IDOF vs. Elliott and Impact

Partial Summary Judgement Granted

2010-11-11T14:07:00.001-08:00

The judge ruled from the bench in yesterday's hearing, and granted the State's Motion for Partial Summary Judgment as to Count 5, in all respects.

He has ordered James Catledge to comply with the Consent Order to Cease and Desist and make the rescission payments of about $1.9 mil. He also awarded pre-judgment interest of over $400,000, and levied a penalty of $10,000 for failure to comply with the Cease and Desist order. The judge also awarded a money judgment to the State as a means to help the State collect the money. The judgment is for slightly over $2.4 mil.

Hearing results

2010-10-07T09:22:00.000-07:00

A hearing was held on various motions of the parties, at 3:00 PM on October 6, 2010. The result is that James Catledge and the Impact defendants have been ordered to respond to the Motion for Partial Summary Judgment filed by the Department.

Defendants are to file their response by October 27, 2010. The Department has a week to reply to that response, and the hearing on the Motion for Partial Summary Judgment is set for 3:00 PM on November 10, 2010.

Summary Judgment

2010-09-10T11:02:00.001-07:00

The State has filed a motion for partial summary judgment, as to Count 5 of the Verified Complalint. This motion seeks a judgment that James Catledge and Impact violated the Consent Order to Cease and Desist. The State is asking for an order that Catledge and Impact obey the terms of the Consent Order, and that they be ordered to make rescission payments.

This motion is currently set for hearing on October 6, 2010, at 3:00 PM, in the Ada County Courthouse.

A flurry of motions

2010-07-27T13:12:00.000-07:00

Defendants John Thomson, Steve Cabezud and Barbara Nagel recently obtained new counsel, Boise attorney Thomas Banducci.

The Department filed a Motion to Strike Answers of Thomson, Cabezud and Nagel, and asked the court to enter default, based on the defendants' failure to comply with the court's order compelling discovery and its order to show cause. Banducci has filed an opposition to this motion.

Banducci has also filed a motion to set aside the court's order deeming the Department's Requests for Admission as admitted, and has attempted to respond to the court's order to show cause. The Department has filed briefing opposing these two efforts, and has filed a motion to strike from the record parts of what defendants filed.

The hearing on the various motions is set for Monday, August 2, 2010, at 11:00 AM, in the Ada County courthouse.

The Department is still waiting for the judge to sign the stipulated order on Catledge's Motion for Protective Order, and we are also waiting for the judge to sign the documents to take a default judgment against Derek Elliott.

Update: Just received the judgment and permanent injunction against Elliott, and the order for the Protective Order. The Department was awarded a judgment amount against Derek Elliott and Sun Village Juan Dolio Associates in the amount of $2,653,880.65.

Motion for protective order

2010-06-14T08:56:00.000-07:00

During the May 24th hearing on the State's Motion to Compel and Catledge's Motion for Stay, counsel for Catledge verbally converted their Motion to Stay to a Motion for Protective Order. The judge directed counsel to prepare a draft protective order.

Catledge's counsel and I have been negotiating the terms of the order. I expect we will reach some agreement and will submit that to the judge for his review and approval.

The judge did not rule on the State's Motion to Compel, as that was essentially subsumed by the Motion for Protective Order. Counsel are also negotiating terms of future discovery.

Motion to compel, motion for stay

2010-05-17T10:55:00.001-07:00

The Department has filed a motion to compel Mr. Catledge to respond to discovery filed by the Department in August, 2009. This motion is set for hearing on Monday, May 24, 2010, at 1:30 PM in Judge Wilper's courtroom.

Catledge and the Impact Defendants have filed an opposition to the State's motion, and have also filed a motion requesting a temporary stay of the State's case. The gist of Catledge's motion for a stay is that he is under investigation by the FBI and the US Attorney's Office in the Northern District of California, and he believes the State's action should be stayed until the criminal action (if any comes out of the investigation) is resolved.

This issue will also be heard on May 24th.

Barbara Nagel files for bankruptcy protection

2010-03-23T13:45:00.001-07:00

Barbara Nagel has now filed for bankruptcy protection in California.

