Special Master Sees Possible Torts in Homeless Task Force Lawsuit
(APN) ATLANTA — Special Master Frank Strickland, who was appointed to make conclusions of fact and law, and recommendations, to Fulton County Superior Court Judge Craig Schwall in the lawsuits concerning the business community and City of Atlanta’s well-documented conspiracy to sabotage the Metro Atlanta Task Force for the Homeless, has issued an order that is quite favorable to the shelter.
The 96-page order, “Special Master’s Order on Defendants’ Motion for Summary Judgment,” dated January 25, 2014, obtained by Atlanta Progressive News, is significant because it entertains the possibility that a jury will find facts sufficient to support many of the Task Force’s tort claims and other claims.
The Defendants in the case include Emmanuel Fialkow, the Benevolent Community Investment Company, Central Atlanta Progress, Atlanta Downtown Improvement District, and Premium Funding Solutions (PFS). [Emory University–also an apparent member of the conspiracy–is a defendant in a separate suit filed in DeKalb County. A separate federal lawsuit against the City of Atlanta was previously dismissed, largely on grounds of sovereign immunity; however, the City was still clearly a part of the conspiracy at issue.]
As previously reported by APN, the Task Force claims–and there is extensive evidence to support–that over a period of several years, the Defendants engaged in a multi-pronged conspiracy to deprive the Task Force of public and private funds, and to force the Task Force into foreclosure.
This conspiracy included approaching private and public funding sources to discourage them from funding the Task Force; and approaching the Task Force’s private lenders to encourage them to sell the shelter’s mortgage notes to entities connected with the conspirators, only to then foreclose upon and attempt to evict the Task Force.
While the Special Master granted summary judgment for Defendants, essentially recommending that some of the Task Force’s claims be dismissed, several claims survived the summary judgment round, meaning that the case will likely go to a jury to make determinations of fact.
What the Special Master’s ruling also means, is that, if the jury decides that the Task Force’s factual claims are true, then the law is already on the Task Force’s side to support their requests for relief.
The Special Master’s order cites from numerous emails, depositions, and other parts of the evidentiary record, to illustrate the plausibility of the Task Force’s claims.
The Task Force’s claims likely to advance to a jury include:
(1) The Task Force’s claim for injunctive relief, preventing PFS from attempting to take possession of the property.
The Special Master denied PFS’s motion for summary judgment on this claim, noting that the Court must determine who has legal title to the property before deciding whether or not to grant injunctive relief.
“The Court has made it abundantly clear that PFS’ request to dispossess the Task Force will not be ruled on until title is determined and thus has already enjoined PFS from acting upon Ichthus’ foreclosure,” the Special Master wrote.
(2) The Task Force’s claims to quiet PFS’s title.
The Special Master wrote, that giving the Task Force the benefit of all reasonable doubts and favorable inferences, “the record shows the evidence that the Task Force held the title before the foreclosure and that foreclosure may have been wrongful.”
“The determination of the wrongful foreclosure claims will dictate the resolution of the quiet title claim… If the wrongful foreclosure claim is decided in the Task Force’s favor, the result may be the cancellation of any instruments held by PFS or Ichthus, thus quieting title in favor of the Task Force,” the Special Master wrote.
(3) The Task Force’s claims that Defendants’ intentionally interfered with the relationship between the Task Force and its lenders.
The Special Master finds there are genuine issues of material fact for a jury to decide regarding Defendants’ apparent conspiracy to interfere with the relationship between the Task Force and its lenders.
(4) The Task Force’s claim of intentional interference with the Georgia Department of Community Affairs’s funding of the Task Force.
The Special Master finds there are also genuine issues of material fact for a jury to decide as to the conspirators’ efforts to get the City of Atlanta to write a letter–containing what the Task Force says are false claims–to DCA, seeking that DCA cut off the Task Force from funding.
(5) The Task Force’s claim of intentional interference with funding from Dan Cathy of Chic-fil-A restaurants, of the Task Force.
As previously reported by APN, there is extensive evidence that the conspirators met with Dan Cathy as part of a deliberate strategy to convince Cathy to cease funding the Task Force. The Special Master finds that these claims should go to a jury as well.
(6) The Task Force’s wrongful foreclosure claims certain Defendants.
The order reveals new, shocking information about the conspirators’ efforts to sabotage the Task Force.
First, the order reveals that Ichthus purchased the property at the foreclosure sale for anywhere between 1.3 million dollars less, and 7.2 million dollars less, than the property was worth.
Second, the order reveals that Fialkow may have engaged in a campaign to deceive the Task Force regarding its willingness to work with the Task Force to avoid foreclosure, in order to prevent the Task Force from legally objecting to the foreclosure itself.
According to the order, the evidence shows that Fialkow met with Task Force Board Member Bob Cramer to state that he wanted to work with the Task Force to avoid foreclosure. Based on these statements by Fialkow, Cramer convinced the Task Force not to contest the foreclosure. However, Fialkow admits that he never intended to work things out with the Task Force.
“In particular, the record shows evidence from which a jury could conclude that (1) Mr. Fialkow controlled Ichthus; (2) Mr. Fialkow, Ichthus, BCIC, and PFS were working in concert to effect the foreclosure; (3) fraud or misrepresentation occurred that induced the Task Force not to attempt to stop the foreclosure sale; and (4) the foreclosure sale resulted in the Property being sold for a grossly inadequate price,” the Special Master wrote.
(7) The Task Force’s bad faith claims against the Defendants.
The Task Force claims bad faith on the part of the Defendants, and seeks attorney’s fees and expenses of litigation. The Special Master rules that these claims should go to a jury.
(8) The Task Force’s claims for punitive damages against the Defendants.
The Task Force also seeks punitive damages against the Defendants, which the Special Master also rules should go to a jury.
On the other hand, the Special Master granted summary judgment for the Defendants, essentially dismissing the Task Force’s claims of racketeering, defamation, and tortious interference with certain funders.
As for racketeering, the Special Master found evidence of bribery, but stated that at least one additional predicate act was necessary to rise to the level of racketeering. The Task Force also alleged wire fraud. The Special Master found the wire fraud claim was not raised in the initial complaint.
In the Task Force’s recent motion to Judge Schwall, asking Schwall to adopt the Special Master’s recommendations, the Task Force asks Schwall to find that the wire fraud claim, and thus the racketeering claim, can move forward, because the complaint adequately put the parties on notice as to the racketeering claim and it was not necessary to specifically claim wire fraud in the complaint.
As for the defamation claim, it was barred by a one year statute of limitations.
It is not immediately clear when Schwall will rule on the Special Master’s recommendations, but the Task Force is ready to go to trial.
“If we try this case it will be over in ten days probably. I suspect it would be a two-week trial. We just want to get there,” Steve Hall, an attorney for the Task Force, told APN.