UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ) ) ) ) ) )

Transcription

1 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: GREEKTOWN HOLDINGS, LLC, et al., 1 Debtors. ) ) ) ) ) ) Case No Chapter 11 Jointly Administered Honorable Walter Shapero REORGANIZED DEBTORS RESPONSE TO MOTION TO REQUEST FOR RECONSIDERATION DENYING REORGANIZED GREEKTOWN HOLDINGS, LLC (DEBTORS) ORDER TO ADMINISTRATIVELY CLOSING [SIC] THE FOLLOWING CONSOLIDATED CORPORATIONS UNDER GREEKTOWN HOLDINGS, LLC, CASE NO INTRODUCTION Diana C. Adams, Beverly Louis, and Linda Rogers (collectively referred to herein as the Movants ) seek reconsideration of the Order Granting Reorganized Debtors Motion for an Order Administratively Closing Case Under 11 U.S.C. 350(a) and Federal Rule of Bankruptcy 3022 (the Order ) [Doc. No. 3895]. Movants ask that this Court reconsider the administrative closing of the case because the Reorganized Debtors have allegedly violated a section of the criminal 1 Greektown Holdings, LLC, Greektown Casino, LLC, Kewadin Greektown Casino, LLC, Monroe Partners, LLC, Greektown Holdings II, Inc., Contract Builders Corporation, Realty Equity Company, Inc., and Trappers GC Partner, LLC are collectively referred to as the Reorganized Debtors herein. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 1 of 58

2 and penal code, after Movants chose not to participate in this case for approximately seven years after the case was filed in even though they were well aware that the case was pending. Movants do not having standing, have not established the necessary grounds for reconsideration, and their participation in this case is inexplicably untimely; therefore, the Court should deny the relief requested. FACTS On May 29, 2008 (the Petition Date ), the Reorganized Debtors filed voluntary petitions under Chapter 11 of Title 11 of the United States Code. 2 The day after the Petition Date, McDonald Hopkins, PLC filed a Notice of Appearance on behalf of the Tribe and its political subdivision, the Kewadin Casinos Gaming Authority. [See Doc. Nos. 9 and 11]. The Tribe was the first creditor to file an appearance in the case. The Tribe was represented throughout the case by extremely competent counsel. On January 5, 2009, Frost Brown Todd LLC filed a Notice of Appearance on behalf of the Tribe [See Doc. No. 751]. Then, on August 17, 2009, Plunkett Cooney also filed a Notice of Appearance on behalf of the Tribe [See Doc. No. 1404]. 2 The Debtors filed a Motion for Joint Administration on May 30, 2008 [Doc. No. 5] and, on June 13, 2008, this Court entered a First Day Order for Joint Administration [Doc. No. 117]. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 2 of 58

3 The Tribe has received and continues to receive notice of each and every pleading filed in this case, and was actively involved from the very beginning of the Chapter 11 proceedings. It filed objections to every Joint Plan of Reorganization and Disclosure Statement that was proposed, participated in discovery leading up to the confirmation hearing, and participated in the confirmation hearing itself, in addition to taking numerous other legal actions in this case. Furthermore, several parties initiated adversary proceedings against the Tribe during the pendency of the case. The Tribe actively defended each adversary proceeding. The Tribe has updated its members on the status of the case since the Petition Date through its website ( and its own newspaper, which is published monthly and distributed free of charge to all of its members. The status of the case was also reported in newspapers and other media throughout the State of Michigan and the country, including the Sault Ste. Marie Evening News. News of the bankruptcy filing was a significant story for members of the Tribe, and the Tribe s own newspaper in particular covered it extensively. On July 14, 2009, for example, its newspaper contained four full pages of coverage devoted { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 3 of 58

4 exclusively to the bankruptcy case. See Articles, Exhibit 1. The coverage included an article containing an extensive history of the events leading up to the bankruptcy filing, and an article providing an in-depth analysis of the economics of Greektown Casino (the Casino ). It also included three articles related to the status of the Tribe s ownership of the Casino an article analyzing the Tribe s ability to continue to maintain its ownership interest, an article about the efforts of members of the Tribe to preserve the Tribe s ownership interest, and an article on the economic impact of ownership of the Casino on the Tribe. The claims bar date in this case was November 30, 2008, six months after the Petition Date. The Debtor confirmed the Joint Plan of Reorganization (the Plan ) approximately 14 months later (and more than 6 months after the detailed newspaper coverage described above), on January 22, The Order Confirming Plan became a final order on or about February 5, 2010, and the Plan became effective on June 30, Much, much later, almost seven years after the Debtors filed this case, and over six years after the claims bar date, Diana C. Adams filed a letter and brief with the Court on February 3, 2015 stating that she was trying to file complaint or motions to avoid transfers and recovery fraudulent transfers [sic] and requested { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 4 of 58

