Complaint for Damages — Swarek v. MS Facilities 2020
Summary
A complaint for damages filed April 23, 2025 as Dkt 1 in No. 25-06007-JAW, within the Chapter 11 case of El Dorado Gas & Oil, Inc., No. 23-51715-JAW, in the Southern District of Mississippi. Thomas L. Swarek, as sole shareholder, sues MS Facilities, LLC individually and derivatively on behalf of the debtor, stating the trustee declined to pursue the claim. The complaint alleges that a $50,000,000.00 Mainstreet Loan entered on September 17, 2020, with MS Facilities as 95% lender and First Service Bank as administrative agent, was mishandled through control of loan proceeds, excessive charges and refusal of restructuring. It asserts breach of contract, lender liability, interference with business, fraud attributed through agency and breach of good faith, and seeks compensatory, consequential and punitive damages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 1 of 8
IN THE UNITED STATES BANKRUPCTY COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DISTRICT
IN RE: EL DORADO GAS & OIL, INC. CHAPTER 11
NO. 23-51715-JAW
THOMAS L. SWAREK, Interested Party, PLAINTIFFS
Individually and derivatively on behalf of EL
DORADO GAS & OIL, INC. Debtor
v. NO. ____________________
MS FACILITIES, LLC DEFENDANT
COMPLAINT FOR DAMAGES
COME NOW, Thomas L. Swarek, Interested Party, individually and derivatively on
behalf of El Dorado Gas & Oil, Inc., and for his Complaint for Damages against MS Facilities,
LLC, states the following:
1. El Dorado Gas & Oil, Inc. (“EDGO” or “the Corporation”) is an Arkansas
corporation in good standing and the Debtor in this matter.
2. EDGO was formed in 1979 and has conducted business since its inception.
3. Thomas L. Swarek, (“Swarek”) as an adult resident citizen of Mississippi and was
the sole shareholder and Chief Executive Officer of El Dorado Gas & Oil, Inc. at the time of the
actions complained of here and remains the sole shareholder through the current time.
4. This is not a collusive action to confer jurisdiction that this Court would otherwise
lack.
1
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 2 of 8
5. MS Facilities, LLC is a Delaware Limited Liability Company and may be served
with process upon Agents and Corporations, Inc., its Registered Agent, at 1201 Orange Street,
Suite 600, Once Commerce Center, Wilmington, Delaware 19801.
6. El Dorado Gas & Oil, Inc. is a Debtor in this Chapter 11 with an appointed Trustee
and that Trustee is unwilling to assert or pursue this claim against MS Facilities, therefore Thomas
L. Swarek, derivatively as shareholder has that ability under Rule 7023.1.
7. Swarek, through counsel, attempted to secure the agreement of the Trustee, but the
Trustee would not agree, accordingly Swarek dismissed a prior filed action in the name of the
Corporation.
8. Swarek as the sole shareholder fairly and adequately represents this interest of the
Corporation.
9. On September 17, 2020, El Dorado Gas & Oil, Inc. (“EDGO”) entered into the
Mainstreet Loan in the amount of $50,000,000.00 with First Service Bank (“FSB”) and MS
Facilities, LLC (“MSF”).
10. Prior to that time Swarek and EDGO had established a decades long relationship
with FSB and had borrowed and repaid to FSB substantial prior loans.
11. MSF is the lender for 95% of that loan and FSB is the lender for 5% of that loan.
12. The purpose of the loan was to reinvigorate the company and rehire dismissed staff,
amounting to 300 employees
13. In those Term Loan papers, MSF appointed FSB its administrative agent and FSB
has acted as the administrative agent of MSF since the loan was made in 2020.
14. MSF is therefore responsible for the actions of FSB as its administrative agent.
15. Though the loan closed on September 17, 2020, it was not funded until October 22,
2020, but interest was charged on the entire amount beginning on September 17, 2020.
2
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 3 of 8
16. This loan was made as part of the Coronavirus Aid, Relief, and Economic Security
(CARES) Act.
