US Commodity Futures Trading Commission v. Simmons et al

Filing 197

ORDER granting 195 Joint MOTION Consent Order Permitting Sale of 459 Orchard Drive, Granville, Ohio Property. Signed by District Judge Robert J. Conrad, Jr on 1/25/2018. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-00023-RJC
U.S. COMMODITY FUTURES TRADING
COMMISSION,

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Plaintiff,

v.
KEITH F. SIMMONS, et al.,
Defendants, and
LAWRENCE SALAZAR, et al.,
Relief Defendants.

CONSENT ORDER PERMITTING THE SALE OF THE
459 ORCHARD DRIVE, GRANVILLE, OHIO PROPERTY
On January 13, 2011, Plaintiff U.S. Commodity Future Trading Commission (the “CFTC”)
filed its Complaint for Injunctive Relief, Civil Monetary Penalties, and Other Equitable Relief
naming multiple individuals and entities as defendants, including Relief Defendant Shiloh Estate,
LLC (“Shiloh”), which owns certain real property located at 459 Orchard Drive, Granville, Ohio
(hereinafter, the “Orchard Drive Property”). (Doc. No. 1). On February 11, 2011, the Court
entered a Statutory Restraining Order (“SRO”) which, among other things, froze the assets of all
named Defendants and Relief Defendants. (Doc. No. 47). On March 30, 2011, the Court entered
a Consent Order of Preliminary Injunction and Other Equitable Relief (“PI Order”) against Shiloh
and others. (Doc. No. 73). The PI Order provided in part that it and the SRO would remain in full

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force and effect until further order of this Court, with the exception of certain provisions relating
to discovery. (Id.). As a result, the freeze on Shiloh’s assets continues.
The Court has now entered Summary Judgment in favor of the CFTC as to its claim against
Shiloh, and a Judgment in the amount of $1,305,642.33 plus post-judgment interest has been
entered. (Doc. Nos. 177, 190). Pursuant to the Order and Judgment, Shiloh is ordered to disgorge
$1,305,642.33, plus post-judgment interest, to be distributed to victims in the amounts designated
in Jonathan Davey’s Judgment in Case No. 3:12-cr-68. On November 17, 2017, Shiloh filed a
Notice of Appeal in the Fourth Circuit, seeking review of the Court’s Orders granting Summary
Judgment and the CFTC’s unopposed Motion for Entry of Judgment, and the Judgment itself.
(Doc. No. 192). Shiloh, however, now desires to enter into a real estate purchase contract for the
sale of the Orchard Drive Property in its entirety, and on January 19, 2018, withdrew its appeal.
(Case No. 17-2336, Doc. No. 5).
The CFTC, the United States, by and through the United States Attorney for the Western
District of North Carolina, and Shiloh consent to the sale of the Orchard Drive Property, with all
proceeds of the sale to be deposited with the Clerk of Court for distribution to the victims of the
Ponzi scheme as set forth in the Court’s March 29, 2017, Summary Judgment Order and subject
to certain terms as set forth herein.
THE PARTIES AGREE AND IT IS HEREBY ORDERED that:
1.

Shiloh, by and through Thaddeus Claggett and/or Claggett & Sons, Inc. (the

“Claggett Entities”), is hereby authorized to enter into the contract for the sale of the Orchard Drive
Property, dated November 15, 2017, to Richard A. Mazzarini and Megan M. Mazzarini, for a sales
price of $600,000.00 (six hundred thousand dollars and 00/100), and to proceed with the proposed
sale of the Orchard Drive Property without further approval from the Court. The United States

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will remove its Judgment Lien on the Orchard Drive Property in order to effect the transaction
with no prejudice to its rights to reapply the lien in the event the proposed transaction is not
consummated.
2.

All net proceeds of the sale of the Orchard Drive Property shall be deposited with

the Clerk of Court for distribution to victims in accordance with Davey’s Judgment in Case No.
3:12-cr-68. “Net proceeds” shall mean the amount of money received by the seller after the sale
of the property, after subtracting sales costs. A preliminary estimate indicates that net proceeds
from the sale will be $488,134.79. The check for the net proceeds realized from the sale shall be
sent by the settlement agent directly to the Clerk of Court for the Western District of North
Carolina, at the United States Courthouse, Charles R. Jonas Federal Building, 401 W. Trade St.,
Room 210, Charlotte, NC 28202.
3.

Shiloh and the Claggett Entities (and/or any affiliated or related entities) are not

seeking any portion of the net proceeds from the sale of the Orchard Drive Property.
4.

Payment of the net proceeds to the Clerk of Court shall constitute a partial

satisfaction of the Judgment against Shiloh.
5.

In the event the offer/contract identified herein is withdrawn, or the sale is not

consummated, Shiloh will take steps necessary to immediately surrender the Orchard Drive
Property to the government and the government may, in its sole discretion, sell or otherwise
dispose of the Orchard Drive Property with the net proceeds of any such sale or disposition to be
deposited with the Clerk of Court for distribution to the victims in accordance with Davey’s
Judgment in Case No. 3:12-cr-68.
6.

The SRO entered on February 11, 2011 and PI entered on March 30, 2011 are, as

of the date of entry of this order, no longer in force and effect as to Shiloh.

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7.

Shiloh has withdrawn its notice of appeal.

Signed: January 25, 2018

WE CONSENT:
s/ Alan Edelman
Alan Edelman
Raagnee Beri
James H. Holl, III
U.S. Commodity Futures Trading Commission
1155 21st St. N.W.
Washington, D.C. 20581
Tel. [phone]
Fax [phone]
Email: [e-mail]
Attorneys for Plaintiff
R. ANDREW MURRAY
UNITED STATES ATTORNEY
s/ Katherine T. Armstrong
Assistant United States Attorney
NC Bar No. 36305
Benjamin Bain-Creed
Assistant United States Attorney
FL Bar No. 10021436
227 West Trade St., Ste. 1650
Charlotte, NC 28202
Tel. [phone]
Email: [e-mail]
Attorneys for Plaintiff and United States
s/ F. Lane Williamson
Tin Fulton Walker & Owen, PLLC
301 E. Park Ave.
Charlotte, NC 28203
Tel. [phone]
Email: [e-mail]
Attorneys for Shiloh Estate, L.L.C.
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