Case: 22-11226 Document: 00516619016 Page: 40 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 1 Date Filed: 01/25/2023
`
`No. 22-11226
`
`In the
`United States Court of Appeals
`for the
`Fifth Circuit
`
`SECURITIES AND EXCHANGE COMMISSION,
`Plaintiff – Appellee,
`v.
`TIMOTHY BARTON,
`Defendant – Appellant.
`
`From the United States District Court
`for the Northern District of Texas
`Honorable Brantley Starr, U.S. District Judge
`Cause No. 3:22-cv-2118-X
`
`Receiver’s Motion to Dismiss
`
`Brown Fox PLLC
`Charlene C. Koonce
`State Bar No.11672850
`8111 Preston Road, Suite 300
`Dallas, TX 75225
`T: (214) 327-5000
`F: (214) 327-5001
`charlene@brownfoxlaw.com
`
`Counsel for Receiver Cortney C. Thomas
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 41 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 2 Date Filed: 01/25/2023
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`INTRODUCTION
`On December 21, 2022, Appellant Timothy Barton filed a notice of appeal of
`
`I.
`
`the Order Granting Receiver’s Motion for sale of the Rock Creek Property (the
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`“Order”). No appellate jurisdiction exists for an interlocutory appeal of this Order
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`and the Receiver accordingly moves the Court to dismiss this appeal. In support, he
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`respectfully shows the Court as follows:
`
`BACKGROUND
`The SEC filed suit against Barton for securities fraud. Dkt.11 Through its
`
`II.
`
`investigation, the SEC discovered “Barton had been commingling, transferring,
`
`dissipating, and encumbering investor funds and assets purchased with investor
`
`funds,” while at the same time using investor funds to “pay personal expenses of
`
`Barton and his family, including exorbitant credit card bills, rent, and to buy a
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`plane.” Dkt. 6 at 2, 7. To preserve the limited assets available to repay the investors
`
`whose funds Barton had misappropriated, the SEC filed a Motion for Appointment
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`of Receiver (“Motion to Appoint”). Dkt. 6.2
`
`On October 18, 2022, the District Court entered the Order Appointing
`
`Receiver (“Receivership Order”) Dkt. 29. The factual basis for the Receivership
`
`1 References to the District Court’s docket are referenced above as “Dkt._.”
`2 Barton was also indicted on seven counts of wire fraud, one count of conspiracy to commit wire
`fraud, and one count of securities fraud due to his alleged misuse of over $26 million acquired
`from investors.
`
`‒2‒
`
`

`

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`Order was Barton’s misappropriation of investor funds, which the SEC’s evidence
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`demonstrated he misused to, “among other things, purchase properties in the name
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`of other entities he controlled, pay undisclosed fees and commissions, pay expenses
`
`associated with unrelated real estate development projects, and fund his lifestyle.”
`
`Dkt. 6 at 1; Dkt. 7 at 10–15.
`
`The Receivership Order directs the Receiver to “[e]nter into and cancel
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`contracts . . . as the Receiver deems necessary or advisable” and “[t]o pursue, resist,
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`defend, compromise or otherwise dispose of all . . . claims[] and demands which
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`may now be pending or which may be brought by or asserted against the
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`Receivership Entities.” Receivership Order ¶¶ 6(H), 6(J). In accordance with the
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`further orders and governing statutes, such as 28 U.S.C. §§ 2001 and 2004, the
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`Receivership Order also authorized the Receiver to sell real property owned by the
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`Receivership Entities. Receivership Order ¶ 39.
`
`On December 2, 2022, in accordance with 28 U.S.C. § 2001, the Receivership
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`Order, and a subsequent Order Governing Administration of Receivership Estate,
`
`(Dkt. 63)3 the Receiver filed a Motion for Appointment of Appraisers, Approval of
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`3 “Sale of Real Property, if any, shall be made pursuant to 28 U.S.C. § 2001 with further motions
`and notices filed and published as required by that statute. If multiple offers are received from
`disinterested purchasers for any one property, the Court hereby concludes that the Receiver may,
`in his discretion, utilize any one or more of such offers as one or more of the “appraisals” required
`by § 2001(b). Similarly, the Receiver may in his discretion utilize informal “opinions of value”
`received from respected brokers in the respective industries related to the subject property, as one
`or more of the “appraisals” required by § 2001(b).” Order Governing Administration of
`Receivership Estate ¶ (D)(2).
`
`‒3‒
`
`

