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Michael J. Flynn, Admitted Pro Hac Vice

One Central Plaza, Suite 240
Boston, MA 02108
Telephone: 858-775-7624
Facsimile: 858-759-0711
Email: mike@mjfesq.com
Attorney for Timothy Blixseth
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MONTANA
In re:

Case No. 08-61570-11

)

Yellowstone Mountain Club, LLC, )

et al.,

)
)
Debtors.
)
_________________________________________________________________
AFFIDAVIT OF MICHAEL J. FLYNN
__________________________________________________________________

I, Michael J. Flynn depose and state that I have personal knowledge of the facts
contained in this affidavit, unless stated to be based upon information and belief. Where facts
are stated to be based on information and belief, I believe them to be true and accurate to the best
of my knowledge.
1. I am an attorney licensed in Massachusetts appearing in this matter pro hac vice on
behalf of Timothy Blixseth.
2. Attached hereto as Exhibit 1 is a true and correct copy of a financial statement of
Edra Blixseth dated August 15, 2008, two days after CIP Yellowstone Lending, LLC, (CIP
YC) loaned Edra Blixseth $35 Million Dollars (the Predatory Loan) on August 13, 2008
represented by two 48 day promissory notes secured by Community assets she received from

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the Blixseth Marital Settlement Agreement (MSA) on August 13, 2008. The secured
Community assets are Porcupine Creek, (PC), and the Family Compound at the
Yellowstone Club, (YC). I first received Exhibit 1 from Gary Peters shortly before the
commencement of phase 1 of the AP 14 trial. I am informed and believe that this document
was subsequently recovered from the Edra Blixseth computers in the possession of Jory Russell,
(hereinafter the Russell computers). On said financial statement, Edra Blixseth (EB) records
the current market value of PC to be $207 M; the Family Compound at $40 M; Farcheville
at $63 M; and the YC to be $500 M, for a total of $ 810 M.

EB states that except for the

Family Compound these assets are owned by BGI. EB states her Net Worth, based on her
sole ownership of BGI, on Exhibit 1 as $849.5 M, and her projected net cash flow for 12
months at $40. 4 M, derived from PC, YC, Big Springs Realty, Blixware and BFI
revenues. As hereinafter recited, I believe that Exhibit 1 may be based, in part, both on the
control exercised by SB and his entities based on the Predatory Loan; and the lending
advisory control exercised by SB in the planning and implementation of the Predatory Loan.
3. Attached hereto as Exhibit 2 is a true and correct copy of a Post -Settlement
financial statement dated July 15, 2008. I am informed and believe that Exhibit 2 was recovered
from the Russell computers and that the Post-Settlement reference relates to EBs financial
status after the scheduled closing on the MSA based on the division of marital Community assets
based on the executed MSA on June 26, 2008, which closing was originally scheduled for July
3. 2008; and which closed on August 13, 2008. I am informed and believe based upon emails
recovered from the Russell computers that Exhibit 2 or a similar financial statement was given to
Samuel Byrne (SB), and or Cross Harbor Capital Partners, (CHC), and / or CIP YC, before,

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on, or after July 15, 2008. I believe based on recovered documents from the Russell computers,
and inferences derived from said documents that there are deleted or destroyed documents from
the Russell computers that may be in the possession of SB or his entities, CIP YC and CHC; and
that said deleted documents may relate to Exhibit 2, or a similar version thereof, as part of the
Deal between EB and SB to use the $35 M Predatory Loan to plan, implement and transfer
control of the YC to SB and CHC. Exhibit 2 states an EB Net Worth of $1.3 B based on a
YC value of $900 M. I believe that the $900 M Post- Settlement value on the YC may be
based on the Total Net Value Credit Suisse appraisal method, previously condemned by the
court in its Interim Order.

4.

Attached as Exhibit 3 is a Discussion Memo between Edra/YC Entities and

Cross Harbor Capital Partners dated August 1, 2008, approximately two weeks before the MSA
and Predatory Loan closing. Exhibit 3 states on p. 3 that CHC has RECEIVED All divorce
settlement related documents; required Detailed, updated financial statements for EB (the
inference is that EB had previously provided financial statements and updates were needed);
required All underwriting materials provided to PEM, Archer and other Potential Sources of
Capital establishing that CHC required complete and thorough knowledge and possession of
All documents relating to EBs financial status based on her submissions to other lenders (the inference, coupled with several emails, is that Exhibit 2 had been submitted to other lenders
and was also possessed by CHC before the closing). Significantly, CHC required full
recognition of its existing rights through the execution of the previously agreed upon Letter
Agreement. I am informed and believe that said Letter Agreement has not been recovered

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from the Russell computers and remains concealed or destroyed. Exhibit 3 states on p. 4 that
CH Will control distributions of YC working capital. This establishes SB control over
the YC as a component of the Predatory Loan. Exhibit 3 also establishes SB and his entities
assumption of a position as a Lending Advisor to EB as contained in numerous statements in
their Discussion including: (i) who, why, the amount, and how to Secure additional financing
from Archer Capital Management ($55.1MM,net) and how it gets paid; (ii) the sale of
Farcheville and to whom and how to distribute the proceeds and make Additional EB
Investment directly into YC with the CH estimates to cover current accounts payable and
projected operations through 10/31/2008"; and the planning of a YC Preferred Equity Offering
and YC Governance based on a detailed joint venture essentially controlled by SB and his
entities with detailed provisions subsequently contained in the Agreement to Form. Exhibit 3
states that based upon the SB and CHC analysis, planning, and implementation control
mechanisms, early stage analysis indicates future net cash flow to EB of $600 + MM.
The compelling inference, particularly based upon the last representations of CHC is that SB /
CHC were using their insider Predatory Loan position as of August 1, 2008 to take
complete control of YC with full knowledge of EBs financial position, and representing a $600
M net cash flow to EB in order to obtain control. I am informed and believe that based upon
existing case law, and related facts inferred from existing emails and documents recovered from
the Russell computers, that documents remain concealed or destroyed relating to said
representations by CHC; and that SB and CHC made said representations, specifically the $600
M net cash flow to EB, based upon concealed and / or destroyed documents with knowledge
of EBs financial status based upon her liabilities disclosed in Exhibits 1 and 2; and contained in

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the UNDERWRITING MATERIALS referenced in Exhibit 3. I am further informed and

believe that most of the emails between CHC lawyers and EB lawyers have not been found on
the Russell computers. I am further informed and believed that based upon recovered
emails and documents the Letter Agreement referenced in Exhibit 3 was analyzed by
EBs lawyers in the context of mutual releases between EB, the YC and CHC, Said emails
and releases have not been produced to Tim Blixseth.
5.

