UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-00-ljo-jlt Document 0 Filed 0/0/ Page of 0 DAVID R. ZARO (BAR NO. ) JOSHUA A. DEL CASTILLO (BAR NO. 0) PETER A. GRIFFIN (BAR NO. 0) ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP South Figueroa Street, Suite 00 Los Angeles, California 00- Phone: () - Fax: () - dzaro@allenmatkins.com jdelcastillo@allenmatkins.com pgriffin@allenmatkins.com Attorneys for Receiver DAVID P. STAPLETON SECURITIES AND EXCHANGE COMMISSION, v. Plaintiff, BIC REAL ESTATE DEVELOPMENT CORPORATION and DANIEL R. NASE, individually and d/b/a BAKERSFIELD INVESTMENT CLUB, Defendants, BIC SOLO 0K TRUST and MARGARITA NASE, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Relief Defendants. Case No. :-cv-00-ljo-jlt NOTICE OF MOTION AND MOTION OF RECEIVER, DAVID P. STAPLETON, FOR ORDER APPOINTING RECEIVER AS ELISOR FOR PURPOSES OF RESTORING REAL PROPERTY INTERESTS TO RECEIVERSHIP ENTITIES OR, IN THE ALTERNATIVE, FOR ORDER TO SHOW CAUSE RE: CIVIL CONTEMPT [Memorandum of Points and Authorities; Declaration of David P. Stapleton; Request for Judicial Notice; and [Proposed] Order submitted concurrently herewith] Date: June, Time: :0 a.m. Ctrm: Judge: Hon. Lawrence J. O'Neill TO ALL PARTIES, THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on June,, at :0 a.m., in Courtroom of the Robert E. Coyle United States Courthouse, 00 Tulare Street, th Floor, Fresno, California, David P. Stapleton (the "Receiver"), the Court- LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP 0.0/LA

2 Case :-cv-00-ljo-jlt Document 0 Filed 0/0/ Page of 0 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP appointed permanent Receiver for Defendant BIC Real Estate Development Corporation and its subsidiaries and affiliates, including but not limited to WM Petroleum; Target Oil & Gas Drilling, Inc.; Tier Solar Power Company; Tier Solar Power Company, LLC; and Home Sweet Holdings (collectively, the "Receivership Entities" or "Entities"), will submit and hereby does move this Court for an order appointing him as elisor for the purpose of executing and recording deeds sufficient to restore outstanding ownership interests in certain residential real properties to the Receivership Entities. In the alternative, the Receiver requests that the Court enter an order to show cause re: civil contempt, on the grounds that investors in the Receivership Entities, identified in the document attached to the concurrently filed Memorandum of Points and Authorities as Exhibit A (the "Noncompliant Investors"), who were fraudulently conveyed pre-receivership interests in residential real properties by the Defendants, have failed to comply with the turnover provisions of this Court's April Stipulated Preliminary Injunction and Orders () Freezing Assets, and () Appointing a Permanent Receiver (Dkt. No. ) (the "Appointment Order") and the Receiver's subsequent real property interest recovery plan (the "Recovery Plan"), approved by the Court on June, (Dkt. No. ). Specifically, as reflected in the Court's record, the Defendants conveyed interests in certain real properties to Receivership Entity investors in the prereceivership period, via a so-called liquidation process, which conveyances the Receiver later confirmed were unrelated to and inconsistent with the value of any given investor's investment in or value contributed to the Entities, and therefore fraudulent. The Appointment Order specifically provides that all assets of the Receivership Entities, wherever held, are to be turned over to the Receivership Entities. While technically unnecessary given the turnover provisions of the Appointment Order, the Recovery Plan provided a low-cost means of restoring to the Receivership Entities all improperly conveyed real property interests, in order to 0.0/LA --

