Opinion
Case No. 2:07-CV-892-RCJ-GWF-BASE and Case No. 3:07-CV-241-RCJ-GWF.
December 27, 2010
MARQUIS AURBACH, TERRY A. COFFING, ESQ., Nevada Bar No. 4949, LIANE K. WAKAYAMA, ESQ., Nevada, Bar. No. 11313, Las Vegas, Nevada, Attorneys for Plaintiff Tom Grimmett, as Receiver.
ORDER GRANTING MOTION TO AUTHORIZE PAYMENT OF RECEIVERSHIP EXPENSES (#1519)
The Receiver's Motion to Authorize Payment of Receivership Expenses in the above-entitled action came on regularly for hearing on November 16, 2009; Terry A. Coffing, Esq. of the law firm of Marquis Aurbach, appearing on behalf of the Receiver, Tom Grimmett; Janet L. Chubb, Esq., of the law firm of Jones Vargas, appearing on behalf of the JV Direct Lenders; Robert M. Millimet, Esq. and McAlan Duncan, Esq., of the law firm of Bickel Brewer, appearing on behalf of Certain Direct Lenders; Katherine Windler, Esq. of the law firm of Bryan Cave, LLP, appearing on behalf of Silar Advisors, et al. ("Silar"); Phillip M. Hymanson, Esq., of the law firm of Greenberg Traurig, LLP, appearing on behalf of Silar; and Randolph L. Howard, Esq., of the law firm of Kolesar Leatham, appearing on behalf of Asset Resolution, the Court having heard arguments of counsel, after due notice to the parties of this action, no opposition having been filed, and for good cause appearing, hereby makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On or about April 31, 2009, the Court awarded reasonable fees and costs to the receivership in the amount of $787,446.91;2. On or about May 4, 2009, the funds currently held in Marquis Aurbach's IOLTA Trust Account in the amount of $162,214.93 were paid to the receivership;
3. On or about May 29, 2009, Silar, in its capacity as a party to the lawsuit, paid the sum of $196,861.73 to the receivership representing twenty-five percent (25%) of the total expenses awarded;
4. On or about August 28, 2009, the Court ordered that $45,000.00 be paid out of escrow to the receivership upon the closing of the 6425 Gess, Ltd. property sale to the Joint Venture, which was paid to the receivership on or about September 30, 2009; and
5. There is no objection to the payment of the outstanding fees and costs in the amount of $383,370.25 to the receivership to assure reasonable compensation for the receivership's services.
CONCLUSIONS OF LAW
6. The entire $383,370.25 in oustanding receivership fees and costs shall be assessed in gross against the money currently held in an escrow account by Silar representing the disputed "waterfall" funds (hereinafter the "Escrow Account");
7. Any payment of the outstanding balance owed to the receivership is subject to the approval of the United States Bankruptcy Court for the District of Nevada that currently has jurisdiction over the voluntary petitions for relief under Chapter 11 of Title 11 of the Bankruptcy Code filed by the Debtors, including but not limited to Asset Resolution, LLC;
8. The Court has proper jurisdiction to determine the allocation of the outstanding receivership's fees and costs;
9. The outstanding receivership fees and costs must be allocated against the ultimate distribution that is received by each Direct Lender and loan participant, including Asset Resolution, LLC, based on their respective loan interests;
10. Subject to Court approval, the outstanding receivership fees and costs shall be allocated on a pro rata basis as specified in the "Pro Rata Allocation of the Receivership's Unpaid Fees and Costs," which is attached hereto as Exhibit 1. The Receiver's allocation is based upon which loans, in the Receiver's estimation, are likely to provide enough liquidity to cover the outstanding receivership expenses;
11. If loans evidenced by promissory notes were reduced to cash before the receivership commenced, the allocation will be based upon the gross dollar amount at the time of the Receiver's engagement;
12. If a particular loan has been foreclosed upon, then the allocation will be based upon the gross dollar value of the property received at the foreclosure sale;
13. If loans evidenced by promissory notes have not been converted to cash, the allocation will be based upon the total amount collected on the promissory note either through future foreclosure or collection proceedings; and, therefore,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the Motion to Authorize Payment of Receivership Expenses is hereby GRANTED.
IT IS SO ORDERED this 27th day of December, 2010.