washington plus the United States Attorney General alleging that eBay and the buyer colluded in a scheme to defraud me and enrich themselves.

I called eBay and made it clear to them that this fraud was a crime and that eBay has colluded in the fraud and was criminally liable. Before I got off the phone the decision was reversed, the charges added to my invoice were credited, the negative feedback the guy left was removed, and any negative marks against my seller record associated with the transaction were removed. But I didn’t get my $8.00 back.

So here is the criminal complaint I filed against eBay and the buyer for “theft of use”.

Under the laws of The State of California the following information is part of the public record.

COMPLAINT AND CAUSE OF ACTION

This is a complaint for the act of “theft of use” or “return fraud” under the applicable statutes in your jurisdiction.

PARTIES

Petitioner, Stuart Showalter, hereinafter “Petitioner” is an individual who buys and sells movies on eBay under the username “1tazrees”. Defendant 1 is John McSherry, hereinafter “Defendant 1”, an eBay user who operates under the username “leo6911”. Defendant 1 provided a shipping address, which appears to be a U.S. mail drop for residents of Canada, of;
John McSherry
439 Peace Portal Dr
PMB -9317
Blaine, WA 98230-4014

Defendant 2 is eBay, hereinafter “Defendant 2”, an internet based corporation which provides a platform for the exchange of goods between sellers and buyers. Defendant 2 provides on its website an address of;
eBay Headquarters
2025 Hamilton Avenue
San Jose, California 95125

TRANSACTION

On 11 November 2018 Defendant 1 purchased from Petitioner a previously viewed copy of the DVD documentary film “The Mystery of Eva Peron - True Story of Evita” as listed by Petitioner on the web platform provided by Defendant 2. Defendant 2 assigned to this listing the item number 283217201530. Defendant 1 paid to Petitioner the sum of $8.00 through the online payment system PayPal on same day.

NARRATIVE

After receiving the DVD, on 05 December 2018, Defendant 1 initiated a return of the item through Defendant 2’s platform known as the Dispute Resolution Center. Defendant 1 alleged that the item was “not as described”. Complaintaint responded on same day stating, “Please provide a photo of the package that you received and note particularly the difference in the item versus the item that appeared in the photo of the listing. I will have the USPS open a theft/tampering investigation.” Defendant 1 replied on same day admitting that he received the listed item; “The package you sent matches your ad ,so no tempering involved.” Defendant 1 left negative feedback against Petitioner through Defendant 2’s Buyer/Seller rating system.

Under a “not as described” complaint a buyer may return an item to the seller even if the seller has a return policy that does not permit returns. Additionally, the seller is charged for the return postage and a service fee by Defendant 2.

On 08 December 2018 Petitioner, through the Dispute Resolution process offered by Defendant 2 asked Defendant 2 to step in and resolve the dispute. Petitioner cited to Defendant 2 the information as set forth previously herein. Particularly, “I only had one copy of this which is the one shown, has the UPC number that I indicated and is the one that was packaged and sent. He is simply abusing a system that exist, which I have used, for legitimate issues with products not arrived as shown or described.”

Defendant 2 acknowledge receipt of request by Petitioner, to have Defendant 2 decide the matter, through sending an email message which included, “We'll take it from here and review the case, including any messages that you and the buyer sent through eBay. We'll get back to you within 48 hours.”[emphasis added] Defendant 2 after reviewing the string of information exchanged between Petitioner and Defendant 1, including the admission by Defendant 1 that “The package you sent matches your ad ,so no tempering involved”, and having an opportunity to consult further with Defendant 1 found in favour of Defendant 1 that Petitioner had tried to defraud him by sending an item that was not as described.

On 08 December 2018 Defendant 2 memorialized that decision in writing through an email sent to Petitioner stating, “Thanks for trying to work with the buyer. Unfortunately, it looks like the issue wasn't resolved. We reviewed this case and decided to ask the buyer to return the item to you using an eBay-provided shipping label. If they use the label, the cost will be added to your next invoice.”

