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FILED
DALLAS COUNTY
11/27/2019 9:38 AM
FELICIA PITRE
DISTRICT CLERK
Miranda Lynch
CAUSE NO. DC-19-17342
FAIRLANE FIXED INCOME FUND, § IN THE DISTRICT COURT OF
LLC, §
§
Plaintiff, §
§
vs. § DALLAS COUNTY, TEXAS
§
FREDERICK D. FEIGL and LEEMAN §
E. STILES, §
§
Defendants. § 134th JUDICIAL DISTRICT
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT
Frederick D. Feigl (“Feigl”) files this Response t0 Plaintiffs Application for Pre-
Judgment Writ 0f Attachment (the “Resp0nse”). In support 0f this Response, Feigl states as
follows:
I.
INTRODUCTION
On October 31, 2019, this Court denied Plaintiffs request for a pre-judgment asset freeze
regarding Feigl’s non-exempt assets. In so doing, this Court advised the Plaintiff 0f the
applicable case law, and that same day the court coordinator kindly emailed the parties the case
law the Court had referenced. Nothing has changed, yet Plaintiff seeks a second bite at the apple
through its Application for Pre-Judgment Writ 0f Attachment (the “Application”). A review 0f
the Application -- and the wholly conclusory affidavit attached thereto -- shows the following:
o Plaintiff has n0 evidence that Feigl obtained property by false pretenses from
Plaintiff (in fact, Feigl has never obtained a penny from Plaintiff);
o Plaintiff has no evidence that Feigl has transferred, is transferring, 0r intends t0
transfer assets t0 avoid creditors; and
o Plaintiff has no evidence that granting a writ 0f attachment will satisfy its debt.
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 1
Instead, what Plaintiff has is a history 0f using extraordinary pre-judgment remedies t0
pressure Feigl into granting Plaintiff what it cannot obtain even if Plaintiff obtains a final
judgment. The relief requested through the Application would require Feigl t0 turn over
proceeds 0f exempt property (in Violation 0f Section 31.0026) 0f the Texas Civil Practice
& Remedies Code (“TCPRC”)) and would prohibit Feigl from satisfying debts owed by other
creditors who have already obtained lawful judgment. Plaintiff’s Application should be denied.
II.
Plaintiff Lacks Evidence t0 Support the Relief Requested
T0 obtain a writ 0f attachment, Plaintiff must show the following:
o the attachment is not sought for the purpose 0f injuring 0r harassing the
defendant; (TCPRC § 61 001(2)) and
o the plaintiff will probably lose his debt unless the writ 0f attachment is issued
(TCPRC § 61.001(3))
In addition, Plaintiff must show a specific ground under TCPRC § 61.002. Plaintiff
alleges one 0f the following grounds exists:
o the defendant has disposed 0f 0r is about t0 dispose 0f all 0r part 0f his property
with the intent t0 defraud his creditors; (TCPRC § 62.001(7)) 0r
o the defendant owes the plaintiff for property obtained by the defendant under false
pretenses. (TCPRC § 62.001(9))
Plaintiff has n0 evidence t0 support any 0f these required elements.
First, Plaintiff has no evidence that granting the Application will satisfy its debt. In fact,
Plaintiff alleges (with n0 evidence) that “Fairlane believes that Mr. Feigl and Mr. Stiles lack the
means t0 satisfy their debt[.]” This allegation is unsupported by evidence. But, if true, it means
that even if the Application is granted, Plaintiffs alleged debt will still not be satisfied. Plaintiff
therefore has zero evidence, and cannot show, that Plaintiff will probably lose his debt unless the
writ 0f attachment is issued. See Grupo Consejero Mundial, SA. De C. V. v. Salinas, 2012 TeX.
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 2
App. LEXIS 2547, *15, 2012 WL 1073349 (Tex. App.—C0rpus Christi Mar. 29, 2012) (holding
that where plaintiff failed t0 strictly comply with TCPRC § 61 .001, trial court abused discretion
by attaching funds and requiring defendants t0 deposit such funds into court’s registry); see also
RWI Constlc, Inc. v. Comerica Bank, 2019 WL 1578760 *12—13, 583 S.W.3d 269 (TeX. App.—
Dallas 2019, n0 pet.) (“The ancient and controlling rule forecloses resort t0 injunctive relief
simply t0 sequester a source 0f funds t0 satisfy a future judgment. That general rule would not
control where there is a logical and justifiable connection between the claims alleged and the acts
sought t0 be enjoined, 0r where the plaintiff claims a specific contractual 0r equitable interest in
the assets it seeks t0 freeze.”).