Attached as Exhibit 4 is an email chain between EBs consultant Jim Goldfarb, Jory

Russell and EB lawyers from the Liner law firm handling the Predatory Loan transaction,
stating that as of July 21, 2008, ten days before the creation of Exhibit 3, CHC was able to
exercise control over EBs lending status with PEM through the CHC mortgage on the
Family Compound, which is not reflected on the July 15, 2008 financial statement prepared with
Goldfarb and Liner just six days before. The only lien listed is LeMond. According to Exhibit
1, after the closing on August 13, 2008, CHC owned a first mortgage ($13 M), LeMond a second
($13.5 M) and CHC a third ($22 M) for a total of $48.5 M on the Family Compound then valued
at $40 M. The inferences are that there exist emails between either the Liner lawyers and / or
Goldfarb on the one hand, and the SB lawyers on the other, during the period between June,
2007 - the date of the LOI to sell the YC to SB and the present, particularly in the summer of
2008, which emails have not been recovered - or produced before phase 1 of the trial.
6. Attached as Exhibit 5 is a internal MEMORANDUM dated September 5, 2008,
by and among SB and CHC principals and lawyers, circulated just weeks after the CHC
Predatory Loan, based on an analysis of the Credit Suisse Predatory Loan, and inferring that
said analysis predated the CHC Predatory Loan, based upon other emails and documents.

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Significantly, the MEMORANDUM is dated just 4 days after EB had already defaulted on
September 1, 2008 on an interest payment inserted into the Predatory Loan thereby causing an
almost contemporaneous event of default on the promissory note and deed of trust. Exhibit 5
contains graphs planning and implementing total control over the YC and EB based on her
already defaulted loan status; but more importantly its control is based on their pre-planned
default" of YC under the Credit Suisse loan by making their Predatory Loan to transfer control
and ownership from Tim Blixseth to EB.

Paragraph number 2 on page 3 of Exhibit 3 states:

Restrictions on Change of Control (Sections 5.19) That Section refers to the Credit Suisse
Predatory Loan requiring that BGI or Tim Blixseth must at all times directly or indirectly
control the YC; and own, directly or indirectly, 51 % of the YC , and then references a
proposed Executive Committee controlled by CHC as being a breach of the Credit Suisse loan.
Exhibit 5 then states: Note that while the 51% ownership test will be met as to YC and YD,
this is not the case now with respect to Big Sky Ridge, LLC. I believe that the effect of CHCs
own analysis is an admission that CHC knew when it made its Predatory Loan to EB it was
creating a default on the Credit Suisse loan permitting it to put the YC into bankruptcy; and
CHC knew that EBs financial status was such based on Exhibits 1-3 and subsequent Exhibits
herein that she would default as of September 1, 2008 thereby obtaining complete control over
the YC. Mr. Blixseth requires the production pursuant to his subpoena to CHC and SB of all
emails and documents relating to Exhibit 5.
7. Attached as Exhibit 6 is the loan closing document reflecting complete control by
CHC of the use of virtually all of the Predatory Loan proceeds.

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8.

Attached as Exhibit 7 is an email chain between EB, and SB and others, starting on

March 11, 2008, just two weeks before SB terminated the YC sale on March 26, 2008, and
while EB had her agent Gary Peters were negotiating with SB to make their own deal with SB.
EB writes: Thanks so much for the follow-up. I will wait to hear from you what you come up
with both in regard to your (and group) interest in moving forward on something and/or
CrossHarbor/Sam. The March 25, 2008 email between TB and SB references SBs bankruptcy
plan. The Harris, Arenson, Kidd email dated October 15, 2008, a month before the YC
bankruptcy filing demonstrates CHC control with its agent, DLC, based on DLCs plan. Two
days later, SB tells his agent, Joseph Harris that SB is going to write the plan tonight to solve
the entire YC debacle. It could be brilliant. Harris then says it is possibly evil and it could be
worth over a billion dollars....I hope it includes the dip and filing by Friday. There are no
emails and documents in which Byrne sent the evil plan. Just 4 days before said emails, on
October 21, Chris Wright, a present member of the ad hoc Committee, having votes on the
Liquidating Trust, emailed EB stating But right now we arent even mentioning bankruptcy or
a DIP loan. Upon information and belief, I believe said not mentioning refers to a plan
between CHC and SB not to disclose to the members the planned bankruptcy reflecting control
over all aspects of the planned filing by CHC; and the complete relinquishment by EB who
states: thats a good point....i dont care you all decide the when of this. Based on this email
chain and other emails referencing emails that have been destroyed or concealed, including the
unproduced Letter Agreement referenced in Exhibit 3 hereto, I believe that both SB and CHC
are in possession of emails and documents relating to a separate deal between EB and SB and
CHC which occurred between March 11, 2008 and the CHC Predatory Loan. The compelling

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inference is that EB gave up control and ultimately ownership to SB and CHC of over $700 M in
assets based on the values in Exhibit 1 of the YC and PC for a Predatory Loan of $35 Million
Dollars. In addition to the $600M net cash flow to EB representations made in Exhibit 3, the
compelling inference is that Samuel T. Byrne made undisclosed promises to EB for her to
forfeit over $650 Million Dollars of Blixseth marital Community assets.
9. Attached as Exhibits 8 through 11 are true copies of emails representing just a
sampling of numerous emails containing evidence that: (a) EB planned to falsely accuse Tim
Blixseth, and hit him from all sides and obtain control of the YC in violation of Los Angeles
Superior Court Orders now merged into the final judgment of divorce; (b) EB and SB
misleading the B shareholders; (c) an email with an unrecovered attachment with EB stating
never tell that I am sending you all this as part of EBs interference with Los Angeles Superior
Court orders now merged into the final judgment of divorce. To my knowledge we have not
recovered the missing attachment. These issues relating to bad faith collusion between EB and
SB are now on appeal.
10.

Attached as Exhibit 12 is an email whereby Byrne and DLC are agreeing that EB

committed perjury before this court regarding issues relating to CHC and DLC control of the
YC.

As seen above in Exhibits 1 - 3, SB and CHC did in fact obtain control over the YC

through the SB Predatory Loan; and thus, SB and DLC knew she was committing perjury in
order to have this Court approve their bankruptcy plan including the Liquidating Trust to sue
Tim Blixseth.

SBs knowledge of said post petition perjury by EB involves issues relating to

bad faith and exculpation, and Tim Blixseths rights to cross-claim against SB, CHC and
Credit Suisse, al of which issues are now on appeal.

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11.

Attached as exhibit 13 is an email EB sent to Gary Peters, My Guy, to negotiate

and make a separate deal with SB on March 21, 2008, five days before SB terminated the YC
sale, and in violation of Los Angeles Superior Court Orders and in contradiction of her sworn
testimony to said Court on that same date that she was not interfering with the sale. These issues
are now on appeal relating to SB exculpation and bad faith.
12.

Attached as Exhibits 14 and 15 are two fabricated Grand Jury Target Letters.

Upon information and belief, these letters were fabricated by Dennis Montgomery acting in
collusion with his partner, EB; and used by EB with the media and SB after January 15, 2008,
the date the YC sales contract was signed. They were used by EB to interfere with and
ultimately to kill the YC sale in violation of Los Angeles Superior Court Orders, now merged
into the Final Judgment.
13.