17. Those funds were placed in an account at FSB and FSB was the only party with
control over the use of those funds in that account.
18. For reasons that are unknown to Plaintiff, FSB several times moved $5,000,000
between different accounts.
19. MSF and FSB intentionally and without justification interfered with the business
of EDGO to the extent that EDGO was unable to comply with its obligations to Defendant.
20. From the commencement of the loan, MSF and FSB took control of the loan
proceeds well in excess of their authority under the Use of Proceeds provisions of the Term Loan
itself.
21. This at first caused delays in the operation of the business, but culminated in
denying and returning previously approved payments, to the detriment of EDGO and Swarek.
22. FSB and MSF never provided any kind of account statement or detail of the draw
that had been made against the loan proceeds.
23. MSF and FSB violated the terms and provisions of the August 3, 2020, directive
from the Federal Reserve entitled “Joint Statement on Additional Loan Accommodations Related
to COVID-19” regarding loan abatement and discriminated against EDGO in doing so.
24. These were conditions that applied, and they applied prior to execution of the
Mainstreet Loan in September of 2020.
25. As an example, FSB, as agent of MSL, commenced an action to remove EDGO
from the position of operator of oil wells in Texas, effectively forcing EDGO into a receivership.
26. In this way the MSL and FSB took literal control of EDGO away from its principal,
Swarek, controlling not only its bank accounts, but its business activities.
3
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 4 of 8
27. This dramatic interruption to the largest cash flow of these companies led to the
inability of EDGO to service the debt relating to the Mainstreet Loan.
28. FSB and MSF further took control of the bank account of EDGO and controlled
spending out of that account in such a way that hampered the business of EDGO, including
withholding and delaying certain advances and payments to the detriment of EDGO.
29. FSB and MSF failed to keep clear records regarding the loan and the account from
EDGO, hiding the exorbitant expenses charged to the loan from EDGO.
30. FSB and MSF were required to designate one person who would be well versed in
the details of the Mainstreet loan and other loans and options available to EDGO but failed to do
this to the detriment of EDGO.
31. FSB and MSF charged unreasonable and exorbitant expenses to the loan, including
private air travel.
32. FSB further promised, at the inception of the Mainstreet Loan, that restructuring,
modification and interest credits would be made available, consistent with the provisions of the
August 3, 2020, Joint Statement.
33. Rather than doing so, MSF and FSB refused these options and declared default,
without valid justification and despite offering these same benefits to others.
34. All of this amounts to overreaching and taking an active role in micromanaging the
decisions of EDGO to the dramatic detriment of EDGO and the value of Swarek’s interest in
EDGO.
35. In 2022, certain other parties and guarantors, including Swarek, were prepared to
make payment in the amount of $15,000,000, a sum sufficient for all of these obligations to be
brought current.
4
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 5 of 8
36. To facilitate this lump sum payment, Swarek and EDGO requested a subordination
of Plaintiff’s $4,000,000 secured position in certain equipment of EDGO.
37. This would have improved the collateral position of FSB and MSF.
38. FSB agreed to this action and confirmed that agreement in email communication,
but then reversed position when Thomas Grumbles personally and abruptly cancelled that
agreement.
39. MSF and FSB ultimately refused to do so and Swarek and EDGO lost access to that
$15,000,000 and the ability to then come current on the Term Loan obligation.
40. FSB has sued Swarek and EDGO in two lawsuits in the United States District Court
for the Southern District of Mississippi for $50,000,000 despite the fact that FBS holds only 5%
of the Mainstreet Loan.
41. FSB, as agent of MSF also improperly threatened Swarek’s wife with a
$60,000,000.00 lawsuit leading to intense pressure on that marriage and a divorce, harassed and
threatened Swarek with litigation and foreclosure in three states, Texas, Mississippi and Arkansas,
rathern that reasonably work with Swarek regarding this debt. All of these actions amount to
intentional or negligent infliction of emotional distress.
42. Plaintiff will specifically supplement this list of unlawful and illegal acts by FSB
and MSF.
