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ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

IN THE STATE OF SOUTH CAROLINA

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IN THE COURT OF COMMON PLEAS

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FIFTEENTH JUDICIAL CIRCUIT

COUNTY OF HORRY

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Karon Mitchell, Kyle Mitchell, and Rabon &)

Rabon, Inc.,

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Case Number: 2017-CP-26-05757

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Plaintiff,

)

)

vs.

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Jack Rabon, Nicole Rabon, Lane Jeffries,

)

MOTION FOR PARTIAL SUMMARY

McNair Law Firm, P.A., Atid Properties,

)

JUDGMENT

LLC, Daisy Ridge, LLC, Friends of LBS,

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LLC, Sarah Ginsburg, Jacob Biderman,

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Gabriel Yosef, and Michelle Cohen,

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Defendants.

)

)

CIV-676-01

Plaintiffs move this Court pursuant to Rule 56, SCRCP to grant summary judgment as to

its Third Cause of Action in this litigation against Lane Jefferies, which is more specifically

described below. There is no issue of material fact in dispute as to whether the sale of

September 3, 2015 was procured by fraud and that Lane Jefferies, a member of the South

Carolina Bar, was an active participant. Lane Jefferies knowingly provided false testimony in a

sworn deposition. Any additional explanation or affidavits that contradict his sworn deposition

testimony must be considered a “sham affidavit” and cannot be considered by this Court in

reaching its decision. Without Jefferies’ false alibis about the September Sales, he cannot mount

a defense against Plaintiff’s claims, especially considering the admissions he provided in that

same deposition. Therefore, Plaintiffs are entitled to summary judgment as laid out below.

BACKGROUND AND SUMMARY

This litigation focuses on the sale of certain properties owned by a family corporation,

Rabon & Rabon, Inc., which is owned by the Estate of Peggy Jo Rabon (hereinafter the “Estate”

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(61%), Defendant Jack Rabon (13%), Plaintiff Kyle Mitchell (13%), and Plaintiff Karon

Mitchell (13%). The properties were purportedly sold to avoid pending foreclosures, although

only one of the properties was mortgaged [hereinafter referred to as the “September Sales”].

These properties are described as follows:

All that certain piece, parcel or lot of land situate, lying and being in the City of Myrtle Beach, Dogwood Neck Township, Horry County, South Carolina, shown and designated as Lot Three (3) of Block Nineteen (19) according to a map or plat of Hotel Section of Myrtle Beach, as made in June and July if 1926, under the supervision of Stanley H. Wright, Engineer, which map or plat is recorded in the Clerk of Court’s Office for Horry County in Plat Book 1 at page 84, reference to which is hereby made as a part and parcel of this description.

TMS # 181-11-03-005/ PIN # 444-01-04-0044 [hereinafter the “Brick House”]

All those certain pieces, parcels or lots of land, with improvements thereon, situate, lying and being in the City of Myrtle Beach, Dogwood Neck Township, Horry County, South Carolina, shown and designated as Lot Numbers Seventeen (17) and Eighteen (18) of Block Nineteen (19), as shown on a map of the Hotel Section of Myrtle Beach made in June and July 1926, under the supervision of Stanley H. Wright, Engineer, and recorded in the office of the RMC for Horry County, South Carolina, in Plat Book 1 at page 84, reference to which is craved as forming a part of these presents.

TMS # 181-11-03-002 / PIN # 444-01-04-0051

All that certain piece, parcel or lot of land, with improvements thereon, situate, lying and being in the City of Myrtle Beach, Dogwood Neck Township, Horry County, South Carolina, shown and designated as Lot Number Two (2) of Block Nineteen (19), as shown on a map of the Hotel Section of Myrtle Beach made in June and July 1926, under the supervision of Stanley H. Wright, Engineer, and recorded in the office of the RMC for Horry County, South Carolina, in Plat Book 1 at page 84, reference to which is craved as forming a part of these presents.

TMS # 181-11-03-004 / PIN # 444-01-04-0043[collectively hereinafter “Sea Palms #3”]

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A diagram of the properties and there relation to one another is attached hereto as D-1. 1 is It is

with regard to these properties that the fraudulent schemes were perpetrated.

Essentially, Jack Rabon, Lane Jeffries (Rabon’s lawyer), and others orchestrated a

scheme in which $777,000.00 was paid for the two properties owned by Rabon & Rabon, Inc.

with $235,000.00 of that money being paid “under the table” to Jack Rabon and others.

THE FACTS

The Beginning

Prior to her death, Peggy Jo Hardee Rabon was the majority shareholder in Rabon &

Rabon, Inc. [hereinafter the “Corporation”]. Her two children (Jack Rabon and Karon Mitchell),

along with her son-in-law (Kyle Mitchell) were the other shareholders in the Corporation.

The

Corporation owned four hotels in Myrtle Beach, South Carolina (the Sea Palms hotels) and a small

home [the “Brick House”] along the 7 th Avenue corridor. The hotels were each assigned a number

for reference, i.e. Sea Palms #1, Sea Palms #2, etc. The Corporation was a family business which

was originally operated by Peggy Jo and her husband, with Karon and Kyle Mitchell assisting in

the management of the hotels.

Karon and Kyle Mitchell eventually took over full control once

Peggy Jo got to an advanced age.

In 2012, the family created a new limited liability company,

MB Boardwalk Entertainment, LLC [hereinafter MBBE]. MBBE was owned equally by all four

shareholders of the Corporation. 2

MBBE was formed to build a miniature golf course and

restaurant on three ocean front lots owned by the family. To accomplish this goal, a $3.6 million

loan was obtained through West Town Bank. This loan was secured by the miniature golf course

and restaurant, along with two of the Sea Palms hotels (Sea Palms #3 and Sea Palms #4).

The

1 The Diagram Exhibits are in the blue covered bound volume.

2 The family members and their respective ownerships and positions in the family businesses are laid out in Diagram D-2.

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West Town loans were also personally guaranteed by all of the individual shareholders and the

Corporation. 3

In 2014, TD Bank filed a foreclosure action on three of the hotels. This led to an interfamily

conflict and litigation beginning in July 2014. McNair Law Firm was retained by Jack Rabon and

Peggy Jo Rabon to bring an action against Karon and Kyle Mitchell for mismanagement and

misappropriation of funds. Peggy Jo Rabon passed away on August 31, 2014. Jack Rabon was

subsequently appointed as the Personal Representative of the Estate of Peggy Jo Rabon.

In October 2014, Jack Rabon used his position as the personal representative of the Estate

to vote Peggy Jo’s shares in favor of himself being elected the President of the Corporation and

his wife, Nicole, being elected both Treasurer and Secretary of the Corporation.

These actions

were taken over the direct objections of Karon Mitchell and Kyle Mitchell 4 . After October 1, 2014,

the entirety of the operation of the Corporation was in the exclusive control of Jack Rabon. From

that point, the relationship between the parties further deteriorated, resulting in multiple lawsuits

being filed in circuit court and probate court.

The West Town and BB&T Foreclosures

BB&T held a mortgage on Sea Palms #3 in first position in the amount of $462,000.00.

All of the shareholders of the Corporation, except Jack Rabon, were personal guarantors on the

BB&T loan. West Town Bank held a mortgage in second position on Sea Palms #3 securing its

$3.6 million loan.

BB&T filed a foreclosure action on Sea Palms #3 in November 2014 and

obtained a judgement in the amount of $417,529.93 against the Corporation on May 27, 2015.

Exhibit A, BB&T Foreclosure Order. In addition, BB&T sought a deficiency judgment against

3 A diagram that demonstrates the different banks and their respective mortgages is provided in Diagram D-3. 4 Rabon did these acts on the specific advice of his attorneys from McNair. Jefferies was not an attorney at the time of that advice and took no part in advising Jack on this issue.

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the Corporation. Id.

The foreclosure sale was scheduled to occur on September 7, 2015.

West Town Bank filed a foreclosure action on its loan in April 2015, seeking to foreclose

on the MBBE property, Sea Palms #4, and Sea Palms #3.

Exhibit B, West Town Foreclosure

Complaint.

West Town Bank also sought a deficiency judgment against MBBE and all the

personal guarantors, including the Corporation.

Shai David

In January 2015, Jack Rabon executed a contract with Shai David for the sale of several

Rabon & Rabon, Inc. properties for $1 million.

According to Jack Rabon, he and David had a

separate, unwritten agreement that David would pay Rabon an additional $735,000.00 “off the

record” for the properties.

