IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF DELAWARE

In re: )
)
CORDILLERA GOLF CLUB, LLC
1
dba
The Club at Cordillera,
) Case No. 12-11893 (CSS)
)
Debtor.
) Chapter 11
)
______________ )
CORDILLERA GOLF CLUB, LLC,
Plaintiff,
v.
ALPINE BANK,
Defendant.
)
)
)
)
) Adv. Pro. No.: 12-
)
)
)
)
__________________________ )
----
COMPLAINT TO DETERMINE VALIDITY, PRIORITY, PERFECTION AND EXTENT
OF LIEN; FOR DECLARATORY RELIEF; AND AVOIDANCE OF LIEN
The Plaintiff, Cordillera Golf Club, LLC ("Plaintiff' or "Debtor"), pursuant to 11
U.S.C. 544(a)(l), 550, and 551, hereby files its Complaint against defendant, Alpine Bank
("Defendant") to determine validity, priority and extent of lien, for declaratory relief and for
avoidance of lien, stating and alleging as follows:
JURISDICTION AND VENUE
1. The United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") has jurisdiction over the parties and subject matter of this proceeding
1
The Debtor in this chapter 11 case, and the last four digits of its employer tax identification number, is
XX-X:XX1317. The corporate headquarters address for the Debtor is 97 Main Street, Suite E202, Edwards,
Colorado 81632.
01:12258036.1
pursuant to 28 U.S.C. 157 and 1334, and the Amended Standing Order of Reference from the
United States District Court for the District of Delaware dated as of February 29,2012.
2. This proceeding is a core proceeding pursuant to 28 U.S.C. 157(b )(1) and
157(b)(2).
3.
1409(a).
4.
Venue for this proceeding is proper in this District pursuant to 28 U.S.C.
The statutory predicates for the relief requested herein are 506, 544, 550 and
551 of the United States Bankruptcy Code, 11 U.S.C. 101-1330 (the "Bankruptcy Code") and
Rule 7001 of the Federal Rules of Bankruptcy Procedure.
THE PARTIES
5. The Debtor is a limited liability company duly organized under and existing
pursuant to the laws of the State of Delaware and is operating its business and to managing its
properties as a debtor-in-possession under sections 11 07(a) and 1108 of the Bankruptcy Code.
6. The Defendant, Alpine Bank, is a Colorado banking corporation organized under
and pursuant to the laws of Colorado. The Defendant provided a business loan to the Debtor as
further described below.
FACTUAL BACKGROUND
7. The Debtor is the owner and operator of "The Club at Cordillera" (the "Club")
located in Edwards (Eagle County), Colorado. The Club facilities consist of, among other
property, three (3) full length golf courses (the "Courses"), four distinct clubhouses, real estate
surrounding the Courses, a Dave Pelz short course, an athletic club offering indoor lap pool and
fitness facilities, a tennis and swim club, and a winter nordic center with groomed tracks
(collectively, the "Facilities").
01:12258036.1
2
A. The Alpine Bank Loan
8. Or about June 26, 2009, the Defendant and the Debtor entered into that certain
Business Loan Agreement (the "Alpine Loan Agreement"), pursuant to which Alpine loaned to
the Debtor the original principal amount of$13,700,000 (the "Alpine Loan").
9. The Alpine Loan is evidenced by a Promissory Note dated June 29, 2009 (the
"Alpine Note"). The Note matured on June 26, 2012. The Alpine Loan purports to be secured
pursuant to a Deed of Trust dated June 26, 2009 and recorded in Eagle County Record's Office
on June 29, 2009 as Document No. 200912623 (the "Alpine Deed of Trust").
10. As security for the Debtor's obligations under the Alpine Note, the Alpine Deed
of Trust purports to encumber the real property described therein, including all or a portion of the
debtor's Facilities (the "Real Property").
11. The Alpine Deed of Trust also purports to encumber certain personal property
described therein, including "all equipment, fixtures, and other articles of personal property now
or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property."
The Alpine Note also purports to be secured pursuant to a Collateral Assignment of Contracts
dated June 26, 2009 purporting to encumber certain water rights, and related contracts as listed
therein; a Collateral Assignment and Security Agreement Covering Agreements, Permits and
Contracts dated June 26, 2009, purporting to encumber the "Collateral" as defined therein,
including contracts, licenses, and other agreements as described therein; a Collateral Assignment
and Security Agreement Covering Golf Membership Revenues dated June 26, 2009, purporting
to encumber "Net Sales Revenues" and "Income from Dues" as defined therein, including
revenues from the sale of golf course memberships with respect to the Courses and dues,
assessments, fees or other charges on account of memberships in the Club; a Commercial Pledge
01:12258036.1
3
Agreement dated June 26, 2009 purporting to encumber all memberships in the Club; and a
Commercial Security Agreement dated June 26, 2009 purporting to encumber furniture, fixtures,
equipment, inventory, accounts receivable, general intangibles, contracts and contract rights,
permits, goods, instruments, investment property, letter of credit rights, chattel paper,
commercial tort claims, and all proceeds from the disposition thereof (all of the personal
property purporting to be collateral for the Alpine Note) (collectively, the "Personal Property").
The above described documents and other documents entered into in connection with the Alpine
Loan are collectively referred to as the "Alpine Loan Documents," and the documents referred to
above have been filed with the Court in the Chapter 11 Case (defined below) at Docket No. 11.
