DISCLAIMER: These Frequently Asked Questions are provided by a small group of volunteer investors to all investors as a courtesy. The answers are based upon public records, Michael Goldberg's presentation, the information provided by Michael Hogan, and Hogan's declaration filed in the PFI bankruptcy. The information here is not intended to be nor should it be considered legal and/or accounting advice. Each investor is responsible for independently obtaining his or her own advice and may not rely on the information provided herein. Although every effort has been made to be accurate, accuracy cannot be guaranteed. The information provided may not be specifically applicable to each and every investor.
CAN'T FIND AN ANSWER? If after you've reviewed the Frequently Asked Questions (FAQ) below, you cannot find the answer to your question, please send your question to firstname.lastname@example.org. Although we cannot answer every individual question, if your question is of general interest and benefit to investors as a whole and it is not already answered, it may be added to these FAQ.
Please be sure to register with JointIt (https://www.joinit.org/o/pfi-investors). An email alerting you to changes in these FAQ will be sent to all registered members.
Revised: December 6, 2020
How do I know which Facebook group to join?
You'll want to join the group (or groups) that are primarily concerned with the type of investment(s) you made. There is also a general group for all investors. Here are the links to the main group and the sub-groups:
All investors: https://www.facebook.com/groups/pfiinvestors
Deed of Trust investors: https://www.facebook.com/groups/PFIDOTInvestorsGroup
Limited Partnership Investors: https://www.facebook.com/groups/pfillcinvestorgroup
Straight Note Holders: https://www.facebook.com/groups/straightnoteholderspisfpfi
2. I'm confused about what type of investment I have. How can I find out? My investment was switched from a Deed of Trust to a straight note or transferred from one investment to another. How can I sort this out?
A primary purpose of the forensics accounting that is currently being done is to identify and track each investment. Once that accounting is done, the type and amount of each investor's claim will be identified. Until then, it is not entirely possible to identify who invested in what or whose investments were converted to another type.
You may request copies of your investment documents from PFI.
(415) 382-6001 x333
3.1 I have questions, suggestions, and comments. I also have information that I think would be helpful for our attorneys and experts to have. Where should I submit these?
Please send all questions, comments, and suggestions to email@example.com. Your questions will be answered if possible, or referred to an appropriate person. Your comments and suggestions will be forwarded to the appropriate expert or committee. Please put the name of the person, when known, that you'd like your email forwarded to in the subject line.
Please keep your questions short.
This is also the email where you would submit any information regarding the location of Casey's or Wallach's assets, third parties who were paid a referral fee, or any other tip that you think would be helpful. Please put "tip" in the subject line. All tips are kept strictly confidential.
Please be mindful that this email is monitored by volunteers who also have full time jobs and lives outside of this mess. So, please, be patient and be polite.
3.2 I'm not getting my JoinIt emails. What should I do?
If you are having problems getting emails, please go here for instructions. If, after trying the remedies listed, the problem persists, send an email to NoPFIemail@gmail.com. Please be patient. As volunteers with full-time jobs, it sometimes takes us a bit of time to get back to you.
We know that it can be frustrating to have technical problems but, please, don't take it out on the volunteers. We are not JoinIt administrators and do our best to help you.
4. How can I keep up to date?
4.1 How can I change my address with the bankruptcy court, Donlin Recano, and others involved in this matter?
To change your address with Donlin Recano: Send an email to firstname.lastname@example.org.
To change your address with the Bankruptcy Court:
Download the Change of Address from from this link: https://www.donlinrecano.com/Clients/pfi/Static/changeofaddress
To complete the form:
Insert your name and current contact information beginning on line 1.
On line 10, insert:
PROFESSIONAL FINANCIAL INVESTORS, Inc, a CA corp; PROFESSIONAL INVESTORS SECURITY FUND, Inc, a CA Corp
Insert the case number 20-30604
Type 11 in "Chapter No."
"Plaintiff," "Defendant" and "Adversary Number" are all N/A
Insert your name (or names if a joint account) at line 22
Insert your new address at line 24
To file the form:
Send the original to:
United States Bankruptcy Court
Office of the Clerk
450 Golden Gate Avenue
San Francisco, CA 94102
Send a copy to PFI and PISF (350 Ignacio Blvd., Suite 300,Novato, CA 94949), Ori Katz, Debra Grassgreen, and the US Trustee (addresses found here: https://www.donlinrecano.com/Clients/pfi/Static/CaseInformation).