5 an examination. [See Doc. No. 3837, Page 1]. In that letter, Ms. Adams stated that she is a member of the Tribe and that the proposed complaint would be filed on behalf of the Tribe to expose the criminal activities surrounding Greektown Casino, attorney s [sic] & former owners. [See Doc. No. 3837, Page 1]. Also on February 3, 2015, Ms. Adams filed a Motion for/to Reconsider of Order [sic] Debtor s 8 th Order Extending Claim Objection Deadline and as to all Claims Filed by or on Behalf of S.S.M. Tribe- Kewadin Casino s [sic], which consisted of the same brief that was attached to the letter and asked for substantially the same relief that was requested in the letter. [See Doc. No. 3838]. The filing of these papers marks the first time that Ms. Adams attempted to participate in this case. On February 10, 2015, the Court issued orders denying the relief requested in both instances because the documents were procedurally defective. [See Doc. No and Doc. No. 3840]. On March 31, 2015, the Reorganized Debtors filed a Motion for an Order Administratively Closing Case under 11 U.S.C. 350(a) and Federal Rule of Bankruptcy Procedure 3022 ( Motion for Administrative Closing ). The Motion { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 5 of 58

6 for Administrative Closing was primarily filed in an attempt to eliminate the Reorganized Debtors obligation to pay over $120,000 in fees each year to the United States Trustee s office. Neither the Tribe nor any of the Movants filed an objection to the Motion for Administrative Closing. On April 13, 2015, Ms. Adams filed a Motion for/to Request Examination of Debtors, Avoid & Recover Transfers in Adv. Pro. No Attached to the Motion was the same brief that was included with the papers that were filed by Ms. Adams on February 3, On April 21, 2015, the Court denied the relief requested on the grounds that the Motion was procedurally defective. [See Doc. No. 620]. The initial hearing on the Motion for Administrative Closing occurred on April 20, Ms. Adams herself appeared at the initial hearing and the Court allowed her to argue her objections on the record even though she did not file a written objection either before or after that hearing. Ms. Adams failed to appear at the subsequent May 19, 2015 hearing. Following the resolution of formal objections filed by other parties (not including the Movants or the Tribe) this Court entered an Order granting the Motion for Administrative Closing on June 3, { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 6 of 58

7 On June 15, 2015, over 7 years after the Petition Date, Movants filed a Motion to Request for Reconsideration Denying Reorganized Greektown Holdings, LLC (Debtors) Order to Administratively Closing [sic] the Following Consolidated Corporations Under Greektown Holdings, LLC, Case No (the Motion for Reconsideration ). In the Motion for Reconsideration, Movants allege that the Debtors violated 18 USC Section 157 committing acts of bankruptcy fraud whereas Reorganized Greektown Holdings is attempting to use the bankruptcy court to close 6 of 8 consolidated Chapter 11 cases which will be aiding in the ongoing fraud scheme. Movants also describe fraudulent actions allegedly taken by a former chairman of the Tribe and the part owners of Greektown Holdings, LLC several years prior to the 2008 Petition Date, and assert that the filing of the instant case was used to conceal their years of crimes. On June 16, 2015, this Court entered an Order Permitting Response to Motion for Reconsideration (Dkt. 3897). This Response is filed as permitted by that Order. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 7 of 58

8 ARGUMENT I. Movants Do Not Have Standing A. Movants are Not Creditors Movants allege in the Motion for Reconsideration that they are creditors to attempt to justify their involvement in this case, but provide absolutely no evidence in support of this allegation. The term creditor is defined in the Bankruptcy Code as follows: (A) (B) (C) entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor; entity that has a claim against the estate of the kind specified in section 348(d), 502(f), 502(g), 502(h), 502(i) of this title; or entity that has a community claim. 11 U.S.C. 101(10A). A claim is, in the simplest terms, a right to payment or a right to an equitable remedy. 11 U.S.C. 101(5). For a party to have a recognized claim in a chapter 11 case, either (1) the claim must be included in the schedules that are required to be filed by the debtor and not listed in the schedules as disputed, contingent, or unliquidated, and/or (2) a proof of claim must be filed and allowed, as that term is defined in 11 U.S.C U.S.C { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 8 of 58

