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HomeMy WebLinkAbout02-28-05 (2) IN RE: MILDRED J. GERBER TRUST UNDER AGREEMENT, dated, December 19,1997 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-02-0540 OBJECTIONS BY MARILYN GERBER, PRO SE TO THE ACCOUNTING BY THE TRUSTEE, FREDERICK E. GERBER,n SUBMITTED ON JANUARY 28,2005 AS ORDERED BY THIS COURT. .~.:J ;'.~) co NOW COMES, Petitioner, Marilyn Gerber,Pro Se, and files the within the Objections by Marilyn Gerber, Pro Se to the Accounting by the Trustee, Frederick E. Gerber,1I Submitted on January 28,2005 as Ordered by this Court, as follows: 1. Petitioner, Marilyn Gerber, Pro Se, is the first child and eldest daughter of Mildred J. Gerber. 2. Frederick E. Gerber,11 agreed to Account for the years 2002,2003,2004 and 2005 as proposed by Marilyn Gerber,Pro Se in mid November 2004. He also agreed to submit any projections of expenditures from January 1 ,2005 to July 1, 2005. 3. Frederick E. Gerber,11 through his attorney, Richard Rupp,Esquire swore before the Orphans' Court representative and William A. Duncan, Esquire, the Court appointed Auditor, on November ,2004 that he would provide the said above mentioned Accounting by January 28,2005 that was referenced as Stipulations. 4. Jacqueline Verney, Esquire volunteered to write up the Stipulations as sworn to on November ,2004 and submitted such Stipulations for review, ~- .;,"" N changes or approval. Marilyn Gerber was the only party that responded and corrected the Stipulations as written by Ms. Verney. Richard Rupp NEVER responded to any of the several faxes and requests by Ms. Verney for all parties to answer and sign her Stipulations. 5. Ms. Verney filed a Petition stating that Marilyn Gerber was obstructing the signature of parties of the Stipulations as she had written them and asked for financial fees to be awarded to her. 6. William A. Duncan, Esquire, Auditor submitted a Memo to this Court on January ,2005 in which he upheld the objections and changes that Marilyn Gerber had insisted were corrected in the Stipulations as written by Ms. Verney. 7. Judge Oler, on January 14,2005 ordered that William Duncan's Memo with the correct dates and content of the Stipulations as proposed and insisted upon by Marilyn Gerber were correct and this Memo was incorporated in Judge Oler's order stating that Frederick E. Gerber,ll was to submit the Accounting for 2002,2003,2004 and a projection for any expenditures for 2005. Judge Oler also denied Ms. Verney's Petition for financial fees. Richard Rupp never responded to any of Ms. Verney's petition for fees or answered any requests by this Petitioner to participate in creating a final version of Stipulations. 8. On January 28,2005, Frederick E. Gerber,11 through his attorney, Richard Rupp, Esquire submitted to this Court the ordered Accounting. Richard Rupp however, NEVER included a Certificate of Service to any of the parties, NEVER sent a copy of the Accounting to Marilyn Gerber or to Ms. Verney who confirmed with Marilyn Gerber that she had in fact NOT RECEIVED a copy of the Accounting. ~ 9. On Friday, February 1,2005, Richard Rupp faxed a one page document which instructed all parties that Objections would have to be filed on or before March 1 ,2005 with this Court. Richard Rupp never mailed a copy of this document or mailed a Certificate of Service. In the Last paragraph, Richard Rupp stated that any party could obtain a copy of the said Accounting through the Court. 10. Marilyn Gerber called Richard Rupp and William Duncan and inquired about a copy of the Accounting and filed her complaints that this was unethical and this demanded that she drive to the Courthouse and pay fifty cents a page for the Accounting which indeed she had to do on February 9,2005. 11. This Court ordered Frederick E. Gerber,11 to provide Accounting of the Mildred J. Gerber Trust by July 8,2002 for the period of 1998 to July 8,2002. Frederick E. Gerber," through his attorney RIchard Rupp, Esquire, submitted to this Court orderedAccounting as petitioned by PNC Bank in June 2002, and served all parties by mail and with a Verification and Certificate of Service. Richard Rupp in fact submitted several Amended versions of the Accounting for the Mildred J. Gerber Trust and the Fred E. Gerber,Sr. Trust. 12. The Accounting that was ordered by this Court in June 2002 resulted in THREE versions being submitted by Richard Rupp, Esquire. The first Accounting was titled the "First and Final Account" and was signed by Frederick E. Gerber,11 on July 5,2002. The second version of the Accounting was titled, "Amendment and SUpplement to First and Final Account" and was signed by Frederick E. Gerber,11 on July 30th,2002 but was written over and appears to be July 31,2002 with initials SAB which stand for the Notary Public, Sue Ann Brown who swore and acknowledged \:3 the signature made by Frederick E. Gerber,11. The third version was submitted to this Court and was titled, "Amended and Restated First and Final Account" and was signed by Frederick E. Gerber,1I on November 12,2002. 