The opinion of the court was delivered by: Stephen V. Wilson United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Plaintiff-in-Interpleader Chase Investment Services Corp. ("Plaintiff" or "CISC") filed this interpleader action against several Defendants-in-Interpleader that had conflicting claims to the assets in a CISC securities brokerage account, Account No. CM2-303194 ("the Account" or "the CISC Account"). The Account was opened in late July 2009 by Defendant-in-Interpleader Jon Divens ("Divens") on behalf of Defendant-in-Interpleader the Law Offices of Jon Divens & Associates, LLC ("JDA").
Initially, the Account held no assets. However, after two transfers in September 2009, the Account held securities representing interests from three Collateralized Mortgage Obligations (collectively, "the CMOs").*fn1 The securities in the Account included: (1) a CMO designated as the Cobalt CBMS Series 2007-CS Class IO 00.02840 05/15/2046, CUSIP 1907DAG6, with a face value of $1,008,402,393 (hereinafter, "the Cobalt CMO"); (2) a CMO designated as the JPMCC Series 2007-CB19 Class X 00.01240 02/12/2049 MTG SEC, CUSIP 46630VAG7, with a face value of $235,250,000 (hereinafter, "the JPMCC Series CMO"); and (3) a CMO designated as the FNMA Series 2003-W19, Class 1-IO-1 0.33048% 11/25/2043 GTD Remic Pass Thru CTF Whole Loan, CUSIP 31393UA86, with a face value of $305,000,000 (hereinafter, the "FNMA Series CMO"). The three CMOs are interest-only CMOs, which provide the right to receive a portion of the interest payments on the mortgages owned by the CMO. The CMOs earn interest payments on a monthly basis. While the CMOs were in the CISC Account these interest payments were automatically deposited into the Account.
A. The Interpleader Action and Related Crossclaims
In or about late October 2009, CISC started to receive competing claims to the assets held in the Account. In response to those claims, CISC froze the Account on November 17, 2009. On December 14, 2009, CISC instituted this interpleader action naming the following parties who had asserted adverse claims to the assets in the Account: (1) Jon Divens, (2) Law Offices of Jon Divens & Associates, (3) Betts and Gambles Investments, Inc. and its affiliate Betts and Gambles Global Equities, LLC, (4) Midwest Royalties LLC, (5) Bryan Stallings, and (6) Amedraa LLC.
In January 2010, Midwest Royalties LLC informed CISC that Midwest Royalties LLC had been mistaken about the assets in the Account and that Midwest Royalties actually did not have any interest in the CMOs. Thus, Midwest Royalties was dismissed from this action on February 5, 2010. (Order, 02/05/10, Docket No. 55.) Also in January 2010, third-party Core Impact Consulting contacted CISC and asserted an interest in the JPMCC Series CMO held in the Account. Thus, CISC amended the Complaint-in-Interpleader on February 5, 2010 to add Core Impact Consulting as a Defendant-in-Interpleader. (Id.)
On January 22, 2010, Defendant-in-Interpleader Amedraa LLC ("Amedraa") answered the Complaint-in-Interpleader and asserted several crossclaims against JDA and Divens. (Docket No. 47.) Amedraa alleged that it was the owner of the FNMA Series CMO and that Amedraa had transferred the FNMA Series CMO to JDA in trust in January 2009 to hold in escrow. Amedraa alleged that JDA failed to return the FNMA Series CMO upon demand in February 2009 and that Divens absconded with the FNMA Series CMO, transferring it to several institutions until eventually it was transferred to the CISC Account. Amedraa sought return of the FNMA Series CMO, as well as the interest payments paid on the FNMA Series CMO while it was in JDA's possession.