Upon information and belief, the following facts and events contained in the

following chronology are true. This chronology relates to the Target Letters and how they
were used to interfere with the YC sale by TB to SB. The chronology also relates to the EB and
Dennis Montgomery relationship and how that relationship impacts the current case issues,
including the computer hacking by Montgomery into Tim Blixseths and Michael Flynns
computers throughout these proceedings thereby interfering with the attorney client relationship
warranting dismissal of all of the claims against Tim Blixseth. This Court previously denied said
motion but new evidence is emerging relating to said computer hacking. Finally, the
chronology relates to the pattern of fraudulent loans procured by Edra Blixseth to finance a plan
to obtain control of the YC, including the fraudulent Wachovia loan as it relates to
Montgomerys technology, now publicly exposed as involving a massive fraud on the U.S.

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government. The fraudulent technology is owned by EBs company, Blxware. The Blxware
valuation on EBs financial statements is approximately $22 M. This is fraudulent. Based upon
personal knowledge, and information and belief, Blxware possesses no marketable technology,
the technology as represented does not exist, it was subject to an injunction when EB pledged it
to Wachovia; and Ms. Blixseth knew throughout the period in which she submitted loan
applications and financial statements to the various lenders that the purported Blxware
technology did not exist, and that Montgomery was engaged in computer hacking for her benefit
. EB paid Montgomery almost $6 Million dollars between April, 2006 and February, 2009 for
non-existent technology, which raises the inference that it was paid to perform computer
hacking.
March 1, 2006:

The FBI raided Dennis Montgomerys house searching for certain noise
filtering and compression software and hard drives he took from
eTreppid Technologies, and alleged classified information, involved in
then pending litigation in Reno, NV. Later, in June, 2007, when
Montgomery was subpoenaed to produce certain bribery emails before
a Washington D.C Grand jury, which he claimed proved that Warren
Trepp bribed NV Governor Gibbons, Montgomery took the boxes of
software and hard drives to EBs residence, Porcupine Creek. The
compelling inference is that Montgomery took approximately 23 boxes
filled with hard drives from eTreppid to conceal his fraud on the U.S.
government over the previous several years, because the hard drives may
have proved Montgomerys lack of source codes with respect to

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purported noise filtering technology; and may have contained evidence

as to how Montgomery perpetrated the fraud through hundreds of
parallel web-sites and email addresses he used as part of his computer
hacking scheme. These matters are now at issue in the Nevada litigation.
EB and Montgomery confessed $26.5 M in judgments to avoid, inter alia,
production of the stolen hard drives.
March - April, 2006: EB and Montgomery, and Michael Sandoval concluded a deal for
Montgomery to turn over the software to their new company, Opsprings now Blxware. Edra paid Montgomery approximately $3.8 M including a
$100K per month salary between April 1, 2006 and July 1, 2007; and
continued to pay him $100,000 per month until July, 2008 when they were
concealing the hard drives from the Nevada court. Then, in February,
2009 for non-existent technology and after years of computer hacking,
she made a final pay-off to Montgomery of $753,000. EB also paid
Sandoval, who allegedly knew, according to his chief scientist, that the
technology did not exist; and that Montgomery was a con, approximately
$20 Million dollars. Much of this money came from the Credit Suisse
loan. The evidence supports an inference that EB paid Montgomery to
hack into TBs computers, which has interfered with TBs ability to
defend this case because of their interception of attorney client
communications; and to try to perpetuate the fraud on the U.S.
Government.

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April, 2006 September , 2006:

EB attempted to get the U.S. Gov to buy the software using her purported
political contacts with Cheney and others in the Bush Administration in
order to obtain a government contract. EB isolated Tim Blixseth from the
deal. Cheney and the Bush Admin rejected EB and Montgomery. EB
then planned and implemented a media campaign against Gibbons and
the Republicans through her contacts at the Wall Street Journal and
NBC in order to pressure the Bush White House using Montgomerys
fabrication of two purported bribery emails allegedly evidencing
Warren Trepps bribery of Gibbons to get government contracts. These
are the same media contacts, EB and Montgomery contacted when she
used the fake Grand Jury Target Letters to kill YC sale in March, 2008.
The FBI in DC later concluded (in 2009) that Montgomery fabricated the
emails and dropped the investigation of Gibbons and Trepp. EB
employed the law firm of Skadden Arps to deal with the bribery email
Grand Jury and the required production of the bribery emails. The same
law firm represented Credit Suisse in the Montana bankruptcy
proceedings

September December, 2006:

Montgomery gave the bribery emails and other documents to EBs

contacts at the Wall Street Journal (WSJ) and to Lisa Meyers of NBC.
EB had NBC video tape an interview of Montgomery at Porcupine Creek

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in early November 2006, the weekend before the elections. The WSJ
published a front page article on Nov. 1, 2006 just before November
elections in which Gibbons was running for Nevada governor. The WSJ
later published two more articles based on the alleged bribery using
Montgomery documents. Said evidence supports EBs use of the media to
get what she wants. In March - April, 2008 as supported by the emails
attached hereto, she used the media to attack Tim Blixseth resulting in
damages to the YC.
December, 2006:

EB and Tim Blixseth (TB) separated and filed for divorce. TB

attempted to distance himself from EBs involvement with Montgomery;
and later gave EB the software company, Blxware, as a marital
Community asset, in which the marital Community had invested
approximately 20 million dollars much of which EB received from the
Credit Suisse loan.

January April, 2007:

TB negotiated and planned the sale of Yellowstone Club to Sam Byrne

and Cross Harbor Capitol. EB hired Deborah Klar and the Liner firm to
kill the sale and take over Blixseth Group, Inc., (BGI), the owner of the
Yellowstone Club, (YC). TB also planned the sale of Porcupine Creek
in order to achieve an equal division of Community assets and to pay off
the Credit Suisse loan and other debts.

April, 2007:

EB learned TB had made a tentative deal with Sam Byrne (SB) to sell

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Yellowstone Club. EB and Deborah Klar, a purported bankruptcy

expert, began planning to kill the sale by first filing a law suit to control
BGI. There is evidence in April, 2007 that Montgomery was hacking
into TBs computers and giving information to EB and Klar.
May 1, 2007:

Klar filed a Cal. Civil action and subsequently numerous motions to

effectively take control of BGI, the owner of YC and Porcupine Creek in
order to undermine TBs negotiations with SB. The case was dismissed
and motions denied.

June, 15, 07 August 08:

EB borrowed 13 M from Western Capitol Partners through the Story

Mills project. There is evidence of fraud. While representing to the
lender that she had a separate net worth of almost a billion dollars, and
could pay her debts as they matured, and had never filed bankruptcy, she
was filing sworn, sealed affidavits in the divorce proceedings that she
was millions of dollars in long overdue debt which she was unable to
pay. In fact, EB had previously filed bankruptcy; and her net worth was
based on the total net value appraisal method condemned by the
Montana bankruptcy court.