Lane Jefferies was present at most of the meetings while these

negotiations took place (Exhibit H, Affidavit of Jack Rabon, Paragraphs 16-18) and actually

discussed the illicit payments in a text message exchange with Rabon on January 10, 2015.

Exhibit AA, Text Message from Jack Rabon 1/10/15. 5

Officially, Sea Palms #1 was sold to

David for $242,000.00 in February 2015 and Sea Palms #2 was sold for $175,000.00 in March

2015. These sales took place without approval from the Probate Court or notice to the minority

shareholders. The Sea Palms #2 sale resulted in cash of $128,289.57 belonging to the Corporation

that was deposited directly into the McNair Law Firm Trust account. 6

Once Plaintiffs discovered the sales, they filed suit against Rabon.

In their Answer, the

McNair Firm misrepresented to the court and creditors that the money obtained from the sale of

Sea Palms #2 was used “to preserve assets of the Corporation.” Exhibit GG, Answer to Probate

Complaint, Paragraph 31.

In fact, McNair actually held more than $120,000.00 in Rabon &

Rabon, Inc. funds in its trust account at the time it made this representation.

Ultimately, only

5 Jefferies authenticated this text in his deposition at page 88. 6 The state of the mortgages after the Shai David sales is demonstrated in Diagram D-4.

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$48,460.30 the $128,289.57 was spent towards expenses for the Corporation. The rest of the funds

were

either

paid

to

McNair

Law

Firm

(approximately $14,000.00).

(approximately

$66,000.00),

or

Nicole

Rabon

On or about August 2, 2015, Defendant Nicole Rabon informed McNair Law Firm via

email that an offer had been made for both Sea Palms #3 and the Brick House in the form of two

separate contracts.

Exhibit C, 8/02/2015 Email.

In this email, Rabon directly stated that she

wanted to conceal the sales price of the Brick House from BB&T because there was no mortgage

on that property.

entire email chain.

Lane Jefferies agreed to this strategy and copied Henrietta Golding with the

Over the next month, Lane Jefferies and Henrietta Golding negotiated with both BB&T

and West Town Bank without ever disclosing that the Brick House was being sold, or that the

Corporation was walking away with over $130,000.00 in cash from that sale. Exhibit D, Affidavit

of Riddick Skinner, Paragraphs 5-9. More importantly, McNair held more than $94,000.00 of

the Corporation’s cash in its trust account for “expenses” while these negotiations took place with

the banks. Exhibit E, McNair Ledger; Exhibit F, Deposition of Henrietta Golding, Pages 93-

102. As a result of these negotiations and the concealment of sale of the Brick House, BB&T

agreed to accept only $397,000.00 as full satisfaction of its judgment and West Town agreed to

accept only $7500.00 for the release of its $3.6 million mortgage on Sea Palms #3. In addition,

the Corporation received a check for more than $131,000.00 from the closing (see Exhibit G,

HUD-1 Statement), and McNair continued to hold more than $67,000.00 of the Corporation’s

money in its trust account.

Both BB&T and West Town Bank are FDIC insured financial

institutions and the sale of the Brick House was material to their decisions to accept the negotiated

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terms offered by McNair Law Firm. Exhibit D, Affidavit of Riddick Skinner, Paragraphs 5-9. 7

The September Conspiracy

Jacob Biderman is a citizen of Austria who operates a jewish educational institution in

Myrtle Beach through Friends of LBS, LLC. The original written contract with Friends of LBS,

LLC was for the sale of Sea Palms #3 and the Brick House for the total price of $542,000.00.

However, the actual deal was for Biderman to pay $777,000.00 for both properties, with the

additional $235,000.00 to be paid to Jack Rabon and others via a wire transfer and cash. Exhibit

H, Affidavit of Jack Rabon, Paragraph 2. Michelle Cohen was the realtor involved in the deal

and the primary representative of the Biderman Defendants. Ms. Cohen confirmed the conspiracy

to pay the additional illicit funds via affidavit.

Exhibit I, Affidavit of Michelle Cohen,

Paragraphs 5-9. Jacob Biderman, Atid Properties, LLC, Friends of LBS, LLC and Sarah Ginsberg

admitted in their joint answer that the additional $235,000.00 was paid for the two properties

outside of the closing.

Exhibit J, Answer of Biderman Defendants, Paragraphs 44-57.

Therefore, the payment of the undisclosed $235,000.00 in funds is admitted by all of the parties

directly involved.

There is a dispute as to who received $50,000.00 of the illicit funds, but all

parties agree that $185,000.00 went to Jack Rabon. 8 Biderman further disputes that he was aware

that the additional funds were improper or illegal.

On August 20, 2015, Lane Jefferies made a motion in the Horry County Probate Court to

sell two properties owned by Rabon & Rabon, Inc. A copy of the motion is attached as Exhibit

K, Motion to Sell Estate Property. In the motion and in direct representations to Plaintiffs, Lane

Jefferies represented that Friends of LBS, LLC agreed to pay $145,000.00 to Rabon & Rabon, Inc.

7 The state of the mortgages after the September Sales is demonstrated in Diagram D-5. 8 This is the discrepancy between Rabon and Cohen’s affidavit. It is the only material fact about this case on which the affidavits disagree.

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for the Brick House and $397,000.00 for Sea Palms #3, for a total of $542,000.00. See Exhibit

L, Consent Order of August 26, 2015. These representations were false. Jack Rabon and Lane

Jeffries knew the aforementioned representations were false at the time they were made to the

Mitchells and the Probate Court.

As a result of the fraudulent representations, Lane Jefferies obtained permission from the

Mitchells and the Probate Court for the sale to Biderman for the price $542,000.00.

Both the

corporate resolution drafted by Jefferies and the Consent Motion signed by the Probate Court

represented that only $542,000.00 was being paid for the property as opposed to the actual agreed

upon price of $777,000.00. Due to the impending loss of the property to BB&T, and the false

understanding that no better offer existed, the Mitchells signed the Resolution and the Consent

Order on August 25, 2015.

Upon the executed Resolution and Consent Order, the final stages of the conspiracy were

set into motion. Biderman formed a new LLC, Atid Properties, LLC, for the sole purpose of taking

title to Sea Palms #3 and the Brick House. Jack and Nicole Rabon formed a new company, Daisy

Ridge, LLC, for the sole purpose of receiving the undisclosed funds via wire from Biderman. The

formation of Daisy Ridge, LLC was suggested by Lane Jefferies who referred the Rabons to Robert

Frenz, an attorney in Columbia, for its formation.

Jefferies actually provided the fraudulent

address for Rabon to use as the office for Daisy Ridge, LLC via text message. Exhibit H, Affidavit

of Jack Rabon, Paragraph 24;

Exhibit M, Text from Lane Jefferies to Jack Rabon on

8/26/2015; Exhibit N, Articles of Organization for Daisy Ridge, LLC; Exhibit O, Affidavit of

Robert Frenz; Exhibit P, Affidavit of Dan Joyner; Exhibit AA – Deposition of Lane Jefferies

Page 99. After the LLCs were formed, the last piece of the conspiracy involved the money. The

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money from Biderman would be transferred through three wire transfers. 9

The First Wire consisted of the legitimate funds under the contracts and transferred to the

Emery Law Firm Trust Account from a newly created Bank of America bank account in the name

of Atid Properties, LLC. This total of $527,627.77 arrived no later than September 2, 2015 Exhibit

Q, Emails from Michelle Cohen to Emery Law Firm.

The Second Wire in the amount of $100,000.00 was wired from Biderman’s account in

Austria to a bank account in Chile in the name of Gabby Yosef, Michelle Cohen’s brother. Exhibit

I, Affidavit of Michelle Cohen, Paragraph 11; Exhibit R, Email between Cohen and Biderman.

These funds were withdrawn in cash to be handed to Jack Rabon. Exhibit H, Affidavit of Jack

Rabon, Paragraph 5; Exhibit I, Affidavit of Michelle Cohen, Paragraph 11.

The Third Wire was in the amount of $135,000.00 and was transferred to a PNC Bank

Account in the name of Daisy Ridge, LLC. Exhibit S, Wire Confirmation from Bank of Austria.

Due to the anti-money laundering regulations in the U.S., the Third Wire had to go through a

clearinghouse in New York and it did not arrive by September 3, 2015. This caused a ripple in the

plan, resulting in Jack Rabon demanding that additional security be paid for the illicit funds in the

amount of $135,000.00. Biderman wrote three checks for $45,000.00 each that were given to Lane

Jefferies as security for the undisclosed funds.

