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) Cordillera GOLF CLUB, LLC, v. ALPINE BANK, (case No. 12-11893) Plaintiff seeks to determine validity, priority,. Extent of lien, for declaratory relief and for avoidance of lien. Venue for this proceeding is The United States Bankruptcy Court for the District of Delaware.
) Cordillera GOLF CLUB, LLC, v. ALPINE BANK, (case No. 12-11893) Plaintiff seeks to determine validity, priority,. Extent of lien, for declaratory relief and for avoidance of lien. Venue for this proceeding is The United States Bankruptcy Court for the District of Delaware.
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) Cordillera GOLF CLUB, LLC, v. ALPINE BANK, (case No. 12-11893) Plaintiff seeks to determine validity, priority,. Extent of lien, for declaratory relief and for avoidance of lien. Venue for this proceeding is The United States Bankruptcy Court for the District of Delaware.
Copyright:
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In re: ) ) CORDILLERA GOLF CLUB, LLC 1 dba The Club at Cordillera, ) Case No. 12-11893 (CSS) ) Debtor. ) Chapter 11 ) ______________ ) CORDILLERA GOLF CLUB, LLC, Plaintiff, v. ALPINE BANK, Defendant. ) ) ) ) ) Adv. Pro. No.: 12- ) ) ) ) __________________________ ) ---- COMPLAINT TO DETERMINE VALIDITY, PRIORITY, PERFECTION AND EXTENT OF LIEN; FOR DECLARATORY RELIEF; AND AVOIDANCE OF LIEN The Plaintiff, Cordillera Golf Club, LLC ("Plaintiff' or "Debtor"), pursuant to 11 U.S.C. 544(a)(l), 550, and 551, hereby files its Complaint against defendant, Alpine Bank ("Defendant") to determine validity, priority and extent of lien, for declaratory relief and for avoidance of lien, stating and alleging as follows: JURISDICTION AND VENUE 1. The United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") has jurisdiction over the parties and subject matter of this proceeding 1 The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is XX-X:XX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, Colorado 81632. 01:12258036.1 pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29,2012. 2. This proceeding is a core proceeding pursuant to 28 U.S.C. 157(b )(1) and 157(b)(2). 3. 1409(a). 4. Venue for this proceeding is proper in this District pursuant to 28 U.S.C. The statutory predicates for the relief requested herein are 506, 544, 550 and 551 of the United States Bankruptcy Code, 11 U.S.C. 101-1330 (the "Bankruptcy Code") and Rule 7001 of the Federal Rules of Bankruptcy Procedure. THE PARTIES 5. The Debtor is a limited liability company duly organized under and existing pursuant to the laws of the State of Delaware and is operating its business and to managing its properties as a debtor-in-possession under sections 11 07(a) and 1108 of the Bankruptcy Code. 6. The Defendant, Alpine Bank, is a Colorado banking corporation organized under and pursuant to the laws of Colorado. The Defendant provided a business loan to the Debtor as further described below. FACTUAL BACKGROUND 7. The Debtor is the owner and operator of "The Club at Cordillera" (the "Club") located in Edwards (Eagle County), Colorado. The Club facilities consist of, among other property, three (3) full length golf courses (the "Courses"), four distinct clubhouses, real estate surrounding the Courses, a Dave Pelz short course, an athletic club offering indoor lap pool and fitness facilities, a tennis and swim club, and a winter nordic center with groomed tracks (collectively, the "Facilities"). 01:12258036.1 2 A. The Alpine Bank Loan 8. Or about June 26, 2009, the Defendant and the Debtor entered into that certain Business Loan Agreement (the "Alpine Loan Agreement"), pursuant to which Alpine loaned to the Debtor the original principal amount of$13,700,000 (the "Alpine Loan"). 