Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30175 Page 1 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP THOMAS C. HEBRANK Receiver 401 West A Street, Suite 1830 San Diego, California 92101 Phone: (619) 567-7223 Fax: (619) 567-7191 E-Mail: thebrank@ethreeadvisors.com SECURITIES AND EXCHANGE COMMISSION, 874670.01/SD v. Plaintiff, LOUIS V. SCHOOLER and FIRST FINANCIAL PLANNING CORPORATION d/b/a WESTERN FINANCIAL PLANNING CORPORATION, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Defendants. Case No. 3:12-cv-02164-GPC-JMA TWENTY-FOURTH INTERIM APPLICATION FOR APPROVAL AND PAYMENT OF FEES AND COSTS TO THOMAS C. HEBRANK, AS RECEIVER Date: October 5, 2018 Time: 1:30 p.m. Ctrm: 2D Judge: Hon. Gonzalo P. Curiel 12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30176 Page 2 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thomas C. Hebrank ("Receiver"), the Court-appointed permanent receiver for First Financial Planning Corporation d/b/a Western Financial Planning Corporation ("Western"), and its subsidiaries, including the general partnerships set up by Western (collectively, "Receivership Entities"), hereby submits this twenty-fourth interim application for payment of professional fees and reimbursement of costs for the time period April 1, 2018, through June 30, 2018 ("Application Period"). The Receiver incurred $76,317.75 in fees and $223.79 in costs for this Application Period, and asks the Court to approve on an interim basis and authorize the payment of 80% of the fees incurred (consistent with prior fee application awards from the Court), or $61,054.20, and 100% of the costs incurred. Detailed descriptions of the services rendered are contained in Exhibit A attached hereto. Exhibit B is a chart reflecting the hours and fees billed to each category of services on a monthly basis during the Application Period. Exhibit C is a summary of the out-of-pocket costs. During the Application Period, the Receiver and his staff have spent 404.9 hours at an overall blended billing rate of $188.49 per hour. The Receiver has discounted all fees by 10% from regular hourly billing rates. The financial status of the receivership estate during the Application Period is reflected in the Receiver's Twenty-Fourth Interim Report filed on August 17, 2018. Dkt. No. 1645. I. FEE APPLICATION The Receiver's work during the Application Period falls into the following categories: A. General Receivership B. Asset Investigation & Recovery C. Reporting D. Operations & Asset Sales 12cv02164 874670.01/SD
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30177 Page 3 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. Claims & Distributions F. Legal Matters & Pending Litigation A. General Receivership During the Application Period, the Receiver (a) handled general administrative matters, including reviewing mail, emails and other correspondence directed to the Receivership Entities; (b) administered the bank accounts of the Receivership Entities; (c) reviewed and approved expenditures; and (d) maintained and updated the Receiver's website with case information, documents, and filings inquiries. Name Title Rate Hours Fees T. Hebrank Receiver $247.50 14.0 $3,465.00 TOTAL 14.0 $3,465.00 Avg. Hourly Rate $247.50 B. Asset Investigation & Recovery None C. Reporting This category contains time spent by the Receiver appearing at Court hearings and preparing reports for the Court. Specifically, during this period, the Receiver prepared his Twenty-Third Interim Report, which was filed on May 15, 2018. Name Title Rate Hours Fees T. Hebrank Receiver $247.50 3.8 $940.50 G. Rodriguez Mng. Dir. $180.00 1.2 $216.00 TOTAL 5.0 $1,156.50 Avg. Hourly Rate $231.30 D. Operations & Asset Sales The Receiver's work in this category relates to (a) management and oversight of the General Partnerships' operations and real properties; 874670.01/SD -2-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30178 Page 4 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (b) management and oversight of Western's operations; (c) performing accounting functions of the Receivership Entities; (d) management and oversight of tax reporting for all of the Receivership Entities; (e) management and oversight of GP operational billings, loan payments, and overall cash management; and (f) obtaining listing agreements, the marketing of properties for sale with brokers, analysis relating to purchase offers received, conducting investor votes, negotiations and acceptance of purchase offers, and closing property sales. During the Application Period, the Receiver provided monthly case update reports that are sent via email to all investors listing out major legal filings, property sales activity, court rulings, tax, and other information. This was accomplished by working with a web designer/specialist and creating a MailChimp email list and content, which also allows investors to opt out, update contact information, etc. The Receiver has spent considerable time in listing and responding to sales activity on the various properties. The Receiver has filed motions to sell properties (Washoe V, Las Vegas 2, Twin Plant and