4.2 How can I be sure to receive the Plan Disclosure Statement and Ballot? What if I've had a change of address?
By law, these must be sent by first class mail. If you do not receive your Solicitation Package by April 30, 2021, email Donlin Recano at email@example.com. They will send it to the address you specify. They may be able to send it electronically if requested. Be sure that your email gives your name as it appears on your investment(s), and the address (and/or email) to which you'd like it sent. If you do not receive your replacement package by May 4, 2021, contact Cia Mackle at firstname.lastname@example.org.
4.3 I can't always attend Zoom meetings. Will there be a recording? Or Notes?
We do not record meetings. However, notes are taken during the official part of the meeting (not during the open mic session), reviewed by counsel, and then circulated to those investors registered with JoinIt.
5. What, if anything, should I be doing to document my investment? What should I do with this information?
Create a file that includes your investment documents, canceled checks, proof of transfer of funds, email and other communications between you and PFI and/or PISF that further document your investment. If you need your investment documents please contact PFI at 415.883.2736. You may not have any of the other documents. If so, don't be concerned. Save the documents so that they can be presented when requested.
5.1 What if I invested in cash, don't have a signed contract, or were never given proof of our investment. What should I do?
Gather up whatever documentary proof you have in the form of emails, canceled checks, correspondence, etc. Once the forensics accounting is completed, it will all get sorted out. See number 5 about what to do with your proof.
Please see #28 regarding claim forms.
6. What's the difference between PFI and PISF?
PFI & PISF OPERATIONS
8. I understand that Charlene Albanese resigned as the sole director of PFI and that Michael Golberg was appointed to replace her as an independent director. What is the role of a director?
We don’t have a copy of PFI’s by-laws where specific duties of the board of directors would be detailed. However, the role of the board of directors (in this case a single director) is generally outlined in the California Corporations Code. Section 309(a) reads in relevant party: "A director shall perform the duties of a director . . . in good faith, in a manner such director believes to be in the best interest of the corporation and its shareholders and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.”
As the Independent Director, Mr. Goldberg will oversee the running of the business by Michael Hogan. He will also determine whether Mr. Hogan should remain as Chief Restructuring Officer. He has hiring and firing power and may replace Mr. Hogan if he believes it is appropriate to do so.
9. Are the assets of PFI and PISF protected?
We’ve been told that there is sufficient cash flow from rental income to pay the first mortgages and expenses of maintaining the properties and running the business. During the bankruptcy proceedings there should be enough income to pay the costs of the bankruptcy. The goal is to keep the business running and to maintain the properties so they retain their value.
9.1 What are the taxpayer identification numbers for PFI and PISF? What is their address?
10. What is a Ponzi scheme?
A Ponzi scheme is an investment fraud that pays existing investors with funds collected from new investors. Ponzi scheme organizers often promise to invest your money and generate high returns with little or no risk. But instead, they use it to pay those who invested earlier and keep some for themselves.
With little or no legitimate earnings, Ponzi schemes require a constant flow of new money to survive. When it becomes hard to recruit new investors, or when large numbers of existing investors cash out (or, in our case, when the chief fraudster dies), these schemes tend to collapse.
Ponzi schemes are named after Charles Ponzi, who duped investors in the 1920s with a postage stamp speculation scheme.
11. Was this a Ponzi scheme or simple fraud? Who will make that determination?
After completing the initial phase of the forensics accounting, FTI has determined that this was a Ponzi scheme going back to at least 2007. The official determination that this was a Ponzi scheme and the beginning date will be made by the bankruptcy judge. While there is evidence that the scheme may have begun earlier, the digital records only go back to 2007. The cost of reconstructing the records from paper would likely cost more than the possible benefit to investors. Therefore, while it has not yet been agreed to by all investors groups, it is likely that the beginning date will be settled as January 1, 2007.
12. Does it make a difference if this was a Ponzi scheme?
Yes. If this is determined to be a Ponzi Scheme, the manner in which each investor’s claim is calculated is based on the “money in, money out” rule. This is referred to as "netting."
13. What is the "money in, money out" rule? What is netting?
If the fraud is determined to be a Ponzi scheme, each investor's claim is calculated by re-characterizing interest payments as return of principal. For example, if Investor A invested $100,000 and has received $20,000 in interest payments, the $20,000 is netted out so that the claim is reduced to $80,000. This is sometimes referred to as the “money in, money out” rule. Investors who’ve paid income tax on the interest payments can, with certain limitations, recover the tax paid. If this applies to you, you should consult your tax advisor.
