justice2kb
       


Overview

Summons

COMPLAINT
COMES NOW the Plaintiff, Jean Mary O'Connell Nader, by counsel, and brings this
action pursuant to § 26-48 and 55-547.06 of the Code of Virginia (1950, as amended) for the removal and appointment of a trustee, and in support thereof states the following.
                    Parties and Jurisdiction

1. Plaintiff Jean Mary O’Connell Nader ("Jean") and *Defendants Anthony Miner
O’Connell ("Anthony") and Sheila Ann O'Connell ("Sheila") are the children of Harold A. O’Connell ("Mr. O’Connell"), who died in 1975, and Jean M. O'Connell ("Mrs. O'Connell"), who died on September 15, 1991.

2. The trusts that are the subject of this action are: (a) the trust created under the Last Will and Testament of Harold A. O'Connell dated April 11, 1974, and admitted to probate in this Court on June 18, 1975; and (b) a Land Trust Agreement dated October 16, 1992, which was recorded among the land records of this Court in Deed Book 8845 at Page 1449.

3. Jean, Sheila, and Anthony are the beneficiaries of both of the trusts and, therefore, are the parties interested in this proceeding.

Facts

4. During their lifetimes, Mr. and Mrs. O'Connell owned as *tenants in common a
parcel of unimproved real estate identified by Tax Map No. 0904-0 1-00 17 and located near the Franconia area of Fairfax County, Virginia and consisting of approximately 15 acres (the "Property").

5. After his death in 1975, a 46.0994% interest in the Property deriving fiom Mr,
O'Connell's original 50% share was transferred to a trust created under his Last Will and Testament (the "Harold Trust"), of which Anthony serves as trustee. A copy of the Last Will and Testament of Harold A. O'Connell is attached hereto as Exhibit A.

6. Mrs. O'Connell held a life interest in the Harold Trust and, upon her death in
1991, the trust assets were to be distributed in equal shares to Jean, Sheila, and Anthony as remainder beneficiaries. Although other assets of the Harold Trust were distributed to the remainder beneficiaries, the trust's 46.0994% interest in the Property has never been distributed to Jean, Sheila, and Anthony in accordance with the terms of the Harold Trust.

7. After Mrs. O'Connell's death, her 53.9006% interest in the Property passed to
Jean, Sheila, and Anthony in equal shares, pursuant to the terms of her Last Will and Testament and Codicil thereto, which was admitted to probate in this Court on December 10, 1991.
, .
8. Thus, after Mrs. O'Connell's death, Jean, Sheila, and Anthony each owned a
17.96687% interest in the Property, and the Harold Trust continued to own a 49.0994% interest in the Property.

9. By a Land Trust Agreement dated October 16, 1992, Jean, Sheila, and Anthony,
individually and in his capacity as trustee of the Harold Trust, created a Land Trust (the "Land Trust"), naming Anthony as initial trustee. A copy of the Land Trust Agreement is attached hereto as Exhibit B and incorporated by reference herein. The Harold Trust, Jean, Sheila, and " .I Anthony (individually) are the beneficiaries of the Land Trust.

10. The Property was thereafter conveyed by Jean, Sheila, and Anthony, individually
and as trustee of the Harold Trust, to Anthony, as trustee of the Land Trust, by a Deed dated October 16,1992 and recorded on October 23,1992 in Deed Book 8307 at Page 1446 among the land records for Fairfax County.

11. As trustee under the Land Trust, Anthony was granted broad powers and
responsibilities in connection with the Property, including the authority and obligation to sell the Property. Paragraph 4.04 of the Land Trust Agreement states, in part, as follows:

If the Property or any part thereof remains in this trust at the expiration of twenty (20) years from date hereof, the Trustee shall promptly sell the Property at a public sale after a reasonable public advertisement and reasonable notice thereof to the Beneficiaries.

12. To date, the Property has not been sold, and the Land Trust is due to expire on
October 16,2012.

13. According to Paragraph 9.03 of the Land Trust Agreement, the responsibility for
payment of all real estate taxes on the Property is to be shared proportionately by the
beneficiaries. However, if a beneficiary does not pay his or her share, the Land Trust Agreement provides:

The Trustee will pay the shortfall and shall be reimbursed the principal plus 10% interest per annum. Trustee shall be reimbursed for any outstanding real estate tax shares or other Beneficiary shared expense still owed by any Beneficiary at settlement on the eventual sale of the property.

14. For many years, Jean sent payment to Anthony for her share of the real estate
taxes on the Property. Beginning in or about 1999, Anthony refused to accept her checks because they were made payable to "County of Fairfax." Anthony insisted that any checks for the real estat'k taxes be made payable to him individually, and he has returned or refused to forward Jean's checks to Fairfax County. Under the circumstances, Jean is unwilling to comply with Anthony's demands regarding the tax payments.

