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I wonder if Tim has these questions. Is the supposed buyer of the Utah property connected to the ararat llc stonewall note purchase? Was the purchase by cbay of the Utah property in any way connected to the purchase of the ararat llc phoney mortgage assignment? Why wasn't the court decision announced by cbay? Please provide the names of all the parties to transactions which resulted in the forfeiture of earnest money deposits. How come the annual report has not been filed with the nevada secretary of state. How come there is no cal-bay construction company? I could go on....but the most important one...is cbay being investigated by the sec for accounting irregularities ...in particular the recognition of 6 million in income on a phoney mortgage assignment.
the devil is in the details on all those real estate acquisitions. That is why we never got the details.
There is no question that cbay will not get one penny of the $14 million proceeds. There is no way for cbay to get around the fact that Dr. Atac's assignment of the mortgage is the valid one. The legal principles of res judicata and collateral estoppel prevent people from relitigating matters already decided in the past. Otherwise there would never be a resolution to any legal matter. The court held in its concluding paragraph that "Cal-bay is now collaterally estopped from further litigating the issue." Cal-Bay's claim to the $14,000,000 was thrown out of the bankruptcy court forever by this ruling. Yet not a peep from the company. Why? Cause they have to keep selling shares.
A case can only normally be filed where the cause of action arose. If frank has alleged breach of contract, it is likely that the contract was formed where hisc was doing business..north carolina....so unlikely to be removed to florida or texas imho. Don't know enough of the facts to determine if it could be removed from state court to a federal court.
the dismissal and change of venue are two different items. One asks for a change of venue when the suit was filed in the wrong county based on where the cause of action happened, the defendant resides, etc. Change of venue can also be requested if the pool of jurors would be biased against the defendants, or the judges in that county have a conflict and can't hear the case.
unlikely. additional motions, etc require advance notice to the other party unless the other party agrees to waive notice. but who knows, the parties could start settlement offers then and there out in the hall.
Looks like Ericson wants a change of venue if the case is not dismissed. Motions to dismiss are always filed as a dilatory course of action. Sometimes they have substance for failure to state a cause of action, but usually the court will bend over backwards to let the plaintiff amend and have his/her/its day in court. I don't know the specifics of north carolina law, but it could be venue is only proper in the county where Ericson resides.
Anyone get hold of a copy of the counterclaim filed against BA in seminole county florida? I think the county seat is sanford. Would love to get a look at the allegations and ba's contract which has to be attached to the petition.
CBAY. The first week of January, 2007 the bankruptcy court ruled basically that Cbay had no claim to the $14,000,000 proceeds escrowed from the sale of the palm beach property. Cbay's assignment of the mortgage was invalid. Cbay has conveniently failed to mention this adverse opinion in any of its press releases.
Here is the link to the opinion. http://www.msnd.uscourts.gov/bk/Opinions/Houston/supertrail-op1.pdf
I don't think the sec will look too kindly on Pawson recognizing 6 million dollars of income on a questionable assignment such as this. Pawson disclosed that Ararat was owed preferred b's the amount of which could not be determined. Why? Probably because Pawson knew the assignment was questionable in the first place and the amount paid to Ararat is somehow contingent on what was recovered. Nevertheless, Pawson reports it as income !!!! Fraud. I don't think the attorney is going to say he was negligent in reviewing the documents before CBAY took the assignment. IMHO it was purchased so a story could be pitched to prospective investors. So cbay needs cash to develop the properties, so imho Pawson is going to sell all the shares he can before the sec suspends trading. All jmho....after reading the bankruptcy case. The fact that a disbarred attorney from Utah is involved and the true facts of this mortgage assignment, casts doubt on every other transaction cbay has done, including forfeited earnest money deposits. The only thing certain is that Pawson will convert all of his Preferred A 1 for 50 common, and wipe all the float owners out. Expect class actions.
I just reread the case I cited earlier today after looking at the documents online that were filed in West Palm Beach Florida. According to that case CBAY has no valid interest to the proceeds from the sale of the West Palm Beach property. To help you understand the case when you read it these are the facts.
There was a fight over the proceeds of $14,000,000 in the bankruptcy court. There were two assignments of the same mortgage. Cal-bay's was asserting that its assignment of the mortgage was valid and that the Dr. Atac was invalid. However, Cal-bays assignment can be traced as follows. Dr. Atac received an assignment from a valid holder of the mortgage which was the Kristol corporation. Then someone without authority filed a document of record on behalf of that corporation saying that the assignment the Doctor took was invalid, and then assigned the same mortgage to the Ararat LLC that then assigned it to Cal-Bay. Two courts already ruled that the doctor's assignment was valid, and the bankruptcy court ruled that cal-bay to challenge the doctors assignment because of the prior decisions.
