UNITED STATES DISTRICT COURT NORTHERN DIVISION …

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

ALYSSON MILLS, IN HER CAPACITY AS RECEIVER FOR ARTHUR LAMAR ADAMS AND MADISON TIMBER PROPERTIES, LLC,

Plaintiff, v. MICHAEL D. BILLINGS and MDB GROUP, LLC; TERRY WAYNE KELLY, JR. and KELLY MANAGEMENT, LLC; and WILLIAM B. MCHENRY, JR. and FIRST SOUTH INVESTMENTS, LLC,

Defendants.

Case No. 3:18-cv-679-CWR-FKB Arising out of Case No. 3:18-cv-252, Securities and Exchange Commission v. Arthur Lamar Adams and Madison Timber Properties, LLC Hon. Carlton W. Reeves, District Judge Hon. F. Keith Ball, Magistrate Judge

MOTION FOR WRIT OF EXECUTION

Plaintiff Alysson Mills, in her capacity as the court-appointed receiver (the “Receiver”) for

Arthur Lamar Adams and Madison Timber Properties, LLC, moves for the issuance of a writ of

execution as to William B. McHenry, Jr., and states as follows:

1.

On August 16, 2019, the Receiver obtained a final judgment in the United States District

Court for the Southern District of Mississippi, Northern Division, against defendants William B.

McHenry, Jr. and First South Investments, LLC, jointly and severally, in the amount of $3,473,320

(“Final Judgment”). A true and correct copy of the Final Judgment is attached hereto as Exhibit

A. A true and correct copy of the Court’s Order granting the Receiver’s motion for summary

Case 3:18-cv-00679-CWR-FKB Document 82 Filed 08/19/21 of 4

judgment against William B. McHenry, Jr. and First South Investments, LLC is attached hereto as

Exhibit B. No part of the Final Judgment has been paid or satisfied.

2.

Pursuant to Federal Rule of Civil Procedure 69(a)(1), a money judgment is enforced by a

writ of execution. The procedure for execution and supplementary proceedings must accord with

the procedure of the state where the court is located. See Miss. Code Ann. § 13-3-111, et seq.

(when executions must be issued).

3.

On January 24, 2020, McHenry filed a voluntary petition pursuant to Chapter 7 of the

Bankruptcy Code.1 The Receiver initiated an adversary proceeding objecting to McHenry’s

discharge under 11 U.S.C. §§ 727 and 523, and discharge was ultimately denied.2

4.

McHenry listed in his sworn bankruptcy schedules and other productions made in his

bankruptcy proceedings various property and assets that he owns or in which he has an interest. A

listing of property and assets is attached as Exhibit C.

5.

The Receiver seeks to obtain a Writ of Execution from this Court to execute on the Final

Judgment and to have the property described in Exhibit C seized and held for sale, and the proceeds

from the sale, after payment of costs and expenses of the sale, be paid to the Receivership Estate

on the Final Judgment.

1 Doc. 1, In re: William Byrd McHenry, Jr., No. 20-bk-268 (Bankr. S.D. Miss.). 2 Doc. 1, Alysson Mills v. William B. McHenry, Jr., Adv. No. 20-00022 (Bankr. S.D. Miss.) (Adversary Complaint); Doc. 54, Alysson Mills v. William B. McHenry, Jr., Adv. No. 20-00022 (Bankr. S.D. Miss.) (Final Judgment Denying Discharge).


6.

The Receiver is requesting that the Court issue the Writ of Execution to the U.S. Marshal

for the Southern District of Mississippi for service upon McHenry. A form writ of execution is

attached as Exhibit D.

7.

The Receiver is further requesting that Benny Taylor of Taylor Auction & Realty, Inc. be

allowed to retain and sell any seized property, with the proceeds from any sale, after payment of

costs and expenses of the sale, being paid to the Receivership Estate on the Final Judgment. Mr.

Taylor and Taylor Auction & Realty, Inc. have over 25 years of experience in business liquidation,

including the selling of firearms and heavy equipment and machinery. Mr. Taylor has considerable

knowledge and experience in matters of this character and often is appointed to assist bankruptcy

trustees in this District with similar seizures and sales. The Receiver believes that the retention of

Benny Taylor and Taylor Auction & Realty Inc. is in the best interests of the Receivership Estate,

as Taylor Auction & Realty Inc. is a full-service auction company with marketing specialists and

is licensed and bonded in the State of Mississippi.

