AW Harris Awh 2024 48085 Doc. 120702485
Honorable Michael Gomez 129th Judicial District Court Harris County Civil Courthouse 201 Caroline, 10th Floor Houston Texas 77002
DISTIL analysis
- Cyberlux falsely represented to Texas court in October 2024 that execution of judgment had been stayed in Virginia
- Cyberlux represented to federal court in April 2025 intent to post supersedeas bond but never filed motion
- Cyberlux claims plan to pay $1.4 million into Virginia court registry but has filed no motion as of May 21, 2025
- Cyberlux dissipated $38 million in September 2023
- Multiple creditor judgments pending including $1.6 million Thin Air Gear judgment in Colorado
- Cyberlux increased credit line from $7 million to $12.3 million in April 2025 after defaulting
- Atlantic Wave seeks receiver to preserve expected $20 million payment from Huntington Ingalls Industries
Extracted text
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BELLNUNNALLY ATTORNEYS & COUNSELORS
5/22/2025 3:28 PM Marilyn Burgess - District Clerk Harris County David A. Envelope No. 101174598 TEL: 214.74PM: Angelica Rodriguez FAX: 214.740.5745 Filed: 5/22/2025 3:28 PM DWALTON@BELLNUNNALLY.COM
May 22, 2025
VIA EFILE.TXCOURTS.GOV
Honorable Michael Gomez 129th Judicial District Court Harris County Civil Courthouse 201 Caroline, 10th Floor Houston Texas 77002
RE: Cause No. 2024-48085, Atlantic Wave Holdings PLC, et al. v. Cyberlux Corporation, et al., 129th Judicial District Court, Harris County, Texas.
Dear Judge Gomez:
I represent Plaintiffs Atlantic Wave Holdings, LLC, and Secure Community, LLC (Atlantic Wave) in the above-referenced action and write to address the letter dated May 20, 2025, filed by Judgment Debtors Cyberlux Corporation and Mark D. Schmidt (Cyberlux). As shown throughout this case and further confirmed by Cyberlux's May 20 letter, Cyberlux does not let factual accuracy get in the way of its narrative.
Amended Final Order and Judgment. In October of 2024, Cyberlux represented to this Court that a stay of execution of theAmended Final Order and Judgment (Judgment) had been granted:
THE COURT: Has it been stayed? I mean has it been stayed in Virginia?
MR. PENNETI: Those -- all those litigations, yes, the stay has occurred in Virginia. There's no -- the collection - there's no activity in the collection suit. Then you've got the three other lawsuits.
THE COURT: So the enforcement of this judgment that they domesticated has been stayed in Virginia?
MR. PENNETI: That's correct. (October 28, 2024, Hearing Transcript at 8:8-18.)
But that was a misrepresentation because no such stay of execution was requested or has been granted. Then, in April of 2025, Cyberlux represented to the Texas federal court it
intended to "pay into the appropriate court an amount that is a supersedeas bond." (Case No. 4:25-cv-01689, Doc. 5, filed April 25, 2025, pp. 11-12.) Indeed, another misleading statement because Cyberlux has made no effort to file a motion for supersedeas bond whether under Texas supersedeas law, federal supersedeas law, or any other law of a competent jurisdiction. Now, in May of 2025, Cyberlux represents to this Court that it is "planning" to pay $1.4 million into the registry of the Virginia court. Yet again Cyberlux misleads this Court because, as of May 21, 2025, Cyberlux has not filed a motion to interplead any funds into the Virginia court's registry, much less filed a notice of appearance in the action pending in Fairfax County, Virginia. (Affidavit of J. Chapman Petersen, signed May 21, 2025, attached as Exhibit 1, II 7-9,) Cyberlux's smoke screen tactics should not divert attention from the actual issues-that is, Cyberlux is in default under the settlement agreement for lack of payment (Ex. 1c[9] 4-6), among other reasons, and Cyberlux owes several creditors, including Atlantic Wave, many millions of dollars.
Receivership Order. Cyberlux continues to raise the government property issue that has already been discussed ad nauseum and resolved. Again, Atlantic Wave is not attempting to seize government property, but rather it is focused on freezing non-exempt assets of Cyberlux, for example, the substantial sum of money (in excess of $20 million) Cyberlux is in position to receive any day now, from Huntington Ingalls Industries (HII). And the proposed receivership order, is consistent with that focus. (Notice of Second Remand Order, dated May 14, 2025, Ex. 2, pp. 5-6) (finding that "the proposed [receivership] order does not stateOr even suggest, that Atlantic Wave or [the receiver Robert] Berleth intend to seize (.S. government property.") Indeed, Cyberlux's blindly obsessive repetition of the same argument does not change the facts.
