United States Bankruptcy Court, Northern District of Ohio
On February 8, 2010, an involuntary Chapter 7 petition was filed in the United States Bankruptcy Court for the Northern District of Ohio against Fair Finance Company which has been assigned Case No. 10-50494 (MSS). On February 18, 2010, Fair Finance Company stipulated to the Chapter 7 filing and the Court appointed Brian Bash, Esq. as Interim Trustee. On February 24, 2010, the Court entered its Notice of Consent Order. On March 11, 2010, the Court entered its Order Appointing Brian Bash, Esq. as Chapter 7 Trustee. On May 5, 2014, this case was transferred from Judge Marilyn Shea-Stonum to Judge Alan M. Koschik.
|Debtor Name||Debtor Case Number|
|Fair Finance Company||10-50494|
Pursuant to the Bankruptcy Code (specifically including, but not limited to, 11 U.S.C. § 362), a debtor is afforded certain protection against its creditors; the Bankruptcy Code prohibits creditors from taking certain actions related to debts that may have been owing prior to the commencement of the Bankruptcy Cases. If you believe that you might be a creditor of the Debtor(s) based upon debts arising prior to February 8, 2010 and you are considering taking action based upon your status as a creditor, you may wish to seek legal advice. The staff of the Clerk of the Bankruptcy Court and the staff of Kurtzman Carson Consultants LLC are not permitted to give legal advice.
On November 30, 2012, Judge Jane Magnus-Stinson sentenced three of Fair Finance’s officers to prison for securities fraud, wire fraud, and conspiracy. The judge sentenced CEO Timothy Durham to 50 years in prison, Chairman of the Board James Cochran to 25 years in prison, and Chief Financial Officer Rick Snow to 10 years in prison. The judge also imposed restitution on all three defendants, and required Mr. Durham to cooperate with my investigation. These proceedings were in United States v. Durham et. al., Case No. 1:11-cr-00042-JMS-DML, in the United States District Court for the Southern District of Indiana.
I have received many emails asking what implications the sentencing will have on the recovery. My attorneys and I have been working to identify assets and claims and to collect money for investors since February of 2010. We have recovered and sold assets, including what was left of Durham’s automobile and art collection. We are also pursuing claims to recover from parties who received money. As I’ve indicated before, the main roadblock to recovering funds is that the loans made by Fair Finance and its related companies are worth far less than what Durham, Cochran, and Snow claimed. I have already obtained over $44 million in judgments, but many of them will not be paid in full. Many of the borrowers are out of business. Durham, Cochran, and Snow allowed other borrowers to mortgage all their assets to other creditors to the detriment of Fair Finance, so that I am last in line to recover. And in pending lawsuits, some borrowers dispute that they owe any money at all. But I still believe that the claims I am pursuing will result in valuable recoveries, and I remain optimistic that once the lawsuits are resolved, I will have funds to make a distribution to unsecured claimants.
United States v. Timothy S. Durham,
James F. Cochran, and Rick D. Snow
Case Updates 11/9/2012:
The United States District Court for the Southern District of Indiana has set a deadline of Thursday, November 15, 2012, for any victim to notify the Government if they plan on attending the sentencing hearing for defendants Tim Durham, James Cochran and Rick Snow on November 30, 2012. Additionally, the court has set November 15th as the deadline for notifying the Government if you intend to make an oral victim impact statement during the sentencing proceedings. Lastly, November 15, 2012 is also the last day to submit a written victim impact statement to the Government to be considered by the Court. If you wish to submit a statement, please send it to Stephanie Lloyd, Victim Witness Coordinator, 10 W. Market St., Suite 2100, Indianapolis, Indiana 46204.
These deadlines were established in order to manage the sentencing proceedings given the large number of victims in this case. When considering whether you would like to make a statement, please be assured that by the time of sentencing, the judge will have read all of the approximately 1,000 letters submitted by victims, and that the Government will be making a thorough presentation at the sentencing hearing on behalf of victims, which will include testimony from several victims.
*****If you plan on attending the sentencing proceedings, please email the Government at email@example.com by no later than November 15th. Also, please indicate at that time if you plan on making an oral victim impact statement.*****
Please click [Order, Docket No. 417] to access the Court's Order.
