An interesting document, well worth the wait, I think:
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GUST ROSENFELD P.L.C.
201 N. Central Avenue, Suite 3300
Phoenix, Arizona 85073-3300
(602) 257-7431
Timothy W. Barton - 001515
Attorneys for Plaintiffs
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
FRANCESCO MARASCO, SR.; MARIA TERESA MARASCO GODIN; RICHARD WINSTON DeVRIES,
Plaintiffs
JEANETTE BEE WILCHER; LIFE FOUNDATION TRUST; LADENBURG THALMANN & CO., INC., a Delaware corporation; PAINWEBBER INCORPORATED, a Delaware corporation; BANK ONE, ARIZONA, NA, an Arizona corporation; WILLIAM H. WALLACE; DONALD C. CARTER and ROBERT J. CRUMP,
Defendants.
No. CV 98-11535
AMENDED COMPLAINT
(P.A. Hon. Jonathan H. Schwartz)
Plaintiffs, for their claims for relief against the Defendants, allege:
PARTIES
1. Francesco Marasco, Sr. ("Marasco"), Maria Teresa Marasco Godin ("Godin") and Richard Winston DeVries ("DeVries") are residents of the Province of Alberta, Canada.
2. Defendant Jeanette Bee Wilcher ("Wilcher") is, upon information and belief, a resident of Phoenix, Arizona, who caused an event to occur in the State of Arizona, out of which Plaintiffs' claims for relief arose.
3. Life Foundation Trust ("Trust") was created by Wilcher as of November 1, 1995. Wilcher was the grantor, trustee and initial beneficiary of Trust.
4. Upon information and belief, Wilcher created the Trust for the purpose of the fraudulent schemes hereinafter alleged.
5. Ladenburg Thalmann & Co., Inc. ("Ladenburg") is a Delaware corporation which is registered to do business in Arizona.
6. Painwebber Incorporated ("Painwebber") is a Delaware corporation qualified to do business in the State of Arizona.
7. Bank One, Arizona, NA, is a national banking association, with its principal place of business in Phoenix, Arizona.
8. William H. Wallace ("Wallace") is a resident of the State of Arizona and is the son of Wilcher.
9. Donald C. Carter ("Carter") and Robert J. Crump ("Crump") are residents of the province of Alberta, Canada who caused events to occur in the State of Arizona, out of which Plaintiffs' claims for relief arose.
GENERAL ALLEGATIONS
10. On October 30, 1997, Plaintiffs, Carter, Crump and others met with Wilcher at the offices of the Trust in Scottsdale, Arizona. During that meeting, Wilcher, Carter and Crump represented to Plaintiffs that Wilcher had done a number of bank trading programs that had resulted in considerable profit.
11. Wilcher, Carter and Crump requested that Plaintiffs, along with Carter and Crump and Wilcher, enter into a joint venture/profit sharing agreement pursuant to which Marasco would invest $500,000.00 in cash with Wilcher and Trust.
12. The joint venture/profit sharing agreement provided that Wilcher and the Trust would place the $500,000.00 invested by Marasco "into a program" pursuant to which Marasco or Joint Venture Group-Canada ("Partnership") would be paid, and Wilcher and the Trust promised to pay, interest at the rate of 2 1/2% per week.
13. On October 31, 1997, Marasco caused to be wire transferred to the bank account of Life Foundation Trust with State Bank & Trust in Carroleton, Texas the sum of $500,000.00.
14. Neither Marasco, the other Plaintiffs, nor the Partnership have received any payments of profit from the investment made with Wilcher and Trust, nor have Wilcher and Trust provided Marasco, Plaintiffs, or Parmership with .any information or accounting as to the investment or investments made with the $500,000.00.
15. Plaintiffs are informed and believe that Wilcher and the Trust used Marasco's $500,000.00 to make deposits in banks and with stock brokerage companies for their own account and not for the account of Marasco, the other Plaintiffs or Partnership, and to purchase real property in Arizona and possibly elsewhere in the names of Wilcher and Wallace.
16. Godin caused to be paid to Carter and Crump the sum of $50,000.00 on October 31, 1997 for a finder's fee in connection with the introduction of Wilcher and Trust to Marasco made by Carter and Crump.