43. These actions amount to a breach of contract and entitle EDGO and Swarek to
damages against MSF and damages to Swarek on account of the degradation of his ownership
interest and intentional or negligent infliction of emotional distress.
44. These actions create lender liability for MSF.
45. These actions amount to intentional interference with the business of EDGO and
the value of the ownership interest of Swarek.
5
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 6 of 8
46. These actions are discriminatory by the MSF and on information and belief, this
discrimination was driven by the fact the EDGO is in the business of producing oil and gas.
47. Violating these assurances made by the FSB, and described in the August 3, 2020
Joint Statement, to EDGO and Swarek and which EDGO and Swarek reasonably and justifiably
believed and relied upon directly led to the failure of EDGO and the liabilities asserted in this
litigation and amount to fraud by FSB, attributable to MSF because FSB is the agent of MSF.
48. MSF breached the Term Loan by unreasonably and without notice allowing its
agent FSB to sweep accounts, unreasonably and without notice allowing its agent FSB to refuse
to offer reasonable forbearance, unreasonably and without justification allowing its agent FSB to
charge exorbitant fees and interest, unreasonably and without justification refusing EDGO’s offer
to restructure the obligation owed under the Term Loan.
49. These actions, all attributable to MSF as principal of its agent FSB, also led to the
loss by Swarek, not only of the value of his shareholder interest, but liability on his guarantee.
50. These actions amount to a misuse of federal funds and a failure to comply with
regulatory requirements and practices.
51. These actions violate the covenant of good faith and fair dealing.
52. MSF acted in a willful manner or at least with gross negligence that could lead to
the imposition of punitive damages.
THEREFORE, Thomas L. Swarek, individually and derivatively on behalf of El Dorado
Gas & Oil, Inc. demand from Defendant MS Facilities, LLC damages in an amount necessary to
compensate them for the wrongful and improper acts described above, including but not limited
to compensatory, consequential and punitive damages and all of its attorney fees and expenses.
Thomas L. Swarek, individually and derivatively on behalf of El Dorado Gas & Oil, Inc. asks for
such other relief as this Court may find merited under the circumstances.
6
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 7 of 8
Respectfully submitted, this the 23rd day of April, 2025.
THOMAS L. SWAREK, INTERESTED PARTY,
INDIVIDUALLY AND DERIVATIVELY ON
BEHALF EL DORADO GAS & OIL, INC.
BY: /s/ Bradley T. Golmon
BRADLEY T. GOLMON, MSB #10261
Counsel for Defendants
OF COUNSEL:
HOLCOMB LAW GROUP
400 Enterprise Drive
Post Office Drawer 707
Oxford, Mississippi 38655
Phone: (662) 234-8775
Fax: (662) 238-7552
7
25-06007-JAW Dkt 1 Filed 04/23/25 Entered 04/23/25 10:14:06 Page 8 of 8
Before me the undersigned authority in and for the aforesaid county and state, this day
there personally appeared the within named THOMAS L. SWAREK, INDIVIDUALLY AND AS SOLE
SHAREHOLDER OF EL DORADO GAS & OIL, INC., who being duly sworn, on oath, that all of the
matters, things and allegations contained in said C OMPLAINT FOR D AMAGES are true and correct as
therein stated and that any allegation made on information and belief, Affiant verily believes to be
true.
\
By :
THOMAS L. SwAREK, INDIVIDUALLv AND AS
SOLE SHAREHOLDER OF EL DORADO GAS &
OIL, INC.
GIVEN UNDER MY HAND AND OFFICIAL SEAL, this the 4 Ap a. /
day of
2025 .
My Commission Expires:' - J - J p / - ~
af/eJ fk .fl, <
NtrYPublic
AJtdl
7
File and source
- File
- CASE_MSSB_25-06007_Swarek-v-MS-Facilities_doc1_COMPLAINT_2025-04-23.pdf
- Size
- 454,170 bytes
- SHA-256
- 65db8a73c817399b5d03e831a9077c09bbf27ba784b1fc8faae888e71886a286
- Original
- No public link identified.