NEWTON vs FERMOILE & KAHL

STATEMENT OF FACTS

1. On September 17, 2012, Michael P. Rivait (“Rivait”), a builder,

purchased the home1 whereat Plaintiff Jeffrey Stewart Newton (“Newton")

was residing as a federally protected tenant.2

2. On or about October 21 through 23, 2012, Rivait permitted

Defendant Matthew Paul Fermoile (“Fermoile") to “scrap” junk, garbage and

dilapidated plumbing fixtures from said home without Newton’s consent,

knowledge or permission.

3. Rivait has admitted that he exposed Fermoile to Newton’s prized,

hand and custom made, extremely large Waterford 1200 Racing Bicycle

(“Waterford Bicycle"), which was stationed in Newton’s bedroom. A

photograph of Newton’s Waterford Bicycle is attached hereto and labeled as

Exhibit 1. Rivait claims that Fermoile inquired about Newton’s Waterford

Bicycle and that Rivait did not give Fermoile permission to “scrap” or

otherwise remove Newton’s Waterford Bicycle from the Premises.

4. At all times relevant, no other persons or entities had access to

the Premises.
1 208 Willis, Royal Oak, Michigan 48067 (“Premises”).

2 Newton rented a portion of the basement. The main portion of the house
was occupied by Richard E. Ferrette, who lost the home to the bank in
foreclosure. Ferrette was a classic hoarder, and the home was filled to the
brim with hoarder’s bounty, thereby thwarting random thieves, who would
be unable to find items of value amidst the voluminous clutter. Newton was
a federally protected tenant under the Federal Protecting Tenants at
Foreclosure Act, 12 U.S.C. §5201 et seq.
 5. At all times relevant, no evidence that the Premises were broken

into exists. See October 24, 2012 Royal Oak, Michigan Police Report No. 12-

29488, attached hereto and labeled as Exhibit 2.

6. Notwithstanding the foregoing, on on October 23, 2012,

Fermoile removed Newton’s Waterford Bicycle from the Premises and

converted same to his own use and benefit.

7. According to Court records at the 37th District Court (Warren,

Michigan) and this Court, Fermoile’s legal residence is 2273 Hamata Street,

Ferndale, Michigan 48220 (“Hamata”).3

8. Hamata is owned by Fermoile’s mother, Penelope Scott Kahl

(Fermoile). See Realtor.com listing, attached hereto and labeled as Exhibit

3.

9. Upon information and belief, Newton’s Waterford Bicycle is

currently stored at Hamata.

10. Upon information and belief, Kahl currently resides at Hamata

and exercises dominion and control over Newton’s Waterford Bicycle there.

3 Fermoile is a criminal Defendant in both Courts. His Court Case No. in the
Oakland County Circuit Court is 13-244463-FH (Judge Leo Bowman). He
has an active hold at the Oakland County Jail, where he is currently housed
as inmate no. 128374. Hamata is listed as his residential address for said
case. He is being held on a $50,000.00 cash/surety bond (no 10%) on a
controlled substance charge, 4th or subsequent offense and faces the
appropriate habitual offender sentence enhancement upon conviction. He
was bound over from the 52-04 (Troy, Michigan) District Court on Case No.
13-000094-FY to Circuit Court.
 11. Upon information and belief, Kahl, at all times relevant, is

abundantly aware that Fermoile is utterly financially incapable of purchasing

an expensive bicycle such as Newton’s Waterford Bicycle.

12. At all times relevant, Kahl was actually aware that Fermoile was

scrapping the Premises, and appeared thereat frequently.

Count One: Claim And Delivery

13. Plaintiff incorporates all of the above paragraphs, as though each

one were fully set forth herein.

14. Newton is lawfully entitled to the following described property,

with an estimated replacement value of $7,361.92: Hand and custom made

Waterford 1200 Road Racing Bicycle, 66 centimeter frame (fitted for a 6‘6“

rider), mint condition, all Shimano Dura Ace componentry, with accessories,

all as more fully set forth herein supra. See Replacement Cost Worksheet

and Price Lists with Order Forms, attached hereto and labeled as Exhibit 4.

15. The property claimed is an independent piece of property.

16. Newton’s basis and reason for claim is as set forth, supra.

17. Newton’s damages due to M.P.R. Fermoile/Kahl’s unlawful taking

or detention are set forth, supra.