Defendant 2 then authorized Defendant 1 to return the DVD using a prepaid shipping label. Defendant 2 assessed the shipping charge to Petitioner and in addition imposed a fee on Petitioner. Upon confirmation through the USPS tracking system that a parcel sent by Defendant 1 had been delivered to Petitioner, without further inspection or verification of contents, Defendant 2 caused to be withdrawn from Petitioner’s Paypal account on 16 December 2018 the sum of $8.00 which was refunded to Defendant 1.

On 17 December 2018 Petitioner called Defendant 2 and spoke with “Chiarra” from whom he requested a full explanation as to what Defendant 2 found in the returned item which was inconsistent with the information provided in listing number 283217201530. Representative for Defendant 2, Chiarra” stated to Petitioner that ‘it was not as described’ but did not elaborate or provide further details. The call was then escalated to “Bago” who is vested with authority to make binding decisions between Petitioner and Defendant 2, his employer.

Petitioner requested that any monies withdrawn from Petitioner’s PayPal account associated with this transaction be returned and any information associated with this transaction that affects any algorithm which determines his seller performance level be removed. Defendant 2 uses seller performance level as a financial reward/punishment system. Defendant 2 may assess up to a 4% penalty against the total value of seller’s gross sales if seller’s performance level deteriorates to some point which is influenced by cases raised in the Dispute Resolution Center.

Bago, after lengthy consultation with Petitioner and review of the record, determined that Defendant 1 had fraudulently used the Dispute Resolution process. Bago, acting on behalf of Defendant 2, caused to be refunded to Petitioner the return postage cost and fee. Additionally, he indicated to Petitioner that any negative consequence from the transaction, including effects to Petitioner’s seller performance level and negative feedback left by Defendant 1, would be removed.

Although Defendant 2 purports to be a neutral arbitrar between buyers and sellers such is not the case. Defendant 2 has a vested financial interest in the outcome of complaints through the Dispute Resolution Center by charging direct fees as well as reducing financial incentives for or by assessing financial penalties against Petitioner and other sellers. Defendant 2 is fundamentally biased in favour of buyers, even those engaged in criminal fraud schemes, when resolving complaints as this case clearly shows. Defendant 1 admitted that “[t]he package you sent matches your ad . . .”

Defendant 2 did not return to Petitioner’s PayPal account the $8.00, which was applied to shipping and handling plus product price, that had been fraudulently withdrawn based upon the lies and fraudulent filing of an item not as described case by Defendant 1.

Although Defendant 2 has conceded, with respect to its claim that Petitioner had defrauded Defendant 1, and has divested itself of the realized and potential unrealized financial gains from its original finding such action cannot absolve one of its past crime. A shoplifter does not eliminate the crime by returning the goods the next day.

Defendant 1 was able to obtain previously used media goods from the Petitioner through interstate transport by the United States Postal Service, have access to view, copy or otherwise use the product without physical detection to the product, and then return the item for a full refund. This was done by fraudulently representing that the item received by Defendant 1 was “not as described”.

Defendant 2 initially found the claim by Defendant 1 to be valid and directly and potentially enriched itself from such a finding. Such finding would have stood save the legal knowledge, tenacity and threat by Petitioner to pursue a criminal action against Defendant 2.

RELIEF

Petition requests and prays that The Attorney General of the State of California does find probable cause to return a Charging Information, alleging that Defendant 1 and 2 did participate in a scheme to defraud Petitioner and enrich themselves or otherwise gain benefit at expense of Petitioner, based upon any statute covering “theft of use” or “return fraud” matters.

Further, that said Attorney General does initiate a civil action to compel Defendant 2 to establish a protocol that calls for a financially disinterested third-party to decide the outcome in contested cases through the Dispute Resolution Center and that all costs be absorbed by Defendant 2.

