-GWF Federal Trade Commission v. Johnson et al, No. 2:2010cv02203 - Document 729 (D. Nev. 2012)
Court Description: ORDER Granting 694 Motion for Order (1) Approving and Confirming Sale of Aircraft and for Related Relief; (2) Authorizing Receiver to List and Offer for Sale Aircraft; and (3) Granting Relief from Local Rule 66-5 Pertaining to Notice to Creditors. Signed by Judge Miranda M. Du on 10/4/12. (Copies have been distributed pursuant to the NEF - MMM)
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-GWF Federal Trade Commission v. Johnson et al 1 2 3 4 5 6 7 8 9 10 11 Doc. 729 RANDOLPH L. HOWARD (Nev. SBN 006688) rhoward@klnevada.com KOLESAR & LEATHAM, CHTD. 400 South Rampart Boulevard, Suite 400 Las Vegas, NV 89145 Telephone: (702) 362-7800 Facsimile: (702) 362-9472 GARY OWEN CARIS (Cal. SBN 088918) gcaris@mckennalong.com LESLEY ANNE HAWES (Cal. SBN 117101) lhawes@mckennalong.com MCKENNA LONG & ALDRIDGE LLP 300 South Grand Avenue, 14th Floor Los Angeles, CA 90071-3124 Telephone: (213) 688-1000 Facsimile: (213) 243-6330 Attorneys for Receiver ROBB EVANS OF ROBB EVANS & ASSOCIATES LLC 12 UNITED STATES DISTRICT COURT 13 14 DISTRICT OF NEVADA 15 16 FEDERAL TRADE COMMISSION, Plaintiff, 17 18 v. 19 JEREMY JOHNSON, etc., et al., 20 Defendants. 21 Case No. 2:10-CV-02203-MMD-GWF ORDER (1) APPROVING AND CONFIRMING SALE OF AIRCRAFT AND FOR RELATED RELIEF; (2) AUTHORIZING RECEIVER TO LIST AND OFFER FOR SALE AIRCRAFT; AND (3) GRANTING RELIEF FROM LOCAL RULE 66-5 PERTAINING TO NOTICE TO CREDITORS 22 23 24 25 26 27 The Third Omnibus Motion for Order: (1) Approving and Confirming Sale of Aircraft and for Related Relief; (2) Authorizing Receiver to List and Offer for Sale Aircraft; and (3) Granting Relief from Local Rule 66-5 Pertaining to Notice to Creditors (“Motion”) filed by Robb Evans of Robb Evans & Associates LLC (“Receiver”), came on before the Court for determination. The Court having reviewed and considered the Motion and all pleadings and papers filed in support 28 M C K EN NA L ONG & A LDRIDG E LLP A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 Dockets.Justia.com 1 thereof, and having reviewed and considered any opposition or response to the Motion, and good 2 cause appearing therefor, 3 IT IS ORDERED that: 4 1. The Motion and the relief sought therein is granted in its entirety; 5 2. Without limiting the generality of the foregoing: 6 A. The Receiver is authorized to sell that certain 2008 Robinson R44 Raven II 7 helicopter bearing Registration No. N41286 (“N41286 Helicopter”) to California Aviation 8 Services, Inc. (“Proposed N41286 Helicopter Buyer”), an arms’ length, third party buyer, on an 9 “as is and where is” basis, for a cash payment in the sum of $327,200 pursuant to that certain 10 Helicopter Purchase Agreement dated as of July 13, 2012 (“Proposed N41286 Purchase 11 Contract”), a true and correct copy of which is attached as Exhibit 3 to the Declaration of Kenton 12 Johnson in support of the Motion, or to such higher qualified overbidder who hereafter submits 13 the highest qualified overbid at a subsequent overbid session to be conducted pursuant to the 14 following terms and conditions (“N41286 Helicopter Overbid Procedures”) which N41286 15 Helicopter Overbid Procedures are hereby approved: 16 (1) The Receiver shall conduct an overbid session within 20 days of the date of 17 entry of this Order. The overbid session will be conducted at the offices of Quantum Helicopters 18 (“Broker”) located at 2401 S. Heliport Way, Chandler, AZ 85286; 19 (2) The Receiver shall publish a notice of the proposed sale of the N41286 20 Helicopter to a qualified bidder at the overbid session to be conducted under paragraph 2.A.