`

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`Appraisals of Rock Creek Property, and Setting Hearing Regarding Approval of Sale
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`of Rock Creek Property (“Motion to Approve Sale”). Dkt. 76. Following an
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`objection filed by Defendant Barton (Dkt. 91), the Receiver’s Notice of Publication
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`regarding the sale (Dkt. 100, 101) and the Receiver’s Reply in Support of the Motion,
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`(Dkt. 93), the District Court granted the Motion to Approve Sale, in part, by
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`appointing the appraisers and accepting the appraisals submitted with the Motion to
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`Approve Sale. Dkt.99. On December 19, 2022, the District Court conducted a
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`hearing to consider approving the sale. Following the hearing, on December 20,
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`2022, the District Court entered an order approving the sale (Dkt. 104) (the “Rock
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`Creek Order”). True and correct copies of the Motion to Approve Sale and the Rock
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`Creek Order are attached to this Motion.
`
`On December 21, 2022, Barton filed a notice of appeal, seeking this Court’s
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`review of the Rock Creek Order. Dkt. 108. No jurisdiction exists for the appeal.
`
`III. ARGUMENT
`“Congress has given the courts of appeals jurisdiction over interlocutory
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`appeals only in certain, limited circumstances.” Complaint of Ingram Towing Co.,
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`59 F.3d 513, 515 (5th Cir. 1995). The exceptions are found at 28 U.S.C. § 1292,4
`
`4 “(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have
`jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the
`United States District Court for the District of the Canal Zone, the District Court of Guam, and the
`District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying,
`refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a
`direct review may be had in the Supreme Court; (2) Interlocutory orders appointing receivers, or
`
`‒4‒
`
`

`

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`with section 1292(a)(2) governing appeals of certain orders related to receiverships.
`
`Although the statue is not a model of clarity, it does not provide appellate jurisdiction
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`“mid-stream” orders issued in the ordinary course of a receivership, like the Rock
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`Creek Order.
`
`“Courts narrowly construe § 1292(a)(2) ‘to permit appeals only from the three
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`discrete categories of receivership orders specified in the statute, namely [1] orders
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`appointing a receiver, [2] orders refusing to wind up a receivership, and [3] orders
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`refusing to take steps to accomplish the purposes of winding up a receivership.’” US
`
`v. Solco I, LLC, 962 F.3d 1244, 1250 (10th Cir. 2020) (quoting In re Pressman-
`
`Gutman Co., 459 F.3d 383, 393 (3d Cir. 2006)). Every circuit to address the meaning
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`of § 1292(a)(2)’s ‘refusing orders’ interprets it to “permit[ ] appeals only from orders
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`‘refusing . . . to take steps to accomplish the purposes of [winding up
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`receiverships].’” Netsphere, Inc. v. Baron, 799 F.3d 327, 331-32 (5th Cir. 2015)
`
`(quoting SEC v. Am. Principals Holdings, Inc., 817 F.2d 1349 (9th Cir. 1987))
`
`(brackets in original).5
`
`refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such
`as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or
`the judges thereof determining the rights and liabilities of the parties to admiralty cases in which
`appeals from final decrees are allowed.” 28 U.S.C. § 1292(a).
`5 Indeed, although not explicit, Netsphere indicates that sales of property by a receiver are not
`appealable under 28 U.S.C. § 1292. “In United States v. “A” Manufacturing Co., Inc., we
`addressed the question of whether an order by a receiver confirming a sale after the fact is
`appealable under section 1292(a)(2). We said it was, relying mainly on cases interpreting the final-
`judgment doctrine. But in doing so, we used expansive language to describe section 1292(a)(2),
`saying it ‘provides for appeals from interlocutory orders which take steps to accomplish the
`
`‒5‒
`
`