June 28, 2007:

TB signed Letter of Intent to sell YC bulk assets to Sam Byrne / Cross

Harbor Capital for $470 -510 million dollars. SB began due diligence.

July

2007:

EB through Klar and Jaffee filed motion to enjoin sale of YC claiming

inadequate price and lack of knowledge of sale. The inadequate price was

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based on their sworn affidavits that the YC was appraised at 1.2 Billion.
This was based on the Total Net Value appraisal method. Klar admitted
dealing with LeMonds counsel, who was then suing Tim Blixseth and the
YC. Klar knew LeMonds interests were adverse to the marital
community.
August 14, 2007:

EB / Klars motion to enjoin sale was denied by divorce court judge. EB

was ordered NOT to interfere with sale. There is evidence that EB and
Klar began a scorched earth litigation scheme seeking to have TB
investigated and indicted while cooperating with LeMond; and which
scorched earth scheme was also pursued in the Nevada eTreppid
litigation to conceal the hard drives and crush EBs opponents,
including the affiant. See Nevada Sanctions Order. at 2009 U.S. Dist.
LEXIS 35543 (D. Nev. March 31, 2009).

August November, 2007:

EB borrowed approximately $7 M from American Bank based on

questionable financial statements. (TB has not yet received the American
Bank loan documents which have been delivered to the counsel for the
Liquidating Trust.)

January 15, 2008:

TB and SB signed $455 M contract for sale of YC. SB claimed to have

spent $4 plus M in due diligence.

Jan. 15, 2008March 21, 2008:

During this time frame, SB informed Robert Sumpter that he knew about,

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and /or had seen, and /or had possession of the fake Target Letters.
Sumpter called TB and told him of the SB conversation relative to the fake
target letters. TB immediately called SB and demanded an explanation and
source of the letters. SB initially refused to disclose, and upon being
pressed, stated that EB has read them over the phone to SB. SB told TB
that this was a big problem as he was obligated to advise his lenders which
could kill the deal. SB sought adjustments and reduction in price. SB
advanced plan to put the YC into bankruptcy.
March, 2008:

EB borrowed $5 Mil from Wachovia Bank; and $8 Mil from First Bank &
Trust. The Wachovia loan documents evidence extensive and intentional
fraud including affirmative falsehoods about her involvement in litigation
adversely impacting her financial status. EB also directly concealed the
fact that the collateral she pledged for the loan was in fact subject to a
preliminary injunction in the concealed litigation. EB and her lawyers and
bookkeeper, Jory Russell used financial statements claiming an $800 M
net worth based on the TNV appraisal method while negotiating with
Byrne to put YC into bankruptcy.

March 21, 2008:

EB sent Gary Peters to meet with SB in his Boston office to make a separate
deal while she appeared in divorce court on that very day testifying that she
was not interfering with the sale; and was again ordered not to interfere with
the sale.

March 26, 2008:

SB terminated the YC. Sale. Two days later EB planned a massive media

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campaign and attempted to intervene in the LeMond litigation to oust TB

as Manager of the YC.. They failed BUT YC equity was devastated from
the media campaign, as admitted by SB. There is evidence that EB
orchestrated the media campaign; and submitted false affidavits to the
Montana court to oust TB and obtain control of the YC.
June, 2008:

EB borrowed $3 M more from Wachovia. There is extensive evidence of

fraud, including concealment of litigation in which the security pledged
for the loans was then subject to an injunction. EB rewrote loan with
Western Capitol including fraudulent concealment of litigation. EB
rewrote and increased by $2.5 M the loan with American Bank. There is
evidence of fraud.

March August 13, 2008:

EB and SB negotiated, made and consummated deal to have SB / CHC

loan her $35 M to take over YC in divorce proceedings and transfer
control of YC to SB and CHC. According to Montgomery, EB and SB
made a secret deal for EB to receive $3 M per year for 10 years. In YC
bankruptcy, SB stated under oath that the loan to Edra on Porcupine
Creek and the LeMond payment was unrelated to the YC bankruptcy, Its
got nothing to do with me and had nothing to do with us See April 9,
2009 deposition pages 96-104 attached hereto as Exhibit 16. There is
evidence that this testimony is false. See Exhibit 3 hereto wherein CHC is
not only controlling EB and the YC through the Predatory Loan, it is

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actually acting as her Lending Advisor. In other words, all of these

matters had EVERYTHING to do with Mr. Byrne
November, 2008:

EB and SB put YC in to bankruptcy subject to SBs brilliant plan to act

as the DIP.

March, 2009:

EB filed personal bankruptcy having effectively transferred the bulk of her

assets to Mr. Byrne in one form or another..

June 24 - July 8, 2009: EBs bookkeeper, Jory Russell was caught under oath destroying Edras
files on two computers. Later, some of the files are forensically
recovered and provide evidence of concealed or destroyed documents.
See below.
September October, 2009:

Montgomery informed TB that he has evidence against EB including the

fake Target Letters, the concealment of documents, the concealment of a
server containing all the documents, (not yet produced) and the
concealment of the secret deal between EB and SB .

October, 2009:

On verge of going to jail for writing 1.9 M in fraudulent checks in

Nevada, Montgomery gave TB the target letters. Montgomery claimed he
also has a Kinkos fax cover sheet and / or copies of the letters with an
unredacted fax header from Kinko's in Boston relating to SBs possession
of the letters. Within a day of getting the letters, TB and I contact and
send them to the DOJ, the FBI, and the U. S. Attorneys office in
Washington D.C. and Montana.

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December, 2009:

TB located numerous web-sites and email addresses that parallel or

mirror sites and addresses of EBs opponents . Montgomery tells TB
that he has the same type of parallel sites for TB and the affiant. On
investigation by a computer expert, who determined that the sites are
registered to a domain company called Network Solutions all registered to
an entity owned or controlled by Montgomery called Off Shore Ltd.
with Porcupine Creeks address. Some but not all of these sites are:
Cross Harbor Capital.net; Tim Blixseth.com. JessicaBlixseth.com
to name a few. Based on statements of Montgomery, and my prior
knowledge of Montgomerys fraud on the U.S. Government, the evidence
suggests that Montgomery used these sites and addresses to hack into
computers and as part of their technology scam to sell fake technology to
the U.S. Government.

December, 2009 January, 2010:

TB and his technology expert continue to recover deleted emails from the
Russell computers, including Exhibit 3 to this Affidavit.

THE RUSSELL COMPUTER SPOLIATION

14.

On May 14, 2009, on the motion of Western Capital Partners, this Court ordered

the 2004 exam of Jory Russell, Edra Blixseths primary financial assistant. Pursuant to said
Order, Russell was ordered to produce electronic and paper documents including complete
copies of computer hard drives and other electronic storage media relating to Edra Blixseth as

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described in the Motion for Rule 2004 Examination.

15.