It has come to my attention that many of you have been asked to sell your claims in the Fair Finance bankruptcy case. Many of you have asked me whether the company offering to purchase your claim is affiliated with me or is legitimate, and others have asked me whether they should sell their claim. While I cannot tell you whether you should sell your claim – that is personal decision you must make depending on your individual circumstances – I am posting in the paragraphs below information that may be helpful to you when you are deciding whether or not to sell your claim.
ASM Capital is a company that purchases claims in bankruptcy cases and has offered to purchase claims from some claimholders in the Fair Finance bankruptcy case. ASM Capital is a legitimate company, but it is not affiliated with me, and I do not communicate with them about the status of the bankruptcy case. ASM Capital, and other similar companies, offer to purchase bankruptcy claims at a discount early in a bankruptcy case with the hope that the trustee will recover enough money during the bankruptcy case to pay more on the claim than what the company bought it for. Factors these companies consider when deciding whether to buy claims and how much to offer for them include the total number of claims filed in the case, the total dollar amount of the claims filed in the case, the total amount of money the trustee is seeking to recover from various lawsuits, the likelihood of success on the lawsuits the trustee has filed, and the collectability of the defendants in the lawsuits. These companies obtain this information through the bankruptcy filings and other public information and DO NOT have any special knowledge about the status of any of the lawsuits I have filed in this case.
In the Fair Finance bankruptcy case, creditors have filed approximately 5,280 unsecured claims for a total of approximately $215 million. To date, I am pursuing more than 100 lawsuits seeking to recover more than $1 billion for Fair Finance’s creditors. You can find some additional details about those lawsuits in the monthly status report I file with the bankruptcy court, which is also posted monthly on this website. It may take an extended period of time for many of these lawsuits to come to a conclusion –up to or beyond another year- but the amount of money I recover from these lawsuits will determine whether I am able to make distributions to creditors and how much those distributions will be. Unfortunately, I am not able to provide any projections about the outcome of these lawsuits, other than to say that I am hopeful they will all have a positive result. If you have additional questions about whether or not you should sell your claim, I advise you to seek advice from independent counsel.
Since my appointment, we have secured the Debtor's facilities and data, reviewed the Debtor's records, returned accounts that were formerly serviced by the Debtor to their owners, and filed the required disclosures (see "Schedules and SOFA tab, on the left), including lists of creditors.
We also held the meeting of creditors, where we reviewed the Schedules and described some of the issues involved in locating and recovering assets. We are providing a link to a news report with additional detail regarding the meeting of creditors. The creditors' meeting will be continued on August 2nd; we will file and serve a notice to all creditors identifying the time and place for that meeting.
We have recovered some assets, like cash in bank accounts and artwork, and have obtained liens in favor of the Trustee on certain vehicles. We also have filed certain motions and adversary proceedings (lawsuits within a bankruptcy case) aimed at recovering additional assets - those pleadings are available free of charge on this website. We have been negotiating, and will continue to negotiate, with entities that we believe owe obligations to the Debtor, in effort to recover as much as we can by consent, without costly litigation. Although it is impossible to predict how much we ultimately will recover, and it may take much longer than many of you would like, please know that we recognize the difficulty and hardship that so many investors are suffering, and will continue to work diligently to obtain the best result possible.
Click here for the Akron Beacon News Article
I receive many inquiries about how to change the beneficiary of claims that have been filed in the bankruptcy case. Unfortunately, the Trustee is not the appropriate person to change the name of the claimant and is not allowed to give legal advice about how to transfer an interest in a claim. If you would like to have your interest in a claim transferred to someone else, you or your attorney will need to file certain paperwork with the Bankruptcy Court. Do not file any paperwork with the Trustee. Transfer of Claim Other Than For Security (Form 210A) and Instructions for Form 210A may be useful to you or your attorney when you are deciding what documents need to be filed with the Bankruptcy Court. The Trustee offers no legal opinion about whether filing this or any other form will result in a valid transfer of a claim. Also note, the Trustee has not yet determined which claims should be allowed and reserves the right to object to any claims filed in the bankruptcy case. In addition to filing any paperwork with the Bankruptcy Court, you may need to email Kurtzman Carson Consultants LLC at firstname.lastname@example.org to change the mailing address that will receive notice information from the Trustee about the bankruptcy case.
