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  1. 1. IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAREIn re Chapter 11CORDILLERA GOLF CLUB, LLC1 Case No. 12-11893 (CSS)dba The Club at Cordillera, Hearing Date: July 16, 2012 at 10:00 a.m. Debtor. Object. Due: July 11, 2012 at 12:00 p.m. Re: D.I. 69, 77, 78, 95, 117 & 118) JOINDER OF CREDITOR JEFFREY RUSH, M.D. AS TRUSTEE OF THE RUSH FAMILY TRUST UTD MAY 8, 1985, TO OBJECTION OF DEBTOR TO (I) MOTIONOF CHERYL M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON AND KEVIN B. ALLEN, INDIVIDUALLY AND AS REPRESENTATIVES OF A CERTIFIED CLASS OF MEMBERS, TO TRANSFER VENUE (D.I. 69), (II) MOTION OF CORDILLERA PROPERTY OWNERS ASSOCIATION, INC. AND CORDILLERA METROPOLITAN DISTRICT TOTRANSFER VENUE TO COLORADO AND JOINDER IN THE MOTION OF CHERYL M. FOLEY, THOMAS WILNER, JANE WILNER, CHARLES JACKSON, MARY JACKSON AND KEVIN B. ALLEN, INDIVIDUALLY AND AS REPRESENTATIVESOF A CERTIFIED CLASS OF MEMBERS, TO TRANSFER VENUE (D.I. 78), AND (III) JOINDERS OF ALPINE BANK IN VENUE TRANSFER MOTIONS (D.I. 77 & 95) Jeffrey Rush, M.D., as Trustee of the Rush Family Trust UTD May 8, 1985 (“Dr.Rush”), by and through his undersigned counsel, hereby submits this joinder in thecontemporaneously filed objection (D.I. 118) (the “Objection”) of Cordillera Golf Club, LLC,debtor and debtor-in-possession (the “Debtor”), to: (i) the Motion Of Cheryl M. Foley, ThomasWilner, Jane Wilner, Charles Jackson, Mary Jackson And Kevin B. Allen, Individually And AsRepresentatives Of A Certified Class Of Members (the “Plaintiff Class Representatives”), ToTransfer Venue (D.I. 69); (ii) the Motion Of Cordillera Property Owners Association, Inc. (the“CPOA”) And Cordillera Metropolitan District (the “CMD” and together with the CPA, the1 The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is XX-XXX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, Colorado 81632.
  2. 2. “Member Organizations”) To Transfer Venue To Colorado And Joinder In The Motion OfCheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson And Kevin B.Allen, Individually And As Representatives Of A Certified Class Of Members, To TransferVenue (D.I. 78); and (iii) Joinders Of Alpine Bank In Venue Transfer Motions (D.I. 77 & 95)(collectively, the “Venue Transfer Requests”). Dr. Rush joins in and incorporates by referencethe arguments presented in the Debtor’s Objection, and respectfully states as follows in supportof this Court’s retention of this properly venued chapter 11 case: 1. On information and belief, Dr. Rush is the single largest unsecuredcreditor of the Debtor, with a claim of not less than $3,750,000.00. Dr. Rush’s claim arisesunder that certain Guaranty, dated September 24, 2010, as amended (the “Guaranty”).2 Indeed,the combined claims of the Plaintiff Class Representatives and initial movants Cheryl M. Foley,Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson And Kevin B. Allen, which claimsconsistent principally of their respective membership deposits,3 do not approach what Dr. Rushalone is owed.42 Other guarantors under the Guaranty include the Debtor’s non-debtor affiliates WFP Investments, LLC, WFP Cordillera Holdings, LLC, and Cordillera Golf Holdings, LLC. The Guaranty was issued in connection with that certain Promissory Note, dated September 24, 2010, as amended, between Dr. Rush, as Lender, and David A. Wilhelm, as Borrower. To secure repayment of the indebtedness owed to him, Dr. Rush has obtained collateral or assignments of collateral from certain non-debtor parties. But, the Guaranty, as a direct obligation of the Debtor, is unsecured.3 According to the Class Plaintiff Representatives’ own motion, they individual paid membership