3 Case :-cv-00-ljo-jlt Document 0 Filed 0/0/ Page of 0 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP enable the Receiver to sell the real properties in issue in this matter in order to raise funds for the benefit of all Receivership Entity investors and creditors. The Receiver's Recovery Plan has been largely successful. However, a total of Noncompliant Investors have failed to comply with () the turnover provisions of the Appointment Order; and () the Court-approved Recovery Plan. In practical terms, this has allowed the Noncompliant Investors to retain real property interests to which they are not entitled, and which are properly the property of the Receivership Entities, and to undermine the Receiver's efforts to restore title to and sell all real properties at issue in the present receivership. Based on the Receiver's current estimate, the Noncompliant Investors are barring him from recovering at least $00,000 in equity for the value of the Entities, in addition to subjecting him to unnecessary fees and cost, including fees and costs recently incurred in opposing motions from Valley Mortgage Investments, Inc., which has, among other things, accused the Receiver of failing to restore the Entities' interests in the real properties at issue in this matter. The Receiver therefore respectfully requests that this Court appoint him as an elisor for the purposes of executing and recording those instruments necessary and appropriate for restoring the property interests held by the Noncompliant Investors to the Receivership Entities. In the alternative, and in the event the Court determines that equity or due process require an alternative approach, the Receiver requests that the Court enter an order to show cause re: civil contempt against the Noncompliant Investors. As the remedy for civil contempt, the Receiver requests that the Court appoint or authorize him to act as an elisor to execute and record deeds sufficient to restore the Property interests in issue to the Receivership Entities. This Motion is made in accordance with the general principles of the law governing federal equity receiverships, on the grounds that this Court enjoys broad equitable and summary powers in connection with the administration of the present receivership, and that the Receiver's requests are designed to advance the goals of 0.0/LA --

4 Case :-cv-00-ljo-jlt Document 0 Filed 0/0/ Page of 0 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP the Appointment Order and Recovery Plan, restore the assets of the Receivership Entities, and permit the Receiver to continue with his Court-approved sales efforts in order to maximize the amount available for Receivership Entity investors and creditors. This Motion is based on this Notice of Motion and Motion, the concurrently submitted Memorandum of Points and Authorities and Declaration of David P. Stapleton, and any argument or evidence presented to the Court at any hearing on this Motion. Dated: May, 0.0/LA -- ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP DAVID R. ZARO JOSHUA A. DEL CASTILLO PETER A. GRIFFIN By: /s/ Joshua A. del Castillo JOSHUA A. DEL CASTILLO Attorneys for Receiver DAVID P. STAPLETON

5 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 SECURITIES AND EXCHANGE COMMISSION, v. Plaintiff, BIC REAL ESTATE DEVELOPMENT CORPORATION and DANIEL R. NASE, individually and d/b/a BAKERSFIELD INVESTMENT CLUB, Defendants, BIC SOLO 0K TRUST and MARGARITA NASE, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Relief Defendants. ORDER Case No. :-cv-00-ljo-jlt [PROPOSED] ORDER GRANTING MOTION OF RECEIVER, DAVID P. STAPLETON, FOR ORDER APPOINTING RECEIVER AS ELISOR FOR PURPOSES OF RESTORING REAL PROPERTY INTERESTS TO RECEIVERSHIP ENTITIES OR, IN THE ALTERNATIVE, FOR ORDER TO SHOW CAUSE RE: CIVIL CONTEMPT Date: June, Time: :0 a.m. Ctrm: Judge: Hon. Lawrence J. O'Neill The Motion of the Court-appointed permanent Receiver, David P. Stapleton (the "Receiver"), for Order Appointing Receiver as Elisor for the Purposes of Restoring Real Property Interests to Receivership Entities or, in the Alternative, for Order to Show Cause re: Civil Contempt (the "Motion") came for hearing on June,. Appearances, if any, were as reflected in the record. 0.0/LA