(1) 21 above, which notice shall state the date, time and place of the overbid session, and the 22 requirement for pre-qualification by overbidders, and will include a summary of the terms and 23 conditions of the overbidding and sale of the property, as described below (“N41286 Overbid 24 Notice”). A detailed description of the terms and conditions of the overbid session will be 25 provided to interested parties who contact the Receiver. The Receiver will cause the N41286 26 Overbid Notice to be published on two web sites, Controller and Trade-A-Plane, two times prior 27 to the scheduled overbid session, and in the Controller and Trade-A-Plane print magazines at least 28 M C K EN NA L ONG & A LDRIDG E LLP -2- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 1 one time prior to the scheduled overbid session, and with the first publication date to be at least 2 10 days prior to the scheduled overbid session date. 3 (3) Any person wishing to overbid at the overbid session shall be required to 4 pre-qualify with the Receiver no later than 10:00 a.m. P.D.T. on the business day preceding the 5 overbid session by delivering to the Receiver’s office located at 11450 Sheldon Street, Sun 6 Valley, California 91352: (a) notice in writing of the prospective overbidder’s intent to overbid 7 together with (b) written verification from a financial institution demonstrating to the Receiver’s 8 satisfaction, in the Receiver’s sole opinion and judgment, the prospective overbidder’s ability to 9 complete and close a purchase of the N41286 Helicopter through sufficient funds or credit 10 facilities within 20 days of the date of the overbid session, and (c) a cashier’s check in the sum of 11 $30,000 payable to I Works Inc. Receivership QSF, which cashier’s check shall become non- 12 refundable upon acceptance of the overbidder’s overbid at the conclusion of the overbid session. 13 (4) Overbidders bidding at the overbid session will be deemed to have 14 completed all inspections of the N41286 Helicopter and will be deemed to have waived and/or 15 removed all contingencies in favor of the buyer under the Proposed N41286 Purchase Contract, 16 and will be required to complete a cash purchase of the N41286 Helicopter and close escrow for 17 the purchase of the N41286 Helicopter within 20 days of the date of the overbid session. The 18 successful overbidder will be required to execute a purchase agreement for the N41286 19 Helicopter substantially in the form of the Proposed N41286 Purchase Contract together with a 20 waiver of all buyer contingencies promptly after conclusion of the overbid session. 21 (5) The initial overbid shall be in the amount of $357,200 (an amount that is 22 $30,000 higher than the purchase price under the Proposed N41286 Purchase Contract), and all 23 subsequent overbids shall be in an amount at least $10,000 higher than the preceding bid. 24 (6) Pursuant to the Proposed N41286 Purchase Contract and the Receiver’s 25 listing agreement with his Broker, a sales commission in the fixed amount of 5% of the final sales 26 price paid for the N41286 Helicopter by the Proposed N41286 Helicopter Buyer, or if a higher 27 overbid is received and accepted at the overbid session, by the winning overbidder, shall be paid 28 from the proceeds of sale of the N41286 Helicopter at close of escrow and shall be paid to the M C K EN NA L ONG & A LDRIDG E LLP -3- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 1 Broker as listing agent under the exclusive listing agreement (“N41286 Helicopter Listing 2 Agreement”) attached as Exhibit 1 to the Declaration of Kenton Johnson in support of the Motion 3 and the Sale Authorization Order entered by the Court on August 26, 2011 (Doc. No. 288). 