“This case is either going back to district court on remand for further proceedings to determine if John Dwight Wanken and Raymond James committed fraud at FINRA arbitration or it is going to the Supreme Court on a question of...due process," said Wanken.
Austin, Texas (PRWEB) October 14, 2011
Petitions for a Panel Rehearing and Rehearing En Banc have been filed with the Fifth Circuit of the United States Court of Appeals regarding an arbitration case that was before the Financial Industry Regulatory Authority (FINRA), the United States District Court for the Northern District of Texas and the Fifth Circuit, Case Number USCA5 11-10219.
In September 2011, the Fifth Circuit panel affirmed what the Petitioner, Chris Wanken, has argued was a flawed order of summary judgment from the district court.
Wanken has stated to the district and appellate courts that there are unresolved issues of material fact that demand discovery and trial regarding allegations that the Defendants, John Dwight Wanken and Raymond James Financial Services, Inc., procured the favorable arbitration award through fraud in a complex scheme he alleges involved perjured testimony, subornation of perjury, spoliation of evidence and fraud upon the court.
Petitioner’s briefs aver that during post-arbitration investigations conducted by the Texas Workforce Commission (TWC) and the Internal Revenue Service (IRS), John Dwight Wanken contradicted every material statement that he and Raymond James made at FINRA arbitration.
Petitioner has argued that statute and case law demand the district court’s order of summary judgment be vacated and the case remanded for further proceedings to determine whether John Dwight Wanken and Raymond James procured the favorable arbitration award through fraud.
In his petitions, filed on October 10, 2011, Petitioner averred that the Fifth Circuit contradicted precedent of the court, all other circuit courts and the United States Supreme Court with regard to summary judgment motions where there are unresolved issues of material fact.
“I believe that the Fifth Circuit’s opinion is flawed on several counts -- its statement of the facts of the case, its contradiction of statute regarding summary judgment and deviation from precedent in every court in this country on summary judgment,” stated Chris Wanken. “Worse yet, the Fifth Circuit appears to have acted as a trier of fact regarding statements John Dwight Wanken made in post-arbitration testimony and whether these statements contradicted both Defendants’ FINRA arbitration testimony. That is the duty of the district court, not the appellate court.”
Evidence regarding the alleged contradictory post-arbitration testimony provided by John Dwight Wanken to the TWC and IRS has not been reviewed by any court because, as Petitioner has argued to the district court and Fifth Circuit, the TWC and IRS require a subpoena for the recordings, transcripts and affidavits from investigations of John Dwight Wanken conducted between March 2010 and April 2011.
“By affirming a flawed order of summary judgment in spite of clear averment of outstanding issues of material fact that demand resolution in discovery and trial is an egregious violation of my due process rights,” Wanken said. “No court has reviewed these documents yet. The documents remain unreviewed and the issues of material fact remain unresolved.”
The panel of judges is expected to rule shortly on the petition for rehearing. It may issue a revised opinion or deny the panel rehearing. If panel rehearing is denied, Wanken has requested a rehearing en banc, which would involve the entire Fifth Circuit considering the request for a rehearing to determine whether the opinion was flawed and if it contradicted statute and precedent regarding summary judgment.
“This case is either going back to district court on remand for further proceedings to determine if John Dwight Wanken and Raymond James committed fraud at FINRA arbitration or it is going to the Supreme Court on a question of whether the district court and Fifth Circuit denied due process by ordering and affirming summary judgment in light of multiple unresolved issues of genuine material fact regarding allegations of fraud at arbitration,” said Wanken.