UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 1 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP DAVID R. ZARO (BAR NO ) TIM C. HSU (BAR NO ) 515 South Figueroa Street, Ninth Floor Los Angeles, California Phone: (213) Fax: (213) dzaro@allenmatkins.com thsu@allenmatkins.com EDWARD G. FATES (BAR NO ) 501 West Broadway, 15th Floor San Diego, California Phone: (619) Fax: (619) tfates@allenmatkins.com Attorneys for Receiver THOMAS A. SEAMAN SECURITIES AND EXCHANGE COMMISSION, v. Plaintiff, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA STEVE CHEN, USFIA, INC., ALLIANCE FINANCIAL GROUP, INC., AMAUCTION, INC., ABORELL MGMT I, LLC, ABORELL ADVISORS I, LLC, ABORELL REIT II, LLC, AHOME REAL ESTATE, LLC, ALLIANCE NGN, INC., APOLLO REIT I, INC., APOLLO REIT II, LLC, AMKEY, INC., US CHINA CONSULTATION ASSOCIATION, and QUAIL RANCH GOLF COURSE, LLC, Defendants. WESTERN DIVISION Case No. 2:15-CV RGK-PLA RECEIVER'S THIRD REPORT AND RECOMMENDATIONS /SD

2 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 2 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP /SD TABLE OF CONTENTS I. EXECUTIVE SUMMARY... 1 II. SUMMARY OF RECEIVER'S ACTIVITIES... 3 A. Company Offices... 3 B. Hills Garden Hotel... 4 C. Other Real Properties... 4 D. Law Firm Retainers... 5 E. Li Zhao and Ally Investors... 6 F. Mercedes Vehicle... 7 G. Investor Communications... 8 III. SUMMARY OF RECEIPTS AND DISBURSEMENTS... 9 IV. RECOMMENDATIONS... 9 A. Document Recovery Efforts B. Receivership Asset Recovery Efforts and Investigation C. Accounting D. Repatriation of Overseas Assets E. Maintain Operations of the Hotel, Apartment Building, and Single Family Residential Properties F. Investor Communications and Claims Process G. Asset Sales V. CONCLUSION (i) Page

3 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 3 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP Thomas A. Seaman ("Receiver"), Court-appointed receiver for Defendants USFIA, Inc., Alliance Financial Group, Inc., Amauction, Inc., Aborell Mgmt I, LLC, Aborell Advisors I, LLC, Aborell REIT II, LLC, Ahome Real Estate, LLC, Alliance NGN, Inc., Apollo REIT I, Inc., Apollo REIT II, LLC, Amkey, Inc., US China Consultation Association, Quail Ranch Golf Course, LLC, and their subsidiaries and affiliates (collectively, "Receivership Entities"), hereby provides his third interim report and recommendations. This report focuses on the Receiver's activities during the first quarter of 2016 and provides a financial report on the receipts and disbursements for the receivership estate through March 31, I. EXECUTIVE SUMMARY This receivership involves a complex and wide ranging group of enterprises and assets which appear to have been funded with the fruits of the fundraising scheme at the heart of the action filed by the Securities and Exchange Commission ("Commission"). The Receiver has taken control of bank accounts identified in the TRO and Preliminary Injunction Order ("Appointment Orders") as well as additional accounts identified through the Receiver's investigation of documents and information found at the various locations where the Receivership Entities conducted business. For the quarter ending March 31, 2016, the gross receipts were $6,107, From inception of the receivership through March 31, 2016, the total gross receipts were $28,079,324.62, primarily comprised of funds turned over to the Receiver from financial institutions at the outset of the case or otherwise turned over to or seized by the Receiver. As of March 31, 2016, the Receiver had made disbursements of $1,081, for necessary operating expenses of the Receivership Entities and was holding cash in the amount of $26,943, As previously reported, the Receiver has also identified and taken control of the USFIA office building in Arcadia, a hotel in Rancho Cucamonga, an apartment building in Alhambra, a warehouse, several single family homes, and parcels of undeveloped land, including a proposed golf course site in Moreno Valley. The /SD