9 Although a creditor may raise and may appear and be heard on any issue in a case under [chapter 11], the evidence before this Court demonstrates that the Movants are not creditors of the Reorganized Debtors. 11 U.S.C None of the Movants were listed as having a claim of any type in any iteration of the schedules that were filed in this case. The Movants also have not, either jointly or individually, filed claims in this case, and the deadline to file claims passed over seven years ago. Substantively, Movants make it abundantly clear in the Motion for Reconsideration that the claims they believe they have are claims against Bernard Bouschor, a former chairman of the Tribe, and against the owners of Monroe Partners, LLC, the former holder of a 50% interest in Greektown Holdings, LLC. Movants assert claims against these people individually; they do not assert claims against any of the Reorganized Debtors. Movants must demonstrate that they have a claim against one of more of the Reorganized Debtors to be considered a creditor in this case. Yet the Motion for Reconsideration alleges no such claim. The Movants do not allege that the Reorganized Debtors owed them any money at any point, let alone explain why any such funds might have been owed. Movants had every opportunity to assert that they were creditors and file { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 9 of 58

10 claims in a timely manner. The Movants have known about this case since at least 2011, when Ms. Adams tweeted about it, and almost surely long before that. See Tweets, Exhibit 2, Tribe Media Coverage, Exhibit 1. The Movants have slept on their right to assert that they are creditors in this case for years, watching as all of the relevant deadlines passed. Now it is way too late to do so procedurally, and their allegations are inadequate to do so substantively. B. Movants are not Parties in Interest Section 1109(b) of the Bankruptcy Code provides that [a] party in interest may raise and may appear and be heard on any issue in a case under [chapter 11]. The term party in interest is not explicitly defined in the Bankruptcy Code. Thus, whether a person or entity is a party in interest is determined on a case-by-case basis. In re Ionosphere Clubs Inc., 101 B.R. 844, 851 (Bankr. S.D.N.Y. 1989). Courts typically consider the following factors when determining party in interest status: (1) whether the party has a practical stake in the outcome; (2) whether the party has an actual pecuniary interest in the case; and (3) whether the proceedings will impact the party in any significant way. In re Amatex Corp., 755 F.2d 1034, (3d Cir. 1985); Kapp v. Naturelle Inc. (In re Kapp), 611 R.2d 703, 706 (8th Cir. 1979). { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 10 of 58

11 The Movants appear to rely on their status as individual members of the Tribe to justify their Motion for Reconsideration. The Tribe formerly owned a 50% interest in Greektown Holdings, LLC, which operated and managed Greektown Casino. The individual members of the Tribe Movants here- did not have ownership interests in Greektown Holdings, LLC. See Section of the Tribal Code ( Each licensed gaming establishment shall be wholly owned by the Tribe. No part or share of the proceeds of the operation of a Tribal gaming establishment shall inure to the benefit of any person ). The net revenues earned as a result of the Tribe s ownership interest in Greektown Holdings, LLC were to be used for the benefit of the Tribe, primarily for funding the Tribe s governmental operations. See Section (3) of the Tribal Code. It is clear from numerous provision of Tribal Code that the Movants, as individual members of the Tribe, did not and do not have a direct stake or pecuniary interest in this case. The fact that the economics of the Tribe, and therefore the resulting benefits that the Movants might receive from being members of the Tribe, may be effected by this case is simply not enough to make each individual Tribe member a party in interest. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 11 of 58

12 The Tribe - the party that has the actual stake and pecuniary interest in this case- has been competently represented throughout this entire case by prominent and well-respected insolvency counsel. Party in interest status is denied to individual members of a groups whose interests are already represented in a case. See, for example, In re Addison Community Hospital Authority, 175 B.R. 646, 651 (E.D. Mich. 1994)(The bankruptcy court denied party in interest status to individual members of a citizens group because the citizens group was already represented in the case). Finally, a practical indication of the fact that individual members of the Tribe do not own any of the claims alleged in the Motion for Reconsideration is that parties representing their interests have already brought claims against the alleged wrongdoers. The Tribe has already been vigorously prosecuting a civil action against Bernard Bouschor, the former chairman of the Tribe against whom the Movants allege many of their claims, in state court for breach of fiduciary duty, breach of contract, conversion, and fraud. See Sault Ste. Marie Tribe of Chippewa Indians v. Bouschor, 2008 WL (Mich. App. Nov. 18, 2008), which is attached as Exhibit 3. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 12 of 58

