SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE
_______________________________
JEFFREY S. NEWTON,
)
CASE NO. _______________________
RICHARD A. NEWTON,
)
By assignment, and
)
DEPT. NO. ______
ESTATE OF JOYCE A. NEWTON,
)
JUDGE: HONORABLE ______________
Jeffrey S. Newton, P.R.
)
)
Hearing Date: Thursday, June 23, 2011,
11:00 a.m.
Plaintiffs,
)
vs.
)
)
MOTION
FOR
TEMPORARY
AND
PERMANENT
BANK OF AMERICA, N.A.
)
INJUNCTIVE RELIEF PURSUANT
TO CREDITORS
a national banking corporation,
)
SUIT AND FOR FRAUDULENT
TRANSFER
THOMAS PATRICK FREYDL,
)
PURSUANT TO CCP 708.180(c),
708.240
FREYDL & ASSOCIATES, and
)
AND 3439.07
FREYDL & ASSOCIATES, LTD,
)
)
FOR ENFORCEMENT OF DOMESTICATED
Defendants.
)
1999
MICHIGAN
CONSENT
JUDGMENT
)
)
DECLARATIONS OF GOOD CAUSE &
NOTICE
)
MEMORANDUM
OF
POINTS
&
AUTHORITIES
)
)
FOR ENFORCEMENT OF DOMESTICATED
)
1999 MICHIGAN CONSENT JUDGMENT
_______________________________)
TO:

Thomas Patrick Freydl, Freydl & Associates (Judgment Debtors),

any attorney of record of Judgment Debtors; Freydl & Associates, LTD, Inc.
(Successor In Interest to Judgment Debtor Freydl & Associates), any attorney
of Record of Freydl & Associates, LTD, Inc.,:
NOTICE IS HEREBY GIVEN THAT on Thursday, June 23, 2011 at 8:30
a.m. in Department 32 of the Court located at 700 Civic Center Drive, Santa
1

Ana, California, Jeffrey S. Newton, the Judgment Creditor, will move the Court
for an Order restraining Bank of America, and the Judgment Debtors,
and any servants, agents, employees or attorneys for Bank of
America or the Judgment Debtors and any person(s) in active
concert and participating with Bank of America or the Judgment
Debtors, from transferring, encumbering, assigning, disposing or
spending any interest in any and all funds in Bank of America Bank
Account Number 2363871631, or from paying any of these described
funds (or permitting their withdrawal, encumbrance, assignment, disposition
or spending) to or by the Judgment Debtors (or to any of them, or to their
Successors in Interest, either now known or later formulated), or to any
person(s), corporation(s), partnership(s), limited liability company(ies) or
other legal ent(ies), until Judgment in the Creditors Suit filed concurrently
herewith, is entered.
This Motion will be based on this Notice, the attached Declaration of
Jeffrey S. Newton, the Memorandum of Points and Authorities set forth below,
and the complete files and records of this Action.
REQUESTED RELIEF AND DURATION THEREOF
1.
Temporary

Plaintiff-Judgment Creditor1 respectfully requests the entry of a

Restraining

Order

(TRO)

Order

immediately

freezing

(restraining and enjoining) Bank of America from releasing any funds, or

permitting the transfer, withdrawal or other disposition of said funds, in any

For simplicity, simply Newton.

2

amount whatsoever, to Thomas Patrick Freydl, Freydl & Associates, Freydl &
Associates, P.C., Freydl & Associates, LTD, Inc., or any of them, or any
derivation of said names, or any of them, from Bank of America Account
Number 2363871631, until (ownership of the money in said bank account is
conclusively determined pursuant to the Complaint for Creditors Suit,
Fraudulent Transfer, Injunctive Addition of Corporate Entity as Judgment
Debtor And For Other Relief, filed concurrently herewith, the disposition of
said money pursuant to the resolution of said action is conclusively
determined, and payment to the Judgment Creditor or all such funds
determined to properly be payable to the Judgment Creditor is fully and
finally accomplished.
THIS HONORABLE COURTS AUTHORITY FOR
MAKING THE ABOVE ORDER ON AN EX PARTE BASIS
Code of Civil Procedure 527; 708.180(a)-(d); 708.240(a), (b);
3439.07, 1710.45.
CREDITORS SUIT AND COMPLAINT FOR FRAUDULENT TRANSFER,
INJUNCTIVE AND OTHER RELIEF, AND FOR ADDITION OF CORPORATE
DEFENDANT TO LIST OF JUDGMENT DEBTORS
The Judgment Creditor has filed a Creditors Suit and Complaint for
Fraudulent Transfer, Injunctive and Other Relief concurrently herewith. In the
interest of judicial economy, and also for ecological concerns, the instant
motion will not recreate the Courts previously granted, similar Motion, but
will instead refer to it as needed. All references to exhibits are to those on
file in this Court in Civil Case 30-2011-00469301-CU-EN-CJC.