AFFIRMATION

So stated and affirmed this 18th day of December 2018.

Stuart Showalter
P.O.B. 374
Lebanon, IN 46052-0374
stuart@stuartshowalter.com

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©2008, 2018 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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Monday, December 10, 2018

Appealing Paypal’s Decision to Refund Payment to Buyer - Guide for Sellers



Does is seem as though Paypal makes arbitrary and capricious decisions when a buyer opens a claim against you? Does it appear as though Paypal does not follow their published policies? Do you think their actions may be criminal? If you have responded affirmatively then you have good reason. That’s because the answer to all is yes.

In a dispute, such as those which may arise under transactions involving eBay -- a close collaborator with Paypal -- or Paypal, how and when you respond has important legal ramifications. It is not only important what you say but equally important is what you don’t say. One rule is to never give a reason when not required.

For example, a buyer wants a refund for an item because it didn’t fit with something else already in his or her possession. The item was accurately described in your listing. You don’t want to give a refund for the reason stated by buyer and, thus, you deny the request. If you have stipulated in the listing that you do not accept returns then the only lawful right the buyer has [at least in Indiana] is that the item was misrepresented or does not function. An unscrupulous buyer may then try to get a refund through another Buyer Protection option. There the seller will be asked to provide a response to buyer’s claim. Responses here should be concise, factual, and measurable. Do not say “Seller didn’t provide a valid reason for wanting to return the item.” Instead simply say “Seller did not claim that the item was misrepresented or not functioning. These are the only allowable reasons for a return as my listing states that I do not accept returns.” If you say the reason was “not valid” then you have opened yourself up to making arguments about what constitutes “valid”. The platform operators such as eBay or Paypal may decide that buyer’s reason was valid.

In the Appeal of a Paypal decision to refund a buyer that I present here. The matter involved the sale of a large television which was advertised as “Free Local Pickup”. However, the buyer never made arrangements to pickup. When buyer opened a “Return” through eBay’s Resolution Center I responded that I was willing to ship and set a price. About five minutes later the buyer closed the request. This was an implied acceptance of my offer.

An implied acceptance is one that is not directly stated but is demonstrated by any acts indicating a person's assent to the proposed bargain. When proceeding through the Dispute Resolution process there is an exchange between buyer and seller. When a seller responds with an offer, the buyer has three options - close the case, cease pursuing the case, escalate the case to the hosting platform such as eBay or Paypal.

Buyer closing the case indicates that seller’s offer has been accepted. Buyer taking no further action indicates that buyer does not accept seller’s offer but is not going to push further for his or her original demand. Buyer escalating the case indicates that buyer has rejected seller’s offer and is seeking enforcement of original demand.

In determining whether there was acceptance of an offer, where there is a chain of correspondence or documentation from which one may conclude the point at, and the terms upon, which a contract was formed, a reviewer must consider the correspondence as a whole.

In the case I present here the buyer asked for a refund because she said it was too far of a drive to get to my locality. I responded that I would be willing to ship the television and set a price for shipment. She then took the affirmative step of closing the case. That was an acceptance of my offer. However, she never paid the shipping charge.

The correspondence trail is important because in these online transaction contract acceptance is nearly always implicit. It is like when you go to the grocery store and buy your vegetables. When you pay the cashier you and the store have entered into a contract for the receipt of edible vegetables in exchange for the money tendered at the price advertised. Yet, no one wrote out those terms and you and the store owner did not affix your signatures to the document. It was an implied contractual agreement.

Here is the appeal that I wrote and submitted on 09 December 2018.

APPEAL OF OUTCOME IN TARA RATXXX ITEM NOT RECEIVED CLAIM

Seller, Stuart Showalter, herein “Seller”, now tenders his argument and designations of law as follows;

PURCHASE BACKGROUND

Buyer, Tara Ratney, herein “Buyer”, purchased a television set from Seller, an individual, through the eBay platform on 25 October 2018. The television is a large object which was offered with only one shipping option - “Free Local Pickup”. Zip code for pick-up was indicated as “46052”. Additionally, return policy of Seller was indicated as “No Returns Accepted”. Buyer purchased the television under these terms and conditions.

