Some of those article have touch off firestorms and threats to sue me and this site. But I do always try to be fair and today I am declaring Vito Torchia, Jr. day on the GetOutOfDebt.org site. Why would I do that?
Well in the recent infighting between the most prominent lawyers in mass joinder case filings, it’s gotten really nasty, see this.
In a flurry of exchanges going back and forth one of the recent filings contains a lengthy statement that lays out the entire Brookstone Law involvement in this polluted world of mass joinder cases. I really appreciate Torchia’s honesty and directness in which he lays it all out in his declaration below.
And now we know how things really unfolded.
If you have a couple of hours to kill, here is the full motion for you to read.
By the way, the declaration below seems to support my original claim that Brookstone Law did participate in sending out a Form 1012-R mailer as I postulated in my original article on the mailer.
I, Vito Torchia, Jr., declare:
- I have personal knowledge of the following facts, except as to those matters based on information and belief, and as to those matters, I believe them to be true. If called to testify, I could and would competently testify thereto based upon my personal knowledge, except as to the matters set forth based on information and belief.
- I am an attorney at law duly licensed to practice in California and United States District Court, Central, Eastern and Southern Districts of California.
- I have read the Plaintiffs’ Opposition to Motion to Remove Mitchell J. Stein as Plaintiffs’ Co-Lead Counsel and all related Declarations, Exhibits and documents filed concurrently therewith (collectively, the “Opposition”).
- I categorically reject Mitchell J. Stein’s (“Stein’s”) unsupported and unsupportable characterization of Brookstone as a “boiler room.” I further reject each and every allegation of wrongdoing. In addition to California, I am also admitted to practice law in New York and Florida. My record in each of these jurisdictions is untarnished and no complaints or disciplinary actions have been taken against me.I further observe that Stein has submitted no documentary evidence for any of his allegations – nor could he, because it does not exist. Instead, he relied upon anonymous hearsay, the purported experiences of one individual and a vivid imagination.
- In fact, as Stein is well aware, on March 28, 2011, Brookstone filed a law suit on the very issue that Stein put before this Court regarding anonymous defamatory statements online and as set forth as Exhibit “B” in the Opposition. The law suit alleges that Gary Digirolamo(“Digirolamo”)and approximately 9 others are responsible for these defamatory online blogs. A true and correct copy of this law suit is hereto attached as Exhibit “A.”
- Astonishingly, Stein was my lawyer and Brookstone’s lawyer with a fiduciary duty to defend us in the very matter he now uses as a sword against us, in violation of his fundamental duties as a lawyer.
- Even more astonishing, Stein is so angry at Brookstone, Kenin M. Spivak (“Spivak”) and me that he has turned the world on its head: last year, Brookstone entered into an informal partnership with Stein and attorney Phil Kramer (“Kramer”) to develop a mass joinder business, including web sites, client support services and client screening. Brookstone has never entered into an arrangement with Spivak, Bridget Jones, Christopher Tomaszewski, SML or Apex (collectively, the “Moving Parties”) pertaining to all or any portion of the foregoing activities.
- On or around November 2, 2009, I formed Brookstone Law, a California professional corporation (“Brookstone”). I am the managing attorney of Brookstone and at all times since formation to the present I have owned and currently own 100% of Brookstone. No individual or entity has any right or option to acquire any portion of my ownership in Brookstone.
- Contrary to Stein’s unsupported and unsupportable allegations, neither Kenin M. Spivak (“Spivak”) nor any Moving Party, nor anyone else (for that matter) has any financial interest or control in Brookstone, nor has there ever been any discussions or contemplations to that effect.
- The most brazen part of the Opposition is that since November, 2010, and continuously until sometime last month, Stein has been counsel to both myself and Brookstone on various matters and specifically including the Complaint for Fraudulent Conveyance against Brookstone Law, P.C. and Vito Torchia, Jr., and Preliminary Injunction issued against Brookstone Law, P.C. and Vito Torchia, Jr., attached as Exhibits “D” and “E,” respectively, to Plaintiffs’ Request For Judicial Notice filed concurrently with the Opposition.
