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{00648619;v1 }
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
Cordillera Golf Club, LLC,
dba The Club at Cordillera.
Debtor.
Chapter 11
Case No.: 12-11893 (CSS)
Related Docket No. 1,69, 71
Hearing Dates: July 16, 2012, 10 a.m. EDT
(Requested)
Objection Deadline: July 11 at 12 p.m. EDT
(Requested)
MOTION OF CORDILLERA PROPERTY OWNERS ASSOCIATION, INC. AND
CORDILLERA METROPOLITAN DISTRICT TO TRANSFER VENUE TO
COLORADO AND
JOINDER IN THE 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
Cordillera Property Owners Association, Inc. (CPOA) and Cordillera Metropolitan
District (the District) (collectively, the Moving Parties), by their attorneys Sherman &
Howard L.L.C. and Ashby & Geddes, hereby file this Motion to Transfer Venue to Colorado (the
Motion). In addition, the Moving Parties join in the 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 (the Class Members
Venue Change Motion) (Docket No. 69). In support of their Motion, the Moving Parties
respectfully state as follows:
I. SUMMARY OF ARGUMENT
1. The business of The Cordillera Golf Club, LLC (the Debtor or Club) is
centered upon providing its members the opportunity to play golf at unique and picturesque golf
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courses located in Eagle County, Colorado. Members join the Club for that purpose and for the
enjoyment of the Cordillera lifestyle. Necessarily, Debtors product is provided and can be
enjoyed only where the Club and golf courses are physically located -- Eagle County, Colorado.
Further, the success of the Club directly impacts property values throughout the Cordillera
community. Because of the unique and very local nature of the Debtors business, a solution to
its current problems should be determined in the Colorado bankruptcy court, where all Cordillera
community members will have a more convenient forum to have their voices heard.
2. Under familiar principles of law governing the venue of bankruptcy cases, the
United States Bankruptcy Court for the District of Colorado is the proper forum for this
bankruptcy case. Pursuant to Section 1412 of Title 28 of the United States Code, transferring the
venue of this bankruptcy case to Colorado would serve both the interests of justice and the
convenience of the parties for the following reasons:
(a) The primary assets of the Debtor are four golf courses, tennis and fitness
facilities, and related amenities, all of which are located in Eagle County,
Colorado.
(b) Although the Debtor has not yet filed its schedules, 54% of the persons
included on the mailing matrix filed by the Debtor (2,785 out of a total of
5,144) have Colorado mailing addresses. Only ten (.4%) have Delaware
mailing addresses, the 39
th
smallest number by state. See Chart attached
hereto as Exhibit A.
(c) Eleven of the 20 largest unsecured creditors on Debtors Schedule of the
Twenty Largest Unsecured Creditors are from Colorado. None is from
Delaware.
(d) Debtors principal place of business -- indeed, its only place of
business -- is in Colorado.
(e) Upon information and belief, Debtors principal and sole shareholder
resides in Colorado.
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(f) Debtors senior lender, Alpine Bank, is located in Colorado, the loan
originated in Colorado and the parties agreed the loan is to be interpreted
under Colorado law. Alpine Bank has expressed to the Court its intent to
file a motion to transfer venue.
(g) The two lawsuits in which Debtor is currently involved are both pending
in State Court in Colorado; one case was brought by the Debtor in the
Colorado District Court in and for Eagle County, Colorado, on May 24,
2011, and the other is a class action brought by Club members in the
Colorado District Court in and for Eagle County, Colorado, on June 20,
2011. The class, as certified by the State Court, has approximately 609
members.
(h) This bankruptcy case is at an early stage and no detriment would occur
from a transfer at this point.
(i) Debtors lead bankruptcy counsel is from San Diego and Debtor is seeking
to hire a Chief Restructuring Officer based in Sherman Oaks, California.
(j) The Colorado creditors have a very important interest in having
controversies deeply affecting a Colorado community decided by
Colorado courts in a location convenient to those affected.
(k) The only relationship of this case to Delaware is the registration of the
Debtor in Delaware.
II. PARTIES, JURISDICTION, AND VENUE
3. On June 26, 2012, the Debtor filed its voluntary chapter 11 bankruptcy petition.
Debtor is a limited liability company formed under the laws of the State of Delaware. Debtor is
authorized to conduct business in the State of Colorado, and is in good standing with the
Colorado Secretary of State.
4. No statutory committees have been formed, and no trustees or examiners have
been appointed.
5. CPOA is a homeowners association and non-profit corporation organized and
operating pursuant to the laws of the State of Colorado. The CPOA has members who,
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collectively, are owed millions of dollars by the Debtor. The CPOA is a defendant in litigation
commenced by the Debtor. The CPOA is affected by the Clubs financial problems.
6. The District is a metropolitan district organized pursuant to C.R.S. 32-1-101, et
seq. The District is a quasi-municipal corporation and political subdivision of the State of
Colorado, with the authority to levy and collect property taxes to defray its expenses. The
District currently is owed $205,311.31 in unpaid 2011 property taxes (payable in 2012 per
Colorado law) by the Debtor.
7. The CPOA and the District are parties in interest in this bankruptcy case.
8. This Court has jurisdiction over this bankruptcy case pursuant to 28 U.S.C.
1334.
9. The only basis for venue of this case in Delaware under 28 U.S.C. 1408 is
Debtors registration in Delaware.
10. This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A).
11. The statutory bases for the relief requested in this Motion are 11 U.S.C. 105(a),
1
28 U.S.C. 1412, and Fed.R.Bankr.P. 1014.
III. PROCEDURAL HISTORY
12. This bankruptcy case is in its infancy. No substantive orders have been entered
by the Court except for temporary authorization to use cash collateral (Docket No. 44) and this
Courts denial of Debtors attempt to extend the bankruptcy stay to protect Debtors principal
and related entities from a pending State Court contempt proceeding. Debtor has filed motions
to retain counsel and a chief restructuring officer, to appoint a claims agent, for continued use of

1
Title 11 shall be referred to as the Bankruptcy Code.
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a cash management system, to honor prepetition wage obligations and pay prepetition taxes and
fees, to require utility companies to continue service, and for interim and final orders for use of
cash collateral. The Court entered interim orders on utilities, payment of pre-petition taxes and
fees, and a final order allowing payment of pre-petition wages. A hearing on all the remaining
motions filed by Debtor is scheduled for July 27, 2012.
13. The Debtor also has filed a motion to obtain a priming, post-petition loan. A
hearing is set for July 19, 2012, to consider authorizing the Debtor to enter into the post-petition
loan on an interim basis.
14. The Debtor has stated that it plans to file a motion to approve a sale under Section
363 of the Bankruptcy Code of the Mountain Course, one of the Debtors golf courses, at a
public auction. See Declaration of Daniel L. Fitchett, Jr. in Support of Chapter 11 Petitions and
First Day Relief (the Fitchett Decl.), 41. No such motion has yet been filed.
15. Six Club members, representatives of a certified class of club members, have filed
a motion to transfer venue, which has been set for a pre-trial conference on July 12, 2012, at 1
p.m., and for hearing on July 16, 2012, at 10 a.m. See Class Members Venue Change Motion.
IV. FACTUAL BACKGROUND
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Virtually All of Debtors Assets, Operations, and Management are in Colorado
16. The assets of the Debtor include three 18-hole golf courses, a short course, 3
tennis centers, fitness facilities, 5 indoor and outdoor pools, a summer camp with clubhouse for

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The Moving Parties submit the Declaration of Nanette Kuich, President of the Board of Directors of the District,
and Lois M. Van Deusen, President of the CPOA, in support of the Motion. The Declarations are attached as
Exhibits B and C, respectively. Support for many of the facts that compel a transfer of venue to Colorado is
contained in the Fitchett Declaration and first day motions filed by the Debtor. Those facts are not subject to dispute
by the Debtor.
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children, and riding, hiking and cross-country ski trails. All of these assets are located in
Colorado. (Fitchett Declaration, 7)
17. Debtors sole product is a uniquely situated event: the chance to play golf at
courses of special magnificence located in Eagle County, Colorado, close to the homes of
Cordillera members. Everything about this case relates to that particular location in Colorado.
Nothing of any significance in this case relates to Delaware, or any other state.
18. Upon information and belief, the Debtors sole shareholder and managing
member, David Wilhelm, resides in Colorado.
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The Declaration Regarding List of Creditors
Holding 20 Largest Unsecured Claims filed June 26, 2012, with the Petition in this case, states
that it was signed by Wilhelm in Edwards, Colorado.
