02-04-2008, 01:50 AM
Plaintiffs:
Attorneys, Tony J. Tanke, Frank R. Ubhaus, and Robert Oushalem represent THE HOLY SYNOD OF THE HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST, HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST ??? DIOCESE OF WESTERN CALIFORNIA, and HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST ??? ST. GEORGE PARISH (CERES, CALIFORNIA)
vs
Defendants:
CLAYTON & McEVOY, a professional law corporation, ASHUR B. SORO, an individual, WILLIAM B. CLAYTON, JR. an individual, INTERBAY FUNDING, LLC, a Delaware Limited Partnership/Limited Liability Company, BAYVIEW LOAN SERVICING, LLC, a Delaware Limited Liability Company, and DOES 1-50,
*********************************
FOURTH CAUSE OF ACTION
[Constructive Trust???Against Clayton and Soro]
17. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 60, inclusive.
18. Existence of a Res. The res consists of the properties and assets held by the Church???s diocesan corporations, Western California and St. George Parish, in trust for the benefit of the Church, including without limitation: (1) sums paid to and received by Clayton as unauthorized attorney fees; (2) unexpended proceeds of a loan of approximately $737,100.00 purportedly entered into by Soro on behalf of Western California, without authority; and (3) other property and assets that, on information and belief, were misappropriated by Soro, Clayton, and others.
19. Plaintiffs??? Right to the Res. Plaintiff-corporations Western California and St. George Parish are legally entitled to retain their properties and assets, held in trust for the benefit of the Church, without the unauthorized and wrongful dissipation of such assets caused by Clayton and Soro.
20. Wrongful Acquisition or Detention of the Res. Plaintiffs are informed and believe, and on that basis allege, that Defendants wrongfully acquired, and continue to detain, the assets of Western California and St. George Parish in violation of fiduciary duties owed to these corporations, and that Defendants have wrongfully withheld such assets for their own use and benefit. At all material times, a confidential relationship existed between Plaintiffs and Defendants in that Clayton acted in the capacity of attorney for Western California and St. George Parish. Plaintiffs were entitled to rely upon the integrity of, and reposed trust and confidence in Clayton. Clayton breached fiduciary duties owed to these corporations by virtue of his unauthorized representation, simultaneous representation of a party directly adverse to Plaintiffs in the same lawsuit, and participation in Soro???s breach of fiduciary duty owed to both the Church and the diocesan corporations.
21. Additionally, because Soro, as fiduciary of both the Church and the diocesan corporations, Western California and St. George Parish, wrongfully transferred corporate assets to Clayton, a third party who took such assets with actual knowledge of Soro???s breach of fiduciary duty, Clayton is chargeable as constructive trustee of the assets so received. Clayton accepted payment from the assets of the Church???s corporations with actual knowledge of the facts which rendered Soro an agent and trustee of the Church. From the start, Clayton had actual knowledge of all the facts establishing that such assets were impressed with a trust for the benefit of the Church, and that Soro transferred such assets in breach of that trust.
22. Plaintiffs further believe, and on that basis allege, that Defendants acquired property and things using assets of Western California and St. George Parish, and that Defendants have wrongfully withheld such property and things for their own use and benefit. The property and things so withheld are of a nature and kind presently unknown to Plaintiffs, but plaintiffs will provide a description of them which will be inserted by appropriate amendment at the time of trial or when the same has been ascertained.
23. By virtue of Defendants??? violations of the relationship of trust and confidence then existing between Plaintiffs and Defendants, as well as Defendants??? knowing participation in Soro???s breach of fiduciary duty, Defendants hold all such assets, property, and things as constructive trustee for the benefit of Western California and St. George Parish.
24. Plaintiffs seek the imposition of a constructive trust upon any and all assets wrongfully acquired by Defendants in breach of fiduciary duties owed to Plaintiffs, as well as any and all property, or right to property, acquired by Defendants with the proceeds of such assets.
FIFTH CAUSE OF ACTION
[Conversion???Against Clayton]
25. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 68, inclusive.