Please note that if the claim you want to transfer is part of a trust or probate estate, issues of trust or probate law may determine who should hold an interest in the claim. You may want to discuss these issues with a trust or probate attorney. The Trustee is not permitted to answer questions about trust or probate law.
Notice Regarding Taxes
I understand that investment certificate losses with Fair Finance are creating difficult tax questions. Unfortunately, I cannot provide advice on this issue. However, my forensic accountant has provided an IRS Revenue Bulletin and an IRS Revenue Ruling about how to treat investment losses due to fraud or embezzlement. You may find it helpful to review these documents with your tax preparer or accountant, if you have one. You can access these documents by clicking Revenue Bulletin 2011-58, Revenue Bulletin 2009-20 and Revenue Ruling.
In addition, I have received a number of calls asking for an estimate of how much investment certificate holders will receive for the purpose of calculating tax losses. That number is very difficult to estimate. I cannot be certain that there will be any recovery, and I would be very surprised if the recovery approached twenty-five percent.
Notice Regarding Recent Arrests:
I receive many questions about the status of criminal investigations of Timothy Durham and other insiders. For that reason, I believe investors will be interested to know that, on March 16, 2011, Fair Finance co-owners Timothy Durham and James Cochran, along with Rick Snow, the chief financial officer, were indicted on felony charges arising from alleged fraudulent and deceptive business practices to hide from investors and regulators Fair's true financial condition and their misuse of the company's funds. Reports state that Durham was arrested at his home in West Hollywood, California at about 2:00 a.m. and appeared in a Los Angeles courtroom the following day, where he pleaded not guilty to one count of conspiracy to commit wire and securities fraud, 10 counts of wire fraud, and one count of securities fraud. On that same day, the Securities and Exchange Commission sued the same defendants for securities fraud. You can access these documents by clicking Department of Justice’s Indictment and Securities and Exchange Commission’s Complaint.
Please remember that the Trustee's job is to locate and collect property of Fair Finance Company and distribute the assets in accordance with the Bankruptcy Code. I do not control the criminal investigations and proceedings. Those who wish to follow the criminal cases may be able to do so through news reports, as they appear to be receiving wide media coverage.
Notice Regarding Political Campaign Contributions:
I also receive many inquiries regarding contributions made by or through Timothy Durham to various political parties and campaign funds. The Trustee recently released a statement to address the status of these demands and the Trustee's position that he is entitled to recover many of these funds. To review the full statement, click Statement.
Notice Regarding Calls From "Fraud Recovery Group":
We have been informed that a company called "Fraud Recovery Group" has been contacting Fair Finance investors. We are not familiar with this company, and they are not affiliated with the Trustee, the Bankruptcy Court or, to our knowledge, the government. We have, however, learned that there is an on-going lawsuit by the Department of Justice against this company to prohibit them from filing tax returns. Investors are, of course, free to use an attorney or accountant for filing taxes or any other purpose, but we encourage you to be cautious about solicitations and to ensure that such professionals are qualified. Please also keep in mind that, regardless of what someone may try to tell you, no one can speed up the recovery of assets or payment of claims by the Trustee. We are informed that the Akron Beacon Journal is researching the company that has been contacting investors and plans to run a story about it on Friday (Oct. 29th) - you may wish to look for that.
Notice Regarding Proofs of Claim:
The deadline to file claims against Fair Finance Company was October 29, 2010. The Trustee has not yet recovered sufficient funds to make any payments on the claims that he has received. If the Trustee does recover enough funds, he will review all of the claims he received before making any payments to creditors. The Trustee will mail you a notice and provide an opportunity for you to respond if the Trustee objects to your claim or has any problems with the form you submitted.
Complaint for Substantive Consolidation:
On February 14, 2011, the Trustee filed a Complaint seeking to consolidate the assets and liabilities of two other companies - Obsidian Enterprises and Diamond Investments - into the Fair Finance Company bankruptcy estate. If successful, this would enable the Trustee to recover the assets of those companies for the benefit of the bankruptcy estate and its creditors. The Complaint is available, for free, on this website (click the tab on the left labeled "Complaint Against Obsidian and Diamond Investments"). The complaint includes detailed factual allegations regarding Fair Finance Company's history and the events that led to its current situation.
