Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Guttilla & Murphy, PC
Firm No. 00133300 Patrick M. Murphy (No. 002964) 4150 West Northern Ave. Phoenix, Arizona 85051 (623) 937-2795 [email protected]

Attorneys for the Receiver

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Securities and Exchange Commission, Plaintiff, vs. U.S. Reservation Bank & Trust; Higher Investments Technologies, Inc.; GlobalLink Capital Markets, Ltd.; Edward J. Driving Hawk, Sr.; Leo R. Driving Hawk, Sr.; John M. Adams; Edmund J. Smedley; Kenneth S. Harrison; William J. Herisko; and Thomas T. Emerton, III; Defendants, and Oyate Development, Inc.; Oyate Enterprises, LLP; Oyate Trust; River Walk Development, LLC; HPHC, Inc.; Ringthunder Racing Stables, Inc.; James R. Driving Hawk; and Orpha Jane Johnston; Defendants Solely for Purposes of Equitable Relief. ) ) Cause No. CIV 02-0581 PHX EHC ) ) ) ) PETITION NO. 86 ) ) RECEIVER'S STATUS REPORT ON ) CLAIMS AND PETITION FOR ORDER ) ADJUDICATING CERTAIN CLAIMS ) AND APPROVING INTERIM ) DISTRIBUTION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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Lawrence J. Warfield, as the court appointed Receiver, respectfully petitions the Court as follows: 1. On December 15, 2003, this Court entered it Order Establishing

Procedures for the Adjudication of Claims Re: Petition No. 23 ("Claims Order"), which
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

established procedures for notifying potential claimants of the right to file proofs of claim with the Court's Receiver, and the procedures for the adjudication of those claims. 2. Pursuant to the Claims Order, notices were mailed to known claimants and

published in national newspapers. In response to these notices the Receiver received by the Claims Bar Date a total of 191 investor claims and two general creditor claims. Thereafter, based on his investigation, the Receiver found additional investors. Accordingly, the Receiver gave additional notice to the newly discovered investors and received 16 additional investor claims after the Claims Bar Date. 3. On January 3, 2005, the Receiver filed the Receiver's Motion to Defer

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Action on Certain Claims and Authorize the Receiver to Subpoena Records, in which the Receiver requested that the court defer action on certain claims which required additional documentation and authorize the Receiver to subpoena certain bank records to complete the analysis of those claims. On May 2, 2005, the court entered its Order Deferring Action on Certain Claims and Authorizing the Receiver to Subpoena Records. This order, among other things, deferred action on all claims identified as C1 or C2 in the First Interim Claims Report and authorized the Receiver to subpoena bank records necessary to complete the investigation of the deferred claims. On July 29, 2005, the court entered its Order Extending Time for Filing Receiver's Claims Report Regarding Deferred Claims Re: Petition No. 23 (Dock. #517). This order among other things directed the Receiver to file supplemental claims reports with the court upon completion of his investigation of the deferred claims but not later than January 30, 2006, and allowed claimants 60 days to file objections with the Receiver regarding those recommendations.

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Subsequently at the request of the Receiver, the Court extended the deadline for the Receiver to complete his claims reports to March 13, 2006. 4. Also on July 29, 2005 the Court entered its Order Adjudicating Certain

Claims (Dock. #518), which adjudicated certain claims addressed by the Receiver's Interim Claims Report No. 1. 5. On September 25, 2006, the Court entered its Order extending the deadline

for the Receiver to file responses to objections to Receiver's Ninth, Tenth and Eleventh Interim Claims Reports until August 31, 2006. Court Imposed Requirements for Approval of Claims 6. The Court's Claim Order (para 5.1) requires investor claimants to establish

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by credible evidence that: a. b. The Claimant is a natural person; The amount invested was, at the time of the investment, beneficially

owned solely by the Claimant; c. Assets; and d. The amount invested was provided by the Claimant to another Part or all of the amount invested is traceable to the Receivership

person as a result of the inducement through false representations or material omissions, including but not limited to prime bank fraud. 7. The Claims Order (para 5.2) also provides that a claim shall be denied if

any of the following disqualifying factors are present:

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Guttilla & Murphy, PC
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a.