Tecate South), and has been negotiating extensively on several others. During the Application Period, the Receiver finalized the closing of the sale of the Washoe V property. Finally, the Receiver spent a signification amount of time related to the filing of final investor K-1s and GP tax returns. In addition to the time spent in assisting the CPA firm with the initial preparation of these final K-1 forms, after significant investor feedback and a review of the underlying documents, the Receiver and the CPA firm determined that the final K-1s that were sent to investors were prepared incorrectly. The Receiver held numerous meetings with tax counsel, the CPA firm that prepared the taxes, and reviewed IRS reporting requirements, to determine the proper tax treatment of these final investor K-1s. In addition to sending out amended K-1s to the investors, the Receiver assisted in preparing FAQs to the investors to assist in the preparation of investors' tax 874670.01/SD -3-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30179 Page 5 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 returns. Due to this error as well as the overall complexity of the final K-1's (especially relating to investors who had their investments in tax deferred entities such as IRAs), the Receiver had to spent significant time in responding to investor inquiries. Name Title Rate Hours Fees T. Hebrank Receiver $247.50 24.2 $5,989.50 G. Rodriguez Mng. Dir. $180.00 88.2 $15,876.00 A. Herren Director $180.00 92.7 $16,686.00 TOTAL 205.1 $38,551.50 Avg. Hourly Rate 187.96 E. Claims & Distributions This category contains time spent by the Receiver with the investor claim process. On March 9, 2018, the Receiver filed his Motion to Make Interim Distributions to investors. The Receiver had to prepare projections of revenues and expenses in order to recommend to the Court an initial distribution amount to investors. The Court approved this motion on April 30, 2018. In order to make the distribution to the investors, the Receiver had to 1) create a new Access database of investor contributions and prior partial distributions; 2) make significant updates to investor addresses; 3) consolidate investor information for those with multiple GP investments and well as those being held in multiple names, i.e., trusts, separate property, retirement accounts; and 4 reconcile these amounts to the approved investor claim list. Once the distributions were sent out on or about June 12, 2018, a significant number of investors contacted the Receiver to inquire about their distribution how the amount was calculated, what was included and excluded, how their multiple investments were treated, and related questions. In many instances, distributions were resent to investors based upon their input and/or request for checks to be made out differently. 874670.01/SD -4-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30180 Page 6 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Name Title Rate Hours Fees T. Hebrank Receiver $247.50 8.9 $2,202.75 G. Rodriguez Mng. Dir. $180.00 47.8 $8,604.00 A. Herren Director $180.00 124.1 $22,338.00 TOTAL 180.8 $33,144.75 Avg. Hourly Rate $183.32 F. Legal Matters & Pending Litigation None G. Costs The Receiver requests the Court approve $223.79 in costs. A detailed listing of each expense is summarized in Exhibit C. The Receiver charges $.05 per page for copies and all other items are billed at actual cost. Any travel reflects coach airfare and reasonable accommodations billed at cost. II. FEES AND COSTS INCURRED AND PAID TO DATE From inception of the receivership on September 6, 2012, through June 30, 2018, the Receiver incurred fees and costs of $2,188,689.20, of which amount $429,085.26 is subject to holdback pending approval of the Receiver's final fee application at the conclusion of the receivership, $61,277.99 in fees and costs is awaiting the Court's review and approval in his Twenty-Fourth Interim Fee Application, and $1,698,325.95 has been approved by the Court and paid. During the same time period, Allen Matkins incurred fees and costs of $1,679,041.48, of which amount $343,986.08 is subject to holdback pending approval of Allen Matkins' final fee application at the conclusion of the receivership, $26,544.04 in fees and costs is awaiting the Court's review and approval in this Twenty-Fourth Interim Fee Application, and $1,308,511.36 in fees and costs has been approved by the Court and paid. Finally, during the same time period, tax accountant Duffy Kruspodin & Company, LLP ("Duffy") incurred fees and costs of $965,085.11 for preparing tax returns for Western, the GPs, and other non-gp Receivership Entities. Of this amount, $731,437.72 has been approved by the Court and paid 874670.01/SD -5-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30181 Page 7 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and $233,647.39 is awaiting the Court's review and approval in its Ninth Interim Fee Application. III. STANDARDIZED FUND ACCOUNTING REPORT Attached hereto as Exhibit D is a Standardized Fund Accounting Report covering the time period from April 1, 2018, through June 30, 