Temporary, preliminary and permanent injunctive relief is readily

available to Judgment Creditors upon the filing of a Creditors Suit, pursuant
to CCP 708.240(a) and (b), respecting transfer prohibition to the Judgment
Debtor (subsection a) and anybody else (subsection b).

Bond

(undertaking) is discretionary. Newton submits that the facts herein do not

require bond, given the large amount of the Consent Judgment (over
$342,000.00), the relatively small amount of the bank account funds
(approximately $21,000.00), the fact that the Judgment Debtors consented
to pay the Consent Judgment, the fact that the funds representing the
Consent Judgment were stolen from the Judgment Creditor in the first
instance, and the fact that the funds were fraudulent transferred into the
corporate bank account by the Judgment Debtor to hinder, delay and
frustrate the Judgment Creditors legitimate collection efforts. Additionally,
the Judgment Debtor has expended approximately four thousand dollars
($4,000.00) in travelling to California from New York and Michigan for
collection proceedings.
Mr. Freydl has abused the corporate form by effectively laundering
funds belonging to him (or to Freydl & Associates) through the Freydl &
Associates, LTD Bank of America account. Upon information and belief, the
sole purpose of the corporate entity styled Freydl & Associates, LTD. is to
launder money, conceal and fraudulently transfer assets and avoid paying
the Judgment Creditor (and perhaps others).

There is no legitimate

corporate purpose, there are no shares, Freydl is the alter ego of the
corporation, the corporation is suspended for failure to pay California
4

franchise taxes (and has been continuously suspended for almost the entire
duration of its corporate existence; e.g., upon information and belief, since
October 10, 2007), and cannot maintain a corporate bank account.
CIRCUMSTANCES CONSTITUTING GOOD CAUSE FOR
GRANTING THE ABOVE DESCRIBED ORDER ON AN EX PARTE BASIS
1.

Freydl stole at least $74,500.00 from Newton in 1994-1995 his

entire life savings. This caused The Judgment Creditor to lose his house (with
$180,000.00 of equity in it) and ruined his life. Freydl finally entered into a
Consent Judgment with The Judgment Creditor in 1999 after vigorously
litigating the matter for over two years, only to completely disregard the
Consent Judgment and The Judgment Creditor thereafter.

The Judgment

Creditor finally located Freydl here in Southern California and has initiated
collection measures against him here at great expense.
2.

Freydls financial and ethical conduct is utterly deplorable

in the extreme and resulted in his outright disbarment in California

for stealing money from clients. The Michigan Attorney Discipline Board also
found that he misappropriated client funds and wrote checks off of bank
accounts that he knew or should have known had been closed. He did
exactly the same thing with the Judgment Creditor.

A copy of the Board

Opinion in Grievance Administrator v Freydl, 96-193-GA, was previously filed

with this Court, and is available at: http://www.adbmich.org/download/96193.pdf.

Freydl has been continuously disbarred in California since 2002:

http://members.calbar.ca.gov/search/member_detail.aspx?x=159567.

3.

Freydl practiced law in California and Michigan under the name

Freydl & Associates at the time that Freydl & Associates wrote The
Judgment Creditor the two $17,500.00 account closed or nonsufficient
funds checks upon which the Consent Judgment in this matter is based.
Exhibit 1,2 List of Judgments (including The Judgment Creditors) showing
Freydls use of Freydl & Associates in 1995 and that The Judgment
Creditors Judgment is against Freydl & Associates; Exhibit 2, $17,500.00
account closed or nonsufficient funds checks from Freydl & Associates
to The Judgment Creditor.
7. Freydl & Associates, LTD., Inc. is suspended for failure to pay corporate
taxes, and has been so continuously since October 10, 2007.