4 B. The Receiver is hereby authorized to complete the sale of the N41286 Helicopter 5 to the Proposed N41286 Helicopter Buyer under the Proposed N41286 Purchase Contract, or to 6 the person who submits the highest qualified overbid at the overbid session to be conducted 7 pursuant to the foregoing procedures, and such sale is hereby approved and confirmed pursuant to 8 this Order without further notice, hearing or order; 9 C. The Receiver is hereby authorized to execute all documents and instruments 10 necessary or convenient to complete, implement, and effectuate the sale of the N41286 11 Helicopter, including without limitation any documents necessary or convenient to transfer title 12 thereto; 13 D. The Receiver is authorized to sell that certain 2005 Robinson R44 Raven II 14 helicopter bearing Registration No. N321WT (“N321WT Helicopter”) to RV Aviation, LLC, an 15 arms’ length, third party buyer for a cash payment in the sum of approximately $150,000 on an 16 “as is and where is” basis pursuant to that certain Helicopter Purchase Agreement dated as of July 17 10, 2012 (“Proposed N321WT Purchase Contract”), a true and correct copy of which is attached 18 as Exhibit 4 to the Declaration of Kenton Johnson in support of the Motion, or to such higher 19 qualified overbidder who hereafter submits the highest qualified overbid at a subsequent overbid 20 session to be conducted pursuant to the following terms and conditions (“N321WT Helicopter 21 Overbid Procedures”) which N321WT Helicopter Overbid Procedures are hereby approved: 22 (1) The Receiver shall conduct an overbid session within 20 days of the date of 23 entry of this Order. The overbid session will be conducted at the offices of Quantum Helicopters 24 located at 2401 S. Heliport Way, Chandler, AZ 85286; 25 (2) The Receiver shall publish a notice of the proposed sale of the N321WT 26 Helicopter to a qualified bidder at the overbid session to be conducted under paragraph 2.D.(1) 27 above, which notice shall state the date, time and place of the overbid session, and the 28 requirement for pre-qualification by overbidders, and will include a summary of the terms and M C K EN NA L ONG & A LDRIDG E LLP -4- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 1 conditions of the overbidding and sale of the property, as described below (“N321WT Overbid 2 Notice”). A detailed description of the terms and conditions of the overbid session will be 3 provided to interested parties who contact the Receiver. The Receiver will cause the N321WT 4 Overbid Notice to be published on two web sites, Controller and Trade-A-Plane, two times prior 5 to the scheduled overbid session, and in the Controller and Trade-A-Plane print magazines at least 6 one time prior to the scheduled overbid session, and with the first publication date to be at least 7 10 days prior to the scheduled overbid session date. 8 9 (3) Any person wishing to overbid at the overbid session shall be required to pre-qualify with the Receiver no later than 10:00 a.m. P.D.T. on the business day preceding the 10 overbid session by delivering to the Receiver’s office located at 11450 Sheldon Street, Sun 11 Valley, California 91352: (a) notice in writing of the prospective overbidder’s intent to overbid 12 together with (b) written verification from a financial institution demonstrating to the Receiver’s 13 satisfaction, in the Receiver’s sole opinion and judgment, the prospective overbidder’s ability to 14 complete and close a purchase of the N321WT Helicopter through sufficient funds or credit 15 facilities within 20 days of the date of the overbid session, and (c) a cashier’s check in the sum of 16 $15,000 payable to I Works Inc. Receivership QSF, which cashier’s check shall become non- 17 refundable upon acceptance of the overbidder’s overbid at the conclusion of the overbid session. 18 (4) Overbidders bidding at the overbid session shall be deemed to have 19 completed all inspections of the N321WT Helicopter and shall be deemed to have waived and/or 20 removed all contingencies in favor of the buyer under the Proposed N321WT Purchase Contract, 21 and will be required to complete a cash purchase of the N321WT Helicopter and close escrow for 22 the purchase of the N321WT Helicopter within 20 days of the date of the overbid session. The 23 successful overbidder shall be required to execute a purchase agreement for the N321WT 24 Helicopter substantially in the form of the Proposed N321WT Purchase Contract together with a 25 waiver of all buyer contingencies promptly after conclusion of the overbid session. 