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Investors cheered and clapped at the end of a hearing on Monday in which U.S. District Judge Bruce Jenkins said he will approve a plan that could give them back 100 percent of the money they poured into an real estate investment company accused of fraud.
One investor in Management Solutions Inc. of Fountain Green even did a fist pump at the conclusion of the hearing in the 3½-year-old lawsuit brought by the Securities and Exchange Commission.
David Broadbent, an attorney for court-appointed receiver Gil Miller, said about $100 million was available for a first round of distributions, with another $31 million held back as a contingency to cover claims still under litigation.
Jenkins called the case "unusual" because investors will be returned all or nearly all the money they put in.
"Usually we're dealing with pennies not dollars," he said.
The SEC sued Management Solutions and owners Wendell and Allen Jacobson in December of 2011, alleging they ran it and related companies as a Ponzi scheme, taking money from the latest investors and using it to pay earlier ones to make it appear that their apartment building purchases were always profitable.
The Jacobsons commingled funds among all their entities even while telling investors they were funding specific projects, failed to invest 50 percent of their own money in each project as promised and falsely said their apartment complexes had never lost money, according to the complaint.
Jenkins had previously ruled that Management Solutions was not a Ponzi scheme going back to 1998 as the first receiver in the case had argued.
But Miller, who was appointed to take over as receiver about a year ago, has said that the company was being operated fraudulently since the beginning of 2009.
Broadbent told Jenkins on Monday that Management Solutions had "many characteristics of a legitimate business" up to Dec. 31, 2008.
"By that date, however, the enterprise was insolvent," Broadbent said, adding that it "exhibited the characteristics of a Ponzi scheme."
There have been 421 claims made to the court seeking a return of monies.
Miller said after the hearing that he would be able to return most, if not all, of investors' funds because of the appreciation in real estate prices in recent years and because the Jacobsons gave up their claim of 51 percent ownership when they agreed to settle the case. Without extinguishing the Jacobsons' claim of an ownership stake, investors would have gotten back only about 50 percent of their monies, he said.
Miller told Jenkins that many of the investors had suffered without access to their monies since the lawsuit was filed and he promised to seek permission for the first disbursement of funds within 30 days of the judge's order approving the distribution plan.
Attorney Matthew Barneck, who represented two investors and their company, asked Jenkins to delay approval of the plan until their dispute with the receiver has been decided.
Jenkins pointed out that money was being held back to settle any outstanding claims but he did agree to include language in his order that said those disputes remain open even after the distribution plan is approved.
Daniel Wadley, lead attorney for the Securities and Exchange Commission, said the biggest fear heard from investors earlier in the lawsuit had been that the receivership was going to suck up all their monies for legal and other professional fees.
"It is time to allay those fears and take the opportunity to return those funds to the individuals who need them," he told Jenkins.