Second, Plaintiff has n0 evidence that Feigl has disposed 0f 0r is about t0 dispose 0f all 0r
part 0f his property with the intent t0 defraud his creditors. The Application is supported by the
Affidavit 0f Jason K. Dodd, which is wholly conclusory (and therefore not evidence) and points
t0 zero facts that can support even an inference that Feigl has disposed 0f 0r is about t0 dispose
of all or part 0f his property with the intent t0 defraud his creditors. See N. Cypress Med. Ctr.
Operating C0. v. St. Laurent, 296 S.W.3d 171, 179 (TeX.App.—H0ust0n [14th Dist] 2009, n0
pet.) (holding that when record is devoid 0f evidence “that funds are actually in danger 0f being
lost 0r depleted,” trial court abuses its discretion by ordering funds into court’s registry); 3 Kids,
Inc. v. Am. Jewel, LLC, 2019 U.S. Dist. LEXIS 19974, 2019 BL 41217, 3 (N.D. Tex. Jan. 15,
2019) (“[A]bsent an affidavit ‘made 0n personal knowledge . . . set[ting] forth such facts as
would be admissible in evidence,’ Plaintiff would not be entitled t0 a writ 0f attachment[.]”).
Third, Plaintiff has no evidence that Feigl owes Plaintiff for property obtained by Feigl
under false pretenses. In fact, Feigl has never obtained property from Plaintiff. At most, the
Application alleges (without competent evidence) that non-party SafeBuy LLC may have
defrauded other lenders. As for allegations specific as t0 Feigl, Plaintiff alleges that “one of
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 3
SafeBuy’s affiliates sold real property earlier this year and distributed $24,500 t0 Mr. Feigl to
‘pay [his] mortgage] following the sale.” (Brackets in original.) This statement is false, as the
only supporting documentation (which is not authenticated) shows that Mr. Feigl was reimbursed
for an advance he made “t0 Safebuy Properties” t0 pay Safebuy Properties’ mortgage. See
Application, at EX. H. It is false, misleading, and deceptive for Plaintiff t0 allege that funds from
Safebuy Properties were used t0 pay Feigl’s personal mortgage. Plaintiff simply has n0 evidence
that Feigl owes Plaintiff for property obtained by Feigl under false pretenses.
Finally, Feigl submits the Application is indeed sought for the purpose 0f injuring 0r
harassing Feigl. Other creditors have already obtained a judgment against Feigl, and Feigl is
working with such creditors t0 resolve that dispute.
Having already lost the race t0 the courthouse, Plaintiff is requesting that this Court grant
Plaintiff superpowers over other judgment creditors. Plaintiff has already sought a pre-judgment
asset freeze regarding Feigl’s non-exempt assets, and lost. Plaintiff now seeks the same results
(albeit by attachment) through its Application. Through Plaintiffs requests for pre-judgment
asset freezes and a pre-judgment writ 0f attachment, Plaintiff seeks relief that it cannot obtain
even postjudgment. The relief requested through the Application would require Feigl t0 turn
over proceeds 0f exempt property (in Violation 0f Section 31.002(f) 0f the Texas Civil Practice
& Remedies Code (“TCPRC”)) and would prohibit Feigl from satisfying debts owed by other
creditors who have already obtained lawful judgment. This is improper and wholly unsupported
by Texas law.
CONCLUSION
Feigl requests that the Court deny Plaintiff’s Application and award Feigl such other and
further relief as the Court deems just and proper.
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 4
Dated: November 27, 2019 Respectfully submitted,
REED SMITH LLP
By: /s/Jav L. Krystinik
Jay L. Krystinik
Texas Bar No. 24041279
2501 N. Harwood, Suite 1700
Dallas, Texas 75201
ikrvstinik@reedsmith.com
(469) 680-4200 (Telephone)
(469) 680—4299 (Facsimile)
ATTORNEY FOR FREDERICK D. FEIGL
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy 0f the foregoing instrument has been
electronically served to all attorneys 0f record in this cause 0f action0n November 27, 2019
pursuant to the Texas Rules 0f Civil Procedure.
