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Monday, November 19, 2012
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The Curious Case of Sheldon Player---Continued(s)
The following report from Tom McCurnin deserves an introduction, as he finds Sheldon Player and Equipment Acquisition Resources in a new twist. Since Leasing News’ alert May 2, 2007 on Player being convicted of bilking Greycas Inc. and another Greyhound unit, Greyhound Leasing & Financial Corp., of over $ 75 million, the new result turned out to be doing the same scam for $175 million this time--- with Equipment Acquisition Resources, stories on his winnings at casinos, life style, and all the bankruptcy stories are quite curious, or strange.
Why Player has not been arrested and thrown in jail, why he remains free, and allegedly has millions in cash (as told to Leasing News by his three year "bodyguard," may be explained in Tom McCurnin’s report that follows.
The case regarding First Premier Capital, LLC v. VonLehman & Company regarding the financial statements and representations with a demand of$9,999,000: Motions for summary judgment are due by August 10, 2012.A trial has been set for January 7, 2013.(1)
The bankruptcy trustee has a $4,656,002.69 judgment against Player, as well as the IRS issue, yet no one seems to be able to find him (although Leasing News has reported his habits and his "bodyguard" has spoken with him. They threw Charles Schwartz into the federal pen pretty quickly in the Allied Health Care Services.
This new twist may explain why Player is free to visit casinos and indulge in his favorite sort.
Leasing News contacted several of the attorneys involved in representing their clients as to why they haven't sued him as an individual, especially if he has all this alleged cash. No one wanted to make a comment.
What follows may be why they did not want to make a comment, as well as may explain why Sheldon Player remains a “free man.”
Christopher Menkin, editor
(1)First Premier-VonLehman status:
Sheldon Player's Equipment Acquisition Resources
By Tom McCurnin
Misery Loves Company. Equipment Lessors Flocked to EAR Seven Years Ago, Now Face Fraudulent Conveyance Charges by Trustee;
In re Equipment Acquisition Resources, Inc. 2012 WL 4755028 (Bankruptcy N.D.Ill.,2012)
Like Lemmings rushing to a cliff, equipment lessors flocked to Sheldon Players’ Equipment Acquisition Resources in 2004 to finance refurbished semiconductor-making machinery for Player. The losses for the lessors approached $175 million dollars. If that isn’t injury enough, EAR’s Bankruptcy Trustee has filed a series of lawsuits against the lessors for fraudulent conveyance. The lawsuits are identical in every respect to those filed against credit card companies and other entities that received payments from EAR in its waning years.
An Illinois Bankruptcy Court, while granting about 18 Motions to Dismiss, allowed EAR to file an amended pleading, breathing new life into this action, and stretching the case into the New Year. The question for the lessors is whether they can convince the bankruptcy judge that legitimate lease obligations should not be fraudulent transfers. The challenge for the lessors is a patchwork of inconsistent case law for Ponzi scheme. This case could go either way. This is why many of the credit card issuers, also sued under identical Complaints, have settled for about 50 cents on the dollar.
The complaint against the lessors is oddly written and it remains to be seen whether it has legs, but for now, even though the lessors won a Motion to Dismiss, the victory was largely pyric victory, because the Bankruptcy Court allowed the Trustee to amend its Complaint, and it quickly took up the Court’s opportunity, and we are likely to see a more substantive ruling on the merits of the Trustee’s claims by Christmas. The facts follow:
Sheldon Player ran a Ponzi scheme, double and triple financing imaginary equipment to about 20 equipment lessors. When the Ponzi scheme crashed, Player and his wife resigned, and a turn-around group took over management of EAR. EAR filed bankruptcy in 2009, and earlier this year, the Debtor in Possession filed suit against the lessors for fraudulent conveyance.