9. The Alpine Loan is evidenced by a Promissory Note dated June 29, 2009 (the "Alpine Note"). The Note matured on June 26, 2012. The Alpine Loan purports to be secured pursuant to a Deed of Trust dated June 26, 2009 and recorded in Eagle County Record's Office on June 29, 2009 as Document No. 200912623 (the "Alpine Deed of Trust"). 10. As security for the Debtor's obligations under the Alpine Note, the Alpine Deed of Trust purports to encumber the real property described therein, including all or a portion of the debtor's Facilities (the "Real Property"). 11. The Alpine Deed of Trust also purports to encumber certain personal property described therein, including "all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property." The Alpine Note also purports to be secured pursuant to a Collateral Assignment of Contracts dated June 26, 2009 purporting to encumber certain water rights, and related contracts as listed therein; a Collateral Assignment and Security Agreement Covering Agreements, Permits and Contracts dated June 26, 2009, purporting to encumber the "Collateral" as defined therein, including contracts, licenses, and other agreements as described therein; a Collateral Assignment and Security Agreement Covering Golf Membership Revenues dated June 26, 2009, purporting to encumber "Net Sales Revenues" and "Income from Dues" as defined therein, including revenues from the sale of golf course memberships with respect to the Courses and dues, assessments, fees or other charges on account of memberships in the Club; a Commercial Pledge 01:12258036.1 3 Agreement dated June 26, 2009 purporting to encumber all memberships in the Club; and a Commercial Security Agreement dated June 26, 2009 purporting to encumber furniture, fixtures, equipment, inventory, accounts receivable, general intangibles, contracts and contract rights, permits, goods, instruments, investment property, letter of credit rights, chattel paper, commercial tort claims, and all proceeds from the disposition thereof (all of the personal property purporting to be collateral for the Alpine Note) (collectively, the "Personal Property"). The above described documents and other documents entered into in connection with the Alpine Loan are collectively referred to as the "Alpine Loan Documents," and the documents referred to above have been filed with the Court in the Chapter 11 Case (defined below) at Docket No. 11. 12. Pursuant to the Alpine Loan Documents, the Defendant purports to have a secured lien over the Real Property and Personal Property (the "Prepetition Lien"). 13. On June 30, 2009, Alpine filed a UCC Financing Statement (the "Alpine Financing Statement") with the Delaware Secretary of State purporting to perfect its security interest in the Personal Property. A copy of the Alpine Financing Statement is attached hereto as Exhibit A. 14. The description of collateral in the Alpine Financing Statement states in Item 4: "This FINANCING STATEMENT covers the following collateral: PDF ATTACHED." However, the attached pdf exhibit referred was not attached to the original Alpine Financing Statement. 15. On or about June 30,2010, almost one (1) year later, apparently recognizing its mistake, Alpine caused to be filed a "UCC Form Correction Statement" (the "Alpine Correction Statement") checking Item 2a: "RECORD is inaccurate," and stating: "Item 4 of the UCC Financing Statement stated the collateral was attached in a PDF, but when filed the PDF did not 01:12258036.1 4 attach. Attached to this document is the missing PDF that needs to be added to the original filing effective as of the original filing date." A personal property description was attached to the Alpine Correction Statement. Item 4 of the Alpine Correction Statement referring to the person authorizing the Alpine Correction Statement, refers to "Alpine Bank." The Alpine Correction Statement is attached hereto as Exhibit B. B. The Debtor's Chapter 11 Filing 16. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code, thereby initiating Case No. 12-11893 with the Bankruptcy Court (the "Chapter 11 Case"). COUNT I: DECLARATORY JUDGMENT THAT PREPETITION LIEN WITH REGARD TO PERSONALPROPERTYISUNPERFECTED 17. The Debtor repeats and realleges the allegations contained in Paragraphs 1 through 16 above as though fully set forth herein. 18. The Debtor is entitled to a determination ofthe validity, priority, perfection and extent of the Prepetition Lien alleged by the Defendant. 19. The Debtor is deemed located in the State of Delaware pursuant to the Uniform Commercial Code as in effect in the State of Colorado and the State of Delaware for purposes of the law governing perfection of the Prepetition Lien in the Personal Property capable of being perfected by the filing of a financing statement under the Delaware Uniform Commercial Code (the "Code"). 20. In order to perfect the Prepetition Lien in the Personal Property capable of being perfected by the filing of a financing statement under the Code, the Defendant was required to 01:12258036.1 5 file a sufficient financing statement with the Delaware Secretary of State under the Debtor's name meeting the requirements set forth in Sections 9-502 and 9-504 of the Code. 21. Inasmuch as there was no description at all of any Personal Property attached to the Alpine Financing Statement, the original Alpine Financing Statement does not have a sufficient description of the Personal Property within the meaning of and as required by Delaware UCC Sections 9-502 and 9-504 for perfection purposes and is therefore defective and inadequate to perfect Alpine's asserted lien in any of the Personal Property. 22. The filing of a "Correction Statement" by the Defendant attaching a personal property description in an attempt fix the deficiency in the original Alpine Financing Statement does not cure any defect in the Alpine Financing Statement. 23. As a result, the Defendant's Prepetition Lien in any Personal Property in which perfection must be accomplished by the filing of a financing statement under the Code or other applicable law is unperfected. 24. Prior to the Petition Date, the Debtor is informed and believes that Alpine Bank did not take any action permitted or required by the Code or other applicable law to perfect its Prepetition Lien in any of the Personal Property which may be or is required to be perfected by a method other than the filing of a sufficient financing statement with the Delaware Secretary of State. 25. None of the Defendant's Prepetition Lien in portions of the Personal Property which may be or is required to be perfected by means other than the filing of a financing statement with the Delaware Secretary of State is perfected. 26. None of the Defendant's Prepetition Liens in the Personal Property is perfected. 01:12258036.1 6 27. There is an actual controversy between the parties as to whether the Defendant's Prepetition Lien in any Personal Property is perfected. 28. Entry of a declaratory judgment as to whether the Defendant's Prepetition Lien in any Personal Property is perfected will settle the controversy currently existing between the parties. 29. A declaratory judgment or order determining the validity, priority, perfection and extent of the Prepetition Lien in any Personal Property alleged by the Defendant is therefore warranted. COUNT II: A VOIDANCE OF UNPERFECTED LIEN PURSUANT TO 544(A)(l) OF THE BANKRUPTCY CODE 30. The Debtor repeats and realleges the allegations contained in Paragraphs 1 through 29 above as though fully set forth herein. 31. Where a creditor has failed to perfect a security interest in property under applicable state law, the security interest is avoidable under Bankruptcy Code section 544. 