Another bankruptcy

2010-03-18T13:26:00.000-07:00

The Department discovered today that Defendant John Thomson filed for bankruptcy on march 12, 2010, in Utah, case # 10-22990. A notice of the bankruptcy was filed with the District Court in Idaho in this action, and the Court entered a civil disposition regarding Thomson based on the stay.

The Department is considering its response to these developments.

Motion to withdraw - Monday, April 5, 2010, 2:30 PM.

2010-03-15T09:29:00.000-07:00

At the hearing on the Department's motion for sanctions, and to vacate the order quashing the subpoena of Wells Fargo records, no party other than the Department showed up.

The Judge vacated his order quashing the subpoena. The State is now free to proceed with the production.

As a sanction for violating his order to provide discovery, the judge "deemed admitted" the Requests for Admission previously filed by the State. He also directed me to provide a proposed order giving defendants Thomson, Cabezud and Nagel 10 days to show cause why their answers should not be stricken. I have sent him the proposed order, and copied it to the other parties.

Counsel for Thomson, Cabezud and Nagel filed various motions on Friday, March 12. He has asserted the bankruptcy stay in an effort to avoid the actions against Cabezud. He has moved for a protective order to prevent the depositions of Thomson, Cabezud and Nagel that are currently set for the end of this month. He moved to withdraw as counsel for the three defendants. He also objected to the proposed order to show cause.

Counsel for defendants noticed the motion to withdraw for Monday, April 5, 2010, at 2:30 PM.

Catledge answer; motion to quash

2010-03-02T09:12:00.000-08:00

James Catledge and the Impact defendants filed an Answer on February 25, 2010.

Counsel for Defendants Thomson, Cabezud and Nagel filed a petition to quash a subpoena issued by the Department to Wells Fargo Bank, seeking bank records related to James Catledge and various Impact and Impact-related entities. The judge granted that motion to quash. The Department has moved to vacate the order to quash so that it can obtain the records. That motion is also currently set for March 8th, along with the motion for sanctions.

Motion for Sanctions

2010-02-18T13:58:00.000-08:00

The Department has filed a Motion for Sanctions against Defendants Thomson, Cabezud, and Nagel. The Court ordered that the Defendants provide discovery to the Department. Thomson and Cabezud did not respond at all, and therefor the Department believes they are in violation of the Court's Order to respond. Ms. Nagel did provide a substantial number of documents, but failed to otherwise respond to the discovery. As punishment for violating the Order, the Department is seeking sanctions.

The Hearing on the Motion for Sanctions is set for March 8th, 2010, at 2 PM.

The Department received notice this week that Defendant Cabezud has filed for Chapter 7 bankruptcy protection in California. Case No. 10-10419 AJ 7.

David Brimley default judgment

2010-02-16T08:42:00.000-08:00

When the Diaz and Nevin firms withdrew as counsel for James Catledge and David Brimley, they has a set time to obtain new counsel or otherwise appear in the action. Brimley never appeared, so the Department moved for entry of default against him. Having obtained default, the Department also was able to get a default judgment.

You can see a copy here.

Recent news stories

2010-02-03T07:15:00.000-08:00

Here are links to a couple of recent articles about James Catledge.

Motion to compel

2010-02-02T10:37:00.000-08:00

The State scheduled a Motion to Compel Discovery from Defendants Thomson, Nagel and Cabezud, which was heard on Friday, January 29. The Judge signed an order compelling those Defendants to produce the requested discovery no later than February 12, 2010.

There are no other hearings pending at this time.

Motion to Dismiss Denied

2009-12-23T10:53:00.000-08:00

The Department received today Judge Wilper's Order Denying Catledge's and Impact's Motion to Dismiss. He ruled 1) that the case is not barred by the statute of limitations contained in Idaho Code Sec. 30-14-509; 2) that the complaint was pled with sufficient particularity; and 3) that the Department did not fail to join indispensable parties.

Catledge and Impact must now file an Answer and the case can proceed. For various reasons, the deadline for filing the Answer is not set in stone, so I cannot give that date at this time.