13. PNC Bank on or about October 3,2001 became the successor Trustee of the Mildred J. Gerber Trust, removed the Accountant as Trustee and instructed Frederick E. Gerber,1I to cease writing checks on the Mildred J. Gerber Trust. Frederick E. Gerber, II continued in fact to write checks on the Mildred J. Gerber Trust without approval from PNC Bank and therefor this Petitioner objects as this was income wasting of the Trust. This Petitioner has included this Objection in the PNC Bank Accounting hearings held on September 28 and 29,2004. 14. The Accountant fails to conform to the fiduciary accounting standards set forth in Supreme Court Orphans' Court Rule 6.1, and breaches Accountant's duty to render a clear and accurate account. In particular, the Account: (a) fails to separately state the fiduciary acquisition value of the Trust assets; and fails to explain when the assets of the Trusts were obtained, what date, which assets were obtained as dated by this Trust which was under agreement on December 19,1997. (c) fails to report with specificity the gains and losses on sales or other dispositions of Trust assets, such as the unrealized losses noted in ,1999 and 2000,2001 or provide any information with specificity concerning the large amounts of margin accounts, margin interest and losses that were incurred by as stated in paragraph #6 of the January 28,2005 Accounting and constitutes a wasting of the Trust assets in violation of Accountant's fiduciary duties. The .tf Accountant fails to explain with specificity what instructions in the Trust instructed him to maintain a margin account at Charles Schwab. 15. The Accountant made multiple distributions to individuals other than the Beneficiary, including, inter alia, the Accountant, Jane Heflin, Sascha Gerber, Mischa Gerber, and John Hansier, contrary to the terms of the Trust agreement and in breach of the Accountant's fiduciary duties. The Trust agreement does not permit the Trustee to make gifts on behalf of the Beneficiary. In this Accounting dated, January 28,2005, Frederick E. Gerber,lI fails to explain why he took the amount of $17,700 from this Trust and "against his Estate share" at the instruction of the Beneficiary. The advance is contrary to the terms of the Trust since the Beneficiary is the sole beneficiary of the Trust during her lifetime, and is a breach of the Accountant's fiduciary duties. Mildred J. Gerber had no financial experience and the Trustee was not to enrich himself as Trustee. The Accountant in this report of January 28,2005, produces a document dated, March 18,2001 in which the Beneficiary excuses this loan and this Petitioner objects for the following reasons: (a) The Beneficiary, Mildred J. Gerber was examined by a physician and a psychologist in March 2001 and was determined to be suffering from Alzheimer of the Vascular type. This would preclude the Beneficiary from understanding or signing this alleged document and it is believed that the Trustee, Frederick E. Gerber,11 produced this document, coerced the Beneficiary to sign this document and the signatures on the bottom of this document are those of the Trustee and his sister, Jane Heflin who both had taken loans, had something to gain and this document was not notarized or witnessed by any other person who would be s- unbiased. This document dated March 18,2001 was not produced for any of the previous three Accountant's Accounting submitted to this Court in July 2002, and November 2002. This Petitioner objects to this document as being invalid, fabricated and created with the assistance of conspiring siblings with the assistance of attorneys, Richard Rupp, Esquire and Jacqueline Verney, Esquire as the language of this document is contrary to the language that would be expected from a non attorney. (b) This Petitioner objects to this loan and the document which excuses this loan and believes that this document is fabricated and an attempt to defraud this Petitioner who is a beneficiary of the Mildred J. Gerber Trust. (c) The Accountant fails to explain with specificity what funds, assets or source that this loan was taken from, and explain any fees that were incurred in the sale of any assets, any interest that was incurred and more importantly WHY the Accountant needed this loan. 16. On January 23,2001, the Accountant distributed to