19. Debtor advised this Court that Debtor borrowed $13.7 million from Alpine Bank
secured by liens on assets of the Debtor in June, 2009. (Fitchett Declaration, 22). Alpine Bank
is located in Vail, Colorado, and Debtor promised to pay the loan at Alpine Banks office in Vail,
Colorado (Promissory Note attached at Exhibit B to the Notice of Filing of Appendix to Motion
of the Debtor for Entry of Interim and Final Orders (A) Authorizing Use of Cash Collateral; (B)
Granting Adequate Protection; (C) Scheduling a Final Hearing; and (D) Granting Related Relief
(the Cash Collateral Motion Appendix) (Docket No. 11). The loan is governed by Colorado
law. (Cash Collateral Motion Appendix, Exhibit A, Loan Agreement). Alpine and the Debtor
agreed upon the Colorado State Courts in Eagle County, Colorado as the proper venue for
resolution of litigation between them. (Id.)

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David A. Wilhelm is the manager of CGH Manager, LLC, which is the manager of the Debtor. Wilhelm
describes himself, in litigation he and Debtor initiated in Edwards, Colorado against certain Club members,
Cordillera Golf Club et al. v. Cordillera Transition Corporation, et al. No 2011 CV 456 in the District Court for
Eagle County, Colorado, as an adult individual residing in Basalt, Colorado (Complaint, 4), which is in Eagle
County. Plaintiffs Initial Disclosures in that litigation show an Edwards, Colorado address for Wilhelm.
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20. The District is a special district under Colorado law. See C.R.S. 32-1-101, et
seq. Under Colorado law, "special districts are political subdivisions of the state and are created
as convenient agencies for exercising such of the governmental powers of the state as may be
entrusted to them." See Johnson Homes, Inc. v. Southwest Metropolitan Water and Sanitation
District, 725 P.2d 12, 13 (Colo. Ct. App. 1986); C.R.S. 32-1-103(20) ("Special district means
any quasi-municipal corporation and political subdivision organized or acting pursuant to the
provisions of this article."). In addition to the provisions of the Special District Act, the District
also is governed by its Amended and Restated Service Plan, which was approved by the Eagle
County Board of County Commissioners on May 3, 2005 (the Service Plan).
21. Within the Cordillera community, and pursuant to the Special District Act and the
Service Plan, the District provides, among other things, operation and maintenance of all public
facilities and infrastructure, which includes more than 40 miles of roadway and shoulder, 7,000
acres of property, and associated landscaping, water features, ponds, streetlights and signage. In
addition the District performs snow removal, weed and pest control operations; manages the
communitys recreation programs (other than those operated by the Debtor); provides public
safety services for the community, traffic control, wildlife management, and architectural
guideline compliance. In addition to operating and maintaining the public infrastructure within
Cordillera, the District has incurred significant bond debt to construct the public infrastructure
and currently repays the bond debt, as well as covers it operating expenses, with property taxes
paid by property owners within Cordillera, including the Debtor. See Exhibit B, Kuich
Declaration, 5.
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22. The District is owed $205,311.31 in unpaid 2011 property taxes (payable in 2012)
by the Debtor. Under Colorado law, this obligation is secured by a first and prior lien against the
Debtors taxable property located within the boundaries of the District, in Eagle County,
Colorado. See id., 7.
23. The Debtor is one of the two largest taxpayers within the District. In Colorado,
property taxes are paid in arrears. Taxes assessed in 2011 are due and payable in 2012. For
2011 taxes, to be paid in 2012, the Debtor owes the District $205,311.31.
24. 2011 taxes owed to the District by the Debtor were based upon an assessed value
of $2,904,860. In Colorado, commercial property, such as that owned by the Debtor, is assessed
for taxation at 29% of actual value. The Debtor has disputed the assessed value.
25. The CPOA is established pursuant to and governed by the Amended and Restated
Declaration of Protective Covenants, Conditions, and Restrictions for Cordillera, recorded on May 12,
1993 in the real property records of the Eagle County Clerk and Recorders Office at Reception No.
504866 (as the same has been amended by the Second Amendment to Declaration of Protective
Covenants, Conditions, and Restrictions for Cordillera, recorded on May 11, 1998 in the real property
records of the Eagle County Clerk and Recorders Office at Reception No. 65572, and the Third
Amendment to Declaration of Protective Covenants, Conditions, and Restrictions for Cordillera, recorded
on April 14, 2010 in the real property records of the Eagle County Clerk and Recorders Office at
Reception No. 201007045), and the Amended and Restated Bylaws of Cordillera Property Owners
Association, Inc., dated as of, and approved by the Board of Directors, on May 21, 2012. See Exhibit C,
Van Deusen Declaration, 6.
4

4
Due to their voluminous nature, copies of the documents referenced here are not attached. Copies will be made
available upon reasonable request.
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26. The CPOA performs functions and manages its affairs in a manner similar to property
owners associations in lifestyle communities to enhance the overall quality of life within the community,
to provide programs and facilities for the community, and to preserve property values within the
community. In furtherance of this mission, the CPOA contracts with and provides financial support to the
District in the provision of community operations services, debt retirement, and capital projects;
maintains oversight of the architectural review process within the community; manages a wildfire and
healthy forest initiative; administers a wildlife management program in consultation with the Colorado
Division of Wildlife; operates a ski club at Vail Mountain; manages a community marketing program;
and owns and operates a community center which houses a caf and a branch office of the United States
Post Office. The CPOA also has historically provided funding support for the communitys public safety
department, and acquired and subsequently conveyed to the District a large parcel of land abutting the
Eagle River, which currently is maintained as open space for the benefit of the community.
27. The value of properties within the CPOA are significantly impacted by the
success (or lack thereof) of the Club. A significant portion of the CPOAs revenue comes from a
Real Estate Transfer Assessment (RETA) of 2% charged against the sale price of each home
sold in Cordillera. In 2010, there were 44 transactions within Cordillera, resulting in RETA
revenue of $1,345,708. In 2011, the year in which Debtors litigation against the CPOA was
commenced, there were 28 transactions within Cordillera, resulting in RETA revenue of
$642,755. In addition, the total actual value of the real estate within Cordillera, as determined by
the Eagle County Assessors Office, was $1,433,933,030 in 2010; in 2011, the value dropped to
$1,029,347,630.
28. There is a class-action suit by club members against the Debtor, its principal,
David A. Wilhelm, and certain related entities styled Foley, et al. v. Cordillera Golf Club, LLC,
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et al., District Court, Eagle County, State of Colorado, Case No. 2011CV552 (the "Class
Action"). As the Court is aware, a contempt hearing has been scheduled in that Eagle County,
Colorado, District Court case for July 19, 2012, to determine whether the Defendants violated a
preliminary injunction by using funds in a manner prohibited by the preliminary injunction.
29. The CPOA is one of the defendants in the litigation that the Debtor, its principal,
David A. Wilhelm, and certain related entities commenced in District Court, Eagle County, State
of Colorado styled Cordillera Golf Club, LLC, et al. v. Cordillera Transition Corporation, Inc.,
et al., Case No. 2011-CV-456. In that action, Debtor and the related plaintiffs mischaracterize
the CPOA, its individually named board members, and other community entities and individuals
as the driving force behind the decision of approximately 200 Club members to resign from the
Club. In reality, the Debtors own actions, including broken promises and operational failures,
serve as the fount of community outrage and the resignation decisions. The lawsuit is merely a
last ditch effort to manufacture leverage over a community that serves not as the cause of
Debtors failures, but the victims of it.
30. It would be a substantial burden for representatives of the CPOA and the District
to travel to Delaware from Colorado if the bankruptcy case were to remain in Delaware. Travel
to Wilmington, Delaware from Eagle County, Colorado takes not less than ten hours. The
District or CPOA would pay for the expenses associated with this travel.
V. ARGUMENT
31. The convenience of the parties and the interests of justice dictate that venue of
this bankruptcy case should be transferred to the United States Bankruptcy Court for the District
of Colorado. In several recent decisions, Delaware bankruptcy judges have properly transferred
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venue of bankruptcy cases filed in Delaware on facts comparable to those presented in this case.
See In re Rehoboth Hospitality, LP, No. 11-12798 (KG), 2011 WL 5024267 (Bankr. D. Del. Oct.
19, 2011); In re Qualteq, Inc., No. 11-12572 (KJC), 2012 WL 527669, (Bankr. D. Del. Feb. 16,
2012); In re Spanish Peaks Holdings, II, LLC, Case No. 11-13300 (BLS) Memorandum Order
(Bank. D. Del. Jan. 10, 2012).