4 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 4 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP Receiver has also obtained evidence of several additional pieces of real estate purchased with funds of the Receivership Entities and is further investigating these transfers. At this point, due to the volume of electronic data and disorganized manner in which it was kept by the Receivership Entities, the Receiver has not yet been able to identify the entire scope of the USFIA enterprise, the number of investors, or specific amounts invested by investors and distributed to them. The Receiver's work to analyze and better understand the investor data, with the assistance of his forensic computer specialist, is ongoing. To date, the Receiver has identified approximately 65,000 unique investor addresses. The Receiver will be sending an official communication regarding the receivership to all of these addresses shortly, which will direct investors to the receivership website and ask them to provide their current contact information (and update their contact information with the Receiver as necessary throughout the receivership). The Receiver has reviewed and analyzed certain Quickbooks files and hard copy business documents and has now obtained most of the relevant bank records and is in the process of performing an accounting of receipts and disbursements for the Receivership Entities with the objectives of tracing assets and preparing an accounting in accordance with the Appointment Orders. To date, the accounting indicates the Receivership Entities received funds from external sources in the approximate amount of $164 million. The accounting is ongoing and the Receiver s goal for completion is September 30, At this point, there is no indication there was any legitimate Gemcoin or other viable business operated by the Receivership Entities. Aside from some income generated by the hotel and rental properties, the Receivership Entities had no significant source of income other than money raised from investors. The Receiver has verified that virtually none of the assets described in online and written marketing materials actually exist. Instead of mines located around the world, /SD -2-

5 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 5 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP millions of dollars in precious gems, and houses and cars available to be awarded to investors, the Receiver has found only costume jewelry, boxes of rocks, and bins filled with tens of thousands of little rings of nominal value. As for the amber mine in the Dominican Republic the Defendant professed to own, no mine has been discovered. The Receiver has learned that the address of the purported mine is a residential address of a house purchased by Ammine, S.R.L. The house is located in a residential area and there are no mines adjacent to it. Moreover, the Receiver has learned that Ammine, S.R.L. is not registered to operate a mine. The Receiver is in the process of domesticating the Preliminary Injunction Order in the Dominican Republic for the purpose of seizing and securing assets of the Receivership Entities located there. As discussed in Section IV below, the Receiver recommends the receivership continue in order to identify, marshal, and preserve the assets of the Receivership Entities pending the outcome of the litigation and further orders of the Court. II. SUMMARY OF RECEIVER'S ACTIVITIES As discussed in his First Report and Recommendations (Dkt No. 19), the Receiver secured and took possession of all known real and personal property assets of the Receivership Entities promptly upon his appointment. Given that the assets of the Receivership Entities were not being used for any viable business purpose, the Receiver is preparing a motion for approval of procedures for the sale of the real property and personal property assets of the Receivership Entities. Brokers have been identified and appropriate liquidation processes are being developed for a variety of assets, both real and personal, for consideration by the Court. A. Company Offices In conjunction with and with assistance from the U.S. Marshals and the Arcadia Police, the Receiver took control and possession of the premises located at 135 E. Live Oak, Arcadia, California ("Company Offices"), an approximately 18,000 square foot, two-story office building. All employees were terminated. The /SD -3-

6 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 6 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP Receiver has retained a security company to guard the Company Offices and is reviewing books and records of the Receivership Entities located at company offices. There is no mortgage on the Company Offices. Continuing to hold the property, however, is a drain on the receivership estate due to security costs, utility charges, property taxes, and insurance premiums. The Receiver therefore recommends listing the property for sale, subject to overbid and Court confirmation of the sale. The Receiver is in the process of determining the value of the property. B. Hills Garden Hotel The Receiver took possession of the Hills Garden Hotel located on Ostrem Boulevard in Rancho Cucamonga. The 112 unit hotel was formerly a Days Inn, but lost its flag shortly before the Receiver's appointment. The Receiver is in financial control of the hotel and manages the hotel with the assistance of the on-site employees, many of whom had been employed by the hotel for many years prior to its purchase by the Receivership Entities on August 1, The Receiver confirmed that adequate insurance for the hotel is in place. It appears the hotel was going to be used by Defendants to conduct fundraising activities. Several rooms were converted to meeting rooms, jewelry show rooms, and offices. As a result, the hotel had been operating at a loss. The Receiver has increased revenue and reduced costs, and the hotel is now marginally profitable. The Receiver recommends marketing the hotel for sale and has obtained an appraisal and broker s opinion of value. The Receiver will recommend sale of the hotel and seek Court approval accordingly. C. Other Real Properties The Receiver also took possession of the following real properties: A 36-unit apartment building located in Alhambra. The Receiver is collecting the rents and paying appropriate operating expenses. The building is 100% occupied and all tenants are paying rent to the Receiver. The Receiver recommends selling the apartment building, which is only marginally profitable without factoring the time of the Receiver and his staff /SD -4-