Defendants-in-Interpleader Betts and Gambles Investments, Inc. and its affiliate Betts and Gambles Global Equities (collectively, "Betts and Gambles") asserted a similar cross-claim against Divens and JDA on February 12, 2010. (Docket No. 61.) Betts and Gambles alleged that it owned the Cobalt CMO and had transferred it to Divens in February 2009 to hold in escrow for a proposed sale of the Cobalt CMO to a third party. Betts and Gambles alleged that when the sale fell through, they demanded that Divens return the Cobalt CMO but he refused. Betts and Gambles alleged that Divens transferred the Cobalt CMO to several different financial institutions so as to hide it from Betts and Gambles until it finally ended up in the CISC Account. Betts and Gambles sought return of the Cobalt CMO as well as the interest that had accrued on the Cobalt CMO while it was in Divens's possession.
B. Prior Stipulations and Orders
Throughout the course of this litigation, several of the Defendants-in-Interpleader reached stipulations with Divens, JDA, and CISC regarding the assets in the Account. On February 2, 2010, the Court approved a Joint Stipulation between Bryan Stallings ("Stallings"), JDA, Divens and CISC, and ordered that a portion of the JPMCC Series CMO owned by Stallings be released from the Account to Stallings. Stallings was voluntarily dismissed from this action on February 2, 2010. (Order, Docket No. 51.)
On February 23, 2010, the Court approved a Joint Stipulation between Core Impact Consulting, JDA, Divens and CISC, and ordered that the remaining portion of the JPMCC Series CMO owned by Core Impact Consulting be released from the Account to Core Impact Consulting. (Order, Docket No. 72.) Core Impact Consulting was voluntarily dismissed from this action on March 8, 2010. (Docket No. 78.)
On February 23, 2010, the Court approved a Joint Stipulation between Amedraa, JDA, Divens, and CISC, and ordered that the FNMA Series CMO be released from the Account to Amedraa. (Order, Docket No. 71.) The parties stipulated that Amedraa owned the FNMA Series CMO, but could not agree as to who owned the interest that the FNMA Series CMO had earned while it was in JDA's possession. Both JDA and Amedraa assert adverse claims to the interest held in the CISC Account that is attributable to the FNMA Series CMO, as well as the interest earned on the FNMA Series CMO from January 2009 through October 2009 while it was in JDA's possession.
Finally, on April 14, 2010, the Court approved a Joint Stipulation between Betts and Gambles, JDA, Divens, and CISC, and ordered that the Cobalt CMO be released from the Account and transferred to Betts and Gambles. (Order, Docket No. 85.) Although the parties stipulated that Betts and Gambles owned the Cobalt CMO, the parties could not agree as to who owned the interest that the FNMA Series CMO had generated while it was in JDA and Divens's possession. Both JDA and Betts and Gambles assert adverse claims to the interest held in the CISC Account that is attributable to the Cobalt CMO, as well as the interest earned from the Cobalt CMO from February 2009 through October 2009 while the FNMA Series CMO was in Divens's possession.
On March 3, 2010, the Court granted CISC's unopposed Motion to Deem the Account Deposited with the Court ("Motion to Interplead") and discharged CISC from the action. (Order, Docket No. 75.) On June 10, 2010, the Court granted in part CISC's request for attorneys' fees incurred in connection with the interpleader action and awarded CISC fees of $24,834.90, to be paid from the assets in the Account.
C. Remaining Issues for Trial
In sum, as of the trial date in June 2010, the only remaining disputes were: (1) whether the interest earned on the Cobalt CMO (both while the Cobalt CMO was in the CISC Account and prior to that time when it was in Divens's possession) belongs to JDA or Betts and Gambles; and (2) whether the interest earned on the FNMA Series CMO (both while the FNMA Series CMO was in the CISC Account and prior to that time when it was in JDA's possession) belongs to JDA or Amedraa LLC.
The Court held a bench trial on these issues on June 24 and 25, 2010. The Court heard testimony from James Savor on behalf of Amedraa and Jon Divens on behalf of JDA and himself. Additionally, direct testimony declarations of Evelyn Aardema, one of the member-managers of Amedraa, LLC, and Seth Beoku Betts, the president of Betts and Gambles Investments, Inc., were admitted without objection. Finally, the Court permitted the parties to submit post-trial briefing on an issue of law regarding JDA's status as an entitlement holder under the California Commercial Code.*fn2
Having thoroughly examined the evidence and the testimony of the witnesses, and having considered the arguments and briefs of all parties, the Court makes the following findings of fact and conclusions of law.