Lane Jefferies signed a receipt for these three

checks on September 3, 2015, the same day as the closing. Exhibit T, Signed Receipt by Lane

Jefferies. Jefferies asserted in writing that these checks were for “security for the brick house,”

but this is false. All funds necessary for the closing of both properties arrived in the trust account

of the Emery Law Firm no later than September 2, 2018, the day before the three checks were

handed to Lane Jefferies. Exhibit DD Affidavit of Melanie Emery.

9 A diagram of the various wires is provided as Diagram D-8.

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On September 2, 2015, Lane Jefferies engaged in a series of texts with Jack and Nicole

Rabon.

These texts are the proverbial “smoking gun” with regard to proving Lane Jefferies’

knowing and intentional involvement in the conspiracy. Exhibit U, Texts from Lane Jefferies to

Jack Rabon on 9/02/2015.

These texts demonstrate his knowledge of both wires involving the

illicit monies from Biderman.

The single text that conclusively proves Lane Jefferies’ direct

involvement reads as follows:

“Damn. Jack, can you get Michelle on the phone and see if gabby got his wire?”

The only “gabby” involved was Gabby Yosef, the brother of Michelle Cohen.

The only way

Gabby Yosef was involved with any party in general, or with the real estate transaction on

September 3, 2015 in particular, was through the wire of $100,000.00 to his bank account in Chile

[the “Second Wire” described above].

Lane Jefferies knew about and, more importantly, was

concerned about Gabby’s wire.

This proves he knew about the illicit funds and was an active

participant in the conspiracy to defraud the banks, the Mitchells and Rabon & Rabon, Inc.

On September 3, 2015, Lane Jefferies was picked up by Jack Rabon after the closing was

complete. Exhibit V, Texts from Lane Jefferies to Jack Rabon on 9/03/2015. They travelled to

a parking lot off of 38 th Avenue North in Myrtle Beach to meet with Michelle Cohen and Gabby

Yosef.

Michelle then handed an envelope with $50,000.00 cash inside.

In front of Michelle

Cohen, Jack Rabon immediately handed Lane Jefferies $10,000.00 of the cash.

Exhibit H,

Affidavit of Jack Rabon, Paragraph 4; Exhibit I, Affidavit of Michelle Cohen, Paragraphs 5-

32. Over the course of the next seven weeks, Jack Rabon withdrew nearly all of the $135,000.00

from the Daisy Ridge, LLC account in cash. This excessive withdrawal activity caused PNC Bank

to initiate an investigation under its anti-money laundering guidelines. One of the investigators

working the file was named Jesse Cagle. Mr. Cagle was an employee at the PNC branch where

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the Rabons opened the Daisy Ridge, LLC account. Exhibit W, PNC AML Investigation Notes.

Mr. Cagle spoke with Mr. Jefferies on the phone regarding the excessive withdrawals by Jack

Rabon. Mr. Jefferies told Mr. Cagle that he didn’t know why Jack was withdrawing the cash. He

suggested that Jack Rabon had a gambling problem or a “girl on the side.” But it was his money

and he should be able to do what he wanted with it. 10 Lane Jefferies actually billed the Rabons for

this phone call in the official billing records issued by McNair Law Firm.

Exhibit X, McNair

Billing Record.

In his deposition, Jefferies admitted to this conversation with Cagle. Exhibit BB,

Deposition of Lane Jefferies, Page 158-162.

Lane’s Story for the Smoking Gun Text

In Lane’s deposition, his alibi for the Smoking Gun Text is that Michelle Cohen was

holding the West Town Release hostage in order to get her brother, Gabby, paid for his “work”

at the hotel. Lane stated that the Rabons were wiring approximately $5000.00 to Gabby and

Michelle would not hand over the signed West Town release until the wire was complete. Thus,

his inquiry “Damn. Jack, can you get Michelle on the phone and see if gabby got his wire?” was

about the wire from the Rabons to Gabby because Michelle Cohen was holding the release from

West Town hostage. Exhibit BB, Deposition of Lane Jefferies, Page 97-107.

First, Gabby was the tenant leasing the hotel from the Rabons, so exactly how he was

entitled to money for his “work” at the hotel is difficult to understand. Second, Lane was not in

charge of the real estate closing. It is undisputed that Bhumi Patel was the primary responsible

attorney for the September Sales. Exhibit CC, Deposition of Bhumi Patel, Page 8, Line 21 –

Page 9, Line 5. The only reason Lane was included in the communications was because he

10 Mr. Cagle resides out of state and counsel was unable to obtain an affidavit prior to filing this motion. Once an affidavit is secured, this motion will be supplemented.

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requested that Bhumi copy him on everything. [Exhibit CC - Deposition of Bhumi Patel, Page

22, Line 1 – Page 22, Line 10.]

More importantly, the documents produced by Lane’s attorneys, (Exhibit HH, Bates

Stamped McNair_007190 through McNair_007206) are conclusive of Jefferies

misrepresentation when examined with the Smoking Gun Text. The time-stamps from all of the

documents create a timeline that makes Lane’s story impossible.

1.

September 1, 2015 – 11:28am – McNair_007190

Dan Stacy emails Lane and Bhumi

Patel “I am getting USDA approval and should have that today per my client. We will do the deal.” This is the first indication from Dan Stacy that West Town is willing to sign a

partial release on Sea Palms #3.

2.

September 1, 2015 – 3:39pm – Exhibit U – Lane tells the Rabons that there is “no word from West Town” except they verbally agreed to do the deal. He says he will follow up with West Town later that day. This is an admission from Lane that he knows nothing has been signed by West Town as of September 1, 2015 at 3:39pm.

3.

September 2, 2015 – 10:35am – McNair_007190 – Lane emails Dan Stacy: “Dan — Any paperwork from West Town? The buyers, sellers, agents, and closing attorneys are giving me no peace! Best, Lane.” This email demonstrates a couple of things. First, Lane is telling another lawyer that Michelle Cohen is asking him about the West Town paperwork (she was the only agent involved in the sale for either side). Second, this is an admission from Lane that he knows nothing has been signed by West Town as of September 2, 2015 at 10:35am.

4. September 2, 2015 – 1:11pm – Exhibit U – Lane texts to the Rabons “Just checking in, any word from the Bank?” It is possible, however unlikely, that Lane was contacted by Cohen after 10:35am on September 2, 2015 and told that she had documents signed from West Town. It is also possible, however unlikely, that Lane was inquiring at this point about a wire to Gabby Yosef from the Rabons for working at the hotel he was leasing from the Rabons that was ordered and executed in the span of two hours and 36 minutes.

5. September 2, 2015 – 2:10pm – McNair_007191 – Dan Stacy emails Lane: “Please send over the partial release for the lender to sign.” Lane and Bhumi know at this time that nothing has been signed by West Town. [Exhibit BB - Deposition of Bhumi Patel, Page 26, Lines 9-15.]

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6. September 2, 2015 – 2:12pm – McNair_007191 – Lane emails Bhumi: “Bhumi and Laurie — can you get this do Dan asap? Thanks, Lane” with Dan’s 2:10pm email attached. Lane and Bhumi Patel both know at 2:10pm on September 2, 2019 that West Town has not signed any release.

7. September 2, 2015 – 2:29pm – McNair_007191 – Bhumi sends the original draft of the release to Dan Stacy.

8. September 2, 2015 – 2:52pm– McNair_007193 – Dan Stacy emails Bhumi and Lane:

“We are not satisfying our mortgage on all of the property we have our lien on. This is only supposed to be a release for the property we have a second mortgage on, behind BB&T. what we are expecting is a partial release. The balance of the property I am foreclosing on.”

9. September 2, 2015 – 2:54pm – McNair_007193 – Lane emails Bhumi and Dan Stacy:

“I agree with Dan's statement — West Town is releasing its second on Building 3 and the Middle Lot. The other property that West Town has mortgage's on belongs to entities other than Rabon & Rabon, Inc., and so is not implicated here.”

10. September 2, 2015 – 2:56pm – McNair_007196 – Bhumi responds “Dan, you are correct. My apologies, I was looking at the BB&T mortgage and inadvertently stated what I did below. I will prepare the partial release and send to you shortly. Thanks,” Lane and Bhumi Patel (as she admitted in her deposition) both know at 2:56pm on September 2, 2019 that West Town has not signed any release. In fact, they both know at this point that West Town does not even possess the release that needs to be signed. [Deposition of Bhumi Patel, Page 27, Line 24 – Page 28, Line 3.]