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A. The Applicable Statutes
32. Even when venue initially is proper in the court where a debtor files its
bankruptcy case, a bankruptcy 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. See In
re B.L. of Miami, Inc., 294 B.R. 325, 328 (Bankr. D. Nev. 2003); 28 U.S.C. 1412; see also
Fed.R.Bankr.P. 1014(a) (If a petition is filed in the proper district, the court . . . may transfer the
case to any other district if the court determines that the transfer is in the interest of justice or for
the convenience of the parties.); see also Innovative Communication, 358 B.R. at 127 (on
motion to transfer venue, the place of incorporation is not the controlling factor).
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33. Venue in Colorado is proper under 28 U.S.C. 1408 (1) because Colorado is the
location of Debtors principal place of business in the United States [and also its] principal
assets in the United States.
B. Applicable Case Law Heavily Favors Venue in Colorado
34. Venue motions are decided based upon the specific facts of each case, weighed in
light of the broad purposes of convenience and fairness. See In re Eclair Bakery Ltd., 255 B.R.

5
A copy of the Memorandum Opinion is attached to this Motion as Exhibit D.
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28 U.S.C. 1408 authorizes the filing of this bankruptcy case in Delaware because Debtor was formed under the
laws of the State of Delaware. See, e.g., In re Innovative Communication Co., 358 B.R. 120, 125 (Bankr. D. Del.
2006) (Venue is appropriate in the state of incorporation). Debtors registration in Delaware is the only
connection of this case with the State of Delaware.
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121, 141 (Bankr. S.D.N.Y. 2000) (interests of justice is a broad and flexible standard that must
be applied on a case by case basis); In re Condor Exploration, LLC, 294 B.R. 370, 378 (Bankr.
D. Colo. 2003) (When considering the interests of justice standard for purposes of determining
whether to transfer the venue of a bankruptcy case, the court applies a broad and flexible
standard, considering whether the transfer of venue will promote the efficient administration of
the estate, judicial economy, timeliness, and fairness. (citation omitted)).
35. A debtors choice of venue is entitled to less consideration where as here, the
choice is not directly related to the operative, underlying facts of the case. See Rehoboth, 2011
WL 5024267 at *3.
36. The factors courts often consider when evaluating the convenience of parties are:
(a) proximity of creditors of every kind to the court;
(b) proximity of the debtor;
(c) proximity of witnesses who are necessary to the administration of the
estate;
(d) the location of the debtors assets;
(e) the economic administration of the estate; and
(f) the necessity for ancillary administration in the event of liquidation.
Innovative Communication, 358 B.R. at 126 (citing In re Commonwealth Oil Refining Co., 596
F.2d 1239, 1247 (5
th
Cir. 1979).
37. Bankruptcy courts in the Third Circuit and elsewhere consistently hold that the
venue of a case involving real estate belongs in the state where the real estate is located.
[T]his Court agrees with other courts in this Circuit which have held that
the estate of a real estate partner is most efficiently administered in the
district where the principal asset is located. In re Midland Assocs., 121
B.R. 459, 461 (Bankr. E.D. Pa. 1990) (citing, In re Oklahoma City
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Assocs., 98 B.R. 194, 199-200 (Bankr. E.D. Pa. 1989)); see also In re
Pavilion Place Associates, 88 B.R. 32, 36 (Bankr. S.D.N.Y. 1988); In re
Sundance Corp., 84 B.R. 699, 703 (Bankr. Mont. 1988); In re Nantucket
Apartments Associates, 80 B.R. 154, 156 (Bankr. E.D. Mo. 1987). In the
context of what is essentially a single asset case, the location of the known
improved real estate asset is a particular concern to the Court, especially in
the event of a potential liquidation, and the case is better administered by
a court in the district in which it is located. In re Midland Assocs., 121
B.R. at 461.
In re Rehoboth, 2011 WL 5024267 at *5 accord, In re B.L. of Miami, Inc., 294 B.R. 325, 332
(Bankr. D. Nev. 2003) (Where a debtors assets consist solely of real property, as with Debtor
in this case, courts have held that transfer of venue is proper because [m]atters concerning real
property have always been of local concern and traditionally are decided at the situs of the
property.) (citation omitted); In re Pinehaven Assocs., 132 B.R. 982, 989 (Bankr. E.D.N.Y.
1991) (There is ample authority for the proposition that a real estate case . . . can be most
efficiently and economically administered in the bankruptcy court closest to its major asset, and
that the Chapter 11 case can best unfold there.) (string cite omitted); Condor Exploration, 294
B.R. at 379 (noting that venue should be in the jurisdiction where debtors oil and gas leases are
located).
38. In Spanish Peaks, Bankruptcy Judge Shannon transferred venue from Delaware to
Montana based on the debtors extensive contacts with Montana, a significant number of
Montana creditors and creditors located in states near Montana, the likely sale of real property
located in Montana, and significant litigation in Montana. See Spanish Peaks, Memorandum
Order at pp. 4-5.
39. In Qualteq, Bankruptcy Judge Carey recently granted a motion to transfer venue
in a case with striking similarities to this case. In Qualteq, none of the creditors holding the 30
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14
largest unsecured claims had Delaware addresses and only 10 out of more than 5000 creditors on
the mailing matrix had Delaware addresses. The debtors books and records were kept in Illinois
(except for one subsidiary). Most (82%) of the debtors assets were located in Illinois and none
of the debtors assets were located in Delaware. Significant litigation was also pending in
Illinois. See Qualteq,2012 WL 527669; see also Rehoboth, 2011 WL 504267 at *3-5
(transferring venue from Delaware to Texas).
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40. As in Spanish Peaks, Qualteq, and Rehoboth, virtually all of this Debtors assets
are located in Colorado, significant litigation is pending in Colorado, none of the creditors listed
on the List of Creditors Holding Twenty Largest Unsecured Claims (the Top 20 List) has a
Delaware address, eleven on the Top 20 List have Colorado addresses, five on the Top 20 List
have California addresses, Debtors principal is a Colorado resident, Debtors only place of
business is in Colorado, and Debtors business is conducted in Colorado.
41. Bankruptcy courts also recognize that matters of special concern to a particular
community should be decided by local courts. See, e.g., Condor Exploration, 294 B.R. at 378
(many courts have included as a significant consideration, a states interest in having local
controversies decided within its borders) (citation omitted); Rehoboth, 2011 WL 5024267 at *4;
Spanish Peaks, Memorandum Order at p.5; cf. Innovative Communication, 358 B.R. at 127
(noting the local public interest in the U.S. Virgin Islands is great where the debtors owned
companies that function as the telephone, newspaper, and other public communication vehicles
in the U.S. Virgin Islands).

7
In Qualteq, the debtors' attempt to have the bankruptcy case conducted at a distance from the pending litigation
and the debtors' primary activities was soundly rejected: "the Debtors' obvious attempt to 'escape' the forum best
suited for administration of the chapter 11 cases should not be condoned." Qualteq, 2012 WL 527669 at *7.
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15
42. This case presents a compelling justification for venue in Colorado. Debtors
product is the opportunity to play golf at premier golf courses in a unique setting and community
in Eagle County, Colorado, and to enjoy related amenities and the concomitant lifestyle. Unlike
many other types of business, Debtors product can be used only where its assets are located, i.e.,
Eagle County, Colorado. Further, the success of the Club has a direct impact on property values
in the Cordillera community. Based on these circumstances, the solution to Debtors problems
should be determined in Colorado.
C. Application of Factors in This Case Mandates Transfer of Venue to Colorado
(a) The Debtor, Its Operations, and Most of Its Creditors are Located in Colorado.
43. The Debtors principal place of business and virtually all of its assets are located
in Colorado, and Debtors owner lives in Colorado. Many courts determine a debtors principal
place of business based upon an operational test, including the location of day-to-day
activities. See Condor Exploration, 294 B.R. at 374. Using an operational test, the Debtors
principal place of business is in Colorado.
44. Moreover, 54% of Debtors creditors, totaling 2785 of Debtors 5145 total
creditors, are listed on Debtors Mailing Matrix with Colorado addresses. Ten of the creditors
listed on the Debtors Mailing Matrix are shown with Delaware addresses just 0.4% of them!
Eleven of the 20 largest unsecured creditors listed by Debtor with the Petition are shown with
addresses in Colorado; none are listed in Delaware. The creditors on this list include some with
claims less than $10,000.00. This list, executed under penalty of perjury by Debtors principal, is
indisputably wrong. Club members are owed refunds of deposits far in excess of this amount.
