In re:

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Chapter 11

CORDILLERA GOLF CLUB, LLC/ Case No. 12-11893 (CSS)

Debtor. Re: Docket Nos. 1, 69, 71, 78, 79, 92,93

Hearing Date: 7/16/12@ 10:00 a.m.

JOINDER OF THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS IN: (I) 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; AND (II) MOTION OF CORDILLERA PROPERTY OWNERS ASSOCIATION, INC. AND CORDILLERA METROPOLITAN

DISTRICT TO TRANSFER VENUE TO COLORADO

The Official Committee of Unsecured Creditors ("Committee") appointed in the above

captioned, Chapter 11 bankruptcy case of Cordillera Golf Club, LLC ("Debtor"), by and through

its (proposed) undersigned counsel, respectfully files this Joinder (this "Joinder") in: (i) the

Motion filed by 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 [Docket No. 69] (the "First Venue Motion'); and (ii) the Motion filed by

Cordillera Property Owners Association, Inc. ("CPOA") and Cordillera Metropolitan District

(the "District") to Transfer Venue to Colorado [Docket No. 79] ("Second Venue Motion"), and

in support, would respectfully show this Court as follows:

I. BACKGROUND

1. On June 26, 2012 ("Petition Date"), the Debtor filed its voluntary for relief under

Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101, et seq. (the "Bankruptcy

The Debtor in this chapter II case, and the last four digits of its employer tax identification number, is: XX-XXX\317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards, co 81632.

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Code"), thereby initiating the above-captioned case with this Court (the "Bankruptcy Case").

The Debtor remains in control of its business and affairs as a debtor-in-possession pursuant to

sections 1107 and 1108 of the Bankruptcy Code.

2. On July 6, 2012, the United States Trustee filed its Notice of Appointment of

Committee of Unsecured Creditors [Docket No. 86], thereby forming the Comrnittee.2

3. The Debtor is the owner and operator of "The Club at Cordillera" (the "Club"),

located in Edwards Colorado in Eagle County. The Club includes three 18-hole golf courses, a

short course, three tennis centers, fitness facilities, five indoor and outdoor pools, a sununer

camp and clubhouse for children, and riding, hiking and cross-country ski trails. See Declaration

of Daniel L. Fitchett, Jr. in Support of Chapter 11 Petitions and First Day Relief ("Fitchett

Declaration"), ~ 7. The Club is the Debtor's sole asset and only business.

4. The Club is located within the Cordillera residential community in Edwards,

Colorado, and derives revenues through fees and dues related to Club memberships and

marketed to community residents and others. Fitchett Declaration, ~~ 5, 6, 8-12. Upon

information and belief, the sole, ultimate equity interest holder in the Club is Mr. David

Wilhelm, a resident of Colorado. Fitchett Declaration, ~ 20; Consolidated Creditor Matrix

[Docket No. 10], at p. 22. Mr. Wilhelm is also alleged to be a secured creditor of the Debtor,

who, as of the Petition Date, is purportedly owed in excess of $7 million from the Debtor.

Fitchett Declaration,~~ 53, 54.

5. On or about June 26, 2009, the Debtor entered into a loan agreement with Alpine

Bank, under which the Debtor owes Alpine in excess of $12.7 million, which debt is alleged to

2 The Committee's current membership is comprised of the following various homeowners and trade creditors of the Debtor: (i) John D. O'Brien; (ii) Cheryl M. Foley; (iii) Ken Ulickey; (iv) Kevin B. Allen; (v) Dennis S. Meir; (vi) John S. Lemak; and (vii) Ceres Design & Arborscape, LLC. All of the Committee's members have Colorado addresses.

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be secured by substantially all of the Debtor's real and personal property. Fitchett Declaration,

~~ 50-52, 54. Alpine Bank is located in Colorado. Upon information and belief, Alpine Bank

supports the transfer of venue of this Bankruptcy Case to the District of Colorado.

B. The First Venue Motion

6. Over the past several years, the Debtor's relationship with its members,

comprising its largest creditor constituency, has become strained, resulting in ongoing litigation

in Colorado state courts that is a central feature in the Debtor's financial difficulties. First Venue

Motion, at p. 2.