On June 13, 2004 Russell was served with a subpoena requiring his attendance on

June 23, 2009 for examination under oath; and the production of all documents, emails,
financial records and statements, bank records relating to Edra Blixseth; and specifically
including complete copies of computer hard drives and other electronic storage media which
contain any and all accounting, email, and financial information relating to Edra Blixseth in
Russells possession as described in the subpoena and in the Order incorporating the Motion.
16.

Within a day or two after receiving the subpoena, Russell spoke to both Gary

Deschenes, Ms. Blixseths personal bankruptcy lawyer, and to Edra Blixseth. (Tr. 11.1.09, p.
30, L. 18-20. He informed them that he had received the subpoena, that he possessed documents
stored on computers responsive to the subpoena; and that I was printing off the documents.
(Id p. 30 L. 11 to p. 33, L. 11). Russell testified that during the week before his attendance I
would read the subpoena and then print out responsive documents including emails. (Id p. 35 L.
8-15). He printed out about a foot and a half of responsive documents before he ran out of
paper. (Id. P. 36 L. 12-16). He had possession of two computers containing materials responsive
to the subpoena, a lap top and a desktop, but only printed from his desktop before the June 24,
2009 exam. (Id. P. 38 L. 8-12)
17. Mr. Deschenes did not file a motion to quash or for a protective order.
18. Mr. Deschenes did not represent Russell at any time in these matters. He represented
Edra Blixseth at all times material herein. Thus, at no time did his instructions to Russell as
recited herein fall within the attorney client privilege.
19. Russell first testified on June 24, 2009. That volume was designated Vol. 1 in the

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Edra Blixseth bankruptcy proceedings. There are also two additional volumes of his testimony
in the Edra Blixseth bankruptcy dated July 8, 2009 and August 5, 2009; and designated Vol. II
through III. There is a fourth day of deposition taken on November 1, 2010 in AP 14. In this
Affidavit, each volume is designated by date. In the June 24, 2009 examination, as he later
admitted on July 8, 2008, neither he, nor Mr. Deschenes, nor Ms. Blixseth, disclosed his then
possession of either the lap top or the desk top, or the foot and a half of documents he had
printed out from the desktop, although he knew they were in his possession and responsive to
the Courts Order. (Tr. 8.8.09, p. 13 L. 7 to p. 14, L. 16). He also knew there was a scheme in
place to conceal the computers and the responsive documents orchestrated by Mr. Deschenes.
Id. P. 13 - 30. See specifically Tr. 8.8.09 at p. 15, L. 21 to p. 18 L. 18 for the possession and
non-production of the subpoenaed documents. As hereinafter recited, Russell only produced
about 4" of documents from his wifes computers which were virtually the entire subject of his
short 52 page deposition permeated with attorney client privilege assertions designed to conceal
the un-produced computers and documents.
20. On the night of June 23, 2009, in preparation for his deposition, Russell picked up
Mr. Deschenes at the airport and drove him to Ms. Blixseths estate, Porcupine Creek.
According to Russell, he informed Mr. Deschenes and Edra Blixseth that evening that he had in
his possession in the trunk of his car the lap top and a bankers box with about a foot and a
half of documents that he had printed out during the previous week from his desktop. In his
July, 8 2009 testimony, he swore that there were different documents on his desktop and lap top
that were subject to the subpoena; that he only printed from his desktop; and the lap top and
desktop were not synched. Tr. 7.8.09, p. 23, L 14 - 22.

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21.

On the night of June 23, 2009, Mr. Deschenes then requested Russell to give them

the lap top and the printed documents because I was told that was not my property. Tr. 7.8.09,
p. 35 L. 3 -22. The desktop was still at his home; (Tr. 11.1.09, p. 51 L. 24-25; from which he
had printed about a foot and a half of documents that he knew were responsive but he gave to
Mr. Deschenes and Edra Blixseth the evening before his deposition on June 24th; but now
wasnt sure if the computers were synched; or who told him not to produce the documents and
computers, Mr. Deschenes or Ms. Blixseth. Tr. 11.1.09 p. 38 L. 8-15; p. 52, L. 4 to p. 54 L. 24.
22.

Russell makes a series of remarkable admissions and contradictions in his

testimony between July 8 and November 1. He admits that he was at Porcupine Creek, one or
two days before Mr. Deschenes arrived printing off documents off Edra Blixseths printers that
were also not produced on June 24th, but were supposedly part of the foot and a half. Tr.
11.1.09 p. 55, L. 14-25. But in his November 1 testimony, he said that he had told Blixseth and
Deschenes on the night of June 23, 2009 before his deposition that the stack of documents
representing the foot and a half in the bankers box from his trunk were from the lap top.
Tr. 11.1.09, p. 54, L. 7 to P. 55 L. 13. In his three days of testimony after June 24, 2009, July 8,
August 5 and November 1, 2009, Russell gives conflicting testimony on what he destroyed and
when. On August 5, 2009, he testified that he destroyed everything pertaining to Edra Blixseth
on the desktop; and I deleted copies of everything that were on Edras lap topor yeah,
Edras lap top, the lap top that I was using. Tr. 8.5.09 280:10 to 282: 1.
23.

The first mention of being accused of theft of the documents came up in Mr.

Deschenes presence. Tr. 11.1.09 , p. 56 L. 5-20. Russell testified he had no recollection of any
plan to shut down his deposition the following day being discussed but he remembers a John

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Roselli showing up at his deposition to put his deposition on hold.. Tr. 11.1.08 p. 57, L. 14 to
p. 59 L. 5. The next day he deleted documents off his desktop. Tr. P. 59, L. 6-11. Mr. Russell
then asked for a break. Id at p. 61, L. 18.
24.

Russell relied on Mr. Deschenes not to produce the documents or the computers

on June 24 at his deposition. Tr. 66 L. 3 to p. 67 L. 3. Neither Russell, nor EB, nor Mr.
Deschenes disclosed on June 24, 2009, that just a month before that, on May 19, 2009, five days
after the court order, EBs business partner, Montgomery, delivered a server at Porcupine
Creek, called the Blxware/Blixseth.com and related domain names containing thousands of
emails, and with what Russell now claims contains everything from both computers in his
possession. Tr. 11.1.09. That server has never been produced; and apparently, has
disappeared..
25.

Russell also destroyed two USB hubs by throwing them in the garbage

containing accounting software provide by Pat Yarborough, EBs bookkeeper, and also
documents responsive to the Western Capital subpoena that were on the lap top. Tr. 11.1.09 p.
70 L. 10 to p. 71, L. 13.
26.

In his July 8th testimony, Russell admitted destroying documents off both the lap

top and desktop and that they were not synched. Tr. 7.8.9, p. 38, L. 11 to p. 39, L. 18.
27.

He also stated that on the night of June 23, he then proceeded to print out more

documents from the lap top that evening while in the presence of Mr. Deschenes and Ms.
Blixseth, and after printing for some time, he stopped. At some time during this entire episode
of spoliation, he also put additional documents on a USB hub which he filled; and later threw in
the garbage.. Tr. 11.1.09 p.70, L. 10 top p. 81 L. 13. It is unknown what happened to the

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printed documents printed out the evening of June 23, 2009; and the chain of custody of the
foot and a half is unknown..
28.

