Opinion
CASE NO. 2:12-cv-00417-EAS-MRA
03-19-2013
HILDA L. SOLIS, Secretary of Labor, United States Department of Labor, Plaintiff, v. MARK ATCHISON; and the ZUBER LANDSCAPE, INC. DAVIS-BACON TURNKEY PENSION PLAN, Defendants.
FOR THE SECRETARY OF LABOR: M. PATRICIA SMITH Solicitor of Labor CHRISTINE Z. HERI Regional Solicitor BENJAMIN T. CHINNI Associate Regional Solicitor FOR DEFENDANT MATK ATCHISON: MARK ATCHISON Individual FOR DEFENDANT ZUBER LANDSCAPE, INC. DAVIS-BACON TURNKEY PENSION PLAN MARK ATCHISON Fiduciary of the Zuber Landscape, Inc.
JUDGE:
EDMUND A. SARGUS
CONSENT ORDER AND JUDGMENT
Plaintiff, Hilda L. Soils, Secretary of Labor, United States Department of Labor, (the "Secretary'') pursuant to the provisions of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §1001, et seq., filed a complaint against defendants, Mark Atchison and the Zuber Landscape, Inc. Davis-Bacon Turnkey Pension Plan, alleging breaches of fiduciary responsibilities under ERISA §§ 403(a)and (c)(1) [29 U.S.C. §§ 1103(a) and (c)(1)], 404(a)(1)(A) [29 U.S.C. § 1104(a)(1)(A)], 406(a)(1)(D) [29 U.S.C. § 1106(a)(1)(D)], 406(b)(1) [29 U.S.C. § 1106(b)(1)], 406(b)(2) [29 U.S.C. § 1106(b)(2)], and 412(a) and (b) [29 U.S.C. § 1112(a) and (b)], with respect to the Zuber Landscape, Inc. Davis-Bacon Turnkey Pension Plan (the "Plan").
Defendants have waived service of process of the complaint and admit to the jurisdiction of this Court over them and the subject matter of this action.
The Secretary and Defendants have agreed to resolve all matters in controversy in this action between them (except for the imposition by the Secretary of any penalty pursuant to ERISA § 502(1), 29 U.S.C. § 1132(1), and any proceedings related thereto), and do now consent to entry of a Consent Order and Judgment by this Court in accordance therewith.
The parties agree that, if the Secretary of Labor assesses a penalty pursuant to ERISA §502(1) in connection with the violations alleged in this matter, the "applicable recovery amount" shall include all amounts paid in accordance with this Consent Judgment and Order.
Upon consideration of the record herein, and as agreed to by the parties, the Court finds that it has jurisdiction to enter this Consent Order and Judgment.
IT IS THEREFORE ORDERED that:
1. Defendant Atchison is permanently enjoined and restrained from violating the provisions of Title I of ERISA, 29 U.S.C. § 1001 et seq.
2. Defendant Atchison violated his ERISA fiduciary duties with respect to the Plan as alleged in the Secretary's complaint. Defendant Atchison is liable to the Plan in the total amount of $31,152.48 which represents the prohibited transfer of Plan assets totaling $22,301.93 from the Plan's account with Nationwide Life Insurance Company ("Nationwide") and lost opportunity costs totaling $8,850.55 as of March 15, 2013, that accrued as a result of this prohibited transfer. The Plan also has an account with DWS Investments.
3. As a result of defendant Atchison's ERISA violations, Defendant Atchison owes and is ordered to restore $31,152.48 to the Plan.
4. Defendant Atchison has demonstrated a current inability to pay the aforementioned $31,152.48 owed to the Plan. His demonstration of current inability to pay includes his completion of a Declaration of Financial Status executed under penalty of perjury and his U.S. Tax Returns. Defendant Atchison shall complete and submit to the Regional Director, U.S. Department of Labor - Employee Benefits Security Administration, 1885 Dixie Hwy, Ste 210, Ft. Wright, KY 41011-2664859-578-4680; 859-578-4688 (Fax) ("EBSA Regional Director") an annual Declaration of Financial Status, a form copy of which is attached hereto as Exhibit A, on or before May 15 of each year beginning on May 15, 2013, and continuing for seven (7) consecutive years or until the amount ordered in paragraph 3 of this Judgment is repaid in full, whichever occurs first, or if not required by federal law to file an annual federal tax return, Defendant Atchison shall provide a statement under oath that such filing is not required.
