Golden Mountain Financial Holdings Corp. (fka FNBCQ)

[iPrelude]

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLORADO
In re: )
)
UNITED WESTERN BANCORP, INC., ) Case No. 12-13815 TBM
EIN: 84-1233716 ) Chapter 7
)
Debtor. )
____________________________________________________________________________
APPLICATION TO EMPLOY HOGAN LOVELLS US LLP
AS ATTORNEYS FOR THE TRUSTEE
Simon E. Rodriguez, Chapter 7 Trustee of the Bankruptcy Estate of United Western
Bancorp, Inc. (the “Trustee”) by and through his counsel, hereby applies to this Court for
authorization to employ the law firm of Hogan Lovells US LLP (“HL”) as attorneys for the
Trustee, and states as follows:
1. On March 2, 2012, United Western Bancorp, Inc. (“the Debtor”) filed its
voluntary petition for relief in bankruptcy under Chapter 11. From March 2, 2012 to April 15,
2013, the Debtor operated as a debtor-in-possession. On April 15, 2013, the Bankruptcy Court
entered an Order converting the Debtor’s bankruptcy case to a case under Chapter 7 of the
Bankruptcy Code.
2. Simon E. Rodriguez is the duly appointed Chapter 7 trustee of the Debtor’s
bankruptcy estate.
3. There is a dispute between the estate and the Federal Deposit Insurance
Corporation (“FDIC”), as Receiver for United Western Bank (the “Bank”) regarding the
ownership of a $4,081,334.67 tax refund paid by the U.S. Internal Revenue Service (“IRS”) to
the Debtor (the “Tax Refund” or “Refund”), which is currently on deposit in the Registry of the
Court, pending resolution of the dispute. The Bank is a subsidiary of the Debtor, which files
consolidated tax returns on behalf of a consolidated group, including the Bank. The handling of
the refund is governed by an agreement the Debtor, the Bank and the rest of the members of the
consolidated group entered into, the Tax Allocation Agreement (“TAA”) dated January 1, 2008.
The Trustee’s position is the TAA establishes a debtor-creditor relationship between Debtor and
the Bank with respect to any tax refunds. The FDIC’s position is that it owns the Tax Refund.
4. The Trustee commenced an Adversary Proceeding concerning the FDIC’s claim
and the Tax Refund, Rodriguez v. FDIC (In Re United Western Bancorp, Inc.), Adv. Proc. No.
14-01191 TBM on April 16, 2014. This Court entered summary judgment in favor of the
Trustee and against the FDIC on September 16, 2016. The FDIC appealed this judgment to the
U.S. District Court for the District of Colorado (the “District Court”). On July 10, 2017 the
Case:12-13815-TBM Doc#:661 Filed:03/04/19 Entered:03/04/19 15:49:21 Page1 of 5
2
District Court reversed the judgment of the Bankruptcy Court. The Trustee appealed this order
to the U.S. Court of Appeals for the Tenth Circuit (the “Tenth Circuit”). On June 19, 2018 the
Tenth Circuit affirmed the District Court. On January 29, 2019, the Tenth Circuit granted in part
and denied in part the Trustee’s Petition for Rehearing and issued a revised opinion.
5. The Trustee desires to employ HL to investigate grounds for and the advisability
of filing a Petition for Certiorari to the U.S. Supreme Court (“Petition”) and, if advisable, file a
Petition and if granted prosecute an appeal to the Supreme Court. The Trustee anticipates that
Neal Katyal and Mitchell Reich of HL will supervise or provide most of these services.
6. At present, due to a pending and unresolved administrative claim, the estate has
no assets with which to fund a Petition and appeal to the Supreme Court. HL has agreed to
provide their services on a contingent fee basis. HL requests that this Court specifically approve
of the Trustee’s execution of a Contingent Fee Agreement between HL and the estate,
authorizing HL to be compensated on a contingency fee basis. A copy of the agreement is
attached hereto as Exhibit A.
7. The contingent fee agreement provides that HL will receive thirty five percent
(35%) of any monies recovered by the estate.
8. The Trustee believes that approval of this application under 11 U.S.C. § 327(a) is
in the best interest of the estate.
9. To the best of the Trustee’s knowledge, the firm and its employees have no
connection or conflict of interest with the bankruptcy estate, the Debtor, creditors, any other
party in interest, their respective attorneys and accountants, the United States Trustee's office, or
any person employed in the office of the United States Trustee. Although it does not constitute a
conflict of interest, in the interest of full disclosure, the Trustee discloses that HL represents
defendant Lloyds Banking Group (“LBG”) in a lawsuit in which the FDIC, as Receiver for
United Western Bank, among other FDIC bank receiverships, is a plaintiff, Federal Deposit
Insurance Corporation as Receiver for Amcore Bank, N.A. v. Bank of America Corporation,
Case No. 1:14-cv-01757-NRB, MDL No. 2262 (S.D.N.Y.). FDIC as Receiver for United
Western Bank is adverse to LBG in this lawsuit.
10. HL are disinterested persons qualified to be employed under § 327(a) and
F.R.B.P. 2014(a). See Affidavit of Neal Katyal, attached hereto as Exhibit B. 1
11. HL is aware of the provisions of 11 U.S.C. § 328(a) and has agreed,
notwithstanding the terms and conditions of employment set forth herein, that the Court may
allow compensation different from the compensation provided for herein if such terms and