The Claimant made false representations or material omissions to

any other person with the intent to collect funds in connection with a fraudulent investment scheme; b. The Claimant received a substantial benefit for collecting funds from

any other person for transfer to a third person pursuant to a fraudulent investment scheme; c. The Claimant knowingly allowed an account over which he

exercised control to be used to receive and disburse invested funds or otherwise knowingly rendered assistance in furtherance of a fraudulent investment scheme in any manner other than by making an investment of the Claimant's own funds; or d. The Claimant is an Insider, which is defined as any Defendant or

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Relief Defendant or any Receivership Entity, or any current or former spouse, sibling, descendent, officer, director, or shareholder of such person. 8. Finally the Claims Order provides that these disqualifying factors will not

result in the denial of the claim if the Claimant demonstrates by credible evidence that all of the following exist: a. The Claimant acted in good faith. A rebuttable presumption of good

faith is established by the investment of the Claimant's own funds into the fraudulent investment scheme; b. A reasonable investor in the position of the Claimant would not have

doubted the legitimacy or legality of the investment program; c. The Claimant did not breach a legal duty to any person injured in the

investment program; and Document 628 - 4Filed 10/02/2006
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4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

d.

The Claimant did not knowingly act in violation of the law

applicable to the Claimant or the transaction relating to income taxes or intended to protect investors in connection with the purchase or sale of securities. 9. The above requirements for investor claims were intended to insure that

aggregators and facilitators of the fraud did not receive a distribution. These requirements were recommended to the Court following negotiations between the Receiver, the United States Attorney for the District of Arizona, and the Securities and Exchange Commission as a condition for the United States turning over to the Receiver the funds it had seized prior to the commencement of this action. Recommendations of the Receiver Filed with the Court 10. Pursuant to the above orders the Receiver has filed with the Court and

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mailed to the claimants the following eleven interim claims reports, which address all of the claims received by the Receiver: Interim Report No. 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th

Date Filed 01/03/05 05/31/05 08/31/05 09/21/05 11/02/05 01/17/06 01/17/06 02/02/06 03/07/06 03/13/06 03/13/06

Dock. # 463 506 536 544 559 574 574 578 583 585 585 LNF Trust

Scope of the Report 191 Investor & 2 creditor claims

Carnie Investors South Wind Investors (some deferred to a later date ­ see 11th Interim Report) Y2K Millennium Fund Investors Eagle Financial Investors World Harvest Church Ministries Somerset Creek Investors Second Wind Investors Interinvest Investors Remaining South Wind Investors
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

11.

The time for filing objections to the interim claims reports, the number of

objections received by the Receiver, and the date and docket number for the Receiver's response to the objections, are as follows: Receiver's Response to Objections Date Filed Dock. # 05/02/05 N/A 12/29/05 12/29/05 N/A N/A 05/19/06 05/19/06 08/02/06 08/31/06 N/A 493 N/A 571 571 N/A N/A 594 594 607 609 N/A

Interim Report No. 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12.

Deadline to file Objections Objections Filed 03/04/05 08/01/05 10/31/05 11/21/05 01/02/06 03/18/06 03/18/06 04/03/06 05/08/06 05/12/06 05/12/06 15 0 3 6 0 0 1 3 3 7 0

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As the above summary indicates, only 38 objections to the Receiver's

recommendations were filed with the Receiver. In the case of some of these objections, the claimants provided additional documents to the Receiver that enabled him to revise his recommendation to the apparent satisfaction of the claimants. In addition, 13 of the objections to the First Interim Report were resolved by the Court's Order Adjudicating Certain Claims (Dock. #518). The remaining 22 objections are addressed below. Supplement to the Tenth Interim Claims Report 13. After the Receiver filed his response to objections to the Tenth Interim

Claims Report, he received additional documents from two of the claimants addressed in that report, Gerhard Oehri and Gerald Simon. These documents require a supplement to Document 628 - 6Filed 10/02/2006
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

the Receiver's earlier report and result in the Receiver now being able to recommend the approval of the claim filed by Gerald Simon for a reduced amount. The Receiver's Supplement to the Tenth Interim Claims Report is attached hereto as Exhibit "A". Master Listing of All Claims 14. Attached hereto as Exhibit "B" is a master listing of all claims filed in this

receivership together with the Receiver's recommendation as to each claim. This exhibit also indicates which report addresses the claim and whether the claimant filed an objection to the Receiver's original recommendation on the claim. Approved Claims and Interim Distribution 15. Attached hereto as Exhibit "C" is a listing of all claims recommended for

