Bricklayers Pension Trust Fund - Metropolitan Area et al v. C M U Masonry Co., Inc. et al

Filing 20

ORDER granting 19 Motion for examination of judgment debtor. Signed by District Judge Robert H. Cleland. (LWag)

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TRUSTEES of the BRICKLAYERS PENSION TRUST
FUND – METROPOLITAN AREA; BRICKLAYERS
AND
TROWEL
TRADES
INTERNATIONAL
RETIREMENT SAVINGS PLAN; BRICKLAYERS
HOLIDAY TRUST FUND – METROPOLITAN AREA;
TROWEL TRADES HEALTH AND WELFARE FUND
– DETROIT AND VICINITY; BRICKLAYERS AND
TROWEL TRADES INTERNATIONAL PENSION
FUND; DETROIT METROPOLITAN MASONRY
JOINT
APPRENTICESHIP
AND
TRAINING
COMMITTEE; BRICKLAYERS INTERNATIONAL
MASONRY
INSTITUTE;
and
the
LABORMANAGEMENT COOPERATION COMMITTEE;
Plaintiffs,

Case No. 16-12667
Hon. Robert H. Cleland

v.
C M U MASONRY CO., INC., a Michigan corporation,
CARL J. COLO, an individual, and EMILIO
MASTRONARDI, an individual, jointly and severally,
Defendants.

/
ORDER FOR EXAMINATION OF JUDGMENT DEBTORS
AND RESTRAINING TRANSFER OF ASSETS
SUPPLEMENTARY TO JUDGMENT

THIS MATTER having come before this Court on Plaintiffs’ Ex-Parte Motion for
Examination of Judgment Debtors and Restraining Transfer of Assets Supplementary to Judgment,
and said Motion having been duly filed along with a supporting Affidavit and Brief, and the Court
having reviewed the same and being fully advised in the premises:
I. ORDER TO APPEAR FOR DEBTOR’S EXAMINATION
NOW THEREFORE, IT IS HEREBY ORDERED that Mr. Carl Colo, judgment debtor
and sole owner and operator of CMU Masonry Co., Inc. (“CMU”), a Michigan corporation, whose
address is 25884 Norvell St., Chesterfield, MI 48051, shall appear at the law offices of Novara

Tesija, P.L.L.C., 2000 Town Center, Suite 2370, Southfield, Michigan 48075, on Wednesday
May 24, 2017 at 10:00 A.M. to be examined under oath concerning the income, property, or other
means of satisfying the Judgment entered herein against Defendant on March 17, 2017.
IT IS FURTHER ORDERED that said person shall bring with him the following books,
records, and papers in his possession, custody, or control as they relate to Defendant CMU
Masonry Co., Inc.:
1.

All checkbooks, check registers, check stubs, canceled checks, bank statements and

other documents whatsoever relating to any deposit, savings, passbook, or like account maintained
with a bank, savings and load association, credit union or like organization, in which Defendant
has, or has had, any interest, at any time during the three (3) years immediately preceding the date
hereof;
2.

Copies of all returns, schedules and forms filed by, or on behalf of, Defendants with

the Internal Revenue Service, State of Michigan, and any municipal governments, relating to any
income received, property owned, business activities, sale or intangibles tax, of Defendants at any
and all times during the period three (3) years preceding the date hereof;
3.

All books of account and accounts receivable ledgers;

4.

List of assets and liabilities;

5.

All contracting of purchase, sale, bill of sale, certificates of title and deeds, and all

other evidences of title of instruments of whatsoever kind of nature, relating to the purchase, sale
or ownership of any property, real or personal, or any interest therein, purchased, sold or owned
by, or on behalf of, Defendants at any time during the five (5) years immediately preceding this
date;

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6.

Copies of all subcontracts, profit and loss statements, and balance sheets relating to

the affairs of Defendants prepared by, or on behalf of, said Defendants during the period three (3)
years immediately preceding the date hereof; and
7.