`

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`Because of the exceptional nature of the relief, Congress made orders
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`appointing receivers immediately appealable. Netsphere, 799 F.3d at 332.
`
`However, orders “entered in the normal course of a receivership,” are treated
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`differently. Id. As recently observed by the Eleventh Circuit, the difference between
`
`28 U.S.C. §§ 1292(a)(2) and 1292(a)(1) reveals the different treatment afforded
`
`interlocutory appeals of orders related to injunctions and orders related to
`
`receiverships:
`
`“That provision [1292(a)(1)] more broadly confers jurisdiction over
`orders ‘granting, continuing, modifying, refusing or dissolving
`injunctions, or refusing to dissolve or modify injunctions.’ 28 U.S.C. §
`1292(a)(1). It thereby expressly authorizes immediate appeals not only
`of front- and back-end orders ‘granting,’ ‘refusing,’ or ‘dissolving’
`injunctions, but also of mid-stream orders ‘continuing,’ ‘modifying,’ or
`‘refusing to dissolve or modify’ them. The contrast is unmistakable.
`Had Congress wanted to authorize the same robust interlocutory
`appellate review of interim receivership-related orders, it could have
`included similar language in § 1292(a)(2). It didn’t, and its decision in
`that respect is ‘telling.’”
`SEC v. Complete Bus. Sols. Group, Inc., 44 F.4th 1326, 1331–32 (11th Cir. 2022).
`
`“To conclude otherwise would mean that virtually any order of the receiver
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`within the scope of its jurisdiction would be potentially appealable. Such a piecemeal
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`approach to the appellate process would be disruptive and costly, both to the parties
`
`and the courts.” Id. at 332–33 (internal quotation omitted); see also United States v.
`
`purpose of receiverships such as directing the sale or disposal of property.’ This language arguably
`conflicts with the reading of section 1292(a)(2) we have just put forward.” Netsphere, Inc. v.
`Baron, 799 F.3d 327, 333 (5th Cir. 2015) (internal citation omitted).
`
`‒6‒
`
`

`

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`Antiques Ltd. P’ship, 760 F.3d 668, 671–72 (7th Cir. 2014) (concluding no
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`jurisdiction existed over order approving receiver’s sale of property, because “that
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`would both strain the statutory language and make anything the receiver did
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`appealable immediately, which could flood the courts of appeals with interlocutory
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`appeals.”). This Court found it lacked jurisdiction over other orders issued in the
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`course of a receivership, such as orders authorizing the execution of a lease by a
`
`receiver.6
`
`The Rock Creek Order does not fall within any of the three discrete categories
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`of orders for which interlocutory jurisdiction exists. The Rock Creek Order
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`approves a purely administrative matter, the sale of real estate. Approvals of other
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`similar sales are likewise pending before the District Court. See Dkt.110. More will
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`be filed. Entertaining this appeal will open the flood gates in this case, and in future
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`receiverships, for Defendant Barton to appeal every single administrative order.
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`Indeed, Defendant Barton has indicated his intent to do just that, by appealing the
`
`Order Governing Administration of Receivership Estate in Appeal No. 22-11132,
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`and appealing an Order Ratifying a Settlement Agreement, Dkt. 109, in Appeal No.
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`22-11242.
`
`The Court should dismiss this appeal.
`
`6 See Belleair Hotel Co. v. Mabry, 109 F.2d 390, 391 (5th Cir. 1940) (“The order appealed from
`dealt with an administrative matter within the discretion of the district court, and it does not fall
`within that class of interlocutory orders from which an appeal may be taken.”).
`
`‒7‒
`
`

