Thomas v. DeBenedictis

Filing 108

STIPULATION AND ORDER for entry of 4ty Modified Temporary Restraining Order; Signed by Judge Marilyn Hall Patel on 5/28/2010. (awb, COURT STAFF) (Filed on 5/28/2010)

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Alan R. Plutzik (State Bar No. 077785) L. Timothy Fisher (State Bar No. 191626) BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598 Telephone: [phone] Facsimile: [phone] Scott A. Bursor LAW OFFICES OF SCOTT A. BURSOR 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: [phone] Facsimile: [phone] Anthony Vozzolo (pro hac vice) Christopher Marlborough (pro hac vice) FARUQI & FARUQI, LLP 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and the Class UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES THOMAS, on behalf of himself and all those similarly situated, Plaintiff, v. ROBERT N. DEBENEDICTIS, et al. Defendants. Case No. C09-05664 MHP Class Action STIPULATION AND [PROPOSED] ORDER RE: 4TH MODIFIED TEMPORARY RESTRAINING ORDER

STIPULATION AND [PROPOSED] ORDER RE: 4TH MODIFIED TEMPORARY RESTRAINING ORDER Case No. C09-05664 MHP 61381

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STIPULATION WHEREAS, the parties have reached a settlement that would resolve this action and the claims against defendant Robert N. DeBenedictis in the underlying action Thomas v. Global Vision Products, Inc., Alameda County Superior Court Case No. RG03091195; WHEREAS, a copy of the Stipulation and Settlement Agreement is attached as Exhibit A,

WHEREAS, Article III(A) of the Stipulation and Settlement Agreement provides as follows: As soon as practicable, the parties shall submit to Judge Patel in the UFTA Action a Fourth Modified Temporary Restraining Order ("4th Modified TRO") which shall be identical to the 3rd Modified TRO except that it shall permit transfers provided (i) that the transfer is made for the purpose of effectuating this Settlement Agreement, and (ii) that Class Counsel have provided prior written consent for the transfer. Plaintiff and DeBenedictis shall stipulate to the entry of the 4th Modified TRO. WHEREAS, a copy of the 4th Modified Temporary Restraining Order is attached as Exhibit B hereto; NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by plaintiff James Thomas and defendant Robert DeBenedictis as follows: 1. The parties hereby stipulate to the entry of the 4th Modified Temporary Restraining

BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP Alan R. Plutzik (State Bar No. 077785) L. Timothy Fisher (State Bar No. 191626) 2125 Oak Grove Road, Suite 120 Walnut Creek, CA 94598

/s/ L. Timothy Fisher

Counsel for Plaintiff James Thomas

STIPULATION AND [PROPOSED] ORDER RE: 4TH MODIFIED TEMPORARY RESTRAINING ORDER Case No. C09-05664 MHP 61381

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Dated: May 26, 2010

LECLAIR RYAN, LLP Peter M. Hart (State Bar No. 107920) Michael T. Conway (State Bar No. 164004) Joseph A. Whitecavage (State Bar No. 154879) 44 Montgomery Street, 18th Floor San Francisco, CA 94104 By: /s/ Michael T. Conway

Counsel for Defendants Robert N. BeBenedictis, The Robert N. DeBenedictis Foundation, Gina Harrison, Susan Martino, Maryetta Sunni Prekup, Julie Martino, Avacor Products, LLC, East Side Club, LLC, 230 E. 58th Associates, LLC, Sunchaser Properties, LLC, 9th Avenue Wilton Manors, LLC, B&B Realty Development, LLC, Hanford and Henderson, LLC, 234 Townhouse, LLC, West Side Club, LLC, River Street Club, LLC, CND Properties, LLC, Blue Lagoon Motel, LLC, 3016 Windamar, LLC, 227 E. 56th Company, LLC, 835 River Bend, LLC, 1215 LLC, 511-404, LLC, 511-405, LLC, 505 Orton, LLC, 533 Orton, LLC, 543 Breakers, LLC, 717 Breakers, LLC, 528 Antioch, LLC, 2909 Vistamar, LLC, 710 N. Birch, LLC, 1164 Associates, LLC, Hollywood Acquisitions, LLC and Lorelei Property Management Attestation Pursuant To General Order 45 I, L. Timothy Fisher, attest that concurrence in the filing of this document has been obtained from the other signatories. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 26th day of May, 2010 at Walnut Creek, California. /s/ L. Timothy Fisher * * * * ORDER *