11. September 2, 2015 – 3:05pm – Exhibit U – Lane texts to the Rabons “Any word yet?” Nicole calls the bank, texts back “Nothing.” Lane then sends the “gabby got his wire” text. It is not possible that Lane believed Michelle Cohen possessed any release signed by West Town when he sent this text, as he knew Bhumi had yet to send the release to West Town. Moreover, this text is an inquiry about two wires, not one. First he asks Nicole about her bank. After she confirms that she had not received any wires, Lane asks Jack if Gabby got “his wire.” [Deposition of Bhumi Patel, Page 27, Line 24 – Page 28, Line 3.]

12. September 2, 2015 – 3:23pm – McNair_007199 – Bhumi finally sends the revised documents to Dan Stacy for West Town to sign.

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13. September 2, 2015 – 3:51pm – McNair_007206 – Lane emails Dan Stacy – “Dan — If you will let me know when you have the documents signed, I will send someone by to pick up the originals. Thanks, Lane.” Lane directly asks Dan to notify him when the documents are signed. Obviously, Lane knows nothing has been signed as he is asking Dan to tell him when they are signed. [Deposition of Bhumi Patel, Page 30, Line 23 – Page 31, Line 9.]

14. September 2, 2015 – 5:00pm – Exhibit U – Lane texts to the Rabons “One last check” Nicole texts back “No.” Obviously a final check for the wires when Lane knows that Cohen does not possess anything signed by West Town.

15. September 3, 2015 – 8:34am – Exhibit U – Lane texts to the Rabons that the West Town release is “almost here.”

While the entire timeline of communications is relevant to proving Lane’s lie, the key portions

are between 2:10 and 3:51pm on September 2 (paragraphs 5 through 13). It is possible, however

ridiculous and unlikely, that Michelle Cohen claimed she had the release and was demanding

payment at the time Lane sent the first text inquiring about the wire at 1:11pm on 9/02/2015. It

is NOT possible that Lane still believed this at 3:05pm or again at 5pm that same day because he

knew that West Town had not signed anything at that point. Bhumi Patel did not even send the

revised release to Dan Stacy for signature until 3:23pm on September 2, 2015. When Lane made

his inquiries into the wires at 3:05pm and again at 5:00pm on September 2, 2015, there is no

possible way he believed Michelle Cohen was holding an executed release from West Town

hostage as he stated in his deposition. He lied in his deposition.

Lane’s Story for the Signed Receipt

Lane’s original story for the signed receipt is that he thought it was “security” for the sale

of the Brick House. [Answer to Second Amended Complaint, Paragraph 62]. This story is

implausible from the outset as the escrow agent was Emery Law Firm and Biderman had already

provided security of $5000.00 upon execution of the original sales contract, which was held in

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the Emery Trust account. The more telling portion of his story is in the second sentence in

which Jefferies claims that he “later determined that the funds would be wire transferred to the

closing attorney’s trust account.” This is undeniably false.

Lane elaborated on this false narrative in his deposition. Exhibit BB, Deposition of

Lane Jefferies, Page 30, Line 8 through Page 32, line 25. However, the documents produced by

Lane’s attorneys, (Exhibit GG, McNair_007003 through McNair_007005, McNair_007044,

and McNair_007158) are conclusive of what Lane knew and when he knew it. Lane knew the

funds would be wired to the Emery Trust account on August 27, 2015. McNair_007005. In

fact, he knew all of the money for the closings was in a US account on August 27, 2015.

McNair_7003. Jefferies knew that Emery Law Firm requested Biderman wire all of the funds

for the closing on August 31, 2015 in order to close both properties on September 2, 2015.

McNair_7044. More importantly, Jefferies knew on September 1, 2015 that Biderman had

wired all of the funds and the sole escrow agent and closing attorney was “all set on our end.”

McNair_7158. It is impossible that Jefferies did not know the money for the closing had not

been wired on September 3, 2015.

Further evidence that Jefferies was intentionally untruthful in his deposition are revealed

in other documents produced by his attorneys. Jefferies claims that he accepted the checks

because he believed Biderman was trying to back out of the purchase of the Brick House.

Exhibit BB, Deposition of Lane Jefferies,, Page 30, Line 20. Jefferies stated that he went to

meet Cohen to receive the checks on September 3, 2015 and sign the receipt attached as Exhibit

O to the Second Amended Complaint. Exhibit BB, Deposition of Lane Jefferies,, Page 116.

Once again, the emails disprove any possibility of this story. The Seller side closing was

scheduled and actually occurred at 10:00am on September 3, 2015. See Exhibit CC, Affidavit

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

of Melanie Emery.

Jefferies knew and actually approved of this time the day before.

McNair_007174. According to the texts, Rabon picked Lane Jefferies up after 2:00pm on

September 3, 2015. Exhibit BB, Deposition of Lane Jefferies, Exhibit 5, “T-7”].

It is

impossible that Jefferies thought Biderman failed to wire the funds for the purchase of the Brick

House at 2:00pm, four hours after Biderman signed the HUD-1 for both properties and less than

2 hours before Emery actually delivered the settlement checks to his office. More importantly,

Lane unambiguously stated in his deposition that he discussed the three $45k checks with either

someone at Emery Law Firm [which is refuted by Melanie Emery in Exhibit CC] or “one of the

real estate attorneys at our firm.”

Exhibit BB, Deposition of Lane Jefferies, Page 32, Line 16-

25]. According to Bhumi, that “real estate attorney” was not her, and no Defendant can identify

which attorney Lane allegedly spoke to at McNair. Exhibit BB - Deposition of Bhumi Patel,

Page 9, Line 22 – Page 10, Line 16. In fact, neither Bhumi Patel nor McNair Law Firm

presented any evidence to corroborate any detail of Jefferies’ testimony with regard to the texts,

the Cohen attempted extortion, or the three checks provided by Biderman.

Finally, Lane testified that he spoke with Jacob Biderman about backing out of part of the

deal. Exhibit BB, Deposition of Lane Jefferies Page 26, Line 1 through Page 28, Line 10]

Lane claimed that his conversation with Biderman was the reason Cohen brought him the three

checks for the Brick House. However, Biderman denies he ever spoke with Lane Jefferies.

[Exhibit EE, Admission by Jacob Biderman]. Moreover, the process to follow in such

situations was to contact Melanie Emery, not Biderman himself. Exhibit CC - Deposition of

Bhumi Patel, Page 16, Line 13 – Page 17, Line 5; Page 33, Line 20 – Page 34, Line 9; Page 33,

Line 20 – Page 34, Line 9.]

The Insurance Fraud Text

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

Exhibit 28 to Jefferies deposition was a text message unrelated to this case, but important

nonetheless. Jefferies represented Rabon in a civil case against Shai David related to a shooting

in November 2015. Exhibit 28 was incomplete, but it was clear that Rabon was asking Jefferies

how to avoid paying the valid subrogation liens possessed by the health insurance company that

paid for Rabon’s medical bills related to the shooting. In fact, Jefferies verified that Rabon was

attempting to conceal the settlement proceeds paid by Shai David and not reimburse the

insurance company. Exhibit BB, - Deposition of Lane Jefferies Page 207-211. Only a portion of

Jefferies’ response was included in Exhibit 28. In the deposition, Jefferies verified the text and

provided what he claimed was the omitted portion of the text, implying that Rabon manipulated

the text to take it out of context. Id. However, immediately after the deposition, Rabon found

the full text response from Jefferies and it does not say what Jefferies claimed in his deposition.

Exhibit 28 provides the following response from Jefferies to Rabon’s request to conceal

funds from the insurance company: “I understand. The difficult part of doing such a deal is not

so much the doing but the planning. You and Shai would have to set it up directly with each

other. Also the”

In his deposition, Jefferies testified to the next line of the text was “complaint

would have to be dismissed.” Exhibit BB, Deposition of Lane Jefferies, Page 210-211].

Jefferies further stated that he ended the text by telling Rabon that such an arrangement would be

unethical and he could have nothing to do with it. Jefferies then indicated that Rabon was trying

to take his communication out of context by hiding Jefferies’ disavowal of the illegal/unethical

act. The actual full response by Jefferies, attached hereto as Exhibit FF, demonstrates that this

too was false. Jefferies’ full response reads:

I understand. The difficult part of doing such a deal is not so much the doing but the planning. You and Shai would have to set it up directly with each other. Also the lawsuit will have to be dismissed and once it is the insurance company will start asking why. Eventually, they will

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

find their way back to your off-the-books deal. We spoke with Fran today after he met with Shai. Shai originally did not want to transfer the money until AFTER Shai talked with Jimmy, but Fran told him no. So, … Shai is transferring the money by day after tomorrow. Once he does, Scott will talk to Jimmy. I want to get the paper work signed before or while Scott talks to Jimmy, not after. I am going to press hard to make that happen once the money is moved.

