Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Guttilla & Murphy, PC
Firm No. 00133300 Patrick M. Murphy (No. 002964) 4150 West Northern Ave. Phoenix, Arizona 85051 [email protected] (623) 937-2795

Attorneys for the Disbursing Agent 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9
Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

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Securities and Exchange Commission, Plaintiff, v. Millennium Capital Hedge Fund, L.P.; Millennium Capital Group, LLC; and Andreas F. Zybell, Defendants.

) Cause No. CV03-1862 PHX FJM ) ) PETITION NO. 4 ) ) PETITION FOR ORDER APPROVING ) FINAL ACCOUNTING AND FINAL ) ) TAX RETURNS, EXONERATING THE ) COURT'S DISBURSING AGENT AND ) HIS AGENTS, AND AUTHORIZING ) THE RETENTION AND ) DESTRUCTION OF RECORDS ) )

Lawrence J. Warfield, as the court appointed Disbursing Agent, respectfully petitions the Court as follows: 1. On October 4, 2004, this Court entered its Order Appointing a Disbursing

Agent Based Upon Joint Stipulation of Parties (Doc. 49), which appointed Lawrence J. Warfield as a Disbursing Agent ("Disbursing Agent") to investigate claims and recommend and implement a Distribution Plan for the distribution to the rightful owners of certain funds held by Charles Schwab & Company in account number 5074-6700 in the name of Millennium Capital Hedge Fund. The Disbursing Agent was not required by the Court to post a bond.

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

2.

On January 14, 2005 the court entered its Stipulated Order Re: Petition No.

1 (Doc. 60), which among other things, required claimants to file proofs of claim with the Disbursing Agent by March 14, 2005, and directed the Disbursing Agent to file with the Court a proposed Plan of Distribution by May 16, 2005. 3. On May 16, 2005, the Disbursing Agent filed with the Court his Petition

No. 2, Disbursing Agent's Proposed Plan of Distribution (Doc 62). On May 18, 2005, the Disbursing Agent also filed with the Court his Petition No. 3 (Doc. 63) requesting approval of fees and costs of the Disbursing Agent and his attorneys. On July 5, 2005, the Court entered its Order Re: Petition No. 2 (Doc. 69) approving the proposed Plan of Distribution and authorizing the Disbursing Agent to transfer all of the funds held by Charles Schwab & Company in account number 5074-6700 in the name of Millennium Capital Hedge Fund to a disbursement account at Chase Manhattan Bank in the name of Lawrence J. Warfield, Disbursing Agent for disbursement to the investors and payment of the approved fees and costs for the Disbursing Agent and his attorneys. On July 8, 2005, the Court entered its Order Re: Petition No. 3 (Doc. 70) approving for payment the fees and costs incurred by the Court's Disbursing Agent and his attorneys. 4. The Disbursing Agent has now completed the disbursement of funds

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entrusted to him in accordance with the Court's Order Re: Petition No. 2 and Order Re: Petition No. 3. 5. Attached as Exhibit 1 is the Disbursing Agent's final accounting from

inception through August 31, 2005, which accounts for the receipt and disbursement of all funds entrusted to the Lawrence J. Warfield as the Court's Disbursing Agent. All of

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

the disbursement checks have cleared the bank and the disbursement account has been closed. 6. The Disbursing Agent's final accounting attached as Exhibit 1 is

appropriate and should be approved. 7. The Disbursing Agent has prepared final federal and state tax returns for his

service to the Court, which returns are attached hereto as Exhibits 2 and 3, respectively. These returns reflect the receipt and disbursement of funds as shown in Exhibit 1. These returns will be filed with the respective taxing authorities. 8. The Disbursing Agent has no further use for the records obtained or created