26 27 (5) The initial overbid shall be in the amount of $165,000 (an amount that is approximately $15,000 higher than the purchase price under the Proposed N321WT Purchase 28 M C K EN NA L ONG & A LDRIDG E LLP -5- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 1 Contract), and all subsequent overbids shall be in an amount at least $5,000 higher than the 2 preceding bid. 3 (6) Pursuant to the Proposed N321WT Purchase Contract and the Receiver’s 4 listing agreement with his Broker, a sales commission in the fixed amount of 5% of the final sales 5 price paid for the N321WT Helicopter by the Proposed N321WT Helicopter Buyer, or if a higher 6 overbid is received and accepted at the overbid session, by the winning overbidder, shall be paid 7 from the proceeds of sale of the N321WT Helicopter at close of escrow and shall be paid to the 8 Broker as listing agent under the exclusive listing agreement (“N321WT Helicopter Listing 9 Agreement”) attached as Exhibit 2 to the Declaration of Kenton Johnson in support of the Motion 10 11 and the Sale Authorization Order entered by the Court on August 26, 2011 (Doc. No. 288). E. The Receiver is authorized to sell and transfer the N321WT Helicopter free and 12 clear of liens, including specifically any liens of SunFirst Bank, now in receivership with the 13 Federal Deposit Insurance Corporation as Receiver (“SunFirst”), which are disputed, including 14 without limitation the lien reflected in that Notice of Aircraft Security Agreement and Aircraft 15 Security Agreement dated as of May 19, 2010 in favor of SunFirst, and recorded with the Federal 16 Aviation Administration (“FAA”) on or about June 15, 2010 as Conveyance No. TM007392, and 17 the UCC-1 Financing Statement filed with the Utah Department of Commerce as File No. 18 380044201032, with such liens to attach to the proceeds of sale in the same amount, and with the 19 same validity, extent and priority as said liens had against the N321WT Helicopter, and subject to 20 further order of the Court determining the amount, validity, extent and priority of such liens; 21 F. The Receiver is hereby authorized to complete the sale of the N321WT Helicopter 22 to the Proposed N321WT Helicopter Buyer under the N321WT N41286 Purchase Contract, or to 23 the person who submits the highest qualified overbid at the overbid session to be conducted 24 pursuant to the foregoing procedures, and such sale is hereby approved and confirmed pursuant to 25 this Order without further notice, hearing or order; 26 27 G. The Receiver is hereby authorized to execute all documents and instruments necessary or convenient to complete, implement, and effectuate the sale of the N321WT 28 M C K EN NA L ONG & A LDRIDG E LLP -6- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2 1 Helicopter, including without limitation any documents necessary or convenient to transfer title 2 thereto; 3 H. The Receiver is hereby authorized engage Quantum Helicopters as Broker to list 4 for sale that certain 2005 Robinson R44 Raven II helicopter bearing Registration No. N74367 5 (“N74367 Helicopter”) and is authorized to enter into the exclusive written listing agreement 6 (“N74367 Helicopter Listing Agreement”) with Quantum Helicopters as Broker, attached as 7 Exhibit 5 to the Declaration of Kenton Johnson in support of the Motion; and 8 9 I. Notice of the Motion is deemed to be sufficient under Local Civil Rule 66-5 based on the service of the notice of the filing of the Motion and the Motion on all parties and service of 10 the notice of the filing of the Motion on all known non-consumer creditors of the estate, and on 11 all known taxing authorities with a potential claim in the receivership estate concurrent with the 12 filing of the Motion with the Court. 13 14 15 Dated: October 4, 2012 16 MIRANDA M. DU United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 M C K EN NA L ONG & A LDRIDG E LLP -7- A T T O RNE YS A T L AW L O S A NGE L E S LA:17974901.2
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