Major Court Update June 18, 2009
Today, several key motions were filed by Michael's defense to both respond to and oppose rachael's claims. A summary of the VERY REVEALING claims as made by Michael's attorneys is included below:
- On December 27, 2007 both Michael Jackson and rachael bower entered into a "Payment and Release Agreement" whereby rachael acknowledged that she was "not owed any additional monies under any other agreement from the beginning of time until December 27, 2007." As such, Michael's team claims that "any monies allegedly owed under the May 30, 2006 agreement between the parties were extinguished under the Payment and Release."
- The defense notes that this Payment and Release form is, not surprisingly, "completely and conspicuously absent from any of Plaintiffs’ pleadings and filings with this Court."
- More legal jargon which ultimately reiterates their stance that rachael's claim is legally "not only without merit, but is frivolous."
- A deposition from Londell McMillan confirmed that rachael bower, as part of the Payment and Release Agreement she signed into in 2007, was paid $488,820.05 and was fully satisfied, with total acknowledgment that NO OTHER MONEY was owed to her under ANY past agreements. This makes it clear why she avoided mentioning that release agreement in her complaint.
- The actual payment and release agreement states, in part:
Mr. Jackson shall render a payment made payable to you [Plaintiffs] in the amount of four hundred and eighty-eight thousand, eight hundred and twenty dollars and five cents ($488,820.05) as full and final satisfaction of any and all monies, known or unknown, to be owed to you by the Jackson Parties with respect to any and all agreements whether verbal or written that you may have entered into with the Jackson Parties from the beginning of time until December 27, 2007 (the "Payment").
Except as otherwise set forth herein, in consideration of the Payment and other consideration provided herein, you [Plaintiffs] on behalf of yourself, your respective predecessors in interests, successors and assigns, representatives, partners, parents, subsidiaries, affiliates, members, officers, directors, agents, attorneys, employees, insurers, donees and licensees and each of them as applicable, do hereby absolutely, fully and forever release, relieve, waive, relinquish and discharge the Jackson Parties and each of their respective predecessors in interest, successors and assigns, representatives, partners, parents, subsidiaries, affiliates, members, officers, directors, agents, attorneys, employees, insurers, donees and licensees and each of them as applicable of and from any and all manner of action or actions, suits debts, liabilities, demands, claims, obligations, costs, expenses, sums of money, controversies, damages, accounts, reckonings, and liens of every kind or nature whatsoever, whether known or unknown, suspected or unsuspected which you shall or may have, own or hold, or which they at any time heretofore had owned or held against the Jackson Parties by reason of, arising out of or in connection with any matter whatsoever.
This agreement contains the entire understanding between and among the parties hereto and supersedes any and all prior understandings, agreements, representations, covenants, warranties, and releases, express or implied, written or oral, between any of the parties...
The defense argument goes on to describe how the court will have to uphold the agreement put in place by rachael and Michael Jackson in 2007, and how her claims exist based on "hearsay lacking any evidentiary support." Also, information and past court cases are cited as to why she cannot freeze any of Michael Jackson's assets or accounts without first obtaining a judgment, which again would be very unlikely given the release agreement acknowledging that she was owed nothing more regardless of any past agreements.
In conclusion, with this BINDING AGREEMENT now revealed and on the table, rachael has "no viable case against the Jackson Parties and are therefore unlikely to succeed on the merits."
Reason for the delay in responding
In addition to the bombshell information I mentioned previously, Michael's side also explained the delay in response, and why the original notice of default should be tossed now that a formal response has been made within the allocated time the court provided.
According to the claim, Michael Jackson only became aware of this case on June 7th whereby he quickly acted to appoint the legal team he now has in charge of it. He was only informed of it through Frank Dileo who learned of it via the media, and never through a formal summons. rachael alleged that a summons was given to a security guard and to Dr. Tohme Tohme, but none of them actually made their way to Michael. Dr. Tohme Tohme no longer has any personal nor professional association with Michael Jackson, nor did he at the time the original summons was served and he did not in any way communicate the information to Michael.
In addition, the lawyers state that "because of the existence of a valid and binding payment and release agreement between the parties, this action came as a complete surprise to [Michael Jackson]... Despite rumors and innuendos that may have surfaced before that date, Mr. Jackson did not conceive any lawsuit would be possible based on the payment and release agreement executed by rachael K. bower."
Michael Jackson submitted a signed declaration to these facts.
P.S., Also revealed and confirmed was the official termination of Dr. Tohme Tohme, which went into effect May 5th and disbarred him from having any subsequent affiliation with Michael Jackson or any of his numerous established entities (including MJJ Productions and the newer MJJ Kingdom).
The defense is also calling for the dismissal of rachael's complaint based on the agreement she signed into which prevents her from profiting any further from Michael Jackson and contradicts her very claim.
In fact, paragraph seven of the Payment and Release Agreement below, makes it absolute certain that she was fully aware of the agreement and all of its terms and that she had the ability to have an independent legal counsel review the entire agreement with her. So, any such excuse that she wasn't aware of what she signed would fail in court.
"7. You acknowledge that (a) you have been represented (or had an opportunity to be represented) by independent legal counsel of Your own choice throughout all negotiations that preceded the execution of this Agreement and that you have executed this Agreement with the consent and on the advice of such independent legal counsel or waived the right to do so; (b) you have carefully and thoroughly read this Agreement in its entirety and fully understand its terms and effects, that the terms hereof are fair and reasonable; (c) you have executed this Agreement willingly and without acting under any duress; and (d) that you shall be bound hereby, in all respects."
In going over the Payment and Release Agreement again, the only item that she could even remotely try and fall back on would be a clause cited from California Civil Code Section 1542. However, even though a default right does exist "not to release existing claims of which you are not now aware of and do not suspect to exist" she legally can't pursue that either, as she also agreed to voluntarily waive that right by signing the agreement! See below:
rachael bower & Michael Jackson Payment and Release Agreement Excerpt
5. Waiver of Rights Under California Civil Code Section 1542. You understand and agree that the release set forth above shall extend to any and all claims related to the matters described above, of every nature and kind whatsoever, whether such claims are known or unknown, suspected or unsuspected, and any and all rights under Section 1542 of the California Civil Code ("Section 1542") within the scope of this release set forth above are expressly waived. You acknowledge that you have read Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF THE EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
You also understand that Section 1542 gives you the right not to release existing claims of which you are not now aware of and do not suspect to exist, unless you voluntarily choose to waive this right. Even though you are aware of this right, you nevertheless hereby voluntarily waive the right described in Section 1542, and elect to assume all risks for claims that now exist in your favor, known or unknown, arising from the subject matter of the release set forth above, and expressly waive any rights under any other statutes or common law principles of similar effect.
Londell McMillan has long been in possession of the Payment and Release Agreement, it is now in the hands of court and I have a copy as well. It is three pages long and is signed by both rachael bower and Michael Jackson. From the looks of it, Michael was working closely with McMillan well after rachael was released, he initially faxed McMillan the Payment and Release Agreement in February 2008 (a couple months after it was signed). So McMillan appears to have been the one keeping tabs on all of Michael's business dealings and so on for some time, and he is the man best suited to explain the actual situation between MJ and rachael as he already has.
The agreements and contracts that Michael himself signed in 2006 were far more dangerous, this was a countermeasure to help ensure that she didn't abuse those agreements after being dropped from Michael's team--which she still attempted to do by selectively forgetting to mention that agreement in her complaint.
Thanks to TSCM