Opinion
Case Nos. 93-41954-HJB, 93-41955-HJB, 94-42288-HJB
July 24, 2002
RECOMMENDATION OF BANKRUPTCY JUDGE THAT DISTRICT COURT WITHDRAW THE ORDER OF REFERENCE
In accordance with an understanding reached with the United States District Court for the District of Colorado (Weinshienk, D.J. and Schlatter, M.J.) (jointly the "Colorado District Court"), I respectfully recommend to the United States District Court for the District of Massachusetts (the "Massachusetts District Court") that, pursuant to 28 U.S.C. § 157(d) , the Massachusetts District Court withdraw the reference of the above-captioned cases to the United States Bankruptcy Court for the District of Massachusetts (the "Bankruptcy Court"), for the cause shown below, and conduct all further proceedings with respect thereto.
28 U.S.C. § 157(d) provides in relevant part:
The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party for cause shown.
While this section does not expressly grant authority to a bankruptcy court to make such a recommendation, I believe that I have authority to do so inasmuch as the bankruptcy court is a unit of the district court and further pursuant to 11 U.S.C. § 105(a) ("The court may issue any order, process or judgment that is necessary or appropriate to carry out the provisions of this title. . .).
The original reference from the Massachusetts District Court is authorized by 28 U.S.C. § 157(a) and is effected by Massachusetts District Court Local Rule 201.
I. BACKGROUND AND TRAVEL OF THE CASE
I acknowledge that the Colorado District Court does not agree with all of the characterizations set forth below.
On July 15, 1993, involuntary Chapter 7 petitions were filed in this Court against Indian Motocycle Company, Inc. and Indian Motocycle Apparel and Accessories Company, Inc., affiliated corporations. In February of 1994, Indian Motocycle Manufacturing, Inc. filed a voluntary Chapter 11 petition in the United States Bankruptcy Court for the District of North Carolina. Venue was transferred to this Court, and that case was subsequently converted to Chapter 7 as well. In January of 1995, I ordered that the three estates be jointly administered and a single Chapter 7 trustee was appointed.
In 1995, a federal receivership proceeding was instituted in the Colorado District Court against Indian Motorcycle Manufacturing, Inc. (a fourth company), entitled Eller Industries, Inc. v. Indian Motorcycle Manufacturing, Inc., Civ. Action 95-Z-777 (D. Colo.) (the "Receivership Proceeding"). Sterling Consulting Corporation was appointed Receiver. In October of 1995, the Receiver claimed to have purchased 100% of the stock of the bankruptcy debtors as well as certain claims against them. Thus, the Receiver now claimed to be both a creditor of the bankruptcy debtors and the owner of their equity.
Shortly after the commencement of the Receivership Proceeding, the trustee in bankruptcy of these bankruptcy estates (the "Trustee") found himself engaged in ongoing negotiations, disputes and litigation with the Receiver. Those disputes emanated primarily from the competing claims of the bankruptcy and receivership estates to the Indian Motorcycle trademarks and intellectual property (jointly the "Trademarks") and from the intertwined relationships between the creditors and stockholders of the bankruptcy and receivership estates. The effort to resolve those disputes has engendered, from time to time, great contentiousness by the Trustee and the Receiver in dealing with each other and with third parties.
The first appointed Trustee and his successor are interchangeably referred to as the "Trustee," unless otherwise noted.
After considerable negotiation, the original Trustee and the Receiver entered into an agreement for the joint sale of the assets by the bankruptcy estates and the receivership estate. On or about December 12, 1995, the Receiver filed with the Bankruptcy Court its "Motion for Approval of Receiver's Request for Procedural Order Approving a Procedural Plan for a Coordinated Sale and Coordinated Interim Administration of the Massachusetts Bankruptcy Cases and the Receivership" (the "Coordinated Sale Motion"). Differences between the parties remained, but they too were settled, and the Trustee and the Receiver subsequently filed their "Joint Motion for Approval of Stipulation Regarding Coordinated Sale and Coordinated Administration." I approved that Stipulation. In essence, the parties agreed that the value in the Trademarks was so great that all creditors in both the receivership and bankruptcy cases would be paid in full. Accordingly, the Receiver and the Trustee agreed to temporarily put aside their conflicting claims to the Trademarks and work together to locate a buyer. Further, in light of the seemingly overlapping jurisdiction by the Bankruptcy Court and the Colorado District Court over the Trademarks until title thereto was determined, it was agreed that the Receiver would take the lead role in locating and negotiating with an appropriate buyer, but no sale could be consummated absent the joint approval of the Colorado District Court and the Bankruptcy Court.
