NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT
Case 2:15-cv-02332-GW-PJW Document 23 Filed 04/07/15 Page 1 of 11 Page ID #:1418
NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT
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KATTEN MUCHIN ROSENMAN LLP WILLIAM B. FREEMAN #137276 JESSICA M. MICKELSEN #277581 515 South Flower Street, Suite 1000 Los Angeles, CA 90071-2212 Telephone: (213) 788-7445 Facsimile: (213) 788-0380 Attorneys for Plaintiff Wells Fargo Bank, N.A., a national bank chartered in South Dakota
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
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Plaintiff, v. HIDDEN VALLEY COMPANIES, INC., a California corporation; HIDDEN VALLEY TRANSPORTATION SYSTEMS, INC., a Delaware corporation; HIDDEN VALLEY MOVING AND STORAGE, INC., a California corporation; HIDDEN VALLEY TRANSFER, INC., a California corporation; HIDDEN VALLEY MOVING & STORAGE OF CENTRAL TEXAS, INC., a Texas corporation; HIDDEN VALLEY MOVING GROUP, INC. an Arizona corporation; PREMIER MOVING SYSTEMS, INC., a California corporation; STORE & MOVE SOLUTIONS, INC., a California corporation; BUG DOG PROPERTIES, LLC, a California limited liability company; BCD CAPITAL PARTNERS, LLC, a Texas limited liability company; BCD PROPERTIES, LLC, a California limited liability company; BCD SOUTHWEST PARTNERS, LLC, an Arizona limited liability company; and DOES 1-10,
CASE No. CV 15-2332-GW(PJWx) ORDER: (1) FOR THE APPOINTMENT OF A TEMPORARY RECEIVER AND A TEMPORARY RESTRAINING ORDER IN AID OF THE RECEIVER; AND (2) TO SHOW CAUSE WHY THE APPOINTMENT OF A RECEIVER SHOULD NOT BE PERMANENT Hearing Held: Date: April 6, 2015 Time: 2:00 p.m. Place: Courtroom 10 312 North Spring Street Los Angeles, CA 90012-4701
Defendants.
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1 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
Case 2:15-cv-02332-GW-PJW Document 23 Filed 04/07/15 Page 2 of 11 Page ID #:1419
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ORDER
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Upon due and proper consideration of the Complaint of Plaintiff Wells Fargo
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Bank, N.A., a national bank chartered in South Dakota (“Plaintiff”), on file herein,
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together with the ex parte application for the appointment of a temporary receiver, all
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of the supporting declarations, the memorandum of points and authorities and upon
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the representations of the parties made to the Court at the April 6, 2015 hearing on the
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ex parte application for a Temporary Restraining Order (“TRO”) and good cause
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appearing for the ex parte appointment of a receiver in this action:
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IT IS ORDERED that Joel B. Weinberg of Insolvency Services Group, Inc. be
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and is hereby appointed temporary receiver over Personal Property (as defined
12
hereinafter) of defendants Hidden Valley Companies, Inc., Hidden Valley
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Transportation Systems, Inc., Hidden Valley Moving and Storage, Inc., Hidden Valley
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Transfer, Inc., Hidden Valley Moving & Storage of Central Texas, Inc., Hidden
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Valley Moving Group, Inc., Premier Moving Systems, Inc., and Store & Move
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Solutions, Inc. (collectively, the “Operating Companies”) in this action, subject to the
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condition that before entering upon his duties as the receiver, he shall take the oath
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and file a bond with a surety thereon approved by this Court in the sum of
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$100,000.00 to secure the faithful performance of his duties as the receiver
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(“Receiver”).
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IT IS FURTHER ORDERED that Plaintiff post a bond in the amount of $100,000.00 pursuant to Federal Rules of Civil Procedure, Rule 65(c).
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IT IS FURTHER ORDERED that Operating Companies shall (and any
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interested third parties may) appear in Courtroom 10, 312 N. Spring St., Los Angeles,
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CA 90012 on April 20, 2015, at 8:30 a.m., or as soon thereafter as the matter can be
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heard, and then and there show cause, if any they have, why the Receiver should not
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be appointed on a permanent basis and why a preliminary injunction in aid of the
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Receiver should not be issued. 2 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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IT IS FURTHER ORDERED that the Receiver shall have the following powers, duties and responsibilities: 1.
To seize, manage, control and collect all of the personal property of
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Operating Companies that is subject to Plaintiff’s properly recorded security interests,
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including, if applicable, to all trucks, trailers, tractors, fork lifts, heavy containers,
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other delivery vehicles, machinery, equipment, portable demand storage materials;
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accounts, accounts receivable; inventory, general intangibles, contracts and licenses;
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and all other assets and collateral that are the subject of Plaintiff’s properly recorded
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security interests (collectively, the “Personal Property”), wherever located, as the
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Receiver deems necessary for the proper custody and liquidation of the Personal
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Property at his sole option; provided, however, that books and records of the
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Operating Companies shall be made available to Operating Companies as is
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reasonably necessary to conduct their business.