At no point does Jefferies advise Rabon that his suggestion of insurance fraud is improper. The

scheme proposed by Rabon would violate numerous civil and criminal laws, not to mention

directly violate Rule 1.15 of the Rules of Professional Conduct. But Jefferies never mentions

this in any way. Jefferies actually tells Rabon that the Complaint would have to be dismissed in

order to hide the money transfer. Thus, we have another false statement by Jefferies under oath.

THE LAW

Summary Judgment Standard

Pursuant to Rule 56(c), SCRCP, summary judgment is proper when there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of

law.

When a motion for summary judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials of his pleading, but his response,

by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there

is a genuine issue for trial. Hall v. Fedor, 349 S.C. 169, 175, 561 S.E.2d 654, 657 (Ct. App.

2002). "In determining whether any triable issues of fact exist, the evidence and all inferences

which can be reasonably drawn from the evidence must be viewed in the light most favorable to

the nonmoving party." Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 329-30, 673 S.E.2d 801,

802 (2009). "Summary judgment is proper whe[n] plain, palpable, and indisputable facts exist on

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

which reasonable minds cannot differ." Rothrock v. Copeland, 305 S.C. 402, 405, 409 S.E.2d

366, 368 (1991). However, “Summary judgment is appropriate in those cases in which plain,

palpable and indisputable facts exist on which reasonable minds cannot differ.” Main v. Corley,

281 S.C. 525, 526, 316 S.E.2d 406, 407 (1984) (Internal citations omitted.) A motion for

summary judgment is akin to a motion for a directed verdict. In each instance, one party must

lose as a matter of law. A motion for a directed verdict speaks in terms of “only one reasonable

inference.” A motion for a summary judgment speaks in terms of “no genuine issue as to

material facts.” It is not sufficient that one create an inference which is not reasonable. Similarly,

it is not sufficient that one create an issue of fact that is not genuine. Id. at 526–27, 316 S.E.2d at

407 (1984). A judge should not attach unusual significance to the self-serving speculations of a

party to find an inference that defeats summary judgment. See Saluda Motor Lines, Inc. v.

Crouch, 300 S.C. 43, 45, 386 S.E.2d 290, 292 (Ct. App. 1989).

Perjured Testimony Must be Excluded From Any Consideration

The factual recitation provided above clearly and convincingly proves that Lane Jefferies

lied in his deposition. American Jurisprudence has long recognized the need to exclude false

testimony from proper legal proceedings. There is a plethora of cases in the federal system that

deal with criminal convictions based on perjury and the method for determining if the

introduction of perjured testimony constituted a constitutional offense under a habeus corpus

analysis.

See United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481

(1985); Wedra v. Thomas, 671 F.2d 713, 717 n.1 (2d Cir.), cert. denied, 458 U.S. 1109, 102 S.

Ct. 3491, 73 L. Ed. 2d 1372 (1982); Schneider v. Estelle, 552 F.2d 593, 595 (5th Cir.

1977); United States v. Rosner, 516 F.2d 269, 279 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96

S. Ct. 3198, 49 L. Ed. 2d 1203 (1976). All of these cases dealt with perjured testimony after it

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

was used at trial. This case is different as we know the witness perjured himself before his

testimony is used in any way.

The integrity of the Court dictates that the deposition testimony of Lane Jefferies

pertaining to both the Smoking Gun text and the written receipt for the three $45,000.00 checks

must be excluded as perjured testimony. “[W]hen documentary evidence ‘blatantly

contradict[s]’ a [party’s] account ‘so that no reasonable jury could believe it, a court should not

credit [that party’s] version on summary judgment.” Witt v. W. Va. State Police, Troop 2, 633

F.3d 272, 276-77 (4th Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

Without Jefferies’ deposition testimony, only the affidavits of Michelle Cohen and Jack Rabon

stand as admissible evidence and no Defendant can offer anything to corroborate Jefferies’ story

or otherwise disprove that he knew about and participated in the illegal activities of his client.

Any additional explanation or affidavits that contradict his sworn deposition testimony must be

considered a “sham affidavit” and cannot be considered by this Court in reaching its decision.

Cothran v. Brown, 357 S.C. 210, 218, 592 S.E.2d 629, 633 (2004).

Without Jefferies’ false alibis about the September Sales, he cannot mount a defense

against Plaintiff’s claims, especially considering the admissions he provided in that same

deposition. He verified the smoking gun text (labelled “T-6” in his deposition) in his deposition:

2 This is T-6?

3 Q Uh-huh.

4 A Oh. All right. What's your question about that

5 one?

6 Q Do you recognize this text string?

7 A Yeah. Again, it's out of context, and, you know,

8 there's nothing before it and after it. 11

11 After citing the “out of context” qualification, Jefferies then went on for nearly 14 pages, largely uninterrupted, to expound on the context of the text message and the facts surrounding it.

ELECTRONICALLY FILED - 2019 Oct 29 10:27 AM - HORRY - COMMON PLEAS - CASE#2017CP2605757

[Exhibit BB, Deposition of Lane Jefferies, Page 102] He admitted to signing a receipt for the

three checks in the amount of $45,000.00 a piece AFTER the closing occurred on September 3,

2015 Exhibit BB, Deposition of Lane Jefferies, Page 116, Lines 20-25; Exhibit DD

Affidavit of Melanie Emery. He admitted to providing the fraudulent address for Daisy Ridge,

LLC via email to Jack Rabon and referring Jack Rabon to Robert Frenz to form the fraudulent

LLC. Exhibit BB, Deposition of Lane Jefferies, Page 25 and Page 99. He admitted to speaking

with the money laundering investigator named Jesse Cagle about Jack Rabon withdrawing

exorbitant amounts of cash from the Daisy Ridge, LLC checking account over the course of two

months immediately proceeding the closing. Id. at pages 158-162. This is not just smoke, this is

a raging inferno that leads to only one reasonable inference in this case: Lane Jefferies knew

about the illegal activity and he actively participated in that illegal activity, injuring Plaintiffs in

the process.

It is incontrovertible that Lane Jefferies lied in his deposition and that perjured testimony

is inadmissible for any purpose. Without Lane Jefferies testimony, Defendants cannot continue

to deny that (1) the $235,000.00 was paid outside the closing; (2) that Lane Jefferies knew about

the $235,000.00 and actively assisted with the illegal activities; and (3) he lied to everyone, from

his employer to this Court, about his involvement. Therefore, Plaintiffs are entitled to summary

judgment as a matter of law.

October 29, 2019

s/Tucker S. Player SC Bar # 16217 Player Law Firm, LLC 1415 Broad River Road Columbia, SC 29210

803-315-6300

Tucker@playerlawfirm.com Attorney for Plaintiffs

Unfortunately for Mr. Jefferies, he was unaware that his entire narrative was unambiguously contradicted by his own emails on September 2, 2015.

10/9/2018

Mail - totuckerp@outlook.com - Outlook

Fwd: Rabon2 -- 062992.00002 RE: RABON -- offer on Building 3 and Middle Lot, and offer on House

Jack & Nicole <sourmug2love@yahoo.com> Sat 9/1/2018, 11:33 PM

To: totuckerp@outlook.com <totuckerp@outlook.com>

Sent from my iPhone

Begin forwarded message:

From: "Jefferies, Lane" <LJefferies@mcnair.net> Date: August 2, 2015 at 11:20:31 AM EDT To: 'Jack & Nicole' <sourmug2love@yahoo.com> Cc: "Golding, Henrietta" <HGolding@mcnair.net>, "Brady, Donna" <DBrady@mcnair.net> Subject: Rabon2 -- 062992.00002 RE: RABON -- offer on Building 3 and Middle Lot, and offer on House

Nicole –

Thanks. That makes sense. In that case, let’s see if Michelle will have Brad King dra.

descripons. Brad can make them evenhanded, so I won’t have to make a lot of revisions to provide R&R with the same protec on provided to the buyer. If Michelle wants to have Brad contact me (or me him) to discuss that would be fine. Please just let me know.

two contracts that are idencal but for the property

As soon as we have an agreement on paper (containing the conngency for shareholder/court approval), I will contact Sc� ��o and/or the Probate Court to aempt to get the sale approved.

Please let me know what response you get from Michelle.

