IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT CHANCERY DIVISION VERIFIED COMPLAINT FOR IMPOSITION OF CONSTRUCTIVE TRUST

Transcription

1 STATE OF ILLINOIS ) )SS COUNTY OF DUPAGE ) IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT CHANCERY DIVISION BLUE RIDER FINANCE, INC., Plaintiff, v. No.: CITYSCOPE PRODUCTIONS, LLC, DAVID ODOM, and KIMBERLY ODOM, Defendants. VERIFIED COMPLAINT FOR IMPOSITION OF CONSTRUCTIVE TRUST NOW COMES, Plaintiff, Blue Rider Finance, Inc., by and through its attorneys, Ekl, Williams & Provenzale, LLC, and complaining of Defendants, Cityscope Productions, LLC, David Odom, and Kimberly Odom, states as follows: PARTIES 1.' '. Plaintiff, Blue Rider Finance, Inc., is California corporation with its principal office located in Santa Monica, Los Angeles County, California. 2. Defendant, Cityscope Productions, LLC, is an Illinois limited liability company with its principal office located in Naperville, DuPage County, Illinois. 3. Defendant, David Odom, is an individual residing at W. Royal Lythem. Drive, Naperville, Will County, Illinois. Defendant David Odom is the managing member and registered agent ofdefendant Cityscope. Defendant David Odom has been a member of the Illinois Bar from which he has been suspended three (3) tirnes. Page 1 of 7 Document received on 07/27/2011 Document accepted on 07/27/ :14:05 # /

2 4. Defendant, Kimberly Odom, is an individual residing at W. Royal Lythem Drive, Naperville, Will County, Illinois, and is the wife of Defendant, David Odom. 5. Defendants, David and Kimberly Odom, are presently the owners of real property located at W. Royal Lythem Drive, Naperville, Will County, Illinois (hereinafter "The Subject Property"). FACTS 6. Plaintiff has sued Defendants in the Superior Court of the State of California, County of Los Angeles (Case No. SC113530). The Los Angeles County lawsuit results from financing provided to Defendant Cityscope for a motion picture tentatively entitled "Season Tickets. 1I While the Los Angeles County lawsuit seeks monetary damages from Defendants David Odom and Cityscope for breach of contract, fraud, and conversion, the instant lawsuit seeks to impose a constructive trust and pre-judgment attachment upon real property and bank accounts located within the State of Illinois. 7. As set forth in the Los Angeles County lawsuit, Plaintiff agreed to provide a bridge loan to Defendant Cityscope for the production of the motion picture. The bridge loan was premised on the following representations made by Defendant Odom: a. the motion picture would star Martin Lawrence and Zack Gianfalakis; b. the motion picture would cost no more than $13,000,000.00; c. $13,000, had already been deposited into escrow accounts, and those proceeds would guarantee the bridge loan; d. the bridge loan would be repaid within 30 days, although Plaintiff ultimately agreed to 45 days for additional consideration; e. the proceeds of the bridge loan would be disbursed by Defendant Page 2 of 7 Document received on 07/27/2011 Document accepted on 07/27/ :14:05 #

3 Cityscope pursuant to a "Use of Funds" schedule (see Exhibit A). 8. Plaintiffs agreement to make the bridge loan was expressly and primarily conditioned on the representation that the escrow funds would secure the bridge loan. 9. Defendant Odom assured Plaintiff on several occasions that the escrow funds would be available to secure the bridge loan. 10. Based on these representations, Plaintiff agreed to loan Defendant Cityscope the amount of $2,500, for up to 45 days, with the loan secured by the escrow accounts, along with various security interests in the motion picture. 11. On May 9, 2011, the bridge loan was closed. Pursuant thereto, Plaintiff wire transferred $2,175, to Defendant Cityscope's bank account with Associated Bank, N.A. (hereinafter "The Subject Account"). See Exhibit B. On May 27, 2011, Plaintiff wire transferred an additional $125, to The Subject Account. See Exhibit C. The remaining $200, was disbursed to third-parties pursuantto the financing agreement. 12. The bridge loan amount of $2,500, was advanced to Defendant Cityscope under the express terms ofthe financing agreement, and the loan was to be fully repaid by June 24, 2011, in the amount of $3,000, inclusive of fees at a minimum. 13. Defendant Odom was the sole person with access to The Subject Account. 14. Unbeknownst to Plaintiff, in early 2009, The Subject Property was subject to a mortgage foreclosure action filed by Northern Trust Company, with Defendants David and Kimberly adorn as named defendants (Will County Case No CH 667). Northern Trust Company sought to foreclose on a promissory note in the amount of $888, Further, unbeknownst to Plaintiff, in November of 2010, Defendant adorn filed a voluntary petition in bankruptcy under Chapter 13 in the United States Bankruptcy Page 3 of 7 Document received on 07/27/2011 Document accepted on 07/ :14:05 #

