The former president of Tim Durham’s Indianapolis-based Obsidian Enterprises Inc. has been ordered to pay $30,000 as part of a settlement with the bankruptcy trustee representing Fair Finance Co. investors.
Since early 2010, trustee Brian Bash has been trying to recover more than $200 million for investors of Ohio-based Fair Finance Co., which was led by Durham until his financial empire collapsed in late 2009. (Click here for complete IBJ coverage of Durham and Fair Finance.)
As part of a civil suit filed in February of this year, Bash alleged that former Obsidian President Terry Whitesell and Durham had “steered Obsidian into dire straits” by January 2002 and that Whitesell was aware that Fair Finance money was propping up Durham’s failing business.
Bash attempted to get more than $225,000 from Whitesell and his wife, claiming they benefited from loans through a Durham entity that received money from Fair Finance.
But on Tuesday, a U.S. Bankruptcy Court judge in Akron, Ohio, accepted a compromise in which Whitesell, 72, would only pay $30,000, according to the Akron Beacon Journal.
The Whitesells, who appeared at the hearing, claimed financial hardship despite owning properties worth more than $1 million, the newspaper said.
Whitesell testified that he and his wife have few assets to pay the $30,000 and that he would have to tap his paltry retirement account containing $57,000 to pay the sum.
“I’m trying to be reasonable and fair and avoid bankruptcy if possible,” he told the judge, according to the newspaper. “I have deep sympathy for those investors in Ohio. I also have made investments that did not turn out so well.”
Bash proposed the compromise after his team’s investigation into the Whitesells’ finances showed the couple was deeply insolvent, had limited financial means and would file for bankruptcy if the trustee sought a larger amount, the Beacon Journal said.
Meanwhile, Durham, along with Fair Finance co-owner James Cochran and former chief financial officer Rick Snow, are awaiting sentencing in a federal court in Indianapolis. A federal jury in Indianapolis in June returned a guilty verdict on all 12 felony counts for Durham, on eight of 12 counts for Cochran, and five of 12 counts for Snow.
The government had accused the men of running Fair Finance as a Ponzi scheme that stole more than $200 million from 5,000 Ohio investors who purchased investment certificates from the consumer-loan company. Durham and Cochran bought Fair Finance from Donald Fair in 2002.
A sentencing date has not been set.
A member of the trustee’s legal team on Tuesday said no evidence was uncovered to indicate that Whitesell was involved in the Fair Finance fraud scheme.
The Beacon Journal also reported on Tuesday that Whitesell is facing additional financial hardship. Bash said Whitesell, Durham and another man are appealing a $1.6 million judgment against them; the IRS has filed a tax lien against Whitesell involving a payroll tax issue; and that the Whitesells owe $800,000 on a house in Indianapolis and $670,000 on a condominium in Florida.
Bash on Tuesday told the judge that his team has recovered more than $1.4 million for Fair Finance investors since July 10, the newspaper said, bringing the total to more than $4.7 million.