Beruflich Dokumente
Kultur Dokumente
DALLAS COUNTY
7/13/2016 10:35:19 AM
2 Cit Atty FELICIA PITRE
DISTRICT CLERK
Connie Jones
CAUSE NO. DC-16-07601
Jerry Webb (collectively, the “Counter-Plaintiffs”) file their Counterclaims against FR III
Funding LLC (“FR III”) and David deBerardinis and Request for Injunctive Relief, and would
What this Case Involves – An Epic Scam. Counter-Plaintiffs are the unfortunate victims
of a pervasive and sinister fraudulent business scam operated by Defendant David deBerardinis.
The word “sinister” was not chosen for dramatic effect but because it accurately describes what
has transpired in this case. Every aspect of the “business operation” run by Defendant David
deBerardinis is fake.
on which he dutifully forged every other party’s signature; he bought dummy email domain
how well his “business” was doing; he created a bogus check from a make-believe account
substantial “ownership interest” in a pipeline run by a major company; and he invented story
Indeed, the only real thing about David deBerardinis and his “business” was the millions in loans
Worse, Counter-Plaintiffs were lured (in part based on the belief that PlainsCapital had engaged
in sufficient due diligence of the matter) into guaranteeing the loan from PlainsCapital.
delinquent and the bank has sued him and the Counter-Plaintiffs to collect. FR III’s “trading
partners” have disavowed the agreements as forgeries. No trading accounts, much less trading
profits, have been found. Meanwhile, Mr. deBerardinis continues to toss out false statements
about his business, hoping to mislead his creditors (e.g., his latest explanation is that FR III’s
“trading partner” is under investigation for “money laundering” and that this has tied up FR’s
“profits”).1
Most recently, Counter-Plaintiffs have become aware that deBerardinis likely diverted
borrowed funds into his own personal account. Today, despite borrowing millions of dollars and
claiming to have made millions more in trading “profits,” deBarardinis has told Counter-
1
This is entirely false. FR has no trading partners. As best Counter-Plaintiffs can tell, there are no trades. There
are no trading profits. While there is a federal investigation, it is regarding FR and Mr. deBerardinis’s fraudulent
actions.
know exactly where or to what bank(s) deBeradinis has transferred the millions he and FR III
borrowed.
The Relief Sought by Counter-Plaintiffs -- Immediately Halt the Scam and Freeze
Assets. Counter-Plaintiffs are in imminent danger of losing everything because deBerardinis and
FR III, despite their massive fraud, retain a free hand to use, dispose and transfer assets they
obtained under false premises. Thus, Counter-Plaintffs seek immediate injunctive relief against
FR III and deBerardinis so as to (i) stop their scam and (ii) freeze assets that rightfully belong to
them and others. To do so, Counter-Plaintiffs seek to enjoin deBardinis and FR III from:
a) transferring, spending, hiding, disposing, and/or otherwise using any funds belonging
to; loaned to or otherwise traceable in any way to FR IIl or any of its affiliated
companies;
b) transferring, spending, hiding, disposing, and/or otherwise using any funds in the
possession, custody or control of deBerardinis that belong to; came from or are in any
way traceable to FR III or any of its affiliated companies;
c) incurring any new and/or additional individual or corporate debt, including those of
any affiliated companies;
d) impairing, disposing of or alienating any asset of FR III, including any such assets
possessed by others; and
This immediate relief will halt the dissipation of assets wrongfully obtained. The relief is
justified because none of the funds obtained by FR III and/or deBerardinis belong to them, as all
were obtained under false and fraudulent circumstances. Further, Counter-Plaintffs seek
expedited discovery so they can determine what FR III and deBerardinis did with the wrongfully
2. Pursuant to Texas Rule of Civil Procedure 47, Counter-Plaintiffs state that they
seek monetary relief over $1,000,000 and non-monetary relief as specified herein.