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2.
To demand, collect and receive all monies, funds, proceeds and payments
arising from the Personal Property that is subject to Plaintiff’s security interests. 3.
To establish bank accounts at any bank the Receiver deems appropriate
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for the deposit of monies and funds collected and received in connection with his
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administration of the Receivership estate, provided that all funds on deposit are
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insured by an agency of the United States Government and provided, further, that
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Receiver shall comply with the following additional rules and procedures regarding
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bank accounts and cash collateral received in connection with the Personal Property:
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Receiver shall continue to use the same bank accounts previously
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established by Operating Companies at Wells Fargo Bank, and/or
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Receiver shall open up new accounts in his name at Wells Fargo Bank
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(collectively, the “Receiver Bank Accounts”). Plaintiff shall not remove
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any monies from Operating Companies’ bank accounts or the Receiver
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Bank Accounts without further order of the Court.
28 3 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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Receiver is authorized to make/pay Receiver’s expenditures, which are
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limited to and must be used strictly in accordance with the Receiver’s
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Budget (including schedules), attached hereto as Exhibit “A” and
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incorporated herein by this reference, as amended from time to time with
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the consent of Receiver and Plaintiff (the “Receiver’s Budget”). The
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Receiver’s Budget encompasses the anticipated receivership expenses,
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the liquidation expenses and anticipated “cash-in” from operations,
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collection of accounts receivable and sales of the Personal Property.
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Receiver shall be permitted a variance equal to ten percent (10%) above
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the expenditures set forth in the Receiver’s Budget without the further
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consent of Plaintiff.
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All proceeds received during the receivership on account of the collection
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of accounts receivable and other receivables and the disposition of the
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Personal Property shall be deposited into the Receiver Bank Accounts
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and disbursed by Receiver in accordance with the Receiver’s Budget.
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None of the proceeds collected by the Receiver shall be distributed to
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Plaintiff without a further order of the Court.
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Any monies coming into Receiver’s possession or control and not
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expended for any of the purposes herein authorized (and not including
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such sums as Receiver determines, in his discretion, to retain for future
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expenditures under the Receiver’s Budget) shall be retained by Receiver
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pending further order of the Court. Any monies which Receiver does
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elect to turn over to Plaintiff shall be applied by Plaintiff as permanent
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reductions of Operating Companies’ financial obligations to Plaintiff, and
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shall not be re-advanced to Receiver or Operating Companies.
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4.
To execute and prepare all documents and to perform all acts, either in
the name of Operating Companies, as is applicable, or in the Receiver’s own name,
28 4 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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which are necessary or incidental to preserving, protecting, managing, controlling
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and/or liquidating the Personal Property.
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5.
To obtain advances and otherwise borrow funds for operation of the
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receivership estate from Plaintiff. All advances from Plaintiff to Receiver shall be
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evidenced by Receiver’s Certificates issued by the Receiver in favor of Plaintiff (the
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“Certificates”). The Certificates shall bear interest at the “Default” interest rate
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provided in Plaintiff’s loan documents with Operating Companies (which interest rate
8
is presently 8.50%). Repayment of the Certificates will be made from the disposition/
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collection of the Personal Property and other collections made by Receiver during his
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appointment. All Certificates shall be secured by all assets of the receivership estate,
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together will all other personal property collateral and real property collateral
12
previously pledged to Plaintiff by Operating Companies and the other Defendants to
13
this above-captioned proceeding.
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according to the terms of the Receiver’s Budget and this Order. Nothing contained in
15
this Order obligates Plaintiff to make any advances to Receiver pursuant to
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Certificates or otherwise; provided, however, that: (i) Plaintiff has agreed--and is
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hereby ordered--to advance up to $100,000 to Receiver for the actual and necessary
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expenses for Receiver to disburse in accordance with the Budget if Receiver does not
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have sufficient collections to fund disbursements set forth in the Budget; and (ii) if
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Receiver does not have sufficient collections to avoid imminent cancellation of
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Operating Companies’ existing general liability, “umbrella” and other insurance
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coverage, Plaintiff has agreed--and is hereby ordered--to advance up to $110,000 to
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Receiver for the actual and necessary expenses for Receiver to continue such
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insurance coverage.
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Receiver shall not be required to incur or become obligated to pay expenses, which, in
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the Receiver’s view, exceed the resources available to pay the same.
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6.
The proceeds of the Certificates shall be used
Notwithstanding anything provided herein to the contrary,
To procure insurance coverage on the Personal Property. If there is
insufficient insurance coverage on the Personal Property, to procure said insurance on 5 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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the Personal Property within ten (10) days of the entry of this Order, provided the
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Receiver has funds available to do so, and during said period, the Receiver shall not
3
be personally responsible for claims arising from such insufficient insurance or for the
4
procurement of insurance.
