/raid1/www/Hosts/bankrupt/TCR_Public/180926.mbx
T R O U B L E D C O M P A N Y R E P O R T E R
Wednesday, September 26, 2018, Vol. 22, No. 268
Headlines
1 GLOBAL: Seeks to Hire DSI, Appoint Restructuring Officers
1265 MCBRIDE: Delays Plan as NJ Flooding Hampers Marketing Efforts
260 SADDLEWOOD: $1.9M Private Sale of Novato Property Okayed
4 WEST HOLDINGS: Omega Provides Details on Proposed Credit Bid
4 WEST HOLDINGS: Panel Objects to Omega's "Redo" Credit Bid
4 WEST HOLDINGS: Panel Opposes Omega Bid to Compel Rent Payments
4 WEST HOLDINGS: PCO Files 3rd Report
ACTIVECARE INC: Lucy Thomson Named as Privacy Consumer Ombudsman
AGILE THERAPEUTICS: Care Capital No Longer Has Shares at Sept. 11
AMERICAN HOME: Court Dismisses D. Medford Suit vs U.S. Bank, et al.
APPALACHIAN LIGHTING: Taps Panovia Group as Special Counsel
ARABELLA EXPLORATION: Second Final Cash Collateral Order Entered
ARALEZ PHARMACEUTICALS: Taps A&M Healthcare as Financial Advisor
ARALEZ PHARMACEUTICALS: Taps RSM US as Tax Advisor
ARCHDIOCESE OF ST. PAUL: $1M Sale of Anoka Property to Grace Okayed
ARCIMOTO INC: Director Thurston Resigns; Two Directors Appointed
B&P DEVELOPMENT: Taps Aranda Real Estate as Broker
BARKLEY CONSULTING: Judge Signs Consent Final Cash Collateral Order
BETTA BURGER GROUP: Seeks Permission to Use Cash Collateral
BLUE EARTH: Court Affirms Disallowance of R. Florek's Claim 105
BOSTON LANGUAGE: Taps Cohen + Associates as Accountant
BROADSTREET PARTNERS: Moody's Afirms B2 CFR, Alters Outlook to Pos.
BROWARD COLLISON: Trustee's Sale of All Assets to TCA for $220K OKd
C & M AIR: Judge Signs Fifth Interim Cash Collateral Order
CAJ SOUTHWAY: May Use RIA LLC Cash Collateral on Interim Basis
CALHOUN SATELLITE: Court Terminates Use of CDS Cash Collateral
CAMBER ENERGY: Extends N&B Sale Agreement Closing Date to Sept. 26
CAROL LLOYD: Authorized to Use Cash Collateral on Interim Basis
CB SERVICES: Oct. 16 Plan Confirmation Hearing Set
CELLECTAR BIOSCIENCES: Osteosarcoma Cure Gets FDA ODD Designation
CELLECTAR BIOSCIENCES: Provides an Update on the FDA Import Alert
CHERYL DEAN: $250K Sale of Matagorda Property to Gibson Approved
CLICKAWAY CORP: Has Final Authority to Use Hexner Cash Collateral
COBRA WELL: Seeks Nov. 12 Plan Exclusivity Period Extension
COLOR SPOT: Dispute with Winters, et al., Withdrawn from Mediation
DALMATIAN FIRE: Case Summary & 13 Unsecured Creditors
DEPENDABLE AUTO: TBK, et al., Win Summary Judgment Bid vs Trustee
DIOCESE OF NEW ULM: Selling Hillesheim Memorial Farm for $1.5M
DIRECTBUY HOLDINGS: KCL Not Prevailing Party Under MSA, Ct. Says
DPW HOLDINGS: Further Amends Notes to Revise Amortization Schedule
DTI HOLDCO: Moody's Lowers CFR to B3, Outlook Negative
EARL DURON: $130K Sale of San Antonio Property to Ramirezes Okayed
ENERGY FUTURE: NEI Dispute with Elliot, et al., Can't be Mediated
ENERGY FUTURE: Order Disallowing NEI $275MM Termination Fee Upheld
FALLS OF LITTLETON: Voluntary Chapter 11 Case Summary
GARAFOLA PROPERTIES: Case Summary & 20 Largest Unsecured Creditors
GEOKINETICS INC: Post-Closing Dispute Deal w/ SAExploration Okayed
GEOKINETICS INC: Settling Post-Closing Dispute with SAExploration
GRAND VIEW FINANCIAL: Stocktons Buying Ventura Property for $660K
GREEN FIELD: Trustee Entitled to Recover $16.6MM from M. Moreno
GROM SOCIAL: 2 Officers Convert $500,000 Loans to Equity
HOOPER HOLMES: E. Frejka Appointed Consumer Privacy Ombudsman
IHEARTMEDIA INC: Amends Plan to Add Latest Unsecured Creditors
INTOWN COMPANIES: $10K Sale of Panama Property to Panama Assets OKd
JAGUAR HEALTH: Signs License Agreement with Knight Therapeutics
JEFFREY BERGER: $480K Sale of Williston Property to Rollis Approved
JOSEPH HEATH: $323K Sale of Ft. Lauderdale Property Approved
JOSEPH HEATH: $470K Sale of Alexandria Property to Whitford Okayed
KITTERY POINT: Court Nixes Bid to Lift Suspension of Proceedings
KRAUS CARPET: Foreign Representative Selling TPS Business to QEP
LEGACY RESERVES: Kirkland Served as Counsel on Reorganization
LINEN LOCKER: Eastern Funding Prohibits Further Cash Collateral Use
MAGEE GENERAL: Patient Care Ombudsman Not Necessary
MCMAHAN-CLEMIS INSTITUTE: Patient Care Ombudsman Not Necessary
MIAMI BEVERLY: Sets Bidding Procedures for All Assets
MICHAEL GALMOR: Hollis Auction of Yearling Cattle Approved
MODA INGLESIDE: Moody's Assigns B1 CFR, Outlook Stable
MONEYONMOBILE INC: CEO Resumes Probe of Alleged Accounting Fraud
MOTORS LIQUIDATION: Court Junks Trust's Bid for Leave to Appeal
MULTIFLORA GREENHOUSES: Case Summary & 20 Top Unsecured Creditors
NEW BERN: Court Junks Weaver, Travelers' Party Substitution Bid
NORTHERN OIL: Will Sell $350 Million Senior Notes to RBC Capital
ODYSSEY LOGISTICS: Moody's Raises CFR to B2, Outlook Stable
OSAGE WATER: Trustee Wins Partial Summary Ruling vs Hancock, et al.
PENINSULA RESEARCH: May Use Cash Collateral Through November 14
PINNACLE LAND: Court Dismisses Chapter 11 Case with Prejudice
POSTROCK ENERGY: W. Damon Bid to Toss Trustee Clawback Suit Granted
PRECIPIO INC: Completes $545K Final Drawdown From Investor Funding
PREFERRED CARE: HUD Affiliates Get Final Nod to Use Cash Collateral
PREFERRED PROVIDERS: Deborah Fish Named Patient Care Ombudsman
PRO-CARE INJURY: Court Dismisses Chapter 11 Case
PROVIDENCE WIRELESS: Solicitation Period Extension Denied as Moot
R & S ST. ROSE: BB&T's Proof of Claim Not Barred from Re-litigation
RAILYARD COMPANY: Bankr. Court Disallows RBC's $6.7MM Claim
RANDAL D. HAWORTH: PCO Files 1st Interim Report
RANDAL D. HAWORTH: Taps Gumbiner Savett as Accountant
REMARKABLE HEALTHCARE: Seeks Dec. 10 Exclusive Period Extension
RENNOVA HEALTH: CEO Lagan Approves Reverse Common Stock Split
RICH HONEY: Seeks Access to Cash Collateral Through Dec. 31
ROYAL AUTOMOTIVE: Final Cash Collateral Order Entered
S.A.M. GROUP: Case Summary & 6 Unsecured Creditors
SAMUELS JEWELERS: Pushes for Committee to Probe Alleged Fraud
SEARS HOLDINGS: ESL Submits Liability Management & Other Proposals
SEMLER SCIENTIFIC: Park West Has 6.2% Stake as of Sept. 13
SHILOH TIRE: Gets Final Nod to Use Cash Collateral Through Dec. 31
SJKWD LLC: Proposed Auction of All Personal Property Approved
SOTERA WIRELESS: Court Upholds Ruling Adjudicating Masimo's Claims
SPRING TREE: Court Stays J. Marshall's Claims vs American Credit
STAND-UP MULTI-POSITIONAL: Taps Professional Management Systems
STEWART DUDLEY: Magnify Trustee's $276K Sale of Condo Unit 1630 OKd
SUNSHINE SEATTLE: Chef KU Offers $154K for Henry's Taiwan Resto
TARA RETAIL: Dec. 19 Plan Confirmation Hearing Set
TECK RESOURCES: Moody's Affirms Ba1 CFR & Alters Outlook to Pos.
WALKER INNOVATION: Confirms Expected Liquidating Distribution Date
WALL STREET LANGUAGES: Ombudsman Recommends Sale of Assets
WALTER J. LEWIS: Ct. Reverses Summary Judgment in Favor of Trustee
WOODBRIDGE GROUP: $155K Sale of Mt. Holly's Carbondale Property OKd
WOODBRIDGE GROUP: $238K Sale of Three Carbondale Parcels Approved
WOODBRIDGE GROUP: $5.4M Sale of Old Maitland's Aspen Property OK'd
WOODBRIDGE GROUP: $75K Sale of Idared's Carbondale Property Okayed
WOODBRIDGE GROUP: $7M Sale of Imperial's Beverly Hill Property OK'd
WOODBRIDGE GROUP: $995K Sale of Moravian's Carbondale Property OK'd
YBARRA ENTERPRISES: Court Waives Appointment of PCO
*********
1 GLOBAL: Seeks to Hire DSI, Appoint Restructuring Officers
-----------------------------------------------------------
1 Global Capital LLC seeks approval from the U.S. Bankruptcy Court
for the Southern District of Florida to hire Development
Specialists, Inc. as restructuring advisor, and appoint Bradley
Sharp and Joseph Luzinski as chief restructuring officer and deputy
chief restructuring officer, respectively.
Mr. Sharp, president and chief executive officer of DSI, will
assume control of the operations of 1 Global Capital and its
affiliates, with the assistance of Mr. Luzinski.
As CRO, Mr. Sharp will also be responsible for the prosecution of
the Debtors' cases, including negotiations with creditors;
reconciliation of claims of creditors; investigation and pursuit of
claims against third parties; and confirmation of a bankruptcy
plan.
DSI will charge these hourly rates:
Bradley Sharp $640
Joseph Luzinski $620
Yale Bogen $500
Daniel Stermer $465
Shelly Cuff $325
Alexandra Youngman $230
Jack Donohue $230
DSI is "disinterested" as defined in section 101(14) of the
Bankruptcy Code, according to court filings.
The firm can be reached through:
Bradley D. Sharp
Development Specialists, Inc.
333 South Grand Avenue, Suite 4070
Los Angeles, CA 90071-1544
Phone: 213-617-2717
Email: bsharp@dsi.biz
About 1 Global Capital
1 Global Capital, LLC -- https://1stglobalcapital.com/ -- is a
direct small business funder offering an array of flexible funding
solutions, specializing in unsecured business funding and merchant
cash advances.
1 Global Capital LLC, based in Hallandale Beach, FL, and its
debtor-affiliates sought Chapter 11 protection (Bankr. S.D. Fla.
Lead Case No. 18-19121) on July 27, 2018. In the petition signed
by Steven A. Schwartz and Darice Lang, authorized signatories, 1st
Global Capital estimated $100 million to $500 million in assets and
liabilities as of the bankruptcy filing.
The Hon. Raymond B. Ray presides over the cases.
Paul J. Keenan Jr., Esq., at Greenberg Traurig LLP serves as
bankruptcy counsel. Epiq Corporate Restructuring, LLC is the
claims and noticing agent.
1265 MCBRIDE: Delays Plan as NJ Flooding Hampers Marketing Efforts
------------------------------------------------------------------
1265 McBride Ave., LLC, requests the U.S. Bankruptcy Court for the
District of New Jersey for an additional 120-day extension of the
exclusive periods of time within which only the Debtor may file a
plan of reorganization and solicit acceptances.
Thomas O'Beirne, the sole member of 1265 McBride Ave., LLC,
contends that the Debtor commenced the within bankruptcy proceeding
because (a) the costs to complete the build-out of an extension to
the building on the real property owned by the Debtor became
exorbitant, and could not continue to be funded, and (b) with the
objective of stopping any further construction on the Property
(since as of the time of the commencement of the bankruptcy
proceeding, a complete, enclosed building shell had been
constructed), and marketing the Property for sale.
Mr. O'Beirne relates that since the filing of the bankruptcy
proceeding, the Debtor has satisfied its fiduciary duties as a
debtor-in-possession, and has otherwise operated in accordance with
the Operating Guidelines published by the United States Trustee's
Office. In particular, the Debtor:
(a) closed its pre-petition bank accounts and opened new DIP
bank accounts at a banking institution authorized by the United
States Trustee's Office to maintain debtor-in-possession funds;
(b) continues to maintain insurance, and has provided the
United States Trustee's Office with insurance certificates
evidencing the Trustee's Office's status as a notification party
respecting such policies;
(c) has timely filed its initial monthly operating report, and
subsequently timely filed its regular monthly operating reports;
(d) has utilized the services only of professionals retained
by Bankruptcy Court Order, including its bankruptcy attorneys and
its accountant; and
(e) has retained the services of a real estate broker to aid
in the marketing of the Property.
Unfortunately, the significant rainfall which beset Northern New
Jersey approximately thirty days ago caused significant flooding at
the Property, which garnered wide-spread news coverage. Such has
hampered the Debtor's marketing efforts. According to the
information supplied by the duly retained broker, that flooding
condition, and the resulting publicity has materially impacted
interest in the purchase of the Property and as a result, the
marketing time-frame respecting the Property is likely to be longer
than originally anticipated.
Despite the flooding conditions which have hampered the Debtor's
efforts to sell the Property, both the retained broker and Mr.
O'Beirne continue to believe that a sale of the Debtor's Property
will result in the satisfaction of the Debtor's mortgage claim in
full, and the full payment of the remaining allowed claims against
the within bankruptcy estate.
About 1265 McBride Ave.
1265 McBride Ave. LLC owns a real property located at 1265-1267
McBridge Avenue Woodland Park, New Jersey, having an appraised
value of $6.63 million.
1265 McBride sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. D.N.J. Case No. 18-22659) on June 22, 2018. In the
petition signed by Thomas J. O'Beirne, sole member, the Debtor
disclosed $6.65 million in assets and $6.67 million in liabilities.
Judge John K. Sherwood presides over the case. The Debtor tapped
Rabinowitz, Lubetkin & Tully, LLC as its legal counsel; Steven A.
Reiss & Company, LLC as its accountant; and USA Tax Appeals LLC as
appraiser.
260 SADDLEWOOD: $1.9M Private Sale of Novato Property Okayed
------------------------------------------------------------
Judge Caryl E. Delano of the U.S. Bankruptcy Court for the Middle
District of Florida authorized 260 Saddlewood, LLC's California
Residential Purchase Agreement and Joint Escrow Instructions with
Ravi Kumar and Rosemary Kumar in connection with the private sale
of the real property located at 260 Saddlewood Drive, Novato,
California for $1,865,000.
The Debtor is authorized to consummate the sale of the Real
Property, pursuant to and in accordance with the terms and
conditions of the Sale Agreement, with an anticipated closing of
the Transaction to occur on Sept. 14, 2018. The Parties are
authorized to mutually agree to an extension of the Closing Date,
if necessary, without further order of the Court.
Upon the occurrence of the closing of the Transaction, the Debtor
is authorized and directed to disburse funds from the proceeds of
sale in accordance with the terms of the Sale Agreement and the
authorized attached estimated Closing Statement approved by the
Parties. The Authorized Disbursements will include, but are not
limited to, those payments necessary to satisfy the following
encumbrances on the Real Property that are held by creditors in the
case: (i) the mortgage lien held by Wells (original Deed of Trust
recorded December 20, 2004 in Marin County Official Records under
Recorder's Serial Number 2004-0106108), (ii) the Home Equity Line
of Credit lien held by BOA (original Deed of Trust recorded July
22, 2004 in Marin County Official Records under Recorder's Serial
Number 2004-0063778), and (iii) any other customary Seller paid
closing costs, transfer taxes, pro-rated real estate property taxes
and the commissions to the real estate broker, Sotheby's
International.
Subject to the Authorized Disbursements, and pursuant to 11 U.S.C.
Sections 105(a) and 363(f), the Real Property will be transferred
to the Buyers, as of the Closing Date, free and clear of all liens,
claims and encumbrances of any kind or nature whatsoever. The
property will be transferred free and clear of all Interests. All
such Interests of any kind or nature whatsoever will attach to the
net Proceeds of Sale.
The Debtor and its agents are directed to deposit all Proceeds of
Sale that remain after the Authorized Distributions are paid in
full into the DIP Account that is being maintained at Fifth Third
Bank, bearing Account Number 7923053982. No withdrawals from the
Account will be made by any party unless (i) such withdrawal is
authorized by this Court through a separate Order, and (ii) both
the Debtor's manager, Gregory Stranger, and the Debtor's counsel,
Mike Dal Lago, Esq., sign the appropriate documentation required
for such withdrawal. However, the Debtor is authorized, without
further order of the Court, to make (i) any payment to the Office
of the United States Trustee for the payment of quarterly fees, and
(ii) any payment to a post-petition creditor of this estate for
maintenance or utilities related to the Property, so long as such
Administrative Fees do not eceed $1,500 in the aggregate.
The Order will be immediately effective and enforceable upon entry,
and the 14-day stay period contemplated in Rule 6004(h) of the
Federal Rules of Bankruptcy Procedure, to the extent applicable,
will not apply.
About 260 Saddlewood
260 Saddlewood, LLC listed its business as single asset real estate
(as defined in 11 U.S.C. Section 101(51B)). It is the fee simple
owner of a real property located at 260 Saddlewood Drive, Novato,
California, having an appraised value of $1.69 million.
260 Saddlewood sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. M.D. Fla. Case No. 18-03847) on May 9, 2018. In the
petition signed by Gregory Stranger, manager, the Debtor disclosed
$1.69 million in assets and $1.43 million in liabilities.
The Debtor tapped Michael R. Dal Lago, Esq., at Dal Lago Law, as
its legal counsel.
4 WEST HOLDINGS: Omega Provides Details on Proposed Credit Bid
--------------------------------------------------------------
BankruptcyData.com reported that Orianna Health Systems' Creditor
OHI Asset RO (the "Omega Entities") filed documents which provide
further detail as to its plans to credit bid for assets of the
Debtors (the “Omega Bid”).
BankruptcyData noted that the notice accompanying the documents
states, "Both to amend and clarify certain terms of the Omega Bid,
and to facilitate comparison of the competing bids of the Omega
Entities and the Purchaser in connection with the scheduled
hearings on the Credit-Bid Motion and the Sale Motion." The summary
notes, "The Omega Entities will credit-bid (i) the entire balance
due under that certain "DIP Facility" authorized and funded in
accordance with the DIP Financing Order, and (ii) so much of their
prepetition claims as is necessary to exceed the highest offer
submitted by any other qualifying bidder. As a result of the
credit-bid, the DIP Facility will be deemed indefeasibly paid in
full. Any portion of the Omega Entities prepetition claims against
the Debtors that are not included as part of the foregoing
credit-bid will be waived by the Omega Entities, and the Omega
Entities will not share in any distribution from the Debtors'
estates. As a result, consummation of the Omega Bid will satisfy
all prepetition and postpetition claims of the Omega Entities
against the Debtors. Assuming the Omega Entities receive a credit
of $205 million against their prepetition claims based on the
Debtors' recent valuation of the Transfer Portfolio and credit-bid
a further $227 million as part of the Omega Bid, the remaining
unsecured deficiency claim to be waived by the Omega Entities would
be approximately $172 million."
About 4 West Holdings
4 West Holdings, Inc., et al. -- http://www.orianna.com/-- are
licensed operators of 41 skilled nursing facilities and manage on
skilled nursing facility located in seven states: Georgia, Indiana,
Mississippi, North Carolina, South Carolina, Tennessee and
Virginia. In addition, one of related entity, Palladium Hospice
and Palliative Care, LLC f/k/a Ark Hospice, LLC provides hospice
and palliative care services at certain of the Facilities and other
third party locations. They employ approximately 5,000 people,
including but not limited to, nurses, nursing assistants, social
workers, regional directors and supervisors.
4 West Holdings, Inc., and 134 of its affiliates and subsidiaries
filed voluntary petitions in the U.S. Bankruptcy Court for the
Northern District of Texas in Dallas seeking relief under the
provisions of Chapter 11 of the U.S. Bankruptcy Code (Bankr. N.D.
Tex. Lead Case No. 18-30777) on March 6, 2018, with a restructuring
plan that contemplates the transfer of 22 facilities to new
operations.
The Debtors continue to operate their businesses and manage their
properties as debtors-in-possession. 4 West Holdings estimated $10
million to $50 million in assets and $50 million to $100 million in
liabilities as of the filing.
The Hon. Harlin DeWayne Hale is the case judge.
The Debtors tapped DLA Piper LLP (US) as bankruptcy counsel;
Houlihan Lokey as investment banker; Crowe Horwath LLP as financial
advisor; Ankura Consulting Group, LLC, as interim management
services provider; and Rust Consulting/Omni Bankruptcy as claims
agent.
The Office of the U.S. Trustee on March 19, 2018, appointed an
official committee of unsecured creditors. The Committee tapped
Norton Rose Fulbright US LLP as its legal counsel, and CohnReznick
LLP as its financial advisor.
4 WEST HOLDINGS: Panel Objects to Omega's "Redo" Credit Bid
-----------------------------------------------------------
BankruptcyData.com reported that Orianna Health Systems' Official
Committee of Unsecured Creditors filed with the Court an objection
to the motion of OHI Asset RO and certain of its affiliates
(collectively, "Omega") which requested Court authority to credit
bid up to $300 million in any asset sale carried out by the
Debtors.
BankruptcyData related that the objection asserts, "Although the
gavel has fallen and the auction concluded, Omega, the Debtors'
alleged landlord and post-petition debtor-in-possession lender,
rises, after-the-fact, seeking relief to undo or re-open the
Auction in hopes of extracting additional value from the Debtors'
estates without paying the freight of these consolidated chapter 11
cases, and with the hope of walking away from the various
representations it has made to this Court, as well as the deals it
struck with the Debtors and the Committee. Omega simply wants a
redo. Such a redo is not appropriate and should be denied."
About 4 West Holdings
4 West Holdings, Inc., et al. -- http://www.orianna.com/-- are
licensed operators of 41 skilled nursing facilities and manage on
skilled nursing facility located in seven states: Georgia, Indiana,
Mississippi, North Carolina, South Carolina, Tennessee and
Virginia. In addition, one of related entity, Palladium Hospice
and Palliative Care, LLC f/k/a Ark Hospice, LLC provides hospice
and palliative care services at certain of the Facilities and other
third party locations. They employ approximately 5,000 people,
including but not limited to, nurses, nursing assistants, social
workers, regional directors and supervisors.
4 West Holdings, Inc., and 134 of its affiliates and subsidiaries
filed voluntary petitions in the U.S. Bankruptcy Court for the
Northern District of Texas in Dallas seeking relief under the
provisions of Chapter 11 of the U.S. Bankruptcy Code (Bankr. N.D.
Tex. Lead Case No. 18-30777) on March 6, 2018, with a restructuring
plan that contemplates the transfer of 22 facilities to new
operations.
The Debtors continue to operate their businesses and manage their
properties as debtors-in-possession. 4 West Holdings estimated $10
million to $50 million in assets and $50 million to $100 million in
liabilities as of the filing.
The Hon. Harlin DeWayne Hale is the case judge.
The Debtors tapped DLA Piper LLP (US) as bankruptcy counsel;
Houlihan Lokey as investment banker; Crowe Horwath LLP as financial
advisor; Ankura Consulting Group, LLC, as interim management
services provider; and Rust Consulting/Omni Bankruptcy as claims
agent.
The Office of the U.S. Trustee on March 19, 2018, appointed an
official committee of unsecured creditors. The Committee tapped
Norton Rose Fulbright US LLP as its legal counsel, and CohnReznick
LLP as its financial advisor.
4 WEST HOLDINGS: Panel Opposes Omega Bid to Compel Rent Payments
----------------------------------------------------------------
BankruptcyData.com reported that Orianna Health Systems LLC's
Official Committee of Unsecured Creditors filed with the Court an
objection to a motion filed by OHI Asset RO (collectively, with
certain affiliates, "the Omega Entities") that would compel payment
of postpetition lease obligations and related restructuring support
agreement (RSA) obligations.
According to BankruptcyData, the objection asserts, "The Committee
objects to the Motion, and demands strict proof from Omega in
connection with the relief requested. Quite simply, the Committee
is unable to square the relief Omega seeks by the Motion with: (i)
Omega's prior statements and commitments to this Court; (ii)
Omega's Motion for Authority To Submit Credit Bid; as well as (iii)
the previous relief requested by, and granted to, Omega in these
consolidated cases. The relief sought in the Motion should be
denied pending a final non-appealable determination of: (i) the
Committee's Objection to Omega's Proof of Claim; (ii) the
Committee's adversary proceeding seeking re-characterization of
certain of the Debtors' Master Leases with Omega; (iii) the
Committee's Motion for Standing and the potential claims and causes
of action asserted therein; (iv) the Committee's Objection to
Omega's Credit Bid Motion; (v) the Debtors' Motion for Valuation of
Transfer Portfolio and Application of Proceeds to Debtors'
Obligations under Senior Secured Superpriority Debtor-in-Possession
Credit Agreement and Working Capital Loan Agreement (the 'Valuation
Motion'); (vi) the Debtors' Motion To Sell Property Free And Clear
Of Liens; and (vii) the Court's determination of the allocation of
the proceeds received from the sale of the Debtors' assets,
including, but not limited to, a determination of the value of the
Debtors' unencumbered assets and the enhanced value realized by
Debtors’ estates as a result of the relief granted in these
consolidated bankruptcy cases. The relief requested is not only
inappropriate but will also render the Debtors' estates
administratively insolvent. Accordingly, the relief requested
should be denied (or at least deferred) until the health, welfare
and safety of the Debtors' residents is secured and not at issue."
About 4 West Holdings
4 West Holdings, Inc., et al. -- http://www.orianna.com/-- are
licensed operators of 41 skilled nursing facilities and manage on
skilled nursing facility located in seven states: Georgia, Indiana,
Mississippi, North Carolina, South Carolina, Tennessee and
Virginia. In addition, one of related entity, Palladium Hospice
and Palliative Care, LLC f/k/a Ark Hospice, LLC provides hospice
and palliative care services at certain of the Facilities and other
third party locations. They employ approximately 5,000 people,
including but not limited to, nurses, nursing assistants, social
workers, regional directors and supervisors.
4 West Holdings, Inc., and 134 of its affiliates and subsidiaries
filed voluntary petitions in the U.S. Bankruptcy Court for the
Northern District of Texas in Dallas seeking relief under the
provisions of Chapter 11 of the U.S. Bankruptcy Code (Bankr. N.D.
Tex. Lead Case No. 18-30777) on March 6, 2018, with a restructuring
plan that contemplates the transfer of 22 facilities to new
operations.
The Debtors continue to operate their businesses and manage their
properties as debtors-in-possession. 4 West Holdings estimated $10
million to $50 million in assets and $50 million to $100 million in
liabilities as of the filing.
The Hon. Harlin DeWayne Hale is the case judge.
The Debtors tapped DLA Piper LLP (US) as bankruptcy counsel;
Houlihan Lokey as investment banker; Crowe Horwath LLP as financial
advisor; Ankura Consulting Group, LLC, as interim management
services provider; and Rust Consulting/Omni Bankruptcy as claims
agent.
The Office of the U.S. Trustee on March 19, 2018, appointed an
official committee of unsecured creditors. The Committee tapped
Norton Rose Fulbright US LLP as its legal counsel, and CohnReznick
LLP as its financial advisor.
4 WEST HOLDINGS: PCO Files 3rd Report
-------------------------------------
Melanie L. Cyganowski, Patient Care Ombudsman for 4 West Holdings,
Inc., et al., filed a third report, telling the Court that she has
found no indication that the Debtors' bankruptcy filings have
adversely impacted operations or the quality of treatment and care
provided to the patients. The PCO believes patients continue to
receive at least the same quality of treatment and care from
dedicated professionals that they experienced prior to the
commencement of these Cases.
The PCO states, "Based on my continued visits to the facilities and
my conversations with administrators and staff, it is evident that
the Company remains patient-focused and committed to providing
quality and compassionate care at the highest level.
Administrators and staff at the local level appear calm and focused
on their responsibilities and tasks at their respective facility
and removed from the distractions that may be caused by or
attendant with a bankruptcy filing. Indeed, the common response I
received from the administrators and staff was that it was
'business as usual' at their respective facility. Moreover, while
there may been a few questions from patients and their families
about the bankruptcy when it was first filed, or when they received
notices from the Bankruptcy Court (e.g., bar date notice), the
facilities, overall, are not frequently receiving any
bankruptcy-related questions. The same is true as to the
employees."
A full-text copy of the PCO's Third Report is available at:
http://bankrupt.com/misc/txnb18-30777-943.pdf
About 4 West Holdings
4 West Holdings, Inc., et al. -- http://www.orianna.com/-- are
licensed operators of 41 skilled nursing facilities and manage on
skilled nursing facility located in seven states: Georgia, Indiana,
Mississippi, North Carolina, South Carolina, Tennessee and
Virginia. In addition, one of related entity, Palladium Hospice
and Palliative Care, LLC f/k/a Ark Hospice, LLC provides hospice
and palliative care services at certain of the Facilities and other
third party locations. They employ approximately 5,000 people,
including but not limited to, nurses, nursing assistants, social
workers, regional directors and supervisors.
4 West Holdings, Inc., and 134 of its affiliates and subsidiaries
filed voluntary petitions in the U.S. Bankruptcy Court for the
Northern District of Texas in Dallas seeking relief under the
provisions of Chapter 11 of the U.S. Bankruptcy Code (Bankr. N.D.
Tex. Lead Case No. 18-30777) on March 6, 2018, with a restructuring
plan that contemplates the transfer of 22 facilities to new
operations.
The Debtors continue to operate their businesses and manage their
properties as debtors-in-possession. 4 West Holdings estimated $10
million to $50 million in assets and $50 million to $100 million in
liabilities as of the filing.
The Hon. Harlin DeWayne Hale is the case judge.
The Debtors tapped DLA Piper LLP (US) as bankruptcy counsel;
Houlihan Lokey as investment banker; Crowe Horwath LLP as financial
advisor; Ankura Consulting Group, LLC, as interim management
services provider; and Rust Consulting/Omni Bankruptcy as claims
agent.
The Office of the U.S. Trustee on March 19, 2018, appointed an
official committee of unsecured creditors. The Committee tapped
Norton Rose Fulbright US LLP as its legal counsel, and CohnReznick
LLP as its financial advisor.
ACTIVECARE INC: Lucy Thomson Named as Privacy Consumer Ombudsman
----------------------------------------------------------------
Pursuant to Section 332 of the Bankruptcy Code and the Bankruptcy
Court's order directing the United States Trustee to appoint a
consumer privacy ombudsman, Andrew R. Vara, Acting United States
Trustee for Region 3, appoints Lucy Thomson to serve as the
consumer privacy ombudsman in ActiveCare, Inc.'s bankruptcy case.
A hearing for approval of a proposed sale of the Debtors' assets is
scheduled for September 27, 2018.
About ActiveCare Inc.
ActiveCare, Inc. -- https://www.activecare.com/ -- is a real-time
health analytics and monitoring company that provides self-insured
health plans with solutions that significantly reduce the impact
and cost of diabetes.
ActiveCare, Inc., along with affiliates 4G Biometrics, LLC, sought
Chapter 11 protection (Bankr. D. Del. Lead Case No. 18-11659) on
July 15, 2018. In the petitions signed by CEO Mark J. Rosenblum,
ActiveCare, Inc., declared total assets of $2,623,458 and
$41,787,746 in liabilities.
The Hon. Laurie Selber Silversteinis the case judge.
The Debtors tapped Polsinelli PC, led by Christopher A. Ward, Esq.,
as counsel.
The U.S. Trustee appointed an official committee of unsecured
creditors. The Committee tapped Orrick, Herrington & Sutcliffe LLP
and Klehr Harrison Harvey Branzburg, LLP, as co-counsel, and RSR
Consulting, LLC, as financial advisor.
AGILE THERAPEUTICS: Care Capital No Longer Has Shares at Sept. 11
-----------------------------------------------------------------
In a Schedule 13G/A filed with the Securities and Exchange
Commission, Care Capital III LLC, Care Capital Investments III LP
and Care Capital Offshore Investments III LP disclosed that as of
Sept. 11, 2018, they have ceased to beneficially own shares of
common stock of Agile Therapeutics, Inc.
Care Capital III LLC is the general partner of Care Capital
Investments III LP and Care Capital Offshore Investments III LP and
as a result, Care Capital III LLC has the ultimate power to vote or
direct the vote and to dispose or direct the disposition of such
shares.
A full-text copy of the regulatory filing is available at:
https://is.gd/Cs6S4E
About Agile Therapeutics
Agile Therapeutics, headquartered in Princeton, New Jersey --
http://www.agiletherapeutics.com/-- is a forward-thinking women's
healthcare company dedicated to fulfilling the unmet health needs
of today's women. The Company's product candidates are designed to
provide women with contraceptive options that offer freedom from
taking a daily pill, without committing to a longer-acting method.
Its lead product candidate, Twirla, (ethinyl estradiol and
levonorgestrel transdermal system), also known as AG200-15, is a
once-weekly prescription contraceptive patch that has completed
Phase 3 trials. Twirla is based on Agile's proprietary transdermal
patch technology, called Skinfusion, which is designed to provide
advantages over currently available patches and is intended to
optimize patch adhesion and patient wearability.
The report from the Company's independent accounting firm Ernst &
Young LLP, the Company's auditor since 2010, on the consolidated
financial statements for the year ended Dec. 31, 2017, includes an
explanatory paragraph stating that the Company has suffered
recurring losses from operations, has experienced delays in the
approval of its product candidate and has stated that substantial
doubt exists about the Company's ability to continue as a going
concern.
Agile reported a net loss of $28.30 million in 2017, a net loss of
$28.74 million in 2016 and a net loss of $30.33 million in 2015.
As of June 30, 2018, Agile had $36.60 million in total assets,
$10.35 million in total current liabilities and $26.25 million in
total stockholders' equity.
AMERICAN HOME: Court Dismisses D. Medford Suit vs U.S. Bank, et al.
-------------------------------------------------------------------
District Judge Morrison C. England, Jr. granted the Defendants'
motion to dismiss the case captioned DEBRA LYNN MEDFORD, Plaintiff,
v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for CMALT REMIC
2006-A2, REMIC PASS-THROUGH CERTIFICATES, SERIES 2006-A2;
CITIMORTGAGE, INC.; CITICORP MORTGAGE SECURITIES, INC.; NORTHWEST
TRUSTEE SERVICES, INC.; and DOES 1 through 20 inclusive,
Defendants, No. 2:17-cv-01783-MCE-GGH (E.D. Cal.).
Plaintiff Debra Lynn Medford seeks declaratory and injunctive
relief as well as restitution and other costs from Defendants U.S.
Bank Association, CitiMortgage Inc., Citicorp Mortgage Securities,
Inc. , and Northwest Trustee Services related to the parties'
rights and duties under Plaintiff's mortgage loan. Generally
speaking, Plaintiff alleges that there are major defects in the
assignments of the Deed of Trust ("DOT") and Substitution of
Trustee to her mortgage loan. The Complaint sets forth three causes
of action: (1) cancellation of instruments; (2) violation of
California Business and Professions Code section 17200, et seq.;
and (3) declaratory relief.
Defendants argue that Plaintiff lacks standing to challenge the
assignment on the basis that a foreclosure has not taken place.
Defendants assert that under California law Plaintiff must suffer a
harm or particular injury, in this case a foreclosure, in order to
have standing to challenge the assignment of the DOT. Because no
foreclosure sale has taken place, Defendants argue the Complaint
fails and the matter must be dismissed.
The Complaint mentions, in passing, foreclosure proceedings under
the Second Cause of Action for Unfair Competition, but not under
the First Cause of Action for Cancellation of Instruments or under
the section reciting general factual allegations. Under California
Civil Code section 2924, upon a lender's request, a trustee starts
the nonjudicial foreclosure process by recording a notice of
default, and after a three-month waiting period the trustee may
then record a notice of sale. Nowhere in her Complaint does
Plaintiff allege that foreclosure proceedings have been initiated,
and the Complaint is void of allegations discussing a notice of
default or notice of sale.
Plaintiff has not pled facts supporting a claim that foreclosure
proceedings have actually been initiated. She alleges nothing
regarding a notice of default or notice of sale. Nor does
Plaintiff's Complaint include a wrongful foreclosure cause of
action. Without alleging an injury, Plaintiff lacks standing to
pursue her claims. Defendants' motion to dismiss is therefore
granted. Because the Court finds amendment may not be futile under
these circumstances, Plaintiff will be given the opportunity to
file an amended complaint that, at a minimum, alleges a harm, such
as a foreclosure or an impending trustee sale.
A copy of the Court's Memorandum and Order dated Sept. 7, 2018 is
available at https://bit.ly/2MPOELr from Leagle.com.
Debra Lynn Medford, Plaintiff, represented by Jason W. Estavillo,
Law Office of Jason W. Estavillo.
U.S. Bank National Association, as Trustee for Cmalt Remic 2006-A2,
Remic Pass-Through Certificates, Series 2006-A2, Citimortgage, Inc.
& Citicorp Mortgage Securities, Inc., Defendants, represented by
Douglas Antonio Alvarez -- doug.alvarez@bclplaw.com -- Bryan Cave
Leighton Paisner LLP, Tracy M. Talbot -- tracy.talbot@bclplaw.com
-- Bryan Cave, LLP & Alexandra Costanza Whitworth –
Alexandra.whitworth@bclplaw.com -- Bryan Cave Leighton Paisner
LLP.
About American Home
Defunct subprime mortgage lender American Home Mortgage Investment
Corp. (NYSE: AHM) -- http://www.americanhm.com/-- based in
Melville, New York, and seven affiliates filed for Chapter 11
protection on Aug. 6, 2007 (Bankr. D. Del. Case Nos. 07-11047
through 07-11054). James L. Patton, Jr., Esq., Joel A. Waite,
Esq., and Pauline K. Morgan, Esq. at Young, Conaway, Stargatt &
Taylor LLP represent the Debtors. Epiq Bankruptcy Solutions LLC
acts as the Debtors' claims and noticing agent. The Official
Committee of Unsecured Creditors selected Hahn & Hessen LLP as
counsel. The Creditors Committee also retained Hennigan, Bennett &
Dorman LLP, as special conflicts counsel. As of March 31, 2007,
American Home Mortgage's balance sheet showed total assets of
$20,553,935,000 and total liabilities of $19,330,191,000.
AHM filed a de-consolidated plan of liquidation on Aug. 15, 2008.
The plan was confirmed in February 2009. The plan was implemented
in November 2010.
APPALACHIAN LIGHTING: Taps Panovia Group as Special Counsel
-----------------------------------------------------------
Appalachian Lighting Systems, Inc. seeks approval from the U.S.
Bankruptcy Court for the Western District of Pennsylvania to hire
Panovia Group, LLP as special counsel.
The firm will provide the Debtor with legal advice on matters
related to its intellectual property.
Panovia Group will charge an hourly fee of $315 for its services.
Derek Jardieu, Esq., at Panovia Group, disclosed in a court filing
that no one in his firm has connection with the Debtor's creditors
or any "party in interest."
The firm can be reached through:
Derek J. Jardieu, Esq.
Panovia Group, LLP
1629 K St. NW Suite 300
Washington, DC 20006
About Appalachian Lighting Systems
Founded in 2007, Appalachian Lighting Systems, Inc. --
http://www.alled.co/-- specializes in the development and
manufacturing process of solid-state lighting (SSL). The company
makes solid-state lighting solutions for small and large area
outdoor and indoor applications. These fixtures are engineered to
deliver at least 150,000 hours of maintenance-free operation and to
provide 70 to 90 percent energy savings compared to the traditional
lights they replace. The company is based in Ellwood City,
Pennsylvania, where it designs, engineers and manufactures its
product.
Appalachian Lighting Systems, Inc., based in Ellwood City,
Pennsylvania, filed a Chapter 11 petition (Bankr. W.D. Pa. Case No.
17-24454) on Nov. 3, 2017. In the petition signed by James J.
Wassel, president, the Debtor estimated $1 million to $10 million
in both assets and liabilities. The Hon. Gregory L. Taddonio
presides over the case. Robert O Lampl, Esq., at the Law Office of
Robert Lampl, serves as bankruptcy counsel.
ARABELLA EXPLORATION: Second Final Cash Collateral Order Entered
----------------------------------------------------------------
The Hon. Russell F. Nelms of the U.S. Bankruptcy Court for the
Northern District of Texas has signed a second final order
authorizing Arabella Exploration, LLC, and its affiliates to use
the cash collateral Platinum Partners Credit Opportunities Master
Fund, LP, on a final basis solely in accordance with and to the
extent set forth in the Budget.
The Debtors have an immediate need for cash to preserve and protect
the assets of the Estates, to facilitate the settlement of ongoing
litigation filed by Founders Oil & Gas III, LLC, and Founders Oil &
Gas Operating, LLC, against the Debtors in the Chapter 11 cases,
and to facilitate the sale of substantially all assets of Debtors
for the benefit of Debtors' creditors.
The Debtors are authorized on a final basis to use the Cash
Collateral for the sole purpose of paying the Founders JIBs
Payments. The Debtors may not use cash collateral in any manner or
for any purpose other than as explicitly set forth in the Second
Final Order or further order of the Court.
However, none of the Cash Collateral which the Debtors propose to
use includes collateral or proceeds thereof which are subject to
liens, of (i) Sooner Pipe, LLC, or (ii) other parties in interest,
in each case, to the extent that Sooner Pipe, LLC or such party in
interest is determined by the Court to have a valid and existing
secured claim against any asset of a Debtor in these Cases, which
such finding is outside the scope of the Second Final Order.
Platinum Partners is granted valid, binding, enforceable and
perfected replacement liens upon and security interests in all of
each Debtor's property and assets, pursuant to Sections 361 and 363
of the Bankruptcy Code. However, nothing in the Second Final Order
will be construed to prime or subordinate (i) the tax liens of the
ad valorem taxing entities or (ii) the liens of Sooner Pipe, LLC,
to the extent Sooner Pipe, LLC, is determined by the Court to have
a valid and existing secured claim against any asset of a Debtor in
these Cases.
Platinum Partners is also granted pursuant to Sections 503, 507(a)
and 507(b) of the Bankruptcy Code, an allowed superpriority
administrative expense claim in an amount equal to the Diminution
in Value.
A full-text copy of the Second Final Order is available at:
http://bankrupt.com/misc/txnb17-40120-436.pdf
About Arabella Exploration
Arabella Exploration, LLC, formed on Oct. 2, 2009, is a wholly
owned subsidiary of Arabella Exploration, Inc., a Cayman Islands
corporation. It is an oil and gas exploration company that owns
working interests in a number of oil and gas properties and
interests.
Arabella Exploration filed a voluntary petition for relief under
Chapter 11 of the Bankruptcy Code (Bankr. N.D. Tex. Case No.
17-40120) on Jan. 8, 2017. Charles (Chip) Hoebeke, manager, signed
the petition.
Arabella Operating, LLC, filed a Chapter 11 petition (Bankr. N.D.
Tex. Case No. 17-41479) on April 4, 2017. The case is being
jointly administered with that of Arabella Exploration.
Arabella Exploration estimated $1 million to $50 million in assets
and liabilities.
Judge Russell F. Nelms in Ft. Worth, Texas, is the case judge.
Raymond W. Battaglia, Esq., of the Law Offices of Ray Battaglia,
PLLC, serves as counsel to the Debtor. Miller Johnson serves as
Battaglia's co-counsel. Rehmann Turnaround and Receivership's
Charles Hoebeke is the Debtor's chief restructuring officer.
EnergyNet.com, Inc., is the oil and gas broker.
No trustee, examiner or committee has been appointed in the case.
ARALEZ PHARMACEUTICALS: Taps A&M Healthcare as Financial Advisor
----------------------------------------------------------------
Aralez Pharmaceuticals US Inc. seeks approval from the U.S.
Bankruptcy Court for the Southern District of New York to hire
Alvarez & Marsal Healthcare Industry Group, LLC, as its financial
advisor.
The firm will assist the company and its affiliates in implementing
a restructuring plan; assist in preparing financial-related
disclosures; participate in discussions with creditors, potential
investors and secured lenders; provide expert witness testimony;
conduct an evaluation and analysis of avoidance actions; and
provide other financial advisory services related to the Debtors'
Chapter 11 cases.
A&M will charge these hourly rates:
Managing Director $775 - $975
Director/Senior Director $600 - $750
Associate/Senior Associate $450 - $575
Analyst/Staff $375 - $425
A&M received $350,000 as a retainer in connection with the
preparation for the cases. In the 90 days prior to the petition
date, the firm received retainers and payments totaling $980,185.
Martin McGahan, Managing Director of A&M, disclosed in a court
filing that his firm does not have any interest adverse to the
interests of the Debtors' estates, creditors or equity security
holders.
The firm can be reached through:
Martin McGahan
Alvarez & Marsal Healthcare Industry Group, LLC
Monarch Tower
3424 Peachtree Road NE, Suite 1500
Atlanta, GA 30326
Phone: +1 404-644-3484 / +1 404-260-4040
Fax: +1 404-260-4090
Email: mmcgahan@alvarezandmarsal.com
About Aralez Pharmaceuticals
Aralez Pharmaceuticals Inc. -- http://www.aralez.com/-- is a
specialty pharmaceutical company focused on delivering products to
improve patients' lives by acquiring, developing and
commercializing products in various specialty areas.
The Company together with its affiliates filed for Chapter 11
protection on Aug. 10, 2018 (Bankr. S.D.N.Y. Lead Case No.
18-12425). The Debtor estimated assets and liabilities between
$100 million and $500 million.
The Hon. Martin Glenn presides over the Debtors' Chapter 11 cases.
The Debtors tapped Willkie Farr & Gallagher LLP, as their counsel;
Alvarez & Marsal Healthcare Industry Group, LLC as restructuring
and financial advisor; Moelis & Company as investment banker; RSM
US LLP as tax advisor; and Prime Clerk LLC as claims, noticing and
solicitation agent.
ARALEZ PHARMACEUTICALS: Taps RSM US as Tax Advisor
--------------------------------------------------
Aralez Pharmaceuticals US Inc. seeks approval from the U.S.
Bankruptcy Court for the Southern District of New York to hire RSM
US LLP as its tax advisor.
The services to be provided by the firm include tax compliance for
all U.S. federal, state and local jurisdictions; tax support
services and consultation work; and transfer pricing calculations
and documentation required for international related party
transactions.
The fee for the U.S. compliance activities for 2018 is $115,000.
Meanwhile, the professional fees for tax support services and
consultation work will be billed at RSM's standard hourly rates:
Partner $720 – $770
Senior Manager $500 – $540
Manager $450 – $500
Senior Associate $275 – $330
Associate $210 – $250
The fees for transfer pricing calculations and documentation
support will be billed at RSM's standard hourly rates. The firm
has agreed to cap fees for these services at $50,000 and has
provided these estimates for each service:
Master File Update $13,000
US Local File Update $6,000
Canada Local File Update $6,000
Ireland Local File Update $15,000
Luxembourg Local File $10,000
Matthew Scaliti, a partner at RSM, disclosed in a court filing that
his firm is "disinterested" as defined in section 101(14) of the
Bankruptcy Code.
