Federal Trade Commission v. Johnson et al, No. 2:2010cv02203 - Document 2073 (D. Nev. 2021)
Court Description: ORDER granting ECF No. 2068 Wind Up Motion for Order Approving Final Report and Accounting;... (See pdf order for details and specifics.) Signed by Chief Judge Miranda M. Du on 10/4/2021. (Copies have been distributed pursuant to the NEF - DRM)
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Federal Trade Commission v. Johnson et al 1 2 3 4 5 6 7 8 9 10 Doc. 2073 Michael F. Lynch (Nev. SBN 008555) Michael@LynchLawPractice.com LYNCH LAW PRACTICE, PLLC 3613 S. Eastern Ave. Las Vegas, Nevada 89169 Telephone: 702.684.6000 Facsimile: 702.543.3279 Gary Owen Caris (CA SBN 088918) gcaris@btlaw.com BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 Los Angeles, California 90067 Telephone: (310) 284-3880 Facsimile: (310) 284-3894 Attorneys for Receiver ROBB EVANS of ROBB EVANS & ASSOCIATES LLC 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 FEDERAL TRADE COMMISSION, 15 Case No. 2:10-CV-02203-MMD-GWF Plaintiff, 16 v. 17 JEREMY JOHNSON, individually, as officer of Defendants I Works, Inc., etc., et al., 18 19 Defendants. 20 21 22 [PROPOSED] ORDER GRANTING MOTION FOR ORDER APPROVING FINAL REPORT AND ACCOUNTING; FINAL REQUEST FOR APPROVAL AND PAYMENT OF RECEIVER’S AND PROFESSIONALS’ FEES AND COSTS FROM JULY 1, 2018 THROUGH CLOSING; FOR DISPOSITION OF CERTAIN REAL PROPERTY; FOR DISTRIBUTION OF REMAINING FUNDS TO THE FTC AND RELATED RELIEF; AND GRANTING RELIEF FROM LOCAL RULE 66-5 PERTAINING TO NOTICE TO CREDITORS 23 24 The Motion for Order Approving Final Report and Accounting; Final Request for 25 Approval and Payment of Receiver’s and Professionals’ Fees and Costs From July 1, 2018 26 Through Closing; For Disposition of Certain Real Property; For Distribution of Remaining Funds 27 to the FTC and Related Relief; and Granting Relief From Local Rule 66-5 Pertaining to Notice to 28 Creditors (“Wind Up Motion”) filed by Robb Evans of Robb Evans & Associates LLC B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -1Dockets.Justia.com 1 (“Receiver”) came on regularly before this Court for determination. The Court, having reviewed 2 and considered the Wind Up Motion and all pleadings and evidence filed in support thereof, and 3 opposition to the Wind Up Motion, if any, and good cause appearing therefore, it is 4 ORDERED that: 5 1. The Receiver’s Final Report, which is Section II to the Memorandum of Points 6 and Authorities submitted in support of the Wind Up Motion, and the Receiver’s Final 7 Accounting, which is attached as Exhibit 1 to the declaration of Brick Kane (“Kane Declaration”) 8 in support of the Wind Up Motion, are approved; 9 2. The Receiver’s wind up of the receivership estate is authorized and approved; 10 3. All actions and activities taken by or on behalf of the Receiver and all proposed 11 actions to be taken, and all payments made by the Receiver and all proposed payments to be made 12 in connection with the administration of the receivership estate, are approved and confirmed; 13 4. The receivership fees and costs incurred for the period from July 1, 2018 through 14 the closing of the receivership estate (“Final Expense Period”), including payment of the fees of 15 the Receiver, the Receiver’s deputies, agents, staff and professionals, and reimbursement of costs, 16 are approved and authorized for payment, comprised of: (a) the fees of the Receiver, his deputies, 17 agents and staff, of $38,896.06 and Receiver’s costs of $39,033.20, which includes tax return 18 preparation fees paid to the Receiver’s outside accountant, Baker Tilly US LLP (“Baker Tilly”) of 19 $20,811.50, for the period from July 1, 2018 through March 31, 2021, plus estimated fees of the 20 Receiver, his deputies, agents and staff, of $11,013.80 and costs of $17,926.00 (including 21 estimated tax return preparation fees for Baker Tilly of $9,540.00), for the period from April 1, 22 2021 through closing of the estate, for total fees of $49,909.86 and costs of $56,959.20, for a 23 total of $106,869.06 for the