We will post a copy of the Order a bit later.

Motion to compel

2009-11-30T09:14:00.000-08:00

The Department of Finance has filed a motion to compel discovery against Barbara Nagel, Steve Cabezud, and John Thomson. We filed our discovery requests in August, and they have never responded.

The motion is set for hearing on December 14, 2009, at 11:00 AM, in the Fourth District courthouse, in Boise.

The judge has not yet ruled on Impact's Motion to Dismiss.

Update: The motion to compel was postponed due to a potential conflict that arose with the date. Unless an arrangement can be reached with counsel for defendants, we will re-set the motion for hearing.

There have been no other new developments.

New Catledge counsel

2009-11-24T10:38:00.000-08:00

James Catledge and his Impact companies have retained new local counsel; Monte N. Stewart of the Boise firm Belnap Law, PLLC. So far, no other out-of-state counsel has requested admission.

Mr. Stewart has substituted in, thus rendering the motion to withdraw moot as to Catledge and the Impact companies. The motion is still pending as to David Brimley.

With the substitution of counsel, we should be able to proceed without further delays. As of today, the judge has not ruled on the pending motion to dismiss, or the pending motion for reconsideration.

Hearing result

2009-11-03T13:12:00.001-08:00

At the hearing held on Monday, November 2, 2009, I moved to vacate the hearing on the motion to compel, until such time as new counsel appears, and the judge granted that.

Attorney Mike Diaz appeared by phone, and informed the court that he had been contacted on October 15, 2009 by Nevada (I think) attorney Rob Graham who stated he was taking over the Catledge cases. Diaz said they've now withdrawn from all Catledge cases.

The judge took both the Motion to Dismiss and the Motion to Withdraw under advisement. I had requested that he rule on the Motion to Dismiss as a means to avoid delay if new counsel were to appear and want to contest that motion.

The judge is considering whether to grant the Motion to Withdraw now and then wait to rule on the Motion to Dismiss, or whether to rule on the Motion to Dismiss and then grant the Motion to Withdraw. I argued that the former exposes us to additional delay, and the latter will help move the case along.

The judge said he'd try to rule within 30 days. Once he signs the Order Granting Withdrawal, Catledge will have an additional 20 days to appear either through new counsel, or pro se.

Motion to withdraw

2009-10-23T14:26:00.000-07:00

On Friday, October 23, 2009, the two law firms representing James Catledge and the Impact business entities filed a motion to withdraw as counsel. They have set that motion to be heard on November 2, 2009, along with the other two pending motions.

Comments

2009-10-22T10:34:00.000-07:00

We have changed the comment section to allow anonymous comments. Inappropriate comments will be deleted.

Motion for sanctions

2009-09-25T09:31:00.000-07:00

The Department recently received responses to its discovery sent to defendants Catledge and the Impact companies. The Dept. does not believe the responses were adequate, and filed a motion asking the court for sanctions against those defendants for failure to answer adequately, and in the alternative if sanctions are not imposed, for an order requiring a more thorough response.

The hearing on this motion has been rescheduled for Monday, November 2, 2009, at 4:00 PM, during the same hearing as on the pending Motion to Dismiss.

Defendant Trevor Walker's Motion to Dismiss has been heard, and the Dept. filed its supplemental brief. We are awaiting the judge's ruling on this motion.

Motion denied

2009-08-31T15:25:00.000-07:00

The Impact Defendants recently filed a Motion for Protective Order seeking to stay discovery the Department has filed. Their Motion to Dismiss the Department's verified complaint is pending, and will be heard on November 2, 2009, at 4:00 PM.

They argued that if they prevail on the Motion to Dismiss, then answering the discovery is an unnecessary burden. The judge denied their motion, and gave them 14 days to answer the Department's discovery.

Defendant Trevor Walker also argued his Motion to Dismiss. Because he had filed a new brief late Friday, the Judge gave the Department 14 days to file a response to the new brief. The judge will review the briefing and rule some time soon thereafter.