As a preliminary matter, the Court notes that resolution of many of the factual disputes between the parties turns in large part on the credibility of the witnesses. In that regard, the Court finds that Divens's testimony was wholly incredible. The Court does not believe that Divens had any agreement with any representative or agent of Betts and Gambles or Amedraa that entitled Divens or JDA to the interest generated by the Cobalt CMO or the FNMA Series CMO. Instead, Divens acquired the CMOs under the false promise that he would act solely as an escrow agent with regard to the CMOs. Once the CMOs were in Divens's possession, he absconded with the assets, moving them to different accounts at different institutions so they could not be located and stealing the interest generated from the CMOs for his own personal use. In short, the Court finds that Divens created a scheme to defraud Betts and Gambles and Amedraa and to steal their assets. His testimony is not credible.
In contrast, having observed the witness, the Court finds that James Savor's testimony was credible. Moreover, Savor's testimony was corroborated by the exhibits admitted at trial. With those considerations in mind, the Court makes the following factual findings.
A. The Cobalt CMO (Betts and Gambles)
Prior to February 2009, Betts and Gambles purchased and owned a collateralized mortgage obligation issued by CW Capital, referred to as CW Capital Cobalt Series 2007-C3 CL, CUSIP number 19075DAG6 ("the Cobalt CMO"). Divens does not dispute that Betts and Gambles is, and at all relevant times was, the owner of the Cobalt CMO. The face value of the Cobalt CMO is $1,008,402,393; however, the actual value of the Cobalt CMO is considerably less.
According to its terms, the Cobalt CMO provided for a monthly interest payment of $31,014.42 through its maturity date of May 15, 2046. In fact, however, the amount of interest generated by the Cobalt CMO varied monthly. From February 2009 through April 2010, the interest generated by the Cobalt CMO varied from approximately $23,500 to $30,500 per month.
In early January 2009, Betts and Gambles entered into a contract to sell the Cobalt CMO to a company called Up Right Holdings for a purchase price of $60,504,143.58. In connection with the proposed sale, the principal of Up Right Holdings, Jaime Williams ("Williams"), suggested to the president of Betts and Gambles, Seth Beoku Betts ("Mr. Betts"), that the parties use Jon Divens as the escrow agent to hold the Cobalt CMO while Up Right Holdings arranged financing for the sale. Mr. Betts agreed.
On or about February 3, 2009, Betts and Gambles transferred the Cobalt CMO from its securities account at Pension Financial Services to JDA's Business Services Account at UBS (hereinafter, "the JDA UBS Account"), which was controlled by Divens. Divens's only obligation was to hold the Cobalt CMO escrow pending the sale of the asset to Up Right Holdings. Neither Up Right Holdings nor Divens provided any consideration for the transfer. No written escrow agreement or escrow instructions were ever entered into between Betts and Gambles and Divens.
Ultimately, Up Right Holdings was unable to finance the purchase of the Cobalt CMO. On March 6, 2010, at the request of Mr. Betts, counsel for Betts and Gambles, Derek Roberson, sent Divens a letter indicating that Up Right Holdings was unable to arrange financing and could not provide the advance payment required to purchase the Cobalt CMO. Roberson further stated that Betts and Gambles had no contractual or other obligation to enter the Cobalt CMO into any trading platform and had not consented to the investment of the Cobalt CMO in any trading platform. Roberson demanded the immediate return of the Cobalt CMO to Mr. Betts at the originating securities account at Pension Financial Services and provided wiring coordinates. Divens did not respond to the March 6, 2009 letter.
On March 10, 2009, Roberson sent Divens a letter via fax, again demanding that Divens immediately return the Cobalt CMO to Mr. Betts's account. Divens did not respond.
Also in March 2010, Mr. Betts called Divens and left several messages on his voicemail asking Divens to return his calls. Mr. Betts also sent Divens several text messages indicating that Betts and Gambles was trying to reach him regarding the Cobalt CMO. Divens never returned any of Mr. Betts's calls.
