Free Motion for Order - District Court of Colorado - Colorado

Case 1:01-cv-00275-JLK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-00275-JLK DOMINICK PAOLONI, et al., Plaintiffs, vs. DONALD I. GOLDSTEIN, et al., Defendants, and NBSA, LLC, et al., Relief Defendants. ________________________________________________________________________ MOTION FOR ORDER REMOVING SCOTT A. ELK AS RECEIVER OF BLUE PAPER, INC. ________________________________________________________________________ COME NOW the Plaintiffs by and through their attorneys, Dill Dill Carr Stonbraker & Hutchings, P.C., and moves this Court for an entry of an order removing Scott A. Elk as Receiver of Blue Paper, Inc. and in support thereof states as follows: 1. At the conclusion of the hearing on the Order to Show Cause why Blue Paper,

Inc. and Joseph F. Ieracitano should not be held in civil contempt of court of violation of this Court's order approving Settlement Agreement, Entry of Order, and Order Vacating

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Preliminary Injunction of January14, 2003, this Court found Blue Paper, Inc. in civil contempt of court for violation of such order, and ordered that the Plaintiffs nominate an individual to serve as Receiver for the property, assets and business affairs of Blue Paper, Inc. 2. On April 18, 2007, Plaintiffs filed a Motion for Appointment of Receiver

(docket entry number 931), pursuant to which Plaintiffs requested that Scott A. Elk be appointed as Receiver of Blue Paper, Inc. 3. On April 24, 2007, this Court entered an Order appointing Scott A. Elk as

Receiver (docket entry number 937) of all the property, assets and business affairs of Blue Paper, Inc. The principal asset of Blue Paper, Inc. consisted of real estate located in Pompano Beach, Florida, upon which had been constructed four luxury town homes, and which is described as follows: "Parcel B, HILLSBORO CLUB, according to the plat thereof, recorded in Plat Book 148, Page 32, of the Public Records of Broward County, Florida. Together with: That part of the South 300 feet of Government Lot 5, Section 20, Township 48 South, Range 43 East, Broward County, Florida, lying Northwesterly of a line 20.00 feet Northwesterly of the Baseline of Survey for State Road A-1-A, according to the Right of Way map for Section 86050-2502; a portion of said Baseline of Survey described as follows: BEGIN at Baseline of Survey station 551 + 58.22 on a curve concave Northwesterly, having a chord bearing of North 38E05'23" East; thence 2

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Northeasterly along said curve, having a radius of 716.78 feet, through a central angle of 35E19'30" and an arc length of 441.56 feet to the END of said curve at Baseline of Survey Station 555 + 99.78. Less Right of Way dedicated by plat, THE HILLSBORO CLUB, according to the plat thereof, as recorded in Plat Book 149, Page 32 of Public Records of Broward County, Florida. Also known as: All of 900 HILLSBORO, according to the plat thereof, recorded in Plat Book 170, Pages 176 and 177, of the Public Records of Broward County, Florida." (Hereinafter referred to as the "Blue Paper Property") 4. On October 24, 2007, Viatical Administrators, Inc., as assignee of the

Plaintiffs' equitable liens upon the Blue Paper Property, filed an action in the United States District Court for the Southern District of Florida entitled Viatical Administrators, Inc. v. Blue Paper, Inc., et al., case number 07-61517-CIV-HUCK/SIMONTON. Viatical

Administrators, Inc. ("VAI") as the Plaintiffs' assignee, sought a determination in the Florida action that its liens were superior to the construction loan mortgage of Bank United FSB and for an order of foreclosure of its liens. 5. Trial of the Florida action occurred on February 21, 2008. Judge Paul C. Huck,

the United States District Court Judge, ruled that the construction loan mortgage of Bank United FSB was superior to the equitable liens of VAI and ordered foreclosure of the construction loan mortgage of Bank United FSB as the superior lien and foreclosure of VAI's equitable liens as the second priority liens. It is anticipated there is was not enough equity

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in the Blue Paper Property for VAI to receive any monies from the foreclosure and subsequent sale of the Blue Paper Property after payment of amounts owing to Bank United FSB under its construction loan mortgage. 6. Under the foregoing circumstances, there is no need of VAI, or benefit to VAI,

by the continued receivership of Scott A. Elk of Blue Paper, Inc. The continued receivership of Scott A. Elk of Blue Paper, Inc. at this point represents a potential liability to VAI for any costs and fees incurred by Scott A. Elk as Receiver. 7. Bank United FSB, as the entity now with the primary, if not sole interest in the

Blue Paper Property, is anticipated to assume responsibility for maintenance of the Blue Paper Property. 8. Bank United FSB is not a party to this action and thus Plaintiffs have not

consulted with Bank United FSB regarding the removal of Scott A. Elk as Receiver of the property. The undersigned counsel affirmatively represents that in connection with the Florida action, Bank United FSB sought the separate appointment of a receiver for the Blue Paper Property and, had the matter not been tried as timely as it was, a receiver other than Scott A. Elk, would have been appointed specifically for the Blue Paper Property by the United States District Court for the Southern District of Florida. The undersigned counsel has notified via e-mail counsel for Bank United FSB of its filing of this Motion.

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WHEREFORE, for the reasons set forth herein, VAI respectfully requests this Court enter an order removing Scott A. Elk as Receiver of Blue Paper, Inc., relieving Scott A. Elk as Receiver from all duties and responsibilities under the April 24, 2007 Order, and for any other relief deemed just and proper under the circumstances. Respectfully submitted this 27 th day of February, 2008. DILL DILL CARR STONBRAKER & HUTCHINGS, P.C.

s/ John A. Hutchings John A. Hutchings Robert A. Dill 455 Sherman Street, Suite 300 Denver, Colorado 80203 Telephone: (303) 777-3737 Facsimile: (303) 777-3823 E-mail: [email protected] [email protected] ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on the 27 th day of February, 2008, I electronically filed the foregoing MOTION FOR ORDER REMOVING SCOTT A. ELK AS RECEIVER OF BLUE PAPER, INC. with the Clerk of Court using CM/ECF System, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected]

and I hereby certify that I have mailed the MOTION FOR ORDER REMOVING SCOTT A. ELK AS RECEIVER OF BLUE PAPER, INC. to the following non-CM/ECF 5

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participants by depositing same in the United States mail, postage prepaid, addressed to the following on the 27 th day of February, 2008: Akerman Senterfitt 350 East Las Olas Boulevard Suite 1600 Ft. Lauderdale, FL 33301 Gary Hoskie Professional Consultants & Managers, Inc. P.O. Box 644320 Vero Beach, FL 32954-4320 Mark Wolok c/o Jay S. Kalish Jay S. Kalish & Associates, P.C. 28592 Orchard Lake Road, Suite 360 Farmington Hills, MI 48334 Mark Wolok c/o Robert Joseph Peters Law Office of Robert J. Peters 716 19 th Street, Suite 200 Sacramento, CA 95814 Mr. Isadore Cohen 1920 East Hallandale Boulevard Suite 626 Hallandale, FL 33009 Mark Wolok Surety Marketing Source LLC P.O. Box 118 Miami Beach, FL 33139 Mr. Lee V. Twyford 7100 NW 43 rd Avenue Pompano Beach, FL 33073-3115

Mr. Joseph Ieracitano Blue Paper, Inc. 2608-10 North Ocean Boulevard Pompano Beach, FL 33062

s/ Michele Overton

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