New motion to dismiss

2009-07-29T08:20:00.000-07:00

Catledge and Brimley's Motion for More Definite Statement was denied by Judge Wilper on July 13, 2009.

Their Motion to Seal was granted as to Exhibit V, a copy of a check, but was denied as to all else.

Catledge and Brimley, instead of filing an answer after their Motion for More Definite Statement was denied, have filed a Motion to Dismiss seeking to have the complaint dismissed. They argue that many of the counts are barred by a statute of limitations, that the Department failed to plead fraud with particularity, and that the Department failed to join certain indespensable parties. These motions have not yet been set for hearing.

Pending motions

2009-06-19T07:59:00.000-07:00

Defendants Thomson, Nagel and Cabezud have filed motions to dismiss the complaint. The Impact Defendants (Catledge, Brimley and the companies) have filed a Motion for More Definite Statement. A hearing on these motions was held on June 8th, 2009, and the Judge took them under advisement and should issue a ruling soon.

The Impact Defendants also moved to strike from the record certain documents filed by the Department in support of its opposition to the Motion for More Definite Statement. The Judge denied that motion.

The Impact Defendants have now filed a Motion to Seal the record so that the documents they sought to strike will not be available to the public. This motion has not yet been set for hearing.

May 28, 2009

2009-05-28T13:26:00.000-07:00

All Defendants have now either accepted service, or have been served.

Trevor Walker, Barbara Nagel, Steve Cabezud and John Thomson are all appearing pro se, that is, without a lawyer. Nagel, Cabezud and Thomson have not filed an answer, but instead moved to have the complaint dismissed for failure to plead with particularity. In other words, they are saying the complaint did not contain enough information about what the Department believes they did wrong for them to form an intelligent answer. The hearing on that motion is set for June 1, 2009, at 3:00 PM, in Boise, in front of Judge Wilper.

James Catledge and David Brimley also have not answered. They have filed a motion for more definite statement. This is similar to the motions to dismiss, except that Catledge and Brimley are asking for more information, rather than trying to have the case dismissed. This motion is set for hearing on June 8, 2009, in Boise, before Judge Wilper.

Catledge and Brimley are represented by the Boise law firm of Nevin, Benjamin and McKay, and by the Miami law firm of Diaz, Reus & Targ.

April 13, 2009

2009-04-13T10:35:00.000-07:00

The State of Idaho filed a lawsuit in this case on February 20, 2009, naming the following as defendants:

Derek Elliott
James Catledge
David Brimley
Steve Cabezud
Barbara Nagel
John Thomson
Trevor Walker
Sun Village Juan Dolio Associates
Impact, and Impact Net Worth

Answers are due by the parties no later than April 20, 2009. David Brimley has not yet been served. The Department is attempting to locate him, and when he is located, he will be served and will have 20 days to answer.

The complaint can be viewed by clicking the link at the right.

Last known whereabouts

2008-08-25T07:59:00.000-07:00

There are lots of interesting comments piling up under the previous post, some obviously from people in the know.

Does anyone know where Derek Elliott and James Catledge are? Where do they live? Where are their offices located? Are they there now, or have they been there recently?

What this case is about

2008-07-23T06:51:00.000-07:00

The Department began an investigation during November 2006. The inquiry focused on several issues including a) the offer and sale of investment interests sold in luxury resorts located in the Dominican Republic, b) the disclosures made to investors in the resort, and c) mortgage loan origination activities.

After lengthy negotiations, EMI Sun Village, Inc., Sun Village Juan Dolio, Inc., and Sun Village Juan Dolio Associates, LLC entered into a settlement agreement with the Idaho Department of Finance on July 19, 2007. James Catledge and Impact, Inc. entered into a separate settlement agreement with the Department on July 19, 2007. In part, the agreements call for the offer of rescission (refunds) to affected Idaho investors.

While the settlement orders called for rescission to be made by December 15, 2007, no such rescission offers were made until late in the first quarter of 2008. Few investors actually received refund payments as expected. The Department’s interest in this matter has not concluded and the Department is considering what further action may be necessary.