The CFTC has secured a preliminary injunction agreement with EminiFX owner Eddy Alexandre.
The proposed injunction, which awaits approval from the court, was filed on June 14th.
A consented to preliminary injunction between the CFTC and Alexandre saves the need to schedule a hearing and expend additional resources.
Defendants, without admitting or denying the allegations of the Complaint for purposes of this Consent Order for Preliminary Injunction Against Defendants Alexandre and EminiFX … hereby consent to the entry of this Order.
Further, Defendant Alexandre has no objection to the Receiver entering into a Consent Order on behalf of Defendant EminiFX as long as such Consent Order is without admitting or denying liability.
The CFTC’s complaint alleges six counts of fraud against Alexandre. The CFTC’s underlying complaint, that forms the basis of their case against Alexandre and EminiFX, will continue to play out in court.
There are also parallel criminal proceedings against Alexandre in play.
With respect to the consented preliminary injunction, it is essentially a continuation of the granted SRO.
The EminiFX Temporary Receivership will be made permanent, and Alexandre’s and EminiFX’s assets will remain frozen.
The only thing holding up court approval of the proposed injunction, is a letter objection filed by Christopher and Maureen Beil.
The Bells were in the process of selling a property to Alexandre when the CFTC filed its lawsuit. They accepted a deposit from Alexandre, which the CFTC and EminiFX Receivership claim are investor funds.
As part of the marshalling of assets process, the Receiver has demanded the Bells turn over the paid deposit.
The Bells object on the basis that if the EminiFX Receiver has legal authority to act on behalf of Alexandre, he should be bound to the terms of the sale contract.
In their June 14th letter to the court, the Bells ask that sections of the proposed injunction, that “seek to bestow Receiver with the authority over the assets of Alexandre Estates LLC”, be “struck entirely”.
In response to the Beil’s letter, the Receiver wrote;
The Objection misconstrues the Proposed Consent Preliminary Injunction, mischaracterizes the position of the Receivership, and misstates key facts, all in an attempt to obtain priority to recover $535,000 in funds traceable to innocent customers ahead of, and at the expense of, those customers.
The Receiver goes on to point out that the Beils will have the opportunity to file a claim against EminiFX at a later date, the same as any other party.
The disputed half a million is currently being held in an account tied to the law firm Maureen Biel works at. The Receiver points out this is not an “independent” arrangement, supporting the claim the funds be released to the Receivership pending resolution of the Biels’ dispute.
In their own June 15th response to the Biel’s letter objection, the CFTC points out that
striking paragraphs 13, 28, and 19 of the Proposed Order—could leave the order without any asset freeze.
The asset freeze is critical to preserve the remaining assets of EminiFX customers.
The Sellers’ suggested remedy could render the Proposed Order ineffective and cause customers to lose additional funds far beyond the escrowed funds that the Sellers claim.
It’s highly unlikely the court is going to grant a preliminary injunction with the asset freeze section cut out.
A decision on the Biels’ letter objection remains pending. It is likely tied to granting of the preliminary injunction.
I’ll continue to monitor the case docket for updates.