I’ve read the Complaint, and it is not entirely clear to me what the Debtor is claiming, but here is an excerpt which is paraphrased for easier reading:
“Player caused EAR to agree to enter into the Leases because doing so furthered his fraudulent scheme. As a result of the misconduct, EAR creditors that had financing and leases which were part of Player's scheme have been unable to identify what, if any, equipment that was previously located at EAR's facilities was subject to a valid security agreement or lease.”
“EAR entered into the Leases and made required payments Because EAR owned the equipment in question prior to the date of the Leases, the transactions were unnecessary from a business standpoint. Rather, EAR entered into the Leases in order to generate cash for use in paying other outstanding lease obligations as part of the Ponzi scheme.”
Essentially the Debtor is claiming that the payments EAR made to the lessors are fraudulent conveyances. Certainly the payments were transfers, that is without question. Moreover, EAR was insolvent at the time. The question for me was whether the lessors gave EAR “reasonably equivalent value,” which seems to be a missing element. After all the lessors did give EAR cash for the non-existent equipment. Why isn’t that reasonably equivalent value?
Special Rules for Ponzi Scheme in Bankruptcy
The answer lies in some special rules for bankruptcy courts developed for handling Ponzi schemes like EAR. Those special rules allow the trustee to sue “winning investors” on behalf of “losing investors” Essentially, the trustees attempts to recover legitimate payments of monies for all the parties, under the theory that the whole enterprise was a fraud. Presumably, the lessors which received lease payments are “winning investors” and the other creditors are “losing investor.” However, since most Ponzi scheme litigation is against investors, not legitimate creditors, this case is one of first impression for me at least.
The problem with this case is that Ponzi scheme cases often don’t fit into neat little classifications like reasonably equivalent value and arm’s length transactions. Moreover, there are no specific statutes governing Ponzi schemes, just a patchwork of preference law, avoiding powers, and fraudulent conveyance statutes. In addition, most Bankruptcy trustees use the State Uniform Fraudulent Conveyance Act which provides different grounds and remedies. In short, the bankruptcy treatment of this issue is a mess.
Recently, Golden Gate University hosted a symposium on Ponzi schemes, much of which has been published, including fraudulent transfers, claims litigation, and Many of the speakers called out for a uniform treatment of Ponzi scheme litigation in the bankruptcy statutes, which have no direct statutory guidelines.
The Motions to Dismiss and Ruling
The lessors (Pentech, U.S. Bancorp, Alliance Commercial Capital, SunTrust Leasing, IBM Credit Comerica Leasing, SunTrust, and Leasing One) filed a series of Motions to Dismiss, claiming that the lessors’ obligations were arms-length leases, the fraud was not spelled out with specificity, there were no badges of fraud, and that payments on antecedent debts are preferences, not fraudulent conveyances.
The trial court granted the motions in part, but allowed the Debtor to re-file the action with additional specificity, which it immediately did. This means another round of law and motion, stretching into next year. The Bankruptcy Judge has consolidated the briefing schedule and issued one identical ruling in the 18 cases. There is no reason to expect that the Court will do it different this time around.
The Amended Complaint sets forth the existence of the Ponzi scheme and essentially makes the argument that “but for” the actions of the lessors in making the leases and accepting payments, the Ponzi scheme would have been detected earlier. There is no allegation of overt fraud, other than on the part of Sheldon Player.
Quite frankly, the Complaint is a bit of a stretch for me. I simply don’t buy the idea that the 18 or so equipment lessors are singularly responsible for the Sheldon Player Ponzi scheme.
What Does the Future Hold for the
I’m not good at predicting the future, but I can safely say that there will be three things that will occur over the next 90 days:
• Expenditure of Significant Legal Expenses. Without question, there will be a second, and more important round of Motions to Dismiss, with each lessor putting forth its own reasons for getting the case thrown out. We’ve handled several of these here in California, and one of the best strategies is to form a litigation steering committee, so that strategies and paperwork can be spread out at reduced costs.