Best regards,

Lane

10/9/2018

Mail - totuckerp@outlook.com - Outlook

To: Jefferies, Lane Subject: Re: RABON -- offer on Building 3 and Middle Lot, and offer on House

The reason there are two contacts is because there isn't a mortgage on the house so we didn't want BB&T to get the sale price of both proper es. We will need the money from the sale of the house to pay capital gains.

Nicole

Sent from my iPhone

On Jul 31, 2015, at 4:56 PM, Jefferies, Lane <LJefferies@mcnair.net> wrote:

Nicole –

Three things:

1. See aached agreements with my revisions, including the con ng ency for a shareholder vote and Court approval.

2. Not sure why Michelle is using two (different) contracts when the sale of the house is con ng ent on the sale of Building 3 and the Middle lot. Since the buyer wants to buy them as a group, it would make a lot more sense for everybody concerned just to use a single contract.

3. The two contracts are different, and each is somewhat one-sided in its own way. As a result, I have made a LOT of revisions as you will see. Sugges on: Br ad King is represen ng the Buy er as I understand it, and I’ve seen Brad write some very fair and balanced agreements. Why doesn’t Michelle have Brad write a single evenhanded agreement that includes all the parcels? That would be cleaner, and a lot easier to read.

Please let me know the feedback you get from Michelle, and encourage her to get Brad involved, as this will make the process go much more smoothly.

Best,

Lane

From: Jack & Nicole [mailto:sourmug2love@yahoo.com] Sent: Friday, July 31, 2015 12:50 PM To: Jefferies, Lane Subject: Re: RABON -- offer on Building 3 and Middle Lot, and offer on House

Lane -

10/9/2018

Mail - totuckerp@outlook.com - Outlook

Will you be able to add that con ng ency to the contract today? How soon can we get this approved by the court? Also, we can give you

a copy of the tax no ce

on the house. It has the mark et value at $168,800 which isn't far of the sales price.

Nicole

Sent from my iPhone

On Jul 30, 2015, at 5:44 PM, Jefferies, Lane <LJefferies@mcnair.net> wrote:

Jack –

Regarding the aached offers, you could either:

(1) Tell the buyers that you are glad to sign a. er the agreement is approved by the shareholders and/or the Probate Court, OR

(2) Sign the agreement now a. er I add a con ng

ency for shareholder/Court approval.

The second op on w ould probably give the buyers more comfort. Ques on: do w e have anything (appraisal, tax value,

something regarding Building 3. Please let me know. Something to establish value will be one of the first things the Judge will ask for if we don’t get the Mitchell’s consent.

etc.) to suggest what a reasonable value for either of these proper es

is? Especially the house, since BB&T no doub t had

Best,

Lane

the house, since BB&T no doub t had Best, Lane Lane D. Jefferies Associate ljefferies@mcnair.net |
the house, since BB&T no doub t had Best, Lane Lane D. Jefferies Associate ljefferies@mcnair.net |

Lane D. Jefferies

Associate

ljefferies@mcnair.net | 843 443 3059 Direct

McNair Law Firm, P.A.

Myrtle Beach Office Founders Centre, 2411 Oak Street | Suite 206 | Myrtle Beach, SC 29577

843 444 1107 Main | 843 444 3964 Fax

Mailing Post Office Box 336 | Myrtle Beach, SC 29578

Please be advised that you will not receive a hard copy of the contents of this email unless requested.

10/9/2018

Mail - totuckerp@outlook.com - Outlook

From: MYRcopier@mcnair.net [mailto:MYRcopier@mcnair.net] Sent: Thursday, July 30, 2015 6:40 PM To: Jefferies, Lane Subject: Aached Image

PRIVILEGE AND CONFIDENTIALITY NOTICE: This communication (including any attachments) is being sent by or on behalf of a lawyer or law firm and may contain confidential or legally privileged information. The sender does not intend to waive any privilege, including the attorney-client privilege, that may attach to this communication. If you are not the intended recipient, you are not authorized to intercept, read, print, retain, copy, forward or disseminate this communication. If you have received this communication in error, please notify the sender immediately by email and delete this communication and all copies.

<1809_001.pdf>

<1836_001.pdf>

Single Ledger Balance Report

Selection Criteria

Trust Account: CCNB Trust Account Number. File ID: 062992.00002 R esponsible Party: LDJ Settlement Date: 03/26/15 Starting Date:

Ending Date:

Trust Account Description: Myrtle Beach - CCNB

Client / Matter: Rabon & Rabon, Inc. Ledger Comment: Proceeds from sale of Bldg. 2, 317 17ti Property:

RefICk Trans.

Payee Name

 

Cleared

N

umber

Date

Memo

Medium

Date

Amount

Incoming Wires

 

I

03/26/15 Bellamy Rutenberg

 

03/31/15

$128,289.57

 

P roceeds of Sale - Bldg. 2 - 317 17th Avenue North, Myrtle Beach, SC

 

Total of 1 Incoming Wire:

 

$128,289.57

C

hecks

I

1344

05/08/15

Horry County Treasurer Notice 277720-14-3

 

05/29/15

$1,537.92

1345

05/08/15

Horry County Treasurer Notice 277721-14-3

05/29/15

$2,619.39

1346

05/08/15

Horry County Treasurer Notice 277722-14-3

05/29/15

$5,718.47

1347

05/08/15

Horry County Treasurer

05/29/15

$11,454.37

 

Notice 277718-14-3

 

1350

05/20/15

M

ichael E. Davis, CPA, P.A.

 

05/29/15

$2,625.00

 

P ayment of Invoice 19231

 

1357

06/04/15

Celtic Bank Loan payment

 

06/30/15

$1,667.67

1373

10/06/15

McNair Law Firm

 

Check

10/31/15

$10,000.00

 

A pply as retainer on 062992.4

 

1384

03/14/16

M

cNair Law

Firm, PA

Check

05/31/16

$10,000.00

 

Total of 8 Checks:

$45,622.82

M

iscellaneous

I

 

04/06/15

Celtic Bank

 

wire out

04/30/15

$5,003.01

 

Rabon & Rabon Feb, Mar & Apr payments

 
 

07/08/15

Celtic Bank June & July Past Due Payments

wire out

07/31/15

$3,335.34

09/01/15

Celtic Bank A ug & Sept payments

wire out

09/30/15

$3,335.34

09/03/15

E

mery Law LLC IOLTA

 

wire out

09/30/15

$23,845.35

 

S ale to ATID Properties of 17, 18 & 2, Blk 19 Hotel Section

 
 

10/28/15

Celtic Bank October 2015 payment

Page 1 of 2

wire out

10/31/15

$1,667.67

12/01/15

Celtic Bank

wire out

12/31/15

$1,667.67

01/04/16

Nov 2015 payment Celtic Bank

wire out

01/31/16

$1,667.67

PTW9

December 2015 payment

Date of Report: 9/8/16 Time of Report: 02:38:36PM Report By: jfitzsim

McNAIR_004386

:mss

Single Ledger Balance Report

ReflCk

Trans. Payee Name

Cleared

Number

Date

Memo

Medium

Date

Amount

 

Total of 7 Miscellaneous Items:

$40,522.05

Report Totals:

Balance:

$42,144.70

P TW9

Page 2 of 2

Date of Report: 9/8/16 Time of Report: 02:36.36P/vf Report By: jfitzsim

McNAIR 004387

·1

 

·2·

·STATE OF SOUTH CAROLINA

 

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· · ·COURT OF COMMON PLEAS

·3

 

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·COUNTY OF HORRY· · · · · · ·FIFTEENTH JUDICIAL

·4·

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· · · ·CIRCUIT

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·KARON MITCHELL, KYLE MITCHELL and RABON &

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·RABON, INC.,

 

·6

 

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· · · · · · ·Plaintiffs,

 

·7

 

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· · · · vs.· · · ·CASE NO. 2017-CP-26-05757

·8

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·9·

·JACK RABON, NICOLE RABON, LANE JEFFRIES, MCNAIR ·LAW FIRM, PA, ATID PROPERTIES, LLC, DAISY

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·RIDGE, LLC, FRIENDS OF LBS, LLC, SARAH ·GINSBURG, JACOB BIDERMAN, GABRIEL YOSEF, AND

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·MICHELLE COHEN,

 

11

 

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· · · · · ·Defendants.

 

12

 

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·DEPOSITION OF:· HENRIETTA GOLDING, ESQ.

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·DATE:· · · · · ·January 14, 2019

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·TIME:· · · · · ·10:00 a.m.

