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Mr. Halford explained that if the investment returns from the Security Deposit
were insufficient to pay the interest on the loans, he would be required to make those
payments within 30 days from the calendar year end. If the loans were not
extinguished prior to the expiry of the 10-year term, he understood that either it
would be extended or he would personally have to repay them.
When asked if anyone had ever told him he was “not responsible for paying
back the loan,” he insisted, “that was never discussed.” When asked if he had heard
of “performance insurance” for the Security Deposit, Mr. Halford responded
“absolutely not” and that Mr. Eger had informed him that insurance had only been
in place in 2002 but not the ensuing years. When asked if he had participated in the
class-action suit, he indicated that on Mr. Eger’s advice, he had “opted out.”
As an aside, Mr. Halford explained that he was initially impressed with the
exceptional investment returns on the Security Deposits as reported by the Lender
and arranged for a meeting with Mr. Eger and his investment acquaintances to pool
money that would be invested through a new corporation using the same investment
advisers as Banyan in a program known as Promittere S&P 500 Limited managed
by G.H. Lewis & Associates (“G.H. Lewis”). Mr. Halford personally invested
$35,000 in 2004 and another $20,000 in 2005. He described this as a “contingency
plan” in case he had to repay the loans incurred in connection with the Program.
When asked why he had not diversified by using another manager, he referred to the
“fabulous returns” reported by the Lender.
In November 2006, Mr. Halford was informed by the Lender and Promittere
that the investment returns previously reported had been “fabricated” and the
Security Deposits substantially reduced. He was called upon to make interest
payments on the 2003, 2004 and 2005 loans in the amounts of $1,012.05, $1,167.75
and $820.80, respectively. He paid those amounts. The investments with G.H. Lewis
were also eventually subject to “embezzlement and misappropriation”, as described
by Mr. Halford, and an action was allegedly commenced against the investment
advisers to reclaim the loss. Mr. Halford made a further donation to Banyan in 2007,
believing that a new investment manager had been appointed.
Under cross-examination, Mr. Halford admitted that his past charitable
donations had been quite modest in comparison with the $110,000 he had donated
to Banyan. He indicated that he initially thought the loans were genuine legal
obligations but admitted he had not paid them when they became due, despite the
statement in the Promissory Note that the amounts would be due “without the
necessity of demand.” He acknowledged that the interest payments noted above had