A Minnesota attorney and two California promoters have been charged with defrauding investors in a real estate lending fund by concealing the financial collapse of the fund’s sole business partner:
Todd A. Duckson, Prior Lake, Minn., an attorney, Michael W. Bozora, Marin County, Calif., and Timothy R. Redpath, also of Marin County, Calif., raised more than $21 million from investors in the Capital Solutions Monthly Income Fund after the fund’s sole business partner defaulted on its obligations to the fund. The SEC alleges that after this May 2008 default, the fund – whose sole business was to make real estate loans to a single borrower – had no meaningful income and was using new investor funds to pay existing investors.
The SEC alleges that after the default, Duckson, Bozora, and Redpath told investors that the fund was poised to take advantage of attractive lending opportunities provided by the collapse in the U.S. credit and real estate markets, when in fact the fund’ s business strategy had failed.
According to the SEC’s complaint filed in federal court in Minneapolis, Bozora and Redpath launched the fund in 2004 and, through August 2009, raised approximately $74 million from approximately 450 investors from across the U.S. After the May 2008 default by the fund’s sole borrower, the fund foreclosed on the borrower’s real estate projects. The SEC alleges that in late 2008, Bozora and Redpath asked Duckson, who was acting as the fund’s outside counsel, to take over managing the fund. The SEC alleges that Duckson then began managing the fund while Bozora and Redpath continued to raise money from new investors. The SEC alleges that Bozora, Redpath, and Duckson failed to disclose the default and foreclosure to investors for several months.
The SEC alleges that Bozora, Redpath, and Duckson eventually made some disclosure of the default and foreclosure, but they minimized the impact of these events and continued to misleadingly promote the fund’s ability to make new loans. In fact, the fund’s ability to make new loans was limited. After the default and foreclosure, the fund was required to use most of its assets to maintain its existing real estate portfolio acquired through the foreclosure and to pay existing investors.
The SEC’s complaint also charges True North Finance Corporation, a Minneapolis real estate lending company that merged with the fund in 2009, and True North‘s Chief Financial Officer Owen Mark Williams with accounting fraud. The SEC alleges that in 2008 and 2009, Williams caused True North to overstate its revenues by as much as 99 percent. The SEC alleges that True North improperly recognized revenue on interest from borrowers who were not paying True North and were in poor financial condition. The SEC further alleges that True North‘s recognition of revenue was contrary to its own revenue recognition policy, which stated that it would not recognize revenue where payment of interest was 90 days past due.
The SEC is seeking permanent injunctions, disgorgement, prejudgment interest and civil penalties against all of the defendants, and officer-director bars against Bozora, Redpath, Duckson, and Williams.
Marlene Key, Eric Phillips, and Wilburn Saylor of the SEC’s Chicago Regional Office conducted the SEC’s investigation. The SEC’s litigation will be conducted by Ms. Key and Mr. Phillips.
“The fund’s real estate lending strategy failed due to the collapse of the fund’s sole borrower. Instead of disclosing this fact, Bozora, Redpath, and Duckson falsely claimed that the fund was positioned to profit from the U.S. real estate downturn,” said Robert J. Burson, Senior Associate Regional Director of the SEC’s Chicago Regional Office. “Investors were entitled to know true facts rather than the misleading positive spin that Bozora, Redpath, and Duckson provided.”