1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G o rd o n & R ee s L L P 1 0 1 W es t B ro a d w a y , S u it e 2 0 0 0 S a n D ie g o , C A 9 2 1 0 1 Jeffrey D. Cawdrey (SBN 120488) Megan M. Adeyemo (CO BN 36721) GORDON & REES LLP
101 W. Broadway, Suite 2000 San Diego, CA 92101
Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Attorneys for Debtor
Warner Springs Ranchowners Association
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF CALIFORNIA In Re
WARNER SPRINGS RANCHOWNERS ASSOCIATION Debtor, ) ) ) ) ) ) ) ) ) ) ) ) ) )
CASE NO. 12-03031-LA11 Chapter 11
SECOND EX PARTE MOTION FOR ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM
Date: N/A
Time: N/A
Dept: 2
Judge: Louise DeCarl Adler
TO THE HONORABLE LOUISE DECARL ADLER, UNITED STATES BANKRUPTCY JUDGE:
WARNER SPRINGS RANCHOWNERS ASSOCIATION, debtor and debtor-in-possession herein (“Debtor”), by and through its counsel, Gordon & Rees LLP, hereby moves this Court for entry of an order establishing a bar date for filing proofs of claim and approving the form, manner and notice thereof, and states as follows:
I. BACKGROUND AND PROCEDURAL HISTORY
Debtor filed a voluntary petition pursuant to Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on March 1, 2012 (the “Petition Date”).
Debtor was formed in May 1983 pursuant to Articles of Incorporation as a California non-profit mutual benefit corporation, organized, among other things, to provide for the
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-SECOND EX PARTE MOTION FOR ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM
G o rd o n & R ee s L L P 1 0 1 W es t B ro a d w a y , S u it e 2 0 0 0 S a n D ie g o , C A 9 2 1 0 1
management, maintenance, preservation, and control of the real property commonly known as Warner Springs Ranch (the “Ranch”). As an alternative to a timeshare development, the original developer, Warner Springs Ranch, Ltd., contemplated the sale of 2,000 undivided tenancy-in-common fee interests (“UDIs”), each of which included a payment obligation of certain assessments, special and monthly maintenance (the “Monthly Dues”). The administration, operation, maintenance, repair, and restoration of the Ranch is the responsibility of Debtor, which acts through its board of directors (the “Board”).
The Ranch consists of approximately 2,380 acres of rural lands in the mountain region of northern San Diego County. It straddles highway 79, about 15 miles north of Santa Ysabel, 12 miles northeast of Lake Henshaw and 20 miles south of Aguanga. The Ranch’s amenities include 250 casitas, an 18 hole golf course, tennis courts, natural hot springs, an aquatics center, an equestrian center, an airport, a spa, and two restaurants.
This bankruptcy case was filed to complete a sale of the Ranch.
II. RELIEF REQUESTED
Debtor believes that it is necessary and appropriate for the Court to fix a bar date for filing proofs of claim as requested herein. In advance of confirming a plan of reorganization, it is essential to ascertain the full nature, extent and scope of the prepetition claims asserted against the estate. Establishing a bar date will allow Debtor to quantify the extent and scope of all claims asserted against the estate, determine the feasibility and facilitate the establishment of appropriate reserves under a plan of reorganization.
Rule 3003(c) of the Federal Rules of Bankruptcy Procedure controls the filing of proofs of claims. Pursuant to Fed. R. Bankr. P. 3003(c)(3), the Court shall fix the time within which proofs of claim or interest may be filed. The Court’s Local Bankruptcy Rules do not specify a time by which proofs of claim or interest must be filed.
Debtor requests entry of an Order pursuant to Fed. R. Bankr. P. 3003(c)(3) establishing
February 22, 2013 (the “Claims Bar Date”) as the final date by which proofs of claim against
Debtor’s estate must be filed, and approving Debtor’s proposed form and manner of notice thereof.