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by him as the Court's Disbursing Agent and therefore requests that this Court authorize the Disbursing Agent: a. To retain the books and records necessary to support the tax returns

filed by the Disbursing Agent for a period of 4 years from the date such returns are filed and thereafter destroy the records. This retention period is intended to comply with the records retention requirements set by the Arizona Department of Revenue and the Internal Revenue Service. b. To retain all other records obtained or created by the Court's

Disbursing Agent for at least ninety days and thereafter destroy all such the records. 9. The Disbursing Agent and his employees, agents, attorneys and assistants

should be exonerated from any and all further liability to the parties or the creditors, claimants, beneficiaries, or owners of the funds entrusted to the Disbursing Agent. WHEREFORE, the Disbursing Agent requests that the Court enter an order:
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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

1. 2.

Approving the Disbursing Agent's final accounting attached as Exhibit 1; Approving the final fiduciary tax returns attached as Exhibits 2 and 3 and

authorizing the Disbursing Agent to file same with the appropriate federal and state taxing authorities.; 3. Authorizing the Disbursing Agent to retain the books and records necessary

to support the tax returns filed by the Disbursing Agent for a period of 4 years and thereafter destroy the records; 4. Authorizing the Disbursing Agent to destroy all books and records obtained

or created by the Court's Disbursing Agent and not necessary to support the tax returns filed by the Disbursing Agent after 90 days from the date of this order; 5. Exonerating the Disbursing Agent and his employees, agents, attorneys and

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assistants from any and all further liability to the parties or the creditors, claimants, beneficiaries, or owners of the funds entrusted to the Disbursing Agent; 6. Enjoining all persons from commencing or prosecuting, without leave of

this Court, any action against the Court's Disbursing Agent or his agents in connection with or arising out of the Agent's service to this Court; and 7. relief. Respectfully submitted this 26th day of October, 2005. GUTTILLA & MURPHY, PC Retaining jurisdiction for the purpose of enforcing the above injunctive

s/Patrick M. Murphy Patrick M. Murphy Attorneys for Disbursing Agent
0866-001(44282)

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Guttilla & Murphy, PC
4150 West Northern Ave Phoenix, Arizona 85051 (623) 937-2795

PROOF OF SERVICE This is to certify that a true copy of the foregoing Petition has been filed electronically with the Court and that the persons on the attached Master Service List designated as "CM/ECF Registered" will be served with same by the Court's CM/ECF system; that a proposed Order has been e-mailed to the assigned Judge with copies to all persons on the attached Master Service List designated as "CM/ECF Registered"; and that the other persons on the attached Master Service List have been served with a copy of the Petition and proposed Order by first class mail this 26th day of October, 2005.

s/Patrick M. Murphy Patrick M. Murphy

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MASTER SERVICE LIST
SEC v. Millennium Capital Hedge Fund, et al United States District Court of Arizona Phoenix 03-CV-1862 PHX FJM
(Rev. May 26, 2005

Lawrence J. Warfield Warfield & Company 14555 North Scottsdale Road, #340 Scottsdale, AZ 85254 Disbursing Agent Patrick M. Murphy Guttilla & Murphy, PC 4150 West Northern Avenue Phoenix, Arizona 85051 Counsel for Disbursing Agent Gregory C. Glynn Securities and Exchange Commission 5670 Wilshire Boulevard, 11th Floor Los Angeles, California 90036-3648 Attorneys for Plaintiff Martin J. McCue, Esq. Frey & McCue, PLLC 8270 N. Hayden, Suite 2051 Scottsdale, Arizona 85258 Attorneys for Defendants Millennium Capital Hedge Fund, L.P.; Millennium Capital Group, LLC, and Andrea F. Zybell Anthony Burgi, Esq. Burgi Phelps, PLLC 109 West University Drive Suite 1 Mesa, Arizona 85201 Attorneys for Proposed Amici

John R. Browne, III Law Offices of John R. Browne, III 39 Drumm Street San Francisco, California 94111-4805 Attorney for Chris A. Larson, D.D.S.

0866-001(33022)

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