MVCC- Motion for Order Extending Stay Pending Appeal.PDF

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Quarles & Brady LLP
Firm State Bar No. 00443100
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
TELEPHONE 602.229.5200
Attorneys for Debtor and Debtor-in-
Possession
John A. Harris (#014459)
john.harris@quarles.com
Robert P. Harris (#011523)
robert.harris@quarles.com
In re:
MOON VALLEY COUNTRY CLUB,
IN THE UNITED STATES BANKRUPTCY COURT
Debtor.
FOR THE DISTRICT OF ARIZONA
Chapter 11
Case No. 2:12-bk-16548-BMW
EMERGENCY MOTION FOR ORDER
EXTENDING STAY PENDING
APPEAL
Hearing Date: March 29, 2013
Hearing Time: 2:45 p.m.
Location: 230 N. First Avenue,
Courtroom 602, Phoenix, AZ
MOON VALLEY COUNTRY CLUB, the debtor and debtor-in-possession (the
"Debtor") in the above-captioned Chapter 11 case, hereby requests that the Court extend
through April 30, 2013 the stay pending appeal granted under the Court's "Order Granting
Stay Pending Appeal" dated March 12, 2013 [Docket No. 239] (the "3/12/13 Stay Order").
Currently, the stay pending appeal runs through April 10, 2013. However, the Court has
scheduled a confirmation hearing on the Debtor's Amended Plan (described below) for April
12, 2013. Accordingly, an extension of the stay pending appeal is necessary to allow the
Court to consider the Debtor's proposed Amended Plan, and to allow that Amended Plan to
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become effective if confirmed (which was the stated purposed of the stay pending appeal
granted in the 3/12/13 Stay Order).
In further support of its emergency request for an extension of the stay, the Debtor
states as follows:
1. On March 19, 2013, the Debtor filed its "First Amended And Restated Plan Of
Reorganization Of Moon Valley Country Club" [Docket No. 242] (the "Amended Plan").
Because of the limited duration of the current stay pending appeal, the Debtor requested that
the Court schedule an expedited confirmation hearing on the Amended Plan [Docket No.
243]. The Court has scheduled the confirmation hearing for April 12, 2013.
2. Previously, the Court held a three day evidentiary confirmation hearing with
respect to the Debtor's initial "Plan of Reorganization Of Moon Valley Country Club" [Docket
No. 132] (as amended by certain propose amendments on or before February 11, 2013, the "Initial
Plan"), on January 16 and 17, and February 11, 2013. Thereafter, the Court entered its Order
dated March 6, 2013 [Docket No. 221] (the "3/6/13 Order") and related Memorandum Decision
[Docket No. 220] (the "Memorandum Decision"), in which the Court both denied confirmation of
the Initial Plan, and granted stay relief in favor of MV AZ, LLC ("MVAZ" or "Tokoph
Noteholder"). 1
3. On March 11, 2013, the Court held a hearing on the Debtor's "Motion For Stay
Pending Appeal" [Docket No. 224] (the "Stay Motion"), in which the Debtor requested a stay
pending appeal of the final stay relief ruling contained in the 3/6/13 Order and Memorandum
Decision. 2 At the March 11 hearing, the Court granted a stay pending appeal for 30 days, through
and including April 10, 2013, specifically to allow the Debtor to present an amended plan and for
1 The Debtor filed a Notice of Appeal of the final stay relief ruling contained in the Order
and the Memorandum Decision [Docket No. 222]. This appeal is pending in the United Stated
District Court as Case No. CV-13-00495-PHX-DGC.
2 The final stay relief ruling presented immediate and irreparable harm to the Debtor
because MVAZ noticed a trustee's sale of the Debtor's property prepetition, and had continued
that trustee's sale to March 12, 2013.
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proceedings to be conducted on that amended plan. See "Order Granting Stay Pending Appeal
dated March 12, 2013 [Docket No. 239]. The Court instructed the Debtor to file its Amended
Plan on or before March 21, 2013. Id. The Debtor filed the Amended Plan on March 19, 2013.
4. In its Memorandum Decision, the Court found that the value of the collateral for
the MVAZ secured claim is $6,000,000. In the Amended Plan, the Debtor has revised the
treatment of the MVAZ secured claim (i.e., the Class 3 Noteholder Secured Claim) so that
MVAZ receives payments totaling $6,000,000 plus interest (including an immediate cash
payment of $2,500,000 on the Effective Date) so that the treatment of the MVAZ secured claim
under the Amended Plan satisfies the requirements for confirmation given the Court's valuation
finding. The additional $1,500,000 cash payment to MVAZ included in the Amended Plan is
funded from third party contributions made by members and neighbors in the Moon Valley
community. (The contributions already have been collected, and are immediately available to
provide funding for the Amended Plan.)