Problems continued, notwithstanding the Receiver's earlier promises to ensure that all bankruptcy creditors would be paid in full. When a buyer (IMCOA Licensing America, Inc. ("IMCOA")) for the Trademarks was located in late 1998, the Receiver sought in the sale agreements to impose a cap on funds to be paid on account of the bankruptcy estate creditors or exclude some bankruptcy estate creditors altogether. When I indicated my inclination not to approve the sale under those conditions, the Trustee and the Receiver agreed to settle their newest dispute by placing in escrow under their joint signature and control the sum of $3.5 million of the total sale price of $17.3 million (plus other consideration). Although the Receiver reserved his right to assert competing claims to those escrowed funds, the Trustee assured me that the amount escrowed was more than sufficient to pay all bankruptcy estate claims in full. Accordingly, on January 13, 1999, I approved the sale to IMCOA. But, in a separate unpublished Memorandum of Decision of even date, I severely criticized the Receiver for what appeared me to be inappropriate conduct, including actions seemingly designed to goad a jurisdictional dispute between the Bankruptcy Court and the Colorado District Court.
The descriptions in the aforesaid Memorandum of Decision, dated January 13, 1999, are incorporated herein by reference. In my Clarifying Order, dated March 16, 2002, described below, I repeated and added to that criticism.
Not unexpectedly, following the approval of the sale, the Receiver and the Trustee had multiple disagreements as to the disposition of the $3.5 million held in escrow, including claims by the Receiver that it was entitled to certain of the funds. But, on September 9, 1999, the Trustee filed a "Motion of Trustee to Authorize and Approve Mutual Release and Settlement Agreement with Sterling Consulting Corporation, as Receiver" (the "Settlement Motion"; the "Release and Settlement Agreement"). In summary, the Release and Settlement Agreement provided for immediate payment to the Receiver out of the escrowed funds on account of a $550,000 superpriority lien claim asserted by the Receiver; allowance (but subordinated to allowed bankruptcy estate claims) of a claim allegedly purchased by the Receiver (the "Mandleman Judgment"); an acknowledgment by the Trustee that payment in full of bankruptcy claims would not include postpetition interest; a promise of payment of the residue to the Receiver after bankruptcy estate claims had been paid in full; mutual releases and complex schema for the division of the seemingly overlapping jurisdiction by and between the Bankruptcy Court and the Colorado District Court assuming that various contemplated (and non-contemplated) disputes might arise. Most relevant here, the escrowed funds were now entrusted exclusively to the Trustee, with the Receiver's claims now asserted in the same fashion as might be asserted by any other creditor or equity security holder. The Release and Settlement Agreement provided, in pertinent part:
For reasons never fully explained, the Receiver had earlier asserted some sort of claim directly and personally against the Trustee.
One of those contemplated disputes was with respect to any claim by the United States against the bankruptcy estates. In light of the Receiver's obvious interest in any residue after bankruptcy claims were paid in full and the Trustee's lack of interest in the funds after payment of all administrative tax and bankruptcy claims, the Trustee agreed to prepare and file the returns, but the Receiver agreed to "utilize the procedures in the Colorado District Court to have all federal tax returns approved on an expedited basis, consistent with Section 505 of the Bankruptcy Code." (Release and Settlement Agreement ¶ 11(g).)
6. Escrowed Funds/Signature Requirements. Promptly, and in no event later than seven business days after payment of the Superpriority Lien in the amount of $550,000, the receiver and the Trustee shall take any and all actions and execute and deliver any and all documents or instruments as may be necessary to terminate the joint signature requirement with respect to the Escrowed Funds or to transfer them to a new account such that the Trustee shall have sole signature authority with respect to the balance of the Escrowed Funds. The Trustee thereafter shall have sole signature authority with respect to the Escrowed Funds, provided, however, that the Trustee shall not make any payment except on account of Allowed Claims, and shall not make any payment on account of Allowed Claims that exceed the amount allowed or estimated in the Schedule filed with the Colorado District Court. . . ., unless he obtains the prior consent of the receiver or an order of the Massachusetts Bankruptcy Court after notice to the receiver, authorizing such payment. . . . .