DERIVATIVE ACTION
17. Plaintiffs bring this action in part on behalf of any partnership or joint venture which may be found to exist between them and Defendants Carter and Crump, although Plaintiffs do not believe that such a partnership or joint venture exists. To the extent that any exist, Plaintiffs are partners or joint venturers in the partnership or joint venture at this time and were at the time of the transactions set forth hereinafter of which they complain.
18. Plaintiffs made no effort to have Partnership, if one exists, bring this action because to have done so would have been unsuccessful or unlikely to succeed.
19. Following the filing of this action, Plaintiffs' counsel received a letter from Crump, purporting to be acting on the instructions of Carter, in which Crump claimed that a partnership existed between Plaintiffs, Carter and Cramp in which Carter was designated the "Managing Joint Venturer." The letter demanded that this litigation be dismissed. Thus any demand by the Plaintiffs that Partnership bring this action would have been futile.
COUNT ONE
(Consumer Fraud)
20. Plaintiffs incorporate the foregoing allegations pertaining to Parties and General Allegations.
21. Wilcher, Trust, Carter and Crump made false promises and misrepresentations to Plaintiffs in connection with the payment of $500,000.00 by Marasco to Wilcher and Trust and $50,000.00 by Godin to Carter and Crump. The representations included that Marasco's money would be invested in a program involving "bank guaranteed contracts and bank guaranteed pay orders". The promises and representations made to Plaintiffs were false at the time that they were made by Wilcher, Trust, Carter and Crump. Wilcher and Trust had no intention of investing Marasco's money as represented but rather intended at that time to use Marasco's money for their personal purposes. Carter and Crump were aware of Wilcher and Trust's intentions in this regard.
22. Plaintiffs were injured as a result of the false promises and representations in that Marasco has been denied and may have lost the sum of $500,000.00 and Godin has been denied and may have lost the sum of $50,000.00.
23. The acts and conduct of Wilcher, Trust, Carter and Crump constitute unlawful practices under A.R.S. § 44-1522 entitling Plaintiffs to judgment in the amount of their damages.
24. The acts of Wilcher, Trust, Carter and Crump were motivated by an evil motive and done with the intention of injuring Plaintiffs so as to entitle Plaintiffs to recover punitive damages.
25. Plaintiffs claims arise out of contract and under A.R.S.§ 12-341.01 Plaintiffs will be entitled to recover their attorneys' fees.
WHEREFORE, Plaintiffs pray judgment against Wilcher, Trust, Carter and Crump, and each of them, as follows:
(a) For Plaintiffs' damages in an amount not less than $550,000.00, together with interest thereon at the rate of 10% per annum, from and after October 31, 1997, until paid.
(b) For punitive damages in an amount deemed appropriate by the trier of the fact to punish Wilcher, Trust, Carter and Crump and to deter others similarly situated from engaging in like conduct.
(c) For Plaintiffs' attorneys' fees herein incurred.
(d) For Plaintiffs' costs herein incurred and expended.
(e) For such other and further relief as is just.
COUNT TWO
(Fraud)
26. Plaintiffs incorporate the foregoing allegations pertaining to Parties and General Allegations and the allegations of Count One.
27. The representations made by Wilcher, Trust, Carter and Crump that Wilcher and Trust had experience in, and knowledge and ability, to enter into bank guaranteed contracts and bank guaranteed pay orders to generate profit and that Wilcher and Trust would invest Plaintiffs' funds in those vehicles were false, and known to be false at the time that the representations and warranties were made_by Wilcher, Trust, Carter and Crump. The representations that were made to Plaintiffs were material to Plaintiffs in that Marasco would not have wire transferred $500,000.00 if he had known of the falsity of the representations, which he did not, and Godin would not have paid to Carter and Crump the sum of $50,000.00 if she had known of such falsity, which she did not.
28. Wilcher, Trust, Carter and Crump knew that the representations they made to Plaintiffs were false and intended Plaintiffs to act upon them which they did in justifiable reliance upon the truth thereof. As a result, Plaintiffs were damaged in the amount of not less than $550,000.00.
