Opposition Brief — Long Beach Mortgage Co. v. Evans

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Supteme Court. U.S.

FILED

No. 09-1258 MAY 19 2010

OFFICE OF tHE CLERK

jn The

Supreme Court of the Gnited Siates

¢

LONG BEACH MORTGAGE COMPANY,

Petitioner,

V.

ROBB EVANS, AS RECEIVER

FOR TLC AMERICA, INC.,

Respondent.

+

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Texas,

Fifth District

*

BRIEF IN OPPOSITION

*

KAREN L. HART

Counsel of Record

RANDALL K. LINDLEY

Ross A, WILLIAMS

BELL NUNNALLY & MARTIN LLP

3232 McKinney Avenue, Suite 1400

Dallas, Texas 75204-2429

Telephone: (214) 740-1400

Facsimile: (214) 740-5744

karenh@bellnunnally.com

Attorneys for Respondent

Robb Evans, as Receiver

for TLC America, Inc.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Does this Court have jurisdiction over this case

and should the Petition for a Writ of Certiorari be

granted where:

a)

b)

C)

This case concerns resolving the priority of

claims to real property under Texas law, with no

important federal issues to be decided by this

Court.

The decision of the intermediate Texas appeals

court finding that Respondent and the California

receivership court had proper in rem jurisdiction

over the real property at issue is correct and

consistent with federal law, including federal

circuit authorities, which are likewise in har-

mony. Respondent complied with 28 U.S.C. Sec-

tion 754’s requirements, timely filing of his order

of appointment in Texas.

Petitioner admits that 28 U.S.C. Sections 754

and 1692 provide a receiver jurisdiction over

receivership assets no matter where they are

located. Sections 754 and 1692 are congressional

mandates governing the powers and jurisdiction

of federal receivers and receivership courts,

trumping the local action doctrine and demon-

strating that Petitioner’s implied preemption

arguments are meritless.

il

CORPORATE DISCLOSURE STATEMENT

Robb Evans is a federally appointed receiver for

TLC America, Inc. Robb Evans 1s an individual. TLC

America, Inc. is neither a subsidiary nor an affiliate

of a publicly held company. No publicly owned com-

pany owns 10% or more of the shares of TLC America,

Inc.

11

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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STATEMENT OF THE CASE...................ccccecceeceee

DE I iiidiivivcccvevenedccinsscsiniawcnavinace

I. Robb Evans is Appointed Receiver for the

Assets of TLAC America, INC. ........<c.0ccs<cec0e..

II. The Receiver Sues to Recover TLC Amer-

SE Is descyes rena so cevatnsasd i uasccmeansan

Ill. The Receiver Learns of the Marquette

Property and Files a Lis Pendens...............

[V. Long Beach Loans Money to the Prices and

BUDO BH BAU iio

V. A Constructive Trust is Imposed on the

Marquette Property ....... Maen SELON Mae Fone oP

VI. The Receiver is Authorized to Sell the

Marquette Property “Free and Clear’”.........

VII. Full Fee Simple Title to the Marquette

Property 1s Vested in the Receiver ..............

VIIT. Long Beach’s Lien Claim Clouds Title to

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6

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10

TABLE OF CONTENTS — Continued

Page

The Receiver Files Declaratory Suit in

Texas State Court and Prevails in the Trial

Court, the Dallas Appeals Court and the

Texas Supreme Court

LONG BEACH’S PETITION SHOULD BE DE-

The Dallas Appeals Court’s Decision that

the Receiver Properly Invoked In Rem

Jurisdiction under 28 U.S.C. Section 754

is Fully Consistent with and Supported

by the Federal Circuits, Which are in

Harmony Regarding the Correct Interpre-

tation and Application of Section 754. Peti-

tioner’s Asserted “Conflict” is Illusory

A. The Receiver Timely Complied with

Section 754

B. The Dallas Appeals Court’s Determina-

tion that the Receiver Properly Invoked

the California Court’s Jurisdiction un-

der Section 754 is Correct and Con-

sistent with the Federal Circuits

The Federal Circuits are in Harmony

Concerning Section 754

IT.

ITT.

TABLE OF CONTENTS — Continued

Page

Petitioner’s Local Action Doctrine Argu-

ment Rests on the Tenuous Constitutional

Premise that Congress is Without Power to

Effect The Courts’ In Rem Jurisdiction

under Section 754. Regardless, the Local

Action Doctrine is Irrelevant in the

Context of the Receivership Jurisdiction

Granted under Sections 754 and 1692........

A. Petitioner’s Local Action Doctrine Ar-

gument is Based on a Faulty Con-

stitutional Premise, Making Review

I ova. ince duis reaiteceubasheconcees tina eveuans

B. Regardless, the Local Action Doctrine

is Irrelevant in the Context of the

Receivership Jurisdiction Granted un-

der Sections 754 and 1692 ....................

Petitioner’s Implied Preemption Argument

also Fails to Meet Review Standards Be-

cause it Neither Presents a State/Federal

Conflict nor an Issue of First Impression.

Any Conflict with the Local Action Doc-

trine Imagined by long Beach is Based in

Sections 754 and 1692, Congressional

Mandates that Trump the Local Action

Doctrine, a Concept of Common Law..........

PY cis nascessecsevencsseess faa Badal saan catyaeuaiias

30

32

TABLE OF CONTENTS — Continued

TABLE OF APPENDICES

Copy of Records Reflecting Transmittal and

Filing of October 4, 2000 Temporary Re-

straining Order and Orders: (1) Freezing

Assets; (2) Appointing a Temporary Receiver;

(3) for Repatriation; (4) Prohibiting the De-

struction of Documents; (5) Granting Expe-

dited Discovery; (6) for Accountings; and

Order to Show Cause re Preliminary Injunc-

tion and Appointment of a Permanent Re-

ceiver (the “Order”), and Excerpts from the

Order

Copy of Records Reflecting Transmittal and

Filing of November 1, 2000 Order of Pre-

liminary Injunction and Orders: (1) Freezing

Assets; (2) Appointing a Receiver; (3) Pro-

hibiting the Destruction of Documents; (4) for

Accountings; (5) for Repatriation of Assets;

and (6) for Expedited Discovery (the “Or-

der”), and Excerpts from the Order

Copy of Notice of Lis Pendens Filed July 23,

2002

Copy of Excerpt from Texas Home Equity Se-

curity Instrument Filed August 2, 2002 ....... App. 18

TABLE OF AUTHORITIES

CASES

Bowles v. Russell, 551 U.S. 205 (2007)

Brennan v. U.S. Postal Serv., 489 U.S. 1345

(Fale dels lancer Sop ER yn 30, 31

Citronelle-Mobile Gathering, Inc. v. Watkins,

934 F.2d 1180 (11th Cir. 1991)

Eller Indus., Inc. v. Indian Motorcycle Mfg.,

Inc., 929 F. Supp. 369 (D. Colo. 1995)

First Natl Bank of Alabama-Huntsville ov.

Haile, 455 U.S. 949 (1982)

In re French, 440 F.3d 145 (4th Cir. 2006), cert.

denied, French v. Liebman, 549 U.S. 815

(2006)

In re Gucci, 309 B.R. 679 (S.D.N.Y. 2004)

Haile v. Henderson Nat'l Bank, 657 F.2d 816

(6th Cir. 1981), cert. denied, First Nat’l Bank

of Alabama-Huntsville v. Haile, 455 U.S. 949

(1982) passim

Kontrick v. Ryan, 540 U.S. 443 (2004).................381, 35

Liberte Capital Group, LLC v. Capwill, 462

Re ee ee a Ne eran ehvnanccavennccasedcnsncdenssionseciss 20

Long Beach Mortg. Co. v. Evans, 284 S.W.3d

406 (Tex. App.—Dallas 2009), reh’g overruled

(June 17, 2009), review denied (Nov. 20,

2009), cert. filed (Apr. 15, 2010)

Matter of Rimsat, Ltd., 98 F.3d 956 (7th Cir.

eee ne ea oar aris unise akan cas exsusarivan ced 20

TABLE OF AUTHORITIES — Continued

Page

Pope v. Loutsville, New Albany & Chi. Ry. Co.,

We BOR 19

Quilling v. Stark, 3:05-CV-1976-L, 2006 WL

1683442 (N.D. Tex. June 19, 2006)

Rice v. Sioux City Mem’ Park Cemetery, 34!

U.S. 70 (1955)

Sec. & Exch. Comm'n v. Am. Capital Invs., Inc.,

98 F.3d 1133 (9th Cir. 1996), cert. denied,

Shelton v. Barnes, 520 U.S. 1185 (1997), abro-

gated un other grounds by Steel Co. v. Citizens

for a Better Envt, 523 U.S. 83 (1998)

Sec. & Exch. Comm’n v. Cook, No. 3-01-CV-

0480-R, 2001 WL 803791 (N.D. Tex. July ll,

2001)

Sec. & Exch. Comm’n vu. Infinity Group Co., 27

F. Supp. 2d 559 (E.D. Pa. 1998)

Sec. & Exch. Comm’n v. Vision Comme’ns, Inc.,

74 F.3d 287 (D.C. Cir. 1996) passim

Sec. & Exch. Comm’n v. Vision Commce’ns, Inc.,

No. 94-0615 (CRR), 1994 WL 855061 (D.D.C.

June 28, 1994)

Sec. & Exch. Comm’n v. Equity Serv. Corp ,

F.2d 1092 (3d Cir. 1980)

Select Creations, Inc. v. Paliafito Am., Inc.,

F. Supp. 740 (E.D. Wis. 1994)

Shelton v. Barnes, 520 U.S. 1185 (1997)

In re Simon, 153 F.3d 991 (9th Cir. 1998).................. 33

TABLE OF AUTHORITIES — Continued

Page

Steel Co. v. Citizens for a Better Env't, 523 U.S.