1. Please note that the Schedule A referenced in the Katyal Affidavit is the Schedule A attached to the Affidavit.
Case:12-13815-TBM Doc#:661 Filed:03/04/19 Entered:03/04/19 15:49:21 Page2 of 5
3
conditions prove to have been improvident in light of developments not anticipated at the time of
the fixing of such terms and conditions.
12. HL requests its employment be approved effective as of March 4, 2019.
13. HL will seek approval of its compensation and reimbursement of expenses by
separate application in accordance with the Bankruptcy Code and Rules.
WHEREFORE, the Trustee respectfully requests the Court to enter its Order authorizing
him to enter into a contingent fee agreement under 11 U.S.C. § 327(a) with Hogan Lovells USA
LLP to represent the estate as counsel in connection with certain potential litigation described
above on a contingent fee basis effective as of March 4, 2019, with such compensation for legal
services to be paid as an administrative expense in such amounts as this Court may hereafter
determine and allow.
DATED: March 4, 2019.
Respectfully submitted,
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Mark E. Haynes
Mark E. Haynes, #12312
717 17th Street, Suite 2800
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Simon E. Rodriguez, Chapter 7
Trustee
Case:12-13815-TBM Doc#:661 Filed:03/04/19 Entered:03/04/19 15:49:21 Page3 of 5
4
CERTIFICATE OF MAILING
I hereby certify that on March 4, 2019, a true copy of the foregoing was served by
depositing same in the United States mail, postage prepaid and properly addressed to:
U.S. Trustee’s Office
1961 Stout Street, Suite 12-200
Denver, CO 80294
Attn: Alan K. Motes, Esq.
Ethan Birnberg, Esq.
600 17th St., Suite 1800 South
Denver, CO 80202
Theodore Brin, Esq.
1601 Blake St., Suite 305
Denver, CO 80202
Angela D. Dodd, Esq.
U.S. Securities & Exchange Commission
175 W. Jackson Blvd., Suite 900
Chicago, IL 60604
Maria J. Flora, Esq.
1763 Franklin St.
Denver, CO 80218
Caroline C. Fuller, Esq.
1801 California St., Suite 2600
Denver, CO 80202
Jessica Kumar, Esq.
155 N. Wacker Dr., Suite 3200
Chicago, IL 60606
Mark A. Larson, Esq.
1600 Stout Street, Suite 1100
Denver, CO 80202
Mark A. Larson, Esq.
Larson Law Firm, LLC.
950 Spruce St., Ste. 1C
Louisville, CO 80027
Joel Laufer, Esq.
5290 DTC Pkwy, Suite 150
Englewood, CO 80111
Jeffrey M. Lippa, Esq.
1200 17th St., Suite 2400
Denver, CO 80202
Robert A. McDermott, Esq.
201 W. Colfax Ave., Dep’t. 1207
Denver, CO 80202
Brendon C. Reese, Esq.
1300 Broadway, 8th Floor
Denver, CO 80203
Jared S. Roach, Esq.
Reed Smith, LLP
225 Fifth Avenue
Pittsburgh, PA 15222
Matthew D. Skeen, Esq.
P.O. Box 218
Georgetown, CO 80444
Paul G. Urtz, Esq.
1660 Lincoln St., Suite 2850
Denver, CO 80264
Case:12-13815-TBM Doc#:661 Filed:03/04/19 Entered:03/04/19 15:49:21 Page4 of 5
5
John F. Young, Esq.
1700 Lincoln St., Suite 4550
Denver, CO 80203
/s/ Mark E. Haynes
Mark E. Haynes
Case:12-13815-TBM Doc#:661 Filed:03/04/19 Entered:03/04




https://www.courtlistener.com/recap/gov.uscourts.cob.364850/gov.uscourts.cob.364850.661.0.pdf

this is connected to our (FNBCQ) tax assets as well, and the battle is not over, so good news for FNBCQ so far