PROBLEMS AT THE VILLAGES AT HAYDEN---FAQBackground:
In May 2006, Grassy Creek Holding Company, 4S Development, Altus Bank, and Robinson Construction all partnered to form MAPI (Mountain Adventure Property Investments). MAPI's purpose was to develop, build, and sell new homes and/or finished lots at three projects...Lake Village (Villages at Hayden), Mt. Harris (The Cliffs at Steamboat), and Hidden Springs Ranch. Altus Bank insisted that Robinson Construction be involved as the lead contractor.
The responsibilities of each partner were:
1. Grassy Creek Holding Company was to contribute land to MAPI...and did.
2. 4S Development was to contribute land to MAPI...and did.
3. Altus Bank was to provide financing, accounting and tax reporting functions...and didn't.
4. Robinson Construction was to complete development infrastructure at its cost plus 5%...and didn't.
Frequently Asked Questions:
Question A: Why did Altus Bank recruit another bank...Vectra Bank to provide development/construction financing...and what part did David Bruni, President of Vectra Bank play?
Response: Altus Bank apparently did not have the financial capability it represented itself to have when MAPI was formed. Altus Bank principals went, instead, to other banks to find financing that they could not provide as part of their responsibility to MAPI. David Bruni (Pres. of Vectra Bank) was apparently encouraged, by Altus Bank to provide Vectra Bank financing for the project. He was, in turn, promised a position as president of MAPI, a large salary, benefits, signing bonus, and portion of company profits, none of which was authorized by MAPI managers.
Please see the file entitled "Question 'A' back-up documents" attached, and therein for a copy of the "Bruni Unauthorized Employment Agreement" (and other Bruni documents), and also in that file, "FSB Altus Ratings" for September and December of 2008.
Question B. Why would Vectra Bank (by way of its President, David Bruni), make development loan disbursements/draws to MAPI at the Altus Bank in Oklahoma rather than make disbursements directly to Robinson Construction or other vendors based on invoices, inspections, and receipt of lien waivers? By doing inspections, and paying vendors directly...only upon receipt of lien waivers for completed work (as is customary), Vectra Bank would have no question as to whether work being paid for had been completed, or whether payments on completed work was current.
Response: Altus Bank, Oklahoma, on behalf of MAPI received at least 3 wire transfers totaling $3,501,454.18 from Vectra Bank, signed by David Bruni. Vectra Bank apparently had no oversight as to how these funds were used...review of invoices, the application to specific invoices, review of lien waivers, etc. Instead, Altus Bank apparently had complete control of these funds.
For actual Wire Transfer images, please see "Question B back-up documents" attached, and therein, Exhibits E, F. and G pages 84, 85 and 86 respectively of the "Attorney Letter Regarding Robcon Liens for Villages at Hayden."
Question C. If lien waivers were produced by Robinson Construction, why is there an outstanding balance owed to Robinson on Lake Village, now secured by a Mechanics Lien against Lake Village?
Response: Lien Waivers were supplied by Robinson Construction. Robinson's own audit figures show a balance owed that is significantly less than the Robinson lien amount. ($652,199.77 vs $1,411,090.76) Also, cancelled check images, cashed by Robinson total $4,925,140.68 against $4,929,715.20 in invoices would indicate that Robinson was overpaid by $4,574.52. Please see the file entitled "Question C back-up documents" attached, and therein, "Robinson Lien Waivers as of 8-29-07". Also see therein "Robinson Auditor's Figures for Lake Village" ,"Invoices from and Payments to Robcon", and "Attorney's Letter re: Robcon Liens for Lake Village".
Question D. If Robinson Construction invoices were not current, why wouldn't Vectra Bank know the status of any such outstanding balances?
Response: Vectra Bank perhaps wouldn't know because A) Robinson Construction produced lien waivers that said that Robinson had, in fact, been paid, and B) Vectra Bank sent the loan proceeds to Altus Bank (in the amount of $3.5 million) rather than paying vendors, thereby delegating that responsibility to Altus Bank rather than paying invoices themselves with the appropriate controls in place (i.e. inspection of work completed, line item review of invoices vs cost estimates, checks in return for lien waivers, etc.)
Question E. What evidence of payment did MAPI "Altus" provide to Vectra Bank regarding payment of invoices?
Response: No one seems to know. Grassy Creek Holding Company and 4S Development are still waiting for accounting documents requested from Altus Bank since June of 2007. When Altus Bank neglected to supply the MAPI partners with accounting, MAPI managers approved a resolution in August of 2007 to have an outside audit firm do an audit of the MAPI books, the result was that Altus Bank began calling its loans; and Robinson Construction began filing liens. Altus Bank is currently in "contempt of court" defying a court order to produce accounting and tax information dating back to 2006. The court order has been in effect since May 2008. Please see "Question E Back-up Documents" attached, and therein, " Request to produce docs" , "Response to Debtor's request to produce docs", "Refusal to produce docs" "Order Granting Motion to Compel Discovery".
