Below is the opening statements from Kenneth Bell’s filing today, in which he opposes Todd Disner’s
RESPONSE IN OPPOSITION TO MOTION TO SET ASIDE DEFAULT
The Receiver, through the undersigned counsel, provides the following Response in Opposition to Defendant Todd Disner’s Motion to Set Aside Default. For the reasons set forth below, the Court should deny the Motion.
The Court should not find “good cause” exists to set aside Mr. Disner’s existing default. After failing to file an answer despite having personally received the Complaint three months ago and filing a notice of appearance in the action nearly a month before the default, Mr. Disner now seeks to avoid the default. But, he fails to suggest legitimate circumstances that might constitute good cause for his failure to plead or defend. This Court should not grant Mr. Disner’s belated request when he was served with the Complaint roughly three months ago and has significant litigation experience involving another Ponzi scheme. Also, allowing Mr. Disner additional time to file an answer despite there being no good cause to set aside the default would delay this case as to all parties involved and create additional and unnecessary costs to the Receivership.
The filing goes on to say:
As previously set forth in the Receiver’s Application for Entry of Default, Defendant Todd Disner was personally served with the Summons and Complaint by means of a process server on April 16, 2014. (Doc. No. 41-1). Disner does not dispute the date and manner of this service (although he has lied about it as discussed below). The Receiver heard nothing from Disner for nearly two months. Then, Disner filed with the Court a “Notice of Appearance” providing notice to the Court and parties that he was appearing pro se on behalf of himself and the Kestrel Spendthrift Trust. (Doc. No. 18). This notice is dated May 21, 2014 but was not mailed until two weeks later, on June 5, 2014, as indicated in the postmark on the envelope enclosing the notice. (Doc. No. 18-1). The notice was filed by the Clerk of Court on June 10, 2014.
Disner filed nothing further with this Court, nor did he contact the Receiver. As a result, after the extended June 30, 2014 deadline for filing an answer had passed, the Receiver filed a Motion for Entry of Default against Disner on July 2, 2014, citing his failure to plead or otherwise defend the lawsuit. (Doc. No. 41). The Clerk of Court entered default against Disner on July 3, 2014. (Doc. No. 44).
The Receiver filed a Motion for Default Judgment against Disner on July 8, 2014, which requests that the Clerk of Court enter judgment against Disner pursuant to Rule 55(b)(1) for the sum certain amount of $2,079,757.88, which includes $1,800,037.06 in principal, and prejudgment interest at the North Carolina statutory rate from the date of the last transfer (July 30, 2012) to the date the motion was filed in the amount of $279,720.82.
The complete document (66) is on the Files website, under Zeek case 14-cv-00091.