IV. PARTIES
7. FR III Funding, LLC is a Delaware limited liability company with its principal
place of business in Shreveport, Louisiana. Upon information and belief, FR III may be served
with process at 213 Texas Street, Shreveport, Louisiana, by serving Jerald R. Harper, its
registered agent. Alternatively, FR III may be served with process at its principal business office
and mailing address located at 1915 E. 70th Street, Shreveport, Louisiana 71105 by way of
8. David deBerardinis is, upon information and belief, a Louisiana resident who may
be served with process at his last-known principal address at 300 Brookmeade, Shreveport,
Louisiana 71106. Alternatively, deBerardinis may be served at his principal place of business as
9. This Court has jurisdiction over the parties as each has done business in Texas
and/or because each of the parties has had sufficient minimum or continuing contacts with Texas
10. This Court has subject matter jurisdiction over this action because the amount in
11. Pursuant to Tex. Civ. Prac. & Rem. Code § 15.002(a)(1), venue is proper in this
county because all or a substantial part of the events or omissions giving rise to the claims
12. Venue is also proper in Dallas County because Section 9.11 of the Amended and
Restated Guaranties designate this Court as the proper forum for any suit or proceeding arising
14. David deBerardinis is a Louisana-based individual who has been active in the oil
and gas business. He formed a company known as Financial Resources, which purportedly was
in fuel trading business. He then formed several affiliated entities, including defendant FR
Funding III, LLC, which operated as funding vehicles for his purported trading business.
15. Mr. deBarardinis claimed that FR III’s business model went something like this:
(i) FR has a valuable trading agreement in which it could buy fuel from Alon USA, Inc. (a well-
known, large and publically traded fuel company) and then re-sell it at a higher price to Freeport
McMoRan (also a large, well-known energy company); (ii) as such, the trading profits were
16. Mr. deBerardinis then solicited individuals to loan FR III funds to make the
trades. According to him, the loans were of a short duration, paid a high interest and, notably,
17. Mr. deBerardinis had scores of documents to back up his purported business. He
had executed contracts with Alon, Freeport McMoRan, and others. He had trading
confirmations. He had letters from his trading “partenrs” verifying his claims.
18. On this basis, Counter-Plaintiffs (with the exception of Patrick Mulligan) made
loans in various amounts to FR III. One of those loans is attached as Exhibit A. The loans were
guaranteed by Alon.
19. Mr. deBerardinis also represented that he had some sort of ownership in a pipeline
run by Colonial Pipeline Company, a large, well-known company. Mr. deBerardinis represented
that had a “line tyme” agreement (which meant he had the ability to transport fuel using the
pipeline) and had a standing offer by Colonial to buy back his interest. Again, he had executed
agreements with Colonial to back up his claim. He also represented that his ownership interest
20. In 2014, deBerardinis determined that a bank loan would be a better source of
funding. He and FR III applied for a $17.5 million loan (the “Original Loan”) from
PlainsCapital Bank. Ostensibly, deBerardinis needed this infusion of capital for his “trading
operations.”
Original Loan. Counter-Plaintiffs believed that PlainsCapital had conducted sufficient due
PlainsCapital’s diligence, the structure of the loan (which involved specified accounts for the
funds), and other things, Counter-Plaintiffs agreed to guarantee the Original Loan, resulting in an
extension of more than $17 million in loans to deBerardinis on November 21, 2014.
Original Loan (the “Amended Loan”) to increase the amount borrowed to $29.5 million. Yet
again, on the strength of PlainsCapital’s diligence, the specific structure of the loan, a firm
guarantee of the loan by Alon USA, Counter-Plaintiffs agreed to guarantee the Amended Loan,
resulting in an extension of more than $29 million to deBerardinis on June 22, 2015.
23. In applying for the Original and Amended Loans, deBerardinis represented that
FP III was engaged in a trading operation involving Alon USA and Freeport McMoRan.
