Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00645-JLK

Document 192

Filed 10/04/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-645-JLK SECURITIES AND EXCHANGE COMMISSION Plaintiff, v. KENNETH ROY WEARE a/k/a ROY WEAVER, J&K GLOBAL MARKETING CORPORATION, and AAA-AUCTION.COM, INC., Defendants.

RESPONSE TO MOTION FOR REVIEW BY COURT FILED BY ROBERT LEE PILLOW, III

Patten, MacPhee & Associates, Inc., the Court-appointed Receiver, by and through its attorney, responds to the Motion For Review By Court filed by Robert Lee Pillow, III ("Pillow") (doc. #189) as follows: 1. Pillow and/or his wife received notice of this receivership matter by both e-mail and

by postal mail. On April 10, April 25, May 4, May 10, July 6 and July 21, 2006, e-mails were sent to one, or more, of the four e-mail addresses used by Pillow and/or his wife in connection with their investments in J&K Global Marketing Corp. In addition, notice of this receivership was mailed to their current postal address on or about June 9, 2006. Records maintained by the Receiver indicate that at least three of the e-mails sent to Pillow and/or his wife, notifying them of this receivership

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matter and requesting that they register their current contact information at the Receiver's website, were opened. 2. Although the Receiver's e-mails were opened ­ and presumably read ­ neither Pillow

nor his wife registered at the Receiver's website. Nevertheless, Proof of Claim Forms were e-mailed to Katrina Pillow at [email protected] on January 31, February 6 and February 15, 2007. Records maintained by the Receiver indicate that the February 15, 2007 e-mail was opened on February 17, 2007 at 9:51 p.m. 3. On September 21, 2007, Pillow contacted the Receiver, for what appears to be the

first time, leaving a voice mail message with the Receiver, "wanting to know if there was a claims process for [him] and [his] family." Apparently, that same day, Pillow completed and sent to the Court for filing his Motion for Review by Court. 4. 24, 2007. 5. In a subsequent e-mail to the Receiver, Pillow states that he recalls "responding to Pillow's Motion for Review by Court was filed with the Court on or about September

an e-mail, but not a proof of claim." 6. the Receiver. 7. In accordance with Paragraphs 50-53 of the Receiver's Unopposed Motion to As of the date of this response, Pillow has not submitted a Proof of Claim Form to

Establish Procedures and Deadline for Filing Claims, to Approve Manner of Notice to Potential Claimants, and to Establish Claims Review Procedures ("Motion to Establish Procedures"), approved by the Court on December 6, 2006, a claimant may seek review of the disallowance of all
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or part of his/her claim after (1) a Proof of Claim Form has been filed, (2) a Determination Notice disallowing all or part of his/her claim has been sent by the Receiver to the claimant, (3) the claimant requests reconsideration of his/her claim, and (4) the Receiver, after reconsidering the claim, issues a Final Determination Notice continuing to disallow all or part of the claim. 8. Pillow has filed his Motion for Review by Court without otherwise complying with

the procedures approved by the Court's order dated December 6, 2006. 9. Pillow should not obtain rights greater than those similarly situated, who followed

the procedures approved by the Court. Rather, Pillow's "claim" is premature and must be denied. WHEREFORE, the Receiver respectfully requests that the Court deny Pillow's Motion for Review by Court as premature and grant such other relief as the Court deems just and proper. DATED this 4th day of October, 2007.

s/ Michael D. Burns Michael D. Burns, #11631 1775 Sherman Street, Suite 2900 Denver, Colorado 80203 Telephone: (303) 296-2900 FAX: (303) 296-4475 E-mail: [email protected] Attorney for Receiver

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CERTIFICATE OF SERVICE I hereby certify that on October 4, 2007, I electronically filed the foregoing RESPONSE TO MOTION FOR REVIEW BY COURT FILED BY ROBERT LEE PILLOW, III with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following email addresses: Leslie J. Hughes [email protected] Christine J. Jobin [email protected] Thomas J. Krysa [email protected],[email protected] and I certify that I have caused to be mailed a copy of the foregoing to the following non-CM/ECF participant via U.S. mail, postage prepaid: James Raissis Raissis Solicitors Suite 502, 3 Waverly Street Bondi Junction, NSW 2022 AUSTRALIA Robert Lee Pillow, III 19139 Babrof Drive Eagle River, AK 99577-8677

s/ Michael D. Burns Michael D. Burns, #11631 Attorney for Receiver 1775 Sherman Street, Suite 2900 Denver, Colorado 80203 Telephone: (303) 296-2900 FAX: (303) 296-4475 E-mail: [email protected]