.... A Question? & A Thought ....
Hello, I've been reading all day to catch up to you guys regarding some of the specific details and I wanted to ask .....
A Question .... Was "Coyote Creek" ever sold and recorded as a 363 sale?
" Matrix has owned its interest in Coyote Creek since 1995. Matrix has joined the Company in the Bankruptcy Filing and the Company expects to petition the Bankruptcy Court for leave to sell Coyote Creek to an unrelated third party for the best available price sometime in 2012 under Section 363 of the Bankruptcy Code. Any proceeds received in such sale, if completed, will be added to the Company’s bankruptcy estate and will be subject to the jurisdiction of the Bankruptcy Court under the Bankruptcy Code. Given the current condition of the United States real estate markets in general and the Denver, Colorado real estate market in particular, the Company is unable to express any estimate of the value of the real estate held by Matrix in Coyote Creek"
And a thought, In Berman's March 5th 2013 Conclusion, (what we are appealing) it appears to me this is emotionally charged and lacking precedence ! It also seems to me that the opinion contradicts itself on occasion
I'm starting to understand why BuckleySandler took this case on a contingent basis ...... HHHMMMMM .... just sayin'
AZ
CONCLUSION
At bottom, after one strips away all of the hyperbole about the agency’s “sudden” change of heart, the Bank’s fundamental grievance is that if only the agency had just given it a little
more time, it would have been able to come up with the necessary capital to save the day. Maybe. There are reasons to be skeptical: the Bank’s plans were dependent upon regulatory
changes that were unlikely to materialize, and the potential investors had carefully buffered their commitments with numerous contingencies. On the other hand, this was a Bank with a long
history of profitability, it had longstanding institutional relationships, and there were at least some investors willing to take a closer look. There is no doubt that the officers and directors
footnote: ...
18: The Bank takes issue with OTS’s conclusion that the Bank had “no realistic prospects for raising capital in the short term” contending that Congress did not demand immediate recapitalization and that OTS’s belief that the Bank’s recapitalization efforts “would necessarily rise and fall with the Recapitalization Transaction” was an “unduly narrow view of the Bank’s capital prospects.” Pl.’s Mem. at 45–46. But the agency did not demand immediate capitalization. It had been asking the Bank to recapitalize for more than one and a half years. See e.g., 2009 MOU, AR 220 (asking the Bank to “submit a written Capital Plan”). In that time period, the Bank presented only one recapitalization plan and the holding company stated that this plan was the Bank’s “only viable option” for restoring its capital. AR 2458. Further, the 2010 Investment Agreement prohibited the Bank from “enter[ing] into any agreement to raise
capital other than in connection with the transaction contemplated under the Investment Agreement.” AR 1189 (November 2010 letter to OTS stating that the investors were unwilling
to waive this provision). Therefore, the agency reasonably concluded that the since the Recapitalization Transaction was not viable, the Bank had no realistic prospects for restoring capital.
were seriously committed to the task, and one cannot simply dismiss their efforts, or their sincere belief that they would ultimately succeed, as frivolous. But in the end, whether the Court accepts the Bank’s assessment of its prospects wholeheartedly or with reservations is beside the point.
Given the standard that must be applied in this proceeding, the Court cannot find that the agency’s decision was unreasonable under all of the circumstances at the time it was made, or
that it was not supported by the administrative record. The Court will uphold OTS’s decision to appoint the FDIC as receiver for the Bank because the Bank has failed to demonstrate that the
Acting Director failed to articulate a rational basis, failed to consider the relevant factors, or made a manifest error in judgment when he concluded that there were three statutory grounds that independently supported the decision.19 Accordingly, the Court will deny the Bank’s motion for summary judgment and grant the defendants’ cross-motion. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: March 5, 2013
footnote: ...
19: “When an agency relies on multiple grounds for its decision, some of which are invalid, [courts] may only sustain the decision where one is valid and the agency would clearly have
acted on that ground even if the other were unavailable.” Williams Gas Processing-Gulf Coast, Co., L.P. v. FERC, 475 F.3d 319, 321 (D.C. Cir. 2006). Since the Court has concluded that all
three statutory grounds are valid, it need not address the Bank’s argument that “even if the Court determines that one ground of the seizure order was valid, none of the alleged grounds is sufficient – standing alone – to sustain the decision.” Pl.’s Reply at 29.[/I]
