report fraud is generally defined in laws the intentional misrepresentation material existing fact made by one person to another with knowledge of the false and for the purpose  see the other person to act on which the other person realize with resulting injury or damage constructive fraud however is acknowledged under the law although deceptive intent is missing because it has the same consequences as actual fraud would have in the camper case mainstreet bank was approached by larry and for to become guardian of the estate for his mother ruby camphor as he sought to apply for the guardianship over her person they lined out specifically in writing actions they would take such as investment analysis and other actions see you getting right to that point my question is given that we have the counties down in this case and everything was laid out for everyone who was involved how does this involve product constructive or otherwise there are at least three very specific outright fraud elements or actions by mainstream number one in one accounting and one appearance in the courtroom they presented an agreement was reached by the parties vote on both parties that there would be no inspection of a florida condominium that was based on the representation by main street that it was too expensive to send t officers down to florida to examine the condominium at that point in time in their possession was a extensive property damage report from their agent that property damage  never presented to the court to the parties until after the war died that property damage report outlined in at least three pages very specific significant damages so there was an intentional failure to disclose that property damage report and present to the parties well it's just too darn expensive to fly two officers down to visit a florida  that's one of them was there every month without court who no one knew that it existed it was held in the in the files of the bank and never disclosed to the parties until after the petition for surcharge was filed and it was found in discovery second item was that there was no investment analysis they didn't even go into the safety deposit box and examine and itemize all but the bank was going through a merger and their trust departments were merging their systems and that was the reason why the investment analysis and portfolio stay the same during the entire two and a half year period lined out to larry kanpur when he agreed to nominate the bank outlined that they would do an investment houses as a commercial bank they reach out to individuals as well as court appointments as guardian they perform investment analysis and strategy for all of their clients and here you you have that same bank appointed as guardian a fiduciary and they don't even do what they do for their own private customers so no it was not presented to the court until the final report which said we're getting ready to do this third element was that they did have a dream and six leave an outline of assets and the basis and you had the ward invested in some what was a day trader there were three hundred forty different types of stocks there were a number of with zero value or close to zero back that had declined significantly huge capital losses the bank filed an income tax return in generated fifty thousand dollars of income taxes and they acknowledge they did this all with capital gains and all they had to do was harvest the losses to offset those gains and they would have avoided the fifty thousand dollars in taxes those are three major items that are direc the rest has to construct to fraud are the failures on the far the ongoing gross failures on the banks part to submit insurance claims in a timely manner to manage investment accounts there was a two million dollar account that the only transfer was between not taxable and taxable investment in other words whether it would be subject to federal income tax or not that was the only change they made in that they made no switches in this stock portfolio as to the supervision condominium they didn't go out and hire a professional property manager they hired an individual who even wrote them the same person who wrote the property report and said i am not a professional property manager she worked at a law office which had handle the answer state where the word received the condominium from so she was somewhat familiar with the property that she was not a professional and advised them that they had been directed in their order which their attorney prepared for the court when they were appointed permanent plenary guardian of the estate to secure to prepare in and secure inventory and appraisal of the personal property in the condominium they inventory but they never did an appraisal so we're caught in the bind right now the how do we prove economic loss there was significant water damage to the florida condominium by virtue of her if there was mauled in mildew the personal items within th condominium are significantly damage but how do we prove that the value from day one when they took over there are no appraisals the bank failed in their responsibilities when the ward herself who fought the guardianship sok to examine the possibilities of sale of the florida condominium they denied access to the they denied or refused and that follow up on prospective buyers in the florida economy in a point in time in two thousand and six and seven when the florida market was rapidly declin those are all items when you look at the accounts yes there are three hundred four hundred pages but there's a summary of two pages on one and three pages on another they are an item is ation of receipts and dispersants they are a listing of assets nowhere with then those accounts is an outline of here's the property that the kind of many i'm in champaign illinois and the kin and here's what we propose to do in regard to maintenance and or repair and or lease or sale there is no item is asian there is no mention other than perhaps one sentence