13 Similarly, the Liquidating Trustee has initiated an adversary proceeding against the owners of Monroe Partners, LLC which, as this Court is well aware, is also being vigorously prosecuted. The allegations in the adversary proceeding are similar to many of the allegations the Movants appear to be making in their Motion for Reconsideration. Under the Plan, the Liquidating Trustee is the proper party to assert the claims against the owners of Monroe Partners, LLC. In short, the Tribe and the Liquidating Trustee, not individual Tribe members, are the proper parties to initiate actions based on the allegations the Movants make in their Motion for Reconsideration. And, in fact, they have already done so. The Movants themselves are not creditors or parties in interest and, as a result, have no standing to file additional, time barred, redundant actions simply because they apparently believe that the proper parties have not proceeded exactly as Movants would have liked. II. Movants Have Not Established the Grounds Necessary for the Motion for Reconsideration to be Granted Even if Movants had standing to bring the Motion for Reconsideration (which they do not), Movants have failed to establish the substantive grounds necessary for the Court to grant their Motion. Local Bankruptcy Rule (a) governs { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 13 of 58

14 motions for reconsideration. Subsection (3) of that Rule states the grounds that must be established by a movant for a motion for reconsideration to be granted. It provides: (3) Grounds. Generally, and without restricting the discretion of the court, a motion for reconsideration that merely presents the same issues ruled upon by the court, either expressly or by reasonable implication, will not be granted. The movant shall not only demonstrate a palpable defect by which the court and the parties have been misled but also show that a different disposition of the case must result from a correction thereof. Movants point to absolutely no defect in the Motion for Administrative Closing by which they have been or the Court has been, misled. The Motion for Administrative Closing was granted by the Court based upon the facts and law cited therein. Movants have not asserted that any of the content of the Motion for Administrative Closing was inaccurate, misleading, or defective in any way. For this reason alone the Motion for Reconsideration should be denied. Additionally, Movants have failed to demonstrate that a different disposition of the case would result if the Motion for Reconsideration had not been granted and the Order had not been entered. The only reason Movants cite for requesting reconsideration is an alleged violation of 18 U.S.C Specifically, Movants assert that the Reorganized Debtors have violated 18 USC Section 157 committing acts of bankruptcy fraud whereas Reorganized Greektown Holdings is { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 14 of 58

15 attempting to use the bankruptcy court to close 6 of 8 consolidated Chapter 11 cases which will be aiding in the ongoing fraud scheme. Title 18 of the United States Code is the criminal and penal code. Bankruptcy courts do not have jurisdiction to hear and determine matters that fall under title 18. Pursuant to 28 U.S.C. 157 and 28 U.S.C. 1334, bankruptcy courts have jurisdiction only to hear and determine cases under title 11, and all core proceedings arising under title 11. Thus, even if a violation of 18 U.S.C. 157 occurred, the Court would not have jurisdiction to address such violation.. As a result, even if this Court were to set aside the Order granting the Motion for Administrative Closing, the status of Movants claims would be completely unaffected, because this Court would have no jurisdiction to hear them. And the only effect on this case would be that the Reorganized Defendants would have to continue to pay $120,000 in fees each year to the United States Trustee without reason. Because Movants have failed to demonstrate any palpable defect in the Motion for Administrative Closing which misled a party or this Court, and because even if there was such a defect Movants would still be unable to assert the claims they are { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 15 of 58

16 seeking to allege, Movants have failed to meet the standard for granting a motion for reconsideration. Consequently, this Court should deny the Motion for Reconsideration without further proceedings. III. Movants Participation in this Case is Untimely Finally, this Court should deny the Motion for Reconsideration because the Movants participation in this case is inexcusably untimely. Since the Petition Date, the progress of this case has been reported in national, state, and local newspapers and in other news media. And as members of the Tribe, the Movants are provided a free monthly newspaper from the Tribe. The purpose of the newspaper, is to inform and educate tribal members and the public about Sault Tribe and important local, state and national issues that could affect the tribe or its members. See the Tribe s website, at This case was big news within the Tribe, and the Tribe provided its members with extensive status updates on this case in the newspaper. See Exhibit 4. The Tribe also provided case status updates on its website. By 2011, over four years ago, Movant Diana Adams was tweeting about this case in a manner that strongly suggests she had been aware of it for some time. See Exhibit 2. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 16 of 58