18. Newton claims Judgment for the immediate return of the

described property or, in the alternative, for the value of property, and also

for damages as more fully set forth, supra.

 19. Newton has suffered consequential damages including, but not

limited to, expenses related to the wrongful conversion of his Waterford

Bicycle, including, but not limited to, bicycle searching expenses,

replacement transportation expenses, bicycle shopping expenses, loss of use

of bicycle, loss of enjoyment of bicycle and loss of health and exercise value

of bicycle, all as more fully set forth in the attached Exhibit 4.

WHEREFORE, Plaintiff, Jeffrey Stewart Newton, respectfully requests

that this Honorable Court enter its Order, awarding him:

1. Final Judgment returning Newton’s Waterford Bicycle;

2. Immediate possession of Newton’s Waterford Bicycle pending
Final Judgment pursuant to MCR 3.105(E)(1) or requiring Fermoile and/or
Kahl to post bond in at least $14,273.84 pursuant to MCR 3.105(E)(4)(b)(i);
3. In the alternative, actual damages for the full replacement cost
of Newton's Waterford Bicycle, in an amount no less than $7361.92;
4. Actual consequential damages as set forth in Exhibit 4;
5. Costs as determined by the Court;
6. Actual attorneys fees; and
7. Whatever other and further the Court deems advisable in the
Premises.

Count Two: Statutory and Common Law Conversion

20. Newton incorporates all of the above paragraphs, as though each

one were fully set forth herein.

 21. Fermoile wrongfully removed Newton's Waterford Bicycle from

his Bedroom at the Premises and thereafter stole it, embezzled it, or

converted it to his own use.

22. Kahl wrongfully bought, received, possessed, concealed, or aided

in the concealment of Newton’s Waterford Bicycle when she knew or

reasonably should have known that Newton’s Waterford Bicycle was stolen,

embezzled, or converted.

23. Fermoile and/or Kahl are guilty of common law conversion of

Newton’s Waterford Bicycle.

24. Fermoile and/or Kahl are guilty of statutory conversion of

Newton’s Waterford Bicycle.

25. Pursuant to MCL §600.2919(a)(1)(a), Fermoile is liable to

Newton for three (3) times the amount of actual damages sustained, plus

costs and reasonable actual attorney fees.

26. Pursuant to MCL §600.2919(a)(1)(b), Kahl is liable to Newton for

three (3) times the amount of actual damages sustained, plus costs and

reasonable actual attorney fees.

27. Fermoile/Kahl have caused Newton injury, damages, loss, and

harm for which he is entitled to recover in monetary damages in this

Proceeding. Fermoile/Kahl are liable for all of Newton’s damages, costs and

expenditures associated with its statutory and common law conversion,

including, but not limited to, actual damages (including, but not limited to,
loss of Newton’s Waterford Bicycle), exemplary damages pursuant to its

statutory and common law conversion, consequential damages, costs and

disbursements (including reasonable actual attorney fees), all to be

determined at trial.

28. Newton’s injuries were a direct consequence of Fermoile/Kahl’s

statutory and common law conversion.

WHEREFORE, Plaintiff, Jeffrey Stewart Newton, respectfully requests

that this Honorable Court enter its Order, awarding him:

1. Actual damages for full replacement cost of Newton’s Waterford

Bicycle, in an amount no less than $7361.92;
2. Treble actual damages of the replacement cost of Newton’s
Waterford Bicycle, in an amount no less than $22,085.76;
3. Consequential damages for all other expenses related to the
wrongful conversion of Newton’s Waterford Bicycle, including, but not limited
to, bicycle searching expenses, replacement transportation expense, bicycle
shopping expenses, loss of use of bicycle, loss of enjoyment of bicycle and
loss of health and exercise value of bicycle, all as more fully set forth in
attached Exhibit 4;
4. Treble consequential damages;
5. Exemplary damages;
6. Costs and disbursements, including reasonable actual attorneys
fees; and
7. Such other and further relief as the court may deem just, proper
and equitable in the premises.
Respectfully submitted,

_____________________
Jeffrey Stewart Newton
Plaintiff In Pro Per
P.O. Box 1436
 Royal Oak, MI 48068
(248) 694-1400
DATED: February 11, 2013