7. On July 3, 2012, Cheryl M. Foley, Thomas Wilner, Jane Wilner, Charles Jackson,

Mary Jackson and Kevin B. Allen filed the First Venue Motion, as individual homeowners in the

Cordillera community, members of the Debtor, and as representatives of a class of homeowner

members (collectively, the "Class Movants") certified in connection with litigation pending in

Colorado state court (the "Class Action"). First Venue Motion, at pp. 3-4.

8. Each of these class member Plaintiffs asserts a noncontingent, unsecured claim

against the Debtor for the return of the member's deposits with the Club, ranging in amount from

$7,500 to $205,000, with an average of approximately $103,000, and for an aggregate total of

approximately $62 million in pre-petition claims. See First Venue Motion, at Exh. A.

Accordingly, this Plaintiff class by far comprises the largest claim constituency in this estate. As

these creditors are comprised of Club members who are, in turn, largely comprised of Cordillera

residents, these Plaintiffs, and their underlying interests, are essentially all located in Colorado.

9. Despite these facts, or perhaps concerned over the implications that would result

from this disclosure, the Debtor failed to include any of these creditors in its List of Creditors

Holding Twenty Largest Unsecured Claims filed with the Court [Docket No. 1] ("List of Twentv

Largest"). According to the Plaintiffs, their members hold individual claims that exceed all but

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one of the unsecured creditors that the Debtor included in its List of Twenty Largest. First

Venue Motion, at p. 5. Notwithstanding, half of the creditors that the Debtor did list are also

located in Colorado.

10. The Class Action involves the Plaintiff members' claims for, inter alia, breach of

contract, inducement, securities violations, and related causes of action against the Debtor and

related parties, and seeks the return of deposits and membership dues and fees paid to the Debtor.

First Venue Motion, at Exh. B. These monies were paid to the Debtor in reliance on certain

express promises, commitments and representations to provide access to Club facilities and other

membership benefits and privileges. First Venue Motion, at Exh. B.

II. On July 5, 2012, this Court entered its Order shortening the requisite notice period

for the First Venue Motion [Docket No. 71], and setting an expedited hearing to consider the

motion for July 16,2012, at 10:00 a.m.

C. The Second Venue Motion

12. On July 5, 2012, the CPOA and the District filed their Second Venue Motion,

through which these movants also joined in the First Venue Motion. The CPOA is one of two

homeowner associations governing the Cordillera community. Its membership is comprised of

private, individual homeowner consumers who also share similar claims and interests as the

Class Movants. Related to this fact, the CPOA is the Defendant in separate litigation

commenced by the Debtor and pending in Colorado state court, apparently contending that the

CPOA is somehow responsible for the determination of numerous of the Debtor's members to

seek to cancel their membership interests. Fitchett Declaration, ~ 6; Second Venue Motion, at

~~ 25-29.

13. In addition to generally acting as a property owners association, the CPOA is

involved in the provision of numerous community operations and public safety and welfare

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services, including, without limitation, the management, maintenance and operation of public

facilities, programs and initiatives. Second Venue Motion, at ~ 26. The CPOA provides for its

operating expenses through assessments charged on the sale of homes in Cordillera.

14. The District is a quasi-municipal "special" district created under the laws of

Colorado as a political subdivision of the state, and constructs and manages all public facilities

and infrastructure in the district. Second Venue Motion, at ~~ 20-21. The District includes

Cordillera, under which the Debtor is one of the District's two largest taxpayers. The District is

thereby a secured creditor of the Debtor pursuant to various ad valorem tax obligations, and is

owed approximately $205,311.31 corresponding to the Debtor's 2011 assessments.

15. On July 9, 2012, this Court entered its Order shortening the requisite notice period

for the Second Venue Motion [Docket No. 92], and setting an expedited hearing to consider that

motion at the same time as the First Venue Motion (July 16,2012, at 10:00 a.m.).

II. JOINDER IN REQUESTED RELIEF

16. The Committee hereby joins in the relief sought in both the First Venue Motion

and the Second Venue Motion, and respectfully prays that this Court enter its order immediately

transferring this Bankruptcy Case, and all related proceedings, to the District of Colorado for

continued administration.

B. Applicable Standards

17. Even where venue is proper, a court may nevertheless transfer a case, "in the

interest of justice or for convenience of the parties." 28 U.S.C. § 1412; Fed. R. Bankr.P.

1014(a)(1). Specifically, 28 U.S.C. § 1412 provides in relevant part that this Court "may transfer

a case or proceeding under title 11 to a district court for another district, in the interest of justice

or for the convenience of the parties." 28 U.S.C. § 1412.