The firm can be reached through:
Matthew Scaliti
RSM US LLP
151 West 42nd Street, 19th Floor
New York, NY, 10036
Phone: 212.372.1000
About Aralez Pharmaceuticals
Aralez Pharmaceuticals Inc. -- http://www.aralez.com/-- is a
specialty pharmaceutical company focused on delivering products to
improve patients' lives by acquiring, developing and
commercializing products in various specialty areas.
The Company together with its affiliates filed for Chapter 11
protection on Aug. 10, 2018 (Bankr. S.D.N.Y. Lead Case No.
18-12425). The Debtor estimated assets and liabilities between
$100 million and $500 million.
The Hon. Martin Glenn presides over the Debtors' Chapter 11 cases.
The Debtors tapped Willkie Farr & Gallagher LLP, as their counsel;
Alvarez & Marsal Healthcare Industry Group, LLC as restructuring
and financial advisor; Moelis & Company as investment banker; RSM
US LLP as tax advisor; and Prime Clerk LLC as claims, noticing and
solicitation agent.
ARCHDIOCESE OF ST. PAUL: $1M Sale of Anoka Property to Grace Okayed
-------------------------------------------------------------------
Judge Robert J. Kressel of the U.S. Bankruptcy Court for the
District of Minnesota authorized Archdiocese of Saint Paul and
Minneapolis' sale of the property located in Anoka County,
Minnesota, described as Lot 10, Block 1, Totino Grace Addition,
Anoka County, Minnesota, to Grace High School for $1 million.
The Debtor is authorized to pay from the proceeds of sale any and
all customary closing or title fees and expenses and all other
expenses, if any, required to be paid under the terms of the
Purchase, Sale and Release Agreement (Grace High School) dated as
of Aug. 7, 2018.
Subject to the conditions in the Agreement, the waiver and release
of the claims by the Archdiocese and its bankruptcy estate against
the Buyer, as set forth in
the Agreement, are approved.
The Debtor and the Buyer are authorized to cause the purchase price
to be paid and disbursed in accordance with the provisions of the
purchase agreement and the plan.
Notwithstanding Fed. R. Bankr. P. 6004(h), the order is effective
immediately.
About the Archdiocese of St. Paul
The Archdiocese of Saint Paul and Minneapolis was originally
established by the Vatican in 1850 and serves a geographical area
consisting of 12 greater Twin Cities metro-area counties in
Minnesota, including Ramsey, Hennepin, Anoka, Carver, Chicago,
Dakota, Goodhue, Le Sueur, Rice, Scott, Washington, and Wright
counties. There are 187 parishes and approximately 825,000
Catholic individuals in the region. These individuals and parishes
are served by 3,999 priests and 173 deacons.
The Archdiocese of St. Paul and Minneapolis filed for Chapter 11
protection (Bankr. D. Minn. Case No. 15-30125) in Minnesota on Jan.
16, 2015, saying it has large and growing liabilities related to
child sexual abuse and that its pension obligations are
underfunded.
The Debtor disclosed $45,203,010 in assets and $15,890,460 in
liabilities as of the Chapter 11 filing.
The Debtor has tapped Briggs and Morgan, P.A., as Chapter 11
counsel; BGA Management LLC, d/b/a Alliance Management, as
financial advisor; Lindquist & Vennum LLP as attorney; Regnier
Consulting Group, Inc., as loss reserve analyst; and
CliftonLarsonAllen LLP, as accountant.
The U.S. Trustee appointed five creditors to serve on the Committee
of Parish Creditors. STINSON LEONARD STREET LLP is the Committee's
counsel. The Committee tapped Lamey Law Firm, P.A., as its
conflict counsel.
Other dioceses across the county have commenced Chapter 11
bankruptcy cases to address and settle claims from current and
former parishioners who say they were sexually molested by priests.
ARCIMOTO INC: Director Thurston Resigns; Two Directors Appointed
----------------------------------------------------------------
Thomas Thurston, a member of the Board of Directors of Arcimoto,
Inc., informed the Company on Sept. 19, 2018, that he is resigning
from the Board effective that day. Mr. Thurston's resignation did
not involve any disagreement with the Company on any matter
relating to the Company's operations, policies or practices,
according to a Form 8-K filed by the Company with the Securities
and Exchange Commission.
On Sept. 19, 2018, the Board appointed Jesse G. Eisler and Joshua
S. Scherer as directors, to hold office until the Company's 2019
annual meeting of shareholders or until their successors are duly
elected and qualified. Following the appointment of Dr. Eisler and
Mr. Scherer, the Board is now majority independent for purposes of
the NASDAQ Stock Market listing rules.
Additionally, following the appointment of Dr. Eisler and Mr.
Scherer, the committees of the Board were reconfigured. The Audit
Committee, Compensation Committee and Nominating and Corporate
Governance Committee are now comprised of Jeff Curl, Dr. Eisler and
Mr. Scherer (all of whom are independent under the relevant SEC and
NASDAQ Stock Market listing rules). Mr. Curl, who meets the
requirements of Item 407(d)(5)(ii) of Regulation S-K as an "audit
committee financial expert," will continue to chair the Audit
Committee and Mr. Scherer will chair the Compensation Committee and
Nominating and Corporate Governance Committee.
Arcimoto said there are no arrangements or understandings between
Dr. Eisler or Mr. Scherer and any other person pursuant to which
either Dr. Eisler or Mr. Scherer were appointed as directors of the
Board and there are no related party transactions between Dr.
Eisler or Mr. Scherer and the Company.
About Arcimoto, Inc.
Headquartered in Eugene, Oregon, Arcimoto, Inc. (NASDAQ: FUV) --
http://www.arcimoto.com/-- is engaged primarily in the design and
development of ultra-efficient three-wheeled electric vehicles.
Over the course of its first ten years, the Company designed built
and tested eight generations of prototypes, culminating in the Fun
Utility Vehicle. The Fun Utility Vehicle is a pure electric
solution that is approximately a quarter of the weight, takes up a
third of the parking space of, and is dramatically more efficient
than the average passenger car in the United States.
The report from the Company's independent accounting firm
DBBMckennon, the Company's auditor since 2016, on the consolidated
financial statements for the year ended Dec. 31, 2017, includes an
explanatory paragraph stating that the Company has suffered
recurring losses from operations and has earned limited revenues
from its intended operations, which raises substantial doubt about
its ability to continue as a going concern.
Arcimoto incurred a net loss of $3.31 million in 2017 and a net
loss of $1.91 million in 2016. As of June 30, 2018, Arcimoto had
$14.30 million in total assets, $2.54 million in total liabilities
and $11.75 million in total stockholders' equity.
B&P DEVELOPMENT: Taps Aranda Real Estate as Broker
--------------------------------------------------
B&P Development, LLC, seeks approval from the U.S. Bankruptcy Court
for the Western District of Texas to hire a real estate broker.
The Debtor proposes to employ Aranda Real Estate in connection with
the sale of its real property located at 615 E. Gibbs Street, Del
Rio, Texas.
Aranda will get a commission of 6% of the gross sales price. The
firm may divide the commission with any broker representing the
buyer. All fees will be paid from the sale of the property.
Jose Aranda, a broker employed with Aranda, disclosed in a court
filing that he is "disinterested" as defined in section 101(14) of
the Bankruptcy Code.
The firm can be reached through:
Jose Aranda
Aranda Real Estate
2149 Del Rio Blvd., Suite 203
Eagle Pass, TX 78852
Phone: +1 830-968-7766
About B&P Development
B&P Development filed a Chapter 11 petition (Bankr. W.D. Tex. Case
No. 18-10525) on April 26, 2018. In the petition signed by Jeffrey
Mitchell, member, the Debtor disclosed $1.13 million in assets and
$1.33 million in liabilities. The Hon. Tony M. Davis presides over
the case. Stephen W. Sather, Esq., at Barron & Newburger, PC,
serves as bankruptcy counsel.
BARKLEY CONSULTING: Judge Signs Consent Final Cash Collateral Order
-------------------------------------------------------------------
The Hon. Karen K. Specie of the U.S. Bankruptcy Court for the
Northern District of Florida has signed a consent final order
granting Barkley Consulting Engineers, Inc., final authority to use
the cash collateral of the Internal Revenue Service.
The Debtor is authorized to use cash collateral for payment of the
current necessary, reasonable and ordinary expenses of the Debtor
as set forth on the Budget, not to exceed the amounts set forth in
the sub-categories on the Budget, by more than 5% monthly pro-rated
for the term of the Final Order. During the Budget Period, the
Debtor's expenditures will be limited to those expenditures
specifically authorized in the Budget, where amounts are so
provided, on a cumulative line-by-line basis, with no carry-over
surplus to any other line item(s).
The Debtor is directed to maintain its cash and cash equivalents,
post-petition, equal to those amounts which were present when the
petition was filed. In addition, the Debtor will not disburse any
amounts to insiders absent further order of the Court, and will not
pay any pre-petition debt except as may be specifically authorized
by the Court, upon proper notice, motion and hearing.
The IRS will continue to have and is granted a replacement lien and
security interest in all presently owned and hereinafter acquired
property, assets and rights of any kind or nature of the Debtor
wherever located to the same extent, validity, and priority that
the IRS held a perfected lien or security interest as of the date
of commencement of the bankruptcy case.
As further protection for the IRS' claimed interest in the cash
collateral, and consistent with Section 552 of the Bankruptcy Code,
proceeds, products, rents and profits of the Debtor's Cash
Collateral coming into existence or acquired by the Debtor on or
after the commencement of this case are subject to the pre-petition
security interests of the IRS, if any.
The Debtor will file with the Court (and provide a copy to Counsel
for the IRS) a monthly report which will compare the monthly budget
versus actual income and expenses of Barkley, not later than the
20th of the following month.
A full-text copy of the Order is available at
http://bankrupt.com/misc/flnb18-40315-91.pdf
About Barkley Consulting
Barkley Consulting Engineers, Inc., filed a Chapter 11 petition
(Bankr. N.D. Fla. Case No. 18-40315), on June 12, 2018. In the
petition signed by Douglas Barkley, president, the Debtor estimated
$0 to $50,000 in assets and $500,000 to $1 million in liabilities.
The Debtor is represented by Thomas B. Woodward, Esq.
BETTA BURGER GROUP: Seeks Permission to Use Cash Collateral
-----------------------------------------------------------
Betta Burger Group, LLC - Series A requests the U.S. Bankruptcy
Court for the Northern District of Illinois to enter an order
permitting it to use cash collateral belonging to Byline Bank.
The Debtor believes that there are prepetition liens on its
business assets property in favor of Byline Bank in the approximate
amount of $600,000. The Debtor assures the Court, however, that
Byline Bank will not be harmed by the use of cash collateral
generated from the assets and proceeds thereof.
Accordingly, the Debtor proposes that Byline Bank be granted
replacement liens upon the Debtor's assets subsequent to the filing
of the Chapter 11 petition to the extent of the collateral
utilized, subject to verification of the extent and validity of the
liens. In addition, as adequate protection, the Debtor proposes to
make monthly adequate protection payment to Byline Bank in the
amount of $2,500 per month.
The Debtor asserts that its use of cash collateral will cause
little, if any, harm to Byline Bank. Conversely, the harm to the
Debtor will be substantial because the use of cash collateral is
essential to its status as a going concern. The Debtor believes
that Byline Bank is fully protected for the value of its lien based
on the continued operation of the business.
A full-text copy of the Debtor's Motion is available at
http://bankrupt.com/misc/ilnb18-18394-25.pdf
About Betta Burger Group
Betta Burger Group LLC filed a Chapter 11 petition (Bankr. N.D.
Ill. Case No. 18-18394) on June 28, 2018. In the petition signed
by Faysil Mohamed, managing member, the Debtor estimated $0 to
$50,000 in assets and $500,001 to $1 million in liabilities. The
Debtor is represented by Ben L. Schneider, Esq. of Schneider &
Stone.
BLUE EARTH: Court Affirms Disallowance of R. Florek's Claim 105
---------------------------------------------------------------
In the appeals case captioned TERESA JEAN MOORE, Appellant, v. BLUE
EARTH, INC., Appellee, Case No. 17-cv-03905-WHO (N.D. Cal.),
Appellant Teresa Jean Moore, the assignee of Robert C. Florek's
Claim 105 in Blue Earth, Inc.'s bankruptcy case, challenges the
disallowance and subordination of Claim 105 by the Hon. Dennis
Montali of the U.S. Bankruptcy Court for the Northern District of
California. District Judge William H. Orrick agrees with the
findings and conclusions of Judge Montali that Claim 105 is
unenforceable against Blue Earth or, alternatively, is
subordinated, and accordingly affirms.
Moore's first argument is that Judge Montali did not apply the
appropriate standard for assessing a claim, failing to give it
prima facie validity and forcing Blue Earth to come forward with
proof of its invalidity. Blue Earth counters that Claim 105 is not
entitled to prima facie validity because: (i) Claim 105 fails to
establish Blue Earth's liability; (ii) Claim 105 fails to establish
how the asserted claim amount of $997,123.88, which is inconsistent
with other amounts in Claim 105, was calculated; and (iii) in
violation of Bankruptcy Rules 3001(c) and (d), Claim 105 asserts a
secured claim but fails to attach any security agreement or
evidence of perfection thereof. Blue Earth also emphasizes that it
was not involved in Florek's transaction, which was with MPS, a
mere subsidiary and affiliate of Blue Earth that was unaffiliated
with Blue Earth at the time of the transaction.
Because Judge Montali concluded, with ample grounds, that Claim 105
did not run to Blue Earth and could not be enforced as a debt of
Blue Earth, its "prima facie validity" is irrelevant. But going to
the merits of Claim 105, the Court concludes that it is
unenforceable and would have been subordinated to common shares in
Blue Earth.
Judge Montali held that Claim 105 is not enforceable against Blue
Earth because "the transaction on which Florek bases his claim did
not involve [Blue Earth]." As explained by Judge Montali, Florek's
claim is based on his 5 percent interest in the MPS acquisition,
and Florek himself contends that MPS' assets--which were
subsequently acquired by Blue Earth's wholly-owned
subsidiary--secure that 5% interest. Thus, "the liability [Florek]
asserts against [Blue Earth] arises from his acquisition of an
equity interest from MPS, not [Blue Earth]." Reaching the heart of
the issues actually argued by Moore and Blue Earth before the
Bankruptcy Court, the Court agrees with Judge Montali's
determination that Blue Earth is not liable for Claim 105.
The Court also notes that Moore was granted a great deal of process
and multiple opportunities in Bankruptcy Court to make her
arguments. Neither Florek nor Moore sought any discovery between
the October 2016 filing of the Claim and the initial April 2017
hearing. The Bankruptcy Court's rulings followed several rounds of
briefing, hearings, and a motion for reconsideration. The
Bankruptcy Court appropriately concluded that Moore was not
entitled to discovery because it "rendered its decision as a matter
of law and any disputed facts [were] immaterial to the court's
determination. The Court agrees that additional evidence would not
alter the finding that Claim 105 is not enforceable against Blue
Earth and would be subject to subordination regardless. Judge
Montali's denial of discovery, first raised on the motion for
reconsideration, was not an abuse of discretion.
In sum, the Bankruptcy Court did not err in finding that Claim 105
is not enforceable against Blue Earth or, in the alternative, that
Claim 105 is subordinated. The Bankruptcy Court also did not abuse
its discretion in denying Moore further discovery. For the
foregoing reasons, the Court affirms the Bankruptcy Court's
disallowance and subordination of Claim 105.
A full-text copy of the Court's Order dated Sept. 12, 2018 is
available at https://bit.ly/2DjYNAx from Leagle.com.
Teresa J. Moore, Appellant, pro se.
Blue Earth, Inc., Appellee, represented by Debra I. Grassgreen --
dgrassgreem@pszjlaw.com -- Pachulski Stang Ziehl & Jones LLP,
Elliot Lutzker , Davidoff Hutcher & Citron LLP, Jason Henry Rosell
-- jrosell@pszjlaw.com -- Pachulski Stang Ziehl and Jones LLP, John
William Lucas -- jlucas@pszjlaw.com -- Pachulski Stang et al,
Malhar Shriniwas Pagay , Pachulski Stang et al & Paul Marc
Rosenblatt , Kilpatrick Townsend and Stockton LLP.
Robert C. Florek, Interested Party, pro se.
About Blue Earth
Blue Earth, Inc., and its subsidiaries are comprehensive providers
of alternative/renewable energy solutions for small and
medium-sized commercial and industrial facilities. Blue Earth
builds, manages, owns and operates independent power generation and
management systems geared towards helping commercial and industrial
building owners save energy and money, and reduce their carbon
footprint.
Blue Earth, Inc., and Blue Earth Tech, Inc., filed Chapter 11
bankruptcy petitions (Bankr. N.D. Calif., Case Nos. 16-30296 and
16-30297) on March 21, 2016. The petitions were signed by Robert
G. Powell as CEO. The Debtors' other subsidiaries are not included
in the filing.
The Debtors estimated both assets and liabilities in the range of
$10 million to $50 million.
Pachulski, Stang, Ziehl & Jones LLP serves as the Debtors' counsel.
Eos Capital Advisors LLC and Ice Glen Associates, LLC act as
valuators of the Debtors' assets. Kurtzman Carson Consultants LLC
represents the Debtors as claims and noticing agent.
A 2-member panel has been appointed to serve as the Official
Committee of Unsecured Creditors in the case.
Judge Dennis Montali has been assigned the cases.
BOSTON LANGUAGE: Taps Cohen + Associates as Accountant
------------------------------------------------------
The Boston Language Institute, Inc., received approval from the
U.S. Bankruptcy Court for the District of Massachusetts to hire
Cohen + Associates, LLC, as its accountant.
The firm will assist the Debtor in the preparation and filing of
its tax returns; prepare reconciliations, projections and other
financial statements to comply with the directives of the Office of
the U.S. Trustee; assist in confirmation of the Debtor's bankruptcy
plan; and provide other accounting services.
Cohen will charge these hourly rates:
Partner $350
Senior Partner $223
Bookkeeper $100
Marc Cohen, a certified public accountant employed with Cohen,
disclosed in a court filing that he and other members of the firm
neither hold nor represent any interest adverse to the Debtor's
estate.
The firm can be reached through:
Marc A. Cohen
Cohen + Associates, LLC
151 Tremont Street, Suite PH
Boston, MA, 02111
Phone: 617-542-2122
Fax: 617-542-2030
Email: info@cohenassoc.com
About The Boston Language Institute
The Boston Language Institute, Inc., sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. D. Mass. Case No.
18-12508) on June 29, 2018. At the time of the filing, the Debtor
estimated assets of less than $50,000 and liabilities of less than
$50,000.
Judge Joan N. Feeney presides over the case. The Debtor tapped Law
Offices of John F. Sommerstein as its legal counsel.
BROADSTREET PARTNERS: Moody's Afirms B2 CFR, Alters Outlook to Pos.
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Moody's Investors Service has affirmed the B2 corporate family
rating and B2-PD probability of default rating of BroadStreet
Partners, Inc., and the B2 ratings on the company's senior secured
credit facilities. Moody's changed BroadStreet's rating outlook to
stable from negative based on the company's plans to maintain
financial leverage in a range that is consistent with the existing
ratings along with its continued good EBITDA margins.
RATINGS RATIONALE
According to Moody's, the affirmation of BroadStreet's ratings
reflects the company's steady growth in middle market insurance
brokerage, diversification across clients and carriers, good EBITDA
margins and solid free cash flow metrics. BroadStreet's unique
co-ownership model of acquiring majority interests in large
agencies and allowing these partners to operate fairly autonomously
differentiates it from other privately held rated brokers.
These strengths are tempered by the company's elevated financial
leverage, execution and contingent risks associated with majority
investments in core agencies, and exposure to errors and omissions,
a risk inherent in professional services.
For the 12 months through June 2018, Moody's estimates that
BroadStreet had a pro forma debt-to-EBITDA ratio in the range of
6x-6.5x and (EBITDA - capex) interest coverage around 2.5x. These
metrics reflect Moody's accounting adjustments for operating
leases, noncontrolling interest expenses, contingent earnout
liabilities, and run-rate earnings from completed acquisitions.
Such financial leverage is appropriate for BroadStreet's rating
category, and the rating agency expects the company to keep it
below 6.5x through earnings growth from existing and acquired
operations.
Factors that could lead to an upgrade of BroadStreet's ratings
include: (i) debt-to-EBITDA ratio below 5.5x, (ii) (EBITDA - capex)
coverage of interest consistently exceeding 2.5x, (iii)
free-cash-flow-to-debt ratio consistently exceeding 6%, and (iv)
successful integration of acquisitions.
Factors that could lead to a rating downgrade include: (i)
debt-to-EBITDA ratio above 6.5x, (ii) (EBITDA - capex) coverage of
interest below 1.5x, or (iii) free-cash-flow-to-debt ratio below
3%.
Moody's has affirmed the following ratings (and loss given default
(LGD) assessments):
Corporate family rating at B2;
Probability of default rating at B2-PD;
$100 million senior secured revolving credit facility maturing in
2021 at B2 (LGD3);
$594 million ($592 million outstanding) senior secured term loan
maturing in 2023 at B2 (LGD3).
The outlook for the ratings is stable.
The principal methodology used in these ratings was Insurance
Brokers and Service Companies published in June 2018.
Headquartered in Columbus, Ohio, BroadStreet ranked as the
14th-largest US insurance broker based on 2017 revenue, according
to Business Insurance. The company generated total revenue in
excess of $480 million for the 12 months through June 2018.
BROWARD COLLISON: Trustee's Sale of All Assets to TCA for $220K OKd
-------------------------------------------------------------------
Judge Raymond B. Ray of the U.S. Bankruptcy Court for the Southern
District of Florida authorized Soneet R. Kapila, the Trustee for
Broward Collison, Inc., to sell substantially all assets of the
Debtor to TCA Broward Collision, LLC for $220,000.
The Trustee's sale of the Assets is free and clear of all liens,
claims, encumbrances, or interests except for the Senior Lien
Rights held by the Senior Lien Holders.
The Asset Purchase Agreement, including the Trustee's release
contained in Section 11.2 therein is approved.
Upon the cure payments set forth, the Trustee is deemed to have,
assumed the Paint Booth Lease and the Warehouse Lease; and (b)
assigned the Paint Booth Lease and the Warehouse Lease to the
Buyer.
The Purchase Price will be paid and allocated as set forth.
The Trustee and the Buyer are authorized and directed to perform
their respective obligations under the APA so as to close and
consummate the sale approved.
Except as may expressly be set forth in or contemplated by either
the Order or the APA, any right, title or interest the Debtor or
Trustee has in the Assets will be sold "as is, where is," and "how
is" without any representation or warranty of any type whatsoever,
including the implied warranties of merchantability or fitness for
a particular purpose, if applicable, which are each specifically
waived by the Buyer.
The 14-day stay set forth in Federal Rule of Bankruptcy Procedure
is waived.
A copy of the APA attached to the Motion is available for free at:
http://bankrupt.com/misc/Broward_Collision_91_Sales.pdf
About Broward Collision
Broward Collision, Inc., is one of the largest established
independent facilities located in Sunrise serving West Broward.
Broward Collision is a strong, solid name in the industry offering
one of the largest licensed and certified collision repair
facilities in West Sunrise.
Broward Collision filed pro se a voluntary petition under chapter
11 of the U.S. Bankruptcy Code (Bankr. S.D. Fla. Case No.
18-17492)on June 22, 2018, estimating under $1 million in assets
and liabilities. The Debtor later hired Rachamin "Rocky" Cohen,
Esq., at Cohen Legal Services, PA, is the Debtor's counsel.
Soneet Kapila was appointed as the Chapter 11 Trustee of Broward
Collision on Aug. 20, 2018. The Trustee hired Furr Cohen, P.A., as
attorney.
C & M AIR: Judge Signs Fifth Interim Cash Collateral Order
----------------------------------------------------------
The Hon. Ronald B. King of the U.S. Bankruptcy Court for the
Western District of Texas has signed a fifth interim order
authorizing C & M Air Cooled Engine, Inc., to use cash collateral
to pay the Debtor's business expenses in accordance with a budget.
The cash flow projection through Aug. 31, 2018 provides total
budgeted expenses in the aggregate sum of $524,644 and total actual
expenses in the aggregate sum of $358,962.
Since 2008, Wells Fargo Commercial Distribution Finance, LLC
(WFCDF) has provided floor plan financing to the Debtor with which
the Debtor acquired inventory from manufacturers for resale to
customers, pursuant to the parties' Inventory Financing Agreement.
Under the IFA, the Debtor granted to WFCDF a security interest in
all of the Debtor's then owned or after acquired accounts,
inventory, equipment, fixtures, other goods, general intangibles,
chattel paper, deposit accounts, investment property, documents,
and all products and proceeds of the foregoing, which included the
goods acquired by the Debtor with WFCDF's purchase money financing
to be held as inventory.
As of the Petition Date, the amount of the Debtor's indebtedness to
WFCDF under the WFCDF Pre-petition Loan Agreements is alleged by
WFCDF to be at least $1,292,021 in unpaid principal and accrued
interest of $11,345 as of March 31, 2018.
TCF Inventory Finance, Inc. (TCFIF), entered into an Inventory
Security Agreement with the Debtor, pursuant to which, the Debtor
granted TCFIF a security interest in assets of Debtor in order to
secure the obligations of Debtor to TCFIF under the Agreement.
TCFIF claims a purchase money security interest in the TCFIF
Financed Inventory. As of April 23, 2018, the outstanding
obligation owed to TCFIF by Debtor is alleged by TCFIF to be
$1,944,599, plus accrued interest.
The Debtor's records indicate that Texas First State Bank is a
secured creditor with an indebtedness of approximately $2,235,825
and claims a lien on substantially all of the Debtor's assets.
As adequate protection for the interests of WFCDF and Texas First
State Bank and TCFIF, the Debtor will timely make the following
payments:
(a) With respect to WFCDF, upon the sale of any WFCDF Financed
Inventory or the receipt of proceeds therefrom, the Debtor will
segregate and hold in trust for WFCDF the amount of such proceeds
equal to the amount financed by WFCDF for the acquisition thereof
and accrued interest thereon and, not later than the first business
day of each week, remit to WFCDF via wire transfer the WFCDF Payoff
Amount for all collections during the preceding week. The Debtor is
authorized to pay off the debt owed to WFCDF from cash collateral
as set forth in the Budget.
(b) With respect to TCFIF, upon the pre- or post-petition sale
of any inventory financed by TCFIF or the receipt of proceeds from
any pre- or post-petition sale of any inventory financed by TCFIF,
the Debtor will segregate and hold in trust for TCFIF the amount of
such proceeds equal to the amount financed by TCFIF for the
acquisition thereof and accrued interest thereon and, not later
than the first business day of each week, remit to TCFIF via wire
transfer the TCFIF Payoff Amount for all collection during the
preceding week.
(c) The Debtor will make the adequate protection payments to
Texas First Bank as provided in the budget.
(d) With respect to PNC Equipment Finance, LLC (PNC), upon the
pre- or post-petition sale of any "End of Term Equipment" as
defined in the Debtor's vendor operating agreement with PNC or the
receipt of proceeds from any pre- or post-petition sale of any End
of Term Equipment owned by PNC, the Debtor will segregate and hold
in trust for PNC the amount of such proceeds equal to PNC's booked
residual amount and, not later than the first business day of each
week, remit to PNC via wire transfer the PNC Residual Amount for
all collection during the preceding week.
(e) With respect to Redexim USA B.V., upon the pre- or
postpetition sale of any inventory sold by Redexim pursuant to the
Exclusive Distributorship and Security Agreement or the receipt of
proceeds from any pre- or post-petition sale of any Redexim
Inventory, the Debtor will segregate and hold in trust for Redexim
the amount of such proceeds equal to the cost of such items.
(f) With respect to Crader Distributing Company ("CDC"), upon
the sale of any inventory sold by CDC pursuant to a Distribution
Agreement or the receipt of proceeds from any pre- or post-petition
sale of any CDC Inventory on or after June 5, 2018, the Debtor will
segregate and hold in trust for CDC the amount of such proceeds
equal to the cost of such items ("CDC Payoff Amount") and, not
later than the first business day of every other week, remit to CDC
via wire transfer the CDC Payoff Amount for all collection during
the preceding two weeks together with an accounting for the same.
Beginning on June 5, 2018, Debtor will also pay $6,000 per week for
six weeks and $3,500.00 in the seventh week as adequate protection
for sales occurring prior to June 5, 2018.
The Secured Creditors are each granted valid, binding, enforceable
and fully perfected first priority liens with the same priority as
each such creditor enjoyed immediately prior to the filing of the
Debtor's petition for bankruptcy relief.
WFCDF's liens, security interests and super-priority claims granted
under this Order will be subject to the following limited and
narrow carve-outs: (a) any unused prepetition retainer held by
Debtor's counsel to the extent of such counsel’s unpaid fees and
expenses that are allowed by the Court; provided that the final
cash collateral order may include professional fees as a budgeted
item; (b) fees required to be paid under 28 U.S.C. Section
1930(a)(6) or to the Clerk of the Bankruptcy Court; and (c) if this
Chapter 11 case is converted to Chapter 7, there will be a separate
aggregate carve-out of $10,000 that may be used for reasonable,
approved fees and expenses of a Chapter 7 trustee.
The Debtor will maintain adequate and comprehensive loss insurance
on the Collateral in at least the amount of the Pre-Petition
Indebtedness.
A full-text copy of the Fifth Interim Order is available at
http://bankrupt.com/misc/txwb18-60249-171.pdf
About C & M Air Cooled
C & M Air Cooled Engine, Inc., is a family-owned and operated
company that owns a lawn and garden equipment and supplies stores
based in Waco, Texas, with locations in Albuquerque, New Mexico;
Commerce City, Colorado; and San Antonio, Texas. Founded in 1978, C
& M offers outdoor power equipment, parts and service.
C & M Air Cooled Engine sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. W.D. Tex. Case No. 18-60249) on April 3,
2018. In the petition signed by Linda Darlyne Mathis,
vice-president, the Debtor estimated assets of less than $50,000
and liabilities of $1 million to $10 million. Judge Ronald B. King
presides over the case.
CAJ SOUTHWAY: May Use RIA LLC Cash Collateral on Interim Basis
--------------------------------------------------------------
The Hon. Joan N. Feeney of the U.S. Bankruptcy Court for the
District of Massachusetts signs an interim order authorizing CAJ
Southway Plaza LLC to use the rental revenue and other collateral
claimed by JPMBB 2013-C15 Rhode Island Avenue, LLC ("RIA LLC").
The Debtor is authorized to use rental revenue to pay for the
operating expenses incurred in accordance with the Budget until the
earliest to occur of (a) October 16, 2018 or the occurrence of a
Termination Event.
A further interim hearing on the Debtor's continued use of cash
collateral will be conducted by the Court on October 16, 2018 at
10:15 a.m. Any objections must be filed by October 15.
RIA LLC is granted a first priority post-petition security interest
and lien in, to and against all of the Debtor's assets, to the same
priority, validity and extent that RIA LLC held a properly
perfected pre-petition security interest in such assets, which are
or have been acquired, generated or received by the Debtor
subsequent to the Petition Date, but excluding any claims or
recoveries by or on behalf of the Debtor, its estate or ay trustee
appointed in Debtor's case.
The Debtor will also make payment, which includes escrows for real
estate taxes and insurance, to RIA LLC in the aggregate amount of
$83,495, as provided in the Budget. The determination of the
application of such payments to principal, interest or otherwise
will be reserved for further Order of the Court.
In addition, RIA LLC is granted an allowed, superpriority
administrative expense claim under section 507(b) of the Bankruptcy
Code with respect to the Adequate Protection Obligations. Said
Superpriority Claim will have priority over all administrative
expenses of the kind specified in or ordered pursuant to any
provision of the Bankruptcy Code, except statutory fees prescribed
by 28 U.S.C. Section 1930, Clerk of Court fees and post-petition ad
valorem taxes which are to be paid in the ordinary course.
On a weekly basis, the Debtor will submit to RIA LLC requisition
for the expenses it intends to pay during such week consistent with
the Budget, in the form prescribed by RIA LLC, together with a
certificate signed by an authorized officer of the Debtor
certifying that Termination Event has occurred.
The Debtor will timely provide the U.S. Trustee and RIA LLC all
required Monthly Operating Reports. Concurrently, the Debtor will
provide RIA LLC with a comparison of its actual expenditures in the
month then ending to the Budget, on a line-by-line basis, in a form
reasonable acceptable to RIA LLC.
The Debtor will also permit any representatives designated by RIA
LLC to inspect, copy and take extracts from their financial and
accounting records and all records and files of the Debtor
pertaining to the Collateral and to discuss its affairs, finances
and accounts with its officers, financial advisors and independent
public accountants.
A full-text copy of the Interim Order is available at
http://bankrupt.com/misc/mab18-12631-30.pdf
About CAJ Southway Plaza
CAJ Southway Plaza, LLC, is a single asset real estate limited
liability company that owns and operates Southway Plaza, a
106,000-square-foot retail shopping center located at 340-400 Rhode
Island Boulevard, Fall River, Massachusetts.
CAJ Southway Plaza sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Mass. Case No. 18-12631) on July 10,
2018. At the time of the filing, the Debtor estimated assets of
$1,000,001 to $10 million and liabilities of $1 million to $10
million. Judge Joan N. Feeney presides over the case.
CALHOUN SATELLITE: Court Terminates Use of CDS Cash Collateral
--------------------------------------------------------------
The U.S. Bankruptcy Court for the Western District of Pennsylvania,
at the behest of CDS Business Services, Inc., d/b/a Newtek Business
Credit Services, Inc., has terminated Calhoun Satellite
Communications, Inc.'s use of CDS' cash collateral.
Calhoun is directed to immediately turnover to the Accountant 100%
of the proceeds of collections of accounts receivable that Calhoun
presently holds and 100% of all future accounts receivable
collections to the Account.
The Accountant will remit 100% of the proceeds of the collection of
accounts receivable on a weekly basis to CDS until CDS is paid in
full. No funds secured by other creditors will be remitted.
The Accountant will also investigate the validity and
collectability of the Debtor's accounts receivable and determine
what actions are appropriate to collect delinquent accounts
receivable and file a report with the Court with a copy to counsel
for CDS. The Accountant may communicate directly with counsel for
CDS.
About Calhoun Satellite Communications
Calhoun Satellite Communications, Inc., operates a satellite
transmission business. Meanwhile, Transmission Solutions Group,
Inc., was formed solely to hold Calhoun's stock. All of
Transmission's creditors hold identical claims against Calhoun.
Calhoun and Transmission sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. W.D. Pa. Lead Case No. 17-23389) on Aug.
22, 2017. Kevin Husband, its president, signed the petitions. The
Debtors estimated assets of less than $50,000 and liabilities of $1
million to $10 million. The Debtor tapped Dennis Spyra, Esq., as
its legal counsel.
CAMBER ENERGY: Extends N&B Sale Agreement Closing Date to Sept. 26
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Camber Energy, Inc. and N&B Energy LLC, which entity is affiliated
with Richard N. Azar, II, the Company's former chief executive
officer and former director, and Donnie B. Seay, the Company's
former director, and CE Operating, LLC, Camber's wholly-owned
subsidiary, have entered into a Second Amendment to Asset Purchase
Agreement, which amended the terms of the July 12, 2018 Asset
Purchase Agreement, entered into by the Company, as seller, and N&B
Energy, as purchaser. Pursuant to the Sale Agreement and the terms
and conditions thereof, the Company agreed to sell to N&B Energy, a
substantial portion of its assets, including all of the assets it
acquired pursuant to the terms of its Dec. 31, 2015 Asset Purchase
Agreement with Segundo Resources, LLC, which is owned and
controlled by Mr. Azar, and other sellers, and certain other more
recent acquisitions, other than a production payment and certain
overriding royalty interests. Camber agreed to sell the Assets to
N&B Energy in consideration for among other things, N&B Energy
agreeing to pay the Company $100 in cash and agreeing to assume all
of its obligations and debt owed to International Bank of
Commerce.
Pursuant to the Second Amendment, Camber, N&B and CE Operating
agreed (a) to clarify that all of the representations of the
Company made in the Sale Agreement relating to portions of the
Assets held in the name of CE Operating will be deemed made by CE
Operating and not the Company and that CE Operating will be deemed
a party to the Sale Agreement, solely in order to make those
representations; and (b) to extend the deadline for closing the
transactions contemplated by the Sale Agreement to Sept. 26, 2018,
or such other date as the Company and N&B will agree upon in
writing.
"We are continuing to move forward with the negotiation of final
closing documents associated with the Sale Agreement and the
assumption of our IBC debt by N&B in connection therewith and
currently contemplate closing the transactions contemplated in
connection therewith on or around September 26, 2018, subject to
the satisfaction of the conditions to closing set forth in the
Sales Agreement," Camber stated in a Form 8-K filed with the
Securities and Exchange Commission.
A full-text copy of the Scond Amended Asset Purchase Agreement is
available for free at https://is.gd/arC2pB
About Camber Energy
Based in San Antonio, Texas, Camber Energy, Inc. (NYSE American:
CEI) -- http://www.camber.energy/-- is an independent oil and gas
company engaged in the development of crude oil, natural gas and
natural gas liquids in the Hunton formation in Central Oklahoma in
addition to anticipated project development in the Texas
Panhandle.
Camber Energy reported a net loss of $24.77 million for the year
ended March 31, 2018, compared to a net loss of $89.12 million for
the year ended March 31, 2017. As of June 30, 2018, the Company
had $14.72 million in total assets, $42.85 million in total
liabilities and a total stockholders' deficit of $28.13 million.
GBH CPAs, PC's audit opinion included in the company's Annual
Report on Form 10-K for the year ended March 31, 2018 contains a
going concern explanatory paragraph stating that the Company has
significant losses from operations and had a working capital
deficit as of March 31, 2018. These factors raise substantial
doubt about its ability to continue as a going concern.
CAROL LLOYD: Authorized to Use Cash Collateral on Interim Basis
---------------------------------------------------------------
The Hon. Marian F. Harrison of the U.S. Bankruptcy Court for the
Middle District of Tennessee authorized Carol Lloyd, Inc. to use
cash collateral to pay ordinary operating expenses in conformity
with the 30-day cash collateral budget.
At the time of the petition, Carol Lloyd had accounts receivable of
approximately $295,000
Carol Lloyd needs to use these receivables to continue normal
operations and maintain its going concern value. Particularly,
Carol Lloyd needs $268,938 of cash collateral to make payment of
ordinary operating expenses.
The Potential Secured Creditors have not yet consented to Carol
Lloyd's use of cash collateral. Carol Lloyd believes, however,
that their accounts receivable will be replenished through normal
operations such that the total amount of the outstanding
receivables at any given time remains about the same. Carol Lloyd
proposes to adequately protect its Potential Secured Creditors by
giving them replacement lien on postpetition receivables to the
same extent and with the same priority, as any prepetition
perfected lien.
Additionally, Carol Lloyd has proposed to make monthly adequate
protection payments into a segregated debtor-in-possession account
in the amount of $2,000 per month. Such funds would remain in the
segregated account until such time as the Court orders otherwise.
Any secured creditor would be entitled to file a motion
demonstrating their perfected secured status and priority and
entitlement to those funds.
A full-text copy of the Order is available at
http://bankrupt.com/misc/tnmb18-05432-24.pdf
About Carol Lloyd
Carol Lloyd Inc., Spring Hill, Tennessee, provides mobile X-ray and
imaging services to care givers and care facilities. Carol Llyod
previously filed a voluntary petition for relief under Chapter 11
of the Bankruptcy Code on May 15, 2017 (Bankr. W.D.N.C. Case No.
17-10207).
Carol Lloyd Inc., based in Spring Hill, TN, filed a Chapter 11
petition (Bankr. M.D. Tenn. Case No. 18-05432) on Aug. 15, 2018.
In the petition signed by Lloyd M. Williams, III, authorized
representative, the Debtor disclosed $1,021,401 in assets and
$3,515,467 in liabilities. The Hon. Marian F Harrison presides
over the case. Steven L. Lefkovitz, Esq., at Lefkovitz &
Lefkovitz, serves as bankruptcy counsel to the Debtor.
CB SERVICES: Oct. 16 Plan Confirmation Hearing Set
--------------------------------------------------
Judge Marci B. McIvor of the U.S. Bankruptcy Court for the Eastern
District of Michigan has issued an order granting preliminary
approval of the first amended plan and disclosure statement filed
by C.B. Services, Inc.
The confirmation hearing will be held on October 16, 2018 at 10:30
a.m. Ballots and objections to the approval of the disclosure
statement and confirmation of the Plan are due on October 9.
Under the Plan, holders of allowed Class 1 General Unsecured Claims
will be paid at 70% over 120 months with no interest. Payments will
be $1,588.24 per month.
The holders of allowed Class 2 Advantage Communications Claims --
with respect to the purchase money security interest in certain
camera and monitoring equipment in the amount of $6,590, which is a
secured claim -- will be paid over 66 monthly installments of $100
per month with no interest, with the final payment being for $90.
The value of this collateral is approximately $6,500. Claimants in
this class will retain their lien until the claims in this class
are paid in full. Payments will start on the Effective Date.
The Debtor's sole shareholder Anthony Bauriedl is the only Interest
Holder in Class 3. The claims and interests of Mr. Bauriedl will be
treated in one of two alternative methods, to the extent
applicable:
A. If all impaired classes of Creditors vote to accept the Plan,
then the rights of the Interest Holders will remain the same. This
Class will not be Impaired.
B. If any class of Creditors vote to reject the Plan or if the
Bankruptcy Court requires, for any reason, that New Value be
provided to the Debtor, the Interests of the Debtor will be
canceled, and new Interests will be reissued to the Interest
Holders upon the investment by the Interest Holders of New Value,
or those purchasing the Debtor’s equity in the auction
contemplated by this Plan.
The Debtor reasonably believes that its future operations will
generate sufficient funds to satisfy its obligations under the
Plan. To the extent that additional funds are necessary, third
parties may provide such funds to the Reorganized Debtor. Other
sources of cash may be explored and utilized by the Reorganized
Debtor to the extent that such cash infusions are necessary to meet
the obligations of the Plan. The Debtor may also sell all of its
assets or a portion of its assets to fund its obligations under the
plan. To the extent additional monies are needed, it is
contemplated that funds will come from the Debtor's principal,
which will be treated as a new value contribution to the extent new
value is required, and as a loan at 4% interest amortized over 10
years to the extent new value is not required.
A copy of the Combined Plan and Disclosure Statement is available
at https://tinyurl.com/yatvezpc from PacerMonitor.com at no
charge.
About CB Services
CB Services, Inc., filed a voluntary Chapter 11 petition (Bankr.
E.D. Mich. Case No. 18-46185) on April 27, 2018, and is represented
by Robert N. Bassel, Esq. The Debtor is in the commercial
janitorial business.
CELLECTAR BIOSCIENCES: Osteosarcoma Cure Gets FDA ODD Designation
-----------------------------------------------------------------
The U.S. Food and Drug Administration (FDA) Office of Orphan
Products Development has granted Orphan Drug Designation (ODD) to
CLR 131, Cellectar Biosciences, Inc.'s lead Phospholipid Drug
Conjugate (PDC) product candidate, for the treatment of pediatric
osteosarcoma, a rare pediatric cancer. CLR 131 also received Rare
Pediatric Disease Designation for osteosarcoma, as announced by the
company on Sept. 17, 2018.
"Osteosarcoma is the most common type of primary bone cancer
occurring most frequently in children. Currently, there are no
commercially available drugs for pediatric sarcoma, including
osteosarcoma," said John Friend, M.D., chief medical officer of
Cellectar. "This orphan designation for osteosarcoma is the fourth
such designation granted by the FDA to CLR 131 for the treatment of
rare pediatric cancers in the last six months, and we look forward
to evaluating CLR 131 in these deadly and underserved diseases."
The FDA grants ODD to therapies targeting conditions that affect
fewer than 200,000 people in the U.S. The designation provides
seven-year market exclusivity, increased engagement and assistance
from the FDA, tax credits for certain research, research grants and
a waiver of the New Drug Application user fee. In 2018 the FDA
also granted CLR 131 orphan drug and rare pediatric disease
designations for the treatments of neuroblastoma, rhabdomyosarcoma
and Ewing's sarcoma.
Cellectar plans to initiate a Phase 1 clinical study evaluating CLR
131 for the treatment of pediatric patients with osteosarcoma,
Ewing's sarcoma, rhabdomyosarcoma, neuroblastoma, high-grade glioma
and lymphomas. The trial is designed to evaluate the safety,
tolerability, pharmacokinetics and pharmacodynamics of CLR 131 in
pediatric patients with these cancer types. Further details about
the trial can be found at clinicaltrials.gov using the identifier
number NCT03478462.
About Cellectar Biosciences
Cellectar Biosciences -- http://www.cellectar.com/-- is a clinical
stage biopharmaceutical company focused on the discovery,
development and commercialization of targeted treatments for cancer
and leveraging its proprietary phospholipid drug conjugate (PDC)
platform to develop the next generation of tumor targeting
treatments. Its headquarters are located in Madison, Wisconsin.
The report from the Company's independent accounting firm Baker
Tilly Virchow Krause, LLP, in Madison, Wisconsin, on the
consolidated financial statements for the year ended Dec. 31, 2017,
includes an explanatory paragraph stating that the Company has
suffered recurring losses from operations and has a net capital
deficiency that raise substantial doubt about its ability to
continue as a going concern.
Cellectar reported a net loss attributable to common stockholders
of $15.01 million for the year ended Dec. 31, 2017, following a net
loss attributable to common stockholders of $9.36 million for the
year ended Dec. 31, 2016. As of June 30, 2018, Cellectar had $6.99
million in total assets, $2.28 million in total liabilities and
$4.70 million in total stockholders' equity.
CELLECTAR BIOSCIENCES: Provides an Update on the FDA Import Alert
-----------------------------------------------------------------
The U.S. Food and Drug Administration (FDA) has initiated direct
talks with Cellectar Biosciences, Inc. concerning a possible
exemption for CLR 131 from the Import Alert placed on the Centre
for Probe Development and Commercialization (CPDC), the sole
supplier of Cellectar's drug CLR 131.
As announced on Aug. 10, 2018, Cellectar was informed by CPDC of
the Import Alert on Aug. 7, 2018, and further learned that the
basis for the Import Alert was not related to CLR 131 or to CPDC's
production facility associated with CLR 131. Since notification of
the Import Alert, Cellectar has been actively assisting CPDC to
secure the timely removal of the Import Alert. Recently, the FDA
initiated direct talks with Cellectar on a potential pathway to
remove CLR 131 from the Import Alert and allow CPDC to resume
supply of CLR 131.
"We are encouraged that the FDA initiated a direct dialogue with us
regarding a potential resolution for the Import Alert that is
affecting CLR 131," said James Caruso, president and CEO of
Cellectar Biosciences. "This issue remains a top priority for
Cellectar and although we are not currently able to assess whether
the FDA will exempt CLR 131 from the Import Alert, we are working
closely with the agency and plan to respond quickly to any
information requests."
About Cellectar Biosciences
Cellectar Biosciences -- http://www.cellectar.com/-- is a clinical
stage biopharmaceutical company focused on the discovery,
development and commercialization of targeted treatments for cancer
and leveraging its proprietary phospholipid drug conjugate (PDC)
platform to develop the next generation of tumor targeting
treatments. Its headquarters are located in Madison, Wisconsin.
The report from the Company's independent accounting firm Baker
Tilly Virchow Krause, LLP, in Madison, Wisconsin, on the
consolidated financial statements for the year ended Dec. 31, 2017,
includes an explanatory paragraph stating that the Company has
suffered recurring losses from operations and has a net capital
deficiency that raise substantial doubt about its ability to
continue as a going concern.
Cellectar reported a net loss attributable to common stockholders
of $15.01 million for the year ended Dec. 31, 2017, following a net
loss attributable to common stockholders of $9.36 million for the
year ended Dec. 31, 2016. As of June 30, 2018, Cellectar had $6.99
million in total assets, $2.28 million in total liabilities and
$4.70 million in total stockholders' equity.