• Uncertain Risk. If EAR’s Complaint survives this second round, costs and the uncertainty of a result will make for some sleepless nights for some. While I am very familiar with Ponzi scheme litigation involving investors, going after creditors presents a new wrinkle,
• Potential Settlements. The credit card issuers, by in large, have settled the claims for 50%, which is awfully high, but then again, legal fees could dwarf the payment pool that the credit card issuer received. Certainly, if the lessors could get EAR into a settlement number which was equal to or less than costs of defense, it might make sense to settle this matter. The Golden Gate Symposium I made reference to earlier had a whole section on mediation tips and strategies.
Tom McCurnin is a partner at Barton, Klugman & Oetting
Barton, Klugman & Oetting
Previous Tom McCurnin Articles:
“Rental language for leases”
Section 179 will be ending December 31, 2012 as well as new lease accounting changes will be going into effect, perhaps in 2013 or as far away as 2014, bringing back more “operating leases” to the marketplace, but with shorter terms to meet the new requirements. Many such leases are being written today, and definitely more in 2013, right around the corner.
The new shorter term leases will focus more on the use of the equipment than leasing has in the past. We have always been concerned about equipment return and its condition upon that return to protect our residual assumption. Now we will be more concerned on the use during the term of the lease because the residual will be larger and more important.
One of the issues that lessors will have to contend with is the release of the equipment from short term leases. Article 2A defines leases as three party leases, called finance leases, and two party leases. Finance leases protect the lessor from equipment performance provided the supply contract from the vendor is passed to the lessee. Two party leases have no such protection so the release of off lease equipment will require additional language to protect the lessor as much as possible. This will require a lot of thought and consideration.
The purchase order to the vendor will require new language so that the vendor understands that the use of the equipment will be from a second party and the vendor indemnifies the lessor against any action from the lessee on the equipment’s failure or injury. This will require new types of insurance and a detailed understanding of the equipment’s use.
Rentals will require new language to cover conditions not usually covered in a standard lease agreement. This will influence all types of equipment, especially healthcare and software.
I looked at a rental agreement for transportation equipment for examples of use requirements and indemnification to protect the lessor.
Limits on Use and Termination of Right to Use:
A. Renter agrees to the following limits of use:
B. In the event of any violation of the limits of use or any other provision of this agreement. Owner automatically, without further notice to renter terminates their right to use Vehicle/Vehicle/equipment and Owner retains any other rights and remedies provided by law. Owner has the right to seize Vehicles/Vehicle/equipment without legal process or notice to renter. Renter hereby waives all claims for damages connected with such seizure and shall pay all expenses incurred by Owner in returning Vehicle/Vehicle/equipment to the original location of (address of lessor).
Indemnification by Renter:
This language only begins the requirements for short term leases as we begin the process of developing new lease agreements. Rental agreements put a new light on how commercial equipment leasing is segmented in the future as this change is added to our product mix.
Mr. Terry Winders, CLP, has been a teacher, consultant, expert witness for the leasing industry for thirty-five years and can be reached at email@example.com or 502-649-0448
He invites your questions and queries.
Previous #102 Columns:
(This ad is a “trade” for the writing of this column. Opinions
Muslim Bank? in Georgia Fails
Hometown Community was the 50th bank to fail this year; tenth in Georgia, still reeling from real estate loans, primarily residential developments gone underwater, meaning not paying their mortgages.
Construction and land development write-offs and non-current loans were severe.
The two branches of Hometown Community Bank, Braselton, Georgia, were closed with Certus Bank, National Association, Easley, South Carolina, to assume all of the deposits. Founded August 1, 2005 they had 18 employees at their office in Braselton and Hoschton. In 2007, they had 22 full time employees. September 30, 2012 Tier 1 risk based capital .07%--One of the worst seen in quite some time. This after two major investments to keep the bank afloat.