/S/ Jay L. Krystinik
Jay L. Krystinik
FREDERICK D. FEIGL’S RESPONSE TO
PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT i Page 5
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FILED DALLAS COUNTY 11/27/2019 9:38 AM FELICIA PITRE DISTRICT CLERK Miranda Lynch CAUSE NO. DC-19-17342 FAIRLANE FIXED INCOME FUND, § IN THE DISTRICT COURT OF LLC, § § Plaintiff, § § vs. § DALLAS COUNTY, TEXAS § FREDERICK D. FEIGL and LEEMAN § E. STILES, § § Defendants. § 134th JUDICIAL DISTRICT FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT Frederick D. Feigl (“Feigl”) files this Response t0 Plaintiffs Application for Pre- Judgment Writ 0f Attachment (the “Resp0nse”). In support 0f this Response, Feigl states as follows: I. INTRODUCTION On October 31, 2019, this Court denied Plaintiffs request for a pre-judgment asset freeze regarding Feigl’s non-exempt assets. In so doing, this Court advised the Plaintiff 0f the applicable case law, and that same day the court coordinator kindly emailed the parties the case law the Court had referenced. Nothing has changed, yet Plaintiff seeks a second bite at the apple through its Application for Pre-Judgment Writ 0f Attachment (the “Application”). A review 0f the Application -- and the wholly conclusory affidavit attached thereto -- shows the following: o Plaintiff has n0 evidence that Feigl obtained property by false pretenses from Plaintiff (in fact, Feigl has never obtained a penny from Plaintiff); o Plaintiff has no evidence that Feigl has transferred, is transferring, 0r intends t0 transfer assets t0 avoid creditors; and o Plaintiff has no evidence that granting a writ 0f attachment will satisfy its debt. FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 1 Instead, what Plaintiff has is a history 0f using extraordinary pre-judgment remedies t0 pressure Feigl into granting Plaintiff what it cannot obtain even if Plaintiff obtains a final judgment. The relief requested through the Application would require Feigl t0 turn over proceeds 0f exempt property (in Violation 0f Section 31.0026) 0f the Texas Civil Practice & Remedies Code (“TCPRC”)) and would prohibit Feigl from satisfying debts owed by other creditors who have already obtained lawful judgment. Plaintiff’s Application should be denied. II. Plaintiff Lacks Evidence t0 Support the Relief Requested T0 obtain a writ 0f attachment, Plaintiff must show the following: o the attachment is not sought for the purpose 0f injuring 0r harassing the defendant; (TCPRC § 61 001(2)) and o the plaintiff will probably lose his debt unless the writ 0f attachment is issued (TCPRC § 61.001(3)) In addition, Plaintiff must show a specific ground under TCPRC § 61.002. Plaintiff alleges one 0f the following grounds exists: o the defendant has disposed 0f 0r is about t0 dispose 0f all 0r part 0f his property with the intent t0 defraud his creditors; (TCPRC § 62.001(7)) 0r o the defendant owes the plaintiff for property obtained by the defendant under false pretenses. (TCPRC § 62.001(9)) Plaintiff has n0 evidence t0 support any 0f these required elements. First, Plaintiff has no evidence that granting the Application will satisfy its debt. In fact, Plaintiff alleges (with n0 evidence) that “Fairlane believes that Mr. Feigl and Mr. Stiles lack the means t0 satisfy their debt[.]” This allegation is unsupported by evidence. But, if true, it means that even if the Application is granted, Plaintiffs alleged debt will still not be satisfied. Plaintiff therefore has zero evidence, and cannot show, that Plaintiff will probably lose his debt unless the writ 0f attachment is issued. See Grupo Consejero Mundial, SA. De C. V. v. Salinas, 2012 TeX. FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 2 App. LEXIS 2547, *15, 2012 WL 1073349 (Tex. App.—C0rpus Christi Mar. 29, 2012) (holding that where plaintiff failed t0 strictly comply with TCPRC § 61 .001, trial court abused discretion by attaching funds and requiring defendants t0 deposit such funds into court’s registry); see also RWI Constlc, Inc. v. Comerica Bank, 2019 WL 1578760 *12—13, 583 S.W.3d 269 (TeX. App.