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Many of Debtors members should be listed on Debtors list of 20 largest creditor, and each of
them owns property in Colorado.
(b) Proximity of Witnesses Necessary to Administer the Estate Favors Colorado.
45. Because all of Debtors real estate and all other assets are located in Colorado,
and many creditors are located in Colorado, many of the witnesses who will testify concerning
issues important to the administration of the Debtors estate are located in Colorado. Indeed, all
of Debtors operations and all of its employees and management are in Colorado.
46. The Moving Parties are aware of no witness necessary to the administration of the
estate that is located in Delaware. The Debtor has filed a motion to retain a Chief Restructuring
Officer that is described as being with a national consulting and accounting firm and shows a
Sherman Oaks, California address. (Debtors Motion for an Order, Pursuant to Sections 105 and
363 of the Bankruptcy Code and Bankruptcy Rule 6003, Authorizing and Approving (I) the
Debtors Designation of Alfred H. Siegel as Chief Restructuring Officer, and (II) Retention and
Employment of Crowe Horwath, LLC, Nunc Pro Tunc to the Petition Date (the CRO Motion,
Docket No. 8). The proposed Chief Restructuring Officer, Alfred H. Siegel, states that he is a
Partner at in [sic] the Sherman Oaks office of Crowe Horwath, LLC . . . located at 15233
Ventura Blvd., 9
th
Floor, Sherman Oaks, CA 91403. Crowe has 27 offices throughout the United
States with affiliates worldwide. (Siegel Declaration, Docket No. 8, 1, attached to the CRO
Motion). Debtor is represented by the San Diego, California office of Foley & Lardner LLP, and
has retained Young Conaway Stargatt & Taylor, LLP, as Delaware local counsel. Even so, the
location of Debtors professionals is not entitled to significant consideration on a motion to
transfer venue. See Son v. Coal Equity, Inc. (In re Centennial Coal, Inc.), 282 B.R. 140, 146
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17
(Bankr. D. Del. 2002) (convenience of counsel is not relevant to the determination of whether to
transfer venue).
(c) The Debtors Assets are in Colorado.
47. As stated above, all of the Debtors assets are located in Colorado.
(d) The Estate can be Administered Most Efficiently in Colorado.
48. Based on the location of creditors, witnesses, and Debtors unique assets (as well
as the substantive law that will govern many of the issues in this bankruptcy case), this
bankruptcy case will be administered most efficiently in Colorado.
(e) Ancillary Administration.
49. If the Debtors assets were to be liquidated, Colorado would have the paramount
interest in the assets. See Innovative Communications, 358 B.R. at 128 n.16. In addition, a
Colorado chapter 7 trustee would more efficiently administer the case than a Delaware chapter 7
trustee. See Condor Exploration, 294 B.R. at 380; see also In re Abacus Broadcasting Corp.,
154 B.R. 682, 684 (Bankr. W.D. Tex. 1993) (in deciding to transfer venue, noting: Were it
necessary to convert this case to chapter 7, the U.S. Trustee would routinely appoint a panel
trustee in El Paso, but the trustee would then have to administer assets in a city 1,000 miles
away). Similarly here, if the bankruptcy case were converted to a chapter 7 case for liquidation,
it would be much easier for a Colorado chapter 7 trustee to administer this case and Colorado
would have the paramount interest in the liquidation of a large real estate development located in
Colorado.
{00648619;v1 }
18
D. Based Upon Important Matters of Local Concern to Colorado, This Bankruptcy Case
should be Administered by a Colorado Court
50. As already stated, bankruptcy cases involving real estate developments should be
administered in the state where the real estate is located. Bankruptcy cases in which
governmental units have a significant stake are also best administered in the local jurisdiction.
See Condor Exploration, 294 B.R. at 379 (regulatory agencies, local governmental units and
general-creditor suppliers must play a crucial role in any bankruptcy case). The District is such
a unit of government and political subdivision with the authority to levy and collect taxes. The
disposition of Debtors assets will intimately affect the Cordillera community and the taxing
authorities and other local providers of essential services.
51. The interests of justice favor venue in the jurisdiction whose substantive law
governs the issues in the case. See, e.g., DHP Holdings II Corp. v. The Home Depot, Inc. (In re
DHP Holdings II Corp.), 435 B.R. 264, 275-76 (Bankr. D. Del. 2010) (agreeing that local
judges are more familiar with the applicable state law); Pinehaven Assocs., 132 B.R. at 1412
(this inquiry would include looking into the desirability of having a judge familiar with
applicable law hear and determine issues arising in the case).
52. In addition, a Colorado bankruptcy judge is better suited to handle a bankruptcy
case for a Debtor such as the Club whose only business activities are in Colorado. The
somewhat colorful language of the court in the Abacus Broadcasting case is highly relevant to
this Motion:
In bankruptcy especially, judicial notice is a jurisprudentially
sound thing to do. We do not evaluate cases in splendid isolation from the
outside world, nor should we. The enterprise that seeks reorganization
must satisfy the court that it is a likely candidate for reorganization, that it
has a fighting chance of surviving, even prospering, in the economic
{00648619;v1 }
19
community in which it operates. How much more difficult it is for a judge
to make such an evaluation without any personal experience with at least
the general tenor of that economic community. What, for example, does a
judge in Chicago, or Detroit, or Los Angeles, really know about the
survivability of a restaurant on the Riverwalk in San Antonio? What do I
know of the prospects of a small manufacturing enterprise in South Los
Angeles? Can a judge in Pittsburgh have any real sense of the likelihood
of reorganization of an oil drilling venture whose most valuable prospects
are horizontal wells to be drilled in the Austin Chalk? What do I really
know about the market for commercial boats operating out of Miami
harbor? Granted a court cannot premise its decisions just on the gut feel
for the community (nor should it). It still requires hard evidence, in the
form of testimony and the like. But that is not to say that the courts
familiarity with milieu is not highly relevant, for it is. Better, then, that in
evaluating a request for transfer of venue, the court take into account the
extent to which a judge on the ground as it were might more effectively
and efficiently (and perhaps even more fairly) administer the case than
might a judge far removed from the debtors operations.
Abacus Broadcasting, 154 B.R. 682, 685-86 (Bankr. W.D. Tex. 1993).
53. This bankruptcy case involve Colorado real estate, Colorado creditors, and local
issues of particular concern to Colorado. Both the convenience of the parties and the interests of
justice weigh heavily in favor of venue in Colorado.
54. In short, venue of this case should be in Colorado because Colorado has the
paramount interest in this bankruptcy case.
55. The CPOA and the District join in the Class Members Venue Change Motion.
VI. CONCLUSION
56. The Moving Parties have easily met their burden to demonstrate that the interests
of justice and the convenience of witnesses favor venue in Colorado. For all of the foregoing
reasons, the venue of this bankruptcy case should be transferred to the Bankruptcy Court for the
District of Colorado.
{00648619;v1 }
20
WHEREFORE, The Moving Parties respectfully request that the Court enter an order
transferring the venue of this bankruptcy case to the United States Bankruptcy Court for the
District of Colorado and for such additional relief as is appropriate.
Dated: July 5, 2012
ASHBY & GEDDES
/s/ Ricardo Palacio
William P. Bowden (#2553)
Ricardo Palacio (#3765)
500 Delaware Avenue, 8th Floor
P.O. Box 1150
Wilmington, DE 19899
Phone : 302-654-1888
Fax : 302-654-2067
E-Mail : rpalacio@ashby-geddes.com
and
SHERMAN & HOWARD L.L.C.
Peter A. Cal
Mark L. Fulford
633 17th Street, Suite 3000
Denver, CO 80202
Phone: 303-297-2900
Fax: 303-298-0940
E-Mail: pcal@shermanhoward.com
mfulford@shermanhoward.com
ATTORNEYS FOR CORDILLERA
PROPERTY OWNERS ASSOCIATION,
INC. AND CORDILLERA
METROPOLITAN DISTRICT
{00647658;v1 }
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
Cordillera Golf Club, LLC,
dba The Club at Cordillera.
Debtor.
