United States District Court, D. Colorado
CGC HOLDING COMPANY, LLC, a Colorado limited liability company; CRESCENT SOUND YACHT CLUB, LLC, a Florida limited liability company; HARLEM ALGONQUIN LLC, an Illinois limited liability company; and JAMES T. MEDICK; on behalf of themselves and all others similarly situated, Plaintiffs,
SANDY HUTCHENS, a/k/a Fred Hayes, a/k/a Moishe Alexander, a/k/a Moshe Ben Avraham, et al, Defendants.
ORDER ON PENDING MOTIONS -, 5
Brooke Jackson United States District Judge
pending are (1) plaintiffs' motion in limine seeking an
order precluding the “Hutchens Defendants” from
presenting live testimony at trial if the witnesses won't
appear for examination during plaintiffs' case in chief;
(2) the Hutchens Defendants' motion to alter or amend the
Court's summary judgment order issued April 29, 2016 in
certain respects; and (3) plaintiffs' motion to compel
the Hutchens Defendants to produce certain discovery
information.This order addresses the first two motions.
The third has been referred to Magistrate Judge Mix.
summarized the basic claims and defenses several times in
previous orders and will repeat only so much as might be
helpful to give the pending motions some context. Plaintiffs
represent a class of entities and individuals in the United
States who, desperate for loans, learned of lenders
headquartered in Toronto, Ontario who had money to lend. They
submitted applications through loan brokers, received loan
commitment agreements, and paid nonrefundable loan commitment
fees that were required by the lenders. Thereafter, in each
case the lenders determined that the would-be borrower failed
to meet some eligibility condition, terminated the loan
commitment, and retained the commitment fee.
claim that from the outset the purported lenders had neither
the intent nor the ability to fund more than a tiny fraction,
if any, of the loans to which they committed. Instead,
Plaintiffs claim that this was a fraudulent scheme designed
to swindle them out of the loan commitment fees. The
purported mastermind was Sandy Hutchens, although they did
not know that at the time because he and his associates
concealed his identity and his criminal past by the use of a
number of aliases.
it was not clear when the case was first filed, plaintiffs
have since stipulated that there were legitimate reasons for
which a bona fide lender could have declined the loans.
However, plaintiffs claim that they never would have applied
for the loans and paid the up-front commitment fees had they
known of the facts that Mr. Hutchens and his associates
concealed from them. Plaintiff initially asserted a variety
of causes of action, but what remains for trial are claims
under the Racketeer Influenced and Corrupt Practices Act,
sometimes referred to as civil RICO.
Hutchens Defendants argue that Sandy Hutchens was a reformed
man and a legitimate lender. They submit that he and his
associated entities had both the ability and the intent to
fund loans to qualified borrowers. However, after receiving
the commitment fees, the Hutchens Defendants discovered
during the course of their due diligence investigation that
applicants either were not qualified or had omitted material
facts from their applications, or both. For those reasons the
loans were not funded, and plaintiffs have no grounds to
claim entitlement to return of their application fees.
case was filed on April 15, 2011. Plaintiffs named as
defendants the lenders and several lawyers and a real estate
agent who allegedly assisted Mr. Hutchens in the perpetration
of the fraud. During the course of the case many motions have
been filed, many orders have been issued, one interlocutory
appeal has been taken, and the case has been set and re-set
for trial several times. Along the way plaintiffs' claims
against all defendants other than the Hutchens Defendants
have either settled or have been dismissed. The trial of
plaintiffs' RICO claims against the Hutchens Defendants
is set for April 10, 2017.
Plaintiffs' Motion in Limine to Preclude Any of the
Hutchens Defendants from Testifying Live in Defendants'
Case-in-Chief if the Hutchens Defendants Refuse to Make Them
Available During Plaintiffs' Case-in -Chief [ECF No.
have apparently taken depositions of Sandy and Tanya Hutchens
and Jennifer Araujo, but they prefer to call them as live
witnesses at trial. However, the Hutchens Defendants have
declined to commit to their presence. Therefore, plaintiffs
seek an order precluding the defendants from calling these
individuals as live witnesses during the defense case if they
did not make themselves available to be called live by the
Hutchens Defendants respond that the motion is premature and
speculative. It is unlikely, they suggest, that one of these
individuals would be unavailable to testify during
plaintiffs' case but available during defendants'
case. ECF No. 709 at 1. But if that “speculative
improbability” were to occur, the Court could keep
plaintiffs' case in chief open until the witness is
called by the defense and then permit plaintiffs' counsel
to cross-examine the witness fully at that time. Id.
at 1-2. Or, if the witnesses are present during
plaintiffs' case in chief, the Court could
“mitigate the potential unfairness to a defendant of
having its witness presented in the plaintiffs'
case-in-chief by permitting the witness to be presented as an
out-of-order defense witness.” Id. at 2.
appears from defendants' proposed alternatives that they
do anticipate that the individuals will be present at least
at some point during the trial. Therefore, the dispute is a
tactical one, apparently turning on which party gets to
present the live testimony first. But it is neither unusual
nor improper for a plaintiff to wish to call the opposing
party during the plaintiff's case in chief. Absent some
irreconcilable scheduling conflict, there generally is no
compelling reason to let a defendant call ...