Printos from 0616 JLICK, CARSON THORPE, P.c. Attorneys at Law 70 Main Street senton, VA 20186 bs (540) 347-3022 /S2 on Friday, June 02, 2017 9:45:40 AM, VIRGINIA: IN THE CIRCUIT COURT OF FAUQUIER COUNTY STEPHEN S. ROSZEL VII and PER BANG-JENSEN, Co-Executors of the Last Will and Testament of Stephen S. Roszel VI, et al., Plaintiffs, v. CASE NUMBER CLO09-670 PHILIP JAY FETNER, Defendant. PLAINTIFFS’ RESPONSE TO DEFENDANT'S: MOTION TO RECONSIDER FINAL ORDER COME NOW your Plaintiffs, STEPHEN S. ROSZEL VII and PER BANG- JENSEN, Co-Executors of the Last Will and Testament of Stephen S. Roszel VI, and SUSAN ROSZEL HARTZ, by counsel, and, for their Response to Defendant's Motion to Reconsider Final Order, say as follows: 1. This case is document intensive. The documents in this case are illustrative of the core fact of this case: Philip Jay Fetner, over the course of. six-and-a-half months, converted $647,042.26 of Stephen S. Roszel VI's money to Fetner’s personal use. 2. This case is one of many contrasts. The first contrast is Mr. Roszel’s estate Planning documents prior to and subsequent to Mr. Fetner’s insinuation into Mr. Rosze''s life and those documents during Fetner’s six-and-a-half month involvement. Both before and after Fetner, Mr. Roszel's documents are professionally prepared by an independent attorney with requisite witnesses and a notary. On the other hand, Fetner prepared three documents. The first, a Trust Amendment, is notarized by a bank notary. The second two, the “Hartz Trust" (Exhibit 24) and Promissory Note (Exhibit 25) were drafted and signed only by Fetner, without third-party witnesses or a notary. GAILH. BARRLGLERKPte tom 6 ony, ne 2017 94500 Moreover, these two turgid, indigestible, unenforceable and non-negotiable documents are the attempt by Fetner to cover his tracks after he had already converted the first $300,000.00 from Mr. Roszel, The trust and the note are both dated after conversion. Once again, it must be emphasized that the Hartz/Roszel Fund was a sole Proprietorship account belonging to Fetner, not the Susan Hartz Trust. The naming of this account by Fetner as the Susan Hartz/Roszel Fund was an obvious attempt by Fetner to mislead Mr. Roszel, Mrs. Hartz, SunTrust and Wachovia Securities. 3. In February, 2009, Mr. Roszel, nearly 88 years old, had an estate of $4,000,000.00 and over half of that liquid. In February, 2009, Mr. Fetner had a federal tax lien, delinquent real estate taxes, a negative balance in his checking account, mortgage payments of $17,000-$20,000 per month and a lavish lifestyle. 4. Mr. Fetner set up two personal accounts at SunTrust, as sole signatory and using his personal social security number, named “Hartz Roszel” and “Golden Zebra.” Fetner caused Roszel, or Fetner directly deposited Roszel's money into first the “Hartz Roszel” account. Thereafter, Fetner transferred the money to himself via cash or transfers to “Golden Zebra.” The total amount converted by Fetner using this method of conversion was $560,042.25. 5. A further contrast is that Mr. Roszel had over $2.5 million in liquid assets, wanted for nothing, was debt-free, and yet liquidated his Northwest Mutual account and his Florida property at the nadir of the stock market and Teal estate market during the last recession (TR Il, p. 77). Mr. Fetner, atthe same time, was functionally bankrupt and desperate for a source of funds.Pts tm os ston Fy, et 2017 94541 6. The Court, on Page 3 of its letter opinion, described in detail the listing of Fetner's personal expenses paid by Fetner using Mr. Roszel's money. In addition, Fetner paid from Mr. Roszel’s funds his employees, mortgages, travel, heating and air conditioning, polo gear and accommodations, telecommunications, satelite television and internet (TR |, pp. 138-143). Fetner further admitted that the $87,000.00 in “cash” checks transferred from Roszel to the Coachman account were used for Fetner’s same personal expenses. 7. Not one dime was ever used for Fetner’s so-called “projects.” 8. At its most fundamental point, Defendant Fetner asks the Court to reconsider and find, in spite of the unrebutted testimony of Stephen S. Roszel VII and Per Bang- Jensen, and in spite of the overwhelming documentary evidence to the contrary, that Fetner's concocted story about Mr. Roszel's desire to invest in unspecified “projects” be believed. 9. Fetner’s credibility was impeached at trial concerning the $82,000.00 payment and its uses, the number of hours he worked for Mr. Roszel, and whether or not he had an oral contract with Mr. Roszel as opposed to his Claim at trial for Quantum Meruit. 10. Mr. Fetner asks this Courtto believe him, financially desperate in 2009, based on two documents, prepared and signed solely by Fetner and never seen by Mr, Roszel, Nor ever found at his home or safety deposit boxes (TR I, p. 77). 11. At Mr. Fetner’s direction, Mr. Roszel sold real estate (not only did Fetner sign closing documents, he endorsed the Proceeds check, misspelling Mr. Roszel's name!) and securities at Northwest Mutual at the low point of the market for both (TR II, p. 77).Printed from 061C-S2 on Friday, June 02, 2017 9:45:41 AM 12, Mr. Fetner’s six-and-one-halfmonths of self-dealing, co-mingling, conversion and repeated breach of minimum fiduciary standards resulted in the loss of $647,042.25 to Mr. Roszel by Mr. Fetner’s malfeasance. 13. As the Court noted, all the money was converted by Fetner for his personal use and nothing towards the phantom “projects.” 14. Clearly, the Court weighed the overwhelming evidence of the Plaintiffs, the credibility (or lack thereof) of the Defendant, gave the case mature consideration and ruled. 15. Lastly, Fetner once again requests an award of $68,000.00 for 1,000 hours of work for Mr. Roszel, even though he claimed 700 hours in his Counterclaim. As the Court noted, there is no shred of documentary evidence to support this claim —a claim that seeks recompense for creating the self-serving documents and wrongfully converting $647,042.25 of Mr. Roszel's money to Fetner’s personal use. Further, Mr. Fetner vacillates between a contract claim and Quantum Meruit, which the Court knows cannot coexist. 16. In his Motion, Mr. Fetner attempts to rewrite the history of this litigation and adds in matters not in evidence at trial. The written Orders of the Court are the only history of the case that the Court may consider, and the evidence at trial is the only evidence the Court may reconsider. ACCORDINGLY, the Plaintiffs pray that the Motion to Reconsider Final Order filed herein by Defendant be denied.Printed rom 061 YS2 on Friday, June 02, 2017 9:45:42 AM Respectfully submitted, STEPHEN S, ROSZEL VII PER BANG-JENSEN and SUSAN ROSZEL HARTZ By Counsel & C. Gulick Virginia State Bar Number 16715 GULICK, CARSON & THORPE, P.C. 70 Main Street, Suite 52 P.O. Box 880 Warrenton, Virginia 20188 Telephone: 540-347-302 Facsimile: 540-347-9711 E-mail rgulick@gctlaw.com Counsel for Plaintiffs, CERTIFICATE OF SERVICE I hereby certify that on this / May of June, 2017, a true and correct copy of the foregoing Plaintiffs’ Response to Defendant's Motion to Reconsider Final Order was mailed by first-class mail, postage prepaid, to: Philip Jay Fetner, Plaintiff, Pro Se, 7476 Stoney Hill Lane, The Plains, Virginia 20198, # C. Gulick