On May 5, 2009, counsel for Betts and Gambles, John D. Kelner, sent another letter to Divens demanding the return of the Cobalt CMO to Betts and Gambles. The letter indicated that if the Cobalt CMO was not returned within 30 days, Betts and Gambles would file a civil complaint against Divens for theft. Divens did not respond.
Divens testified that when he first received the Cobalt CMO in the JDA UBS Account in February 2009, Williams told him that the Cobalt CMO belonged to her and that she wanted to place the Cobalt CMO into trade. Divens testified that when he initially received the Cobalt CMO he did not know anything about Betts and Gambles. However, Divens also testified that within "a week or a month" of the transfer of the Cobalt CMO to JDA's UBS account, Williams told him that, in fact, Betts and Gambles was the owner of the Cobalt CMO and that Williams was a broker trying (unsuccessfully) to purchase the Cobalt CMO from Betts and Gambles. Thus, even if the Court credits Divens's testimony that he did not know initially that Betts and Gambles owned the Cobalt CMO, as of March 6, 2009, when Betts and Gambles contacted Divens demanding the return of the Cobalt CMO, Divens knew that Betts and Gambles was the owner of the Cobalt CMO and that Up Right Holdings could not generate the funds to purchase it.
Divens testified that after he learned about Betts and Gambles in February or March 2009, Betts and Gambles orally agreed on a phone call with Divens that Divens could place the Cobalt CMO into a trade program. The Court does not find this testimony credible. Divens has not presented any evidence, other than his self-serving testimony, that any such agreement existed.*fn3 Furthermore, Divens's testimony is flatly contradicted by the letters Betts and Gambles sent to Divens on March 6, 2009, March 10, 2009, and April 5, 2009, in which Betts and Gambles's counsel clearly indicated that Betts and Gambles "has never given its consent to the investment of its CMO into any such [trade] platform" and demanded return of the Cobalt CMO. The Court finds that Betts and Gambles never authorized Divens to take any action other than hold the Cobalt CMO in escrow pending the proposed sale to Up Right Holdings.
On or about July 15, 2009, Betts and Gambles filed a civil Complaint against Divens in the Circuit Court for Palm Beach County Florida, Case No. 2009 CA 016734 XXXX MB for breach of contract, replevin, fraud and civil theft ("the Florida Complaint"). The complaint sought damages in the amount of $60,504,143.58, which represents the proposed purchase price of the Cobalt CMO. The Court takes judicial notice of the Florida Complaint.
On October 6, 2009, the Florida Circuit Court entered a judgment in favor of Betts and Gambles and against Jon Divens in the amount of $60,504,143.58. On November 25, 2009, the Superior Court of Los Angeles County in Case No. BS123564 entered a Judgment on the Sister-State Judgment from the Florida Court in the amount of $60,504,143.58 plus post-judgment interest in excess of $400,000. The Court takes judicial notice of these judgments.
In April 2010, Divens stipulated to return the Cobalt CMO to Betts and Gambles while this action was pending. On April 16, 2010, the Court entered an order authorizing the transfer of the Cobalt CMO from Divens's CISC Account to Betts and Gambles. The transfer was accomplished on April 26, 2010. Pursuant to an agreement between Divens and Betts and Gambles, once the transfer of the Cobalt CMO was complete Betts and Gambles acknowledged partial satisfaction of the judgments against Divens in the amount of $55 million.
Although Betts and Gambles has recovered the Cobalt CMO, it has not recovered any of the interest generated from the Cobalt CMO while it was in Divens's possession, from February 3, 2009 to April 26, 2010. During this period, the Cobalt CMO generated the following amount of interest:
From February 2009 to September 2009, Divens transferred the Cobalt CMO from his UBS Account to several other securities accounts at different institutions prior to moving the Cobalt CMO to the CISC Account.*fn4
From February 2009 to the end of October 2009, Divens received a total of $241,980.43 in interest from the Cobalt CMO. Divens admitted that he never paid any of this interest to Betts and Gambles. Divens further testified that at various points between February and October 2009, he transferred the interest earned on the Cobalt CMO out of the various securities accounts where the Cobalt CMO was held and into his business account at Bank of America.*fn5 Divens testified that he used these interest payments for his "personal use."