At the June 24, 2009 exam, Mr. Deschenes engaged in what can only be called an

intentional charade using Russell as a dupe. Neither Russell or Mr. Deschenes ever mentioned
the two computers, or the foot and a half of documents given to him the night before by
Russell, or the 3' of documents printed out the night before from the lap top given to Blixseth /
Deschenes that evening. Instead, Mr. Deschenes had Russell produce about 4 inches of
emails mostly relating to attorneys, which he claimed were from his wifes computer, which
Deschenes then asserted the attorney client privilege on. (Tr, 6.24.09 pp. 1-51). The production
of the 4" of printed documents from the wifes computer constitutes an admission that Russell,
Mr. Deschenes and EB had a duty to produce the other computers and printed documents.
29.

Mr. Deschenes then carried on this Roselli charade in the context of the 4" of

produced documents, the attorney client privilege, and a privilege log in what is shocking
deception relating to the subpoenaed computers, the subpoenaed foot and a half of documents
that Russell actually possessed, all given to him the night before while using the 4" of
documents as a cover, and the subsequent destruction of the contents of the computers the
following day. Tr. 6.24.09 p. p. 4o to 50. Specifically, under the cover of the 4" of emails
relating to the attorney client privilege and not providing the non- privileged documents, with
Western Capitals lawyer who were demanding that they be given to the court reporter at the
June 24th deposition, Mr. Deschenes stated at p. 46 L. 10-12:
No. Were not going to give them to you today because of the other deal. We dont
want to have these things produced if were....

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The other deal is the Roselli charade. The compelling inference is that Mr. Deschenes knew
that the entire June 24th charade with Roselli , and the 4" of documents produced after Russell
had produced everything the night before, was a cover for the violation of the subpoena and the
court order in order to give Blixseth and Russell time to destroy evidence, which he admittedly
did. The Western Capital lawyers heard Edra Blixseth state words to the effect that Sam is ok
with the deal inferring that Sam Byrne was the source of funding to buy out the Western
Capital note. Additionally, EBs partner, Dennis Montgomery, apparently then in conflict
with EB, on June 25, 2009, the day after the deposition, called Tim Blixseth and told him that
the Roselli intrusion into the deposition was a charade to destroy evidence off the computers,
which Mr. Blixseth immediately reported to her trustee, Mr. Samson. Montgomery also texted
TB during that time frame that they engaged in the foregoing conduct so they could buy time to
erase emails. Without this tip from Montgomery, it is unlikely that the concealment of the
computers and subsequent destruction would have been uncovered.
30. The evidence suggests that the Rosselli / Byrne charade of buying off Western
Capital Partners was a scheme to buy time to conceal and destroy evidence. According to
Russell in a conversation with the affiant, and according to Montgomery in a conversation with
TB, Byrnes Vice-president, Matthew Kidd was present at Porcupine Creek throughout the June
24, 2009 deposition and subsequent meetings. The inference and circumstantial evidence is that
there was no real intention to pay Western Capital Partners. Following the suspension of the
deposition, Russell admittedly spent the next day destroying documents on his desktop and
his lap top. (Tr. 7.8.08 p. 23 L. 14 - p. 24 L. 12; Tr. 8.5.09, supra). Contrary to his testimony on
November 1, 2009 that he only printed from his desktop, (see above), on July 8, 2009 he had

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testified that he printed from his lap top. (Id p. 25 L. 4-24)

31.

Beginning on at least June 18, and continuing on June 22, and 23, 2009, at least

three days after informing Mr. Deschenes and Ms. Blixseth of what he was doing to respond to
the subpoena, Russell may have also began deleting, concealing or destroying electronically
stored files.
32.

Between the date of the Courts Order on May 14, 2009 and June 24, 2009, Russell

had possession, custody and control of at least the lap top computer and the desktop computer
containing hundreds of thousands of electronically stored documents relating to Edra Blixseth
and required to be produced pursuant to the subpoena. Neither he, nor Mr. Deschenes, nor
Ms. Blixseth complied with the courts order or the subpoena. At the time he only took
advice from Mr. Deschenes. And Ms. Blixseth.
33. According to his testimony, Mr. Russell was the Vice President of Business
Development for Ms. Blixseths software company, Blxware, and the Director of Business
Operations for Edra Blixseth personally, who took direction from Edra Blixseth on all
matters. (Tr. 11.1.09 p.25 L3-4). Russell had not worked for Ms. Blixseth for about 3 or 4
months before the deposition; but he still possessed the lap top computer and the desk top
computer containing materials sought in the subpoena. (Id p.32 L. 3-20).
34. . Russells testimony as to who owned, and /or had the right to possess the lap top
computer as of June 24, 2009, and the instructions he received from Mr. Deschenes and Ms.
Blixseth on these issues evidences concealment, destruction and obstruction; ( Id 37-57).
35 . The Russell testimony is very specific that one or both of them told him not to
produce either the foot and a half of documents or the lap top for his deposition the following

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day; (Id. 52 L. 9-25) ; and that the documents (Id 56 L. 9-12) was [sic] no longer my
property and I shouldnt have it. (Id. L. 19-21). Gary Deschenes specifically told him that the
lap top was not Russells property the night before he was obligated by Court order to produce
copies of its hard drive. Mr. Deschenes knew that the Order to produce copies made both
the actual ownership and possession of the lap top irrelevant because copies were required,
and regardless of who had the right to possess the laptop - Ms. Blixseth or Russell, he obstructed
the discovery process. The fact that the destruction of material on the computers occurred the
next day nails the coffin shut on their collective intent.
36.

Neither the desktop or lap top computers belonged to Ms. Blixseth. They

belonged to YCW and Blxware. No objection or motions to quash were filed by either entity.
Russell was properly in possession of both. They each contained material required to be
produced. . Russell printed out the entire foot and a half from the desktop which did not belong
to Ms. Blixseth. Russells conflicting testimony as to what computers from which he printed
unproduced documents evidences concealment and mens rea. Mr. Deschenes did not represent
either Blxware or YCW.
37. Prior to the night of June 23, 2009, neither Ms. Blixseth, nor Mr. Deschenes, nor
Blxware, nor YCW , or its Trustee, or anyone representing EB, had requested the turnover of the
computers, or any documents relating to Edra Blixseth, notwithstanding Russells direct, routine
and consistent assistance for the previous nine months in assisting Blixseth and her lawyers in
finding documents and providing them to her lawyers, including Mr. Deschenes, and also to Mr.
Byrne and his lawyers and to the lawyers in the YC bankruptcy. (Exhibits to Russell deposition
and emails sought to be destroyed by Russell which have been forensically retrieved from the lap

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top and desktop will be produced at an evidentiary hearing.)

