Securities and Exchange Commission v. Byers et al
Filing
1072
OPINION re: 1055 MOTION for Attorney Fees Fifth Interim Application of Badger Real Estate Advisors, LLC For Allowance Of Compensation And Reimbursement Of Expenses Incurred From July 1, 2012 Through February 28, 2013. filed by Badger Real Estate Advisors, LLC, 1049 MOTION for Attorney Fees / Request for Payment of Fees Held-Back in Connection with the First Application of Arent Fox LLP for Allowance of Compensation and Reimbursement of Expenses Incurred From June 1, 2010 th rough May 31, 2011. filed by Timothy J Coleman.For the foregoing reasons,Regions' requests for theturnover of excess cash and payment of property taxes is GRANTED to the extent that the Receiver shall pay Regions within ten business days her eof the sum of $367,557. The request for attorneys' fees is DENIED. No costs. Regions shall submit a proposed judgment, on notice, within ten business days hereof. (Signed by Judge Denny Chin on 12/22/2014 United States Circuit Judge Sitting by Designation) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDCSDN¥
DOCUMENT
ELECTRONICALI:.Y FILED
DOC#: _ _ _ _ _ _ __
DATE FILED: 12-22-2014
SECURITIES AND EXCHANGE COMMISSION
Plaintiff,
OPINION
- against -
08 Civ. 7104 (DC)
STEVEN BYERS et al.,
Defendants.
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APPEARANCES:
(See last page)
CHIN, Circuit Judge:
In this securities fraud case, Regions Bank
("Regions") seeks turnover of "excess cash'' generated by
properties owned by Tennessee Office Holdings, LLC ("TOH")
pursuant to the terms of an agreement executed by the courtappointed receiver Timothy J. Coleman (the "Receiver") and
Regions on March 18, 2014.
Additionally, Regions requests that
the Receiver pay the amounts due for the 2013 property taxes,
which were assessed for a time period when the properties were
under the Receivership's control.
Finally, Regions requests
reimbursement of their attorneys' fees in pursuing this matter.
I conducted an evidentiary hearing on October 6, 2014,
at the conclusion of which I reserved decision.
{Tr. 105)
1
For
the reasons that follow, Regions' requests for the turnover of
excess cash and payment of 2013 property taxes is GRANTED to the
extent set forth below, and its request for attorneys' fees is
DENIED.
The following constitute my findings of fact and
conclusions of law.
BACKGROUND 2
1.
The Receivership
On August 11, 2008, the Securities and Exchange
Commission {"SEC") brought this action against Steven Byers,
Joseph Shereshevsky, and Wextrust affiliated entities, seeking,
inter alia, the appointment of a receiver to exercise control
over the assets and property interests of Wextrust, including
those of TOH.
{Stip. ~ 9).
This Court entered its order
appointing the Receiver on September 11, 2008.
(Id.
~ 10)
References are as follows: "Tr." refers to the transcript
of the hearing on October 6, 2014; "Stip." refers to the parties Joint
Stipulated Facts; "RX" refers to exhibits offered by Regions and received
into evidence at the hearing; "Phipps Dep." refers to the deposition
transcript of Aaron Phipps, received as RX l; and "Coleman Dep." refers to
the deposition transcript of Timothy J. Coleman, received as RX 2.
Familiarity with the facts and procedural history of this
case is assumed.
For further recitations of the facts of this case, see the
Court's prior decisions: §..EC::~ v.___:g_yers, 637 F. Supp. 2d 166 (S.D.N.Y. 2009)
aff'd sub_E.~lll_:_ SEC v. Malek, 397 F. App'x 711 (2d Cir. 2010) and aff 'd sub
nom. SEC v. Orgel, 407 F. App'x 504 (2d Cir. 2010); §~C v. Byers, 592 F.
Supp. 2d 532 (S.D.N.Y. 2008)' ?ff'd, 609 F.3d 87 (2d Cir. 2010); SEC v.
Byers, 590 F. Supp. 2d 637 (S.D.N.Y. 2008); SEC v. Byers, No. 08 Civ. 7104
(DC), 2008 WL 5102017 (S.D.N.Y. Nov. 25, 200B).
-2-
As part of his duties, the Receiver and his advisors
reviewed, verified, and recognized the claims of more than 1,200
investors, 100 unsecured creditors, and numerous secured
creditors, including Regions, as having claims related to the
assets under his control.
(I
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