Okla. SC: Couple's status as investors not subject to full trial

Jessica M. Karmasek Oct. 20, 2011, 11:12am


OKLAHOMA CITY (Legal Newsline) - The Oklahoma Supreme Court said last week there is no disputing a couple's status as "non-innocent" investors in various check-kiting and Ponzi schemes.

A trial court judge previously ruled that by virtue of Marvin and Pam Wilcox's participation in the schemes, perpetrated by Marsha Schubert, they were not innocent investors.

As a result, the couple was ordered to pay the state Department of Securities more than $500,000.

However, on appeal to the state's high court, the Wilcoxes argue, among other things, that their status as innocent or non-innocent investors should have been subject to a full trial because there are material issues of fact.

Justice James E. Edmondson, who authored the Court's Oct. 11 opinion, said it found no dispute of material fact that justified a trial.

The securities department, the Court said, offered admissible evidence that the Wilcoxes were not innocent investors or victims of Schubert's schemes, but were in fact partners with Schubert and that their bank accounts were actively used in her check-kiting scheme.

"The Wilcoxes did not deny the existence of or their active participation in Schubert's check-kiting scheme. The only evidence submitted by the Wilcoxes in denial of the partnership was their virtually identical self-serving affidavits," Edmondson wrote.

The Court noted the securities department's submission of tax returns in which the couple was indicated as partners with Schubert. The department also submitted a letter in which Marvin Wilcox admitted to the partnership, the Court said.

"The Wilcoxes never sought to offer additional evidence in the trial court on the issue of their status as innocent investors," Edmondson wrote.

And their "bald assertion" that they were not aware of the existence of a Ponzi scheme is "insufficient," the Court said.

"The evidentiary material provided by the Wilcoxes failed to raise a dispute on this issue and did not meet their burden to overcome the motion for summary judgment," Edmondson concluded.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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