A complete accounting of all current and past projects worked for the previous three

(3) years, as well as a complete listing of all accounts receivable for all such projects.
II. RESTRAINING ORDER
IT IS FURTHER ORDERED that said Defendants, CMU and Carl Colo, their officers,
agents, directors, servants, employees, salespersons, independent contractors, attorneys,
distributions, corporations, subsidiaries, affiliates, successors, assigns, and those persons or
entities in active concert or participation with CMU and Carl Colo, who receive actual or
constructive notice of this Order by personal service, facsimile, electronic communication or
otherwise, whether acting directly or through any trust, corporation, subsidiary, division, or other
device, or any of them, are until further order of this Court, hereby restrained and enjoined from
directly or indirectly:
A. Selling, liquidating, assigning, transferring, converting, loaning, encumbering, pledging,
concealing, dissipating, spending, withdrawing, otherwise disposing of any funds, real or
personal property, or other assets or any interest therein, including any assets outside the
territorial United States; which are:
1. in the actual or constructive possession of CMU or Carl Colo;
2. owned or controlled by, or held, in whole or in part, for the benefit of, or subject to
access by, or belonging to, CMU or Carl Colo;
3. in the actual or constructive possession of, or owned or controlled by, or subject to
access by, or belonging to any corporation, partnership, or under common control

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with CMU and Carl Colo, including but not limited to: any assets held by or for
CMU and Carl Colo at any bank or savings and loan institution, or with any brokerdealer, escrow agent, title company, commodity trading company, precious metal
dealer, payment service provider, or other financial institution of any kind.
B. Opening or causing to be opened any safe deposit boxes titled in the name of CMU or Carl
Colo or subject to access by them;
C. The funds, property, and assets affected by this Order shall include both existing assets and
assets acquired after the effective date of this Order, including without limitation, those
acquired by loan or gift. CMU and Carl Colo shall hold all assets, including without
limitation payments, loans, and gifts received after service of this Order.
D. This order does not apply to property exempt by law from application to the satisfaction of
the judgment.
IT IS FURTHER ORDERED that said Defendants, CMU and Carl Colo, and their attorneys,
agents, successors, assigns, and those persons or entities in active concert or participation with
CMU and Carl Colo who receive actual or constructive notice of this Order by personal service,
facsimile, electronic communication or otherwise, whether acting directly or through any trust,
corporation, subsidiary, division, or other device, or any of them, are until further order of this
Court, hereby restrained and enjoined from directly or indirectly:
A. Selling, liquidating, assigning, transferring, converting, loaning, encumbering, pledging,
concealing, dissipating, spending, withdrawing, otherwise disposing of any funds, real or
personal property, or other assets or any interest therein, including any assets outside the
territorial United States; which are:
1. in the actual or constructive possession of CMU or Carl Colo;

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2. owned or controlled by, or held, in whole or in part, for the benefit of, or subject to
access by, or belonging to CMU or Carl Colo;
3. in the actual or constructive possession of, or owned or controlled by, or subject to
access by, or belonging to any corporation, partnership, or under common control
with CMU or Carl Colo, including but not limited to, any assets held by or for CMU
or Carl Colo at any bank or savings and loan institution, or with any broker-dealer,
escrow agent, title company, commodity trading company, precious metal dealer,
payment service provider, or other financial institution of any kind.
B. Opening or causing to be opened any safe deposit boxes titled in the name of CMU or Carl
Colo or subject to access by them.
C. The funds, property, and assets affected by this Order shall include both existing assets and
assets acquired after the effective date of this Order, including without limitation, those
acquired by loan or gift. CMU and Carl Colo shall hold all assets, including without
limitation, payments, loans, and gifts received after service of this Order.
D. Notwithstanding the above, CMU and Carl Colo may continue to pay reasonable, usual,
ordinary, and necessary living expenses; however, an accounting of the same must be
provided at the scheduled debtor’s examinations.
E. This order does not apply to property exempt by law from application to the satisfaction of
the judgment.
III. DUTIES OF ASSET HOLDERS
IT IS FURTHER ORDERED that any financial institution served with a copy of this
Order, or who otherwise has actual or constructive knowledge of this Order, that has possession,

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custody or control of any account, asset, or document held on behalf of, or relating or belonging
to said Defendants, shall:
A. Hold and retain within such entity’s or person’s control, and prohibit the withdrawal,
removal, assignment, transfer, pledge, hypothecation, encumbrance, disbursement,
dissipation, conversation, sale, liquidation, or other disposal of funds, documents, property,
or other assets held by or under such entity’s control:
1. on behalf of, for the benefit of the Defendants or other party subject to Section II;
2. in any account maintained in the name of, or subject to withdrawal by the
Defendants or other party subject to Section II;
3. that are subject to access or use by, or under the signatory power of the Defendants
or other party subject to Section II.
B. Deny access to any safe deposit boxes that are either:
1. titled in the name of either Defendant or other party subject to Section II;
2. subject to access by either Defendant or other party subject to Section II.
C. The accounts subject to this provision include existing assets and assets deposited after the
effective date of this Order. This Section shall not prohibit transfers in accordance with
any provision of this Order, or any further order of the Court.
IV. RECORD KEEPING/MAINTAINING BUSINESS RECORDS
IT IS FURTHER ORDERED that Defendants, CMU and Carl Colo, and their officers,
agents, directors, servants, employees, salespersons, independent contractors, attorneys,
distributors, corporations, subsidiaries, affiliates, successors, assigns, and those persons or entities
in active concert or participation with them who receive actual or constructive notice of this Order
by personal service, facsimile, or otherwise, whether acting directly or through any trust,

