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All About Silver - ... the buck stops here ...
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UPDATE: on that page, I explain why the Perth Mint is not in default.



E-mails To/From Mr. R. Todd Neilson

I normally treat E-mails confidentially, except where stated otherwise.

However, these consist of E-mails from myself (which I do not mind the public seeing), and E-mails from Mr. Neilson. The E-mails from Mr. Neilson are part of his duties as trustee, and he knew before sending them that I am acting as an advocate for creditors, and that he should not send me confidential information (unless marked as such). Some of his E-mails to me he also sent to some creditors, helping support that he did not intend for them to be private.

For privacy purposes, I have not included E-mails that Mr. Neilson sent, that were forwarded to me by creditors (unless Mr. Neilson included me in the E-mail). This is to ensure that Mr. Neilson will not know which creditors sent me copies of his responses.

The E-mails are unedited, except to redact creditor information. If given a chance to go back in time, I would have re-worded some things, but Mr. Neilson likely would have too -- but that cannot be done, so they remain unedited.

If you want a summary, skim the last 2 E-mails (where Mr. Neilson asks me to stop wasting his time, and I respond that it would be best for everyone involved if communications were not cut.

Click on any E-mail to expand it.

From: Joshua Gibbons    To: "R. Todd Neilson (TR)"  
Date: Fri, Mar 21, 2014 at 9:34 AM          Subject: Re: The Tulving Company bankruptcy 

My initial contact, introducing myself, alerting him to a few unusual aspects of the case.
Hello Mr. Neilson, I understand that you are acting as the Chapter 11 trustee for the Tulving Company bankruptcy, and thought I would share a few things with you, in case you are not yet aware. I hope it is appropriate for me to contact you directly.

I am acting informally as an advocate for creditors of The Tulving Company. This came about after I closely followed complaints about The Tulving Company since October, 2013 (I run a website for investors of silver). I am not a creditor myself, nor am I being paid to do this.

If there is any information you would like me to provide to you, I would be happy to do so. If you wish to share information to creditors at any point, I would be happy to pass anything on. Many creditors are either are on an E-mail list I put together or visit my website. My website is the only one following The Tulving Company, so it is currently the central source of information for creditors. The press has not yet picked up on this case.

The most important piece of information I want to be sure you are aware of is that the 9 creditors listed in the voluntary petition are names that were obtained without access to Tulving's records (e.g. the plaintiffs in lawsuits, and people mentioned in newspaper articles). The law firm handling the class action lawsuit has recorded over 160 unsecured creditors with claims totaling over $5M. I believe the actual number of unsecured creditors may exceed 1,000, with claims up to or exceeding $40M. I am certain that less than 5% of the creditors have been notified by the court of the lawsuit at this point.

Something else that you may be aware of is that most of the unsecured creditors ordered precious metals, the value of which is volatile. From examining Better Business Bureau complaints, I believe that some customers will wish to claim the current value of the metal (if it is higher than what they paid). So if someone paid for $10,000 of silver a few months ago, and the price of silver went up since then, they may claim $12,000. This may result in many disputed claims. If the law is clear as to what the claim should be, I can pass that information on, if it would be helpful.

Another factor unique to this case is that a small percentage of people who purchase precious metals do so because of various fears (such as collapse of society), beliefs in conspiracy theories (such as the story of the President who took all the gold bars out of Fort Knox and replaced it with fake bars), and lack of paper trail (some are vocal about not paying capital gains taxes). Some will likely be outraged when the discover the creditor list is a public record. If individuals who did receive their metal are forced to return them due to preference laws, some would certainly be very uncooperative.

These are just some things that I thought you should be aware of. If I can be of any assistance, please let me know. Thank you.

JG

From: R. Todd Neilson <TNeilson@brg-expert.com>      To: Joshua Gibbons 
Cc:  "Nicholas R. Troszak" <NTroszak@brg-expert.com> Subject: Re: The Tulving Company bankruptcy 
Date: Wed, Apr 2, 2014 at 4:14 PM 

Mr. Neilson's response, 12 days later.
Mr Gibbons:

 

Thank you for your assistance.  
From: Joshua Gibbons      To: "R. Todd Neilson" <TNeilson@brg-expert.com>
Date: Wed, Apr 2, 2014 at 4:47 PM             Subject: Re: The Tulving Company bankruptcy 

My response, offering assistance.
Hi Mr. Neilson,

You are welcome. If there is any other way I can be of assistance, please be sure to let me know.