Pursuant to the parties' stipulation, IT IS SO ORDERED. The Court will enter the 4th Modified Temporary Restraining Order

UNIT ED

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Dated: __________________ 5/28/2010

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STIPULATION AND [PROPOSED] ORDER RE: 4TH MODIFIED TEMPORARY RESTRAINING ORDER Case No. C09-05664 MHP 61381 Judge

Marilyn

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O O PATEL THE HONORABLE MARILYN H. RD IT IS S UNITED STATES DISTRICT COURT JUDGE
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EXHIBIT A

EXHIBIT B

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[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JAMES THOMAS, on behalf of himself and all those similarly situated, Plaintiff, v. ROBERT N. DEBENEDICTIS, individually and as Trustee of the Opportunity Trust, THE ROBERT N. DEBENEDICTIS FOUNDATION, ROGER SNYDER a/k/a ROGELIO SNYDER, individually and as Trustee of the Opportunity Trust, GINA HARRISON, as Trustee of the Opportunity Trust, SUSAN MARTINO, individually and as Trustee of the Opportunity Trust, MARYETTA SUNNI PREKUP, individually and as Trustee of the Opportunity Trust, JULIE MARTINO individually and as Trustee of the Opportunity Trust, PAUL GALLUCCIO individually and as Trustee of the Opportunity Trust, AVACOR PRODUCTS, LLC, ANTHONY IMBRIOLO, SEA HOLDINGS, LLC, EAST SIDE CLUB LLC, 230 E. 58th ASSOCIATES, LLC, SUNCHASER PROPERTIES, LLC, 9th AVENUE WILTON MANORS, LLC, B&B REALTY DEVELOPMENT, LLC, HANFORD AND HENDERSON MANAGEMENT, LLC, 234 TOWNHOUSE, LLC, WEST SIDE CLUB, LLC, RIVER STREET CLUB, LLC, CND PROPERTIES, LLC, THE BLUE LAGOON MOTEL, LLC, 3016 WINDAMAR, LLC, 227 E. 56th COMPANY, LLC, 835 RIVER BEND, LLC, 1215, LLC, 511-404, LLC, 511-405, LLC, 505 ORTON, LLC, 533 ORTON, LLC, 543 BREAKERS, LLC, 717 BREAKERS, LLC, 528 ANTIOCH, LLC, 2909 VISTAMAR, LLC, 710 N. BIRTH, LLC, 1164 ASSOCIATES, LLC, HOLLYWOOD ACQUISITIONS, LLC, LORELEI PROPERTY MANAGEMENT, LLC, and JOHN DOES 1-100, Defendants. [PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER Case No. C09-05664 MHP

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FOURTH MODIFIED TEMPORARY RESTRAINING ORDER This Fourth Modified Temporary Restraining Order shall supersede the Third Modified Temporary Restraining Order issued by this Court on February 12, 2010 in the above-captioned matter. Pending a further hearing on a date to be set by the Court, ALL ASSETS, including real and personal property, bank and all other financial or monetary accounts, business receivables, other receivables and business interests including stocks or limited liability interests, of Robert N. DeBenedictis, the Robert N. DeBenedictis Foundation, and The Opportunity Trust ARE HEREBY FROZEN. You, your employees and agents, and any other persons acting with you or in your behalf are restrained and enjoined from withdrawing, removing, transferring, assigning, pledging, encumbering, disbursing, dissipating, converting, selling or otherwise disposing of any assets, including but not limited to cash, real and personal property, bank and all other financial or monetary accounts, business receivables, other receivables, and business interests including stocks, or limited liability interests except that the payments referenced in Schedules A-D, annexed hereto, may be made from the bank accounts identified in such Schedules. Mr. DeBenedictis may also incur reasonable expenses and attorney's fees in the prosecution, defense or compliance with court orders issued in the following actions pending: In re James Thomas, et al., RG03-091195 In re James Thomas, et al. Case No. C09-05664 MHP In re Global Vision Products, Inc., Case No. 07-12628 (RDD) In re 635 9th Avenue Corp., Index No. 603981/07 In re Robert Malta and 654 Restaurant Corp., Index No. 604140/07 In re Robert Malta and Chelsea Tomato Inc., Index No. 604141/07 In re Robert Malta and 635 9th Avenue Corp., Index No. 604142/07 In re Robert Malta and 9th Avenue Tomato Inc., Index No. 604143/07 In re Global Vision Products, Inc., Adv. Proc. No. 08-01342 (RDD) In re Gross Belsky Alonso LLP, Case No. 08-4666 SBA

