JPMorgan Chase Bank, N.A. v. Focus Group South, LLC et al

Filing 30

ORDER Granting 28 Stipulation to Dismiss without prejudice. Signed by Judge Philip M. Pro on 12/12/2011. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 5 6 7 8 9 10 LEWIS AND ROCA LLP Robert M. Charles, Jr. (NV 6593) 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169-5996 Telephone: 702.949.8320 Facsimile: 702.949.8321 E-mail: rcharles@LRLaw.com MORRISON & FOERSTER LLP James E. Hough (NY 2109775) (Admitted pro hac vice) 1290 Avenue of the Americas New York, New York 10104-0050 Telephone: 212. 468.8000 Facsimile: 212. 468.7900 E-mail: jhough@mofo.com Attorneys for Plaintiff JPMORGAN CHASE BANK, N.A. 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 Plaintiff, 15 16 Case Nos.: Case No. 2:09-cv-01550 Case No. 2:09-cv-01549 Case No. 2:09-cv-01548 Case No. 2:09-cv-01551 Case No. 2:09-cv-01552 Case No. 2:08-cv-01709 Case No. 2:08-cv-01711 Case No. 2:08-cv-01713 Case No. 2:08-cv-01716 Case No. 2:08-cv-01715 JPMorgan Chase Bank, N.A., v. Focus South Group, LLC and John A. Ritter 17 Defendants. 18 19 STIPULATION OF DISMISSAL WITHOUT PREJUDICE 20 21 22 23 24 This Stipulation (the “Stipulation”) is entered as of December 9, 2011 by and between Plaintiff JPMorgan Chase Bank, N.A. in its capacity as Administrative Agent (“JPMorgan”) on the one hand and the following parties (the “Dismissed Defendants”) on the other: Defendants John A. Ritter and Focus South Group, LLC (the “Focus Parties”) Defendants KB Home and KB Home Nevada Inc. Defendants Toll Brothers Inc. and Coleman-Toll Limited Partnership Defendants Weyerhaeuser Real Estate Company and Pardee Homes of Nevada Defendants Beazer Homes USA, Inc. and Beazer Homes Holding Corp. 25 26 27 28 1 STIPULATION OF DISMISSAL ny-1001289 1 Recitals 2 1. WHEREAS on December 5, 2008, JPMorgan (in its capacity as Administrative 3 Agent, on behalf of the Lenders) commenced the “Completion Guaranty Cases” in the Southern 4 District of New York. The Completion Guaranty Cases were ultimately transferred to the United 5 States District Court for the District of Nevada. The Completion Guaranty Cases filed against the 6 Dismissed Defendants are captioned : 1 7 JPMorgan Chase Bank, N.A. v. Focus South Group, LLC and John A. Ritter, Case No. 2:09-cv-01550 JPMorgan Chase Bank, N.A. v. KB Home and KB Home Nevada Inc., Case No. 2:09-cv01549 JPMorgan Chase Bank, N.A. v. Coleman-Toll Limited Partnership and Toll Brothers, Inc., Case No. 2:09-cv-01548 JPMorgan Chase Bank, N.A. v. Weyerhaeuser Real Estate Company and Pardee Homes of Nevada, Case No. 2:09-cv-01551 JPMorgan Chase Bank, N.A. v. Beazer Homes USA, Inc. and Beazer Homes Holdings Corp., Case No. 2:09-cv-01552 8 9 10 11 12 13 2. WHEREAS on December 5, 2008, JPMorgan (in its capacity as Administrative 14 Agent, on behalf of the Lenders) also commenced the “UCC Cases” in the United States District 15 Court for the District of Nevada (the “UCC Cases”). The UCC Cases filed against the Dismissed 16 2 Defendants are captioned : 17 JPMorgan Chase Bank, N.A. v. Focus South Group, LLC and John A. Ritter, Case No. 2:08-cv-01709 JPMorgan Chase Bank, N.A. v. KB Home and KB Home Nevada Inc., Case No. 2:08-cv01711 JPMorgan Chase Bank, N.A. v. Coleman-Toll Limited Partnership and Toll Brothers, Inc., Case No. 2:08-cv-01713 JPMorgan Chase Bank, N.A. v. Weyerhaeuser Real Estate Company and Pardee Homes of Nevada, Case No. 2:08-cv-01716 JPMorgan Chase Bank, N.A. v. Beazer Homes USA, Inc. and Beazer Homes Holdings 18 19 20 21 22 23 1 25 JPMorgan also filed a Completion Guaranty case against Meritage Homes Corp. and Meritage Homes of Nevada, Inc. (“Meritage”) (JPMorgan Chase Bank, N.A. v. Meritage Homes Corp. and Meritage Homes of Nevada, Inc., Case No. 2:09-cv-01547). Subject to the Meritage defendants’ consent, JPMorgan proposes to dismiss the case against the Meritage defendants without prejudice. 