JG
From:    Joshua Gibbons              To: "R. Todd Neilson" <TNeilson@brg-expert.com>
Cc:     "Nicholas R. Troszak" <NTroszak@brg-expert.com> Date: Thu, Apr 3, 2014 at 12:52 PM 
Subject: Re: The Tulving Company bankruptcy 

My first question: When will he have Tulving's records?
Hi Mr. Neilson,

I was wondering if the U.S. Attorney's office has given you an update as to when they might be able to provide you with copies of Tulving's records?

The first question I get from many Tulving creditors is usually "Am I on the creditor list?", with the next usually being whether or not money might be recovered. Tulving's records will of course produce the creditor list. Absent a comment from Hannes, Tulving's records are the best source for potentially providing a quick answer as to where all the money went (estimated at roughly $65M lost in 2 1/2 years, after apparently running the business successfully for about 20 years).

Also, have you confirmed that The Tulving Company has no usable off-site backups of their records? I would be surprised that their bookkeeper does not have a copy of the some important records, and I would think the bank could provide The Tulving Company with copies of their bank statements. Those records could help start the process of determining what happened to the money.

If you can answer these questions, the creditors would certainly be appreciative.

If at any point you would like to discuss anything on the phone rather than E-mail, I can be reached at [PHONE].

JG

From:    R. Todd Neilson <TNeilson@brg-expert.com>        To: Joshua Gibbons 
Cc:     "Nicholas R. Troszak" <NTroszak@brg-expert.com>  Date: Thu, Apr 3, 2014 at 1:08 PM 
Subject: RE: The Tulving Company bankruptcy 

Mr. Neilson's very helpful response.
Mr. Gibbons:

Discussions with the US Attorney are very limited as they are protected by the secrecy of the Grand Jury process.

I was able to obtain a copy of the Quicken books files from a secondary source and we are reviewing it. I have also asked for a copy of the Bank records and I should receive those records within a few days.

I would encourage all Creditors to file Proofs of Claim in the Bankruptcy Court. I am keeping a separate file of all claims filed. Furthermore, I will be very understanding of creditors who have problems getting their claims filed.

From:    Joshua Gibbons               To: "R. Todd Neilson" <TNeilson@brg-expert.com>
Cc:     "Nicholas R. Troszak" <NTroszak@brg-expert.com>  Date: Thu, Apr 3, 2014 at 2:27 PM 
Subject: Re: The Tulving Company bankruptcy 

My 1st of 2 responses:  I offer information for Mr. Neilson, as a fellow amateur forensic investigator.
[No reply was necessary]
Hi Mr. Neilson,

Thank you for your quick reply, it is very much appreciated. I'm glad to see that you are on top of things.

Depending on what records you may have, I would suggest seeing if you can determine the total assets and total liabilities in 2011 (their website showed 600,000 ounces of silver in stock in August, 2011, worth over $20M) and 2012. I believe that the inventory went from over $20M down to nearly $0 by mid 2012. If true, that would suggest problems started in 2011.

More importantly, I would also suggest looking very closely at April, 2013, which I believe is when the situation changed dramatically. Of the 690 complaints I have tracked, the time from placing an order to shipping went from several weeks to several months starting with orders placed in mid-April, 2013. And I believe all orders before mid-April, 2013 were fulfilled, whereas I believe some of the creditors had placed orders in late April, 2013 that they claim were never received (after nearly a year). I would not be surprised if there was a large amount of money that left the company in (and/or starting) late April, 2013.

I have some questions regarding how creditors should fill out the Proof of Claim form (to help ensure consistency), but I will send those in a separate E-mail.

JG

From:    Joshua Gibbons               To: "R. Todd Neilson" <TNeilson@brg-expert.com>
Cc:     "Nicholas R. Troszak" <NTroszak@brg-expert.com>  Date: Thu, Apr 3, 2014 at 2:27 PM 
Subject: Re: The Tulving Company bankruptcy 

My 2nd of 2 responses:  I ask for info to provide consistent Proof of Claim forms (so as to keep costs down).
[NO REPLY FROM MR. NEILSON]
Hi again,

Per your E-mail, I am thinking that I should send an E-mail to the mailing that I have about The Tulving Company, encouraging creditors to fill out the Proof of Claim form. I have a few questions to help keep the forms consistent if needed.

First, there are 3 main categories of creditors: [1] those that placed an order that they did not receive (e.g. they paid $20,000 for 1,000 ounces of silver that they did not receive), [2] those that placed an order, and sold it back at a different price (e.g. they paid $20,000 for 1,000 ounces of silver, and before receiving it, they sold it back at a higher or lower price), and [3] those that sold metal and have not received their money (e.g. they sent 1,000 ounces of silver for $19,000 that they did not receive).