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7.
To employ servants, agents, employees, appraisers, guards, clerks,
6
accountants, liquidators, auctioneers, attorneys and management consultants to
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administer the Receivership estate and to protect the Personal Property as he shall
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deem necessary; to purchase materials, supplies and services and to pay therefore at
9
the usual rate and prices out of funds that shall come into his possession; to pay the
10
reasonable value of said services out of the proceeds of the estate; and that no risk or
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obligation incurred by the Receiver shall be at the personal risk or obligation of the
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Receiver, but shall be the risk or obligation of the Receivership Estate. All who are
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acting, or have acted, on behalf of the Receiver at the request of the Receiver are
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protected and privileged with the same protections of this Court as that of the
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Receiver.
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8.
To the full extent permitted by law, the Receiver shall be relieved from
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liability under any and all present and future federal, state and local laws, ordinances,
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regulations, permits, guidance documents, policies, and any other requirements of
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governmental authorities in connection with any act, omission or occurrence that took
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place prior to the entry of this Order relating to health, safety, the environment or to
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any Hazardous Substances or Hazardous Substances Activity, including, without
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limitation, the Comprehensive Environmental Response, Compensation and Liability
23
Act of 1980 (CERCLA), the Resource Conservation Recovery Act (RCRA), the
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Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Clean
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Water Act, the Endangered Species Act, the Clean Air Act, the Occupational Health
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and Safety Act (OSHA) and the applicable provisions of state law, and the rules,
27
regulations and guidance documents promulgated or published thereunder.
28 6 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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9.
To take any action necessary to remove the Personal Property from any
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business location in his discretion; disconnect any other equipment or power lines or
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sources which may be connected to the Personal Property; de-energize the Personal
4
Property or any other equipment connected to the Personal Property to remove, repair,
5
or sell the Personal Property.
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10.
To institute ancillary proceedings in this State or other States as is
7
necessary to obtain possession and control of the Personal Property, and participate in
8
any court proceedings involving Operating Companies, including, but not limited to,
9
participation in depositions and other related proceedings with respect to the Personal
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Property and the receivership estate. 11.
Subject to further order of the Court, and based upon notice, to conclude
12
one or more sales or other disposition of all or any portion of the Personal Property
13
out of the ordinary course of business. In order to determine an appropriate purchase
14
price, the Receiver may consult with Plaintiff and Operating Companies, receive
15
appraisals and consult with other third parties. Subject to further order of the Court,
16
and in order to conclude sales of the Personal Property referenced above, the Receiver
17
is authorized to execute one or more Bills of Sale and other documentation with
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respect to the sale(s) or other disposition of the Personal Property.
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12.
To the extent feasible, the Receiver shall, within thirty (30) days of his
20
qualification hereunder, file in this action an inventory of all property of which he
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shall have taken possession pursuant to this Order and shall file periodic accountings
22
thereafter.
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13.
To prepare periodic interim statements reflecting the Receiver’s fees and
24
administrative costs and expenses incurred for said period in the operation and
25
administration of the Receivership Estate. Upon completion of an interim statement,
26
and the mailing of said statement to the parties’ respective attorneys of record or any
27
other designated personal agent, the Receiver shall pay from the estate funds, if any,
28
the amount of said statement. Despite the periodic statement of Receiver’s fees and 7 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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administrative expenses, such fees and expenses shall be submitted to the Court for its
2
approval and confirmation, in the form of either a noticed interim request for fees,
3
stipulation among the parties or Receiver’s final account and report.
4
14.
Open and review mail and other correspondence directed to Operating
5
Companies and their representatives pertaining to the Personal Property, and instruct
6
that all such mail be delivered to the Receiver directly. The Receiver may issue
7
demand upon the U.S. Postal service that it grant exclusive possession and control of
8
mail, including postal boxes as may have been used by Operating Companies, and
9
may direct that certain mail related to the Personal Property be re-directed to the
10
Receiver.
11
15.
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Tender any suits or claims against the Receivership Estate to any
appropriate insurance company. 16.
The Receiver, or any party to this action, may from time to time, and on
14
due notice to all parties, make application to this Court on an ex parte basis for further
15
orders instructing the Receiver.
16
17.
Nothing in this order: (a) shall adversely impact, prejudice, constrain,
17
restrain, enjoin, or prohibit Grandpoint Bank, successor by merger to California
18
Community Bank (“Grandpoint”), from enforcing any and/or all of Grandpoint’s
19
rights against: (i) BCD Southwest Partners, LLC (“BCD”); (ii) that certain real
20
property commonly known as 1202 South 40th Avenue, Phoenix, Arizona 85009, and
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legally described on Exhibits 1 and 2 to the Rice Declaration filed herein on April 2,
22
2015, as ECF No. 14-1 (“Arizona Real Property”); (iii) the rents, issues, and profits of
23
the Arizona Real Property, no matter when obtained or by whom held (“Rents”); (iv)
24
any and all fixtures associated with the Arizona Real Property (“Fixtures”); (v) any
25
other collateral reserved to Grandpoint as set forth in: (1) that certain Deed of Trust
26
dated November 24, 2008, recorded on December 5, 2008, as Instrument No.