himself a gift of $30,000" by instruction of Mildred J. Gerber" contrary to the terms of the Trust and in breach of Accountant's fiduciary duties. The Accountant was not the current beneficiary of the Trust, and the Trust Agreement does not permit the Trustee to make gifts on behalf of the Beneficiary and this Petitioner OBJECTS for the following reasons: (a) The Accountant, Frederick E. Gerber,1I filed an Emergency Petition for Guardian of Estate declaring that Mildred J Gerber was incapacitated and produced evidence in February and March 2001 through his testimony, and that (, of a psychiatrist and psychologist that Mildred J. Gerber was suffering from Alzheimer of the Vascular Type. The Accountant produces a document dated, January 19,2001 and titled, "Notice to Indemnify Frederick E. Gerber,1I Against All Legal Costs" in which the Beneficiary is allegedly giving Frederick E. Gerber,lI $30,000 for the purpose of legal fees/costs associated with the above. This Petitioner objects to this as she believes that this was a conspiracy to defraud this Petitioner of her beneficiary rights, and Mildred J. Gerber was medically incompetent to understand this document and was coerced into signing this document under a "hostage situation on January 19, 2001. This Court declared Mildred J. Gerber legally incapacitated on March 22,2001. (b) This Court appointed PNC Bank as Guardian of Estate on March 22,2001 and the there is a large QUESTION concerning PNC Bank's involvement with this distribution and the Petitioner believes there is a conspiracy with PNC Bank and this Petitioner to defraud Mildred J. Gerber and this Petitioner from their beneficiary rights and inheritance. (c) This Petitioner objects to this $30,000 distribution as the Accountant fails to account from what source, which assets, and if assets were sold and whether their were any penalties or fees, margin interest or wasting of the Trust which were incurred. (d) This Petitioner objects to this document as it is only signed by Mildred J. Gerber, Jane Heflin who was not authorized to profit from any distribution from this Trust and Frederick E. Gerber,lI who also was not authorized to receive any moneys from this Trust and this document implies future needs and not actual needs and receipts or a budget of realized fees and needs. There are f no unbiased witnesses or signatures or notarized witnesses that proves that Mildred J. Gerber had any knowledge or capacity of what she was signing. (e) This Petitioner objects to this document as it is believed that Richard Rupp,Esquire and Jacqueline Verney, Esquire conspired to create this document which was ultimately used for fees that were paid to them and violates the terms of the Trust and is income wasting and violates Jacqueline Verney's appointment as an unbiassed Objector for PNC Bank's objections which they filed on August 27,2001. Richard Rupp, Esquire also previously represented Mildred J. Gerber and Fred E. Gerber,Sr and his participation in securing legal fees for himself constitutes a conflict of interest and is a disciplinary action before the Pennsylvania Bar Association. (f) The Petitioner objects to this distribution of $30,000 as an attempt by Frederick E. Gerber,lI to pay for future legal actions which he conspired with PNC Bank, his attorneys, Richard Rupp and Jacqueline Verney to petition for the Guardianship Person of Mildred J. Gerber. (h) The Accountant FAILS to account for the legal fees or bills that this $30,000 was used for or how he arrived at a $30,000 figure. It is objected to that Frederick E. Gerber,1I used these moneys for past legal actions not connected to this Trust or for the benefit of Mildred J. Gerber. 16. The Accountant fails to account with any specificity for the income from the Baltimore Property that the Accountant alleges was paid to Mildred J. Gerber, PNC Bank, Guardian of Estate or where the rental property income was distributed during 2002 during her lifetime, and after her death in 2003,2004 and J the projection rental income for 2005. The Petitioner also objects for the following reasons: (a) The Accountant despite PNC Bank's objections that they never received 12 months of rental income from this Baltimore property during 2001 ,2002, and 2003 has NEVER accounted for the rental income NOR has the Accountant explained why this income was transferred to Mildred J. Gerber when this property is alleged by the Accountant to be the asset of the Fred E. Gerber,Sr. Trust and should have been deposited as assets for the Fred E. Gerber,Sr. Trust and for the benefit of the Gerber children as Mildred J.Gerber has assets of her own in the Mildred J. Gerber Trust. (b) This Petitioner objects and believes that the Accountant cashed the cashier checks from Mr. Joseph Cross for his own use and has failed to account for where these moneys were deposited or accounted for according to fiduciary standards. 