Chapter 11
Case No.: 12-11893 (CSS)
Hearing Date: July 16, 2012 at 1:00 p.m. (Requested)
Objection Deadline: July 11 at 12:00 p.m. (Requested)
NOTICE OF MOTION AND HEARING
PLEASE TAKE NOTICE that on July 5, 2012, Cordillera Property Owners
Association, Inc. (CPOA) and Cordillera Metropolitan District (the District) (collectively,
the Moving Parties) filed the Motion of Cordillera Property Owners Association, Inc. and
Cordillera Metropolitan District to Transfer Venue to Colorado and Joinder in the 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
(the Transfer Motion) with the United States Bankruptcy Court for the District of Delaware,
824 North Market Street, Wilmington, Delaware 19801 (the Bankruptcy Court).
PLEASE TAKE FURTHER NOTICE that concurrently with the filing of the Transfer
Motion, the Moving Parties filed the Motion of Cordillera Property Owners Association, Inc.
and Cordillera Metropolitan District Pursuant to Del. Bankr. L.R. 9006-1(e) to Shorten Notice
and Objection Periods Regarding Their Motion to Transfer Venue to Colorado, and to Schedule
a Hearing on Such Venue Motion (the Motion to Shorten) with the Bankruptcy Court.
PLEASE TAKE FURTHER NOTICE that pursuant to the Motion to Shorten, the
Moving Parties have requested that the Court enter an order scheduling a hearing on the Transfer
Motion for the hearing currently scheduled for July 16, 2012 at 1:00 p.m. (Prevailing Eastern
Time), with responses and objections due July 11, 2012 at 12:00 p.m. (Prevailing Eastern
{00647658;v1 }
2
Time). In accordance with the Local Rules of Practice and Procedure for the United States
Bankruptcy Court of the District of Delaware (the Local Rules), the Bankruptcy Court will
rule on the Motion to Shorten without a hearing.
Dated: July 5, 2012
ASHBY & GEDDES, P.A.
/s/ Ricardo Palacio
William P. Bowden (#2553)
Ricardo Palacio (#3765)
Benjamin W. Keenan (#4724)
500 Delaware Avenue, 8th Floor
P.O. Box 1150
Wilmington, DE 19899
Telephone: (302) 654-1888
Facsimile: (302) 654-2067
Email: wbowden@ashby-geddes.com
rpalacio@ashby-geddes.com
bkeenan@ashby-geddes.com
- and -
SHERMAN & HOWARD L.L.C.
Peter A. Cal
Mark L. Fulford
633 17th Street, Suite 3000
Denver, CO 80202
Phone: 303-297-2900
Fax: 303-298-0940
E-Mail: pcal@shermanhoward.com
mfulford@shermanhoward.com
Attorneys for Cordillera Property Owners
Association and Cordillera Metropolitan District
EXHIBIT A
{00138624;vl }
Total/creditors
5144
Colorado
2785
Texas
309
California
285
Florida
237
Illinois
180
New York
107
Minnesota
87
Arizona
86
Pennsylvania
83
Georgia
59
Connecticut
58
Iowa
58
North Carolina
56
Ohio
56
Kansas
54
Missouri
54
Michigan
40
Wisconsin
40
Oklahoma
37
Massachusetts 31
New Jersey 28
Nebraska
26
Tennessee 26
Washington
26
Utah
23
Indiana 22
Maryland
21
Canada
20
Nevada
20
Louisana
19
Virginia
19
Oregon
17
Kentucky
16
South Carolina
16
Dlst Of Columbia 15
Idaho 12
Mississippi
11
Delaware 10
Hawaii
10
Vermont 9
Alabama 8
Arkansas 8
New Hampshire
7
New Mexico 7
Maine
6
south Dakota 6
Montana
3
Rhode Island
3
Wyoming 3
Virgin islands
2
West Virginia
2
FPO,AE 1
Alaska
1
Foreign Countries & Unknown Addresses 17
EXHIBITB
{00138624;vl }
In re:
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC, Case No.: 12-11893 (CSS)
dba The Club at Cordillera.
Debtor.
DECLARATION OF NANETTE KUICH IN SUPPORT OF MOTION OF CORDILLERA
PROPERTY OWNERS lNC. AND METROPOLITAN
DISTRICT TO TRANSFER VENUE TO COLORADO
I, Nanette Kuich, declare under penalty of petjury as follows:
1. [ am the President of the Board of Directors of the Cordillera Metropolitan
District (the "District"). I have served as President since May 20 I 0 and have been a member of
the Board since May 2006. I have personal knowledge of the inf01mation contained in this
Declaration based U:pon:ainohg other things, my' service as a n1ember of the Board President
1' ,o, I '' ' ,.
of the Board for the iny status as an owrier of property within the Cordillera community,
and based upon my review '6f business records of the District. If called upon to testify, I would
testify truthfully to the following facts.
2. I submit this Declaration in support of the Motion of Cordillera Property Owners
,,,, ..... : : .. I , ,,
Association, Inc. and the Cordillera Metropolitan District to Transfer Venue to Colorado.
: . .. ; . . . ,.'. . : '. . . . .
.. ' ;3, I haveIivetHrrEagle County, Colorado since:Febrlltary 1996. My;residence-in
Cordillera is my sole residence.
4. The District is a special district under Colorado law. See C.R.S. 32-1-101, et
seq. (the "Special District Act"). Under Colorado law, "special districts are political
subdivisions of the state and are created as convenient agencies for exercising such of the
governmental powers of the state as may be entrusted to them." See Johnson Homes, Inc. v.
Southwest Metropolitan Water and Sanitation District, 725 P.2d 12, 13 (Colo. Ct. App. 1986);
C.R.S. 32-1-1 03(20) ("Special district means any quasi-municipal corporation and political
subdivision organized or acting pursuant to the provisions ofthis article."). In addition to the
provisions ofthe Special District Act, the District also is governed by its Amended and Restated
Service Plan, which was approved by the Eagle County Board of County Commissioners on May
3, 2005 (the "Service Plan").
5. Within the Cordillera community, and pursuant to the Special District Act and the
Service Plan, the District provides, among other things, operation and maintenance of all public
facilities and infrastructure, which includes more than 40 miles of roadway and shoulder, 7,000
acres of property, and associated landscaping, water features, ponds, streetlights and signage. In
addition, the District performs snow removal, weed and pest control operations; manages the
community's recreation programs (other than those operated by the Debtor); provides public
safety services for the community, traffic control, wildlife management, and architectural
guideline compliance. In addition to operating and maintaining the public infrastructure within
Cordillera, the District has incuned significant bond debt to construct the public infrastructure
and currently repays the bond debt, as well as covers its operating expenses, with property taxes
paid by property owners within Cordillera, including the Debtor.
2
6. The District is authorized by the Special District Act to levy taxes on all taxable
property located within the District's botmdaries, for the purpose of defraying the costs of
government and satisfying the District's outstanding debt obligations. See 32-1-1201, C.R.S.
Under Colorado law, the taxes owed to the District are automatically secured by a first and prior
lien against the Debtor's taxable property located within the District's boundaries. See 32-1-
1202, C.R.S.
7. The Debtor is one of the two largest taxpayers within the District. In Colorado,
O' I
property taxes are paid in arrears, meaning that the Debtor's 2011 property taxes are actually
paid in 2012. As of the date of this affidavit, the debtor has not yet paid its 2011 taxes (due in
2012) and is in arrears in the amount of $205,311.31.
8. The Debtor's 2011 taxes, payable in 2012, are based upon an assessed value of
$2,904,860. In Colorado, commercial property, such as that of the Debtor, is assessed for tax
purposes at 29% of actual value. The Debtor has disputed the assessed value.
9. The total actual value of the real estate within Cordillera, as determined by the
Eagle County Assessor's Office, was $1,433,933,030 in 2010; in 2011, the value dropped to
$1,029,347,630. The decline in property value impacted the District's credit rating, in a negative
way, and also necessitated an increase in the District's mill levy to generate the tax revenues
necessary to cover the District's debt service and operational obligations.
1 0. It would be a substantial burden for me and others involved in this matter to travel
to Delaware from Colorado if the bankruptcy case were to remain in Delaware. Travel to
3
Wilmington, Delaware from Eagle Collll'cy'. Colorado takes not less th.an ten bours. Depending
upon what time hearings in Delaware are completed, I may not be able to return to Colorado on
the same day as the hearing.
Under penalty ofpeijury under the laws of the United States of .America and pur.;uqnt to
28 U.S.C. 1746, l certify that the foregoing statements are true and correct to the best of my
lc.tlnwledge. information, and belief.
Executed t h i s ~ day of July. 2012.
4
EXHIBITC
{00138624;vl }
In re:
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Chapter 11
Cordillera Golf Club, LLC, Case No.: 12-11893 (CSS)
dba The Club at Cordillera.
Debtor.