`

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`IV. CONCLUSION
`The Receiver respectfully requests that the Court dismiss this appeal for lack
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`of jurisdiction and requests such other relief to which he may show himself entitled.
`
`Respectfully submitted,
`
`By: /s/ Charlene C. Koonce
`Charlene C. Koonce
` State Bar No. 11672850
`charlene@brownfoxlaw.com
`BROWN FOX PLLC
`8111 Preston Road, Suite 300
`Dallas, Texas 75225
`T: (214) 327-5000
`F: (214) 327-5001
`
`Attorneys for Receiver Cortney C.
`Thomas
`
`‒8‒
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 48 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 9 Date Filed: 01/25/2023
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`CERTIFICATE OF COMPLIANCE
`I certify that this Motion complies with the type-volume limit of FED.
`
`1.
`
`R. APP. P. 21(d) because, excluding the words that need not be counted, it contains
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`1,697 words.
`
`2.
`
`This Motion complies with the typeface requirements of FED. R. APP.
`
`P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because it has
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`been prepared in a proportionally-spaced typeface using Microsoft Word 365 in
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`Times New Roman 14-point font in text and Times New Roman 12-point font in
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`footnotes.
`
`/s/ Charlene Koonce
`Charlene Koonce
`
`CERTIFICATE UNDER ECF FILING STANDARDS
`Pursuant to paragraph A(6) of this Court’s ECF Filing Standards, I certify that
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`(1) required privacy redactions have been made (see Local Rule 25.2.13); (2) the
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`electronic submission is an exact copy of the paper document (see Local Rule
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`25.2.1); and (3) the document has been scanned for viruses with the most recent
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`version of a commercial virus scanning program and is free of viruses.
`
`/s/ Charlene Koonce
`Charlene Koonce
`
`‒9‒
`
`

`

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`Case 3:22-cv-02118-X Document 76 Filed 12/02/22 Page 1 of 7 PageID 2355
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`SECURITIES AND EXCHANGE
`COMMISSION,
`
`
`Plaintiff,
`
`
`v.
`
`TIMOTHY BARTON,
`CARNEGIE DEVELOPMENT, LLC,
`WALL007, LLC,
`WALL009, LLC,
`WALL010, LLC,
`WALL011, LLC,
`WALL012, LLC,
`WALL016, LLC,
`WALL017, LLC,
`WALL018, LLC,
`WALL019, LLC,
`HAOQIANG FU (A/K/A MICHAEL FU),
`STEPHEN T. WALL,
`
`
`Defendants,
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`RECEIVER’S MOTION FOR APPOINTMENT OF APPRAISERS, APPROVAL OF
`APPRAISALS OF ROCK CREEK PROPERTY, AND SETTING HEARING
`REGARDING APPROVAL OF SALE OF ROCK CREEK PROPERTY
`
`
`
`
`
`
`No. 3:22-cv-2118-X
`
`
`DJD LAND PARTNERS, LLC, and
`LDG001, LLC,
`
`
`Relief Defendants.
`
`
`
`Cort Thomas, as the court appointed Receiver, respectfully moves the Court as follows:
`
`SUMMARY
`
`In compliance with the Court’s Order Appointing Receiver (the “Receivership Order”)
`
`and 28 U.S.C. § 2001, the Receiver requests appointment of three appraisers, approval of the
`
`appraisals, and a hearing regarding approval of the sale of certain property.
`
`
`
`
`
`‒ 1 ‒
`
`