 

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·LOCATION:· · · ·100 Calhoun Street

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· · · · · · · ·Charleston, SC

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·TAKEN BY:· · · · Counsel for the Plaintiffs

18·

·REPORTED BY:· · ·Roxanne Easterwood, RPR

19

20·

· · · · A. WILLIAM ROBERTS, JR., & ASSOCIATES

21·

· · · · · · · Fast, Accurate & Friendly

·

·

22·

·Charleston, SC· · Hilton Head, SC Myrtle Beach, SC ·(843) 722-8414· · (843) 785-3263· ·(843) 839-3376

23·

· ·Columbia, SC· · Greenville, SC· · Charlotte, NC

·

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· (803) 731-5224· ·(864) 234-7030· ·(704) 573-3919

24

·

·

· ·

·

·

·

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· · · · Asheville, NC

25·

· ·

·

·

·

·

·

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· · (828)785-5699

· · · · · · · · (828)785-5699 A. A. WILLIAM ROBERTS, JR., & ASSOCIATES

A.

A.

WILLIAM ROBERTS, JR., & ASSOCIATES (800) 743-DEPO

WILLIAM ROBERTS, JR., & ASSOCIATES (800) 743-DEPO

scheduledepo.com

scheduledepo.com

·

 

Karon Mitchell, et al vs.

·Henrietta Golding, Esq. January 14, 2019

Jack and Nicole

Rabon, et al

 

2

·1·

·APPEARANCES OF COUNSEL:

·2·

· · · ·ATTORNEYS FOR PLAINTIFFS

·

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· · · · · · ·KARON MITCHELL, KYLE MITCHELL:

·3

 

·

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· · · · · · ·PLAYER LAW FIRM

 

·4·

· · · · · · ·BY:· TUCKER S. PLAYER

·

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· · · · · · ·1415 Broad River Road

·5·

· · · · · · ·Columbia, SC 29210

·

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· · · · · · ·(803) 772-8008

·6·

· · · · · · ·Tucker@playerlawfirm.com

·7

 

·8

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· · · ·ATTORNEYS FOR DEFENDANTS

 

·9·

· · · · · · ·MCNAIR LAW FIRM, PA, LANE JEFFRIES:

10·

· · · · · · ·ROBINSON GRAY

 

·

·

· · · · · · ·BY:· J. CALHOUN WATSON

11·

· · · · · · ·1310 Gadsden Street

·

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· · · · · · ·Columbia, SC 29201

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· · · · · · ·(803) 929-1400

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· · · · · · ·Cwatson@robinsongray.com

13

 

·

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·-- and --

14

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· · · · · · ·BURR FORMAN MCNAIR

 

15·

· · · · · · ·BY:· DAVID J. MILLS

·

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· · · · · · ·100 Calhoun Street, Suite 400

16·

· · · · · · ·Charleston, SC· 29401

·

·

· · · · · · ·(843) 235-4100

17·

· · · · · · ·Dmills@burr.net

18

 

19·

· · · · ATTORNEYS FOR THE DEFENDANTS

 

·

·

· · · · · · ·JACK RABON, NICOLE RABON:

20

 

·

·

· · · · · · ·G. SCOTT BELLAMY

 

21·

· · · · · · ·BY:· G. SCOTT BELLAMY

·

·

· · · · · · ·1206 Third Avenue, Suite A

22·

· · · · · · ·Conway, SC 29526

·

·

· · · · · · ·(843) 248-3172

23·

· · · · · · ·Sbellamy@sccoast.net

24

 

25

· · · · · ·Sbellamy@sccoast.net 24   25 A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 2

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

93

·1·

·BY MR. PLAYER:

·2·

·

· · · Q.· ·You don't remember any communication

·3·

·where Jack said I don't want to tell BB&T about ·the 145?

·4·

·5·

· ·

·

· A.· ·No.

·6·

· · · · Q.· ·You don't remember a phone call

·7·

·conversation, email, anything along those lines?

·8·

· ·

·

· A.· ·No.

·9·

· · · · · · ·MR. WATSON:· Object to the form.

10·

·BY MR. PLAYER:

 

11·

·

· · · Q.· ·What would have happened if you had

12·

·received an email that said we want to hide the ·145 from BB&T?

13·

14·

· · · · A.· ·I would not have agreed.

15·

· · · · Q.· ·Why not?

16·

· · · · A.· ·That's just -- I just would not have

17·

·agreed.

 

18·

· · · · Q.· ·Is there something wrong with that?

19·

· · · · A.· ·Possibly.

20·

· · · · Q.· ·How would it be wrong?

21·

· · · · A.· ·I would have to have more information.

22·

· · · Q.· ·If we go back to -- and this is one of ·the things, you know.· If we go back to the ·consent order, you know, the sale of the brick ·house, there's never any specifics in the order

·

23·

24·

25·

any specifics in the order · 23· 24· 25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

scheduledepo.com scheduledepo.com

Page 93

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

94

·1·

·from the Court.· I'm just wondering why.

·2·

· · · · A.· ·I don't know.

·3·

· · · · · · ·MR. WATSON:· Object to the form.

·4·

·BY MR. PLAYER:

·5·

·

· · · Q.· ·Did you have any communications with

·6·

·BB&T or their lawyers with regards to the waiver ·of the deficiency?

 

·7·

·8·

·

· · · A.· ·Seems like I did, but I don't recall

·9·

·the name of the lawyer.

 

10·

· · · · Q.· ·Kershaw Strong or Wilson McDonald?

11·

· · · · A.· ·I just don't recall.

12·

· · · · Q.· ·Do you know if you would have handled

13·

·those negotiations, or would it have been Lane?

 

14·

· · · A.· ·I believe Lane had some communications ·but not directly with BB&T.· Probably with Mr. ·Rabon.· I think those were the communication ·links.

·

15·

16·

17·

18·

·

· · · Q.· ·I guess what I'm focussed on is, you

19·

·know, I doubt -- and if it's the case you could ·tell me.· But you know, BB&T was waiving $58,000. ·If they were owed -- and they were also waiving

20·

21·

22·

·personal deficiencies from the Mitchells and the ·Rabons.· I'm sure they didn't just do that as the ·normal course.· I'm wondering what did you tell ·BB&T at that point?

23·

24·

25·

tell ·BB&T at that point? 23· 24· 25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

scheduledepo.com scheduledepo.com

Page 94

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

95

·1·

· · · · · · ·MR. WATSON:· Object to the form.

·2·

· · · · · · ·THE WITNESS:· I don't recall.· I don't

·3·

·recall the discussions I had with BB&T.· I do ·recall some discussions I had with West Town Bank ·because that was with Dan Stacy. ·BY MR. PLAYER:

·4·

·5·

·6·

·7·

·

· · · Q.· ·What do you recall about those

·8·

·communications?

·9·

·

· · · A.· ·I just recall having communication

10·

·with Dan.

 

11·

·

· · · Q.· ·Do you recall how the 7500 amount was

 

12·

·agreed to?

 

13·

·

·

·

· A.· ·No.

14·

· · · Q.· ·Do you remember disclosing the sale of ·the brick house to Dan?

·

 

15·

16·

·

· · · A.· ·I just don't recall the specifics of

17·

·the discussion with Dan other than the property is

18·

·being sold, this is what we would like to do.

19·

· · · Q.· ·Would it have been both properties or ·just the hotel?

·

20·

21·

·

· · · A.· ·I don't know what you mean by both

22·

·properties or just the hotel.

23·

· · · Q.· ·Well, this is -- you know, I'm going ·through the documents, the communications that ·I've got from Dan Stacy.· BB&T won't give me

·

24·

25·

Stacy.· BB&T won't give me · 24· 25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 95

YVer1f

 

Karon Mitchell, et al vs.

·Henrietta Golding, Esq. January 14, 2019

Jack and Nicole

Rabon, et al

 

96

·1·

·anything. But you know, it looks like all of the ·representations were we're selling the hotel for

·2·

·3·

·397.· There's never any mention of the brick house ·that was being sold for 145.

·4·

·5·

· · · · · ·If you will look on the HUD statement, ·tell me how much Rabon & Rabon was getting in ·terms of the proceeds from that sale.

·

·6·

·7·

·8·

· · · · A.· ·Which property are you referring to?

·9·

· · · · Q.· ·The 145.· I think it's the top one.

10·

· · · A.· ·It is.· I'm not quite sure.· It's got ·here total reduction amount due sellers

·

11·

12·

·$13,294.72.

13·

· · · · Q.· ·That's seller?

14·

· · · · A.· ·That's what you said, seller, right?

15·

· · · · Q.· ·If you see the very bottom, it has

16·

·cash to seller.· That's the amount that would go ·to Rabon & Rabon?

