- 197 - Court held that "the note indebtedness involved in the present case (tried previously before Judge Goffe) is legally viable and collectible under Hawaii state law." By order dated April 14, 1998, the Court indicated that Mr. Izen's motion would be decided in the Court's opinion in these cases. On November 2, 1998, Mr. Izen filed a Petition for Mandamus with the Court of Appeals for the Ninth Circuit for a writ of mandamus directing this Court to grant Mr. Izen's Motion to Take Judicial Notice. By order filed December 16, 1998, the Court of Appeals denied Mr. Izen's petition. All materials attached to Mr. Izen's motion, which concern Kersting program participant Carl Mott,89 were received in evidence at the trial of the test cases and considered by Judge Goffe in Dixon II. See discussion of collection cases supra pp. 72-74. Mr. Izen's motion, which amounts to another attempt to retry matters previously decided in Dixon II, goes beyond the scope of the mandate of the Court of Appeals in its remand of these cases and will be denied. 89 Mr. Izen's continued reliance on the collection litigation concerning Carl Mott indicates that Mr. Izen regards the collection litigation as a complete rebuttal to all evidence in the record that Mr. Kersting and program participants did not intend or expect that promissory notes would be enforced in accordance with their purported terms. In so doing, Mr. Izen ignores the Court's conclusion in Dixon II, 62 T.C.M. (CCH) at 1505-1506, 1991 T.C.M. (RIA), at 91-3048 to 91-3050, that, even if an obligation to pay leverage loan “interest” were enforceable, it would properly be characterized as a nondeductible “fee” for creating tax deductions rather than as “interest”.Page: Previous 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 Next
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