`

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`FACTUAL SUMMARY
`
`1.
`
`On October 18, 2022, the Court entered an Order Appointing Receiver (the
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`“Receivership Order”) by which Cortney C. Thomas was appointed as Receiver for certain entities
`
`(the “Receivership Entities”). The Court directed the Receiver to take possession and control of
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`all Receivership Property and Receivership Records. Receivership Order ¶¶ 6, 16, 17.
`
`2.
`
`On November 16, 2022, the Court entered the Order Governing the Administration
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`of the Receivership (“Administrative Order”) which also established procedures in conformity 28
`
`U.S.C. § 20011 for sales of real property.
`
`3.
`
`In a Supplemental Order, the Court concluded that SF Rock Creek, LLC is a
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`“Receivership Entity.” [Dkt. 62].
`
`4.
`
`Pursuant to the Receivership Order and in accordance with the Administrative
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`Order, the Receiver listed 4107 Rock Creek Drive, Dallas, Texas 75204 (the “Property”) for sale
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`through Dan Rhodes of The Rhodes Group at Compass. (In the initial days of his appointment,
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`the Receiver discovered that Defendant Barton, through SF Rock Creek, had also entered a listing
`
`
`1 “(a) Any realty or interest therein sold under any order or decree of any court of the United States shall be sold as a
`whole or in separate parcels at public sale at the courthouse of the county, parish, or city in which the greater part of
`the property is located, or upon the premises or some parcel thereof located therein, as the court directs. Such sale
`shall be upon such terms and conditions as the court directs. Property in the possession of a receiver or receivers
`appointed by one or more district courts shall be sold at public sale in the district wherein any such receiver was first
`appointed, at the courthouse of the county, parish, or city situated therein in which the greater part of the property in
`such district is located, or on the premises or some parcel thereof located in such county, parish, or city, as such court
`directs, unless the court orders the sale of the property or one or more parcels thereof in one or more ancillary districts.
`(b) After a hearing, of which notice to all interested parties shall be given by publication or otherwise as the court
`directs, the court may order the sale of such realty or interest or any part thereof at private sale for cash or other
`consideration and upon such terms and conditions as the court approves, if it finds that the best interests of the estate
`will be conserved thereby. Before confirmation of any private sale, the court shall appoint three disinterested persons
`to appraise such property or different groups of three appraisers each to appraise properties of different classes or
`situated in different localities. No private sale shall be confirmed at a price less than two-thirds of the appraised value.
`Before confirmation of any private sale, the terms thereof shall be published in such newspaper or newspapers of
`general circulation as the court directs at least ten days before confirmation. The private sale shall not be confirmed if
`a bona fide offer is made, under conditions prescribed by the court, which guarantees at least a 10 per centum increase
`over the price offered in the private sale. 28 U.S.C.A. § 2001.
`
`
`
`
`‒ 2 ‒
`
`

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`agreement on October 17, 2022 related to the Property). See Declaration of Cort Thomas
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`(“Thomas Dec.”) included in the Appendix at pp. 1-3.
`
`A.
`
`SALE OF ROCK CREEK PROPERTY
`
`5.
`
`On November 16, 2022, subject to the Court’s approval, the Receiver entered into
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`a contract to sell the Property, “AS IS” for One Million Four Hundred Thousand Dollars
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`($1,400,000), to JNJ Group, LLC. A true and correct copy of the real estate contract is attached
`
`as Exhibit A (the “Contract”). App. pp. 5-22. JNJ Group, LLC is not related to, nor controlled by
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`any of the parties to this lawsuit, and is not related to, nor controlled by the Receiver, or any of his
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`agents, employees, or attorneys.2 Thomas Dec. ¶ 3; App. p. 1.
`
`6.
`
` Subject to the Court’s approval, the closing is scheduled for December 28, 2022.
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`Although the closing date may be extended by mutual agreement, if the buyer does not consent to
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`extend the sale, the Buyer is entitled to terminate the Contract and receive a full refund of his
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`$15,000 earnest money deposit. Thomas Dec., ¶ 5; App. pp. 1; 17; 22.
`
`7.
`
`The Receiver seeks permission from this Court to sell the Property pursuant to the
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`Contract, and in accordance with the Administration Order and 28 U.S.C. § 2001.
`
`8.
`
`In accordance with this Court’s Orders and 28 U.S.C. § 2001 the Receiver obtained
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`three independent appraisals of the Property. True and correct copies of the three appraisals are
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`included in the Appendix as Exhibits B-1, B-2, and B-3. App. pp. 23-43; 44-70; and 71-94. The
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`Receiver requests that the Court appoint the appraisers for the purpose of providing the attached
`
`appraisals and accept these three appraisals in satisfaction of the requirements of 28 U.S.C. §
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`2001(b).
`
`
`2 While the entity purchasing the Property has a trade name similar to Receivership Entity JMJ Development, the
`Receiver has confirmed that the entities are not related. Thomas Dec., ¶
`
`
`
`‒ 3 ‒
`
`

