Case JKO Doc 8954 Filed 11/29/12 Page 1 of 11

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1 Case JKO Doc 8954 Filed 11/29/12 Page 1 of 11 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION ) Chapter 11 Cases In re: ) ) Case No JKO TOUSA, INC., et al., 1 ) Jointly Administered ) Debtors. ) ) AGREED EX PARTE MOTION FOR RELIEF FROM THE ORDER GRANTING THE DEBTORS SECOND OMNIBUS OBJECTION SOLELY WITH RESPECT TO PROOFS OF CLAIM #1159 AND #3196 TOUSA, Inc. ( TOUSA ) and its affiliated debtors and debtors in possession in the above-captioned, jointly administered chapter 11 cases (collectively, the Debtors ) move on an ex parte basis for entry of an order, substantially in the form annexed hereto as Exhibit A, granting relief from the Order Granting the Debtors Second Omnibus Objection to Certain Proofs of Claim (the Second Omnibus Order ) [ECF No. 7630] solely with respect to proof of claim numbers 1159 and 3196 filed by Strategic Capital Resources, Inc. and GMAC Model Home Finance LLC (f/k/a) GMAC Model Home Finance, Inc. ( GMAC ), respectively. In support of this motion, the Debtors respectfully represent as follows: 1 The Debtors in the cases are: TOUSA, Inc.; Beacon Hill at Mountain s Edge, LLC; Engle Homes Commercial Construction, LLC; Engle Homes Delaware, Inc.; Engle Homes Residential Construction, L.L.C.; Engle Sierra Verde P4, LLC; Engle Sierra Verde P5, LLC; Engle/Gilligan LLC; Engle/James LLC; LB/TE #1, LLC; Lorton South Condominium, LLC; McKay Landing LLC; Newmark Homes Business Trust; Newmark Homes Purchasing, L.P.; Newmark Homes, L.L.C.; Newmark Homes, L.P.; Preferred Builders Realty, Inc.; Reflection Key, LLC; Silverlake Interests, L.L.C.; TOI, LLC; TOUSA Associates Services Company; TOUSA Delaware, Inc.; TOUSA Funding, LLC; TOUSA Homes Arizona, LLC; TOUSA Homes Colorado, LLC; TOUSA Homes Florida, L.P.; TOUSA Homes Investment #1, Inc.; TOUSA Homes Investment #2, Inc.; TOUSA Homes Investment #2, LLC; TOUSA Homes Mid-Atlantic Holding, LLC; TOUSA Homes Mid-Atlantic, LLC; TOUSA Homes Nevada, LLC; TOUSA Homes, Inc.; TOUSA Homes, L.P.; TOUSA Investment #2, Inc.; TOUSA Mid-Atlantic Investment, LLC; TOUSA Realty, Inc.; TOUSA, LLC; and TOUSA/West Holdings, Inc.

2 Case JKO Doc 8954 Filed 11/29/12 Page 2 of 11 Jurisdiction 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). 2. Venue in this Court is proper pursuant to 28 U.S.C and The bases for the relief requested herein are section 105 of title 11 of the United States Code (the Bankruptcy Code ), Rule 9024(b)(6) of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules ) and Rule (C) of the Local Rules for the United States Bankruptcy Court for the Southern District of Florida. Background 4. On March 17, 2008, the Court entered an order establishing, among other things, May 19, 2008, as the deadline for each person or entity asserting a claim against any of the Debtors to file a proof of claim against the specific Debtor as to which the claim is asserted [ECF No. 614] (the Bar Date Order ) The Debtors provided written notice of the Bar Date Order to all known potential creditors of the Debtors according to the Debtors books and records at the time of mailing of the notice related to the Bar Date Order, including, among other potential claimants, all parties to litigation and homebuyers within the previous six years. 6. On April 15, 2008, Strategic Capital Resources, Inc. filed a general unsecured proof of claim ( Claim 1159 ) against TOUSA Homes, Inc. ( TOUSA Homes ) in the asserted amount of $20,607,443.58, on account of TOUSA Homes alleged contractual obligations arising from certain option and construction agreements. 2 Subsequent bar date orders were entered with respect to other claims potentially arising against the Debtors. 2