Question F: If What part did David Bruni's prospective employment with MAPI "Altus" play with Vectra Banks loan facility to MAPI?
Response: It served to reduce or eliminate proper bank oversight; allowed for mis-management of funds by Altus Bank; created unnecessary expense to MAPI; precipitated confusion as to validity of payments to Robinson which encouraged filing of mechanics liens and resulting and slander of title to MAPI property; in turn causing MAPI property to be rendered unmerchantable; which then necessitated voiding of purchase contracts with numerous third parties; and damaged existing lot owners at MAPI projects; and precipitated the filing of bankruptcy for three companies...MAPI, 4S Development, and Grassy Creek Holding Company.
Question G. If Altus Bank's function was to provide financing to MAPI for development, administrative and marketing expenses, and was to provide accounting and tax services to MAPI using its in-house accounting department, and if Robinson was not paid for completed work, why did Altus Bank not pay Robinson?
Response: No one knows for sure. However, Grassy Creek Holding Company and 4S Development know that sales proceeds from MAPI lots were directed to places other than as authorized by MAPI managers/members. This may have reduced the amount of funds otherwise available for vendor payments...to Robinson as well as other MAPI creditors. Loan proceeds may also have been directed by Altus Bank to destinations not authorized by MAPI. Please see the "Question G Back-up Documents" attached, and therein, "Sales Proceeds Not Delivered", "Financial Statement of Altus Venture 2", "Supposed Mirror Account for MAPI", "Definite Mirror Account for GCH", "4S Unauthorized Signators", "Payments to Insiders", "Consulting Fees for Don Anderson", "Bonus Pool for Altus Venture", "Letter to Routt County Sheriff", and "Unauthorized Refund of Down Payments with Check Images and Settlement Statements".
Question H. Why would Robinson as a MAPI partner, file liens against MAPI properties?
Response: No one knows for sure. From a common sense perspective, it would seem that Robinson, as a MAPI partner, would be hurting itself to file liens which would eliminate MAPI's ability to close on pending contracts which would in turn provide sales proceeds with which to pay for work Robinson had completed. It would seem, that if Robinson were owed money, Robinson would work out payment within the partnership. Logically, Robinson would agree to take a disproportionate (increased) share of sales proceeds toward that obligation, rather than render title unmerchantable and thereby eliminate MAPI's ability to generate sales proceeds. Robinson was, in fact offered this solution, and Robinson declined, opting instead to file liens.
Please see "Question H Back-up Documents", attached, and therein "Moisan Deposition Parts I and II"
Question I. Are the Robinson liens even valid liens?
Response: Specifically, with regard to Lake Village, at Villages at Hayden, the following evidence would indicate that the liens are not valid:
1. Cancelled checks indicate that Robinson was actually overpaid for work completed. In fact, some of the invoice line items request payment for work that was not even done, but for which Robinson was paid. Please see "Question I-Back-up Documents" and therein, "Robinson Lien Waivers" and "Auditors of Robcon-Lake Village", and "Invoices from and Payments to Robinson"
2. Lien waivers were produced by Robinson for work done at Lake Village. If lien waivers were produced, which are evidence of prior payment, either payment had been received, or the lien waivers were fraudulently signed. Please see "Question I-Back-up Documents" attached hereto, and therein "Robinson Lien Waivers".
3. In Colorado, it is typical that the time elapsed from the date that the contractor has left the work-site/completed work, to the time a mechanic's lien may be filed, cannot exceed 120 days. Robinson left the job site in November of 2006 and the liens were filed in September of 2007...9-10 months, 270 or more days after completion of the work which was last invoiced.
4. Relationship. Robinson and Sons and Robinson Construction are two different companies controlled by Randy Robinson. It is our understanding that Robinson and Son's may have paid remaining obligations (if any) to Robinson Construction in order to clear up any performance bond requirements. If this is true, Robinson Construction has no lien rights as it was paid, even if Altus Bank's accounting department had not paid Robinson Construction for completed work for MAPI
Question J. Once Vectra Bank was made aware of the status of the Robinson Construction liens, why did Vectra Bank not argue more diligently the legitimacy of said liens given the:
1. Paid Invoices
2. Lien Waivers
3. Time Elapsed between completion of work and filing liens (over 120 days).
4. Relationship between Robinson Construction and Robinson and Sons; indications of conspiracy between Altus Bank and Robinson in filing the liens; Deposed Testimony of Kirk Moison; Robinson's audit statements of June 2007, etc.
Response: No one seems to know. Instead of pursuing the validity of the liens, Vectra Bank apparently decided to pursue the Guarantors; Roger Johnson, Ron Sills, Grassy Creek Holding Company, 4S Development, etc. for payment by filing judgments against the guarantors, rather than looking to their ample collateral value evident in the Lake Village lots and model homes. The December 31st, 2007 MAI appraisal for Lake Village was $6.9 million against which Vectra Bank had loaned $3.3 million.