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Debtor previously filed a motion for order establishing a bar date for filing proofs of claim along with a proposed order. This Court did not approve such proposed order and suggested that Debtor make clear in the notice of the claims bar date that UDI holders who are listed in Debtor’s schedules in the correct amount and are not disputed should not file claims. Otherwise, that Court noted, it could foresee a proliferation of claims being filed which are unnecessary. The Court further stated that while the information in the proposed notice is included, it is not emphasized. [Docket No. 575]
To address the Court’s comments, Debtor has reworked the Notice to provide for further notice to UDI holders. Of note is that the Debtor did not list the UDI holders in the Debtor’s Schedules as the Debtor does not consider the UDI holders as creditors.1 Rather, for
convenience and to provide notice, Debtor listed the UDI holders in it List of Equity Security Holders, even though the UDI holders are not true equity holders as would be the case for shareholders of a corporation. Moreover, none of the UDI holders listed in the list of equity security holders were listed by amount or as disputed. Accordingly, Debtor has added the following language to the Notice:
UDI HOLDERS WHO ARE LISTED IN THE LIST OF EQUITY SECURITY
HOLDERS2OF WARNER SPRINGS RANCHOWNERS ASSOCIATION OR WHOSE
INTEREST ARISES SOLELY OUT OF THEIR HOLDING OF A UDI DO NOT NEED TO FILE A PROOF OF CLAIM OR INTEREST.
Debtor submits that all persons and entities including, without limitation, individuals, partnerships, corporations, estates, trusts and governmental units (collectively, the “Creditors”) holding or wishing to assert against Debtor any prepetition claims, as further defined in § 101(5) of the Bankruptcy Code (the “Claims”), are required to file against Debtor, on or before the Claims Bar Date, a completed and executed proof of claim conforming substantially to Official Form B-10. Creditors holding or wishing to assert Claims against Debtor of the types set forth in clauses (a) through and including (d) below, do not need to file proofs of claim at this time:
1
There a few UDI Holders who also hold unsecured claims and those UDI Holders and their claims have been listed in the Debtor’s Schedules.
2
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-SECOND EX PARTE MOTION FOR ORDER ESTABLISHING BAR DATE FOR FILING PROOFS OF CLAIM
G o rd o n & R ee s L L P 1 0 1 W es t B ro a d w a y , S u it e 2 0 0 0 S a n D ie g o , C A 9 2 1 0 1
a. Claims listed in the Debtor’s Schedules of Liabilities (“Schedules”), or any amendments thereto, which are not therein listed as “contingent,” “unliquidated” or “disputed,” and the Creditors holding such Claims agree with the amount of such claims. If a Creditor files a Claim, such Claim will be deemed to supersede any and all claims listed in Debtor’s Schedules.
b. Claims on account of which a proof of claim has already been properly filed with the Court;
c. Claims previously allowed by order of the Court;
d. Claims allowable under § 503 of the Bankruptcy Code as expenses of administration; and
e. UDI owners with a claim to the proceeds of the sale of the Ranch.
Debtor submits that Creditors should be required to file their proofs of claim by the Claims Bar Date, and that any Creditor who fails to do so shall, with respect to any such Claims, be barred, estopped, restrained, and enjoined from asserting any such Claims against the Debtor, including filing a proof of claim with respect thereto, and shall not be treated as a Creditor against the Debtor and the estate for the purposes of voting upon or receiving distributions under any plan of Debtor. Fed. R. Bankr. P. 3003(c)(2).
Debtor further submits that a proof of claim against Debtor arising out of the rejection of any executory contract or unexpired lease, the recovery of an avoidable transfer or for certain taxes pursuant to § 502(g), (h) and (i) of the Bankruptcy Code, must be filed on or before the latter of the Claims Bar Date, thirty days after the entry of an order of judgment avoiding the transfer, or thirty days following an assessment for priority taxes, respectively.
Pursuant to Local Bankruptcy Rule 3003-2, the form of notice Debtor proposes to provide to all creditors and parties in interest, excluding the UDI owners, as authorized by the Court’s order authorizing Debtor to limit notice [Docket No. 42], is attached hereto and incorporated herein as Exhibit A. Pursuant to this Court’s order authorizing Debtor to limit notice [Docket No. 42], the Notice of claims Bar Date will be posted in a conspicuous, easily ascertainable location on the Gordon & Rees website.
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Accordingly, Debtor submits that the bar date can be set without opportunity for notice and a hearing, and that the notice requirements of Local Bankruptcy Rule 2002-1 do not apply to the relief requested in this Motion.
WHEREFORE, Debtor respectfully requests entry of an order (i) establishing February 22, 2013 as the deadline to file proofs of claim against Debtor and the estate as set forth herein; (ii) approving the form of notice attached hereto and (iii) granting such other and further relief the Court deems just and proper.
Dated: December 13, 2012 GORDON & REES LLP
By: /s/ Jeffrey D. Cawdrey
Jeffrey D. Cawdrey Megan M. Adeyemo
Attorneys for Debtor Warner Springs Ranchowners Association