Exhibit 6,

Secretary of State Official Records Showing Suspension. Freydl, of course,

being disbarred, could not represent said corporation even if it were not
suspended, notwithstanding that the corporate purpose is legal. Id.
8.

Freydl & Associates, LTD., Inc. is a sham corporation and alter

ego of the Judgment Debtors. 3 Moreover, the original Michigan Complaint

Exhibits are on file in this Court, as noted.

In fact, the only probable reason that Freydl created the corporation was
to defraud Newton (and others) by the fraudulent transfer of assets, and
since, due to his lengthy history of check-kiting, was otherwise unable to
acquire a bank account. Newton, upon information and belief, surmises that
a Bank of America insider, probably the branch manager where the account
is held, permitted Freydl to acquire an account, notwithstanding the
CheckSystems flag that surely prevented the opening of an account upon
the application for one by Thomas Patrick Freydl, Freydl Group, Freydl &
Associates, et. cetera.
3

alleged DOES Defendants.4

Freydl comingles funds and uses the bank

account as his own personal account.

Copies of checks written to Freydl

himself and deposited into the account are on file in this Court, as noted.
9.

Upon information and belief, Judgment Debtors have an insider at

Bank of America whom they called upon to arrange for release of the funds
to Freydl, which is not only despicable but also constitutes contempt of Court
and fraud on the Court. This is especially probable, given the nonconforming
method used (i.e., no Objections, verbal advisement from California
counsel for Freydl & Associates). Moreover, Bank of America is well aware
that Freydl & Associates is a Judgment Debtor, as proven by Exhibit 8 (on
file), the April 15, 2011 Order to Appear (Subpoena) that was filed and
served five (5) days prior to the April 20, 2011 Amended Garnishee
Disclosure.
10.

Bank of America has refused to restrain the funds, despite

telephone request from The Judgment Creditor, but will do so if Court Orders
them to do so (assuming, of course, that Freydl did not clean out the
account). Bank of Americas garnishment departments fax number is (212)
548-0744 (for Court Restricted and perfect for service of the Order); (617)
310-2751 for all other faxes. Their physical address is 5701 Horatio Street,
Utica, NY 13502.
11.

The Judgment Creditor desperately needs the garnished funds to

save all of his lifelong belongings and personal property, which is up for
The original Complaint is warehoused at the Michigan Court and can be
supplied to this Court if requested.
4

storage auction on August 3, 2011 at 1:00 p.m. Eastern Daylight Time

(furniture, paintings, china, stereo, et. cetera). If these circumstances do not
qualify for the imposition of injunctive relief in the form of a temporary
restraining order (TRO) freezing a bank account, then precisely what
circumstances do so qualify?
12.

Freydl & Associates, LTD is the alter ego 5 of Thomas Patrick

Freydl and, due to the suspension of its corporate powers occasioned by its
total failure to pay California franchise taxes since 2007 through present,
actually is Freydl & Associates, a Judgment Debtor.6
Notwithstanding the Postal Instant Press decision, the alter ego identity is
true.
5

6 The alleged corporation (even if it were not suspended for failure to pay
taxes), fails almost every single test of the alter ego doctrine:
A.
Comingling of funds and other assets, failure to segregate funds
unauthorized diversion of corporate funds or assets to uses other than the
benefit of the corporation: Freydl used the bank account to deposit many,
many checks written to himself individually or to Freydl & Associates (not to
Freydl & Associates, LTD). Newton believes that most of the deposited
checks were made out to Freydl individually, to Freydl & Associates, and not
to Freydl & Associates, LTD. In fact, because the corporation, Freydl &
Associates, LTD., is suspended (and therefore legally incapable of conducting
business or owning a bank account) and because its corporate purpose, the
practice of law, is, and always has been, legally impossible due to Freydls
disbarment, all funds owned by the corporate bank account belong to
Freydl or to Freydl & Associates, not to Freydl & Associates, LTD.
B.
An individuals treatment of corporate assets as his or her own:
same; Freydl uses the account as his own personal bank account.
C.

Failure to obtain authority to issue or subscribe stock: unknown.

D.
Holding out by an individual that he or she is personally liable for
the debts of the corporation: unknown.
E.
The failure to maintain separate and adequate corporate records:
same bank account.
8

17.

