On today’s docket for “Bell v. Disner, et al”, we have two filings, one aimed at David Sorrells and the other at long time serial promoter, Todd Disner.
RECEIVER’S REPLY IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT AND OPPOSITION TO MOTION TO STRIKE AFFIDAVIT
The Court should grant the Receiver’s Motion for Default Judgment for several reasons. First, Defendant Sorrells has not moved to have the default set aside. And, even if his opposition to the entry of the default judgment is considered to be such an effort, he has not offered any valid or sufficient reason not to affirm the default or grant default judgment. Mr. Sorrells failed to file an answer despite having personally received the Complaint nearly three months ago. He has not proffered an excuse or even suggested legitimate circumstances that might constitute good cause for this failure to file a responsive pleading. Instead, he has submitted a document which focuses on the amount of the default judgment requested rather than the default itself and which is a near-identical copy of Defendant Todd Disner’s objection to the motion for default against Disner (see Doc. No. 55). And, this objection is little more than a general denial objecting to the Receiver’s calculation of his net winnings, without any statement of any different amount Mr. Sorrells believes is correct and the evidentiary basis for his alleged belief.
Finally, there are no proper grounds for the Court to strike the affidavit offered by one of the Receiver’s financial expert that describes in detail the amount of money that Sorrells won in the scheme. Whether or not Sorrells agrees with the substance of the affidavit (and he has suggested no other amount of net winnings) is not a basis to strike the affidavit, which clearly supports the amount of the Default Judgment that should be entered.
The filing goes on with Statements of Facts, a legal Argument, and Concludes thus:
The Clerk should grant the Receiver’s Motion for Default Judgment. Mr. Sorrells was required to comply with the Court’s more than fair rules and schedule, and there is no good cause for his failure to do so. For the reasons set forth above, the Court should deny his request to delay this matter further. The Receiver requests that the Court deny the Motion to Strike and that the Clerk enter judgment in favor of the Receiver as formally requested in the Receiver’s Motion for Default Judgment.
The second filing relative to Todd Disner is shorter by about 7 pages, and it goes something like this:
The Court should grant the Receiver’s Motion for Default Judgment. In his response, Mr. Disner raises no new arguments as to why he believes default should be set aside, and he has not refuted any of the well-established justifications for default the Receiver provided in response to Disner’s Motion to Set Aside Default. See (Doc. No. 66). Instead, Mr. Disner’s most recent filing focuses the amount of the default judgment requested, offering only a general denial disputing the Receiver’s calculation of his net winnings without providing any statement of any different amount Mr. Disner believes is correct or any evidentiary basis for his alleged belief. If he had documentary or other substantive evidence to present to the Court, then Mr. Disner should have provided it. He has not, and the motion to strike should be denied and default judgment entered.
The facts underlying the circumstances leading up to the entry of default against Mr. Disner are set forth in the Receiver’s Response in Opposition to Mr. Disner’s Motion to Set Aside Default. (Doc. No. 66). Mr. Disner’s Response brief, characterized as “Defendants [sic] Verified Motion to Strike Plaintiffs’ [sic] Affidavit and Objection to Their [sic] Motion Requesting the Entry of a Default Judgment,” contains a general statement asking that both the Receiver’s Motion for Default Judgment and affidavit in support be “stricken.”
These vague and conclusory statements fall well short of refuting the Receiver’s Motion for Default Judgment and provide no basis for striking the Receiver’s affidavit. The first two arguments are not defenses to liability at all, but only general objections to the amount of net winnings. And, the final statement is irrelevant because the Receiver’s claims are based on the fact that ZeekRewards was a Ponzi or pyramid scheme, not upon any finding regarding Mr. Disner’s view of why he did or didn’t do something in connection with the scheme.
Thus, these arguments do not provide good cause for setting aside Disner’s default. Disner has failed to act with reasonable promptness, has not provided a meritorious defense, and no other consideration supports his position. For these reasons and the reasons set forth in the Receiver’s response in opposition to the Motion to Set Aside Default (Doc. No. 66), Disner’s motion to strike should be denied, and the Clerk should enter default judgment against him.
The closing part of the “ARGUMENT” is this: (emphasis added by me)
If Mr. Disner disagrees with the Receiver’s well-supported calculation of his net winnings, the proper response would be to provide facts that refute the Receiver’s assertions (which he has not done), not to move to strike the affidavit. Thus, there is no basis for striking the Busen Affidavit, and the Court should deny the motion to strike.
The problem for Mr. Disner and the other “net winners” is they cannot refute anything; I doubt they ever kept any records. Why should they? It was going to be continuous money forever, right?
Perhaps the serial promoters started believing their own platitudinous bullshit.