FR Ra eivknks 60s thnoniasasaisicsteei tesa eee 24

U.S. v. Arizona Fuels Corp., 739 F.2d 455 (9th

aes RPT cascnsoxcscnaxascashensuxbdausendiudeicustcan tees passim

Warfield v. Arpe, CIVA 3:05CV1457 R, 2007 WL

549467 (N.D. Tex. Feb. 22, 2007) .....................380, 33

STATUTES AND RULES

UNITED STATES CODE TITLE 28

SEINE: WUD vancd snc casavcensdaaciedissnaseasaiedabevaniesaanene passim

NN ge Te eases au beeae seaiedenmanues epee ll

Section 1692

FEDERAL RULE OF CIVIL PROCEDURE 65.......... 21

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

28 U.S.C. Section 754 (2006) provides:

A receiver appointed in any civil action or

proceeding involving property, real, personal

or mixed, situated in different districts shall,

upon giving bond as required by the court, be

vested with complete jurisdiction and control

of such property with the right to take

possession thereof.

He shall have capacity to sue in any district

without ancillary appointment, and may be

sued with respect thereto as provided in

section 959 of this title.

Such receiver shall, within ten days after the

entry of his order of appointment, file copies

of the complaint and such order of appoint-

ment in the district court for each district in

which property is located. The failure to file

such copies in any district shall divest the

receiver of jurisdiction and contro] over all

such property in that district.

28 U.S.C. Section 1692 (2006) provides:

In proceedings in a district court where a

receiver is appointed for property, real, per-

sonal, or mixed, situated in different dis-

tricts, process may issue and be executed in

any such district as if the property lay wholly

within one district, but erders affecting the

property shall be entered of record in each of

such districts.

STATEMENT OF THE CASE

secause this case solely concerns the priority of

interests to certain real property located in Dallas,

Texas (the “Marquette Property”) under Texas law,

there are no issues for this Court to review. Respon-

dent Robb Evans, as Receiver for TLC America, Inc.

(“Respondent” or the “Receiver”) was appointed as

receiver to represent elderly investors who were

defrauded in connection with a real estate investment

scheme. The Receiver was appointed to return assets

to the receivership estate for the henefit of the

investors, who have been waiting nearly ten years for

final disposition of the Marquette Property, the last

remaining receivership asset. In connection with the

Marquette Property, the Receiver filed a lis pendens

in the Dallas County Real Property Records long

before Petitioner Long Beach Mortgage Company

(“Petitioner” or “Long Beach”) filed a mortgage lien on

the Property. Petitioner refused to release its later

filed and recorded lien, and the Receiver was forced to

file a declaratory judgment action in Texas state court

against Long Beach to have his lis pendens declared

superior to Long Beach’s lien claim.

Three levels of Texas courts, from the Dallas trial

court to the Texas Supreme Court, which denied re-

view, have now correctly decided that the Receiver’s

lis pendens and resulting interest in the Marquette

Property are superior to Petitioner’s lien claim, which

was declared void and of no force or effect concerning

the Property. Ultimately, this case arises purely as a

function of state law governing priority of claims to

real property under state law. Long Beach’s Petition

filed before this Court is simply its last-ditch effort to

delay the inevitable and to delay disposition of the

Marquette Property, which the Receiver has been

waiting to sell as the fully vested title holder for years

now. Significantly, if the Court were to review this

case, its decision would only affect the parties’ narrow

priority dispute, a state law issue outside the juris-

diction of this Court.

Recognizing that it has not and cannot win the

priority dispute to the Marquette Property with re-

spect to its lien claim, which was correctly deter-

mined to be inferior to the Receiver’s hs pendens,

Petitioner glosses over the state law that is at the

core of this case and has instead invented “federal

questions” that are inapplicable and invalid. As such,

and in its misguided quest to invalidate the Re-

ceiver’s superior lis pendens, Long Beach improperly

altempts to collaterally attack the final judgment of

the U.S. District Court for the Central District of

California (the “California Court”), where the court

entered a constructive trust on the Marquette Prop-

erty, one of the properties to which the Receiver

sought to be deemed the rightful owner in the action

forming the basis of the .teceiver’s lis pendens. Long

Beach improperly argues that the Receiver and the

4

California Court lacked jurisdiction over the Mar-

quette Property because the Receiver allegedly failed

to timely file the order appointing him Receiver of

TLC America, Inc. Long Beach, as it has done at

every stage of this appeal, misconstrues the law and

the facts in its Petition. Petitioner cannot deny, and

in fact admits, that 28 U.S.C. Section 754 authorizes

federal district courts to exercise intradistrict in rem

jurisdiction over property located in other districts. 28

U.S.C. §§ 754, 1692 (2006). As a result of this conces-

sion, Long Beach has resorted to technical arguments

that the Receiver allegedly failed to comply with the

statutory requirements for invoking jurisdiction. Long

Beach’s arguments are entirely incorrect-—the Re-

ceiver complied with the requirements of Section 754

and his appointment order was timely filed in Texas.

Further, Long Beach’s assertion that that the

opinion of the Fifth District Court of Appeals in

Dallas, Texas (the “Dallas Appeals Court”) is in

conflict with federal law or any decision of the federal

circuit courts is also incorrect and insupportable. Pe-

tilioner’s arguments are simply smoke and mirrors.

The “conflict” presented by Long Beach is entirely

concocted and does not meet the standards for this

Court’s review under Supreme Court Rule 10, which

Long Beach tellingly ignores in its Petition. The

Dallas Appeals Court correctly applied 28 U.S.C. Sec-

tions 754 and 1692 in a manner consistent with the

language of those statutes and federal case law, and

correctly held that the California Court had in rem

jurisdiction over the Marquette Property. 28 U.S.C.

$$ 754, 1962 (2006); see U.S. Sup. Cr. R. 10. There is

harmony between and among the Dallas Appeals

Court and the federal courts regarding the interpreta-

tion and application of Section 754. Moreover, Peti-

tioner’s unfounded complaint that the courts merely

misapplied Section 754 does not present a sufficient

basis for review. See U.S. Sup. Cr. R. 10. (stating that

“a petition for a writ of certiorari is rarely granted

when the asserted error consists of ... the mis-

”

application of a properly stated rule of Jaw.”).

Although Petitioner admits in its Petition that

Sections 754 and 1692 authorize federal district

courts to exercise intradistrict in rem jurisdiction

over property located elsewhere, in its second argu-

ment, Petitioner conveniently ignores those statutes

and asserts instead that the local action doctrine

alone governs jurisdiction in cases such as this one.

But Petitioner cannot change the jurisdictional man-

date expressed by Congress in Sections 754 and 1692

by ignoring it, and this Court should not entertain

such a constitutionally spec:ous argument by grant-

ing review.

Petitioner’s final argument regarding implied

preemption also fails to meet the standard for review

because it neither presents a state/federal conflict nor

an issue of first impression. U.S. Sup. CT. R. 10. Any

conflict with the local action doctrine imagined by

Long Beach is based in Sections 754 and 1692,

congressional mandates that specifically govern the

powers and jurisdiction of federal receivers and re-

ceivership courts and trump the local action doctrine,

a concept of common law.

6

Because Petitioner fails to present any issucs

worthy of this Court’s consideration and fails to meet

the standard for review by this Court, its Petition for

a Writ of Certiorari should be denied.

.

BACKGROUND FACTS

Robb Evans is Appointed Receiver for

the Assets of TLC America, Inc.

In 2000, the Securities and Exchange Commis-

sion, in Sec. & Exch. Comm’n v. TLC Investments &

Trade Co., et al., Case No. SACV 00-960-DOC, in the

U.S. District Court for the Central District of Cali-

fornia (the “SEC Litigation”), brought suit against

TLC America, Inc. (“TLC America”) -»1 related pusi-

ness entities and individuals for federal securities

laws violations for the misuse and diversion of over

$28 million in investor funds.’ In the SEC Litigation,

the California federal court initially appointed Robb

Evans as Temporary Receiver on October 4, 2000 (the

“October 4, 2000 Order”).* This temporary appoint-

ment order gave Robb Evans the “full powers of an

equity receiver ... with full power over all funds,

assets, collateral, [and] premises ... of TLC.” The

' C.R. Vol. 2, p. 67. “C.R.” refers to the Clerk’s Record,

which consists of five separate volumes filed in the Dallas

Appeals Court. Citations to Respondent’s Appendices, which are

attached, are denoted herein as “Resp. App.”

* C.R. Vol. 3, pp. 423, 425, 432-34; Resp. App. at 3-7.

> C.R. Vol. 3, p. 432; Resp. App. at 4.

7

October 4, 2000 Order also immediately authorized

the Receiver to “have access to and to collect and to

take custody ... of all assets ... of TLC” and “to take

such action as is necessary and appropriate to

preserve ... any assets of TLC.” This initial order of

appointment created a receivership estate for the

assets of TLC America, and it established Robb Evans

as the Receiver of that estate. The October 4, 2000

Order did not provide a date for any exptration of the

receivership estate or the establishment of Robb

Evans as Receiver of TLC America.” On October 13,

2000, the Receiver filed his initial order of

appointment and the Complaint in the SEC

Litigation in the United States District Court for the

Northern District of Texas.*

On November 1, 2000, the court in the SEC

Litigation entered an order appointing Robb Evans as

Permanent Receiver of TLC America (the “November

1, 2000 Order”).’ The November 1, 2000 Order con-

tinued the same receivership powers and authorities

imbued in Robb Evans by the October 4, 2000 Order.”

The November 1, 2000 Order likewise continued the

receivership estate initially created by the October 4,

2000 Order.’ On December 20, 2000, the Receiver

* C.R. Vol. 3, pp. 432-33; Resp. App. at 4-6.

° C.R. Vol. 3, pp. 422-42; Resp. App. at 3-7.

° C.R. Vol. 3, pp. 423, 443, 485; Resp. App. at 1, 7.

