Free Motion for Disbursement of Funds - District Court of Colorado - Colorado

Case 1:01-cv-00645-JLK

Document 186

Filed 09/07/2007

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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.

UNOPPOSED MOTION FOR ORDER AUTHORIZING AND DIRECTING PAYMENT OF ALLOWED CLAIMS, WITH CERTIFICATE OF COMPLIANCE

Patten, MacPhee & Associates, Inc., the Court-appointed Receiver, by and through its attorney, hereby moves the Court for an order authorizing and directing the payment of $23,625 in allowed claims, in the manner set forth below, from funds held in the registry of the Court under this case name and number. In support thereof, the Receiver states as follows: 1. On July 27, 2007, the Receiver filed with the Court Receiver's Combined Status

Report and Motion for Order Authorizing and Directing Payment of Allowed Claims and to Set Hearing Date on Claimants' Motions for Review by Court ("July 27 Status Report and Motion"). Among other things, the July 27 Status Report and Motion asked the Court to approve the payment of 1,746 allowed claims, totaling $2,124,980.

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2.

On July 31, 2007, the Court entered its Order Authorizing and Directing Payment of

Allowed Claims and Setting a Hearing Date on Claimants' Motions for Review ("July 31 Order"), granting the relief requested by the Receiver in its July 27 Status Report and Motion. 3. At the time of filing the July 27 Status Report and Motion, the Receiver reported to

the Court that it had continued to receive, review and consider claims submitted after the Claims Bar Date, while still recognizing their "subordinate" position, based on the Receiver's expectation that the total amount of claims allowed, including all Late-Filed Claims, would not exceed the amount of funds held in the registry of the Court. Therefore, the Receiver requested, and the July 31 Order expressly granted to the Receiver, the absolute discretion to determine the date after which no new or supplemental claim would be considered. The July 31 Order also granted to the Receiver the right to supplement its motion for the payment of additional allowed claims at any time prior to the hearing now set for October 15, 2007, in order to obtain from the Court an order approving the payment of any claim considered, or reconsidered, by the Receiver after filing the July 27 Status Report and Motion. 4. Since filing the July 27 Status Report and Motion, the Receiver has considered an

additional 14 claims for which it now seeks the Court's authorization for payment. Attached at Exhibit A is a list of those 14 additional claims. Exhibit A identifies each claimant by claim number, first initial, last name, city, state/province and country. As set forth in Exhibit A, the total amount claimed by these 14 claimants was $26,000, and the total amount allowed by the Receiver with respect to their claims is $23,625.

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5.

It is the Receiver's understanding that, as of September 5, 2007, there was

$1,563,930.35 of principal being held in the registry of the Court under this case name and number. 6. After taking into consideration (1) a reasonable reserve for the Motion For Review

By Court Filed by James Raissis, which is pending before the Court; (2) a reasonable estimate of the amount that is expected to be allowed by the Receiver on additional claims not fully considered or resolved as of the date of this motion; (3) the Receiver's and the Tax Administrator's estimated fees and expenses to perform their remaining duties; and (4) the amount of all anticipated income taxes and other expenses payable by the receivership estate, there are more than adequate funds available to pay the claims identified in Exhibit A. 7. The Receiver, therefore, respectfully requests that the Court enter an order directing

the Clerk of the Court to pay a total of $23,625 to the claimants identified and in the amounts allowed in Exhibit A. 8. The Receiver is prepared to deliver to the Clerk of the Court's Financial Supervisor

a Microsoft Excel spreadsheet containing all of the data needed to prepare and issue the requested checks, upon receipt of the Court's order. 9. As noted in the Receiver's July 27 Status Report and Motion, the Receiver has

received a substantial number of duplicate claims from investors during the claims administration process. Although the Receiver has asked the Court to allow and authorize payment of all claims listed in Exhibit A, the Receiver requests that the Court's order expressly provide that the allowance and payment of any claim remains subject to the Receiver's ongoing review for duplicate claims. The Receiver, therefore, requests that it be allowed to withhold delivery of any check issued pursuant -3-

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to this motion, if it subsequently discovers that the payment of any claim identified in Exhibit A would result in the payment of a duplicate claim. 10. The Receiver further requests that, in accordance with the July 31 Order, the Court's

order expressly permit the Receiver to supplement this motion at any time prior to the October 15 hearing date, in order to obtain the Court's order to authorize and direct payment of any claim considered, or reconsidered, by the Receiver after the date of this motion.

CERTIFICATE OF COMPLIANCE 11. On August 31, 2007, the undersigned conferred with Leslie Hughes, counsel for the

SEC, and outlined the general nature of the Receiver's motion contained herein. In addition, on September 4, 2007, the undersigned sent an e-mail to Ms. Hughes, stating the number and total amount of allowed claims to be included with this motion. Ms. Hughes has indicated no objection to this motion. WHEREFORE, the Receiver respectfully requests that the Court enter an order authorizing and directing the payment of $23,625 in connection with the 14 additional allowed claims set forth in Exhibit A, in the manner and amounts proposed herein, from funds held in the registry of the Court under this case name and number. DATED this 7th day of September, 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 -4-

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CERTIFICATE OF SERVICE I hereby certify that on September 7, 2007, I electronically filed the foregoing UNOPPOSED MOTION FOR ORDER AUTHORIZING AND DIRECTING PAYMENT OF ALLOWED CLAIMS, WITH CERTIFICATE OF COMPLIANCE with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail 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

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]

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