Securities & Exchange Commission v. Callahan

103 F. Supp. 3d 296, 2015 U.S. Dist. LEXIS 57996, 2015 WL 2066138
CourtDistrict Court, E.D. New York
DecidedMay 2, 2015
DocketNo. 12-CV-1065 (ADS)(AYS)
StatusPublished
Cited by1 cases

This text of 103 F. Supp. 3d 296 (Securities & Exchange Commission v. Callahan) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities & Exchange Commission v. Callahan, 103 F. Supp. 3d 296, 2015 U.S. Dist. LEXIS 57996, 2015 WL 2066138 (E.D.N.Y. 2015).

Opinion

MEMORANDUM OF DECISION & ORDER

SPATT, District Judge.

The Claimants Distinctive Investments LLC (“Distinctive Investments”) and Distinctive Ventures LLC (“Distinctive Ventures” and collectively, the “Distinctive Entities”) appeal from a July 21, 2014 notice of determination (the “Notice of Determination”) by Steven Weinberger (the “Receiver”) denying their claim for $390,496.93.

For the reasons set forth below, the Court affirms the Notice of Determination by the Receiver and dismisses the claims by Distinctive Entities.

I. BACKGROUND

This case involves three parallel actions: (i) U.S.A. v. Callahan and Manson, 13-cr-453, a criminal action against Adam Manson (“Manson”) and Brian Callahan (“Callahan”) (the “Criminal Action”); (ii) United States v. The Real Property Located at 272 Old Montauk Highway, 12-cv-1880, a civil forfeiture action initiated by the United States against certain properties associated with Manson and Callahan (the “Forfeiture Action”); and (iii) the present action initiated by the' Securities and Exchange Commission- (“SEC”) alleged disgorgement of ill-gotten gains, and civil penalties against Manson, Callahan, and the funds that they operated.

As these parallel actions are relevant to the disposition of the present claim, the Court will now provide a brief overview of each action.

[298]*298A. The Criminal Action

Manson owned and managed the Claimants Distinctive Investments and Distinctive Ventures, two real-estate corporations. (U.S.A. v. Callahan and Manson, 13-cr-453, July 31, 2013 Indictment [hereinafter “Indictment”] at ¶ 8.) Distinctive Investments held one hundred percent of the equity ownership in Distinctive Ventures. (Id. at ¶ 9.)

In January 2007, Manson and Callahan, Manson’s brother-in-law, through Distinctive Ventures purchased all of the shares of the Panoramic View Oceanfront Resort (the “Panoramic View”), a cooperative development located at 272 Old Montauk Highway in Montauk, New York. (Id. at ¶¶ 10, 12.) To obtain financing for the transaction, Manson, on behalf of Distinctive Ventures, executed promissory notes to an unspecified lender. (Id. at ¶ 13.) Under the terms of the notes, Distinctive Ventures agreed to make monthly payments at a 10% rate of interest and to apply all the proceeds of sales of the cooperative units at Panoramic View toward its outstanding debt. (Id. at ¶ 13.) The promissory notes had a maturity date in April 2009. (Id.)

On July 31, 2013, the United States filed a twenty-four count criminal indictment against Callahan and Manson in the Criminal Action for (i) securities fraud; (ii) conspiracy to commit securities fraud; (iii) wire fraud; (iv) conspiracy to commit wire fraud; (v) and aggravated identify theft. (See id. at ¶¶ 46-72.).

The indictment alleges that Manson and Callahan engaged in multiple fraudulent schemes to obtain money to pay their debt on the Panoramic View project, including: (i) diverting investor money from funds operated by Callahan to pay for fees associated with the loans; (ii) operating investor funds as a Ponzi Scheme whereby Callahan would use money from new investors to pay redemptions to existing investors; (iii) providing false documents and sham promissory notes to an independent auditor to inflate the value of the funds operated by Callahan; (iv) making false statements to investors to raise additional money to pay the loan expenses associated with Panoramic View; and (v) providing false documents and making false statements in order to modify the repayment schedule on the promissory notes issued by Distinctive Ventures to the lender on the Panoramic View transaction. (Id. at ¶¶ 14-56.)

As is described below, on April 17, 2012, the United States commenced an in rem action seeking forfeiture pursuant to 18 U.S.C. § 981 of certain properties owned by Callahan, Manson, and their corporations.

On April 28, 2014, Callahan withdrew his plea of not guilty and pled guilty to one count of securities fraud and one count of wire fraud. (Dkt. No. 61.) On April 29, 2014, the Court accepted Callahan’s guilty plea. (Dkt. No. 62.)

On May 12, 2014, Manson withdrew his initial plea of not guilty and pled guilty to one count of conspiracy to commit securities fraud. (Dkt. No. 67.) On May 13, 2014, the Court accepted Manson’s plea.

The sentencings of Callahan and Manson are presently scheduled for May 29, 2015. (Dkt. No. 88.)

B. The Forfeiture Action

As noted above, on April 17, 2012, the United States commenced a separate in rem action seeking forfeiture pursuant to 18 U.S.C. § 981-of (a) the real property located at the Panoramic View; (b) all shares of the cooperative corporation in the Panoramic View held in the name of the Distinctive Ventures; (c) all shares of the cooperative corporation and the proprietary lease of Salt Sea # 4, a coopera[299]*299tive unit at the Panoramic View, then-held by Callahan and Sheri Callahan (collectively, the “Callahans”); and (d) the real property located in Old Westbury New York. (Verified Compl., 12-cv-1880.)

According to the verified complaint in the Forfeiture Action, on March 21, 2011, Callahan and Sheri Callahan acquired cooperative shares and the proprietary lease for Salt Sea #4 for a purchase price of $3,350,000. (Id. at ¶ 82.) Salt Sea # 4 is a luxury apartment located in the Panoramic View. (See id.) In order to acquire Salt Sea #4, the Callahans obtained a mortgage from Gibraltar Private Bank (“Gibraltar”) in the amount of $2.3 million. (Id. at ¶ 85.) Allegedly, the Callahans improperly used $450,000 from investors in the funds operated by Callahan to make the down payment to obtain the financing from Gibraltar to purchase Salt Sea # 4. (Id. at ¶¶ 85-91.)

On July 30, 2014, the Callahans transferred their title to Salt Sea #4 to the Distinctive Entities. (Lee Deck, Ex. H, at 2.)

C. The Instant Action

On March 5, 2012, the SEC commenced this action against the Defendants Callahan and two investment funds that he managed, Horizon Global Advisory LTD. (“HGA”) and Horizon Global Advisors LLC (“HGA LLC”). The SEC alleged that Callahan and his funds misappropriated investors’ assets in violation of section 17 of the Securities Act, 15 U.S.C. § 77; section 10(b) of the Exchange Act, 15 U.S.C. § 78j; and section 206 of the Advisers Act, 15 U.S.C. § 80b-6. (Dkt. No. 1.)

On May 31, 2012, the SEC filed an amended complaint to include as Defendants: five offshore funds operated by Callahan, Manson, Manson’s companies, Distinctive Ventures, LLC and Distinctive Investments, LLC, and Sheri Callahan, Callahan’s spouse, as a relief Defendant. (Dkt. No. 28.)

i. The Receivership Orders

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Related

Securities & Exchange Commission v. Callahan
193 F. Supp. 3d 177 (E.D. New York, 2016)

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Bluebook (online)
103 F. Supp. 3d 296, 2015 U.S. Dist. LEXIS 57996, 2015 WL 2066138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-callahan-nyed-2015.