38. Given M. Blixseths critical role with Samuel Byrne in obtaining ownership of the
Yellowstone Club in the Blixseth divorce, and the subsequent control over the YC bankruptcy
proceedings by both Mr. Byrne and Ms. Blixseth through the $35 Million dollar Porcupine
Creek loan, as recently admitted by Mr. Byrne - but previously the subject of contradictory
testimony by Mr. Byrne, as herein recited, the aforesaid evidence relating to the concealment of
evidence before July 17, 2009, in and of itself should support a finding of bad faith in the YC
bankruptcy proceedings, prior to plan confirmation on July 17, 2009.

Signed under the pains and penalties of perjury this 13th day of January, 2010 under the
laws of the United States.

_____/S/ Michael J. Flynn_____________

Michael J. Flynn

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In re: Yellowstone Mountain Club, LLC, et al., Debtors

Videotaped Deposition

Samuel T. Byrne, Vol. I

April 9, 2009

Page 1

Volume I
Pages 1 to 185
Exhibits 1-16
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MONTANA
- - - - - - - - - - - - - - - - -x
:
:
In re:
:
:
YELLOWSTONE MOUNTAIN CLUB,
:
LLC, et al.,
:
:
Debtors.
:
:
:
- - - - - - - - - - - - - - :
:
:
OFFICIAL COMMITTEE OF
:
UNSECURED CREDITORS,
:
:
Plaintiff,
:
:
vs.
:
:
CREDIT SUISSE, CAYMAN ISLANDS
:
BRANCH, and JOHN DOES 1-15,
:
:
Defendants.
:
:
- - - - - - - - - - - - - - - - -x

Case No.
08-61570-11-RBK
Jointly
Administered
with 08-61571,
08-61572 and
08-61573
Chapter 11

Adv. Pro. No.

09-014
(Consolidated)

Judge: Ralph B.
Kirscher

VIDEOTAPED DEPOSITION OF SAMUEL T. BYRNE, a

witness called on behalf of the Defendants, taken
pursuant to Rule 45 of the Federal Rules of Civil
Procedure, before Anne H. Bohan, Registered
Diplomate Reporter and Notary Public in and for the
Commonwealth of Massachusetts, at the Offices of
Skadden, Arps, Slate, Meagher & Flom LLP, One Beacon
Street, Boston, Massachusetts, on Thursday, April 9,
2009, commencing at 12:10 p.m.

Doris O. Wong Associates, Inc.

50 Franklin Street, Boston, MA 02110

Electronically signed by Anne H. Bohan (601-244-937-3064)

Professional Court Reporters

Videoconference Center

(617)426-2432
www.doriswong.com

a94780ef-7906-452a-b8d9-64992afda49a

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In re: Yellowstone Mountain Club, LLC, et al., Debtors

Videotaped Deposition

Samuel T. Byrne, Vol. I

April 9, 2009

Page 94

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people had presented the option at various points in

time. From the other side, people in the
conversation, lawyers, any number of people. It was
not something we were pursuing.
Q. But it's something that you did ultimately
pursue?
A. I didn't pursue it, the debtors pursued it.
It's got nothing to do with me.
Q. When you loaned the $35 million to Edra
Blixseth, its purpose was to take Tim Blixseth out
of his ownership position in the Club; is that
correct?
MR. MOORE: Object to the form of the
question. You can answer it.
Q. Do you understand the question, Mr. Byrne?
A. I think the purpose of that loan is clear
in what the monies were used for, and part of it was
for her to complete her marital settlement agreement
with Tim.
Q. And remove him from an ownership position
in the Club?
A. That's what her goal was.
Q. And you gave her $35 million to do it?
A. I lent her $35 million against a commitment

Page 96

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MR. MOORE: I appreciate your explanation.

Thank you.
MR. FLYNN: You're welcome.
Q. Mr. Byrne -A. Yes.
Q. -- when you loaned Ms. Blixseth the $35
million, between your termination on March 26th of
the sale of the Club and the filing of the
bankruptcy in November '08, did you know what the
money was being used for?
A. I'm not sure I understand the question.
What's the relevance of the dates?
Q. Well, on March 26th your company terminated
the deal. We agree on that, do we not?
A. We sent a notice of termination. I think
we've been over and over many times why we felt the
need to do that.
Q. In November a bankruptcy plan was filed by
Ms. Blixseth.
A. That's correct.
Q. And we also have in the mix that two weeks
before you terminated the deal, you proposed a
prepackaged bankruptcy -A. I didn't propose.

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to be refinanced within 30 days, to move forward

with her transaction.
Q. Was there provision in your loan agreement
with her whereby -A. Excuse me. Can we go off the record? I'd
like to talk to my attorney for a minute.
THE VIDEOGRAPHER: The time is 2:24. We
are off the record.
(A pause)
THE VIDEOGRAPHER: The time is 2:26. We
are back on the record.
MR. MOORE: I just want to explain the
break. The reason for the break is that the witness
shares my concern that this deposition seems to be
dedicated to matters that are entirely unrelated to
this litigation. Again, I would urge you, if you
have questions related to the litigation, to ask
them.
MR. FLYNN: We have different views.
They're directly related to the breach of the
fiduciary duty claims that have been mounted by the
UCC in this case against Mr. Blixseth.
BY MR. FLYNN:
Q. Mr. Byrne --

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Q. -- to Mr. Blixseth?
A. I didn't propose.
MR. MOORE: Object to the form of the
question.
Q. You didn't propose it?
A. I testified to it already.
Q. You had a discussion with him about it?
A. The e-mail speaks for itself.
MR. MOORE: The testimony speaks for itself
too. I think we've had about ten questions on this
already.
MR. FLYNN: I'm not talking about the
e-mail; I'm talking about the issue of your
discussion.
Q. Did you or did you not have a discussion
several weeks before the termination letter that you
sent relating to a prepackaged bankruptcy? It's a
simple question; I'd like a yes-or-no answer. Did
you have that discussion?
MR. MOORE: You already have answers to
that at least three times.
MR. FLYNN: I think I now have conflicting
answers.
A. What are the conflicting answers?

25 (Pages 94 to 97)
Doris O. Wong Associates, Inc.
50 Franklin Street, Boston, MA 02110

Electronically signed by Anne H. Bohan (601-244-937-3064)

Professional Court Reporters

Videoconference Center

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09-00014-RBK
08-61570-RBK Doc#:
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886

In re: Yellowstone Mountain Club, LLC, et al., Debtors

Videotaped Deposition

Samuel T. Byrne, Vol. I

April 9, 2009

Page 98

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Q. Did you have that discussion?

MR. MOORE: Object to the form of the
question. Go ahead.
A. We had an e-mail discussion. You've seen
the e-mail. It is what it is.
Q. Aside from the e-mail did you verbally
discuss with Mr. Blixseth -A. Tim Blixseth called me looking for options
for how to resolve the case, and I said, "You've got
real problems here," and he suggested how we would
deal with it. We talked about bankruptcy. He said
he was not interested in going down that path, and I
said, "That's great, let's just move forward and
close."
Then he sent me his thoroughly self-serving
e-mail trying to establish some record, which is par
for the course in this thing, and I responded
exactly as I factually did.
Q. Who first used the term, if you can recall,
"prepackaged bankruptcy"?
A. I don't recall. Possibly Credit Suisse,
but I don't recall.
Q. Between you and Mr. Blixseth, who first
used the term?