" C.R. Vol. 3, pp. 463, 471-74; Resp. App. at 10-15.

° C.R. Vol. 3, pp. 471-74; Resp. App. at 11-14

* Id.

8

mailed this order of permanent appointment to the

United States District Court for the Northern District

of Texas for filing.” On January 2, 2001, the Clerk of

the United States District Court for the Northern

District of Texas stamped the order as received.”

Il. The Receiver Sues to Kecover TLC

America’s Property.

The Receiver then brought suit to recover TLC

America’s property in Robb Evans, as Receiver for

TLC America, Inc. v. James F. Garro, David Price, et

al., Case No. SACV 01-6466, in the U.S. District

Court for the Central District of California (the

“Garro Litigation”). The Receiver asserted claims of

fraud, conversion, negligence and breach of fiduciary

duty.’ The Receiver also sought the imposition of a

constructive trust on property purchased with funds

stolen from TLC America.” Importantly, the Receiver

did not simply plead constructive trust to satisfy any

money judgment he received on his other causes of

action. Rather, the Receiver requested an order de-

claring that the defendants held purchases or in-

vestments made with TLC America funds in a

constructive trust for the benefit of TLC America and

C.R. Vol. 3, p. 462; Resp. App. at 8.

' C.R. Vol. 3, pp. 462, 463; Resp. App. at 8.

C.R. Vol. 2, pp. 66, 67.

' C.R. Vol. 2, pp. 67, 102.

“ C.R. Vol. 2, pp. 67, 139-40.

9

declaring TLC America the owner of the purchases or

investments made with TLC America funds.” Thus,

on the face of the Receiver’s complaint, the Receiver

sought an interest in any and all property purchased

with TLC’s funds.

Ill. The Receiver Learns of the Marquette

Property and Files a Lis Pendens.

Specifically, over $2.5 million of TLC America’s

funds had been wired into a Durham Capital Group,

Inc. (“Durham”) bank account controlled by David

Price, the President of Durham, and his now former

wife, Carol Miller Price (collectively, the “Prices”)."°

During the course of the Garro Litigation, the Re-

ceiver discovered that over $1 million of the funds

transferred into the Durham account controlled by

David Price and Carol Miller Price were diverted into

an account separately controlled by Carol Miller

Price.’ Carol Miller Price then used this money to

purchase the Marquette Property.” Through dis-

covery in the Garro Litigation, the Receiver learned

of the Marquette Property in July 2002." Immedi-

ately upon discovering the Marquette Property, the

Receiver filed a Notice of Lis Pendens providing

° C.R. Vol. 2, pp. 139-40.

'° C.R. Vol. 2, p. 284.

C.R. Vol. 2, p. 285.

'" C.R. Vol. 2, pp. 285-86.

" C.R. Vol. 2, pp. 67-68, 285-86.

10

notice of his interest and rights in the Marquette

Property... The Receiver filed the Notice of Lis

Pendens on July 23, 2002."

IV. Long Beach Loans Money to the Prices

and Records a Lien.

On July 24, 2002, one day after the Receiver’s lis

pendens was filed, the Prices entered a $400,000

home equity loan with Long Beach.” A deed of trust

on the Marquette Property secured this loan.” On

August 2, 2002, Long Beach filed the deed of trust in

the Dallas County Real Property Records, creating a

lien claim on the Marquette Property.” it is undis-

puted that the Prices defaulted on their loan with

Long Beach, and now Long Beach’s claim has clouded

title to the Marquette Property. Tellingly, Long Beach

never foreclosed on its claimed inte:est in the

Marquette Property.”

” C.R. Vol. 2, pp. 67-68; Resp. App. at 16-17.

“ C.R. Vol. 2, pp. 68, 145-48; Resp. App. at 16.

* C.R. Vol. 2, pp. 68, 151-64; Resp. App. at 18.

we”

* Id.

~ C.R. Vol. 2, p. 68

11

Ve A Constructive Trust is Imposed on the

Marquette Property.

After a trial on the merits, the California federal

court, on or about December 16, 2002, in the Garro

Litigation found David Price liable for the fraudulent

transfer of TLC America’s funds in the amount of

$3,505,001.59.” The court also imposed a constructive

trust “over the real property, fixtures and furnishings

located at 7843 Marquette, Dallas, Texas.” The court

further held that “Defendants ... and their agents,

servants, assigns and those acting in concert with

them are enjoined from engaging in any activities to

transfer, secret or dissipate these assets.”

The California federal court also made findings of

fact that further demonstrated the direct connection

between the Marquette Property and the Garro Liti-

gation.”’ Based on these facts, the court imposed a

constructive trust on the Marquette Property “in

order to prevent the unjust enrichment of” David

Price.” Importantly, the court in the Garro Litigation

specifically found that it had jurisdiction over the

case based on 28 U.S.C. Section 1331 and the broad

jurisdictional grant of 28 U.S.C. Section 754, which

extended the court’s ancillary jurisdiction anywhere

*° C.R. Vol. 2, pp. 68-69, 174-75, 191-92.

” C.R. Vol. 2, pp. 175, 191-92.

= id,

” C.R. Vol. 2, pp. 184-85.

” ©.R. Vol. 2, 9. 191.

12

in the United States that receivership property is

located.”

VI. The Receiver is Authorized to Sell the

Marquette Property “Free and Clear.”

After the constructive trust was imposed in the

Garro Litigation, in 2003, the Receiver petitioned the

court in the SEC Litigation for permission to sell the

Marquette Property.” The court in the SEC Litigation

granted the Receiver permission to sell the Marquette

Property “free and clear of all liens and interests

therein, with such liens and interests to attach to the

net proceeds of sale.” The court further ordered that

“the sale proceeds shall be held in trust by the Re-

ceiver pending resolution of all disputes concerning

distribution of the sale proceeds and any claimed

interests in the Property.”“ The court also ordered

David Price, Carol Price, Long Beach and any other

third party claimant to file a claim with the court

within 60 days if they intended to assert an interest

in the sale proceeds.” The court authorized the Re-

ceiver to “perform any and all... acts necessary to

effectuate the orderly sale of the Property.””

* CLR. Vol. 2, p. 188.

* C.R. Vol. 2, pp. 69, 197-239.

“ C.R. Vol. 2, pp. 242-44.

“ CR. Vol. 2, p. 244.

” C.R. Vol. 2, p. 243.

ae.

13

The Receiver originally arranged to sell the Mar-

quette Property to Sally K. Johnson for $838,000.”

Given the various claims to the Marquette Property,

the sales contract with Ms. Johnson was extended

several times while the outstanding claims to the

Marquette Property are resolved.” As a result of the

successive appeals and the continued delays caused

by Long Beach, the sale to Ms. Johnson has since

been lost.

Vil. Full Fee Simple Title to the Marquette

Property is Vested in the Receiver.

Carol Miller Price, a Dallas resident, ignored the

California federal court’s order in the SEC Litigation

and did not file a claim in that proceeding.” She still

asserted a claim to the title to the Marquette Prop-

erty, clouding title and thwarting the Receiver’s ef-

forts to secure title insurance to sell the Marquette

Property to Ms. Johnson.” The Receiver then reg-

istered the judgment imposing the constructive trust

for enforcement in the U.S. District Court for the

Northern District of Texas in Robb Evans, as Receiver

for TLC America, Inc. v. James FE. Garro, David Price,

et al., Case No. 3:038-MC-00022-M."' In 2004, the

C.R. Vol. 2, pp. 69, 214

" C.R. Vol. 2, p. 69

Id.

Id.

Id

14

Northern District of Texas divested David Price and

Carol Miller Price of all title and interest to the

Marquette Property and vested full fee simple title to

the Marquette Property in the Receiver.” The court

also authorized the Receiver to sell the Marquette

Property and to convey full fee simple title to the

Marquette Property.” The court’s orders enforcing the

constructive trust against the Prices reinforce the fact

that neither David Price nor Carol Miller Price had a

levitimate claim to the Marquette Property to begin

with. The Marquette Property was purchased by the

Prices with stolen money, and as a result, the Prices

were merely holding the property in trust for Robb

Evans, as Receiver for TLC America, the rightful

owner.

VIII. Long Beach’s Lien Claim Clouds Title to

the Marquette Property.

Long Beach did not file a claim in the SEC

Litigation pursuant to the California federal court’s

March 30, 2004 Order on Amended Ex Parte Appli-

cation.” Long Beach has asserted that it did not file a

claim because it allegedly was not served with the

Order on Amended Ex Parte Application, providing

the 60-day deadline to assert a claim to the sale

C.R. Vol. 2, pp. 69-70, 247-48, 251-53

" Id

“ C.R. Vol, 2, p. 70

15

proceeds.’ Therefore, the California federal court did

not resolve Long Beach’s lien claim, which has

clouded title to the Marquette Property and impeded

the sale to Ms. Johnson since title insurance could

not be produced to close the sale to Ms. Johnson.”

IX. The Receiver Files Declaratory Suit in

Texas State Court and Prevails in the

Trial Court, the Dallas Appeals Court

and the Texas Supreme Court.

The Receiver filed a declaratory judgment action

against Long Beach in the Dallas County district

court to resolve the competing claims to the Mar-

quette Property.” On January 22, 2007, the trial

court granted the Receiver’s summary judgment mo-

tion and entered a Final Judgment in favor of the

Receiver, declaring the Receiver’s lis pendens valid,

effective, and superior to Petitioner’s lien claim to the

Marquette Property; declaring Petitioner’s lien claim

void and of no force or effect concerning the Property;

vesting and quieting full title and interest in the

property in Respondent; authorizing Respondent to

16

sell the Property; and awarding Respondent attor-

neys’ fees.”

The Dallas Appeals Court affirmed the trial

court’s judgment, specifically holding that Respon-

dent and the California Court had jurisdiction over

the Marquette Property pursuant to 28 U.S.C.