Dissipation of Assets Cyberlux contends that Atlantic Wave should "have no real concern whatsoever" about Cyberlux's conduct because it is "planning" to pay $1.4 million into the registry of the Virginia court. The Judgment was entered against Cyberlux in June of 2023 (and domesticated in Texas in July of 2024), so Cyberlux had over 22 months to interplead any disputed monies into the Virginia court registry (or over 9 months to interplead such monies into the Texas court registry). And Cyberlux still has nof interpleaded any monies into any court registry. (Ex. 1, II 1-3.) Thus, Cyberlux's purported plan to interplead funds is merely a hollow distraction.
The other concern that elevates the risk of unjustified dissipation of assets by Cyberlux are the number of other creditor claims against Cyberlux, e.g., as discussed in Atlantic Wave's letters, filed April 9 and May 15, 2025. Since those letters, a $1,631,221.32 judgment in favor of Thin Air Gear, LLC, is now pending entry by the Colorado federal court in Thin Air Gear, LLC, v. Cyberlux Corporation. (Case No. 1:25-cv-00805, Doc. 18, filed
May 16, 2025, attached as Exhibit 2.) Considering the prior dissipation of $38 million in September of 2023 by Cyberlux, among other questionable actions, there is a good faith basis to believe that Cyberlux will continue to take active steps to frustrate the recovery of monies due to its creditors, including Atlantic Wave. One such step was Cyberlux "amend[ing] its line of credit increasing the limit under the agreement [from $7 million] to $12.3 million" in April 2025 after defaulting on the agreement which is "collateralized by the accounts receivable, inventory and other assets related to the specific purchase orders [from government customers]." (Atlantic Wave Letter to Court, filed May 19, 2025, at Ex. A, pp. 44-46.) These other creditors' claims show the necessity of a receivership to preserve the status quo and minimize any risk of dissipation of assets by Cyberlux.
Cyberlux's deliberate conduct is not only frustrating efforts to recover monies due and owed to Atlantic Wave, but also needlessly increasing attorney fees and costs and taking up valuable time of the courts. Atlantic Wave respectfully requests the Court's prompt intervention, including but not limited to the appointment of a receiver.
Very truly yours, Bank A. Wallen
David A. Walton
I certify that on May 22, 2025, a true and correct copy of this document was served on all parties of record via electronic service from the court's ECF system for registered users, in accordance with Rule 21a of the Texas Rules of Civil Procedure.
By: /s/ David A. Walton
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Jemisha Gandhi on behalf of David Walton Bar No. 24042120 jgandhi@bellnunnally.com Envelope ID: 101174598 Filing Code Description: No Fee Documents
Filing Description: Letter to Court regarding Reply to Cyberlux Response Status as of 5/22/2025 3:38 PM CST
Case Contacts
Name
BarNumber
TimestampSubmitted
Status
David A.Walton
dwalton@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
LaDonna Arey
LArey@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
Sandra Meiners
smeiners@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Travis Vargo
tvargo@vargolawfirm.com
5/22/2025 3:28:07 PM
SENT
Roxanna Lock
rlock@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Shawn Grady
shawn@gradycollectionlaw.com
5/22/2025 3:28:07 PM
SENT
Jeff Brown
jbrown@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Bernadette Martin
bernadette@gradycollectionlaw.com
5/22/2025 3:28:07 PM
SENT
Records Department
Records@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
Hannah Petrea
hpetrea@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
Michael Poynter
mpoynter@vargolawfirm.com
5/22/2025 3:28:07 PM
SENT
Laurie DeBardeleben
Idebardeleben@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Micah Jackson
mjackson@berlethlaw.com
5/22/2025 3:28:07 PM
SENT
Sheli Davis
sdavis@berlethlaw.com
5/22/2025 3:28:07 PM
SENT
Katharine Clark
kclark@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Lena Brasher
lbrasher@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Frankie Huff
fhuff@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Alex Pennetti
apennetti@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Edward W.Gray, Jr.
EGray@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Tristian Harris
tharris@berlethlaw.com
5/22/2025 3:28:07 PM
SENT
Corinne Martin
cmartin@berlethlaw.com
5/22/2025 3:28:07 PM
SENT
Hannah Fischer
hfischer@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Jemisha Gandhi on behalf of David Walton Bar No. 24042120 jgandhi@bellnunnally.com Envelope ID: 101174598 Filing Code Description: No Fee Documents
Filing Description: Letter to Court regarding Reply to Cyberlux Response Status as of 5/22/2025 3:38 PM CST
Case Contacts
Hannah Fischer
hfischer@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Jocelin A. Tapia
jtapia@thompsoncoburn.com
5/22/2025 3:28:07 PM
SENT
Greg Nieman
gnieman@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
Jemisha Gandhi
jgandhi@bellnunnally.com
5/22/2025 3:28:07 PM
SENT
David M.Keithly
dkeithly@mortensontaggart.com
5/22/2025 3:28:07 PM
SENT
Unofficial Copy Office of Marido Burgess District Clerk
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