17. The Petitioner objects to Paragraph 5 of his January 28,2005 accounting as stating that Mildred J. Gerber authorized and approved of checks drawn upon the Mildred J. Gerber and submits a document which is a grid with many signatures with the name Mildred J. Gerber. This Petitioner objects that this grid document does not have any dates beside Mildred J Gerber's signature, there are no notarized witnesses by each signature and that the signatures are suspect as they are illegible, suspect and in the months of March 2001 through December 2001, PNC Bank was appointed as the Guardian of Estate and became Successor Trustee in October 2001. PNC Bank removed Frederick E. Gerber, 1 II on October 3,2001. This document provides no proof or authorization that Mildred J. Gerber did indeed have knowledge of what she was signing and Mildred J. Gerber was suffering from Alzheimer. 18. This Petitioner objects to Paragraph of this Accounting of January 28, 2005 as in the previous Accounting, the Accountant states on November 12,2001 that notes for $5,000 to Jane Heflin, notes for $13,018.74 to Sean Heflin and notes to Sascha Gerber for $500.00 are to be repaid with interest and that these were promissory Notes. The Accountant provides no specificity as to why these loans were made, on what date they were made or provide the promissory notes. Magically, the Accountant produces a document dated March 2001 in which all of these notes are excused and when Mildred J. Gerber was declared incapacitated by this Court and was suffering from Alzheimer. The Petitioner also objects for the following reason: (a) The Beneficiary was the sole beneficiary of the Trust during her lifetime and the Trust agreement does not permit the trustee to make gifts on behalf of the Beneficiary. (b) The Petitioner objects that the Accountant and Jane Heflin conspired to defraud Marilyn Gerber from her beneficiary rights, her inheritance by taking moneys from this Trust and not the Fred E. Gerber, Sr. Trust which thereby enriched each of them and their children. (c) The Accountant fails to account for the corresponding notes for the amounts loaned and what assets, investments, fees, sale of any assets that may have incurred fees from the Trust in order to pay these notes, nor does the /0 Accountant state what interest rate would be paid (e) The debit of these loans constitutes income wasting from this Trust 19. The Accountant fails to explain with any specificity why $1,983.89 is reimbursed for Baltimore Estate and why $1,082.51 is reimbursed by or to Frederick E. Gerber,1I for trust supplies which constitutes income wasting and the following reasons: (a) The Accountant requests a commission and administration fee to be paid form the Trust. The Amount requested is not reasonable as it exceeds the standard rate of compensation for administration of revocable trusts. In addition, expenses of the Accountant, which should reduce the commission and fees payable were paid from the Trust as follows: (1) $1,082,51 for trust supplies but there is no date for this fee and the Accountant does not explain if this is a Return of $1,082.51 to the Mildred J. Trust and if so, WHY after he claimed this as a debit in his previous Accountings in 2001. (2) $1.983.89 The Accountant also does not explain if this is a reimbursement and if so, from what source and why and the specificity surrounding this money. 20. The Accountant fails to explain with any specificity, how he generated income for the amount of $95,768 and thereby take a Trustee's commission of 5% for the amount of $4,788.00 and this amount was questioned by PNC Bank in their Objections as well as this Petitioner. PNC Bank was obliged to pay a large margin loss of approximately $88,000 when they took over the Mildred J. Gerber Trust from Charles Schwab in late 2001, therefore this Petitioner demands that I( the Accountant explain how he could have generated income of $95,768 and if so, he has not provided any specificity. The Accountant has during the current discoveryperiod for the postponed hearings of the Accounting of the Mildred J. Gerber Trustfrom 1998 to 2001 REFUSED to provide documents, billable legal hours, or answerinterrogatories. Currently Judge Oler has allowed this Objector/Petitioner to resubmither Motion for Sanctions for failure to produce her Request for Documents and toresubmit her Interrogatories per the Pennsylvania Rules of Civil Procedure. This Petitioner objects that the Accountant has failed to provide detailed information for the year 2002 and has failed to answer pertinent questions during the deposition of the Accountant on October 14,2004 which was a deposition in which the Accountant did everything possible to sabotage the Petitioner's attempt to conduct discovery 21 . This Petitioner /Objector submits the Objections that she filed on August 27,2002 and agrees with the Objections that PNC Bank also filed in August 2002 as corresponding to the Objections that she files with these Objections. 