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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”.
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