CHERYL DEAN: $250K Sale of Matagorda Property to Gibson Approved
----------------------------------------------------------------
Judge Jeffrey P. Norman of the U.S. Bankruptcy Court for the
Southern District of Texas authorized Cheryl Kim Dean's sale of the
real property located at 141 Beachfront Drive, Matagorda, Texas to
Benjamin Gibson, and/or his assignee, for $250,000.
The sale is free and clear of all liens with all liens attaching to
the net proceeds in priority order. All net proceeds will be
remitted to the Debtor and be deposited into her DIP bank account.
The 14-day stay of the Order pursuant to Bankruptcy Rule 6004(h)
will not apply, and the relief granted therein is effective
immediately upon entry.
Cheryl Kim Dean sought Chapter 11 protection (Bankr. S.D. Tex. Case
No. 18-34167) on July 31, 2018. The Debtor tapped Margaret Maxwell
McClure, Esq., at Law Office of Margaret M. McClure, as counsel.
CLICKAWAY CORP: Has Final Authority to Use Hexner Cash Collateral
-----------------------------------------------------------------
The Hon. M. Elaine Hammond of the U.S. Bankruptcy Court for the
Northern District of California has signed a final order
authorizing Clickaway Corporation's use of the cash collateral of
secured creditor Thomas Hexner pursuant to the Stipulation
previously filed, in the ordinary course of business.
The Debtor is also authorized to make monthly payments to Hexner in
the amount of of $437.50 by the 25th day of each month.
Hexner will also receive, effective as of the Petition Date, a
postpetition replacement lien on all presently owned and
after-acquired assets of the Debtor, to the same extent that Hexner
had a valid and perfected security interest in the collateral
pre-petition, including cash collateral and all proceeds therefrom.
To the extent the Post-Petition Replacement Lien and Adequate
Protection Payments together with any other lien granted by the
Debtor for the benefit of Hexner are insufficient to adequately
protect Hexner's secured claim, then Hexner will also be allowed an
administrative priority claim in accordance with 11 U.S.C. Section
507(b) for said deficiency. However, Hexner is not granted any
security interest in any avoidance actions.
Pursuant to the Stipulation, the post-petition lien and super
priority claim granted to Hexner will be subject and subordinate to
a carve-out of the following: (i) the payment of compensation and
expense reimbursement of professionals and trustees appointed and
approved in Debtor's bankruptcy case and (ii) U.S. Trustee
Quarterly Fees.
The Debtor is required to deliver a copy of its monthly operating
reports to Hexner though his counsel, Mr. Brooks, by email.
A full-text copy of the Final Order is available at
http://bankrupt.com/misc/canb18-51662-67.pdf
About Clickaway Corporation
Clickaway Corporation, a computer repair, service, sales and
networking company, has been headquartered in Campbell and serving
more than 50,000 customers in Bay Area since 2002. Clickaway filed
a voluntary Chapter 11 petition (Bankr. N.D. Cal. Case No.
18-51662) on July 27, 2018, estimating $1 million to $10 million in
assets and liabilities.
The Debtor tapped The Law Offices of Binder and Malter as its
bankruptcy counsel; Willoughby Stuart Bening & Cook as special
counsel; and Crawford Pimentel Corporation as accountant.
COBRA WELL: Seeks Nov. 12 Plan Exclusivity Period Extension
-----------------------------------------------------------
Cobra Well Testers, LLC, asks the U.S. Bankruptcy Court for the
District of Wyoming to extend the expiration of its exclusivity
period to file a plan for 45 days, through and including to Nov.
12, 2018, as well as the Debtor's exclusivity period to obtain
acceptance of its plan through and including to Jan. 26, 2019.
Unless extended, the exclusivity period for the Debtor to file and
to obtain acceptance of its plan of reorganization will expire on
Sept. 28, 2018 and Nov. 27, 2018, respectively.
The Debtor asserts that cause for an extension of the exclusivity
periods exists as shown by the following:
(a) The case presents several unique complexities given the
underlying facts and circumstances that gave rise to the filing. As
a result, additional time is needed to prepare adequate information
so that creditors will be in a position to make an informed
decision with respect to any proposed plan of reorganization.
(b) The Debtor is moving its case forward, and has already
liquidated $300,000 of assets to generate proceeds to pay down the
debt owed to ANB Bank. The Debtor is continuing its settlement
negotiations with its two primary creditors, ANB Bank and the IRS,
in connection with cash collateral, adequate protection, asset sale
and relief from stay issues. The sale of assets and cash collateral
issues, if completed on a consensual basis, will be critical in
assisting the Debtor with formulating and determining the
feasibility of any proposed plan of reorganization. The Debtor
needs additional time to continue negotiations with these creditors
prior to formulating the final terms of its plan of reorganization.
(c) The Debtor has the cash flow to timely pay its bills
under the interim cash collateral order, and pending potential
settlement or trial of the final use of cash collateral, will have
the ability to pay bills as they come due as shown by its most
recent Monthly Operating Report.
(d) The Debtor has been diligently working with its
creditors, and specifically, ANB Bank and the IRS, in an effort to
reach consensual resolution of matters. The Debtor believes that
some progress has been achieved and continued negotiations could
result in settlement of the pending matters before the Court.
(e) This is the Debtor's first request for an extension of
the exclusivity periods and less than four months have passed since
the filing of the case.
(f) The Debtor is not seeking this extension to pressure
creditors, but rather, negotiations between the Debtor and its
creditors continue to move forward, and additional time is needed
to facilitate those discussions.
About Cobra Well Testers
Cobra Well Testers, LLC, provides high pressure well testing
services to the oil and gas industry. It was established in 1999
to initially service the Muddy Ridge gas field in Western Wyoming.
Since then, the company has expanded to complete work in
multipleoil and gas basins throughout the Rockies.
Cobra Well Testers sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Wyo. Case No. 18-20449) on May 31, 2018.
In the petition signed by Yavette Bailey, member, the Debtor
estimated assets of $1 million to $10 million and liabilities of $1
million to $10 million.
Judge Cathleen D. Parker presides over the case.
COLOR SPOT: Dispute with Winters, et al., Withdrawn from Mediation
------------------------------------------------------------------
Chief Magistrate Judge Mary Pat Thynge recommends that the case
captioned WINTERS NURSERY LLC, FOREST GROVE NURSERY LLC, WINTERS
FOREST GROVE LLC, BLOOMING FARM, INC., and FALLBROOK NURSERY LLC,
Appellants, v. COLOR SPOT HOLDINGS, INC., et al., Appellees, C. A.
No. 18-1246-MN (D. Del.) be withdrawn from the mandatory referral
for mediation and proceed through the appellate process of the
Court.
As a result of a screening process, the issues involved in this
case are not amenable to mediation and mediation at this stage
would not be a productive exercise, a worthwhile use of judicial
resources nor warrant the expense of the process.
Debtor and Appellees filed a joint motion to dismiss based upon
mootness and other grounds on Sept. 12, 2018. The parties have
agreed to the following briefing schedule: Appellants' response is
due 21 days after the filing of the motion to dismiss and
Appellees' reply is due 14 days after the filing of Appellants'
response.
Since the recommendation is consistent with the parties' request in
their letter of Sept. 10, 2018, no objections to the recommendation
are expected.
A copy of the Court's Recommendation dated Sept. 13, 2018 is
available at https://bit.ly/2NZ2ZKf from Leagle.com.
Winters Nursery LLC, Forest Grove Nursery LLC, Winters Forest Grove
LLC, Blooming Farm, Inc. & Fallbrook Nursery LLC, Collectively, the
"NHHC II Landlords", Appellants, represented by Seth Andrew
Niederman -- sniederman@foxrothschild.com -- Fox Rothschild LLP &
Carl Douglas Neff -- CNeff@foxrothschild.com -- Fox Rothschild
LLP.
Color Spot Holdings, Inc., Appellee, represented by M. Blake Cleary
-- mbcleary@ycst.com -- Young, Conaway, Stargatt & Taylor LLP,
Jaime Luton Chapman -- jchapman@ycst.com -- Young, Conaway,
Stargatt & Taylor LLP,Ryan M. Bartley -- rbartley@ycst.com --
Young, Conaway, Stargatt & Taylor LLP & Sean T. Greecher --
sgreecher@ycst.com -- Young, Conaway, Stargatt & Taylor LLP.
TreeSap Farms, LLC & TSH Opco, LLC, Appellees, represented by
Timothy P. Cairns -- tcairns@pszjlaw.com -- Pachulski, Stang, Ziehl
& Jones, LLP.
Wells Fargo Bank, N.A., Appellee, represented by John Henry Knight
-- knight@rlf.com -- Richards, Layton & Finger, PA.
About Color Spot
Color Spot Holdings, Inc., through its subsidiaries, owns and
operates nurseries. It was incorporated in 2007 and is based in
Fallbrook, California.
Color Spot Holdings and its affiliates sought Chapter 11 protection
(Bankr. D. Del. Case No. 18-11272) on May 29, 2018. In the
petitions signed by CEO Paul Russo, the Debtors estimated $50
million to $100 million in assets and $100 million to $500 million
in liabilities.
Hon. Laurie Selber Silverstein presides over the Debtors' cases.
The Debtors tapped Young Conaway Stargatt & Taylor LLP as their
counsel; Raymond James & Associates, Inc., as investment banker;
and Epiq Bankruptcy Solutions, Inc., as claims and noticing agent
and administrative services advisor.
DALMATIAN FIRE: Case Summary & 13 Unsecured Creditors
-----------------------------------------------------
Debtor: Dalmatian Fire Equipment, Inc.
dba Dalmatian
dba Dalmatian Fire
fka DFE Acquisition, Inc.
dba Dalmatian Rents SCBA
75 Oak Ave.
Eaton, CO 80615
Business Description: Established in 1995, Dalmatian Fire
Equipment, Inc. -- http://dalmatianfire.com
-- is a supplier of refurbished self
contained breathing apparatus in North
America. Dalmatian provides equipment for
firefighting, oil field safety, HazMat,
mining and a broad range of industrial
applications in the United States and
Canada. The Company's portfolio of brands
includes Scott, MSA, Drager, and
Survivair.
Chapter 11 Petition Date: September 24, 2018
Court: United States Bankruptcy Court
District of Colorado (Denver)
Case No.: 18-18332
Judge: Hon. Michael E. Romero
Debtor's Counsel: David Wadsworth, Esq.
WADSWORTH WARNER CONRARDY, P.C.
2580 West Main Street, Suite 200
Littleton, CO 80120
Tel: 303-296-1999
Fax: 303-296-7600
E-mail: dwadsworth@wwc-legal.com
- and -
David Warner, Esq.
WADSWORTH WARNER CONRARDY, P.C.
2580 W. Main Street, Ste. 200
Littleton, CO 80120
Tel: 303-296-1999
Fax: 303-296-7600
E-mail: dwarner@wwc-legal.com
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $500 million to $1 billion
The petition was signed by Kevin L. Simmons, chief executive
officer.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 13 unsecured creditors is available for free
at:
http://bankrupt.com/misc/cob18-18332.pdf
DEPENDABLE AUTO: TBK, et al., Win Summary Judgment Bid vs Trustee
-----------------------------------------------------------------
Bankruptcy Judge Barbara J. Houser denied Plaintiff/Trustee Daniel
J. Sherman's motion for partial summary judgment and granted the
Defendants' motion for summary judgment in the case captioned
DANIEL J. "CORKY" SHERMAN, LIQUIDATING TRUSTEE OF THE DAS
LIQUIDATING TRUST, Plaintiff, v. TBK BANK, SSB f/k/a TRIUMPH
SAVINGS BANK, SSB d/b/a TRIUMPH COMMERCIAL FINANCE; and SCHIFF
HARDIN, LLP, Defendants, Adv. Proc. No. 17-3086 (Bankr. N.D.
Tex.).
The Trustee moved for partial summary judgment against defendants
TBK Bank, SSB f/k/a Triumph Savings Bank, SSB d/b/a Triumph
Commercial Finance and Schiff Hardin, LLP. The Trustee challenges
pre-bankruptcy transfers to the Defendants as preferences or
fraudulent transfers avoidable under 11 U.S.C. sections 547(b) and
548(a)(1). He also contests the Defendants' use of the earmarking
defense. Defendants cross-moved for summary judgment, arguing that
the disputed transfers are not recoverable under either Bankruptcy
Code provision because (i) the earmarking defense meant the
transferred funds were not property of Dependable Auto Shippers,
Inc., (DAS) which later filed chapter 11; and (ii) the transfers
did not "enable the Defendants to receive more than they would
otherwise have received if the transfer had not been made and the
case had proceeded under Chapter 7," an essential element of both
sections 547(b) and 548(a)(1) avoidance claims.
The Trustee contends that because the ADESA Agreement did not
explicitly obligate DAS to use the ADESA Funds to repay TBK, DAS
had dominion over the money and with it unfettered discretion to
pay any creditor of its choosing. The Trustee believes these facts
are sufficient to negate the Defendants' earmarking defense and
show the ADESA Funds became "property of the debtor" for avoidance
purposes. The Defendants, in contrast, argue that the ADESA Funds
were earmarked to pay off DAS's debt to TBK, a condition precedent
to ADESA's providing post-petition funding to DAS. Although the
Defendants do not dispute that the ADESA Funds were deposited into
DAS's bank account before they were transferred to TBK, they argue
that the requirement to use the ADESA Funds to repay TBK deprived
DAS of the discretion to pay any creditor of its choosing.
Therefore, they argue DAS lacked control over the ADESA Funds
before they were transferred to TBK and Schiff.
The Defendants also moved for summary judgment on the Trustee's
claims against them. They contend that the ADESA Funds were never
property that would have been part of the estate had it not been
transferred before the commencement of the bankruptcy. Accordingly,
they argue that the Trustee cannot prove an indispensable element
for recovery under both sections 547 and 548: that the transferred
property be "of an interest of the debtor in property." They also
assert in the alternative that because TBK held a security interest
in collateral worth more than DAS's debt to it, its claim was fully
secured. As a result, they reason that DAS's pre-bankruptcy
transfer of ADESA Funds did not enable TBK to receive more than it
would have had DAS liquidated under chapter 7 and so was not a
preference under 11 U.S.C. section 547.
The Trustee's argument that DAS controlled the ADESA Funds because
of its momentary possession of the money in its BB&T bank account
ignores the Fifth Circuit's holding that control, and not simple
possession, determines the availability of the earmarking defense
and whether funds are property of a debtor for purposes of
avoidance actions.
As the Fifth Circuit noted, "physical control is not the sole
indicator of whether the parties earmarked the money for a
particular creditor." DAS's agreement with ADESA, which required
use of the ADESA Funds to pay the Defendants, limited the debtor's
use of the money.
In summary, the earmarking defense applies to the Trustee's
avoidance actions because DAS did not retain control over the ADESA
Funds used to repay TBK. The transfer of the $755,906 from ADESA to
Defendants was not a "transfer of an interest of the debtor in
property" within the meaning of sections 547(b) and 548(a)(1). The
transaction merely substituted one secured lender for another: it
resulted in no diminution in assets available to pay DAS's
creditors. Accordingly, the Defendants are entitled to summary
judgment.
A copy of the Court's Memorandum Opinion dated Sept. 10, 2018 is
available at https://bit.ly/2xz2w7c from Leagle.com.
Daniel J. "Corky" Sherman, Liquidating Trustee of the DAS
Liquidating Trust, Plaintiff, represented by Clay M. Taylor --
Clay.Taylor@bondsellis.com -- Bonds Ellis Eppich Schafer Jones LLP
& Brandon J. Tittle -- Brandon.Titlle@bondsellis.com -- Bonds Ellis
Eppich Schafer Jones LLP.
TBK Bank, SSB & Schiff Hardin, LLP, Defendants, represented by
Dennis Oliver Olson, Olson, Nicoud & Gueck, LLP, Jared A. Ullman --
jared.ullman@uulaw.net -- Ullman & Ullman, P.A. & Michael W.
Ullman -- michael.ullman@uulaw.net -- Ullman & Ullman, P.A.
About Dependable Auto Shippers
Dependable Auto Shippers, Inc.'s history dates back to 1954 when
Sam London formed Dependable Car Travel Services in the heart of
New York City. In 1990, DAS became a full-service vehicle
transportation carrier, and over the years, grew into a fleet of
auto carriers, created a network of more than 97 storage facilities
and created a proprietary web presence. In 2004, DAS' transport
fleet peaked at 122 trucks.
Dependable Auto Shippers, Inc., and related entities DAS Global
Services, Inc., and DAS Government Services, LLC filed chapter 11
petitions (Bankr. N.D. Tex. Case Nos. 16-34855-11, 16-34857-11, and
16-34858-11) on Dec. 21, 2016.
The Debtors are represented by D. Michael Lynn, Esq., John Y.
Bonds, III, Esq., and Joshua N. Eppich, Esq., at Bonds Ellis Eppich
Schafer Jones LLP.
DIOCESE OF NEW ULM: Selling Hillesheim Memorial Farm for $1.5M
--------------------------------------------------------------
The Diocese of New Ulm asks the U.S. Bankruptcy Court for the
District of Minnesota to authorize the sale of the Hillesheim
Memorial Farm located in Brown County, Minnesota, directly on the
border between the city of Sleepy Eye and Home Township, to Secular
Institute of the Schoenstatt Sisters of Mary, Inc. for $1,502,000.
On Feb. 27, 1969, the Hillesheim family donated to the Diocesethe
Hillesheim Memorial Farm. The Hillesheim Memorial Farm is made up
of two real property parcels, which are legally described as: (i)
Parcel 1: Sect-30 Twp-110 Range-032 190.82 AC Govt. Lot 3; Govt.
Lot 4 Exc Lot A (5.98 AC) & Ecx E 80' Lying S'ly of Lot A; W2 OF
SW4; & SE4 OF SW4 Exc E 80'; and (ii) Parcel 2: Sect-30 Twp-110
Range-032 Unplatted3.52 AC.
The Hillesheim Memorial Farm is approximately 194 acres. Of that
194 acres, approximately 176.97 acres are tillable farm land. The
northeast portion of the property is directly adjacent to Sleepy
Eye Lake.
Over the years, the Diocese has leased the Hillesheim Memorial Farm
to local farmers. As of the Filing Date, the Diocese leased the
Hillesheim Memorial Farm to Stanley Seifert pursuant to a certain
lease agreements. The Original Seifert Lease expired on Dec. 31,
2017.
The Diocese separately entered into a new lease with the Lessee on
Nov. 13, 2017. The New Seifert Lease requires the Diocese to lease
tillable portions of the Hillesheim Memorial Farm to the Lessee for
a period of one year, from Jan. 1, 2018, through Dec. 31, 2018. In
exchange, the Lessee agreed to pay the Diocese a single, yearly
rent payment in April 2018. The Lessee paid the rent payment to
the Diocese and is currently in possession of a portion of the
Hillesheim Memorial Farm.
In addition to the New Seifert Lease, the Diocese also participates
in the Conservation Reserve Program ("CRP") with the U.S.
Department of Agriculture's Farm Service Agency ("FSA"). The CRP
is a federal farm program that pays a yearly rental payment to
farmers in exchange for farmers removing land from agricultural
production or plating specific species of crops.
As a part of the Diocese's involvement with the CRP, the Diocese
entered into an agreement with Commodity Credit Corp. ("CCC") in
2008. Under the CRP Agreement, the Diocese receives an annual
payment in the amount of $1,205 in the fall of each year from CCC
in exchange for the Diocese placing 7.24 acres into the CRP. The
CRP Agreement runs through Sept. 30, 2020. The FSA administers the
CRP Agreement.
Aside from the Lessee's interests pursuant to the New Seifert
Lease, the FSA and CCC's interests pursuant to the CRP Agreement,
and certain in rem obligations, including property taxes and
certain easements and other appurtenances, the Diocese is unaware
of any existing liens, encumbrances, claims, or interests relating
to the Hillesheim Memorial Farm.
Shortly after the Filing Date, the Diocese was contacted by the
Schoenstatt Sisters regarding the Hillesheim Memorial Farm. The
Schoenstatt Sisters' Family Jubilee Shrine, built in 1976, is
located directly adjacent to the Hillesheim Memorial Farm, along
with a retreat center. The Diocese and the Schoenstatt Sisters
previously entered into an agreement to provide an access road
across the Hillesheim Memorial Farm to the Family Jubilee Shrine
and the retreat center.
The Schoenstatt Sisters notified the Diocese that they would be
interested in purchasing the Hillesheim Memorial Farm. After
consulting with the Official Committee of Unsecured Creditors, the
Diocese hired a valuation expert, with approval from the Court to
conduct an appraisal.
The appraisal conducted by the Diocese's valuation expert showed an
estimated market value of $1,645,000 for the Hillesheim Memorial
Farm. The Schoenstatt Sisters also hired a valuation expert to
conduct an appraisal. The Schoenstatt Sisters' appraisal showed an
estimated market value of $1,360,000 for the Hillesheim Memorial
Farm.
The Diocese and the Schoenstatt Sisters entered into negotiations
regarding the purchase price. During the negotiations, counsel for
the Diocese regularly consulted with counsel for the Committee. 26.
Ultimately, the Diocese and the Schoenstatt Sisters agreed on a
purchase price of $1,502,000 for the Hillesheim Memorial Farm,
subject to the Court's approval.
The Purchase Agreement provides for the sale of the Hillesheim
Memorial Farm free and clear of all liens, encumbrances, interests,
and claims, except for the interests created by the New Seifert
Lease and the CRP Agreement. The Purchase Agreement provides for
the assignment of the New Seifert Lease and the CRP Agreement to
the Schoenstatt Sisters. There are no outstanding defaults under
the New Seifert Lease or the CRP requiring the Diocese to cure.
A copy of the Purchase Agreement attached to the Motion is
available for free at:
http://bankrupt.com/misc/Diocese_of_New_Ulm_228_Sales.pdf
The Diocese believes that the Lessee will consent to the assignment
of the New Seifert Lease, and the terms of the Purchase Agreement
provide adequate assurance that the Schoenstatt Sisters will abide
by the terms of the New Seifert Lease until it expires on Dec. 31,
2018. The Diocese understands that the Schoenstatt Sisters may be
interested in renewing the New Seifert Lease for 2019.
The Diocese asks an order approving the assumption and assignment
of the New Seifert Lease and the CRP Agreement to the Schoenstatt
Sisters. In its business judgment, the Diocese believes that, in
connection with the sale of the Hillesheim Memorial Farm, the
assumption and assignment of the New Seifert Lease and the CRP
Agreement to the Schoenstatt Sisters is in the best interest of the
estate and the Diocese's creditors.
The Diocese further asks that the Court orders that the stay
provided in Bankruptcy Rules 6004 and 6006 does not apply to the
immediate implementation of the sale and the assumption and
assignment of the New Seifert Lease and the CRP Agreement.
A hearing on the Motion is set for Oct. 18, 2018 at 9:00 a.m. The
objection deadline is Oct. 12, 2018.
The Purchaser:
SECULAR INSTITUTE OF THE
SCHOENSTATT SISTERS OF MARY, INC.
Attn: Sister M. Joan Mauch
W284 N404 Cherry Lane
Waukesha, WI 53188-9416
Telephone: (262) 522-4200
E-mail: srjoan@schsrsmary.org
The Purchaser is represented by:
Richard W. Donner, Esq.
REINHART BOERNER VAN DEUREN S.C.
10000 N. Water St., Suite 1700
Milwaukee, WI 53202
Telephone: (414) 2989-8169
E-mail: rdonner@reinhartlaw.com
About The Diocese of New Ulm
The Diocese of New Ulm sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. D. Minn. Case No. 17-30601) on March 3,
2017. The case is assigned to Judge Robert J. Kressel. In the
petition signed by Monsignor Douglas L. Grams, vice general, the
Debtor estimated assets of $10 million to $50 million and
liabilities of less than $50,000. James L. Baillie, Esq., at
Fredrikson & Byron, P.A., serves as the Debtor's legal counsel.
DIRECTBUY HOLDINGS: KCL Not Prevailing Party Under MSA, Ct. Says
----------------------------------------------------------------
Komodo Cloud, LLC in the cases captioned KOMODO CLOUD, LLC,
Appellant, v. DB HOLDING LIQUIDATION, INC. f/k/a DIRECTBUY
HOLDINGS, INC. and CSC GENERATION INC., Appellees, Civ. No. 17-605
(GMS)., 17-606 (GMS) (D. Del.) appeals the two decisions of the
Bankruptcy Court entered in DB Holdings Liquidation, Inc. and
affiliates' chapter 11 cases. District Judge Gregory Sleet affirms
both decisions.
The first decision on appeal granted Debtors' motion to voluntarily
withdraw the Debtors' emergency motion for injunctive and
declaratory relief, which sought, inter alia, to compel Appellant's
performance under a Master Services Agreement. Whereas the
Bankruptcy Court permitted the Debtors to withdraw the Emergency
Motion, that relief was "with prejudice," as requested by
Appellant. However, the Bankruptcy Court denied Appellant's request
for an award of its costs and fees under the MSA as the "prevailing
party," and for this reason, Appellant has appealed the Withdrawal
Order. The second decision on appeal ("Compel Order") denied
Appellant's Objection to Alteration of Assumption and Assignment
Procedures Without Notice and Motion to Deem Komodo Cloud's
Executory Contracts Assumed and Assigned or, Alternatively, to
Compel Assumption and Assignment
The Court holds that the Bankruptcy Court's interpretation of the
fee-shifting provision in the MSA was consistent with Indiana law.
Because Appellant's cited authorities are neither persuasive nor
binding, the court finds no error in the Bankruptcy Court's
determination that Appellant did not meet the definition of
"prevailing party" in the MSA and, therefore, that an award of
attorneys' fees was not required. The court further finds no error
in the Bankruptcy Court's decision to enter the Compel Order. The
court, thus, affirms the Withdrawal Order and the Compel Order.
A copy of the Court's Memorandum dated Sept. 12, 2018 is available
at https://bit.ly/2MSHzJW from Leagle.com.
Komodo Cloud, LLC, Appellant, represented by Robert Karl Hill --
khill@svglaw.com -- Seitz, Van Ogtrop & Green, P.A.
DB Holdings Liquidation, Inc., formerly known as DirectBuy
Holdings, Inc., Appellee, represented by Marion Maxwell Quirk ,
Cole, Schotz, Meisel, Forman & Leonard, P.A. & Nicholas Jaison
Brannick , Cole, Schotz, Meisel, Forman & Leonard, P.A.
CSC Generation, Inc., Appellee, represented by Marion Maxwell Quirk
, Cole, Schotz, Meisel, Forman & Leonard, P.A., Christopher M.
Samis , Whiteford, Taylor & Preston, L.L.C., Evan M. Lazerowitz --
elazerowitz@cooley.com -- Cooley LLP, pro hac vice, Lawrence C.
Gottlieb -- lgottlieb@cooley.com -- Cooley LLP, pro hac vice,
Nicholas Jaison Brannick , Cole, Schotz, Meisel, Forman & Leonard,
P.A. & Robert B. Winning , Cooley LLP, pro hac vice.
About DirectBuy Holdings
DirectBuy Holdings Inc., headquartered in Merrillville, Indiana, is
a membership buying club that operates under a franchise business
model. DirectBuy Holdings, Inc., United Consumers Club,
Incorporated, DirectBuy, Inc., Beta Finance Company, Inc., UCC
Distribution, Inc., U.C.C. Trading Corporation, National Management
Corporation, and UCC of Canada, Inc., each filed Chapter 11
petitions (Bankr. D. Del. Lead Case No. 16-12435) on Nov. 1, 2016.
The petitions were signed by Michael P. Bornhorst, chief executive
officer.
DirectBuy Holdings estimated $100 million to $500 million in assets
and liabilities.
Judge Christopher S. Sontchi presides over the cases.
Marion M. Quirk, Esq., Nicholas J. Brannick, Esq., Michael D.
Sirota, Esq., Ilana Volkov, Esq., Felice R. Yudkin, Esq., at Cole
Schotz P.C., are serving as counsel to the Debtors. Carl Marks &
Co. serves as the Debtors' financial advisor. Prime Clerk LLC is
the claims and noticing agent.
The Company's Canadian subsidiaries were slated on Nov. 2, 2016, to
commence proposal proceedings under the Bankruptcy and Insolvency
Act to obtain an Order from the Ontario Superior Court of Justice
approving proposals to be made by the Canadian Subsidiaries to
their respective creditors under Part III of the BIA.
Andrew R. Vara, Acting U.S. Trustee for Region 3, appointed five
creditors of DirectBuy Holdings, Inc., to serve on the official
committee of unsecured creditors. Saul Ewing LLP has been tapped
as counsel and Emerald Capital Advisors as financial advisors.
An ad hoc committee of prepetition noteholders, which include
Bayside DirectBuy, LLC, is being represented by Weil, Gotshal
Manges LLP and Pepper Hamilton LLP.
DPW HOLDINGS: Further Amends Notes to Revise Amortization Schedule
------------------------------------------------------------------
DPW Holdings, Inc. and Dominion Capital, LLC further amended on
Sept. 25, 2018 the May Note, the July Note and the August Note to,
among other things, revise the amortization schedule of the May
Note and amend the mandatory prepayment provisions of the Notes.
The Company entered into a Securities Purchase Agreement with
Dominion Capital on May 15, 2018, providing for the issuance of (i)
a Senior Secured Convertible Promissory Note with a principal face
amount of $6,000,000, which Convertible Note (as amended) is,
subject to certain conditions, convertible into 15,000,000 shares
of Common Stock of the Company at $0.40 per share; (ii) a five-year
warrant to purchase 1,111,111 shares of Common Stock at an exercise
price of $1.35; (iii) a five-year warrant to purchase 1,724,138
shares of Common Stock at an exercise price of $0.87 per share; and
(iv) 344,828 shares of Common Stock.
On July 2, 2018 the Company entered into a Securities Purchase
Agreement with the Investor providing for the issuance of (i) a
Senior Secured Convertible Promissory Note with a principal face
amount of $1,000,000, which Convertible Note is, subject to certain
conditions, convertible into 2,500,000 shares of Common Stock of
the Company at $0.40 per share, and (ii) up to 400,000 shares of
Common Stock.
On July 2, 2018, the Company and the Investor amended the May SPA
and the May Note pursuant to the terms and subject to the
conditions set forth in an Amendment No. 3 Agreement and Amendment
No. 4 Agreement.
On Aug. 31, 2018, the Company entered into a Securities Purchase
Agreement with the Investor providing for the issuance of a Senior
Secured Convertible Promissory Note with a principal face amount of
$2,000,000, which August Note is convertible into 5,000,000 shares
of Common Stock.
On Aug. 31, 2018, the Company and the Investor further amended the
May SPA, the May Note and the July Note pursuant to the terms and
subject to the conditions set forth in an Amendment No. 5 and an
Amendment No. 6.
About DPW Holdings
Headquartered in Fremont, California, DPW Holdings, Inc., formerly
known as Digital Power Corp. -- http://www.DPWHoldings.com/-- is a
diversified holding company that, through its wholly owned
subsidiary, Coolisys Technologies, Inc., is dedicated to providing
technology-based solutions where innovation is the main driver for
mission-critical applications and lifesaving services. Through its
wholly owned subsidiaries and strategic investments, the company
provides mission-critical products that support a diverse range of
industries, including defense/aerospace, industrial,
telecommunications, medical, crypto-mining, and textiles.
DPW Holdings incurred a net loss of $10.89 million in 2017
following a net loss of $1.12 million in 2016. As of June 30,
2018, DPW Holdings had $53.44 million in total assets, $21.90
million in total liabilities and $31.53 million in total
stockholders' equity.
The report from the Company's independent accounting firm Marcum
LLP, in New York, on the consolidated financial statements for the
year ended Dec. 31, 2017, includes an explanatory paragraph stating
that the Company has a significant working capital deficiency, has
incurred significant losses and needs to raise additional funds to
meet its obligations and sustain its operations. These conditions
raise substantial doubt about the Company's ability to continue as
a going concern.
DTI HOLDCO: Moody's Lowers CFR to B3, Outlook Negative
------------------------------------------------------
Moody's Investors Service downgraded DTI Holdco, Inc.'s Corporate
Family Rating to B3 from B2, Probability of Default Rating to B3-PD
from B2-PD and its senior secured first lien credit facility (term
loan and revolver) ratings to B3 from B2. The ratings outlook is
negative.
The downgrade to B3 reflects the underperformance of DTI relative
to Moody's expectations following its merger with Epiq in late 2016
driven by weak sales and profitability as well as integration
challenges. In addition, increased revolver borrowings and negative
free cash flow due to working capital deficits in the first half of
2018 have dampened the company's liquidity. At June 30, 2018, DTI's
debt-to-EBITDA (Moody's adjusted) was around 6.8 times and the
company had less than $100 million of available liquidity (revolver
availability plus unrestricted cash).
Current headwinds in the domestic e-Discovery market continue to
disproportionally impact DTI's profitability and margin despite
strong first half 2018 year-over-year growth in the remaining
business segments. Lower data processing volumes and competitive
pricing coupled with sales turnover in 2017 have diminished revenue
and earnings of DTI's e-discovery operations, which is the
company's largest and most profitable business. Moody's believes
DTI's recent investments in its leadership and sales organization
along with cost reduction initiatives that will begin to run-rate
in the second half of 2018 should translate into higher revenue and
profitability over the next year. However, DTI will be challenged
to meaningfully improve revenue and earnings given industry
softness and competitive pressures, with debt-to-EBITDA (Moody's
adjusted) expected to remain above 6.0 times over the next 12-18
months. Moody's projects low-single digit revenue growth at
moderately higher margins and expects DTI to generate approximately
$40 million of free cash flow in 2019.
Moody's took the following rating actions on DTI Holdco, Inc.:
--- Corporate Family Rating, downgraded to B3 from B2
--- Probability of Default Rating, downgraded to B3-PD from B2-PD
--- $100 million senior secured first lien revolving credit
facility due 2021, downgraded to B3 (LGD3) from B2 (LGD3)
--- $1.18 billion senior secured first lien term loan B due 2023,
downgraded to B3 (LGD3) from B2 (LGD3)
--- Ratings outlook changed to Negative from Stable
RATINGS RATIONALE
The B3 CFR reflects DTI's high debt-to-EBITDA leverage (Moody's
adjusted and expensing internally developed capitalized software
costs), estimated at 6.8 times as of June 30, 2018, operating
challenges in growing its topline and profitability and aggressive
acquisition strategies. The company's e-Discovery market is
intensely competitive and labor-intensive, marked by consolidation,
declining processing volumes and prices. As a result, substantial
ongoing capital expenditures are necessary to maintain a
competitive service offering and handle information growth, as
vendors are compelled to add e-discovery functionality such as
machine-learning, culling technologies and predictive coding. The
event driven nature of DTI's business segments create short term
earnings and working capital volatility that limits visibility.
The credit profile favorably reflects DTI's global presence in the
eDiscovery market and diversification of service lines, low
customer concentration, and a good track record of achieving
acquisition synergies and planned cost savings. The ratings are
also supported by Moody's expectation that DTI will maintain
adequate liquidity over the next 12-15 months.
The negative rating outlook reflects the risk that volume and
pricing pressure in DTI's e-Discovery business will prevent or
limit an earnings recovery despite growth investments across the
company's business lines. This will limit meaningful credit metrics
improvement over the next 12 months and creates uncertainty that
free cash flow will meaningfully and sustainably improve.
The ratings could be downgraded if continued deterioration in
e-discovery earnings, operating pressure in other businesses, or an
inability to translate targeted cost saving reductions into higher
profits leads to further EBITDA declines. Weak or negative free
cash flow generation or a deterioration in liquidity such as
through reduced availability under the revolver could also result
in a negative ratings action.
While unlikely in the near term, a profitable revenue growth that
leads to a material reduction in leverage and robust free cash flow
generation will be necessary for an upgrade. Quantitatively, the
ratings could be upgraded if DTI sustained debt-to-EBITDA (Moody's
adjusted) below 6.0 times and generates free cash flow-to-debt
(Moody's adjusted) above 5%.
DTI Holdco, Inc., based in Atlanta, Georgia is a global provider of
legal service solutions, namely litigation and administrative
support services for corporations and law firms in North America,
Europe and Australia. The company organized primarily into five
business segments; Legal Services (LS) -- including domestic and
international e-Discovery and document review, Bankruptcy ,
Settlement Administration, Management Solutions and Court
Reporting. In December 2017, the company rebranded its services and
products from DTI to Epiq Global. DTI is majority owned by an
investor group controlled by OMERS Private Equity, Inc., Harvest
Partners, L.P., and management. The company generated GAAP revenues
of approximately $1.0 billion for the twelve months ended June 30,
2018.
The principal methodology used in these ratings was Business and
Consumer Service Industry published in October 2016.
EARL DURON: $130K Sale of San Antonio Property to Ramirezes Okayed
------------------------------------------------------------------
Judge Craig A. Gargotta of the U.S. Bankruptcy Court for the
Western District of Texas authorized Earl L. Duron and Kirsten A.
Duron to sell the real property with improvements locally known as
2234-35 S. Laredo, San Antonio, Texas and more fully described at
Lots 11, 12, 23 and 24, Block 6, New City Block 3163, Colmina
Addition, City of San Antonio, Bexar County, Texas, according to
plat recorded in Volume 105, Page 133, Deed and Plat Record, Bexar
County, Texas, to Marla De Rocio Ramirez and Juan Manuel Ramirez
and/or assigns for $130,000 cash.
The sale is free and clear of all interests, claims, or other
interests, of any kind or nature whatsoever. All of the interests,
liens, encumbrances and causes of actions will attach to the
proceeds pending further order of the Court.
The Debtors have the authority and will pay (i) a portion of the
claim of FirstMark Credit Union in an amount approved by the Court;
(ii) the allowed claim of Bexar County in the amount approved by
the Court;(iii) the usual and customary closing cost, title policy,
survey, if any as authorized by the contracts; and (iv) pay all
realtor fees set forth in the contracts.
The Property is sold "as is, where is" without any warranties or
representations.
With respect to the amount of allowed ad valorem taxes for year
2016 and prior related to the Property (real and personal), such
amounts will be paid by Closing Agent immediately upon closing and
prior to disbursement of any sales proceeds to any other person or
entity. Any liens for 2016 and prior ad valorem taxes on the
Property (real and personal) will attach to the sale proceeds until
said taxes are paid in full. With respect to the estimated amount
of ad valorem taxes for 2018 related to the Property (real and
personal), such amounts will be prorated between the Buyers and the
Debtors as of the Closing date per the terms of the Earnest Money
Contract. The amount of the estimated 2018 taxes prorated to the
Debtors will be an adjustment to the amount of cash due from the
Buyers to the Debtors on the Closing Date and the Buyers will
assume responsibility for the year 2018 ad valorem taxes incident
to the Property (real and personal) and the year 2.018 ad valorem
tax lien will be retained against the Property (real and personal)
until such time as the year 2018 ad valorem taxes are paid in
full.
The stay under Bankruptcy Rules 6004(g) and 6006(d) are waived and
are not in effect.
Upon the entry of the Order, the case will be closed
administratively and the Debtors will pay all U.S. Trustee fees
within 14 days of the entry of the Order.
Earl L. Duron and Kirsten A. Duron sought Chapter 11 protection
(Bankr. W.D. Tex. Case No. 16-51161) on May 20, 2016. The Debtor
tapped Dean William Greer, Esq., as counsel.
ENERGY FUTURE: NEI Dispute with Elliot, et al., Can't be Mediated
-----------------------------------------------------------------
Magistrate Judge Mary Pat Thynge recommends that the appeals case
captioned NEXTERA ENERGY, INC., Appellant, v. ELLIOT ASSOCIATES,
L.P., et al., Appellees, C. A. No. 18-1253-RGA (D. Del.) be
withdrawn from the mandatory referral for mediation and proceed
through the appellate process of the Court.
As a result of a screening process, the issues involved in the case
are not amenable to mediation and mediation at this stage would not
be a productive exercise, a worthwhile use of judicial resources
nor warrant the expense of the process.
The appeal relates to an administrative expense application of $60
million which was filed by Appellant, NextEra, in the alternative
to its application for payment of $275 million termination fee. The
termination fee was disallowed by the Bankruptcy Court on Oct. 18,
2017. NextEra appealed the Order which is currently pending in the
Third Circuit Court of Appeals.
The parties do not believe that mediation is appropriate at this
time and request withdrawal from mandatory mediation.
A copy of the Court's Recommendation dated Sept. 13, 2018 is
available at https://bit.ly/2ON54Wz from Leagle.com.
NextEra Energy, Inc., Appellant, represented by Adam G. Landis --
landis@lrclaw.com -- Landis Rath & Cobb LLP & Matthew B. McGuire --
mcguire@lrclaw.com -- Landis Rath & Cobb LLP.
Elliott Associates, L.P., Elliott International, L.P., Liverpool
Limited Partnership & UMB Bank, N.A., Appellees, represented by
Scott D. Cousins -- scousins@bayardlaw.com -- Bayard, P.A., Erin R.
Fay -- efay@bayardlaw.com -- Bayard, P.A., Evan Thomas Miller,
Bayard, P.A. & Gregg Mattisen Galardi, Ropes & Gray LLP.
EFH Plan Administrator Board, Appellee, represented by Mark David
Collins -- Collins@rlf.com -- Richards, Layton & Finger, PA, Daniel
J. DeFranceschi -- -- defranceschi@rlf.com -- Richards, Layton &
Finger, PA & Jason Michael Madron -- madron@rlf.com -- Richards,
Layton & Finger, PA.
About Energy Future
Energy Future Holdings Corp., formerly known as TXU Corp., is a
privately held diversified energy holding company with a portfolio
of competitive and regulated energy businesses in Texas. Oncor, an
80 percent-owned entity within the EFH group, is the largest
regulated transmission and distribution utility in Texas. The
Company delivers electricity to roughly three million delivery
points in and around Dallas-Fort Worth. EFH Corp. was created in
October 2007 in a $45 billion leverage buyout of Texas power
company TXU in a deal led by private-equity companies Kohlberg
Kravis Roberts & Co. and TPG Inc.
On April 29, 2014, Energy Future Holdings and 70 affiliated
companies sought Chapter 11 bankruptcy protection (Bankr. D. Del.
Lead Case No. 14-10979) after reaching a deal with some key
financial stakeholders to keep its businesses operating while
reducing its roughly $40 billion in debt.
The Debtors' cases have been assigned to Judge Christopher S.
Sontchi (CSS).
As of Dec. 31, 2013, EFH Corp. reported assets of $36.4 billion in
book value and liabilities of $49.7 billion. The Debtors had $42
billion of funded indebtedness as of the bankruptcy filing.
EFH's legal advisor for the Chapter 11 proceedings is Kirkland &
Ellis LLP, its financial advisor is Evercore Partners and its
restructuring advisor is Alvarez & Marsal. The TCEH first lien
lenders supporting the restructuring agreement are represented by
Paul, Weiss, Rifkind, Wharton & Garrison, LLP as legal advisor, and
Millstein & Co., LLC, as financial advisor.
The EFIH unsecured creditors supporting the restructuring Agreement
are represented by Akin Gump Strauss Hauer & Feld LLP, as legal
advisor, and Centerview Partners, as financial advisor. The EFH
equity holders supporting the restructuring agreement are
represented by Wachtell, Lipton, Rosen & Katz, as legal advisor,
and Blackstone Advisory Partners LP, as financial advisor. Epiq
Systems is the claims agent.
Wilmington Savings Fund Society, FSB, the successor trustee for the
second-lien noteholders owed about $1.6 billion, is represented by
Ashby & Geddes, P.A.'s William P. Bowden, Esq., and Gregory A.
Taylor, Esq., and Brown Rudnick LLP's Edward S. Weisfelner, Esq.,
Jeffrey L. Jonas, Esq., Andrew P. Strehle, Esq., Jeremy B. Coffey,
Esq., and Howard L. Siegel, Esq.
On May 13, 2014, the U.S. Trustee appointed the Official Committee
of TCEH Unsecured Creditors in the Chapter 11 Cases. The TCEH
Committee is composed of (a) the Pension Benefit Guaranty
Corporation; (b) HCL America, Inc.; (c) BNY, as Indenture Trustee
under the EFCH 2037 Notes due 2037 and the PCRBs; (d) LDTC, as
Indenture Trustee under the TCEH Unsecured Notes; (e) Holt Texas
LTD, d/b/a Holt Cat; (f) ADA Carbon Solutions (Red River); and (g)
Wilmington Savings, as Indenture Trustee under the TCEH Second Lien
Notes. The TCEH Committee retained Morrison & Foerster LLP as
counsel; Polsinelli PC as co-counsel and conflicts counsel; Lazard
Freres & Co. LLC as investment banker; FTI Consulting, Inc., as
financial advisor; and Charles River Associates as an energy
consultant.
On Oct. 27, 2014, the U.S. Trustee appointed the Official Committee
of Unsecured Creditors representing the interests of the unsecured
creditors for EFH, EFIH, EFIH Finance, and EECI, Inc. The EFH/EFIH
Committee is composed of (a) American Stock Transfer & Trust
Company, LLC; (b) Brown & Zhou, LLC c/o Belleair Aviation, LLC; (c)
Peter Tinkham; (d) Shirley Fenicle, as successor-in-interest to the
Estate of George Fenicle; and (e) David William Fahy. The EFH/EFIH
Committee retained Montgomery, McCracken, Walker & Rhodes, LLP, as
co-counsel and conflicts counsel; AlixPartners, LLP, as
restructuring advisor; Sullivan & Cromwell LLC as counsel;
Guggenheim Securities as investment banker; and Kurtzman Carson
Consultants LLC as noticing agent for both the TCEH Committee and
the EFH/EFIH Committee.
Given the size and complexity of the Chapter 11 Cases, the U.S.
Trustee proposed, and the Debtors and the TCEH Committee agreed, to
recommend that the Bankruptcy Court appoint a committee to, among
other things, review and report as appropriate on fee applications
and statements submitted by the professionals paid for by the
Debtors' Estates. The Fee Committee is comprised of four members:
(a) one member appointed by and representative of the Debtors
(Cecily Gooch, Vice President and Special Counsel for
Restructuring, Energy Future Holdings); (b) one member appointed by
and representative of the TCEH Creditors' Committee (Peter Kravitz,
Principal and General Counsel, Province Capital); (c) one member
appointed by and representative of the U.S. Trustee (Richard L.
Schepacarter, Trial Attorney, Office of the United States Trustee);
and (d) one independent member (Richard Gitlin, of Gitlin and
Company, LLC). The Fee Committee retained Godfrey & Kahn, S.C., as
counsel; and Phillips, Goldman & Spence, P.A., as co-counsel.
On Aug. 29, 2016, Judge Sontchi confirmed the Chapter 11 exit Plans
of two of Energy Future Holdings Corp.'s subsidiaries, power
generator Luminant and retail electricity provider TXU Energy Inc.
(the "T-Side Debtors"). The Plan became effective on Oct. 3, 2016.
On Aug. 20, 2017, Sempra Energy (NYSE:SRE) announced an agreement
to acquire Energy Future Holdings, the indirect owner of 80 percent
of Oncor Electric Delivery Company, LLC, operator of the largest
electric transmission and distribution system in Texas. Under the
agreement, Sempra Energy will pay approximately $9.45 billion in
cash to acquire Energy Future and its ownership in Oncor, while
taking a major step forward in resolving Energy Future's
long-running bankruptcy case. The enterprise value of the
transaction is approximately $18.8 billion, including the
assumption of Oncor's debt.
On Nov. 3, 2017, the Bankruptcy Court entered an order closing the
Chapter 11 cases of 40 affiliate debtors. The claims asserted
against, and interests asserted in, the Closing Cases are
transferred to the lead case of Texas Competitive Electric Holdings
Company LLC, Case No. 14-10978. A list of the Closing Cases is
available for free at:
http://bankrupt.com/misc/EnergyFuture_decreeclosing40.pdf
ENERGY FUTURE: Order Disallowing NEI $275MM Termination Fee Upheld
------------------------------------------------------------------
In the case captioned In re: ENERGY FUTURE HOLDINGS CORP., et al,
Debtors. NEXTERA ENERGY, INC., Appellant, No. 18-1109 (3rd Cir.),
the United States Court of Appeals, Third Circuit affirmed the
Bankruptcy Court's decision granting Creditors Elliott Associates,
L.P., Elliott International, L.P., and The Liverpool Limited
Partnership's motion for reconsideration, thus disallowing NextEra
Energy, Inc.'s $275 million termination fee.