15. Anthony is not willing or has determined he is unable to sell the Property due to a
mistaken interpretation of events and transactions concerning the Property and, upon information and belief, the administration of his mother's estate. Anthony's position remains intractable, despite court rulings against him, professional advice, and independent evidence. As a result, Anthony is unable to effectively deal with third parties and the other beneficiaries of the Land Trust.

16. In 2007, Anthony received a reasonable offer from a potential buyer to purchase
the Property. Upon information and belief, Anthony became convinced of a title defect with the Property that, in his opinion, was an impediment to the sale of the Property. A title commitment issued by Stewart Title and Escrow on April 24,2007, attached hereto as Exhibit C, did not persuade Anthony that he, as the trustee of the Land Trust, had the power to convey the Property. Because of this and other difficulties created by Anthony, the Property was not sold.
'
17. Since 2007, it appears the only effort put forth by Anthony to sell the Property has
been to post it for sale on a website he created, http://www.alexandriavirginial5acres.com

18. Since 2009, Anthony has failed to pay the real estate taxes for the Property as
required by the Lhd Trust Agreement. Currently, the amount of real estate tax owed, including interest and penalties, is approximately $27,738.00.

19. Anthony has stated that he purposely did not pay the real estate taxes in order to
force a sale of the Property and clear up the alleged title defects.

20. Since the real estate taxes are more than two years delinquent, Anthony's failure
to pay may result in a tax sale of the Property. Anthony was notified of this possibility by a notice dated October 26, 201 1, attached hereto as Exhibit D. In addition to the threatened tax sale, the Land Trust is incurring additional costs, including penalties, interest, and fees, that would not be owed if Anthony had paid the real estate taxes in a timely manner.

21. In May 20 12, Jean, through her counsel, wrote a letter to Anthony requesting that
he cooperate with a plan to sell the Property or resign as trustee. To date, Anthony has not expressed a willingness to do either, and still maintains that the alleged title defect and other "entanglements" must be resolved before any action can be taken towards a sale of the Property.

Count I: Removal of Anthony O'Connell as Trustee of Land Trust

22: The allegations of paragraphs 1 through 21 are incorporated by reference as if
fully stated herein.

23. As trustee of the Land Trust, Anthony has a fiduciary duty to comply with the
terms of the trust agreement, to preserve and protect the trust assets, and to exercise reasonable care, skill, and caution in the administration of the trust assets.

24. Anthony has breached his fiduciary duties by his unreasonable, misguided, and imprudent actions, including but not limited to, his failure to sell the Property and non-payment of the real estate taxes on the Property.

25. The breaches of duty by Anthony constitute good cause for his removal as trustee
of the Land Trust.

WHEREFORE, Plaintiff Jean Mary O'Connell Nader prays for the following relief:

A. That the Court remove Anthony Minor O'Connell as trustee under the Land Trust
Agreement dated October 16, 1992, pursuant to 26-48 of the Code of Virginia
(1950, as amended);

B. That all fees payable to Anthony Minor O'Connell under the terms of the
aforesaid Land Trust Agreement, including but not limited to, the trustee's
compensation under paragraph 9.01, and all interest on advancements by the
trustee to the trust for payment of real estate taxes pursuant to paragraph 9.03, be
disallowed and deemed forfeited;

C. That all costs incurred by Plaintiff Jean Mary O'Connell Nader in this action,
including reasonable attorneys' fees, be paid by the Land Trust; and

D. For all such further relief as this Court deems reasonable and proper.

Count 11: Removal of Anthony O'Connell as
b*
Trustee of the Trust under the Will of Harold A. O'Connell

26. The allegations of paragraphs 1 through 25 are incorporated by reference as if
fully stated herein.

27. The terms of the Harold Trust provide that, upon the death of Mrs. O'Connell, the
assets are to be distributed to Jean, Sheila, and Anthony in equal shares. Notwithstanding the terms of the Harold Trust and the provisions for its termination, Anthony entered into the Land
Trust Agreement in his capacity as trustee of the Harold Trust. As a result, upon the sale of the
Property, Anthony can exercise greater control over the Harold Trust's share of the sale proceeds
than if the parties held their beneficial interests in their individual capacities.

28, Other than its status as beneficiary of the Land Trust, there is no reason for the
continuation of the Harold Trust.

29. On August 8,2000, an Eleventh Account for the Harold Trust was approved by the Commissioner of Accounts for the Circuit Court of Fairfax County and determined to be a final account.