8.

No stay of execution is in place and the execution being sought is for a lawful and proper

purpose, and is in conformance with Mississippi Code Section § 13-3-111.

9.

For these reasons, the Receiver respectfully requests that the Court issue a Writ of

Execution on the property and assets listed in Exhibit C.


August 19, 2021

Respectfully submitted,

/s/ Lilli Evans Bass

BROWN BASS & JETER, PLLC Lilli Evans Bass, Miss. Bar No. 102896 1755 Lelia Drive, Suite 400 Jackson, Mississippi 39216 Tel: 601-487-8448 Fax: 601-510-9934 [email protected]

/s/ Kristen Amond

FISHMAN HAYGOOD, LLP Admitted pro hac vice Brent B. Barriere, Primary Counsel 201 St. Charles Avenue, Suite 4600 New Orleans, Louisiana 70170 Tel: 504-586-5253 Fax: 504-586-5250 [email protected] MILLS & AMOND LLP Admitted pro hac vice Kristen D. Amond 650 Poydras Street, Suite 1525 New Orleans, Louisiana 70130 Tel: 504-383-0332 Fax: 504-733-7958 [email protected] Receiver’s counsel

CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing with the Clerk of Court using the ECF

system which sent notification of filing to all counsel of record.

Date: August 19, 2021 /s/ Kristen D. Amond


IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

ALYSSON MILLS, in her Capacity as Receiver for Arthur Lamar Adams and Madison Timber Properties, LLC

PLAINTIFF

V. CAUSE NO. 3:18-CV-679-CWR-FKB

MICHAEL D. BILLINGS and MDB GROUP, LLC; TERRY WAYNE KELLY, JR. and KELLY MANAGEMENT, LLC; and WILLIAM B. MCHENRY, JR. and FIRST SOUTH INVESTMENTS, LLC

DEFENDANTS

FINAL JUDGMENT

Having granted the Receiver’s motion for summary judgment, Docket No. 62, this Court

finds that this cause should be dismissed and closed on the Court’s docket.

SO ORDERED AND ADJUDGED, this the 16th day of August, 2019.

s/ Carlton W. ReevesUNITED STATES DISTRICT JUDGE

Case 3:18-cv-00679-CWR-FKB Document 63 Filed 08/16/19 Page 1 of 1

Exhibit A

Case 3:18-cv-00679-CWR-FKB Document 82-1 Filed 08/19/21 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

ALYSSON MILLS, in her Capacity as Receiver for Arthur Lamar Adams and Madison Timber Properties, LLC

PLAINTIFF

V. CAUSE NO. 3:18-CV-679-CWR-FKB

MICHAEL D. BILLINGS and MDB GROUP, LLC; TERRY WAYNE KELLY, JR. and KELLY MANAGEMENT, LLC; and WILLIAM B. MCHENRY, JR. and FIRST SOUTH INVESTMENTS, LLC

DEFENDANTS

ORDER

Before the Court is the Receiver’s motion for summary judgment on the fraudulent

transfer claim (Count I) against Defendants William B. McHenry, Jr. and First South

Investments, LLC.1 After considering the record evidence, briefing, and applicable law, the

motion will be granted.

The relevant facts can be summarized quite succinctly. McHenry and his company, First

South, received $3,473,320 in commissions from 2010 to April 2018 in exchange for recruiting

new investors to Madison Timber, a Ponzi scheme operated by Arthur Lamar Adams. Because

these commissions were proceeds of a Ponzi scheme, the Receiver alleges that they were

fraudulent transfers irrespective of McHenry’s good or bad faith.

1 On December 21, 2018, the Court approved a settlement and consent judgment with Defendant Terry Kelly, Jr. and Kelly Management, LLC. See Docket No. 56. Today, on August 16, 2019, the Court did the same with Defendant Michael D. Billings and MDB Group, LLC. See Docket No. 61. Thus, Billings’ pending motion to dismiss Count IV of the Complaint, Docket No. 23, is moot.


Exhibit B


2

The familiar summary judgment standard applies. See Fed. R. Civ. P. 56(a) (“The court

shall grant summary judgment if the movant shows there is no genuine issue of any material fact

and the movant is entitled to judgment as a matter of law.”).