In mid-November 2009, CISC froze the CISC Account. From November 2009 to April 26, 2010, when the Cobalt CMO was returned to Betts and Gambles, the interest earned on the Cobalt CMO accumulated in the CISC Account along with interest earned from other CMOs held in the Account. Pursuant to a stipulation by all parties, the Court finds that 69% of the funds currently held in the CISC Account are attributable to interest earned on the Cobalt CMO.
B. The FNMA Series CMO (Amedraa LLC)
Amedraa LLC ("Amedraa") was formed in 2008 for the purpose of investing in and owning securities, including Collateralized Mortgage Obligations ("CMOs").*fn6 On or about July 29, 2008, Amedraa purchased a CMO issued by the Federal National Mortgage Association and identified as FNMA Series 2003-W19, Class 1-IO-1 0.33048% 11/25/2043 GTD Remic Pass Thru CTF Whole Loan, CUSIP 31393UA86, with a face value of $305,000,000 (hereinafter, the "FNMA Series CMO"). Amedraa paid $2 million for the FNMA Series CMO. After the purchase, Amedraa held the FNMA Series CMO as a book entry with Pension Securities Transworld Financial in Dallas, Texas.
As stated above, the FNMA Series CMO is an interest-only CMO, which entitles the owner of the CMO to a portion of the interest payments on the mortgages owned by the CMO. The interest is paid on a monthly basis. From January 2009 to April 2010, the interest earned by the FNMA Series CMO ranged from approximately $13,200 to $16,800 per month.
In December 2008, Amedraa entered into a Joint Venture Agreement with LNJ Enterprise, LLC ("LNJ"). The Joint Venture Agreement authorized LNJ and its Vice President, James Savor ("Savor"), to act as Amedraa's agent for purposes of placing the FNMA Series CMO with a broker for investment purposes. Prior to December 2008, Savor did not have extensive experience with investing or trading CMOs. However, in talking with others about investing CMOs, Savor was forewarned not to do business with a man named Frank Wilde ("Wilde") or a company called Matrix Holdings.
1. The Asset Management Agreement Between LNJ and Wiseguy's Investments LLC (WGI)
In December 2008, Savor entered into negotiations with Steve Woods, the principal of Wiseguy's Investments LLC ("WGI"), regarding entering the FNMA Series CMO into an investment program. Woods represented to Savor that WGI had established credit lines and relationships with various financial institutions that would allow WGI to use the value of FNMA Series CMO combined with other assets to buy bank debt, which debt could then be sold for a greater value than the book value of the CMO. The strategy was to use the CMO in a "managed buy-sell program," whereby the trader, WGI, would use the value of the CMO along with other assets to buy bank debt at a wholesale rate, for example 60 cents on the dollar, and then resell the debt to a third party for a higher rate, for example 65 cents on the dollar. WGI would then split the profit from the sale with LNJ.
On December 8, 2008, LNJ entered into a written Financial Consulting and Asset Management Agreement with WGI (hereinafter "the Asset Management Agreement"). The Asset Management Agreement provided that LNJ would deliver the FNMA Series CMO (along with two other CMOs controlled by LNJ) to WGI. WGI would then "identify and manage the entry of [the CMOs] into one or more investment opportunities."
Pursuant to the Asset Management Agreement, WGI agreed to make an advance payment of 1% of the face value of the CMOs to LNJ within 5 business days of LNJ's delivery of the CMOs to WGI. Thereafter, LNJ and WGI would split any profits generated by the investment programs according to a percentage schedule detailed in the Asset Management Agreement. Savor testified that the advance payment was critical to the transaction because it provided the owners of the CMOs with some security -- that is, even if the trading programs were not profitable, the owners of the CMOs would have at least recouped a large portion of their original investment through the advance payment. The Asset Management Agreement was signed by Steve Woods of WGI and Linda Starr, the President of LNJ.
