Jerry and Patricia A. Dixon, et al - Page 117




                                       - 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

Last modified: May 25, 2011