- Stein now tries to assassinate my character and Brookstone by raising allegations he knows to be false and for which he is or was my advocate and Brookstone’s advocate. In doing so, he violates too many rules of the California Rules of Professional Conduct and the Business & Professions Code to count – and gives great advantage to our adversaries.
- Stein is well aware that Brookstone is not the successor to United Law Group, and that no one involved with any of the allegations against United Law Group has anything to do with Brookstone. Stein is also aware that Brookstone is a creditor of the estate Untied Law Group in United Law Group’s bankruptcy matter. To try to insinuate anything different is, at the very least, disingenuous.
- For avoidance of any doubt, Brookstone and I waive no privileges with respect to Stein and expect and demand that he comply with his duties to myself and Brookstone.
- In addition to fully qualified attorneys, paralegals and other professional staff, Brookstone has a contractual relationship with a software and marketing company that gives Brookstone strong advantages in serving large numbers of individual clients. Among other competencies, we have web designers, writers, state-of-the-art billing and client relations software and a support team that interacts with our clients and lawyers to ensure the best possible communications and service for our clients.
- On or around October 12, 2010, I met with Digirolamo, a representative of the law firm Kramer & Kaslow. During this meeting I was told that Kramer had partnered with Stein on the Ronald v. Bank of America case currently pending in Los Angeles, California. It was proposed that Brookstone assist Kramer and Stein in qualifying clients for the Ronald matter and for additional mass joinder cases Kramer and Stein contemplated filing by the end of 2010 against numerous other banks in connection with a broader relationship to be defined.
- On or around October 28, 2010, Brookstone met with Stein and Kramer at Stein’s house in Calabasas, California. During the course of this meeting a preliminary “working agreement” was proposed detailing how Brookstone could work with Kramer and Stein on the Ronald case. In connection therewith, it was proposed that Brookstone would become involved in the cases as a co-counsel with responsibilities to be determined, but probably including, at the least, supporting research efforts and maintaining communications and relationships with clients.
- On or around November 1, 2010, Brookstone received an email from Kramer & Kaslow in furtherance of Brookstone working with Stein and Kramer. Attached to this email were copies of blank Stein Retention Agreements regarding the Ronald case and for contemplated matters against lenders JP Morgan Chase and GMAC. The initial Ronald Retention Agreement sent to Brookstone from Kramer & Kaslow for our review was a Stein-Spivak Retention Agreement. However, when Brookstone started to implement its processes, Brookstone was directed by Kramer &Kaslow to use a Stein Retention Agreement that did not include any mention of Spivak. Also attached were Kramer & Kaslow Retention Agreements regarding matters against lenders Citibank, IndyMac, Wells Fargo and a lender “catch-all” for additional lenders to be named later. Kramer instructed Brookstone to use these Retention Agreements for any client that qualified for the mass joinder actions.
- At no time did Kramer or Stein advise us that Spivak had any involvement in their partnership or in their arrangements with Brookstone. However, Stein told me about Spivak and told me that as co-lead counsel in the Ronald action his work on the Ronald case would benefit any clients who joined that action.
- As Brookstone was beginning its efforts, we expressed concerns to Kramer about his use of brokers. In particular, we were concerned about potential capping issues. Kramer assured us that that everything he was doing was perfectly legal and that did not violate the rules pertaining to capping. We then advised Kramer and Stein that for Brookstone to work with them, we would have to completely separate our efforts. As part of that separation, we wanted to open a separate joint banking account that would only be used by Brookstone and Kramer & Kaslow and through which Brookstone could be certain there would be no payments to or from brokers.
- On or around November 2, 2010, Kramer & Kaslow and Stein provided their respective logos and marketing materials to Brookstone so that Brookstone could use those materials on Brookstone’s website. Shortly after Brookstone posted the materials, a disagreement arose between Brookstone on the one hand, and Kramer and Stein on the other, as to the proper use of the materials and logos.
