WexTrust Capital Investigation Update

Receiver Reports on WexTrust Capital: Bankruptcy Option Held in Reserve and 3^rd Party Claims Can Go Forward

As some WexTrust Capital investors may be aware, yesterday the court appointed Receiver held a town hall meeting to update investors on the status of his investigation into WexTrust Capital and the financial dealings of Joseph Shereshevsky and Steven Byers. Prior to the event, I had a private meeting with the Receiver and it was explained that he was appointed by the court to maintain status quo of the various properties and to marshal the assets of the different partnerships.

The Receiver reported that he had discovered $20 to $30 million in cash in WexTrust Capital related bank accounts and that there are additional marketable securities and commodities in other WexTrust Capital accounts.

To deal with the overwhelming amount of information and paperwork, the Receiver has employed an army of attorneys, accountants, and valuation experts to determine the extent to which WexTrust Capital funds were allegedly co-mingled by Joseph Shereshvksy and Steven Byers, the financial condition of the WexTrust Capital properties and whether properties should be sold to fund distributions to investors.

Importantly, the Receiver indicated that he was open to hearing from potential buyers of WexTrust Capital properties and assets. He plainly stated that he did not intend to make any fire sales but was seeking the highest value in connection with any sales of WexTrust Capital assets.

Much of the WexTrust Capital cash located will likely be used for emergency needs of certain properties. For example, the WexTrust Capital entity called Gold Coast Limited Partnership which owns the Park View Hotel in Chicago is a property in dire need of funding. While the hotel is ready for operation, it has no furniture and will need a cash infusion in order to be a money-making property. Other WexTrust Capital properties need cash infusions to pay for utilities, repairs, and other pressing needs.

The Receiver and his “army” will also tap the cash for their expenses subject to court and SEC’s approval.

With regard to WexTrust Capital’s South African diamond mine property – Block III, Idex and Pure African Minerals (PAM), perhaps the largest fund raise by WexTrust – the Receiver reported that those properties raised $75 million from investors, but only $40 million went to Africa, while $35 million was apparently diverted.

The Receiver has just returned from a trip to Africa and found the management very uncooperative with his investigation. He has retained local counsel in Africa to deal with the situation. The receiver has also placed on the board of directors of the various WexTrust Capital diamond mine entities, two members from his staff and has called an emergency meeting of the board of directors for next Tuesday to discuss the situation and to obtain access to records. Contrary to the alleged representations of Joseph Shereshevsky and Stephen Byers, the Receiver did not believe that the diamond mines would be able to “bail out” other WexTrust Capital shortfalls.

With regard to the issue of bankruptcy, the Receiver stated that he was undertaking a study of whether any of the WexTrust Capital entities should file for bankruptcy and would be reporting the study’s findings to the court in the months ahead. He indicated where there were viable businesses bankruptcy would likely not be in the interest of WexTrust Capital investors. Bankruptcy would likely place the interests of banks and secured creditors ahead of the interests of WexTrust Capital investors and would likely lead to additional costs which would be borne ultimately by investors.

The receiver indicated that bankruptcy might be appropriate for specific entities, but it was indicated that a consolidated bankruptcy (of multiple or all partnerships) might not be an appropriate path.

With regard to distribution of funds recovered to WexTrust Capital investors, the Receiver indicated that a pro-rata distribution across the board would only be appropriate if the funds were hopelessly commingled or that WexTrust Capital, Joseph Shereshevksy and Stephen Byers, other WexTrust Capital partners never treated the partnerships as different entities. It appears that this is not the case and that distribution may eventually be made based on the WexTrust Capital funds traced to specific partnerships.

With regard to my interest in possibly pursuing claims in court or arbitration against third-party financial institutions (banks, brokerage firms, professionals and advisors), the receiver stated that such claims were not covered by the court’s “stay” and could proceed. It is possible that such lawsuits would yield additional recoveries over and above the efforts of the Receiver to recover funds from the WexTrust assets. I will be meeting with investors in the coming weeks to plan my strategy to hold potentially liable 3^rd parties to account.

The Receiver also indicated that there is a court hearing on September 19 to ask the court to review the freeze on Joseph Shereshevsky wife’s Elka’s assets given that Jospeh Shereshevky may have transferred assets to her possibly to avoid creditors. The court will also hear evidence from the SEC seeking a preliminary injunction to continue to freeze WexTrust Capital assets and for other relief in order to continue to protect investor funds.

Lastly, Joseph Shereshevksy was released from jail on $10 million bond subject to severe restrictions to prevent his flight. He is confined to home detention and allowed to leave only for religious services and medical reasons.

WexTrust Capital Preliminary Court Hearing is a Can’t Miss for Investors

On Thursday, September 4^th, the Honorable Denny Chin of United States District Court, Southern District of New York, will hold a preliminary hearing that is of the utmost importance for investors in any of the WexTrust Capital entities and their dealings with Joseph Shereshevsky and Steven Byers. Zamansky & Associates will attend the hearing in furtherance of the investigation on behalf of WexTrust Capital investors.