Specifically, Counter-Plaintiffs believed and relied on the fact that PlainsCapital Bank verified
these claims as part of their due diligence. Counter-Plaintffs were made aware of the fact that
claims, including:
v. A May 26, 2015 letter, from Felt containing a standing offer to buy
deBerardinis’ “tyme;” and
ii. A May 21, 2015 letter amending the Unbranded Fuel Sales
Agreement;
25. It was on the basis of PlainsCapital’s supposed diligence and verification of those
26. Ultimately, deBerardinis failed to make loan payments as required under the
terms of the Amended Loan, and PlainsCapital filed suit to enforce the note.
deBerardinis’ records and documents are fake and/or forged, making it clear that deBerardinis is
running an illegal scheme. The following specific instances of forgery have been uncovered:
28. Counter-Plaintiffs have continued to investigate, but have been unable to uncover
29. Moreover, Counter-Plaintiffs have not been able to determine either how
deBerardinis and/or FP III used the $29 million or where any remaining amounts of that loan are
located.
30. Upon information and belief, the $29 million loan has been converted to
31. Upon information and belief, all documents, communications, and records
32. To date, deBerardinis has refused to give Counter-Plaintiffs access to the FR III
dissipate the $29 million loan and other assets, which would irreparably harm Counter-Plaintiffs’
VII. NOTICE
34. Counter-Plaintiffs’ answer date for PlainsCapital’s lawsuit has not yet run.
Accordingly, Counter-Plaintiffs will answer that lawsuit and assert appropriate affirmative
defenses and claims at that time. Further, Counter-Plaintiffs have additional claims against
VIII. COUNTERCLAIMS
35. Counter-Plaintiffs repeat and reallege each and every allegation made in the
37. FR III has failed to pay back those amounts, causing Counter-Plaintiffs injury in
38. Counter-Plaintiffs repeat and reallege each and every allegation made in the
a. FR III and deBerardinis had a trading agreement in place with Alon and
Freeport;
40. These material misrepresentations were false, and were made knowingly or
recklessly.
loans.
43. Counter-Plaintiffs have been injured as a direct and proximate cause of FP III and
and costs to the full extent allowed by law, including, but not limited to §§ 38.001 and 134.005
45. Counter-Plaintiffs repeat and reallege each and every allegation made in the
46. Counter-Plaintiffs seek a temporary injunction and, upon final trial hereof, a
permanent injunction as set forth herein. Upon information and belief, deBerardinis and FR III
continue to perpetuate their fraudulent scheme by transferring, spending, using, hiding, and/or
disposing of funds and assets and are likely to continue doing so absent injunctive relief.
Similarly, upon information and belief, deBerardinis and FR III continue to incur debt in
advancement of their scheme and are likely to continue doing so absent injunctive relief. If
actions, constituting both a continued breach of their contractual obligations and fraud. Further,
in the absence of a temporary injunction, nothing will prevent deBerardinis and/or FR III from
transferring, spending, using, hiding, and/or disposing of funds and assets in an effort to avoid
judgment in this and other, related lawsuits. Once deBerardinis and FR III succeed in these
47. Counter-Plaintiffs are likely to succeed on the merits of this action. The facts
alleged in Counter-Plaintiffs’ Counterclaims and Request for Injunctive Relief demonstrate that
FR III and deBerardinis are in breach of their contractual obligation to Counter-Plaintiffs and
continue to engage in a massive, spectacularly fraudulent effort by way of forgery and deception.
deBerardinis’ conduct thus far has evidenced his dedication to this fraud, and none of Counter-
48. Counter-Plaintiffs will provide FR III and deBerardinis with notice of any hearing
49. To preserve the status quo and protect Counter-Plaintiffs’ rights during the
pendency of this action and to prevent further actions constituting breach of contract and fraud,
Counter-Plaintiffs request that deBerardinis and FR III be cited to appear and show cause: (a) as
to why any and all personal and corporate assets should not be frozen; (b) as to why any
affiliates’ corporate assets should not be frozen; (c) as to why they (or any of their agents or
spending, using, hiding, disposing and/or otherwise using any funds belonging to, loaned to, or
otherwise traceable in any way to FR III or any of its affiliated companies; (d) as to why they (or
any of their agents or representatives, including attorneys) should not be restrained or enjoined
debt of any affiliated companies); and (e) as to why they should not be ordered to immediately
turn over all documents requested by Counter-Plaintiffs, including any and all of FR III’s books
and records.