Section 754 and applicable Federal authority. Long

Beach Mortg. Co. v. Evans, 284 5.W.3d 406, 412 (Tex

App.—Dallas 2009), reh’g overruled (June 17, 2009),

review dented (Nov. 20, 2009), cert. filed (Apr. 15,

2010). Petitioner filed a Petition for Review with the

Texas Supreme Court, Respondent filed a Reeponse

Brief, and the court denied the Petition.” Now, Long

Beach has frivolously continued its successive ap-

peals to this Court, filing an unwarranted and in-

supportable Petition for a Writ of Certiorari, which

should be summarily denied

+

~ C.R. Vol. 4, pp. 631-34; Pet. App. B. Citations to Peti

tioner’s Appendices, which are attached to the Petition for a Writ

of Certiorari, are denoted herein as “Pet. App.”

Pet App \

Pet App C

4

17

LONG BEACH’S PETITION

SHOULD BE DENIED

1. The Dallas Appeals Court’s Decision that

the Receiver Properly Invoked In Rem

Jurisdiction under 28 U.S.C. Section 754 is

Fully Consistent with and Supported by

the Federal Circuits, Which are in Har-

mony Regarding the Correct Interpretation

and Application of Section 754. Petitioner’s

Asserted “Conflict” is I/lusory.

Supreme Court Rule 10 and this Court’s estab-

lished opinions clearly provide that review is unwar-

ranted on the basis of a conflict between the courts

where the asserted conflict is illusory. See U.S. Sup.

Cr. R. 10(b), (c); Rice v. Stoux City Mem’l Park Ceme-

tery, 349 U.S. 70, 79 (1955). A petition for writ of

certiorari should only be granted in cases “where

there is a real and embarrassing conflict of opinion

and authority between the [courts].” Rice, 349 U.S. at

79. In the case at hand, there is no such conflict.

Contrary to Long Beach’s insinuations, there is no

conflict between the Dallas Appeals Court’s opinion

and federal decisions concerning the interpretation or

application of Section 754. Further, the federal cir-

cuits consistently apply and interpret Section 754.

A. The Receiver Timely Complied with

Section 754.

Long Beach has repeatedly acknowledged and

admitted that, pursuant to 28 U.S.C. Sections 754

and 1692, the Receiver is empowered to collect assets

mr ree smear eeie ae

18

anywhere in the United States. Long Beach again

concedes this point in its Petition to this Court. The

territorial jurisdiction of the receivership court, here

the U.S. District Court for the Central District of

California, extends to any district where property of

the receivership estate may be located, even if the

property is located in different states across the

nation. See Haile v. Henderson Nat'l Bank, 657 F.2d

816, 822, 824 (6th Cir. 1981), cert. denied, First Nat'l

Bank of Alabama-Huntsvilie v. Haile, 455 U.S. 949

(1982); Sec. & Exch. Comm’n v. Cook, No. 3-01-CV-

0480-R, 2001 WL 803791, at *2 (N.D. Tex. July 11,

2001); Select Creations, Inc. v. Paliafito Am., Inc., 852

F Supp. 740, 780-81 (EH.D. Wis. 1994) (rejecting

reliance on state Jaw and the argument that Court

through the Receiver could not reach property located

outside of Wisconsin).

Section 754 provides, in pertinent part, that a

receiver:

. Shall, within ten days afver the entry of

his order of appointment, file copies of the

complaint and such order of appointment in

the district court for each district in which

property is located. The failure to file such

copies in any district shall divest the receiver

of jurisdiction and control over all such

property in that district.

28 U.S.C. § 754. Section 1692 provides:

In proceedings in a district court where a

receiver is appointed for property, real,

personal, or mixed, situated in different

19

districts, process may issue and be executed

in any such district as if the property lay

wholly within one district, but orders af-

fecting the property shall be entered of

record in each of such districts.

28 U.S.C. § 1692 (emphasis supplied).

The Sixth Circuit in the Haile decision summed

up the operation of these statutes:

We begin with the undisputed proposition

that the initial suit which results in the

appointment of the receiver is the primary

action and that any suit which the receiver

thereafter brings in the appointment court in

order to execute his duties is ancillary to the

main suit. As such, the trial court has an-

cillary subject matter jurisdiction of every

such suit irrespective of diversity, amount in

controversy or any other factor which

would normally determine jurisdiction.

See Haile, 657 F.2d at 822 (emphasis supplied) (citing

Pope v. Loutsville, New Albany & Chi. Ry. Co., 173

U.S. 573 (1899)).

The Sixth Circuit succinctly concluded that:

The court in which the federal receiver is

appointed thus has ancillary subject-matter

jurisdiction of suits brought by the receiver

in the execution of his duties, and the court’s

geographical jurisdiction is extended to all

20

districts where receivership property is

found.

Id. at 824.

Receivers are typically appointed in equity for

the purpose of preserving and collecting property for

the benefit of the receivership estate, established in

this instance for the benefit of the victims of securi-

ties fraud. See Liberte Capital Group, LLC v. Capwill,

462 F.3d 543, 551 (6th Cir. 2006); Eller Indus., Inc. v.

Indian Motorcycle Mfg., Inc., 929 F. Supp. 369, 372

(D. Colo. 1995). The purpose of Sections 754 and 1692

is to provide a receiver and the receivership court

with nationwide jurisdiction to make it easier to

adjudicate interests in property that are subject to

the receivership estate. Such broad jurisdiction is a

well recognized concept in connection with bank-

ruptcy trustees and bankruptcy courts, which have

nationwide jurisdiction to adjudicate interests and

claims to assets within the bankruptcy estate. See

Matter of Rimsat, ‘.td., 98 F.3d 956, 961 (7th Cir.

1996) (“[T)Jhe efficacy of the bankruptcy proceeding

depends on the court’s ability to control and marshal

assets of the debtor wherever located”). Receivership

estates, like bankruptcy estates, are so powerful that

they even extend internationally. See In re French,

440 F.3d 145, 151 (4th Cir. 2006), cert. denied, French

v. Liebman, 549 U.S. 815 (2006); In re Gucci, 309 B.R.

679, 681 (S.D.N.Y. 2004); Citronelle-Mobile Gather-

ing, Inc. v. Watkins, 934 F.2d 1180, 1186-87 (11th Cir.

1991) (holding receiver had power to assert authority

21

over property in foreign country under order allowing

such action as to both personal and real property).

Although Long Beach acknowledges the applica-

bility of these statutes, it attempts to avoid them by

claiming that the Receiver did not timely file his

order of appointment within the ten-day period pro-

vided by Section 754. Long Beach’s ultra-technical

argument is simply incorrect.

Long Beach does not dispute that Robb Evans

filed the October 4, 2000 Order appointing him

Receiver of TLC America in the Northern District of

Texas within the ten-day period provided by Sec-

tion 754. The October 4, 2000 Order was filed in the

Northern District of Texas on October 13, 2000, only

nine days later.’ Pursuant to Sections 754 and 1692,

jurisdiction of the Receiver and the California federal

court was, therefore, established upon the timely

filing of the October 4, 2000 Order and the Receiver’s

Complaint in the Northern District of Texas on

October 13, 2000. Importantly, the October 4, 2000

order never expired.”

' CR. Vol. 3, p. 423; Resp. App. at 1, 3, 7.

* C.R. Vol. 3, pp. 422-42; Resp. App. at 3-7. The October 4,

2000 Order contained several separate orders, including an

order granting a temporary restraining order (the “[TRO”) and

the order of initial appointment of Robb Evans as receiver. Oniy

the TRO, not the appointment order, expired under the terms of

the Order and as required by Federa! Rule of Civil Procedure 65.

22

Long Beach suggests that even after timely filing

the initial order appointing him receiver, Robb Evans

was required to re-file the order appointing him

permanent receiver. Section 754, which does not dis-

tinguish between temporary and permanent orders,

does not require this. 28 U.S.C. § 754. The legislative

purpose behind Sections 754 and 1692 is to assist

receivers with their duties, not to burden them with

duplicative filing requirements for appointment or-

ders.” The point of these statutes is to make the

receiver’s job easier in retrieving receivership assets

to make the victims that a receiver represents whole

again. See Sec. & Exch. Comm’n v. Infinity Group Co.,

27 F. Supp. 2d 559, 567 (E.D. Pa. 1998) (finding that

the court, in a securities violations suit, had “‘author-

ity to grant the full panoply of equitable remedies so

that the [victims] can obtain complete relief,” in-

cluding “disgorgement, asset freezes, appotntments

of receivers, repatriation of assets, constructive

trusts, and restitution.”) (emphasis supplied). Signifi-

cantly, Long Beach has consistently failed to present

any case law that reads such a duplicative filing re-

quirement into Section 754.

By filing the October 4, 2000 Order initially

appointing him Receiver for TLC America in the

* Indeed, it would be unjust to divest a receiver of juris

diction where a receiver later discovers property in a jurisdiction

that the receiver did not have knowledge of within the ten day

time period. To do so would be unfair to the victims represented

by the receiver.

23

Northern District of Texas on October 13, 2000, Robb

Evans met the ten-day requirement of Section 754

and established his and the California Court’s juris-

diction over the Marquette Property. It is irrelevant

that the November 1, 2000 Order, which simply

continued the receivership and the Receiver’s power

and authority established in the October 4, 2000

Order, was filed in the Northern District of Texas

more than ten days after its entry. Jurisdiction had

already been established by the filing of the October

4, 2000 Order.

B. The Dallas Appeals Court’s Determi-

nation that the Receiver Properly

Invoked the California Court’s Juris-

diction under Section 754 is Correct

and Consistent with the Federal Cir-

cuits.

Based on the foregoing facts and the language of

the statute, the Dallas Appeals Court correctly

determined that the Receiver property invoked the

California Court’s jurisdiction under Section 754.