About a year after approving a merger agreement that called for the
payment of a $275 million termination fee under certain conditions,
the Bankruptcy Court in the Chapter 11 case of Energy Future
Holdings Corp. and affiliates admitted that it had made a mistake,
granted a motion for reconsideration, and narrowed the
circumstances under which the termination fee would be triggered.
Were it not for the order granting reconsideration, Appellant
NextEra would now be entitled to payment of the $275 million fee
out of the bankruptcy estates.
In pursuit of the payment, NextEra argues in the appeal that the
Bankruptcy Court had it right the first time and should have never
granted the motion for reconsideration. NextEra contends first that
the motion was untimely, before arguing alternatively that the
motion should have been denied on the merits because the
termination fee provision, as originally drafted, was an allowable
administrative expense under 11 U.S.C. section 503(b). The Third
Circuit, however, concludes that the Bankruptcy Court did not err
in either respect. The motion for reconsideration was timely, and
the Bankruptcy Court did not abuse its discretion in granting it.
Because the Court concludes that the Approval Order was
interlocutory, Elliott's motion to reconsider was subject to no
explicit time restriction. Instead, the only timeliness argument
that NextEra might have is the doctrine of laches. To assert a
laches defense, NextEra would have to show that Elliott inexcusably
delayed its motion and that NextEra was prejudiced as a result of
such a delay. Laches is an equitable doctrine, however, and the
decision of whether to recognize it as a defense in a particular
case is left to the discretion of the lower courts. Here, the Third
Circuit cannot say that the Bankruptcy Court abused its discretion
in refusing to bar Elliott's motion because of laches. The motion
was filed less than a year after the Approval Order was issued,
within weeks of Debtors terminating the Merger Agreement, and
actually before NextEra had even filed its application seeking
payment of the Termination Fee. The Fee provision in the Merger
Agreement was also complicated, and the record was muddled at the
time the Bankruptcy Court was making its approval decision. Under
these circumstances, we are unable to conclude that Elliott
inexcusably delayed the filing of its motion. The Bankruptcy Court,
therefore, did not abuse its discretion in determining that the
motion was timely.
The Bankruptcy Court also did not abuse its discretion in
concluding that its previous factual error was a clear or manifest
one that justified the partial denial of the Fee on a motion for
reconsideration. The error of fact was obvious and indisputable.
NextEra concedes that the Merger Agreement did not include a date
by which PUCT approval had to be obtained. The factual error also
had a substantial impact on the Bankruptcy Court's O'Brien
analysis. The error led the court to fundamentally misjudge the
likelihood that the Termination Fee would be harmful to the
estates. Having examined the record and the Bankruptcy Court's
reasoning closely, the Third Circuit cannot say that the Bankruptcy
Court abused its discretion in taking the unusual step of
reconsidering its prior decision.
A full-text copy of the Court's Opinion dated Sept. 13, 2018 is
available at https://bit.ly/2xKP68k from Leagle.com.
Thomas M. Buchanan -- tbuchanan@winston.com -- Winston & Strawn,
1700 K Street NW, Washington, D.C. 20006, Dan K. Webb --
dwebb@winston.com -- Winston & Strawn, 35 West Wacker Drive, Suite
4200, Chicago, IL 60601,Howard Seife --
howard.seife@nortonrosefulbright.com -- [Argued], Andrew
Rosenblatt -- andrew.rosenblatt@nortonrosefulbright.com -- Eric
Daucher, Norton Rose Fulbright, 1301 Avenue of the Americas, New
York, NY 10019, Jonathan S. Franklin, Norton Rose Fulbright, 799
9th Street NW, Suite 1000, Washington, D.C. 20001, Matthew B.
McGuire -- mcguire@lrclaw.com -- Landis Rath & Cobb, 919 Market
Street, Suite 1800, P.O. Box 2087, Wilmington, DE 19899, Counsel
for Appellant NextEra Energy, Inc.
Douglas H. Hallward-Driemeir [Argued], Jonathan R. Ference-Burke --
Jonathan.Ference-Burke@ropesgray.com -- Ropes & Gray, 2009
Pennsylvania Avenue NW, Suite 1200, Washington, D.C. 20006, Gregg
M. Galardi, Keith H. Wofford, Ropes & Gray, 1211 Avenue of the
Americas, New York, NY 10036, Counsel for Appellees Elliott
Associates, L.P., Elliott International, L.P., and Liverpool
Limited Partnership.
Daniel J. DeFranceschi -- defranceschi@rlf.com -- Jason M. Madron
-- madron@rlf.com -- Richards Layton & Finger, 920 North King
Street, One Rodney Square, Wilmington, DE 19801, Mark E. McKane
[Argued], Kirkland & Ellis, 555 California Street, Suite 2700, San
Francisco, CA 94104, James H.M. Sprayregen, Marc Kieselstein,
Andrew R. McGaan, Chad J. Husnick, Steven N. Serajeddini, Kirkland
& Ellis, 300 North LaSalle, Chicago, Illinois 60654, Michael A.
Petrino, Kirkland & Ellis, 655 15th Street NW, Washington, D.C.
20005, Edward O. Sassower, Stephen E. Hessler, Brian E. Schartz,
Aparna Yenamandra, Kirkland & Ellis, 601 Lexington Avenue, New
York, NY 10022, Counsel for Appellee Energy Future Holdings, Corp.
About Energy Future
Energy Future Holdings Corp., formerly known as TXU Corp., is a
privately held diversified energy holding company with a portfolio
of competitive and regulated energy businesses in Texas. Oncor, an
80 percent-owned entity within the EFH group, is the largest
regulated transmission and distribution utility in Texas. The
Company delivers electricity to roughly three million delivery
points in and around Dallas-Fort Worth. EFH Corp. was created in
October 2007 in a $45 billion leverage buyout of Texas power
company TXU in a deal led by private-equity companies Kohlberg
Kravis Roberts & Co. and TPG Inc.
On April 29, 2014, Energy Future Holdings and 70 affiliated
companies sought Chapter 11 bankruptcy protection (Bankr. D. Del.
Lead Case No. 14-10979) after reaching a deal with some key
financial stakeholders to keep its businesses operating while
reducing its roughly $40 billion in debt.
The Debtors' cases have been assigned to Judge Christopher S.
Sontchi (CSS).
As of Dec. 31, 2013, EFH Corp. reported assets of $36.4 billion in
book value and liabilities of $49.7 billion. The Debtors had $42
billion of funded indebtedness as of the bankruptcy filing.
EFH's legal advisor for the Chapter 11 proceedings is Kirkland &
Ellis LLP, its financial advisor is Evercore Partners and its
restructuring advisor is Alvarez & Marsal. The TCEH first lien
lenders supporting the restructuring agreement are represented by
Paul, Weiss, Rifkind, Wharton & Garrison, LLP as legal advisor, and
Millstein & Co., LLC, as financial advisor.
The EFIH unsecured creditors supporting the restructuring Agreement
are represented by Akin Gump Strauss Hauer & Feld LLP, as legal
advisor, and Centerview Partners, as financial advisor. The EFH
equity holders supporting the restructuring agreement are
represented by Wachtell, Lipton, Rosen & Katz, as legal advisor,
and Blackstone Advisory Partners LP, as financial advisor. Epiq
Systems is the claims agent.
Wilmington Savings Fund Society, FSB, the successor trustee for the
second-lien noteholders owed about $1.6 billion, is represented by
Ashby & Geddes, P.A.'s William P. Bowden, Esq., and Gregory A.
Taylor, Esq., and Brown Rudnick LLP's Edward S. Weisfelner, Esq.,
Jeffrey L. Jonas, Esq., Andrew P. Strehle, Esq., Jeremy B. Coffey,
Esq., and Howard L. Siegel, Esq.
On May 13, 2014, the U.S. Trustee appointed the Official Committee
of TCEH Unsecured Creditors in the Chapter 11 Cases. The TCEH
Committee is composed of (a) the Pension Benefit Guaranty
Corporation; (b) HCL America, Inc.; (c) BNY, as Indenture Trustee
under the EFCH 2037 Notes due 2037 and the PCRBs; (d) LDTC, as
Indenture Trustee under the TCEH Unsecured Notes; (e) Holt Texas
LTD, d/b/a Holt Cat; (f) ADA Carbon Solutions (Red River); and (g)
Wilmington Savings, as Indenture Trustee under the TCEH Second Lien
Notes. The TCEH Committee retained Morrison & Foerster LLP as
counsel; Polsinelli PC as co-counsel and conflicts counsel; Lazard
Freres & Co. LLC as investment banker; FTI Consulting, Inc., as
financial advisor; and Charles River Associates as an energy
consultant.
On Oct. 27, 2014, the U.S. Trustee appointed the Official Committee
of Unsecured Creditors representing the interests of the unsecured
creditors for EFH, EFIH, EFIH Finance, and EECI, Inc. The EFH/EFIH
Committee is composed of (a) American Stock Transfer & Trust
Company, LLC; (b) Brown & Zhou, LLC c/o Belleair Aviation, LLC; (c)
Peter Tinkham; (d) Shirley Fenicle, as successor-in-interest to the
Estate of George Fenicle; and (e) David William Fahy. The EFH/EFIH
Committee retained Montgomery, McCracken, Walker & Rhodes, LLP, as
co-counsel and conflicts counsel; AlixPartners, LLP, as
restructuring advisor; Sullivan & Cromwell LLC as counsel;
Guggenheim Securities as investment banker; and Kurtzman Carson
Consultants LLC as noticing agent for both the TCEH Committee and
the EFH/EFIH Committee.
Given the size and complexity of the Chapter 11 Cases, the U.S.
Trustee proposed, and the Debtors and the TCEH Committee agreed, to
recommend that the Bankruptcy Court appoint a committee to, among
other things, review and report as appropriate on fee applications
and statements submitted by the professionals paid for by the
Debtors' Estates. The Fee Committee is comprised of four members:
(a) one member appointed by and representative of the Debtors
(Cecily Gooch, Vice President and Special Counsel for
Restructuring, Energy Future Holdings); (b) one member appointed by
and representative of the TCEH Creditors' Committee (Peter Kravitz,
Principal and General Counsel, Province Capital); (c) one member
appointed by and representative of the U.S. Trustee (Richard L.
Schepacarter, Trial Attorney, Office of the United States Trustee);
and (d) one independent member (Richard Gitlin, of Gitlin and
Company, LLC). The Fee Committee retained Godfrey & Kahn, S.C., as
counsel; and Phillips, Goldman & Spence, P.A., as co-counsel.
On Aug. 29, 2016, Judge Sontchi confirmed the Chapter 11 exit Plans
of two of Energy Future Holdings Corp.'s subsidiaries, power
generator Luminant and retail electricity provider TXU Energy Inc.
(the "T-Side Debtors"). The Plan became effective on Oct. 3, 2016.
On Aug. 20, 2017, Sempra Energy (NYSE:SRE) announced an agreement
to acquire Energy Future Holdings, the indirect owner of 80 percent
of Oncor Electric Delivery Company, LLC, operator of the largest
electric transmission and distribution system in Texas. Under the
agreement, Sempra Energy will pay approximately $9.45 billion in
cash to acquire Energy Future and its ownership in Oncor, while
taking a major step forward in resolving Energy Future's
long-running bankruptcy case. The enterprise value of the
transaction is approximately $18.8 billion, including the
assumption of Oncor's debt.
On Nov. 3, 2017, the Bankruptcy Court entered an order closing the
Chapter 11 cases of 40 affiliate debtors. The claims asserted
against, and interests asserted in, the Closing Cases are
transferred to the lead case of Texas Competitive Electric Holdings
Company LLC, Case No. 14-10978. A list of the Closing Cases is
available for free at:
http://bankrupt.com/misc/EnergyFuture_decreeclosing40.pdf
FALLS OF LITTLETON: Voluntary Chapter 11 Case Summary
-----------------------------------------------------
Debtor: The Falls of Littleton, LLC
9067 South 1300 West, Suite 301
West Jordan, UT 84088
Business Description: The Falls of Littleton, LLC --
http://www.thefallseventcenter.com/and
http://www.fallsweddings.com/-- is part of
the Falls Consolidated Enterprise that
operates event centers/venues for
hosting conferences, company annual
holiday parties, family reunions, high
school proms, birthday parties, weddings
and more.
Chapter 11 Petition Date: September 24, 2018
Case No.: 18-27111
Court: United States Bankruptcy Court
District of Utah (Salt Lake City)
Judge: Hon. Kimball R. Mosier
Debtor's Counsel: Elaine A. Monson, Esq.
RAY QUINNEY & NEBEKER
36 South State Street, Suite 1400
Salt Lake City, UT 84111
Tel: (801) 323-3346
Fax : 801-532-7543
E-mail: emonson@rqn.com
Estimated Assets: $1 million to $10 million
Estimated Liabilities: $1 million to $10 million
The petition was signed by Gil A. Miller, chief restructuring
officer for The Falls Event Center LLC.
The Company stated it has no unsecured creditors.
A full-text copy of the petition is available for free at:
http://bankrupt.com/misc/utb18-27111.pdf
GARAFOLA PROPERTIES: Case Summary & 20 Largest Unsecured Creditors
------------------------------------------------------------------
Debtor: Garafola Properties LLC
aka Garagola Properties LLC
PO Box 60483
Nashville, TN 37206
Business Description: Garafola Properties LLC is a privately held
company that owns 62 properties in
Nashville, Tennesse having an aggregate
value of $3.4 million.
Chapter 11 Petition Date: September 24, 2018
Case No.: 18-06361
Court: United States Bankruptcy Court
Middle District of Tennessee (Nashville)
Judge: Hon. Randal S Mashburn
Debtor's Counsel: Steven L. Lefkovitz, Esq.
LEFKOVITZ & LEFKOVITZ
618 Church St Ste 410
Nashville, TN 37219
Tel: 615 256-8300
Fax: 615 255-4516
E-mail: slefkovitz@lefkovitz.com
Total Assets: $3,399,600
Total Liabilities: $4,020,274
The petition was signed by Michael A. Garafola, chief manager.
A full-text copy of the petition containing, among other items, a
list of the Debtor's 20 largest unsecured creditors is available
for free at:
http://bankrupt.com/misc/tnmb18-06361.pdf
GEOKINETICS INC: Post-Closing Dispute Deal w/ SAExploration Okayed
------------------------------------------------------------------
Judge David R. Jones of the U.S. Bankruptcy Court for the Southern
District of Texas authorize Geokinetics, Inc. and affiliates to
settle and compromise certain post-closing disputes that have
arisen between them and SAExploration, Inc. or its affiliated
designee(s) under the Court-approved Asset Purchase Agreement dated
as of June 26, 2018 in connection with the sale of substantially
all assets for $20 million.
The Term Sheet Regarding Resolution of Disputes Related to Asset
Purchase Agreement is approved in all respects.
The Debtors are authorized to sell the Equity Interests free and
clear of all liens, claims, interests and encumbrances.
A copy of the Term Sheet attached to the Order is available for
free at:
http://bankrupt.com/misc/Geokinetics_Inc_386_Order.pdf
About Geokinetics Inc.
Geokinetics Inc. -- http://www.geokinetics.com/-- is an
independent land and seafloor geophysical company. Headquartered
in Houston, Texas, Geokinetics specializes in acquiring and
processing seismic data in challenging environments worldwide.
Geokinetics' Multi-Client team has developed more than 7,000
square
miles of 3D library data.
On June 25, 2018, Geokinetics Inc. and 8 affiliated debtors each
filed a voluntary petition for relief under Chapter 11 of the
United States Bankruptcy Code (Bankr. S.D. Tex. Lead Case No.
18-33410).
The cases are pending before the Honorable David R. Jones.
GOK estimated assets of $10 million to $50 million and liabilities
of $10 million to $50 million as of the bankruptcy filing.
The Debtors tapped Porter Hedges LLP as counsel; FTI Consulting,
Inc., as financial advisor; and Prime Clerk LLC as claims and
notice agent.
GEOKINETICS INC: Settling Post-Closing Dispute with SAExploration
-----------------------------------------------------------------
Geokinetics, Inc. and affiliates, ask the U.S. Bankruptcy Court for
the Southern District of Texas to authorize them to settle and
compromise certain post-closing disputes that have arisen between
them and SAExploration, Inc. or its affiliated designee(s) under
the Court-approved Asset Purchase Agreement dated as of June 26,
2018 in connection with the sale of substantially all assets for
$20 million.
On July 20, 2018, the entered the Sale Order. Pursuant to the Sale
Order, on July 25, 2018, the Debtors sold a substantial portion of
their operating assets to the Buyer pursuant to the Purchase
Agreement. The Purchase Agreement included the sale of outstanding
accountants receivable, but excluded payments in transit. The
Purchase Agreement also included the sale of substantially all
assets of GeoK Aus, but excluded the equity interests of GeoK Aus
and all other non-Debtor subsidiaries.
In order to facilitate the transition of operations from the
Debtors to the Buyer, the parties entered into a Transition
Services Agreement pursuant to which the Debtors continued to
operate certain business activities including the U.S. and U.K.
Processing business ("Transition Services Agreement").
Since the closing, disputes/issues have arisen between the Debtors
and the Buyer regarding (i) the ownership of customer payments from
XTO Energy, Inc. in the amount of $110,226 and Sonotrach in the
amount of $370,478 ("Customer Payments"); (ii) the ownership of
customer payments from Turkiye Petrolleri A.O. ("Turkish
Petroleum") in the amount of $1,004,601; and other non-Turkish
Petroleum receivables held by GeoK UK in the amount of $42,117;
(iii) the disposition of certain postclosing accounts receivable;
and (iv) the disposition of certain foreign non-Debtor affiliates.
The Debtor is currently holding the Customer Payments. With
respect to the Customer Payment from XTO, the funds were payment
for pre-closing services provided by the Debtors. XTO initiated a
wire transfer in the amount of $110,226 on July 11, 2018 to a bank
account at Wells Fargo that the Debtors previously closed. The
funds were returned to XTO that same day. The Debtors and XTO then
arranged for the issuance of a replacement check.
The replacement check was not issued until July 27, 2018 and the
Debtors did not receive the check until Aug. 7, 2018 -- after the
closing date of July 25, 2018. The Debtors position is that the
XTO funds constitute "payments in transit," which are Excluded
Assets under the Purchase Agreement. The Buyer asserts that the
XTO funds are proceeds of accounts receivable, which the Buyer
acquired under the Purchase Agreement.
With respect to receivables collected from Turkish Petroleum, the
funds are for services provided by GeoK UK, a non-Debtor, but were
received into a DIP bank account after the sale closing date. The
Debtors believe these funds should be administered in the normal
course pursuant to procedures set forth in the existing DIP/cash
collateral order in the case. The Buyer, on the other hand,
believes it has a claim to the funds based on services provided to
GeoK UK pursuant to the Transition Services Agreement.
Finally, with respect to Customer Payments related to non-Turkish
Petroleum receivables held by GeoK UK, the funds are for services
provided by GeoK UK but were received into a DIP bank account after
the sale closing date. The Debtors believe these funds should be
administered in the normal course pursuant to procedures set forth
in the existing DIP/cash collateral order in the case. The Buyer,
on the other hand, believes it has a claim to the funds based on
services provided to GeoK UK pursuant to the Transition Services
Agreement.
The Debtors and Buyer have also encountered transition issues
concerning accounts receivables and work-in-process generated by
the Debtors' domestic processing group relating to customer
contracts that were not assumed by Buyer but were later serviced at
the Buyer's (or its affiliates') expense pursuant to the Transition
Services Agreement ("U.S. Processing Receivables").
The Debtors and the Buyer have met and conferred regarding the
resolution of all post-closing disputes, including issues
concerning the U.S. Processing Receivables and Customer Payments.
As part of that process, the Debtors have determined that
assignment of the Equity Interests as part of the global resolution
is in the best interest of the estates and advances the purposes of
the Purchase Agreement.
On Sept. 7, 2018, the Debtors filed the Plan and Disclosure
Statement.
The Debtors request that the Court enters an order (i) approving
the Term Sheet; (ii) authorizing the Debtors to enter into a
settlement agreement substantially based on the terms of the Term
Sheet; (iii) authorizing the Debtors to sell the Equity Interests
free and clear of all liens, claims, interests and encumbrances;
and (iv) granting other relief as is warranted and just.
Pursuant to the proposed settlement and compromise:
(i) the Debtors will retain $250,000 of certain Customer
Payments previously received by the Debtors;
(ii) the Debtors will pay the remaining balance of the
Customer Payments to the Buyer;
(iii) the Debtors will retain all U.S. Processing Receivables
generated between July 26, 2018 and July 31, 2018;
(iv) U.S. Processing Receivables generated on or after Aug. 1,
2018 will be the property of the Buyer (including payments
previously received by the Debtors on account of such U.S.
Processing Receivables);
(v) the Debtors will retain the Retained TP Receivables
totaling approximately $453,190;
(vi) with respect to U.K. TP Receivables and WIP non-debtor
Geokinetics Processing, UK Ltd. will be entitled to retain all such
U.K. TP Receivables and WIP upon receipt; provided, however, that
to the extent any such U.K. TP Receivables and WIP have been
received by the Seller prior to the closing of the Settlement
Agreement, such payments will be transferred to an account
designated by Buyer prior to closing; provided further that after
closing of the Settlement Agreement, any U.K. TP Receivables and
WIP received by Seller will be paid to Buyer; provided further,
however, that notwithstanding the foregoing, Seller will be
entitled to receive or retain, as the case may be, the TP
Settlement Amount of $350,000;
(vii) with respect to Non-TP Receivables and WIP, the Seller
will cause GeoK UK to distribute or otherwise assign such Non-TP
Receivables and WIP to Seller, or to the extent not yet received at
closing of the Settlement Agreement, Seller will be entitled to
receive such Non-TP Receivables and WIP following closing of the
Settlement Agreement; and
(viii) the Debtors will assign, transfer, convey and deliver
to the Buyer all of the issued and outstanding equity interests of
Geokinetics Singapore Pte. Ltd., Geokinetics (Australasia) Pty.
Ltd. and GeoK UK.
Additionally, as part of the Debtors' assignment of the Equity
Interests and in consideration of the overall settlement and
compromise, subject to certain conditions, all cash and cash
equivalents of GeoK UK and GeoK Sing will be assigned to the
Debtors and all intercompany receivables and payables among GeoK
UK, GeoK Aus and GeoK UK on the one hand, and the Debtors or their
affiliates, on the other hand, will be eliminated. Further, prior
to the consummation of the transactions contemplated by the
Settlement Agreement, the Seller will use commercially reasonable
efforts to conduct the business of GeoK Sing, GeoK Aus and GeoK UK
in the ordinary course of business consistent with applicable
bankruptcy law and the orders of the Court, including not incurring
liabilities in the name of or for the account of GeoK Sing, GeoK
Aus, or GeoK UK outside the ordinary course of business, except as
otherwise contemplated in the Term Sheet.
For the reasons set forth, the Debtors believe that the proposed
settlement and compromise, along with the sale of the Equity
Interests, strikes a fair resolution of post-closing disputes
between the Debtors and the Buyer, provides for an efficient
transition of ongoing operational issues in a manner consistent
with the Purchase Agreement and will enable the Debtors to
efficiently move forward with resolving these chapter 11 cases.
Emergency relief is requested because it is imperative that the
remaining disputes between the Debtors and the Buyer be resolved
prior to solicitation of the Debtors Joint Plan of Liquidation of
Geokinetics, Inc. and Its Debtor Affiliates Under Chapter 11 of the
Bankruptcy Code and disclosure statement thereto.
A hearing on the Motion is set for Sept. 12, 2018 at 10:00 a.m.
Objections, if any, must be filed within 21 days from the date of
Notice service.
A copy of the Term Sheet attached to the Motion is available for
free at:
http://bankrupt.com/misc/Geokinetics_Inc_379_Sales.pdf
About Geokinetics Inc.
Geokinetics Inc. -- http://www.geokinetics.com/-- is an
independent land and seafloor geophysical company. Headquartered
in Houston, Texas, Geokinetics specializes in acquiring and
processing seismic data in challenging environments worldwide.
Geokinetics' Multi-Client team has developed more than 7,000 square
miles of 3D library data.
On June 25, 2018, Geokinetics Inc. and 8 affiliated debtors each
filed a voluntary petition for relief under Chapter 11 of the
United States Bankruptcy Code (Bankr. S.D. Tex. Lead Case No.
18-33410).
The cases are pending before the Honorable David R. Jones.
GOK estimated assets of $10 million to $50 million and liabilities
of $10 million to $50 million as of the bankruptcy filing.
The Debtors tapped Porter Hedges LLP as counsel; FTI Consulting,
Inc., as financial advisor; and Prime Clerk LLC as claims and
notice agent.
GRAND VIEW FINANCIAL: Stocktons Buying Ventura Property for $660K
-----------------------------------------------------------------
Grand View Financial, LLC, asks the U.S. Bankruptcy Court for the
Central District of California to authorize the bidding procedures
in connection with the sale of the residential real property
located at 428 Georgetown Ave., Ventura, California to Amelia and
Jon Stockton for $660,000, subject to overbid.
Through the Petition Date, the Debtor acquired 42 Properties.
Unfortunately, prior to the Petition Date, approximately 28 of the
44 Properties were purportedly foreclosed upon. The Debtor has
decided to stop pursuing recovery on 22 of the Foreclosed
Properties. Thus, at present, the Debtor has an interest in and/or
is pursuing recovery on 22 Properties.
The Debtor intends to sell such non-Foreclosed Properties, such as
the Georgetown Property, free and clear of liens, claims,
encumbrances, and interests (with certain exceptions), with such
liens, claims, encumbrances, and interests attaching to the
proceeds of sale. Once non-Foreclosed Properties, such as the
Georgetown Property, are sold, to the extent a consensual
resolution cannot be reached regarding the disposition of sale
proceeds as among the Debtor and any holders of Alleged Secured
Claims and Alleged Secured Liens (and possibly any Former Owners),
the Debtor will litigate, in contested Claim Objections or
Adversary Proceedings, with the holders of Alleged Secured Claims
and Alleged Secured Liens (and possibly any Former Owners)
pertaining to the non-Foreclosed Properties, to determine their
claims and, therefore, the appropriate distribution of the proceeds
from the sale of the subject non-foreclosed Property.
The Debtor believes that the foregoing is more likely to result in
a higher net benefit to the estate than litigating all Adversary
Proceedings and Claim Objections regarding the Foreclosed
Properties.
Consistent with the Debtor's business model, the Debtor and Raymond
Gutierrez and his wife, the Former Owners of the Georgetown
Property, entered into a Purchase Agreement, the Debtor issued an
Unsecured Note to the Gutierrezes, the Gutierrezes executed a
Rental Agreement, and the Gutierrezes executed a Grant Deed
transferring title to the Georgetown Property to the Debtor.
The Debtor already sought and obtained Court authority to reject
the Rejected Purchase Agreements, each of which pertained to a
Foreclosed Property. In respect to non-Foreclosed Properties, in
furtherance of the Debtor's exit strategy, the Debtor (1) obtained
Court authority to employ the Broker as its real estate broker to
market and sell the Properties at the appropriate time with the
assistance of the Broker, began to market certain of the
non-Foreclosed Properties for sale, including the Georgetown
Property. The Debtor's Court-approved employment of the Broker
provides for a 6% commission to be paid to the Broker and shared
with the cooperating broker in connection with the sale of the
Georgetown Property.
In addition, the Debtor obtained a general claims bar date of May
4, 2018 and provided notice thereof. Also in furtherance of the
its exit strategy, the Debtor filed a motion to approve a
settlement agreement between the Debtor and certain of its
Affiliates pursuant to which, inter alia, the Affiliate DOTs issued
by the Debtor to certain of its Affiliates would be deemed to be
released, reconveyed, terminated, and expunged from title. On June
28, 2018, the Court entered its Affiliate Settlement Order granting
the Affiliate Settlement Motion and deeming the Affiliate DOTs to
be released, reconveyed, terminated, and expunged from title.
The Broker's marketing efforts resulted in numerous views on the
MLS and other online platforms, a number of private showings, and
multiple offers for the Georgetown Property. In addition to the
foregoing, the Broker will continue to market the Georgetown
Property through the Auction date in an effort to attract
Overbidders.
The efforts of the Debtor and the Broker to market and sell the
Georgetown Property resulted in the Debtor receiving a number of
signed offers for the Georgetown Property. Ultimately, after
considering other and prior purchase offers, and based on
consultation with its professionals, the Debtor accepted the offer
from the Buyer and entered into the Purchase Agreement.
The salient terms of the APA are:
a. Name of Buyers: Amelia and Jon Stockton
b. Asset: The Georgetown Property
c. Purchase Price: $660,000 subject to overbid
d. Deposit: $19,800 (3% of the Purchase Price)
e. Estimated Costs of Sale: Total of 8% comprised of a 6%
commission for the Debtor's broker, plus any outstanding real
property taxes, plus other customary closing costs.
f. Condition of Asset/Property: "As-is" and "Where Is"
g. Contingencies: The Purchase Agreement contained a due
diligence period that expired on Aug. 14, 2018. All contingencies
have now been lifted other than the entry of the Sale Order
approving the sale of the Georgetown Property to the Buyers.
h. Other Terms: The sale is subject to the Overbid Procedures
and Break-Up Fee set forth. Further, the Debtor's sale of the
Georgetown Property will be free and clear of any and all liens,
claims, encumbrances, and interests.
i. Potential Tax Consequences: The Debtor will have to pay
applicable capital gains taxes stemming from the sale of the
Georgetown Property after applicable deductions and exemptions.
The salient terms of the Bidding Procedures are:
a. Bid Deadline: Three business days prior to the Auction
b. Initial Bid: The Purchase Price of $660,000, plus at least
$10,000 more (i.e., at least $670,000)
c. Deposit: 10% of the Initial Overbid Amount
d. Auction: The Auction will be held concurrently with the
hearing on the Motion, on Oct. 2, 2018 at 2:30 p.m.
e. Bid Increments: $1,000 or amounts that are wholly divisible
by $1,000
f. Break-Up Fee: $5,000
The Debtor asks the Court to authorize them to pay from the
proceeds of the sale of the Georgetown Property (a) any pre-closing
real property taxes secured by the Georgetown Property allocated to
the Debtor, (b) the 6% commission owed to the Debtor's broker,
Keller Williams Realty and KW Commercial and associated Keller
Williams Realty and KW Commercial offices located throughout the
United States, and any cooperating broker, pursuant to the Purchase
Agreement and the Debtor's application to employ the Broker, which
was approved by the Court, and (c) any other customary escrow
closing fees and charges allocated to the Debtor.
Based on the foregoing, the Debtor submits that the proposed sale
of the Georgetown Property is in the best interests of the estate
and its creditors and, therefore, represents a sound exercise of
the Debtor's business judgment.
Finally, the Debtor asks the Court to waive the 14-day stay period
set forth in Rule 6004(h) of the Federal Rules of Bankruptcy
Procedure to enable the sale of the Georgetown Property to close as
quickly as possible.
A hearing on the Motion is set for Oct. 2, 2018 at 2:30 p.m.
Objections, if any, must be filed at least 14 days prior to the
hearing on the Motion.
A copy of the APA attached to the Motion is available for free at:
http://bankrupt.com/misc/Geokinetics_Inc_379_Sales.pdf
About Grand View Financial
Formed in 2015, Grand View Financial LLC is a Wyoming limited
liability company, which is in the business of acquiring distressed
real property.
Grand View Financial sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. C.D. Cal. Case No. 17-20125) on Aug. 17,
2017. In the petition signed by Steve Rogers, its managing member,
the Debtor disclosed $29.88 million in assets and $39.71 million in
liabilities. Judge Julia W. Brand presides over the case. Levene,
Neale, Bender, Yoo & Brill LLP serves as the Debtor's legal
counsel.
GREEN FIELD: Trustee Entitled to Recover $16.6MM from M. Moreno
---------------------------------------------------------------
The Trustee filed the adversary proceeding captioned ALAN HALPERIN,
AS TRUSTEE OF THE GFES LIQUIDATION TRUST, Plaintiff, v. MICHEL B.
MORENO; MOR MGH HOLDINGS, LLC; FRAC RENTALS, LLC; TURBINE
GENERATION SERVICES, LLC; AERODYNAMIC, LLC; CASAFIN II, LLC,
Defendants, Adv. Pro. No. 15-50262 (KG) (Bankr. D. Del.) on April
6, 2015, following confirmation of the plan of liquidation of
debtors Green Field Energy Services, Inc., et al.
After considering extensive stipulated facts, Bankruptcy Judge
Kevin Gross finds in favor of Moreno and Defendants and against the
Trustee on the Trustee's claims arising from the waiver of the
PowerGen business for constructive fraudulent transfer, actual
fraudulent transfers, breach of fiduciary duty and corporate waste.
The Court also finds in TGS's favor on the claim against TGS for
aiding and abetting Moreno's breach of fiduciary duty. The Court
therefore finds that there are no damages for each of these causes
of action. The Court, however, finds in favor of the Trustee on his
claims relating to the two SPAs. Further, the Court finds that the
Trustee can recover the judgments previously awarded to him for his
preferential transfer claims against Aerodynamic, Casafin and Frac
Rentals against Moreno personally as the entity for whose benefit
the transfers have been made.
The Trustee's Complaint originally pleaded 35 counts in four broad
categories: (1) Counts 1-10 related to the transfer of the
so-called power generation business ("PowerGen" or "power
generation") opportunity; (2) Counts 11-14 related to the two share
purchase agreements; (3) Counts 15-26 related to various alleged
preferential and/or fraudulent transfers; and (4) Counts 27-35
sought disallowance and/or subordination of various administrative
claims and proofs of claim filed by Moreno and/or entities he
controls.
The Trustee has settled and dismissed Causes of Action ("Count") 9,
and 10, against all Director Defendants. The Trustee also settled
Counts 11 and 33 as against one of Debtor's former shareholders--
Moody, Moreno and Rucks, LLC ("MMR"), which was dismissed from this
proceeding. The Trustee also voluntarily withdrew Counts 4, 5, 13,
15, 16, 17, 18, 20, 22, 25, and 26.
In one of the issues, the Trustee seeks damages for MOR MGH's
breaches of the 2012 and 2013 SPAs, respectively. Under applicable
New York law,18 "an action for breach of contract requires proof of
(1) a contract; (2) performance of the contract by one party; (3)
breach by the other party; and (4) damages." In its SJ Opinion,
the Court determined that the first two elements were uncontested
and that "the 2012 SPA was breached and that MOR MGH and MMR did
not make their required purchases for each of the first two
quarters of 2013." The Court also found that "MOR MGH never made
the $10,000,000 purchase under the 2013 SPA, as required." Both in
the SJ Opinion and its Reconsideration Order, the Court denied
awarding judgment to the Trustee at that time on the basis that
"[w]hether Green Field was or was not in the `same economic
position' that it would have been without the breach of contract is
an issue that remains for trial." With the trial record before it,
the Court now finds that Green Field was damaged by MOR MGH's
breaches of the SPAs.
At summary judgment, the Trustee asked the Court to follow those
cases holding that "under New York law, where the breach of
contract was a failure to pay money, the plaintiff is entitled to
recover the unpaid amount due under the contract plus interest."
The Court now holds that the Trustee has met his burden of proof of
damages by establishing non-payment of the amounts owed under the
2012 and 2013 SPAs.
Accordingly, the Trustee has proven that Green Field suffered
damages in the amount of $15,961,923 due to MOR MGH's failure to
honor its obligations under the 2012 and 2013 SPAs. The Trustee
prevails on damages, plus applicable prejudgment interest. The New
York legal interest rate is 9% per annum, N.Y. C.P.L.R. section
5004, and is calculated on a simple interest basis.
The Trustee also seeks damages against Moreno personally for his
tortious interference with the obligations of MOR MGH and MMR under
the SPAs. The Court finds that Moreno interfered with MMR's
obligations under the 2012 SPA. Moreno was aware that if he did not
cause MOR MGH to make its payment and Moreno did not contribute his
one-third share of MMR's obligations, then his partners in MMR
would likewise not follow through with payment. Blackwell, who was
responsible for sending the notices to the shareholders and was
responsible for Green Field's finances, testified that Rucks and
Moody were not going to make their funding calls unless Moreno made
his. Even though Moreno directed Blackwell to represent to Moody
and Rucks that Moreno was intending to make the payments, Moreno
had no intention to perform, did not perform and, as a result,
caused Moody and Rucks to breach the 2012 SPA. Moreno was thus
responsible for interfering with MMR's obligations.
Thus, the Court finds that Moreno intentionally and tortuously
interfered with the obligations of MOR MGH and MMR under the SPAs,
damaging Green Field in the amount of $16,607,081. The damages for
tortious interference are duplicative of the damages for breach of
contract but include an additional $645,158, before the accrual of
prejudgment interest. Accordingly, the Court finds that the Trustee
is entitled to recover $16,607,081, plus prejudgment interest from
Moreno personally. The Court alternatively finds that because
Moreno tortiously interfered with the 2013 SPA and used $10 million
to purchase his personal residence in Dallas, the Trustee is
entitled to a constructive trust over that property in the amount
of $10 million.
A full-text copy of the Court's Opinion and Findings dated Sept.
12, 2018 is available at https://bit.ly/2Dky86O from Leagle.com.
Green Field Energy Services, Inc., Debtor, represented by Josef S.
Athanas -- josef.athanas@lw.com -- Latham & Watkins LLP, Sarah E.
Barr -- sarah.barr@lw.com -- Latham & Watkins LLP, Craig A.
Batchelor -- craig.batchelor@lw.com -- Latham & Watkins LLP, Kara
Hammond Coyle -- kcoyle@ycst.com -- Young Conaway Stargatt & Taylor
LLP, Christopher R. Harris -- Christopher.harris@lw.com -- Latham &
Watkins LLP, John A. Lister , Latham & Watkins LLP, Dennis A.
Meloro , Greenberg Traurig, LLP, Michael R. Nestor --
mnestor@ysct.com -- Young Conaway Stargatt & Taylor,Caroline
Reckler , Latham & Watkins LLP, Justin H. Rucki , Young Conaway
Stargatt & Taylor, LLP & Matthew L. Warren , Latham & Watkins LLP.
Steven A. Felsenthal, Examiner, represented by Briana Leigh Cioni,
Stutzman, Bromberg, Esserman & Plifka, Peter C. D'Apice , Daniel K.
Hogan, HoganMcDaniel & Jacob Newton, Stutzman Bromberg Esserman &
Plifka A Professional Corporation.
Steven A. Felsenthal, Examiner, pro se.
U.S. Trustee, U.S. Trustee, represented by Tiiara N.A. Patton,
United States Department of Justice Office of the United States
Trustee.
Prime Clerk, Claims Agent, represented by Benjamin Joseph Steele,
Prime Clerk LLC.
About Green Field Energy
Green Field Energy Services, Inc., is an independent oilfield
services company that provides a wide range of services to oil and
natural gas drilling and production companies to help develop and
enhance the production of hydrocarbons. The Company's services
include hydraulic fracturing, cementing, coiled tubing, pressure
pumping, acidizing and other pumping services.
Green Field Energy and two affiliates filed Chapter 11 petitions in
Delaware on Oct. 27, 2013, after defaulting on an $80 million
credit provided by an affiliate of Royal Dutch Shell Plc (Bankr. D.
Del. Case No. 13-bk-12783).
The Debtors hired Michael R. Nestor, Esq., and Kara Hammon Coyle,
Esq., at Young Conaway Stargatt & Taylor, LLP, in Wilmington,
Delaware; and Josef S. Athanas, Esq., Caroline A. Reckler, Esq.,
Sarah E. Barr, Esq., and Matthew L. Warren, Esq., at Latham &
Watkins LLP, in Chicago, Illinois, as attorneys.
Carl Marks Advisory Group LLC was hired as investment banker, and
Thomas E. Hill, from Alvarez & Marsal North America, LLC, was hired
as the Debtors' chief restructuring officer.
In its schedules, Green Field disclosed $306,960,039 in total
assets and $447,199,869 in total liabilities.
Roberta A. DeAngelis, The U.S. Trustee for Region 3, appointed six
members to the official committee of unsecured creditors in the
Chapter 11 cases of Green Field Energy Services, Inc., et al.
The Bankruptcy Court authorized the U.S. Trustee to appoint Steven
A. Felsenthal, Esq., as examiner. He retained The Hogan Firm as
his counsel.
Leslie Turk, writing for Theind.com, reports that the case was
later converted to a Chapter 7 and its assets liquidated in a sale.
GROM SOCIAL: 2 Officers Convert $500,000 Loans to Equity
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Grom Social Enterprises' officers, Darren Marks and Mel Leiner had
converted a combined total of $500,000 of their interest-free loans
due on July 1, 2019 to Grom Common Stock, at a price of $0.31,
which is approximately 20% above the closing market of $0.25 on
Sept. 18, 2018. This marks the second transaction of this nature
for Messrs. Marks and Leiner who converted a combined $500,000 of
their demand loans into Grom common stock in January 2018; as well
as changing the terms of their short-term demand loans to long-term
loans. As a result of the transaction, Mr. Marks and Mr. Leiner's
loan balances were reduced to $861,000 and $674,000, respectively.
Mr. Marks and Mr. Leiner now beneficially own 16,070,649 and
9,850,000 shares of the Company's Common Stock, respectively.
Darren Marks, Chairman and CEO, commented, "Since the beginning of
2018 we have converted nearly 40% of our loan balances to equity at
above market prices. Overall, we believe that our stock price is
undervalued and doesn't reflect the progress we've made this year
in increasing the size of our Grom Social database and other
platforms to nearly 17 million users since inception, as well as
positioning the Company for a NASDAQ listing and future growth."
About Grom Social
Formerly known as Illumination America, Inc., Grom Social
Enterprises, Inc. -- http://www.gromsocial.com/-- operates five
subsidiaries, including Grom Social, a safe, social media platform
for kids between the ages of five and 16. Since its beginnings in
2012, Grom Social has attracted kids and parents with the promise
of a safe and secure environment where their kids can be
entertained and can interact with their peers while learning good
digital citizenship. The Company also owns and operates Top Draw
Animation, Inc., an award-winning animation company which produces
animated content for Grom Social and other high-profile media
properties such as Tom and Jerry, My Little Pony and Disney
Animation's Penn Zero: Part-Time Hero. In addition, Grom
Educational Services provides web filter services up to an
additional two million children across 3,700 schools and libraries,
and Grom Nutritional Services is in the process of creating a line
of healthy nutritional supplements for children.
The report from the Company's independent accounting firm B F
Borgers CPA PC, on the consolidated financial statements for the
year ended Dec. 31, 2017, includes an explanatory paragraph stating
that the Company incurred recurring losses from operations, has net
current liabilities and an accumulated deficit that raise
substantial doubt about its ability to continue as a going
concern.
Grom Social reported a net loss of $6.04 million in 2017 compared
to a net loss of $10.71 million in 2016. As of June 30, 2018, Grom
Social had $19.02 million in total assets, $12.88 million in total
liabilities and $6.14 million in total stockholders' equity.
HOOPER HOLMES: E. Frejka Appointed Consumer Privacy Ombudsman
-------------------------------------------------------------
William K. Harrington, United States Trustee for Region 2, pursuant
to the order directing the appointment under Section 332 of the
Bankruptcy Code of a consumer privacy ombudsman, appoints Elise
Frejka as consumer privacy ombudsman in the Chapter 11 case of
Hooper Holmes, Inc.
About Hooper Holmes
Headquartered in Olathe, Kansas, Hooper Holmes, Inc., provides
comprehensive health and well-being programs offered through
organizations' sponsorship. Hooper Holmes, founded in 1899, is a
publicly-traded New York corporation (OTXQX: HPHW).
In 2015, Hooper Holmes acquired substantially all of the assets of
Accountable Health Solutions, Inc. In 2017, Hooper Holmes merged
with Provant Health Solutions, LLC.
Hooper Holmes, Inc., and its affiliates sought Chapter 11
protection (Bankr. S.D.N.Y. Lead Case No. 18-23302) on Aug. 27,
2018. Hooper Holmes reported total assets of $30,232,000 and total
debt of $46,839,000 as of June 30, 2018.
The Hon. Robert D. Drain is the case judge.
Foley & Lardner LLP, led by Richard J. Bernard, John P. Melko, Jill
Nicholson, and Geoff Goodman, serves as counsel to the Debtors. The
Debtors also tapped Halperin Battaglia Benzija, LLP, as their
conflicts counsel; Spencer Fane LLP as securities counsel; Phoenix
Management Services as financial advisor; Raymond James &
Associates, Inc., as investment banker; and Epiq Corporate
Restructuring, LLC, as claims agent.
On Sept. 6, 2018, an official committee of unsecured creditors was
appointed in the Debtors' cases. Brown Rudnick LLP represents the
Committee.
IHEARTMEDIA INC: Amends Plan to Add Latest Unsecured Creditors
--------------------------------------------------------------
iHeartMedia, Inc. and its debtor affiliates submit a disclosure
statement relating to their fourth amended joint plan of
reorganization.
Under the latest Plan, Holders of Allowed iHC 2021/Legacy Notes
Claims will receive their Pro Rata share of $200 million of the New
Debt and 5% of the equity in Reorganized iHeart (or 5% of the
beneficial interests in the FCC Trust if the FCC Trust is
utilized). In addition, Holders of Allowed iHeart Interests will
receive their share of 1% of the equity in Reorganized iHeart (or
1.0 percent of the beneficial interests in the FCC Trust if the FCC
Trust is utilized).
The Senior Creditors will receive the following distributions under
the Plan, which the Debtors believe is commensurate with the
approximately $2 billion of value that the Debtors ascribe to the
Non-Principal Property securing such Allowed Claims of the Senior
Creditors, which value has been adjusted to take into account the
effect of the Disputed Committee Claims raised by the Committee in
the Amended Committee Standing Motion. The distributions, in the
aggregate, comprise $1,386 million of New Debt, 23.47 percent of
the equity in Reorganized iHeart (or 23.47 percent of the
beneficial interests in the FCC Trust), and any Excess Cash.
Holders of Allowed Guarantor Unsecured Claims (other than Allowed
Exchange 11.25% PGN Claims) at each Guarantor Debtor other than CCH
and the TTWN Debtors will receive a specified portion of the
remaining $4,164 million of New Debt and 70.53% of equity in
Reorganized iHeart (or 70.53% of the beneficial interests in the
FCC Trust). In determining the allocation of this remainder across
each of the Guarantor Debtors (other than CCH and the TTWN
Debtors), the Debtors took into account their estimate of an
appropriate allocation of enterprise value across all Debtor
entities.
The Plan also includes five additional classes of unsecured
creditors, which the Plan treats as follows:
* Holders of Allowed Guarantor Unsecured Claims against CCH will
receive their Pro Rata share of 100 percent of the CCOH Interests
held by the Debtors and CC Finco, LLC and Broader Media, LLC, which
are non-Debtor affiliates of the Debtors (which is estimated to be
approximately 89.5% of all outstanding CCOH Interests). The Plan
allows the Term Loan/PGN Deficiency Claims in the full amount of
such claims in this Class since the Plan does not include the value
of any of CCH's assets as part of the Secured Term Loan Credit
Agreement Claims or Secured PGN Claims.
* Holders of Allowed General Unsecured Claims against
Non-Obligor Debtors and the TTWN Debtors will receive, at the
option of the applicable Reorganized Debtor, payment in full in
Cash or such other treatment rendering such Holder's Allowed
General Unsecured Claim Unimpaired.
* Holders of Allowed iHC Unsecured Claims will receive payment
in Cash equal to
14.44 percent of the Allowed amount of such Allowed iHC Unsecured
Claim; provided that pursuant to the Plan Settlement, each Allowed
Term Loan/PGN Deficiency Claim against iHC will be canceled without
any distribution on account of such Allowed Term Loan/PGN
Deficiency Claim against iHC. The Plan allows the Term Loan/PGN
Deficiency Claims in the full amount of such claims in this Class
since the Plan does not include the value of any of iHC's assets as
part of the Secured Term Loan Credit Agreement Claims or Secured
PGN Claims.