in one of those accounts there is no outline of when you have millions of dollars in the stock market an outline of investment philosophy strategy and approach i think i've pointed in the briefs to a couple of cases and i realize there are two cases coming out of this district one is lowers and one is  which if you read it and you are liberal in the interpretation you say ok what you have that order then you can't go back but let's look at the facts in those two case in lowers you had parties who were litigating no say in federal court and state court at the time the account was filed everyone knew the issue and to go back after the account is approved and challenge by virtue of saying well there were misrepresentations or lying to the court or on the stand perjury on the stand and that constituted fraud i think the court was correct the parties knew what was it issue they had an opportunity to do discovery and raise the issue and in ashour what you had was you have four counts were approved right off the very beginning and then you with a nine months of date of death allowing her consenting to twenty thirty two way then she comes she or he comes back at a later point after the accounts for those four years have been approved and says well i arrest the night twenty thirty two a you should have known better and therefore i want to challenge well the issue was there the issue was present in regard to the qualification of twenty thirty two way at the time the accounts were presented and approved what we're saying is we have no way of knowing about the income tax liability about the stock portfolio and what would be created at the time the account was fine no mention was made of it it was mere recitation of receipts and disperse believe that that they would be perhaps by my facia until there was an opportunity for the objector to come forward and rebut ends sept fourth why there constructive fraud on the court in this case in the camper case there is no outline of any property damage there is no outline of what is to be in regard to the property the real estate condos were not even addressed really in that other than perhaps they were listed one condominium in the state of florida that doesn't give notice to the court as to any the ok the check for the i r s comes after the account two thousand and six accounting was filed in approved the check comes the following year in april and that has not been approved so it does not appear but if if you were to take that stance that everything that could have been raised must be raised as of december thirty first or or the date of the accounting you can argue that the harvesting of the losses is covered at the same time the approval of the accounting is even though the tip the the way to detect that is the fifty thousand dollars check to hir there's been a final report that has never been presented to the court and it has never been approved so if you filed objections to the families and did you raise this fifty thousand dollar check we raised in the petition for surcharge the final report covers those final year the final year or period until all funds were transferred over so it is before the court again yes i think they knew the size of the state but not the drug dealers but not the details because it seems to me that you know if they put their trust in the main street banker damage that as to the significance of that and and bad i am just making the assumption and you have in this case also of the guardian of light and saying in a deposition i figured that main street was doing their job and as long as the needs of the ward were satisfied i was not  in and and examine the three hundred four hundred page and his type records reflect that he was involved in the litigation this whole thing seems to revolve around the fact that there was an argument as to who should be the proper guardian of the purse and then when mom got involved in the litigation in and her rights were affected she lashed out at all the kids she revoked her will and she signed to bring back the gifts that she had made and then the kids after they started see what had transpired but the father's estate and they were on notice that they were now no longer in mobs of state they looked at well they had had a trust for us where is that trust and they found that mom had never done that so those three issues preoccupied the time of the court and all yes there was main street over there but they're a good size bank they're competent we're going to assume that they're doing their job not under an obligation to review that account they were in court as guardians or fighting over the guardians of the person what's best for mom what's her health care so ok the the final document there's concern there is an endowment for a professorship the father was a professor over at university of illinois so  goes to the university of illinois to endow a professor the balance goes to a couple well there are a couple other minor charities i believe in there too but the balance goes into a trust income for  to the two children in two separate trusts remainder down to grandchildren so yes the children do receive under under mother's will she revoke wrote the but they were there in their capacity as guardians of the  capacitors which were different types of health and different places she enjoyed day trading and she was relatively successful and she bought the guardianship tooth and nail for a cd when ruby had health issues for so larry decision for guardianship ruby fock the guardianship she had her own lawyer represented her rock the guardian to see if in fact she only had one she had multiple boyer's throughout the guardianship proceedings and she filed many motions with respect to our bodies were being used what she wanted to happen and that she wanted the guardianship to away ruth kantor was pretty starter she also had her own lawyer and they filed multiple rows dealing more with just more than just issues over who should be the guardianship of the person