The law is so straightforward on this, do not believe anymore bs about an appeal. Cal-Bay is not going to see a penny of that $14,000,000. The someone who filed the document was a disbarred utah attorney. Hmmm wonder what the connection( if any) is to the utah property that is supposedly under contract. And why can't pawson even file the cbay annual report on time. The company is in default of this filing as per the nevada website.
http://oris.co.palm-beach.fl.us/or_web1/details.asp?doc_id=15242210&file_num=20050629561
if you research where cal-bay's seller got the assignment, it looks like it came from the KMI assignment which was ruled invalid.
Needless to say , do not expect any conference call. I wonder if this note had been secured as collateral, and that is why stock had to be put up as collateral. I think Mr. Pawson's world is about to fall apart. jmho.
Atac did not assign the mortgage to Cal-bay. Ararat, LLC did. Cal-bay bought the mortgage from someone who did not own it ..that is how I read the court decision. I haven't seen the pleadings so could be wrong. but IMHO this means cal-bay will not collect one penny of the $14000,000. The 10K will have to note this as a subsequent event. In light of the fact that Pawson claimed 6 million in income last june, and the fact that it is questionable whether CBAY even paid for the note (remember it owed preferred b to the supposed seller), this seems like it was all designed to sell shares and fleece the public. In light of the fact that the sec has suspended ckys on unaudited financial claims, I liquidated the remainder of my holdings and have no intention of getting back into this again. Yesterday, a real estate blog out of Florida indicated that Tampa bay and surrounding areas residential sales are extremely depressed. I doubt whether cbay will even appeal this decision. Good luck to all that hang in there. The court decision was rendered the first week of January. Why wasn't this disclosed? That in itself is grounds for a class action lawsuit. Bunch of dumbfks running the company .
the individual defendant got the suit against him dismissed, but it seems the main suit against supertrail is still on.
http://www.msnd.uscourts.gov/bk/Opinions/Houston/supertrail-op1.pdf
I agree nice letter. Check the word companies though. I think you meant company's .
NRS 78.105 Maintenance of records at registered office; inspection and copying of records; civil liability; penalties.
1. A corporation shall keep a copy of the following records at its registered office:
(a) A copy certified by the Secretary of State of its articles of incorporation, and all amendments thereto;
(b) A copy certified by an officer of the corporation of its bylaws and all amendments thereto; and
(c) A stock ledger or a duplicate stock ledger, revised annually, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, if known, and the number of shares held by them respectively. In lieu of the stock ledger or duplicate stock ledger, the corporation may keep a statement setting out the name of the custodian of the stock ledger or duplicate stock ledger, and the present and complete mailing or street address where the stock ledger or duplicate stock ledger specified in this section is kept.
2. Any person who has been a stockholder of record of a corporation for at least 6 months immediately preceding his demand, or any person holding, or thereunto authorized in writing by the holders of, at least 5 percent of all of its outstanding shares, upon at least 5 days’ written demand is entitled to inspect in person or by agent or attorney, during usual business hours, the records required by subsection 1 and make copies therefrom. Holders of voting trust certificates representing shares of the corporation must be regarded as stockholders for the purpose of this subsection. Every corporation that neglects or refuses to keep the records required by subsection 1 open for inspection, as required in this subsection, shall forfeit to the State the sum of $25 for every day of such neglect or refusal.
3. If any corporation willfully neglects or refuses to make any proper entry in the stock ledger or duplicate copy thereof, or neglects or refuses to permit an inspection of the records required by subsection 1 upon demand by a person entitled to inspect them, or refuses to permit copies to be made therefrom, as provided in subsection 2, the corporation is liable to the person injured for all damages resulting to him therefrom.
4. When the corporation keeps a statement in the manner provided for in paragraph (c) of subsection 1, the information contained thereon must be given to any stockholder of the corporation demanding the information, when the demand is made during business hours. Every corporation that neglects or refuses to keep a statement available, as in this subsection required, shall forfeit to the State the sum of $25 for every day of such neglect or refusal.
5. In every instance where an attorney or other agent of the stockholder seeks the right of inspection, the demand must be accompanied by a power of attorney signed by the stockholder authorizing the attorney or other agent to inspect on behalf of the stockholder.