* Holders of Allowed Term Loan/PGN Deficiency Claims against the
TTWN Debtors will receive no recovery, and will instead be deemed
satisfied by the distributions to other parties provided in Class
6, Class 7D, Class 7E, and Class 8.
A full-text copy of the Latest Disclosure Statement is available
at:
http://bankrupt.com/misc/txsb18-31274-1467.pdf
About iHeartMedia, Inc. and iHeartCommunications, Inc.
iHeartMedia, Inc. (PINK:IHRT), the parent company of
iHeartCommunications, Inc., is a global media and entertainment
company. Based in San Antonio, Texas, iHeartCommunications
specializes in radio, digital, outdoor, mobile, social, live
events, on-demand entertainment and information services for local
communities, and uses its unparalleled national reach to target
both nationally and locally on behalf of its advertising partners.
The Company operates 849 radio stations. The Company's outdoor
business reaches over 34 countries across five continents.
To implement a balance sheet restructuring, iHeartMedia and 38 of
its subsidiaries, including iHeartCommunications, Inc., filed
voluntary petitions for relief under Chapter 11 of the U.S.
Bankruptcy Code (Bankr. S.D. Tex. Lead Case No. 18-31274) on March
14, 2018. The cases are pending before the Honorable Marvin Isgur,
and the Debtors have requested joint administration of the cases.
Clear Channel Outdoor Holdings, Inc. and its subsidiaries did not
commence Chapter 11 proceedings.
As of Sept. 30, 2017, iHeartCommunications had $12.25 billion in
total assets, $23.93 billion in total liabilities, and a total
stockholders' deficit of $11.67 billion.
The Debtors have hired Kirkland & Ellis LLP as legal counsel;
Jackson Walker L.L.P. as local bankruptcy counsel; Munger, Tolles &
Olson LLP as conflicts counsel; Moelis & Company and Perella
Weinberg Partners L.P as financial advisors; Alvarez & Marsal as
restructuring advisor; and Prime Clerk LLC as notice & claims
agent.
The 2021 Noteholder Group is represented by Gibson Dunn & Crutcher
LLP and Quinn Emanuel Urquhart & Sullivan, LLP as co-counsel; and
GLC Advisors & Co. as financial advisor. The ad hoc group of Term
Loan Lenders is represented by Arnold & Porter Kaye Scholer LLP as
counsel; and Ducera Partners as financial advisor. The Legacy
Noteholder Group is represented by White & Case LLP as counsel.
The Debtors' equity sponsors are represented by Weil, Gotshal &
Manges LLP as counsel.
The Office of the U.S. Trustee for Region 7 on March 21 appointed
seven creditors to serve on the official committee of unsecured
creditors in the Chapter 11 cases of iHeartMedia, Inc. and its
affiliates. The Committee tapped Akin Gump Strauss Hauer & Feld LLP
as its legal counsel, FTI Consulting, Inc., as its financial
advisor, and Jefferies LLC as its investment banker.
INTOWN COMPANIES: $10K Sale of Panama Property to Panama Assets OKd
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Judge James R. Sacca of the U.S. Bankruptcy Court for the Northern
District of Georgia authorized The Intown Companies, Inc.'s sale of
the real property, and improvements thereon, located at 4810 West
Highway 98, Panama City, Florida, Parcel Number 28274-000-000 in
Bay County, Florida, to Panama Assets, LLC for $10,000.
The sale is free and clear of all liens, claims, encumbrances,
claims of creditors, or interests of any kind or nature
whatsoever.
Upon consummation of the Sale, the Debtor is authorized and
directed to assume and assign each the Assigned Contracts to the
Buyer free and clear of all claims, interests, and encumbrances as
of the Closing Date. The payment of the applicable Cure Amounts
(if any) will (a) effect a cure or adequate assurance of cure of
all defaults existing thereunder as of the Petition Date and (b)
compensate for any actual pecuniary loss to such Contract
Counterparty resulting from such default.
Notwithstanding Bankruptcy Rules 6004(g), 6006(d) and 7062, the
Sale Order will be effective and enforceable immediately upon
entry.
About The Intown Companies
After filing for bankruptcy in 2014 (Bankr. N.D. Fla. Case No.
14-50374), the Intown Companies, Inc., again sought protection
under Chapter 11 of the Bankruptcy Code on Feb. 23, 2018 (Bankr.
N.D. Ga. Case No. 18-53046). Judge James R. Sacca presides over
the case. Wiggam & Geer, LLC, is the Debtor's counsel.
JAGUAR HEALTH: Signs License Agreement with Knight Therapeutics
---------------------------------------------------------------
Knight Therapeutics Inc., a Canadian-based specialty pharmaceutical
company focused on acquiring, in-licensing, selling and marketing
innovative prescription and over-the-counter pharmaceutical
products, and Jaguar Health, Inc. have entered into a distribution,
license and supply agreement that grants Knight the exclusive right
to commercialize Mytesi (crofelemer 125 mg delayed-release tablets)
and related products in Canada and Israel and a right of first
negotiation to commercialize Mytesi and related products in
specified Latin American countries.
Mytesi is an FDA-approved product in the U.S. indicated for the
symptomatic relief of noninfectious diarrhea in adult patients with
HIV/AIDS on antiretroviral therapy (ART). Jaguar is also pursuing
possible follow-on indications for Mytesi in cancer therapy-related
diarrhea (CTD), an important supportive care indication for
patients undergoing cancer treatment; for rare disease indications
for infants and children with congenital diarrheal disorders and
short bowel syndrome (SBS); for irritable bowel syndrome (IBS); for
supportive care for inflammatory bowel disease (IBD); and as a
second-generation anti-secretory agent for use in cholera
patients.
Under the terms of the Agreement, Knight will be responsible for
all regulatory and commercial activities for Mytesi and related
products in the licensed territories. Upon achievement of certain
regulatory and sales milestones defined in the Agreement, Jaguar
may receive payments from Knight Therapeutics in an aggregate
amount of up to US$18,019,743 (based on Sept. 23, 2018 USD-CAD
exchange rates) payable throughout the initial 15-year term of the
Agreement.
"We are pleased to enter into this strategic transaction with
Jaguar for Mytesi," said Jonathan Ross Goodman, chief executive
officer of Knight." Mytesi will strengthen Knight's portfolio of
GI products and will be an important treatment option for Canadian
and Israeli patients, if Mytesi is approved in these markets. We
are excited to support Jaguar as they seek to develop Mytesi for
follow-on indications such as cancer therapy-related diarrhea."
"Our collaboration with Knight is an important step towards
unlocking value and making our products available in global
markets," said Lisa Conte, president and chief executive officer of
Jaguar. "The Knight team is highly experienced and has a strong
track record of successful partnerships."
About Jaguar Health
Jaguar Health, Inc. -- http://www.jaguar.health/-- is a commercial
stage natural-products pharmaceuticals company focused on
developing novel, sustainably derived gastrointestinal products on
a global basis. Its wholly-owned subsidiary, Napo Pharmaceuticals,
Inc., focuses on developing and commercializing proprietary human
gastrointestinal pharmaceuticals for the global marketplace from
plants used traditionally in rainforest areas. Jaguar Health's
principal executive offices are located in San Francisco,
California.
Jaguar Health reported a net loss of $21.96 million for the year
ended Dec. 31, 2017, compared to a net loss of $14.73 million for
the year ended Dec. 31, 2016. As of June 30, 2018, Jaguar Health
had $46.15 million in total assets, $23.13 million in total
liabilities, $9 million in Series A convertible preferred stock and
$14.01 million in total stockholders' equity.
BDO USA, LLP, in San Francisco, Calif., issued a "going concern"
opinion in its report on the consolidated financial statements for
the year ended Dec. 31, 2018, stating that the Company has suffered
recurring losses from operations and an accumulated deficit that
raise substantial doubt about its ability to continue as a going
concern.
JEFFREY BERGER: $480K Sale of Williston Property to Rollis Approved
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Judge Benjamin P. Hursh of the U.S. Bankruptcy Court for the
District of Montana authorized Jeffrey W. Berger and Tami M. Berger
to sell the real property located at 6025 138th Avenue, NW,
Williston, Williams County, North Dakota, more specifically
described as Twp. 156 N, Rge. 101W, Sec. 33: Nesese, to Rolis, LLC
for $480,000.
The sale is free and clear of liens.
The sale proceeds will be used to satisfy (i) costs of closing,
(ii) property taxes, (iii) real estate commission owed to Bill
Bahny and Erik Peterson as approved by the Court, (iv) $4,800 paid
to the Debtors, and (v) the remainder, at least $435,000, paid to
Yellowstone Bank.
The Order constitutes a final and appealable order. The Court
expressly finds that there is no just reason for delay in the
implementation of the Order.
Jeffrey W. Berger and Tami M. Berger sought Chapter 11 protection
(Bankr. D. Mont. Case No. 18-60032) on Jan. 16, 2018.
The Debtor tapped PATTEN, PETERMAN, BEKKEDAHL & GREEN P.L.L.C., as
counsel. Bill Bahny with Bahny and Associates and Erik Peterson
with Proven Realty, LLC, serve as brokers.
JOSEPH HEATH: $323K Sale of Ft. Lauderdale Property Approved
------------------------------------------------------------
Judge Klinette H. Kindred of the U.S. Bankruptcy Court for the
Eastern District of Virginia authorized Joseph F. Heath's sale of
the real property located at 1033 N.E. 17th Way, #2002, Ft.
Lauderdale, Florida to Jonas and Jessica Fernandes for $322,500.
The sale is free and clear of all liens.
The liens of the U.S. Bank National Association, as Indenture
Trustee, in trust for Holders of the HomeBanc Mortgage Trust
2005-3, Mortgage Banked Notes and the IRS will attach to the
proceeds.
The Debtor is authorized and directed to distribute the sale
proceeds as follows:
a. the ordinary and necessary costs of closing and
recordation, including local property taxes and real estate
commissions;
b. the secured claim of the U.S. Bank;
c. a $3,000 credit to the Buyers for repairs; and
d. the IRS will then receive the Debtor's one-half share of
the remaining proceeds directly from the settlement, in full
satisfaction of its liens on the Property.
The sale of the Property is free and clear of the Tax Lien
identified in the IRS' proof of claim.
Upon settlement, the Debtor will promptly prepare and file a Report
of Sale detailing the distribution of the sale proceeds as
described.
About Joseph F. Heath
Joseph F. Heath sought Chapter 11 protection (Bankr. E.D. Va. Case
No. 07-14107) on Dec. 27, 2007. The Debtor estimated assets in the
range of $0 to $50,000 and $100,001 to $500,000 in debt. The
Debtor tapped Bennett A. Brown, Esq., at The Law Office of Bennett
A. Brown, as counsel.
On Dec. 22, 2017, the Court confirmed the Debtor's Second Amended
Plan.
JOSEPH HEATH: $470K Sale of Alexandria Property to Whitford Okayed
------------------------------------------------------------------
Judge Klinette H. Kindred of the U.S. Bankruptcy Court for the
Eastern District of Virginia authorized Joseph F. Heath's sale of
the real property located at 3378 Beechcliff Drive, Alexandria,
Virginia to Theodore W. Whitford, III, for $470,000.
The sale is free and clear of all liens, including the lien of the
IRS for the sum of $470,000, less a buyer's credit of $6,000 for
repairs pursuant to a contract dated July 27, 2018.
The liens of Ocwen Loan Servicing, LLC and the IRS will attach to
the proceeds.
All real taxes and costs of sale, including a real estate
commission of $11,750 will be paid at settlement, and that
thereafter the funds will be distributed at settlement in the
following order:
a. to the first trust, Ocwen, to be paid in full;
b. a payment of $6,000, to GND Contracting for repairs;
c. a reserve of $4,875, payable to the Debtor for the U.S.
Trustee's fees for the third quarter of 2018; and
d. the remaining funds are to be paid directly to the IRS in
satisfaction of its lien on the Property.
Should the amount or any portion thereof reserved for the payment
of the U.S. Trustee's fees not be needed for the payment of those
fees, the Debtor is ordered to remit any surplus directly to the
IRS.
The sale of the Property is free and clear of the Tax Lien
identified in the IRS' proof of claim.
Upon settlement, the Debtor will promptly prepare and file a Report
of Sale detailing the distribution of the sale proceeds as
described.
About Joseph F. Heath
Joseph F. Heath sought Chapter 11 protection (Bankr. E.D. Va. Case
No. 07-14107) on Dec. 27, 2007. The Debtor estimated assets in the
range of $0 to $50,000 and $100,001 to $500,000 in debt. The
Debtor tapped Bennett A. Brown, Esq., at The Law Office of Bennett
A. Brown, as counsel.
On Dec. 22, 2017, the Court confirmed the Debtor's Second Amended
Plan.
KITTERY POINT: Court Nixes Bid to Lift Suspension of Proceedings
----------------------------------------------------------------
Bankruptcy Judge Michael A. Fagone entered an order denying Kittery
Point Partners, LLC's motion to lift suspension of proceedings and
for related relief in the case captioned Kittery Point Partners,
LLC, Plaintiff, v. Bayview Loan Servicing LLC & Todd Enright,
Defendants, Adv. Proc. No. 17-2065 (Bankr. D. Me.).
Bayview Loan Servicing, LLC may not have moved with alacrity in the
state court proceeding after receiving relief from stay in April
2018. However, Kittery has not articulated good grounds for fixing
a deadline for Bayview to answer or respond to the Second Amended
Complaint in the adversary proceeding given the status of the state
court litigation between the parties.
A copy of the Court's Order dated Sept. 11, 2018 is available at
https://bit.ly/2pxQtUh from Leagle.com.
Kittery Point Partners, LLC, Plaintiff, represented by David C.
Johnson, Marcus Clegg, Katherine Krakowka , Marcus Clegg & George
J. Marcus, Esq., Marcus Clegg.
Bayview Loan Servicing L.L.C. as servicer for InterBay Funding,
LLC, Defendant, represented by Andrew W. Sparks, Esq. --
asparks@ddlaw.com -- Drummond & Drummond.
About Kittery Point Partners
Kittery Point Partners, LLC is a Delaware limited liability company
with its principal place of business in Maine. It owns real estate
on Kittery Point, Maine.
The Debtor sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. D. Maine Case No. 17-20316) on June 22, 2017. Tudor
Austin, manager, signed the petition.
At the time of the filing, the Debtor estimated $1 million to $10
million in assets and less than $1 million in liabilities.
Judge Michael A. Fagone presides over the case. Marcus Clegg
represents the Debtor as bankruptcy counsel. The Debtor hired
Martin Associates, P.A. as its financial advisor.
KRAUS CARPET: Foreign Representative Selling TPS Business to QEP
----------------------------------------------------------------
Kraus Carpet, Inc., and affiliates ask the U.S. Bankruptcy Court
for the District of Delaware to recognize the Sale Approval and
Vesting Order to be entered by the Canadian Court authorizing the
private sale of substantially all assets related to the TPS
business and the premises located at 2216 Abutment Road in Dalton,
Georgia to Q.E.P. Co., Inc., and Roberts Co. Canada Ltd..
Kraus Carpet, Inc. is the authorized Foreign Representative of the
Debtors in a Canadian proceeding ("CCAA Proceeding") under the
Companies' Creditors Arrangement Act, R.S.C. 1985, ("CCAA") pending
before the Ontario Superior Court of Justice.
The Kraus Group has two divisions: (i) the manufacturing of
residential and commercial broadloom carpet ("Broadloom Business");
and (ii) the distribution and sale of flooring products to
commercial and residential customers, including carpet tiles, vinyl
tiles, laminate, and hardwood ("TPS Business").
On March 20, 2018, Hilco Capital engaged Deloitte Corporate Finance
Inc. ("DCF") to manage the sale of the TPS Business as a standalone
business that needed to be carved out of Kraus.
DCF, with the assistance of the Kraus Group's management,
identified a comprehensive list of strategic buyers and financial
buyers that might be interested in purchasing the TPS Business.
The list of TPS Prospective Purchasers was created from flooring
industry associate membership listings, analyst reports and
research reports on the flooring sectors, and DCF's own industry
research.
On May 24, 2018, the Purchaser signed a letter of intent ("May 24
LOI"). After signing the May 24 LOI, the Purchaser continued its
due diligence and on July 10, 2018, advised DCF that it was no
longer willing to offer the purchase price provided in the May 24
LOI but instead offered a lower purchase price.
DCF advised the Purchaser that the lower price was unacceptable and
the parties agreed that the May 24 LOI was no longer in effect.
Thereafter DCF attempted to find other purchasers, but was unable
to do so. Accordingly, DCF returned to the Purchaser to
renegotiate a deal for the purchase of the TPS Business. On Aug.
9, 2018, the Purchaser signed the final LOI. The purchase price in
the Final LOI is higher than the price proposed by the Purchaser on
July 10, 2018, but is lower than the original purchase price
offered in the May 24 LOI.
Pursuant to the Purchase Agreement, the Purchaser has agreed to
purchase substantially all of the assets related to the TPS
Business. The Purchaser has also agreed to assume specified
liabilities of the Kraus Group (including selected leases and trade
accounts payable). The Foreign Representative believes that the
Purchase Agreement is fair and reasonable under the circumstances,
is the result of good-faith, arm's-length negotiations, and is in
the best interests of the Debtors, their creditors, and other
stakeholders.
The purchased assets include all accounts receivable outstanding on
the closing date that relate to the TPS Business, inventory,
intellectual property owned by the Kraus Sellers used in connection
with the TPS Business, the furniture, fixtures, equipment, supplies
and other tangible personal property of the TPS Business, and
customer lists and sales records. The purchased assets also
include the premises located at 2216 Abutment Road in Dalton,
Georgia.
The Purchase Agreement contemplates that the Purchasers will
operate the TPS Business as a going concern, which will result in
the preservation of at least 160 jobs. Among other things, the
Purchase Agreement provides that the Debtors and the Purchaser will
use commercially reasonable efforts to achieve: (i) entry by the
Canadian Court of the Canadian Sale Order by Sept. 18, 2018; and
(iii) entry by the Court of the U.S. Order by no later than Oct. 2,
2018.
The Purchase Agreement contemplates that certain leases and
contracts held in certain of the Debtors' names will be assigned to
and assumed by the Purchaser at closing. The Purchase Agreement
requires the Debtors to use all reasonable commercial efforts to
obtain the landlords' and contractual counterparties' consent to
assignment where required under the leases or contracts to be
assigned for the 90 days following closing of the TPS Transaction.
If any of the contracts that are contemplated to be assigned under
the Purchase Agreement cannot be assigned, the Debtors and the
Purchaser will use commercially reasonable efforts to enter into
such arrangements to provide the parties the economic and, to the
extent permitted under applicable law, operational equivalent of
the transfer of such contract.
To facilitate an effective and efficient transition of the TPS
Business to the Purchaser, the Debtors and the Purchaser expect to
enter into an agreement for the provision of certain transition
services. The transition services contemplated under the
Transition Services Agreement include the transition of warehousing
functions, information technology services, and employment of
certain of the employees of the TPS Business, and collection of
accounts receivable outstanding on closing.
By the Motion, the Foreign Representative respectfully asks the
entry an order (a) recognizing the Canadian Sale Order entered by
the Canadian Court, which will (i) approve the Purchase Agreement
and certain ancillary agreements thereto; (ii) authorize and direct
the Debtors and their Canadian affiliates to take all steps
necessary to consummate the transactions contemplated by the
Purchase Agreement; (iii) vest in the Purchaser absolute, clear,
and unencumbered title in and to the Assets free and clear of all
liens and encumbrances relating to, accruing or arising any time
prior to the Closing Date; (b) authorizing and approving the Sale
free and clear of any Liens; (c) entrusting the distribution of the
proceeds generated from the sale of the Assets to the Foreign
Representative; and (d) granting certain related relief.
The Foreign Representative believes that the Sale of the Assets in
accordance with the terms and conditions of the Purchase Agreement,
the Canadian Sale Order, and the U.S. Order represents the best
realization of value for the Debtors' creditors and other
stakeholders under the circumstances, and the Court's recognition
of the Canadian Sale Order and approval of the Sale free and clear
of Liens is a critical step in achieving that result.
Time is of the essence with respect to the U.S. Order.
Accordingly, the Foreign Representative hereby requests that the
Court waive the 14-day stay period under Bankruptcy Rules 6004(h)
and 6006(d).
A copy of the Agreement attached to the Motion is available for
free at:
http://bankrupt.com/misc/Kraus_Carpet_9_Sales.pdf
The Purchasers:
Q.E.P. CO., INC.
Suite A, 1001 Broken Sound Parkway, NW
Boca Raton, Florida 33487
E-mail: hschulman@qep.com
Attn: Harry Schulman, CEO
The Purchasers are represented by:
Danielle Price, Esq.
HOLLAND & KNIGHT LLP
701 Brickell Avenue, Suite 3300
Miami, FL 33131
E-mail: danielle.price@hklaw.com
- and -
Carl Cunningham, Esq.
Ian Michael, Esq.
LPBENNETT JONES
3400 One First Canadian Place
P.O. Box 130
Toronto, ON Canada M5X 1A4
E-mail: cunninghamc@bennettjones.com
michaeli@bennettjones.com
About Kraus Carpet, Inc.
Kraus Carpet, Inc. -- http://krausflooring.com-- is a manufacturer
of tufted broadloom carpet and distributor of other flooring
products. The Debtor and its affiliates are part of a group of
companies, the Kraus Group, headquartered in Waterloo, Ontario,
Canada. The Kraus Group was founded in 1959 in Kitchener, Ontario
as a carpet manufacturer. Over the years it gradually expanded its
operations and range of products. The Kraus Group is now an
integrated carpet and flooring company. The Kraus Group was
acquired by Hilco Capital in 2012.
The Kraus Group has two divisions: (i) the manufacturing of
residential and commercial broadloom carpet; and (ii) the
distribution and sale of flooring products to commercial and
residential customers, including carpet tiles, vinyl tiles,
laminate, and hardwood.
Kraus Carpet, Inc. sought relief under Chapter 15 (Bankr. D. Del.
Case No. 18-12057) on Sept. 11, 2018. The case is assigned to
Judge Kevin Gross.
The Debtor tapped Derek C. Abbott, Esq., and Matthew B. Harvey,
Esq., at Morris, Nichols, Arsht & Tunnel, LLP; and Joseph R. Sgroi,
Esq., Scott B. Kitei, Esq., and Glenn S. Walter, Esq., at Honigman
Miller Schwartz & Cohn LLP.
LEGACY RESERVES: Kirkland Served as Counsel on Reorganization
-------------------------------------------------------------
Kirkland & Ellis LLP represented Legacy Reserves Inc. and Legacy
Reserves LP (the "Partnership") on the completion of the previously
announced corporate reorganization of the Partnership, pursuant to
which the unitholders and holders of preferred units of the
Partnership became stockholders of Legacy, which is a
publicly-traded corporation. At the Partnership's special meeting
on Sept. 19, 2018, unitholders approved the merger agreement with
approximately 99 percent of the votes cast.
The Kirkland team was led by capital markets partners Matt Pacey
and Michael Fisherman and associates Samantha Blons, Caleb Lowery
and Daniel Cadis.
About Legacy Reserves LP
Legacy Reserves LP -- http://www.LegacyLP.com/-- is a master
limited partnership headquartered in Midland, Texas, focused on the
development of oil and natural gas properties primarily located in
the Permian Basin, East Texas, Rocky Mountain and Mid-Continent
regions of the United States.
Legacy Reserves reported a net loss attributable to unitholders of
$72.89 million in 2017, a net loss attributable to unitholders of
$74.82 million in 2016, and a net loss attributable to unitholders
of $720.5 million in 2015. As of June 30, 2018, Legacy Reserves
had $1.51 billion in total assets, $1.76 billion in total
liabilities and a total partners' deficit of $250.98 million.
* * *
Moody's Investors Service affirmed Legacy Reserves LP's Corporate
Family Rating (CFR) at 'Caa2' and its senior unsecured notes rating
at 'Caa3'. Legacy's 'Caa2' CFR reflects the company's high
leverage, weak liquidity and significant debt refinancing risk, as
reported by the TCR on Jan. 26, 2018.
LINEN LOCKER: Eastern Funding Prohibits Further Cash Collateral Use
-------------------------------------------------------------------
Creditor, Eastern Funding LLC requests the U.S. Bankruptcy Court
for the Middle District of Florida to prohibit The Linen Locker,
LLC from further use of its cash collateral, or condition such use
upon the provision of adequate protection.
Prior to the Petition Date, the Debtor executed five Secured
Promissory Note and Agreements in favor of Eastern Funding, whereby
the Debtor granted a security interest in collateral, including its
accounts receivable, all of which are all cross collateralized and
subject to cross default provisions.
(a) Under Contract No. XX88, the total balance due was
approximately $372,389 and no post-petition payments have been
made. Creditor is also holding $15,215.18 in escrow, which has not
been included in the total balance due.
(b) Under Contract No. XX21, the total balance due was
approximately $67,965 and no post-petition payments have been made.
Creditor is also holding $4,007.58 in escrow, which has not been
included in the total balance due.
(c) Under Contract No. XX84, the total balance due was
approximately $90,699 and no post-petition payments have been made.
Creditor is also holding $4,608.72 in escrow, which has not been
included in the total balance due.
(d) Under Contract No. XX49, the total balance due was
approximately $45,773 and no post-petition payments have been made.
Creditor is also holding $2,080.98 in escrow, which has not been
included in the total balance due.
(e) Under Contract No. XX07, the total balance due was
approximately $110,773 and no post-petition payments have been
made. Creditor is also holding $5,270.62 in escrow, which has not
been included in the total balance due.
Eastern Funding asserts that the Debtor is in material breach and
default of each of the above-referenced Contracts due to
non-payment, and other conduct of the Debtor in violation of the
terms of said Contracts. The Debtor continues to use the collateral
subject thereto, subjecting it / them to continued wear, tear, and
depreciation. But Eastern Funding has not been offered, nor has it
received, adequate protection for its interest in the subject
collateral. Thus, Eastern Funding does not have adequate protection
for its interest in said Collateral.
Eastern Funding alleges that Debtor has no equity interest in the
subject collateral, and that the collateral is not necessary to an
effective reorganization of the Debtor. Eastern Funding further
alleges that it has been unable to inspect its collateral and
verify its condition as provided in the said Contracts, including
insurance thereon.
Eastern Funding believes that good cause exists to terminate the
automatic stay so as to allow it to enforce in rem its security
interest in the Collateral. Eastern Funding asserts that
continuation of the automatic stay will also cause real and
irreparable harm to Eastern Funding.
Accordingly, Eastern Funding requests the Court grant it relief
from stay, and further requests that this stay be modified to
permit it to take possession of the collateral and exercise its
rights and remedies with regard to said collateral (including the
right to apply the escrow amounts being held by Eastern Funding; or
that Eastern Funding be granted adequate protection for its
interest in the collateral.
About The Linen Locker
The Linen Locker, LLC, is engaged in the dry cleaning and laundry
business. The Linen Locker filed a Chapter 11 petition (Bankr.
M.D. Fla. Case No. 18-05188) on June 22, 2018. In the petition
signed by David G. Walstad, operating manager, the Debtor disclosed
$521,050 in assets and $1 million in liabilities. Samantha L.
Dammer, Esq., at Tampa Law Advocates, P.A., is the Debtor's
counsel. No official committee of unsecured creditors has been
appointed in the Chapter 11 case.
MAGEE GENERAL: Patient Care Ombudsman Not Necessary
---------------------------------------------------
On the Petition Date, the Bankruptcy Court entered an order
directing the appointment of a patient care ombudsman for Magee
General Hospital, a 44-bed hospital in Magee, Mississippi. The
order provided that the U.S. Trustee will appoint a disinterested
person to serve as PCO pursuant to 11 U.S.C. Section 333 unless a
motion to dispense with the appointment is filed and the Court
finds that the appointment is not necessary for the protection of
patients.
On September 5, 2018, the Debtor filed a Motion contending that
appointment of an ombudsman is not necessary for protection of
patients. The U.S. Trustee responded averring that the Debtor has
the burden to provide testamentary and documentary evidence
regarding factors that may impact patient care quality throughout
the case.
At the Hearing, the Debtor introduced one composite exhibit which
is the packet that is given to patients upon admission to the
hospital. The Debtor also presented three witnesses: (1) Robert
Sean Johnson, CEO of the hospital; (2) Melissa Cooper, Director of
Nursing; and (3) Rebecca Harper, Social Worker.
The evidence established that the hospital is properly staffed,
patient care is high quality, the Debtor has been able to maintain
high quality care despite the bankruptcy filing, and the Debtor is
adequately monitored by state programs. The evidence also
established that the hospital has an appropriate program to handle
patient complaints.
The Court concludes, for reasons stated by the Court at the Hearing
and in consideration of applicable factors to the specific facts of
this case, that appointment of a Patient Care Ombudsman to monitor
the quality of patient care and to represent the interests of the
patients of the health care business is not necessary for the
protection of patients at this time.
However, on motion of the U.S. Trustee or a party in interest, the
Court may appoint a Patient Care Ombudsman at a later time if the
Court finds that such appointment has become necessary to protect
patients.
Accordingly, the Court ordered that the Debtor's Motion is granted
and that appointment of a Patient Care Ombudsman is unnecessary at
this time. The Court may at a later time, on motion by a party in
interest, order appointment of a Patient Care Ombudsman if it
becomes necessary to protect patients.
About Magee General Hospital
Magee General Hospital serves as a general medical/surgical
facility in Magee, Mississippi. The Hospital offers medical
services in cardiology, audiology, dentistry, general surgery,
internal medicine, oncology, emergency care, and many other medical
services.
Magee General Hospital filed a petition for reorganization under
Chapter 11 of the Bankruptcy Code (Bankr. S.D. Miss. Case No.
18-03283) on Aug. 24, 2018. In the petition signed by CEO Sean
Johnson, the Debtor estimated $1 million to $10 million in assets
and liabilities. The case is assigned to Judge Katharine M.
Samson. The Law Offices of Craig M. Geno, PLLC, led by Craig M.
Geno, is the Debtor's counsel.
MCMAHAN-CLEMIS INSTITUTE: Patient Care Ombudsman Not Necessary
--------------------------------------------------------------
McMahan-Clemis Institute of Otolaryngology, S.C., has asked the
Bankruptcy Court for an order finding that the appointment of a
patient care ombudsman is not necessary in its bankruptcy case.
The Court, being otherwise fully advised in the matter, ordered
that pursuant to 11 U.S.C. Section 333(a)(1), the appointment of a
patient care ombudsman is not necessary in this case.
About McMahan-Clemis Institute
of Otolaryngology S.C.
McMahan-Clemis Institute of Otolaryngology, S.C., d/b/a Physician's
Hearing Aid Services, Inc., sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. N.D. Ill. Case No. 18-17563) on June
20, 2018. In the petition signed by John T. McMahan, president,
the Debtor estimated assets of less than $50,000 and liabilities of
less than $1 million. Judge Lashonda A. Hunt presides over the
case. The Debtor is represented by Gregory K. Stern, P.C.
MIAMI BEVERLY: Sets Bidding Procedures for All Assets
-----------------------------------------------------
Miami Beverly, LLC, 1336 NW 60, LLC, Reverend, LLC, 13300
Alexandria Dr Holdings, LLC, and The Holdings At City, LLC, ask the
U.S. Bankruptcy Court for the Southern District of Florida to
authorize their bidding procedures in connection with the sale of
substantially all assets at an online auction.
The Debtors assets are compromised of these real properties:
a. Miami Beverly, LLC: 1250 NW 62 St, Miami, FL 33147-8175 -
Property Folio # 01-3114-043-0290 ("Property A")
b. Miami Beverly, LLC: 1231 NW 62 St, Miami, FL 33147-8175 -
Property Folio # 01-3114-043-0 ("Property B")
c. Miami Beverly, LLC: 6040 NW 12 Ave, Miami, FL 33147-8175 -
Property Folio # 01-3114-043-0540 ("Property C")
d. 1336 NW 60, LLC: 1335 NW 60 St, Miami, FL 33142-8277 -
Property Folio # 01-3114-043-0790 ("Property D")
e. 1336 NW 60, LLC: 1341 NW 60 St, Miami, FL 33142-8277 -
Property Folio # 01-3114-043-0800 ("Property E")
f. Reverend, LLC: 6820 NW 1 St, Miami, FL 33147-7475 -
Property Folio # 01-3115-005-1240 ("Property F")
g. 13300 Alexandria Dr. Holdings, LLC: 1730 NW 1 Ct, Miami, FL
33136-1748 - Property Folio # 01-3125-048-10 ("Property G")
h. The Holdings at City, LLC: 1710 NW 1 Ct, Miami, FL
33136-1700 - Property Folio # 01-3125-048-1060 ("Property H")
The Properties are apartment buildings, and the Debtors lease
certain units in the apartment buildings to third parties.
On Dec. 24, 2015, final judgments were entered in favor of the City
of Miami, Florida and against the Debtors, in the total amount of
$3,126,388. The Debtors are analyzing various mechanisms for the
consensual reduction of the City of Miami Judgments due to
extensive mitigation of the violations. They also intend on
negotiating with the City of Miami to possibly abandon certain
properties to the City, particularly those properties owned by
Reverend, LLC and 13300 Alexandria Dr. Holdings, LLC, as further
administration of these properties may not be in the best interest
of their estates or obtaining some relief from the City's fines.
The Properties are not encumbered by any mortgages. Upon
information and belief, other than valid claims against the Debtors
for fees and costs of the Receiver and the Receiver's Counsel, and
a claim for $37,731 filed by the Miami-Dade Tax Collector's Office,
the primary encumbrances on the Properties are the Judgments, which
have been recorded against the specific entity defendant/ debtor on
the Miami-Dade County Recorder's Office as judgment liens, secured
by the properties as follows:
a. Properties A, B and C: $163,567
b. Properties D and E: $461,578
c. Property F: $809,039
d. Property G: $1,093,570
e. Property H: $598,633
During a certain period of time prior to the Petition Date, the
Properties were managed by Linda Leali, as court-appointed Receiver
in the matter styled City of Miami v. Miami Beverly LLC, et al.
(Case No. 2014-027781-CA-01).
On June 14, 2018, the Court entered an Agreed Order Granting, in
Part, Amended Motion Pursuant to 11 U.S.C. Section 543(d)(1) to
Excuse Receiver from Compliance With Turnover Requirements and to
Establish Powers and Duties of Receiver Nunc Pro Tunc to Petition
Date. The 543 Order set forth the mechanism whereby the Receiver
will remain as a custodian in possession, custody and control of
the Properties. However, pursuant to the 543 Order, the Receiver
was not given authority to liquidate any of the Debtors' assets,
with that authority remaining vested in the Debtors. The 543 Order
required the Debtors to liquidate the Properties.
As such, the Debtors previously filed motion to sell the
Properties, which were subsequently amended and denied. The Court
has ordered the Debtors to file either an motion to approve a
private sale or file motion to approve an auction sale by Sept. 7,
2018.
By Order of the Court and as urged by various parties, the Debtors
have been instructed to rapidly sell the Properties, which under
the circumstances, the only option appears to be through the
Auction and Bid Procedures sought to be approved in the Motion.
Through the Motion, the Debtors respectfully ask, among other
things, approval of (i) the Bid Procedures, including a Break-Up
Fee in order to incentivize a stalking horse bidder to make a
competitive bid, the Form Contract as attached to the Bid
Procedures; and (ii) the sale of the Properties to the Successful
Bidder or Backup Bidder, "as is, where is," and free and clear of
all liens, claims, and encumbrances pursuant to the terms of the
Form Contract. They ask to solicit the highest and best bid by way
of an On Line auction sale.
The salient terms of the Bidding Procedures are:
a. Bid Deadline: Dec. 5, 2018 at 9:30 a.m. (EST)
b. Initial Bid: The Debtors will set minimum bid amounts in
accordance with sale strategy to be determined by the Broker and
Auction professionals to be employed by the Debtors in connection
with this Auction.
c. Deposit: $100,000
d. Auction: The Debtors propose to conduct an online Auction
over two-day period, on Dec. 5 to 6, 2018, with designated
beginning and ending times (beginning on Dec. 5, 2018 at 10:00 a.m.
(EST) and ending on Dec. 6, 2018 at 2:00 p.m. (EST)).
e. Bid Increments: $25,000
f. Sale Hearing: TBD
g. Closing: The Successful Bidders will close on their
transactions no later than 20 calendar days from the entry of the
approved Order approving the Sale of the Assets.
h. There will be a 7% Buyers Premium which the Successful
Bidders must pay in addition to their Successful Bid amounts.
i. If a Stalking Horse is secured during the marketing period
leading up to the On Line Auction, a Break Up Fee will be included
in the contract, but subject to final court approval.
Pursuant to the terms of the Form Contract, the Debtors are willing
to designate a stalking horse bidder, and offer such Stalking Horse
bidder a "break up fee" in connection with its offer to purchase
the Properties in the amount of 1% of the final sales price. The
Break-Up Fee, if approved by the Court, would be payable only in
the event that the Debtors designate a bidder in the form Contract
as a Stalking Horse bidder, and sells the Properties to another
Qualified Bidder in accordance with the Bid Procedures, and the
Stalking Horse bidder has not committed a material default under
the Form Contract and that sale closes.
A hearing on approval of the Motion and Bid Procedures has been
scheduled for Sept. 26, 2018. Further, the Court has already
scheduled the Auction for Oct. 26, 2018. However, upon further
discussions with the real estate broker and auctioneer that will be
retained by the Debtors, it has been determined that an additional
period of marketing will be necessary to conduct a competitive
auction sale.
As such, the Debtors ask the Auction be scheduled for Dec. 5 to 6,
2018, beginning on Dec. 5, 2018 at 10 a.m. (EST) and ending on Dec.
6, 2018 on or about 2:00 p.m. (EST), with a final hearing to
approve the sale to be scheduled on or after Dec. 7, 2018.
Further, they ask all applicable deadlines in previous orders
associated with the sale of the properties be extended
accordingly.
The Debtors will be required to complete various documents
necessary to consummate the Sale, including the Form Contract.
They ask that the form sale agreement be approved, and that they'd
authorized to execute those documents necessary to consummate the
Sale and evidence the conveyance of the Properties to the
Successful Bidder.
In order to complete the Sale in the most expeditious manner, the
Debtors ask that the Court waives the 14-day stay as under
Bankruptcy Rule 6004(h).
A copy of the Form Contract and Bidding Procedures attached to the
Motion is available for free at:
http://bankrupt.com/misc/Miami_Beverly_124_Sales.pdf
About Miami Beverly
Miami Beverly, LLC and its affiliates 1336 NW 60 LLC, Reverend,
LLC, 13300 Alexandria Dr. Holdings, LLC and The Holdings at City,
LLC sought protection under Chapter 11 of the Bankruptcy Code
(Bankr. S.D. Fla. Lead Case No. 18-14506) on April 17, 2018. In
the petition signed by Denise Vaknin, manager, Miami Beverly
estimated assets of less than $50,000 and liabilities of less than
$500,000. Judge Laurel M. Isicoff presides over the cases.
MICHAEL GALMOR: Hollis Auction of Yearling Cattle Approved
----------------------------------------------------------
Judge Robert L. Jones of the U.S. Bankruptcy Court for the Northern
District of Texas authorized Michael Stephen Galmor's sale of
approximately 81 yearling cattle, including both mixed-breed
heifers and steers, located at 921 N. 8th Street, Hollis, Oklahoma
by auction.
The Hollis Auction is authorized to withhold sufficient funds from
the proceeds derived from the sale of the Cattle to cover all of
its fees and expenses, as well as all other incidental costs and
expenses associated with the sale.
The Cattle described in the Motion are to be sold free and clear of
any and all interests with the lien(s) against the Cattle attaching
to the net proceeds and distributed to the lenders as provided in
the Order.
The net proceeds from the sale of the Cattle will be paid to the
McWhorter, Cobb and Johnson, LLP trust account.
Within a reasonable time period after the net proceeds have cleared
the MCJ Trust Account, MCJ is authorized and directed to pay over
$17,115 to Great Plains Bank, thereby paying the $17,115 claim of
this lender in full and extinguishing only that claim against the
Debtor's bankruptcy estate arising from the Note, with the balance
of all remaining funds paid First State Bank of Mobeetie; no other
claim of GPB which has been or may be timely asserted against the
Debtor's bankruptcy estate is satisfied, extinguished, or otherwise
affected thereby.
The sale will take place on Sept. 8, 2018, or on the earliest date
available thereafter which such sale can be coordinated through the
Hollis Auction.
Michael Stephen Galmor owns and manages Galmor's/G&G Steam Service,
Inc., of Shamrock, Texas. He also raises cattle in his individual
capacity. Michael Stephen Galmor sought Chapter 11 protection
(Bankr. N.D. Tex. Case No. 18-20209) on June 19, 2018. The Debtor
tapped Max Ralph Tarbox, Esq., at Tarbox Law, P.C., as counsel.
MODA INGLESIDE: Moody's Assigns B1 CFR, Outlook Stable
------------------------------------------------------
Moody's Investors Service assigned first-time ratings to Moda
Ingleside Energy Center, LLC's, including a B1 Corporate Family
Rating, a B1-PD Probability of Default Rating, and B1 ratings to
its proposed $300 million senior secured term loan B due 2025, $45
million senior secured revolving credit facility due 2023, and $180
million delayed draw term loan A due 2023. The rating outlook is
stable.
The proceeds from the term loan issuance, along with equity
contribution from its private equity sponsor, EnCap Flatrock
Midstream, will fund the recently agreed acquisition of the
Ingleside Energy Center crude oil and LPG storage and export
terminal, associated infrastructure, and certain crude oil pipeline
assets from Occidental Petroleum Corporation (A3 stable).
"Moda benefits from favorable counter-party contracts for its
terminal business, low risk of terminal capacity expansion, and
emerging opportunity to export Permian crude from the Gulf Coast,"
said Arvinder Saluja, Moody's Vice President. "Sizable equity
funding for the acquisition and further equity from EFM boost
Moda's financial capacity to support the future growth needed to
organically reduce leverage over the next two years."
Assignments:
Issuer: Moda Ingleside Energy Center, LLC
Corporate Family Rating, Assigned B1
Probability of Default Rating, Assigned B1-PD
Senior Secured Revolving Credit Facility, Assigned B1 (LGD4)
Senior Secured Delayed Draw Term Loan A, Assigned B1 (LGD4)
Senior Secured Term Loan B, Assigned B1 (LGD4)
Outlook Actions:
Issuer: Moda Ingleside Energy Center, LLC
Outlook, Assigned Stable
RATINGS RATIONALE
Moda's B1 CFR reflects its modest but improving EBITDA scale,
single site asset concentration, relatively high initial leverage,
and reliance on demand for export of Permian crude from US Gulf
Coast. Moda has limited commodity and customer diversification as
it will mainly store and provide throughput services for crude oil
for primarily two customers by 2019. However, the CFR is supported
by the company's favorable business risk profile, low execution
risk of the tank terminal expansion, attractive competitive
position at the Port of Corpus Christi, advantaged loading
capabilities, connectivity to the Permian Basin, and seasoned
management team. The company benefits from no direct commodity
exposure and a weighted-average contract life of about nine years,
and high percentage of minimum volume commitments (MVCs). More than
two-thirds of Moda's revenue will be supported by MVCs from strong
counterparties. The B1 rating is also materially underpinned by the
sizeable equity contribution from the financial sponsor and Moody's
expectation of run-rate debt/EBITDA below 2.5x by mid-2020.
In addition to the associated infrastructure assets, Moda's primary
asset will be a terminal with 2.1 million barrels of crude storage
capacity. A large terminal capacity expansion underway is set to be
completed by mid-2020. Moda can access the increasing Permian
production via multiple pipeline systems. Permian is one of the
most prolific basins in North America, with low oil break-evens,
which should sustain volumes to Moda even at weaker oil prices.
The three new senior secured credit facilities are all rated B1, at
the CFR level, in accordance with Moody's Loss Given Default
Methodology. All these facilities have a pari passu first lien
secured claim to substantially all of the company's assets. Since
there are no other debts in the capital structure, the revolver and
the term loans A and B are rated the same as the CFR.
Moda's adequate liquidity position will be supported by $45 million
revolver and $180 million delayed draw term loan. Both of these
facilities will be undrawn at closing. Moda is expected to generate
good operating cash flows that cover maintenance investments.
However, the company's terminal expansion and infrastructure
construction growth projects will necessitate drawings on the
delayed draw term loan over the next 12 -18 months. The revolver
facility and the delayed draw term loan are subject to a debt
service coverage ratio covenant of at least 1.10x, in addition to a
maximum first lien net leverage covenant of 4.75x that will come
into effect starting the second quarter of 2020. Term loan B is
subject to a debt service coverage ratio covenant of at least 1.10x
and includes an excess cash flow sweep mechanism. Moody's expects
the company to be well in compliance with these covenants at least
through 2019.
The stable outlook reflects Moody's expectation that the company's
terminal expansions project will remain low risk, on schedule, and
within budget, and that the company will fund its growth capex with
a prudent mix of debt issuance and sponsor equity from EFM.
The ratings could be downgraded if Moody's expects leverage to
remain above 6x beyond 2019 due to delays in terminal expansion or
weaker than expected throughput volumes. An aggressively financed
acquisition or a step-out acquisition that increases business risk
profile could also lead to a downgrade. The ratings could be
upgraded if EBITDA exceeds $200 million while leverage remains
below 4x.
Moda Ingleside Energy Center, LLC, is a wholly owned subsidiary of
Moda Midstream, LLC, a company headquartered in Houston, Texas that
will provide storage and export terminalling facility to
third-parties. The company is backed by EnCap Flatrock Midstream, a
midstream private equity firm.
The principal methodology used in these ratings was Midstream
Energy published in May 2017.
MONEYONMOBILE INC: CEO Resumes Probe of Alleged Accounting Fraud
----------------------------------------------------------------
MoneyOnMobile, Inc. issued on Sept. 25, 2018, another Letter to
Shareholders from its Chairman and CEO Harold H. Montgomery to
address the Company's 8-K filed with the Securities and Exchange
Commission on Sept. 12, 2018. The Letter provided an update on how
the Company is addressing their predecessor auditor concerns. The
full-text copy of the Letter is as follows:
On Sept. 12, 2018, the company released an 8-K stating that the
Company's auditors, RBSM, resigned. In addition, RBSM has raised
several issues related to the Company's financial statements. I
believe that it may be useful to shareholders to have some
additional information to clarify the statements made in the 8-K
and what we are doing to address the concerns RBSM raised.
Specifically, RBSM raised the following points:
RBSM Statement #1:
Based upon claims made by a senior member of the accounting and
finance department of the Company's Indian subsidiaries, there were
allegations of potential fraud and illegal acts at the Company.
The individual informed RBSM that there was fraud committed by
members of the Company's US and Indian management team which
impacted the Indian subsidiary accounting records and likely the
Company's consolidated financial statements.
MOMT Response:
The alleged potential fraud in question arises from the acquisition
of a company known as SVR by one of the Indian subsidiaries in
2016. This entity was created and owned by the Indian Management
team in 2012 as a means of acquiring prepaid cell phone time from
BSNL, the Indian government monopoly serving rural areas. When the
workings of SVR became clear, it was apparent that conflicts of
interest existed. As a result, MOMT acquired SVR in 2016 and shut
it down.
The allegation of potential fraud by RBSM arises from this
acquisition. The accounting entry in question is a single event,
not a systemic issue. The accounting treatment of this
acquisition, however, is complex and it has taken time to
understand both the nature of the accounting and the consequences
(if any) for US reporting.
The Company's Audit Committee (AC) investigated this issue to the
best of its abilities in August of 2018 and delivered a report to
the Board (the "AC Investigation"). The investigation was denied
access to key records and employees of the Mumbai subsidiary. A
third-party accounting firm was engaged to assist with the AC
investigation. The firm noted that they could not conduct work
under the conditions which prevailed at the company's office in
Mumbai at the time. In addition, the company lacked financial
resources to engage additional third-party professionals to assist
with the investigation.