Category #2 opens another can of worms, as The Tulving Company may have been required by FTC regulations to refund money for many of the orders, but the buybacks were done based on a spread (buying at a lower price than selling).

If someone paid $20,000 for 1,000oz of silver that they did not receive, and it would now cost $21,000 to purchase the same 1,000oz of silver, is the law clear which amount they should claim?

If someone paid $20,000 for 1,000oz of silver that they sold back (before receiving the metal) for $19,000 (a loss), which amount should they claim? A number of the creditors sold back because they thought they would be more likely to get cash quickly than the metal. Some may claim the full $20,000 in this case, some may claim the $19,000, some may claim based on the current spot value, and others may factor in the spread.

If someone paid $20,000 for 1,000oz of silver that they sold back (before receiving the metal) for $21,000 (a profit), which amount should they claim?

Should people check the box in Section 1 of the Proof of Claim form regarding interest or other charges? I believe that that should be the same for everyone.

Am I right that everyone in category #1 above (that purchased metal, but did not receive it) should check off the "Up to $2,775* of deposits towards purchased..." box in section 5 of the Proof of Claim form? Those in category #2 may well believe that they should check that box as well (for example, someone who found out after ordering that it would take several months to get the metal, but a check might take a week).

The presence of these questions is part of why I was suggesting creditors wait to see if they were on the creditor list, as it wouldn't give people as easy of an option to think about various amounts that they might be owed.

Hopefully, answers to these questions will help ensure that the Proof of Claim forms are fairly consistent. Thank you for your help.

JG

From:    Joshua Gibbons    Date: Fri, May 9, 2014 at 9:50 AM 
To:     "R. Todd Neilson (TR)" <tneilson@brg-expert.com>, lcantor@pszjlaw.com
Subject: Serious omission in The Tulving Company Status Report 

I notified Mr. Neilson and his counsel about my concern about a possible serious error in a court document.
Mr. Neilson receives the E-mail, knows that I am awaiting a response to update the website - but does not respond.
Hi,

I have introduced myself to Mr. Neilson previously; I run the only website that has covered the issues with The Tulving Company, and am acting as an advocate for the estimated 1,000 creditors in this bankruptcy. In addition to offering updates via my website, I am providing updates via E-mail to over 400 individuals, most of whom I believe to be Tulving creditors.

I was extremely concerned this morning by what appears to be an error/omission in the Status Report (Docket #91).

Specifically, in response to the court's request (Docket #7) for a status update on "Whether Debtor is in compliance with all duties under 11 U.S.C. 521, 1106, and 1107, and all applicable guidelines of the Office of the U.S. Trustee. If not, explain why.", no mention was made that the creditor list has not yet been filed. The first 8 words of 11 U.S.C. 521 are "The debtor shall file a list of creditors." The list of creditors, however, has not yet been filed.

This is a very serious omission, given the actions that have occurred so far in the bankruptcy that require notice to creditors. Worse, the Status Report was filed on the same day as the "Additional Notice of 341(A) Meeting of Creditors" (Docket #92), which was filed because "additional creditors ... have appeared in this case." This strongly suggests that the creditor list is similar to that of a typical bankruptcy (almost all creditors listed, but perhaps a few missing), when in fact the court is unaware of the majority of creditors.

From what I can gather, the bankruptcy court is only aware of perhaps 5% to 20% of Tulving's creditors. In my opinion, this is critical information, which the court requested in the Status Report, but did not appear there.

JG

From:    Joshua Gibbons      To: "R. Todd Neilson (TR)" <tneilson@brg-expert.com>,
 lcantor@pszjlaw.com
Date:    Tue, May 13, 2014 at 11:08 AM 
Subject: Re: Serious omission in The Tulving Company Status Report 

I ask for an update, before I let creditors know about my concern.
Mr. Neilson feels my concern is unjustified; yet he chooses to not respond,
passing this 'mischaracterized' info to creditors.
Hi again,

I am hoping to send out an update to the creditors by the end of the day, and wanted to see if either of you care to comment about this.

This is especially concerning, after the creditor meeting was pushed back a month, which creditors assumed was due to the lack of a creditor list (with the timing of the new meeting falling near the time the creditor list was expected). However, it is seeming less and less likely that the majority of creditors will have been officially notified before the meeting (and impossible to meet the 21-day deadline imposed by Rule 2002). If the meeting had been held wen originally planned, at least the creditors would have many of their questions answered. They need to know what happened to their money, and the chances of recovery, which that meeting would have provided clues about.