6 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of Having considered the Receiver's Motion, and the materials submitted in support thereof, including an attendant Request for Judicial Notice, and good cause appearing therefor, this Court orders as follows:. The Receiver's Motion is granted. The Receiver's concurrently filed Request for Judicial Notice, is granted, and the Court takes judicial notice of: (a) the Receiver's First Interim Report and Petition for Instructions 0 (the "First Interim Report") (Dkt. No. ), in which the Receiver first presented his conclusions regarding the pre-receivership conveyances of interests in residential real property to investors in Defendant BIC Real Estate Development Corporation and its subsidiaries and affiliates, including but not limited to WM Petroleum; Target Oil & Gas Drilling, Inc.; Tier Solar Power Company; Tier Solar Power Company, LLC; and Home Sweet Holdings (collectively, the "Receivership Entities"), along with his Recovery Plan, as defined in the Motion (the "Recovery Plan"); and (b) the Court's subsequent Order on First Interim Report and Petition for Further Instructions of Receiver, David P. Stapleton (Dkt. No. ), in which the Court, among other things, accepted the Receiver's First Interim Report and authorized the Receiver to proceed with his Recovery Plan; and. The Receiver is appointed and authorized to act as an elisor for the purposes of executing and recording such instruments and documents as he deems necessary and appropriate, including but not limited to grant deeds and quit claim deeds, on behalf of the below-listed investors, to restore to the Receivership Entities all interests in the following real properties, conveyed by the Defendants in the above-entitled action to the following Receivership Entity investors: Property Address APN Property Interest Instrument Number Investor Shelly, an undivided.0% interest 000 H. Rogel 0.0/LA --

7 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 0 South I Street, 0 South I Street, 0 South I Street, Canyon Court, Gardenia Avenue, Meadows Street, Meadows Street, 0 Quincy Street, 00 Castaic Avenue, Blade Avenue, 0 Orange Blossom, -0- an undivided.% interest 000 L.M. Cole -0- an undivided.% interest an undivided.0% interest 000 J. Craig --0 an undivided.% interest 0000 R. Lane -0-0 an undivided 0.% interest 000 J.E. Arteaga --0 an undivided.0% interest 0000 D. Davis --0 an undivided.% interest 0000 G. Ruiz -0- an undivided.% interest 000 L.M. Cole IRA Resources Inc. FBO L.M. Cole IRA XX-YYYYY -- an undivided.0% interest 000 G. M Lane-Owens -0-0 an undivided.% interest 000 O. Figures -- an undivided.% interest 000 T. Canterberry --0 an undivided.% interest 000 G. Wilson --0 an undivided.% interest 000 B. Oscarson --0 an undivided.% interest 000 R. Lane --0 an undivided.% interest 000 E. Harris --0 an undivided.0% interest 000 D. Kincey --0 an undivided.% interest 000 E. Grider --0 an undivided.% interest 000 C. Osagie-Amayo --0 an undivided.% interest 000 B. Oscarson --0 an undivided.% interest 000 A. Lopez --0 an undivided.% interest 000 C. Decatur --0 an undivided.% interest 000 R. McDonald --0 an undivided.% interest 000 J.A. Ahern -- an undivided.% interest 000 H. Yu -- an undivided.0% interest 000 W. Brindley -- an undivided.0% interest 000 E. Matarazzzo Jr -- an undivided.% interest 000 J.Y. Vuong -- an undivided.% interest 000 B.C. Olson -- an undivided.0% interest 000 J.A. Rodriguez -- an undivided.% interest 000 J. Woodring -- an undivided.% interest 000 F. Lane -- an undivided.0% interest 000 G. Otten -- an undivided.0% interest 000 G. Jones -- an undivided.0% interest 000 N. Healy 0.0/LA --

8 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 0 Colonia De Las Rosas, 0 Colonia De Las Rosas, Dated: SO ORDERED. -- an undivided.0% interest 000 F.B. Sullivan -- an undivided.0% interest 000 W. Ashmore -- an undivided.0% interest 000 T. Brannon -- an undivided.00% interest 000 R. Perez -0- an undivided.0% interest 000 S.L. Pierce -0- an undivided.% interest 000 O. Cobian Hon. Lawrence J. O'Neill Judge, United States District Court 0.0/LA --