Several Georgia regional newspapers labeled it a "Muslim bank," but that does not appear accurate, although it may be considered the second bank formed by Indian-American business leaders in Georgia to fail. (1)
Founding documents show Chairman of the Board of Directors was Amyn A. Meghani, age 36, born in India, owner of a commercial and residential real estate developer, Dunhill Developers/Orlando Commerce, owns and operates Tabo's Grocery, owning 6.3% of the stock. On the board, next highest stock holder, Chandra Kant I. "C.K." Patel, age 47, hotel owner, chairman of the Asian American Hotel Owners Association , next highest shareholder on the board Dr. Terry H. Elrod, age, 43, dentist, also Vice President of Parson's Plantation Property Owners Association, next Melvin "Monk" Tolbet, 65, family owned and managed Mortgage Services of Georgia, a residential mortgage broker. In 1991, the family formed Professional Realty, where Mr. Tolbert continues to manage commercial and sell residential properties.
Another document shows an amendment with John C. Buchanan joining founders with 10% of the shares: " In 1984, Mr. Buchanan formed Buchanan Properties, Inc. and began to acquire large tracts of land in Jackson County and began developing the land primarily for residential development purposes. Mr. Buchanan developed such properties as Deer Creek Farms, Quail Crossing, Liberty Crest East, West & North, The Preserve and River Plantations. Mr. Buchanan served on the Board of Directors of Bank from January through December of 2004 and on the regional Board of Directors for Jackson County of Regions Bank from 1996 through 2003. Mr. Buchanan currently serves as a member of the Jackson County Industrial Development Authority and on the Board of Directors of the Jackson County Boys and Girls Club. Mr. Buchanan and his wife of forty-six years live in Hoschton, Georgia and have two children and six grandchildren."
March 28, 2012 Amyn Meghani was one of five arrested for gambling and keeping a gambling location. Search warrants were given to local banks to freeze assets of businesses and individuals suspected to be involved.
Also among those arrested were Azadul Islam, Amyn Meghani, M. Amin, Rekhaben M. Chaudhari and Bharatbha D. Chaudhari.
All of them are charged with illegal commercial gambling and keeping an illegal gambling place.
Hometown Community Bank raised $4 million in 2010 and was set for $5 million in 2011. http://www.jacksonheraldtoday.com/archives/5316-Outside-investor-adds-5-million-to-banks-coffers.html
It appears the bank knew it was headed for trouble as in 2011 net equty was increased to $7.4 million from the previous year (after a 2010 $4.9 million bank loss, but 2011 saw a $11.2 non-current loan and then September 30, 2012 the bank showed a $12.7 million loss resulting in a negative equity of $5.3 million following a $6.7 million charge off September 30, 2012.
It can be said that those involved in real estate and mortgages know their community, but when it is so one sided, the directions of the board is myopic.
(in millions, unless otherwise)
Construction and Land, 1-4 family multiple residential, Multiple Family Residential, Non Farm Non-Residential loans.
As of September 30, 2012, Hometown Community Bank had approximately $124.6 million in total assets and $108.9 million in total deposits. In addition to assuming all of the deposits of the failed bank, CertusBank, N.A. agreed to purchase essentially all of the assets.
As of September 30, 2012, Hometown Community Bank had approximately $124.6 million in total assets and $108.9 million in total deposits.
The FDIC estimates that the cost to the Deposit Insurance Fund (DIF) will be $36.7 million.
(1) High Trust Bank
Bank Failure Map and Statistics:
List of Bank Failures:
“Job Application Follow Up”
Question: I applied electronically for a position that was posted about two weeks ago and have not received any response. How should I proceed in following up?
Answer: You have to understand that HR reps receive 100s of resumes weekly; it takes weeks for HR to review resumes and qualify candidates. Utilizing a recruiter can avoid these time lapses - we know how to move the process along!
Sometimes you have to wait and be patient (argg). You can try following up, but you have to be careful – assertive is good – aggressive is NOT.
Reaching out to the individual you submitted your credentials to is appropriate. However, too many calls = a nuisance and will hinder your chances of a call back. Three is the magic number:
1. 24 hours after submittal
A follow-up email should reiterate your qualifications for the position. If you still do not hear from the company, move on. I suggest contacting a recruiter who can minimize the stress of the application process!