From what I have seen, there has been no recognition that the vast majority of creditors are not yet known to the court. This may have been acceptable until now (I have little knowledge of the bankruptcy process), but the judge has requested to be updated on this. One of the primary goals of this status conference is to set the bar date, and the court not knowing who the creditors are is critical information in making such a decision.

JG

From:      R. Todd Neilson <TNeilson@brg-expert.com>  To: [Creditor Name] <[Creditor E-mail]>
Cc:        "TulvingLawsuit@KRInternetlaw.com" <TulvingLawsuit@krinternetlaw.com>,
 "", "Nicholas R. Troszak" <NTroszak@brg-expert.com>,
  Linda Cantor <lcantor@pszjlaw.com>
Date:      Wed, May 14, 2014 at 10:33 PM              Subject: Re: Tulving lawsuit victim details 

A creditor Cc:'d me on an E-mail sent to Mr. Neilson, so his response came to me.
He says my concerns are unimportant, that I 'raised an alarm'.
[Creditor Name]:

The filing of the List of Creditors is not an important function at this stage of the Bankruptcy. Only those who are unsophisticated and inexperienced in this area would raise an alarm about the List of the Creditors at this early stage. We are obtaining information concerning creditors from numerous sources, not the least of which is the documentation provided by the individual creditors. This is an ongoing process and we will be updating the creditor list throughout course of the Bankruptcy.

I have acted as a Trustee in numerous fraud related matters such as this. In every instance I have been very liberal and helpful in making certain all creditors are listed especially in matters such as this where most Creditors would be somewhat unsophisticated. I will bend over backwards to include every valid creditor in the Tulving matter. It is just not that vital at this time. There will be plenty of opportunity to fully document all Creditors.

We are going to set up a Website in the next few weeks and fully populate it with information for Creditors such as yourself, including the manner in which to file claims. The website will be entitled as tulvingbankruptcy.com.

Please be patient with us. We are moving as fast as we reasonably can under these circumstances.

Thank you

Sent from my iPad

From:      Joshua Gibbons ;       To: "R. Todd Neilson" <TNeilson@brg-expert.com>
Cc:        [Creditor Name] <[Creditor E-mail]>, "Nicholas R. Troszak" <NTroszak@brg-expert.com>,
 Linda Cantor <lcantor@pszjlaw.com>
Date:      Thu, May 15, 2014 at 10:10 AM             Subject:   Re: Tulving lawsuit victim details 

I respond to Mr. Neilson, explaining why the creditor list is important to creditors.
Mr. Neilson,

I appreciate your response to [Creditor Name].

I thought it might be helpful if I explain why I am concerned about the creditor list, and provide some information regarding the mindset of the creditors.

The vast majority the creditors are individuals who are Tulving customers, and as you are aware lack the experience of more traditional creditors (banks and businesses). However, they also have a *much* higher stake in the outcome (e.g. a large portion of their life savings, rather than a loan that can be written off).

Many of these creditors just want to get whatever money they can, with minimal work on their end, and get anything done that needs to be done over with as quickly as possible. In the case of the bankruptcy, that is ensuring they are on the creditor list. Until that is done, they risk losing any money they may be entitled to.

Normally, the creditor list gets filed within 14 days of the bankruptcy, at which point the creditors in a Chapter 11 bankruptcy have little to worry about except getting their share of any money that may be recovered (and will at least be notified by the court if there *is* something else to do). But in this case, they are in limbo until the creditor list is filed (or they file a Proof of Claim). There is also a chance the creditor list will not be available, in which case the burden will be on them to notify the court of their existence.

Filing a Proof of Claim form sounds like an easy answer, but is not. One creditor was quoted $2,000 from an attorney to file the claim! If it were a matter of providing the information Tulving's records have (e.g. the amount of the purchase and the date), it would be simple. But the Proof of Claim form is far more complicated (I read about a case where the IRS lost $46M for filling it out incorrectly), and the forms would likely be filled out inconsistently (as I mentioned in my E-mail asking for clarification on how the form should be filled out). And while a lot of people are relying on me for information, I have to be very careful regarding the Proof of Claim form.