11. Jurisdiction and Venue. The Trustee and the receiver agree and acknowledge that due to the in rem nature of the Bankruptcy and the Receivership, disputes between the Trustee and the receiver tend to arise in both cases. In an effort to minimize jurisdictional disputes between the Bankruptcy Court and the Colorado District Court, the Trustee and the receiver agree to the following concerning the appropriate venue for any action or legal proceedings to enforce the Settlement Agreement or any of its terms or for the recovery of any loss by the Trustee or the receiver, or for any disputes between the Trustee and the receiver:
. . .
c. Receiver's Claims in the Bankruptcy Estate — Any dispute regarding any claim (including the Superpriority Lien) that has been filed in the Massachusetts Bankruptcy Court by the receiver shall be . . . . [heard in the Bankruptcy Court first, but subject to limited review by the Colorado District Court]. . . . For purposes of this paragraph, the receiver's claims shall include, without limitation, the Superpriority Lien, the Mandelman Judgement, and any distribution of the Escrowed Funds except to holders of allowed claims for administrative expenses and to third party claimants in the Bankruptcy Estate.
(Emphasis added).
The purpose and effect of the Release and Settlement Agreement was threefold. First, the agreement reflected a final resolution of the dispute over the funds to which the bankruptcy estates were entitled from the sale of the Trademarks. Second, the agreement reflected a final resolution as to the nature of the Receiver's claims against the bankruptcy estates and how those claims would be treated. Third, the agreement delineated the jurisdiction of each of the Bankruptcy Court and the Colorado District Court as future disputes might arise. The Colorado District Court approved the Release and Settlement Agreement first; and, subsequently, on September 21, 1999, over the objection of the United States trustee, I granted the Settlement Motion, thereby granting the Trustee leave to enter into the said Agreement.
The United States trustee objected only to the Release and Settlement Agreement provisions waiving postpetition interest on bankruptcy claims and providing for immediate payment of the Receiver's superpriority lien claim.
On or about October 29, 1999, the Trustee filed all of the relevant bankruptcy estate tax returns with the Internal Revenue Service, together with a request for an expedited audit under 11 U.S.C. § 505(b). Pursuant to the provisions of the Release and Settlement Agreement, the Receiver simultaneously filed with the Colorado District Court two motions seeking the Colorado District Court's determination of the tax liability of both the receivership and the bankruptcy estates. The United States objected in the Receivership Proceeding on jurisdictional grounds, claiming that the Colorado District Court lacked jurisdiction to determine the tax liability of the bankruptcy estates. The Colorado District Court overruled that objection, and ruled that it had jurisdiction over all matters which might affect the receivership estate, including the right to determine the tax liability of the bankruptcy estates. The United States appealed the Colorado District Court determination to the Tenth Circuit Court of Appeals.
In the meantime, in late December of 1999, the Trustee and the Receiver became convinced that, for reasons not relevant here, final distribution of monies to creditors of the bankruptcy estates before year's end afforded significant tax advantages for each estate. However, at that time, the Receiver and the Trustee still found themselves at odds with the United States with respect to the administrative tax liability, if any, of the bankruptcy estates to the United States. The ongoing dispute with the United States remained an obstacle to a final distribution. A plan to overcome that obstacle was formed by the Receiver and the Trustee. On December 22, 1999, the Trustee filed his final accounts in each of the bankruptcy cases and asked for expedited determination of their approval. At the hearing, the Trustee and the Receiver suggested that I authorize the Trustee's request for approval of a final distribution to creditors of the bankruptcy estates. The sum of approximately $437,000 would be distributed to the Receiver on account of the administrative tax claim, but be held in escrow for the United States pending the Colorado District Court determination of the amount due. The United States objected. It argued again that the Colorado District Court had no jurisdiction to determine the tax obligations of the bankruptcy estates, notwithstanding the Receiver's claim to the residue of the escrowed funds. It further argued that the administrative tax obligations of the bankruptcy estates might approximate as much as $1.2 million. Attempting to accommodate the concerns of the United States (but concededly over its objection), I, on December 30, 1999, estimated the claim of the United States at $1.2 million for the purposes of distribution, pursuant to 11 U.S.C. § 502(c) and granted the Trustee leave, inter alia, to (i) transfer $1.2 million to the Receiver to be held in escrow subject to the Colorado District Court administrative tax determination, and (ii) pay the remainder of the $3.5 million allocation to bankruptcy estate creditors.