I am not named in the RBSM letter, and was not involved in the
investigation. After the Board resigned, I took up the matter to
see it through to its conclusion.
I believe that the AC report is incomplete owing to:
1. The report does not tie SVR transactions to the US entity books
directly and specifically. We do not currently have clear and
definitive evidence of how this transaction was treated on the US
books for MOMT.
2. The AC report did not involve the prior audit firm. No attempt
was made to contact our previous audit firm for their input into
this matter. Considering that the events in question occurred in
their audit year, I believe that the prior audit firm should have
been contacted. Their explanation of their treatment of this
matter is important to hear.
3. The AC report did not involve the CFO of the US entity. No
attempt was made to contact or involve the US CFO in the
investigation. Considering that he was the chief architect of our
financial reporting at the time, I believe he should have been
involved in the investigation. Consultation with external advisors
have confirmed this view.
4. The AC had to conduct its work without the benefit of a
third-party advisor or the assistance of the local Indian
Management team who refused to cooperate. I will involve a
third-party resource for this purpose. The accounting issues under
examination are complex and require professional examination by
those who have the necessary experience and expertise. Further, I
am committed to ensuring the objectivity of the final reporting
product.
For these reasons I considered the AC report to be incomplete. As
the only Board member of the company remaining after the submission
of the AC report, I declined to sign and publish an 8-K that I
considered to be based on incomplete research and possibly
containing a faulty conclusion.
I accept the AC report as far as it goes and am using it as a basis
for the final stage of investigation.
RBSM Statement #2:
There is open discord between the US management and minority
shareholders and management of the Indian subsidiaries.
The production of requested documents supporting management's
assertions in the financial statements has been purposely delayed
or not provided to us.
MOMT Response:
I believe this issue is well known to shareholders and was
documented in our 8-Ks of August 22 and Sept. 11, 2018. This lack
of cooperation was not the case in prior years. This lack of
support was key in frustrating both our annual audit and the AC
investigation of the SVR matter. While we are working to resolve
matters in Mumbai and are confident of our legal position there,
the situation does not support the completion of an audit at this
time.
RBSM Statement #3:
Responses to our Firm's inquiries of Company's management as to the
existence of fraud and confirmation of related party transactions,
have been consistently ignored and have purposely not been provided
by the Indian management team.
MOMT Response:
The entire US management team supplied the required disclosure
documents. The Indian team did not.
RBSM Statement #4:
The audited financial statements for the fiscal year ended March
31, 2017 filed by SVR with the Indian Government are materially
different than the financial information used for the Company's
consolidated financial statements for the fiscal year ended March
31, 2017. The footnotes to the Company's consolidated financial
statements for the fiscal years ended March 31, 2017 and 2016 do
not disclose that SVR is a related party. The audited financial
statements for SVR filed with the Indian authority were approved by
US management.
MOMT Response:
The variation in the reports from SVR are due to the US entity not
accepting certain accounting treatments used in the SVR books.
What's Next:
I have taken the work of the prior Audit Committee related to
Statement #1 and taken it forward. My goal is to find the truth as
supported by facts and documents. I have undertaken the engagement
of a third-party firm to investigate the accounting entries in
question and will follow them to their conclusion - whatever that
conclusion may be. If there is fraud involved, we will find it and
disclose it and those who are responsible will be held
accountable.
Both our prior auditors and the CFO will be interviewed as part of
this process.
Lastly, we will publish the full and complete results of the
investigation and share the results with shareholders. We are
moving on this issue now and hope to have results for you in the
coming weeks.
Subsequent Actions of Liggett & Webb:
Subsequent to the resignation of RBSM, Liggett & Webb, our auditors
who preceded RBSM issued a statement to the Company that it has
withdrawn its audit statements for the periods in question. Their
decision is based on the statements made in the RBSM letter of July
21 and the RBSM resignation letter. Liggett & Webb cited no other
reasons for their withdrawal.
Upon conclusion of the investigation, we will present the results
to Liggett & Webb for their consideration. They may reverse their
decision at that time.
Let me be clear that I take this matter with the utmost
seriousness. I will follow the conclusion of this investigation
wherever it leads and report to shareholders. I will do so as
rapidly as possible.
Harold Montgomery
214-837-2765
hmontgomery@moneyonmobile.in
Defers Filing of Non-Reliance Periodic Report
MoneyOnMobile's predecessor independent accountant, Liggett & Webb,
P.A. has issued a letter to the Company in response to the
Company's filing of its 8-K filed with the Securities and Exchange
Commission on Sept. 12, 2018. L&W audited and issued audit reports
on the financial statements of the Company for the fiscal years
ended March 31, 2017, March 31, 2016, March 31, 2015 and March 31,
2014.
The L&W Letter recommended the Company should file a Current Report
on SEC Form 8-K disclosing that the Company's previous L&W
Financial Statements, and L&W's reports thereon, as well as any
other financial statements or financial information issued by the
Company during the periods of L&W's engagements, should not be
relied upon.
The Company believes the filing of this non-reliance periodic
filing to be premature and temporary as the Company's audit
committee investigation is not complete. Additionally, the Company
has not had the opportunity to complete its analysis of the facts,
circumstances, literature, and materiality of the allegations noted
in the RBSM letter sent to the Company on
July 21, 2018, which was filed as exhibit 16.1 in the Company's
periodic filing with the SEC on Sept. 12, 2018.
About MoneyOnMobile
MoneyOnMobile, Inc., headquartered in Dallas, Texas --
http://www.money-on-mobile.com/-- is a global mobile payments
technology and processing company offering mobile payment services
through its Indian subsidiary. MoneyOnMobile enables Indian
consumers to use mobile phones to pay for goods and services or
transfer funds from one cell phone to another. It can be used as
simple SMS text functionality or through the MoneyOnMobile
application or internet site. MoneyOnMobile has more than 335,000
retail locations throughout India.
MoneyOnMobile reported a net loss of $13.09 million for the year
ended March 31, 2017, following a net loss of $19.72 million for
the year ended March 31, 2016. The Company's balance sheet at Dec.
31, 2017, showed $27.67 million in total assets, $30.02 million in
total liabilities, $1.22 million in preferred stock Series D, $5.70
million in preferred stock Series F, and a total stockholders'
deficit of $9.27 million.
Liggett & Webb, P.A., in New York, issued a "going concern" opinion
in its report on the consolidated financial statements for the year
ended March 31, 2017, noting that the Company has experienced
recurring operating losses and negative cash flows from operating
activities. These conditions raise substantial doubt about the
Company's ability to continue as a going concern.
MOTORS LIQUIDATION: Court Junks Trust's Bid for Leave to Appeal
---------------------------------------------------------------
District Judge Alison J. Nathan denied Plaintiff Motors Liquidation
Company Avoidance Action Trust's motion for leave to appeal in the
case captioned Motors Liquidation Company, et al., Debtors, Motors
Liquidation Company Avoidance Action Trust, Appellant, v. JPMorgan
Chase Bank, N.A., et al., Appellees, No. 17-cv-8712 (AJN)
(S.D.N.Y.).
On Nov. 9, 2017, Plaintiff filed a notice of appeal from Judge
Martin Glenn's Sept. 26, 2017 Memorandum Opinion Regarding Fixture
Classification and Valuation in Bankruptcy Court Case Number
09-504. And on Nov. 13, 2017, Plaintiff filed a motion for leave to
appeal. Defendants moved to oppose Plaintiff's motion, and in the
alternative, submitted a conditional motion for cross-appeal.
The Trust argues the Court should exercise its discretion to grant
leave to appeal Judge Glenn's Opinion. The Trust disagrees with
Judge Glenn's valuation approach, as a matter of law. Defendants
argue that the Opinion is not appealable, and, even if it is, it
does not meet the requisite standards for a Court to grant
interlocutory review. Defendants also argue that if Plaintiff's
motion is granted, their conditional cross-motion for leave to
appeal should also be granted, so that they can present their
valuation position as well.
Having reviewed the Sept. 26, 2017 Memorandum Opinion Regarding
Fixture Classification and Valuation, the Court finds that there
are no circumstances to warrant granting Plaintiff's motion for
leave to appeal an interlocutory order. Accordingly, within the
Court's discretion, Plaintiff's motion for leave to appeal is
denied.
A copy of the Court's Memorandum Opinion and Order dated Sept. 7,
2018 is available at https://bit.ly/2OGfmrM from Leagle.com.
Motors Liquidation Company Avoidance Action Trust, Appellant,
represented by Eric B. Fisher, Dickstein Shapiro LLP, Lauren
Kathryn Handelsman, Binder & Schwartz LLP, Lindsay A. Bush,
Dickstein Shapiro LLP, Martin Tomas Murphy, Binder & Schwartz LLP,
Neil Stephen Binder, Binder & Schwartz LLP & Tessa Brianne Harvey,
Dickstein Shapiro LLP.
JPMorgan Chase Bank, N.A. & J.P. Morgan Whitefriars Inc.,
Cross-Appellants, represented by Amy R. Wolf -- ARWolf@wlrk.com --
Wachtell, Lipton, Rosen & Katz, Ben M. Germana –
BMGermana@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Christopher
Lee Wilson –- CLWilson@wlrk.com -- Wachtell, Lipton, Rosen &
Katz, Emil A. Kleinhaus -- EAKleinhaus@wlrk.com -- Wachtell,
Lipton, Rosen & Katz, Harold S. Novikoff -- HSNovikoff@wlrk.com --
Wachtell, Lipton, Rosen & Katz, John Morgan Callagy, Kelley Drye &
Warren, LLP, Kevin Michael Jonke -- KMJonke@wlrk.com -- Wachtell,
Lipton, Rosen & Katz, Marc Wolinsky, Wachtell, Lipton, Rosen &
Katz, Martin Andrzej Krolewski , Kelley Drye & Warren LLP &
Nicholas John Panarella , Kelley Drye & Warren, LLP.
Term Loan Lenders, listed in Appendix A to the Consent Motion to
Withdraw (Dkt. No. 753), Cross-Appellant, represented by Bradley
Robert Schneider, Munger, Tolles & Olson, pro hac vice, Bruce S.
Bennett -- bbennett@jonesday.com -- Jones Day, pro hac vice & John
Willson Spiegel, Munger, Tolles & Olson LLP, pro hac vice.
The United States Of America, by its attorney Joon H. Kim, Acting
United States Attorney for the Southern District of New York,
Interested Party, represented by David Stuart Jones , U.S.
Attorney's Office.
Export Development Canada, One of the Debtor-in-Possession Lenders,
Interested Party, represented by Michael James Edelman, Vedder
Price P.C. & Michael L. Schein, Vedder Price P.C.
About Motors Liquidation
General Motors Corporation and three of its affiliates filed for
Chapter 11 protection (Bankr. S.D.N.Y. Lead Case No. 09-50026) on
June 1, 2009. The Honorable Robert E. Gerber presides over the
Chapter 11 cases. Harvey R. Miller, Esq., Stephen Karotkin, Esq.,
and Joseph H. Smolinsky, Esq., at Weil, Gotshal & Manges LLP,
assist the Debtors in their restructuring efforts. Al Koch at AP
Services, LLC, an affiliate of AlixPartners, LLP, serves as the
Chief Executive Officer for Motors Liquidation Company. GM is also
represented by Jenner & Block LLP and Honigman Miller Schwartz and
Cohn LLP as counsel. Cravath, Swaine, & Moore LLP is providing
legal advice to the GM Board of Directors. GM's financial advisors
are Morgan Stanley, Evercore Partners and the Blackstone Group LLP.
Garden City Group is the claims and notice agent of the Debtors.
The U.S. Trustee appointed an Official Committee of Unsecured
Creditors and a separate Official Committee of Unsecured Creditors
Holding Asbestos-Related Claims. Lawyers at Kramer Levin Naftalis &
Frankel LLP served as bankruptcy counsel to the Creditors
Committee. Attorneys at Butzel Long served as counsel on supplier
contract matters. FTI Consulting Inc. served as financial advisors
to the Creditors Committee. Elihu Inselbuch, Esq., at Caplin &
Drysdale, Chartered, represented the Asbestos Committee. Legal
Analysis Systems, Inc., served as asbestos valuation analyst.
The Bankruptcy Court entered an order confirming the Debtors'
Second Amended Joint Chapter 11 Plan on March 29, 2011. The Plan
was declared effect on March 31, 2011.
On Dec. 15, 2011, Motors Liquidation Company was dissolved. On the
Dissolution Date, pursuant to the Plan and the Motors Liquidation
Company GUC Trust Agreement, dated March 30, 2011, between the
parties thereto, the trust administrator and trustee ("GUC Trust
Administrator") of the Motors Liquidation Company GUC Trust,
assumed responsibility for the affairs of and certain claims
against MLC and its debtor subsidiaries that were not concluded
prior to the Dissolution Date.
MULTIFLORA GREENHOUSES: Case Summary & 20 Top Unsecured Creditors
-----------------------------------------------------------------
Affiliated companies that have filed voluntary petitions seeking
relief under Chapter 11 of the Bankruptcy Code:
Debtor Case No.
------ --------
Multiflora Greenhouses, Inc. 18-80691
1623 New Sharon Church Rd.
Hillsborough, NC 27278
Austram, LLC 18-80693
1623 New Sharon Church Rd.
Hillsborough, NC 27278
Business Description: Multiflora Greenhouses --
http://multifloragreenhouses.com--
is a greenhouse grower and wholesaler
based in Hillsborough, North Carolina.
Multiflora Greenhouses grows and distributes
hundreds of plant varieties as well as
offers other products/services. The Company
offers bedding plants, annuals, perennials,
poinsettias, hanging baskets, vegetables,
and herbs. The Company also sells gardening
products including: natural animal
repellents, natural plant food, nutrient-
rich soil, handmade coco baskets, coco
liners, decorative watering cans,
garden decor, and flower essences.
Austram is engaged in the manufacturing of
clay products and refractories.
Chapter 11 Petition Date: September 24, 2018
Court: United States Bankruptcy Court
Middle District of North Carolina (Durham)
Judge: Hon. Benjamin A. Kahn
Debtors' Counsel: James C. White, Esq.
PARRY TYNDALL WHITE
100 Europa Drive, Suite 401
Chapel Hill, NC 27517
Tel: 919-246-4676
Fax: 919-246-9113
E-mail: jwhite@ptwfirm.com
Assets and Liabilities:
Estimated Estimated
Assets Liabilities
----------- -----------
Multiflora $1 mil. to $10 million $1 mil. to $10
million
Austram, LLC $0 to $50,000 $0 to $50,000
The petitions were signed by Richard Mason, president.
A full-text copy of Multiflora Greenhouses's petition containing,
among other items, a list of the Debtor's 20 largest unsecured
creditors is available for free at:
http://bankrupt.com/misc/ncmb18-80691.pdf
Austram, LLC stated it has no unsecured creditors. A full-text
copy of the petition is available for free at:
http://bankrupt.com/misc/ncmb18-80693.pdf
NEW BERN: Court Junks Weaver, Travelers' Party Substitution Bid
---------------------------------------------------------------
Bankruptcy Judge Stephani W. Humrickhouse denied defendants Weaver
Cooke Construction, LLC and Travelers Casualty & Surety Company of
America's motion to lift stay and substitute Wells Fargo Bank, N.A.
as the Real Party in Interest.
In the instant motion, Weaver Cooke and Travelers seek to lift the
stay imposed by the 2012 Consent Order and to substitute Wells
Fargo as the real party in interest, in place of the debtor and
plaintiff New Bern. Proceeding under Rule 17, made applicable to
this adversary proceeding by Bankruptcy Rule 7017, Movants posit
the following arguments: 1) that Wells Fargo is the real party in
interest because it has both the right to enforce the claims in the
litigation and stands to receive practically all of the benefits of
the litigation; 2) that Movants will be prohibited from asserting
certain defenses in the litigation if Wells Fargo is not the named
plaintiff, including failure to mitigate damages; 3) that New Bern
is not the real party in interest because it lacks both the right
to enforce the claims in the litigation and a significant interest
in the case; and, 4) that joining Wells Fargo is necessary for the
sake of transparency to the jury.
It is patently obvious that the instant motion was put forward as a
result of Movants' change in strategy, which itself was prompted by
Movants' retention of new counsel. To again review, New Bern has
been the plaintiff in this adversary proceeding since initiation of
the lawsuit and, more importantly, since both before and after
confirmation of its plan of reorganization in 2011. All of the
bases upon which Movants now argue that substitution under Rule 17
is appropriate were known to them for the past seven years.
Moreover, those bases were known to them at the time they sought
the consent order containing the stay they now seek to lift. Though
Movants seem not to perceive it, the court cannot help but note the
irony that Weaver Cooke and Travelers, who now seek to bring Wells
Fargo back into this litigation as an active participant, are the
parties who previously sought to remove Wells Fargo from active
participation in the litigation. Not only do Movants offer no
explanation for the delay, or for their change of strategy, they do
not even acknowledge it. It is apparent that there has been no
intervening change to the operative facts or material developments
with respect to controlling law, or to the text or application of
Rule 17. All that has changed is the identity, and legal strategy,
of Movants' counsel.
On timing grounds alone, the motion must be denied. Movants failed
to explain or even acknowledge their years-long delay in bringing
these objections to the fore. Moreover, it would be patently unfair
to Wells Fargo to remove it from active participation in the
litigation and release them from the obligation to participate, but
then, to pull them back in as a full and active participant seven
years later -- long after the bulk of discovery has been completed
and dispositive motions have been filed and determined. The court
concludes that the Movants' Rule 17 claim "is waived and, in any
case, is without merit."
Even if the instant motion had been made in a timely manner, the
court would deny it on the alternative ground that the substitution
sought by Movants would not advance, and in fact does not comport
with, the purposes of Rule 17.
The adversary proceeding is NEW BERN RIVERFRONT DEVELOPMENT, LLC,
Plaintiff, v. WEAVER COOKE CONSTRUCTION, LLC; TRAVELERS CASUALTY
AND SURETY COMPANY OF AMERICA; J. DAVIS ARCHITECTS, PLLC; FLUHRER
REED PA; and NATIONAL ERECTORS REBAR, INC. f/k/a NATIONAL
REINFORCING SYSTEMS, INC., Defendants, and WEAVER COOKE
CONSTRUCTION, LLC; and TRAVELERS CASUALTY AND SURETY COMPANY OF
AMERICA, Defendants, Counterclaimants, Crossclaimants and
Third-Party Plaintiffs, J. DAVIS ARCHITECTS, PLLC, FLUHRER REED PA,
SKYSAIL OWNERS ASSOCIATION, INC.; NATIONAL REINFORCING SYSTEMS,
INC., ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR., INC., SUMMIT
DESIGN GROUP, INC., CAROLINA CUSTOM MOULDING, INC., CURENTON
CONCRETE WORKS, INC., WILLIAM H. DAIL d/b/a DD COMPANY, EAST
CAROLINA MASONRY, INC., GOURAS, INC., HAMLIN ROOFING COMPANY, INC.;
HAMLIN ROOFING SERVICES, INC., HUMPHREY HEATING & AIR CONDITIONING,
INC.; PERFORMANCE FIRE PROTECTION, LLC; RANDOLPH STAIR AND RAIL
COMPANY; STOCK BUILDING SUPPLY, LLC; PLF OF SANFORD, INC. f/d/b/a
LEE WINDOW & DOOR COMPANY; UNITED FORMING, INC. a/d/b/a UNITED
CONCRETE, INC.; JOHNSON'S MODERN ELECTRIC COMPANY, INC.; and
WATERPROOFING SPECIALITIES, INC., Crossclaimants, Counterclaimants
and Third-Party Defendants. and NATIONAL ERECTORS REBAR, INC.
Defendant, Counterclaimant, Crossclaimant and Third-Party
Plaintiff, v. ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR.,
INC., SUMMIT DESIGN GROUP, INC., JMW CONCRETE CONTRACTORS, and
JOHNSON'S MODERN ELECTRIC COMPANY, INC. Third-Party Defendants. and
J. DAVIS ARCHITECTS, PLLC, Third-Party Plaintiff, v. MCKIM & CREED,
P.A., Third-Party Defendant. and GOURAS, INC., Third Party
Defendant and Fourth-Party Plaintiff, v. RAFAEL HERNANDEZ, JR.,
CARLOS CHAVEZ d/b/a CHAVEZ DRYWALL, 5 BOYS, INC. and ALEX GARCIA
d/b/a/ JC 5, Fourth-Party Defendants. and STOCK BUILDING SUPPLY,
LLC, Third-Party Defendant and Fourth-Party Plaintiff, v. CARLOS O.
GARCIA, d/b/a/ C.N.N.C., Fourth-Party Defendant, Adversary
Proceeding No. 10-00023-AP (Bankr. E.D.N.C.).
A full-text copy of the Court's Order dated Sept. 12, 2018 is
available at https://bit.ly/2PRDMys from Leagle.com.
Jeld-Wen, Inc., Movant, represented by David M. Grogan --
grogan@slk-law.com -- Shumaker Loop & Kendrick, LLP.
New Bern Riverfront Development, LLC, Plaintiff, represented by
Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason,
LLP, Matthew E. Lee -- matthew@wbmllp.com -- Whitfield, Bryson &
Mason, LLP, John A. Northen , Northen Blue, LLP, Vicki L. Parrott ,
Northen Blue, LLP & Jeremy R. Williams, Whitfield Bryson & Mason
LLP.
Humphrey Heating and Air Conditioning, Inc., Defendant, pro se.
National Erectors Rebar, Inc., Defendant, represented by Patsy A.
Cook, William M. Black, Jr., Attorneys, Christopher J.
Derrenbacher, Lewis Brisbois Bisgaard & Smith LLP &Jennifer M. St.
Clair .
Travelers Casualty and Surety Company of America, Defendant,
represented by Matthew C. Bouchard, Lewis & Roberts P.L.L.C. &
Carter B. Reid, Watt, Tieder, Hoffar & Fitzgerald, LLP.
J. Davis Architects, PLLC, Defendant, represented by Jeffrey D.
Bradford, Brown Law LLP,Gregory W. Brown, Brown Law LLP & Kristi
Lyn Gavalier, Brown Law LLP.
Weaver Cooke Construction, LLC, Counter-Claimant, represented by
Luke J. Farley, Conner Gwyn Schenck PLLC, Joseph P. Gram, Conner
Gwyn Schenck PLLC & C. Hamilton (Hank) Jarrett, III, Conner Gwyn
Schenck, PLLC.
About New Bern Riverfront Development
Cary, North Carolina-based New Bern Riverfront Development, LLC, is
the developer of SkySail Condominium, consisting of 121 residential
condominiums (plus 1 commercial/non-residential unit) located on
Middle Street on the waterfront in historic downtown New Bern,
North Carolina, and sells the SkySail Condominiums in the ordinary
course of business. New Bern Riverfront filed for Chapter 11
bankruptcy protection (Bankr. E.D.N.C. Case No. 09-10340) on Nov.
30, 2009. John A. Northen, Esq., at Northen Blue, LLP, represents
the Debtor. The Company disclosed $31,515,040 in assets and
$25,676,781 in liabilities as of the Chapter 11 filing.
New Bern Riverfront has filed an Amended Plan of Reorganization,
which represents a consensual plan negotiated with the Debtor's
secured creditor, Wells Fargo Bank, N.A. The Debtor contemplates
selling properties.
NORTHERN OIL: Will Sell $350 Million Senior Notes to RBC Capital
----------------------------------------------------------------
Northern Oil and Gas, Inc. entered into a purchase agreement on
Sept. 21, 2018 under which it agreed to sell $350 million aggregate
principal amount of its 8.50% Senior Secured Second Lien Notes due
2023 to RBC Capital Markets, LLC, as representative of the initial
purchasers. The net proceeds from the offering, after deducting
the Initial Purchasers' discount and the estimated offering
expenses payable by the Company, are expected to be approximately
$354.1 million. The Notes are "mirror notes" with substantially
similar terms as the Company's previously issued and currently
outstanding 8.50% senior secured second lien notes due 2023. A
copy of the Purchase Agreement is available for free at:
https://is.gd/8oVM4Z
About Northern Oil
Minnetonka, Minnesota-based Northern Oil and Gas, Inc. --
http://www.NorthernOil.com/-- is an independent energy company
engaged in the acquisition, exploration, development and production
of oil and natural gas properties, primarily in the Bakken and
Three Forks formations within the Williston Basin in North Dakota
and Montana.
Northern Oil reported a net loss of $9.19 million in 2017, a net
loss of $293.5 million in 2016, and a net loss of $975.4 million in
2015. As of June 30, 2018, Northern Oil had $883.08 million in
total assets, $1.03 billion in total liabilities and a total
stockholders' deficit of $147.82 million.
* * *
In May 2018, Moody's Investors Service upgraded Northern Oil and
Gas, Inc.'s (NOG) Corporate Family Rating (CFR) to 'Caa1' from
'Caa2' and Probability of Default Rating (PDR) to 'Caa1-PD/LD' from
'Caa2-PD'. The upgrade of NOG's CFR to Caa1 reflects its improved
leverage profile, reduced refinancing risk associated with the
remaining $203 million of notes due June 2020, and Moody's
expectation that the company will grow production and operating
cash flows.
ODYSSEY LOGISTICS: Moody's Raises CFR to B2, Outlook Stable
-----------------------------------------------------------
Moody's Investors Service upgraded the ratings of Odyssey Logistics
& Technology Corporation, including the Corporate Family Rating to
B2 from B3 and the Probability of Default Rating to B2-PD from
B3-PD. Concurrently, Moody's upgraded the ratings on the second
lien senior secured term loan to Caa1 from Caa2. Moody's affirmed
the B1 ratings on the first lien senior secured revolver and term
loan. The affirmation of first lien debt reflects the sensitivity
of ratings on first lien indebtedness to small changes in revolver
borrowings and periodic minor changes in other debt liabilities.
The rating outlook is stable.
RATINGS RATIONALE
The ratings upgrade recognizes Odyssey's recent topline and
earnings growth and reflects Moody's expectations that favorable
market conditions in transportation markets will continue for the
balance of this year and into 2019. This favorable operating
environment is expected to support a stable operating profile with
Moody's adjusted Debt-to-EBITDA expected to remain in the 5x to
5.5x range.
The B2 Corporate Family Rating reflects Odyssey's comparatively
modest footprint compared to other logistics providers, a cyclical
set of end markets served, and relatively high financial leverage.
Moody's recognizes the company's good standing as a niche provider
of intermodal, managed services, and trucking services primarily to
chemical, liquid food grade and metal producing customers.
Odyssey's technical and regulatory expertise, as well as its select
portfolio of specialized assets, are also viewed positively and add
further support to the rating. Favorable market conditions in
intermodal and trucking have resulted in meaningful topline (YTD
June 2018 net sales +13%) and earnings growth (YTD EBITDA up 18%)
and Moody's expects these positive trends to continue into 2019,
driven by robust demand, tight capacity, and a healthy pricing
environment. These positive considerations are tempered by the
company's small size within the highly competitive logistics
industry, as well as the cyclical nature of chemicals and metals,
markets that Moody's believes would be susceptible to lower volumes
and earnings pressures during an economic downturn.
The stable outlook reflects its expectations that favorable market
conditions will remain in place over the next 12 months which will
allow for continued sales growth and a steady operating profile.
The ratings could be upgraded if Moody's adjusted Debt-to-EBITDA
was expected to remain consistently below 4x. Any upgrade would be
predicated on the maintenance of a good liquidity profile and
strong operating performance across all segments. Given the
company's modest scale, Moody's would expect Odyssey to maintain
credit metrics that are stronger than levels typically associated
with companies at the same rating level.
The ratings could be downgraded if Odyssey's liquidity were to
deteriorate such that free cash flow generation turned negative or
if the company became increasingly reliant on revolver borrowings.
A weakening of profitability metrics, particularly in the
intermodal segment, could also result in downward rating pressure.
The ratings could be downgraded if the company pursues
debt-financed shareholder distributions or meaningfully leveraging
M&A transactions or if Moody's adjusted Debt-to-EBITDA was expected
to remain above 6.25x.
Moody's expects Odyssey to maintain a good liquidity profile over
the next twelve months. The company has a track record of
generating consistently positive cash flow each year and Moody's
anticipates free cash flow during 2018 of at least $10 million.
Thereafter, in 2019 Moody's expects a continuation of positive cash
flow with FCF-to-Debt likely to be in the low to mid-single-digits.
On-going cash balances are expected to remain comparatively modest
(cash of $19 million as of June 2018) and there are no principal
obligations due until 2024. External liquidity is provided by a $50
million revolving credit facility that expires in October 2022. The
facility contains a springing first lien net leverage ratio of
6.25x, that comes into effect if usage exceeds 35%. To the extent
the net leverage ratio comes into effect, Moody's expects the
company to maintain comfortable cushions relative to the covenant.
Issuer: Odyssey Logistics & Technology Corporation
The following summarizes the rating actions:
Corporate Family Rating, upgraded to B2 from B3
Probability of Default Rating, upgraded to B2-PD from B3-PD
$50 million first lien senior secured revolver due 2022, affirmed
B1 (LGD3)
$249 million first lien senior secured term loan due 2024, affirmed
B1 (LGD3)
$80 million second lien senior secured term loan due 2025, upgraded
to Caa1 (LGD5) from Caa2 (LGD5)
Outlook, remains Stable
Odyssey Logistics & Technology Corporation, headquarter in Danbury,
Connecticut, is a global logistics solutions provider offering
intermodal services, trucking services, managed services as well as
international transportation management and consulting. Odyssey
operates in multiple modes of transport with TL/LTL trucking,
containership, rail, air and bulk transport including bulk truck,
ISO Tank, railcar and tanker, as well as food-grade product lines.
Net revenues for the twelve months ended June 2018 were
approximately $225 million.
The principal methodology used in these ratings was Global Surface
Transportation and Logistics Companies published in May 2017.
OSAGE WATER: Trustee Wins Partial Summary Ruling vs Hancock, et al.
-------------------------------------------------------------------
The adversary proceeding captioned Gregory D. Williams, Plaintiff,
v. Hancock Construction Co., et al., Defendants, Adv. Proc. No.
17-02010 (Bankr. W.D. Mo.) was before the Court on the Motion for
Partial Summary Judgment filed by the Chapter 11 Trustee and the
Counter-Motion for Partial Summary Judgment filed by Gregory D.
Williams. The Plaintiff seeks a declaratory judgment to determine
the extent, validity, and priority of several judgment liens,
claims and interests in the real property of Osage Water Company.
Upon review, Bankruptcy Court Dennis R. Dow Court grants the
Trustee's Summary Judgment Motion and grants Williams' Summary
Judgment Motion in part.
The Debtor, a Missouri corporation, owns, operates and controls
property in the distribution and sale of water to residents of
Camden County, Missouri, for gain. This includes pipes, pumps,
structures, appliances and other real and personal property in
connection with the collection, carriage, treatment and disposal of
sewage ("Water Systems"). The Water Systems are essential to the
company's business, and are held for the benefit of the public. The
Debtor also owns non-operational water supply and sewer systems
located at Osage Beach Parkway. The Debtor originally provided
these services under the authority of the Missouri Public Service
Commission, and was formed by three principals: David Hancock,
Gregory Williams and Pat Mitchell.
The Trustee asserts that as a matter of law, judgment liens cannot
attach to property owned by quasi-public corporations, like the
Debtor, and used for public benefit. The Trustee's alternative
argument is that even if judgment liens could attach, the Judgment
Holders do not have liens because they expired prepetition. With
respect to Hancock's Judgment, the Trustee makes the additional
argument that the Hancock revival order is void ab initio since it
was entered by the State Court in violation of the automatic stay.
Williams agrees with the Trustee that the other Judgment Holders'
liens expired pre-petition, but disagrees that the Debtor is a
quasi-public corporation whose property is exempt from lien
attachment and execution. He asserts that he has a valid
first-priority judgment lien on the Debtor's assets.
The Court holds that The Debtor is a quasi-public corporation as
that term is defined within Missouri's statutory framework, and as
such, the Water Systems are protected from the attachment and
execution of nonconsensual liens. Even if it were not characterized
as a quasi-public corporation, the Trustee has demonstrated that
the liens of the Judgment Holders expired prepetition. Regarding
the Hancock Judgment, the revival order was void ab initio as it
was entered in violation of the automatic stay. Furthermore, there
is no authority for the proposition that payment on the judgment
revives or extends it. The Trustee's Summary Judgment Motion as to
Count I of her cross-claim is, therefore, granted.
In addition, Williams' Summary Judgment Motion is also granted. It
is well-established that state court judgments are entitled to full
faith and credit in federal court. Mitchell has failed to persuade
the Court that an exception exists that would deny the Williams
Judgment of that. Furthermore, Mitchell presented nothing to
support his contention that he was a necessary party to the
underlying lawsuit and was deprived of his constitutional rights.
In short, he has presented no authority for the Court to review the
Williams Judgment.
A full-text copy of the Court's Memorandum Opinion dated Sept. 12,
2018 is available at https://bit.ly/2NYqHX2 from Leagle.com.
Gregory D Williams, Plaintiff, represented by Gregory D. Williams,
United States & Zane G. Williams, Williams Law Firm.
Hancock Construction Company, Defendant Hancock Construction Co.,
Defendant, represented by Duane E. Schreimann, Schreimann, Rackers
& Francka, L.L.C.
Roelofsz Enterprises, Inc., Creditor Roelofsz Enterprises, Inc.,
Defendant, pro se.
Jackson Engineering, Inc., Defendant, pro se.
Water Laboratory, Inc., Defendant, pro se.
Summit Investment Co., LLC, Defendant Summit Investment Co., LLC,
Defendant, represented by Bruce E. Strauss, Merrick Baker Strauss.
Osage Water Company, Defendant Osage Water Company, Defendant, pro
se.
Jill Olsen, Trustee, represented by Andrea M. Chase --
achase@spencerfane.com -- Spencer Fane LLP & Eric L. Johnson --
ejohnson@spencerfane.com -- Spencer Fane LLP.
William P. Mitchell, Counter-Claimant, represented by Thomas E.
Loraine, Loraine & Associates.
William P. Mitchell, Cross-Claimant, represented by Thomas E.
Loraine, Loraine & Associates.
About Osage Water Company
Osage Water Company is a public utility that is in the business of
producing, purifying, treating and distributing water within Camden
County, Missouri. The company currently holds real estate, water
and wastewater systems located at Cedar Glen Condominiums, Chelsea
Rose Subdivision, Harbor Bay Condominiums and Eagle Woods
Subdivision. Osage Water's gross revenue amounted to $250,605 in
2016 and $255,285 in 2015.
Osage Water Company, through a receiver, filed a Chapter 11
petition (Bankr. W.D. Mo. Case No. 17-42759) on Oct. 11, 2017. In
its petition, signed by Gary V. Cover, receiver for the company,
the Debtor disclosed $75,585 in assets and $2.45 million in
liabilities.
The Hon. Cynthia A. Norton presides over the case.
John C. Reed, Esq., at Pletz and Reed, P.C., served as the Debtor's
bankruptcy counsel.
Jill Olsen was appointed Chapter 11 trustee for the Debtor. The
trustee hired The Olsen Law Firm, L.L.C. as her bankruptcy counsel;
Spencer Fane LLP as special counsel, and Lake of the Ozarks Water
and Sewer as operations manager.
PENINSULA RESEARCH: May Use Cash Collateral Through November 14
---------------------------------------------------------------
The Hon. Karen S. Jennemann of the U.S. Bankruptcy Court for the
Middle District of Florida authorized Peninsula Research Ormond
Beach to continue using cash collateral until a further preliminary
hearing to be conducted on Nov. 14, 2018 at 2:00 p.m.
The Debtor is authorized to use cash collateral to pay: (a) amounts
expressly authorized by the Court, including payments to the U.S.
Trustee for quarterly fees; and (b) the current and necessary
expenses set forth in the budget filed by the Debtor, plus an
amount not to exceed 10% for each line item.
Each creditor with a security interest in cash collateral will have
a perfected postpetition lien against cash collateral to the same
extent and with the same validity and priority as the prepetition
lien, without the need to file or execute any document as may
otherwise be required under applicable non-bankruptcy law.
During the cash collateral use period, the Debtor will (a) grant to
the secured creditors access to Debtor's business records and
premises for inspection; and (b) maintain insurance coverage for
its property in accordance with the obligations under the loan and
security documents with its secured creditors.
A full-text copy of the Order is available at
http://bankrupt.com/misc/flmb18-04498-23.pdf
About Peninsula Research Ormond Beach
Peninsula Research Ormond Beach, LLC, sought protection under
Chapter 11 of the Bankruptcy Code (Bankr. M.D. Fla. Case No.
18-04498) on July 27, 2018. In the petition signed by Angel Ribo,
CEO and president, the Debtor estimated assets of less than $50,000
and liabilities of less than $500,000. The Debtor is represented
by the Law Offices of Scott W. Spradley, P.A.
PINNACLE LAND: Court Dismisses Chapter 11 Case with Prejudice
-------------------------------------------------------------
Bankruptcy Judge Gregory L. Taddonio dismissed with prejudice
Pinnacle Land Group, LLC's bankruptcy case captioned In re:
PINNACLE LAND GROUP, LLC, Chapter 11, Debtor, Case No. 17-23339-GLT
(Bankr. W.D. Pa.).
Pinnacle Land Group, LLC obtained a loan from Wilmington Trust
National Association's predecessor, pledging its assets as
collateral, but Wilmington now believes it was hoodwinked. It
claims that Pinnacle was created to obscure the true owners of the
real estate assets, Michael Staaf and his mother, Joann Jenkins, by
temporarily transferring their interests to an entity controlled by
a third-party, Michelle Person, in order to obtain financing for a
maturing loan. Wilmington now seeks dismissal of Pinnacle's
bankruptcy case or, alternatively, stay relief to reinstate a state
court-appointed receiver and continue mortgage foreclosure
proceedings. Pinnacle opposes such relief by offering a plan of
reorganization that would validate the equity held by Staaf and
Jenkins while substantially modifying Wilmington's claim.
After conducting an evidentiary hearing, the Court concludes that
Pinnacle's chapter 11 case does not serve a valid reorganizational
purpose. Rather, the case exists solely to sanctify a ruse
perpetuated on the lender, if not advance it. It is clear that
Pinnacle seeks to use the bankruptcy to validate a fraudulent loan
transaction and force the lender to accept controlling parties
different from the one it vetted during the underwriting process.
Because the apparatus of the bankruptcy system cannot be used for
such nefarious purposes, the case is dismissed with prejudice.
A copy of the Court's Opinion dated Sept. 10, 2018 is available at
https://bit.ly/2MMOSmA from Leagle.com.
Pinnacle Land Group, LLC, Debtor, represented by Donald R. Calaiaro
-- dcalaiaro@c-vlaw.com -- Calaiaro Valencik & Michael Kaminski --
mkaminski@c-vlaw.com -- Calaiaro Valencik.
Office of the United States Trustee, U.S. Trustee, represented by
Joseph S. Sisca.
About Pinnacle Land Group
Pinnacle Land Group, LLC, sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. W.D. Pa. Case No. 17-23339) on Aug. 18,
2017. In the petition signed by Joann Jenkins, manager, the Debtor
estimated assets and liabilities of less than $1 million.
Judge Gregory L. Taddonio presides over the case. Calaiaro
Valencik is the Debtor's bankruptcy counsel.
POSTROCK ENERGY: W. Damon Bid to Toss Trustee Clawback Suit Granted
-------------------------------------------------------------------
Bankruptcy Judge Sarah A. Hall granted William Damon's motion to
dismiss the case captioned STEPHEN J. MORIARTY as Chapter 11
Trustee of Post Rock Energy Corporation, et al., Plaintiff, v.
WILLIAM DAMON, Defendant, Adv. Pro. 18-01024 (Bankr. W.D. Okla.).
The Trustee filed the Complaint, and nine others similar to it,
asserting causes of action under 11 U.S.C. sections 547, 548 and
550 to avoid and recover certain transfers as either preferential
or fraudulent transfers and under 11 U.S.C. section 502(d)&(j) to
disallow claims. Damon's motion argues Trustee's alleged causes of
action do not satisfy the "Twombly/Iqbal plausibility standard" of
pleading, and thus, the Complaint should be dismissed for failure
to state a claim for relief.
As could be expected, the Response argues the opposite, but Trustee
fails to adequately rebut the arguments that his Complaint is
deficient. The Complaint muddles the two causes of action for
preferential transfers and fraudulent transfers, omits critical
information, and makes numerous legal conclusions without facts to
support them.
In addition to its failure to sufficiently detail the Transfer and
the antecedent debt(s) it was made on account of, there is another
shortcoming in the Complaint. Trustee alleges Damon was, at all
relevant times, an "insider," as that term is defined by Section
101(31) of the Bankruptcy Code, but gives no information or
description of the relationship between the parties. Without more,
such statement is a legal conclusion, not a factual allegation.
Further, the Complaint is deficient because it does not plead
sufficient facts to establish that the PostRock Debtor making the
Transfers received less than reasonably equivalent value for the
Transfers as required by Section 548(a)(1)(B)(i). Although pleading
in the alternative is permissible, the factual allegations
necessary to support alternative causes of action are often
inconsistent, as is with the case with Sections 547 and 548. The
facts of Trustee's alternative Count II regarding these potentially
fraudulent transfers under Section 548 does not allege with any
specificity that no consideration was received, or that there was
no antecedent debt, or that the consideration received was valued
at less than the amount of the Transfers. Without any such
allegations, the Court cannot plausibly conclude that reasonably
equivalent value was not received in connection with the
Transfers.
Thus, the Trustee's causes of action for preferential and
fraudulent transfers under Sections 547 and 548 of the Bankruptcy
Code fail to state a claim. Counts III and IV of the Complaint for
recovery of the avoided transfers under Section 550 and/or
disallowance of the transferee's claims under Section 502(d) & (j)
on account of the avoided transfers are dependent upon avoidance
under Section 547 and 548. As a result, they must also be
dismissed. Therefore, the Complaint is dismissed in its entirety,
but with leave to amend. Trustee is granted 20 days from the date
of entry of this Order to file an amended complaint. Trustee is
strongly cautioned against further pleading in a conclusory
fashion, as further leave to amend will not be granted.
A copy of the Court's Order dated Sept. 6, 2018 is available at
https://bit.ly/2DgUXIp from Leagle.com.
PostRock Energy Corporation, Debtor, represented by William H. Hoch
-- will.hoch@crowedunlevy.com -- Crowe & Dunlevy, Stephen J.
Moriarty , Fellers Snider & Christopher M. Staine --
Christopher.staine@crowedunlevy.com -- Crowe & Dunlevy PC.
Stephen J. Moriarty, Trustee, pro se.
United States Trustee, U.S. Trustee, represented by Marjorie J.
Creasey, US Trustee Office & Charles Snyder, United States
Trustee.
Official Committee of Unsecured Creditors, Creditor Committee,
represented by Larry Glenn Ball, Hall, Estill & Wojciech F. Jung,
Lowenstein Sandler LLP.
About PostRock Energy Corp.
Headquartered in Oklahoma City, Oklahoma, PostRock Energy
Corporation, PostRock Energy Services Corporation, PostRock
MidContinent Production LLC, PostRock Eastern Production, LLC,
PostRock Holdco, LLC, and STP Newco, Inc. are engaged in the
acquisition, exploration, development, production and gathering of
crude oil and natural gas. Their primary production activity is
focused in the Cherokee Basin, a 15-county region in southeastern
Kansas and northeastern Oklahoma. They have approximately 129
employees.
PostRock Energy, et al., filed Chapter 11 bankruptcy petitions
(Bankr. W.D. Okla. Lead Case No. 16-11230) on April 1, 2016. Clark
Edwards signed the petitions as president. The Debtors estimated
assets in the range of $10 million to $50 million and debt of up to
$100 million.
Crowe & Dunlevy, P.C. serves as the Debtors' counsel. Judge Sarah
A. Hall is assigned to the cases.
Stephen J. Moriarty has been appointed as Chapter 11 Trustee of
PostRock Energy.
The Official Committee of Unsecured Creditors of PostRock Energy
Corp. has retained Lowenstein Sandler LLP as counsel, and Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C. as special and local
counsel.
PRECIPIO INC: Completes $545K Final Drawdown From Investor Funding
------------------------------------------------------------------
Precipio Inc. completed on Sept. 20, 2018, its final drawdown in
the amount of $545,001 in accordance with the terms of the
securities purchase agreement with certain investors entered into
between the Company and the Investors on April 20, 2018. On the
same date the Company and the investors have entered into a letter
agreement pursuant to which the Company and the Investors agreed to
reprice all the warrants that were issued to the Investors,
pursuant to the terms of Agreement whereby the exercise price of
all the warrants will be reduced from $0.75 to $0.50 per share of
common stock of the Company.
About Precipio
Omaha, Nebraska-based Precipio, formerly known as Transgenomic,
Inc. -- http://www.precipiodx.com/-- is a cancer diagnostics
company providing diagnostic products and services to the oncology
market. The Company has developed a platform designed to eradicate
misdiagnoses by harnessing the intellect, expertise and technology
developed within academic institutions and delivering quality
diagnostic information to physicians and their patients worldwide.
Precipio operates a cancer diagnostic laboratory located in New
Haven, Connecticut and has partnered with the Yale School of
Medicine.
The audit opinion included in the company's Annual Report on Form
10-K for the year ended Dec. 31, 2017 contains a going concern
explanatory paragraph. Marcum LLP, the Company's auditor since
2016, stated that the Company has a significant working capital
deficiency, has incurred significant losses and needs to raise
additional funds to meet its obligations and sustain its
operations. These conditions raise substantial doubt about the
Company's ability to continue as a going concern.
Precipio reported a net loss available to common stockholders of
$33.21 million in 2017 and a net loss available to common
stockholders of $4.08 million in 2016. As of June 30, 2018,
Precipio had $25.88 million in total assets, $13.69 million in
total liabilities and $12.19 million in total stockholders'
equity.
Nasdaq Delisting Notice
On March 26, 2018, Precipio received written notice from The Nasdaq
Stock Market LLC indicating that, based on the closing bid price of
the Company's common stock for the preceding 30 consecutive
business days, the Company is not in compliance with the $1.00
minimum bid price requirement for continued listing on the Nasdaq
Capital Market. The Notice has no immediate effect on the listing
of Precipio's common stock, and its common stock will continue to
trade on the Nasdaq Capital Market under the symbol "PRPO" at this
time. In accordance with Nasdaq Listing Rule 5810(c)(3)(A),
Precipio has a period of 180 calendar days, or until Sept. 24, 2018
to regain compliance with the Minimum Bid Price Requirement.
PREFERRED CARE: HUD Affiliates Get Final Nod to Use Cash Collateral
-------------------------------------------------------------------
The Hon. Mark X. Mullin of the U.S. Bankruptcy Court for the
Northern District of Texas has entered a final order authorizing
the HUD Debtors Elsemere Health Facilities, L.P., and Henderson
Health Facilities, L.P., to use the cash collateral of the secured
parties as set forth in the budgets.
The HUD Debtors are allowed to use cash collateral to fund working
capital, operating expenses, capital expenditures, fixed charges,
payroll, and all other general corporate purposes arising in the
HUD Debtors' ordinary course of business, and to pay the costs and
expenses related to the administration of the HUD Debtors'
bankruptcy cases, including reasonable professional fees and
certain other expenses consistent with and for the purposes set
forth herein, through and including a date to be agreed by the HUD
Debtors and the Secured Parties.
The adequate protection provided to the Secured Parties under the
Final Order is only to the extent (i) that the asserted liens and
security interests by the Secured Parties in the HUD Debtors'
prepetition Date property interests are perfected, valid, and not
avoidable as of the Petition Date and (ii) of a decrease in the
value of such entity's asserted prepetition Date security interests
has occurred.