7 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 7 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP A mansion located in Bradbury that was not used as a residence and appears to have been used for fundraising and investor relations. The home is apparently called the "Clubhouse." The home is currently unoccupied. The Receiver recommends the home be sold and is obtaining broker opinions of value. A single family home and a condominium, both located in Arcadia. There are tenants in the properties who are not paying rent. Eviction actions are pending for both properties and the Receiver recommends marketing the homes for sale when the evictions are completed. Approximately 860 acres of vacant land near Moreno Valley, California that could be used for a golf course. The Receiver recommends that the land be sold and is in the process of determining its value and an effective means of marketing the land for sale. Rental revenue from short term uses of the land for military training exercises and cell phone towers is offsetting the operating expenses of the land. Finally, the Receiver has also identified several other single family homes purchased with funds from the Receivership Entities and vested in other individuals or entities. The Receiver is in contact with the title holders in an attempt to recover the properties without litigation, but will file fraudulent transfer actions if the issues cannot be consensually resolved. D. Law Firm Retainers The Receiver learned that two law firms that had been engaged to represent Defendant Steve Chen ("Chen") and one or more of the Receivership Entities had received large retainers from an affiliated entity located in Singapore, USFIA Singapore PTE, Ltd. ("USFIA Singapore"). After investigating the matter further, the Receiver learned that Chen owns 80% of USFIA Singapore and that USFIA Singapore is simply the "Asia Headquarters" of USFIA, Inc. Nevertheless, an attorney located in Singapore who purported to represent USFIA Singapore sent several communications to the Receiver's counsel claiming USFIA Singapore was unrelated to USFIA, Inc. and that the transfers to the two law firms were loans made to Chen at his request in violation of Singapore law. When asked for documents to support the claim that USFIA Singapore is unrelated to USFIA, Inc., the Singapore attorney provided none /SD -5-

8 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 8 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP The Receiver demanded the two law firms turn over the balance of the retainers in their possession that was unused as of the date of the Receiver's appointment. One of the firms - Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow PC ("Bird Marella") - agreed to do so. The balance turned over by Bird Marella was $574, The other firm - Wellman and Warren LLP ("Wellman") - in light of the claim raised by the Singapore lawyer, stated it would not turn over the balance of $128, in unused retainer funds until there was a Court order directing it to do so. Accordingly, the Receiver filed a motion for order directing Wellman to turn over the funds ("Turnover Motion"). Dkt. No. 43. Wellman filed a notice of non-opposition on February 11, Dkt. No. 45. The Court granted the motion on March 7, 2016 (Dkt. No. 57) and Wellman has returned the funds to the Receivership Entities. E. Li Zhao and Ally Investors As discussed in the First Report, in response to the TRO, Bank of America froze a custodial account (known as a UTMA account), as well as a safety deposit box, under the name of Jennifer Zhao aka Li Zhao ("Zhao"). The bank also froze and turned over to the Receiver a total of $3,034, that was in accounts under the name Ally Investors, LLC ("Ally"). The Ally accounts were frozen by Bank of America in response to receiving the TRO. The Ally account balances were then turned over to the Receiver in response to a request by the Receiver that Bank of America turn over all balances in accounts of the Receivership Entities. The facts and circumstances surrounding the relationships and transfers between Zhao, Chen, Ally, and the Receivership Entities are described in the Court's Order Granting in Part and Denying in Part Zhao and Ally's Motion to Intervene, to Direct the Receiver to Return Assets, and to Clarify Orders ("Order"). Dkt. No. 38. As provided in the Order, the Court allowed Zhao and Ally to intervene but determined Ally Investors to be an affiliated entity and therefore within the scope of the receivership, and on that basis, denied Zhao and Ally's request to direct the /SD -6-