27
20081036782 in the official records of Maricopa County, Arizona; (2) that certain
28
Assignment of Rents dated November 24, 2008, recorded on December 5, 2008, as 8 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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instrument no. 20081036783 in the official records of Maricopa County, Arizona; (3)
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that certain Commercial Security Agreement dated November 24, 2008, and those
3
certain UCC financing, assignment, and continuation statements filed in the official
4
records of the Arizona Secretary of State on December 9, 2008, as file no. 2008-
5
15649126; on April 22, 2013, as file no. 2008-156-4912-6; on July 12, 2013, as file
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no. 2008-156-4912-6; and on November 4, 2013, as file no. 2008-156-4912-6
7
(collectively, the “Property Collateral”); and/or (vi) any guarantor of the debts of BCD
8
to Grandpoint; and (b) shall authorize or permit Receiver to, and he shall not, seize,
9
take control over, use, transfer, spend, pay over, or exercise any dominion over or
10
possession of, the Arizona Real Property, the Rents, the Fixtures, and/or the Property
11
Collateral.
12
determinations about what is or is not fixtures associated with the Arizona Real
13
Property prior to Receiver removing or otherwise disposing of personal property at the
14
Arizona Real Property. The Court shall retain jurisdiction to resolve disputes that
15
might arise, if any, with respect to this paragraph.
16 17
Receiver shall consult and coordinate with Grandpoint as to his
TEMPORARY RESTRAINING ORDER 18.
Operating Companies and each of their officers, directors, agents,
18
servants, and employees, and all persons or entities acting under, or in concert with
19
them, or for them are ordered to do the following and are restrained and enjoined from
20
engaging in, or performing, directly or indirectly, any or all of the following acts:
21
(a)
Interfering, hindering or molesting in any way whatsoever the Receiver
22
in the performance of the Receiver’s duties herein described and in the performance of
23
any duties incident thereto;
24
(b)
Failing or refusing to immediately turn over to the Receiver all the
25
premises from which Operating Companies conduct business for the purposes set
26
forth above, including but not limited to any passwords required to access computers
27
or other password protected devices pertaining to the Operating Companies;
28 9 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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(c)
Transferring, directly or indirectly, any interest by sale, pledge, grant of
2
security interest, assignment, invoice or encumbering in any manner the Personal
3
Property, and all proceeds and products thereof and books and records related thereto;
4
(d)
Moving the physical location of any of the Personal Property from any
5
location where business is conducted, and all proceeds and products thereof and books
6
and records, from any business premises;
7 8
(e)
Transferring, concealing, destroying, defacing or altering any of
Operating Companies’ books and records with respect to the Personal Property;
9
(f)
Diverting in any way any of the proceeds from the Personal Property;
10
(g)
Failing or refusing to immediately turn over to the Receiver upon request
11
the Personal Property and all monies, checks, funds or proceeds relating to the
12
Personal Property, and failing to make available to the Receiver all books and records
13
of Operating Companies relating to the Personal Property; and
14
(h)
Plaintiff and its officers, employees and agents, and the Receiver shall
15
have immediate access to all business premises of Operating Companies and the
16
books and records of the foregoing to enable Plaintiff and the Receiver to review and
17
inspect the inventory for the purposes of accounting and appraisal.
18 19
SERVICE AND BRIEFING SCHEDULE
20
The Summons and Complaint, Ex Parte Application, Memorandum of Points
21
and Authorities, this Order and all Declarations and supporting papers are to be served
22
on Operating Companies identified herein and (to the extent reasonably possible) on
23
all known creditors of the Operating Companies no later than April 13, 2015, with
24
proof of service to be filed with the Court no later than 4:00 p.m. on April 14, 2015.
25
Any opposition to this Order to Show Cause herein contained is to be personally
26
served on Plaintiff’s counsel and filed with the Court no later than 4:00 p.m. on April
27
///
28 10 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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16, 2015. Any reply is to be personally served on Operating Companies’ counsel and
2
filed with the Court no later than 4:00 p.m. on April 17, 2015.