17 Simply put, Movants have likely known about this case since the time it was filed. At the very least, Movants have known about and had easy access to information related to this case for several years. And yet Movants waited for over seven years to participate despite knowing that this case was pending. Movants have provided no explanation of why they waited until the estate was almost fully administered to begin filing papers with this Court. Nor do Movants provide any explanation as to why they chose not to file objections to the Motion for Administrative Closing when such Motion was pending. Movants clearly knew that the Motion for Administrative Closing was pending as they appeared at the hearing. Movants made their first attempt to file a pleading in this case on February 3, The Reorganized Debtors filed their Motion for Administrative Closing over a month later, on March 31, The Motion for Administrative Closing was pending with this Court for over two months, until this Court entered the Closing Order, on June 3, And yet the Movants filed no objection prior to its entry. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 17 of 58

18 While the Movants knowingly slept on their rights, the claims bar date passed, the time to object to the Plan passed, the time to vote on the Plan passed, this Court confirmed the Plan and established the Liquidation Trust, and every conceivably applicable statute of limitation ran. 3 Every party in this case has invested time, money and resources, changed their positions and relied on court orders and the legal certainty such orders are intended to provide. It is much too late, both legally and equitably, and without meeting the strict standards of Local Bankruptcy Rule (a) (E.D.M.), to re-open this administratively closed case. CONCLUSION Movants have failed to establish the necessary grounds set forth in L.B.R (a) (E.D.M) for the Motion for Reconsideration to be granted. Additionally, Movants lack standing and have inexplicably waited until over seven years after the case was filed to participate in the case even though they were well aware that the case was pending. Therefore, for these and other reasons stated herein, the 3 It is difficult to discern exactly what causes of action the Movants intend to assert if this Court grants their Motion for Reconsideration. However, the statute of limitations for the two most obvious possible causes of action, fraud and breach of fiduciary duty, are six years and three years, respectively. Even taking the date the Debtors filed this case, May 29, 2008, as the date from which the statutes should run (based on the facts the Movants allege in their Motion for Reconsideration, it is probably earlier), the longest limitations period ran over a year ago. { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 18 of 58

19 Reorganized Debtors respectfully request that this Honorable Court deny the Motion for Reconsideration and grant such other and further relief as this Court deems just and proper considering the facts and circumstances. Respectfully Submitted, SCHAFER AND WEINER, PLLC /s/ Daniel J. Weiner DANIEL J. WEINER (P32010) JOSEPH K. GREKIN (P52165) SHANNA M. KAMINSKI (P74013) Attorneys for Reorganized Debtors Woodward Ave., Suite 100 Bloomfield Hills, MI (248) Dated: July 6, 2015 { } wsd Doc 3901 Filed 07/06/15 Entered 07/06/15 17:32:50 Page 19 of 58

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59 UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: GREEKTOWN HOLDINGS, LLC, et al. 1 Debtors. ) ) ) ) ) Case No Chapter 11 Jointly Administered Honorable Walter Shapero CERTIFICATE OF SERVICE I hereby certify that on July 6, 2015, I electronically filed Reorganized Debtors Response to Motion to Request for Reconsideration Denying Reorganized Greektown Holdings, LLC (Debtors) Order to Administratively Closing [Sic] the Following Consolidated Corporations Under Greektown Holdings, LLC, Case No with the Clerk of the Court using the ECF system, which will send notification of such filing to all counsel currently included on the Court s Electronic Mail Notice List. I also certify that on July 6, 2015, I served a copy of Reorganized Debtors Response to Motion to Request a Notice of Entry of Order Granting Reorganized Debtors Motion for an Order Administratively Closing Case Under 11 U.S.C. 350(a) and Federal Rule of Bankruptcy Procedure 3022 with a Proposed Order Granting Reorganized Debtors Motion for an Order Administratively Closing Case Under 11 U.S.C. 350(a) and Federal Rule of Bankruptcy Procedure 3022 By first class mail upon Ms. Diana Adams, 4971 Lancaster Hills Dr., #201, Clarkston, MI /s/ Pamela Jozwiak, Legal Assistant to DANIEL J. WEINER (P32010) Schafer and Weiner, PLLC Woodward Ave., Ste. 100 Bloomfield Hills, MI Telephone: (248) COUNSEL FOR REORGANIZED DEBTOR 1 The Debtors bankruptcy cases - Greektown Casino, L.L.C. Case No ; Greektown Holdings II, Inc., Case No ; Contract Builders Corporation, Case No ; Realty Equity Company Inc., Case No ; and Trappers GC Partner, LLC, Case No are jointly administered with Greektown Holdings, L.L.C., Case No (together the Cases ). { } wsd Doc Filed 07/06/15 Entered 07/06/15 17:32:50 Page 1 of 1