Freydl has made no attempt to pay The Judgment Creditor

anything at all on the Consent Judgment, nor even apprise The Judgment
Creditor of his whereabouts - for 12 years. Freydl has shown a complete lack
of good faith towards The Judgment Creditor, violently swearing at him in
Federal Court in New York City on March 29, 2011, and practicing both law
F.
The identical equitable ownership or control in the two entities:
same bank account.
G.
The use by both entities of the same office or business location
and the employment of the same employees or attorneys or both: 14 Swift
Ct. Newport Beach and 20434 South Santa Fe Avenue, Long Beach, CA for
Freydl and the alleged corporation.
H.

The failure to capitalize a corporation adequately: unknown.

I.
The use of a corporation as a mere shell, instrumentality, or
conduit for a single venture or the business of an individual or another
corporation: single venture is Freydls law practice, mere shell,
instrumentality or conduit for Freydl himself, he is sole owner and
shareholder of the alleged corporation.
J.
The concealment and misrepresentation of the identity of the
responsible ownership, management and financial interest, or the
concealment of personal business activities: same bank account.
K.
The disregard of legal formalities and the failure to maintain
arms length relationships among related entities: same entity, total
disregard of corporate obligations (suspended for total failure to pay taxes).
L.
The use of the corporate entity to produce labor, services, or
merchandise for another person or entity: namely, Freydl and his law
practice.
M.
The diversion or manipulation of assets from a corporation by or
to a stockholder or another person or entity, to the detriment of the
creditors: Freydl diverted and converted individual Freydl or Freydl and
Associates funds to the alleged corporation, to the detriment of creditors
(Newton). This shows total bad faith on the part of Freydl and the alleged
corporation.
9

(without a license) and subterfuge with Bank of America to hijack a

legitimate and much needed garnishment. Moreover, Freydl stole the money
from The Judgment Creditor in the first place - 17 years ago, and did so with
alacrity. In doing so, he ruined their lives by taking all of his liquid money,
which eventually caused him to lose his paid for, free and clear
condominium for condominium assessment fees and, ultimately, expensive
foreclosure mortgage financing, none of which would have been necessary
absent Freydls theft of The Judgment Creditors life savings.

Freydl will

immediately clean out his bank account if it is ever unfrozen by the Court. 7
18.

The requested relief merely maintains the status quo until the

conclusion of the Creditors Suit. Pursuant to statute, the restraining order

remains in effect until judgment is entered in the Creditors Suit.

CCP

708.240(a).
MEMORANDUM OF POINTS AND AUTHORITY
IMPACT OF SUSPENSION OF FREYDL & ASSOCIATES
N.
The use of the corporation for an illegal transaction: the practice
of law without a license. This will be Freydls second conviction for this
offense, which should shock the conscience of this Court and which carries
with it a mandatory jail sentence.
O.
The formation and use of a corporation to transfer to it the
existing liability of another person or entity. Here, the opposite: Freydl is
using the corporation to avoid liability for Freydl and/or Freydl & Associates.
Associated Venders, Inc. v Oakland Meat Co., 20 Cal. App 2d, 825, 838-40; 26
Cal. Rptr. 806 (1962); The Name Game: Equitable Estoppel Principles Are
Increasingly Used To Pierce The Corporate Veil When The Technical
Requirements Of The Alter Ego Doctrine Cannot Be Met, 17 Los Angeles
Lawyer, No. 11, Page 28, February, 1995 (by Ovvie Miller)

7 If Freydl has taken any money out of the account, Newton shall seek
criminal prosecution of him.
10

In California, the corporate powers, rights and privileges of a

domestic taxpayer may be suspended . . . if any tax, penalty, or
interest . . . that is due and payable . . . is not paid. Cal. Rev. & Tax. Code
23301(a) (emphasis supplied).

Any taxpayer which has suffered the

suspension . . . provided for in Section 23301 . . . may be relived therefrom

upon making application therefor in writing to the Franchise Tax Board and
upon the filing of all tax returns required under this part, and the payment of
the tax, additions to tax, penalties, interest, and any other amounts for
nonpayment of which the suspension of forfeiture occurred . . . and upon the
issuance by the Franchise Tax Board of a certificate of revivor. Cal. Rev. &
Tax. Code 23305. As a result of its failure to pay taxes since 2006, Freydl
&Associates corporate powers, rights and privileges were suspended and
have never been reinstated.
A corporation may not prosecute or defend an action, nor appeal
from an adverse judgment in an action while its corporate rights are
suspended for failure to pay taxes. Reed v. Norman, 48 Cal. 2d 338, 343,
309 P.2d 809 (Cal. 1957) (emphasis supplied). The incapacity of a defendant
corporation to be sued for failure to comply with the applicable tax
provisions, however, does not relate to its amenability to suit per se, but
rather to its inability to take any action, in court, in its defense, once
suit has been commenced against it. Weinstock v. Sinatra, 379 F Supp
274, 277 (C.D. Cal. 1974) (emphasis supplied).