3 4 5 6
IT IS SO ORDERED: Dated: April 7, 2015
___________________________________ GEORGE H. WU, U.S. District Judge
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT
1 2 3 4 5 6
KATTEN MUCHIN ROSENMAN LLP WILLIAM B. FREEMAN #137276 JESSICA M. MICKELSEN #277581 515 South Flower Street, Suite 1000 Los Angeles, CA 90071-2212 Telephone: (213) 788-7445 Facsimile: (213) 788-0380 Attorneys for Plaintiff Wells Fargo Bank, N.A., a national bank chartered in South Dakota
7 8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
WELLS FARGO BANK, NATIONAL ASSOCIATION,
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Plaintiff, v. HIDDEN VALLEY COMPANIES, INC., a California corporation; HIDDEN VALLEY TRANSPORTATION SYSTEMS, INC., a Delaware corporation; HIDDEN VALLEY MOVING AND STORAGE, INC., a California corporation; HIDDEN VALLEY TRANSFER, INC., a California corporation; HIDDEN VALLEY MOVING & STORAGE OF CENTRAL TEXAS, INC., a Texas corporation; HIDDEN VALLEY MOVING GROUP, INC. an Arizona corporation; PREMIER MOVING SYSTEMS, INC., a California corporation; STORE & MOVE SOLUTIONS, INC., a California corporation; BUG DOG PROPERTIES, LLC, a California limited liability company; BCD CAPITAL PARTNERS, LLC, a Texas limited liability company; BCD PROPERTIES, LLC, a California limited liability company; BCD SOUTHWEST PARTNERS, LLC, an Arizona limited liability company; and DOES 1-10,
CASE No. CV 15-2332-GW(PJWx) ORDER: (1) FOR THE APPOINTMENT OF A TEMPORARY RECEIVER AND A TEMPORARY RESTRAINING ORDER IN AID OF THE RECEIVER; AND (2) TO SHOW CAUSE WHY THE APPOINTMENT OF A RECEIVER SHOULD NOT BE PERMANENT Hearing Held: Date: April 6, 2015 Time: 2:00 p.m. Place: Courtroom 10 312 North Spring Street Los Angeles, CA 90012-4701
Defendants.
28
1 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
Case 2:15-cv-02332-GW-PJW Document 23 Filed 04/07/15 Page 2 of 11 Page ID #:1419
1
ORDER
2 3
Upon due and proper consideration of the Complaint of Plaintiff Wells Fargo
4
Bank, N.A., a national bank chartered in South Dakota (“Plaintiff”), on file herein,
5
together with the ex parte application for the appointment of a temporary receiver, all
6
of the supporting declarations, the memorandum of points and authorities and upon
7
the representations of the parties made to the Court at the April 6, 2015 hearing on the
8
ex parte application for a Temporary Restraining Order (“TRO”) and good cause
9
appearing for the ex parte appointment of a receiver in this action:
10
IT IS ORDERED that Joel B. Weinberg of Insolvency Services Group, Inc. be
11
and is hereby appointed temporary receiver over Personal Property (as defined
12
hereinafter) of defendants Hidden Valley Companies, Inc., Hidden Valley
13
Transportation Systems, Inc., Hidden Valley Moving and Storage, Inc., Hidden Valley
14
Transfer, Inc., Hidden Valley Moving & Storage of Central Texas, Inc., Hidden
15
Valley Moving Group, Inc., Premier Moving Systems, Inc., and Store & Move
16
Solutions, Inc. (collectively, the “Operating Companies”) in this action, subject to the
17
condition that before entering upon his duties as the receiver, he shall take the oath
18
and file a bond with a surety thereon approved by this Court in the sum of
19
$100,000.00 to secure the faithful performance of his duties as the receiver
20
(“Receiver”).
21 22
IT IS FURTHER ORDERED that Plaintiff post a bond in the amount of $100,000.00 pursuant to Federal Rules of Civil Procedure, Rule 65(c).
23
IT IS FURTHER ORDERED that Operating Companies shall (and any
24
interested third parties may) appear in Courtroom 10, 312 N. Spring St., Los Angeles,
25
CA 90012 on April 20, 2015, at 8:30 a.m., or as soon thereafter as the matter can be
26
heard, and then and there show cause, if any they have, why the Receiver should not
27
be appointed on a permanent basis and why a preliminary injunction in aid of the
28
Receiver should not be issued. 2 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1 2 3
IT IS FURTHER ORDERED that the Receiver shall have the following powers, duties and responsibilities: 1.
To seize, manage, control and collect all of the personal property of
4
Operating Companies that is subject to Plaintiff’s properly recorded security interests,
5
including, if applicable, to all trucks, trailers, tractors, fork lifts, heavy containers,
6
other delivery vehicles, machinery, equipment, portable demand storage materials;
7
accounts, accounts receivable; inventory, general intangibles, contracts and licenses;
8
and all other assets and collateral that are the subject of Plaintiff’s properly recorded
9
security interests (collectively, the “Personal Property”), wherever located, as the
10
Receiver deems necessary for the proper custody and liquidation of the Personal
11
Property at his sole option; provided, however, that books and records of the
12
Operating Companies shall be made available to Operating Companies as is
13
reasonably necessary to conduct their business.
14 15 16
2.
To demand, collect and receive all monies, funds, proceeds and payments
arising from the Personal Property that is subject to Plaintiff’s security interests. 3.
