Case:12-13815-ABC Doc#:176 Filed:09/27/12

Entered:09/27/12 09:48:16 Page1 of 4

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: ) ) UNITED WESTERN BANCORP, INC. ) ) Debtor. ) ______________________________________ ) ) In re: ) ) MATRIX BANCORP TRADING, INC. ) ) Debtor. ) ______________________________________ ) ) In re: ) ) MATRIX FUNDING CORP. ) ) Debtor. ) ) )

Case No. 12-13815 ABC Chapter 11

Case No. 12-13822 ABC Chapter 11

Case No. 12-13824 ABC Chapter 11 Jointly Administered Under Case No. 12-13815 ABC

JOINT MOTION TO EXTEND EXCLUSIVITY PERIODS UNDER 11 U.S.C. § 1121(d)(1)

UNITED WESTERN BANCORP, INC. (“UWBK”); MATRIX BANCORP TRADING, INC. (“MBT”); and MATRIX FUNDING CORP. (“MF”), Debtors-in-Possession herein (together, the “Debtors”), by and through their counsel, Sender & Wasserman, P.C., respectfully submit their Joint Motion to Extend Exclusivity Periods Under 11 U.S.C. § 1121(d)(1). In support, the Debtors state as follows: 1. The Debtors filed their petitions for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on March 2, 2012 (the “Petition Date”), and since that date have been operating as debtors-in-possession. 2. Section 1121(b) of the Bankruptcy Code provides that “only the debtor may file a plan until after 120 days” after the Petition Date (the “120-day Exclusivity Period”).

1

Case:12-13815-ABC Doc#:176 Filed:09/27/12

Entered:09/27/12 09:48:16 Page2 of 4

3. Section 1121(c)(3) of the Bankruptcy Code provides that any party in interest may file a plan, if and only if “the debtor has not filed a plan that has been accepted, before 180 days after” the Petition Date (the “180-day Exclusivity Period”). 4. Section 1121(d)(1) of the Bankruptcy Code provides that “on request of a party in interest made within the respective periods specified in subsections (b) and (c) of this section and after notice and a hearing, the court may for cause reduce or increase the 120-day period or the 180day period referred to in this section.” 5. In the instant case, the 120-day Exclusivity Period was previously extended by Order of the Court to October 1, 2012, and the 180-day Exclusivity Period extended to November 27, 2012. (See Order Granting Motion to Extend Exclusivity Periods Under 11 U.S.C. § 1121(d)(1), Doc. #153.) The Debtors seek to extend both the 120-day Exclusivity Period and the 180-day Exclusivity Period by approximately 45 days each, to November 15, 2012 and January 11, 2013, respectively. 6. The Exclusivity Period under 11 U.S.C. § 1121(c) is intended to afford a debtor a meaningful opportunity to develop and confirm a consensual plan of reorganization under Chapter 11 of the Bankruptcy Code. See In re Aspen Limousine Service, Inc., 187 BR 989 (Bankr. D. Colo 1995). 7. “Cause” is not defined under 11 U.S.C. § 1121(d)(1). However, courts have adopted a non-exclusive list of factors that a court may consider in determining whether to extend an exclusivity period. See In re Friedman’s, Inc., 336 B.R. 884 (Bankr. S.D. Ga. 2005). 8. Such factors include: a. b. the size and complexity of the debtor’s case; the necessity of sufficient time to negotiate and prepare adequate information; the existence of good faith progress toward reorganization; whether the debtor is paying its bills as they come due; whether the debtor has demonstrated reasonable prospects for filing a viable plan; whether the debtor has made progress in negotiations with its creditors; the amount of time which has elapsed in the case; whether the debtor is seeking an extension to pressure creditors; and whether an unresolved contingency exists.

c. d. e.

f. g. h. i.

2

Case:12-13815-ABC Doc#:176 Filed:09/27/12

Entered:09/27/12 09:48:16 Page3 of 4

9. following:

Cause for an extension of the Exclusivity Period exists in this case as shown by the

a.

The size and complexity of the Debtors’ cases, the necessity of time to negotiate and prepare adequate information, and the existence of good faith progress toward reorganization: As more fully explained in the Debtors’ Joint Motion Seeking Expedited Entry of Orders (Docket No. 11), on January 21, 2012, the Office of Thrift Supervision (“OTS”) appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver of United Western Bank (the “Bank”), a former subsidiary of UWBK. In response, UWBK and the Bank (among others) initiated a civil complaint in the United States District Court for the District of Columbia (the “DC Court”) against the OTS and the FDIC (among others) seeking rescission of the receivership or for an award of money damages (the “Lawsuit”). Debtors’ liquidation depends, in large amount, on the outcome of the Lawsuit. Should the Lawsuit result in the award of sufficient monetary damages to UWBK, the Debtors will propose a plan creating a structured payment formula with a detailed methodology for paying creditors and shareholders. The Bank and the OTS’s successor in interest, the Office of Comptroller of the Currency (“OCC”), have submitted competing dispositive motions in the Lawsuit. The competing motions were fully briefed months ago and await ruling from the DC Court. Debtors believed that a decision in the Lawsuit would be reached prior to October 1, 2012. However, as of this date, no decision has been rendered. Accordingly, Debtors have begun drafting a Plan that addresses the possibility of recovery in the Lawsuit and the alternative possibility that it does not win a recovery. However, because such a Plan is necessarily more complicated than one in which the outcome of the Lawsuit was known, the Debtors need additional time to formulate, draft, and propose a plan of liquidation. The additional time will allow Debtors to draft and circulate a more thorough and thoughtful plan and disclosure statement for the benefit of creditors and parties in interest. It is also possible that, during the extension, the Lawsuit will be decided so that Debtors will be able to draft a more definite liquidation plan.

