CGC Holding Company, LLC et al v. Hutchens et al

Filing 434

Letters Rogatory Issued re: 433 Order on Motion for Issuance of Letters Rogatory. By Judge R. Brooke Jackson on 04/24/13. (alvsl)

UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 11-CV-001012
CGC HOLDING COMPANY, LLC, a Colorado limited liability company;
CRESCENT SOUND YACHT CLUB, LLC, a Florida limited liability company;
HARLEM ALGONQUIN, LLC, an Illinois limited liability company; and
JAMES T. MEDICK;
on behalf of themselves and all others similarly situated
Plaintiffs,
v.
SANDY HUTCHENS, a/k/a Fred Hayes, a/k/a Moishe Alexander, a/k/a Moshe Ben Avraham;
et al.
Defendants.

LETTERS ROGATORY

The United States District Court for the District of Colorado presents its compliments to
the Ontario Superior Court of Justice in the Province of Ontario, Canada, and requests judicial
assistance to issue appropriate orders, subpoenas or other compulsory process in an action or
proceeding in Ontario to recognize and enforce the within orders, as well as other orders entered
hereafter. This Court requests the assistance described herein as necessary in the interests of
justice. This Court stands ready to extend similar assistance to the Courts of Ontario in like
cases.
I. SUMMARY OF ACTION

The Plaintiffs commenced this federal class action on April 11, 2011. The action is on
behalf of various natural persons and entities situated throughout the United States who have
similar claims. The Plaintiffs claim that an advance fee loan fraud was organized and controlled
by Sandy Hutchens. Through the use of aliases and shell corporate entities, and in conjunction
with Tanya Hutchens and Jennifer Hutchens (collectively, the “Hutchens Defendants”) and with
the assistance of the other Defendants, which include, among others, legal counsel, an illusion
was created that Sandy Hutchens was operating a bona fide real estate lending enterprise when,
in fact, he was perpetrating an elaborate, fraudulent scheme whereby members of the Plaintiffs’
class paid millions of dollars in advance fees, such as “administration fees,” “legal fees” and
“inspection fees,” in consideration for what they believed to be legitimate loans that would be
advanced. Ultimately, Sandy Hutchens, through the use of his corporate entities and with the
assistance of the other Defendants, has deprived the Plaintiffs’ class of monies in excess of $8.4
million USD.
II. ASSISTANCE REQUIRED
The persons listed below have evidence that is relevant to this case and is necessary at
trial but is not otherwise obtainable through this Court’s compulsory process. This Court has
jurisdiction to order discovery under the Federal Rules of Civil Procedure, including the
production of documents, from any person regarding any matter which is relevant to the subject
matter of the pending action. The evidence, which the Plaintiffs are hereby authorized to seek, is
necessary in order to do justice in this case.

This Court hereby ORDERS that the Plaintiffs are authorized to obtain information
relevant to their claims set forth in the Amended Complaint (the “Claims”), including the
existence, description, nature, custody, condition and location of any documents or other tangible
things and the identity and location of persons who know of any discoverable matter, which
information is limited to the period from January 1, 2005 through the present time (“Relevant
Period”).
The Court further ORDERS that the crime-fraud exception to the attorney-client privilege
applies to any communication between the Hutchens Defendants and their attorneys relevant to
the Claims and therefore any assertion of the attorney-client privilege by the Hutchens
Defendants shall be unavailing to protect any attorney-client communication from discovery.
The Court further ORDERS that, in connection with the foregoing, the Plaintiffs are
authorized to obtain the following documents and other information that are relevant to the
Claims from the non-party witnesses hereinafter identified:
1.

Documents which constitute or reflect any communication relevant to any of the

Claims between any of the Defendants, including any lawyer acting for any Defendant, during
the Relevant Period. (This category of documents specifically excludes communications
between Defendants and their respective counsel of record in this case.)
2.

Documents which constitute or reflect any communication relevant to any of the

Claims between any Defendant and any of the following lawyers during the Relevant Period:

Barry Poulson

Paul Riley

488 Huron Street
Toronto, Ontario M5R2R3

Michael Spiro

3.

Arseneau Poulson
254 Durham Street
Sudbury, Ontario, Canada

3625 Dufferin Street, Suite 207
Toronto, Ontario

Documents which constitute or reflect any communication relevant to any of the

Claims between any Defendant and any of the following accountants or bookkeepers during the
Relevant Period:
Martin Lapedus
Charles Lily

4.