14. What does "claw back" mean?
Theoretically, an investor who has received more than the original amount invested can be held liable for the return of the excess. That is, the excess can be “clawed back.” By way of example, if Investor B invested $100,000 but has received $120,000 in interest payments, the $20,000 can be recovered from Investor B to the extent that the investor received at least as much in "cash out" as the clawback amount during the seven years prior to the filing of the bankruptcy.
14.1 If this is a Ponzi scheme, are there tax implications for investors? If investors are subject to netting, will amended 1099 and K-1 forms be issued for the years during which this was a Ponzi?
You should consult your personal tax advisor regarding the tax implications to you of having been involved in a Ponzi scheme. Amended 1099 and K-1 forms will not be issued with the possible exception of a final K-1 for LLCs which will show "no activity."
14.2 Are the forensics accountants (FTI) looking into commissions paid for referrals? If another investor was paid a commission for recommending PFI or PISF to me, will that commission be recovered?
Yes. We have requested that FTI identify these payments. This would be for commissions paid for referrals to other investors and also to financial advisors. Bruce Riezenman of the LLC Ad hoc Committee is gathering information on this. Therefore, if you have information regarding someone you believe may have received referral commissions, please send this information to Bruce’s attention to email@example.com.
Commissions paid to other investors will be "netted" out under the "money in, money out" rule if this is determined to be a Ponzi Scheme.
If you have information regarding the payment of referral fees, please see #3.1.
14.3 What efforts are being made to recover assets from those who perpetrated the fraud?
Claims will be filed against Casey's estate. There will also be efforts to recover assets from Lewis Wallach and others. Lewis Wallach has already turned over or is in the process of turning over several million dollars in assets. By his own admission, he embezzled $26,000,000 and will be ordered to make restitution as part of his sentence in the criminal case brought against him. It is unlikely, however, that we will ever recover the full amount invested.
If you have any information about the location of assets which you think should be recovered, please see #3.1.
15. I don't have a clue about bankruptcy? Is there something I can read?
15.1 Where can I find the bankruptcy court records? How can I attend court hearings?
16. Are both PFI and PISF now in bankruptcy? What about the limited partnerships, limited liability companies, and the tenants-in-common investments?
Yes. Both are in Chapter 11 which seeks to reorganize both companies in such a way that the business continues with maximum recovery to investors. As of this revision, all but two limited partnerships have been brought into the bankruptcy. The tenants-in-common are not in the bankruptcy.
17. I understand that before the companies can be discharged in bankruptcy, that creditors, including investors, have to vote on a plan that will outline investors' rights and how the business will be conducted going forward. What's the status of that process?
As of the date of this revision, the committees have agreed that all investors, regardless of the type of investment(s) they made, will be treated the same and will share in "one pot." The plan will be presented to investors to vote for acceptance or rejection. In order for the plan to be accepted by the investor community, the vote must meet a two-pronged test: (1) there must be an affirmative vote of at least 50% plus 1 of investors, and (2) the affirmative vote must represent at least 2/3 of the total debt. If the investor community accepts the plan but you object to it, you may present your argument to the bankruptcy judge at the hearing to approve the settlement.
A Disclosure Statement and ballot will be mailed to investors on Friday, April 23, 2021. Ballots must be RECEIVED by May 13, 2021 to be counted.
Once the plan is confirmed, the assets (including claims against third parties) will be held in a trust. Michael Goldberg will be the trustee, assisted by a Board of Volunteers made up of investors.
18: Where can I read the Plan and Disclosure Statement that outlines the global settlement?
19. Since the company is heavily involved in real estate, is anyone assessing the real property portfolio to determine what should be done with the property?
20. What is the role of the official unsecured creditors committee?
Section 1103 of the Bankruptcy Code lists the specific powers and duties of the committee.
The section authorizes the unsecured creditors’ committee, at a scheduled meeting in which a majority of the members are present, to select one or more attorneys, accountants, or other agents to represent it or to perform services for it.