deposits ranging between $7,500 and $205,000. See Class Plaintiff Representatives’ Venue Transfer Request (D.I. 69), at 3-4. Accordingly, it is mathematically impossible for the aggregate value of the Class Plaintiff Representatives’ alleged claims to exceed the amount of Dr. Rush’s claim.4 Just minutes before this Joinder was due, the recently formed Official Committee of Unsecured Creditors (the “Committee”) filed a pleading joining the Venue Transfer Requests and expressing support for changing venue of this bankruptcy case. Although Dr. Rush has not had the opportunity to fully digest the Committee’s filing and reserves 2
  3. 3. 2. Dr. Rush opposes transfer of this case and respectfully submits that theinterests of the Debtor, its estate, its creditors and other parties in interest are best served by thisCourt retaining venue of this case. Furthermore, Dr. Rush believes that this Court is both aconvenient and accessible forum for him and other significant parties in interest. 3. Since September 2010, Dr. Rush has made multiple advances of funds inthe aggregate principal amount not less than $3,750,000, which advances have benefited theDebtor and its affiliates. These loans from Dr. Rush have provided the Debtor and its affiliateswith much needed liquidity during a period in which they have been embroiled in causticlitigation and public disputes, largely initiated by a subset of disgruntled Club members. Giventhe Debtor’s current precarious situation, brought on in large part as a result of such events, Dr.Rush therefore is among the creditors with the most riding on the success or failure of theDebtor’s reorganization. 4. Dr. Rush understands and believes that the Debtor’s best prospects for asuccessful reorganization are in this Court. While the judges and staff of the United StatesBankruptcy Court for the District of Colorado are no doubt every bit as capable and diligent as the right to respond further to it, Dr. Rush respectfully submits that any positions the Committee asserts in support of transferring venue should be substantially discounted by this Court. Dr. Rush notes that (i) at least two members of the Committee (Cheryl M. Foley and Kevin B. Allen) are also named class-plaintiffs and movants on one of the Venue Transfer Requests; and (ii) at least one member of the Committee (Kenneth Ulicky) is a Board Member of the CMD, which has made its own Venue Transfer Request and has joined in that of the named class-plaintiffs. Dr. Rush notes further that he timely submitted a completed questionnaire and appeared through counsel with his proxy at the United State Trustee’s Committee formation meeting held on July 6, 2012, but was denied a seat on the Committee. As presently constituted, six of the seven Committee members are current or one time property owners or holders of membership interests. The remaining Committee member is a trade creditor, who was not present in person or by proxy at the Committee formation meeting. No member of the Committee is similarly situated to Dr. Rush. 3
  4. 4. those of this Court, Dr. Rush believes that the poisonous atmosphere created by many of thedissenting members and property owners and certain others, as well as unfounded claims thathave been reported in the local press in Colorado, has largely choked off the Debtor’s access tofunding and investment sources in or near Colorado. Dr. Rush understands that the Debtor’s bestchance to obtain additional funding and investment is likely from East Coast-based lenders thatfrequently lend to or invest in debtors in this Court and whose ability to objectively evaluate theDebtor (and any reorganization plan it proposes) on its merits has not been tainted by