On 26 October 2018 Seller received a message from eBay: “The buyer (tarratne-X) created a return (5098098370); Reason for return: Ordered by mistake” in which Buyer admitted that she made an error. Seller responded on 28 October 2018: “postage is $75.32. i can help on this a little and only charge you 60.00.” and also by sending a Paypal request for $60. On the same day, as eBay indicated, “The buyer closed the return”.

PAYPAL ITEM NOT RECEIVED CLAIM

On 24 November 2018 Seller received notice from Paypal that Buyer had filed a claim for “Item Not Received”. Seller promptly responded as to the nature of the sale as set forth above and referenced herein. Buyer had not previously initiated a dispute with Seller through Paypal.

Through making a purchase for “Free Local Pickup” only the buyer agreed to collect the item in person, or arrange for it to be collected on buyers behalf. Attempts by Seller to get Buyer to do either failed as Buyer did not participate in communications regarding such.

Paypal policy clearly states that “Ineligible items and transactions under PayPal’s Purchase Protection program” includes the category; “Item Not Received claims, items which you collect in person or arrange to be collected on your behalf, including items bought in a seller’s store location.”

Items which are sold as “Free Local Pickup” only are items “which you collect in person or arrange to be collected on your behalf”. The policy regarding items “you collect in person” is applicable in this cause. The particular phrases “you collect” and “to be collected” in the policy clearly place “Free Local Pickup” items under the control of this policy. “You collect” is an indefinite in the second-person singular or plural. “To be collected” is in the future perfect tense. While this policy mixes two tenses under the same action, retrieving an item, clearly neither is indicative of a past action. Thus, it is clear and unambiguous that it applies to a class of items which have sold or will be sold - indefinite. The policy states that items, such as those for local pickup, which the buyer collects from the seller cannot form the basis for a claim under PayPal’s Purchase Protection program.

Paypal policy states that “[buyer] must follow our online dispute resolution process through the Resolution Center to pursue a claim under our Purchase Protection program.” However, Buyer in this immediate cause either did not do so or I did not receive notice of such claim and Paypal has deleted any reference to it.

Buyer did initiate a return under eBay’s dispute resolution system. Seller responded by offering to ship the item. Buyer then closed the case. By closing the case herself and not asking eBay to step in and assist Buyer has accepted Seller’s resolution. However, Buyer never fulfilled her obligation - to pay $60 for shipping - under Seller’s offered solution which she immediately accepted by closing the case on the same day.

Indiana law grants no right to buyers to return items unless defective or misrepresented. The Buyer in this cause did not possess the item at any time and, thus, has not returned the item.

Indiana law also considers property abandoned when the owner has not tried to recover the property from the person in possession. Additionally, if the person in possession has made reasonable efforts to locate the owner of the property or get the property to the owner without success then the possessor is entitled to keep the item. Seller obtained suitable packing material, built a container, and otherwise prepared the item for shipment based upon Buyer’s acceptance of Seller’s offer to ship. These services -- handling -- applied to an item constitute a cost to Seller.

Buyer never completed the purchase. Buyer made no further contact with Seller. Buyer did not request to cancel the order through eBay. Buyer accepted the offer to ship upon her payment of designated shipping charge when she closed her case. Seller made reasonable attempts to get Buyer’s merchandise to her. More than 30 days elapsed. Property is lawfully conveyed to Seller through abandonment.

PAYPAL DECISION

Paypal found in favour of Buyer and issued a refund from Seller’s funds. Counsel for Paypal determined that Buyer had complied with all terms and conditions of the Paypal Purchase Protection program including initiating a case in the Resolution Center. Additionally, counsel for Paypal determined that the terms and conditions regarding delivery stated by Seller in the eBay listing for the television did not qualify the item as one for “which you collect in person or arrange to be collected on your behalf . . .”

