Free Motion for Disbursement of Funds - District Court of Colorado - Colorado

Case 1:01-cv-00645-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-645-JLK SECURITIES AND EXCHANGE COMMISSION Plaintiff, v. KENNETH ROY WEARE a/k/a ROY WEAVER, J&K GLOBAL MARKETING CORPORATION, and AAA-AUCTION.COM, INC., Defendants.

RECEIVER'S NINTH AND FINAL APPLICATION FOR FEES AND EXPENSES FOR THE PERIOD FROM OCTOBER 1, 2007 THROUGH NOVEMBER 30, 2007 AND FOR ESTIMATED FEES AND EXPENSES TO BE INCURRED THEREAFTER

Patten, MacPhee & Associates, Inc., the Court-appointed Receiver in this case, hereby applies to the Court for the payment of professional fees and expenses for the period from October 1, 2007 through November 30, 2007, in the total amount of $25,810.29. In addition, the Receiver requests the payment of $5,928.45 for its estimated fees and expenses to be incurred after November 30, 2007. In support thereof, the Receiver states as follows: 1. On October 26, 2005, the Court entered its Order Appointing Receiver, appointing

Patten, MacPhee & Associates, Inc. as Receiver in the above-captioned matter to, among other things, establish and administer a claims process for investors and propose a distribution plan to the Court for funds collected by the SEC from various bank accounts in the United States and abroad.

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2.

Detailed descriptions of the activities undertaken by the Receiver since its appoint-

ment by the Court through November 30, 2007 have been provided in the Receiver's quarterly reports for the calendar quarters ended December 31, 2005, March 31, 2006, June 30, 2006, September 30, 2006, December 31, 2006, March 31, 2007, June 30, 2007 and September 30, 2007, and the Receiver's Ninth and Final Report and Unopposed Motion to Discharge Receiver, With Certificate of Compliance ("Ninth and Final Report"), filed contemporaneously herewith. In addition, a listing of the activities undertaken by the Receiver during the period covered by this fee application is set forth on pages 3-5 of Exhibit B, attached hereto. 3. To date, the Court has approved payment to the Receiver of $215,796.50 for

professional fees and $79,968.82 for reimbursement of the Receiver's out-of-pocket expenses. The following is a summary of the Receiver's Fees and Expenses that have been approved by the Court, to date, during the pendency of this receivership. Fee Application First Application Second Application Third Application Fourth Application Fifth Application Sixth Application Seventh Application Eighth Application Total Period 10/26/05 - 11/30/05 12/01/05 - 04/30/06 05/01/06 - 06/30/06 07/01/06 - 09/30/06 10/01/06 - 12/31/06 01/01/07 - 03/31/07 04/01/07 - 06/30/07 07/01/07 - 09/30/07 10/26/05 - 09/30/07 Fees Approved $18,050.00 $9,400.00 $35,582.50 $34,617.50 $25,205.00 $23,132.50 $35,550.00 $34,259.00 $215,796.50 Expenses Approved $49.05 $8,653.42 $24,222.35 $3,235.90 $11,426.56 $11,451.35 $9,188.67 $11,741.52 $79,968.82

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4.

In support of this Ninth and Final Application for Fees and Expenses, the Receiver

attaches the following: Exhibit A - List of Patten MacPhee & Associates, Inc.'s employees and their respective standard billing rates. Exhibit B - Summary of Billings, which includes Attachments 1 and 2. Attachment 1 to Exhibit B sets forth in detail, in chronological order, the time entries by employee, including a narrative description of the services rendered, during the period covered by this fee application. Attachment 1 also includes summaries, by employee and by category, of the hours and services for which the Receiver has billed. Each employee for whom the Receiver seeks payment of professional fees in connection with this matter has kept daily time records, and all work has been billed on an hourly basis. The Receiver has taken special care to ensure that duplication of time and services rendered has not occurred. In addition, it should be noted that while the undersigned has performed his professional responsibility to oversee and supervise this matter, he has charged only for his attendance at the hearing on October 15, 2007. Attachment 2 to Exhibit B sets forth detail regarding the out-of-pocket expenses incurred by the Receiver during the period covered by this fee application. 5. During the period of time covered by this fee application, the Receiver's employees

expended a total of 89.3 hours, for which the Receiver seeks payment in the amount of $14,880.00. As a result, the effective hourly rate requested by the Receiver in this fee application is $166.63. 6. During the period of time covered by this fee application, the Receiver also incurred

out-of-pocket expenses in the amount of $10,930.29. As set forth in Attachment 2 to Exhibit B, -3-