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approval by the Receiver together with the amount of the claim recommended by the Receiver for approval. 16. After reserving sufficient funds for future administrative expenses, accrued

and unpaid administrative expenses, contingencies, and the remaining unresolved claims in the event they are approved by the Court, the Receiver has determined that an interim distribution of $15,000,000.00 can be made at this time from the Receivership Assets to the approved claimants on a pro-rata basis. Exhibit "C" includes the amount of such a pro-rata distribution on each claim recommended for approval. 17. The Receiver recommends that this distribution be delayed until the time

for appealing the order denying and approving claims has run. If an appeal is filed the Receiver will promptly report to the Court whether the interim distribution should proceed or be stayed pending the appeal. If no appeal is filed and the order becomes final, the distribution can proceed as directed by the Court. Document 628 - 7Filed 10/02/2006
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Denied Claims 18. The claims of 18 claimants were denied by this Court's Order Adjudicating

Certain Claims Re: Petition No. 23 dated July 29, 2005 (Dock # 518). Since that order did not contain Rule 54(b) language, there may be some question as to whether it is a final order, therefore the Receiver recommends that the order sought herein confirm these earlier denials and include Rule 54(b) language. 19. In subsequent interim claims reports the Receiver recommended the denial

of claims filed by 28 claimants who did not subsequently file objections to the recommendations (See Exhibit "B"). Accordingly, based on the analysis provided in each of those interim claims reports the Receiver recommends that the Court enter a final order at this time denying those claims. There is no reason for further proceedings with respect to those claims since the claimants did not file an objection as required by the Court. 20. Martin, Linda. Ms. Martin filed a claim in the amount of $28,500. The

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Receiver in his Third Interim Claims Report recommended approval of $15,130 and the denial of $13,370. The latter portion was recommended for denial because of Ms. Martin's failure to demonstrate that her funds were traceable to the Receivership Assets. Ms. Martin filed an objection to this recommendation but it was not timely. Accordingly, the Receiver recommends that his recommendation be approved by the Court and that Ms. Martin's claim be approved for only $15,130. 21. Rouse, Stephen. Mr. Rouse filed two claims, one for $15,500 and another

for $1,000,000. In his Ninth Interim Claims Report the Receiver recommended the denial of both claims. Rouse filed an objection as to the second claim and provided Document 628 - 8Filed 10/02/2006
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

additional documents. Based on these newly provided documents the Receiver recommended in his response to the objections (Dock. # 607) that the second claim be approved in the reduced amount of $949,216.02. 22. Borzage, Robert. Robert Borzage filed a claim in the amount of $6,600

which the Receiver recommended be denied in his Fourth Interim Claims Report for the reason that Borzage had failed to prove ownership of the funds. Robert Borzage filed an objection to which the Receiver filed a response. The Receiver recommends that Robert Borzage's claim be denied without further proceedings since his material fails to show he owned the deposited funds and by his own admission it appears that any investment he made was subsequently sold by him to others. 23. Borzage, Stephen. Stephen Borzage claims to have bought out Robert

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Borzage's interest in the amount of $400. The Receiver recommended denial and Stephen Borzage filed an objection. In addition to failing to show that Robert Borzage had a legitimate claim, Stephen Borzage failed to provide any credible evidence that he paid Robert Borzage $400 to purchase a part of his investment. 24. Dechenne, Taunia. Ms. Deschenne filed a claim in the amount of $5,000.

The Receiver recommended denial to which Ms. Deschenne filed an objection. For the reasons set forth in the Receiver's Response to Objections to the Ninth Interim Claims Report, the Receiver recommends that this claim be denied without further proceedings. Resolving Remaining Claims 25. If the above recommendations are approved by the Court, there will remain

several claims to be resolved. The claims filed by the following claimants were recommended for denial and the objections to that recommendation need to be finally Document 628 - 9Filed 10/02/2006
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

resolved: George Carnie (claim as to USRBT & HITI); John Tang; Ross & Bette Corless; Aaron Tardos; James Baker; Rodney Smallwood (replaces Collings); Luke Saban; Todd Weatherly; Elden Sorenson; Richard Wörner; and Gerhard Oehri. In addition, claims filed by the following Interinvest investors have been approved in part and disapproved in part: Johann Anger, Selahattin Caner, Dervis Kirat, Gerald Simon, and Edmund Vollrath. The approved portion of the claims of these claimants is set forth in Exhibit "C" for approval by the Court and for participation in the proposed interim distribution. It is not clear at this time whether these claimants intend to contest the portion of their claim that was recommended for denial, but if they do further proceedings on that issue may also be necessary. 26. Once the relief sought herein is granted, the Receiver intends to move the