Adams explained the operations of Madison Timber during his sentencing hearing. It

operated as a classic Ponzi scheme from 2009 to 2018, using money from new investors to pay

amounts due on preexisting notes. The Receiver confirmed that all of Madison Timber’s income

came from defrauded investors. See Docket No. 31-1. Madison Timber never had legitimate

operations or income. The Receiver and J. Lester Alexander, III (a forensic accountant and

Certified Fraud Examiner) also confirmed that First South’s primary or sole source of income

was commissions from Madison Timber. See Docket Nos. 31-1, 31-2.

Mississippi’s Uniform Fraudulent Transfer Act (“MUFTA”) makes voidable any transfers

made with “actual intent to hinder, delay or defraud any creditor.” Miss. Code Ann. § 15-3-

107(1). Madison Timber’s operation as a Ponzi scheme is sufficient to establish the fraudulent

intent behind any transfers it made. See Janvey v. Alguire, 647 F.3d 585, 598 (5th Cir. 2011);

Quilling v. Schonsky, 247 F. App’x 583, 586 (5th Cir. 2007) (“[T]ransfers made from a Ponzi

scheme are presumptively made with intent to defraud, because a Ponzi scheme is, as a matter of

law, insolvent from inception.”). McHenry’s “knowing participation is irrelevant . . . for

purposes of establishing the premise . . . for a fraudulent transfer.” Janvey, 647 F.3d at 598

(citations omitted).

McHenry’s commissions are not voidable, however, under MUFTA if he proves he “took

in good faith and for a reasonably equivalent value.” Miss. Code Ann. § 15-3-113(1). But

McHenry does not qualify for this exception. The Fifth Circuit has held that a recruiter who


Exhibit B


3

induces new investors to invest in a Ponzi scheme cannot, as a matter of law, provide reasonably

equivalent value in exchange for commissions.

The primary consideration in analyzing the exchange of value for any transfer is the degree to which the transferor’s net worth is preserved. It takes cheek to contend that in exchange for the payments he received, the RDI Ponzi scheme benefited from his efforts to extend the fraud by securing new investments.

Warfield v. Byron, 436 F.3d 551, 560 (5th Cir. 2006) (citations omitted). McHenry spends some

time describing why the Mississippi Supreme Court would not necessarily follow this Fifth

Circuit precedent—essentially because the Fifth Circuit was not analyzing Mississippi law.

Nevertheless, he concedes that he cannot, as a matter of law, establish a reasonable equivalent

value defense. See Docket No. 57 at ¶ 8 (“Without the benefit of a definitive decision from the

Mississippi Supreme Court, the current Fifth Circuit law appears to establish a Ponzi scheme

presumption of insolvency for which there can be no reasonable equivalent value defense”).

McHenry’s services furthered the Madison Timber Ponzi scheme, so the services could not have

been for reasonably equivalent value.2

McHenry’s remaining argument against the motion focuses on the change in Madison

Timber’s corporate name in 2012. In August 2012, Madison Timber Company, Inc. changed its

name to Madison Timber Properties, LLC. The Receivership Estate does not include the former.

Thus, McHenry contends that the Receiver should not be able to avoid commission payments he

received from Madison Timber Company, Inc., a non-receivership entity, from 2010 to August

2012.3 McHenry further argues that “[e]ven if the Court disregards the different entity, there has

2 The Court need not draw a conclusion on good faith, as McHenry’s defense would still fail as a matter of law because he did not receive commissions from Madison Timber in exchange for reasonably equivalent value. 3 Prior to the name change, McHenry purports that First South received a total of $393,570 in commissions, including $10,000 received on August 17, 2012, from Adams. McHenry argues that these amounts are not subject to the Ponzi scheme presumption. See Docket No. 57 at ¶ 7. In the alternative, McHenry states that if the Court accepts Adams’ statement at his sentencing that the Ponzi scheme started in 2011, that does not cover 2010. He alleges First South received a total of $108,470 from Adams in 2010.


Exhibit B


4

been no showing nor confession by Adams of insolvency by Madison Timber Company, Inc. in

2010” and that there is a factual dispute regarding Adams’ solvency during this earlier time

period. Id. at ¶ 4.

Notably, McHenry does not dispute that all of the payments originated from Adams. Id. at

¶ 7. The Receivership Estate includes Adams. Adams formed and was the sole owner of Madison

Timber Fund, LLC (formed in 2009), Madison Timber Company, Inc. (formed in 2011)4, and

Madison Timber Properties, LLC (formed in 2012). The Madison Timber Ponzi scheme never

changed through all of these name changes. As made clear by the declarations and during

Adams’ sentencing testimony, each Madison Timber entity received its revenue from defrauded

investors. McHenry’s commissions from each entity were proceeds of the Ponzi scheme. The

Court finds no actual controversy here as to the fraudulent source of McHenry’s commissions.