6. The right to copy records under subsection 2 includes, if reasonable, the right to make copies by photographic, xerographic or other means.
7. The corporation may impose a reasonable charge to recover the costs of labor and materials and the cost of copies of any records provided to the stockholder.
[80:177:1925; A 1951, 332]—(NRS A 1959, 29; 1963, 217; 1965, 978; 1991, 1214; 1997, 697; 2003, 3082)
the power of attorney need not be as elaborate as the one seen by clicking on the pdf item at this site;http://www.uslegalforms.com/nv/NV-P099E.htm
It really should only specify that the attorney-in-fact has the specific power and authority to vote the signer's shares for the limited purpose of demanding an inspection of the particular records of cyberkey.
Another statute in nevada says only 5% of the shareholders are needed to look at the corporate shareholders list, etc.
I will post that next.
Here is a link of the index to all statutes in nevada.
http://www.leg.state.nv.us/NRSindex/A.html#ATTORNEYS_IN_FACT
Hell of a lot better than trading on the gray sheets.
Precisely, so where is the mm liability in such a scenario? There is none, especially if ckys retracts the unaudited statements.
What if ckys announces that the unaudited financials are unreliable and not to be relied upon or withdraws them ? That would protect the mm cause ckys is non-reporting anyway. Of course if ckys did this at the same time they would have to give the market some assurance that the government contract in fact exists and the amount to be recognized as income in each year to stabilize the share price.
Just speculation, but Jim Plant could have exchanged his 400 million for preferred shares that have a conversion back to common feature. Also, the additional money could have been from the sale of preferred shares. Just trying to provoke thought on this issue.
Cyberkey did not file their amendment until 12/28. Here is Nevada law.
NRS 78.209 Change in number of authorized shares of class or series: Filing and effectiveness of certificate of change; amendment of articles of incorporation.
1. A change pursuant to NRS 78.207 is not effective until after the filing in the Office of the Secretary of State of a certificate, signed by an officer of the corporation, setting forth:
(a) The current number of authorized shares and the par value, if any, of each class or series, if any, of shares before the change;
(b) The number of authorized shares and the par value, if any, of each class or series, if any, of shares after the change;
(c) The number of shares of each affected class or series, if any, to be issued after the change in exchange for each issued share of the same class or series;
(d) The provisions, if any, for the issuance of fractional shares, or for the payment of money or the issuance of scrip to stockholders otherwise entitled to a fraction of a share and the percentage of outstanding shares affected thereby; and
(e) That any required approval of the stockholders has been obtained.
Ê The provisions in the articles of incorporation of the corporation regarding the authorized number and par value, if any, of the changed class or series, if any, of shares shall be deemed amended as provided in the certificate at the effective date and time of the change.
voting trust certificates are not what is in your brokerage account. It is when shareholders enter into an agreement with one another agreeing to bind their shares to vote a certain way over corporate matters.
I would think a simple power of attorney could be drafted where each requesting shareholder designates one and the same person to act on his behalf for the inspection. The power of attorney would state under oath that the signer is the lawful owner of x number of shares of ckys and perhaps have a copy of his brokerage account or buy confirmations attached thereto. The one person should probably be a licensed Nevada attorney, who would be advised in advance as to what particular documents need to be inspected, i.e. bank deposits, purchase order, transfer agent correspondence etc.
It doesn't need to be a single shareholder. It can be a group of shareholders whose collective holdings together equal 15%. Read section 1, first sentence.
15% of all outstanding. can be a bunch of individuals that make up the 15%
Nevada Law. If you can muster 15% from the holdings on this board, you could demand that the purchase order and related documents, and bank deposits , etc. be produced for inspection, instead of taking the chance that this thing drags on and on.
NRS 78.257 Right of stockholders to inspect, copy and audit financial records; exceptions; civil and criminal liability; penalty.
1. Any person who has been a stockholder of record of any corporation and owns not less than 15 percent of all of the issued and outstanding shares of the stock of such corporation or has been authorized in writing by the holders of at least 15 percent of all its issued and outstanding shares, upon at least 5 days’ written demand, is entitled to inspect in person or by agent or attorney, during normal business hours, the books of account and all financial records of the corporation, to make copies of records, and to conduct an audit of such records. Holders of voting trust certificates representing 15 percent of the issued and outstanding shares of the corporation are regarded as stockholders for the purpose of this subsection. The right of stockholders to inspect the corporate records may not be limited in the articles or bylaws of any corporation.