Among the issues investors may learn of is the status of the myriad WexTrust Capital entities and perhaps understand what the values of those assets are, and just as important, whether they are liquid. Furthermore, investors may learn whether any of the WexTrust Capital investment vehicles, or the individuals Joseph Shereshevsky or Steven Byers, plan to file for bankruptcy protection. This obviously would have a significant impact on investors pursuing their claims.

Extremely significant to investors is whether Judge Chin will lift the stay from filing claims and allow investors to individually act to recover their investments and seek restitution for the alleged WexTrust Capital fraud. We have heard from multiple WexTrust Capital investors interested in pursuing claims against the WexTrust entities and potential third-party participants.

It is likely we will be briefed on the investigations taking place by the SEC at the hearing and potentially the U.S. Attorney. More is certainly to come and clearly this is a pivotal point for WexTrust Capital investors.

Previously, we wrote an extensive analysis on WexTrust Capital and our own investigation. Investors would be advised to read it and contact us if there are questions. For more information, the following resources include added details:

• WexTrust Capital SEC Complaint
• WexTrust Capital Receivership website
• WexTrust Capital news articles:
  • Two Wextrust Capital Owners Are Arrested, Wall Street Journal
  • WexTrust Capital Owners Charged in $100 Million Fraud, Bloomberg
  • Court-appointed receiver takes over WexTrust Capital, Virginia Pilot
  • U.S.: WexTrust Capital owners duped Orthodox Jews, Chicago Tribune
  • Joseph Shereshevsky, Steven Byers scammed Orthodox Jews, stole $100M: feds, Chicago Sun-Tribune
  • Feds sue Wextrust, allege $255M ponzi scheme, Atlanta Business Journal
  • WexTrust Capital Alleged to Scam Orthodox Jews, HedgeFund.net
  • WexTrust Execs Arrested For Diverting Funds, North County Gazette
  • SEC Accuses WexTrust of Ponzi Scheme, NY Times blogs

WexTrust Capital Investigation Eerily Similar to Peter Dawson’s Long Island Fraud

For as sophisticated as today’s financial gurus claim to be, the old-fashion Ponzi scheme is still alive and well. Indeed, the SEC filed a major case against WexTrust Capital (a Chicago-based private equity firm), its partners and various investment affiliates, that allegedly ripped off an estimated 1,200 investors, mainly from the Jewish Orthodox community. In response, Zamansky & Associates has launched its own investigation in order to return funds back to investors.

It is estimated that WexTrust Capital, and one of its main partners, Joseph Shereshevsky, may have defrauded their investors by as much as $100 million, which the SEC alleges was diverted to cover personal expenses, among other expenditures. According to the SEC’s complaint,

“Defendants have been fraudulently raising money in the various offerings, each of which purportedly is for a particular investment, without disclosing that funds raised were actually being used to pay prior investors in unrelated offerings and to make unauthorized payments to fund the operations of the Wextrust Entities, which were operating at a deficit. An internal Wextrust combined “balance sheet” shows that as of December 31, 2007, Wextrust Entities “borrowed” at least $74 million from the LLC entities and also “lent” at least $54 million to various LLC Entities. The Defendants are raising money and commingling funds in contravention of specific representations in private placement memoranda that investor funds will be used for specific investments in real estate or other assets identified in offering memoranda.”

All together, the SEC alleges that WexTrust Capital conducted at least 60 private placement offerings and created approximately 150 entities in the form of limited liability companies or similar vehicles. Throughout the process, the SEC alleges, WexTrust Capital partners didn’t disclose material information, never purchased properties it promised to investors and paid themselves profitably. WexTrust Capital allegedly committed a litany of violations of U.S. Securities laws.

Indeed, this is the classic Ponzi scheme strategy and eerily similar to Zamanky & Associates’ pending case in Long Island court involving Peter Dawson, a now jailed investment advisor who ripped off dozens of retirees. Among the similarities between the Dawson case and that of WexTrust Capital are:

• Both situations are examples of affinity schemes: WexTrust Capital targeted members of the Jewish Orthodox community and specifically, those that attended the B’nai Israel Congregation. Mr. Shereshevsky was close with the Rabbi who vouched for him regularly, according to the Wall Street Journal. By the same token, Peter Dawson targeted members of the East Meadow Methodist Church, and had close ties with its Pastor.
• Investor borrowed against his home: According to the Journal, at least one investor, and potentially others, borrowed against his house in order to invest in WexTrust Capital.
• Managers of WexTrust Capital and its affiliates enjoyed lavish lifestyles, as did Mr. Dawson, by allegedly fraudulent means.