To establish bank accounts at any bank the Receiver deems appropriate
17
for the deposit of monies and funds collected and received in connection with his
18
administration of the Receivership estate, provided that all funds on deposit are
19
insured by an agency of the United States Government and provided, further, that
20
Receiver shall comply with the following additional rules and procedures regarding
21
bank accounts and cash collateral received in connection with the Personal Property:
22
Receiver shall continue to use the same bank accounts previously
23
established by Operating Companies at Wells Fargo Bank, and/or
24
Receiver shall open up new accounts in his name at Wells Fargo Bank
25
(collectively, the “Receiver Bank Accounts”). Plaintiff shall not remove
26
any monies from Operating Companies’ bank accounts or the Receiver
27
Bank Accounts without further order of the Court.
28 3 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
Receiver is authorized to make/pay Receiver’s expenditures, which are
2
limited to and must be used strictly in accordance with the Receiver’s
3
Budget (including schedules), attached hereto as Exhibit “A” and
4
incorporated herein by this reference, as amended from time to time with
5
the consent of Receiver and Plaintiff (the “Receiver’s Budget”). The
6
Receiver’s Budget encompasses the anticipated receivership expenses,
7
the liquidation expenses and anticipated “cash-in” from operations,
8
collection of accounts receivable and sales of the Personal Property.
9
Receiver shall be permitted a variance equal to ten percent (10%) above
10
the expenditures set forth in the Receiver’s Budget without the further
11
consent of Plaintiff.
12
All proceeds received during the receivership on account of the collection
13
of accounts receivable and other receivables and the disposition of the
14
Personal Property shall be deposited into the Receiver Bank Accounts
15
and disbursed by Receiver in accordance with the Receiver’s Budget.
16
None of the proceeds collected by the Receiver shall be distributed to
17
Plaintiff without a further order of the Court.
18
Any monies coming into Receiver’s possession or control and not
19
expended for any of the purposes herein authorized (and not including
20
such sums as Receiver determines, in his discretion, to retain for future
21
expenditures under the Receiver’s Budget) shall be retained by Receiver
22
pending further order of the Court. Any monies which Receiver does
23
elect to turn over to Plaintiff shall be applied by Plaintiff as permanent
24
reductions of Operating Companies’ financial obligations to Plaintiff, and
25
shall not be re-advanced to Receiver or Operating Companies.
26 27
4.
To execute and prepare all documents and to perform all acts, either in
the name of Operating Companies, as is applicable, or in the Receiver’s own name,
28 4 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
which are necessary or incidental to preserving, protecting, managing, controlling
2
and/or liquidating the Personal Property.
3
5.
To obtain advances and otherwise borrow funds for operation of the
4
receivership estate from Plaintiff. All advances from Plaintiff to Receiver shall be
5
evidenced by Receiver’s Certificates issued by the Receiver in favor of Plaintiff (the
6
“Certificates”). The Certificates shall bear interest at the “Default” interest rate
7
provided in Plaintiff’s loan documents with Operating Companies (which interest rate
8
is presently 8.50%). Repayment of the Certificates will be made from the disposition/
9
collection of the Personal Property and other collections made by Receiver during his
10
appointment. All Certificates shall be secured by all assets of the receivership estate,
11
together will all other personal property collateral and real property collateral
12
previously pledged to Plaintiff by Operating Companies and the other Defendants to
13
this above-captioned proceeding.
14
according to the terms of the Receiver’s Budget and this Order. Nothing contained in
15
this Order obligates Plaintiff to make any advances to Receiver pursuant to
16
Certificates or otherwise; provided, however, that: (i) Plaintiff has agreed--and is
17
hereby ordered--to advance up to $100,000 to Receiver for the actual and necessary
18
expenses for Receiver to disburse in accordance with the Budget if Receiver does not
19
have sufficient collections to fund disbursements set forth in the Budget; and (ii) if
20
Receiver does not have sufficient collections to avoid imminent cancellation of
21
Operating Companies’ existing general liability, “umbrella” and other insurance
22
coverage, Plaintiff has agreed--and is hereby ordered--to advance up to $110,000 to
23
Receiver for the actual and necessary expenses for Receiver to continue such
24
insurance coverage.
25
Receiver shall not be required to incur or become obligated to pay expenses, which, in
26
the Receiver’s view, exceed the resources available to pay the same.
27 28
6.
The proceeds of the Certificates shall be used
Notwithstanding anything provided herein to the contrary,
To procure insurance coverage on the Personal Property. If there is
insufficient insurance coverage on the Personal Property, to procure said insurance on 5 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
the Personal Property within ten (10) days of the entry of this Order, provided the
2
Receiver has funds available to do so, and during said period, the Receiver shall not
3
be personally responsible for claims arising from such insufficient insurance or for the
4
procurement of insurance.
5
7.