The language of the policy is clear and unambiguous to a reasonable person. see Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012) Thus, following the four corners rule, parol evidence in Buyer’s claim is not admissible and the policy must be applied as written.

The policy states, “Your claim will not [emphasis in original] qualify for a refund under PayPal’s Purchase Protection program for an Item Not Received claim, if: You collect the item in person, or arrange for it to be collected on your behalf, including if you use PayPal in a seller’s physical store,”. As this policy is applied at the time a potential buyer opens an account the language applies to a future transaction as one could not have paid for an item using Paypal and picked up the item prior to opening the account. Items sold as “Local Pickup” are items which “You collect” clearly seen in the future tense.

Counsel for Paypal is either not a reasonable person or doesn’t understand contract construction. Paypal’s counsel clearly contradicted Paypal’s policy by allowing a claim which Paypal has stated is not allowed. This action by Paypal is arbitrary and capricious.

Additionally, by issuing a refund to Buyer for property that was lawfully abandoned Paypal has engaged in a conspiracy with Buyer to steal the television, plus handling costs, from Seller through electronic retraction of payment and such theft is going to be reported to law enforcement authorities.

RELIEF

Paypal should immediately refund to Seller the amount withdrawn from his account in clear violation of the published policy of Paypal which forms the basis of the contractual agreement between Paypal and Seller.

- - - - - - - - -

As you can see from that appeal I used the language from Paypal’s published policy to demonstrate that Paypal engaged in an unlawful scheme to deprive me of monies that were rightfully mine. Additionally, I applied common grammatical and linguistic usage to Paypal’s policy to derive the meaning and requirements from it.

Another important point to keep in mind when dealing with unethical entities such as Paypal or eBay is that they may not be able to enforce the provisions of their contract against you. One instance is on grounds of public policy. This is not only to protect one of the parties involved, but also because what the contract represents could pose harm to society as a whole. A provision that may prohibit cash transactions in favour of electronic processing that includes a surcharge could be declared in violate of the Federal Reserve’s provision declaring US currency good for all debts. Unconscionability of a term in a contract or something inherent in or about the agreement is so shockingly unfair is another basis on which a contract may be unenforceable. The idea here again is to ensure fairness, so a court may consider whether one side has grossly unequal bargaining power such as having control of the monies of the other party.

In summary, do not be intimidated by criminal, unethical, or fraudulent buyers or the platforms who seek to aid them in their activities. When combating the unethical tactics of Paypal or eBay use their systems, clearly articulate and support your arguments, get law enforcement [including States Attorney Generals] involved, and never back down.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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Wednesday, December 5, 2018

Indianapolis GAL and Perjurer Del Anderson fired by Child Advocates, Inc.

In contested child custody cases it is not unusual for judges to seek the assistance of a Guardian Ad Litem [GAL] to provide evidence as to the fitness of the parents and the wellness of the children. Judges place their trust in the integrity of these actors to employ diligence and appropriate ethical standards in performance of their duties. But when this trust and obligation is violated what are the appropriate consequences?

A case that was active over five years ago in which Del Anderson, a GAL for Indianapolis based Child Advocates Incorporated, provides the basis for an examination of this issue. The divorce case, Moore vs Moore, involved parents who had agreed upon the issues of child custody, parenting time, and child support payments. Shortly after that agreement, mother, Kristi Moore, sought sole legal and physical custody of the children. The court first entertained that action in the year 2010. Two years later as the full breadth of the conflict was coming to fruition Judge Heather Welch sought the appointment of a GAL.