Tip: If your resume is not compelling, I guarantee there are 100s of others that are – it will go to the bottom of the pile!
Career Crossroads Previous Columns
(This offer will expire November 21st)
"The Memory Shock"
Well known leasing broker, active in the National Association of Equipment Leasing Brokers (NAELB), former moderator of the NAELB blogs, is also a lecturer on memory with a list of clients including the NYPD Police Academy.
In reading his new book on improving your memory, it was both entertaining and informative--- but make no mistake this is no game or trick, but divided into several levels, with the reader deciding which to reach for, or to re-read and study. I found it to be learning a new way of "thinking," of opening the existing memory, the attic as Sherlock Holmes called it, and bringing this out of storage.
There really are no secrets in Barry's book, as he explains it, and it is organized to open your thinking, more than just like exercising a muscle, as it also brings creativity and insight that exists. He not only demonstrates but illustrates, almost as if he is there talking with you.
It is 238 pages. You can stop after reaching the goal you want to, or continue.
If you have a child or grandchild in college, this is a must Christmas or birthday present.
---Kit Menkin, editor
$19.95 at Amazon.com
Leasing News Top Stories Nov. 14—Nov. 16
Here are the top ten stories opened by readers
(1) Archives: November 14, 2000
(2) GreatAmerica Changes its Trade Name
(3) NAELB Conference, Irvine, California
(4) Leasing 102 by Mr. Terry Winders, CLP
(5) On Deck reaches $300 Million Delivered to Main Street
(6) Archives, November 16, 2000
(7) Collection Agency’s Robo-Phone Calls to Customers Cell
(8) New Hires---Promotions
(9) Municipal LED Street Light Financing by Atticus Financial
(10) Kentucky Court Finds Secret Government Lien for Lease
(Leasing News provides this ad as a trade for investigations
Office Manager Faces Six years, $250,000
Santa Ana, California –Denise Browning, formerly a resident of Huntington Beach, California, was found guilty of two counts of aiding and assisting in the preparation of false payroll tax returns, following a three day trial before U.S.District Judge Philip S. Gutierrez on Friday.
Denise Browning, 47, was previously charged with two counts of aiding and assisting in the preparation of false payroll returns in an eight count indictment filed on August 26, 2011.
According to the indictment, Michael P. Harvey, 53, formerly of Anaheim Hills, and Jason M. Harvey, 32, formerly of Yorba Linda, and owner of Advanced Business Payroll, Inc., Global Business Outsource Solutions, Inc., and Global Consulting, Inc., were arraigned for attempting to evade the payment of over $15 million in payroll taxes and interest due to the IRS. Denise Browning was alleged to have aided and assisted in the preparation of the false payroll tax returns, Forms 941, for Advance Business Payroll, Inc. and Global Payroll Services, Inc.
On January 6, 2012, Michael Harvey pleaded guilty to evading the payment of payroll taxes and interest assessed against him by IRS. On July 31, 2012, Jason Harvey also pleaded guilty to evading the payment of payroll taxes and interest assessed against him by IRS.
According to court documents, beginning around September 18, 2006 and continuing through at least December 29, 2006, Michael P. Harvey and Jason M. Harvey attempted to evade the payment of a tax liability of more than $15 million assessed against Michael P. Harvey for his failure to pay to the IRS taxes withheld from the wages of employees.
According to court documents, around September 18, 2006, an agent of the IRS served wage levies directed to Advanced Business Payroll, Inc., Global Business Outsource Solutions, Inc., and Global Consulting, Inc., companies which were owned and operated by Jason M. Harvey. The levies required those companies to pay to the IRS amounts that became due and owing by the companies to Michael P. Harvey. Both Michael Harvey and Jason Harvey acknowledged service of the levies in writing around September 27, 2006. Michael Harvey admitted that he caused the companies to not honor the levies, and aided Jason Harvey to cause those companies to not honor the IRS levies.