- On or around November 6, 2010, I met with Stein and Kramer to address the inconsistencies in their requirements and to address issues as to our working relationship. At this meeting, I reiterated my concerns about Kramer’s use of brokers and potential capping issues. Kramer again assured Brookstone that everything was perfectly legal. Stein added thatKramer was an excellent attorney and advised that Kramer would not be involved with activities that violate any law or rule.
- During this meeting Stein told me that Kramer would be having lunch with Spivak in two weeks to talk to Spivak about removing himself as counsel in the Ronald matter. To that time, I still had not met, spoken or otherwise communicated with Spivak. Stein assured me that Spivak would be off the Ronald case by the end of 2010 and that Kramer would be added as a plaintiffs’ counsel at that time.
- Shortly thereafter, Brookstone proposed to Stein that Brookstone work directly with Stein on the Ronald case since Brookstone is a fully capable law firm. Stein told us that everything regarding the Ronald case and all future matters involving joinder cases had to go through Kramer.
- On or around November 16, 2010, I contacted Stein with regard to the possibility that Brookstone and I (personally) would engage him as our lawyer in an adversary proceeding then pending against us in Bankruptcy Court in Orange County California (i.e., the matters for which Stein attacked us in the Opposition).
- On or around November 21, 2010, each of Brookstone and I engaged Stein to represent us in that matter and also with respect to other matters. At that time, Stein suggested that I also engage Spivak as an expert witness in the adversary proceeding and that Brookstone engage Spivak’s law firm, SML with respect to certain compliance matters. Stein also suggested that both Brookstone and I engage bankruptcy lawyer George Baugh (“Baugh”) to assist Stein in representing us in the Bankruptcy court proceeding. On that day, Stein phoned Spivak and we spoke on a speaker phone – the first time I had ever communicated with Spivak.
- Accordingly, on or around that date, I entered into a mutually executed written engagement agreement with Spivak and Brookstone entered into a written engagement agreement with SML, each with respect to the specific matters described above. At that time, I also entered into written agreements with Stein and Baugh. However, although I signed the written agreements on behalf of myself and Brookstone, neither Stein nor Baugh ever provided me with a fully executed copy of their respective engagement agreements. Every time I have asked Stein for a copy of the agreement he claims that he already has given me a copy. However, he has never provided and I have never received a copy.
- In connection with my and Brookstone’s engagement of Stein, Baugh, Spivak and SML Brookstone and I paid Stein, Baugh, Spivak and SML. The SML agreement called for the payment of an additional $10,000, which at the direction of Stein, Brookstone and I paid directly to Stein instead of SML. At the time, it was my understanding that Stein would pay the $10,000 to SML. I later learned that Stein had underpaid SML by $10,000. When I so advised Stein, he refused to forward any monies to SML. Brookstone then paid the additional amounts directly. Both SML and Spivak fully performed the services for which they were engaged and devoted the hours and professionalism to those matters equal to or in excess of that which I had expected.
- On November 23, 2010, during aphone conversation with Brookstone, Stein stated that he was done working exclusively with Kramer, but that he would continue on a non-exclusive basis. Stein told Brookstone that he wanted to position Brookstone to be the leader and authority on the banking/mortgage/foreclosure crisis. Stein told us that he wanted to work with Brookstone to file mass joinders in various states.He explained that he “understood” what Brookstone could do and wanted to “expand into two platforms.” He promised that he would bring in substantial money by the end of 2011. Stein said that he had “a field of vision” and that it was time to hire additional lawyers for me to manage. He also said that Stein and Brookstone would jointly file a class action Stein was in the middle of drafting.
- On or around the week of December 6, 2010, Stein, contradicting his previous reservations about working with Kramer, once again claimed to only want to work through Kramer.
- On or around December 9, I received an email from Digirolamo from his Kramer & Kaslow email confirming that Kramer & Kaslow was the only law firm Stein was going to work with. Attached as Exhibit E is a true and correct partial copy of this email.