WHEREFORE, Plaintiffs pray judgment against Wilcher, Trust, Carter and Crump, and each of them, as follows:
(a) For Plaintiffs' damages in an amount not less than $550,000.00, together with interest thereon at the rate of 10% per annum, from and after October 31, 1997, until paid.
(b) For punitive damages in an amount deemed appropriate by the trier of the fact to punish Wilcher, Trust, Carter and Crump and to deter others similarly situated from engaging in like conduct.
(c) For Plaintiffs' attorneys' fees herein incurred.
(d) For Plaintiffs' costs herein incurred and expended.
For such other and further relief as is just.
COUNT THREE
(Rescission)
29. Plaintiffs incorporate the foregoing allegations.
30. The fraudulent conduct of the Defendants Wilcher, Trust, Carter and Crump entitle the Plaintiffs to rescind the entire transaction, including any partnership or joint venture they may have entered into with any of the Defendants.
31. The Plaintiffs offer to place the Defendants in status quo ante upon the condition that the Defendants'repay to the Plaintiffs the monies paid by Plaintiffs to them.
WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them, as follows:
(a) For an order of the Court rescinding all transactions between the Plaintiffs and the Defendants.
(b) Ordering that the parties place each other in status quo ante.
(c) For Plaintiffs' attorneys' fees herein incurred.
(d) For Plaintiffs' costs herein incurred and expended.
(e) For such other and further relief as is just.
COUNT FOUR
(Conversion)
32. Plaintiffs incorporate herein the foregoing allegations.
33. Wilcher and Trust unlawfully exercised dominion and control over and converted the $500,000.00 that Marasco wire transferred to their bank account on October 31, 1997.
WHEREFORE, Marasco prays judgment against Wilcher and Trust, and each of them, as follows:
(a) For his damages in an amount not less than $500,000.00, together with interest thereon at the rate 10% per annum, from and after October 31, 1997 until paid.
(b) For punitive damages in an amount deemed appropriate by the trier of the fact to punish Wilcher and Trust and to deter others similarly situated from engaging in like conduct.
(c) For Marasco' attorneys' fees herein incurred.
(d) For Marasco's costs herein incurred and expended.
(e) For such other and further relief as is just.
COUNT FIVE
(A.R.S. § 13-2314.04) -
34. Plaintiffs incorporate herein the foregoing allegations:
35. Marasco and Godin have sustained reasonable foreseeable injury to their property by a pattern of unlawful activity alleged above and hereinafter.
36. Marasco and Godin are informed and believe, and upon such information and belief allege, that Wilcher and Trust have obtained funds from certain European investors in the approximate amount of $1,200,000.00 under circumstances substantially identical to alleged above.
37. An act of scheme or artifice to defraud, as defined in A.R.S. § 13-2301 occurred as a result of the benefit obtained by Wilcher, Trust, Carter and Crump through the matters alleged above. This act of
scheme or artifice to defraud was part of a pattern of unlawful activity defined in A.R.S. § 13-2314.04(S)(3) in connection with the matters alleged above.
38. The unlawful acts alleged as the basis of the claim as a pattern of unlawful activity were related to each other. The unlawful acts had the same or similar purposes, results, participants, victims and methods of commission. The lawful acts that are alleged as the basis of the claim were continuous.
39. Marasco and Godin were damaged in their property as a result of the pattem of unlawful activity in an amount in excess of $550,000.00.
WHEREFORE, Marasco and Godin pray judgment against Wilcher, Trust, Carter and Crump, and each of them, as follows:
(a) For the amount of their damages to be proven at trial.
(b) For treble damages.
(c) For Plaintiffs' attorneys' fees herein incurred.
(d) For Plaintiffs' costs herein incurred and expended.
(e) For such other and further relief as is just.
COUNT SIX
(Derivative Action)
40. Plaintiffs incorporate herein the foregoing allegations:
41. To the extent that it is determined that a partnership or joint venture exists between any of the parties to this action, then Plaintiffs bring this action not only individually but also on behalf of such partnership.
42. Plaintiffs incorporate Counts One, Two, Four, Five, Seven, Eight and Nine.
43. The acts alleged in Counts One, Two, Four, Five, Seven, Eight and Nine injured the Partnership so as to entitle the Partnership to the relief requested in each of those counts should it be determined that a partnership exists.