17·

18·

·

· · · A.· ·Yes.· I'm sorry.· It's not real clear

19·

·on this document.· It's got $131,705.26 I think.

20·

· · · · Q.· ·Roughly $130,000?

21·

· · · · A.· ·That's what the line states.

22·

· · · · Q.· ·My question is twofold.· It kind of

23·

·goes from BB&T and West Town.· Why would BB&T ·waive almost 60 grand in deficiencies if Rabon & ·Rabon was walking away with $130,000 from almost

24·

25·

was walking away with $130,000 from almost 24· 25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

scheduledepo.com scheduledepo.com

Page 96

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

97

·1·

·the same transaction?

·2·

·

· · · · · ·MR. WATSON:· Object to the form.

·3·

· · · · · ·THE WITNESS:· You will have to ask ·BB&T. ·BY MR. PLAYER:

·

 

·4·

·5·

·6·

· · · · Q.· ·Do you think they knew?

·7·

· · · · A.· ·I have no idea.

·8·

· · · · Q.· ·What about West Town?

·9·

· · · · · · ·MR. WATSON:· Object to the form.

10·

·BY MR. PLAYER:

11·

·

· · · Q.· ·Do you think they knew what Jack was

12·

·walking away with from the settlement?

13·

·

· · · · · ·MR. WATSON:· Object to the form.

14·

· · · · · ·THE WITNESS:· I have no idea. ·BY MR. PLAYER:

·

 

15·

16·

· · · Q.· ·That's where my question comes, is did ·McNair notify them of the brick house sale?

·

17·

18·

·

· · · A.· ·At this point in time I don't recall.

19·

·When you say them you're referring to whom?

20·

· · · · Q.· ·The lenders.· The bank.

21·

· · · · A.· ·I'm sure BB&T, yes, knew.

22·

· · · · Q.· ·You think they knew that Rabon & Rabon

23·

·was walking away with $131,000 in cash?

24·

· · · · · · ·MR. WATSON:· Object to the form.

25·

· · · · · · ·THE WITNESS:· Like I said, I don't know

· · · · ·THE WITNESS:· Like I said, I don't know A. A. WILLIAM WILLIAM

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

scheduledepo.com scheduledepo.com

Page 97

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

98

·1·

·what they knew.· I can't testify to that. ·BY MR. PLAYER:

·2·

·3·

· · · · Q.· ·How would they find out information?

·4·

· · · · · · ·MR. WATSON:· Object to the form.

·5·

· · · · · ·THE WITNESS:· You'll have to ask them. ·BY MR. PLAYER:

·

·6·

·7·

·

· · · Q.· ·Was there some other source through

·8·

·which they could obtain information other than the ·attorney for the seller?

·9·

10·

·

· · · · · ·MR. WATSON:· Object to the form.

11·

· · · · · ·THE WITNESS:· You have to ask them. ·BY MR. PLAYER:

·

 

12·

13·

·

· · · Q.· ·I guess to be more specific, do you

14·

·know of any specific communications to either Dan ·Stacy or any representative of BB&T where the ·brick house sale was disclosed to them prior to ·September 3, 2015?

15·

16·

17·

18·

· · · · · · ·MR. WATSON:· Object to the form.

19·

· · · · · · ·THE WITNESS:· As I stated, I recall

20·

·having discussions with Dan Stacy.· The ·particulars I do not recall. ·BY MR. PLAYER:

 

21·

22·

23·

·

· · · Q.· ·If Dan said that was never disclosed

24·

·to him, do you have any reason to disagree with ·him?

 

25·

you have any reason to disagree with ·him?   25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 98

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

99

·1·

·

· · · A.· ·I don't know.

·2·

· · · Q.· ·You don't know if you have any reason ·to disagree with him?

·

 

·3·

·4·

·

· · · A.· ·Right.· He may be forgetting

·5·

·something.· I don't know.

·6·

·

· · · Q.· ·Do you think at the time the September

·7·

·closings occurred, do you know if McNair held any

·8·

·money on behalf of Rabon & Rabon?

·9·

· · · A.· ·I believe we did because according to ·this closing statement I recall that we had to ·come up to the closing with some cash.· Rabon & ·Rabon had to come up to the closing with cash, ·which we disbursed.

·

 

10·

11·

12·

13·

14·

·

· · · Q.· ·Do you know where that money came

15·

·from?

16·

·

· · · A.· ·From an account we were holding for

17·

·Rabon & Rabon at McNair.

18·

·

· · · Q.· ·Do you remember the reason that you

19·

·were holding that money?

20·

· · · A.· ·We were holding the money so that the ·money could be used for Rabon & Rabon bills or

·

 

21·

22·

·expenses.

23·

· · · Q.· ·The $60,000 that Rabon & Rabon owed to ·BB&T, wouldn't that be an expense?

·

 

24·

25·

·

· · · A.· ·I don't know.

24· 25· · · · · A.· ·I don't know. A. A. WILLIAM WILLIAM ROBERTS, ROBERTS,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 99

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

100

·1·

·

· · · Q.· ·You don't know?

·2·

· · · A.· ·No.· That was not presented to me to ·be paid out of McNair.

·

·3·

·4·

· · · Q.· ·Do you know where those funds came ·from?

·

·5·

·6·

· · · · A.· ·What funds?

·7·

· · · · Q.· ·The money that you were holding on

·8·

·behalf of Rabon & Rabon?

·9·

·

· · · A.· ·I believe it came from another sale of

10·

·property.

 

11·

·

· · · Q.· ·Do you remember why that money went to

12·

·McNair in trust from those sales?

13·

· · · A.· ·To pay for Rabon & Rabon expenses and ·bills.

·

14·

15·

· · · Q.· ·Was it to protect attorneys fees in ·any way?

·

16·

17·

·

·

·

· A.· ·No.

18·

· · · Q.· ·Did you ever tell Mr. Rabon that you ·needed the money to protect your fees?

·

19·

20·

· ·

·

· A.· ·No.

21·

· · · · Q.· ·Did any of the money that you -- my

22·

·recollection is that the money that you had in

23·

·trust came from the Shai David closings in March

24·

·2015?

 

25·

·

· · · A.· ·That rings a bell.· I don't have

· · · · A.· ·That rings a bell.· I don't have A. A. WILLIAM WILLIAM

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 100

YVer1f

 

Karon Mitchell, et al vs.

·Henrietta Golding, Esq. January 14, 2019

Jack and Nicole

Rabon, et al

 

101

·1·

·particulars.

·2·

·

· · · Q.· ·Did McNair ever take any money from --

·3·

·did they ever take money for bills from that money ·that was being held in trust?

·4·

·5·

·

· · · A.· ·Only at the end when Mr. Rabon

·6·

·requested that the monies be transferred to Lane ·Jeffries.

·7·

·8·

·

· · · Q.· ·Did Mr. Rabon ever request monies from

·9·

·that trust money to pay for Rabon & Rabon bills?

10·

· · · · A.· ·I know he did --

11·

· · · · · · ·MR. WATSON:· Let me interject.· I know

12·

·there was some discussion about attorney-client

13·

·privilege with Mr. Rabon and McNair.· Is that -- I ·heard Mr. Bellamy say it was waived, and there was ·an out-of-office --

14·

15·

16·

·

· · · · · ·MR. PLAYER:· This is Rabon & Rabon

17·

·money.· So I think it would just be Rabon & Rabon.

18·

· · · · · ·MR. WATSON:· Is that attorney-client ·privilege waived or not?

·

19·

20·

· · · · · · ·MR. PLAYER:· Yes, it.

21·

· · · · · · ·MR. WATSON:· You did Rabon & Rabon?

22·

· · · · · · ·MR. BRADDOCK:· Yes.

23·

· · · · · · ·MR. BELLAMY:· Yes.

24·

· · · · · ·(Discussion off record.) ·BY MR. PLAYER:

·

 

25·

off record.) ·BY MR. PLAYER: ·   25· A. A. WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR.,

A.

A.

WILLIAM WILLIAM ROBERTS, ROBERTS, JR., JR., & & ASSOCIATES ASSOCIATES (800) (800) 743-DEPO 743-DEPO

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Page 101

YVer1f

Karon Mitchell, et al vs.

Jack and Nicole Rabon, et al

·Henrietta Golding, Esq. January 14, 2019

   

102

·1·

·

· · · Q.· ·The brick house closing, do you think

·2·

·that would have been material information for the ·banks with regards to their decisions to release ·their mortgages?

 

·3·

·4·