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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LEWIS AND ROCA LLP
Robert M. Charles, Jr. (NV 6593)
3993 Howard Hughes Parkway, Suite 600
Las Vegas, Nevada 89169-5996
Telephone: [phone]
Facsimile: 702.949.8321
E-mail:
[e-mail]
MORRISON & FOERSTER LLP
James E. Hough (NY 2109775) (Admitted pro hac vice)
1290 Avenue of the Americas
New York, New York 10104-0050
Telephone: [phone]
Facsimile: 212. 468.7900
E-mail:
[e-mail]
Attorneys for Plaintiff
JPMORGAN CHASE BANK, N.A.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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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

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Defendants.

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STIPULATION OF DISMISSAL
WITHOUT PREJUDICE

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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.

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STIPULATION OF DISMISSAL
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Recitals

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1.

WHEREAS on December 5, 2008, JPMorgan (in its capacity as Administrative

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Agent, on behalf of the Lenders) commenced the “Completion Guaranty Cases” in the Southern

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District of New York. The Completion Guaranty Cases were ultimately transferred to the United

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States District Court for the District of Nevada. The Completion Guaranty Cases filed against the

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Dismissed Defendants are captioned :

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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

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2.

WHEREAS on December 5, 2008, JPMorgan (in its capacity as Administrative

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Agent, on behalf of the Lenders) also commenced the “UCC Cases” in the United States District
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Court for the District of Nevada (the “UCC Cases”). The UCC Cases filed against the Dismissed
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Defendants are captioned :
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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

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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.

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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.

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STIPULATION OF DISMISSAL
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Corp., Case No. 2:08-cv-01715

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3.

WHEREAS the Completion Guaranty Cases and the UCC Cases were subsequently

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consolidated for discovery purposes, in a base case entitled JPMorgan Chase Bank, N.A. v KB

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Home, et al., Case No. 2:08-cv-01711-PMP-RJJ (United States District Court for the District of

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Nevada).

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4.

WHEREAS on December 9, 2010, JPMorgan (in its individual capacity as Lender),

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Credit Agricole Corporate and Investment Bank and Wells Fargo Bank, N.A. (collectively, the

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“Petitioning Creditors”) filed an involuntary petition under chapter 11 of the United States

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Bankruptcy Code against South Edge, LLC (“South Edge”), commencing a case entitled In re:

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South Edge, LLC, United States Bankruptcy Court for the District of Nevada, Case No. 10-32968-

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BAM (the “South Edge Bankruptcy Case”), and JPMorgan, in its capacities as Administrative

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Agent and a creditor, sought the appointment of an interim and permanent chapter 11 trustee.

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WHEREAS on February 3, 2011, the Bankruptcy Court in the South Edge

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Bankruptcy Case entered an order for relief on the Petitioning Creditors’ involuntary petition, as

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well as an order directing the appointment of a chapter 11 trustee.

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6.

WHEREAS JPMorgan in its capacity as Administrative Agent, together with the

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Settling Builders, proposed and filed in the South Edge Bankruptcy Case the Joint Plan of

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Reorganization Proposed by JPMorgan Chase Bank, N.A., as Administrative Agent Under the

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Prepetition Credit Agreement, and the Settling Builders (Amended as of October 21, 2011), ECF

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No. 1309 (the “Plan”), which Plan was confirmed by order of the Bankruptcy Court dated

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October 27, 2011, ECF No. 1335]. The Plan provides for, among other things, a settlement

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among the Agent and the Settling Builders, and the assignment of South Edge’s real estate and

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certain other assets to the Acquirer, all as defined and provided in the Plan. On November 18,

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2011, the Plan became effective. Pursuant to the Plan, the Settling Builders paid in full the

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amounts sought by JPMorgan pursuant to the repayment guarantees provided by the Settling

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The Settling Builders are all of the Dismissed Defendants with the exception of the Focus Parties and Alameda
Investments, LLC.

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STIPULATION OF DISMISSAL
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Builders (which repayment guarantees had been triggered as a result of the entry of the order for

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relief in the South Edge Bankruptcy Case). In total, the Settling Builders funded more than $330

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million in repayment guarantee and other amounts pursuant to the Plan.