— Dallas 2019, n0 pet.) (“The ancient and controlling rule forecloses resort t0 injunctive relief simply t0 sequester a source 0f funds t0 satisfy a future judgment. That general rule would not control where there is a logical and justifiable connection between the claims alleged and the acts sought t0 be enjoined, 0r where the plaintiff claims a specific contractual 0r equitable interest in the assets it seeks t0 freeze.”). Second, Plaintiff has n0 evidence that Feigl has disposed 0f 0r is about t0 dispose 0f all 0r part 0f his property with the intent t0 defraud his creditors. The Application is supported by the Affidavit 0f Jason K. Dodd, which is wholly conclusory (and therefore not evidence) and points t0 zero facts that can support even an inference that Feigl has disposed 0f 0r is about t0 dispose of all or part 0f his property with the intent t0 defraud his creditors. See N. Cypress Med. Ctr. Operating C0. v. St. Laurent, 296 S.W.3d 171, 179 (TeX.App.—H0ust0n [14th Dist] 2009, n0 pet.) (holding that when record is devoid 0f evidence “that funds are actually in danger 0f being lost 0r depleted,” trial court abuses its discretion by ordering funds into court’s registry); 3 Kids, Inc. v. Am. Jewel, LLC, 2019 U.S. Dist. LEXIS 19974, 2019 BL 41217, 3 (N.D. Tex. Jan. 15, 2019) (“[A]bsent an affidavit ‘made 0n personal knowledge . . . set[ting] forth such facts as would be admissible in evidence,’ Plaintiff would not be entitled t0 a writ 0f attachment[.]”). Third, Plaintiff has no evidence that Feigl owes Plaintiff for property obtained by Feigl under false pretenses. In fact, Feigl has never obtained property from Plaintiff. At most, the Application alleges (without competent evidence) that non-party SafeBuy LLC may have defrauded other lenders. As for allegations specific as t0 Feigl, Plaintiff alleges that “one of FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 3 SafeBuy’s affiliates sold real property earlier this year and distributed $24,500 t0 Mr. Feigl to ‘pay [his] mortgage] following the sale.” (Brackets in original.) This statement is false, as the only supporting documentation (which is not authenticated) shows that Mr. Feigl was reimbursed for an advance he made “t0 Safebuy Properties” t0 pay Safebuy Properties’ mortgage. See Application, at EX. H. It is false, misleading, and deceptive for Plaintiff t0 allege that funds from Safebuy Properties were used t0 pay Feigl’s personal mortgage. Plaintiff simply has n0 evidence that Feigl owes Plaintiff for property obtained by Feigl under false pretenses. Finally, Feigl submits the Application is indeed sought for the purpose 0f injuring 0r harassing Feigl. Other creditors have already obtained a judgment against Feigl, and Feigl is working with such creditors t0 resolve that dispute. Having already lost the race t0 the courthouse, Plaintiff is requesting that this Court grant Plaintiff superpowers over other judgment creditors. Plaintiff has already sought a pre-judgment asset freeze regarding Feigl’s non-exempt assets, and lost. Plaintiff now seeks the same results (albeit by attachment) through its Application. Through Plaintiffs requests for pre-judgment asset freezes and a pre-judgment writ 0f attachment, Plaintiff seeks relief that it cannot obtain even postjudgment. The relief requested through the Application would require Feigl t0 turn over proceeds 0f exempt property (in Violation 0f Section 31.002(f) 0f the Texas Civil Practice & Remedies Code (“TCPRC”)) and would prohibit Feigl from satisfying debts owed by other creditors who have already obtained lawful judgment. This is improper and wholly unsupported by Texas law. CONCLUSION Feigl requests that the Court deny Plaintiff’s Application and award Feigl such other and further relief as the Court deems just and proper. FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT — Page 4 Dated: November 27, 2019 Respectfully submitted, REED SMITH LLP By: /s/Jav L. Krystinik Jay L. Krystinik Texas Bar No. 24041279 2501 N. Harwood, Suite 1700 Dallas, Texas 75201 ikrvstinik@reedsmith.com (469) 680-4200 (Telephone) (469) 680—4299 (Facsimile) ATTORNEY FOR FREDERICK D. FEIGL CERTIFICATE OF SERVICE I hereby certify that a true and correct copy 0f the foregoing instrument has been electronically served to all attorneys 0f record in this cause 0f action0n November 27, 2019 pursuant to the Texas Rules 0f Civil Procedure. /S/ Jay L. Krystinik Jay L. Krystinik FREDERICK D. FEIGL’S RESPONSE TO PLAINTIFF’S APPLICATION FOR PRE-JUDGMENT WRIT OF ATTACHMENT i Page 5