32. The Defendant failed to properly perfect its Prepetition Lien in the Personal Property as required by applicable state law. 33. The Defendant's unperfected Prepetition Lien in the Personal Property is avoidable by the Debtor pursuant to Bankruptcy Code section 544(a)(l). 34. The Defendant's avoided security interest is preserved for the benefit of the Debtors' bankruptcy estate pursuant to Bankruptcy Code section 5 51. 35. Pursuant to sections 544 and 550 ofthe Bankruptcy Code, the Debtor, as debtor in possession, has a right to avoid the Defendant's Prepetition Lien in any Personal Property. 01:12258036.1 7 36. Accordingly, the Debtor hereby requests that the Defendant's asserted Prepetition Lien in any Personal Property be avoided; that such avoided lien be preserved for the benefit of the Debtor's estate; and the Court award such costs and fees which the Court in its power may award pursuant to sections 544, 550 and/or other applicable provisions of the Bankruptcy Code. WHEREFORE, the Debtor requests that this Court enter a judgment in favor of the Debtor and against the Defendant: 01:12258036.1 a. Declaring that the Defendant's Prepetition Lien m the Personal Property 1s unperfected; b. A voiding the Defendant's Prepetition Lien in any Personal Property pursuant to sections 544 and 550 of the Bankruptcy Code; c. Preserving the security interest for the benefit of the Debtor's bankruptcy estate pursuant to Bankruptcy Code section 5 51; d. Preserving all of the Debtor's rights to raise any other claims regarding validity, extent, priority, enforceability, perfection or otherwise against the Defendant; e. Awarding such costs and fees to the Debtor which the Court in its power may award pursuant to sections 544, 550 and/or other applicable provisions of the Bankruptcy Code or applicable law; and f. Awarding the Debtor such other and further relief as this Court deems just and proper. 8 Dated: Wilmington, Delaware July 2, 2012 01:12258036.1 FOLEY & LARDNER LLP Christopher Celentino (CA No. 131688) Mikel Bistrow (CA No. 1 02978) Erika Morabito (VA No. 44369) 402 West Broadway, Suite 2100 San Diego, California 92101 Telephone: (619) 234--6655 Facsimile: (619) 234-3510 -and- YOUNG CONAWAY STARGATT & TAYLOR, LLP ( Z h ~ ~ Michael R. Nes(N0:3526) Joseph M. Barry (No. 4221) Donald J. Bowman, Jr. (No. 4383) Kenneth J. Enos (No. 4544) Rodney Square 1 000 N. King Street Wilmington, Delaware 19801 Telephone: (302) 571-6600 Facsimile: (302) 571-1253 Proposed Counsel for Debtor and Debtor in Possession 9 EXHIBIT A Alpine Financing Statement 01:12258036.1 UCC FINANCING STATEMENT FOLLOW INSTRUCTIONS (front and back) CAREFULLY A. NAME & PHONE OF CONTACT AT FILER [optional] Kursten canada Esq_:., =::::--::-:------:--:-:--:---:-------"-9.:.c70::.:9:.;;4:.;:9c.:::0.:..70::..7:.._-i B. SEND ACKNOWLEDGMENT TO: (Name and Address) DELAWARE DEPARTMENT OF STATE U.C.C. FILING SECTION FILED 05:27 PM 06/30/2009 INITIAL FILING # 2009 2098165 I SRV: 090663504 GliRFIEID & HECHT, P.C. P.O. BOX 5450 L=:_voN oo 81620 _j 1. DEBTOR'S EXACT FULL LEGAL NAME insert only one debtor name (Ia or lb)- do not abbreviate or combine names - la. ORGANIZATION'S NAME OORDI:r.I.ERA GOLF CIJJB, LLC OR 1 b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX lc. MAILING ADDRESS CITY STATE I POSTAL CODE COUNTRY P.O. BOX 988 EDW11RDS co 81632 U'S 11e. TYPE OF ORGANIZATION 1f. JURISDICTION OF ORGANIZATION I LTD LIABILITY OOMPliNY: I DE 2 ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME insert only !1M debtor name (2a or 2b) do not abbreviate or combine names 2a. ORGANIZATION'S NAME OR OORDI:r.I.ERA F&B, LLC 2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX 2c. MAILING ADDRESS CITY STATE I POSTAL CODE COUNTRY P.O. BOX 988 EDW11RDS 00 81632 