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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In re Van De Poel, Levy & Allen, LLP, Case No.: 09-02138 SC (NDCA) In re Global Vision Products, Inc., Adv. Proc. No. 09-01387 (RDD) In re DeBenedictis v. Malta, et al., Index No.: 602537/08 In re Cabellero, et al., 09-5875 JSR (SDNY) In re James Thomas, et al., RG0 9482587. Where necessary, portions of the assets, including real and personal property, bank and all other financial or monetary accounts, business receivables, other receivables and business interests including stocks or limited liability interests, made be transferred into the accounts identified in Schedules A-D as necessary to allow Robert N. DeBenedictis, the Robert N. DeBenedictis Foundation or The Opportunity Trust to make the payments allowed by this Order. Nothing herein shall prevent Mr. DeBenedictis from making application to this Court for further modification of this Temporary Restraining Order to address additional personal expenses or expenses of the Robert N. DeBenedictis Foundation and/or The Opportunity Trust not considered by Schedules A-D. . Mr. DeBenedictis' interest in each and every business entity in which he has any interest or ownership shall be frozen. The business operating accounts shall not be frozen so as to restrain any such business from paying its ordinary business expenses, including without limitation, payroll and wages, trade vendors, utilities and ongoing periodic payments of loans and mortgages to financial institutions. But such businesses shall be restrained from making any transfers other than ordinary business expenses and shall report no less frequently than monthly by providing the bank account statements within 5 days from receipt.

IT IS FURTHER ORDERED THAT: The restraining order granted herein shall expire on a date to be set by the Court, unless extended by a subsequent order. Mr. DeBenedictis and/or the Robert N. DeBenedictis Foundation and/or The Opportunity Trust shall provide to counsel for plaintiff by e-mail copies of all bank account statements for the bank accounts referenced in Schedules A-D, and all accounts held by entities identified in Mr.
[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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DeBenedictis' January 13, 2010 declaration (stating the percentage of his interest in each and every business entity in which he has any interest or ownership) within 5 days of receipt during the period that this Temporary Restraining Order is in force. Mr. DeBenedictis and all persons acting under his direction or control or on his behalf shall act diligently in providing the bank account statements, and Mr. DeBenedictis shall submit a declaration to the Court by February 19, 2010 stating the day of the month that he typically receives bank account statements for each account subject to this order.

IT IS FURTHER ORDERED THAT: The sale or transfer of any asset subject to this Fourth Modified Temporary Restraining Order shall be permitted for purposes of effectuating the settlement of this action, provided (i) plaintiff's counsel provides written consent for the sale or transfer, and (ii) the proceeds of the sale or transfer are deposited in escrow with an escrow agent selected by plaintiff's counsel, or alternatively are held in trust pursuant to the terms of a settlement agreement or settlement trust agreement executed by the parties.

Dated: __________________

THE HONORABLE MARILYN H. PATEL UNITED STATES DISTRICT COURT JUDGE

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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RND FOUNDATION 9th Avenue Wilton Manors, LLC mortgage utilities re taxes due 11/30 B & B Realty Development mortgage utilities re taxes due 11/30 511 Bayshore Dr # 404 maint assess due 11/20 assess due 12/20 mortgage interest re taxes due 11/30 511 Bayshore Dr # 405 maint assess due 11/20 assess due 12/20 mortgage interest re taxes due 11/30 CND Properties, LLC monthly overhead The Blue Lagoon Motel, LLC mortgage 3016 Windamar,LLC mortgage 835 Riverbend, LLC re taxes due 11/30 550 NE 20th St, LLC re taxes due 11/30 505 Orton Ave, LLC mortgage 533 Orton Avenue, LLC

Schedule A
THE OPPORTUNITY TRUST PROJECTED MONTHLY EXPENSES

To be paid from Signature Bank checking # 1500970894
700.00

612.00 40.00 3,268.00

2,170.00 80.00 7,792.00

368.00 713.00 713.00 858.00 4,815.00

368.00 713.00 713.00 1,334.00 4,815.00

400.00

4,792.00

7,650.00

10,290.00

23,429.00

4,388.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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mortgage 543 Breakers, LLC mortgage 717 Breakers, LLC mortgage 528 Antioch, LLC re taxes due 11/30