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`9.
`
`The three appraisals value the Property at $1,385,000,3 $1,385,000,4 and
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`$1,410,000,5 respectively, resulting in an average appraised value of $1,393,333. Thus, the
`
`contracted sales price, $1,400,000, not only exceeds two-thirds of the average appraised value of
`
`the Property as required by 28 U.S.C. § 2001(b), but in fact exceeds the average appraised value.
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`Accordingly, the Receiver contends the sale of the Property pursuant to the Contract at the sales
`
`price of $1,400,000 is in the best interest of the receivership and exceeds two-thirds of the average
`
`appraised value.
`
`10.
`
` In connection with a different motion, Defendant Timothy Barton submitted a
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`redacted appraisal from June 2022 performed by Garvin Appraisals LLC, which used a cost
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`approach to value the property at $2,061,228. The Receiver believes that the sale of the Property
`
`pursuant to the Contract at the sales price of $1,400,000 is nevertheless in the best interest of the
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`Receivership because (1) Barton’s appraisal does not use the correct valuation methodology;6 (2)
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`despite the Property being on the market for several weeks and receiving multiple offers, the
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`negotiated sales price of $1,400,000 was the highest offer received, indicating that market
`
`conditions are consistent with the Receiver’s appraisers’ valuations of the Property; (3) even if
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`Barton’s appraisal of $2,061,228 were accurate, and the Receiver was able to obtain two additional
`
`independent appraisals that applied a correct methodology and arrived at the same value, a sale
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`for $1,400,000 would still be authorized under 28 U.S.C. § 2001 because the price exceeds the 2/3
`
`minimum ($1,374,152); and (4) if the value of the Property is as high as Barton contends, pursuant
`
`
`3 The appraisal was issued by Matthew Waldron and is dated as of November 29, 2022. App. pp. 23-43.
`4 The appraisal was issued by Bryan S. Hagen and is dated as of November 17, 2022. App. pp. 44-70.
`5 The appraisal was issued by Mark V. Milliorn and is dated as of November 18, 2022. App. pp. 71-94.
`6 As reflected in each of the three appraisals submitted with this Motion, real estate appraisals for residential properties
`usually value properties based on a sales comparison or market approach, not a cost approach.
`
`
`
`‒ 4 ‒
`
`