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A. I didn't require her to do anything. To

the extent she needed releases from the LeMonds to
satisfy Tim's agreement with her, it had nothing to
do with us.
Q. Just so we're clear. So none of these
payouts that she was going to make from the $35
million was a requirement in the loan; is that your
testimony?
MR. MOORE: Object to the form of the
question.
A. I don't know.
MR. MOORE: What payouts are you talking
about?
Q. LeMond, to the Club, and to satisfy the
marital settlement agreement. I believe that's what
you testified to.
MR. MOORE: Didn't he testify there were
sources and uses in the agreement? Why don't you
show him that if you want to know what they were.
MR. FLYNN: Please, Mr. Moore. You're
interrupting the deposition.
Q. Mr. Byrne, I'd like a clear-cut answer to
this, if I could.
MR. MOORE: We'd like a clear-cut question

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A. I don't recall.
MR. MOORE: He's answered that at least
four times, and he said the same thing four times,
which I'm proud of him for that, but enough is
enough.
Q. Now, let's go back to the $35 million loan.
What were the proceeds being used for, to your
knowledge, when you gave her the money?
A. I mean, the sources and uses of the loan
are in the record, so I don't recall off the top of
my head. But it involved putting some money,
short-term money into the Club, paying off her
obligations under the marital settlement agreement,
and paying off obligations that Tim had had to the
LeMond Litigants.
Q. Did you require as a term of the loan, the
$35 million loan, that the LeMond Litigants get
paid?
A. I didn't require it. She requested the
loan, as established in the record. I didn't -- she
requested the loan. What her intentions were with
it was to resolve these issues, and she used it for
those purposes.
Q. So your testimony --

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too and a question that's relevant to the

litigation, but I'm not succeeding in that either.
Q. Did your loan require her to make payments
to either LeMond, to Tim Blixseth, to resolve the
marriage, or to the Club for operating capital?
It's a real simple question. Did your loan require
it?
A. The sources and uses are what they are,
yes. Whatever they are, they are.
Q. Thank you. It did require it.
A. No, I didn't say that. She asked for the
money. You're making up something like we forced it
upon her. We know exactly where you're going with
all this.
Q. You may be a lot wiser than me.
A. Oh, please.
Q. I'm trying to get the facts. So we have an
answer "yes."
Now, I believe the loan called for
repayment of the $35 million in 30 days; is that
correct?
A. I believe so, yes.
Q. Did Ms. Blixseth give you financial
statements to support the loan before you gave her

26 (Pages 98 to 101)
Doris O. Wong Associates, Inc.
50 Franklin Street, Boston, MA 02110

Electronically signed by Anne H. Bohan (601-244-937-3064)

Professional Court Reporters

Videoconference Center

(617)426-2432
www.doriswong.com

a94780ef-7906-452a-b8d9-64992afda49a

09-00014-RBK
08-61570-RBK Doc#:
Doc#: 473-2
2109-1 Filed:
Filed:01/16/10
01/13/11 Entered:
Entered:01/16/10
01/13/1112:48:30
16:22:02 Page
Page85134
of 85
of
886

In re: Yellowstone Mountain Club, LLC, et al., Debtors

Videotaped Deposition

Samuel T. Byrne, Vol. I

April 9, 2009

Page 102

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the $35 million to be repaid in 30 days?

A. She did. And she gave us evidence that she
had financing commitments from two different sources
to do so.
Q. What were those two sources?
A. One was Archer Capital and the other was -I can't remember -- Kennedy Funding. It might have
been Kennedy Funding at the time. She had two deals
working that she had put deposits up on already.
Q. So when you gave her the $35 million, it
was your understanding that: A, she would become
the owner of the Club; is that correct?
A. Yes.
Q. B, she would pay LeMond some amount of
money; is that correct?
A. Yes. That's what she was using the
proceeds for.
Q. C -A. Tim's deal with her required her that she
get LeMond off his back.
MR. MOORE: Just answer the question.
Q. C, that Tim Blixseth would be paid some
amount of money, correct?
A. That's correct.

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statements that she presented to us.

Q. Have you produced those financial
statements in this litigation?
A. I don't know.
Q. As you sit here right now, what banks do
you know about, do you now know about, that were not
disclosed in the financial statements?
A. I don't know. I don't know without the
information in front of me, I couldn't answer it
specifically which ones were or weren't, who she
owed money to, what litigation claims she had agreed
to settle, I don't know.
Q. Well, apparently from the Montana
bankruptcy litigation we know there was a bank
called First Bank & Trust of Newport Beach that she
got about $8 million from in March '08. Is that one
of the banks you referred to?
A. I don't know. Like I said, I answered the
question I don't know.
Q. Okay.
A. I'd have to look at the statements, and now
knowing what we know because of the filings in the
bankruptcy, we can reconcile them.
Q. Now, that $8 million, coincidentally or

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Q. D, that some amount of money would be put

into the Club, correct?
A. Correct.
Q. How much was going into the Club?
A. I don't recall but not a lot.
Q. How much was going to LeMond?
A. Whatever the numbers are, they are. I
don't recall off the top of my head. I don't want
to speak incorrectly.
Q. How much was going to be regained by her
personally from the $35 million after those other
obligations were met?
A. There was virtually nothing, from my
understanding of it.
Q. Now, at the time did you know that she was
in financial straits?
A. I didn't know the extent to which she had
borrowed money, because it wasn't disclosed to us in
the financial statements that were provided to us.
Q. What was not disclosed that you now know
about?
A. Just that she had significant personal
liabilities out there to banks and to individuals
that were not accurately reflected in her financial

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not, was received by Ms. Blixseth roughly at the

same time as you terminated the sales, if you know?
A. I don't know.
Q. Do you know if there's a correlation of
those dates?
A. There is no correlation of those dates. I
have no idea who she borrowed money from before the
last five months, six months. I still don't know
who she borrowed money from.
Q. Well, you said you did know that some banks
or lending institutions -A. I don't know if she -Q. -- were not disclosed?
A. She may well have disclosed that one, I
don't know. As I said, I don't know until I see the
reconciliations.
Q. Now, Wachovia Bank, I believe they loaned
her roughly $8 million at the same time, happened to
be March '08 when you terminated the sale. Was that
one of the banks that was disclosed or not
disclosed, if you know, on the financial statement?
A. I said I don't know.
Q. Okay. Now, American Bank sometime between
March '08 and the time you gave her the $35 million

27 (Pages 102 to 105)

Doris O. Wong Associates, Inc.
50 Franklin Street, Boston, MA 02110

Electronically signed by Anne H. Bohan (601-244-937-3064)

Professional Court Reporters

Videoconference Center

(617)426-2432
www.doriswong.com

a94780ef-7906-452a-b8d9-64992afda49a