30. Anthony repeatedly and unsuccessfully challenged the Commissioner's determination and requested, inter alia, that the Court and the Commissioner of Accounts investigate a debt of $659.97 that he alleged was owed to the Harold Trust by Mrs. O'Connell's estate. In these proceedings, the Commissioner stated, and the court agreed, that there was no evidence to support Anthony's claims that a debt existed and, if so, that it was an asset of the Harold Trust.

31. Anthony's repeated and unsuccessful challenges to the rulings of the
Commissioner of Accounts and the Circuit Court in connection with the Eleventh Account, and his persistence in pursuing his unfounded claims to the present day, demonstrate that he is unable to administer the Harold Trust effectively and reliably.

32. It is in the best interests of the beneficiaries of the Harold Trust that, upon the sale
of the Property, the net sale proceeds be distributed in an orderly and expedient manner. Based on Anthony's actions, he is not the proper individual to fulfill the trustee's duties in administering the Harold Trust.

33. The removal of Anthony as trustee best serves the interests of the beneficiaries of the Harold Trust.
, .
WHEREFORE, Plaintiff Jean Mary O'Connell Nader prays for the following relief:

A. That the Court remove Anthony Minor O'Connell as trustee under the Last Will
and Testament of Harold A. O'Connell, pursuant to § 55-547.06 of the Code of
Virginia (1 950, as amended);

B. That all costs incurred by Plaintiff Jean Mary O'Comell Nader in this action,
including reasonable attorneys' fees, be awarded to her in accordance with § 55- 550.04 of the Code of Virginia (1950, as amended); and

C. For all such further relief as this Court deems reasonable and proper.

Count 111: Appointment of Successor Trustee

34. The allegations of paragraphs 1 through 33 are incorporated by reference as if
fully stated herein.

35. Jean is a proper person to serve as trustee of the Land Trust in order to sell the
Property on behalf of the beneficiaries of the Land Trust, and she is willing and able to serve in such capacity.

36. The best interests of the beneficiaries would be served if the Land Trust is continued for a sufficient period of time to allow the successor trustee to sell the Property, rather than allowing the Land Trust to terminate on the date specified in the Land Trust Agreement. Each of the individual beneficiaries of the Land Trust is age 70 or above, and it would be prudent to sell the Property during their lifetimes, if possible, rather than leaving the matter for the next generation to resolve.

37. Jean is a proper person to serve as trustee of the trust created under the Last Will
and Testament of Harold A. O'Connell, and she is willing and able to serve in such capacity.

WHEREFORE, Plaintiff Jean Mary O'Connell Nader prays for the following relief:

A. That Plaintiff Jean Mary O'Connell Nader be appointed as successor trustee under
the aforesaid Land Trust Agreement, with the direction to sell the Property upon
such terms and conditions as this Court deems reasonable and appropriate,
including, but not limited to, fixing a reasonable amount as compensation of the
successor trustee for her services;

B. That the term of the Land Trust be continued for a reasonable time in order to
allow for the sale of the Property;

C. That Plaintiff Jean Mary O'Connell Nader be appointed as successor trustee under
the Last Will and Testament of Harold A. O'Connell for all purposes, including
distribution of the net proceeds of the sale of the Property that are payable to such
trust;

D. That all costs incurred by Plaintiff Jean Mary O'Connell Nader in this action,
including reasonable attorneys' fees, be paid by the Land Trust; and

E. For all such further relief as this Court deems reasonable and proper.

Trustee's Responses to summons

September 22, 2012: (1) overview62p
September 24, 2012: (1) 545820-23p, (2) bk467p191-8p (3) blueprint4p (4) canweconnectthedots2p (5) code of conduct18p (6) commitments-individually8p (7) computer-tax-test35p (8) exceptions1994dissappeared (9) exceptions2000disappeared (10) overview72p (11) percentages12p (12) precedence17p (13) tax-records94p (14) trust-deed-invisible175p (15) trust-documents42p (16) unknown14p (17) usingIRS15p

(Note: This is too much text to print out in here. Please click the pdf's above)

Injunction

COMES NOW the Plaintiff, Jean Mary O'Connell Nader, by counsel, and moves this
Court pursuant to Va. Code § 8.01-629 for a temporary injunction for the purpose of continuing
the term of the Land Trust pending a Final Order in this action. In support of her motion,
Plaintiff states the following.

1. This is an action by which Plaintiff seeks to, inter alia, remove Defendant
Anthony M. O'Connell as trustee under a Land Trust Agreement dated October 16, 1992 (the
"Land Trust"). The beneficiaries under the Land Trust are Plaintiff and her siblings, Defendants
Sheila O'Connell and Anthony M. O'Connell, individually.