22. Objector reserves the right to raise further objections that may arise from time to time. WHEREFORE, Marilyn Gerber,Pro Se, a beneficiary of the Mildred J. Gerber Trust respectfully requests that this Court: (a) deny the request of the Accountant, Frederick E. Gerber,lI, to confirm the Supplement to Amended and Restated First and Partial Account for the Mildred J. Gerber Revocable Trust originally dated December 19,1997, as filed, and (b) surcharge Frederick E. Gerber,1I for the amount of distributions and disbursements improperly paid from the Trust ; repay all of the loans as originally ;;z stated; forfeit all commissions and administration fees from the Trust; repay all of the losses incurred from writing checks from the Charles Schwab account when there were no funds; repay all the interest fees incurred from the margin account and margin interest paid on the Charles Schwab Trust account; repay the $30,000 taken on March 22,2001 ; repay all of the rental property income from March 22,2001 to present and properly deposit them into the Fred E. Gerber, Sr. Trust, and repay all of the improper funds taken for trust supplies; and loans to Jane Heflin, Sean Heflin, and Sascha Gerber and repay all attorney fees associated with the management and administration of this Trust or attorney fees that were disbursed from this Trust as the fees paid to Herbert Rupp, Richard Rupp, Lindsay Baird, Jacqueline Verney, and attorneys in Chicago associated with Mildred J. Gerber and especially all attorney fees that were used for the Petition for the Guardianship of Estate and Person that was filed by Frederick E. Gerber,1I for the sole purpose of "control" of Mildred J. Gerber. (c) surcharge Frederick E. Gerber,11 for misappropriating moneys spent from the Trust for payment for memorial fund to military officers in the US Army, Office of the Surgeon General who were colleagues of the Trustee. (d) surcharge Frederick E. Gerber, II for intentionally delaying the audit and discovery of this Trust Accounting from January 2004 to August 3,2004 by misrepresenting his status in the US Army as being eligible for the Soldiers and Sailors Relief Act. (e) surcharge Frederick E. Gerber,1I for intentionally keeping supplies purchased for the administration of the Mildred J. Gerber Trust for his enrichment /..3 and that he did not surrender to the successor Trustees to PNC Bank on October 3,2001. (f) surcharge Frederick E. Gerber,1I for failure to property file and administer timely and accurate taxes for the Mildred J. Gerber Trust from 1998 to October 3,2001. (g) surcharge Frederick E. Gerber,1I for intentionally failing to pay Life Insurance policies for Marilyn Gerber, beneficiary and child of Mildred J. Gerber and Fred E. Gerber,Sr. (h) surcharge Frederick E. Gerber,1I for intentionally defrauding Marilyn Gerber from inheriting as a beneficiary of the Trust. (i) surcharge Frederick E. Gerber, II for withholding documents and information on the financial assets and management of the Trust. 0) FINALLY and most importantly, appoint Auditor, William A. Duncan, Esquire as the Auditor for the years 2002,2003,2004 and projected expenses for 2005 and establish discovery deadlines for the upcoming pending hearing dates of July 17-19,2005. ~~ L---'//"' ) By: M~Ger -; Pr -8e- 717 Market Street,#317 Lemoyne, PA 17043 Tel. 717 503-5280 Date: !u-,u,t <XTO (" , CERTIFICATE OF SERVICE ~ J'>+I--- y- I hereby certify that on this r7-<J day of I ,2005, a true and correct copy of the foregoing Objections of Mildred J. Gerber, Beneficiary was served by means of United States mail, first class, postage prepaid, upon the following: Richard Rupp, Esquire 355 North 21 st Street Camp Hill,PA 17011 Jacqueline Verney,Esquire 44 South Hanover Street Carlisle, PA 17013 William A. Duncan, Esquire One Irvine Row Carlisle, PA. 17013 BY: Dale: Y d?, m J' VERIFICATION /~ ~~ ';ta~, Pro Se,deposes and says, ; Ii I subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification to authorities and the facts set forth in the foregoing Objections of Mildred J. Gerber Trust, Beneficiary are true and correct to the best of hislher knowledge, information and belief. L---" By: Date: # d-b( k-o ,/