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18. First, the '"interest of justice' component of § 1412 is a broad and flexible

standard which must be applied on a case-by-case basis. It contemplates a consideration of

whether transferring venue would promote the efficient administration of the bankruptcy estate,

judicial economy, timeliness, and fairness ... " In re Manville Forest Products Corp., 896 F.2d

1384, 1391 (2d Cir.l990). Secondly, in consideration of the second clause of this statute- the

convenience ofthe parties- courts typically engage in a factor based analysis that contemplates:

(i) The proximity of creditors of every kind to the Court;

(ii) The proximity ofthe bankrupt (debtor) to the Court;

(iii) The proximity of the witnesses and proof necessary to the administration of the estate and availability of subpoena power for unwilling witnesses;

(iv) The location of the assets;

(v) The enforceability of judgments and economic administration of the estate;

(vi) The ability to receive a fair trial;

(vii) The state's interest in having local controversies decided within its borders, by those familiar with its law; and

(vii) The necessity for ancillary administration if bankruptcy [liquidation] should result.

See In re LaGuardia Associates, L.P., 316 B.R. 832, 837 (Bankr. E.D. Pa. 2004) (citations

omitted); Matter of Continental Airlines, Inc., 133 B.R. 585, 587-88 (Bankr. D. Del. 1991)

(simultaneously addressing interests of justice and convenience of the parties as related

considerations).

C. All Factors Weigh In Support of Transferring This Bankruptcy Case to the District of Colorado

19. Here, it is beyond dispute that the Debtor, and the vast majority of its creditors,

including the Debtors' most significant secured and unsecured creditors - the Class Action

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Plaintiffs, the CPOA, the District, Mr. Wilhelm, Alpine Bank, and the members of the

Committee- are all located in Colorado. There can be no dispute that venue for this Bankruptcy

Case is proper in Colorado.

20. Of course, the Debtor's assets are also uniquely situated in Colorado. This is not

a mere case of a debtor who operates in national or international markets irrespective of its

primary location or place of business. The Debtor has no product to offer other than the real

property and related services and facilities in Colorado. Trade vendors providing services to the

Debtor and those seeking to become customers I members of the Debtor must, with negligible

exceptions, necessarily do so in Colorado. Day to day business operations of the Club occur

only in Colorado.

21. Because this case involves a significant real property development and a

residential community located in Colorado, the State of Colorado has a particularized interest in

the resolution of the disputes implicated in this Bankruptcy Case, which no other state can

approximate. In re Buffets Holdings, Inc., 397 B.R. 725, 730 (Bankr. D. Del. 2008); In re

Portjef!Development Corp., 118 B.R. 184, 193-94 (Bankr. E.D.N.Y. 1990) (even where no other

factor supports transfer, the presence of the debtor's principal, if not sole, asset in the destination

district "overwhelmingly militates in favor oftransfer ... ").

22. As cited in the First Venue Motion, this consideration is paramount where, as

here, the sole or central asset of the estate is comprised of real property. Courts recognize the

unique relationship and interest that a state has in matters affecting its local real estate. See First

Venue Motion, at p. 9. See also In re Enron Corp., 284 B.R. 376, 392 (Bankr. S.D.N.Y. 2002)

("[m]atters concerning real property have always been of local concern and traditionally are

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decided at the situs of the property." Citing and quoting In re Baltimore Food Systems, Inc., 71

B.R. 795, 803 (Bankr. D.S.C. 1986)).

23. As to the remaining relevant factors, the major related litigation involving the

Debtor is currently pending in Colorado state courts, and upon information and belief, the

Debtor's managers, principal offices, and books and records are all located in Colorado.

Moreover, this case remains in its infancy, with only two hearings conducted, and primarily to

consider first day requests on an interim basis. Therefore, transferring venue to Colorado can

only maximize judicial economy and the availability of proof, while minimizing the burden on

litigants and parties in interest. This is particularly true in the event that this case becomes an

orderly sale or liquidation as apparently contemplated. 3 See also In re Abacus Broadcasting

Corp., 154 B.R. 682, 684 (Bankr. W.D. Tex. 1993) (where liquidation is contemplated, the court

should consider the added burden that would result in requiring a trustee to administer assets in a

distant location). Furthermore, the agreements between the Debtor and its creditors are primarily

governed under Colorado law.