Significantly, the decision is also consistent with the

federal circuits that have opined on the application of

Section 754’s filing requirements. As such, there is no

basis for review due to a “conflict” between the Dallas

Appeals Court and the federal courts. See U.S. Sup.

Cr. R. 10; Rice, 349 U.S. at 79.

24

As stated, it is irrelevant under Section 754 that

the permanent order of appointment, which con-

tinued the established jurisdiction of the California

Court, was filed in the Northern District of Texas

more than ten days after being entered. Even if the

time limits of Section 754 applied to the Receiver’s

filing of the permanent appointment order, the case

law consistently holds that any belated filing was

effective to invoke jurisdiction under Section 754,

given that Petitioner was not prejudiced as a result.

Sec. & Exch. Comm’n v. Am. Capital Invs., Inc., 98

F.3d 1133, 1136 (9th Cir. 1996), cert. denied, Shelton

v. Barnes, 520 U.S. 1185 (1997), abrogated on other

grounds by Steel Co. v. Citizens for a Better Envt,

523 U.S. 83 (1998); Sec. & Exch. Comm’n v. Vision

Comme’ns, Inc., 74 F.8d 287, 288 (D.C. Cir. 1996);

U.S. v. Arizona Fuels Corp., 739 F.2d 455, 460 (9th

Cir. 1984); Sec. & Exch. Comm’n v. Equity Serv.

Corp., 632 F.2d 1092, 1095 (3d Cir. 1980). Indeed, Pe-

titioner could not have suffered any prejudice or harm

due to a delay in filing the permanent order of

appointment, because the order was filed in the

Northern District of Texas more than a year and a

half before the Receiver filed the lis pendens and

Petitioner entered the deed of trust, and nearly two

years before the California Court imposed a con-

structive trust on the Marquette Property. Even if the

second filing were required, Petitioner has not, and

indeed cannot, show a shred of evidence that it was

prejudiced as a result.

As such, the Dallas Appeals Court’s decision is

correct and consistent with the holdings in Equity

25

Service Corp., Arizona Fuels Corp., Vision Communti-

cations, and American Capital Investments. Because

this case has been correctly decided and presents no

conflict of authority, Long Beach has failed to meet

this Court’s standards for exercising review. See U.S.

Sup. Cr. R. 10; Rice, 349 U.S. at 79.

C. The Federal Circuits are in Harmony

Concerning Section 754.

Long Beach suggests in its Petition that the

federal circuits are somehow in conflict in connection

with the application of Section 754’s filing

requirements. The cases, again, are consistent in

finding that that a receiver may invoke jurisdiction

under Section 754 by either timely filing a complaint

and order of appointment, or by belatedly filing them

so long as the belated filing occurs before the case is

heard, i.e., before any party is prejudiced by the

belated filing. Am. Capital Invs., Inc., 98 F.3d at 1136;

Vision Comme'ns, Inc., 74 F.3d at 288; Arizona Fuels

Corp., 739 F.2d at 460; Equity Serv. Corp., 632 F.2d at

1095. Long Beach attempts to muddle the landscape

of the existing case law, but regardless of Long

Beach’s vague and confusing assertions in its Peti-

tion, the federal circuits are in harmony concerning

Section 754.

In Equrty Service Corp., a federal receiver ap-

pointed in an S.E.C. action died before complying

with the filing requirements of Section 754 and

gaining jurisdiction over certain oil and gas wells

26

located in a foreign district. Equity Serv. Corp., 632

F.2d at 1093. His replacement did not comply with

Section 754 until several months after being ap-

pointed. Jd. More than a year later, the well owners

sought to enjoin him from operating the wells by

challenging his jurisdiction based on his failure to

timely comply with the filing requirements of Section

754. Id. at 1094. The Third Circuit held that the

receiver had jurisdiction under Section 754 despite

the belated filing because the well owners failed to

show any harm from the lack of notice in the interim.

Id. at 1095.

In Arizona Fuels Corp., the Receiver never

complied with the filing requirements of Section 754.

Nevertheless, the Ninth Circuit held that the Re-

ceiver had jurisdiction over the intangible personal

property at issue because: (1) the party challenging

jurisdiction was not prejudiced by the failure to file

because it had received a copy of the complaint and

order of appointment and had actual notice of the

receivership proceedings, which it participated in; (2)

the receivership court had personal jurisdiction over

the complaining party separate from Section 754; and

(3) the court reasoned that the filing requirement

under Section 754 should not apply where the two

considerations above are present. Arizona Fueis

Corp., 739 F.2d at 460-61. Long Beach relies upon

Arizona Fuels Corp. to suggest that jurisdiction was

improperly asserted in this case. Arizona Fuels Corp.,

however, simply does not apply to the case at hand.

The Ninth Circuit determined that it was not a

27

requirement that Section 754 be complied with in

that case because the assets at issue were personal

property “in the form of a monetary credit, held by a

party over whom the court already has jurisdiction,

who has actual notice of the receivership and has

previously appeared in the receivership court” and

thus “there is no purpose gerved in requiring the

Receiver to trace the funds to Houston and make a

§ 754 filing there.” Jd. at 460-61. As a result, there is

no conflict between this case and the other cases cited

by Petitioner as they relate to the issues presented

here. Petitioner implicitly acknowledges as much by

merely citing this case in a footnote without any

discussion. Petitioner cannot create a circuit split on

the issues presented in this case by citing to in-

apposite cases.

The opinion in Vision Communications is in

harmony with the decisions in Equity Service Corp.

and Arizona Fuels Corp. In Vision Communications,

the issue was whether the receiver had acquired in

rem jurisdiction over certain transmission rights,

including a site lease for a transmission tower, by

complying with the filing requirements of Section

754. See Vision Comme'ns, Inc., 74 F.3d at 289; Sec. &

Exch. Comm'n v. Vision Comme’ns, Inc., No. 94-0615

(CRR), 1994 WL 855061, at *1 (D.D.C. June 28, 1994)

(describing rights at issue as including a site lease

for a transmission tower). The Receiver belatedly

filed the documents required by Section 754, but

not until after the court issued an injunction against

the party challenging jurisdiction. Vision Comme’ns,

’

2d

Inc., 74 F.3d at 290. The court acknowledged the

Equity Service Corp. and Arizona Fuels Corp. opin-

ions, and the concept that jurisdiction could be

obtained under Section 754 by a belated filing before

the case was heard (1.e., where the complaining party

was not prejudiced), but held that a belated filing

could not confer jurisdiction retroactively where an

injunction had already been entered. /d. at 291. Thus,

Viston Communications is not in conflict with Equity

Service Corp. and Arizona Fuels Corp., but is merely

distinguishable from them, and recognizes that a

belated filing can still invoke jurisdiction under

Section 754 where the parties are not prejudiced. See

id,

Petitioner further mischaracterizes the holding

in American Capital Investments. In that case, the

court did not “specifically hloJld that appointment ofa

permanent receiver required the timely filing of a

notice pursuant to [Section] 754.” See Pet. p. 10 (em-

phasis added). Rather, the court merely held that

such a filing was sufficient to invoke jurisdiction

under Section 754 where a timely filing was not made

within ten days of the district court’s issuance of an

order of temporary appointment. Thus, American

Capital Investments stands for the proposition that

where a temporary appointment is not timely filed, a

permanent appointment provides a new window for

timely filing. But it does not follow, as Petitioner

suggests, that Section 754 requires the inefficiency

of a second filing after a permanent appointment

despite the prior timely filing of a temporary

99

appointment. To the contrary, the court pointed out

that even if the filing was late, the complaining party

had not shown any resulting prejudice, thereby rec-

ognizing (consistently with Equity Service Corp.,

Arizona Fuels Corp., and Vision Communications)

that a belated filing still invokes jurisdiction under

Section 754 in the absence of prejudice.

Ultimately, the cases cited by Petitioner are in

harmony rather than conflict, and stand for the prop

osition tt a belated filing still invokes jurisdiction

under ‘tion 754 where the complaining party's

rights not prejudiced. Because there is no “real

and embarrassing conflict of opinion and authority

between the Circuit Courts of Appeals” on this issue,

this case fails to meet the standards for exercising

review. Rice, 349 U.S. at 79; see also U.S. Sup. Cr. R

LO.

Il. Petitioner’s Local Action Doctrine Argu-

ment Rests on the Tenuous Constitutional

Premise that Congress is Without Power to

Effect the Courts’ In Rem Jurisdiction un-

der Section 754. Regardless, the Local Ac-

tion Doctrine is Irrelevant in the Context

of the Receivership Jurisdiction Granted

under Sections 754 and 1692.

Petitioner's second argument regarding the local

action doctrine also fails to meet the standards for

review because (1) it rests on a faulty constitutional

+)

premise, and (2) the local action doctrine is irrelevant

9

3U

in the context of receivership jurisdiction under

Sections 754 and 1692

A. Petitioner's Local Action Doctrine Argu-

ment is Based on a Faulty Constitutional

Premise, Making Review Improper.

As this Court has recognized, arguments based

on tenuous constitutional premises are unworthy of

review. See Brennan v, U.S. Postal Serv., 439 U.S

1345, 1846 (1978) (recognizing that arguments based

on tenuous constitutional premises are unlikely to be

granted review). Petitioner’s local action doctrine ar-

vument fails to meet the standards for review be

cause it is based on the faulty premise that Congress

lacks the power to set the courts jurisdiction.

In the first part of its Petition, Petitioner cor

rectly acknowledges that Sections 754 and 169?

authorize federal district courts to exercise intra-

district in rem jurisdiction over property located

elsewhere in the context of receivership proceedings

se +

As the courts have recognized, ““Together, [Sections

754 and 1692] give a receivership court both in rem

and in personam jurisdiction in all distmcts where

property of the receivership estate may be located.”