Thus, a suspended

corporation is not protected from collection efforts to enforce a judgment

duly entered against it.

Freydl &Associates corporate powers, rights,

11

and privileges have been suspended due to its failure to pay its corporate
taxes. This suspension precludes Freydl & Associates from participating in
litigation but does not protect Freydl & Associates from the consequences of
a default. Unless and until Freydl & Associates takes the steps necessary to
obtain a Certificate of Revivor from the Franchise Tax Board, Freydl &
Associates has made a willful decision to admit to the garnishment against it
and is not protected from collection.

Finally, Freydl &Associates has been

aware of The Judgment Creditors collection efforts for over two months and,
upon information and belief, has not taken any steps whatsoever to remedy
its tax liability. Freydl &Associates deliberate refusal to take measures to
reinstate its litigation privileges, and thereby resorting to impermissible,
direct telephone contact with Bank of Americas legal department with the
added

chutzpah

of

feigning

legal

representation

of

his

suspended

corporation, fully warrants the imposition of injunctive relief against Freydl &
Associates.
AVAILABILITY OF INJUNCTIVE RELIEF TO RESTRAIN TRANSFERS TO
THE JUDGMENT DEBTOR OR TO ANYBODY
Upon the creditors ex parte application, the Court may forbid a third
person from transferring property to the judgment debtor (or paying a debt
owed to the judgment debtor) until ownership of the property (or the
existence of the debt) is determined. CCP 708.240(a). Similarly, the Court
may forbid transfer (or other disposition) to any person. CCP 708.240(a),
525 et. seq.

Violation of the Order is punishable by contempt (see CCP

12

1209-1222), with Judgment entered against the violator for the amount of
the illegal transfer in violation of the Order. CCP 708.280(d).
Unlike a noticed motion to restrain a transfer or payment, there is no
express requirement that the Court find the judgment debtor probably
owns an interest in the property in the third persons possession or control,
or that the debt is probably owed by the third person to the judgment
debtor; nor is the judgment creditor required to furnish an undertaking. See
16 Cal. L. Rev. Commn Rep. 1127 (1982).
WHEREFORE,

Plaintiffs-Judgment

Creditor,

Jeffrey

S.

Newton

respectfully requests that this Honorable Court enter its Order:

1.

Temporarily restraining Bank of America from transferring to, or

permitting Thomas Patrick Freydl or

Freydl & Associates or Freydl &

Associates, P.C. or Freydl & Associates, LTD., Inc., and any derivation or
modification of said names, as well as their agents, assigns, heirs and the
like, as well as any other persons or entities, from withdrawing any funds
whatsoever,

or

from

encumbering,

transferring,

selling,

disposing

or

concealing, funds from the Bank of America account until further Order of
this Court;
2.

Temporarily

restraining

Thomas

Patrick

Freydl,

Freydl

&

Associates, Freydl & Associates, LTD., or any like person or entity bearing any
similar name or derivation thereof as well as their agents, assigns, heirs and
the like, from withdrawing or from encumbering, transferring, selling,
disposing or concealing, any funds whatsoever from the Bank of America

13

account until Judgment is entered in the Creditors Suit filed by the PlaintiffJudgment Creditor; and
3.

Any other and further relief that the Court deems appropriate

and just in the premises.

Respectfully submitted,
____________________
Jeffrey S. Newton
Judgment Creditor
DATED:

June 22, 2011

VERIFICATION

STATE OF CALIFORNIA)
))ss
COUNTY OF LOS ANGELES)
I, Jeffrey S. Newton, first being duly sworn, do hereby declare, under
penalty, that the foregoing is true to the best of my information, knowledge
and belief.
Respectfully submitted,
____________________
Jeffrey S. Newton
DATED:

June 22, 2011

14