Specifically, in the December 22, 1999 Order, I found and ruled in relevant part:
FINDINGS OF FACT
22.
. . . .
(b) Delivery of $1.2 Million dollars to Receiver to be held in escrow. The Trustee will deliver a check in the amount of $1.2 Million Dollars to the Receiver to be deposited into an interest bearing account and held in escrow for distribution as described below.
. . . .
(d) Disposition of funds to be held in escrow by Receiver. The Receiver agreed to hold the $1.2 Million Dollars distributed to him in escrow. Those funds will be held in escrow to be paid out in the following order of priority and at the following times: (i) first, to the IRS in the amount necessary to fully satisfy all federal tax liabilities . . . (ii) next, to all holders of allowed general unsecured claims in the Bankruptcy Cases until said claims have been paid 100% of the allowed amount as set forth in the Accounts, and (iii) then any remaining funds to the Receiver on account of the Mandelman Judgment and pursuant to the Release and Settlement Agreement.
(e) Interest on the escrowed funds. Any interest accruals on the $1.2 Million held by the Receiver in escrow shall be retained by the Receiver.
. . . .
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
. . .
ORDERED and ADJUDGED that the Receiver's Agreement to act as escrow agent for purposes of making distributions to the IRS (if any) and to general unsecured creditors is approved and the Receiver shall hold in escrow all $1.2 Million Dollars delivered to it pursuant to the Modifications for the benefit of the IRS and the general unsecured creditors of the Debtors. The Receiver will act as an escrow agent with no discretion to disburse funds other than according to the terms of this Order. Notwithstanding the foregoing, the Receiver is authorized to retain any interest accruals on the $1.2 Million Dollars to be distributed to it [.]
(December 30, 1999 Findings of Fact, Conclusions of Law and Order Approving Trustee's Amended Final Accounts at 7, 8, 14-15.)
Accordingly, by complementary orders issued by the two courts, I attempted to cede jurisdiction over outstanding administrative tax claims against the bankruptcy estates to the Colorado District Court, and the Colorado District Court attempted to accept that jurisdiction. That effort failed. Upon appeal by the United States, the Bankruptcy Appellate Panel for the First Circuit and the Tenth Circuit Court of Appeals issued their respective reversals. See United States v. Sterling Consulting Corp. (In re Indian Motocycle. Co.), 259 B.R. 458 (2001), vacated and superseded by Sterling Consluting Corp. v. United States, 261 B.R. 800 (BAP 1st Cir. 2001) and by Sterling Consulting Corp. v. United States, 245 F.3d 1161 (10th Cir. 2001), cert. denied, 122 S.Ct. 921 (2002).
In its ruling of March 13, 2001 in United States of America v. Sterling Consulting Corp. (In re Indian Motocycle, Co.), 259 B.R. 458 (BAP 1st Cir. 2001), vacated and superseded on April 26, 2001, 261 B.R. 800 (BAP 1st Cir. 2001) (the "BAP Decision"), the BAP reversed my December 30, 1999 order and remanded. It held that I improperly ceded jurisdiction of the bankruptcy estates' administrative tax liability to the Colorado District Court and had no right to abstain to the Colorado District Court because that court "was without jurisdiction to determine the tax liabilities of the bankruptcy estates, which are core matters within the exclusive jurisdiction of the bankruptcy court." In re Indian Motocycle, Co., 261 B.R. at 808. The BAP further held that I had no authority to estimate the administrative tax liability under 11 U.S.C. § 502(c) in light of the rights afforded the United States under 11 U.S.C. § 505(b). Accordingly, the BAP reversed both my order limiting the tax liability of the bankruptcy estates to the United States and the order making the final distributions. Id. at 810. And, as to the latter, the BAP's attention was squarely fixed on reversing the distribution of the $1.2 Million Dollars delivered in escrow to the Receiver. Id. at 806.