2. As alleged in the Complaint, the Land Trust holds title to certain real property
(the "Property") consisting of approximately 15 acres located near the Franconia area of Fairfax
County, Virginia.

3. The terms ofthe Land Trust Agreement provide for the termination ofthe trust on
October 16, 2012 and, upon the termination date, the trustee is directed to convey record title of
the Property to the beneficiaries or sell the Property at a public sale.

4. A conveyance ofthe Property to the beneficiaries or a public sale ofthe Property
before a Final Order has been entered in this case would result in irreparable harm to the
Plaintiff, as a beneficiary ofthe Land Trust.

5. As ofthe date of the filing of this Motion, Defendant Sheila O'Connell has been
served with the Complaint and the time period for her to file an answer is pending. Upon
information and belief, Defendant Anthony M. O'Connell has filed a response to the Complaint,
which consisted of a one-page letter directed to the Clerk of Court, and the filing of numerous
documents and records containing his annotations.

6. By his own admission, Defendant Anthony M. O'Connell, as trustee, has not paid
the real estate taxes on the Property or sold the Property, contrary to the terms in the Land Trust
agreement.

7. Under the circumstances, the likelihood of success on the merits and the balance
of equities favor the Plaintiff.

8. It is in the public interest to allow the Trust to continue in order for Plaintiff to
pursue a remedy that will allow for the orderly sale ofthe Property for the benefit of the
beneficiaries of the Trust.

WHEREFORE, Plaintiff Jean O'Connell Nader, by counsel, respectfully requests the
entry of an Order as follows:

A. Providing injunctive relief in the form of continuing the term of the Land Trust
until such time as a Final Order has been entered in this case;

B. Enjoining Anthony M. O'Connell, as trustee under the Land Trust Agreement,
from conveying record title ofthe Property to the beneficiaries or selling the
Property at a public sale; and

C. For all such further relief as this Court deems reasonable and appropriate.

Trustee's Response to Injunction

(Trustee to Clerk of the Court John 1. Frey, October 2, 2012)
(1) This Injunction, likes the Summons, makes the Trustee appear individually liable. The Trustee is not individually liable. Please see the Trust Agreement that says "Trustee Not individually Liable" at Bk467p191. This is against the rule of law and I respectfully request that this Injunction be dismissed because it is against the rule of law.

(2) The preparer of this temporary injunction against me is the same preparer of the August 30, 2012, summons against me ("Elizabeth Chichester Morrogh" <bvmorrogh@bklawva.com>, and since the accusations are similar, I respectfully request that a copy of my response to the summons be made a part of my response to this Injunction.

(3) Item 5 of this Injunction describes my response to the Summons as "... a one-page letter directed to the Clerk of Court, and the filing of numerous documents and records containing his annotations." Please see my response and judge for yourself. My response can also be seen at http://www.thepublicshouldknow20.com

(4) If anyone # believes any of the accusations against me in the summons or in this injunction are true, please ask the preparer ("Elizabeth Chichester Morrogh" <bvmorrogh@bklawva.com» to provide the evidence and allow me to respond.

(5) Before a decision is made on this motion, I respectfully request that the accounting at Bk467p191 be exposed. The law says that this is automatically done and the public trusts that it is done. I believe it would show that the accountants want to replace me with our innocent sister Jean Nader because they can use Jean Nader to make money disappear, but I would try to stop them.

(6) Please don't allow the accountants to use the Court or our family as cover.
Sincerely, Anthony O'Connell, Trustee


Response to responses

I don't understand why the only response to my responses to the summons and injunction was:

"5. As of the date of the filing of this Motion, Defendant Sheila O'Connell has been
served with the Complaint and the time period for her to file an answer is pending. Upon
information and belief, Defendant Anthony M. O'Connell has filed a response to the Complaint,
which consisted of a one-page letter directed to the Clerk of Court, and the filing of numerous
documents and records containing his annotations."

(From Injunction dated September 28, 2012)

"Your letter also indicates that you do not know what issues are raised in the case
but our records indicate that you have responded to the Complaint which sets out the
Plaintiff's allegations and prayer for relief so I therefore assume that you are acquainted
with the issues which have been raised."
(From Chief Judge Dennis J. Smith to Trustee Anthony O'Connell, November 27, 2012)

I can't prevent misunderstandings such as the above unless I communicate in a way that leaves a record, such as the web.

Please read the Summons and the Injunction and then read my responses. My responses are evidence and the evidence is the point. Dismissing the evidence is not approval by default.

Would the Judges please use their power to have the accountants expose the core evidence, their accounting trails at bk467p191?