United States of America v. RCV SBIC

Filing 2

COPY OF ORDER from USDC-Central District of California, case number CV13-9272) appointing Small Business Administration as received for RCV SBIC, L.P.. (MKR)

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. Casef · :13~~v-09272-CAS-MA1 , Docu~ent 4 Filed 12/18/13 . ·... . . ' FILED . . . • . . .· U.S. UISTRICT COUH f DISTRICT OF HEBHASKA 1. :2 P~e 1 of'8 Page ID #:7 ANDRE'BIRO'ITE JR Uliited::States.Atfo;ney. 3 . · ,~:E~N w~·WEm~N I 3 OEC 30 AM 9: 43 .OFFICE OF THE CLERK AssJ,sbl~t Vni~ed ~ta~.Attorney <t , :chief, ClviiDivision :s . ·RUSSELL W. CIUTTENDEN(CA BarNo.ll2613) · . Assistant United States Attorney ··~ 1' Room 7516, Ftderal Buildiiag :3oo North Los Angeles Str~et 7 (· Los Angele$, California 90012 8 DEC I 8 2013. 'i: ;; Em an: ruuell.ehittenden@usdoj:gov. Telephone: (213) 89~2444 · · . Fax: .(213) .894-7819 10 · ARLENE M. EMBREY (FL Bar No. 125539) .9 U.S.· Small Business Administration • · · · rd ·. . · · ·tlt. · · . · · · 409 3 Street, s.w., 7 Floor Wasl\ington;. D.c~ ·20416 Jt 12 13 ,; · ~-· . t4 · ·JS . . . : j Scan Only_ · Email: arlene.embrey@sba.gov Telephone: (202) 205-6976 .· Fax: (202) 481-0324 . . • : i! ·' .. ' • . Attorneys for·Piamtiff~ 16 United States of America . ..~. ;- 17 IN THEUNIT;ED STATES.DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 19 . WESTERN.))IVISION :' ~ DSTATESOFAMERICApv 1~ ·2o?lv2.C~ (Mf\tJ~ . ·:·.~. ..:2' : ~ r- ~· 3·: ) ~~~ Plalntlft', C3a·: v.• ~~~ l'1 :h. '-J"'l ) .> ) P. . ;:J rc:·.....J II:> •t '.:1 . .·~ ~s· IC,L.P. ) w..t 26 27 • tii$ ) :~ ) Defendant. ) .28 • J. Couseat Order !' ! ' . Case~ :13~~v-09272-CAS-MA1. Docu~ent 4 Filed 12/18/13 Pa~e 2 of'S Page 10 #:8 r t l II :Before this Court is the Complaint by the United States: rif America, . 211 3 . !!'OA behalfofthe UnitedStates:Sma.IL~.\lsine~s Administration ("SBA"),.for I j: ·. . '· . 4 the appointment ofthe SBA as.Receiver for RCV. SBIC, L.P. ("RCV''). The 1 5· I ·· ;'>court, being fully advised as to the merits, and based upon the consent of the 6; . . r: 7 j: p~i~~, :believes this relief should be gra11-t«1. 81 9j iT IS HEREBY .ORDERED, AD.ltJDGED AND DECREED THAt: 1. j ao I Pursuant to the provisions of 15 H. S.C. ·§ 687c, this Court 'shall . /. :I take exclusive jurisdiction of·RCV, and all ofits assets, wherever located, t1 f ·.. 12 14 · and the United States Small ausiness. Administration ("SBA"), is herel)y ·' ~ \ appointed receiver (''the Receiver") ofRCV to serve without bond until . . f\uther order ofthis Court. The Receiver is appointed for the purpose of 15 · l6 '· '! administering, marshalling and, ifnevessary, liquidating all ofRCV's assets '17 to satisfy the claims of creditors therefrom in the order of priority as 18 · ; i n· determined by this Court. ·'I 20 2. 21 22 The Receiver shall· have aU powers, authorities, rights and privileges heretofore possessed by the general partners, managers, officers, 23 and directors ofRCV under applicable.state and federal law and by the 24 .as . Certificate of Limited Partnership and:Partnership Agreement of said .26 .. partnership, in addition to all powers and authority conferred upon the 27· I 28 'Receiver by the provisionsof15 U.s~c. §687c and 28 U.S.C. § 754. The ·I 2 cas~': :13~~v-09272-CAS-MA1 ..Docu'ment 4 Filed 12/18/13 P~~e 3 of'8 Page ID #:9 t • gene~:partners, managers, ciirect()J;'S, officers, employee_s and ~g~ts.ofRCV 2. . . . ate hereby dismissed. Such persons Shall have no ·authority with respect to 3 1 4 j. ·RCV's operations or assets, except as may hereafter be expressly granted by s _ the Receiver. T}le Receiver shall assume aJ:ld control the operation ofRCV .6 arid sh~l.pursue and preserve all ofits claints. 