9 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 9 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP Receiver to return the balances that had been in the Ally accounts and their request to unfreeze the safe deposit box, but granted their request to unfreeze the UTMA account. On a related note, in November 2015, the Receiver issued document subpoenas to Zhao and Ally, to which Zhao and Ally objected. Despite several meet and confers and attempts to resolve the objections, Zhao and Ally did not produce any documents in response to the subpoenas. Accordingly, on January 20, 2016, the Receiver filed a Joint Stipulation Re Thomas A. Seaman's Motion to Compel Compliance by Non-Parties Li Zhao and Ally Investors with Subpoenas for the Production of Documents ("Motion to Compel"). Dkt. No. 39. On February 4, 2016, Magistrate Judge Abrams granted the Motion to Compel as to all documents, other than s already in the Receiver's possession and denied Zhao's request to shift the costs of production to the receivership estate. Dkt. No. 44. The Court gave Zhao until February 25, 2016, to produce the subpoenaed documents. On February 25, 2016, Zhao produced certain documents. After further meet and confer discussions between counsel, Zhao produced additional documents on May 2, Separately, the Receiver discovered that a luxury home currently held by Zhao was paid for entirely by the Receivership Entities. Specifically, on April 3, 2015, the property located at 2857 Gainsborough Drive, San Marino, California was purchased for approximately $2,335,000, all of which funds were transferred directly to escrow from the Receivership Entities Amkey, Inc. and Ahome Real Estate LLC. The Receiver has demanded that Zhao turn over the Gainsborough Property. For the time being, Zhao and the Receiver are trying to reach a global resolution of issues. If a resolution of the Gainsborough Property issue is not reached in the short term, the Receiver will take necessary and appropriate steps to recover the property. F. Mercedes Vehicle The Receiver learned that a Mercedes S550 vehicle that was purchased by the Receivership Entities and titled in the name of Steve Chen was located at an /SD -7-

10 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 10 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP impound/towing lot after it was towed while in Chen's possession. The vehicle was being held by the towing company, Jan's Towing, pending payment of the towing and impound fees. Jan's Towing threatened to sell the vehicle if the fees were not paid. The Receiver sent a letter informing Jan's Towing of the Receivership Entities' interest in the vehicle and advising that the PI Order prohibited a sale (a copy of the PI order was attached). The Receiver and Chen then negotiated a stipulation vesting title to the vehicle in the Receiver such that the Receiver could recover the vehicle from Jan's Towing. Dkt. No. 67. Jan's Towing, however, then notified the Receiver the vehicle had been sold. The Receiver demanded Jan's Towing pay the Receiver the fair market value of the vehicle ($80,151), less the towing and impound fees owed. Jan's Towing did not respond, so the Receiver prepared a motion for order to show cause re: contempt and sanctions for Jan's Towing's knowing violation of the PI Order. Jan's Towing then acknowledged it had "sold" the car to itself (or its owner) and agreed to turn the vehicle over once the towing and impound fees were paid. The Receiver finally recovered the vehicle in June 2016 and is currently attempting to sell it through a licensed dealer, as provided in the order approving the stipulation. Dkt. No. 69. G. Investor Communications The Receiver has established a website to provide case information, regular updates, and answers to frequently asked questions to investors and creditors. The Internet address for the webpage is Due to the large number of Chinese-American investors, the website also provides a tab to view the website in Mandarin. In addition, as noted above, the Receiver continues efforts to generate a comprehensive list of investors and their contact information. As noted above, the Receiver will soon be sending an official communication regarding the receivership to the approximately 65,000 investor addresses identified thus far /SD -8-