26 2 24 27 JPMorgan also filed a UCC case against Meritage (JPMorgan Chase Bank, N.A. v. Meritage Homes Corp. and Meritage Homes of Nevada, Inc., Case No. 2:08-cv-01717). Subject to the Meritage defendants’ consent, JPMorgan proposes to dismiss the UCC Case against the Meritage defendants without prejudice. 28 2 STIPULATION OF DISMISSAL ny-1001289 1 Corp., Case No. 2:08-cv-01715 2 3. WHEREAS the Completion Guaranty Cases and the UCC Cases were subsequently 3 consolidated for discovery purposes, in a base case entitled JPMorgan Chase Bank, N.A. v KB 4 Home, et al., Case No. 2:08-cv-01711-PMP-RJJ (United States District Court for the District of 5 Nevada). 6 4. WHEREAS on December 9, 2010, JPMorgan (in its individual capacity as Lender), 7 Credit Agricole Corporate and Investment Bank and Wells Fargo Bank, N.A. (collectively, the 8 “Petitioning Creditors”) filed an involuntary petition under chapter 11 of the United States 9 Bankruptcy Code against South Edge, LLC (“South Edge”), commencing a case entitled In re: 10 South Edge, LLC, United States Bankruptcy Court for the District of Nevada, Case No. 10-32968- 11 BAM (the “South Edge Bankruptcy Case”), and JPMorgan, in its capacities as Administrative 12 Agent and a creditor, sought the appointment of an interim and permanent chapter 11 trustee. 13 5. WHEREAS on February 3, 2011, the Bankruptcy Court in the South Edge 14 Bankruptcy Case entered an order for relief on the Petitioning Creditors’ involuntary petition, as 15 well as an order directing the appointment of a chapter 11 trustee. 16 6. WHEREAS JPMorgan in its capacity as Administrative Agent, together with the 17 3 Settling Builders, proposed and filed in the South Edge Bankruptcy Case the Joint Plan of 18 Reorganization Proposed by JPMorgan Chase Bank, N.A., as Administrative Agent Under the 19 Prepetition Credit Agreement, and the Settling Builders (Amended as of October 21, 2011), ECF 20 No. 1309 (the “Plan”), which Plan was confirmed by order of the Bankruptcy Court dated 21 October 27, 2011, ECF No. 1335]. The Plan provides for, among other things, a settlement 22 among the Agent and the Settling Builders, and the assignment of South Edge’s real estate and 23 certain other assets to the Acquirer, all as defined and provided in the Plan. On November 18, 24 2011, the Plan became effective. Pursuant to the Plan, the Settling Builders paid in full the 25 amounts sought by JPMorgan pursuant to the repayment guarantees provided by the Settling 26 3 27 The Settling Builders are all of the Dismissed Defendants with the exception of the Focus Parties and Alameda Investments, LLC. 28 3 STIPULATION OF DISMISSAL ny-1001289 1 Builders (which repayment guarantees had been triggered as a result of the entry of the order for 2 relief in the South Edge Bankruptcy Case). In total, the Settling Builders funded more than $330 3 million in repayment guarantee and other amounts pursuant to the Plan. 4 7. WHEREAS the Settling Builders, the Focus Parties, and JPMorgan (solely in its 5 capacity as Administrative Agent) are parties to the Settlement and Mutual Release dated as of 6 October 17, 2011 (the “Settlement Agreement”), under which the parties thereto resolved, among 7 other things, all claims and potential claims between the Focus Parties, on the one hand, and the 8 Settling Builders, (to the extent practicable and permissible under the Credit Agreement) the 9 Administrative Agent, and the Trustee (on behalf of South Edge and its bankruptcy estate), on the 10 other hand. Pursuant to the Settlement Agreement, the Focus Parties and various of their 11 affiliates received $40.4 million, including $35.4 million paid by the Settling Builders. 