5. To the extent that Defendant Atchison's financial status permits, he shall restore to the Plan the total amount of $31,152.48, as set forth in paragraph 3 above, plus post-judgment interest pursuant to 28 U.S.C. Section 1961, according to the following schedule of his income, beginning on May 15, 2013 and continuing for seven (7) consecutive years, or until the amounts recited in this judgment are repaid in full, whichever occurs first:
10% of Defendant Atchison's reportable gross income in excess of $35,000 up to $50,000 for the preceding year on or before May 15;
25% of Defendant Atchison's reportable gross income in excess of $50,000 for the preceding year on or before May 15;
100% of any bequest, inheritance, gifts over $5,000, lottery and gambling winnings over $5,000 or proceeds of any life insurance policy Defendant Atchison may receive within 30 days of receipt
6. If Defendant Atchison fails to comply with the payment schedule above or it is found that the documents he provided or provides in the future regarding his financial status are untrue, the full amount of losses owed to the Plan of $31,152.48 plus accrued post-judgment interest pursuant to 28 U.S.C. Section 1961 shall immediately become due and payable.
7. In restoring the monies to the Plan referenced in paragraph 3, Defendant Atchison shall send the monies directly to the participant and/or beneficiaries in an amount equal to each participant's pro-rata share of the restoration as illustrated in Exhibit B attached hereto. Proof of payments shall be sent within ten (10) business days of issuance to: Cincinnati Regional Director, Employee Benefits Security Administration at U.S. Department of Labor, EBSA, Cincinnati Regional Office, 1885 Dixie Highway, Suite 210, Ft. Wright, Kentucky 41011-2664.
8. Defendant Atchison shall exercise reasonable care and diligence to identify and locate each participant and beneficiary of the Plan who is eligible to receive a distribution. Defendant Atchison may rely upon the procedures for locating lost participants that are described in Field Assistant Bulletin 2004-02 of the Department of Labor, Employee Benefits Security Adrninistration (Exhibit C) and Revenue Procedure 94-22 of the Internal Revenue Service. If, after exhausting these procedures, participants or their beneficiaries cannot be located for the purposes of distribution, Defendant Atchison shall promptly notify the Regional Director, EBSA, U.S. Department of Labor, 1885 Dixie Highway, Room 210, Fort Wright, KY 41011, of the names, last-known addresses and social security numbers of said participants or beneficiaries.
9. Defendant Atchison shall immediately be removed as a fiduciary to the Plan and shall be permanently enjoined from serving or acting as a fiduciary or service provider with respect to any ERISA-covered employee benefit plan.
10. Advanced Pension Solutions, Inc. 6830 Commerce Court Drive, Blacklick, Ohio 43004, is hereby appointed as the independent fiduciary for the Plan. The Independent Fiduciary shall distribute Plan assets to participants and beneficiaries who have funds in the Plan, including the DWS Investments account, as soon as administratively feasible. The independent fiduciary shall have the following additional powers, duties and responsibilities:
a. The independent fiduciary shall have responsibility and authority to collect, liquidate, and manage such assets of the Plan for the benefit of the eligible participants and beneficiaries for the Plan who are entitled to receive such assets, until such time that the assets of the Plan are distributed to the eligible participants and beneficiaries of the Plan;
b. The independent fiduciary shall have responsibility and authority for terminating the Plan. Such termination shall be made in accordance with the Plan's governing documents, the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq., and the Internal Revenue Code. While not required to obtain a determination letter to terminate the Plan under ERISA or the Internal Revenue Code, the independent fiduciary shall make a determination as to whether it is prudent to go through the determination letter process for the Plan. The independent fiduciary's responsibilities with respect to the termination of the Plan shall include, but not be limited to, liquidating the Plan's assets, communicating with participants regarding the termination of the Plan and their disbursal options, calculating the participant and beneficiaries account balances, and filing appropriate termination papers with the Internal Revenue Service and the Department of Labor;
c. The independent fiduciary shall exercise reasonable care and diligence to identify and locate each participant and beneficiary of the Plan who is eligible to receive a payment under the terms of this Consent Order and Judgment and to disburse to each such eligible participant or beneficiary the payment to which he or he is entitled;