1, 8 3. The past and/or present officers, directors; agents, managers, g_eneral partners, accountants, attorneys and employees ofRCV, as well as all 10 those acting in their place, are hereby ordered and-directed to turn over to the 11 i 12 ;, ; Receiver forthwith all books, records, documents, accounts and all other 13 instrUments and papers of said partnership and all other assets and property of 14 I~ . the partnership, whether real or personal. RCV shall furnish a written 16 '· ' statement within ten (10) days after the entry of this Order, listing the identity, 1.7 f. ;J 18 19 ~ location andestirnatecfvalue ofallassets· ofRCV, as well as the names, i i addresses and amounts of claims of all known creditors ofRCV. All persons ; 20 ) having control, custody or possession of any assets or property ofRCV, 21 , 22 : includit)g its fanner General Partner, are hereby directed to tum such property ·,: 23! over to the Receiver. 24 2.5 4. The Receiver shall-promptly give notice of-its appointment to all 26 27 28 · ·. knoWn officers, directors, agents, managers, general partners, employees, limited partners, creditors, debtors and agents ofRCV. All persons and 3 Case": 13-c~-09272-CAS-MA~ .Document 4 Filed 12/18/13 Pade 4 of 8 Page 10 #:10 Ti ·. ·:;. ·:!: I :: :en.tities·owing any obligations ordebtstoRCV shall, until further.ordei'.ofthis 2, : ; 1 3 '; -4 :: ,. s 6 10 . . Receiver, and re¢eiptfor such payments by the Receiver shall have the sam~ l:Jorc(: and effect as ifRCV had received silch payments. 'I '; 5. 1. 8 'Court, pay all such obligations in accordance with the terms thereof to the The Receiver is hereby authorized to open such Receiver's bank · accounts, .at banking or other financial il1Stitutions, to eXtend credit on behalf • ofRCV, to utilize SBA personnel, and ·to employ such other personnel as necessary (including the former managers ofRCV at the Receiver's sole 11 · 12 . discretion} to effectuate the operation ofthe receivership including, but not 13 :: j! t4 f limited to, attorneys and accountants, and is further authorized to expend ;. 15 \.receivership funds to,compensate such personnel in such amounts and upon 16 • 17 such terms as the Receiver shall deem reasonable in light of the -usual fees and ( I ' 1 II : billing practices and procedures of such personnel. The Receiveris not I 19 ! : required to obtain Court approval prior to the disbursement of receivership 20: 21 ; 22 funds for payments to personnel employed by the Receiver or payments for. , expenses incidental to administration ofthe Receivership. In addition, the 23 24 Receiver is authorized to reiinburse the SBA or its employees for travel 25 expenses incUrred by SBA personnel in the establishment and administration 26 27 ofthe receivership. The Receiver may, without further order of this Court, 28 4 13-c~-09272-CAS-MA~ Docu~ent 4 Case,.; 1 Filed 12/18/13 Page 5 of 8 Page ID #:11 transfer, compromise, or otherwise dispose of any claim or assetofRCV, · 2 other than real estate. 3 4L 5 6. In ~ccordance With.the provisions of this Order and the Federal . . Rules of Civil Procedure, and· if so' requested by the Receiver,. RCV's .pa8t 6 7 . tllldlor present officers, directors, agents, m.anagers, general partnersf limited 8 partners, employees, and other approprlate·persons (including, without _ 9\ 1 10 limitation, the defendant's portfolio of small business concerns and of banks or other financial institutions doing Qusiness With defendant and/or H .12' defendant's portfolio of small business concerns) shall answer or provide 13 . ·- 14 . answers , to all questions put to them by the Receiver regarding the business 15 ofRCV, or any other matter relevant to the operation or administration ofthe ·. .16 ': I 17 ·: 18 RCV receivership or the collection of funds due to RCV. In the event that the Re~iver deems 19 it necessary to require the appearance of any aforementioned persons, the production of doc~ents, information, or any other fonn of 20 discovery concerning the assets or property ofRCV or any other matter ·21 22 re1evant·to the·operation or administration of.the Receivership or the 23: ; 24 ! collection offunds due to RCV, the Receiver shall provide notice of such to 2 such persons in. accordance With :the, FederalRules of Civil Procedure. I ~ 26 7. 27 The parties or prospective parties to any and all civil legal i 28 ' proceedings (excluding the instant receivership proceeding), wherever located s : Case,..i 13:cv-09272-CAS-MA~ . Document 4 Filed 12/18/13 P~~e 6 of 8 Page ID #:12 ·;. I i 11 2, , 3 inclUding, but n()flimited to·arbitmtiori proceedings, bankruptcy or foreelosure actions, default proceedings, or any other proceedin~ involving (i}RCV, (ii) any asset~ ofRCV~ (iii) the Repeiver for RCV or (iv)RCV's 4 5 present or past officers, directors~ managers, or general partners (including.the .. .. 