6,030.00

3,395.00

11,560.00

7,486.00

1215, LLC mortgage 2909 Vistamar, LLC mortgage 710 No Birch, LLC mortgage re taxes due 11/30 1164 Associates, LLC Hollywood Acquisitions, LLC Lorelei Property Mgmt Group, LLC

6,919.00

13,132.00

5,171.00 22,128.00 6,410.00 5,387.00 3,103.00

TOTAL

181,042.00

LESS ONE TIME EXPENSES (Real Estate Taxes & Assessments) AVERAGE MONTHLY EXPENSES

(86,875.00)

94,167.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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Schedule B
ROBERT DEBENEDICTIS PROJECTED MONTHLY BUSINESS EXPENSES

To be paid from Signature Bank checking # 1500875336
9th Avenue Wilton Manors, LLC mortgage utilities re taxes due 11/30 B & B Realty Development mortgage utilities re taxes due 11/30 511 Bayshore Dr # 404 maint assess due 11/20 assess due 12/20 mortgage interest re taxes due 11/30 511 Bayshore Dr # 405 maint assess due 11/20 assess due 12/20 mortgage interest re taxes due 11/30 CND Properties, LLC monthly overhead The Blue Lagoon Motel, LLC mortgage 3016 Windamar,LLC mortgage 835 Riverbend, LLC re taxes due 11/30 550 NE 20th St, LLC re taxes due 11/30 505 Orton Ave, LLC mortgage 533 Orton Avenue, LLC mortgage 153.00 10.00 817.00

271.00 20.00 1,948.00

92.00 178.00 178.00 215.00 1,204.00

92.00 178.00 178.00 333.00 1,204.00

100.00

1,198.00

1,912.00

2,572.00

5,857.00

1,097.00

1,508.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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543 Breakers, LLC mortgage 717 Breakers, LLC mortgage 528 Antioch, LLC re taxes due 11/30

849.00

2,890.00

1,872.00

1215, LLC mortgage 2909 Vistamar, LLC mortgage 710 No Birch, LLC mortgage re taxes due 11/30 1164 Associates, LLC Hollywood Acquisitions, LLC Lorelei Property Mgmt Group, LLC

1,730.00

3,283.00

1,293.00 5,532.00 1,602.00 1,347.00 776.00

TOTAL

42,489.00

LESS ONE TIME EXPENSES (Real Estate Taxes & Assessments) AVERAGE MONTHLY EXPENSES

(21,718.00)

20,771.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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Schedule C
ROBERT DEBENEDICTIS PERSONAL MONTHLY EXPENSES

To be paid from Citibank checking # 64520267 or Signature Bank checking # 1500875336
39 Gramercy Park maint cable phone/internet electric equity line interest only 99 Red Creek Road cable phone electric repairs re taxes due 1/1/10 (est) 625 Orton maint cable phone electric re taxes due 11/30 20 Orchard Hill Drive mortgage 279 So Tradewinds Ave mortgage 221 East 50th St maint electric 321 West 13th St maint 321 E 43rd St maint 45 Tudor City Place maint Auto Insurance Credit Cards 2,149.00 684.00 50.00 586.00 75.00 75.00 80.00 3,490.00 1,385.00 61.00 167.00 60.00 1,225.00

50.00 50.00 50.00 75.00 6,000.00

7,244.00

2,403.00

376.00

1,084.00 676.00 4,275.84

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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Other Monthly Expenses Airfare to FL (roundtrip) Groceries/Household Items Gas & Auto Exp Medical Expense Miscellaneous Spending

300.00 200.00 100.00 100.00 250.00 950.00

TOTAL

33,320.84

TOTAL EXPENSES CARRIED FORWARD

33,320.84

LESS ONE TIME EXPENSES (Real Estate Taxes & Credit Cards) SUB TOTAL LESS MONTHLY RENTAL INCOME: 321 E 43rd St 1,492.00 45 Tudor City Place 923.00

(13,765.84)

19,555.00

(2,415.00)

AVERAGE MONTHLY EXPENSES

17,140.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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Schedule D
ROBERT N DEBENEDICTIS FOUNDATION PROJECTED MONTHLY EXPENSES

To be paid from Signature Bank checking # 1500876677
Total Income from The Opportunity Trust Expenses Rent Phone Pet Project For Pets, Inc. (food 400 animals) TOTAL EXPENSES

450.00 250.00 3,000.00 3,700.00

[PROPOSED] FOURTH MODIFIED TEMPORARY RESTRAINING ORDER
Case No. C09-05664 MHP

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