Money in Utah-based pension fund remains frozen
By Tom Harvey
The Salt Lake TribuneFirst published May 08 2014 01:18PM
Some 5,500 clients at American Pension Services of Riverton will have to wait at least another 13 days before having access to their accounts, which were frozen after government regulators alleged more than $20 million of their $352 million had gone missing.
U.S. District Judge Robert Shelby on Thursday continued a temporary restraining order that freezes the funds of the Riverton company pending a May 21 hearing in the Securities and Exchange Commission lawsuit that also names owner Curtis L. DeYoung.
The SEC alleges in its complaint filed April 24 that DeYoung had taken at least $22.7 million from client accounts and invested it personally, much of it with friends. Those included at least three entities that the SEC has alleged in other cases were Ponzi schemes and that lost all of the funds placed with them.
APS clients also invested in Impact Cash and with businessman Dee Randall, both of which have been accused of fraudulent activities.
"We have been very concerned about APS for several years, since so many investors in fraudulent schemes are directed to use APS by the perpetrators," Gil Miller, the court-appointed receiver in both those cases, told the Tribune.
Diane Thompson, a Los Angeles attorney who was appointed the receiver to take control of American Pension Services and all of its and DeYoung’s assets, said she intended to file a motion before the next hearing that will ask Shelby to allow clients to begin accessing their accounts, including resumption of regularly scheduled payouts.
Bruce Collet of Centerville, a client who attended the hearing, said that he might have to postpone the pending sale of property he had invested in through the self-directed retirement accounts offered by American Pension Services.
"We’d sure like to get to the bottom of whether the funds are missing," said Collet after the hearing, adding clients then want to know how the loss of any funds would be allocated among them.
That last issue is at the top of the agenda for Thompson, said Mark Gaylord, a Salt Lake City attorney who represents the receiver. The receiver is examining the way the missing funds were removed from bank accounts that pooled funds from all of the individual accounts to determine how losses should be allocated, he said.
Daniel Wadley, an SEC attorney in the Salt Lake City office, told Shelby that depositions from former employees and a forensic accountant had backed up the agency’s allegations that there was $24 million missing and that DeYoung was responsible.
"It has confirmed unquestionably the allegations in this case," he said.
Paul Moxley, the attorney who represents DeYoung, said he believed that the SEC did not have jurisdiction to file the lawsuit because the allegations did not involve the type of financial instruments the agency regulates.
But Moxley’s continuing representation of DeYoung also is an issue in the case. Wadley said it’s well-established law that someone accused of financial wrongdoing cannot then use ill-gotten gains to pay for an attorney to defend them.
"A bank robber ought not to be able to use the proceeds of the robbery to finance the get-away vehicle," he said.
Shelby told Moxley he could file a motion to determine the source of the funds DeYoung proposes to use to pay for the attorney.