26. Ownership or Right to Possession. Plaintiffs, Western California and St. George Parish, own and have the exclusive right to possess all corporate assets which Clayton wrongfully caused to be transferred from these corporations, including: (1) cash misappropriated by Clayton in the approximate amount of $790,000; (2) the proceeds of an approximately $737,100.00 loan taken out without authority on behalf of Western California; and (3) any other assets.
27. Defendant???s Wrongful Act. Clayton wrongfully caused the assets of Western California and St. George Parish to be transferred, and accepted such assets, without corporate authorization, in payment for his unauthorized representation of Western California and St. George Parish, in violation of fiduciary duties owed to his assumed clients, and in knowing participation in Soro???s breach of fiduciary duties owed to these corporations.
28. Specific Sums Capable of Identification. The amount of assets converted by Clayton is a specific sum capable of identification because Clayton misappropriated specific funds held by the plaintiff-corporations in trust for the benefit of the Church. Clayton wrongfully took specific funds held in trust for the benefit of the Church, not only to pay for his unauthorized representation of the plaintiff-corporations, but also to pay for the attorney???s fees of Soro, the Church???s trustee.
29. The number and amount of payments made by the plaintiff-corporations to Clayton is ascertainable, but subject to accounting. Plaintiffs are informed and believe, and on that basis allege, that on or about the following dates the following unauthorized payments were made from the Church???s diocesan corporations to Clayton in connection with his unauthorized and improper representation:
22. November 28, 2005: $ 50,000.00
23. March 31, 2006: $ 63,947.99
24. May 2, 2006: $ 24,052.89
25. October 16, 2006: $ 27,296.24
26. November 10, 2006: $ 10,896.75
27. February 20, 2007: $ 17,351.89
28. March 21, 2007: $ 50,000.00
29. April 2, 2007: $ 5,920.39
30. May 8, 2007: $ 29,585.34
31. May 23, 2007: $ 30,768.02
32. July 1, 2007: $ 100,000.00
33. July 3, 2007: $ 19,908.18
34. July 6, 2007: $ 76,762.64
35. July 9, 2007: $ 54,001.40
36. August 1, 2007: $ 72,629.25
37. September 5, 2007: $ 52,285.55
38. October 10, 2007: $ 58,068.27
39. October 24, 2007 $50,000.00
The actual amounts and circumstances of unauthorized payments are presently unknown, subject to accounting, and will be shown by proof.
30. Plaintiffs are informed and believe, and on that basis allege, that Clayton has converted an amount in excess of $790,000, less such amounts as Clayton has returned to the Church prior to the filing of this First Amended Complaint. If additional unauthorized payments are discovered, Plaintiffs will amend this Complaint to reflect the total amount of the assets wrongfully converted by Clayton. In any event, the total amount of such conversion is a specific sum, readily capable of identification.
31. Damages. Clayton???s wrongful and substantial interference in Plaintiffs??? possession of corporate assets has caused damage to Plaintiffs in a specific and identifiable sum, subject to proof, currently estimated by Plaintiffs to be in excess of $790,000.
SIXTH CAUSE OF ACTION
[Money Had and Received???Against Clayton]
32. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 75, inclusive.
33. Defendant Clayton is indebted to plaintiffs in the amount of $790,000 or according to proof for money had and received by defendant for the use and benefit of plaintiffs. Wherefore, plaintiffs pray for recovery of said amount from defendant Clayton.
SEVENTH CAUSE OF ACTION
[Money Paid???Against Clayton]
34. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 77, inclusive.
35. Defendant Clayton is indebted to plaintiffs in the sum of $790,000 or according to proof for money paid, laid out, and expended to or for defendant at defendant???s special instance and request. Wherefore, plaintiffs pray for recovery of said amount from defendant Clayton.
EIGHTH CAUSE OF ACTION
[Unjust Enrichment???Against Clayton]
36. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 79, inclusive.
37. Defendant Clayton has been unjustly enriched by the appropriation of sums belonging to plaintiffs and plaintiffs are entitled to restitution in the sum of $790,000 or according to proof.
