Response to Motion Berenson

Plaintiff’s Response to Defendant’s Motion For Leave to Amend Answer and Counterclaim and Plaintiff’s Cross Motion For Leave to Amend Complaint.

 

Introduction & Counter Statement of Facts

  1. During the first week of XXX , Plaintiff  Person 1”), the owner of XTS Cloud LLC (“XTS”), discovered that Defendant  (“PERSON 1”) had been, among other things, embezzling money from the XTS Bank of America business checking account. Berenson is not and has never been an authorized signer on the account. 
  2. PERSON 1 has provided no evidence that he is an owner of XTS. His recent XXX bankruptcy filings show that he did not disclose any ownership interest in XTS or any other business entity in his financial disclosure before the San Francisco bankruptcy court. 
  3. On XXX, PERSON 2 filed a civil complaint against Berenson for breach of fiduciary duty relating to Berenson’s embezzlement, in addition to his theft of XTS company assets, which were moved without authorization to an uninsured, non-commercially zoned, storage unit at Berenson’s personal residence (evidence). 
  4. On around XXX PERSON 2 filed a criminal complaint against PERSON 1 with XXX(“LVMPD”) relating to the embezzlement of funds from the XTS Bank of America business checking account. PERSON 2 provided LVMPD with copies of checks that Berenson had made out to himself, signed, and cashed into his personal checking account (Exhibit A). 
  5. Immediately after being served with the civil complaint, PERSON 1 continued to make unauthorized charges on the XTS Bank of America business credit card (evidence), which he had stolen from the XTS office, located at XXX. Evidence of those unauthorized transactions were provided to LVMPD on  XXX via. Email (evidence)
  6. PERRSON 1 is a full-time employee and lead network administrator of United Layer LLC (“UL”), a web hosting company based out of San Francisco (Exhibit). 
  7. In XXX, acting as an agent of UL, offered to sell PERSON 1 web hosting services in UL’s San Francisco data center. PERSON 2 agreed, and paid Berenson $1,800 to host a virtual machine in UL’s data center, in addition to managing PERSON 2 Microsoft 365 account for his other business. The virtual machine was to be used to store PERSON 2 sensitive XXX client IRS files. 
  8. Berenson insisted that XXX pay with cash, since PERSON 1 was going through a chapter 7 bankruptcy proceeding, and he did not want to complicate matters for his employer UL. 
  9. PERSON 1 paid Berenson $1,800 cash, and a contractual relationship between PERSON 1 and UL was formed. The contractual relationship was formed between PERSON 1 and UL, and not Berenson, as Berenson was merely an employee acting on behalf of UL.  
  10. PERSON 1 virtual machine was hosted at UL’s San Francisco data center, located at XXX
  11. The virtual machine had an IP address of: XXX 
  12. The IP address XXX is registered to United Layer LLC (Evidence). 
  13. Berenson and UL maintained PERSON 1 virtual machine for several months (evidence).
  14. On PERSON 1 or UL revoked access to PERSON 1 virtual machine without explanation or notice, which contained sensitive client IRS files. This was in violation of the service agreement between PERSON 1 and UL. 
  15. In a telephone call on XXX told PERSON 1 that if he did not drop the lawsuit against PERSON 2, then PERSON 2 would not give PERSON 1 back his IRS client files, the virtual machine, or domain names belonging to PERSON 1 accounting practice.  
  16. In a telephone call on PERSON 1 informed PERSON 1 that if XXX did not drop the criminal complaint against XXX n, then XXX would sell XXX clients’ social security numbers, bank account numbers, and IRS tax files on the internet. 
  17. On PERSON 1 sent an email to Berenson’s attorney’s, requesting that PERSON 2 return PERSON 1 IRS client files (Evidence). The request was ignored by PERSON 2 and his attorneys. 
  18. On XXX sent an email to UL kindly requesting that the stolen virtual machine, IRS client files, and other stolen IT assets be returned (Evidence). This is the only communication between XXX and UL subsequent to the filing of the original Complaint. 
  19. On XXX received an email from XXX attorney, providing the administrative passwords to the stolen Microsoft Office 365 accounts that were being withheld by XXXX and UL. In the same email, XXX attorney XXXX  stated that “The domains have not been transferred anywhere and Jason can transfer them to you if you would like” (Evidence). This was in reference to Berenson and UL still being in possession of XXX  IT assets, and their desire to return said assets. 
  20. In a second email, on XXX attorney, XXX, stated that “Additionally, XXX is in the process of backing up the VM onto a USB drive and that will be mailed to you” (Evidence). This was in reference to Berenson and UL still being in possession of XXX virtual machine, and IRS client files, and their desire to return said assets. 
  21. The domain names and virtual machine data that XXX attorney stated would be mailed back to XXX, was never returned. As of the date of this filing, PERSON 1 and UL have still not returned PERSON 1 IRS client files, virtual machine, and two domain names belonging to PERSON 2 accounting practice.  
  22. On PERSON 2 received an email from PERSON 1 attorney, XXX, stating that PERSON 2 would return PERSON 1 stolen IRS files, virtual machine, domains, and administrative passwords if PERSON 1 agreed to drop the lawsuit and criminal complaint against PERSON 1 (Exhibit).
  23. In the same email on XXX attorney acknowledged that, in addition to being in possession of IT assets stolen from XXX accounting practice, that Berenson is indeed in possession of assets that had been stolen from XTS (Exhibit).
  24. To date, neither XXX, UL, or his attorney’s have provided any explanation for the continued withholding of PERSON 2 IT assets, or the XTS assets, beyond using them as a tool for leverage in negotiating a settlement. 
  25. PERSON 2 has acknowledged that he is keeping XTS’s company assets in a residential storage facility at his personal residence. The assets are not covered by insurance since they are not being properly stored in a commercial facility. Berenson’s actions show a reckless disregard and demonstrate breach of fiduciary duty.
  26. On the evening of PERSON 1 appeared at PERSON 2 personal residence intoxicated and made threats against PERSON 1, stating that if PERSON 2 did not drop the lawsuit, then he would ‘have serious problems’. Berenson waited outside PERSON 2 door for over 15 minutes making threats and being generally belligerent and unruly. Berenson also claimed that he only took the XTS money and assets because he has over $50,000 in IRS tax debts that were not discharged in bankruptcy, and that if PERSON 2 was his ‘real friend’ he would help him pay it off. This was witnessed by two of PERSON 2 guests. 
  27.  Since being served with the initial Complaint, PERSON 1 has made multiple telephone calls to members of PERSON 1 family, making threats of violence against PERSON 1, and demanding that PERSON 2 withdraw his valid criminal and civil complaints. 
  28. On PERSON 2, two days after being served with PERSON 2 Complaint, PERSON 1 deleted evidence relating to this case, including all XTS emails, company files, and financial records (Exhibit). Berenson did this to conceal his illegal activities and to destroy evidence. 
  29. This is not the first time that PERSON 1 has perpetrated fraud against PERSON 1. On PERSON 1 ,stated in a sworn affidavit, that on or around XXX stole XXX identity, including drivers license copy, and social security number, and used it to obtain a lease for equipment from XXX Capital LLC, a leasing company located in XXXX County XXX. In the affidavit, PERSON 1 admitted to forging XXX signature in order to obtain approval for a commercial lease application (Exhibit). 
  30. In the abovementioned case, PERSON 1 was found guilty and ordered to pay an almost $20,000 civil judgement to XXX Capital LLC (Exhibit) including replevin for the stolen machine that Berenson initially refused to return to XXX Capital. 
  31. The case against PERSON 1, which was initiated by Geneva Capital LLC, in XXX, is almost identical to this current case, whereby; PERSON 2 has attempted to illegally withhold business assets that do not belong to him. There is a clear pattern of behavior here. 
  32. After the Plaintiff in the aforementioned case, XXX Capital LLC, discovered PERSON 1 fraud, they dismissed their complaint against XXX with prejudice and apologized from wrongfully brining suit against XXX (Evidence).
  33. Berenson has shown a systematic pattern of malicious behavior against PERSON 2, which includes fraud, identity theft, theft of personal assets, theft of business assets, threats, and intimidation. 
  34. In PERSON 1 Answer to Complaint (reference), he claims that he is indeed a part owner of XTS since he formed the LLC with XXX in May of XXX. However, in the financial disclosure of PERSON 1 recent chapter 7 bankruptcy proceedings during XXX– PERSON 1, (Exhibit), Berenson failed to disclose to the bankruptcy court that he had any financial interest in XTS or any other business interests. Berenson’s concealment of assets from the San Francisco bankruptcy court further demonstrates PERSON 1 willingness to lie under oath, and to provide false and misleading statements to the court when it suits him. 
  35. In prior court proceedings during XXX, PERSON 2 claimed that he was a resident of XXX. In XXX answer to PERSON 1 Complaint, XXX once again claimed that he was a resident of XXX. In Berenson’s recent PERSON 2 chapter 7 bankruptcy filing, which took place in San Francisco, Berenson claimed he was a resident of California in order to take advantage of San Francisco’s higher income limits, so that he could more easily obtain a chapter 7 discharge. This again shows Berenson’s willingness to lie under oath and commit fraud when it suits him, in addition to venue shopping.
  36. In Berenson’s Answer to PERSON 2 Complaint, Berenson denies using a stolen XTS check book to write and cash checks to himself. person 1 has shown through evidence (Exhibit) that Berenson did indeed write and cash checks to himself using a stolen XTS check book, and that both the civil and criminal complaints are warranted. 
  37. Person 1 has also shown that Berenson continued to make personal charges using the XTS business credit card after he was served with the initial Complaint (evidence).
  38. Any and all statements made by Ezuma regarding Berenson, are accurate and based on admissible evidence. 

