On November 02, 2016 a
Letter,Correspondence
was filed
involving a dispute between
Chin Chung Lu,
Li Hua Lu,
Lu Holding Llc,
Wen Mei Lu,
and
Wen Fu Lu,
Wen Ying Gamba,
Yuen Hsiang Lu,
for Commercial - Other (Constructive Trust)
in the District Court of Saratoga County.
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Phelan, Phelan & Danek, LLP
Attorneys and Counselors at Law
John J. Phelan, III 300 Great Oaks Boulevard, Suite315
Robin Bartlett Phelan Albany, New York 12203
Marie Flynn Danek Telephone: (518) 640-6900
Timothy S. Brennan Facsimile: (518) 640-6955
Timothy P. Tripp www.ppdlawoffice.com
Nicole R. Tricchinelli
Katrina N. Vollmer
John J. Phelan, IV
Timothy S. Brennan/Partner
Tim@ppdlawfirm.com
September 10, 2021
Via ECF
Hon. James E. Walsh
Saratoga County Supreme Court
30 McMaster Street #1
Ballston Spa, NY 12020
Re: Lu et al v Gamba et al
Index No.: 20162946
Our File No. 648.001
Dear Judge Walsh:
Kindly accept this correspondence in response to plaintiff’s letter dated September 9,
2021. In this letter, plaintiffs request, among other things, that the Receiver withdraw funds and
disburse them to them. As this Honorable Court is aware, this is the very issue that was just
addressed by the Court’s September 8, 2021 letter order. Defendants vehemently oppose
plaintiffs’ request in this regard. As this Honorable Court pointed out in its letter order, the
funds at issue were held and accumulated over the course of this litigation by the Receiver at
plaintiffs’ request.
Plaintiffs requested the Receiver collect and retain the funds they now request be released
over the objection of the defendants, the then titled owners of the property. Now, plaintiffs take
the irreconcilable position that it is not proper for the Receiver to hold these funds.
Undoubtedly, should defendants prevail on their post-trial motion, plaintiffs would again see the
need for the Receiver and would object to the disbursement of any funds to defendants. This
issue in the present case has now been resolved several times and is the law of the case. As
outlined in the Order to Show Cause, defendants are simply requesting the same protections that
plaintiffs were accorded over the course of this litigation. The need for the Receiver is the law of
the case and the funds should not be disbursed to either party at this juncture.
As for the proposed amendment of the judgment to include a provision to allow plaintiffs
to “structure any future ownership” in legal entities, it would seem unnecessary as an owner of
property can transfer or structure it as they see fit. Defendants, however, object to any transfer of
ownership while the Receiver is in place. One of the purposes of the Receiver is to ensure that
the property does not change hands. By insisting on this provision in the judgment at this time, it
{A0558191.1 }
Hon. James E. Walsh
Saratoga County Supreme Court
September 10, 2021
Page 2 of 2
would seem that plaintiffs have an imminent intent of changing the ownership of the properties.
Defendants, of course, object to any change in ownership while the Receiver is in place. As a
side note, based upon plaintiffs’ representations at trial, it is likely that Patty Lu would lack
capacity to consent to any transfer of her interest in the properties at this juncture anyway due to
her alleged infirmity. Regardless, it is submitted that the Receivership should prohibit transfer at
this juncture.
In short, defendants’ post-trial motion and appellate arguments in this case are likely to
succeed on the merits. As outlined in the previous submissions upon which this Honorable Court
issued its decision on the issue, plaintiffs confessed to a perjurious scheme to undermine
defendant Gamba’s claim of ownership under the very arrangement they now claim to ownership
through. Plaintiff’s hands are unclean as a matter of law.
Very truly yours,
PHELAN, PHELAN & DANEK, LLP
By Timothy S. Brennan
TIMOTHY S. BRENNAN
TSB/ak
cc: John Crain, Esq.
David A. Harper, Esq.
{A0558191.1 }
Document Filed Date
September 10, 2021
Case Filing Date
November 02, 2016
Category
Commercial - Other (Constructive Trust)
Status
Stayed-Court Date/Application Pending
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Phelan, Phelan & Danek, LLP Attorneys and Counselors at Law John J. Phelan, III 300 Great Oaks Boulevard, Suite315 Robin Bartlett Phelan Albany, New York 12203 Marie Flynn Danek Telephone: (518) 640-6900 Timothy S. Brennan Facsimile: (518) 640-6955 Timothy P. Tripp www.ppdlawoffice.com Nicole R. Tricchinelli Katrina N. Vollmer John J. Phelan, IV Timothy S. Brennan/Partner Tim@ppdlawfirm.com September 10, 2021 Via ECF Hon. James E. Walsh Saratoga County Supreme Court 30 McMaster Street #1 Ballston Spa, NY 12020 Re: Lu et al v Gamba et al Index No.: 20162946 Our File No. 648.001 Dear Judge Walsh: Kindly accept this correspondence in response to plaintiff’s letter dated September 9, 2021. In this letter, plaintiffs request, among other things, that the Receiver withdraw funds and disburse them to them. As this Honorable Court is aware, this is the very issue that was just addressed by the Court’s September 8, 2021 letter order. Defendants vehemently oppose plaintiffs’ request in this regard. As this Honorable Court pointed out in its letter order, the funds at issue were held and accumulated over the course of this litigation by the Receiver at plaintiffs’ request. Plaintiffs requested the Receiver collect and retain the funds they now request be released over the objection of the defendants, the then titled owners of the property. Now, plaintiffs take the irreconcilable position that it is not proper for the Receiver to hold these funds. Undoubtedly, should defendants prevail on their post-trial motion, plaintiffs would again see the need for the Receiver and would object to the disbursement of any funds to defendants. This issue in the present case has now been resolved several times and is the law of the case. As outlined in the Order to Show Cause, defendants are simply requesting the same protections that plaintiffs were accorded over the course of this litigation. The need for the Receiver is the law of the case and the funds should not be disbursed to either party at this juncture. As for the proposed amendment of the judgment to include a provision to allow plaintiffs to “structure any future ownership” in legal entities, it would seem unnecessary as an owner of property can transfer or structure it as they see fit. Defendants, however, object to any transfer of ownership while the Receiver is in place. One of the purposes of the Receiver is to ensure that the property does not change hands. By insisting on this provision in the judgment at this time, it {A0558191.1 } Hon. James E. Walsh Saratoga County Supreme Court September 10, 2021 Page 2 of 2 would seem that plaintiffs have an imminent intent of changing the ownership of the properties. Defendants, of course, object to any change in ownership while the Receiver is in place. As a side note, based upon plaintiffs’ representations at trial, it is likely that Patty Lu would lack capacity to consent to any transfer of her interest in the properties at this juncture anyway due to her alleged infirmity. Regardless, it is submitted that the Receivership should prohibit transfer at this juncture. In short, defendants’ post-trial motion and appellate arguments in this case are likely to succeed on the merits. As outlined in the previous submissions upon which this Honorable Court issued its decision on the issue, plaintiffs confessed to a perjurious scheme to undermine defendant Gamba’s claim of ownership under the very arrangement they now claim to ownership through. Plaintiff’s hands are unclean as a matter of law. Very truly yours, PHELAN, PHELAN & DANEK, LLP By Timothy S. Brennan TIMOTHY S. BRENNAN TSB/ak cc: John Crain, Esq. David A. Harper, Esq. {A0558191.1 }