Attorneys, Tony J. Tanke, Frank R. Ubhaus, and Robert Oushalem represent THE HOLY SYNOD OF THE HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST, HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST ??? DIOCESE OF WESTERN CALIFORNIA, and HOLY APOSTOLIC CATHOLIC ASSYRIAN CHURCH OF THE EAST ??? ST. GEORGE PARISH (CERES, CALIFORNIA)
vs
Defendants:
CLAYTON & McEVOY, a professional law corporation, ASHUR B. SORO, an individual, WILLIAM B. CLAYTON, JR. an individual, INTERBAY FUNDING, LLC, a Delaware Limited Partnership/Limited Liability Company, BAYVIEW LOAN SERVICING, LLC, a Delaware Limited Liability Company, and DOES 1-50,
*********************************
FOURTH CAUSE OF ACTION
[Constructive Trust???Against Clayton and Soro]
17. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 60, inclusive.
18. Existence of a Res. The res consists of the properties and assets held by the Church???s diocesan corporations, Western California and St. George Parish, in trust for the benefit of the Church, including without limitation: (1) sums paid to and received by Clayton as unauthorized attorney fees; (2) unexpended proceeds of a loan of approximately $737,100.00 purportedly entered into by Soro on behalf of Western California, without authority; and (3) other property and assets that, on information and belief, were misappropriated by Soro, Clayton, and others.
19. Plaintiffs??? Right to the Res. Plaintiff-corporations Western California and St. George Parish are legally entitled to retain their properties and assets, held in trust for the benefit of the Church, without the unauthorized and wrongful dissipation of such assets caused by Clayton and Soro.
20. Wrongful Acquisition or Detention of the Res. Plaintiffs are informed and believe, and on that basis allege, that Defendants wrongfully acquired, and continue to detain, the assets of Western California and St. George Parish in violation of fiduciary duties owed to these corporations, and that Defendants have wrongfully withheld such assets for their own use and benefit. At all material times, a confidential relationship existed between Plaintiffs and Defendants in that Clayton acted in the capacity of attorney for Western California and St. George Parish. Plaintiffs were entitled to rely upon the integrity of, and reposed trust and confidence in Clayton. Clayton breached fiduciary duties owed to these corporations by virtue of his unauthorized representation, simultaneous representation of a party directly adverse to Plaintiffs in the same lawsuit, and participation in Soro???s breach of fiduciary duty owed to both the Church and the diocesan corporations.
21. Additionally, because Soro, as fiduciary of both the Church and the diocesan corporations, Western California and St. George Parish, wrongfully transferred corporate assets to Clayton, a third party who took such assets with actual knowledge of Soro???s breach of fiduciary duty, Clayton is chargeable as constructive trustee of the assets so received. Clayton accepted payment from the assets of the Church???s corporations with actual knowledge of the facts which rendered Soro an agent and trustee of the Church. From the start, Clayton had actual knowledge of all the facts establishing that such assets were impressed with a trust for the benefit of the Church, and that Soro transferred such assets in breach of that trust.
22. Plaintiffs further believe, and on that basis allege, that Defendants acquired property and things using assets of Western California and St. George Parish, and that Defendants have wrongfully withheld such property and things for their own use and benefit. The property and things so withheld are of a nature and kind presently unknown to Plaintiffs, but plaintiffs will provide a description of them which will be inserted by appropriate amendment at the time of trial or when the same has been ascertained.
23. By virtue of Defendants??? violations of the relationship of trust and confidence then existing between Plaintiffs and Defendants, as well as Defendants??? knowing participation in Soro???s breach of fiduciary duty, Defendants hold all such assets, property, and things as constructive trustee for the benefit of Western California and St. George Parish.
24. Plaintiffs seek the imposition of a constructive trust upon any and all assets wrongfully acquired by Defendants in breach of fiduciary duties owed to Plaintiffs, as well as any and all property, or right to property, acquired by Defendants with the proceeds of such assets.
FIFTH CAUSE OF ACTION
[Conversion???Against Clayton]
25. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 68, inclusive.