3 Case JKO Doc 8954 Filed 11/29/12 Page 3 of On May 19, 2008, GMAC filed a general unsecured proof of claim ( Claim 3196, and together with Claim 1159, the Claims ) against TOUSA Homes in the asserted amount of $14,852,443.61, on account of allegedly unpaid obligations arising from certain option and construction agreements. 8. On March 25, 2010, Strategic Capital Resources, Inc. transferred Claim 1159 to Jefferies Leveraged Credit Products LLC ( Jefferies ) [ECF No. 5336]. 9. On March 31, 2010, GMAC transferred Claim 3196 to Jefferies [ECF No. 5354]. 10. On March 16, 2011, the Debtors filed the Second Omnibus Objection to Certain Proofs of Claim (the Second Omnibus Objection ), pursuant to which the Debtors sought entry of an order reclassifying, among other claims, the Claims as general unsecured claims not entitled to status as Senior Debt (as defined in the Second Omnibus Objection) Jefferies counsel subsequently contacted the Debtors and asserted an informal objection to the relief requested in the Second Omnibus Objection as it related to the Claims. The Debtors and Jefferies agreed to adjourn the Second Omnibus Objection as it related to the Claims with respect to the Claims to a date to be determined. 12. Notwithstanding the parties agreement to adjourn the Second Omnibus Objection as to the Claims, the Debtors mistakenly listed the Claims on the schedule of claims to be reclassified, as well as the schedule of claims to be adjourned, and on May 26, 2011, the Court entered the Second Omnibus Order. 3 On January 27, 2009, the Debtors filed a motion to establish a streamlined process for objecting and responding to all filed claims [ECF No. 2400] (the Claims Procedures Motion ). On February 18, 2009, the Court entered an order granting the relief sought in the Claims Procedures Motion [ECF No. 2468]. 3

4 Case JKO Doc 8954 Filed 11/29/12 Page 4 of 11 Relief Requested 13. By this motion, and in light of the discovery of this oversight, the Debtors seek entry of an agreed order, on an ex parte basis with the consent of the statutory committee of unsecured creditors appointed in these chapter 11 cases (the Creditors Committee ), clarifying that the Claims have not been reclassified, but instead that the Second Omnibus Objection as it relates to the Claims has been adjourned to a date to be determined. Basis for Relief 14. Bankruptcy Rule 9024, which adopts Rule 60(b) of the Federal Rules of Civil Procedure, provides, in relevant part, that the court may relieve a party from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;... or (6) any other reason justifying relief.... A motion under rule 60(b) of the Federal Rules of Civil Procedure must be equitably and liberally applied to achieve substantial justice. Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980); see Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984) (noting that courts have characterized this umbrella provision as a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses. (quoting 7 J. Lucas and J. Moore, MOORE S FEDERAL PRACTICE 60.72[2] at 375 (2d ed. 1982)). 15. Courts have held that a slight mistake by an attorney should not deprive a party of an opportunity to present the true merits of its claim. See Blois v. Friday, 612 F.2d at 940. Given that the inclusion of the Claims on the schedule of claims to be reclassified attached to the Second Omnibus Order was a clerical error, there is a clear basis to grant the relief requested herein. 4

5 Case JKO Doc 8954 Filed 11/29/12 Page 5 of Additionally, to the extent that this oversight may be deemed an instance of excusable neglect, courts consider the following factors in determining whether to apply a liberal interpretation of excusable neglect: (1) whether granting the delay will prejudice the debtor, (2) the length of the delay and its impact on efficient court administration, (3) whether the delay was beyond the reasonable control of the person whose duty it was to perform, (4) whether the creditor acted in good faith, and (5) whether clients should be penalized for their counsel s mistake or neglect. In re Self, 155 B.R. 598, 600 (Bankr. S.D. Fla. 1993) (quoting In re Hall, 39 B.R. 43, 44 (Bankr. D. Hawaii 1984). Courts have also observed that because Rule 60(b) of the Federal Rules of Civil Procedure is remedial in nature, it should be liberally applied. See In re Self, 155 B.R. at Neither the Debtors nor their creditors will be prejudiced by the relief requested herein. The Claims will not be allowed at this time, but instead will remain subject to the Second Omnibus Objection. Further, adjournment of the Claims will provide the Debtors with the opportunity to continue discussions with Jefferies in an effort to reach a consensual resolution to the Claims rather than engaging in litigation. Accordingly, entry of this order will have no impact on, or delay to, the administration of these cases. 18. For these reasons, the Debtors respectfully request that the Court enter the Order clarifying the status of the Claims as adjourned to a date to be determined. [Remainder of the Page Intentionally Left Blank] 5