WHEREFORE, Plaintiffs pray judgment against the Defendants Wilcher, Trust, Carter and Crump for the relief prayed for in Counts One, Two, Four, Five, Seven, Eight and Nine.
COUNT SEVEN
(Constructive Trust)
44. Plaintiffs incorporate the foregoing allegations pertaining to Parties, General Allegations and Derivative Action.
45. Plaintiffs are informed and believe, and upon such information and belief allege that money, securities and other property belonging either to Marasco, or any partnership that may be found to exist, stand in the name of Wilcher or Trust with Ladenburg in Account No. IQ-46158-04 or other accounts, the numbers of which are unknown to Plaintiffs.
46. Plaintiffs are informed and believe and upon such information and belief allege that money, securities and other property belonging to Marasco or Partnership, if one is found to exist, but standing in the name of Wilcher or Trust with Painwebber may be in Account No. AQ 29788-VF or other accounts, the numbers of which are unknown to Plaintiffs.
47. Plaintiffs are informed and believe and upon such information and belief alleges that money, securities and other property belonging to Marasco or Partnership, if one is found to exist, but standing in the name of Wilcher or Trust with Bank One may be in Account No. 1492-5549 or other accounts, the numbers of which are unknown to Plaintiffs.
48. Plaintiffs are informed and believe and upon such information and belief allege that Wilcher and Trust used Marasco or Partnership's funds to purchase securities being held by Painwebber and Ladenburg and deposited some of Marasco or Pair. nership's funds with Bank One.
49. Painwebber, Ladenburg and Bank One hold any securities, money and other property standing in the name of Wilcher and Trust as constructive trustees for the benefit of Marasco or any partnership that may be found to exist.
WHEREFORE, Plaintiffs pray judgment against Painwebber, Ladenburg and Bank One as follows:
(a) That Painwebber, Ladenburg and Bank One hold any money, securities and other property standing in the name of Wilcher or Trust as constructive trustees for the benefit of Marasco or any partnership that may be found to exist.
(b) That Painwebber, Ladenburg and Bank One be ordered and directed to pay and deliver to Marasco or any partnership that may be found to exist any money, securities or other property the Court finds they hold in constructive trust.
(c) For such other and further relief as the Court may deem just in the premises.
COUNT EIGHT
(CONSTRUCTIVE TRUST - WILCHER)
50. Plaintiff incorporates herein as if fully set forth herein the foregoing allegations.
51. On October 31, 1997, the same day that Plaintiff wire transferred $500,000.00 to the account of Wilcher and Trust, Wilcher purchased real property located in Scottsdale, Arizona through escrow number 75-11577 in the records of Security Title Agency ("Wilcher Property"). The legal description of the real property acquired by Wilcher is attached hereto as Exhibit A.
52. Plaintiff is informed and believes, and upon such information and belief alleges, that the down payment on the Wilcher Property was made with Plaintiff's funds as a result of which Wilcher holds
title to the Wilcher Property in constructive trust for the benefit of Plaintiff.
WHEREFORE, Plaintiffs pray judgment against Wilcher as follows:
(a) That Wilcher holds title to the Wilcher Property as constructive trustee for the benefit of Plaintiffs or any partnership that may be found to exist..
(b) That Wilcher be ordered and directed to convey to Plaintiffs or any parmership that may be found to exist, title to the Wilcher Property that she holds in constructive trust for the benefit of Plaintiffs or any partnership that may be found to exist.
(c) For such other and further relief as the Court may deem just in the premises.
COUNT NINE
(CONSTRUCTIVE TRUST - WALLACE)
53. Plaintiffs incorporate herein as if fully set forth herein the foregoing allegations.
54. On or about March 27, 1998 Wallace acquired title to the real property located in Maricopa County, Arizona, described in Exhibit B attached hereto ("Wallace Property") through escrow number 98430228 in the records of Stewart Title & Trust of Phoenix.