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Court for an order establishing a procedure to narrow the issues and resolve the remaining claims. The Receiver anticipates that some of these claimants may finally produce the missing documents, or that the Receiver and the claimant may be able to narrow the issues that need to be resolved. In addition, because of common issues of fact, it may be appropriate for some of the disputed claims to be consolidated and heard together. If the Court grants the relief requested herein, the procedures that the Receiver currently intends to recommend for resolving these remaining claims is as follows: a. Within thirty days of the entry of the Court's order establishing the

procedures, the Receiver will mail to each of the remaining unresolved claimants a copy of the Court's order together with the Receiver's disclosure statement setting forth the reasons for the Receiver's recommendation and the evidence to be

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

introduced in support of the Receiver's recommendations at a hearing before the Court. b. Within 30 days of the mailing of the Receiver's disclosure statement,

each claimant will be required to mail to the Receiver a written disclosure statement setting forth the position of the claimant and identifying the evidence to be introduced in support of the claimant's claim at a hearing before the Court. c. If the claimant fails to timely serve on the Receiver a disclosure

statement, the Receiver will then apply to the Court for a final order on the claim. d. If the claimant files a timely disclosure statement on the Receiver,

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the Receiver will file with the Court copies of the disclosure statements and the Receiver's recommendation regarding whether an evidentiary hearing is necessary to resolve disputed facts and, if so, whether certain claims should be consolidated for hearing and the length required for such a hearing. WHEREFORE, the Receiver respectfully requests that the Court: A. Approve the claims listed in Exhibit "C" for the amounts recommended by the Receiver as indicated in the column entitled "Final Recommendation of the Receiver." B. Having approved the claim of Linda Martin in the amount of $15,130.00, deny the remainder of the claim of Linda Martin for the reason that her objections to the Receiver's recommendation were not timely filed and she has failed to present any evidence that the funds are traceable to the Receivership Assets. C. Having approved the claim of Stephen Rouse in the amount of $949,216.02, deny the remainder of the claim of Stephen Rouse and deny his second claim for

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$15,500.00 for the reasons set forth in the Receiver's Ninth Interim Claims Report and the Receiver's Response to Objections to Receiver's Ninth Interim Claims Report. D. Direct the Receiver, not less than sixty (60) days and not more than ninety (90) from the date this order is entered, to make an interim pro-rata distribution to the approved claimants of $15,000,000.00 from the Receivership Assets in the amounts set forth in Exhibit "C". E. Having, entered its Order Adjudicating Certain Claims Re: Petition No. 23 dated July 29, 2005 (Dock # 518), deny in their entirety the claims filed by the following claimants: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. AmLaw Trust, by its Trustee Neil Alan Scott; Banayos, Jocelyne; Baran, Lisa IRA #97-2868004; Chen, Rosie; Fleetwood, Donald & Madelyn; Fleetwood, Michael & Cheryl; Golovchinsky,Vladimir; Hoffman, Eleanore; McElroy, Susie; Millman, Jeffrey; Morgen, Nancy; Revell, Jeremy; Schueler, Dennis R.; Schueler, Dennis Roy IRA #97-2096002.
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

15. 16. 17. 18.

Schueler, Mary E. IRA #97-2805006; Symank, Cheryl E. IRA #97-2867006; and Vest, Dorothy; and Yoshioka, Jim.