Warfield v. Arpe, CIVA 3:05CV1457 R, 2007 WL

249467, at *11 (N.D. Tex. Feb. 22, 2007) (quoting

Quilling v. Stark, 3:05-CV-1976-L, 2006 WI, 1683442

at *38 (N.D. Tex. June 19, 2006) (citing Visi

Comme'ns, Inc., 74 F.3d at 290; Harle, 657 F.2d at

31

But then Petitioner conveniently ignores its own

admission and the law in its second argument,

contending instead that the local action doctrine

alone governs jurisdiction in cases such as this one.

Petitioner cannot change Congress’s jurisdictional

mandate under Sections 754 and 1692 by ignoring it,

and this Court should not entertain such a consti-

tutionally specious argument by granting review.

As the Court has repeatedly recognized, only

Congress has the power to determine the jurisdiction

of federal courts, and as such, state jurisdictional

matters at common-law, including the “local action

doctrine,” are simply irrelevant in the federal re-

ceivership context. Bowles v. Russell, 551 U.S. 205,

212-13 (2007) (stating that “Within constitutional

bounds, Congress decides what cases the federal

courts have jurisdiction to consider. Because Congress

decides whether federal courts can hear cases at all,

it can also determine when, and under what con-

ditions, federal courts can hear them.”); Kontrick v.

Ryan, 540 U.S. 443, 452 (2004) (stating that “Only

Congress may determine a lower federal court’s

subject-matter jurisdiction.”). Indeed, it is difficult to

imagine a more constitutionally tenuous premise

than the one underlying Petitioner’s local action doc-

trine argument: that Congress lacks the power to set

the courts’ jurisdiction. Because Petitioner’s second

argument is based on such a tenuous premise, it

wholly faiis to meet the standard for review. See

Brennan, 439 U.S. at 1346. Moreover, this argument

fails to meet the standards of review under Supreme

o2

Court Rule 10 because Petitioner is merely con-

tending that the local action doctrine has been

improperly applied. See U.S. Sup. Cr. R. 10.

B. Regardless, the Local Action Doctrine is

Irrelevant in the Context of the Re-

ceivership Jurisdiction Granted under

Sections 754 and 1692.

Petitioner’s local action doctrine argument fails

to merit review because the local action doctrine is

irrelevant in the context of the receivership jurisdic-

tion granted under Sections 754 and 1692. Long

Beach openly admits the application of Sections 754

and 1692 to provide a receiver and receivership court

with jurisdiction over property located in other

districts, including orders affecting such property. As

discussed above, the Receiver complied with the nec-

essary statutory requirements. Thus, the local action

doctrine is totally inapplicable.

The territorial jurisdiction of the receivership

court extends to any district where property of the

receivership estate may be located, even if the

property is located in different states across the

nation. See Haile, 657 F.2d at 822, 824; Cook, 2001

WL 803791, at *2; Select Creations, Inc., 852 F. Supp.

at 780-81. The result is that Sections 754 and 1692

make all actions in the receivership court “local,”

since the geographic jurisdiction of the court is ex-

tended to anywhere receivership property is located.

The broad jurisdictional reach of receivership courts

33

comports with the broad jurisdiction of the receiver

itself over receivership property. Cuitronelle-Mobile

Gathering, Inc., 934 F.2d at 1186-87 (holding receiver

had power to assert authority over property in foreign

country under order allowing such action as to both

personal and real property).

Like the bankruptcy court, the receivership

court’s exercise of in rem jurisdiction creates a fiction

that estate property is legally located in the district of

the court. See In re Simon, 153 F.3d 991, 996 (9th Cir.

1998) (recognizing that the bankruptcy court’s exer-

cise of in rem jurisdiction over the debtor’s property

essentially creates a fiction that the property—re-

gardless of actual location—is legally located within

the jurisdictional boundaries of the district in which

the court sits); Haile, 657 F.2d at 823; Warfield, 2007

WL 549467, at *11 (recognizing that Sections 754 and

1692 provide for in rem jurisdiction in all districts

where receivership property is located). And like the

bankruptcy court, the receivership court’s power even

extends to property located in other countries.

French, 440 F.3d at 151; Gucci, 309 B.R. at 681:

Citronelle-Mobile Gathering, Inc., 934 F.2d at 1186-87

(holding receiver had power to assert authority over

property in foreign country under order allowing such

action as to both personal and real property). Without

the far-reaching jurisdictional grants provided by

Congress, the bankruptcy and receivership processes

would be utterly unworkable. Petitioner invites the

Court to limit the jurisdictional reach of the

receivership court to the district in which it sits,

34

which would wreak havoc on that system and require

federal receivers to hopscotch across the country,

creating utter chaos. The Court should reject that

invitation.

The jurisdiction granted under Sections 754 and

1692 is well-recognized by the courts, and renders the

local action doctrine inapplicable in this context.

Ultimately, Petitioner’s complaint is that Sections

754 and 1692 have been misapplied, which is an

insufficient basis for review under Supreme Court

Rule 10. U.S. Sup. Ct. R. 10. Indeed, review of this

case is even less appropriate given that the only real

issue involved is a narrow priority of claims dispute

between the parties under Texas law.

Ill. Petitioner’s Implied Preemption Argument

also Fails to Meet Review Standards Be-

cause it Neither Presents a State/Federal

Conflict nor an Issue of First Impression.

Any Conflict with the Local Action Doc-

trine Imagined by Long Beach is Based in

Sections 754 and 1692, Congressional Man-

dates that Trump the Local Action Doc-

trine, a Concept of Common Law.

Petitioner’s implied preemption argument also

fails to meet any standard for this Court’s review.

Federal courts have recognized, consistently with this

Court’s jurisprudence, that the jurisdictional reach of

Sections 754 and 1692 confer jurisdiction on the

receivership court “irrespective of any other factor

35

which would normally determine jurisdiction.”

See Haile, 657 F.2d at 822.

This case law is well-established, and Petitioner

does not even attempt to distinguish it. Petitioner

acknowledges the applicability of these statutes, but

attempts to raise the notion of “preemption” by citing

to case law concerning federal preemption of state

law. Preemption, however, is not at issue. Petitioner

challenges a federal] court’s exercise of jurisdiction

over the Marquette Property, but Congress legislated

the jurisdictional boundaries of federal receivership

courts under Sections 754 and 1692, extending juris-

diction over persons and property to other jurisdic-

tions and extending the geographic boundaries of the

receivership court to where receivership property is

located.

Sections 754 and 1692 make the federal receiver-

ship system workable. To lhmit the jurisdictional

reach of the receivership court to the district in which

it sits, as Petitioner proposes, would destroy that

system and the purpose of the statutes. Only Con-

gress has the power to determine the jurisdiction of

federal courts, and as such, state jurisdictional laws,

including the “local action doctrine,” have no rele-

vance in the receivership context presented here. See

Bowles, 551 U.S. at 212-13; Kontrick, 540 U.S. at 452.

The concept of implied preemption simply has noth-

ing to do with the effect of Sections 754 and 1692 on

the local action doctrine, which is merely a common-

law concept of in rem jurisdiction subject to alteration

by Congressional mandate. Indeed, any conflict with

the local action doctrine is based in Sections 754 and

36

1692, which trump the local action doctrine regard-

less, and not in the Dallas Appeals Court’s decision.

Because the case law is in harmony and the

jurisdictional reach of Sections 754 and 1692 has long

been recognized, Petitioner’s implied preemption ar-

gument presents neither a state/federal conflict nor

an issue of first impression requiring review under

Supreme Court Rule 10. U.S. Sup. Cr. R. 10; Rice, 349

U.S. at 79.

CONCLUSION

For the foregoing reasons, Long Beach’s Petition

for a Writ of Certiorari should be denied, and the

Receiver should be granted such and further relief, at

?

law or in equity, to which he may be justly entitled.

Respectfully submitted,

KAREN L. HART

Counsel of Record

RANDALL K. LINDLEY

Ross A. WILLIAMS

BELL NUNNALLY & MARTIN LLP

3232 McKinney Avenue, Suite 1400

Dallas, Texas 75204-2429

Telephone: (214) 740-1400

Telecopier: (214) 740-5744

karenh@bellnunnally.com

Attorneys for Respondent

Robb Evans, as Receiver

for TLC America, Inc.

App. 1

Dressler Rein Evans & Sestanovich LLP

Sixteenth Floor

1925 Century Park East

Los Angeles, CA 90067

Tel (310) 551-3100

Fax (310) 551-0238 Received October 13, 2000

October 11, 2000

By Federal Express

Clerk, United States District Court

Northern District of Texas, Dallas Division

1100 Commerce

Room 14A20

Dallas, TX 75242

Re: Securities and Exchange Commission v.

TLC Investments and Trade Co., et al.

USDC Calif. Central District Case No. SACV

00-960-DOC (EEx)

Miscellaneous Case Under 28 U.S.C §$ 754

To whom it may concern:

This office represents Robb Evans, Receiver, in

the above-captioned matter. Enclosed please find

certified copies of the following documents:

1. Complaint For Violations of the Federal

Securities Laws;

2. Temporary Restraining Order’ and

Orders (1) Freezing Assets; (2) Appointing a

Temporary Receiver; (3) for Repatriation; (4)

Prohibiting the Destruction of Documents;

(5) Granting Expedited Discovery; (6) for

Accountings; and Order to Show Cause Re

App. 2

Preliminary Injunction and Appointment of a

Permanent Receiver

In accordance with 28 U.S.C. § 754, these

documents are being filed in all districts in which

property subject to this proceeding may be located.

There is no case or proceeding pending in your

district for which a filing fee has previously been

paid. A check for $20.00 for a miscellaneous filing fee

is enclosed.

Please conform the enclosed face sheets and

return them to me at your earliest convenience. A

self-addressed, stamped envelope is provided. Please

contact me at (310) 551-3100 x236 if you have any

questions in this regard. Thank you for your assis-

Lance.