24. The totality of the circumstances applied here constitute a compelling case to

transfer venue, not only for the convenience of the parties but also in the interests of justice. The

sole factor weighing in favor of the Debtor's choice of forum is simply deference to the Debtor's

choice of forum. However, here, there exists some indication that the Debtor has sought to

actually discourage creditor participation through its choice of forum. In light of the

overwhelming nexus that Colorado has with the Debtor, its assets, creditors, and major disputes,

and the corresponding lack of any meaningful nexus between the Debtor and Delaware, the

The fact that the Debtor has proposed to sell one of its major golf course assets underscores this fact. Fitchett Declaration, 1111 41-42. Potential purchasers wishing to conduct due diligence in connection with this potential acquisition of a golf course facility must necessarily do so in Colorado and any sale would be subject to applicable Colorado law.

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Debtor's choice of forum appears to have no other basis. Critically, the vast majority of the

Debtor's creditors are comprised of individual, consumer homeowners and members located in

Colorado. Many of these parties are in active litigation with the Debtor and its affiliates in

Colorado. The adverse impact that these parties will suffer in having to participate in this case in

Delaware are greater than might be expected of a business that is accustomed to operating in

different markets, and would be particularly acute. The fact that the Debtor failed to disclose the

locations of its true major unsecured creditors -these same individual homeowner members -is

troubling and evidence of its attempt to disenfranchise unsecured creditors in this case. See also

In re Pine haven Associates, 132 B.R. 982, 990 (Bankr. E.D.N.Y. 1991) (debtor's choice of

forum is not entitled to deference where it appears motivated not by the convenience of the

parties, but "to make this Chapter 11 case more burdensome to creditors and other interested

. ") partres... .

D. Conclusion

25. In sunrmary, the estate's property is comprised of real estate and related

operations uniquely located in residential communities in Colorado. The Debtor's assets,

offices, operations, records, managers, and secured creditors are all located in Colorado. Many

of the Debtor's creditors are private citizens whose participation in this Bankruptcy Case would

be strained and discouraged by the need to litigate in a distant forum. Therefore, as the Debtor

has no connection to Delaware other than its state of incorporation, this Court should exercise its

discretion to transfer this case to the District of Colorado.

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WHEREFORE, PREMISES CONSIDERED, the Official Committee of Unsecured

Creditors respectfully joins in the requests of the Class Movants, CPO A, and District for this

Court's entry of its Order immediately transferring this case to the District of Colorado, and

granting such other and further relief to the Committee as to which it has shown itself to be justly

entitled.

Dated: July 11, 2012

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SAUL EWING LLP

By:-'----:------,--:-::-----:.,--------Mark Minuti (No. 2659) 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6840 Facsimile: (302) 421-5873 E-mail: mminuti@saul.com

-and-

MUNSCH HARDT KOPF & HARR, P.C. Russell L. Munsch Texas Bar No. 14671500 Joseph J. Wielebinski Texas Bar No. 21432400 Jay H. Ong Texas Bar No. 24028756 3 800 Lincoln Plaza 500 N. Akard Street Dallas, TX 75201-6659 Telephone: (214) 855-7500 Facsimile: (214) 978-4335 E-mail: rmunsch@munsch.com E-mail: jwielebinski@munsch.com E-mail: jong@munsch.com

Proposed Counsel for the Official Committee of Unsecured Creditors

10

In re:

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Chapter 11

CORDILLERA GOLF CLUB, LLC, Case No. 12-11893 (CSS)

Debtor.

CERTIFICATE OF SERVICE

I, Mark Min uti, hereby certify that on July 11, 2012, I caused a copy of the foregoing

Joinder of the Official Committee of Unsecured Creditors in: (I) 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;

and (II) Motion of Cordillera Property Owners Association, Inc. and Cordillera

Metropolitan District to Transfer Venue to Colorado to be served on the parties on the

attached service list in the manner indicated therein.

