Rockhill et al v. Jeude

Filing 146

FINDINGS OF FACT AND CONCLUSIONS OF LAW by Judge Barbara J. Rothstein. (MD)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 12 13 14 15 16 17 GORDON L. ROCKHILL and NANCY ROCKHILL, husband and wife, and the Marital community composed thereof; and GORDON L. ROCKHILL IRA, an individual retirement account, ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) ) WILLIAM W. JEUDE, ) an individual, and UNIVEST, INC., ) a Washington corporation, ) ) Defendants. ) ____________________________________) CASE NO. CV11-1308 BJR FINDINGS OF FACT AND CONCLUSIONS OF LAW 18 19 20 A bench trial was held in the above-captioned case on November 6 through 9, 2012. Defendants William W. Jeude (“Jeude”) and Univest, Inc. (“Univest”) submitted proposed 21 findings of fact and conclusions of law. (Dkt. No. 138). Plaintiffs, Gordon L. Rockhill, as an 22 23 individual and through his individual retirement account (“Rockhill”), and his spouse, Nancy 24 Rockhill (collectively “Plaintiffs” or “the Rockhills”) submitted alternate proposed findings of 25 fact and conclusions of law. (Dkt. No. 141). 1 1 The Rockhills commenced this action to recover losses they suffered due to their 2 investment in the Meridian Mortgage Investors Fund II, LLC (“MMIF II”). The claims presented 3 at trial for adjudication were as follows: 4 A. Negligent investment advice; 5 B. Negligent misrepresentation; and 6 C. Breach of fiduciary duty. 7 The following witnesses were called and testified at the trial: 8 9 A. Plaintiffs’ witnesses: 10 1. William Jeude 11 2. Fergus Henehan 12 3. Gordon Rockhill 13 B. Defendants’ Witnesses: 14 1. Derek Crump 15 2. Jennifer Hill 16 17 The parties stipulated to a number of facts, which the Court reviewed. Plaintiffs submitted 18 designations of portions of Jeude’s deposition testimony and Defendants submitted designations 19 of portions of David Sengstock’s deposition testimony, all of which the Court reviewed. In 20 addition, the Court has reviewed and considered all exhibits admitted into evidence. Based on the 21 evidence presented at trial, the Court makes the following finds of fact and conclusions of law: 22 I. FINDINGS OF FACT 1. Univest is a Washington corporation, formed in 1988. 23 24 25 2 1 2. Univest was registered as a broker/deal with the National Association of 2 Securities Dealers (“NASD”) and its successor, the Financial Industry Regulatory Authority 3 (“FINRA”), from 2000 through December 13, 2007. 4 5 6 3. Univest also registered as a broker/dealer with the Washington State Department of Financial Institutions (“DFI”) on December 12, 2006. 4. Jeude was registered with DFI as a Non-FINRA Broker-Dealer Representative on 7 December 12, 2006. 8 9 5. At all times relevant hereto, Jeude was held out as, and was in fact, Univest’s 10 President. All of Jeude’s dealings with the Rockhills were in Jeude’s capacity as a registered 11 representative of Univest. 12 13 14 6. MMIF II was a mortgage-backed securities fund. It was part of the family of Meridian Mortgage Investment Funds controlled by Frederick Darren Berg. 7. On June 1, 2001, MMIF II and Univest entered into a Selling Agreement whereby 15 MMIF II retained Univest as its exclusive placement agent in connection with the offering of the 16 17 MMIF II securities. The Selling Agreement describes Univest’s duties as follows: “Univest’s 18 primary duties shall include soliciting and procuring business relationships and individual 19 investors for MMIF II.” (See Plaintiffs’ Ex. 26 at § 2). 20 21 22 8. MMIF II paid Univest a 1.5% sales commission as its compensation for services rendered under the Selling Agreement. 9. Univest did not solicit investors outside the State of Washington. 10. Rockhill was personally responsible for the Rockhills’ investment decisions. 23 24 25 3 11. 2 3 4 5 6 Rockhill initiated contact with Univest’s offices in Washington by a telephone 12. 1 Prior to investing in MMIF II, Rockhill received the MMIF Private Placement call. Memorandum. Rockhill did not read the Memorandum in its entirety. 13. The Rockhills made two investments in MMIF II. The first investment, $500,000, was made on January 18, 2007. In February 2008, Rockhill decided to invest another $150,000 7 in MMIF II through a separate individual retirement account (“IRA”) with Viking Retirement 8 9 10 11 12 13 14 Assets, a part of Viking Bank, as custodian. The remainder of the IRA was invested in a separate real estate partnership involved in the operation of a hotel. 14. In investing in MMIF II, Rockhill was prepared to invest in a speculative investment and to accept a higher degree of risk. 15. The Rockhills’ MMIF II investments were made pursuant to subscription agreements entered into directly with MMIF II. 15 16. The MMIF II investments were in the form of promissory notes that were 16 17 renewable annually. 