55. Plaintiff is informed and believes, and upon such information and belief, alleges that Wilcher and Wallace used Plaintiffs' funds to acquire title to the Wallace Property as a result of which Wallace
holds rifle to the Wallace Property in trust for Plaintiffs or any partnership that may be found to exist.
WHEREFORE, Plaintiffs pray judgment against Wallace as follows:
(a) That Wallace holds title to the Wallace Property as a constructive trustee for the benefit of Plaintiffs or any partnership that may be found to exist.
(b) That Wallace be ordered and directed to convey to Plaintiffs title to the Wallace Property that he holds in constructive trust for the benefit of Plaintiffs or any partnership that may be found to exist.
56. For such other and further relief as the Court may deem just in the premises.
GUST ROSENFELD P.L.C.
By (signature)
Timothy W. Barton
Attorneys for Plaintiffs
Copy of the foregoing mailed
this 17th day of September, 1998, to:
James O. Ehinger
Robbins & Green, P.A.
1800 Norwest Tower
3300 N. Central Ave.
Phoenix, AZ 85012
Attorneys for Defendant Wilcher
Timothy J. Thomason
Streich Lang, P.A.
Two North Central Ave.
Phoenix, AZ 85004-2391
Attorneys for Defendant Bank One,
Arizona, NA
(signature)
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CANADA
Alberta
Francesco Marasco, Sr., being first duly sworn upon oath, deposes and says: he is Plaintiff in the foregoing cause of action; that the matters alleged therein are true to the best of his knowledge and belief; that the matters and things alleged upon information and belief are believed to be true.
(signature)
Francesco Marasco, Sr.
Subscribed and sworn to before me this 25th day of June, 1998.
(Seal and Expiration Date)
(signature)
Notary Public
being an attorney and whose appointment does not expire while an attorney (barrister and solicitor)
RICHARD W. DEVRIES
Barrister & Solicitor
Notary Public in and for
the Province of Alberta
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EXHIBIT A
That part of Parcel 2 as described in Request for Lot Split recorded in Document No. 95-0312783, records of Maricopa County, Arizona, located in the Northeast quarter of the Northwest quarter of Section 21, Township 3 North, Range 5 East of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, described as follows:
Beginning at the Southeast comer of LAUREL LANE ESTATES, according to Book 281 of Maps, page 6, records of Maricopa County, Arizona, said point also being on the center line of Laurel Lane;
Thence North 00 degrees 06 minutes 33 seconds West, along the East line of LAUREL LANE ESTATES, a distance of 265.00 feet to the Southwest comer of said Parcel 2 and the True Point of Beginning;
Thence continuing North 00 degrees 06 minutes 33 seconds West, along the East line of said LAUREL LANE ESTATES and the West line of said Parcel 2, a distance of 230.17 feet to the Northwest comer of said Parcel 2;
Thence South 89 degrees 59 minutes 56 seconds East, along the North line of said Parcel 2, a distance of 197.25 feet;
Thence South 00 degrees 06 minutes 33 seconds East a distance of 140.17 feet to a point of a curve concave to the Southwest having a radius of 45.00 feet (Radius bears South 00 degrees 06 minutes 33 seconds East) and a central angle of 90 degrees 06 minutes 33 seconds;
Thence Southeast along the arc of said curve a distance of 70.77 feet;
Thence South 00 degrees 10 minutes 33 seconds East a distance of 45.00 feet to a point on the South line of said Parcel 2, said point being the Northeast comer of a 25 foot ingress/egress easement described in Easement recorded in Document No. 94-0540083, as corrected by instrument recorded in Document No. 96-0581490, and by instrument recorded in Document No.___, records of Maricopa County, Arizona;
Thence West, along the South line of said Parcel 2, a distance of 242.30 feet to the True Point of Beginning.
EXHIBIT B
(LEGAL DESCRIPTION)
ORDER NO. 98430228
Lot Eighty-nine (89), MONTAGE, according to the plat of record in the office of the County Recorder of Maricopa County, Arizona, recorded in Book 368 of Maps, page 46.
EXCEPT all coal, oil, gas and other mineral deposits; and
EXCEPT all uranium, thorium or any other material which is or may be determined to be particularly essential to the production of fissionable materials, whether or not of commercial value, as reserved in Patent from the United States of America.
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