Richard Forcum This Oregon lawyer lied to a judge or court.

Judy Burgeis

Contact_WorkPhone:                        (360)736-5558

Contact_Email:                            judyburgeis@msn.com

facts:

History and Statement of the Case

Nature of the Proceedings:

      The case began with the action of the Respondent, Patricia

Schiewek, requesting a partition of property signed over by deed in the

County of Deschutes, to the Heirs of the Decedent by the Decedent,

Gloria R. Schiewek, whom passed on February 9, 2003.  The Civil case

#03-CV-0213-MA, requested a partition of the property transferred by

deed to the heirs that was transacted in 2002.  The property located

at 934 W. Cascade St. in Redmond Oregon was owned in Joint

Tendency by the Respondent, Thomas Schiewek, Respondent, Patricia

Schiewek, and the Appellant/Petitioner, Judy Burgeis, (aka: Judith

Burgeis- Cottrell when the deed was transferred), at the time of the

Decedent’s death on February 9, 2003.  The civil case was filed in

March of 2003.

The Respondent, Thomas Schiewek, and Petitioner had previously opened a

probate case in Deschutes County on February 19, 2003 listing the

Decedent’s worldly goods at the time of her death and signed an

affidavit with the court at the time, Case #03-PS-0019-MA,

Page 1, Appellant’s Petition for Review

ORS 114.555 Effect of failure to appoint personal representative. If a personal representative is not appointed within four months after the filing of the affidavit authorized by ORS 114.515, the interest of the decedent in all of the property described in the affidavit is transferred to the person or persons shown by the affidavit to be entitled thereto, and any other claims against the property are barred except as provided in ORS 114.540, 114.545 and 114.550. [1973 c.710 §5; 1977 c.239 §4; 1989 c.228 §10]

Both the Respondent, Thomas Schiewek, and Appellant/Petitioner requested

from the Respondent, Patricia Schiewek, the original Will of the

Decedent to file in the probate case and were denied the Will.

(The Original Will was in the possession of the Respondent, Patricia

Schiewek throughout the whole process of the pre-trial hearings

and she never once filed it in the probate cases as required by law).

On July 3, 2003, The Deschutes County Probate Court Administrator,

Mary Fagan, appointed Richard Forcum as Administrator to the estate

of the Decedent, Gloria Schiewek, through letters of Administration

under ORS 113.085 (d), as a creditor. Forcum claimed the Decedent

died intestate, or without a will at the time he was appointed by the court.

The Respondent, Richard Forcum was claiming the Decedent owed

federally funded monies for Medicaid under the Oregon Health Care

Plan back to the State of Oregon under ORS 114.105 (2). He set out to have

the said property deed of the property of the heirs set aside as he was

Page 2, Appellant’s Petition for Review

claiming the Decedent did not give “adequate consideration” when she

tranferred the property deed to her children. (ORS 114.105. (5) clearly states

that the State would be entitled if the property was in the Decedent’s name

“at the time of death”.  The said property did not belong to the Decedent

at the time of her death.                                              

Appellant/Petitioner never received any of the notices sent by Forcum, as

they all went to the Respondent’s, Patricia Schiewek’s, address.

The Deschutes County Probate court was requesting Respondent,

Thomas Schiewek, and Petitioner file the Original Will in Case

03-PS-0019-MA, even after Richard Forcum was appointed by

the court as representative to the Decedent’s estate in July of 2003.

At that time, there were two open probate cases concerning the

Decedent’s, Gloria Schiewek’s estate open in the probate court,

Case #03-PS-0019-MA and Case #03-PB-0088-MA.

On August 7, 2003 there was a pre-trial conference in case #03-CV-0213-

MA in which the Respondent, Patricia Schiewek nor her attorney showed

up. Respondent, Richard Forcum was there and stated he was representing

the Respondent, Patricia Schiewek and her attorney, Stanley Clark, -It was

their pre-trial hearing and they did not even bother to attend.