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WHEREAS the Settling Builders, the Focus Parties, and JPMorgan (solely in its

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capacity as Administrative Agent) are parties to the Settlement and Mutual Release dated as of

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October 17, 2011 (the “Settlement Agreement”), under which the parties thereto resolved, among

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other things, all claims and potential claims between the Focus Parties, on the one hand, and the

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Settling Builders, (to the extent practicable and permissible under the Credit Agreement) the

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Administrative Agent, and the Trustee (on behalf of South Edge and its bankruptcy estate), on the

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other hand. Pursuant to the Settlement Agreement, the Focus Parties and various of their

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affiliates received $40.4 million, including $35.4 million paid by the Settling Builders.

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WHEREAS, among other parties, the Settling Builders, JPMorgan (solely in its

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capacity as Administrative Agent), Inspirada Builders, LLC, South Edge (by Inspirada Builders

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LLC) and the Alameda Liquidating Trust, as successor-in-interest to Alameda Investments, LLC,

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are parties to the Settlement Agreement and Mutual Release of Claims dated as of November 8,

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2011 (the “Alameda Settlement Agreement”), under which the parties thereto granted the mutual

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releases provided for therein and agreed to consolidate and allow a single, $56 million claim

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against the Alameda Liquidating Trust in favor of South Edge.

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Stipulation

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IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned

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attorneys for JPMorgan and the Dismissed Defendants, as follows:
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In accordance with the Plan, the Settlement Agreement and the Alameda Settlement

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Agreement, the UCC Cases and Completion Guaranty Cases filed against the Dismissed

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Defendants should be dismissed, in each case without prejudice, and without costs to any party.

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2.

This stipulation may be approved by the Court on an ex parte basis under Federal

Rule of Civil Procedure 41(a)(2).

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STIPULATION OF DISMISSAL
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Dated: December 9, 2011
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By:
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/s/ Anthony P. Sgro
PATTI SGRO & LEWIS
Anthony P. Sgro
720 South 7th Street, 3rd Floor
Las Vegas, NV 89101
Telephone: [phone]
Facsimile: [phone]
WHITE & CASE, LLP
Bryan A. Merryman
Roberto J. Kampfner
633 W. 5th Street, Suite 1900
Los Angeles, CA 90071
Tel: [phone]
Facsimile: [phone]

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:[phone]
Facsimile: 702.949.8321
E-mail:
[e-mail]
James E. Hough (Admitted pro hac vice)
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, NY 10104-0050
Tel.: [phone]
Fax: [phone]
[e-mail]

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: [phone]
Fax: [phone]
[e-mail]
Megan K. Dorsey
KOELLER, NEBEKER, CARLSON,
& HALUCK, LLP
300 S. 4th St., # 500
Las Vegas, Nevada 89101
Tel: [phone]
Fax: [phone]
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: [phone]
Fax: [phone]
[e-mail]
Pat Lundvall (NSBN 3761)
MCDONALD CARANO WILSON LLP
2300 West Sahara Avenue, Suite 1000
Las Vegas, Nevada 89102
Tel: [phone]
Fax: [phone]
Counsel for Defendants Pardee Homes of
Nevada and Weyerhaeuser Real Estate
Company

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STIPULATION OF DISMISSAL
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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: [phone]
Fax: [phone]
[e-mail]

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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: [phone] Fax:
[phone]
[e-mail]

Donald Lattin
MAUPIN OATS COX& LEGOY, PC
4785 Caughlin Pkwy
Reno, Nevada 89509
Tel: [phone]

Donald Lattin
MAUPIN OATS COX& LEGOY, PC
4785 Caughlin Pkwy
Reno, Nevada 89509
Tel: [phone]

Counsel for Defendants KB Home and
KB Home Nevada, Inc.

Counsel Defendants Coleman-Toll Limited
Partnership and Toll Brothers, Inc.

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IT IS SO ORDERED

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_______________________________________
PHILIP M. PRO
UNITED STATES DISTRICT JUDGE

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Dated: December 12, 2011.

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STIPULATION OF DISMISSAL
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