6 Case JKO Doc 8954 Filed 11/29/12 Page 6 of 11 WHEREFORE, for the reasons set forth herein, the Debtors respectfully request that the Court enter an order, substantially in the form annexed hereto as Exhibit A, adjourning the Second Omnibus Objection with respect to the Claims to a date to be determined. Dated: November 29, 2012 Respectfully submitted, BERGER SINGERMAN LLP /s/ Paul Steven Singerman Paul Steven Singerman (Florida Bar No ) 1450 Brickell Avenue, Suite 1900 Miami, FL Telephone: (305) Facsimile: (305) and- KIRKLAND & ELLIS LLP Richard M. Cieri (New York Bar No ) Joshua A. Sussberg (New York Bar. No ) 601 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Co-Counsel to the Debtors 6

7 Case JKO Doc 8954 Filed 11/29/12 Page 7 of 11 I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for the Southern District of Florida, and I am in compliance with the additional qualifications to practice in this Court as set forth in Local Rule

8 Case JKO Doc 8954 Filed 11/29/12 Page 8 of 11 Exhibit A Proposed Order

9 Case JKO Doc 8954 Filed 11/29/12 Page 9 of 11 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION In re: ) Chapter 11 Cases ) Case No JKO TOUSA, INC., et al., ) Jointly Administered ) Debtors. ) ) ORDER GRANTING AGREED EX PARTE MOTION WITH RESPECT TO DEBTORS SECOND OMNIBUS OBJECTION TO PROOFS OF CLAIM #1159 AND #3196 Upon consideration of the Agreed Ex Parte Motion for Relief from the Order Granting The Debtors Second Omnibus Objection To Proofs Of Claim #1159 And #3196 [ECF No. ] (the Motion ) 1 of TOUSA, Inc. ( TOUSA ) and its affiliated debtors and debtors in possession in the above-captioned, jointly administered chapter 11 cases (collectively, the Debtors ) requesting entry of an order, reinstating the Claims; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157 and 1334; and venue being proper before this Court pursuant to 28 U.S.C and 1409; and due and proper notice of the Motion having been provided; and it appearing that no other or further notice 1 Capitalized terms used herein but not otherwise defined have the meaning ascribed to them in the Motion.

10 Case JKO Doc 8954 Filed 11/29/12 Page 10 of 11 need be provided; and the Court having determined that there exists just cause for the relief granted herein and that such relief is in the best interest of the Debtors, their estates and creditors and all other parties in interest; and any responses to the Motion having been withdrawn, resolved, or overruled on the merits; and after due deliberation and sufficient cause appearing therefore, it is hereby agreed to by and between the Parties hereto, through their undersigned counsel, and ORDERED that: 1. Notwithstanding the Second Omnibus Order, the Claims are not reclassified as general unsecured claims and will remain subject to the Second Omnibus Objection, with the hearing on such objection with respect to the Claims, and the deadlines for filing responsive pleadings thereto, being adjourned to a date to be determined on appropriate notice. 2. Nothing in this Order will be construed as an admission of any allegation in the Claims or limit the rights of the Debtors, the Creditors Committee or any other party in interest to object to the Claims on any ground whatsoever, or the rights of Jefferies to defend against any such objections, and all such rights will expressly be preserved with respect to the Claims. 3. The terms and conditions of this Order shall be immediately effective and enforceable upon entry of this Order. 4. This Court retains jurisdiction with respect to all matters arising from or related to the implementation of this Order. 10

11 Case JKO Doc 8954 Filed 11/29/12 Page 11 of 11 Submitted by: BERGER SINGERMAN LLP Paul Steven Singerman (Florida Bar No ) 1450 Brickell Avenue, Suite 1900 Miami, FL Telephone: (305) Facsimile: (305) and- KIRKLAND & ELLIS LLP Richard M. Cieri (New York Bar No ) Joshua A. Sussberg (New York Bar No ) 601 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) Co-Counsel to the Debtors Copies to: Paul Steven Singerman (Attorney Singerman shall upon receipt serve a copy of this Order upon all interested parties and file a certificate of service.) 11