On April 10, 2001, the Tenth Circuit Court of Appeals issued a complementary ruling (the "Tenth Circuit Decision"), reversing the Colorado District Court's order accepting jurisdiction to determine the said tax. Sterling Consulting Corp. v. United States, 245 F.3d 1161 (10th Cir. 2001). It ruled, inter alia, that, (i) pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a) and its exemptions, district courts are precluded from making declaratory judgments with respect to the federal taxes owed by bankruptcy estates, except as permitted by 11 U.S.C. § 505 and 1146, Id. at 1165-66, and (ii) the jurisdiction to invoke § 505 is limited to the district court in which the bankruptcy case is filed. Id. 28 U.S.C. § 1334(b). The court specifically noted that, while I attempted to cede jurisdiction of the tax dispute to the Colorado District Court, I did not "effectuate a transfer of the bankruptcy proceeding to the district court in Colorado pursuant to 28 U.S.C. § 1412, which might have conferred jurisdiction on the [District Court] over a § 505 action." Id. at 1166.
Following the rulings by the First Circuit BAP and the Tenth Circuit Court of Appeals, I, again at the insistence of the United States, sought to return matters to the status quo ante. Despite these efforts, return and accounting of the funds transferred to the Receiver and the interest earned thereon was not forthcoming. Moreover, the Receiver continued litigation and/or discovery in the Colorado District Court, with the apparent purpose of affecting the determination of tax obligations against the bankruptcy estates (which determination had been reserved to this Court alone by both the First Circuit BAP and the Tenth Circuit Court of Appeals). The United States, the affected tax claimant, sought injunctive and other relief against the Receiver in the Bankruptcy Court, claiming a violation by the Receiver of the automatic stay provisions ( 11 U.S.C. § 362(a)) of the Bankruptcy Code. I repeatedly encouraged settlement, but without success. Finally, I was required to rule, in light of the automatic stay under 11 U.S.C. § 362(a) and the exclusive jurisdiction over estate property conferred by 28 U.S.C. § 1334(a) on the United States District Court for the District of Massachusetts (of which the Bankruptcy Court is a unit), that the Receiver must return the funds delivered to him in escrow, account for the interest accrued and terminate the discovery ongoing in the Colorado District Court. I also denied the Receiver's request that I transfer venue of the bankruptcy cases to the Colorado District Court, pursuant to 28 U.S.C. § 1412. See In re Indian Motocycle Company, Inc., et. al., 266 B.R. 243 (Bankr. D. Mass. 2001). The Receiver appealed to the Massachusetts District Court, but sought no stay from that court pending appeal.
On August 20, 2001, Magistrate Judge Schlatter, issued his decision in response to the Receiver's request for instructions. Judge Schlatter disagreed with my view of the applicable law, but he instructed the Receiver to return the $1.2 Million to the Bankruptcy Court, to provide an accounting of interest in some form, and to defer the outstanding discovery. The moneys were subsequently returned and are now held by the Trustee, subject to further order of this Court. However, the accounting was repeatedly delayed. In the interim, the Receiver presented new theories to the Colorado Colorado District Court supporting its power to distribute the $1.2 million now held by the Trustee and/or affect the determination of the administrative tax claim, if any, owed by the bankruptcy estates to the United States.
Notwithstanding the August 3 Order, the Receiver simply ignored the deadline set forth in that Order for providing the accounting on accrued interest. Extensions were sought from and granted by the Colorado Magistrate Judge.
The United States responded by seeking renewed injunctions against the Receiver in the Bankruptcy Court. Again, in light of 11 U.S.C. § 362(a) and 28 U.S.C. § 1334(a), I had no option. In a carefully worded Order, dated November 21, 2001, I crafted an injunction tailored to enjoin the Receiver from bringing any actions before the Colorado District Court which would (i) affect the administrative tax claim, (ii) determine the Receiver's claim against the bankruptcy estates, or (iii) determine the distribution of the funds which I had already held were property of the bankruptcy estates and which both courts had previously ruled were to be distributed by the Trustee. Once more, the Receiver appealed my Order to the Massachusetts District Court, but sought no stay from that court pending appeal.
On February 28, 2002, Judge Weinshienk issued a strongly worded Order criticizing me for issuing the November 21, 2001 Order and "suggested" that it be withdrawn. On March 16, 2002, I issued a "Clarifying Order," which demonstrated that Judge Weinshienk had relied on the wrong document in reaching her conclusions. Since that time, I have received a communication from Magistrate Judge Schlatter, acknowledging Judge Weinshienk's error. While the Colorado District Court still holds the view that its fundamental conclusions of law on jurisdiction are correct, Judge Schlatter communicated his regret and that of Judge Weinshienk as to the apparent "air of friction" between the two courts. I have always respected the views held by the Colorado District Court. I also believe that friction, if any, between the courts has not been of our own making, and I join in an expression of regret that the referenced jurisdictional dispute has not been more easily soluble.