Very truly yours,

/s/ Judi S. Ehrlich

Judi S. Ehrlich

App. 3

[SEAL]

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

SECURITIES AND

EXCHANGE COMMISSION,

Plaintiff,

vs.

TLC INVESTMENTS &

TRADE CO., TLC AMERICA,

INC. dba BREA DEVELOP-

MENT COMPANY, TLC

BROKERAGE, INC., dba

TLC MARKETING, TLC

DEVELOPMENT, INC., TLC

REAL PROPERTIES, RLLP-1,

CLOUD & ASSOCIATES

CONSULTING, INC.,

ERNEST F. COSSEY,

GARY W. WILLIAMS AND

THOMAS G. CLOUD,

Defendants.

Case No. SACV O0-

960 DOC (EEx)

TEMPORARY RE-

STRAINING ORDER

AND ORDERS: (1)

FREEZING ASSETS;

(2) APPOINTING A

TEMPORARY RE-

CEIVER; (3) FOR

REPATRIATION; (4)

PROHIBITING THE

DESTRUCTION OF

DOCUMENTS; (5)

GRANTING EXPE-

DITED DISCOVERY;

(6) FOR ACCOUNT-

INGS; AND ORDER

TO SHOW CAUSE

RE PRELIMINARY

INJUNCTION AND

APPOINTMENT OF

A PERMANENT RE-

CEIVER

This matter came to be heard upon Plaintiff

Securities and Exchange Commission’s (“Commission”)

App. 4

Ex Parte Application for a Temporary Restraining

Order and Orders: Freezing Assets, Appointing a

Temporary Receiver, Repatriating Assets, Prohibiting

Destruction of Documents, Granting Expedited Dis-

covery, for Accountings and to Show Cause Re

Preliminary Injunction, and Appointment of a Perma-

nent Receiver (the “Application”).

* oi

IT IS FURTHER ORDERED that Robb Evans

be appointed as temporary receiver of TLC, TLC

America, TLC Brokerage, TLC Development, TLC

Real Properties, and their subsidiaries and affiliates,

with full powers of an equity receiver, including, but

not limited to, full power over alk funds, assets,

collateral, premises (whether owned, leased, occupied,

or otherwise controlled), choses in action, books,

records, papers and other property belonging to or in

the possession of or control of TLC, TLC America,

TLC Brokerage, TLC Development, TLC Real Prop-

erties, and any of their subsidiaries and affiliates,

including any partnerships and joint ventures for

which TLC, TLC America, TLC Brokerage, TLC

Development, or TLC Real Properties is the Man-

aging General Partner, and that such receiver is

immediately authorized, empowered and directed:

A. to have access to and to collect and take

custody, control, possession, and charge of all

funds, assets, collateral, premises (whether

owned, leased, occupied, or otherwise con-

trolled), choses in action, books, records,

papers and other property of TLC, TLC

App. 5

America, TLC Brokerage, TLC Development,

TLC Real Properties, and their subsidiaries

and affiliates, with full power to sue, fore-

close, marshal, collect, receive, and take into

possession all such property;

to have control of, and to be added as the sole

authorized signatory for, all accounts of TLC,

TLC America, TLC Brokerage, TLC Develop-

ment, TLC Real Properties, and their sub-

sidiaries and affiliates, including all accounts

over which TLC, TLC America, TLC Broker-

age, TLC Development, TLC Real Properties

and any of their employees or agents, have

signatory authority, at any bank, title com-

pany, escrow agent, financial institution or

brokerage firm which has possession, cus-

tody or control of any assets or funds of TLC,

TLC America, TLC Brokerage, TLC Develop-

ment, TLC Real Properties, or which main-

tains accounts over which TLC, TLC America,

TLC Brokerage, TLC Development, TLC Real

Properties and/or any of their employees or

agents have signatory authority;

to conduct such investigation and discovery

as may be necessary to locate and account for

all of the assets of TLC, TLC America, TLC

Brokerage, TLC Development, TLC Real

Properties and their affiliates and to engage

and employ attorneys, accountants and other

persons to assist in such investigation and

discovery;

to take such action as is necessary and

appropriate to preserve and take control of

and to prevent the dissipation, concealment,

H

App. 6

or disposition of any assets of TLC, TLC

America, TLC Brokerage, TLC Development,

TLC Real Properties and their affiliates;

to make an accounting, as soon as

practicable, to this Court and the Commis-

sion of the assets and financial condition of

TLC, TLC America, TLC Brokerage, TLC

Development, TLC Real Properties and the

client assets under their management, and

to file the accounting with the Court and

deliver copies thereof to all parties;

to make such payments and disbursements

from the funds and assets taken into custody,

control, and possession or thereafter received

by him or her, and to incur, or authorize the

making of such agreements as may be

necessary and advisable in discharging his or

her duties as temporary receiver;

to employ attorneys and others to investigate

and, where appropriate, to institute, pursue,

and prosecute all claims and causes of action

of whatever kind and nature which may now

or hereafter exist as a result of the activities

of present or past employees or agents of

TLC, TLC America, TLC Brokerage, TLC

Development, and TLC Rea} Properties; and

to have access to and monitor all mail of

TLC, TLC America, TLC Brokerage, TLC

Development, and TLC Real Properties in

order to review such mail which he or she

deems relates to the business of TLC, TLC

America, TLC Brokerage, TLC Development,

and ‘TLC Real Properties and the discharging

of his or her duties as temporary receiver.

App 7

VII.

[IT IS FURTHER ORDERED that Defendants

TLC, TLC America, TLC Brokerage, TLC Develop

ment, TLC Real Properties, Cossey, Williams and

their officers, agents, servants, employees and

attorneys, and any other persons who are in custody,

possession or control of any

to entertain any suitable application or motion for

additional relief within the jurisdiction of this Court.

ITIS SO ORDERED

DATED: October 4, 2000

TIME: _7_ o'clock p.m

s/ David O. Carter __ i i

UNITED STATES DISTRICT JUDGE

Presented by:

/s/ Marianne Wisner

Marianne Wisner

Attorney for Plaintiff

Securities and Exchange Commission

(Filed October 5. 2000 — CA)

(Filed Oct. 13, 2000 — TX)

App. 8

Dressler Rein Evans & Sestanovich LLP

Sixteenth Floor

1925 Century Park East

Los Angeles, CA 90067

‘Tel (310) 551-3100

Fax (310) 551-0238 Received January 2, 2001

December 20, 2000

Clerk, United States Distnct Court

Northern District of Texas, Dallas Division

1100 Commerce

Room 14A20

Dallas, TX 75242

Re: Securities and Exchange Commission v.

‘I'LC Investments and Trade Co., et al.,

USDC Case No. SACV 00-960-DOC (EEx)

Miscellaneous Case Under 28 U.S.C. $ 754

Your Reference Number: #300MC-100

To whom it may concern:

This office represents Robb Evans, Receiver, in

the above-captioned matter. On October 11, 2000, we

sent you certified copies of (1) Complaint For

Violations of the Federal Securities Laws, and (2)

Temporary Restraining Order and Orders (1) Freez-

ing Assets; (2) Appointing a Temporary Receiver; (3)

for Repatriation; (4) Prohibiting the Destruction of

Documents; (5) Granting Expedited Discovery; (6) for

Accountings; and Order to Show Cause Re Pre-

liminary Injunction and Appointment of a Permanent

Receiver. In accordance with 28 U.S.C. § 754, those

documents were filed in all distmects in which

property subject to this proceeding may be located.

App. 9

A Miscellaneous Filing Fee of $20.00 was provided.

Your office thereafter confirmed that the documents

were filed on 10/13/00 and assigned Misc. File

Number #300MC-100.

On November 1, 2000, the Court issued an

“Order of Preliminary Injunction and Orders (1)

Freezing Assets; (2) Appointing a Receiver; (3)

Prohibiting the Destruction of Documents; (4) for

Accountings; (5) for Repatriation, and (6) for Expe-

dited Discovery”. A certified copy of the November 1,

2000 Order (which appoints Robb Evans as Per-

manent Receiver) is now enclosed for inclusion with

Misc. File Number #300MC-100.

Please conform the enclosed face sheet and

return it to me at your earliest convenience. A self-

addressed, stamped envelope is provided. Please

contact me at (310) 551-3100 x236 if you have any

questions in this regard. Thank you for your assis-

tance.

Very truly yours,

/s/ Judi S. Ehrlich

Judi S. Ehrlich

Enclosures

App. 10

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

SECURITIES AND Case No. SACV 00-

EXCHANGE COMMISSION, |960-DOC (EEx)

Plaintiff, [PROPOESEB] ORDER

in OF PRELIMINARY

INJUNCTION AND

TLC INVESTMENTS & ORDERS: (1) FREEZ-

TRADE CoO., et al. ING ASSETS; (2)

Defendants. APPOINTING A

RECEIVER; (3) PRO-

HIBITING THE DE-

STRUCTION OF DOC-

UMENTS; (4) FOR

ACCOUNTINGS; (5)

FOR REPATRIATION

OF ASSETS; AND

(6) FOR EXPEDITED

DISCOVERY

(Filed Nov. 1, 2000

=A)

This matter came to be heard on October 30,

2000, upon the Court’s Order To Show Cause Re

Preliminary Injunction And Appointment Of A Per-

manent Receiver (“OSC”), issued on October 4, 2000

and filed on October 5, 2000. The OSC is included in

the Court’s Temporary Restraining Order and Orders:

Freezing Assets, Appointing a Temporary Receiver,

Repatriating Assets, Prohibiting Destruction of Docu-

ments, Granting Expedited Discovery, for Accountings

App. 11

and to Show Cause Re Preliminary Injunction, and

Appointment of a Permanent Receiver (“TRO”).

a * *

[Names And Bank Number Omitted In Printing]

VIL.

