1 2 3 4 5 6 7 8 9 10 11 12 13 v. 14 Mark A. Leonard, an individual, 15 Defendant. 16 17 18 19 20 21 22 23 24 1.

Federal Deposit Insurance Corporation as Receiver for Cowlitz Bank, Plaintiff, In re

Hon. Paul B. Snyder Chapter 7 Location: 500 W. 12th Street, 2nd Floor Vancouver, Washington

UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA Case No. 13-43836-PBS Mark A. Leonard, Adv. Proc. No. _____________ Debtor. COMPLAINT TO DETERMINE THE NON-DISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE

For its Complaint against defendant Mark A. Leonard (Leonard), the Federal Deposit Insurance Corporation, as Receiver for Cowlitz Bank (FDIC) alleges: JURISDICTION AND VENUE The court has jurisdiction over this adversary proceeding pursuant to Fed. R.

Bankr. P. 7001 and 28 U.S.C. 157 and 1334. 2. The matters in controversy in this adversary proceeding arises under 11

U.S.C. 523 and 727 and are core proceedings pursuant to 28 U.S.C. 157(b)(2)(H) and (b)(2)(J). Page 1 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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3.

Venue in this district is proper pursuant to 28 U.S.C. 1409. DESCRIPTIONS OF THE PARTIES

4.

The FDIC is an independent agency of the federal government. The FDIC

was appointed as receiver of Cowlitz Bank on July 20, 2010, after the institution failed and was closed by the Washington Department of Financial Institutions. 5. Leonard is an individual residing in the State of Washington and the debtor in

the bankruptcy matter pending in the United States Bankruptcy Court District of Washington, Case No. 13-43836-PBS (Individual Bankruptcy). COMMON FACTUAL ALLEGATIONS 6. Cowlitz Bank obtained a judgment against Leonard for breach of obligations

under certain Commercial Guaranties on June 7, 2010 in Cowlitz County Superior Court, Case No. 09-2-02188-1. 7. Pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act

of 1989 (FIRREA), the FDIC succeeded to all rights, titles, powers and privileges of Cowlitz Bank upon appointment as receiver. 8. As of June 7, 2013, the date Leonard filed the Individual Bankruptcy, the

outstanding balance owed to the FDIC on account of the judgment was $938,670.44, as is evidenced by the Proof of Claim on record in Case No. 13-43836-PBS as Claim No.1. 9. The Commercial Guaranties relate to a Promissory Note, Business Loan

Agreement, and Commercial Security Agreements entered into by Cowlitz Bank and Tytan International, Inc. (Tytan Intl) on April 10, 2006, subject to subsequent Modifications and Extension Agreements. 10. At all relevant times, Leonard has acted as the President of Tytan Intl, which

imports and sells Chinese tractors and tractor implements. Page 2 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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11.

Pursuant to the Commercial Security Agreements and related Financing

Statements, the FDIC has a perfected security interest that extends to all Tytan Intls inventory, attachments and accessories, accessions, additions, replacements, substitutions, records and proceeds related thereto, whether owned at the time of the grant of the security interest or acquired thereafter, in addition to other items specifically set forth in the Commercial Security Agreements (Collateral). 12. Tytan Intl filed Chapter 7 bankruptcy in the United States Bankruptcy Court

District of Washington on November 7, 2013, as Case No. 13-46948-BDL (Tytan Bankruptcy). 13. Leonard acted as the individual authorized to file the petition on behalf of

Tytan Intl and declared under penalty of perjury that the information contained in the petition, schedules and related statement of financial affairs was true and correct. 14. In or around June 2009, Leonard formed Tytan Holdings, Inc. (Tytan

Holdings). Tytan Holdings is denominated as a penny stock and is in listed on the Over The Counter (OTC) Bulletin Board under the symbol TYTN PK. 15. According to the published OTC Bulletin issued for Tytan Holdings in

January 2013, Tytan Holdings acts as the holding company for Tytan Intl, its wholly owned subsidiary that generates revenue through the sale of tractors and tractor implements. 16. At the time Tytan Holdings acquired Tytan Intl in or around December 2009,

Leonard was the sole shareholder of Tytan Intl. 17. Leonard now acts as the controlling stockholder of Tytan Holdings, by virtue

of his majority ownership (500,000 of the 1,000,000 shares) of the Preferred Series A stock. 18. At all relevant times, Leonard has served as Chief Executive Officer and

Chairman of the Board of Tytan Holdings. Page 3 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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19.