- On or around December 12, 2010, Brookstone and Stein discussed working together on a new lawsuit against Bank of America.
- On December 30, 2010, I forwarded, via email, a draft copy of a complaint for that proposed lawsuit (the “Wright” action) to Stein for his review.
- On January 2, 2011, Stein acknowledged reading the Wright complaint and stated “I understand what you want to do, and can help you do it.” Stein and I arranged to meet the following day.
- When I met Stein on January 3, 2011, Kramer was present. At this meeting, Stein agreed to be lead counsel for the proposed Wright case, finalize the complaint and file it by January 7, 2011. Stein and Kramer informed me that they had filed five new mass joinder cases in Los Angeles against various banks. They both expressed an interest on Brookstone working on these matters with them. Once again I expressed a serious concern to Kramer about client origination issues. I explained that based upon what I had been reading on the Internet and feedback I had received from the market, it appeared that Kramer’s client solicitations might not comply with all ethical requirements.
- Both Kramer and Stein said that I did not understand the law. Kramer said that Kramer only pays “marketing fees.” Stein said that there will never be a problem. Stein asserted that attorney-client privilege would prevent discovery of any problems and that I should just get on board and “everything will be fine.”
- My refusal to proceed with brokers and other elements of the Kramer and Stein marketing plan soon led to a deterioration in our relationship.
- On or around January 5, 2011, Stein requested Brookstone to help create and host a new website for Stein to complement his www.dobielaw.org website with which Brookstone has never had any involvement. Stein’s new web address would be www.mjsteinassociates.comAlthough Brookstone agreed to host the site, Stein has always had full control over every aspect of this site from content to layout. Brookstone never puts any content or information on the site without Stein’s express direction. The contact phone numbers and emails all go directly to Stein at his firstname.lastname@example.org email address. Stein (or someone at his direction who has nothing to do with Brookstone) posts all blog responses.
- On or around January 6, 2011, Stein informed me that the Wright complaint was not ready to be filed on Friday, January 7, 2011, but that it would be filed the following Friday, January 14, 2011. A true and correct copy of that email is annexed hereto as Exhibit B.
- Around this time I became aware that various law firms were using mailers in order to market to potential clients. One of these mailers was called a FORM 1012-R.
- On or around January 12, 2011, I forwarded a copy of a FORM 1012-R to Stein, as Brookstone’s counsel and partner in mass joinders to obtain Stein approval of the mailer for use by Brookstone. I specifically asked that he respond if any changes were needed before Brookstone could use the mailer. I asked Stein to reply back to me as soon as possible. Stein never responded, leading me to believe he had no objections. I did not seek Spivak’s advice or the advice of anyone at SML.
- On or around January 16, 2011, Stein sent me a very hostile email, in which he claimed that he had an issue with Brookstone and with the Wright plaintiffs. When I pressed Stein for an explanation, he backtracked, dropped his accusations and said he had no concerns with Brookstone.
- On or around January 18, 2011, Brookstone expanded SML’s engagement to include a proposed acquisition of a law practice. That advice was unrelated to Wright or any of our mass joinder cases. Because of our relationship with Stein, Stein was copied on most communications pertaining to that engagement and was invited to participate in all conference calls, though he declined to do so.
- On January 21, 2011, Stein advised me that he would file the Wright complaint on Monday, January 24, 2011. A true and correct copy of that email is annexed hereto as Exhibit C.
- On January 23, 2011, Stein advised me that he would file the Wright complaint on Tuesday, January 25, 2011.
- On or around January 25, 2011, Stein again delayed the filing of the Wright complaint and told me that it would be filed on January 28, 2011.
- On or around January 7, 2011,Stein told Brookstone that he wanted a $20,000 retainer to file the Wright complaint. On January 28, 2011, I paid Stein the requested $20,000 as consideration for filing the Wright complaint.