Since my appointment, we have secured the Debtor's facilities and data, exited the Debtor’s leases, returned accounts that were formerly serviced by the Debtor to their owners, and filed the required disclosures (see "Schedules and SOFA tab, on the left), including lists of creditors.
We have recovered some assets, including cash in bank accounts, artwork, and a large number of exotic cars, which were seized by the FBI and turned over to us. These assets were sold by experienced and specialized auctioneers (as described below). We have sold artwork for a total of approximately $400,000, and twenty-two vehicles for a total of approximately $1,300,000. All proceeds will be held by the Trustee for the benefit of the Fair Finance bankruptcy estate. The Trustee also holds a second-priority lien on a Duesenberg, which sold for $1,125,000. Because there is a higher priority lien on that vehicle, it is unclear whether the Trustee will receive any cash proceeds from the sale of the Duesenberg, but it could still improve the Trustee's lien position on other assets (by reducing the balance of the obligation owing to the first priority lien holder). A few cars remain in the Trustee's possession, and we are in the process of arranging for their sale.
We have filed many mortgages on properties owned by insiders who received loans, which Fair Finance or its parent companies failed to file when the mortgages were granted. However, the insiders later granted mortgages on these same properties to other parties, such as banks, which means that if these properties are sold, we will be paid, if at all, only after the banks and other parties who filed their mortgages before us.
We have been negotiating, and will continue to negotiate, with entities that we believe owe obligations to the Debtor, in effort to recover as much as we can by consent, without costly litigation. We also are suing individuals and entities to recover assets. The defendants in these lawsuits include Obsidian Enterprises, Inc., which owes the estate approximately $30,000,000 in loans; Daniel Laikin, who owes the estate in excess of $20,000,000 on his loans; and many owners, directors, and officers of Fair Finance Company.
We also continue to investigate the web of related entities for potential assets. Although it is impossible to predict how much money we ultimately will recover, and it may take much longer than many of you would like, please know that we recognize the difficulty and hardship that so many investors are suffering, and will continue to work diligently to obtain the best result possible.
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The continued meeting of creditors pursuant to section 341 of the Bankruptcy Code was held August 2, 2010 at 1:00 p.m.
Akron City Centre Hotel
Salon A Grand Ballroom, 20 West Mill Street
Akron, OH 44308
Rule 9001(5) of the Federal Rules of Bankruptcy Procedure requires that a representative of the Debtors appear at the Meeting of Creditors for the purpose of being examined under oath by a representative of the Office of the United States Trustee and by any interested parties that attend the meeting. Creditors are welcome, but not required, to attend the meeting. The Meeting of Creditors may be continued or adjourned by notice at the meeting, without further written notice to creditors.
United States Bankruptcy Court
Northern District of Ohio (Akron)
455 U.S. Courthouse
2 South Main Street
Akron, OH 44308
Fair Finance Claims Processing Center
c/o Kurtzman Carson Consultants LLC
2335 Alaska Avenue
El Segundo, CA 90245
T: (866) 381-9100
Please file proof(s) of claim, if any, via US Mail or other hand delivery system. Facsimile and other electronic delivery methods are not acceptable. You must file an originally executed proof of claim. If you would like a copy of your claim returned to you as proof of receipt, please enclose an additional copy and a self-addressed postage-paid envelope.
Brian A. Bash, Esq.
Baker & Hostetler LLP
3200 National City Center
1900 East 9th Street
Cleveland, OH 44114-3485
Kelly S. Burgan, Esq.
Joseph M. Esmont, Esq.
Baker & Hostetler LLP
3200 National City Center
1900 East 9th Street
Cleveland, OH 44114-3485
Daniel M McDermott, US Trustee
Lenore Kleinman, Trial Attorney
201 Superior Avenue East, Suite 441
Cleveland, OH 44114
Kurtzman Carson Consultants LLC ("KCC") maintains this website at the direction of the Interim Chapter 7 Trustee and Baker & Hostetler LLP, counsel to the Chapter 7 Trustee. KCC maintains this website for the public's convenience and, while KCC makes every attempt to ensure the accuracy of the information contained herein, this website is not the website of the United States Bankruptcy Court and does not contain the complete, official record of the Bankruptcy Court. All documents filed with the Court are available for inspection at the Clerk of the Bankruptcy Court for the Northern District of Ohio.