Securities & Exchange Commission v. Credit Bancorp, Ltd.

194 F.R.D. 457, 2000 U.S. Dist. LEXIS 3508
CourtDistrict Court, S.D. New York
DecidedMarch 21, 2000
DocketNo. 99 CIV. 11395 RWS
StatusPublished
Cited by20 cases

This text of 194 F.R.D. 457 (Securities & Exchange Commission v. Credit Bancorp, Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.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. Credit Bancorp, Ltd., 194 F.R.D. 457, 2000 U.S. Dist. LEXIS 3508 (S.D.N.Y. 2000).

Opinion

OPINION

SWEET, District Judge.

Presently before the Court are a number of motions to intervene, pursuant to Rule 24, Fed.R.Civ.P., brought by a multitude of customers of defendants Credit Bancorp, Ltd. and Credit Bancorp, Inc. (collectively “Credit Bancorp”), including Robert Praegitzer (“Praegitzer”), Thomas Stappas (“Stappas”),1 [459]*459Stevenson Equity Company (“SECO”), Stephen J. Cole-Hatchard (“Cole-Hatchard”),2 and Dr. Gene W. Ray (“Ray”).3 Non-party customer SECO has also moved to compel the court-appointed Receiver in this action, Carl H. Loewenson, Jr. (the “Receiver” or “Loewenson”), to release to SECO certain shares of unencumbered stock, as well as a cash dividend declared in February of 2000. For the reasons set forth below, the motions to intervene are granted, and SECO’s motion to remit the dividend and return unencumbered shares is denied.

Facts and Prior Proceedings

By complaint filed on November 17, 1999, the SEC initiated the instant enforcement action. Immediately thereafter, the SEC moved ex parte for a temporary restraining order and asset freeze preventing the defendants in this action, Credit Bancorp, Richard Jonathan Blech (“Blech”), Douglas C. Brandon (“Brandon”), and Thomas Michael Ritt-weger ("Rittweger”) (collectively the “Defendants”), from, inter alia, dissipating assets and continuing to accept and deposit funds from potential investors. In addition to seeking an asset freeze, the SEC indicated its desire that a receiver ultimately be appointed in the action. The SEC’s motion for a restraining order was granted, its proposed order (the “Temporary Restraining Order and Asset Freeze” or the “November 17th Order”) was signed by the Court, and the matter was set down for hearing on the following day.

In its complaint and supporting papers, the SEC alleges the existence of a wide-ranging scheme to defraud by the Defendants. According to the SEC, Credit Bancorp solicited investments from a number of individuals or entities, many of which held significant quantities of restricted stock. In exchange for the promise of a not-insubstantial risk-free return on their stock, which could not otherwise be sold, and an undertaking that their stock would not be margined, pledged, or otherwise hypothecated, various investors provided Credit Bancorp with their securities for placement in “trust” accounts. The depositors’ returns, so they were told, were to be generated by virtue of a line of credit extended based on the value of the securities placed in trust accounts.

Contrary to Credit Bancorp’s assurances, the complaint alleges, the securities obtained from investors were not placed in trust accounts. Instead, the securities were placed in margin or cash accounts controlled by Credit Bancorp and Blech, and were in turn margined or sold.

On November 23, 1999, after several extensions of the Temporary Retraining Order and Asset Freeze, and after hearing argument from the representatives of various parties, the Court issued an order (the “November 23rd Order”) altering the terms of the November 17th Order. In addition to enjoining the Defendants from future violations of the securities laws, freezing the assets of Defendants Credit Bancorp, Blech, and Rittweger, prohibiting the destruction of documents, granting the SEC expedited discovery, and requiring Credit Bancorp and all related entities to take all steps as are necessary to repatriate investor funds to the United States, the November 23rd Order appointed Loewenson as “Fiscal Agent” of Credit Bancorp, Blech, and Rittweger, with the authority to review and approve, among other things, all applications by those defendants for necessary transaction, any transactions [460]*460on stock options purchased or sold by Credit Bancorp on behalf of its customers, and all requests to obtain additional collateral or to sell pledged securities in response to a notice of deficiency or a margin notice. Leave was granted for any application, upon notice, to modify the terms of the order.

Given the hectic pace of events in this action, the Court did not need to wait long for further application by the parties. On November 24, 1999, after an application by counsel to Credit Bancorp and certain other defendants, the terms of the November 23rd Order were temporarily modified in open court to allow Credit Bancorp to continue in the normal course of business, subject to various restrictions. In the course of remonstrating for that modification, counsel indicated that Credit Bancorp’s line of business required it to engage in multiple transactions, many of them options transactions, and that requiring prior .approval by the Fiscal Agent of all transactions would impose an undue hardship.

However, the continued operation of Credit Bancorp in the normal course of business was short-lived and problematic. On December 1, 1999, on consent, this Court ordered that the November 24th oral modification of the November 23rd Order would be terminated, and that the terms of the November 23rd Order would once again govern the activities of Credit Bancorp. On December 3, 1999, counsel for Credit Bancorp and Blech informed the Court that investor assets obtained by Credit Bancorp had, in fact, been impaired to a significant degree, and that investor funds had been used improperly to purchase both personal and real property. Certain of the securities deposited with Credit Bancorp had been used to secure margin credit, so the Court was informed, resulting in a margin deficit of at least $35 million. In addition to these revelations, it was relayed to the Court that certain mar-gined assets had been liquidated to cover Credit Bancorp’s margin deficits. In the wake of these revelations, Credit Bancorp and Blech indicated their willingness to consent to the entry of a preliminary injunction, asset freeze, and other such relief.

On January 21, 2000, after hearing vigorous argument from all parties and nonparties who wished to be heard, the Court granted a renewed request by the SEC for the appointment of a receiver of Credit Bancorp, transforming Loewenson from a “Fiscal Agent” with limited review and investigatory powers into a receiver with both the powers and the responsibility to ensure the protection and orderly marshaling of Credit Baneorp’s assets. While the Court’s January 21st Order Appointing Receiver provided the Receiver with a wide array of powers, that order stipulated that “[t]he Receiver shall not return to Credit Bancorp customers any securities or other assets deposited with Credit Bancorp or into an account in the name of Credit Bancorp or any dividends, interest, or other income or profits earned thereon or the proceeds from the sale of any securities or assets without further Order of this Court upon notice to all customers.”

The intervention motions presently under consideration were filed on January 19, 2000, January 24, 2000, January 26, 2000, and January 31, 2000. SECO’s request for the return of stock and distribution of cash dividends was brought by order to show cause on January 28, 2000, and the matter was set down for hearing on February 2, 2000.

Oral argument was heard on these matters on January 19 and February 2, at which time they were deemed fully submitted.

Discussion

Although the facts underlying Credit Bancorp’s transactions are complex, for the purposes of the motions presently under consideration the issues are relatively straightforward.

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Bluebook (online)
194 F.R.D. 457, 2000 U.S. Dist. LEXIS 3508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-credit-bancorp-ltd-nysd-2000.