According to court documents, before the service of the levies, Advanced Business Payroll, Inc., Global Business Outsource Solutions, Inc., and Global Consulting, Inc. issued more than 45 checks made payable to Michael Harvey which totaled more than $230,000. However, after service of the levies, the companies instead made cash payments to Michael Harvey of at least $62,700, and also paid Michael Harvey at least six checks made payable to “cash” totaling $22,800, without paying such amounts to the IRS in accordance with the levies. Also, in December 2006, Jason Harvey and Michael Harvey caused Global Consulting Inc., to issue two checks totaling $100,000 for the credit of Michael Harvey which were used to make payments on a personal judgment against Michael Harvey.
At time of sentencing, Denise Browning faces a maximum sentence of six years imprisonment; a one year period of supervised release; a fine of $250,000 or twice the gross gain or loss resulting from the offense, whichever is greater; and a mandatory special assessment of $200. Sentencing is scheduled for February 13, 2012 before U.S. District Judge Philip S. Gutierrez at 10:00 AM.
At time of sentencing, Jason Harvey and Michael P. Harvey each face a maximum sentence of five years imprisonment; a three year period of supervised release; a fine of $250,000 or twice the gross gain or loss resulting from the offense, whichever is greater; and a mandatory special assessment of $100. Sentencing is scheduled for Jason Harvey and Michael P. Harvey January 28, 2013 before U.S. District Judge George H. King at 11:00 AM.United States Attorney’s Office Contact:
Assistant United States Attorney
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Afghan House/Alaskan Malamute Mix
"I am already neutered, housetrained, in need of an experienced adopter, up to date with shots, good with kids, good with dogs, and not good with cats."
"Max’s adoption fee is on a sliding scale of $100-$150; you choose the amount that is right for you. Max is in a Cedar Rapids foster home, where he is getting along well with the resident dogs. He is a very energetic dog and needs a lot of daily exercise. Max is a great running and walking partner.
Contact This Shelter...
Please visit us on any Saturday from 11:00 to 3:00. Safe Place is at 3800 Wilson Avenue SW in Cedar Rapids. We are in the former Dog Zone space, on the street that runs behind the outdoor mall on Edgewood where Gander Mountain is located. Our street has a Goodwill on the corner. Next to that is Westdale Bowling Center, followed by a self-storage facility, followed by our building. There is a church, Relevant Life Ministries, in the front of the building; we are in the back. When you pull into our drive, there is a sign directing you to drive straight back. A six-foot sign above the door and a smaller sign on the door will tell you you’re at the right place.
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SEE IT THROUGH
by Edgar A. Guest (1881-1959)
When you're up against a trouble, Meet it squarely, face to face; Lift your chin and set your shoulders, Plant your feet and take a brace. When it's vain to try to dodge it, Do the best that you can do; You may fail, but you may conquer, See it through!
Black may be the clouds about you And your future may seem grim, But don't let your nerve desert you; Keep yourself in fighting trim. If the worst is bound to happen, Spite of all that you can do, Running from it will not save you, See it through!
Even hope may seem but futile, When with troubles you're beset, But remember you are facing Just what other men have met. You may fail, but fall still fighting; Don't give up, whate'er you do; Eyes front, head high to the finish. See it through!
Edgar A Guest,. often referred to as the common man's poet. was a staff writer for the Detroit News (Michigan) and had his poetry published in the paper for many years.
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This Day in History
1493- Columbus discovered Puerto Rico on his second voyage to the New World. He never set foot on the mainland of what today is the United States. He was a major slave trader of the times, committing genocide, bringing tobacco to addict Europe ( a crop unknown before its discovery in the New World.) Contrary to published reports, the world was known to the general population to be round, there was a easy sail at the time of the year to the Bahama’s, and he died a rich man from all the “commissions” he received from the many voyages to plunder the islands he discovered. (see two books by James W. Loewen, “The Truth about Columbus,” and “ Lies, May Teach Told Me.”)
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