Receiver; (b) legal fees of the Receiver’s lead counsel, Barnes & 24 Thornburg LLP (“Barnes & Thornburg”) of $65,158.10 and costs of $3,705.31, for the period 25 from July 1, 2018 through March 31, 2021, plus estimated legal fees of $25,000.00 and costs of 26 $2,000.00, for the period from April 1, 2021 through closing of the estate, for total fees of 27 $90,158.10 and costs of $5,705.31, for a total of $95,863.41 for Barnes & Thornburg; (c) 28 estimated legal fees of the Receiver’s new local counsel, Lynch Law Practice, PLLC (“Lynch”) B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -2- 1 of $2,500.00 and costs of $2,500.00, for the period from April 1, 2021 through closing of the 2 estate, for a total of $5,000.00 for Lynch; (d) legal fees of the Receiver’s former local counsel, 3 Kolesar & Leatham, Chtd. (“Kolesar”) of $1,795.00 and costs of $14.69, for the period from July 4 1, 2018 through March 31, 2021, for a total of $1,809.69 for Kolesar; and (e) legal fees of the 5 Receiver’s special Utah real estate foreclosure counsel, Hatch, James & Dodge, a Professional 6 Corporation (“Hatch”) of $93.75 and costs of $61.50, for the period from July 1, 2018 through 7 March 31, 2021, for a total of $155.25 for Hatch, all as set forth in the Final Accounting, 8 Exhibit 1 to the Kane Declaration. Only actual fees and costs incurred after March 31, 2021 shall 9 be paid to the Receiver and its counsel. De minimis amounts of fees and costs incurred by the 10 Receiver and its professionals during the period from April 1, 2021 through closing above the 11 estimated amounts set forth in this paragraph 4 may be paid without further Court order or 12 approval of plaintiff Federal Trade Commission (“FTC”). Beyond such de minimis amounts, fees 13 and costs incurred by the Receiver and its professionals during the period from April 1, 2021 14 through closing may be paid only with the approval of the FTC and without further Court order; 15 5. As to the prior sale of any real property or personal property which was sold 16 pursuant to an order selling free and clear of certain disputed liens, claims and encumbrances, 17 with those disputed liens to attach to the proceeds to the same extent, validity and priority as said 18 disputed liens attached to the property which was sold, said liens, claims and encumbrances are 19 invalid or are of a priority which renders said liens ineffective and valueless as against the 20 proceeds and all such proceeds shall be retained by the Receiver for disposition to the FTC as 21 provided herein; 22 6. After the payment of administrative expenses, the Receiver is authorized to 23 distribute the remaining assets of the receivership estate held by the Receiver, estimated to be 24 approximately $2,913,247.22, to the FTC or its designated agent, in accordance with the Jeremy 25 Johnson Stipulated Judgment and Sharla Johnson Stipulated Judgment, as those judgments are 26 more particularly described and defined in the Wind Up Motion; 27 28 7. The Receiver is authorized to abandon and quitclaim the real property legally described as: B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -3- 1 All that certain real property in the County of Santa Cruz, State of 2 California, described as follows: 3 Tract One: 4 Lot Eighteen (18) in Block Forty (40) as said lot and block are 5 delineated and so designated on that certain map entitled, “Map of 6 Subdivision No. 2, Aptos Beach Country Club Properties, Aptos, 7 Santa Cruz County, California”, filed for record August 20, 1925, 8 in Map Book 23, Map No. 4, Santa Cruz County Records. 9 Tract Two: 10 Being Lot 19 in Block 40, as the same is shown and designated on 11 that certain map entitled, “Subdivision No. 2, Aptos Beach 12 Country Club Properties, Aptos, Santa Cruz County, California”, 13 filed for record in the County Recorder August 20, 1925, in Map 14 Book 23, Page 4, Santa Cruz County Records. 