As such, summary judgment is granted against McHenry and First South Investments, LLC in

the amount of $3,473,320. A Final Judgment shall issue.5

SO ORDERED, this the 16th day of August, 2019.

s/ Carlton W. Reeves UNITED STATES DISTRICT JUDGE

4 The Court uses the name “Madison Timber Company, Inc.” because the parties do so in their briefings. But, according to the Bill of Information in Adams’ criminal case, it was called “Madison Timber, LLC.” See Docket No. 1, United States v. Adams, No. 3:18-CR-88-CWR-LRA-1 (S.D. Miss. 2018). There is no mention of “Madison Timber Company, Inc.’ in the Information. 5 The remaining charges in the Complaint are either asserted in the alternative of the fraudulent transfer claim or against a dismissed party.


Exhibit B


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

ALYSSON MILLS, IN HER CAPACITY AS RECEIVER FOR ARTHUR LAMAR ADAMS AND MADISON TIMBER PROPERTIES, LLC,

Plaintiff, v. MICHAEL D. BILLINGS and MDB GROUP, LLC; TERRY WAYNE KELLY, JR. and KELLY MANAGEMENT, LLC; and WILLIAM B. MCHENRY, JR. and FIRST SOUTH INVESTMENTS, LLC,

Defendants.

Case No. 3:18-cv-679 Arising out of Case No. 3:18-cv-252, Securities and Exchange Commission v. Arthur Lamar Adams and Madison Timber Properties, LLC Hon. Carlton W. Reeves, District Judge Hon. F. Keith Ball, Magistrate Judge

EXHIBIT C TO MOTION FOR WRIT OF EXECUTION

Farming equipment 2 15-foot disk harrows 1 John Deere Planter 1 bell spray rig 1 7-foot breaking plow 1 Polaris Ranger EV 1 Polaris XP 800 1 John Deere 7-foot bush hog 1 16-foot utility trailer 3 14-foot utility trailers 1 John Deere 5205 tractor 1 Pull-type feeder/fertilizer spreader Firearms 12 gauge Mossberg 835 Turk 20 gauge Browning BPS


12 gauge Winchester Mod12 12 gauge Remington 870 .17 Savage 93 30-30 Winchester 94 30-06 Mauser Manlicher 6.5mm Mauser Manlicher 300 Knight Single Shot 270 Knight Single Shot 30-06 New England Single Shot 280 TC Encore Single Shot 300 TC Encore Single Shot 35 TC Encore Single Shot .17 Savage 93 308 Marlin Bolt Action 12 Gauge Francki Turk. 12 Gauge Baretta Auto 12 Gauge Weatherby Orion 30-06 Browning Abolt 44 Marlin Lever Action 12 Gauge Winchester 24 30-06 Remington 742 30-06 Remington 742 Art and collectibles Phillip May Pintails Audubon canvasbacks Three (3) unknown duck prints 2 Lee LeBlanc duck prints 5 Wiho duck prints


WRIT OF EXECUTION (SD MISS 12/98)

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF MISSISSIPPI

Writ of Execution

TO THE MARSHAL OF: U.S. Marshals Service, Southern District of Mississippi

YOU ARE HEREBY COMMANDED, that of the goods and chattels, lands and tenements in your district belonging to: (Name)

you cause to be made and levied as well a certain debt of $ in the United States District Court for the Southern District of Mississippi, before the Judge of said Court by the consideration of the same Judge lately recovered against the said,

and also the costs that may accrue under this writ. And that you have above listed moneys at the place and date listed below, and that you bring this writ with you.

Place District

City Date

Witness the Honorable United States Judge

Date Arthur Johnston,Clerk

By: Deputy Clerk

RETURN

Date Received Date of Execution of Writ

THIS WRIT WAS RECEIVED AND EXECUTED

U.S. Marshal By: Deputy Marshal

William B. McHenry, Jr. and First South Investments, LLC

$3,473,320

See Exhibit C to Motion for Writ of Execution

200 Cripple Creek Road Southern District of Mississippi

Canton, MS

Exhibit D


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