To employ servants, agents, employees, appraisers, guards, clerks,
6
accountants, liquidators, auctioneers, attorneys and management consultants to
7
administer the Receivership estate and to protect the Personal Property as he shall
8
deem necessary; to purchase materials, supplies and services and to pay therefore at
9
the usual rate and prices out of funds that shall come into his possession; to pay the
10
reasonable value of said services out of the proceeds of the estate; and that no risk or
11
obligation incurred by the Receiver shall be at the personal risk or obligation of the
12
Receiver, but shall be the risk or obligation of the Receivership Estate. All who are
13
acting, or have acted, on behalf of the Receiver at the request of the Receiver are
14
protected and privileged with the same protections of this Court as that of the
15
Receiver.
16
8.
To the full extent permitted by law, the Receiver shall be relieved from
17
liability under any and all present and future federal, state and local laws, ordinances,
18
regulations, permits, guidance documents, policies, and any other requirements of
19
governmental authorities in connection with any act, omission or occurrence that took
20
place prior to the entry of this Order relating to health, safety, the environment or to
21
any Hazardous Substances or Hazardous Substances Activity, including, without
22
limitation, the Comprehensive Environmental Response, Compensation and Liability
23
Act of 1980 (CERCLA), the Resource Conservation Recovery Act (RCRA), the
24
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Clean
25
Water Act, the Endangered Species Act, the Clean Air Act, the Occupational Health
26
and Safety Act (OSHA) and the applicable provisions of state law, and the rules,
27
regulations and guidance documents promulgated or published thereunder.
28 6 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
9.
To take any action necessary to remove the Personal Property from any
2
business location in his discretion; disconnect any other equipment or power lines or
3
sources which may be connected to the Personal Property; de-energize the Personal
4
Property or any other equipment connected to the Personal Property to remove, repair,
5
or sell the Personal Property.
6
10.
To institute ancillary proceedings in this State or other States as is
7
necessary to obtain possession and control of the Personal Property, and participate in
8
any court proceedings involving Operating Companies, including, but not limited to,
9
participation in depositions and other related proceedings with respect to the Personal
10 11
Property and the receivership estate. 11.
Subject to further order of the Court, and based upon notice, to conclude
12
one or more sales or other disposition of all or any portion of the Personal Property
13
out of the ordinary course of business. In order to determine an appropriate purchase
14
price, the Receiver may consult with Plaintiff and Operating Companies, receive
15
appraisals and consult with other third parties. Subject to further order of the Court,
16
and in order to conclude sales of the Personal Property referenced above, the Receiver
17
is authorized to execute one or more Bills of Sale and other documentation with
18
respect to the sale(s) or other disposition of the Personal Property.
19
12.
To the extent feasible, the Receiver shall, within thirty (30) days of his
20
qualification hereunder, file in this action an inventory of all property of which he
21
shall have taken possession pursuant to this Order and shall file periodic accountings
22
thereafter.
23
13.
To prepare periodic interim statements reflecting the Receiver’s fees and
24
administrative costs and expenses incurred for said period in the operation and
25
administration of the Receivership Estate. Upon completion of an interim statement,
26
and the mailing of said statement to the parties’ respective attorneys of record or any
27
other designated personal agent, the Receiver shall pay from the estate funds, if any,
28
the amount of said statement. Despite the periodic statement of Receiver’s fees and 7 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
administrative expenses, such fees and expenses shall be submitted to the Court for its
2
approval and confirmation, in the form of either a noticed interim request for fees,
3
stipulation among the parties or Receiver’s final account and report.
4
14.
Open and review mail and other correspondence directed to Operating
5
Companies and their representatives pertaining to the Personal Property, and instruct
6
that all such mail be delivered to the Receiver directly. The Receiver may issue
7
demand upon the U.S. Postal service that it grant exclusive possession and control of
8
mail, including postal boxes as may have been used by Operating Companies, and
9
may direct that certain mail related to the Personal Property be re-directed to the
10
Receiver.
11
15.
12 13
Tender any suits or claims against the Receivership Estate to any
appropriate insurance company. 16.
The Receiver, or any party to this action, may from time to time, and on
14
due notice to all parties, make application to this Court on an ex parte basis for further
15
orders instructing the Receiver.
16
17.
Nothing in this order: (a) shall adversely impact, prejudice, constrain,
17
restrain, enjoin, or prohibit Grandpoint Bank, successor by merger to California
18
Community Bank (“Grandpoint”), from enforcing any and/or all of Grandpoint’s
19
rights against: (i) BCD Southwest Partners, LLC (“BCD”); (ii) that certain real
20
property commonly known as 1202 South 40th Avenue, Phoenix, Arizona 85009, and
21
legally described on Exhibits 1 and 2 to the Rice Declaration filed herein on April 2,
22
2015, as ECF No. 14-1 (“Arizona Real Property”); (iii) the rents, issues, and profits of
23
the Arizona Real Property, no matter when obtained or by whom held (“Rents”); (iv)
24
any and all fixtures associated with the Arizona Real Property (“Fixtures”); (v) any
25
other collateral reserved to Grandpoint as set forth in: (1) that certain Deed of Trust
26
dated November 24, 2008, recorded on December 5, 2008, as Instrument No.