6 7 . • manag.ers 8 or members ofs~ch general partne!') to the extent said civil legal proceedings involve any action taken btthetll while acti11g in theit official id ' . 1 capacity with RCV, are enjoined from taking any action, including discovery, 10 i co~encing or continuing 11 ( anylegalproceeding of any nature without fqrther 12 j . order ofthisCourt. 13 j .8. 14 15 All civil legal proceedings (excluding the instant receivership proceeding) wherever located, including arbitration proceedings, foreclosure "16 . 17 . actiVities, bankruptcy actions, or default proceedings, but excluding the , . i ·18. i. instantproceeding, involving (i) RCV, (ii) any ofassets ofRCV, (iii) the 19 . . . Receiver forRCVor (iv) RCV's present or past.officers, directors, managers, 20' ·21'1.. or generalpartners (including the managers I I ,22 23 or members of such general ;'·partner) to the extent said civil legal proceedings involve any action taken in their official capacity for RCV are stayed in their entirety, and all Courts 24 25 · having anyjurisdiction thereof are elijoined from taking or pennitting any 26. i l I i ·action in such proceedings until further Order ofthis Court. 27. I I. I 6 . 1 :3-·c~-09272-CAS-MA~ Case... 9~ 2 ·Document 4 Filed 12/18/13 Pa{;/e 7 of 8 Page ID #:13 As to a cause ofaction. accfu~d or accruing iri favor of RCV ' ::against a third person or party, any applicable statute. of limitation is tolled -to 3 4 • the e~tent_allowed.byapplic~ble.law-dUringthe period in whichthis s: . ' irijunctiqn against commencement of legal ptoceedirigs is in effect as to that 6 cause of action. 7 i: r 8 ! ·. ; 9i 10 I 10~ '. •· •.general RCV and 'its past an.dlor:presentdirectors, officers, .managers, ' partners, a~ents, employees< and other persons acting in concert or ·participation therewith be, and they hereby are, enjoined from either directly ·11 12 or)ndirectly taking.at1y actions or causing any such action to be taken which .,13 would dissipate the :assets and property of RCV to the detriment of the l4 · 1 ~ i· ·~ I. ; Receiver appointed in this cause; includi~g but not limited to destruction of I' .. ' '' I :16 . 17 . corpotat~ 18 . 9r partnership records, or whichwould Violate the Small BU$iness Investtrient Act of 1958, as amended, (the "SBIA"), 1S U.S.C. Section 661 m 19. 20. seq.• or the regulations promulgated thereund~r, (the "Regulations".), 13 21. c.F~~ § 101J m ~· 11. The Receiver is authorized to borrow on behalfofRCV, ftotn 23.. 24 , the SBA, up to $1.,000,000, and is authorized to cause RCV to issue 25 Receiver'sCertifi9ates oflildebtedness·in the principal amounts ofthe·sums 26 27 28 . 'borrowed, which certificates will bear interest at or about 10 percent per annum and: will have a maturity date no later than 18 months after the date of . .., i! ! : 1 13~'cv-09272-CAS-MA~ Case' .Document 4 Filed 12/18/13 Pa~e 8 of B Page ID #:14 I issue. Said Receivers Certificates of.Indebtediless shall have piiority over all 2' •· 3 otller debts and obligations ofRCV,.e~cluping administrative expeJ)Ses ofthe 4. · ReCeiverShip, whether presently existing or hereinafter incurred, including ,. without liniitation. any claims of partners of RCV. 6 ·'i; 12. 1' This Court determines, and adjudicates tllat RCV has violated 13 :l i' ! ' '. 8 C.P.R.§ 107.1830(b)and 13 C.F;R. § 107.S07{a)oftheReguhitions·a$ • ~ _; alleged in the Complaint filed in this matter. After completing its activities in ' ;! :· this Order, the Receiver may recommend tl].at RCV's license '' ·i 11 • : accordance with 12 ~ 1: :; 9: 10 .i ' . i as an SBIC be revoked. J DATED: ... J~_Jf/1~ . 13 14 IS 16 ' 17 .· 18 · Presented by: 19 . 20 21 ·_ Arierie M~ Embrey, Esq. ·· ,. · - i Counsel for United States Small Business Administration . I 22 1 23 j ~ : 24:' '. r, 26 ' · 21 28 . ·. M1ch~~{K·. \~'yatt~· Esq•.} '· .: • ,,_:. '. Foley Hoag, LLP Cmmsel for Defendant ~; .

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