Section 1103 further provides that the committee may:
Consult with the Chapter 11 trustee (if one has been appointed), or debtor-in-possession, concerning the administration of the case;
Investigate the acts, conduct, assets, liabilities, and financial condition of the debtor, the operation of the debtor’s business, the desirability of the continuance of such business, and any other matters relevant to the case or to the formulation of a plan;
Participate in the formulation of a plan and advise the members of the class which it represents of the committee’s position as to any plan formulated;
Request the appointment of a Chapter 11 trustee or examiner (pursuant to Section 1104 of the Bankruptcy Code), or if the committee determines that it is in the creditors’ best interest to have a trustee liquidate the business, seek the conver- sion of the case to a Chapter 7;
And perform such other services as are in the interest of the creditors.
21. How are the LLC and DOT investors represented in the bankruptcy proceedings?
They are represented by ad hoc committees. The members of an official creditors committee bear fiduciary duties to both the bankruptcy estate and the committee’s constituency, i.e., the unsecured creditors. Official creditors’ committees also have a duty to provide access to information for their creditor constituents and are obligated to solicit and receive comments from creditors concerning developments in the chapter 11 case. Any fees and expenses of their professionals must be allowed by the bankruptcy court before being paid by the estate.
Ad hoc committees, by contrast, are largely unregulated. Even so, the conduct of unofficial committees is subject to a certain amount of scrutiny by means of information disclosure requirements contained in the Federal Rules of Bankruptcy Procedure.
22. Who are the attorneys for the various groups of investors?
The Creditors’ Committee has retained Debra Grassgreen and Jonathan Fiero of Pachulski Stang Ziehl & Jones to represent the unsecured creditors’ committee.
The LLC's have hired Robbin L. Itkin, Partner at Sklar & Kirsh as their attorney.
The DOT investors have retained Cecily Dumas of Bakerhotstetler as their attorney.
25. How long are the bankruptcy proceedings expected to last?
It is anticipated that if the plan is approved by creditors, including investors, that the discharge in bankruptcy will follow shortly thereafter.
26. Did the bankruptcy stop the SEC investigation?
No. The SEC investigation will continue to its conclusion. However, the SEC's initial focus, i.e., whether to appoint a receiver, has changed to monitoring the bankruptcy proceedings, including making sure that attorneys are billing properly.
27. How can I access the bankruptcy court's records?
28. Do I need to file a Proof of Claim with the bankruptcy court? Will there be someone to help me fill out the claim?
You will eventually need to file a Proof of Claim. The form and filing instructions can be found at this link: https://www.donlinrecano.com/Clients/pfi/Static/BDPOC. There is currently no deadline to file. That deadline will ultimately be set by the court. We have been asked to wait until the deadline is set to file.
When claims are due, help will be provided to you to make sure that your claim is properly filed. If there's a mistake made, claims can always be amended.
CLASS ACTIONS & THIRD PARTY SUITS
29. Are there class actions filed? Who filed them?
Two class actions have been filed, both by The Gibbs Law Group, 505 14th Street, Suite 1110 Oakland, CA 94612 (510) 350-9722.
The first class action was filed in state court against PFI, PISF, Lewis Wallach and Casey's Estate. It is likely that the complaint will be amended to include other defendants as facts become known. The class plaintiff is Susan Aiken.
A second class action has been filed in Federal Court against Umpqua Bank on the theory that the bank aided and abetted the fraud. Umpqua has been PFI’s and PISF’s bank for many years. Shela Camenisch Dean and Dale M. Dean are the class plaintiffs.
30. Am I part of the class? Can I opt out?
All investors are automatically incuded in the class in both class actions. At some point, you will be given an opportunity to opt out.
31. How does the class action fit into the whole picture?
Michael Goldberg, PFI's Independent Director, and The Gibbs Law Firm will coordinate their efforts. The goal of the class actions is to increase the pot from which investors may recover.
32. Will suit be filed against such third parties as banks, title companies, and other who may have participated in the fraud?
Yes, every effort will be made to recover from any third party who may have liability. Attorneys retained to sue third parties will be retained only upon a contingency basis. They will be paid only if they are successful in winning the suit.
33. What is considered part of Kenneth Casey's estate?
A typical estate consists of several different category of assets, including but not limited to:
Assets held in the decedent’s name, including assets in which the decedent owns a percentage interest as tenant in common
Assets subject to right of survivorship, e.g., joint tenancy
Assets distributed to named beneficiaries, e.g., life insurance
Assets held in a revocable trust
34. What assets are subject to probate?
Only those assets in the first bullet point in the question above are subject to probate. Assets with right of survivorship are automatically distributed to the joint survivor(s). Assets with named beneficiaries are distributed to those beneficiaries. Assets held in a revocable trust are distributed by the trustee according to the terms of the trust. Non-probate assets may be available to creditors. See below.