The following adequate protection is provided to the Secured
Parties as adequate protection of their asserted Pre-Petition Date
security interests nunc pro tunc to the Petition Date, in each case
solely against the HUD Debtors and assets thereof that are
encumbered under each such Secured Party's respective prepetition
agreements:
(a) The HUD Debtors will remain current on their regularly
scheduled rental payments to FC Domino (through Jan. 31, 2018,
unless otherwise extended by written agreement between the HUD
Debtors and the Secured Parties, as applicable);
(b) The HUD Debtors will permit representatives, agents, or
employees of FC Domino or their affiliates upon written notice to
have reasonable access to personnel employed at the HUD Debtors and
provide FC Domino non-privileged information as they may reasonably
request with respect to such facilities;
(c) The HUD Debtors will maintain appropriate insurance on the
HUD Debtors' assets in amounts consistent with prepetition
practices and with applicable law;
(d) The HUD Debtors will maintain appropriate and necessary
licensing with respect to operating the facilities consistent with
prepetition practices and with applicable law;
(e) The Secured Parties are granted, from and after the
Petition Date, allowed administrative expense claims with priority
over any and all administrative expenses, adequate protection
claims, and all other claims against the HUD Debtors, now existing
or hereinafter arising, of any kind whatsoever, as provided under
section 507(b) of the Bankruptcy Code;
(f) The Secured Parties are granted, from and after the
Petition Date, replacement liens and security interests in all
accounts and inventory acquired by the HUD Debtors after the
Petition Date, specifically including all cash proceeds arising
from such accounts and inventory acquired by the HUD Debtors after
the Petition Date, in the same nature, extent, priority, and
validity that any such liens asserted by the Secured Parties
existed on the Petition Date;
(g) As of the Petition Date, said replacement liens and
security interests granted to the Secured Parties will be valid,
perfected, enforceable and effective against the HUD Debtors, their
successors and assigns, including any trustee or receiver in this
or any superseding chapter 7 case, without any further action by
the HUD Debtors, Ziegler Financing Corporation (as HUD-insured
lender), or FC Domino and without the execution, delivery, filing
or recordation of any promissory notes, financing statements,
security agreements or other documents;
(h) Said replacement liens and security interests in favor of
the Secured Parties will constitute paramount and perfected first
priority liens and security interest in such property; and
(i) The Secured Parties will have all the rights and remedies
of a secured creditor in connection with the liens and security
interests granted by the Final Order in all collateral, except to
the extent that such rights and remedies may be affected by the
Bankruptcy Code and otherwise.
The HUD Debtors will provide HUD and the Secured Parties with (i)
monthly financial statements during the pendency of these Chapter
11 Cases and (ii) such additional information as HUD and the
Secured Parties will request from the Debtors. HUD and the Secured
Parties will have reasonable access to each HUD Debtor's business
premises in order to review and evaluate the physical condition of
any of their adequate protection collateral and/or to inspect the
financial records and other records of the HUD Debtors concerning
the operation of the HUD Debtors' businesses.
A full-text copy of the Final Order is available at
http://bankrupt.com/misc/txnb17-44642-995.pdf
About Preferred Care
Preferred Care, Inc., is a Delaware corporation that is owned by
Mr. Thomas Scott. PCI is a holding company for numerous wholly
owned, non-debtor subsidiaries that collectively own four mental
health facilities located in Mississippi, a developmental facility
in Florida, and a management contract for the operations of a
skilled nursing home in Texas.
The Debtors, other than PCI, operate 33 skilled nursing facilities
in Kentucky and New Mexico. Their non-debtor affiliates operate an
additional 75 skilled nursing facilities in ten additional states.
Accordingly, the Debtors and their non-debtor affiliates operate
108 skilled nursing, assisted living and independent living
facilities in 12 states (approximately 11,500 beds and 9,300
residents).
Preferred Care, Inc., and 33 of its affiliates sought Chapter 11
protection (Bankr. N.D. Tex. Case No. 17-44642) on Nov. 13, 2017.
The Debtors' bankruptcy proceedings have been jointly administered
under the PCI's bankruptcy case.
The Debtors are represented by Foley Gardere, which was formed
following the combination of Foley & Lardner LLP and Gardere Wynne
Sewell LLP. Preferred Care initially hired Gardere Wynne Sewell
LLP as its legal counsel. Focus Management Group, USA, Inc.,
serves as the Debtors' financial advisor; KPMG LLP, serves as tax
return preparers and tax consultants; and JND Corporate
Restructuring serves as claims, noticing and balloting agent.
Artesia Health Facilities GP, LLC; Bloomfield Health Facilities GP,
LLC; and several other entities -- so-called GP Debtors-32 --
sought Chapter 11 protection on July 6, 2018, and their cases are
jointly administered with Preferred Care's. They have hired
Rochelle McCullough L.L.P. as their bankruptcy counsel.
An official committee of unsecured creditors has been appointed in
the Chapter 11 cases, and is represented by Gray Reed & McGraw LLP
as counsel and CohnReznick LLP as financial advisor.
PREFERRED PROVIDERS: Deborah Fish Named Patient Care Ombudsman
--------------------------------------------------------------
Daniel M. McDermott, United States Trustee for Region 9, in
furtherance of the administrative responsibilities imposed by 28
U.S.C. Section 586(a), 11 U.S.C. Section 333(a)(2), Rule 2007.2(c)
of the Federal Rules of Bankruptcy Procedure, and the Bankruptcy
Court's order, appoints as the Patient Care Ombudsman in this
case:
Deborah L. Fish
535 Griswold Street, Suite 2600
Detroit, MI 48226
About Preferred Providers
Preferred Providers, Inc., is a home healthcare agency that
operates patient homes and assisted living facilities. Preferred
Providers, based in Ann Arbor, Michigan, filed a Chapter 11
petition (Bankr. E.D. Mich. Case No. 18-51350) on Aug. 15, 2018.
In the petition signed by Ronald Cleland, president, the Debtor
disclosed $245,342 in assets and $1,321,999 in liabilities. The
Hon. Marci B. McIvor presides over the case. Todd M. Halbert,
Esq., serves as bankruptcy counsel.
PRO-CARE INJURY: Court Dismisses Chapter 11 Case
------------------------------------------------
At the behest of Sara Huaman, the U.S. Bankruptcy Court for the
Northern District of Texas dismissed the bankruptcy proceeding of
Pro-Care Injury & Rehab Centers, Inc., without prejudice.
Ms. Huaman is the former wife of James Huaman, who signed the
Debtor's schedules of assets and liabilities and statement of
financial affairs. Ms. Huaman pointed out that the Debtor's
corporate charter expired on September 25, 2009, for failure to pay
corporate franchise taxes. Thus, the Debtor has been a terminated
entity under state law for almost nine years.
Ms. Huaman asserted that the Debtor is ineligible to be a
Debtor-in-Possession under Chapter 11 under well settled bankruptcy
law that specifically limits an entity whose corporate charter has
been forfeited to a liquidation within the three-year statutory
period prescribed by Texas state law. Based on this, Ms. Huaman
asserts this bankruptcy case should be dismissed.
Judge Robert Jones addressed these very issues in the case of In re
American Heartland Sagebrush Securities, where interested parties
filed a motion to dismiss the debtor's chapter 11 bankruptcy
alleging that the Debtor was ineligible for relief under Chapter 11
due to the forfeiture of its corporate charter approximately 10
years prior.
Sara Huaman is represented by:
Areya Holder Aurzada, Esq.
Sabrina Johnson Craig, Esq.
HOLDER LAW
901 Main Street, Suite 5320
Dallas, TX 75202
Tel: (972) 438-8800
Email: areya@holderlawpc.com
About Pro-Care Injury & Rehab Centers, Inc.
Pro-Care Injury & Rehab Centers, Inc., is a medical clinic in
Dallas, Texas. Pro-Care Injury & Rehab Centers filed a voluntary
petition under Chapter 11 of the Bankruptcy Code (Bankr. N.D. Tex.
Case No. 18-31984) on June 12, 2018, estimating under $1 million in
assets and liabilities. Gregory Wayne Mitchell, Esq., at The
Mitchell Law Firm, L.P., serves as the Debtor's counsel. Pro-Care
Injury & Rehab Centers, Inc. hired William Dunn, as
accountant/receiver to the Debtor.
PROVIDENCE WIRELESS: Solicitation Period Extension Denied as Moot
-----------------------------------------------------------------
The Hon. Robert A. Mark of the U.S. Bankruptcy Court for the
Southern District of Florida has entered an order denying as moot
Providence Wireless, LLC's Motion to Extend Exclusive Period to
Solicit Acceptances of Plan of Reorganization because the Debtor
has proposed a plan of reorganization with no impaired classes of
creditors and, therefore, it does not intent to solicit any
acceptances of its plan.
The Debtor filed a plan of reorganization and disclosure statement
on April 3, 2018, and filed an amended plan on May 9, 2018.
About Providence Wireless
Providence Wireless, LLC, is a radiotelephone communication company
located in Alpharetta, Georgia.
Providence Wireless sought protection under Chapter 11 of the
Bankruptcy Code (Bankr. S.D. Fla. Case No. 18-11940) on Feb. 21,
2018. At the time of the filing, the Debtor estimated assets and
liabilities of $1,000,001 to $10 million.
Judge Robert A. Mark presides over the case.
The Debtor hired Shraiberg, Landau & Page, P.A., as its bankruptcy
counsel, and Rice Pugatch Robinson Storfer & Cohen PLLC and Parker
Poe Adams & Bernstein LLP as special counsel.
No official committee of unsecured creditors has been appointed in
the Chapter 11 case.
R & S ST. ROSE: BB&T's Proof of Claim Not Barred from Re-litigation
-------------------------------------------------------------------
The case captioned In the Matter of: R&S ST. ROSE LENDERS, LLC,
Debtor, BRANCH BANKING AND TRUST COMPANY, Plaintiff-Appellee, v.
CREDITOR GROUP, Defendant-Appellant, No. 15-15662 (9th Cir.) is an
appeal from the District of Nevada's reversal of a Bankruptcy
Court's decision to dismiss a Proof of Claim on res judicata
grounds. Appellant seeks reversal of the District Court's decision,
and, by extension, reinstatement of the Bankruptcy Court's
decision. The United States Court of Appeals, Ninth Circuit, agrees
with the District Court that the Proof of Claim is not barred from
re-litigation, and finds that the District Court correctly reversed
the Bankruptcy Court's decision.
In its objection to the proof of claim, the Creditor Group argued
that the POC was barred by both claim preclusion and issue
preclusion -- without clearly distinguishing between these two
doctrines. In assessing the merits of the Creditor Group's
arguments, the Bankruptcy Court first recited the applicable
standards under issue preclusion and claim preclusion. Then,
without clearly articulating the basis for its decision, but
suggesting that it was relying on the issue preclusion doctrine,
the Bankruptcy Court held that the POC was barred because the
merits of the fraud and conspiracy claims had already been decided
in the State Court Action. The Bankruptcy Court avoided a clear
decision on claim preclusion and thereby avoided an analysis of the
effectiveness of the assignment of claims from Colonial Bank to
BB&T.
The District Court reversed the Bankruptcy Court's decision
regarding issue preclusion, holding that the Nevada State Court and
Nevada Supreme Court had based their decision on standing, and did
not reach a merits decision regarding fraud or conspiracy. The
District Court did not address the Creditor Group's argument that
BB&T's Proof of Claim was barred by claim preclusion. In declining
to do so, the District Court noted that the basis for the
Bankruptcy Court's decision was not entirely clear, and also noted
that the Creditor Group seemed to have abandoned their claim
preclusion argument on appeal. As a result, the District Court did
not analyze whether claim preclusion applies to bar POC 43.
The 9th Circuit agrees with the District Court that issue
preclusion does not apply to prevent BB&T from asserting its POC
with the Bankruptcy Court. The issue here -- whether
misrepresentations were made to Colonial -- may have been
litigated, but a determination on that issue was not necessary to
the Nevada trial court's judgment. The Nevada trial court clearly
held BB&T was not permitted to bring claims on behalf of Colonial
because BB&T failed to submit sufficient evidence to establish that
it was Colonial's successor in interest. The Nevada Supreme Court
affirmed the trial court's decision on the same basis, agreeing
that the evidence submitted and accepted by the Nevada trial court
did not establish that BB&T owned the claims it was asserting.
As a result, to the extent that the Nevada trial court examined the
merits of any of BB&T's claims, its determinations on those
substantive issues were not necessary in reaching its decision.
Regardless of what conclusions the court reached on those issues,
it would not have changed the outcome of its decision. Therefore,
although the Nevada trial court's decision includes a finding that
no misrepresentations had been made to Colonial, that finding does
not relate to whether BB&T submitted sufficient evidence to show
that it was the successor in interest to Colonial, which was the
sole basis for the Nevada trial court's decision. Accordingly, that
finding has no preclusive effect in this bankruptcy proceeding.
The Creditor Group argues that even if issue preclusion does not
apply here, claim preclusion bars POC 43. Without citing any law,
the Creditor Group argues that the Nevada trial court's
determination that BB&T had not met its evidentiary burden to show
that it owned the claims it was asserting, coupled with BB&T's
voluntary dismissal of its fraudulent transfer and civil conspiracy
claim, constitutes a final judgment on the merits. BB&T argues that
POC 43 is not barred by claim preclusion because voluntary
dismissal is not a final judgment on the merits.
The Court agrees with BB&T. Under Nevada law, "a valid final
judgment . . . does not include a case that was dismissed without
prejudice or for some reason (jurisdiction, venue, failure to join
a party) that is not meant to have preclusive effect." Here, the
Nevada trial court granted BB&T's voluntary motion to dismiss its
fraudulent misrepresentation and civil conspiracy claims. Because
the order of dismissal does not indicate otherwise, the Nevada
trial court dismissed these two claims without prejudice.
Accordingly, the dismissal does not constitute a valid final
judgment to preclude BB&T's similar claims of "fraud" and
"conspiracy" as the basis for POC 43.
The judgment of the District Court is, therefore, affirmed and the
case is remanded to the Bankruptcy Court for further proceedings,
including consideration of the merits of POC 43.
A copy of the Court's Memorandum dated Sept. 7, 2018 is available
at https://bit.ly/2ODEPSp from Leagle.com.
About R & S St. Rose Lenders
Las Vegas, Nevada-based R & S St. Rose Lenders, LLC, filed for
Chapter 11 bankruptcy protection (Bankr. D. Nev. Case No. 11-14973)
on April 4, 2011. Rose Lenders disclosed $12,041,574 in assets and
$24,502,319 in liabilities in its schedules, as amended. Its
primary asset consists of its claim in the scheduled amount of $12
million against R&S St. Rose, LLC.
Affiliate R & S St. Rose, LLC, filed a separate Chapter 11 petition
(Bankr. D. Nev. Case No. 11-14974) on April 4, 2011. According to
its schedules, it disclosed $16,821,500 in total assets and
$48,293,866 in total debts. Its primary asset consists of a fee
simple interest in approximately 38 acres of raw land located in
Henderson, Nevada.
R & S ST Rose Lenders' bankruptcy case is assigned to Judge Mike K.
Nakagawa.
R&S St. Rose Lenders has tapped Nedda Ghandi, Esq., of Ghandi Law
Offices as bankruptcy counsel. The Debtor previously had Larson &
Larson as counsel but the application was opposed by the U.S.
Trustee, prompting the withdrawal.
Commonwealth Land Title Insurance Company is represented by Scott
E. Gizer, Esq., at Early Sullivan Wright Gizer & McRae LLP, in Las
Vegas, Nevada, and Mary C.G. Kaufman, Esq., at Early Sullivan
Wright Gizer & McRae LLP, in Los Angeles, California.
Branch Banking and Trust Company is represented by J. Stephen Peek,
Esq., and Joseph G. Went, Esq., at Holland & Hart LLP, in Las
Vegas, Nevada.
RAILYARD COMPANY: Bankr. Court Disallows RBC's $6.7MM Claim
-----------------------------------------------------------
Bankruptcy Judge David T. Thuma sustained the chapter 11 trustee's
objection to the $6,771,000 proof of claim filed by Railyard
Brewing Company, LLC in the bankruptcy case captioned In re:
RAILYARD COMPANY, LLC, Debtor, No. 15-12386 t11 (Bankr. D.N.M.).
RBC did not retain counsel to respond to the trustee's objection.
Instead, its members filed a pro se response. As RBC and the
members well know, however, limited liability companies must have
counsel in contested matters like this one, so the response must be
stricken. The claim objection therefore is sustained by default.
Furthermore, the claim is wildly inflated and inadequately
documented, and is subject to disallowance in any event.
Even if the Court were to consider the Claim Objection on the
merits, the Claim would have to be disallowed. "When a claim, or an
interest in property of the debtor securing the claim, is based on
a writing, a copy of the writing shall be filed with the proof of
claim. If the writing has been lost or destroyed, a statement of
the circumstances of the loss or destruction shall be filed with
the claim." Bankruptcy Rule 3001. The Official Bankruptcy Proof of
Claim Form instructs the filer to attach "redacted copies of any
documents that support the claim, such as promissory notes,
purchase orders, invoices, itemized statement of running accounts,
contracts, judgments, mortgages, and security agreements."
Elsewhere the form instructs the filer to attach "redacted copies
of any documents supporting the claim required by Bankruptcy Rule
3001(c)." The attachments to the Claim do not support these
asserted bases and do not comply with Bankruptcy Rule 3001.
RBC has had notice since at least 2016 that it must litigate in the
Bankruptcy Court through counsel. RBC ignored the rule and
attempted to respond to the Trustee's Claim Objection pro se by
pretending that the Members owned the Claim. The ploy does not
work. The Claim also lacks documentary support, is contrary to
prior Court rulings, and does not represent a good faith attempt to
quantify RBC's damages, if any, caused by rejection of the lease
entered into with Debtor.
A copy of the Court's Opinion dated Sept. 12, 2018 is available at
https://bit.ly/2O5wV7C from Leagle.com.
Railyard Company, LLC A New Mexico Limited Liability Company,
Debtor, pro se.
Steve Duran, Appellant, pro se.
Railyard Company, LLC A New Mexico Limited Liability Company,
Appellant, pro se.
Rick Jaramillo, Appellant, pro se.
Recreational Equipment, Inc., Appellee, represented by Charles R.
Hughson, Rodey, Dickason, Sloan, Akin & Robb, P.A.
Craig H Dill, Trustee, represented by Samuel I. Roybal, Walker &
Associates, P.C. &Thomas D. Walker, Walker & Associates, P.C.
United States Trustee, U.S. Trustee, represented by Alice Nystel
Page, Office of the U.S. Trustee.
About Railyard Company
Railyard Company, LLC, owns and developed two-story Market Station
that houses the REI sporting goods store and other tenants. It
filed a Chapter 11 petition (Bankr. D. N.M. Case No. 15-12386) on
Sept. 4, 2015. The petition was signed by Richard Jaramillo as
managing member. The Debtor is represented by William F. Davis,
Esq., at William F. Davis & Associates, P.C., as counsel.
The Debtor's Chapter 11 petition says the Company has about $11.2
million in debts and $13.8 million in assets.
A Chapter 11 Trustee was appointed for Railyard Company, LLC. The
Chapter 11 Trustee hired Hunt & Davis, P.C., as counsel, and Steven
W. Johnson, CPA, LLC as accountant.
Railyard Brewing Company, LLC, filed a Chapter 11 petition (Bankr.
D.N.M. Case No. 16-12829) on November 16, 2016, and is represented
by Michael K. Daniels, Esq.
RANDAL D. HAWORTH: PCO Files 1st Interim Report
-----------------------------------------------
Elliot M. Hirsch, M.D., duly appointed as the successor Patient
Care Ombudsman (PCO) for Randal Haworth, M.D., Inc., filed a First
interim report for the period of June 1, 2018 through July 31,
2018.
The PCO recommends maintaining the exposed medical records in a
locked area until the cabinet is repaired. The PCO recommends
checking the expiration dates on medications and replacing them
accordingly. The Debtor is in compliance and the PCO finds that
all care provided to the patients by Randal Haworth, M.D., Inc. is
within the standard of care. The PCO says it will continue to
monitor and is available to respond to any concerns or questions of
the Court or interested party.
A copy of the First Interim Report from PacerMonitor.com is
available at https://tinyurl.com/yc59usad at no charge.
About Randal D. Haworth
Randal D. Haworth M.D. Inc. filed a Chapter 11 bankruptcy petition
(Bankr. C.D. Cal. Case No. 18-16306) on May 31, 2018, estimating
less than $1 million in assets and liabilities.
The Debtor tapped Havkin & Shrago, Attorneys At Law, as counsel.
Elliot M. Hirsch was appointed as patient care ombudsman in the
Debtor's case. Terzian Law Group, A Professional Corporation, to
advise him regarding the rights of patients in bankruptcy context,
and provide other legal services related to the Debtor's Chapter 11
case.
On Aug. 9, 2018, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors. Buchalter is the
Committee's legal counsel.
RANDAL D. HAWORTH: Taps Gumbiner Savett as Accountant
-----------------------------------------------------
Randal D. Haworth, M.D., Inc., seeks approval from the U.S.
Bankruptcy Court for the Central District of California to hire
Gumbiner Savett, Inc. as its accountant.
The firm will prepare the Debtor's tax returns and will provide
accounting and tax advice in its Chapter 11 case.
Rodney Fingleson, the accountant employed with Gumbiner who will be
providing the services, charges an hourly fee of $575.
Mr. Fingleson disclosed in a court filing that he neither holds nor
represents any interest adverse to the Debtor's estate, creditors
and equity security holders.
Gumbiner Savett can be reached through:
Rodney Fingleson
Gumbiner Savett Inc.
1723 Cloverfield Boulevard
Santa Monica, CA 90404
Phone: 310.828.9798
Email: rfingleson@gscpa.com
About Randal D. Haworth
Randal D. Haworth M.D. Inc. filed a Chapter 11 bankruptcy petition
(Bankr. C.D. Cal. Case No. 18-16306) on May 31, 2018, estimating
less than $1 million in assets and liabilities.
The Debtor tapped Havkin & Shrago, Attorneys At Law, as counsel.
Elliot M. Hirsch was appointed as patient care ombudsman in the
Debtor's case.
On Aug. 9, 2018, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors. Buchalter is the
Committee's legal counsel.
REMARKABLE HEALTHCARE: Seeks Dec. 10 Exclusive Period Extension
---------------------------------------------------------------
Remarkable Healthcare of Carrollton, LP, and its affiliated debtors
request the U.S. Bankruptcy Court for the Eastern District of Texas
to extend the exclusive periods to file a plan of reorganization
and to solicit acceptances thereof through and including Dec. 10,
2018 and Feb. 8, 2019, respectively,
Since the hearing on Debtors' first motion to extend exclusivity,
the Debtors have made substantial and concrete progress toward the
development and filing of a plan of reorganization. Particularly,
the Debtors sought and obtained Court approval on Griffin Financial
Group, LLC's employment as their exclusive financial advisor and
investment banker in these Chapter 11 cases.
The Debtors relate that in the three weeks since Griffin has been
employed, Griffin and the Debtors have made extensive progress
toward the development and filing of a plan of reorganization. The
primary focus of Griffin's efforts thus far has been in obtaining
financing to take out Comerica Bank and to allow for the proposal
of a feasible plan of reorganization. Griffin and the Debtors have
been working at an extremely fast pace to make this happen in a
short time frame, not only to meet the Court's deadlines, but to
satisfy and assuage the major constituents in this case.
On Sept. 18, 2018, Debtors' representatives Laurie Beth McPike and
Jon McPike and counsel met in person with Comerica's representative
and counsel (with each side's professional, Griffin Financial and
Huron Consulting on the phone) to discuss the Debtors' and
Griffin's timeline and ongoing refinancing efforts. As the timeline
indicates, Griffin is finalizing its financing memorandum and
lender list as of September 21, 2018 and intends to provide the
finalized financing memorandum to these potential lenders as early
as September 24, 2018. The Debtors believe that the potential
lender list assembled by Griffin is extensive, with approximately
62 Senior Bank/Asset Based Lenders, 16 Unitranche lenders, and 18
Mezzanine lenders included. Griffin is preparing to circulate its
initial teaser memorandum as Debtors file this Motion.
The Debtors contend that after transmission of the financing
memorandum next week, potential lenders will have approximately 30
days in which to indicate their interest to the Debtors.
Subsequently, there will be a brief period in which the Debtors and
Griffin will analyze and consider the interest from the lenders.
Upon completion of this diligence period, and ideally by November
12, 2018 as indicated in the Griffin's timeline, the Debtors will
select a lender for their exit and plan financing. Because Debtors'
exclusive right to file a plan expires October 10, 2018, and
Debtors' selection of a lender may not occur until November 12,
2018, the Debtors request that the Court extend the Exclusivity
Periods for sixty days from October 10, 2018 to provide sufficient
additional time for this selection process to occur and for Debtors
to file a plan.
Although Griffin is moving extremely quickly, the lender selection
process may not be complete until mid-November. For these reasons,
the Debtors assert that the grant of a minimal, sixty-day extension
of the exclusivity periods is warranted to allow Griffin's efforts
to come to fruition and give the Debtors the last bit of time they
need to file their plan.
About Remarkable Healthcare
Remarkable Healthcare operates skilled nursing facilities in
Dallas, Fort Worth, Prestonwood and Seguin, Texas. All Remarkable
facilities are designed to meet the needs of patients requiring
post-acute recovery and therapy or residents needing a longer-term
stay. Services are tailored to each individual with the goal of
facilitating increased strength and mobility while minimizing pain
and impairment. Remarkable's programs are designed to help
patients recover quickly from surgery, injury, or serious illness
and speed up the recovery process.
Remarkable Healthcare of Carrollton, LP and its affiliates filed
voluntary petitions (Bankr. E.D. Tex. Lead Case No. 18-40295) on
Feb. 12, 2018, seeking relief under Chapter 11 of the Bankruptcy
Code.
In the petitions signed by Laurie Beth McPike, president of LBJM,
LLC, its general partner, Remarkable Healthcare of Carrollton,
Remarkable Healthcare of Dallas, Remarkable Healthcare of Fort
Worth and Remarkable Healthcare of Seguin, each had estimated $1
million to $10 million in both assets liabilities; and Remarkable
Healthcare had $100,000 to $500,000 in estimated assets and $1
million to $10 million in estimated liabilities.
The Debtors tapped Curtis Castillo PC, led by Mark A. Castillo, as
counsel; Montgomery Capital Advisers, LLC, as financial advisor;
and Griffin Financial Group, LLC, as investment banker.
On March 19, 2018, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors.
RENNOVA HEALTH: CEO Lagan Approves Reverse Common Stock Split
-------------------------------------------------------------
Seamus Lagan, chief executive officer and president of Rennova
Health, Inc., and Alcimede LLC, of which Mr. Lagan is the sole
manager, the holders of 26,684,380 shares of common stock and
250,000 shares of Series J Convertible Preferred Stock, which votes
with the common stock and the Series F Convertible Preferred Stock,
with each share of Series J Preferred Stock having 12,000 votes,
representing 50.4% of the total voting power of the Company's
voting securities, approved by written consent in lieu of a special
meeting of stockholders the following proposal, which had
previously been approved and recommended to be approved by the
stockholders by the Board of Directors of the Company.
Proposal 1: To approve an amendment to the Company's Certificate of
Incorporation, as amended, to effect a reverse stock split of all
of the outstanding shares of its common stock, at a specific ratio
from 1-for-100 to 1-for-10,000, and to grant authorization to the
Company's Board of Directors to determine, in its discretion, the
specific ratio and timing of the reverse split any time before
Sept. 30, 2019, subject to the Board of Directors' discretion to
abandon such amendment.
The stockholder approval of the above proposal will not be
effective until 20 days after an information statement that has
been filed with the Securities and Exchange Commission is mailed to
the holders of the Company's common stock, Series F Preferred Stock
and Series J Preferred Stock. The above proposal is separate from,
and in addition to, the authorization of a reverse split of the
Company's common stock at a specific ratio from 1-for-200 to
1-for-500 previously approved by its Board of Directors and
stockholders on Aug. 21, 2018 and Aug. 22, 2018, respectively. The
stockholder approval of that proposal became effective on
Sept. 18, 2018.
About Rennova Health
Rennova Health, Inc. -- http://www.rennovahealth.com/-- owns and
operates two rural hospitals in Tennessee and provides diagnostics
and supportive software solutions to healthcare providers,
delivering an efficient, effective patient experience and superior
clinical outcomes.
Rennova Health reported a net loss attributable to common
shareholders of $108.5 million for the year ended Dec. 31, 2017,
compared to a net loss attributable to common shareholders of
$32.61 million for the year ended Dec. 31, 2016.
As of June 30, 2018, the Company had $16.24 million in total
assets, $138.32 million in total liabilities, $5.83 million in
redeemable preferred stock I-1, $2.03 million in redeemable
preferred stock I-2, and a total stockholders' deficit of $129.9
million.
The report from the Company's independent accounting firm Green &
Company, CPAs, in Tampa, Florida, the Company's auditor since 2015,
on the consolidated financial statements for the year ended Dec.
31, 2017, includes an explanatory paragraph stating that the
Company has significant net losses, cash flow deficiencies,
negative working capital and accumulated deficit. Those conditions
raise substantial doubt about the company's ability to continue as
a going concern.
RICH HONEY: Seeks Access to Cash Collateral Through Dec. 31
-----------------------------------------------------------
Rich Honey, Inc. requests the U.S. Bankruptcy Court for the Central
District of California for authority to use cash collateral from
the Petition Date through Dec. 31, 2018.
As of the petition date, the Debtor had six secured creditors who
are owed an aggregate total of approximately $775,000, namely: (i)
Valley Economic Development Center, which is owed approximately
$342,671; (ii) Camel Financial, Inc., which is owed approximately
$130,947; (iii) Pacoima Development Federal Credit Union, claiming
$186,684 balance on the Debtor's debt; (iv) the State of California
Employment Development Department, with total amount owing of
approximately $91,113; (v) New Era Lending, LLC with a loan balance
of approximately $21,648; and (vi) Corporation Service Company, but
the Debtor has been unable to determine the original creditor. The
Debtor believes that all of these debts are secured by essentially
all of the Debtor's assets, which are valued at approximately
$522,837.
The Debtor needs to use the cash collateral in order to operate its
business. Since all of Debtor's receivables and accounts are
security for the above discussed loans, the Debtor has no income
that is not cash collateral.
The Debtor proposes to use cash collateral limited to the purposes
and total amounts set forth in the budget. The budget contains the
projected expenses that Debtor believes must be paid in order for
the Debtor to operate its business and avoid immediate and
irreparable harm to the bankruptcy estate. However, since the
projections can never be entirely accurate, the Debtor requests
that it be permitted to have the flexibility to increase
expenditures by up to 20% for any particular line item in the
budget and 15% in the aggregate.
In addition to the expenses in the business budget, Debtor requests
authority to use cash collateral to pay the quarterly fees to the
U.S. Trustee, any required fees to the Bankruptcy Court, and
administrative expenses including professionals' fees but only as
approved by the Court upon proper application.
If the Debtor's motion is granted, Debtor is willing to offer
adequate protection in the form of replacement liens in the same
priority and validity as Secured Creditors held prepetition.
A full-text copy of the Debtor's Motion is available at
http://bankrupt.com/misc/cacb18-19570-6.pdf
About Rich Honey Inc.
Rich Honey, Inc. -- https://richhoneyapparel.com/ -- is a wholesale
and private label blank apparel manufacturer in Los Angeles
specializing in premium quality garment dye t-shirts & leather
goods.
Rich Honey sought protection under Chapter 11 of the Bankruptcy
Code (Bankr. C.D. Cal. Case No. 18-19570) on Aug. 17, 2018. In the
petition signed by CEO Nicholas Bowes, the Debtor disclosed
$522,836 in assets and $2,252,796 in liabilities. Judge Vincent P.
Zurzolo presides over the case.
ROYAL AUTOMOTIVE: Final Cash Collateral Order Entered
-----------------------------------------------------
The Hon. Frank W. Volk of the U.S. Bankruptcy Court for the
Southern District of West Virginia has signed a final order
authorizing Royal Automotive Company's and Royal Real Estate, LLC's
use of cash collateral.
The Debtors are authorized to use cash collateral in accordance
with and as set forth on lines 10-19 of the Budget covering the
period through Sept. 24, 2018, to wit:
10. Storage $904
11. Brinkster Email Host Site $16
12. Fees -- WV Business Registration $0
13. Fees Bank Accounts $350
14. Miscellaneous Expenses $1,231
16. Customer Obligations $2,500
17. Tax -- State Sales $0
18. Tax -- Charleston Withholding User Fee $1,404
19. Tax -- State Withholding Tax $5,231
A copy of the Order is available at
http://bankrupt.com/misc/wvsb18-20218-271.pdf
A copy of the Budget is available at
http://bankrupt.com/misc/wvsb18-20218-271-bgt.pdf
About Royal Automotive Company
Royal Automotive Company is dealer for new and used cars in
Charleston, West Virginia. Royal Real Estate LLC is engaged in
activities related to real estate.
Royal Automotive Company and Royal Real Estate sought protection
under Chapter 11 of the Bankruptcy Code (Bankr. S.D. W.Va. Lead
Case No. 18-20218) on May 2, 2018. In the petitions signed by
Kelly Smith, president and CEO, the Debtors estimated assets of $1
million to $10 million and liabilities of $1 million to $10
million.
Judge Frank W. Volk is the case judge.
Marc R. Weintraub, Esq., Kevin W. Barrett, Esq., and J. Zak
Ritchie, Esq., at Bailey & Glasser LLP serve as the Debtor's
bankruptcy counsel; and Suttle & Stalnaker, PLLC, as its
accountant.
John P. Fitzgerald, III, Acting United States Trustee for Region 4,
appoints Lucy L. Thomson, as the Consumer Privacy Ombudsman in the
bankruptcy cases pursuant to 11 U.S.C. Section 332 and the Court's
order entered on May 21, 2018.
S.A.M. GROUP: Case Summary & 6 Unsecured Creditors
--------------------------------------------------
Debtor: S.A.M. Group LLC
535 Enterprise Ave.
Conway, AR 72034
Business Description: S.A.M. Group LLC is a privately
held company engaged in activities
related to real estate.
Chapter 11 Petition Date: September 24, 2018
Court: United States Bankruptcy Court
Eastern District of Arkansas (Little Rock)
Case No.: 18-15169
Judge: Hon. Phyllis M. Jones
Debtor's Counsel: Stanley V. Bond, Esq.
BOND LAW OFFICE
525 S. School Ave., Suite 100
Fayetteville, AR 72701
Tel: (479) 444-0255
Fax: (479) 444-7141
E-mail: attybond@me.com
Estimated Assets: $0 to $50,000
Estimated Liabilities: $1 million to $10 million
The petition was signed by Sam McFadin, CEO of S.A.M. Group, LLC.
A full-text copy of the petition containing, among other items, a
list of the Debtor's six unsecured creditors is available for free
at:
http://bankrupt.com/misc/areb18-15169.pdf
SAMUELS JEWELERS: Pushes for Committee to Probe Alleged Fraud
-------------------------------------------------------------
Samuels Jewelers, Inc., the Official Committee of Unsecured
Creditors, the company's board of directors, and Wells Fargo Bank,
National Association, in its capacity as both DIP and prepetition
working capital agent and lender, and Gordon Brothers Finance
Company, in its capacity as both DIP and prepetition term agent and
lender, object to the requests by Punjab National Bank and the
United States Trustee for the appointment of an examiner.
PNB and the U.S. Trustee seek the appointment of an examiner to
investigate the facts and circumstances regarding the Debtor's
involvement in the alleged fraud of PNB by, among others, the
Debtor's parent corporation, Gitanjali Gems, Ltd., and former
director and officer, Mehul Choksi. The Motions seek an examiner
to investigate (1) whether or not such fraud involved the Debtor
and its current and former management; (2) whether the Debtor or
any of its representatives or officers participated in the alleged
fraud; and (3) whether the estate has any potential causes of
action in connection with the alleged fraud.
The Debtor tells the Court that it does not oppose an appropriate
investigation into the allegations raised by PNB. However, the
Debtor does not believe that an examiner is necessary or
appropriate to conduct such an investigation. The Debtor questions
whether PNB may have been motivated in part by an effort to shift
to this estate the costs associated with determining whether or not
PNB has any claim against the Debtor. Regardless, PNB is a
sophisticated entity with sophisticated counsel, and it, like other
parties, can pursue its interests without the appointment of an
estate-funded examiner. PNB's discrete interests and goals should
not be elevated above the interests of creditors with a clear stake
in efficiently conducting this case and maximizing recoveries.
The Committee argues that appointment of an examiner the Court has
discretion under Section 1104 of the Bankruptcy Code is not
appropriate in this case. The Committee says it supports an
investigation into, among other things, the Debtor's and its
officers and directors prepetition relationship with Gitanjali
Gems, and whether or not any Choksi Entity has the ability to
control the Debtor, an examiner is not the appropriate entity to
undertake that investigation. The Committee adds that the Moving
Parties completely ignore the fact that the Committee, an impartial
estate fiduciary, has already begun to conduct a tailored
investigation into precisely these same issues as part of their
duties under Section 1103(c).
The Board, for its part, welcomes an investigation whether by a
court-appointed examiner or other fiduciary acceptable to the
Debtor's legitimate stake-holders. The Board, however, "will not
let go unanswered PNB's disparaging, defamatory, misguided and
patently false allegations regarding its role and that of its
current directors and officers. PNB's use of an examiner's report
in an unrelated Chapter 11 proceeding that does NOT mention the
Debtor, its officers or directors is shameful in its attempt to
tarnish the reputation of this Board by virtue of the acts of
others."
The DIP Agent agrees with the theme at the core of the Examiner
Motions -- the integrity of the bankruptcy process requires
transparency and, where appropriate, scrutiny by a fiduciary of
matters involving a debtor and its estate. The DIP Agent asserts
that it is also critical that the Debtor deploy its resources
judiciously and avoid incurring layers of unnecessary
administrative expense and professional fees, which could quickly
cripple this case.
There have been allegations that could support an appropriate
investigation by an estate fiduciary. At the same time, the
Debtor's liquidity is severely constrained. Thus, the DIP Agent
believes, the key question presented by the Examiner Motions
appears not to be whether there should be an investigation but,
rather, how best to structure any such process to conserve the
Debtor's limited resources and maximize the benefit to the estate
and creditors.
PNB, in response to the objections, argues that none of the
objecting parties dispute the need for an investigation, but notes
that the Committee is in the best position to conduct such an
investigation. PNB believes an examiner, rather than the
Committee, should conduct the investigation because the
investigation will involve an examination of facts that could give
rise to a constructive trust for the benefit of victims of the
fraud, rather than creditors of the estate who are not victims of
the fraud. The Committee therefore cannot conduct an unbiased
investigation into the fraud, PNB asserts.
The Board is represented by:
Patrick J. Reilley, Esq.
COLE SCHOTZ P.C.
500 Delaware Avenue, Suite 1410
Wilmington, DE 19801
Tel: 302-652-3131
Fax: 302-652-3117
Email: preilley@coleschotz.com
- and -
Michael D. Sirota, Esq.
Felice R. Yudkin, Esq.
COLE SCHOTZ P.C.
25 Main Street
Hackensack, NJ 07602-0800
Tel: 201-489-3000
Fax: 201-489-1536
Wells Fargo is represented by:
Kurt F. Gwynne, Esq.
REED SMITH LLP
1201 Market Street, Suite 1500
Wilmington, DE 19801
Tel: (302) 778-7500
E-mail: kgwynne@reedsmith.com
- and -
Julia Frost-Davies, Esq.
Christopher L. Carter, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110-1726
Tel: (617) 341-7700
Fax: (617) 341-7701
E-mail: julia.frost-davies@morganlewis.com
christopher.carter@morganlewis.com
Gordon Brothers is represented by:
Matthew P. Ward, Esq.
Morgan L. Patterson, Esq.
WOMBLE BOND DICKINSON
222 Delaware Avenue, Suite 1501
Wilmington, DE 19801
Tel: (302) 252-4320
E-mail: matthew.ward@wbd-us.com
morgan.patterson@wbd-us.com
- and -
John F. Ventola, Esq.
Jonathan D. Marshall, Esq.
CHOATE, HALL & STEWART LLP
Two International Place
Boston, MA 02110
Tel: (617) 248-5000
Fax: (617) 502-5085
E-mail: jventola@choate.com
jmarshall@choate.com
About Samuels Jewelers
Samuels Jewelers, Inc. -- http://www.samuelsjewelers.com/--
operates a chain of jewelry stores with more than 120 stores in 23
states across the United States. These stores are located
primarily in strip-mall centers, major shopping malls and as
stand-alone stores.
Samuels Jewelers filed for Chapter 11 protection (Bankr. D. Del.
Lead Case No. 18-11818) on Aug. 7, 2018. In the petition signed by
CEO Farhad K. Wadia, Samuels Jewelers estimated assets of $100
million to $500 million and liabilities of $100 million to $500
million.
Jones Day and Richards, Layton & Finger, P.A., serve as counsel to
the Debtor. Berkeley Research Group, LLC, acts as financial
advisor, SSG Advisors, LLC, is the investment banker, and Prime
Clerk LLC serves as claims and noticing agent to the Debtor.
On Aug. 16, 2018, the U.S. Trustee appointed a seven-member panel
to serve as the Official Committee of Unsecured Creditors in the
Debtors' cases. The Committee tapped Foley & Lardner LLP as its
counsel; Whiteford, Taylor & Preston LLC as its co-counsel; and
Province, Inc. as financial advisor.
SEARS HOLDINGS: ESL Submits Liability Management & Other Proposals
------------------------------------------------------------------
ESL Investments, Inc. delivered on Sept. 23, 2018 a proposal to the
Board of Directors of Sears Holdings Corporation requesting
Holdings to consider liability management transactions, real estate
transactions and asset sales intended to extend near-term debt
maturities, reduce long-term debt, eliminate associated cash
interest obligations and obtain additional liquidity.
The proposed liability management transactions included in the
September 23 Proposal provide for exchange offers to eligible
holders of second lien debt and eligible holders of unsecured debt.
These potential exchange offers together could save Holdings
approximately $33 million per year in cash interest and eliminate
approximately $1.1 billion in debt.
With respect to the Eligible 2nd Lien Debt Holders, the September
23 Proposal, if accepted by the Board, provides the Eligible 2nd
Lien Debt Holders with an option to receive either: (Option A) New
Zero-coupon Mandatorily Convertible Secured Debt maturing in
December 2021, which would be convertible, at par, into Holdings
equity at the higher of (i) $1 per share and (ii) 20-day VWAP and
would be mandatorily converted at the earlier of (i) Holdings'
stock price reaching $4 per share and (ii) the December 2021
maturity date; or (Option B) debt with a revised conversion price
equal to the strike price under Option A, plus $1.25 maturing in
December 2022 with PIK interest at the same rate as the Eligible
2nd Lien Debt Holders' existing debt. The Option B debt would be
optionally convertible at the Option B Strike Price and mandatorily
convertible if Holdings' stock price reaches $4 per share. The
September 23 Proposal provides that, subject to a minimum exchange
threshold of the non-ESL 2nd Lien Debt Holders, ESL would consider
(i) exchanging its pro rata share of Eligible 2nd Lien Debt
proportionate to third party participation into Option A and (ii)
extending its $525mm 2nd Lien Line of Credit Loans to Jan. 15,
2019, or later. ESL would consider selling $100mm of its Eligible
2nd Lien Debt to existing shareholders who agree to exchange such
Eligible 2nd Lien Debt for the New Zero-coupon Mandatorily
Convertible Secured Debt maturing in December 2021.
With respect to the Eligible Unsecured Debt Holders, the September
23 Proposal, if accepted by the Board, provides the Eligible
Unsecured Debt Holders with an option to receive either: (Option A)
New Zero-coupon Mandatorily Convertible Unsecured Debt maturing in
December 2021, which would be convertible, at par, into Holdings
equity at the per share price of the New Zero-coupon Mandatorily
Convertible Secured Debt, plus $1.00 and would be mandatorily
convertible on the same conditions as the New Zero-coupon
Mandatorily Convertible Secured Debt; or (Option B) a $0.25 cash
payment per dollar of par value, which would be funded by a third
party investor and potentially ESL and the purchaser of the
Eligible Unsecured Debt would then elect Option A, converting the
newly purchased Eligible Unsecured Debt into New Zero-coupon
Mandatorily Convertible Unsecured Debt maturing December 2021. The
September 23 Proposal provides that ESL would consider
participating in Option A to the extent that a minimum
participation threshold is met.
The proposed real estate transactions are intended to eliminate
approximately $1.5 billion of real estate debt, provide significant
liquidity to Holdings via cash interest savings and transfer the
real estate related risk/ opportunity to the Consortium. The
proposed real estate transactions included in the September 23
Proposal provide for Holdings to continue marketing its encumbered
real estate portfolio for 12 months and use
all proceeds received from resulting sales to repay third party
first-out lenders, and then ESL. The September 23 Proposal, if
accepted by the Board, also provides that cash interest owed to a
newly formed consortium of real estate lenders, which ESL would be
prepared to lead or participate in, would convert to PIK interest.
At the end of the 12 month period, any real estate that is not sold
would be sold to the Consortium for an amount equal to the
then-existing real estate debt, plus any accrued but unpaid
interest in exchange for the extinguishment of such debt. The
Consortium would then lease back a pre-agreed number of stores to
Holdings on terms further detailed in the September 23 Proposal.
The September 23 Proposal provides that the Consortium would
effectuate a business plan to optimize value of the real estate
portfolio over a set time period, and that Holdings would share in
the profits of any sales above a 10% annually compounding preferred
return to the Consortium. ESL has proposed that the Consortium
would provide the opportunity for qualified Holdings shareholders
to participate, pursuant to a private placement, in the real estate
portfolio transaction on the same terms as the Consortium, pro rata
with such shareholders' existing Holdings equity investment.
As of Sept. 24, 2018, the Reporting Persons may be deemed to
beneficially own the following shares of Holdings Common Stock:
Shares Percentage of
Beneficially Outstanding
Reporting Person Owned Shares
---------------- ------------ -------------
ESL Partners, L.P. 155,315,072 73.7%
JPP II, LLC 62,919,274 36.6%
SPE I Partners, LP 150,124 0.1%
SPE Master I, LP 193,341 0.2%
RBS Partners, L.P. 155,658,537 73.9%
ESL Investments, Inc. 155,658,537 73.9%
JPP, LLC 43,190,726 28.4%
Edward S. Lampert 155,658,537 73.9%
A full-text copy of the regulatory filing is available at:
https://is.gd/wDxkU8
About Sears Holdings
Based in Hoffman Estates, Illinois, Sears Holdings Corporation
(NASDAQ: SHLD) -- http://www.searsholdings.com/-- is an integrated
retailer focused on seamlessly connecting the digital and physical
shopping experiences to serve its members. Sears Holdings is home
to Shop Your Way, a social shopping platform offering members
rewards for shopping at Sears and Kmart, as well as with other
retail partners across categories important to them. The Company
operates through its subsidiaries, including Sears, Roebuck and Co.
and Kmart Corporation, with full-line and specialty retail stores
across the United States.
Sears Holdings reported a net loss of $383 million on $16.70
billion of total revenues for the year ended Feb. 3, 2018, compared
to a net loss of $2.22 billion on $22.13 billion of total revenues
for the year ended Jan. 28, 2017. As of Aug. 4, 2018, Sears
Holdings had $6.93 billion in total assets, $11.33 billion in total
liabilities and a total deficit of $4.40 billion.
* * *
In April 2018, S&P Global Ratings raised its corporate credit
rating on Sears Holdings to 'CCC-' from 'SD' and its short-term
corporate credit rating on Sears Roebuck Acceptance Corp. to 'C'
from 'SD'. The outlook is negative. S&P said, "The upgrade
reflects our view that Sears has addressed most but not all of the
2018 maturities and will need to continue to raise capital as well
as make further progress on reducing cash use and losses."
In March 2018, Fitch Ratings upgraded Sears Long-Term IDR to 'CC'
from 'RD', which Fitch believes is reflective of the post-DDE
credit profile given ongoing restructuring concerns.