really asa filed motions with respect to matters about money several different larry and what should happen to those and she asked so i asked to see larry campers and bank records so they were all interested in more than just a guardian and  leave with accounts in the guardianship but the same differences in language in the same progression throughout history occur with respect to approval of accounts in  thirty nine the language was changed to its current state which provided that if one knows if hearing is given at least ten days before hearing and to a court appoints the guardian ad litem to difference in the fraud that we're arguing about said the legislators intended to apply the law that had developed to that point time in probate manners so for that reason i think that clear language of was made public notices to an interested party but in fact it wasn't so there is never a jurisdictional person that person never had an opportunity to present such as that is made here such as  was withheld to the point that the parties didn't even know that those who chose to know that there was something that they should be looking into how is it you know they are so to speak to to hold them to the standard that well you approved this accounting so you can't go back even though the bank had the control of the information in simply did not provide it and i'd like to make a couple points with respect to that i think it's first of all parents know what's at issue in this case the court  s on appeal another thing that i'd like to speak to points council officials council says that they never knew the extent of the damage to the floor condominium on january fift responded out of motion for permission to take certain actions and that's in the record at c seven fifty eight exhibit one is a letter from kathleen moore regarding actions for which the orders request petitioners in this case i didn't buy what was going on with the investments not only did it include a listing of all the assets and consolidated into the wealth management it count quote the consolidation has been done in a measured manner and it's only been partially completed in order by this camper with sufficient time to become accustom to guardianship of the petition goes on to say that the bank is aware of ruby is interested in petitioning pre determination guardianship and it did not want to complete the consolidation of assets prior have over three hundred forty equity positions it was time consuming process and was determined to see would not start the process until the consolidation was completed and that's because there was a difference in how the guardianship was going to charge it would be more expensive hundred dollars an hour to do that before the consolidation occurred whereas after the consolidation occurred here percentage fee which was much less so to say that there was no refers to or suggest that there was some fraud based on representations made by you see coming into the guardianship and i also respectfully disagree with that point  jurisdiction petitioners are essentially arguing in using representative future actions that we take in the guardianship proceeding to the extent that those actions were taken that at best that document says an evaluation will be made by mainstreet well as to the best practice to read asset allocation financial soundness tax considerations and a purple innes will dictate whether investments in place will be finality no certain what would be the point having foreigners in the county they weren't fined so for all these reasons and with respect to section section two six fifteen court in her orders striking dismissing lower case does have some important language in it on the other hand cases arise in which a party is prevented by fraud of his opponent from presenting the merits of the case  without receiving information as to a specific issue we are required to raise all ish and i raised the question with the court does that mean that it every guardian a litum must at that point in time that when accounting is five he's going to have to hear she is going to have to litigate every possible issue every potential  he's going to have to go back behind the accounting and determine the income tax liability as to the service master one of the issues is yes they did deliver antique rugs oriel rug to service master what they neglect to find is that when my clients were appointed co executors half of those rugs were never returned and service master went out of business down and in florida issue wasn't raised how can we address that issue and dig in and as the guardian of light i'm going to be obligated to dig in and research every single issue the a county was three hundred four hundred pages the berger case that is cited looked at the terms of constructive fraud and looked at what the guardian ad litum had done and found the guardian ad litem didn't spend any time really looking at the county he figured that ok the needs are being met i don't need to look at the county well in a several million dollar estate where the individual have been day trading the the guardian ad litum or the guardian of the estate has to step forward and develop a strong effective policy it was from the standpoint whether you mention ok it was not specifically in bold type but all the allegations were there as to what the bank had not all of the elements your honor i cannot recall specifically whether the word fraud was mentioned to the words of constructive fraud or the theories of constructive fraud are different from trade on fraud but the allegations of purposely failing to disclose the property damage report and purposely failing to perform the investment analysis purposely failing to harvest the capital gains when they were on notice of it by their own attorney giving them notice that you must watch these and be careful because down the road litigation may develop they were on notice that they didn't disclose and those were outlined in the in the pleadings down trial