Fair Finance Co.’s bankruptcy trustee finally has found some deep pockets to go after in his quest to recover money for the small-time Ohio investors who lost more than $200 million when the Tim Durham-led company failed two years ago.
Trustee Brian Bash on Tuesday afternoon sued Fair’s lenders—Rhode Island-based Textron Financial Corp. and New York-based Fortress Credit Corp.—seeking up to $1.2 billion in actual and treble damages.
The suit charges the companies turned a blind eye to Fair CEO Durham’s fraudulent activities because they were making millions of dollars on their lending relationship and held first liens on the only Fair assets with real value.
It accuses the two companies, which have billions in assets, of aiding and abetting theft, fraud and insiders’ breaches of fiduciary duty.
“The sad tale described in this complaint would not have been possible without the knowing and active assistance of [Fair’s] lenders,” the suit alleges. "Neither Textron nor Fortress cared about the harm being caused” to the company and its creditors because they were almost sure to be paid.
A Textron spokeswoman declined to comment. A Fortress spokesman told the Akron Beacon Journal that his company was aware of the suit but does not discuss litigation.
The 141-page lawsuit is Bash’s most aggressive push yet to recover money for the Ohio residents who bought unsecured notes from Fair boasting interest rates as high as 9.5 percent. Payments ceased to all 5,000 noteholders when the company collapsed in November 2009.
Bash has filed dozens of suits since early 2010. But most seek to recover relatively small sums that were transferred out of Fair at a time the trustee alleges it was insolvent. And many of the defendants are Durham friends or business associates who appear to have few assets.
Both Bash and federal prosecutors allege Durham and fellow Indianapolis businessman Jim Cochran looted the Akron, Ohio-based business after acquiring it in a 2002 leverage buyout.
Authorities charge that almost immediately, Durham drained tens of millions from the company by making loans to himself and failing businesses he owned. They say millions also went toward Durham’s mansions, a yacht, part ownership of an airplane and extravagant gambling trips.
The suit charges that by December 2003, Fair already was operating as a Ponzi scheme reliant on the sale of additional unsecured notes to Ohio residents to stay afloat.
Textron provided a $22 million line of credit that financed the purchase of Fair from then-owner Donald Fair. Since its founding in 1934, the business had focused on buying finance contracts from fitness clubs, time-share condominium developers and other firms that offered their customers extended-payment plans.
That core business shrank under Durham, while insider loans ballooned.
According to the lawsuit, Textron’s vice president of portfolio management sent an e-mail to Durham in November 2003 expressing concern that Durham’s use of proceeds from note sales “as a piggy bank” to fund losses at his other businesses was “wrong” and “could come back to haunt us.”
Fearing Durham’s Ponzi scheme might soon collapse, Textron in July 2006 forced Fair to sell off customer accounts—its collateral on the loan—and repay it in full, the lawsuit says. Seven months later, Fortress stepped in as the new lender.
“Notwithstanding the risks involved in loaning to a company that was operated as a Ponzi scheme, Fortress was motivated to make [the loan] because of the substantial fees and interest payments that would be charged to [Fair] for access to the line of credit,” the lawsuit alleges.
A grand jury in March indicted Durham, Cochran and Fair Chief Financial Officer Rick Snow on charges of wire fraud, securities fraud and conspiracy to commit wire and securities fraud. All three—who are scheduled for trial in June—deny wrongdoing.