d. The independent fiduciary shall have full access to all data, information and calculations in the Plan's possession or under its control,
including that information contained in the records of the Plan's custodial trustees and other service providers, bearing on the distribution of benefit payments, participant account balances and current Plan assets;
e. The independent fiduciary may retain such persons and firms including but not limited to accountants and attorneys, as may be reasonably required to perform his or her duties hereunder;
f. The independent fiduciary shall obtain bonding in an amount that meets the requirements of ERISA § 412, 29 U.S.C. § 1112. The costs incurred by the independent fiduciary in obtaining such bonding shall be paid by the Plan;
g. Within 30 days of the distribution of all of the Plan's assets, the independent fiduciary shall provide the EBSA Regional Director, at EBSA, Fort Wright Executive Building I, 1885 Dixie Highway, Suite 210, Fort Wright, Kentucky, 41011-2664, with a report identifying the distributions made by the Plan since the independent fiduciary's appointment;
h. The independent fiduciary shall not be responsible for bringing any action on behalf of the Plan against any prior fiduciaries or service providers of the Plan for violations of state or federal law that occurred prior to the date of the independent fiduciary's appointment The independent fiduciary shall be responsible for pursuing any violations of ERISA that occur after his or her appointment as the independent fiduciary by this Court;
i. The independent fiduciary may not be held responsible or liable for any claim against the Plan or related entities that existed, arose, matured or vested prior to his or her appointment as independent fiduciary for the Plan; and
j. For the service performed pursuant to this Consent Order and Judgment, the independent fiduciary shall receive compensation not to exceed $1,325.00, as identified in the fee proposal attached hereto as Exhibit D. The cost of the fidelity bond is included in the $1,325.00 sum.
11. Defendant Atchison agrees that he will notify the EBSA Regional Director within seven (7) days of any of the following: (i) change of name; (ii) change of residence; (iii) change of telephone number; (iv) change of mailing address; (v) change of employment; and (vi) any bequests, life insurance proceeds, lottery or gambling winnings, gifts, or any other income in excess of $5,000. The requirements of this paragraph shall apply until May 15, 2020 or until the amounts recited in this Judgment are repaid in full, whichever occurs first.
12. Defendant Atchison in his capacity as a fiduciary of the Plan, (a) failed to hold Plan assets in trust; (b) failed to act solely in the interest of the participants and beneficiaries of the Plan and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of Plan administration; (c) caused the Plan to engage in transactions which he knew or should have known constituted a direct or indirect transfer to, or use by or for the benefit of a party in interest of Plan assets; (d) dealt with assets of the Plan in his own interest or for his own account; and (e) in his individual or other capacity acted in transactions involving the Plan on behalf of parties (or represented parties) whose interests were adverse to the interests of its participants or beneficiaries.
13. The $31,152.48 are assets of the Plan and Defendant Atchison is liable to the Plan for this amount
14. Defendant Atchison violated §§ 403(a)and (c)(1) [29 U.S.C. §§ 1103(a) and (c)(1)], 404(a)(1)(A) [29 U.S.C. § 1104(a)(1)(A)], 406(a)(1)(D) [29 U.S.C. § 1106(a)(1)(D)], 406(b)(1) [29 U.S.C. § 1106(b)(1)] and 406(b)(2) [29 U.S.C. § 1106(b)(2)] by the conduct set forth in paragraph 12, above.
15. Defendant Atchison's breach of his fiduciary duties under ERISA to the Plan, as set forth above, constitute defalcations while acting in a fiduciary capacity with respect to the Plan and its participants, within the meaning of 11 U.S.C. §523(a)(4).
16. In the event Defendant Atchison files for bankruptcy protection in the future, any amount of unpaid liability set forth in paragraphs 3 and 13 above, which resulted from his breach of fiduciary duties, is, and shall be treated as, a nondischargeable debt under §523(a)(4) of the Bankruptcy Code, 11 U.S.C. §523(a)(4).
17. Each party agrees to bear his, her or its own attorneys' fees, costs and other expenses incurred by such party in connection with any stage of this proceeding to date including, but not limited to, attorneys' fees which may be available under the Equal Access to Justice Act, as amended.
18. The Court shall maintain jurisdiction over this matter only for purposes of enforcing this Consent Order and Judgment.