12 8. WHEREAS, among other parties, the Settling Builders, JPMorgan (solely in its 13 capacity as Administrative Agent), Inspirada Builders, LLC, South Edge (by Inspirada Builders 14 LLC) and the Alameda Liquidating Trust, as successor-in-interest to Alameda Investments, LLC, 15 are parties to the Settlement Agreement and Mutual Release of Claims dated as of November 8, 16 2011 (the “Alameda Settlement Agreement”), under which the parties thereto granted the mutual 17 releases provided for therein and agreed to consolidate and allow a single, $56 million claim 18 against the Alameda Liquidating Trust in favor of South Edge. 19 Stipulation 20 IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned 21 22 attorneys for JPMorgan and the Dismissed Defendants, as follows: 1. In accordance with the Plan, the Settlement Agreement and the Alameda Settlement 23 Agreement, the UCC Cases and Completion Guaranty Cases filed against the Dismissed 24 Defendants should be dismissed, in each case without prejudice, and without costs to any party. 25 26 2. This stipulation may be approved by the Court on an ex parte basis under Federal Rule of Civil Procedure 41(a)(2). 27 28 4 STIPULATION OF DISMISSAL ny-1001289 1 Dated: December 9, 2011 2 By: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 /s/ Anthony P. Sgro PATTI SGRO & LEWIS Anthony P. Sgro 720 South 7th Street, 3rd Floor Las Vegas, NV 89101 Telephone: (702) 385-9595 Facsimile: (702) 386-2737 WHITE & CASE, LLP Bryan A. Merryman Roberto J. Kampfner 633 W. 5th Street, Suite 1900 Los Angeles, CA 90071 Tel: (213) 620-7729 Facsimile: (213) 452-2329 By: /s/ Robert M. Charles, Jr. LEWIS AND ROCA LLP Robert M. Charles, Jr. 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169-5996 Telephone:702.949.8320 Facsimile: 702.949.8321 E-mail: rcharles@LRLaw.com James E. Hough (Admitted pro hac vice) MORRISON & FOERSTER LLP 1290 Avenue of the Americas New York, NY 10104-0050 Tel.: 212.468.8000 Fax: 212.468.7900 jhough@mofo.com Counsel for Defendants John A. Ritter, and Focus South Group, LLC By: /s/ Andrew J. Detherage Andrew J. Detherage Karoline E. Jackson BARNES & THORNBURG LLP 11 S. Meridian Street Indianapolis, Indiana 46204 Tel: (317) 236-1313 Fax: (317) 231-7433 Andy.Detherage@btlaw.com Megan K. Dorsey KOELLER, NEBEKER, CARLSON, & HALUCK, LLP 300 S. 4th St., # 500 Las Vegas, Nevada 89101 Tel: (702) 853-5500 Fax: (702) 853-5599 Counsel for Defendants Beazer Homes Holdings Corp. and Beazer Homes USA, Inc. Counsel for JPMorgan Chase Bank, N.A. By: /s/ Fredric C. Nelson Fredric C. Nelson (CA SBN 48402) John R. Foote (CA SBN 99674) NIXON PEABODY LLP One Embarcadero Center, 18th Floor San Francisco, California 94111 Tel: (415) 984-8200 Fax: (415) 984-8300 fnelson@nixonpeabody.com Pat Lundvall (NSBN 3761) MCDONALD CARANO WILSON LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, Nevada 89102 Tel: (702) 873-4100 Fax: (702) 873-9966 Counsel for Defendants Pardee Homes of Nevada and Weyerhaeuser Real Estate Company 23 24 25 26 27 28 5 STIPULATION OF DISMISSAL ny-1001289 1 2 3 4 5 By: /s/ Bruce E. Van Dalsem Bruce E. Van Dalsem Michael T. Lifrak QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 S. Figueroa Street, 10th Floor Los Angeles, California 90017 Tel: (213) 443-3000 Fax: (213) 443-3100 brucevandalsem@quinnemanuel.com 6 7 8 9 10 11 By: /s/ Mark T. Drooks Mark T. Drooks Thomas V. Reichert Benjamin D. Lichtman BIRD, MARELLA, BOXER, WOLPERT, NESSIM, DROOKS & LINCENBERG, P.C. 1875 Century Park East Los Angeles, California 90067 Tel: (310) 201-2100 Fax: (310) 301-2110 mtd@birdmarella.com Donald Lattin MAUPIN OATS COX& LEGOY, PC 4785 Caughlin Pkwy Reno, Nevada 89509 Tel: (775) 827-2000 Donald Lattin MAUPIN OATS COX& LEGOY, PC 4785 Caughlin Pkwy Reno, Nevada 89509 Tel: (775) 827-2000 Counsel for Defendants KB Home and KB Home Nevada, Inc. Counsel Defendants Coleman-Toll Limited Partnership and Toll Brothers, Inc. 12 13 IT IS SO ORDERED 14 16 _______________________________________ PHILIP M. PRO UNITED STATES DISTRICT JUDGE 17 Dated: December 12, 2011. 15 18 19 20 21 22 23 24 25 26 27 28 6 STIPULATION OF DISMISSAL ny-1001289

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