3200 Dufferin Street, Suite 418
Toronto, Ontario M6A 2T3
Sostarich, Ross, Wright & Cerutti, LLP
487 Bouchard Street
Sudbury, Ontario P3E 2K8
Main Number 705-522

Documents which constitute or reflect any communication relevant to any of the

Claims between any Defendant and any loan broker, including any lawyer or other representative
of such loan broker, during the Relevant Period.
5.

Documents which constitute or reflect any communication relevant to any of the

Claims between any Defendant and any rabbi or synagogue, including any lawyer or other
representative of such rabbi or synagogue, during the Relevant Period.
6.

Documents which constitute or reflect any communication relevant to any of the

Claims between any Defendant and any funding source, including financial institutions and

investors, with respect to the funding of any loan commitment issued by any Defendant to any
potential borrower during the Relevant Period.
7.

Documents or other information which was received from anyone through any

interactive web site sponsored by First Central Mortgage Funding Inc., Canadian Funding
Corporation, 308 Elgin Street Inc. or any other web site which Sandy Hutchens, Tanya Hutchens,
Jennifer Hutchens, or any entity owned or controlled by them, caused to be published on the
internet.
8.

Statements of account, including cancelled checks, deposit slips, wire transfer

instructions, and, debit and credit memos, for each account for any bank, credit union or other
financial institution that was open during the Relevant Period, that was held in the name of or for
the benefit of Sandy Hutchens, Tanya Hutchens, Jennifer Hutchens, or any entity owned or
controlled by them.
9.

The accounting records, including electronic files, maintained for any Sandy

Hutchens, Tanya Hutchens, Jennifer Hutchens, or any entity owned or controlled by them.
10.

Financial statements, including balance sheets, asset schedules and, income and

expense statements, for Sandy Hutchens, Tanya Hutchens, Jennifer Hutchens, or any entity
owned or controlled by them.
11.

Documents produced to any governmental agency conducting an investigation of

Sandy Hutchens, Tanya Hutchens, Jennifer Hutchens, or any entity owned or controlled by them.

The Court further ORDERS that the Plaintiffs may take depositions of the following
persons on matters relevant to the Claims:
Name

Address

Martin Lapedus

3200 Dufferin Street, Suite 418
Toronto, Ontario M6A 2T3

Paul Riley

488 Huron Street
Toronto, Ontario M5R2R3

Matthew Kovce

33 Theodore Place
Thornhill, Ontario L4J 8E2

Falcon Bank

Local address presently unknown

Maxmore Corporation Limited

Local address presently unknown

David Mackenzie

100 Steeles Ave West
Thornhill, Ontario L4J 7Y1

Barbara York

100 Steeles Ave West
Thornhill, Ontario L4J 7Y1

TD Canada Trust

100 Steeles Ave West
Thornhill, Ontario L4J 7Y1

Barry J. Poulson

Arseneau Poulson
254 Durham Street
Sudbury, Ontario, Canada

Michael Spiro

3625 Dufferin Street, Suite 207
Toronto, Ontario

Giuseppe Strazzeri

5160 Yonge Street, 14th Floor
Toronto, Ontario M2N 6L9

Randy Guzar

Cambridge, Ontario
519-212-0065

Brent Hillier

79511 Bluewater Hwy.
Goderich, ON N7A 3X8

Name

Address

Demos Vasilakos

Vasilakos Consulting
Ontario, Canada
416-573-2024

Bryce Coates

Real Mortgage Associates
4- 1332 Huron St
London, ON, N5V 2E2
[phone] office
[phone] cell
[phone] fax

Charles Lily

Sostarich, Ross, Wright & Cerutti,
LLP
487 Bouchard Street
Sudbury, Ontario P3E 2K8
Main Number 705-522

Rabbi Mendel Kaplan

Local address presently unknown

Rabbi Chaim Cohen

Local address presently unknown

Any other person who may have information relevant to the Claims,
whose identity is revealed in the course of discovery in this case.
Therefore, based on the foregoing, this Court respectfully requests that, in the interests of
justice, the Ontario Superior Court of Justice issue appropriate orders, subpoenas or other
compulsory processes necessary to compel the production of the documents and information
described herein. If any part of this Letter Rogatory cannot be enforced under the laws of
Ontario, it is requested that the remaining parts be enforced.

Dated this 24th day of April, 2013.
BY THE COURT:

R. Brooke Jackson
United States District Judge