On or about March 5, 2002, the Receiver took another path. It filed a "Motion to the Judicial Panel on MultiDistrict Litigation [the "MultiDistrict Panel"] for Consolidated Proceedings Pursuant to 28 U.S.C. § 1407." The Colorado District Court found favor with the Receiver's approach. It offered itself as a "transferee court," and in a subsequent letter to the MultiDistrict Panel, dated May 23, 2002, even suggested the Massachusetts District Court as an alternative transferee court. Ultimately, in a ruling, issued June 17, 2002, the MultiDistrict Panel declined jurisdiction, but encouraged the parties to consider creative solutions to the jurisdictional conflict.
I was not asked for, and did not offer, a position on the Receiver's request, but had some doubts about whether the Panel was formed to handle the kinds of jurisdictional issues raised by the instant fact pattern.
Following the decision of the MultiDistrict Panel, the Receiver sought to move its efforts forward in the Colorado District Court, and urged a case management conference on various issues, including, an action filed against the Trustee under 28 U.S.C. § 2410 for a determination of title to assets which I had previously held were property of the bankruptcy estates and protected by the automatic stay under § 362(a). The Colorado District Court scheduled that case management conference for July 16, 2002. Because the case management conference included requests by the Receiver which I had previously ruled to be violations of the automatic stay, the Trustee and the United States countered by filing a motion with the Bankruptcy Court seeking injunctive relief and sanctions against the Receiver.
Mindful of (i) the Multidistrict Panel's suggestion that a creative solution be sought, and (ii) the Colorado's District Court's suggestion to the Multidistrict Panel that the Colorado District Court would find the Massachusetts District Court as a suitable alternative as a "transferee" court, and concerned about an impending jurisdictional "showdown" arising from the parties' recent pleadings, I scheduled an emergency status conference in the bankruptcy cases for July 15, 2002, one day in advance of the case management conference scheduled by the Colorado District Court. In that July 15, 2002 status conference, I openly suggested that, if the Colorado District Court would favorably consider transferring the Receivership Proceeding to the Massachusetts District Court, this time pursuant to 28 U.S.C. § 1412 (as it had offered to do in its correspondence to the MultiDistrict Panel), I would recommend to the Massachusetts District Court that the reference of the bankruptcy cases be withdrawn so that the jurisdictional conflict could be resolved.
I arranged for an audio tape of the status conference to be sent to Magistrate Judge Schlatter by overnight mail.
On July 17, 2002, Magistrate Judge Schlatter advised me that the Colorado District Court found the proposal favorable, and was in the process of issuing an order transferring the Receivership Proceeding to the Massachusetts District Court. The Order of Transfer was indeed issued by the Colorado District Court on July 19, 2002.
I was pleased, but somewhat surprised, with the speed with which my suggestion was accepted, and regret that the Colorado District Court acted before I had an opportunity to present this proposal to the Massachusetts District Court.
II. RECOMMENDATION
I respectfully recommend that the reference of the bankruptcy cases from the Massachusetts District Court to the Bankruptcy Court be withdrawn, for cause shown. Absent acceptance of the transfer of the Receivership Proceeding from the Colorado District Court and withdrawal of the reference of the bankruptcy cases, the Bankruptcy Court and the Colorado District Court are likely to continue to adhere to their respective strongly held views that each has exclusive jurisdiction to determine the remaining issues between the Trustee and the Receiver. The determinations of the two courts would certainly be conflicting, leading to interminable appeals and a certain dissipation of the remaining assets claimed by both estates. Further, action by the Massachusetts District Court would preserve the comity which the Bankruptcy Court and the Colorado District Court have struggled to preserve, notwithstanding significant obstacles.
RESPECTFULLY SUBMITTED.
ORDER
The Clerk of this Court is ordered to serve the foregoing by mail, on counsel for the Receiver, the Trustee, counsel for the United States, the United States trustee, and on the service list employed by this Court with reference to its Clarifying Order of March 16, 2002, and to forward an additional copy to the attention of the Honorable Zita L. Weinshienk, Senior District Judge of the United States Colorado District Court for the District of Colorado and O. Edward Schlatter, United States Magistrate Judge.
A copy of this Order shall also be transmitted to counsel for the United States by facsimile transmission.