- On or around January 30, 2011, Stein informed me that he did not want to file the Wright complaint. He told me that Kramer had agreed to file the Wright complaint. I objected to Kramer filing the Wright complaint because of the concerns I had previously expressed.
- On February 1, 2011, Stein and Mike Riley (“Riley”) came to Brookstone’s office in Newport Beach. Baugh also attended this meeting later on. At this meeting Stein and Riley met with Brookstone’s attorneys and staff. We discussed how we could all work together on mass joinders on a national level in certain key states. Stein suggested that we form a national law firm, based in California, called Hartford Dunn, LLP, in which Stein and some of his colleagues would partner up on mass joinders. Stein recommended that Baugh be the managing partner and that Erickson M. Davis be the other partner. Stein stated that he would be of counsel to Hartford Dunn in the beginning. It was discussed that because Riley was not a California attorney he could not be an initial partner. Stein then tasked me with forming Hartford Dunn.
- At this meetingStein recommended that Baugh file the Wright complaint. He also suggested that Brookstone take its name off the complaint, even though we had originated and qualified the clients and our lawyers were working closely with them. I declined to remove Brookstone from the complaint. Stein agreed to work behind the scenes and consult.
- Perhaps in anticipation of working together on Hartford Dunn, Stein suggested it would be a good idea to incorporate Stein’s logo into the slide show that played on monitors in our reception area and other locations in our office. Brookstone agreed and we added Stein’s logos in rotation with other material on our monitors.
- Shortly thereafter, Stein worked with Brookstone on the creation of www.hartforddunn.com. As with Stein’s other website, www.mjsteinassociates.com, Stein oversaw every aspect to this website from content to layout. Although Brookstone hosts this sight Brookstone has no role regarding posting any content or information on the site. Every aspect of the Hartford Dunn website is controlled by Stein and/or Riley.
- As a secretarial matter, on or around February 4, 2011, I sent an email to Stein, Riley, Baugh and Kramer attached to which was the Hartford Dunn filed Registration with the California Secretary of State and the Federal Tax Identification Number so that they could open up a bank account. As it turns out, Kramer opened a Hartford Dunn bank account at a Wells Fargo bank in Calabasas.
- I have read the transcript and Status Reports pertaining to the February 3, 2011 hearing in the Ronald case which reflect a discussion of Stein’s involvement with Kramer, Kramer &Kaslow, K2 (my understanding was that K2 was a type of joint venture between Stein and Kramer) as well as Stein’s denial of having seen the FORM 1012-R mailer submitted by Bank of America’s counsel.
- On February 9, 2011, Baugh and Brookstone filed the Wright complaint (Wright v. Bank of America) in Orange County. Soon afterward, Baugh asked for a fee of $10,000 for filing the Wright complaint.
- Although Stein was paid $20,000 expressly to file the Wright complaint, given Baugh’s request for only $10,000, I emailed Stein on March 5, 2011 to request that of the $20,000 that Brookstone had paid him, he forward $10,000 to Baugh. Stein rejected this in a harsh email and demanded a full accounting of all monies Brookstone has received from Wright plaintiffs. It was becoming evident that Stein refused to work with Brookstone in a collaborative and honest manner.
- On March 6, 2011, I responded that I would be happy to have a discussion with Stein about Stein’s contributions to Brookstone, but that the $20,000 Brookstone had paid him was for a specific service to be rendered and that Stein had failed to render that service. Attached as Exhibit D is a true and correct copy of the March 5th and 6th email thread.
- Stein refused to forward any monies to Baugh and refused to refund any sums to Brookstone. He accused me of listening to Spivak (which was untrue, as at that time, Spivak had nothing to do with Wright or my dispute with Stein). Stein then advised me that he was immediately withdrawing from all matters in which he represented Brookstone or me and that the attorney client relationship had been terminated. Contrary to the Code of Professional Responsibility Rule 3-700(D)(2), Stein did not refund and refused to refund any part of the fee Brookstone or I had paid in advance, even though Brookstone paid Stein to cover four very specific matters, two of which are currently in the middle of litigation and the other two of which were never initiated.