DECLARATION OF LOIS M. VANDEUSEN IN SUPPORT OF MOTION OF
CORDILLERA PROPERTY OWNERS ASSOCIATION, INC. AND CORDILLERA
METRO PO LIT AN DISTRICT TO TRANSFER VENUE TO COLORADO
I, Lois M. Van Deusen, dechire under penalty of perjury as follows:
1. I am the President of the Cordillera Property Owners Association, Inc. ("CPOA").
I have held this position since September 19, 2011. I have been a member of the Board of the
CPOA since November 16,2009. I have personal knowledge ofthe information contained in
this Declaration based upon, among other things, my service as President and member of the
Board of the CPOA, my status as an owner of property within the Cordillera community, my
status as a resigned member of the Cordillera Golf Club, LLC (the "Debtor" or "Club"), and
based upon my review of business records of the CPOA If called upon to testify, I would testify
truthfully to the following facts.
2. I submit this Declaration in support of the Motion of Cordillera Property Owners
Association, Inc. and Cordillera Metropolitan District to Transfer Venue to Colorado.
3. Eagle County, Colorado has been my primary residence since 2008. I have been a
member of the Club since 2000. I also own a consulting business, LVD Consulting, LLC, that is
registered as a Colorado entity and whose business address is in Colorado.
4. My family's application for membership in the Club was made in Colorado. My
membership agreement with the Debtor is governed by Colorado law. The existence of the Club
and the amenities it offered was a significant factor in our decision to buy property in Colorado.
5. The COP A is established pursuant to and governed by the Amended and Restated
Declaration of Protective Covenants, Conditions, and Restrictions for Cordillera, recorded on
May 12, 1993 in the real property records ofthe Eagle County Clerk and Recorder's Office at
Reception No. 504866 (as the same has been amended by the Second Amendment to Declaration
of Protective Covenants, Conditions, and Restrictions for Cordillera, recorded on May 11, 1998
in the real property records of the Eagle County Clerk and Recorder's Office at Reception No.
65572, and the Third Amendment to Declaration of Protective Covenants, Conditions, and
Restrictions for Cordillera, recorded on Aprill4, 2010 in the real property records ofthe Eagle
County Clerk and Recorder's Office at Reception No. 201007045), and the Amended and
Restated Bylaws of Cordillera Property Owners Association, Inc., dated as of, and approved by
the Board of Directors, on May 21, 2012.
6. All property owners in the Cordillera community in Eagle County, Colorado are
members ofthe CPOA. Not all property owners within the Cordillera community, however, are
Club members. The CPOA has five Directors, all of whom are resigned members of the Club.
7. The CPOA perfonns functions and manages it affairs in a manner similar to
property owners associations in lifestyle communities to enhance the overall quality of life
within the community, to provide programs and facilities for the community, and to preserve
property values within the community. In furtherance of this mission, the CPOA contracts with
2
and provides financial support to the Cordillera Metropolitan District, a political subdivision of
the State, in the provision of community operations services, debt retirement, and capital
projects; maintains oversight of the architectural review process within the community; manages
a wildfire and healthy forest initiative; administers a wildlife management program in
consultation with the Colorado Division of Wildlife; operates a ski club at Vail Mountain;
manages a community marketing program, and owns and operates a community center which
houses a cafe and a branch office of the Unites States Post Office. The CPOA also has
historically provided funding support for the community's public safety department, and
acquired and subsequently conveyed to the Cordillera Metropolitan District a large parcel of land
abutting the Eagle River, which currently is maintained as open space for the benefit of the
corrununity.
8. The CPOA is funded by assessments paid by its property owners. In addition, the
CPOA receives a percentage of the purchase price of all residential properties sold within the
boundaries subject to the CPOA. The CPOA depends on those revenues to maintain the
programs that characterize the Cordillera lifestyle.
9. The CPOA is one of the defendants in the litigation that the Debtor, its principal,
David A. Wilhelm, and certain related entities commenced in District Court, Eagle County, State
of Colorado styled Cordillera Golf Club, LLC, et al. v. Cordillera Transition Corporation, Inc .
et al., Case No. In that action, Debtor and the related plaintiffs mischaracterize
the CPOA, its individually named board members, and other community entities and individuals
as the driving force behind the decision of approximately 200 Club members to resign from the
3
Club. In reality, the Debtor's own actions, including broken promises and operational failures,
serve as the fount of community outrage and the resignation decisions. The lawsuit is merely a
last ditch effort to manufacture leverage over a community that serves not as the cause of
Debtor's failures, but the victims of it.
10. The value of properties within the CPOA are impacted by the success (or lack
thereof) of the Club. A significant portion of the CPOA's revenue comes from a Real Estate
Transfer Assessment ("RETA") of2% charged against the sales price of each home sold in
Cordillera. In 201 0, there were 44 transactions v.ithin Cordillera, resulting in RET A revenue of
$1,345,708. In 2011, the year in which Debtor's litigation against the CPOA was commenced,
there were 28 transactions within Cordillera, resulting in RETA revenue of$642,755. In
addition, the total actual value of the real estate within Cordillera, as determined by the Eagle
County Assessor's Office, was $1,433,933,030 in 201 0; in 2011, the value dropped to
$1,029,347,630.
11. It would be a substantial burden for me and others involved in this matter to travel
to Delaware from Colorado if the bankruptcy case were to remain in Delaware. Travel to
Wilmington, Delaware from Eagle County, Colorado takes not less than ten hours. Depending
upon what time hearings in Delaware are completed, I and other Colorado residents may not be
able to return to Colorado on the same day as the hearing. The CPOA would pay for the
expenses associated with this travel.
4
Under pena1ty of peljury under the laws of the United States of America and pursllllllt to
28 U.S.C. 1746, I certify that the foregoing statements are true and correct to the best of my
knowledge, information, and belief.
Executed t b i ~ y of July, 2012.
5
EXHIBITD
{00138624;vl }
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
Inre:
Chapter 7
Spanish Peaks Holdings II, LLC
Case No.ll-13300 (Bl.S)
Debtor.
Inre:
Chapter7
Spanish Peaks Lodge,. LLC
Case No.ll-13301 (BLS)
Debtor.
Inre:
Chapter7
The Oub at Spanish Peaks, LLC
Case No. 11-13302 {BLS)
Debtor.
MEMORANDUM ORDER
Upon consideration of the Motion of Secured Creditors for Change
of Venue Pursuant to 28 U.S.C. 1412 (the "Venue Motion"),l and the
objections thereto; and after conducting an evidentiary hearing on the
Venue Motion; and after due deliberation, the Court hereby FINDS as
follows:
1. At issue is whether these three related Chapter 7 bankruptcy
cases should remain in this Court, where they have pended since being
filed in October 2011,
2
or be transferred to the Bankruptcy Court in
1
Docket Nos. 72, 64, and 84, respectively, in Case Nos. 11-13300, 11-13301, and 11-
13302.
2
There is no dispute that venue is proper in this Court under 28 U.S.C. 1408. One of
the Debtors (defined below) is a Delaware corporation and the other two Debtors are
affiliates of a Delaware corporation. Section 1408, entitled "Venue of Cases Under Ti-
tle 11," provides that:
"IA] a case under title 11 may be commenced in the district court for the
district (1) in which the domicile, residence, principal place of business in
the United States, or principal assets in the United States, of the person
1
Montana, where the Debtors'
3
primary assets, much of their business
operations, and many of their creditors are located. For the reasons ex-
plained further below, the Court will transfer these cases to Montana.
2. Before financial troubles caused the Debtors to file for bankrupt-
cy, they were in the process of developing a 5,700 acre, high-end, resi-
dential community in Big Sky, Montana (the "Development"). After the
bankruptcy filings, Charles M. Forman was appointed as the Chapter 7
trustee (the "Trustee") to administer the Debtors' estates and to sell the
Development to repay the Debtors' creditors.
3. The Movants4 are various engineers, architects, contractors, and
subcontractors who worked on the Development Each Movant has
filed construction liens against the Development under Montana law.
The Movants have also sued the Debtors (and others) in Montana state
court over issues of lien priority and on claims for breach of contract,
violation of Montana's Prompt Payment Act, unjust enrichment and
quantum meruit. Those actions have been halted for the time being by
operation of the automatic stay, which came into effect when the Debt-
ors filed for bankruptcy.
4. All parties agree that 28 U.S.C. 1412 is the starting point for the
Court's venue transfer analysis. Entitled "Change of Venue/' 1412
provides that "a district 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." See also Fed R. Bankr. P. 1014(a) ("If
or entity that is the subject of such case have been located for the one
hundred and eighty days immediately preceding such commencement
... ; or (2) in which there is pending a case under title 11 concerning such
person's affiliate, general partner, or partnership."