longexposure to these events and misinformation that has been spread in the Colorado press. Indeed,Northlight Financial, LLC, the Debtor’s proposed debtor-in-possession lender, manages variousfunds from offices located in nearby New York, New York. 5. Additionally, retaining the bankruptcy case in Delaware will not cause Dr.Rush or other significant parties in interest undue burden or expense. Dr. Rush, who is located inCalifornia, has already retained the undersigned Delaware counsel to assist him in thisbankruptcy and related matters. Indeed, a venue change to Colorado at this point would causeDr. Rush to incur additional unnecessary expense because of the need to retain other counsel inColorado and bring a new set of lawyers up to speed in this fast moving case. 6. Furthermore, from a convenience standpoint, it makes little different toDr. Rush and other West Coast-based creditors whether the case remains pending in this Court oris transferred to Colorado.5 This Court (and presumably the Colorado bankruptcy court) permitscreditors to appear and be heard by telephone in appropriate circumstances. And, if there is a5 Dr. Rush notes that the Kogan Law Firm, APC, which identified a Los Angeles, California address, recently appeared in the case on behalf of certain unidentified homeowners. See Notice of Appearance and Demand for Service of Papers, filed July 10, 2012 (D.I. 115). 4
  5. 5. need for Dr. Rush or his California-based attorneys to appear in person, a lengthy plane ride willbe involved whether the case goes forward here or in Colorado. 7. Conversely, the recently-formed Committee has hired – not Coloradobased counsel – but the sizeable law firms of Munsch Hardt Kopf & Harr, P.C., based in Texas,and Saul Ewing LLP, with 11 locations along the East Coast. Thus, the Committee now hasmore than 340 lawyers at its disposal (and, subject to approval of appropriate applications, beingpaid for by the Debtor’s estate), none of which is located in Colorado, but several of which arelocated here in Delaware.6 Moreover, because (as noted in footnote 3 above) there is substantialoverlap between the membership of the Committee and the movants who have filed the VenueTransfer Requests, it can be presumed that the constituents on behalf of which the movantspurport to act will be adequately represented here in Delaware by the Committee.6 Furthermore, based on a review of each firm’s website (www.munsch.com and www.saul.com), neither law firm appears to have a single attorney who is an active member in good standing of the Colorado bar. This fact undermines any argument that the Committee’s professionals would somehow be better situated to represent the unsecured creditors’ interests were the case transferred to the District of Colorado. 5
  6. 6. WHEREFORE, for all of these reasons and those stated in the Debtor’s Objection,in which Dr. Rush joins, Dr. Rush respectfully requests that the Venue Transfer Requests bedenied and that the Court grant such other and further relief to Dr. Rush as is just and equitable.July 11, 2012 MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Gregory W. Werkheiser Gregory W. Werkheiser (#3553) gwerkheiser@mnat.com Daniel B. Butz (#4227) kdawson@mnat.com 1201 N. Market Street. 18th Floor P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 Counsel for Jeffrey Rush, M.D., as Trustee of the Rush Family Trust UTD May 8, 1985 6