Finally, while you may feel the creditor list is unimportant at this stage, the fact is the majority of creditors have not received notice from the court about the creditor meeting (not to mention motions they could have objected to). One government websites states "In large [Chapter 11] cases in which some creditors may not be known, the court may advertise the meeting in newspapers." To me, a case where 90% or so of creditors are not known, and the Chapter 11 trustee is not taking action to try to notify them, constitutes important.

JG

From: R. Todd Neilson <TNeilson@brg-expert.com>   To:      Joshua Gibbons ;
Cc:   [Creditor Name] <[Creditor E-mail]>, "Nicholas R. Troszak" <NTroszak@brg-expert.com>,
 Linda Cantor <lcantor@pszjlaw.com>
Date: Fri, May 16, 2014 at 5:19 PM                Subject: Re: Tulving lawsuit victim details 

Mr. Neilson cuts off all contact, asks me to stop being an advocate for creditors.
Mr. Gibbons:

This will be my last response to you in this matter. You have absolutely no business involving yourself in matters where you have, at best, a smattering of expertise. Further, and perhaps more importantly, you have no claim in this bankruptcy and essentially no standing to participate. Why you choose to inject yourself in this bankruptcy is beyond me but if you choose to fill your time in this manner I suppose that is your privilege. However, I will not answer any further e-mails from you or respond in any fashion.

Your obsession with filing a list of Creditors is totally misplaced and as I have told Creditors is premature. I have been handling matters such as this for over thirty years and my counsel and financial advisors are similarly experienced. We take our fiduciary responsibility very seriously. One of the most important duties is to make certain all Creditors are notified and become aware of the Bankruptcy process. We want to assure every creditor is included. We will see that is accomplished through a number of different sources, including the Debtors records and the investigative files of various governmental agencies. The Creditor List will evolve over time. We will add to it during the course of the bankruptcy and also object to any claims we believe are not documented or justified. If any Creditor somehow escapes notice through no fault of their own, I have been very liberal in asking the Court to include them in the Creditor body, even at a late date. Also, while I think the Proof of Claim form i s relatively simple to fill out, we have occasionally assigned staff people to help Creditors in that process, should that become necessary.

While you may waste your own time, I would ask, in behalf of the Creditors of this estate, that you stop wasting my time as well as the time of the other professionals. I have had to answer numerous e-mails from Creditors who are unduly concerned with being included on the Creditors Lists immediately. Some have been frantic. I have also had to deal with numerous telephone calls from Creditors concerning the same issue. I don't mind speaking with Creditors. In many ways, that is my job. However, they should not be whipped into an unjustified frenzy by someone who has no knowledge of bankruptcy. The hours which my professionals and I incur in dealing with the untangling of misperceptions concerning the Creditor Lists, will be compensated under the Bankruptcy Code directly from the minimal assets of this estate. In other words, the Creditors will be paying thousands and thousands of dollars to professionals as a result of your meddling into these areas. That is truly a shame as it diminishes any possibl e return to the Creditors.

Also - contrary to your recent communications - I was not pressured by the Creditors into creating a website. I have created numerous websites over the years and always fully intended on doing so in this matter. It is a good source of information for the creditors and I will keep them apprised of the progress of the bankruptcy case on a regular basis.

I am certain that your actions are based on the best of intentions. Prior to the Bankruptcy and the appointment of a Trustee perhaps the Creditors had a need for a forum and at that time your actions could be defined as laudable. However, when you start to interfere with the skilled professionals charged with administering the case and dissipating the assets of the estate it is time for you to find something else to do with your time.

Thank you

Sent from my iPad

From: Joshua Gibbons      To:     "R. Todd Neilson" <TNeilson@brg-expert.com>
Cc:   [Creditor Name] <[Creditor E-mail]>,   "Nicholas R. Troszak" <NTroszak@brg-expert.com>,
 Linda Cantor <lcantor@pszjlaw.com>
Date: Sat, May 17, 2014 at 7:50 AM            Subject: Re: Tulving lawsuit victim details

I apologize, and try to mend things.
No response.

Dear Mr. Neilson,

I apologize for wasting your time, and if you still wish, will refrain from any further contact.

I do believe, however, that it would be in the best interests of all parties (including us) if we could start fresh, and put this behind us. I really have no idea how this animosity started, and see no reason for it to continue.

Through me, you have easy access to many of the creditors in this case, and insight into the actions that caused the bankruptcy.

The creditors are clearly expressing that they hope I will continue my role as an advocate for them (I can pass on some comments if you like), and I expect to do so while the need appears to be there. If I can do so with access to you, it could make a world of difference for the creditors.

In any case, I will refrain from further contact unless I hear otherwise.

JG



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