19. The Court directs the entry of this Consent Order as a final order.
20. Nothing in this Consent Order and Judgment is binding on any government agency other than the United States Department of Labor, Employee Benefits Security Administration.
________________________
UNITED STATES DISTRICT JUDGE
The parties hereby consent to the entry of this consent order and judgment: FOR THE SECRETARY OF LABOR: M. PATRICIA SMITH
Solicitor of Labor
CHRISTINE Z. HERI
Regional Solicitor
BENJAMIN T. CHINNI
Associate Regional Solicitor
________________________
MICHELLE M. DeBALTZO
(Ohio Reg. No. 0067998)
Trial Attorney
CARTER M. STEWART
United States Attorney
Southern District of Ohio
FOR DEFENDANT MATK ATCHISON: ________________________
MARK ATCHISON
Individual
FOR DEFENDANT ZUBER LANDSCAPE,
INC. DAVIS-BACON TURNKEY PENSION
PLAN
________________________
MARK ATCHISON
Fiduciary of the Zuber Landscape, Inc.
AFFIDAVIT CONCERNING FINANCIAL STATUS
STATE OF ****** COUNTY OF *******
I, Mark Atchison, being duly sworn, affirm and say:
I am over the age of 21 years and reside at ______________________________________________________. I make this affidavit (the "Affidavit") at the request of Secretary of Labor, United States Department of Labor ("the Secretary"), by and through her counsel, for the purpose of informing the Secretary of my current financial condition as condition to a proposed compromise and settlement of judgment ("Settlement") owed by me as Defendant or proposed Defendant in a lawsuit filed by, or potentially filed by, the Secretary.
I know that the Secretary will rely upon the accuracy of the statements and representations made by me in this Affidavit in inducing the Secretary into any acceptance of a proposed Settlement. I further acknowledge that any misrepresentation or omission by me of information in this Affidavit may subject me to criminal penalties, contempt action and/or civil action and the Secretary may rescind any settlement with me,
I have no property or assets and have no income except as hereinafter stated.
When the Affidavit describes assets that I "own" or "hold" or income that I "receive," the description includes without limitation: assets or properties which are owned or held by trustees, agents or nominees for my benefit, or on my behalf, and income received by persons for my benefit or on my behalf; and either
(select and mark the option that applies) ________(i) since I have never been married, no spouse holds any assets or property; or ________(ii) since I am currently married, assets or properties which are owned or held by my spouse, and income received by my spouse, except for assets, properties and income which constitute the separate property of my spouse under application laws; or ________(iii) since I am divorced, no current spouse holds any assets or property. The divorce was finalized in the past five (5) years; therefore, true and correct copies of the divorce decree and the property settlement are attached hereto, collectively as Exhibit "A." On this the ______ day of _________, 2012, I further state as follows: 1. J receive no gross income from any source whatsoever, except:
(list every source and amount of an annualized basis) 2. I have no savings account or certificate of deposit at any financial institution, domestic or foreign, except:
(list for each institution: name and address; and for each account: type, style, number and current balance; and attach copies of financial institution statements for the past three years to the Affidavit as collectively Exhibit "B" ) 3. I have no checking or cash management account at any financial institution, domestic or foreign, except:
(list for each institution name and address; and for each account: type, number and current balance; and attach copies of financial institution statements for the past three years to the Affidavit as collectively Exhibit "B ") 4. I have no traveler's checks or money orders in my possession or otherwise held on my behalf, except: (list type and denomination and in whose possession such checks and money orders are located) 5. I receive no salary and I am not entitled to any current or deferred salary from any source, except:
(list every source and amount on an annualized basis) 6. I receive no fees for management, technical or professional services rendered to any individual, partnership, firm or corporation, or from any other source, except:
(list every source and amount on an annualized basis) 7. I receive no commissions or royalties and I am not entitled to any current or deferred commissions or royalties from any source, except:
(list every source and amount on an annualized basis) 8. I receive no stock dividends from any corporation, domestic or foreign, except:
(list every source and amount on an annualized basis) 9. I receive no current or deferred bonus and I. am entitled to no current or deferred bonus from any source, except:
(list every source and amount) 10. I receive no stock options, whether exercisable or not or vested or not, and I am entitled to no future stock options, except: (list every source, amount of options, and value of options to which you have received since June 30, 2006 or will receive within the next 5 years) 11. I have no safe deposit box or access to any safe deposit box, except:
(list name and address of each institution, each safe deposit box number and the contents thereof) 12. I own no real estate, including mineral interests therein, of any nature whatsoever, except:
(List address, legal description and date and cost of acquisition of all real estate owned) 13. I have no ownership interest in any partnership, joint venture, corporation, of any sort, or other legal entity, except:
(list name and address of each partnership, joint venture, corporation legal entity, the nature or percentage of the interest owned, and date and cost of each interest) 14. I own no mortgages and own no interest in any mortgages, except:
(list amount, interest, description of each property mortgaged and identify each mortgagor) 15. I own no shares or assets in any financial institution, except:
(list name of each institution and each ownership interest) 16. I own no stocks, bonds, mutual funds, or other securities, except:
(list each, including date and costs of acquisition) 17. I own no commodities, except:
(list each, including date and cost of acquisition) 18. 1 have no account of any nature with any broker, except: (list name of each brokerage account number and outstanding balance in each account; and attach copies of brokerage house or account statements for the past three years to the Affidavit as collectively "Exhibit C" ) 19. I have no retirement or pension account and I am not a beneficiary of any retirement or pension account, except: (list name of each institution, entity, or individual, each account number and current balance in each account; and attach copies of financial institution or other account statements for the past three years to the Affidavit as collectively "Exhibit D" ) 20. I have no account of any nature not previously listed above with any financial institution or other entity or individual, except:
(list name of each institution, entity, or individual, each account number and current balance in each account; and attach copies of financial institution or other account statements for the past three years to the Affidavit as collectively "Exhibit D" ) 21. I have no power of attorney or other authority of any nature whatsoever, either over stocks, bonds, commodity accounts, or other form of securities, except:
(identify and describe all such property and beneficial owner(s) thereof) 22. I do not act as a trustee or fiduciary with respect to any property, either real or personal, except:
(identify and describe all such property and beneficial owner(s) thereof) 23. I own no bonds or evidence of debt of any governments, except:
(list all governmental debt issues owned and date and cost of acquisition of each) 24. I own no insurance policy of any type, except:
(list name of each company, face amount of each policy, types of each insurance, beneficiary and amounts borrowed thereon) 25. I receive no dividends from any insurance company, except: (list name of each company, face amount of each policy, types of each insurance, beneficiary and amounts borrowed thereon) 26. I pay no premium on any insurance policy, except:
(list name of each company, face amount of each policy, types of each insurance, beneficiary and amounts borrowed thereon) 27. I am not the beneficiary of any insurance policy, except: (list name of each company, face amount of each policy, types of each insurance, beneficiary and amounts borrowed thereon) 28. I have no interest in any patents, inventions, trade names, trademarks, copyrights, or royalty agreements, except:
(identify) 29. I have no claim against any insurance company except: (identify each company, amount of each claim and description of each claim) 30. I have no claim against or interest in any estate or any trust of any person, whether living or dead, except:
(identify each estate or trust, amount of each claim, and description of each claim or interest) 31. I have no claim against any person, whether living or dead, or any firm or corporation, except:
(identify each individual or entity, amount of claim, and description of each claim) 32. I am not a Plaintiff or Defendant in any action or proceeding now pending in any court, except:
(list the style of each case, case number, and court in which each case is pending) 33. I am not a party to any arbitration proceeding now pending before any arbitrator board of arbitration, except:
(identify each proceeding) 34. I have no funds, assets, or other things of value on deposit with attorneys and other third parties, excluding accounts with brokerage houses and insurers which I have identified elsewhere in this affidavit, except: (list each such arrangement resulting in placement of funds, assets, or valuable things on deposit by date of deposit, identity by name and address of attorney and third party holding or arranging the deposit, and value of deposit) 35. I have no interest in any promissory notes, drafts or commercial paper, except:
(identify with each the maker or drawer and the amount) 36. I am entitled to receive no money from any federal, state, county, or city government, or agency or department thereof, except:
(identify each agency or department and each amount) 37. I am entitled to no federal, state, county, city, or foreign tax refund, except:
(identify and list each amount) 38. There are no judgments or decrees outstanding against me or in my favor, except:
(list with each case, its style, case number and court which entered each judgment or decree and the amount awarded, and/or the nature of relief) 39. I have in effect no guaranty of the indebtedness or obligations of any individual, corporation, partnership or other entity, except:
(identify with each the debtor, the amount of the indebtedness, and all holders/owners of the indebtedness) 40. I have made no gifts valued in excess of five hundred and no/100 dollars ($500.00) since June 30, 2006, except: (list with each gift the approximate value thereof in terms of cost of acquisition, date of gift and the identity of the recipient) 41. I have made no conveyance of real or personal property for less than full value since June 30, 2006 including not only outright conveyances of assets but also no releases or waivers of any valuable claims or contract rights which I owned or held against other parties, except:
(list each property transferred, the approximate value thereof in terms of costs of acquisition, all property or money received for each transfer (if any), date(s) of each transfer, and the identity of each recipient of the transfer) 42. Since June 30, 2006, I have made no payments to any financial institution or any other holder/owner of my promissory notes, bonds, or other indebtedness, except for:
(list with each payment the date, the amount, and the identity of the payee) 43. No real or personal property is held by others for my benefit, except:
(list and describe each property held, the approximate value thereof in terms of costs of acquisition, the date of acquisition, the location of the property, and the identity of each holder) 44. I am not indebted to any individual, corporation, partnership, or other entity, including any financial institution, except:
(list name of each institution, entity, or individual, current amount of each indebtedness, and date each indebtedness was incurred) 45. I own no airplane, automobile, boat, trailer or any motor vehicle of any nature whatsoever, except:
(list with each vehicle: its description, current location, serial number, and date and cost of acquisition) 46. I am entitled to receive no money from any source either presently due or due in the future, except:
(list name and address of each source and the amount involved) 47. I do not own or have any interest in any work of art, collectible or antique, except:
(list with each item: its description, current location, and date and cost of acquisition) 48. 1 own no house, dwelling place, condominium, apartment, or co-operative apartment, except:
(list with each property: its description, address, and the date and cost of acquisition) 49. I have no financial statement prepared for or by me, and I have issued no financial statement to my bank, financial institution, firm, or person since June 30, 2006, except:
(identify and attach copies of all such financial statements to the Affidavit collectively as Exhibit "E") 50. I am a custodian of no property for any minor or other individual or entity, except:
(state description and acquisition cost of all such property and the identity of beneficial owner) 51. I own, or have a beneficial interest in, no property, real or personal, in Switzerland or any other foreign country or territory outside of the continental United States, except:
(Include with a description of item, its location, and the date and cost of acquisition) 52. Except for accounts previously stated in the Affidavit, I have no bank accounts, savings accounts or deposit accounts in financial institutions in any foreign country or territories outside the continental United States, except:
(list for each institution: name and address; and for each account: type, style, number and current balance) 53. Since June 30, 2006, I have not, directly or indirectly, directed a foreign bank, corporation, financial institution, brokerage house, or trustee or other entity holding assets in any foreign country or in any territories outside the continental United States, to make any payments or transfer any assets or other things of value to myself or other person or entity, except: (list for each institution: name and address; and for each payment or transfer: dollar amount, date, and recipient by name and address) 54. Since June 30, 2006, I have not used a credit, debit, or ATM card that was issued by a foreign bank, corporation, financial institution, brokerage house, or other entity, or that used funds held by or in a foreign bank, trust, or other entity, except: (list for each card: the card number, the name of the authorized cardholder, the issuing institution's name and address; and for each use: the dollar amount of transaction, date, and recipient by name and address) 55. Since June 30, 2006, I have not, directly or indirectly, sent, transferred, or caused to be sent or transferred, any moneys from the United States to any foreign trust or asset holding entity, other than for the immediate purchase of goods that were then sent back to the United States, except: (list for each transfer: date, dollar amount, payer entity, payee entity, reason and description for transfer) 56, Since June 30, 2006, I have not, directly or indirectly, established or caused to be established any foreign corporation, partnership, trust, or asset holding except: (list for each entity: name and address, date created, capitalization costs, co-owners and other interested parties with names and addresses, business or other purpose for establishment, description of your involvement in the establishment of the entity and your current relationship) 57. Since June 30, 2006, I have not transferred any property, real or personal, to my wife, children or grandchildren, or any business owned by my wife, children or grandchildren, except: (list the name and address of individual or entity receiving property, the property transferred, the value of the property at the