27
20081036782 in the official records of Maricopa County, Arizona; (2) that certain
28
Assignment of Rents dated November 24, 2008, recorded on December 5, 2008, as 8 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
instrument no. 20081036783 in the official records of Maricopa County, Arizona; (3)
2
that certain Commercial Security Agreement dated November 24, 2008, and those
3
certain UCC financing, assignment, and continuation statements filed in the official
4
records of the Arizona Secretary of State on December 9, 2008, as file no. 2008-
5
15649126; on April 22, 2013, as file no. 2008-156-4912-6; on July 12, 2013, as file
6
no. 2008-156-4912-6; and on November 4, 2013, as file no. 2008-156-4912-6
7
(collectively, the “Property Collateral”); and/or (vi) any guarantor of the debts of BCD
8
to Grandpoint; and (b) shall authorize or permit Receiver to, and he shall not, seize,
9
take control over, use, transfer, spend, pay over, or exercise any dominion over or
10
possession of, the Arizona Real Property, the Rents, the Fixtures, and/or the Property
11
Collateral.
12
determinations about what is or is not fixtures associated with the Arizona Real
13
Property prior to Receiver removing or otherwise disposing of personal property at the
14
Arizona Real Property. The Court shall retain jurisdiction to resolve disputes that
15
might arise, if any, with respect to this paragraph.
16 17
Receiver shall consult and coordinate with Grandpoint as to his
TEMPORARY RESTRAINING ORDER 18.
Operating Companies and each of their officers, directors, agents,
18
servants, and employees, and all persons or entities acting under, or in concert with
19
them, or for them are ordered to do the following and are restrained and enjoined from
20
engaging in, or performing, directly or indirectly, any or all of the following acts:
21
(a)
Interfering, hindering or molesting in any way whatsoever the Receiver
22
in the performance of the Receiver’s duties herein described and in the performance of
23
any duties incident thereto;
24
(b)
Failing or refusing to immediately turn over to the Receiver all the
25
premises from which Operating Companies conduct business for the purposes set
26
forth above, including but not limited to any passwords required to access computers
27
or other password protected devices pertaining to the Operating Companies;
28 9 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
(c)
Transferring, directly or indirectly, any interest by sale, pledge, grant of
2
security interest, assignment, invoice or encumbering in any manner the Personal
3
Property, and all proceeds and products thereof and books and records related thereto;
4
(d)
Moving the physical location of any of the Personal Property from any
5
location where business is conducted, and all proceeds and products thereof and books
6
and records, from any business premises;
7 8
(e)
Transferring, concealing, destroying, defacing or altering any of
Operating Companies’ books and records with respect to the Personal Property;
9
(f)
Diverting in any way any of the proceeds from the Personal Property;
10
(g)
Failing or refusing to immediately turn over to the Receiver upon request
11
the Personal Property and all monies, checks, funds or proceeds relating to the
12
Personal Property, and failing to make available to the Receiver all books and records
13
of Operating Companies relating to the Personal Property; and
14
(h)
Plaintiff and its officers, employees and agents, and the Receiver shall
15
have immediate access to all business premises of Operating Companies and the
16
books and records of the foregoing to enable Plaintiff and the Receiver to review and
17
inspect the inventory for the purposes of accounting and appraisal.
18 19
SERVICE AND BRIEFING SCHEDULE
20
The Summons and Complaint, Ex Parte Application, Memorandum of Points
21
and Authorities, this Order and all Declarations and supporting papers are to be served
22
on Operating Companies identified herein and (to the extent reasonably possible) on
23
all known creditors of the Operating Companies no later than April 13, 2015, with
24
proof of service to be filed with the Court no later than 4:00 p.m. on April 14, 2015.
25
Any opposition to this Order to Show Cause herein contained is to be personally
26
served on Plaintiff’s counsel and filed with the Court no later than 4:00 p.m. on April
27
///
28 10 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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1
16, 2015. Any reply is to be personally served on Operating Companies’ counsel and
2
filed with the Court no later than 4:00 p.m. on April 17, 2015.
3 4 5 6
IT IS SO ORDERED: Dated: April 7, 2015
___________________________________ GEORGE H. WU, U.S. District Judge
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 [PROPOSED] ORDER: (1) FOR APPOINTMENT OF TEMPORARY RECEIVER AND TEMPORARY RESTRAINING ORDER; (2) TO SHOW CAUSE TO WHY APPOINTMENT OF RECEIVER SHOULD NOT BE PERMANENT AND PRELIMINARY INJUNCTION ISSUED US_102132810v3
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