4 Court for the Northern District of Illinois under penalty of perjury, listing his primary residence as The Subject Property and his total liquid assets as $40,000.00, with cash of $4,000 and accounts receivable of $36,000. On December , the bankruptcy petition was dismissed for failure to comply with certain requirements under Chapter In January of 2011, Northem Trust completed the mortgage foreclosure on The Subject Property and purchased it at a sheriffs sale. 17. On May 25, 2011, or approximately two {2} weeks after the bridge loan proceeds were paid to Defendant Cityscope, Defendants David and Kimberly Odom repurchased The Subject Property for $821, No further financing was obtained using The Subject Property as leverage to finance the re-purchase of The Subject Property. 18. Following the receipt of the bridge loan proceeds, and contrary to the "Use of Funds" documents executed in advance ofthe closing, the only actual payments made out ofthe Subject Account, which were close to being consistent with the representations made by Defendants David adorn and Cityscape, were as follows: a. $175, advanced on behalf of Defendant Cityscope to the writers to acquire the motion picture rights in their screenplay; b. $65, paid to the producers and $35, paid to the director, which is less than the amount set forth on the schedule; and c. $250, paid to Martin Lawrence, which is less than the amount set forth on the schedule. 19. Approximately 42 days after the bridge loan was dispersed, Defendant adorn confirmed that the bridge loan would be repaid from the escrow accounts. However, no payment was received by Plaintiff. Page 4 of 7 Document received on 07/27/2011 Document accepted on 07/27/201116:14:05 #

5 20. After no payment was received, and on the 45th day, Plaintiff again sought repayment of the bridge loan from the escrow accounts. 21. As of the filing of this Complaint, none of the bridge loan has been repaid. 22. Approximately $2,000, ofthe bridge loan remains unaccounted for and Defendants David Odom and Cityscope refuse to account for the loan proceeds despite Plaintiff's attempt to contact Defendants on several occasions. 23. Defendant David Odom refuses to communicate with Plaintiff concerning the balance due and otherwise account for the proceeds of the bridge loan. COUNT I - CONSTRUCTIVE TRUST BASED ON FRAUD 24. In light of Defendants' financial disclosures and public records, Defendants David and Kimberly Odom may have 'fraudulently obtained The Subject Property through the wrongful and illegal use of proceeds from the bridge loan. 25. In light of Defendants' financial disclosures and public records, Defendants may have fraudulently misrepresented how the proceeds from the bridge loan would be used when they may have wrongfully withdrawn more than $820, from The Subject Accountto re-purchase The Subject Property from Northern Trustfollowing the foreclosure and sheriff's sale on that property. 26. In light of Defendants' financial disclosures and public records, Defendants may have fraudulently concealed and disposed of the proceeds of the bridge loan made to Defendant Cityscope by Plaintiff when they may have withdrawn more than $820, from the Subject Account to re-purchase The Subject Property from Northern Trust for the benefit of Defendants David and Kimberly Odom. Page 5 of 7 Document received on 07/27/2011 Document accepted on :14:05 #

6 27. In light of Defendantsl financial disclosures and public records, Defendants may have fraudulently conveyed the proceeds of the bridge loan made to Defendant Cityscope by Plaintiff when they may have withdrawn more than $ from The Subject Account to re-purchase The Subject Property from Northern Trust for the benefit of Defendants David and Kimberly Odom. 28. Defendants apparent withdrawal of more than $820, from The Subject Account for the re-purchase of The Subject Property was done to hinder or delay Plaintiff from recovering those proceeds of the bridge loan. WHEREFORE, Plaintiff, Blue Rider Finance, Inc., respectfully requests this Honorable Court enter judgment in its favor and against Defendants, Cityscope Productions, LLC, David Odom, and Kimberly Odom, and award the following relief: a. grant Plaintiff's Petition for Pre-Judgment Attachment pursuant to 735 (LCS 5/4-101, et seq. (West 2010) and attach The Subject Property and The Subject Account until the resolution of the Los Angeles County Case; b. grant Plaintiff's Petition for Pre-Judgment Attachment pursuant to 735 ILCS 5/4-101, et seq. (West 2010) and attach all property located in the State of Illinois which is within Defendants' possession or control and was obtained by Defendants through the fraudulent conveyance, disposition, or use of the proceeds of the bridge loan made by Plaintiff and attach that property until the resolution of the Los Angeles County Case; c. impose a constructive trust on The Subject Property and The Subject Account so the Court may maintain and preserve these assets fraudulently obtained by Defendants; Page 6 of 7 Document received on 07/27/2011 Document accepted on 07/27/ : 14:05 #

7 d. impose a constructive trust on all property located in the State of Illinois which is within Defendants' possession or control and was obtained by Defendants through the fraudulent conveyance, disposition, or use of the proceeds of the bridge loan made by Plaintiff; and e. any and all relief this Court deems appropriate. Respectfully Submitted, Terry A. Ekl Vincent C. Mancini Tracy Stanker Ekl Williams & Provenzale LLC 901 Warrenville Road, Suite 175 lisle, IL {630) Atty. No VCM\kmf (rev. dd~ 3/22/11) J;IMARY\CLlENT FlLEs\BI.UE RIDER\COMPLAINTJrm Ekl Wil. s & Provenzale LLC Attorneys for Plaintiff VERIFICATION Under penalties as provided by law pursuant to 735 ILCS 5/1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Blue Rider Finance, Inc. By: Authorized Signature Page 7 of 7 Document received on Document accepted on 07/27/ :14:05 #

8 Defendants through the fraudulent conveyance, disposition, or use of the proceeds of the bridge loan made by Plaintiff; and e. any and all relief this Court deems appropriate. Respectfully Submitted, Terry A. Ekl Vincent C. Mancini Tracy stanker Ekl Williams & Provenzale LLC 901 Warrenville Road, Suite 175 Lisle, IL (630) A1ty.No VCMIkmt (lev. ddy ) J~RY\CueNT FILES\BLU! RIDERlCOMPlAIN'TJrm Ekl Williams & Provenzale LLC Attorneys for Plaintiff VERIFICATION Under penalties as provided by law pursuant to 735 ILCS 5/1-109 of the Code of Civil Procedure, the undersigned certffies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on Information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Page70f 7 Document received on 07/27/2011 Document accepted on 07/27/ :14:05 # /