- Our relationship with Baugh also became strained. I then informed Baugh
that Brookstone had decided not to work with him on Wright, though we continued to
work with him on the Bankruptcy matter.
- Given Stein’s position, I discussed with SML expanding its engagement with Brookstone to include advice on a first amended complaint in the Wright action and on complaints in two other joinder actions Brookstone is contemplating filing, as well as advice on two bankruptcy matters. SML agreed to my proposal, which covered two to three months of legal services.
- Interestingly, on or about March 17, 2011, less than two and a half weeks ago, the following exchange took place in Stein’s “Tip of the Iceberg” blog entry on his website www.mjsteinassociates.com (as explained above, while this website is hosted by Brookstone all content is provided directly by Stein who is “admin” below):
From “Amelia,” dated March 17, 2011, at 12:49am:
“I received a call from Brookstone Law firm from S. Cal. He interviewed me and asked for docs to be faxed or emailed.
Is it one of the companies you are working with?
Response from “admin” dated March 17, 2011 at 1:16am:
- On or around March 28, 2011, I, along with another attorney in my office by the name of Joshua Shelton, met with a Mr. Frank Martinez and Mr. Edward Bostock in Brookstone’s Newport Beach offices. Prior to this meeting I previously had spoken to Mr. Martinez about 2 months ago over the phone for about half an hour.
- At this meeting, I met with Mr. Martinez and Mr. Bostock for approximately 10 minutes then I had to leave for a prior appointment. Mr. Shelton continued in the meeting for approximately another 45 minutes or so. During the time I was in the meeting I briefly talked about the banking crisis, the issues people have when dealing with the banks and Spivak’s potential involvement in the Wright First Amended Complaint. Mr. Martinez asked about Stein and his involvement with the Wright case. I explained that although Stein was not on the caption page on the Wright complaint, Stein had worked on the complaint and was working, behind the scenes in the Wright matter. I categorically reject the balance of Mr. Martinez’s and Mr. Bostock’s declarations as untrue fabrications.
- With respect to timing, my experience with Stein’s has been one where he often says one thing, but does another, or makes contradictory statements, and is hotheaded, though he told me he was withdrawing, he had not returned any money and I assumed he would eventually change his mind again and continue to represent Brookstone and me and continue to work on the matters he was paid to work on. It was not until I read the Opposition that I realized that Stein completely ruined our professional relationship and violated the trust placed in him.
- We also are in discussions with SML regarding SML associating in as co-counsel in some or all of the cases in which it is helping us with the complaints. We have prepared a draft engagement letter pursuant to which clients would retain Brookstone, but they also would be advised of SML’s participation in the case. Though we have agreed on most items, we have jointly decided that before proceeding past the initial phase, we will consult with ethics counsel and potentially the State Bar to ensure that all of our activities are fully compliant with all applicable requirements.
- Contrary to the assertions set forth in the Opposition:
- a. Until after March 6, none of the Moving Parties or SML had anything to do with Brookstone regarding any emails, mailings, client solicitations, client discussions, financial matters, or any other matters pertaining to any Brookstone, Kramer or Stein joinder actions, except only that in February or March 2011, Spivak provided legal advice on certain compliance matters.
- b. To the extent the description of Brookstone’s operation in the Opposition is correct (and much of it is not), until March 2011, all such activities were either specifically approved by Stein, or Stein failed to object thereto after due and complete notice thereof. Even after Stein withdrew as Brookstone’s counsel, Brookstone completed some support services we had agreed to provide Stein. Those services were performed at the direction of, and with the approval of, Stein or his new partner, Riley.
- SML and Brookstone are totally and completely separate law firms.
- SML and Spivak have nothing to do with Brookstone’s operations. By contrast, those operations were developed by Brookstone with and first, for Stein and Kramer. Just two weeks ago on his blog, Stein acknowledged that he works with Brookstone. Stein’s website has a link to Brookstone.