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essentially all of those expenses related to (a) legal services performed by The Jobin Law Firm, P.C. ($6,913.92) and (b) database, website and other services provided by MARKITOUTTM ($3,776.75). 7. Also included in this Ninth and Final Fee Application are estimated fees and expenses

in the total amount of $5,928.45 that the Receiver reasonably expects to incur after November 30, 2007, including after it is discharged from further service in this matter. The Receiver's estimated fees and expenses are itemized in this Ninth and Final Fee Application and discussed also in the Receiver's Ninth and Final Report filed contemporaneously herewith. Exhibit C, attached hereto and incorporated herein by reference, contains an itemization of the Receiver's estimated fees and expenses. It should be noted that the Receiver's estimated fees set forth in Exhibit C represent a flat fee for all services after November 30, 2007, including those related to the completion and filing of this fee application and the Receiver's Ninth and Final Report; the organization, storage and preservation of receivership records; any and all future communications with claimants, the SEC and/or criminal authorities; and, other administrative and ministerial tasks related to this receivership. The estimated expenses related to The Jobin Law Firm, P.C. represent legal fees and costs after November 30, 2007. The estimated costs for MARKITOUTTM are directly related to the backup, storage and preservation of all digital data, including the Receiver's website. 8. As reflected in Exhibit C, the Receiver has included in its itemization of estimated

expenses only expenses related to the delivery of all receivership documents to the SEC ($60.00). The Receiver has not included any estimated expenses for the storage or destruction of documents, based upon the SEC's offer to be responsible for those activities and costs. The Receiver has included an additional $117.20 for maintaining its website through June 30, 2008, and for the

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estimated unpaid charges related to the voice mail and broadcast e-mail accounts the Receiver has maintained related to this receivership. 9. The Receiver believes that the services rendered and expenses incurred to date have

been necessary and reasonable, especially in light of the scope of activities undertaken and the number of potential claimants here. For reasons discussed at length in the Receiver's Fifth Application for Fees and Expenses, the total amount requested by the Receiver for both professional fees and expenses in this matter has been substantially more than the Receiver's initial estimate of such fees and expenses set forth in its September 23, 2005 proposal in response to the SEC's request for proposals ("RFP"). In an effort to stay within its estimates of fees and expenses, while continuing to provide high quality professional services, a substantial number of hours expended by the Receiver's employees were recorded as no charge (NC). In addition, since January 1, 2007, the hours expended by Stephanie L. Katz have been charged at a discounted rate of $75.00 per hour. 10. Through November 30, 2007, the Receiver's employees have expended a total of

1,771.2 hours related to this receivership. Had all of those hours been charged to the receivership estate at the Receiver's standard hourly rates, the Receiver's fees would have totaled $276,667.50. Instead, through this and prior fee applications, the Receiver has sought payment for only $230,676.50 of fees, thereby saving the receivership estate $45,991.00 and resulting in an effective hourly rate during the entire receivership of $130.24. WHEREFORE, the Receiver respectfully requests that the Court enter an order granting it payment for professional fees and the reimbursement of out-of-pocket expenses for the period October 1, 2007 through November 30, 2007, in the total amount of $25,810.29, for payment of

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estimated fees and expenses, in the total amount of $5,928.45, which the Receiver reasonably expects to incur after November 30, 2007, and for such other and further relief as the Court deems just and proper. DATED this 7th day of December, 2007.

Patten, MacPhee & Associates, Inc.

s/Leslie A. Patten Leslie A. Patten, President 1775 Sherman Street, Suite 2900 Denver, Colorado 80203 Telephone: (303) 296-2900 Fax: (303) 296-4475

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