The Asset Management Agreement made some mention of the name "Matrix Holdings/WGI." When Savor noticed this name in the contract, he questioned Woods extensively as to whether Frank Wilde had any involvement with the Asset Management Agreement. Savor told Woods that he wanted nothing to do with Wilde. Bethel Harris ("Harris"), counsel for LNJ, also questioned Woods to make sure that Wilde was not involved in the transaction. Woods unequivocally told Savor and Harris that Wilde was not involved.
In connection with the Asset Management Agreement, Woods suggested to Savor that LNJ transfer the FNMA Series CMO to the escrow account of the Law Offices of Jon Divens & Associates LLC ("JDA") pending WGI's payment of the 1% advance payment. Divens is the sole member of JDA and is a licensed California attorney. Savor had never done business with Divens or JDA in the past.
On December 31, 2008, LNJ, WGI and JDA entered into an Escrow Agreement. The Escrow Agreement provides that LNJ will deposit certain CMOs into the escrow account of JDA. It further provides that LNJ and WGI agree that an advance payment of 1% of the face value of the CMOs would be paid into the escrow account within one business day of delivery of the CMOs into the account. Once WGI deposited the advance payment in escrow, JDA was required to wire the advance payment to LNJ and then release the CMOs to WGI so that the CMOs could be used one or more investment programs. Paragraph 4 of the Escrow Agreement provides in relevant part:
[T]he Escrow Agent's only responsibility and obligation to the Client [LNJ] and the Company [WGI] shall be to hold the CMOs and disburse the Advance Payment . . . . In the event that the CMOs are delivered to the escrow account and the Advance Payment is not deposited by the Company [WGI], it shall be the Escrow Agent's duty to return the CMOs via DTC transfer to the coordinates given by the Client [LNJ]. (Tr. Exh. 4 [December 2008 Escrow Agreement].) The Escrow Agreement provides that no oral instructions would be honored. Finally, the Escrow Agreement provides that WGI would be solely responsible for all fees associated with the escrow, distribution of the advance payment, and delivery of the CMOs to WGI.
Divens signed the Escrow Agreement on December 22, 2008. Steve Woods on behalf of WGI and Linda Starr on behalf of LNJ signed the Escrow Agreement on December 31, 2009 and December 21, 2009, respectively.
Divens admitted at trial that his role with regard to the CMOs controlled by LNJ, including the FNMA Series CMO, was to act as an escrow agent until the advance payment was disbursed to LNJ. Divens testified: "Essentially, [I] was going to keep the CMOs under my control until a payment had been made." Further, Divens admitted that he had no agreement with LNJ prior to March 2009 that authorized him to invest or trade the FNMA Series CMO.*fn7
3. WGI Fails to Make the Advance Payment
On January 5, 2009, LNJ received confirmation that the FNMA Series CMO had been transferred successfully to the Morgan Stanley securities account controlled by Divens and JDA (hereinafter, "the JDA Morgan Stanley Account"). In the first week of January 2009, Savor and Harris began making demands upon Woods for delivery of the 1% advance payment. However, Woods stalled Savor and Harris and did not give an explanation as to why the advance payment had not yet been delivered into the escrow account.
On January 14, 2009, Savor learned from a broker named Sharon Roitman that the JDA Morgan Stanley Account had been suspended. Savor immediately contacted Divens to learn what had happened to the CMOs in the account. Divens told Savor that the JDA Morgan Stanley Account had been shut down and that the CMOs were transferred to a UBS Financial Services Account controlled by Divens and JDA (hereinafter, the "JDA UBS Account"). At that point, because the advance payment had not been made and because Divens had moved the CMOs without notifying Savor, Savor made an oral request for the return of the CMOs. Divens told Savor that he would have to speak with Woods about returning the CMOs.
When Savor spoke to Woods, Woods told him that WGI had been unable to place the CMOs in a trading program and that WGI could not perform under the Asset Management Agreement. Woods told Savor to ...