11 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 11 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP III. SUMMARY OF RECEIPTS AND DISBURSEMENTS Attached as Exhibit A are a Profit and Loss Statement, Balance Sheet, and Detailed General Ledger, which provide an accounting of the receipts and disbursements to and from the receivership estate through March 31, Total receipts to the receivership from January 1, 2016 through March 31, 2016 were $6,107, and were comprised of $5,636, turned over by the U.S. Treasury, $1, turned over by banks, $128, turned over by Wellman, $209, in hotel revenue, $130, in rental income, and $1, in tax refunds. From inception through March 31, 2016, total receipts were $28,626,182.71, which is comprised of $26,827, turned over by banks, $702, in unused law firm retainers, $715, in hotel revenue, $378, in rental income, and $1, in tax refunds. The Receiver has also collected $1, in interest income on cash being held. As set forth on the Profit and Loss Statement, Balance Sheet, and General Ledger, the Receiver disbursed $413, during the quarter ending March 31, 2016, and $2,165, from inception of the receivership through March 31, Noteworthy among disbursements from inception through March 31, 2016, are professional and consulting fees of $537,809.65, $770, in hotel operating expenses, and $339, for real property taxes. The Receiver was holding cash in the amount of $26,943, as of March 31, IV. RECOMMENDATIONS The Receiver's efforts to marshal, preserve, and protect assets of the Receivership Entities and gather relevant documents and records are ongoing. Although the Receiver has gathered and reviewed a substantial amount of documents and information, more information necessary to gain an understanding of the Receivership Entities' financial affairs and transactions with third parties is being gathered as sources are identified. The Receiver and his professionals make the following recommendations with regard to the ongoing administration of the /SD -9-

12 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 12 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP receivership estate and their efforts to understand and document the financial activities of the Receivership Entities. A. Document Recovery Efforts The Receiver will continue to obtain records from all financial institutions where the Receivership Entities maintained accounts as well as from attorneys and accountants formerly engaged by the Receivership Entities. The Receiver has served subpoenas on certain institutions, individuals, and entities, in response to which a significant amount of records have been produced, and intends to continue with these efforts to obtain documents, assets, and information. It may also be necessary to take the depositions of certain individuals to obtain a complete picture of the enterprise. B. Receivership Asset Recovery Efforts and Investigation The Receiver will seek to locate any presently unaccounted for receivership assets that may exist. The Receiver will take appropriate steps to secure such assets and preserve their value as they are identified. C. Accounting The Receiver has begun a forensic accounting of those bank accounts that contained funds when the TRO was issued. The purpose of the accounting is to identify assets and potential sources of recovery, as well as forming a basis for an investor claims process. The accounting will analyze sources of funds obtained by the Receivership Entities and where these funds were later transferred or to whom these funds were paid. The accounting is ongoing. To date, over 90 bank accounts have been identified. The Receiver has thus far accounted for receipts to the Receivership Entities in excess of $164 million, which number he expects will increase as the accounting progresses. D. Repatriation of Overseas Assets Large payments to companies outside the United States, including companies in China, Vietnam, Mexico, and the Dominican Republic, have been identified in company accounting records. The Receiver will investigate what, if any, assets are /SD -10-

13 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 13 of 72 Page ID #: LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP located in overseas banks and institutions. The Receiver will then report to the Court and advise on proposed measures that may be taken in order to repatriate these assets. E. Maintain Operations of the Hotel, Apartment Building, and Single Family Residential Properties As noted above, the Receivership Entities own a hotel and an apartment building. The operations of these properties generate revenue and the underlying properties have significantly more value as operating businesses. Accordingly, the Receiver proposes to continue operations of these properties to preserve their value in the short term until they can be properly marketed and sold with Court approval. F. Investor Communications and Claims Process As discussed above, the Receiver is continuing to analyze data regarding the identities of investors and their contact information, and evaluating ways to efficiently disseminate information to them. As noted above, the Receiver will soon be sending an to approximately 65,000 investor s addresses identified thus far, which is the first step in this process. The Receiver anticipates developing and filing a motion for approval of a claims process in the next quarter. G. Asset Sales The Receiver has evaluated both the real and personal property assets that have been recovered. Given the cost of holding the assets and the possibility that certain of the assets may depreciate over time, the Receiver intends to file a motion for approval of procedures for the sale of both real and personal property. In the case of the personal property, the Receiver anticipates retaining an auctioneer to conduct a public sale. V. CONCLUSION Based upon his preliminary investigation and findings, the Receiver recommends and requests that the Court order him to continue to perform his duties /SD -11-

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15 Case 2:15-cv RGK-PLA Document 88 Filed 07/07/16 Page 15 of 72 Page ID #:2258 EXHIBIT A Exhibit A, Page 13

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