26. Ownership or Right to Possession. Plaintiffs, Western California and St. George Parish, own and have the exclusive right to possess all corporate assets which Clayton wrongfully caused to be transferred from these corporations, including: (1) cash misappropriated by Clayton in the approximate amount of $790,000; (2) the proceeds of an approximately $737,100.00 loan taken out without authority on behalf of Western California; and (3) any other assets.
27. Defendant???s Wrongful Act. Clayton wrongfully caused the assets of Western California and St. George Parish to be transferred, and accepted such assets, without corporate authorization, in payment for his unauthorized representation of Western California and St. George Parish, in violation of fiduciary duties owed to his assumed clients, and in knowing participation in Soro???s breach of fiduciary duties owed to these corporations.
28. Specific Sums Capable of Identification. The amount of assets converted by Clayton is a specific sum capable of identification because Clayton misappropriated specific funds held by the plaintiff-corporations in trust for the benefit of the Church. Clayton wrongfully took specific funds held in trust for the benefit of the Church, not only to pay for his unauthorized representation of the plaintiff-corporations, but also to pay for the attorney???s fees of Soro, the Church???s trustee.
29. The number and amount of payments made by the plaintiff-corporations to Clayton is ascertainable, but subject to accounting. Plaintiffs are informed and believe, and on that basis allege, that on or about the following dates the following unauthorized payments were made from the Church???s diocesan corporations to Clayton in connection with his unauthorized and improper representation:
22. November 28, 2005: $ 50,000.00
23. March 31, 2006: $ 63,947.99
24. May 2, 2006: $ 24,052.89
25. October 16, 2006: $ 27,296.24
26. November 10, 2006: $ 10,896.75
27. February 20, 2007: $ 17,351.89
28. March 21, 2007: $ 50,000.00
29. April 2, 2007: $ 5,920.39
30. May 8, 2007: $ 29,585.34
31. May 23, 2007: $ 30,768.02
32. July 1, 2007: $ 100,000.00
33. July 3, 2007: $ 19,908.18
34. July 6, 2007: $ 76,762.64
35. July 9, 2007: $ 54,001.40
36. August 1, 2007: $ 72,629.25
37. September 5, 2007: $ 52,285.55
38. October 10, 2007: $ 58,068.27
39. October 24, 2007 $50,000.00
The actual amounts and circumstances of unauthorized payments are presently unknown, subject to accounting, and will be shown by proof.
30. Plaintiffs are informed and believe, and on that basis allege, that Clayton has converted an amount in excess of $790,000, less such amounts as Clayton has returned to the Church prior to the filing of this First Amended Complaint. If additional unauthorized payments are discovered, Plaintiffs will amend this Complaint to reflect the total amount of the assets wrongfully converted by Clayton. In any event, the total amount of such conversion is a specific sum, readily capable of identification.
31. Damages. Clayton???s wrongful and substantial interference in Plaintiffs??? possession of corporate assets has caused damage to Plaintiffs in a specific and identifiable sum, subject to proof, currently estimated by Plaintiffs to be in excess of $790,000.
SIXTH CAUSE OF ACTION
[Money Had and Received???Against Clayton]
32. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 75, inclusive.
33. Defendant Clayton is indebted to plaintiffs in the amount of $790,000 or according to proof for money had and received by defendant for the use and benefit of plaintiffs. Wherefore, plaintiffs pray for recovery of said amount from defendant Clayton.
SEVENTH CAUSE OF ACTION
[Money Paid???Against Clayton]
34. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 77, inclusive.
35. Defendant Clayton is indebted to plaintiffs in the sum of $790,000 or according to proof for money paid, laid out, and expended to or for defendant at defendant???s special instance and request. Wherefore, plaintiffs pray for recovery of said amount from defendant Clayton.
EIGHTH CAUSE OF ACTION
[Unjust Enrichment???Against Clayton]
36. Plaintiffs incorporate herein by reference as though fully set forth each and every allegation contained in paragraphs 1 through 79, inclusive.
37. Defendant Clayton has been unjustly enriched by the appropriation of sums belonging to plaintiffs and plaintiffs are entitled to restitution in the sum of $790,000 or according to proof.