18 17. The Rockhills annually renewed their investments in MMIF II through 2010. 19 18. Before making at least one of the renewals, Rockhill reached out to Jeude to ask 20 him what he thought of the MMIF II investment in light of the troubled United States’ housing 21 market. Jeude told Rockhill that he thought the MMIF II investments remained good investments 22 because the fund was able to take advantage of distressed properties. 23 24 25 19. Jeude had invested approximately $1,000,000 of his personal savings in Meridian Mortgage Investment Funds. 4 1 20. In July 2010, MMIF II, together with all of the other Meridian Mortgage 2 Investment Funds, filed for reorganization under Chapter 11 of the Bankruptcy Code in the 3 United States Bankruptcy Court for the Western District of Washington, and those cases were 4 consolidated. 5 6 21. A liquidating trustee was appointed on behalf of the Meridian funds, including MMIF II, on July 20, 2010 (the “Trustee”). 7 22. Under the Meridian reorganization plan, individuals who had invested in MMIF II 8 9 10 11 were given the option of assigning to the Trustee their rights to pursue certain causes of action against MMIF II, referred to as “Non-Estate Claims” by the bankruptcy reorganization plan. 23. In return for the assignment of the Non-Estate Claims, the assignor-investors 12 would receive an ‘enhanced distribution from the Trust derived from the proceeds of Non-Estate 13 Claims that are pursued by the Trustee.” Conversely, ‘[a]ny investor who has not affirmatively 14 assigned its Non-Estate Claims to the Trustee [would] not share in distribution derive from any 15 recoveries” related to litigating those Non-Estate Claims. (Dkt. No. 67). 16 17 24. As defined by the Order Confirming the Meridian Chapter 11 plan, “Non-Estate 18 Claims” include “any cause of action held by individual Investors arising from any matter 19 regarding the Debtors,” among them being MMIF II, including causes of action against “all 20 Persons that provided services to the Debtors, including, without limitation, the Debtors’ 21 attorneys, accountants, auditors, bankers and financial advisors….” Non-Estate Claims do not, 22 however, include “claims or causes of action against financial advisors retained by the individual 23 24 25 investors.” (Dkt. No. 65). 25. On March 14, 2012, the Rockhills agreed to assign their Non-Estate Claims to the Trustee. 5 1 26. On October 15, 2012, in granting in part Defendants’ Motion for Summary 2 Judgment, the Court ruled that, because the Rockhills assigned their Non-Estate Claims to the 3 Trustee, all of their claims had been assigned to the Trustee, except those against a financial 4 advisor retained by the Rockhills. 5 6 27. The actions of Jeude and Univest were not actions as a financial advisor to the Rockhills. 7 28. Neither Univest nor Jeude was ever retained by the Rockhills to act as their 8 9 financial advisor. 10 29. The Rockhills never paid Univest or Jeude for advice as a financial advisor. 11 30. The only compensation received by Jeude and/or Univest in connection with the 12 13 14 Rockhills’ investment in MMIF II was sales commissions paid by the investment issuers. 31. In August 2005, Rockhill retained an investment advisory service, 1st Global Advisors, Inc. (“1st Global”), to advise him on his investments. 15 32. Rockhill gave discretionary trading authority to Timothy Wellings, an investment 16 17 18 advisor affiliated with 1st Global. 33. Wellings and 1st Global remained Rockhill’s investment advisor until at least 19 2011, after the Rockhills invested in MMIF II. Rockhill paid 1st Global a 1.5% annual 20 management fee for their services as his financial advisor. 21 22 34. Wellings advised Rockhill against investing in MMIF II. II. CONCLUSIONS OF LAW 1. Jeude and/or Univest were not acting as the Rockhills’ financial advisors and 23 24 25 were never retained to act as their financial advisors. 2. The Rockhills did not rely on Jeude and/or Univest as a financial advisor in 6 1 2 3 4 5 6 deciding whether to invest in MMIF II. 3. The Rockhills assigned all of their claims to the Trustee when they assigned their Non-Estate Claims on March 14, 2012. 4. Judgment shall be entered dismissing the Rockhills’ claims against Jeude and Univest with prejudice. 5. Any Conclusion of Law denominated as a Finding of Fact shall be deemed a 7 Conclusion of Law and any Finding of Fact denominated as a Conclusion of Law shall be 8 9 deemed a Finding of Fact. 10 IT IS SO ORDERED. 11 Dated this 6th day of May, 2013. 12 A 13 14 Barbara Jacobs Rothstein U.S. District Court Judge 15 16 17 18 19 20 21 22 23 24 25 7

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