U'S 12e. TYPE OF ORGANIZATION 2f. JURISDICTION OF ORGANIZATION !LTD LIABILITY OOMPANY: DE 3 SECURED PARTY'S NAME (or NAME ofTOTAL ASSIGNEE of ASSIGNOR SIP)- insert only llllll secured party name (3a or 3b) 3a. ORGANIZATION'S NAME ALPINE BliNK, A OOIDRI\DO BliNKING OORPORATION OR 3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX 3c. MAILING ADDRESS CITY STATE rOSTALCODE COUNTRY 12 VAIL ROAD SU'ITE 200 VAIL co 81657 U'S 4. T h ~ s FINANCING STATEMENT covers the follow1ng collateral: PDF ATTACHED Debtor 2 EXHIBIT B Alpine Correction Statement 01:12258036.1 JUN. 23.2010 9:49AM GARFIELD & HECHT, P. C. (AVON) NO. 2877 P. 3/4 CORREC'riON STATEMENT FOLLOW INSTRUCTIONS (front and back) CAREFULLY A. NAME & PHONE OF PERSON FlUNG THIS STATEMENf (optiona[) Kursten Canada, Esq. DELAWARE DEPAR1MENT OF S:rJU'E U. C. C. FILING SECTION FILED 11 :57 AM 06/23/2010 INITIAL FILING # 2009 2098165 AMENDMENT # 2010 2394041 SRV: 100682761 B. SEND ACKNOWLEDGMENT TO: (Name and Address) r L Garfield and Hecht, P .C. P.O. Box 5450 Eagle, CO 81620 1 .J TIIE AOVE SPACt lS FOR FILING OFF1CE USE ONLY 1. Idemlficntion ofthe RECORD to which this CORRECTION STATEMENT relates. la. TYPE OF RECORD lb. FILE# Ol' INITIAL FINANCING STATEMENT UCC Financing Statement 2009 2098165 2a. RECORD is inaccurate. 2b. 0 l?rovicle the basis for the belhlf of the person identified in item 4 that the RECORD identified in item 1 is lnaceuratc and indicate the manner in which the persort believes the RECORD should be amended to the inaccuracy. Item 4 of the UCC Financing Statement stated the collateral was attached in a PDF, but when filed the PDF did not attach. Attached to this document is the missing collateral PDF that needs to be added to the original fili11g effective as of the original filing date. RECORD was WJ:ongfully filed. Provide the basis for the belief of me perSon identifie.;i in item 4 that the RECORD identified in item 1 was wrongfully filed . .3. If this CORRECTION STATEMENI relates to a RECORD filed [or recorded] in a filing office described in Section 9-:50l(a)(l) and this CORRECTION STATEMENT is filed in such a filing offiee, provide the date [and time] on which the INITIAL FINANCING STATEMENT identified in item 1 b above was filed or recorded . 3a. DATE 3b. TIME 4. NAME OF PERSON AUTHORIZJNG THE FILING OF TIIIS CORRECTION STA TBMe:NT- TI1e RECORD lA i\i!m 1 muat be indexed name. 4a. ORGANIZATION'S NAME: Al ine Bank, a Colorado bankin No.1204. Rev. 5-01. COJUU;CTION STATEMENT (FORM UCCS) (I) FILING OFfiCE COPY (2) ACKNOVVLEDGMENT COPY (3) DEBTOR COPY (4) SECURED PARTY COPY JUN. 23.2010 9:49AM GARFIELD & HECHT, P. C. (AVON) NO. 2877 P. 4/4 Attachment to UCC Filing
ALL FURNITURE, FIXTURES, EQUIPMENT, INVENTORY, ACCOUNTS RECEIVABLE, GENERAL INTANGIBLES, CONTRACTS, AND CONTRACT RIGHTS, PERMITS, GOODS, INSTRUMENTS, INVESTMENT PROPERTY, LETTER OF CREDIT RIGHTS, CHATIEL PAPER. COMMERCIAL TORT CLAIMS, AND ALL PROCEEDS FROM THE DISPOSITION THEREOF, TOGETHER WITH ALL DUES, ASSESSMENTS, FEES OR OTHER CHARGES PAY ABLE TO DEBTOR BY OR ON ACCOUNT OF ALL GOLF COURSE MEMBERSHIPS OF ALL CATEGORIES AND ALL PRlVlLEGES WITH RESPECT TO ALL GOLF COURSE PROPERTIES AND FACILITIES NOW OR HEREAFTER OWNED BY DEBTOR INCLUDING BUT NOT LIMITED TO MEMBERSHIPS ISSUED PURSUANT TO THE MEMBERSHIP PLAN FOR THE CLUB AT CORDILLERA AMENDED AND RESTATED NOVEMBER 30, 2007 AND ANY AMENDMENTS, MODIFICATIONS, SUPPLEMENTS OR RESTATEMENTS THEREOF (THE ''MEMBERSHIPS"), AND ALL REVENEUES, WHETHER IN THE FORM OF A LUMP SUM PAYMENT OR ANY INSTALLMENTS OR ON ANY OTHER CREDIT TERMS, FROM THE SALE, EXCHANGE OR UPGRADE OF MEMBERSHIPS, INCLUDING, BUT NOT LIMITED TO, PREMIER MEMBERSHIPS, LESS ALL REFUND PAYMENTS PAID OR PAYABLE IN CONNECTION WITH THE SALE) EXCHANGE OR UPGRADE OF ANY MEMBERSHIPS NOW EXISTING OR HEREAFTER ISSUED. 509913vl