9 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 PROOF OF SERVICE Securities and Exchange Commission v. BIC Real Estate Development Corporation and Daniel R. Nase, et al. USDC, Eastern District of California Case No. :-cv-00 (LJO) JLT I am employed in the County of Los Angeles, State of California. I am over the age of and not a party to the within action. My business address is S. Figueroa Street, Suite 00, Los Angeles, California 00-. A true and correct copy of the foregoing document(s) described as: NOTICE OF MOTION AND MOTION OF RECEIVER, DAVID P. STAPLETON, FOR ORDER APPOINTING RECEIVER, DAVID P. STAPLETON, AS ELISOR FOR PURPOSES OF RESTORING REAL PROPERTY INTERESTS TO RECEIVERSHIP ENTITIES OR, IN THE ALTERNATIVE, FOR ORDER TO SHOW CAUSE RE: CIVIL CONTEMPT; [PROPOSED] ORDER will be served in the manner indicated below:. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ("NEF") the above-described document will be served by the Court via NEF. On May,, I reviewed the CM/ECF Mailing Info For A Case for this case and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the address(es) indicated below: John Brian Bulgozdy bulgozdyj@sec.gov,larofiling@sec.gov,berryj@sec.gov James M. Duncan jduncan@kleinlaw.com,kratekin@kleinlaw.com Barry L Goldner BGOLDNER@KLEINLAW.COM,mbrown@kleinlaw.com,shayes@kleinlaw.c om Peter Allen Griffin pgriffin@allenmatkins.com James Robert Harvey jharvey@kleinlaw.com Matthew C. McCartney matt@eastmanmccartney.com Noel Thomas McCartney tom@mccartneylaw.net,lacy@mccartneylaw.net,matt@mccartneylaw.net Matthew Thomas Montgomery montgomerym@sec.gov,larofiling@sec.gov,irwinma@sec.gov David P. Stapleton david@stapletoninc.com Manuel Vazquez vazquezm@sec.gov Scott Vick scott@vicklawgroup.com,april@vicklawgroup.com 0./LA - -

10 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 David Robert Zaro dzaro@allenmatkins.com,mdiaz@allenmatkins.com Joshua A. del Castillo jdelcastillo@allenmatkins.com. SERVED BY U.S. MAIL: On May,, I served the person(s) and/or entity(ies) on the attached service list, in this case by placing a true and correct copy thereof in a sealed envelope, U.S. Mail first class addressed as stated on the service list. I am readily familiar with this firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on May, at Los Angeles, California. /s/ Martha Diaz Martha Diaz 0./LA - -

11 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 Franchise Tax Board (FTB) PO Box Sacramento, CA - H. Rogel Hahn Avenue ;0 J. Craig Diamond Oak Avenue 0 J.E. Artega 0 Blue Devils Avenue G. Ruiz 0 Rondeau # Westminster, CA G.M. Lane-Owens 0 Leighton Avenue Los Angeles, CA 00 T. Canterberry 0 Julie Street B. Oscarson 00 Birkenfeld Avenue D. Kincey W. Poppyfields Drive Altadena, CA 00 C. Osagie-Amayo PO Box 0 0 C. Decatur Schwarzkopf Drive El Paso, TX J.A. Ahern Charlotte Avenue Oak Hill, OH W. Brindley 0 Northshore Drive SERVICE LIST Internal Revenue Service 0 Front Street San Diego, CA 0- IRA Resources Inc. FBO L.M. Cole 00 Hidden Oaks Drive 0 R. Lane Parker Avenue, Apt. B 0 D. Davis Sidney Drive 0 L.M. Cole 00 Hidden Oaks Drive 0 O. Figures 00 Stockdale Hwy #0 0 G. Wilson PO Box Oakland, CA 0 Eblon Harris Poindexter Street Los Angeles, CA 00 E. Grider Dorian Drive 0 A. Lopez Rush Drive # San Marcos, CA R. McDonald Berryman Avenue # Los Angeles, CA 00 H. Yu Fulton Avenue Monterey Park, CA E. Matarazzo, Jr. Weiner Street Staten Island, NY 00 0./LA - -

12 Case :-cv-00-ljo-jlt Document 0- Filed 0/0/ Page of 0 J.Y. Vuong 0 Hageman Road, Suite B J.A. Rodriguez Finley Drive, Apt. Taft, CA F. Lane PO Box 0 G. Jones Brookpark Drive Amherst, NY F.B. Sullivan Saint Andrews Drive Chino Hills, CA 0 T. Brannon 00 Ming #0 Bakesfield, CA 0 S.L. Lewis McKinley Avenue 0 B. Olson Tuttle Lane Lummi Island, WA J. Woodring FM E. Tyler, TX 0 G. Otten Emerald Isle Way N. Healy Wilmington Road San Diego, CA W. Ashmore, Jr. 0 Great River Road Guttenberg, IA R. Perez Voth Lane Shafter, CA O. Cobian 00 USAA Boulevard #0 San Antonio, TX 0 0./LA - -