At all relevant times, Tytan Intl and Tytan Holdings have been headquartered

at 5225 Meeker Drive, Kalama, Washington 98625 (Commercial Property). 20. As Chief Executive Officer of Tytan Holdings, Leonard issued Annual

Reports and Consolidated Financial Statements for 2009, 2010, 2011 and 2012. 21. The Consolidated Financial Statement for the year of 2011 included a

statement that Tytan Intl and/or Tytan Holdings has assets of 1.8 million dollars in inventory and $230,242 in accounts receivable. 22. As Chief Executive Officer of Tytan Holdings, Leonard executed each

Consolidated Financial Statement and certified that such disclosures did not contain any untrue statement of material fact or omit to state any material fact. 23. Beginning in February 2011, Tytan Holdings engaged in a series of

exchanges under Rule 504 of Regulation D, as promulgated under the Securities Act of 1933 (504 Exchanges) in which Tytan Holdings sold approximately 600,000,000 shares of its Common Stock to E-Lionheart and Associates, LLC, Fairhills Capital1 and TJ Management, LLC. 24. According to the multiple Resolutions to authorize the 504 Exchanges issued

by Leonard as Chief Executive Officer of Tytan Holdings, the funds raised in the 504 Exchanges were to be used for the purpose of enabling Tytan Holdings to develop and expand its business. 25. The Resolutions to authorize the 504 Exchanges were issued by Leonard

under the pretense of having obtained the unanimous written consent of Tytan Holdings Board of Directors.

E-Lionheart and Associates, LLC and Fairhills Capital have since been sued by the U.S. Securities and Exchange Commission in the U.S. District Court for the Southern District of New York for violating the registration provisions of the Securities Act of 1933.

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26.

According to Leonards sworn testimony at 341(a) hearings conducted in both

the Individual and Tytan Bankruptcies, as well as a subsequent 2004 Examination conducted on December 20, 2013, Tytan Holdings received only $400,000 from the 504 Exchanges. 27. According to Leonards sworn testimony at the same 341(a) hearings and the

2004 Examination, the capital generated from the 504 Exchanges was exclusively used to pay down corporate debt and purchase new inventory. 28. According to the 2011 Annual Report and Consolidated Financial Statement

filed by Tytan Holdings, it raised over $900,000 from the 504 Exchanges and the funds used to purchase new inventory, increasing Tytan Holdings and/or Tytan Intls assets by 27.9%, from $1,914,572 in 2011 to $2,447,928. 29. According to the Pacific Continental Bank statements subpoenaed by the

FDIC, approximately $725,000 from the 504 Exchanges was deposited directly into Tytan Holding and Tytan Intl bank accounts in 2011. According to the same bank statements, Leonard used a portion of the funds to fund his personal expenses. 30. According to the Pacific Continental Bank statements subpoenaed by the

FDIC, a large portion of the funds generated from the 504 Exchanges was subsequently wired to various manufacturing trading companies in China. 31. According to Leonards sworn testimony at the 341(a) hearings and the 2004

Examination, Tytan Intl stopped operating business on or around November 7, 2013, the date it filed bankruptcy. 32. According to Leonards sworn testimony at the same 341(a) hearings and

2004 Examination, all remaining assets of Tytan Intl subject to the FDICs security interest are properly accounted for on the schedules in the Tytan Bankruptcy and are currently stored at the Commercial Property. Page 5 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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33.