restraining order, which shall be effective for fourteen days, that enjoins deBerardinis and FR III
a) transferring, spending, hiding, disposing, and/or otherwise using any funds belonging
to; loaned to or otherwise traceable in any way to FR IIl or any of its affiliated
companies;
b) transferring, spending, hiding, disposing, and/or otherwise using any funds in the
possession, custody or control of deBerardinis that belong to; came from or are in any
c) incurring any new and/or additional individual or corporate debt, including those of
d) impairing, disposing of or alienating any asset of FR III, including any such assets
51. Counter-Plaintiffs further request that the Court set their application for
Temporary Injunction for a hearing no more than fourteen days from the entry of the Temporary
Restraining Order, and that upon conclusion of that hearing, that the Court enter a Temporary
Injunction to remain in force for the duration of this lawsuit that enjoins FR III and deBerardinis
Paragraph 50(a)-(e).
52. Counter-Plaintiffs finally request that upon a final hearing, the court enter a
Permanent Injunction that enjoins deBerardinis and FR III from the actions outlined in Paragraph
50(a)-(e).
53. Counter-Plaintiffs are willing and able to post bond, as ordered by the Court, in
54. Counter-Plaintiffs demand their right to have a trial by jury in this matter.
X. PRAYER
and deBerardinis;
reasonable and necessary attorneys’ fees, court costs, pre-judgment interest, and post-judgment
interest;
5. That the Court set Counter-Plaintiffs’ Application for Temporary Injunction for
hearing no later than fourteen days from the entry of the Temporary Restraining Order and, upon
6. That, upon a final hearing, the Court enter a Permanent Injunction, in accordance
with Paragraph 50-52 of Counter-Plaintiffs’ Counterclaims and Request for Injunctive Relief;
and
7. For all such other and further relief at law or in equity that the Court may deem
Jeffrey M. Tillotson
Texas Bar No. 20039200
jtillotson@tillotsonlaw.com
Jonathan R. Patton
Texas Bar No. 24088198
jpatton@tillotsonlaw.com
Joseph A. Irrobali
Texas Bar No. 24092564
airrobali@tillotsonlaw.com
TILLOTSON LAW
750 N. St. Paul, Suite 610
Dallas, Texas 75201
(214) 382-3041 Telephone
(214) 501-0731 Facsimile
I hereby certify that due to the evidence presently available and belief of fraudulent
activity, notice to the opposing party or counsel would impair and/or annul the court’s power to
grant relief because of the possibility that assets and money may be liquidated and/or transferred
if notice to FR III or deBerardinis were required.
I also certify that Plaintiffs in this matter, PlainsCapital Bank, were provided notice of
this filing.
Jeffrey M. Tillotson
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing document was served on
all counsel of record herein on July 13, 2016 by E-Service.
I further certify that to the best of my knowledge this case is not subject to transfer under
Dallas County Local Rule 1.06.
Jeffrey M. Tillotson
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned notary, on this day, personally appeared Patrick Mulligan,
the affiant, a person whose identity is known to me. After I administered an oath to affiant,
affiant testified:
"My name is Patrick Mulligan. I am capable of making this verification. I have read
Plaintiffs Verified Original Petition and Application for Temporary Restraining Order,
SUSAN D WADE
Notary ID II 5744803
{)UQ1v- �A_-,
Notary Public, State of Texas
My Commission Expires
June 1, 2020
The Borrower may prepay this Promissory Note without penalty subject to any lender's
consent if appropriate.
This Promissory Note represents a new transaction, and any and all prior debt
transactions between Borrower and Lender have been successfully concluded and fonn no part
of the new transaction represented by this Promissory Note.
This Promissory Note shall be governed by and construed under the laws of the State of
Louisiana.
IN WITNESS WHEREOF, the Borrower has caused this Promissory Note to be executed
and delivered on the day first written above.
The payment of this Promissory Note is guaranteed by Alon u;s.A. and Babran Global.
Alon U.S.A.
By: - -. 1:&/!t:J:
Shai Even, Senior Vice President and
Chief Financial Officer
Alon USA•7616 LBJ frreeway, Suite 300•Dallas, Texas 75251-7030•Phone (972) 367-3600
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