b.

Whether the Debtor is paying its bills as they come due: The Debtors have been paying their bills as they come due as shown by its most recent Monthly Operating Reports. Whether the Debtor has demonstrated reasonable prospects for filing a viable plan: The Debtors have reasonable prospects for filing a viable plan. The

c.

3

Case:12-13815-ABC Doc#:176 Filed:09/27/12

Entered:09/27/12 09:48:16 Page4 of 4

Debtor is confident that the Bank will prevail on its claims in the Lawsuit and that there will be significant assets to distribute to Creditors. As shown by the Bank’s Motion for Summary Judgment, which was submitted as Exhibit 1 to Debtors’ original Joint Motion to Extend Exclusivity Periods (docket # 135), the Bank’s claims are viable and the Bank has a reasonable prospect of succeeding in the Lawsuit. d. The amount of time which has elapsed in the case: This is the Debtors’ second request for an extension of the exclusivity periods. Whether the Debtor is seeking an extension to pressure creditors: The Debtors are not seeking this extension to pressure creditors as the Debtors have not reached an impasse in negotiations with any creditors up to this point. Whether an unresolved contingency exists: Again, the Debtors are awaiting the DC Court’s ruling on the dispositive motions filed during the spring of 2012.

e.

f.

10. The Debtors have demonstrated progress toward analyzing, resolving, and dealing with issues in this case that must be dealt with prior to developing and seeking confirmation of a plan. Matrix Funding has sold its only asset of significant value. UWBK is actively litigating the Lawsuit. Extending the 120-day and 180-day Exclusivity Periods will not materially prejudice the interests of creditors and other interested parties and, indeed, may help the Debtors formulate a plan that more accurately addresses the claims of creditors. Finally, the Debtor is not requesting an extension to gain a tactical advantage over any of its creditors. WHEREFORE, the Debtor moves to extend both the 120-day Exclusivity Period and the 180-day Exclusivity Period by an additional 45 days, to November 15, 2012, and January 11, 2013, respectively, and for such other relief as deemed proper. Dated this 27th day of September, 2012. Respectfully submitted, SENDER & WASSERMAN, P.C. /s/ David J. Warner Harvey Sender, #7546 David J. Warner, #38708 1660 Lincoln Street, Suite 2200 Denver, Colorado 80264 (303) 296-1999 /Fax: (303) 296-7600 sender@sendwass.com djw@sendwass.com ATTORNEYS FOR THE DEBTORS

4

Case:12-13815-ABC Doc#:176-1 Filed:09/27/12

Entered:09/27/12 09:48:16 Page1 of 1

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF COLORADO In re: ) ) UNITED WESTERN BANCORP, INC. ) Case No. 12-13815 ABC ) Chapter 11 Debtor. ) ______________________________________ ) ) In re: ) ) MATRIX BANCORP TRADING, INC. ) Case No. 12-13822 ABC ) Chapter 11 Debtor. ) ______________________________________ ) ) In re: ) ) MATRIX FUNDING CORP. ) Case No. 12-13824 ABC ) Chapter 11 Debtor. ) ) Jointly Administered Under ) Case No. 12-13815 ABC ORDER GRANTING MOTION TO EXTEND EXCLUSIVITY PERIODS UNDER 11 U.S.C. § 1121(d)(1)

THIS MATTER having come before the Court on the Debtors’ Joint Motion to Extend Exclusivity Periods Under 11 U.S.C. § 1121(d)(1), and the Court, having reviewed and considered any responses or objections thereto, hereby FINDS that good cause exists to extend the 120-day exclusivity period and 180-day exclusivity period under 11 U.S.C. § 1121(d)(1). The Court therefore ORDERS the motion is GRANTED. The 120-day exclusivity period under 11 U.S.C. § 1121(c)(2) is extended up to and including November 15, 2012 and the 180-day exclusivity period under 11 U.S.C. § 1121(c)(3) is extended up to and including January 11, 2013. DATED this ______ day of _______________________, 2012. BY THE COURT:

____________________________ United States Bankruptcy Judge

Sign up to vote on this title
UsefulNot useful