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`to 28 U.S.C. § 2001, another bona-fide independent buyer can purchase the property by submitting
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`a bona fide offer exceeding $1,540,000. Thomas Dec., ¶¶ 11; App. pp. 2.
`
`11.
`
`Finally, while Barton has insisted that the Receiver should not sell the Property at
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`this time, the sale is necessary because, among other things, (1) utility and insurance payments
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`continue to deplete whatever value exists in the home, (2) loan and interest payments continue to
`
`accrue, further depleting any recovery from sale of the Property, (3) the administrative costs of the
`
`Receivership incrementally increase with each managed property, and (4) current economic
`
`uncertainty makes it impossible to predict how difficult it will be to sell the Property in the coming
`
`months. Thomas Dec., ¶¶ 12; App. p. 3.
`
`B.
`
`NOTICE OF SALE AND REQUIRED HEARING
`
`12.
`
`The governing statute, 28 U.S.C. § 2001, also requires that the Court conduct a
`
`hearing to consider the proposed sale. And, at least ten days before the hearing, the statute
`
`requires publication of the terms of the proposed sale so that bona fide interested purchasers can
`
`submit competing bids of not less than 10% more than the Contract price. Any competing offers
`
`should be accompanied by proof of funds for a cash sale, or confirmation of approved financing
`
`to allow an immediate closing on the same “AS IS” basis provided in the Contract.
`
`13.
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`The Receiver accordingly requests that the Court schedule a hearing before
`
`December 28, 2022 to consider the sale. The Receiver will publish notice of the hearing at least
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`ten (10) days prior to the hearing as required by 28 U.S.C. § 2001(b) and provide notice of the
`
`hearing through the receivership website.
`
`14.
`
`The Receiver requests that any bona fide offers for purchase of the Property which
`
`exceed by ten percent (10%) the Contract sales price of $1,400,000 be served on the Receiver and
`
`filed with the Court not later than two days before the hearing scheduled to consider the sale.
`
`
`
`
`
`‒ 5 ‒
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 54 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 15 Date Filed: 01/25/2023
`Case 3:22-cv-02118-X Document 76 Filed 12/02/22 Page 6 of 7 PageID 2360
`
`CONCLUSION AND PRAYER
`
`As set forth above, the Receiver requests that the Court (1) appoint the three appraisers
`
`identified above and in the appraisals included in the Appendix, (2) approve and accept the
`
`appraisals provided by each appraiser; (3) set this matter for hearing to consider approval of the
`
`sale on the terms provided by the Contract or as offered in any bona fide competing offer received
`
`after the date of this Motion; and, (4) provided no timely bona fide offers exceeding the Contract
`
`price by 10% are received two days before the date of the hearing, enter an order authorizing the
`
`Receiver to sell the Property pursuant to the terms of the Contract. The Receiver also requests
`
`such other and further relief to which he is justly entitled.
`
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Charlene C. Koonce
`Charlene C. Koonce
` State Bar No. 11672850
` charlene@brownfoxlaw.com
`BROWN FOX PLLC
`8111 Preston Road, Suite 300
`Dallas, Texas 75225
`T: (214) 327-5000
`F: (214) 327-5001
`
`
`Attorneys for Receiver Cortney C. Thomas
`
`
`
`CERTIFICATE OF CONFERENCE
`
`The undersigned certifies that on December 1, 2022, the Receiver conferred with counsel for
`all parties regarding the relief requested in this Motion. The SEC and Defendant Fu are unopposed
`to the relief requested herein. As of the date and time of filing, Defendant Barton had not responded
`to the conference on this Motion, but the Receiver presumes he is opposed. Defendant Wall also did
`not respond to the conference.
`
`
`
`
`
`‒ 6 ‒
`
`/s/ Charlene C. Koonce
`Charlene C. Koonce
`
`