615266.1 7/11112

SAUL EWING LLP

By:.~--~~~--~~-------Mark Minuti (No. 2659) 222 Delaware Avenue, Suite 1200 P. 0. Box 1266 Wilmington, DE 19801-1266 (302) 421-6840

I I

I

CORDILLERA GOLF CLUB, LLC Service List

Via Hand Delivery: Michael R. Nestor, Esquire Joseph M. Barry, Esquire Donald J. Bowman, Esquire Young Conaway Stargatt & Taylor LLP Rodney Square 1000 North King Street Wilmington, DE 19801

Mark Kenney, Esquire Office of the United States Trustee J. Caleb Boggs Federal Building 844 King Street, Suite 2207 Wilmington, DE 19801

Mark D. Collins, Esquire Zachary I. Shapiro, Esquire Richards, Layton & Finger, P.A. One Rodney Square 920 N. King Street Wilmington, DE 19801

Tobey M. Daluz, Esquire Joshua E. Zugarman, Esquire Ballard Spahr LLP 919 N. Market Street, I Ith Floor Wilmington, DE 19801

Damien Tancredi, Esquire Cozen O'Connor, PC 1201 N. Market Street, Suite 1400 Wilmington, DE 19801

William P. Bowden, Esquire Ricardo Palacio, Esquire Ashby & Geddes, P.A. 500 Delaware avenue, 8th Floor P.O. Box 1150 Wilmington, DE 19899

615266.1 7/ll/12

Matthew P. Ward, Esquire Ericka F. Johnson, Esquire Womble Carlyle Sandridge & Rice, LLP 222 Delaware Avenue, Suite 1501 Wilmington, DE 19801

Ellen W. Slights, Esquire United States Attorney's Office District of Delaware 1 007 N. Orange Street, Suite 700 P.O. Box 2046 Wilmington, DE 19899-2046

Via Electronic Mail and First Class Mail: Erika L. Morabito, Esquire Brittney J. Nelson, Esquire Foley Lardner LLP 3000 K Street, N.W., Suite 600 Washington, DC 20007

Christopher Celentino, Esquire Mikel Bistrow, Esquire Dawn Messick, Esquire Foley Lardner LLP 402 W. Broadway, Suite 2100 San Diego, CA 92101

Carl A. Eklund, Esquire Ballard Spahr, LLP 1225 I 7th Street, Suite 2300 Denver, CO 80202

Vincent J. Marriott, III, Esquire Sara Schindler-Williams, Esquire Ballard Spahr, LLP 1735 Market Street, 51st Floor Philadelphia, P A I 9 I 03

I I

I

James J. Holman, Esquire Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103

Arthur J. Abramowitz, Esquire Cozen O'Connor, PC Libertyview, Suite 300 457 Haddonfield Road Cherry Hill, NJ 08002

Brad W. Breslau, Esquire Cozen O'Connor, PC 707 17th Street, Suite 3100 Denver, CO 80202

Melissa Maxman, Esquire Ronald Wick, Esquire Cozen O'Connor, PC 1627 I Street, NW, Suite 1100 Washington, DC 20006

Harland W. Robins, Esquire Dickinson Wright PLLC 15 N. 4th Street Columbus, OH 43215

Kristi A. Katsma, Esquire Dickinson Wright PLLC 500 Woodward Avenue, Suite 4000 Detroit, MI 48226

Garry R. Appel, Esquire Appel & Lucas, P.C. 1660 17th Street, Suite 200 Denver, CO 80202

Peter A. Cal, Esquire Mark L. Fulford, Esquire Sherman & Howard L.L.C. 633 17th Street, Suite 3000 Denver, CO 80202

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Via First Class Mail: Dan White Cordillera Golf Club, LLC 97 Main Street, Suite E202 Edwards, CO 81632

Securities & Exchange Commission Central Regional Office Attn: Office of General Counsel (Bankruptcy) 1801 California Street, Suite 1500 Denver, CO 80202

Colorado Department of Revenue Attn: Bankruptcy Unit 1375 Sherman Street, Room 1375 Denver, CO 80261

Secretary of State Division of Corporations Franchise Tax John G. Townsend Building 401 Federal Street- Suite 4 P.O. Box 898 Dover, DE 19903

Secretary of Treasury 820 Silver Lake Boulevard, Suite 100 P.O. Box 7040 Dover, DE 19903

George S. Canellos, Regional Director Securities & Exchange Commission New York Office 3 World Financial Center, Suite 400 New York, NY 10281-1022

Internal Revenue Service Department of Treasury Ogden, UT 84201-0030

Internal Revenue Service Centralized Insolvency Section 2970 Market Street Philadelphia, P A 19104

I I [

Internal Revenue Service Centralized Insolvency Section P.O. Box 7346 Philadelphia, PA 19101-7346

615266.1 7111112 3