2. All costs for making copies of records or conducting an audit must be borne by the person exercising his rights set forth in subsection 1.
3. The rights authorized by subsection 1 may be denied to any stockholder upon his refusal to furnish the corporation an affidavit that such inspection, copies or audit is not desired for any purpose not related to his interest in the corporation as a stockholder. Any stockholder or other person, exercising rights set forth in subsection 1, who uses or attempts to use information, records or other data obtained from the corporation, for any purpose not related to the stockholder’s interest in the corporation as a stockholder, is guilty of a gross misdemeanor.
4. If any officer or agent of any corporation keeping records in this State willfully neglects or refuses to permit an inspection of the books of account and financial records upon demand by a person entitled to inspect them, or refuses to permit an audit to be conducted, as provided in subsection 1, the corporation shall forfeit to the State the sum of $100 for every day of such neglect or refusal, and the corporation, officer or agent thereof is jointly and severally liable to the person injured for all damages resulting to him.
5. A stockholder who brings an action or proceeding to enforce any right set forth in this section or to recover damages resulting from its denial:
(a) Is entitled to costs and reasonable attorney’s fees, if he prevails; or
(b) Is liable for such costs and fees, if he does not prevail,
Ê in the action or proceeding.
6. Except as otherwise provided in this subsection, the provisions of this section do not apply to any corporation that furnishes to its stockholders a detailed, annual financial statement or any corporation that has filed during the preceding 12 months all reports required to be filed pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934. A person who owns, or is authorized in writing by the owners of, at least 15 percent of the issued and outstanding shares of the stock of a corporation that has elected to be governed by subchapter S of the Internal Revenue Code and whose shares are not listed or traded on any recognized stock exchange is entitled to inspect the books of the corporation pursuant to subsection 1 and has the rights, duties and liabilities provided in subsections 2 to 5, inclusive.
(Added to NRS by 1971, 863; A 1977, 659; 1997, 3092; 2001, 1368, 3199; 2003, 3092)
The discussion whether it is a purchase order or a contract is really irrelevant. Yes a purchase order is a type of contract. Any promise for a promise of something in return is a contract. The uniform commercial code was adopted decades ago to simplify business transactions. A brief description of the goods ordered, the quantity, and price on any purchase order will make it enforceable. I have not read all the posts, but what is important is the fact that in our economy there are what as known as manufacturing representatives who go out and sell product and get orders for the various manufaturers and get the order put in the REPRESENTATIVE's name. Why? Because the representative doesn't want the buyer to go directly to the seller and cut the rep out of the picture, and doesn't want the seller to go directly to the buyer to cut the rep out of the picture. The manufacturing rep's contract with the manufacturer normally reads that he is the authorized agent of the manufacturer and there could be an agency contract between the manufacturing rep and the buyer. So what difference does it make if the purchase order is in the name of cyberkeys agent or straw party? Cyberkey is still the real party to the purchase contract and the manufacturing rep is just the "straw party". This practice is quite prevelant out in arizona in the machine and tool business for aerospace products. I am sure women and minority owned manufacturing representatives use it all the time. The manufacturing representatives might already be on approved vendors list of the buyers and that is why manufacturers are willing to give them a cut of the sale that the manufacturer would not be able to make otherwise. It is normal for the money to go through the manufacturing rep and then on to the manufacturer. When an agent undertakes to do something on behalf of some other person/entity with authority of that other person/entity that other person is bound by the agents actions. The government could sue cyberkey for failure to deliver, if it found out cyberkey was the real party...so if a purchase order exists even in the name of another entity...cyberkey imho is justified in making the claim that it has a contract with Homeland Defense under such a scenario. This can all be proven to the sec just by producing all the contracts showing the relationship of the parties. But government officials with tin badges tend to jump the gun when they don't see the direct link that they preconditioned themselves to think how the contract should read. I don't think anyone would be stupid enough to record a video of his/her lies as to the existence and performance under a purchase order.
When the sec questions your prior pr's about the government contract, you do not continue to pr that contract to get the sec all the more down your back.
Could be the s.e.c. was not informed by those that complained of the third party go between, and was expecting ckys to provide a direct purchase order to substantiate its press releases, and when ckys did not do so, the sec rushed to judgment. As an example of nutty government action, hisc applied for an export license to ship bomb detectors overseas. The export license was held up for months because the government employee thought hisc was applying to export bombs.