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 55 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 16 Date Filed: 01/25/2023
`Case 3:22-cv-02118-X Document 76 Filed 12/02/22 Page 7 of 7 PageID 2361
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to Fed. R. Civ. P. 5(d)(1)(B), as amended, no certificate of service is necessary,
`because this document is being filed with the Court’s electronic-filing system.
`
`
`
`
`
`
`
`‒ 7 ‒
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 56 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 17 Date Filed: 01/25/2023
`Case 3:22-cv-02118-X Document 76-1 Filed 12/02/22 Page 1 of 2 PageID 2362
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`SECURITIES AND EXCHANGE
`COMMISSION,
`
`
`Plaintiff,
`
`
`v.
`
`TIMOTHY BARTON,
`CARNEGIE DEVELOPMENT, LLC,
`WALL007, LLC,
`WALL009, LLC,
`WALL010, LLC,
`WALL011, LLC,
`WALL012, LLC,
`WALL016, LLC,
`WALL017, LLC,
`WALL018, LLC,
`WALL019, LLC,
`HAOQIANG FU (A/K/A MICHAEL FU),
`STEPHEN T. WALL,
`
`
`Defendants,
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`ORDER APPOINTING APPRAISERS, APPROVING APPRAISALS, AND SETTING
`HEARING REGARDING APPROVAL OF SALE OF ROCK CREEK PROPERTY
`
`
`
`
`
`
`No. 3:22-cv-2118-X
`
`
`DJD LAND PARTNERS, LLC, and
`LDG001, LLC,
`
`
`Relief Defendants.
`
`
`
`Before the Court is the Receiver’s Motion for Appointment of Appraisers, Approval of
`
`Appraisals of Rock Creek Property, and Setting Hearing Regarding Approval of Sale of Rock
`
`Creek Property (the “Motion”). Having considered the Motion, the Court is of the opinion that it
`
`should be GRANTED.
`
`Accordingly, it is hereby ORDERED that pursuant to 28 U.S.C. § 2001(b) the Court
`
`appoints the three appraisers identified in Exhibits B-1, B-2, and B-3 submitted in support of the
`
`
`
`‒ 1 ‒
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 57 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 18 Date Filed: 01/25/2023
`Case 3:22-cv-02118-X Document 76-1 Filed 12/02/22 Page 2 of 2 PageID 2363
`
`Motion as qualified disinterested persons for appraisal of the Property. The Court further
`
`ACCEPTS the three appraisals submitted in Exhibits B-1, B-2, and B-3 as the appraisals required
`
`by 28 U.S.C. § 2001(b).
`
`IT IS FURTHER ORDERED that on _____________________, 2022, at _____ a.m./p.m.,
`
`the Court will hear arguments and objections regarding confirmation of the sale of the Property
`
`pursuant to the Contract submitted with the Motion. The Court’s consideration of the sale will be
`
`contingent on the Receiver publicizing the terms of the proposed sale prior to the hearing and
`
`providing a ten-day window following publication in which anyone objecting to the proposed sale
`
`may submit to the Receiver a bona fide offer for the purchase of the Property exceeding the
`
`proposed sale price by at least ten percent (10%).
`
` Any such bona fide offer SHALL BE accompanied by proof of sufficient funds for a cash
`
`sale, or confirmation of approved financing to allow an immediate closing on the same “AS IS”
`
`basis for the in the Contract submitted with the Motion. Further, any bona fide offers for purchase
`
`of the Property which exceed by ten percent (10%) the Contract sales price of $1,400,000 SHALL
`
`BE served on the Receiver and filed with the Court not later than two days before the hearing.
`
`
`
`SO ORDERED this ______ day of ___________________, 2022.
`
`
`
`
`BRANTLEY STARR
`UNITED STATES DISTRICT COURT JUDGE
`
`
`
`
`
`‒ 2 ‒
`
`

`

`Case: 22-11226 Document: 00516619016 Page: 58 Date Filed: 01/20/2023
`Case: 22-11226 Document: 35 Page: 19 Date Filed: 01/25/2023
`Case 3:22-cv-02118-X Document 104 Filed 12/20/22 Page 1 of 3 PageID 2722
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`
`
`
`
`
`Civil Action No. 3:22-CV-2118-X
`
`SECURITIES AND EXCHANGE
`COMMISSION,
`
`
`Plaintiff,
`
`
`v.
`
`TIMOTHY BARTON,
`CARNEGIE DEVELOPMENT, LLC,
`WALL007, LLC,
`WALL009, LLC,
`WALL010, LLC,
`WALL011, LLC,
`WALL012, LLC,
`WALL016, LLC,
`WALL017, LLC,
`WALL018, LLC,
`WALL019, LLC,
`HAOQIANG FU (a/k/a MICHAEL FU),
`STEPHEN T. WALL,
`
`
`Defendants,
`
`
`DJD LAND PARTNERS, LLC, and
`LDG001, LLC,
`
`
`Relief Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`ORDER GRANTING MOTION TO APPROVE SALE
`
`Before the Court is the