  7. 7. CERTIFICATE OF SERVICE I, Gregory W. Werkheiser, certify that I am not less than 18 years of age, and that serviceof the foregoing Joinder of Creditor Jeffrey Rush, M.D. as Trustee of the Rush FamilyTrust UTD May 8, 1985, to Objection of Debtor to (I) Motion of Cheryl M. Foley, ThomasWilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen, Individually andas Representatives of a Certified Class of Members, to Transfer Venue (D.I. 69), (II)Motion of Cordillera Property Owners Association, Inc. and Cordillera MetropolitanDistrict to Transfer Venue to Colorado and Joinder in the Motion of Cheryl M. Foley,Thomas Wilner, Jane Wilner, Charles Jackson, Mary Jackson and Kevin B. Allen,Individually and as Representatives of a Certified Class of Members, to Transfer Venue(D.I. 78), and (III) Joinders of Alpine Bank in Venue Transfer Motions (D.I. 77 & 95) wascaused to be made on July 11, 2012, in the manner indicated upon the entities identified below.Date: July 11, 2012 /s/ Gregory W. WerkheiserWilmington, DE Gregory W. Werkheiser (No. 3553)Via Hand Delivery and EmailYoung Conaway Stargatt & Taylor LLP Richards, Layton & Finger, P.A.Michael Nestor (mnestor@ycst.com) Mark Collins (collins@rlf.com)Joseph Barry (jbarry@ycst.com) Zachary Shapiro (shapiro@rlf.com)Donald Bowman, Jr. (dbowman@ycst.com) 920 N. King St.Kenneth Enos (kenos@ycst.com) Wilmington, DE 198011000 N. King St. (Counsel for Cheryl Foley)Wilmington, DE 19801(Counsel to Debtor) Ashby & Geddes William BowdenT. Patrick Tinker (wbowden@ashby-geddes.com)(thomas.p.tinker@usdoj.gov) Ricardo PalacioUnited States Trustee (rpalacio@ashby-geddes.com)844 King Street, Room 2207 500 Delaware Ave.Lockbox #35 Wilmington, DE 19801Wilmington, DE 19801 (Counsel for Cordillera Property Owners Association)Saul Ewing LLPMark Minuti (mminuti@saul.com)222 Delaware Ave.Wilmington, DE 19801(Counsel to Committee)
  8. 8. Ballard Spahr LLP Appel & Lucas, P.C.Tobey Daluz (daluzt@ballardspahr.com) Garry Appel (appelg@appellucas.com)Joshua Zugerman 1660 17th Street(zugermanj@ballardspahr.com) Denver, CO 80202919 N. Market St. (Counsel for Cheryl Foley)Wilmington, DE 19801(Counsel for Alpine Bank) Sherman & Howard L.L.C. Peter Cal (PCAL@shermanhoward.com)Via Hand Delivery Mark Fulford (mfulford@shermanhoward.com)Womble Carlyle Sandridge & Rice, LLP 633 17th St.Matthew Ward Denver, CO 80202Ericka Johnson (Counsel for Cordillera Property Owners222 Delaware Ave. Association)Wilmington, DE 19801(Counsel for Northlight Financial, LLC) Ballard Spahr LLP Vincent Marriott, IIICozen O’Conner, PC (Marriott@ballardspahr.com)Damien Tancredi Sarah Schindler-Williams1201 N. Market St. (schindlerwilliamss@ballardspahr.com)Wilmington, DE 19801 1735 Market St.(Counsel for Cordillera Transition Philadelphia, PA 19103Corporation) (Counsel for Alpine Bank)Via First Class Mail and Email Via First Class MailFoley & Lardner LLP Dickinson Wright PLLCChristopher Celentino Harlan Robins(ccelentino@foley.com) 15 N. 4th St.Erika Moribita (emoribita@foley.com) Columbus, OH 43215Mikel Bistrow (mbistrow@foley.com) (Counsel for Northlight Financial, LLC)402 W. BroadwaySan Diego, CA 92101 Dickinson Wright PLLC(Counsel to Debtor) Kristi Katsma 500 Woodward Ave.Munsch Hardt Kopf & Harr, P.C. Detroit, MI 48226Joseph Wielebinski (Counsel for Northlight Financial, LLC)(jwielebinski@munsch.com)Russell Munsch (rmunsch@munsch.com) Cozen O’Conner, PCJay Ong (jong@munsch.com) Arthur AbramowitzZachery Annable (zannable@munsch.com) 457 Haddonfield Rd.500 N. Akard St. Suite 300Dallas, TX 75201 Cherry Hill, NJ 08002(Counsel to Committee) (Counsel for Cordillera Transition Corporation)
  9. 9. Cozen O’Conner, PCMelissa MaxmanRonald Wick1627 I Street, NWSuite 100Washington, DC 20006(Counsel for Cordillera TransitionCorporation)Cozen O’Conner, PCBrad Breslau707 17th Street, Suite 3100Denver, CO 80202(Counsel for Cordillera TransitionCorporation)Kogan Law Firm, APCMichael Kogan1901 Avenue of the Stars, Suite 1050Los Angeles, CA 90067(Counsel for homeowners)6052668.1