Page 3, Appellant’s Petition for Review

Appellant/Petitioner then filed a motion to dismiss the case for failing to

Appear,(which was quickly dismissed by Judge Adler), and Richard Forcum

stated he “Misspoke”.  Appellant at that time thought Forcum was

representing the Respondent, Patricia Schiewek, due to not receiving any

notice by him in any case.

In August of 2003, in case #87FL0026TM, Richard Forcum filed a lien upon

said property of the heirs by and through the Oregon Department of Justice

for child support monies owed by the Respondent, Thomas Schiewek,

This directly effected both state departments, the Dept. of Human

Services and the Department of Justice, by Forcum, as they adversely

effected the judgment of each other in court. (Appellant’s opinion is that this                                                             

was a breach of the Oregon Professional Code of Conduct).

Appellant/Petitioner never received any notice of the lien attachment in case

#87FL0026TM either, appellant was entitled as one third (1/3) owner of said

property that the lien was placed against.

In October of 2003, Respondent Richard Forcum intervened in the civil case

concerning the partition of the said property in case #03-CV-0213-MA,

claiming to be the representative of the estate of the Decedent and

petitioning the court to set the said property deed aside under ORS

Page 4, Appellant’s Petition for Review

114.105 (2).  Respondent, Thomas Schiewek, and Appellant were

never sent the Motion to Intervene, as it only went to the Respondent,

Patricia Schiewk and her attorney, Stanley Clark, (EX-1). 

Appellant was unaware that the probate case #03-PB-0088-MA was open

until October of 2005 when Respondent, Richard Forcum, sent notice that

Appellant filed in the wrong case for wages and expenses for the care of the

Decedent, my mother, Gloria Schiewek. The Respondent’s, Patricia

Schiewek’s attorney, Stanley Clark, was aware of this open probate case as

was the Respondent, Patricia Schiewek.

However, both parties chose not to file the Will and let the Respondent,

Richard Forcum, maintain the Decedent, Gloria Schiewek, died intestate.

Thus, falsifying information to the courts. Appellant believes this is Civil

Conspiracy, as both Respondent’s Richard Forcum and Patricia Schiewk

became one half (1/2) owners of said property. This is chargeable under

31 USC 3730.

Appellant had a right, as owner to the property and appointed representative

to the estate of the Decedent, Gloria Schiewek, according to her last will and

testament, to notice of the debt prior to Forcum’s intervention under 31 USC

3730.

 Appellant’s Constitutional rights being

violated as a property owner in the State of Oregon under the Oregon

Constitutional provision: Article XV, Section 10 (4) (a).  There was also a

lack of prior assignment to the property under ORS 41.580 (f) & (g),

and 42 U.S.C. § 1396a(a)(25)(H) plus 42 U.S.C. § 1396k(a)(1) requiring

Page 6, Appellant’s Petition for Review

that a beneficiary assign to the State certain rights to payment from third

parties.

On July 7, 2008, The Respondent, Patricia Schiewek, and her attorney,

Stanley Clark petitioned the court to have the Writ of Garnishment removed

in case #87FL0026TM, by setting back the property title to a time where

only the Respondent, Patricia Schiewek and the Decedent owned the

property, (as if the Decedent never transferred the deed in the first place),                                              

and Judge Sullivan granted the removal. Under 105.210 (2), the Oregon

Dept. of Justice would have had to give consent for the removal.

Respondent, Patricia Schiewek nor her attorney presented no such evidence

to support the removal of the Writ of Garnishment attached by Respondent,

Richard Forcum. However, Richard Forcum agreed in court to have the Writ

removed without prior authorization from the Oregon Department of Justice

to the best of Appellant’s knowledge.

Nature of the Judgment:

      The trial court entered a judgment denying the Appellant/Petitioner

the right to represent the estate of the Decedent as a legal heir under ORS                                                  

113.085 (1) (a) at the September 6, 2006 Motions hearing.  Appellant’s

Motion to be appointed, as set forth in the Decedent’s last Will and

Page 7, Appellant’s Petition for Review

Testament, should have been granted.