In January 2018, Moody's Investors Service downgraded Sears
Holdings' Corporate Family Rating to 'Ca' from 'Caa3'. Sears' 'Ca'
rating reflects the company's announced pursuit of debt exchanges
to extend maturities and its sizable operating losses - Domestic
Adjusted EBITDA was an estimated loss of $625 million for the LTM
period ending Oct. 28, 2017.
SEMLER SCIENTIFIC: Park West Has 6.2% Stake as of Sept. 13
----------------------------------------------------------
In a Schedule 13G filed with the Securities and Exchange
Commission, Park West Asset Management LLC disclosed that as of
Sept. 13, 2018, it beneficially owns 377,080 shares of common stock
of Semler Scientific, Inc., which represents 6.2 percent of the
shares outstanding.
As of Sept. 13, 2018, Park West Investors Master Fund, Limited held
339,517 shares of Common Stock of the Company, or approximately
5.6% of the shares of Common Stock outstanding..
PWAM is the investment manager to Park West Investors Master Fund,
Limited and Park West Partners International, Limited (PW Funds),
and Peter S. Park is the sole member and manager of PWAM. Mr. Park
is the beneficial owner of 377,080 shares of common stock of the
Company held in the aggregate by the PW Funds.
The beneficial ownership percentage is based upon 6,095,962 shares
of Common Stock of the Company, issued and outstanding as of
Aug. 24, 2018, based on information reported by the Company in its
Definitive Proxy Statement on Schedule 14A, as amended, filed with
the Securities and Exchange Commission on Aug. 31, 2018.
A full-text copy of the regulatory filing is available at:
https://is.gd/3m6e28
About Semler Scientific
Semler Scientific, Inc. -- http://www.semlercientific.com/-- is an
emerging growth company that provides technology solutions to
improve the clinical effectiveness and efficiency of healthcare
providers. Semler Scientific's mission is to develop, manufacture
and market innovative proprietary products and services that assist
its customers in evaluating and treating chronic diseases. The
company is headquartered in San Jose, California.
Semler Scientific incurred a net loss of $1.51 million in 2017 and
a net loss of $2.55 million in 2016. As of June 30, 2018, the
Company had $5.31 million in total assets, $5.07 million in total
current liabilities, $18,000 in total long-term liabilities and
$216,000 in total stockholders' equity.
The Company's independent registered public accountants' report for
the year ended Dec. 31, 2017 includes an explanatory paragraph that
expresses substantial doubt about its ability to continue as a
"going concern." BDO USA, LLP, in New York, stated that the
Company has negative working capital, a stockholders' deficit, and
recurring losses from operations that raise substantial doubt about
its ability to continue as a going concern.
SHILOH TIRE: Gets Final Nod to Use Cash Collateral Through Dec. 31
------------------------------------------------------------------
The Hon. Laurel M. Isicoff of the U.S. Bankruptcy Court for
Southern District of Florida has entered a final order granting and
approving Shiloh Tire & Lube, Inc.'s motion to use cash collateral
on a final basis to Dec. 31, 2018.
The Debtor is authorized to use the cash collateral, with no
provision for adequate protection payments, pursuant to the Budget
referenced in the Motion, with a 10% variance. There will also be a
carve-out in the budget for the inclusion of fees due the Clerk of
Court or the U.S. Trustee pursuant to 28 U.S.C. Section 1930.
A full-text copy of the Final Order is available at
http://bankrupt.com/misc/flsb18-18430-40.pdf
About Shiloh Tire and Lube Inc.
Shiloh Tire and Lube, Inc. sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. S.D. Fla. Case No. 18-18430) on July
12, 2018. In the petition signed by Danny Forsythe, president, the
Debtor disclosed that it had estimated assets of less than $100,000
and liabilities of less than $500,000. Van Horn Law Group, P.A. is
the Debtor's bankruptcy counsel.
The U.S. Trustee has not appointed an official unsecured creditors'
committee.
SJKWD LLC: Proposed Auction of All Personal Property Approved
-------------------------------------------------------------
Judge Robert A. Mark of the U.S. Bankruptcy Court for the Southern
District of Florida authorized SJKWD, LLC's sale of restaurant
equipment, appliances, furniture, fixtures, and office equipment at
auction.
The sale is free and clear of all liens, claims and encumbrances,
with all liens, claims, and encumbrances to attach to the Auction
proceeds with the same validity, priority, and extent as the same
attached to the Property prior to the closing.
The Debtor is authorized to conduct an auction sale on Sept. 21,
2018 at 11:00 a.m. of the Debtor's personal property at the
premises located at 925 Duval Street, Key West, Florida.
The Court approved the payment of a 10% buyer's premium to National
Auction Company plus up to $1,965.00 in expenses.
The net sale proceeds from the items sold will be payable to
secured creditor Simmons Bank in partial satisfaction of the debt
owed by the Debtor to Simmons Bank.
All buyers of any items at the Auction will remove said items from
the Premises on Sept. 24, 2018. Any items that remain on the
Premises after that date will be deemed abandoned by the Debtor,
absent an agreement by Simmons Bank and the Landlord to the
contrary.
The stay requirement enumerated in Federal Rule of Bankruptcy
Procedure Rule 6004(h) is expressly waived, and the order will not
be subject to an automatic 14-day stay. Notwithstanding anything
contained in Federal Rule of Bankruptcy Procedure Rules 6004, 6006
or 6007 to the contrary, the Order will be final, effective and
enforceable immediately upon entry.
About SJKWD LLC
SJKWD, LLC, operates its business under the name Denny's Restaurant
located at 2710 N. Roosevelt Boulevard, Key West Florida. SJKWD
sought protection under Chapter 11 of the Bankruptcy Code (Bankr.
S.D. Fla. Case No. 18-17154) on June 14, 2018. In the petition
signed by Stan Jackowski, managing member, the Debtor disclosed
$199,323 in assets and $1,036,677 in liabilities. Judge Robert A.
Mark presides over the case.
SOTERA WIRELESS: Court Upholds Ruling Adjudicating Masimo's Claims
------------------------------------------------------------------
In the case captioned MASIMO CORPORATION, Appellant, v. SOTERA
WIRELESS, INC., Appellee, Case No. 17-cv-0885-BTM-BLM (S.D. Cal.),
Masimo Corporation appeals from a July 18, 2017 memorandum of
decision and order of the U.S. Bankruptcy Court for the Southern
District of California, adjudicating Masimo's claims against Sotera
Wireless, Inc. under the California Uniform Trade Secret Act
("CUTSA"). Upon considering the facts and arguments presented,
Chief District Judge Barry Ted Moskowitz affirms the Bankruptcy
Court's decision.
For its first issue on appeal, Masimo argues that the Bankruptcy
Court, in determining whether information qualified as a trade
secret, erroneously included the requirement that the information
not be "readily ascertainable."
Masimo's assertion that the Bankruptcy Court committed legal error
relies on Abba Rubber Co. v. Seaquist, which stated that "under
California law, information can be a trade secret even though it is
readily ascertainable, so long as it has not yet been ascertained
by others in the industry. Accordingly, [the court] decline[d] to
follow [American Paper & Packaging Prod., Inc. v. Kirgan to the
extent that it suggest[ed] that information is not protectable as a
trade secret if it is known or readily ascertainable." Abba,
Syngenta, and American Paper are all California Court of Appeal
opinions. To the extent there is a disagreement among the
California Courts of Appeal on this issue, the Supreme Court of
California has not yet weighed in. Therefore, Abba is persuasive
and not binding authority. The Court agrees with the Bankruptcy
Court and does not find that it legally erred in relying on
Syngenta, which in turn relied on American Paper, in interpreting
the definition of "trade secret" under CUTSA.
However, even assuming that the Bankruptcy Court legally erred in
stating that "readily ascertainable information cannot be a trade
secret," this error was not material to the Bankruptcy Court's
analysis and therefore, would not be sufficient grounds for
reversal. " The Court finds that the Bankruptcy Court did not
commit legal error in its analysis of "readily ascertainable." To
the extent that there was an error, it did not manifest in a manner
sufficient to create grounds for reversal.
Masimo also argues that the Bankruptcy Court legally erred in its
analysis of "use" under CUTSA. Specifically, Masimo contends that
the Bankruptcy Court erred in (1) not including "passive
consideration of data" in its definition of "use," and (2) allowing
a finding of "independent derivation" to defeat a finding of "use."
Masimo relies on Syngenta, where plaintiff, a pesticide
manufacturer, brought an action against the state Department of
Pesticide Regulation, in part, for misappropriation of its trade
secrets under the Uniform Trade Secrets Act.
The Court is not persuaded by Masimo's attempt to stretch
Syngenta's context-specific finding that the Department of
Pesticide Regulation's "passive consideration" of data it had
previously analyzed and relied upon was "use," into a broad rule
that "passive consideration," under a more generic meaning, is
always "use." The Bankruptcy Court did not legally err by not
applying a dubious rule derived from an overbroad reading of
Syngenta.
Masimo further argues that the Bankruptcy Court failed to address
Masimo's request for a royalty for Sotera's supposed
misappropriation of thousands of Masimo documents. Masimo requests
a remand in order for the Bankruptcy Court to consider Masimo's
request and decide whether royalties are appropriate. However,
Masimo's argument is premised on a misreading of the Bankruptcy
Court's order.
"[I]f neither damages nor unjust enrichment caused by
misappropriation are provable, the court may order payment of a
reasonable royalty for no longer than the period of time the use
could have been prohibited." Cal. Civ. Code § 3426.3(b). A
consideration of a royalty award is only triggered upon a finding
of misappropriation.
Because the Bankruptcy Court found no misappropriation for the
remaining thousands of Masimo documents copied but not accessed or
opened, the Bankruptcy Court did not err by not considering a
royalty award.
A copy of the Court's Order dated Sept. 11, 2018 is available at
https://bit.ly/2MStfRG from Leagle.com.
Sotera Wireless, Inc., Debtor, Appellee, represented by Dennis M.
Childs -- dchilds@cooley.com -- Cooley LLP, Ian Shapiro --
ishapiro@cooley.com -- Cooley LLP, pro hac vice, Michael J.
Berkovits -- mberkovits@cooley.com -- Cooley LLP, pro hac vice &
Victoria A. Foltz -- vfoltz@cooley.com -- Cooley LLP, pro hac
vice.
Masimo Corporation, Appellant, represented by J. Barrett Marum --
bmarum@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP,
Joseph R. Re, Knobbe Martens Olson and Bear, Adam Powell, Knobbe
Martens Olson & Bear, LLP, Stephen C. Jensen, Knobbe Martens Olson
and Bear & Stephen W. Larson, Knobbe Martens.
Sotera Wireless, Inc., Appellee, represented by Dennis M. Childs ,
Cooley LLP, Ian Shapiro , Cooley LLP, pro hac vice, Michael J.
Berkovits , Cooley LLP, pro hac vice & Victoria A. Foltz , Cooley
LLP, pro hac vice.
About Sotera Wireless
Sotera Wireless, Inc., and Sotera Reseach, Inc., filed Chapter 11
petitions (Bankr. S.D. Cal. Case Nos. 16-05968 and 16-05969) on
Sept. 30, 2016. The cases are assigned to Judge Laura S. Taylor.
The Debtors are represented by Victor A. Vilaplana, Esq., and
Marshall J. Hogan, Esq., at Foley & Lardner LLP. Piper Jaffray &
Co. serves as the Debtors' investment banker; Ernst & Young, LLP,
as auditor; and Cooley LLP as special counsel.
At the time of the filing, Sotera Wireless estimated assets and
liabilities at $10 million to $50 million, while Sotera Research
estimated assets at $1 million to $10 million and liabilities at
$10 million to $50 million.
On Oct. 20, 2016, the Office of the U.S. Trustee appointed an
official committee of unsecured creditors. Sullivan Hill Lewin Rez
& Engel, APLC serves as the committee's legal counsel.
SPRING TREE: Court Stays J. Marshall's Claims vs American Credit
----------------------------------------------------------------
In the case captioned JOHN MARSHALL, Plaintiff, v. DANIEL P.
GALVANONI, et al., Defendants, No. 2:17-cv-00820-KJM-CKD (E.D.
Cal.), District Judge Kimberly J. Mueller stays Plaintiff John
Marshall's claims against American Credit Acceptance (ACA) and
holds ACA's motion to dismiss in abeyance in light of Spring Tree
Lending's Chapter 11 bankruptcy proceedings.
Marshall raises four claims against ACA: (1) intentional
interference with a contractual relationship; (2) conversion; (3)
unjust enrichment; and (4) declaratory relief. Each of these claims
arises from Marshall's allegations that he has a first-position
security interest in an automobile loan portfolio in which ACA also
claims a first position security interest. Marshall contends his
first position interest is enforceable through an equitable lien on
the portfolio.
Marshall alleges he was fraudulently induced on three occasions to
invest a total of $300,000 in the defendants' subprime automobile
loan businesses. Among other defendants, plaintiff sued ACA,
alleging it wrongfully took possession and noticed foreclosure of
the loan collateral in which Marshall held a first priority
security interest. ACA moves to dismiss all claims against it.
Marshall opposes. In its reply brief, ACA argued for the first time
that Marshall's claims against it violate the automatic bankruptcy
stay arising from defendant Spring Tree Lending's Chapter 11
bankruptcy proceedings.
At the court's invitation, Marshall filed a supplemental brief in
which he agreed that his claims against ACA should be stayed until
the bankruptcy court determines in the first instance whether the
stay applies and, if so, whether it should be lifted as to
Marshall's claims against ACA.
The court, therefore, stays Marshall's claims against ACA and holds
ACA's motion to dismiss in abeyance while the parties seek clarity
from the bankruptcy court regarding whether the stay applies to
Marshall's claims. Marshall is ordered to file status reports every
90 days notifying the court of the continuing applicability of the
stay and, in any event, must notify the court promptly when the
bankruptcy court lifts the stay or determines it is inapplicable
here.
A copy of the Court's Sept. 12, 2018 Order is available at
https://bit.ly/2pt0BO2 from Leagle.com.
John Marshall, Plaintiff, represented by Melinda Jane Steuer, Law
Offices Of Melinda Jane Steuer.
Daniel P. Galvanoni, DPG Investments, LLC, DPG Golden Eagle, LLC,
Spring Tree Lending, LLC, Spring Tree Holdings, LLC, Spring Tree
Financial, LLC, Jerome L. Joseph & William J. Brooksbank,
Defendants, represented by Alex B. Kaufman, Kaufman & Forman, P.C.,
pro hac vice, Bradford G. Hughes , Clark Hill PLC, Robert J.
Kaufman, Kaufman & Forman, P.C., pro hac vice, Teanna Lee Buchner,
Clark Hill LLP & Tiffany B. Hunter -- thunter@clarkhill.com --
Clark Hill LLP.
Skibo Holdings, LLC, Defendant, represented by Alex B. Kaufman,
Kaufman & Forman, P.C., pro hac vice, Bradford G. Hughes, Clark
Hill PLC, Robert J. Kaufman, Kaufman & Forman, P.C., pro hac vice &
Tiffany B. Hunter, Clark Hill LLP.
American Credit Acceptance, LLC, Defendant, represented by Alan
Daniel Leeth -- aleeth@burr.com -- Burr and Forman LLP & Daniel S.
Stouder, Boutin Jones Inc.
About Spring Tree Lending
Spring Tree Lending, LLC, engages in buying and servicing non-prime
auto loans from auto dealers and lenders. The company was founded
in 2015 and is based in Atlanta, Georgia.
On March 28, 2018, creditor Pacific Island Equity Corporation filed
an involuntary proceedings against Spring Tree Lending (Bank. N.D.
Ga. Case No. 18-55171).
The case is assigned to Hon. Barbara Ellis-Monro.
The Debtor hired George M. Geeslin, Esq., as counsel.
No official committee of unsecured creditors has been appointed in
the Chapter 11 case.
STAND-UP MULTI-POSITIONAL: Taps Professional Management Systems
---------------------------------------------------------------
Stand Up Mid-America MRI, P.A., and Stand Up Multi-Positional
Advantage MRI, P.A. received approval from the U.S. Bankruptcy
Court for the District of Minnesota to hire Professional Management
Systems, Inc.
The firm will assist the Debtors in the preparation and filing of
their monthly operating reports.
Georgia Evans, member of PMS and the professional who will be
providing the services, charges an hourly fee of $65.
Ms. Evans disclosed in a court filing that she and her firm neither
hold nor represent any interest adverse to the interest of the
Debtor.
The firm can be reached through:
Georgia Evans
Professional Management Systems, Inc.
9900 Franklin Square Drive, Suite B
Baltimore, MD 21236
Phone: 410-931-0400
Toll Free: 855-764-2455
Fax: 410-931-1009
Email: info@pmi-web.com
About Stand-Up
Stand-Up Multi-Positional Advantage MRI, P.A. (SUMA MRI) --
https://www.sumamri.com/ -- specializes in open MRI where patients
can be standing, leaning, bending and even laying down; not to
mention several other positions as well. SUMA MRI is an accredited
facility by the American College of Radiology.
SUMA MRI (Bankr. D. Minn. Case No. 18-32239) and its affiliate
Stand Up Mid-America MRI, P.A. (Bankr. D. Minn. Case No. 18-42286)
filed voluntary Chapter 11 petitions on July 16, 2018. The cases
are jointly administered under Case No. 18-42286.
John D. Lamey, III, Esq., at Lamey Law Firm, P.A., in Oakdale,
Minnesota, serves as the Debtors' counsel. The Debtors hired
Foster Brever Wehrly, PLLC, and Thomas E. Brever as special
litigation counsel for the purpose of litigation of tax amounts
due, or not due, to the Minnesota Department of Revenue, and
pursuing any tax refund claims.
STEWART DUDLEY: Magnify Trustee's $276K Sale of Condo Unit 1630 OKd
-------------------------------------------------------------------
Judge Tamara O. Mitchell of the U.S. Bankruptcy Court for the
Northern District of Alabama authorized Jeffery J. Hartley, Chapter
11 Trustee for Magnify Industries, LLC, to sell the condominium
unit 1630 located at Emerald Beach Resort in Panama City Beach,
Florida to Janardhan Reddy Sarsam for $276,000.
The Trustee is authorized and directed to proceed to the closing of
the sale of the Condo Unit, and to execute all documents necessary
to effectuate the sale of the Condo Unit in as prompt a manner as
is practicable.
The net sales proceeds will be placed in the escrow account of
Engel, Hairston & Johanson P.C., to be held pending further order
of the Court.
About Stewart Ray Dudley
Stewart Ray Dudley filed a Chapter 11 petition (Bankr. N.D. Ala.
Case No. 16-01842) on May 5, 2016, and is represented by R. Scott
Williams, Esq. from Rumberger, Kirk & Caldwell, P.C.
In January 2017, Buffalo Rock Company and James C. Lee, III,
creditors of Stewart Ray Dudley, filed a motion for order directing
the appointment of Peter W. Colmer as Chapter 11 Trustee for the
Debtor's bankruptcy estate. They claimed that continuously acting
against the best interest of his estate, the Debtor caused numerous
assets to be transferred to Magnify Industries, LLC, including an
automobile collection previously valued at over $5,500,000; 100% of
his interest of an updated warehouse and event space commonly
referred to as Old Car Heaven previously valued at over $1,534,000;
and 17 beach front condominiums.
Buffalo Rock is represented by Burr & Forman LLP. James C. Lee,
III, is represented by Bradley Arant Boult Cummings LLP.
The Court appointed Jeffery J. Hartley as Chapter 11 Trustee on
Feb. 24, 2017.
The Trustee:
Mr. Jeffery Hartley
P.O. Box 2767
Mobile, AL 36652
E-mail: jjh@helmsinglaw.com
The Trustee is represented by:
Ogden S. Deaton, Esq.
GRAHAM & CO.
110 Office Park Drive
Suite 200
Birmingham, AL 35223
E-mail: ogdend@grahamcompany.com
SUNSHINE SEATTLE: Chef KU Offers $154K for Henry's Taiwan Resto
---------------------------------------------------------------
Sunshine Seattle Enterprises, LLC, asks the U.S. Bankruptcy Court
for the Western District of Washington to authorize the sale of its
restaurant, Henry's Taiwan Restaurant, located at 4106 Brooklyn
Avenue, Suite 102B, in the University District of Seattle,
Washington to Chef Ku, LLC for $154,000.
The Debtor's owners have reached an agreement regarding sale of its
business after ongoing negotiations and litigation. The sale price
of $154,000 remains the same as that set forth in the prior motion
to approve sale. The Debtor detailed in the prior motion and
attachments thereto its basis for believing $154,000 represents a
reasonable fair market price.
The proposed closing date of the parties is Sept. 30, 2018. Thus
in the attached proposed order, the Debtor has included a provision
waiving the normal 14-day stay.
A copy of the APA attached to the Motion is available for free at:
http://bankrupt.com/misc/Sunshine_Seattle_176_Sales.pdf
A hearing on the Motion is set for Sept. 28, 2018 at 9:30 a.m. The
objection deadline is Sept. 21, 2018.
About Sunshine Seattle Enterprises
Sunshine Seattle Enterprises, LLC, operates a Taiwanese restaurant
in Seattle's University District called Henry's Taiwan Kitchen. It
leases the space in which it operates. Henry Kuo-Chiang Ku, 100%
owner and managing member of 15W Kitchen, LLC, manages the
restaurant.
An involuntary Chapter 11 petition (Bankr. W.D. Wash. Case No.
17-14983) was filed against Sunshine Seattle Enterprises on Nov.
14, 2017, by its creditor Henry Kuo-Chiang Ku. Larry B. Feinstein,
Esq., at Vortman & Feinstein, is the creditor's bankruptcy
counsel.
The Hon. Timothy W. Dore, the case judge, on Dec. 13, 2017, entered
for relief against Sunshine Seattle under Chapter 11 of the U.S.
Bankruptcy Code. The order for relief was entered after no
responses to the involuntary petition were filed.
Jeffrey B. Wells, Esq. and Emily Jarvis, Esq., at Wells and Jarvis,
P.S., serve as the Debtor's bankruptcy counsel.
TARA RETAIL: Dec. 19 Plan Confirmation Hearing Set
--------------------------------------------------
The hearing to consider confirmation of the competing
bankruptcy-exit plans proposed by Tara Retail Group, LLC, and by
COMM2013 CCRE12 Crossings Mall Road, LLC, the secured creditor,
will be held on December 19, 2018 at 10:00 a.m.
The Court had directed the parties to amend their Disclosure
Statements and Plans by September 24.
The last day to cast a vote on the Chapter 11 Plans is November 2.
Written objections to confirmation of the Chapter 11 Plans are due
December 5.
The Secured Creditor has objected to the Debtor's Disclosure
Statement complaining, among other things, that:
* There is no disclosure to creditors regarding the purported
basis to disallow over $4 million in unsecured claims or how any of
these claims would be paid if allowed. Adequate disclosure on this
issue is critical because the Debtor's financial projections
demonstrate that the Amended Plan will fail if even a small portion
of the unsecured claims are allowed.
* The Amended Disclosure Statement does not provide sufficient
information on the Debtor's ability to recover a $550,000
contribution from Emerald Grande. This contribution is absolutely
crucial to the Debtor's reorganization efforts as without it, the
Debtor will not have the cash on hand to fund its effective date
payments.
* The Amended Disclosure Statement does not disclose whether
William and Rebecca Abruzzino (the "Abruzzinos") are obligated to
fund plan shortfalls or simply may make voluntary contributions. In
either scenario, there are no disclosures as to the Abruzzinos'
financial capacity to perform.
A copy of the Modified Second Amended Plan proposed by the Debtor
is available from PacerMonitor.com at https://tinyurl.com/yak4wnuk
at no charge.
About Tara Retail
Tara Retail Group, LLC, owns The Crossings Mall in Elkview, West
Virginia, which had tenants that included Kmart and Kroger. The
Company is headed by businessman Bill Abruzzino. The Crossings
Mall has been closed and inaccessible to the public since massive
floods swept through West Virginia on June 23, 2016.
On Dec. 23, 2016, U.S. District Judge Thomas Johnston appointed
Martin Perry, a managing director at Newmark Grubb Knight Frank's
Pittsburgh office, as receiver.
To stop a foreclosure sale of its shopping center, Tara Retail
Group, LLC, filed a Chapter 11 petition (Bankr. N.D. W.Va. Case No.
17-00057) on Jan. 24, 2017. The petition was signed by William A.
Abruzzino, managing member. The case judge is the Hon. Patrick M.
Flatley. The Debtor estimated assets and debt of $10 million to
$50 million.
The Debtor tapped Steven L. Thomas, Esq., at Kay, Casto & Chaney
PLLC as bankruptcy counsel.
TECK RESOURCES: Moody's Affirms Ba1 CFR & Alters Outlook to Pos.
----------------------------------------------------------------
Moody's Investors Service revised the rating outlook for Teck
Resources Limited to positive from stable. At the same time,
Moody's affirmed Teck's Corporate Family at Ba1, its Probability of
Default Rating at Ba1-PD; its guaranteed senior unsecured note
rating at Baa3 and senior unsecured notes (not guaranteed) rating
at Ba2.
"Teck's positive outlook reflects further debt repayment as well as
continued strong free cash flow and excellent liquidity that
provides cushion for commodity price volatility and likely spending
on its Quebrada Blanca 2 copper project in Chile", said Jamie
Koutsoukis, Moody's Vice President, Senior Analyst.
Outlook Actions:
Issuer: Teck Resources Limited
Outlook, Changed To Positive From Stable
Affirmations:
Issuer: Teck Resources Limited
Corporate Family Rating, Affirmed at Ba1
Probability of Default Rating, Affirmed at Ba1-PD
Senior Unsecured Regular Bond/Debenture, Affirmed at Ba2(LGD5)
Gtd Senior Unsecured Regular Bond/Debenture, Affirmed at Baa3(LGD3
from LGD2)
Speculative Grade Liquidity Rating, Affirmed at SGL-1
RATINGS RATIONALE
Teck's Ba1 corporate family rating is supported by low geopolitical
risk (Canada, Chile, Peru and US), good scale (~$10 billion
revenue) and diversity (met coal, copper, zinc, and energy at 14
operating sites), good average cost positions (about CAD$95/mt for
met coal and US$1.30-$1.40/lb for copper net of by-products
expected in 2018), excellent liquidity and adjusted leverage
expected to be about 1.1x. Teck's rating is constrained by its
exposure to volatile commodity prices (met coal, copper and zinc)
which can cause large swings in leverage and cash flow and as-yet
undefined project spending and execution risk for its Quebrada
Blanca 2 (QB2) copper project in Chile. Copper and zinc prices have
declined from highs seen earlier in 2018, however pricing of met
coal, which represents about 65% of profits, remains strong, though
it shows greater volatility than the other metals, swinging between
US$90/t and US$300/t in recent years (US$205/t currently). Teck is
expected to generate about CAD$700 million in adjusted free cash
flow in 2018 (includes stripping costs and excluding Waneta sale
proceeds), using Moody's price sensitivities and the company has
reduced adjusted debt to about CAD$5.5 billion from CAD$8.9 billion
at year end 2016. Also contributing to free cash flow is the
reduction in spending at Fort Hills as that oil sands mining
project is ramping up production and the capital spend is nearing
completion (CAD$325 million of spending for energy in 2018).
Moody's estimates that adjusted debt/EBITDA will be about 1x in
2018 (1.2x at Q2/18). Current met coal pricing provides strong cash
flow to Teck, but the volatility in pricing of the commodity
creates difficulty in estimating future cash flow.
Teck's liquidity is very good (SGL-1). Sources of liquidity over
the next year total about CAD$7 billion, and there are no cash
uses. Sources include 1) cash of about CAD$1.8 billion (proforma
receiving $1.2 billion in proceeds from the Waneta Dam sale in July
and its August debt repurchase) at Jun, 30 2018, 2) CAD$4.7 billion
(equiv.) of unused availability on its committed credit facilities,
and 3) CAD$700 million in expected free cash flow over the next 12
months. There are no material debt maturities until 2024. Teck's
credit facilities consist of a $1.2 billion facility, which matures
in Oct 2020 ($728 million drawn for letters of credit at Q2/18) as
well as a $3 billion facility that matures in Oct 2022 (undrawn).
Moody's expects that Teck will maintain ample cushion to its
maximum 50% Debt/Capitalization debt covenant (24% at Jun 30,
2018).
The positive outlook reflects Moody's expectation that Teck will
manage the level of debt in its capital structure conservatively
and continue to maintain strong liquidity to mitigate commodity
price volatility and project spending risk.
An upgrade to Baa3 would be considered if Teck is able to provide
clarity (cost, funding, timing) regarding its QB2 project, and the
company demonstrates prudent liquidity and capital structure
planning with regard to its development. Additionally, adjusted
debt/EBITDA would need to be sustained under 2.5x (1.2x at Q2/18),
(CFO-dividends)/debt be sustained above 30% (49% at Q2/18), and the
company maintains good liquidity.
Teck's rating could be downgraded to Ba2 if debt/EBITDA is likely
to be sustained above 3x (1.2x at Q2/18). A downgrade could also
occur if the company were to return to generating material negative
free cash flow that significantly weakened its liquidity profile.
The principal methodology used in these ratings was Mining
published in September 2018.
Headquartered in Vancouver, British Columbia, Canada, Teck
Resources Limited is a diversified mining company with assets in
Canada, the U.S., Peru and Chile. The company is a leading producer
of metallurgical coal, operates one of the world's largest zinc
mines (Red Dog in Alaska) and also produces a meaningful amount of
copper. Revenues were CAD$12 billion in 2017.
WALKER INNOVATION: Confirms Expected Liquidating Distribution Date
------------------------------------------------------------------
Walker Innovation Inc. (Formerly OTCQB:WLKR), on Sept. 21, 2018,
disclosed that its previously announced effective date distribution
of $0.48 per share of the Company's common stock and Series B
Convertible Preferred Stock will be paid on or about September 27,
2018 to stockholders as of September 20, 2018, the effective date
of the Company's certificate of dissolution (including trades
through the effective date that settle after the effective date).
In connection with the initial liquidating distribution, the
Company's trading symbol on the OTCQB has been set for deletion,
the CUSIP for the common stock suspended and the Company's transfer
agent has been instructed to close the transfer books as of the
effective date (including trades through the effective date that
settle after the effective date).
The dissolution of the company was approved by its stockholders at
a special meeting held on September 5, 2018.
Subject to uncertainties inherent in the winding up of its
business, Walker Innovation may make one or more additional
liquidating distributions, as the Company's required contingency
reserves may be released over time. However, no assurances can be
made as to the ultimate amounts to be distributed, if any, or the
timing of any such distributions. Any additional liquidating
distributions will be made to the stockholders as of the effective
date of the certificate of dissolution (including trades through
the effective date that settle after the effective date).
WALL STREET LANGUAGES: Ombudsman Recommends Sale of Assets
----------------------------------------------------------
At the request of Wall Street Languages, Ltd., the U.S. Bankruptcy
Court for the Eastern District of New York directed William K.
Harrington, United States Trustee for Region 2, to appoint a
consumer privacy ombudsman in accordance with Section 332 of the
Bankruptcy Code in the the Debtor's bankruptcy case. The Court
determined that the appointment is necessary to protect "personally
identifiable information" in connection with the sale of certain of
the Debtors' assets.
The U.S. Trustee subsequently appointed Elise Frejka as consumer
privacy ombudsman.
After a review of the facts and circumstances, the Ombudsman
recommends that the Bankruptcy Court approve the proposed sale and
transfer of the Debtor's assets and related student records and
other student records-related information without limitation,
subject to the approval of the New York State Department of
Education and compliance with New York State law.
The Ombudsman finds that the Debtor's Privacy Policy does not
contain a restriction on the Debtor's ability to sell or transfer
Personally Identifiable Information, including student records, to
an unaffiliated third party. Since student consent to transfer
school programs is required, the transaction will, by necessity,
require the affirmative consent of current and future students such
that these students will have effectively "opted-in" to the
transfer of their Personally Identifiable Information. With
respect to past students, New York State Law requires that student
records be maintained by a school for specified periods of time
absent a variance from the BPSS6 and it is the Ombudsman's
understanding that the Debtor intends to retain and maintain these
records.
A copy of the Ombudsman's First Report from PacerMonitor.com is
available at https://tinyurl.com/y7qwvcbk at no charge.
About Wall Street Languages
Wall Street Languages Ltd. sought protection under Chapter 11 of
the Bankruptcy Code (Bankr. E.D.N.Y. Case No. 18-11581) on May 24,
2018. At the time of the filing, the Debtor estimated assets of
less than $50,000 and liabilities of less than $500,000. The
Debtor hired DelBello Donnellan Weingarten Wise & Wiederkehr, LLP,
as its legal counsel.
WALTER J. LEWIS: Ct. Reverses Summary Judgment in Favor of Trustee
------------------------------------------------------------------
Defendant Walter J. Lewis, Jr., in the case captioned CHRISTIANA
TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, TRUSTEE,
v. WALTER J. LEWIS, JR., ET AL, (AC 39985) (Conn. App.) appeals
from the judgment of strict foreclosure rendered by the trial court
in favor of the substitute plaintiff, Wilmington Savings Fund
Society, FSB, doing business as Christiana Trust, as Trustee for
Normandy Mortgage Loan Trust, Series 2015-17 (substitute
plaintiff). Upon careful consideration of the facts, the Appellate
Court of Connecticut reverses the judgment of the trial court.
On appeal, the defendant claims that the court improperly rendered
summary judgment, as to liability only, in favor of the named
plaintiff, Christiana Trust, a Division of Wilmington Savings Fund
Society, FSB, as Trustee for Stanwich Mortgage Loan Trust, Series
2012-17 (original plaintiff), because a genuine issue of material
fact exists as to whether the signature on the mortgage is his. He
contends that his affidavit, filed in connection with his
objection, in which he attested that the signature on the mortgage
is not his, was sufficient to demonstrate the existence of a
genuine issue of material fact regarding the authenticity of the
signature.
In contrast, the substitute plaintiff argues that the court
properly determined that there was no genuine issue of material
fact as to the validity of the mortgage. The substitute plaintiff
further argues that the fact that the defendant signed a
foreclosure mediation certificate in which he represented that his
primary residence was subject to the mortgage and participated in
mediation in an attempt to negotiate a short sale supports the
court's determination that the defendant implicitly recognized that
the mortgage was valid.
The Court agrees with the Defendant. Here, the defendant provided
an evidentiary foundation to demonstrate the existence of a genuine
issue of material fact. In his affidavit, the defendant
contradicted the evidence submitted by the original plaintiff in
support of its motion for summary judgment that he had executed and
delivered a valid mortgage, namely, the note, the mortgage and an
affidavit from the original plaintiff's loan servicer attesting
that the defendant had executed the mortgage. In his affidavit, the
defendant stated that he "reviewed the mortgage attached to the
plaintiff's memorandum of law," and "[t]he signature that appears
on that mortgage is not mine; I did not sign it." The foregoing
statements call into question the validity of the mortgage and give
rise to a genuine issue of material fact as to the authenticity of
the signature on the mortgage.
Moreover, the Court concludes that the court improperly considered
the defendant's participation in the foreclosure mediation program
as admissible evidence relating to the issue of the validity of the
mortgage. General Statutes section 49-31l (c) (8), which governs
the foreclosure mediation program, makes clear that a party's
participation in the foreclosure mediation program does not result
in a waiver of any rights of the mortgagee or mortgagor.
Specifically, that subdivision provides: "None of the mortgagor's
or mortgagee's rights in the foreclosure action shall be waived by
participation in the foreclosure mediation program." Simply put,
holding participation in the foreclosure mediation program against
a mortgagor by restricting his or her ability to contest the
validity of the mortgage would run afoul of the plain language of
section 49-31l (c) (8) and would contravene the public policy of
promoting foreclosure mediation.
In sum, the trial court improperly granted the motion for summary
judgment as to liability only, as a genuine issue of material fact
exists as to whether the signature on the mortgage is that of the
defendant. The judgment is reversed and the case is remanded for
further proceedings according to law.
A copy of the Court's Opinion dated Sept. 11, 2018 is available at
https://bit.ly/2MP7W3H from Leagle.com.
Albert L.J. Speziali, with whom, on the brief, was Francis R.
Sablone -- frsablone@gmail.com -- for the appellant (named
defendant).
Andrea C. Sisca, with whom was Michael J. Jones, for the appellee
(substitute plaintiff).
Jeffrey Gentes filed a brief for the Connecticut Fair Housing
Center as amicus curiae.
Lavine, Moll and Flynn, Js.
WOODBRIDGE GROUP: $155K Sale of Mt. Holly's Carbondale Property OKd
-------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Mt. Holly Investments, LLC's real
property located at 153 Sopris Mesa Dr., Carbondale, Colorado,
together with the Seller's right, title, and interest in and to the
buildings located thereon and any other improvements and fixtures
located thereon, and any and all of the Seller's right, title, and
interest in and to the tangible personal property and equipment
remaining on the real property as of the date of the closing of the
sale, to Dan Royal and Lori Royal for $155,000.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fee and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Broker Fee to
Sothebys' in an amount up to 5% of the gross sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2606_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $238K Sale of Three Carbondale Parcels Approved
-----------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell the three parcels of real property owned
by Carbondale Glen Lot SD-23, LLC and Carbondale Glen Sundance
Ponds, LLC, located at(i) Lot 23 Aspen Glen, Carbondale, Colorado;
(ii) Lot 22 Aspen Glen, Carbondale, Colorado; and (iii) Lot 21,
Aspen Glen, Carbondale, Colorado together with the Sellers' right,
title, and interest in and to the buildings located thereon and any
other improvements and fixtures located thereon, and any and all of
the Sellers' right, title, and interest in and to the tangible
personal property and equipment remaining on the real property as
of the date of the closing of the sale, to Roberta Goodrich and
Martin Hoffman for $237,500, which amounts to approximately $79,167
for each of the three parcels.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fee and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to (i) pay the Purchasers'
Broker Fee to their Broker in an amount up to 2.5% of the gross
Sale proceeds, and (ii) pay the Sellers' Broker Fee to Sotheby's in
an amount up to 2.5% of the gross Sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2628_Order.pdf
(ET). The objection deadline is Sept. 13, 2018 at 4:00 p.m. (ET).
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $5.4M Sale of Old Maitland's Aspen Property OK'd
------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Old Maitland Investments, LLC's real
property located at 150 White Horse Springs, Aspen, Colorado,
together with the Seller's right, title, and interest in and to the
buildings located thereon and any other improvements and fixtures
located thereon, and any and all of the Seller's right, title, and
interest in and to the tangible personal property and equipment
remaining on the real property as of the date of the closing of the
sale, to 150 White Horse, LLC for $5.4 million.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fee and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Seller's Broker
Fee to Sotheby's in an amount up to 2.5% of the gross sale
proceeds. No other broker fees will be payable in connection with
the Sale.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2627_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $75K Sale of Idared's Carbondale Property Okayed
------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Idared Investments, LLC's real property
located at 665 N. Bridge Dr., Carbondale, Colorado, together with
the Seller's right, title, and interest in and to the buildings
located thereon and any other improvements and fixtures located
thereon, and any and all of the Seller's right, title, and interest
in and to the tangible personal property and equipment remaining on
the real property as of the date of the closing of the sale, to
Brian J. Gary for $75,000.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fee and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Broker Fees out
of the sale proceeds by paying the Seller's Broker Fee in an amount
up to 2.5% of the gross Sale proceeds and paying the Purchaser's
Broker Fee in an amount up to 2.5% of the gross Sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2607_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $7M Sale of Imperial's Beverly Hill Property OK'd
-------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Imperial Aly Investments, LLC's real
property located at 633 Foothill Road, Beverly Hills, California,
together with the Seller's right, title, and interest in and to the
buildings located thereon and any other improvements and fixtures
located thereon, and any and all of the Seller's right, title, and
interest in and to the tangible personal property and equipment
remaining on the real property as of the date of the closing of the
sale to Stephen Cucci for $7.25 million.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fees and Other Closing
Costs) will be treated by the Debtors in accordance with the Final
DIP Order.
The Debtors are authorized and empowered to pay the Broker Fee to
The Agency in an amount up to 3.5% of the gross sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2570_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
WOODBRIDGE GROUP: $995K Sale of Moravian's Carbondale Property OK'd
-------------------------------------------------------------------
Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District
of Delaware authorized Woodbridge Group of Companies, LLC and its
affiliated debtors to sell Moravian Investments, LLC's real
property located at 36 Primrose Lane, Carbondale, Colorado,
together with the Seller's right, title, and interest in and to the
buildings located thereon and any other improvements and fixtures
located thereon, and any and all of the Seller's right, title, and
interest in and to the tangible personal property and equipment
remaining on the real property as of the date of the closing of the
sale, to Thomas K. Ritzel for $995,000.
The sale is free and clear of all liens, claims, interests, and
encumbrances.
All proceeds of the Sale (net of the Broker Fee and Other Closing
Costs) will be paid to the Debtors into the general account of
Debtor Woodbridge Group of Companies, LLC, and such net proceeds
will be disbursed and otherwise treated by the Debtors in
accordance with the Final DIP Order.
The Debtors are authorized and empowered to pay the Broker Fee to
Sothebys' in an amount up to 5% of the gross sale proceeds.
Any title insurer, escrow agent, or other intermediary
participating in a closing of the Sale of the Property is
authorized to disburse all funds at the closing of the Sale
pursuant to the applicable settlement statement or escrow
instructions provided by the parties to such Sale.
The terms and conditions of the Order will be immediately effective
and enforceable upon its entry notwithstanding any applicability of
Bankruptcy Rule 6004(h).
A copy of the Agreement attached to the Order is available for free
at:
http://bankrupt.com/misc/Woodbridge_Group_2570_Order.pdf
About Woodbridge Group
Headquartered in Sherman Oaks, California, The Woodbridge Group
Enterprise -- http://www.woodbridgecompanies.com/-- is a
comprehensive real estate finance and development company. Its
principal business is buying, improving, and selling high-end
luxury homes. The Woodbridge Group Enterprise also owns and
operates full-service real estate brokerages, a private investment
company, and real estate lending operations. The Woodbridge Group
Enterprise and its management team have been in the business of
providing a variety of financial products for more than 35 years,
and have been primarily focused on the luxury home business for the
past five years. Since its inception, the Woodbridge Group
Enterprise has completed more than $1 billion in financial
transactions. These transactions involve real estate, note buying
and selling, hard money lending, and alternative financial
transactions involving thousands of investors.
Woodbridge Group of Companies and certain of its affiliates filed
Chapter 11 bankruptcy petitions (Bankr. D. Del. Lead Case No.
17-12560) on Dec. 4, 2017. Woodbridge estimated assets and
liabilities at between $500 million and $1 billion. The Chapter 11
cases are being jointly administered.
Judge Kevin J. Carey presides over the case.
Samuel A. Newman, Esq., Oscar Garza, Esq., Daniel B. Denny, Esq.,
Jennifer L. Conn, Esq., Eric J. Wise, Esq., Matthew K. Kelsey,
Esq., and Matthew P. Porcelli, Esq., at Gibson, Dunn & Crutcher,
LLP, and Sean M. Beach, Esq., Edmon L. Morton, Esq., Ian J.
Bambrick, Esq., and Allison S. Mielke, Esq., at Young Conaway
Stargatt & Taylor, LLP, serve as the Debtors' bankruptcy counsel.
Homer Bonner Jacobs, PA, as special counsel, Province, Inc., as
expert consultant, Moelis & Company LLC, as investment banker.
The Debtors' financial advisors are Larry Perkins, John Farrace,
Robert Shenfeld, Reece Fulgham, Miles Staglik, and Lissa Weissman
at SierraConstellation Partners, LLC. Beilinson Advisory Group is
serving as independent management to the Debtors. Garden City
Group, LLC, is the Debtors' claims and noticing agent.
Venable LLP is the Fiduciary Committee of Unitholders' legal
counsel.
Drinker Biddle & Reath LLP is counsel to the Ad Hoc Group of
Noteholders, and Conway MacKenzie, Inc., as its financial advisor.
Pachulski Stang Ziehl & Jones is counsel to the Official Committee
of Unsecured Creditors; and FTI Consulting, Inc., serves as its
financial advisor.
An official committee of unsecured creditors was appointed in the
Chapter 11 cases on Dec. 14, 2017. On Jan. 23, 2018, the Court
approved a settlement providing for the formation of an ad hoc
noteholder group and an ad hoc unitholder group.
YBARRA ENTERPRISES: Court Waives Appointment of PCO
---------------------------------------------------
The U.S. Bankruptcy Court for the Southern District of Texas has
considered the Ybarra Enterprises, Inc.'s motion to waive the
appointment of a patient care ombudsman, the arguments of counsel,
the evidence presented, and the agreement of the Debtor, the Texas
Health and Human Services Commission ("HHSC") and the Office of the
United States Trustee, and found that under the specific facts of
this case, the appointment of a patient care ombudsman is not
necessary for the protection of patients at this time.
The Court's Order is without prejudice to the right of any
party-in-interest to later seek the appointment of a patient care
ombudsman, including but not limited to the failure to comply the
self-reporting duties or based upon further investigation. On the
20th of each month, commencing on September 20, 2018, and for each
month thereafter during the pendency of this Chapter 11 cases, the
Debtor is directed to submit to the Office of the United States
Trustee and the HHSC a report detailing the following information
regarding the Debtor and its operations for the prior month.
A copy of the Self-Report for the period of August 1, 2018 through
August 31, 2018 from PacerMonitor.com is available at
https://tinyurl.com/ycz6yowe at no charge.
About Ybarra Enterprises
Based in Mission, Texas, Ybarra Enterprises, Inc., aka Dedication
of Care Home Health Agency -- http://www.dochomehealth.com/--
provides home health care services. Currently, the Company's
coverage area includes South Texas major cities: Laredo, McAllen,
Edinburg, Corpus Christi, and Brownsville. The company filed a
voluntary Chapter 11 petition (Bankr. S.D. Tex., Case No. 18-70254)
on July 9, 2018, and is represented by Kelly K. McKinnis, Esq., in
McAllen, Texas. At the time of filing, the Debtor had estimated
assets of $100,000 to $500,000 and estimated liabilities of $1
million to $10 million.
*********
Monday's edition of the TCR delivers a list of indicative prices
for bond issues that reportedly trade well below par. Prices are
obtained by TCR editors from a variety of outside sources during
the prior week we think are reliable. Those sources may not,
however, be complete or accurate. The Monday Bond Pricing table
is compiled on the Friday prior to publication. Prices reported
are not intended to reflect actual trades. Prices for actual
trades are probably different. Our objective is to share
information, not make markets in publicly traded securities.
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affiliated with a TCR editor holds some position in the issuers
public debt and equity securities about which we report.
Each Tuesday edition of the TCR contains a list of companies with
insolvent balance sheets whose shares trade higher than $3 per
share in public markets. At first glance, this list may look like
the definitive compilation of stocks that are ideal to sell short.
Don't be fooled. Assets, for example, reported at historical cost
net of depreciation may understate the true value of a firm's
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equity securities trade in public market are determined by more
than a balance sheet solvency test.
On Thursdays, the TCR delivers a list of recently filed
Chapter 11 cases involving less than $1,000,000 in assets and
liabilities delivered to nation's bankruptcy courts. The list
includes links to freely downloadable images of these small-dollar
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Each Friday's edition of the TCR includes a review about a book of
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Monthly Operating Reports are summarized in every Saturday edition
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The Sunday TCR delivers securitization rating news from the week
then-ending.
TCR subscribers have free access to our on-line news archive.
Point your Web browser to http://TCRresources.bankrupt.com/and use
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*********
S U B S C R I P T I O N I N F O R M A T I O N
Troubled Company Reporter is a daily newsletter co-published
by Bankruptcy Creditors Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA.
Jhonas Dampog, Marites Claro, Joy Agravante, Rousel Elaine
Tumanda, Valerie Udtuhan, Howard C. Tolentino, Carmel Paderog,
Meriam Fernandez, Joel Anthony G. Lopez, Cecil R. Villacampa,
Sheryl Joy P. Olano, Psyche A. Castillon, Ivy B. Magdadaro, Carlo
Fernandez, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2018. All rights reserved. ISSN: 1520-9474.
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