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corporation, subsidiary, division, or other device, or any of them, are hereby temporarily restrained
and enjoined from:
A. Failing to make and keep books, records, accounts, bank statements, current
accountants’ reports, general ledgers, general journals, cash receipts ledgers, cash
disbursements ledgers and source documents, documents indicating title to real or
personal property, and any other data which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of Defendants;
B. Destroying, erasing, mutilating, concealing, altering, transferring or otherwise
disposing of, in any manner, directly or indirectly, contracts, agreements, customer
files, customer lists, customer addresses and telephone numbers, correspondence,
advertisements, brochures, sales material, training material, sales presentations,
documents evidencing or referring to Defendants’ products or services, data, computer
tapes, disks, or other computerized records, books, written or printed records,
handwritten notes, telephone logs, “verification” or “compliance” tapes or other audio
or video tape recordings, receipt books, invoices, postal receipts, ledgers, personal and
business canceled checks and check registers, bank statements, appointment books,
copies of federal, state, or local business or personal income or property tax returns,
and other documents or records of any kind, including electronically-stored materials,
that relate to the business practices or business or personal finances of Defendants or
other entities directly or indirectly under the control of Defendants.
V. DISTRIBUTION OF ORDER BY DEFENDANTS
IT IS FURTHER ORDERED that Defendants shall provide a copy of this Order to each
affiliate, partner, division, sales entity, successor, assign, officer, director, employee, independent

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contractor, agent, attorney, ad broker, fulfillment house, and representative of any Defendant, as
applicable. Within five (5) calendar days following service of this Order by Plaintiff, Defendants
shall serve on Plaintiffs an affidavit identifying the name, title, address, telephone number, date of
service, and manner of service of each person or entity Defendants served with a copy of this Order
in compliance with this provision.
VI. SERVICE OF ORDER
IT IS FURTHER ORDERED that copies of this Order may be served by facsimile
transmission, personal or overnight delivery, or by U.S. Mail, by electronic mail, or by private
process server, on: (1) Defendants; (2) any financial institution, entity, or person that holds,
controls, or maintains custody of any documents or assets of Defendants, or that held, controlled,
or maintained custody of any documents or assets of Defendants; or (3) any other person or entity
that may be subject to any provision of this Order. Service upon any branch or office of any
financial institution or entity shall effect service upon the entire financial institution or entity.
VII. JOINT OPERATION/CREATION OF OTHER BUSINESSES
IT IS FURTHER ORDERED that Defendants CMU and Carl Colo, are hereby
temporarily restrained and enjoined from participating in joint operations as a masonry
subcontractor with other subcontractors, or from creating, operating, or controlling any business
entity, whether newly-formed or previously active, including any partnership, limited partnership,
joint venture, sole proprietorship, or corporation, without first providing the Plaintiffs with a
written statement disclosing: (1) the name of the business entity; (2) the address and telephone
number of the business entity; (3) the names of the business entity’s officers, directors, principals,
managers, and employees; and (4) a detailed description of the business entity’s intended activities.
VIII. CORRESPONDENCE WITH AND NOTICE TO PLAINTIFFS

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IT IS FURTHER ORDERED that, for purposes of this Order, all documentation that is
required to be provided under this Order to the Plaintiffs shall be addressed to:
Kathryne A. Tracey
NOVARA TESIJA, PLLC
2000 Town Center, Suite 2370
Southfield, MI 48075
[phone]

IX. RETENTION OF JURISDICTION
IT IS FURTHER ORDERED that this Court shall retain jurisdiction of this matter for all
purposes.
IT IS SO ORDERED.
.

U.S. District Court Judge
DATED:
W:\FUNDS\Bricklayers\COLLECTION\CMU Masonry Co., Inc\Motion Supplem. to Judgment\Order for Exam & Restrain Transfer.CMU.doc

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