The Court denied Appellant’s right to Appellant’s property, as it was

unlawfully taken by Richard Forcum, in the name of the State of Oregon

Department of Human Services. The court again denied the Appellant the

right to represent the estate of Decedent after Appellant/Petitioner

gained new evidence, and learned the Respondent, Richard Forcum,

knew the Decedent had a will when appointed, (a copy filed in the probate

case #03-PS-0019-MA), and Forcum listing that probate case in the Writ of

Garnishment for Child Support.  Thus, due to Forcum’s negligence,

falsifying the Decedent died without a will early on, he should have been

removed as the Decedent’s Representative as he failed to do the last bidding

of the Decedent according to her Last Will and Testament.

Basis of Appellant Jurisdiction:

      Appellant Jurisdiction is based upon ORS 19.205 (3).

Effective Date for Appeal:

      The judgment being appealed from case #03CV0213MA was entered

Oct. 4, 2006, and notice of appeal was filed in the court of appeals on Oct. 8,

2006, within 30 days.

The appeal was based on the removal of Appellant’s property and

Page 8, Appellant’s Petition for Review

denial of Appellant’s position as Representative of the estate of Gloria R.

Schiewek, as a legal heir and appointed Representative according to the

Decedent’s Last Will and Testament.

Because it involves a public body, specifically the Respondent, Richard

Forcum, doing business as the Oregon Department of Human Services

and the Oregon Department of Justice the case is protected under

ORS 14.165 (6) and the case should not be disposed of.

Judgment entered September 2, 2008, dismissing Appellant’s Petition for

Appointment of Representative to the Estate of Gloria Schiewek after

learning of the perceived misconduct of the court appointed attorney,

Richard Forcum. Appellant appealed on de novo Review within 30 days.

Questions to be Presented on Appeal:

      1).   Whether the court erred in appointment of Richard Forcum

            as Representative to the estate of Gloria Schiewek, as there

      was a probate case, (03PS0019-MA),  already opened on the

Decedent’s estate at time he was appointed, and had the

            4 months to contest Appellant’s appointment expired?

            Rules and laws relied on:

ORS 114.540 (1) and ORS 114.555.

Page 9, Appellant’s Petition for Review

2).   Whether the court erred in denying Appellant appointment to

      the Decedent’s estate?

      Rules and laws relied on:

ORS 113.085 (1) (a).

3).   Did the court appointed representative failed in his duties

to provide proper notice to Appellant under ORS 183.415 – Notice of right to hearing and 31 USC 3720D prior to the

removal of Appellant’s property by and through the Oregon

Department of Human Services under ORS 114.105 (2)?

Rules and laws relied on:

 ORS 183.415 – Notice of right to hearing and 31 USC 3720D

      4).   Was the State of Oregon Dept. of Human Services entitled

to take the Appellant’s property as a third party without

assigning prior rights to have the property deed set aside under

the Federal Medicaid provisions and pursuant to 42 USC 1396?

Rules and laws relied on:

42 U.S.C. § 1396a(a)(25)(H) and 42 U.S.C. § 1396k(a)(1),

(Ahlborn v. Arkansas Dept. of Human Services, 397 F.3d 620,

622 (8th Cir. 2005).

      5).   Was the property that was removed by the Respondent,

Page 10, Appellant’s Petition for Review Richard Forcum protected from removal, having already

been vested in heirs according to the Decedent’s Will prior to

any assignment?

Rules and laws relied on:

ORS 112.345 and ORS 112.355, and ORS 114.215 (1) (a) Devolution of and title to property.

ORS 114.215

(1) Upon the death of a decedent, title to the property of the decedent vests:

(a)In the absence of testamentary disposition, in the heirs of the decedent, subject to support of spouse and children, rights of creditors, administration and sale by the personal representative; or

      6).   Did the Oregon Department of Human Services fail to follow

the Medicaid Estate Recovery Procedures under Title 19, Sec.

1912?