This is when Del Anderson made his appearance. Alongside him was his attorney Cynthia Dean who was also employed by Child Advocates. They should have placed the best interest of the children above their personal biases but that did not happen. Instead they engaged in a series of actions set to malign the character of the father, Brian Moore, in the view of the court. I wrote about Dean’s actions in Child Advocates' Cynthia Dean should be removed from Moore v Moore case. In response Mr Moore filed a complaint against Dean with the Disciplinary Commission of the Indiana Supreme Court which governs the roll of attorneys.

After that action by Mr Moore the retaliation came in the form of Del Anderson providing perjured testimony also intended to malign Mr Moore. I wrote about the attempts by Del Anderson and Child Advocates to sabotage the court proceedings through lies and misrepresentations for their personal benefit in Litigation Pays Attorneys more - Assault on Judicial Integrity by Child Custody Evaluators - Part IV. Particularly, that Del Anderson made an allegation that the Pendleton Elementary School went on lockdown following a threat by Mr. Moore.

At a hearing in early 2013 the matter of that allegation was explored in the court. During the hearing the Pendleton Chief of Police along with the Superintendent of Schools and the principal of the alleged locked-down school testified. So did Mr Anderson, under oath.

When I spoke with the police chief and superintendent prior to the hearing they both informed me that there was no lockdown or other unusual procedures employed in response to Mr. Moore. Both in writing and verbally, they made it clear to me that there was no underlying support of any kind for Mr Anderson’s allegation of a lockdown. They also testified to the same.

Mr. Moore expended a great amount of resources in an effort to refute the lies propounded by Del Anderson. Additionally, having his character maligned before the court and due to possible repercussions of that Mr Moore suffered emotional stress. Due to these harms Mr Moore filed suit against Del Anderson and Child Advocates in the Marion Superior Court. Although both argued that perjury was not an offense over which one victimized by such could sue and that Summary Judgment should be granted in favour of the defendants the judge disagreed. I previously wrote about the proceedings in Guardian Ad Litem to stand trial for perjury in Indiana child custody case.

The judge reasoned that committing perjury is not an underlying responsibility in the pursuit of being a Guardian ad Litem and therefore the liar Del Anderson was acting outside the scope of his employment and was therefore not covered by immunity.

Particularly, on 11 May 2015, Commissioner Shannon Logsdon addressed the issue of civil immunity regarding Del Anderson's perjury by stating, "I'm not sure that, that is anything other than gross misconduct ... I don't agree that that's covered by civil immunity. I don't believe that's the exact circumstance for which civil immunity was, uh, put into place. Civil immunity is so that people can't be sued for doing their jobs. .... whether or not Mr. Anderson is covered, uh, by immunity is a question for the jury because there are some factual issues as to whether or not Mr. Anderson, uhm, intended to perjure himself for reason unbeknownst to this Court..."

Subsequently, Defendants would again file another Motion for Summary Judgment. Although information about this case was widely disseminated throughout the legal community no white knight stepped forward. The second time around Summary Judgment was granted. The Indiana Court of Appeals rendered this decision in regards to the grant of summary judgment in favour of Del Anderson in Moore v Anderson.

All was not lost as has recently been revealed. Following the suit there was not much to be said in the legal community about the case as that fraternity closed ranks. It was apparent that it was significant in that a lawsuit against an attorney and GAL for intentional infliction of emotional distress as well as other harms had received significant approval by a judge who ruled that immunity for testors did not apply in the case of perjury [Typically witnesses are immune from liability for their testimony]. For a short time following I would receive inquiries from parents about Del Anderson but then issues around him abated. As such it seems the proverb no news is good news applied.

An Indianapolis attorney recently told Mr Moore, "Your case got Del Anderson fired." Victory realized.

Mr. Moore didn’t recover any compensation for his expenses in fighting Del Anderson’s lies but this news is a victory far more fulfilling. Clearly Child Advocates, Inc. realized [more likely their insurer] that the perjurer Del Anderson was a liability to them. Thus, he was cut loose. Dismissal of the suit however should not dissuade future victims from similarly filing suit when they have been harmed by a court actor.