15 APN: 042-057-14 & 042-057-15 16 (“Aptos Property”) to John Anthony Franich and Nancy Katherine Franich, as Trustees of the 17 John and Nancy Franich 2001 Trust Dated March 30, 2001 for no consideration, without any 18 representations or warranties, as set forth in and pursuant to the Agreement to Transfer Real 19 Property (“Agreement”) attached as Exhibit 3 to the Kane Declaration. The Receiver is 20 authorized to enter into the Agreement, which is approved in its entirety; 21 22 8. The Receiver is authorized to abandon and quitclaim the following real property legally described as follows: 23 All that certain real property in the County of Kern, State of 24 California, described as follows: 25 Lot 71 of Tract 3176 in the County of Kern, State of California, as 26 per map recorded in Book June 30, 1969 in Book 17, Pages 193 27 and 194 of Maps, in the office of the County Recorder of Said 28 County. B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -4- 1 APN: 425-222-17-00-5 2 (“Lake Isabella Property”) to Relief Defendants Kerry Johnson and Barbara Johnson, who 3 originally deeded it to the Receiver pursuant to the Stipulated Final Order for Disgorgement as 4 to Relief Defendants Kerry Johnson, Barbara Johnson, KB Family Limited Partnership, and KV 5 Electric, Inc. (Doc. 1939), with the Receiver’s transfer to Kerry Johnson and Barbara Johnson to 6 be for no consideration, without any representations or warranties; 7 9. The Receiver is authorized to destroy all records of the Receivership Defendants in 8 the Receiver’s possession, custody or control 30 days after the Receiver serves written notice on 9 the FTC of the Receiver’s intention to destroy such records, unless the FTC requests possession 10 of the records or another government agency issues a subpoena for such records prior to the 11 expiration of such 30-day period, in which case the Receiver is authorized to turn over the records 12 to the FTC or to the government agency which issued the subpoena; 13 10. Effective upon the completion of the administration of the receivership estate as 14 described in the Wind Up Motion and the distribution of the remaining funds in the Receiver’s 15 possession and custody to the FTC or its agent (a) neither the Receiver nor any agent, employee, 16 member, officer, independent contractor, attorney, accountant or representative of the Receiver 17 shall have any liability to any person or entity for any action taken or not taken in connection with 18 carrying out the Receiver’s administration of the receivership estate, and the exercise of any 19 powers, duties and responsibilities in connection therewith; and (b) the Receiver, its agents, 20 employees, members, officers, independent contractors, attorneys, accountants and 21 representatives are discharged, released from all claims and liabilities arising out of and/or 22 pertaining to the receivership, and relieved of all duties and responsibilities pertaining to the 23 receivership; and 24 11. Notice of this Wind Up Motion is deemed to be sufficient based on the service of 25 notice of filing of the Wind Up Motion on all parties and all known non-consumer creditors of the 26 /// 27 /// 28 /// B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -5- 1 estate and service of the Wind Up Motion and all supporting papers on all parties, but not serving 2 the thousands of potential consumer creditors of the estate. 3 4 Dated: October 4, 2021 MIRANDA M. DU Chief United States District Court Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -6- 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 9 10 2nd day of September, 2021, I Pursuant to FRCP 5(b), I hereby certify that on the ___ electronically transmitted the foregoing [PROPOSED] ORDER GRANTING MOTION FOR ORDER APPROVING FINAL REPORT AND ACCOUNTING; FINAL REQUEST FOR APPROVAL AND PAYMENT OF RECEIVER’S AND PROFESSIONALS’ FEES AND COSTS FROM JULY 1, 2018 THROUGH CLOSING; FOR DISPOSITION OF CERTAIN REAL PROPERTY; FOR DISTRIBUTION OF REMAINING FUNDS TO THE FTC AND RELATED RELIEF; AND GRANTING RELIEF FROM LOCAL RULE 66-5 PERTAINING TO NOTICE TO CREDITORS to the Clerk’s Office using the CM/ECF system for filing and transmittal to all interested parties: 11 12 • 13 • 14 • 15 • 16 • 17 18 • 19 • 20 21 • 22 • 23 • 24 25 • • 26 27 • Roberto Anguizola ranguizola@ftc.gov,dweinman@ftc.gov Jared C. Bennett jared.bennett@usdoj.gov,valerie.maxwell@usdoj.gov Theadore J Besen tjblaw64@gmail.com Alan D. Boyack alandboyack@yahoo.com Edward Dean Boyack ted@boyacklaw.com,marcia@boyacklaw.com,mike@boyacklaw.com,assistant@boyackla w.com,paralegal@boyacklaw.com Joseph R Brooke jbrooke@ftc.gov Linda M. Bullen linda@bullenlaw.com,cjensen@snowjensen.com,RKillpack@snowjensen.com,vlsnow@s nowjensen.com,alodwick@lionelsawyer.com Gary Owen Caris gcaris@btlaw.com,rsutton@btlaw.com,monica.martinez@btlaw.com,slmoore@btlaw.com Christopher Childs chris@childslegal.com Andrew B Clawson andrew@abclawutah.com Brett D. Ekins bekins@joneswaldo.com,rebaker@joneswaldo.com,bsnow@joneswaldo.com Scott T. Evans ashley.white@chrisjen.com,judy.garrett@chrisjen.com Scott D Fleming sfleming@klnevada.com,usdistrict@klnevada.com,mbarnes@klnevada.com 28 B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -7- 1 • 2 • 3 4 • 5 • 6 7 • 8 • 9 • 10 • 11 12 • 13 • 14 15 • • 16 17 18 19 • • • 20 21 22 • • 23 • 24 • 25 • 26 27 28 • • Jody Goodman jgoodman1@ftc.gov Collot Guerard cguerard@ftc.gov,lgreisman@ftc.gov,rtyndall@ftc.gov,bcpBriefBank@FTC.gov,dsalsbur g@ftc.gov Randon Hansen randon@hansenlawofficesltd.com Gregg A Hubley gregg@aswtlawyers.com,efile@hubleylawltd.com,will@aswtlawyers.com,jasminn@aswt lawyers.com,christopher@aswtlawyers.com,jolynne@aswtlawyers.com Curtis M Jensen cjensen@snowjensen.com Janice Kopec jkopec@ftc.gov,wmaxson@ftc.gov Bart K Larsen blarsen@shea.law,3542839420@filings.docketbird.com,support@shea.law Phillip E. Lowry phillip.lowry@chrisjen.com,phillip.lowry@chrisjen.com,jennifer.luft@chrisjen.com,judy. garrett@chrisjen.com Michael F Lynch Michael@LynchLawPractice.com,lynchonline@gmail.com Kelly H Macfarlane kelly@macfarlaneLegalWorks.com,anne.macleod@chrisjen.com Jessica G McKinlay mckinlay.jessica@dorsey.com,khughes@djplaw.com Gregory A. Miles gmiles@royalmileslaw.com,aschmitt@royalmileslaw.com Eli Milne eli.milne@dentons.com,jaime.gargano@dentons.com,deb.calegory@dentons.com Marcus R. Mumford mrm@mumfordpc.com,amanda@mumfordpc.com,jen@mumfordpc.com,bnm@mumford pc.com,jso@mumfordpc.com Michael C. O'Brien mobrien@vancott.com Karra Porter kporter@chrisjen.com,paula.christensen@chrisjen.com,miranda.riley@chrisjen.com Jacob A. Reynolds jreynolds@hutchlegal.com,SMorehead@hutchlegal.com Ava M. Schaefer ams@pisanellibice.com,lit@pisanellibice.com,cct@pisanellibice.com Shlomo S. Sherman shlomo@shermanlawlv.com V. Lowry Snow vlsnow@snowjensen.com Sarah E Spencer sarah.spencer@chrisjen.com,sarah.spencer@chrisjen.com,anne.macleod@chrisjen.com Michael P. Studebaker mike@studebakerlaw.com B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -8- 1 • 2 • 3 4 5 6 7 8 9 10 11 • • • • • • Jeannette F. Swent jeannette.swent@usdoj.gov,stephanie.reinhart@usdoj.gov Sam E Taylor , Jr SaTaylor@FDIC.gov Michael F. Thomson thomson.michael@dorsey.com,montoya.michelle@dorsey.com Holly A. Vance Holly.A.Vance@usdoj.gov,danielle.bleecker@usdoj.gov,daniel.maul@usdoj.gov,jenni.ola skey@usdoj.gov,CaseView.ECF@usdoj.gov,christi.dyer@usdoj.gov Michael K Wall mwall@hutchlegal.com,cpittsenbarger@hutchlegal.com,kconradi@hutchlegal.com Dotan Weinman dweinman@ftc.gov Loren E. Weiss lweiss@rqn.com,tgillis@rqn.com,docket@rqn.com Blaine T Welsh Blaine.Welsh@usdoj.gov,maria.covarrubias@usdoj.gov,allyson.beyer@usdoj.gov,marites s.recinto@usdoj.gov,dionne.white@usdoj.gov,angelina.villalpando@usdoj.gov,CaseView .ECF@usdoj.gov 12 13 14 15 16 17 18 19 20 21 U.S. MAIL IRS 110 N. City Pkwy, #M5209 Las Vegas, NV 89105-4504 Phillip Gubler 216 W St George Blvd. Suite 200 St. George, UT 84770 Joseph S. Kistler Hutchison & Steffen 10080 W. Alta Drive Suite 200 Las Vegas, NV 89145 22 /s/ Michael F. Lynch ____________________________________ Michael F. Lynch An Employee of Lynch Law Practice, PLLC 23 24 25 26 27 28 B ARNES & T HORNBURG LLP ATTO RNEY S AT LAW LOS A NG EL ES 20520770v1 -9-
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