The FDIC conducted an appraisal of the remaining inventory on

January 4, 2014, which shows a value of only $157,100. Of that value, approximately $26,000 of the inventory is subject to a purchase money security interest in favor of GE Commercial Distribution Finance Corporation. 34. Despite requests, Leonard has failed to provide adequate invoices or receipts

which evidence the disposition of the FDICs Collateral. 35. Leonard has failed to sufficiently account for the discrepancy in the amount of

inventory listed on the schedules in the Tytan Bankruptcy and the Annual Report and Consolidated Financial Statements. 36. Despite giving sworn testimony to the contrary, Leonard has in fact concealed

and subsequently transferred a portion of the FDICs Collateral to a business located in Chehalis, Washington known as Southwest Tractors. 37. As recently as November 2013 and January 2014, Leonard has imported

equipment from China under the name of the Truper Corporation (Truper Corp.), an entity owned and operated by Leonard, with specific instructions that deliveries be made to Southwest Tractors located in Chehalis, Washington. 38. According to Leonards sworn testimony at the 341(a) hearings and 2004

Examination, the Truper Corp. has no bank accounts, no assets and does not conduct business. 39. According to documents subpoenaed by the FDIC, Leonard has stated to third

parties that the Truper Corp actively acts as an agent and importer for tractor dealers, including Tytan Intl and Southwest Tractors. ...... ...... Page 6 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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40.

At all relevant times, Leonard commingled funds and assets of Tytan

Holdings and Tytan Intl with his own affairs and has treated corporate assets as his own, including without limitation his personal consumption of funds from the 504 Exchanges. 41. At all relevant times, Leonard, as President and Chief Executive Officer of

Tytan Holdings, has failed to maintain adequate corporate minutes or records for Tytan Holdings or Tytan Intl and has disregarded required corporate formalities. 42. At all relevant times, Leonard has further failed to adequately disclose and

testified falsely as to the current state of assets, liabilities and related business affairs in both the Individual and Tytan Bankruptcies, including without limitation, his ownership of a house subject to a governmental ground lease near Hermisillo, Mexico, ownership of significant antique firearms, financial transactions involving his two daughters, Heather S. Jaeger and Holly A. King, and an alleged security interest granted to China National United Equipment Co. 43. Leonard submitted an Affidavit of Financial Condition (Affidavit) to the

FDIC in May 10, 2011, in connection with an attempt to settle litigation in Cowlitz County Superior Court involving Tytan Intl (Case No. 10-2-01361-1) collection of the judgment on the Commercial Guaranties. 44. The Affidavit contains representations regarding Leonards income, assets and

financial condition which were materially false when made. The Affidavit also includes as exhibits the 2009 and 2010 Consolidated Financial Statements for Tytan Holdings which further contain materially false information. ...... ...... ...... Page 7 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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FIRST CLAIM FOR RELIEF (Alter Ego) The FDIC incorporates the allegations and assertions of fact in paragraphs 1

44 set forth above, as if fully set forth herein. 46. Leonard is the controlling owner of Tytan Holdings, of which Tytan Intl is a

wholly owned subsidiary. 47. At all relevant times, Leonard has dominated and controlled Tytan Holdings

and Tytan Intl for his own personal gain. 48. At all relevant times, Leonard has engaged in the unauthorized diversion of

corporate funds for other than corporate purposes and has abused the protections provided by the corporate form. 49. The corporate entities and Leonard are one and the same so that Leonards

conduct relating to the business operations of Tytan Holdings and/or Tytan Intl, including without limitation the disposition of corporate assets, should be considered one and the same. CLAIMS FOR RELIEF RELATED TO OBJECTION TO DISCHARGE

16 SECOND CLAIM FOR RELIEF 17 18 19 20 21 22 23 24 Page 8 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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11 U.S.C. 523(a)(2)(A) (False Pretense, False Representation, Actual Fraud) 50. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

49 set forth above, as if fully set forth herein. 51. Leonard fraudulently omitted and engaged in deceptive conduct when, on

behalf of Tytan Intl, he sought credit, renewals, refinancing and forbearance from both Cowlitz Bank and the FDIC.