2018, to coincide with the end of the Application Period. IV. THE REQUESTED FEES ARE REASONABLE AND SHOULD BE ALLOWED In its Order Granting in Part First Interim Fee Applications ("First Fee Application Order"), the Court analyzed the case law regarding approval of interim fee applications in regulatory receiverships and determined the following factors should be considered: (1) the complexity of the receiver's tasks; (2) the fair value of the time, labor, and skill measured by conservative business standards; (3) the quality of work performed, including the results obtained and the benefit to the receivership estate; (4) the burden the receivership estate may safely be able to bear; and (5) the Commission's opposition or acquiescence. In its orders on the Receiver's prior fee applications, the Court has determined the Receiver's tasks in this case are significantly complex, the hourly rates charged represented the fair value of the time, labor, and skill required, and the Receiver's work has materially benefited the Receivership Entities. The Receiver believes this fee request is likewise fair and reasonable and the fees and costs incurred were necessary to the administration of the receivership estate. The Receiver's request for compensation is based on his customary billing rates charged in similar matters, discounted by 10%. The blended hourly rate for all services provided during the Application Period is $188.49. The Receiver's billing rates are comparable or less than those charged in the community on similarly complex matters. 874670.01/SD -6-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30182 Page 8 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Costs The Receiver also requests Court approval of $223.79 in costs. A summary of costs is included as Exhibit C. The Receiver charges $.05 per page for copies and all other items are billed at actual cost. B. Receivership Estate's Ability to Bear Burden of Fees Pursuant to the Court's May 25, 2016 Order (Dkt. No. 1304), the assets of the Receivership Entities (Western and the GPs) have been pooled, creating a common pool of receivership estate cash from which mortgages, property taxes, and other operating expenses have been and will continue to be paid. The cash balance has grown and will continue to grow as properties are sold through the Court-approved Modified Orderly Sale Process (Dkt. Nos. 1309, 1359). As a result of these sales (and factoring the Court-approved interim distributions that had been cashed at the time), the receivership estate held approximately $8.7 million in cash as of June 30, 2017. Therefore, the receivership estate has the ability to pay the fees and costs requested herein. C. The Commission's Position Prior to filing, the Receiver and Allen Matkins provided these fee applications to counsel for the Securities and Exchange Commission ("Commission") in substantially final form. Counsel for the Commission has advised that the Commission has no opposition to the fees and costs requested. V. CONCLUSION The Receiver has worked diligently and efficiently in fulfilling his duties and has provided valuable service in that regard. 874670.01/SD -7-12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30183 Page 9 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, the Receiver requests an order: 1. Approving $76,317.75 in fees and $223.79 in costs incurred by the Receiver during the Application Period and authorizing payment on an interim basis of $61,054.20 in fees and $223.79 in costs from available receivership estate cash; and 2. Granting such other and further relief as is appropriate. Dated: August 29, 2018 874670.01/SD -8- By: THOMAS C. HEBRANK, Permanent Receiver 12cv02164
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30184 Page 10 of 34 EXHIBIT INDEX Exhibit A Detailed Descriptions of Services Rendered 11 Exhibit B Chart Reflecting Hours and Fees Billed to Each Category of Services 26 Exhibit C Summary of Out-of-Pocket Costs 29 Exhibit D Standardized Fund Accounting Report 31 875185.01/SD 372640-00009 -9-
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30185 Page 11 of 34 EXHIBIT A EXHIBIT A Exhibit A, Page 10
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Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30196 Page 22 of 34 Exhibit A, Page 21
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Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30198 Page 24 of 34 Exhibit A, Page 23
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Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30200 Page 26 of 34 EXHIBIT B EXHIBIT B Exhibit B, Page 25
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30201 Page 27 of 34 Exhibit B, Page 26
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30202 Page 28 of 34 Exhibit B, Page 27
Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30203 Page 29 of 34 EXHIBIT C EXHIBIT C Exhibit C, Page 28
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Case 3:12-cv-02164-GPC-JMA Document 1653 Filed 08/29/18 PageID.30205 Page 31 of 34 EXHIBIT D EXHIBIT D Exhibit D, Page 30
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