Nearly 100 affluent and prominent Utahns are struggling to fight off more than $7 million in claims filed against them in California Central Bankruptcy Court by the trustee of a company they once invested in.
To date, the six-year battle is not going their way.In the 1970s, many Utahns and Utah companies invested in a California limited partnership called Comark. Comark bought and sold stocks and securities. The company was apparently used as a tax shelter by the Utah investors.
When Utahns bought into the limited partnerships, they signed documents agreeing to pay Comark additional money if the company needed it, said Daniel L. Willick, special counsel for Comark trustee Sam Jonas.
The Utahns used those agreements, called "capital call provisions," to get larger tax deductions, he said. "Their tax deductions were based on them being at risk to contribute additional capital. That's why the provision was in the limited partnership agreement."
Comark went bankrupt in 1982, and the California Central Bankruptcy Court appointed a trustee to look for assets in the company to pay off creditors. Creditors have filed more than $20 million in claims against Comark.
The trustee turned to the investors, claiming that the capital call agreements they signed required them to turn money over to Comark to pay off Comark's creditors. "Over two-thirds of the limited partners settled with the trustee. The vast majority of the limited partners who haven't settled are the Utah affiliates," Willick said.
The Utahns, referred to in California court as the Utah affiliates, decided to fight the matter in court, he said.
Utahns claim that Comark misled them. They say Comark promised them it would never ask for the money; the money would only be used to buy specific money market instruments; the funds would all be returned to the investors after the maturity of the money market investments; and that any limited partner had the right not to pay the money called for.
Those are only a few of several dozen defenses Utahns are using in court to fight off more than 100 lawsuits filed against them by Comark.> Utahns have suffered several defeats. "The Utah affiliates have lost, at this point, I would venture to say close to 90 motions," Willick said.
James R. Brown, attorney for many of the Utah defendants, acknowledges the defeats but said most of the defeated motions dealt only with jurisdictional matters.
Some of the motions also sought to keep Willick from attempting to gather further information from Brown's clients, Willick said.
"I think it's accurate that they have been denied," Brown said. "But some are on appeal."
"I think the Utah affiliates thought if they litigated and litigated, they would be left alone," Willick said. "They have filed paper after paper and lost and lost and lost." > Comark has already created problems for Utah investors. Several years ago, the Internal Revenue Service deemed the company an abusive tax shelter. The IRS penalized many Utah investors for taking inappropriate tax breaks.
If Willick's courtroom victories continue, Utahns could be liable for much more than the $7 million they promised to pay Comark. Willick is seeking attorneys fees, court costs and at least six years interest on the $7 million. He is also suing several Utahns for fraud damages.
Willick believes he can legally collect all of the money from only some of the investors.> "Let's say there is a limited partner who owes $250,000 to Comark and we discover that the limited partner had a number of sub-investors. If you have four sub-investors and we can only find one, well it is our position that we can get the full $250,000 from the one we can find," Willick said.
Willick decided to seek fraud damages after learning that many of the Utah limited partners had sub-investors Comark didn't know about. A Utah investor who had a limited partnership in Comark often got his friends to invest with him without telling Comark, Willick said.> "Their hope was that this would insulate them from ever having to pay additional capital," he explained. > Willick claims that is fraud and he is seeking fraud damages.
Brown maintains "there has never been any fraud."