IT IS FURTHER ORDERED that Robb Evans be

appointed as receiver of TLC, TLC America, TLC

Brokerage, TLC Development, TLC Real Properties,

and their subsidiaries and affiliates, with full powers

of an equity receiver, including, but not limited to,

full power over all funds, assets, collateral, premises

(whether owned, leased, occupied, or otherwise

controlled), choses in action, books, records, papers

and other property belonging to or in the possession

of or control of TLC, TLC America, TLC Brokerage,

TLC Development, TLC Real Properties, and any of

their subsidiaries and affiliates, including any

partnerships and joint ventures for which TLC, TLC

America, TLC Brokerage, TLC Development, or TLC

Real Properties is the Managing General Partner,

and that such receiver is immediately authorized,

empowered and directed:

A. to have access to and to collect and take

custody, control, possession, and charge of all

funds, assets, collateral, premises (whether

owned, leased, occupied, or otherwise con-

trolled), choses in action, books, records,

papers and other property of TLC, TLC

America, TLC Brokerage, TLC Development,

D.

App. 12

TLC Real Properties, and their subsidiaries

and affiliates, with full power to. sue,

foreclose, marshal, sell, liquidate, collect,

receive, and take into possession all such

property;

to have control of, and to be added as the sole

authorized signatory for TLC, TLC America,

TLC Brokerage, TLC Development, TLC

Real Properties, and their subsidiaries and

affiliates, including all accounts over which

TLC, TLC America, TLC Brokerage, TLC

Development, TLC Real Properties and any

of their officers, employees or agents, have

signatory authority, at any bank, title

company, escrow agent, financial institution

or brokerage firm which has_ possession,

custody or control of any assets or funds of

TLC, TLC America, TLC Brokerage, TLC

Development, TLC Real Properties, or which

maintains accounts over which TLC, TLC

America, TLC Brokerage, TLC Development,

TLC Real Properties and/or any of their

officers, employees or agents have signatory

authority;

to conduct such investigation and discovery

as may be necessary to locate and account for

all of the assets of TLC, TLC America, TLC

Brokerage, TLC Development, TLC Real

Properties and their affiliates and to engage

and employ attorneys, accountants and other

persons to assist in such investigation and

discovery;

to take such action as is necessary and

appropriate to preserve and take control of

App. i3

and to prevent the dissipation, concealment,

or disposition of any assets of TLC, TLC

America, TLC Brokerage, TLC Development,

TLC Real Properties and their affiliates;

to make an accounting, aS soon as prac-

ticable, to this Court and the Commission of

the assets and financial condition of TLC,

TLC America, TLC Brokerage, TLC Develop-

ment, TLC Real Properties and the client

assets under their management, and to file

the accounting with the Court and deliver

copies thereof to all parties;

to make such payments and disbursements

from the funds and assets taken into custody,

control, and possession or thereafter received

by him or her, and to incur, or authorize the

making of such agreements as may be

necessary and advisable in discharging his or

her duties as receiver;

to employ attorneys and others to inves-

tigate, advise and, where appropriate, to

institute, pursue, and prosecute all claims

and causes of action of whatever kind and

nature which may now or hereafter exist as a

result of the activities of present or past

employees or agents of TLC, TLC America,

TLC Brokerage, TLC Development, and TIC

Real Properties; and

to have access to and monitor all mail of

TLC, TLC America, TLC Brokerage, TLC

Development, and TLC -Real Properties in

order to review such mail which he deems

relates to the business of TLC, TLC America,

App. 14

TLC Brokerage, TLC Development, and TLC

Real Properties and the discharging of his

duties as receiver;

to exercise all of the powers of TLC, TLC

America, TLC Brokerage, TLC Development,

and TLC Real Properties and their officers,

directors, employees, representatives, or

persons who exercise similar powers and

perform similar duties;

VIII.

IT IS FURTHER ORDERED that Defendants

TLC, TLC America, TLC Brokerage, TLC Develop-

ment, TLC Real Properties, Cossey, Williams and

their officers, agents, servants, employees and

attorneys, and any other persons who are in custody,

possession or control of any assets, collateral, books,

records, papers or other property of TLC,

ok ake ok

requests for lving expenses if and when their

financial situations change. Further, Defendants

Cossey and Williams may also renew their requests

for attorneys’ fees after they submit full accountings

to the Court, the Receiver, and the Commission.

XXII.

IT IS FURTHER ORDERED that this Court

shall retain jurisdiction over this action for the

purpose of implementing and carrying out the terms

of all orders and decrees which may be entered herein

App. 15

and to entertain any suitable application or motion

for additional relief within the jurisdiction of this

Court.

IT IS SO ORDERED.

DATED: Octeber _, November 1, 2000

/s/ David O. Carter

HONORABLE DAVID O. CARTER

UNITED STATES DISTRICT JUDGE

Presented by:

/s/ Marianne Wisner

MARIANNE WISNER

Attorney for Plaintiff

Securities and Exchange Commission

App. 16

NOTICE OF LIS PENDENS

(Filed Jul. 23, 2002)

STATE OF TEXAS § 1919765

§ 07/24/02 3359469 $11.00

COUNTY OF DALLAS &§ Miscellaneous Real Estate

NOTICE IS HEREBY GIVEN that Case No.,

01-6466, styled ROBB EVANS, as Receiver for TLC

America, Inc., Plaintiff v. James F. Garro, an indi-

vidual; David Price, an individual; Paul Chovanec,

an individual; Allison-McCloskey Escrow Co., a

California corporation; Navajo Capital, Inc., a

Wyoming corporation; Siena Financial Ltd., a British

Virgin Islands corporation; Camelot International,

LLC, a Wyoming limited liability company; Merlin

Financial, LLC, a Wyoming limited liability company;

The Lancelot foundation, a Wyoming nonprofit

company; Appaloosa International, Inc., a Wyoming

corporation; Citation Financial Management, Inc., a

Wisconsin corporation; Durham Capital Group, Inc., a

Nevada corporation; & Fortress Financial Ltd., a

British Virgin Islands corporation, Defendants; was

commenced in the United States District Court for

the Central District of California on July 27, 2001

and is now pending in such court.

The action seeks to establish an interest or a

right in real property situated in Dallas County,

Texas, and described as follows:

App. 17

7843 Marquette Street, Dallas, Texas 75225-4400

Caruth Village Phase 2

Blk R/5450 LT 10

VOL 99209/6210 DD 102399 CO-DALLAS

The action is for fraud and deceit; aiding and

abetting; conversion; money had and received; negli-

gence; breach of fiduciary duty; and constructive

fraud.

SIGNED this 17 day of July, 2002.

/s/ Charles M. Silverman

Charles M. Silverman

STATE OF TEXAS

COUNTY OF HARRIS

Subscribed and sworn to before me this 17 day of

July , 2002 by Charles M. Silverman.

WITNESS my hand and official seal.

/s/ Susan D. Stroud

Notary Public in and For the State of Texas

My commission expires: 5-20-03

App. 18

FF $31.00 GF#686146. T ATC/mo

After Recording 1932820

Please Return To: 08/02/02 3377095

LONG BEACH MORT- Deed of Trust $31.00

GAGE COMPANY

P.O. BOX 201085

STOCKTON, CA 95202

[Space Above This Line For Recording Data]

Loan No: 4585154 Data ID: 278

Borrower: DAVID H. PRICE

THIS SECURITY INSTRUMENT SECURES

AN EXTENSION OF CREDIT AS DEFINED BY

SECTION 50(a)(6), ARTICLE XVI OF

THE TEXAS CONSTITUTION.

TEXAS HOME EQUITY SECURITY INSTRUMENT

(Cash Out — First Lien)

This Security Instrument is not intended to

finance Borrower’s acquisition of the Property.

THIS SECURITY INSTRUMENT is made on

July 24, 2002. The grantor is DAVID H. PRICE AND

WIFE, CAROL M. PRICE

(“Borrower’”).

The trustee is TROY GOTSCHALL, whose address

is 1100 TOWN AND COUNTRY ROAD, #1600,

ORANGE, CA 92868

(“Trustee”).

The beneficiary is LONG BEACH MORTGAGE COM-

PANY, A CORPORATION,

App. 19

which is organized and existing under the laws of the

State of DELAWARE, and whose address is 1100

TOWN & COUNTRY ROAD, #900, ORANGE, CA

92868

(“Lender”).

Borrower owes Lender the principal sum of

FOUR HUNDRED THOUSAND and NO/100

Dollars (U.S. $ 400,000.00). This debt is an extension

of credit as defined by Section 50(a)(6), Article XVI of

the Texas Constitution (referred to herein as the

“Extension of Credit”) and is evidenced by Borrower’s

note dated the same date as this Security Instrument

(the “Note”), which provides for monthly payments,

with the full debt, if not paid earlier, due and payable

on August 1, 2032. This Security Instrument secures

to Lender: (a) the repayment of the debt evidenced by

the Note, with interest, and all renewals, extensions

and modifications of the Note; (b) the payment of all

other sums, with interest, advanced under Paragraph

7 to protect the security of this Security Instrument;

and (c) the performance of Borrower’s covenants and

agreements under this Security Instrument and the

Note. For this purpose, Borrower irrevocably grants

and conveys to Trustee, in trust, with power of sale,

the following described property located in DALLAS

County, Texas:

BEING LOT 10, BLOCK R/5450 OF

CARUTH VILLAGE ADDITION, PHASE II,

AN ADDITION TO THE CITY OF DALLAS,

DALLAS COUNTY, TEXAS, ACCORDING

TO THE PLAT THEREOF RECORDED

App. 20

IN VOLUME 98008, PAGE 1458, MAP

RECORDS, DALLAS COUNTY, TEXAS.

which has the address of 7843 MARQUETTE STREET,

[Street]

DALLAS, TEXAS 75225 (“Property Address”).

[City] (Zip Code]

TEXAS HOME EQUITY SECURITY INSTRUMENT

(Cash Out — First Lien) Fannie Mae/Freddie Mac

UNIFORM INSTRUMENT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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