time you purchased it, the value of the property at the time of transfer) 58. Since June 30, 2006, I have not transferred any money (in any form, including cash, checks, funds in a money market account, funds in a mutual fund, etc.) to my wife, children or grandchildren, or any business owned by my wife, children or grandchildren, except: (list the name and address of individual or entity receiving money, the amount of money transferred, the value of the money at the time you acquired it, the value of the money at the time of transfer) 59. Since June 30, 2006, I have not transferred any money (in any form, including cash, checks, funds in a money market account, funds in a mutual fund, etc.), real property or personal property to a trust, for the benefit of my wife, children or grandchildren, or any business owned by my wife, children or grandchildren, except: (list the name and address of the trust; the beneficiary of the trust; the date the trust was created; the date of transfers of all money, real property, or personal property into the trust; the value of all transfers at the time of transfer; the present value of the trust) 60. I own no jewelry having a value in excess of five hundred and no/100 dollars ($500.00), except:
(list for each item: description, location, and date and cost of purchase) 61. I own no season tickets or interest in such tickets, to any professional or college team games, except: (list the name of the team, type of tickets (e.g. football, basketball, etc.) value of tickets at time of purchase, donation made to the organization (e.g. college) to receive such tickets, number of years you have held such tickets) 62. Except for property previously stated in the Affidavit, I own no property of any nature whatsoever having a value in excess of five hundred and no/100 dollars ($500.00), except:
(list for each item: description, location, and date and cost of purchase) 63. My fixed monthly expenses (mortgage, rent, utilities, insurance, food, car, medical care, dues, etc.) are as follows, and I have attached true and correct copies (front and back) of the checks, since January 1, 2012, reflecting payment of these fixed monthly expenses, collectively as Exhibit "F."
(list amount and description of each fixed expense) 64. My annual salary from all sources is:
(list all sources and the amount of each) 65. I have attached true and correct copies of the tax returns (and all amendments to these tax returns) which I have filed with the Internal Revenue Service since June 30, 2006, collectively as Exhibit "G." 66. I have not traveled outside the continental United States since June 30, 2006, except as follows and I have attached a true and correct copy of my passport(s) in effect since June 30, 2006 as Exhibit "H":
(state for each trip: date, destination (each town/city and country), duration, and purpose) 67. No one is indebted to me for money, except as follows and I have attached true and correct copies of all documents evidencing the debt owed to me by others, collectively as Exhibit "I":
(list for each debt: debtor, amount, security, and due date) 68. I have no interest of any nature in any lease of real or personal property, except:
(for each lease: describe the nature, location of the property, and amount, frequency and duration of payments) 69. I know of no other material facts relating to my current financial condition, except:
(describe) 70. My full name, and all other names I have used, and my date of birth, social security number (tax identification number) and driver's license number are as follows: 71. My nearest living relatives identified by names, current addresses, and current telephone numbers, are as follows:
A. Spouse:
B. Parents:
C. Children:
D. Other: 72. My emergency contact identified by name, current address, and current telephone number is as follows:
I understand that any materially false, fictitious, or fraudulent statement or representation made knowingly and willfully in this affidavit is punishable by fine and/or imprisonment under the provisions of 18 U.S.C. § 1001.
I SWEAR UNDER PENALTY OF PERJURY THAT THE ABOVE IS A TRUE AND CORRECT STATMENT.
________________________
Mark Atchison
SUBSCRIBED AND SWORN to before me on this ______ day of ____________, 2012.
________________________
Notary Public
________________________
Printed name:
________________________
Commission Expires
INDEX OF EXHIBITS
+-----------------------------------------------------------------------+ ¦ ¦Exhibit¦ +---------------------------------------------------------------+-------¦ ¦Copies of Divorce Decree an Property Settlement ¦A ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Financial Institution Statements for the Past 3 Years¦B ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Brokerage Account Statements for the Past 3 Years ¦C ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Other Account Statements for the Past 3 Years ¦D ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Financial Statements since June 30, 2006 ¦E ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Monthly Expense Checks since January 1, 2012 ¦F ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Federal Income Tax Returns since June 30, 2006 ¦G ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Passport(s) since June 30, 2006 ¦H ¦ +---------------------------------------------------------------+-------¦ ¦Copies of Documents Evidencing Debt to Affiant ¦I ¦ +-----------------------------------------------------------------------+