Because the Debtors' principal assets are in Montana, venue would also be appropri-
ate in the District of Montana.
3 The "Debtors" are Spanish Peaks Holdings II, LLC, Spanish Peaks Lodge, LLC, and
The Club at Spanish Peaks, LLC. The former is a Delaware Corporation, the latter two
are Montana corporations.
4
The "Movants'' are CIA Inc., Morrison Maierle Inc., Specialty Systems Inc.,
Stresscon Inc., Williams Plumbing Heating & Utilities Inc., Ace Electric Inc .. MaCon
Supply Inc., Kenyon-Noble Lumber Company Inc., YMC Inc., and Walker Excavation
Inc.
2
a petition is filed in a proper district, ... the case may be transferred to
any other district if the court determines that the transfer is in the inter-
est of justice or for the convenience of the parties."). Section 1412 ap-
plies in cases, like this one, where venue in a given district is proper
under 28 U.S.C. 1408, as well as in cases that are improperly venued.
The party moving for change of venue has the burden of proof by a
preponderance of the evidence, and, although the debtor's choice of fo-
rum is entitled to great weight initially, In re Enron, 284 B.R. 376, 386
(Bankr. S.D.N.Y. 2002), the decision of whether to transfer venue "is
within the court's discretion based on an individualized case-by-case
analysis of convenience and fairnes..c;;." Id.; see also In re Consol. Equity
Prop., lnc., 136 B.R. 261, 266 (D. Nev. 1991) (stressing that "the determi-
nation as to venue is fact-specific"); In re Abacus Broad. Corp., 154 B.R.
682, 685 (Bankr. W.D. Tex. 1993) ("[V]enue does not easily submit to
hard and fast rules.").
5. When asked to transfer an entire bankruptcy case-as opposed
to a discrete proceeding within a case-courts examine "whether trans-
fer of venue will promote the efficient administration of the estate, j u d i ~
cial economy, timeliness and fairness." In re Enron, 284 B.R. at 387; see
also In re Rehoboth Hospitality, No. 11-12798, 2011 WL 5024267, at *3
(Bankr. D. Del. Oct. 19, 2011); In re Centennial Coal, Inc., 282 B.R. 140, 146
(Bankr. D. DeL 2002). Guiding that inquiry are factors such as:
" The proximity of the debtor to the court;
a The proximity of creditors of every kind to the court;
a The proximity of the witnesses necessary to the administra-
tion of the estate;
o The location of the estate's assets;
a The economical administration of the estate; and
a The necessity for ancillary administration if liquidation shoutd
result.
1 COLLIER ON BANKRUPTCY ~ 4.05[3)[ii] (Alan N. Resnick & Henry J.
Sommer eds., 16th cd. 2011) (citing In re Commom:oealth Oil Ref. OJ., 596
3
F.2d 1239, 1247 (5th Or. 1979), cert. denied, 444 U.S. 1045, 100 S. Ct. 732
(1980)).
6. The Court also agrees with Chief Judge Gross' recent statement
in In Te Rehoboth that
Courts in this Circuit ... have held that the estate of a real estate
partnership is most efficiently adm.inistered in the district where
the principal asset is located. In the context of what is essentially a
single asset case, the location of the lone improved real estate asset
is of particular concern to the Court, especially in the event of a
potential liquidation, and the case is better administered by a
court in the district in which it is located.
2011 WL 5024267 at *5 (citations and quotation marks omitted). While
the Court acknowledges that these cases do not precisely fit the single
asset model, Chief Judge Gross' comments do have application to the
case at bar.
7. After carefully considering the above policies and factors, the
Court finds that the Movants have satisfied their burden to show that
these Chapter 7 cases should be transferred to Montana.
8. First, the Debtors have extensive contacts with Montana. Two of
the three Debtors are Montana corporations. The Development-the
Debtors' primary asset-is located there, and Montana is where the
Debtors do the bulk of their business.
9. Second, a review of the Debtors' schedules shows that a signifi-
cant number of creditors are located either in Montana or in nearby
Western states like California, Oregon, and Utah. Though these claim-
ants may not, even in the aggregate, hold the largest claims against the
estate-that claim appears to belong to a New York City based inves-
tor-the Court must consider the interests of "creditors of every kind"
when evaluating a transfer request. In re Commonmealth Oil, 596 F.2d at
1247.
10. Third, these are Chapter 7 cases primarily involving the sale of
real property located in Montana. Though the record reflects that the
4
Trustee and his professionals have ably managed these cases, it is also
clear that the sale process remains in its early stages. For instance, no
sale motion has been filed, the Court has not been asked to approve
bidding and sale procedures, and the Trustee has not yet moved to re-
tain a broker or investment banker in connection with a sale.
11. The Trustee testified credibly and candidly that he is concerned
about the risk of material harm to the estates and to the interests of
creditors if the sale process is delayed on account of a transfer of venue.
He further testified that he hoped to move forward with a sale by late
spring of this year. However, given where the sale process is at the cur-
rent time, the Court does not conclude that transferring venue will ma-
terially disrupt the orderly administration and prosecution of these cas-
es, or a future sale. Were a sale scheduled to take place imminently, it is
likely that the Court's determination today would be different.
12. Finally, the Court notes that these cases may present the pro-
spect of significant litigation involving the claims of the Movants, and
perhaps others. According to the record adduced at the January 7, 2011
hearing on the Venue Motion, that litigation will primarily involve
questions of Montana lien and real property law. While this Court
could hear those disputes, the Montana Bankruptcy Court is better po-
sitioned to do so. See In re Rehoboth, 2011 WL 5024267 at *4 (holding that
because "resolution of the issues will require interpretation and appli-
cation of Texas real property law ... the Texas Bankruptcy Court is
uniquely positioned to determine [them]").
13. The Court is satisfied that the Movants have carried their bur-
den to demonstrate that transferring venue to Montana is in the inter-
ests of justice, fair to the parties in interest, and consistent with the effi-
cient administration of the estates. However, this Court will retain ju-
risdiction to determine allowance of fees, expenses, and compensation
for the Trustee and the Trustee's professionals retained in this Court
prior to the transfer of venue, unless otherwise ordered by subsequent
ruling of this Court or of the Montana Bankruptcy Court.
5
Accordingly, it is hereby
ORDERED, that the Venue Motion is GRANTED; and it is further
ORDERED, that these cases will be transferred to the United
States Bankruptcy Court for the District of Montana, subject to the lim-
ited retention of jurisdiction provision contained in ,113 above.
Dated: January 10, 2012
Wilmington, Delaware
BY THE COURT:
6
00648557.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
Cordillera Golf Club, LLC,
dba The Club at Cordillera.
Debtor.
Chapter 11
Case No.: 12-11893 (CSS)
Related Docket No. ______
ORDER GRANTING MOTION OF CORDILLERA PROPERTY OWNERS ASSOCIATION,
INC. AND CORDILLERA METROPOLITAN DISTRICT TO TRANSFER VENUE TO
COLORADO ANDJOINDER IN THE 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
Upon consideration of the Motion of Cordillera Property Owners Association, Inc. and
Cordillera Metropolitan District to Transfer Venue to Colorado and Joinder in the 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 (the Motion), and having
considered any objections thereto; and it appearing that due and adequate notice of the Motion has been
given; that it appears that no further or other notice is required; and after due deliberation and sufficient
cause appearing therefor, it is hereby ORDERED that
1. The Motion is GRANTED for the reasons stated on the record and as set forth herein.
2. This Chapter 11 case (including all pending contested matters and adversary proceedings
arising in, arising under or related to this Chapter 11 case) is hereby transferred to the United States
Bankruptcy Court for the District of Colorado, effective immediately.
Dated: July ____, 2012
_______________________________________
The Honorable Christopher S. Sontchi
United States Bankruptcy Court
CERTIFICATE OF SERVICE
I, Ricardo Palacio, hereby certify that, on July 5, 2012, I caused one copy of the foregoing to
be served on counsel below by first class United States mail, postage prepaid, unless otherwise
indicated.
Is/ Ricardo Palacio
Ricardo Palacio (#3765)
{00074510;vl }
Cordillera 2002 Service List
Christopher Celentino, Esq
Erika Moribita, Esq.
Mikel Bistrow, Esq.
Foley & Lardner LLP
402 W. Broadway Suite 2100
San Diego, CA 92101
(Counsel to the Debtor)
HAND DELIVERY
Matthew P. Ward, Esq.
Ericka F. Johnson, Esq.
