IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CASE NO. 3:16-CV-285

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CASE NO. 3:16-CV-285 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. RICHARD W. DAVIS, JR., MOTION TO ABANDON CERTAIN PERSONAL PROPERTY OF THE RECEIVERSHIP ESTATE and Defendant, DCG REAL ASSETS, LLC, et al., Relief Defendants. A. Cotten Wright, the duly-appointed receiver for the assets of DCG Real Assets, LLC; DCG Commercial Fund I, LLC; H20, LLC; DCG PMG, LLC; DCG PMF, LLC; Finely Limited, LLC; DCG Funds Underwriting, LLC; DCG ABF Management, LLC; DCG Funds Management, LLC; Davis Capital Group, Inc.; Davis Financial, Inc.; DCG Partners, LLC; DCG Real Estate Development, LLC; Huntersville Plaza Phase One, LLC; Huntersville Plaza Phase Two, LLC, North Lake Business Park, LLC, and Richard Davis Enterprises, LLC ( RDE, and collectively with the other above-named entities, the Receivership Defendants ) in the above-referenced case (the Receiver ), through counsel, hereby presents this Motion to Abandon Certain Personal Property of the Receivership Estate (this Motion ) and respectfully shows the Court the following in support: INTRODUCTION 1. Through this Motion, the Receiver seeks entry of an Order authorizing the Trustee to abandon certain personal property of the receivership estate, specifically a 2014 Dodge Ram Case 3:16-cv GCM Document 76 Filed 12/20/16 Page 1 of 5

2 2500 titled to RDE (the Truck ), which abandonment would take effect immediately upon entry of an Order granting this Motion. PROCEDURAL AND FACTUAL BACKGROUND 2. On June 2, 2016, the Securities and Exchange Commission filed a civil complaint against Richard Wyatt Davis, Jr. as Defendant ( Davis ) and the Receivership Defendants as relief defendants, initiating this case. On June 3, 2016, the Court entered Judgment as to Davis. 3. On June 8, 2016, the Court entered a Temporary Receivership Order in this case (Doc. No. 8) imposing a temporary injunction and appointing the Receiver; and, by default judgments entered on August 5, 2016 and September 22, 2016 (Doc. No. 48 & 64), the Court extended the temporary receivership into a permanent receivership (collectively, the Receivership Order ). 4. On August 5, 2016, the Court entered an Order Establishing Procedures for Miscellaneous Motions; Procedures for the Sale of Assets; and Case Closing Procedures (Doc. No. 49) (the Case Procedures Order ). Pursuant to (2)(a) of the Case Procedures Order, the Receiver must file a motion to abandon any assets owned by the Receivership Defendants worth more than $2, and provide parties-in-interest with at least fourteen (14) days to submit written objections to such an abandonment motion. 5. The Receiver is informed and believes that the Truck could be sold for, at most, $50, However, the lending institution that financed the purchase of the Truck currently has a lien against the Truck in the amount of $47, According to the finance company, although the title is in the name of RDE, the loan obligation is under Davis s personal social security number and not RDE s employer identification number. 6. The Receiver believes that, even at a value of $50,000, after factoring in the costs Case 3:16-cv GCM Document 76 Filed 12/20/16 Page 2 of 5

3 necessary to sell the Truck, including, without limitation, storage costs, marketing costs, and commissions, the Truck is of inconsequential value to the receivership estate. RELIEF REQUESTED 7. Through this Motion, the Receiver seeks an order providing for the abandonment of the Truck, effective immediately upon entry of such an order granting this Motion. 8. As set forth above, the Truck is of inconsequential value to the receivership estate as the balance owed on the purchase money loan to purchase this Truck is greater than, equal to, or only very slightly less than, the value of the Truck. 9. Any efforts by the Receiver to administer the Truck would be burdensome and not beneficial to the investors and interest holders of the Receivership Defendants. NOTICE 10. If you do not want the Court to approve this Motion, or if you want the Court to consider your views, then on or before January 4, 2016, you or your attorney must file with the Court a written response explaining your position. The response must be filed electronically with the United States District Court for the Western District of North Carolina, Under certain circumstances, if you are an individual who is not represented by an attorney, you may hand deliver your response to the Clerk of the United States District Court, 401 West Trade Street, Charlotte, NC On or before the date stated above for filing your written response, you must also mail, fax or a copy of your written response to: A. Cotten Wright, Grier Furr & Crisp, PA, 101 N. Tryon St., Ste. 1240, Charlotte, NC 28246; 704/ ; dcgreceivership@grierlaw.com. If the Court schedules a hearing, you or your attorney should attend the hearing, which will be held at a time and date which will be noticed only to any party who files a response, at the United States District Court, 401 West Trade Street, Case 3:16-cv GCM Document 76 Filed 12/20/16 Page 3 of 5

4 Charlotte, NC If you or your attorney do not to take these steps, then the Court may decide that you do not oppose the relief the Receiver requests herein and may enter an order approving this Motion. WHEREFORE, the Receiver prays that the Court will enter an Order: (1) Granting this Motion; (2) Authorizing the Receiver to abandon the Truck, which abandonment shall take effect immediately upon entry of the Order granting this Motion; and (3) Granting such further relief as is just and proper. Respectfully submitted, this 20th day of December, /s/ Michael L. Martinez A. Cotten Wright (N.C. Bar No ) Michael L. Martinez (State Bar No ) Grier Furr & Crisp, PA 101 North Tryon Street, Suite 1240 Charlotte, North Carolina Phone: Fax: Attorneys for the Receiver Case 3:16-cv GCM Document 76 Filed 12/20/16 Page 4 of 5

5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CASE NO. 3:16-CV-285 SECURITIES AND EXCHANGE COMMISSION, v. Plaintiff, RICHARD W. DAVIS, JR., CERTIFICATE OF SERVICE and Defendant, DCG REAL ASSETS, LLC, et al., Relief Defendants. The undersigned hereby certifies that copies of the foregoing Motion to Abandon Certain Personal Property of the Receivership Estate were served by electronic notification on those parties registered with the United States District Court, Western District of North Carolina electronic case filing system to receive notices for this case, unless otherwise noted below. Patrick R. Costello Securities and Exchange Commission Brian S. Cromwell Sarah F. Hutchins Parker Poe Adams & Bernstein LLP Attorneys for DCG Commercial, LLC and DCG Commercial Holdings, LLC Richard W. Davis, Jr. Via Investors in Receivership Defendants Via , U.S. Mail, and online publication This is the 20th day of December, /s/ Michael L. Martinez Michael L. Martinez Grier Furr & Crisp, PA 101 North Tryon Street, Suite 1240 Charlotte, NC Case 3:16-cv GCM Document 76 Filed 12/20/16 Page 5 of 5