F. Deny the claims of the following claimants in their entirety for the reason that the following claimants having failed to file an objection to the Receiver's recommendation that their claim be denied and the Receiver's recommendations appearing well founded: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Adler, Alexandria; Adler, Jill; Adler, Tonye; Bertschinger, Heinrich; and Buehner, Fred; Cook, Joshua; Crane, Phillip; Cross, Jack; Fusco, Mario F.; Gillis, Ivan; Gregersen, Joseph; Henderson, Beryl A.; Hitchens, Peter, et al; Johnston, John; Lambath, Larry.
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4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

Morizono, Steven; Policastro, Antonio; Richard, Josh; Rosario, Fabrio; Smith, Jack; Smith, Phillip; Storms, Donald Lee; Storms, Lee and Tammy; Thalcharchandradeo, Lionel; Treacy, Jill; Whiteford, James; Yager, Jeffrey; Zimmerman, Colin;

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G. Deny the claim filed by Robert Borzage in its entirety for the reason that even if he proved ownership of the cash deposit, by his own admission his interest has been acquired by others. H. Deny the claim filed by Stephen Borzage in its entirety for the reason that he has failed to prove ownership of any funds traceable to the Receivership Assets. I. Deny the claim filed by Taunia Dechenne in its entirety for the reason that she has failed to prove ownership of any funds traceable to the Receivership Assets. J. Direct the entry of the order as a final judgment pursuant to Rule 54(b), Fed.R.Civ.P.

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

Respectfully submitted this 2nd day of October, 2006. GUTTILLA & MURPHY, PC s/Patrick M. Murphy Patrick M. Murphy Attorneys for the Receiver

PROOF OF SERVICE This is to certify that on this 2nd day of October, 2006, I electronically transmitted the foregoing document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on the attached Master Service List; and that the persons on the attached Master Service List who are not registered participants of the CM/ECF System have been served with a copy of the foregoing document by first class mail this date. Additionally, all claimants will be served with a copy of the foregoing pleading and exhibits and the proposed Order by first class mail within three days.

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s/Patrick M. Murphy Patrick M. Murphy

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MASTER SERVICE LIST
SEC v. U.S. Reservation Bank & Trust, et al. United States District Court for the District of Arizona Phoenix CIV 02-0581 PHX EHC
(Rev. August 15, 2006 )

Lawrence J. Warfield 14555 N. Scottsdale Road, #340 Scottsdale, AZ 85254 Receiver Patrick M. Murphy Guttilla & Murphy, PC 4150 West Northern Avenue Phoenix, Arizona 85051 Registered CM/ECF: [email protected] Counsel for Receiver Marshall Gandy Securities & Exchange Commission 801 Cherry Street, Suite 1900 Fort Worth, Texas 76102 Registered CM/ECF: [email protected] Counsel for the Plaintiff Leo Driving Hawk, Sr. 4575 East Campbell Court Higley, Arizona 85236 Defendant James R. Driving Hawk 1867 East Browning Place Chandler, Arizona 85249 Relief Defendant

Orpha Jane Johnston 4906 Overlook Drive Harrison, Ohio 45030 Relief Defendant Edmund J. Smedley 4906 Overlook Drive Harrison, Ohio 45030 Defendant Ron Brewer 127 Fred Road Lake Charles, Louisiana 70615 Attorney for Y2K Millenium, LLC. Edward Driving Hawk, Sr., and Oyate Enterprises, LLP Ringthunder Racing Stables, Inc. Oyate Trust River Walk Development, LLC U.S. Reservation Bank & Trust % Edward Driving Hawk, Sr. 2221 East Indian Wells Drive Chandler, Arizona 85249 Relief Defendants Oyate Development, Inc. % Leo R. Driving Hawk, Sr. 4575 East Campbell Court Higley, Arizona 85236 Relief Defendant

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Ronald J. Herisko P.O. Box 2830 Palm Springs, California 92263 Attorney for Defendants Global-Link, William J. Herisko and Thomas T. Emerton Rex Reese Attorney At Law 1645 International Drive, Suite 9 Mclean, Virginia 22102 Registered CM/ECF: [email protected] Attorney for Defendants Higher Investments Technologies, Inc. and John M. Adams and Relief Defendant HPHC, Inc. Joseph Lee Matalon 450 Seventh Avenue, Suite 1409 New York, New York 10123 Attorney for Ann Palmer Charles J. Crozier P.O. Box 15322 Austin, Texas 78761-5322 Attorney for Defendant Kenneth S. Harrison Douglas C. Erickson Maynard Cronin Erickson Curran & Sparks, P.L.C. 1800 Great American Tower 3200 North Central Avenue Phoenix, Arizona 85012 Registered CM/ECF: [email protected] Attorneys for the Estate of Amanda Beck Elden Sorenson P.O. Box 265 Cheney, Washington 99004 Claimant

0776-001 (12351)

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