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52.

Leonard misrepresented, fraudulently omitted, and engaged in deceptive

conduct when he entered into the Commercial Guaranties and subsequent negotiations with Cowlitz Bank and the FDIC. 53. Leonard had knowledge of the falsity or deceptiveness of his statements and

conduct. In the alternative, Leonards course of conduct demonstrates a reckless indifference to the truth or falsity of his statements. 54. The totality of the circumstances and conduct of Leonard demonstrate that he

had every intent to deceive Cowlitz Bank and later, the FDIC. 55. 56. Cowlitz Bank and the FDIC justifiably relied on Leonards representations. The FDIC has suffered damage as the proximate result of its and Cowlitz

Banks reliance on Mr. Leonards representations. THIRD CLAIM FOR RELIEF 11 U.S.C. 523(a)(2)(B) (False Financial Statement) 57. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

56 set forth above, as if fully set forth herein. 58. The financial statements submitted to Cowlitz Bank by Leonard during its

course of its dealings with Leonard and Tytan Intl were materially false at the time such documents were made. 59. The Affidavit Leonard submitted to the FDIC on May 9, 2011 was materially

false at the time it was made. 60. statements. ...... Page 9 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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61.

Leonard caused the financial statements and Affidavit to be made with the

intent to deceive Cowlitz Bank and the FDIC. 62. Affidavit. 63. The FDIC has suffered damage as the proximate result of its and Cowlitz Cowlitz Bank and the FDIC reasonably relied on the financial statements and

Banks reliance on false financial statements issued by Leonard. FOURTH CLAIM FOR RELIEF 11 U.S.C. 523(a)(6) (Malicious and Willful Injury) 64. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

63 set forth above, as if fully set forth herein. 65. In concealing, transporting and disposing of the FDICs Collateral, Leonard

had the specific and deliberate intention of causing harm to the FDIC. 66. Leonard has disposed and concealed the FDICs Collateral with the specific

knowledge that the disposition would invariably and indubitably cause harm to the FDIC. 67. Leonard has acted willfully and maliciously with the intent to improperly use

the FDICs Collateral and/or its proceeds for purposes other than payment of the debt secured by the Collateral. 68. Leonard has purposefully inflicted the injury or acted with substantial

certainty that injury would result from his conduct. 69. Leonards action are wrongful and without just cause or excuse.

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CLAIMS FOR RELIEF RELATED TO DENIAL OF DISCHARGE FIFTH CLAIM FOR RELIEF 11 U.S.C. 727(a)(2)(A) (Pre-Petition Transfer and Concealment of Assets) 70. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

69 set forth above, as if fully set forth herein. 71. Within one year before the date of the filing of the petition in the Individual

Bankruptcy, Leonard, in his capacity as the alter ego of Tytan Holdings and Tytan Intl, has with the intent to hinder, delay, or defraud the FDIC transferred, removed, destroyed, mutilated, or concealed or has permitted to be transferred, removed, destroyed, mutilated or concealed, property of Tytan Intl subject to the FDICs security interest 72. Within the year prior to filing the Individual Bankruptcy, Leonard has with

the intent to hinder, delay, or defraud his creditors transferred, removed, destroyed, mutilated, or concealed or has permitted to be transferred removed, destroyed, mutilated or concealed his property. SIXTH CLAIM FOR RELIEF 11 U.S.C. 727(a)(2)(B) (Post-Petition Transfer and Concealment of Assets) 73. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

72 set forth above, as if fully set forth herein. 74. Since the filing of the Individual Bankruptcy, Leonard, in his capacity as the

alter ego of Tytan Holdings and Tytan Intl, has with the intent to hinder, delay or defraud the FDIC transferred, removed, destroyed or concealed or has permitted to be transferred, removed, destroyed or concealed, property of the bankruptcy estate of Tytan Intl. Page 11 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE

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75.