And basically both Mr. Dawson and Mr. Shereschevsky and WexCapital, commingled funds, which is a fancy way of robbing “Peter to pay Paul.” For example, in the SEC’s report under “The Block III Offering Fraud,” WexTrust Capital did the following:

Block III Mines & Minerals, LLC (”Block III”) is a Virginia limited liability company organized to make a loan to and acquire an interest in a Namibian company, Deva Investments (Pty), Ltd., which owns the exploration and mining rights in a group of diamond mines in Namibia known as Block III.

Block III Managers, LLC, a Virginia limited liability company, is the manager of Block III. Block III Managers is wholly-owned by Brandon Investments, and that Brandon Investments is a wholly-owned subsidiary of Wextrust.

Defendants Byers and Shereshevsky, together with Defendant Wextrust and Brandon Investments, controlled the issuer, Block III.

Block III issued a private placement memorandum dated March 22, 2007 (the “Block III PPM”) seeking to raise $11 million from investors. The Block III PPM represents that the proceeds of the offering will be used as follows: (a) $4.5 million would be used for new equipment and operating capital, (b) $1.5 million would be used to fund a reserve for a purchase option on two other mines, (c) $1.75 million would fund an operating reserve, $300,000 would pay legal and operating expenses, and (d) approximately $2.95 million would be paid in fees to Wextrust and Wextrust Securities. Moreover, the operating agreement attached to the Block III PPM specifically limited the use of funds to expenses related to Block III.

These representations were false. Moreover, the Defendants knew, or were reckless in not knowing, the representations were false. Almost immediately after the money was raised, Defendants diverted the proceeds to unauthorized uses.

The Wextrust balance sheet shows that $3,990,910 of proceeds raised by Block III Mines & Minerals LLC was diverted to Wextrust Entities.

Defendants Wextrust Securities acted as a placement agent in the Block III offering.

The Block III PPM describes Shereshevsky as a “principal and integral part of Wextrust”, and states that Shereshevsky was “instrumental in the founding of Wextrust Securities”. The Block III PPM fails to disclose Shereshevsky’s prior felony conviction. Defendants Byers and Shereshevsky knew, or were reckless in not knowing, of Shereshevsky’s conviction.

Defendant Shereshevsky and his wife received transaction based compensation of $249,577, or approximately two percent of the funds raised by Wextrust Securities, in connection with the Block III offering. The Shereshevskys also received $750,000 in bonuses in connection with the Block III offering.

WexTrust Capital’s Troubles

Its likely WexTrust Capital will attempt to defend itself by saying that investments simply went south and it’s “buyer beware.” But the SEC’s evidence points otherwise. For example, Mr. Shereshevky emailed a business partner which showed they both were aware that their activities were fraudulent:

“Please remember one thing. That although I always take care of you and myself, my goal in this thing as I have always told you from day one, is to get [W]exTrust out of all the s—- before the end of 09 or 10 at the latest. that is my primary concern. We have faced it until we made it for long enough and now we must clean it up.”

Mr. Dawson pleaded guilty and is serving a sentence of five to 15 years; a sentence provided to him only after helping investor recover their money. At least at this point, the SEC has only filed civil charges. Shereshevsky and his Chicago partner affiliated with WexTrust Capital were arrested earlier this week and face criminal charges. The WexTrust Capital partners could be looking at much longer sentences if they choose to fight the charges.

WexTrust Capital Investors: What’s Next?

Naturally, the investors in WexTrust Capital are asking simply, “where’s my money now and how do I get it back?” In the Peter Dawson case, most of the funds were squandered. It’s unclear at this point whether any of WexTrust Capital assets are retrievable, but in all likelihood even the assets that are liquid won’t amount to a full recovery for the allegedly defrauded investors.

The key in recovering money is to ferret out solvent firms that potentially aided and abetted the fraud, or at least were in the position to stop it. In the Dawson case, we are suing banks, mortgage brokers, mortgage lenders and other firms, which Mr. Dawson himself alleges were participants. This takes an extensive amount of research and investigation, but if you follow the money in all likelihood there are places that can be found were recoverable money exists.

Investors in the WexTrust Capital scheme are likely feeling a whole host of emotions. It’s important to have hope, be patient, and communicate regularly with an attorney.

WexTrust Capital and Peter Dawson: What are the lessons for investors?

Perhaps the over arching lesson in these two cases is due diligence. According to the SEC’s complain, Mr. Shereshevsky had a prior history of investment-related fraud:

“In March of 1993, Shereshevsky was arrested for bank fraud, among other things. In June 2003, Shereshevsky pleaded guilty in the Southern District of New York to one felony count of bank fraud. He was sentenced to time served, 24 months supervised release and ordered to pay restitution in the amount of $38,797.90, which judgment was satisfied on February 15, 2005.”

Even if the investment advisor is a member in good standing at investor-affiliated organizations, such as a church, synagogue or rotary club, a full due diligence investigation should be conducted.

And then there is the age old adage: if something is too good to be true, it probably is.