5. Given that (i) the Court has scheduled a confirmation hearing on the Amended
Plan for April 12, 2013, (ii) the stay pending appeal granted by the Court under the 3/12/13 Stay
Order currently is set to expire on April 10, 2013, and (iii) MVAZ has continued its trustee's sale
to April 11, 2013 (one day before the confirmation hearing), the Debtor needs the Court to extend
the stay pending appeal to allow the Court to hold the confirmation hearing on the Amended Plan,
and, if the Court determines that the Amended Plan meets the requirements for confirmation, to
allow time for an order confirming the Amended Plan to be entered and the Amended Plan to go
effective before the expiration of the extended stay. 3
6. Under these circumstances, the Debtor requests that the stay pending appeal under
the 3/12/13 Order be extended through April 30, 2013. The grounds that justify a stay pending
3 The Debtor also requests that the Court extend the stay pending appeal a sufficient period
to allow any necessary post-judgment proceedings on the order with respect to the Amended Plan
to occur under the normal timeframes, rather than unnecessary emergency timeframes caused by
an imminent foreclosure by MVAZ.
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appeal in this matter are set forth in the Debtor's Stay Motion, and apply equally in this Extension
Motion. 4
Based on the foregoing, and the entire record before the Court, the Debtor respectfully
requests that the Court enter an Order extending the stay pending appeal under the 3/12/13 Order
through April 30, 2013.
RESPECTFULLY SUBMITTED this 27th day of March, 2013.
COPIES of the foregoing sent via
e-mail this 27th day of March, 2013,
to all parties on the attached service list
/s/ Sybil Taylor Aytch
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
By /s/ Robert P. Harris
John A. Harris
Robert P. Harris
Attorneys for Debtor and Debtor-in-Possession
4 The Stay Motion is incorporated by reference in this Extension Motion.
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ELIZABETH C. AMOROSI
OFFICE OF THE U.S. TRUSTEE
230 N. FIRST AVENUE, SUITE 204
PHOENIX, AZ 85003
Elizabeth.C.Amorosi@usdoj.gov
RICHARD M. LORENZEN, ESQ.
PERKINS COIE LLP
2901 N. CENTRAL AVENUE, SUITE 2000
PHOENIX, AZ 85012-2788
RLorenzen@perkinscoie.com
JOHN H. ANDERSON, ESQ.
MATTHEW H. MASON, ESQ.
CARSON MESSINGER PLLC
P. O. BOX 33907
PHOENIX, AZ 85067
janderson@carsonlawfirm.com
mmason@carsonlawfirm.com
LORI A. LEWIS
MARICOPA COUNTY ATTORNEY’S OFFICE
CIVIL SERVICES DIVISION
222 N. CENTRAL AVENUE, SUITE 1100
PHOENIX, AZ 85004
LewisL01@mcao.maricopa.gov
THOMAS J. MCDONALD, ESQ.
GAMMAGE & BURNHAM PLC
TWO N. CENTRAL AVENUE., 15TH FLOOR
PHOENIX, AZ 85004
tmcdonald@gblaw.com
JAMES KNELLER, ESQ.
LAW OFFICE OF JAMES KNELLER P.C.
4800 N SCOTTSDALE ROAD, SUITE 2900
SCOTTSDALE, AZ 85251
jim@jimknellerlaw.com
PATRICK CLISHAM
ENGELMAN BERGER, P.C.
3636 N. CENTRAL AVENUE, SUITE 700
PHOENIX, AZ 85012
pac@eblawyers.com
QB\18738427.1
MOON VALLEY COUNTRY CLUB
CASE NO. 2:12-bk-16548-JMM
E-MAIL SERVICE LIST
RICHARD J. CUELLAR
OFFICE OF THE U.S. TRUSTEE
230 N. FIRST AVENUE, SUITE 204
PHOENIX, AZ 85003
ric.j.cuellar@usdoj.gov
JOHN J. FRIES, ESQ.
RYLEY, CARLOCK & APPLEWHITE
ONE N. CENTRAL AVENUE, SUITE 1200
PHOENIX, AZ 85004-4417
jfries@rcalaw.com
JONATHAN B. FRUTKIN, ESQ.
THE FRUTKIN LAW FIRM, PLC
101 N.FIRST AVENUE, SUITE 2410
PHOENIX, AZ 85003
jfrutkin@frutkinlaw.com
ROBERT J. MILLER, ESQ.
BRYAN CAVE LLP
TWO N. CENTRAL AVENUE, SUITE 2200
PHOENIX, AZ 85004-4406
rjmiller@bryancave.com
ALAN R. COSTELLO, ESQ.
COSTELLO LAW FIRM
2999 N. 44TH STREET, SUITE 600
PHOENIX, AZ 85018
acostello@costello-law.com
PATRICIA J. BOLAND, ESQ.
CITY OF PHOENIX
CITY ATTORNEY'S OFFICE CIVIL DIVISION
200 W. WASHINGTON STREET, SUITE 1300
PHOENIX, AZ 85003-1611
patricia.boland@phoenix.gov
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