35. Will there be a probate of Casey's estate?
Yes. PFI has filed a petition to probate the estate to facilitate the recovery of estate assets for the benefit of investors.
37. If there are no probate assets to pay creditors, do creditors have any other options?
The assets in a revocable trust are subject to creditors’ claims. At this point we don’t know what those assets are.
The assets in an irrevocable trust may be available to creditors if the trust was established for the purpose of shielding the property transferred to the trust from creditors. This is governed by California’s fraudulent conveyance law.
Assets distributed to survivors and beneficiaries may be subject to creditors if the funds were obtained by Casey through this fraudulent scheme.
Trust assets (and other assets such as offshore assets) will be tracked and, hopefully, retrieved through the bankruptcy, the class action suit, and, perhaps, by the Department of Justice. These assets should be distributed to the investors based on the final agreement as to each investor’s share of the assets.
STRAIGHT NOTE HOLDERS
38. What's the difference between a promissory note and a straight note?
Only the name. There is no other difference. Apparently, the title “Promissory Note” was used for investments made through a retirement account, and the title “Straight Note” was used for non-retirement account investments.
39. I have paperwork that says my note from PISF is secured by ten limited partnerships. So why is my note considered unsecured?
The security interest given was the equity in the ten limited partnerships, not the actual real estate. In any event, the security interest wasn’t perfected with a UCC-1 filing and, therefore, it is considered unsecured.
40. Will the assets of PFI be available to pay Straight Note holders?
Yes. The forensics accounting has shown that investor money and income from properties (for both PFI and PISF) was extensively co-mingled so that there is no ability to separate the two companies or the various entities in which the companies invested.
41. Why are Promissory or Straight Note holders considered "last in line" to get paid?
They are no longer considered last in line. If the plan is approved by creditors, including investors, all investors, regardless of the type of investment, will share in "one pot."
42. When this is over, will Straight Note holders receive cash?
That’s impossible to know until a global settlement has been reached in the bankruptcy. It is is possible that some properties will be sold to cash out those who prefer to receive cash while other properties are retained for those who wish to continue their investment in the company.
DEED OF TRUST (DOT) INVESTORS
43. My name was omitted from the list of unsecured creditors or the amount is incorrect. What should I do?
As part of the PISF bankruptcy proceeding, a list of creditors (including note holders) and the amount due to them has been filed with the bankruptcy court. A similar filing has been made for PFI in which those who've loaned money to PFI for the purchase of property owned by PFI and have a deed of trust are listed. Though some may consider this an invasion of privacy, the names of investors (creditors) and the amount due them is a matter of public record. If you are a note holder and if, after reviewing the PISF document, you don't find your name or there is an error, Michael Goldberg has advised that there’s nothing to do now or to worry about. Eventually, the amounts will be accurate. He will soon be providing a contact person for those who’ve been omitted.
Michael Hogan has pointed out that only creditors of PFI and PISF will be listed. If you are invested in a limited partnership or a limited liability company, those entities are not, as of now, in bankruptcy. Therefore, your name will not be listed on either company's list of creditors.
44. Who are the members of and the attorney for the DOT ad hoc committee?
The DOT ad hoc committee members are:
The committee's attorney is Cecily Dumas
45. How will DOT investors be treated for distribution purposes.
There will be "one pot" in which all investors, regardless of the type of investment(s) they have. All investors will be treated the same.
46. Why are the banks getting paid but deed of trust holders are not?
It's important to keep the senior lender current in order to avoid foreclosure. Junior lenders are not being paid while the forensic accounting is underway. It is necessary to determine whether all creditors should be treated the same.
LIMITED LIABILITY COMPANY (LLC) INVESTORS
47. Who is on the LLC ad hoc committee?
Chair: Rama Sethi-Gulati
Vice Chair: Barbara Denempont
Ex Officio Member: Francesca McCartney
48. Who is the attorney for the the LLC ad hoc committee?
Robbin L. Itkin, Partner at Sklar & Kirsh
49. How do we get updates from the LLC ad hoc committee?
The LLC ad hoc committee is working on creating a newsletter that will be sent out to LLC investors to include updates on important matters. More details will come soon.
Ad hoc committee members will be present at biweekly LLC meetings to provide updates.
50. How will LLC investors be treated for distribution purposes?
There will be "one pot" in which all investors, regardless of the type of investment(s) they have. All investors will be treated the same.