Don’t look for help from a lawyer to do it though. A retired judge explained the attorney bond this way. “[Y]our lawyer is not your friend. He is an officer of the court, and his loyalty, first and foremost, is to the institution of the court. Second, his loyalty is to other attorneys. Third, and last, his loyalty is to you, his client."

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

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©2008, 2018 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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Thursday, August 16, 2018

RAPE: A Loving Touch

Likely, I have grasped your attention using this provocative, yet apt, title. It is my precise intention to provoke thought. Take a moment to consider what I may mean by saying rape is a loving touch or how that thought originated.

Words matter greatly in relationships. Much of the conflict I see in child custody cases originates through differing applications of meanings to words or actions. I can give you a definition of “discipline” derived from assorted lexicons or use in a sentence; It was necessary for the athletes to have a coach to discipline them so they wouldn’t overwork their muscles and cause injury. Yet, ask a set of parents what it means to “discipline” a child and you may get one who is way off the mark and has a definition akin to retribution or vengeance. When uniformity in definitions is lacking conflict may arise. Similarly, there are situational definitions. What speed is “fast” when driving on the interstate or running in a hallway?

In statutes terms are defined, usually in a definitions section at the beginning of the chapter, as they may have a meaning far from that applied in the common vernacular. Worried about your child being abducted because of the total number of abductions reported? Don’t be. Some states define “abduction” to include keeping or withholding a child from another parent during a time that parent is to have custody or parenting time. Running a half hour late to the exchange and don’t give any notice? You may have “abducted” the child depending on your jurisdiction.

While most cultured adults can distinguish meanings to time or place it can become complicated for a child. Euphemisms, which require direct explanation or repeated situational experience to be understood, can be a great source of disjunct in interpretation by children.

There are two psychological bases for the use of euphemisms. First, some people choose to deceive by couching accurate explanation in vague Euphemisms. Meanings are hidden from those who are not part of the in-group which is privy to the understood meaning. “People who are invested in the community” seems like a neutral evaluation unless you know the demographic composition of the community. If you know that there is nearly 100% occupant/owners of well-above median priced homes who are white folks and that a nearby apartment complex is nearly 100% non-white renters then that phrase takes the meaning “non-whites”.

The other basis is avoidance. It is under this scheme in which people use euphemisms often relating to topics considered taboo. Similarly, the topics may be beyond the realm of the users capacity to accurately explain the meaning or context of the subject. This is where parents possessed of these deficiencies use the term “making love” as representative of the procreative interaction between organisms accurately termed “sexual intercourse.”

It is in under that context in which rape becomes a loving touch. That common Euphemism -- “making love” -- could represent sexual intercourse. In my application, making love and sexual intercourse differ significantly in meaning. Primarily that one describes a physical act between organisms and the other describes an emotional or cognitive act between people.

To “make love” should leave a person feeling desired, accepted, and in want of more. Engaging in sexual intercourse is simply the practice of an erect penis being inserted into the vagina, partially removed and repeated in a thrusting motion. It may culminate with ejaculation. I may be, but is not necessarily, parcel to a love making act. But, that same physical act is also parcel to rape.

So imagine that a child walks in on his parents while they are engaged in sexual intercourse and gets yelled at to get out of the room. Later he is told by his parents that they were “making love”. Alternatively, the intrusion upon parents who were simply cuddling while one gently strokes the forehead of the other stretching from the eyebrows into the hairline while applying gently kisses does not evoke the visceral reaction. This child, possessed of the flash of a visual stimulus of the physical act without accompanying associative audible cues to the emotional connection, gives the connotation “making love” to only the physical act of coitus.

Upon witnessing a rape or hearing it described what term does he associate to that act?

He has successfully been instructed that rape is a loving touch.

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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.

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©2008, 2018 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in its’ entirety with credit given.

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