Since the filing of the Individual Bankruptcy, Leonard has with the intent to

hinder, delay or defraud his creditors transferred, removed, destroyed, or concealed or has permitted to be transferred, removed, destroyed or concealed his own property. SEVENTH CLAIM FOR RELIEF 11 U.S.C. 727(a)(3) (Failure to Preserve Records) 76. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

75 set forth above, as if fully set forth herein. 77. Leonard, both in his individual capacity and in the capacity as the alter ego of

Tytan Holdings and Tytan Intl, has concealed, destroyed, mutilated, falsified and failed to keep and preserve recorded information, including books, documents, records, and papers, from which to ascertain his, Tytan Intls and Tytan Holdings financial condition and business transactions without justification. EIGHT CLAIM FOR RELIEF 11 U.S.C. 727(a)(4) (False Oath) 78. The FDIC incorporates the allegations and assertions of fact in paragraphs 1

77 set forth above, as if fully set forth herein. 79. Leonard has knowingly and fraudulently, in or in connection with the

Individual Bankruptcy and Tytan Bankruptcy, made false oaths and accounts, including without limitation his failure to disclose assets and liabilities on bankruptcy schedules signed under penalty of perjury and false sworn testimony the 341 (a) hearings and 2004 Examination. 80. The oaths relate to a material facts.

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81. 82.

The oaths were made knowingly. The oaths were made with the specific purpose of perpetrating a fraud. NINTH CLAIM FOR RELIEF 11 U.S.C. 727(a)(5) (Failure to Explain Loss or Deficiency)

83.

The FDIC incorporates the allegations and assertions of fact in paragraphs 1

82 set forth above, as if fully set forth herein. 84. According to the Consolidated Financial Statements issued by Leonard on

behalf of Tytan Intl and Tytan Holdings, there existed $1.8 million in inventory and $230,242 of accounts receivable at the end of 2011, both subject to the FDICs security interest. 85. Leonard, in the capacity as the alter ego of Tytan Holdings and Tytan Intl,

has failed to explain satisfactorily the loss and deficiency of the FDICs Collateral. TENTH CLAIM FOR RELIEF Fed. R. Bankr. P. 7008(b) (Attorneys Fees) 86. FDIC incorporates the allegations and assertions of fact in paragraphs 1 85

set forth above, as if fully set forth herein. 87. The Promissory Note, Business Loan Agreement, Commercial Security

Agreements and Commercial Guaranties provide for the recovery of attorneys fees in any enforcement activity or collection, including bankruptcy proceedings. 88. The FDIC has incurred and continues to incur attorneys fees and costs with

respect to the enforcement of terms and provision set forth in the Promissory Note, Business Loan Agreement, Commercial Security Agreements and Commercial Guaranties. Page 13 of 14 COMPLAINT TO DETERMINE THE NONDISCHARGEABILITY OF DEBT AND TO OBJECT TO DISCHARGE
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WHEREFORE, the FDIC prays for the following relief: Judgment in favor of the FDIC on its claim against Leonard in an amount to

be determined at trial, but currently estimated to be $938,670.44, plus interest thereon; B. Judgment declaring that the claims made by the FDIC against Leonard are

nondischargeable pursuant to 11 U.S.C. 523(a)(2)(A) and (B) and 523(a)(6); C. Judgment denying Leonards discharge pursuant to 11 U.S.C. 727

(a)(2)(A) and (a)(2)(B), 727(a)(3), 727(a)(4) and 727(a)(5). D. An award of all reasonable collection fees including but not limited to

attorneys fees, costs of litigation and all court costs to the extent allowed by law; E. circumstances. DATED this 20th day of February, 2014. BLACK HELTERLINE LLP Any other relief deemed just, equitable or appropriate under the

By:

/s/ Britta E. Warren Britta E. Warren, WSBA No. 43329 bew@bhlaw.com Fax: (503) 224-6148 Of Attorneys for Federal Deposit Insurance Corporation as Receiver for Cowlitz Bank

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