Womble Carlyle Sandridge & Rice, PLLC
222 Delaware Avenue, Suite 1501
Wilmington, DE 19801
(N orthlight Fiancial, LLC)
Harlan W. Robins, Esq.
Dickinson Wright PLLC
15 N. 4th Street
Columbus, OH 43215
(Northlight Financial LLC)
Melissa Maxman, Esq
Ronald Wick, Esq.
Cozen & O'Connor PC
1627 I Street, NW, Suite 1100
Washington, DC 20006
(Cordillera Transition Corporation)
Carl A. Eklund, Esq
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, CO 80202
(Alpine Bank)
Kristi A. Katsma, Esq.
Dickinson Wright PLLC
500 Woodward Avenue, Suite 4000
Detroit, MI 48226
(Northlight Financial LLC)
J064775l;v2}
HAND DELIVERY
Michael R. Nestor, Joseph M. Barry
Donald J. Bowman, Kenneth J. Enos
Young Conaway Stargatt & Taylor LLP
1000 N. King Street, Rodney Square
Wilmington, DE 19801
(Counsel to the Debtor)
HAND DELIVERY
MarkS. Kenney, Esq.
Office of the United States Trustee
844 N. King Street, Suite 2207
Lock Box 35
Wilmington, DE 19801
HAND DELIVERY
Damien Tancredi, Esq.
Cozen & O'Connor, PC
1201 N. Market Street, Suite 1400
Wilmington, DE 19801
(Cordillera Transition Corporation)
HAND DELIVERY
Richard Riley, Esq.
Duane Morris LLP
222 Delaware A venue, Suite 1600
Wilmington, DE 19801
Vincent M. Marriott, III, Esq.
Sarah Schindler-Williams, Esq.
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
(Alpine Bank)
Ron Garfield, Esq
Garfield & Hecht, P.C.
601 East Hyman A venue
Aspen, CO 81611
(Alpine Bank)
Brad W. Breslau, Esq.
Cozen & O'Connor PC
707 17th Street, Suite 3100
Denver, CO 80202
(Cordillera Transition Corporation)
HAND DELIVERY
Tobey M. Daluz, Esq.
Joshua E. Zugerman, Esq ..
Ballard Spahr LLP
919 Market Street, II th Floor
Wilmington, DE 19801
(Alpine Bank)
James J. Holman, Esq
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103-4196
(David A. Wilhelm)
Colorado Department of Revenue
Attn: Bankruptcy Unit
1375 Sherman Street, Room 1375
Denver, CO 80261-000 I
Colorado Dept. of Labor & Unemployment
Attn: Bankruptcy Division
P.O. Box 956
Denver, CO 80201-956
Delaware Division of Revenue
Attn: Randy R. Weller, MS NO 25
820 French Street, 8th Floor
Wilmington, DE 19801
Internal Revenue Service
Insolvency Section
2970 Market Street
PO Box 7346
Philadelphia, PA 19101-7346
Secretary of State
Division of Corporations
Franchise Tax Division
401 Federal Street- Suite 4
P.O. Box 898
Dover, DE 19903
J064775l;v2}
Arthur J. Abramowitz, Esq.
Cozen & O'Connor PC
Liberty View, Suite 300
457 Haddonfield Road
Cherry Hill, NJ 08002
(Cordillera Transition Corporation)
Alpine Bank
A Colorado Banking Corporation
Attn: President, Officer of Managing Agent
141 E. Meadow Drive, Suite 210
Vail, CO 81657
Colorado Dept. of Labor & Employmen
Attn: Bankruptcy Unit
251 East 12th Avenue
Denver, CO 80203-2202
Cordillera Golf Club LLC
Attn: Dan White
97 Main Street
Suite E202
Edwards, CO 81632
Department of Treasury
Internal Revenue Service
Ogden, UT 84201-0030
Secretary of Treasury
Attn: Officer, Managing Agent or General Agent
820 Silverlakd Blvd., Suite I 00
Dover, DE 19904
Securities & Exchange Commission
SEC Headquarters
Attn: Office of the General Counsel (Bankruptcy)
100 F Street, NE
Washington, DC 20549
Securities & Exchange Commission
Attn: Office of the General Counsel (Bankruptcy)
Centeral Regional Office
1801 California Street, Suite 1500
Denver, CO 80202-2656
Securities & Exchange Commission
New York Regional Office
Attn: George S. Canellos, Regional Director
3 World Financial Center, Suite 400
New York, NY 10281-1022
U.S. Secretary of Treasury
Attn: Office of the General Counsel (Bankruptcy)
1500 Pennsylvania Avenue, NW
Washington, DC 20220
David Wilhelm
97 Main Street
Suite E202
Edwards, CO 81632
Acushnet Company
Attn: President, Officer or Managing Agent
P.O. Box 88111
Chicago, IL 60695-111
(Top 20 Creditor)
Callaway Golf, Inc.
Attn: Joyce
P.O. Box 88111
Chicago, IL 60695-111
(Top 20 Creditor)
Ceres Design & Arborscape LLC
d/b/a Land Designs by Ellison
Attn: President, Officer or Managing Agent
P.O. Box2134
Eagle, CO 81631-2134
(Top 20 Creditor)
)064775l;v2}
HAND DELIVERY
Ellen W. Slights, Esq.
Assistant United States Attorney
United States Dept. of Justice
1007 Orange Street, Suite 700
POBox2046
Wilmington, DE 19899
US Bank
Attn: President, Officer of Managing Agent
34353 Highway 6
Side c-101
Edwards, CO 81632
Acushnet Company
Attn: President, Officer or Managing Agent
333 Bridge Street
P.O. Box 965
Fairhaven, MA 02719
(Top 20 Creditor)
Aprapahoe Pumping Systems
A Division of Jay B. Folk
Attn: Jay Folk
P.O. Box 3482
Littleton, CO 80161
(Top 20 Creditor)
Centurylink, Inc.
Attn: President, Officer or Managing Agent
P.O. Box 4300
Carol Stream, IL 60197-4300
(Top 20 Creditor)
Collett Enterprises Inc.
Attn: President, Officer or Managing Agent
P.O. Box439
Gypsum, CO 81637
(Top 20 Creditor)
Cox, Castle & Nicholson LLP
Attn: President, Officer or Managing Agent
2049 Century Park East, 28th Floor
Los Angeles, CO 90007-3284
(Top 20 Creditor)
Colorado Motor Parts
Attn: Susan
P.O. Box 186
Frisco, CO 80443
(Top 20 Creditor)
CVC Property Owenrs Association
Attn: Diane
P.O. Box 2787
Edwards, CO 81632
(Top 20 Creditor)
Eagle County Treasurer
Attn: President, Officer or Managing Agent
P.O. Box470
Eagle, CO 81631
(Top 20 Creditor)
Greenberg Traurig
Attn: President, Officer or Managing Agent
5100 Town Center Circle, Suite 400
Boca Raton, FL 33486
(Top 20 Creditor)
LL Johnson Distribution Co.
Attn: John Knott
4700 Holly Street
Denver, CO 80216
(Top 20 Creditor)
Taylor Made, Inc.
Taylor Made, Adidas Golf Co.
Attn: President Offider or Manging Agent
5545 Fermi Court
Carlsbad, CA 92008-7324
(Top 20 Creditor)
Garry R. Appel
Appel & Lucas, PC
1660 17th Street, Suite 200
Denver, CO 80202
(Members of Certified Class)
l0647751;v2}
Dickinson, Prud'Homme, Adams & Ingram
Attn: President Offider or Manging Agent
730 17th Street, Suite 730
Denver, CO 80202-3504
(Top 20 Creditor)
Thomas Genshaft
Attn: President, Officer or Managing Agent
39 Boomerang Road
Aspen, CO 81611
(Top 20 Creditor)
Holy Cross Electric Assoc. Inc.
Attn: President, Officer or Managing Agent
P.O. Drawer 2150
Glenwood Springs, CO 81602-2150
(Top 20 Creditor)
River Centre Development
Attn: Dan Siefers
27 Main Street
Edwards, CO 81632
(Top 20 Creditor)
The Rush Family Trust UTD May 8, 1985
Jeffrey L. Rush, Trustee
Attn: Evan Stone, Esq.
12348 High Bluff Drive, Suite 100
San Diego, CA 92130
(Top 20 Creditor)
HAND DELIVERY
Mark D. Collins
Zachary I. Shapiro
Richards Layton & Finger P A
One Rodney Square
920 North King Street
Wilmington, DE 19801
(Members of Certified Class)