 

Legal Argument

(Provide legal argument for denying the motion to amend answer. Possible reasons include, the motion was filed in bad faith, and it is futile due to the overwhelming evidence against person 2. Cite case law). Defendant has failed to substantiate any of the allegations made in their motion or provide any evidence whatsoever beyond person 2 affidavit. person 1 has also shown a pattern of perjury, and lying in court filings, which person 1 has substantiated with evidence. Berenson has failed to show that any statements made by person 1 were false, or that any damages have been incurred. All statements by person 1 have been substantiated with tangible evidence. person 1 has a contractual relationship with United Layer LLC and is entitled to communicate with United Layer in regard to services which were purchased by person 1 denies making any threats. XXX has failed to demonstrate how Person 1 actions constitute harassment or provide any evidence thereof. 

 

Cross Motion For Leave to Amend Complaint

Also, please file cross motion for leave to amend the original complaint. Please add to the original complaint, replevin, XXX equivalent (return of XXX virtual machine, domain names, XTS cloud assets, and XTS cloud credit cards or check books in Berenson’s possession).

 

Additionally, please add to the cross motion an amendment to enjoin a new party, United Layer, LLC as a defendant. 

 

Additionally, please add to the cross motion an amendment for a temporary restraining order, preventing Berenson from accessing XTS Cloud’s office location, XXX office location, XXX personal residence, or making contact with XXX, his family or friends. 

 

Thanks!

 

 

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