Also, it is unlikely that jim plant would have "certified" the unaudited financials released 1/29/07; updated the website with share count numbers as of a certain date; have cash to go on an advertising spree; and or increase the authorized shares on 12/28/06 by billions. Anyone who scams on the basis of a fake contract knows it is just a matter of time before the lie is discovered because of the accounting cycle. They also know they can always shrug their shoulders and say well I thought we had the contract, but it was canceled, etc. but if they try to hide it with false statements is where they get into trouble for fraud. Seems like Jim Plant has been working his azz off to benefit the company, and people do not do that if they know the shxt is going to hit the fan anyday. IMHO if you are running a scam, you slowly increase the authorized shares, keep the cash, and don't go signing off on phoney financial statements,etc. I do not believe for a minute that Jim Plant would be talking to anyone right now other than ckys attorneys. There can be several plausible explanations as to why the sec was not furnished with the requested information..i.e. jim out of town, the attorney out of town, the paperwork with accountants, the information request mistakenly put on the backburner by someone. Just seems to me the sec certainly got its act together quickly to halt this one since the unaudited financials came out last week. Guess it depends on who is doing the complaining.
One would hope that indeed 20 million shares of the collaterized shares were just canceled. But something like this could have happened too: cancel 30 million collaterized, sell 10 million more into the market. Correct me if I am wrong in my thinking.
Question: Northwest Oil Group Inc is a florida corporation. Per that website, I find that 500,000,000 common shares were authorized and 30,000,000 preferred shares per amendment dated 12/12/2003. Then on October 11, 2005 when the name was first changed to nord oil there was a filing showing a reverse split 12 common for 1. Wouldn't that still leave the authorized at 500,000,000? I can't find any amendment authorizing an increase in the common , yet the company released figures showing more than that outstanding. And there has been no amendment changing the preferred. Nor any merger papers filed. The company uses "post merger" to describe the share count. So are they multiplying the true count by some merger ratio to arrive at their figures? TIA
www.sunbiz.org/scripts/cornamelis
perhaps a pending deal was canceled or a contingency met that reduced the o/s collateralized.
Couldn't the conversion ratio just be amended to say 5 instead of 50, with the consent of the holder of the outstanding A ? Or couldn't provisions be added saying the conversion can only take place if x event takes place or something along those lines to assure common that the rug will not be pulled from under them?
Getting rid of the Preferred A is about the only trick Pawson has left. If in fact all those shares have been collateralized, it was done at much higher share prices. If you were the party that had taken that security wouldn't you be screaming at Pawson or perhaps threatening to exercise rights in the contract concerning the impairment of the security? Or was that party naive and believed the share price was already at its low when it did the deal and did not get such protection? What Pawson may never have thought in a million years he would do (cancel the A's) he may be forced to do even if he loses some control over the company. The 7% already canceled indicates he saw it as a possible solution, but it also showed his reluctance to cancel more. The share price is now even lower. Perhaps there is indeed a concerted action by shorts to pick up cbay shares on the cheap, force an A cancellation, and bring Pawson to his knees.
If the next pr just announces the date of a shareholders conference call, with nothing of substance, the market will get more disgusted.
Hmmmm. Well lets see if there are arguments, that means it is being contested !!!! The other side (either Supertrail or other creditors) are then asserting defenses to cal-bay's right to the monies. Now this contest might only center around the other alleged note that cal-bay's attorney "discovered" secured by the mortgage. But how could Cal-Bay have possibly been justified in recognizing it as income six months ago if its collection was uncertain? And wouldn't the person who sold the note to CBAY be now demanding additional monies considering the fact that the amount of preferred owed the seller was still uncertain per sec filing?
"It is in a clerks hands"---- meaning a clerical secretary or a law clerk writing an opinion for the judge? I guarantee you this is not being held up by a clerical secretary. A payout order from the judge authorizing the money to be released has to be issued first and with such an order in hand the money would be released in short order. Cal-bay surely would have issued a press release if the judge had decided in their favor. After all, cal-bay is in the business of selling shares.
If Pawson is not going to do anything with the Preferred A, then cancel them. Restore the value of the corporate currency!!
You showed you were an insider the day you supposedly visited and met with cbay, when you did not provide any information on the stonewall note to the board. You are inquisitive enough to ask about a dumb race car, but not about a 14,000,000 note? Just two coincidental that you would be as awe stricken with a race car as the jo who bought it. Certainly a bunch of dfks working at cbay.