U.S. Department of Health Procedural Rules governing Medicaid Estate Recovery

Under the U.S. Department of Health and Human Services Medicaid Estate Recovery, “Recoveries may not exceed the total amount spent by Medicaid on the individual’s behalf at or after age 55. Nor may they exceed the amount remaining in the estate after the claims of other creditors against the estate have been satisfied in the order of payment of debt delineated by state law”.

Recipient protections in Medicaid estate recovery:

 The State should notify Medicaid recipients about the estate recovery program during their initial application for Medicaid eligibility and annual re-determination process.

 The State must notify affected survivors about the initiation of estate recovery and give them an opportunity to claim an exemption based on hardship.

Page 11, Appellant’s Petition for Review  The State must establish procedures and criteria to waive recovery if it would cause undue hardship

Rules and laws relied on:

42 USC 1396k and Title 19, Sec. 1912

ASSIGNMENT OF RIGHTS OF PAYMENT

Sec. 1912. [42 U.S.C. 1396k] (a) For the purpose of assisting in the collection of medical support payments and other payments for medical care owed to recipients of medical assistance under the State plan approved under this title, a State plan for medical assistance shall—

(1) provide that, as a condition of eligibility for medical assistance under the State plan to an individual who has the legal capacity to execute an assignment for himself, the individual is required—

(A) to assign the State any rights, of the individual or of any other person who is eligible for medical assistance under this title and on whose behalf the individual has the legal authority to execute an assignment of such rights, to support (specified as support for the purpose of medical care by a court or administrative order) and to payment for medical care from any third party;

      7).   Should Appellant been denied discovery by Respondent’s

            Patricia Schiewek and Richard Forcum prior to the trial

September 6 & 7, 2006 concerning the probate and civil cases?

Should the trial be deemed a mistrial for failure to disclose

Discovery, as Appellant’s Motions to Compel Discovery were

discarded by the court.

Rules and laws relied on:

ORS 183.413 (2) (f) and ORS 183.460

Page 12, Appellant’s Petition for Review

      8).      Should Appellant’s right to the said property located at 934 W.

Cascade St. in Redmond, Oregon be protected under the

Oregon Constitution, Property Protection Act of 2000?

Rules and laws relied on:

Oregon Constitution, Section 10, Article XV

Summary of the Arguments:

Under ORS 183.480 (3), Judicial review of agency orders:

The Oregon Dept. of Human Services has proceeded without probable cause, Appellant has suffered substantial and irreparable harm, and will continue to suffer harm if interlocutory relief is not granted.

Appellant supports a granddaughter that has suffered due to the agency taking Appellant’s rental income.

Appellant was denied due process of law prior to having Appellant’s property removed. Appellant’s Constitutional Rights have been violated.

Richard Forcum, (dba: as State of Oregon Department of Human Services), failed in his duties as court appointed representative to the estate of Gloria R. Schiewek, therefore, he should be removed and the cases involved with the estate should be deemed a mistrial due to the failure to provide Appellant with Notice and Discovery.

This is an important case, as it decides if an attorney can legally be appointed to an estate of an individual with a will and take possession of the heirs property as an acting creditor. It decides if an attorney can legally open a probate case claiming an individual died without a will when a copy was filed in an already open probate case.

RICHARD FORCUM LIED TO THE COURT SAYING THE DECEDENT DIED WITHOUT A WILL WHEN HE KNEW FULL WELL SHE HAD ONE, AS IT WAS LISTED IN THE COURT DOCUMENT HE SUBMITTED IN THE LIEN FOR CHILD SUPPORT.

IF YOUR DEPARTMENT DISMISSES THIS AS EASILY AS IT WAS DISMISSED IN THE PAST, THE SATE WILL HAVE TO ANSWER TO THE FEDERAL MEDICAID ESTATE RECOVERY FOLKS!  I HOPE YOU DO THE INVESTIGATION NEEDED TO STOP THE ABUSE OF OREGON CITIZENS AND NOT PROTECT MEMBERS THAT PAY INTO YOUR FUNDS!