12. Pursuant to the Alpine Loan Documents, the Defendant purports to have a secured
lien over the Real Property and Personal Property (the "Prepetition Lien").
13. On June 30, 2009, Alpine filed a UCC Financing Statement (the "Alpine
Financing Statement") with the Delaware Secretary of State purporting to perfect its security
interest in the Personal Property. A copy of the Alpine Financing Statement is attached hereto as
Exhibit A.
14. The description of collateral in the Alpine Financing Statement states in Item 4:
"This FINANCING STATEMENT covers the following collateral: PDF ATTACHED."
However, the attached pdf exhibit referred was not attached to the original Alpine Financing
Statement.
15. On or about June 30,2010, almost one (1) year later, apparently recognizing its
mistake, Alpine caused to be filed a "UCC Form Correction Statement" (the "Alpine Correction
Statement") checking Item 2a: "RECORD is inaccurate," and stating: "Item 4 of the UCC
Financing Statement stated the collateral was attached in a PDF, but when filed the PDF did not
01:12258036.1
4
attach. Attached to this document is the missing PDF that needs to be added to the original filing
effective as of the original filing date." A personal property description was attached to the
Alpine Correction Statement. Item 4 of the Alpine Correction Statement referring to the person
authorizing the Alpine Correction Statement, refers to "Alpine Bank." The Alpine Correction
Statement is attached hereto as Exhibit B.
B. The Debtor's Chapter 11 Filing
16. On June 26, 2012 (the "Petition Date"), the Debtor filed a voluntary petition for
relief under chapter 11 of the Bankruptcy Code, thereby initiating Case No. 12-11893 with the
Bankruptcy Court (the "Chapter 11 Case").
COUNT I:
DECLARATORY JUDGMENT THAT PREPETITION LIEN WITH REGARD TO
PERSONALPROPERTYISUNPERFECTED
17. The Debtor repeats and realleges the allegations contained in Paragraphs 1
through 16 above as though fully set forth herein.
18. The Debtor is entitled to a determination ofthe validity, priority, perfection and
extent of the Prepetition Lien alleged by the Defendant.
19. The Debtor is deemed located in the State of Delaware pursuant to the Uniform
Commercial Code as in effect in the State of Colorado and the State of Delaware for purposes of
the law governing perfection of the Prepetition Lien in the Personal Property capable of being
perfected by the filing of a financing statement under the Delaware Uniform Commercial Code
(the "Code").
20. In order to perfect the Prepetition Lien in the Personal Property capable of being
perfected by the filing of a financing statement under the Code, the Defendant was required to
01:12258036.1
5
file a sufficient financing statement with the Delaware Secretary of State under the Debtor's
name meeting the requirements set forth in Sections 9-502 and 9-504 of the Code.
21. Inasmuch as there was no description at all of any Personal Property attached to
the Alpine Financing Statement, the original Alpine Financing Statement does not have a
sufficient description of the Personal Property within the meaning of and as required by
Delaware UCC Sections 9-502 and 9-504 for perfection purposes and is therefore defective and
inadequate to perfect Alpine's asserted lien in any of the Personal Property.
22. The filing of a "Correction Statement" by the Defendant attaching a personal
property description in an attempt fix the deficiency in the original Alpine Financing Statement
does not cure any defect in the Alpine Financing Statement.
23. As a result, the Defendant's Prepetition Lien in any Personal Property in which
perfection must be accomplished by the filing of a financing statement under the Code or other
applicable law is unperfected.
24. Prior to the Petition Date, the Debtor is informed and believes that Alpine Bank
did not take any action permitted or required by the Code or other applicable law to perfect its
Prepetition Lien in any of the Personal Property which may be or is required to be perfected by a
method other than the filing of a sufficient financing statement with the Delaware Secretary of
State.
25. None of the Defendant's Prepetition Lien in portions of the Personal Property
which may be or is required to be perfected by means other than the filing of a financing
statement with the Delaware Secretary of State is perfected.
26. None of the Defendant's Prepetition Liens in the Personal Property is perfected.
01:12258036.1
6
27. There is an actual controversy between the parties as to whether the Defendant's
Prepetition Lien in any Personal Property is perfected.
28. Entry of a declaratory judgment as to whether the Defendant's Prepetition Lien in
any Personal Property is perfected will settle the controversy currently existing between the
parties.
29. A declaratory judgment or order determining the validity, priority, perfection and
extent of the Prepetition Lien in any Personal Property alleged by the Defendant is therefore
warranted.
COUNT II:
A VOIDANCE OF UNPERFECTED LIEN PURSUANT TO 544(A)(l) OF THE
BANKRUPTCY CODE
30. The Debtor repeats and realleges the allegations contained in Paragraphs 1
through 29 above as though fully set forth herein.
31. Where a creditor has failed to perfect a security interest in property under
applicable state law, the security interest is avoidable under Bankruptcy Code section 544.
32. The Defendant failed to properly perfect its Prepetition Lien in the Personal
Property as required by applicable state law.
33. The Defendant's unperfected Prepetition Lien in the Personal Property is
avoidable by the Debtor pursuant to Bankruptcy Code section 544(a)(l).
34. The Defendant's avoided security interest is preserved for the benefit of the
Debtors' bankruptcy estate pursuant to Bankruptcy Code section 5 51.
35. Pursuant to sections 544 and 550 ofthe Bankruptcy Code, the Debtor, as debtor in
possession, has a right to avoid the Defendant's Prepetition Lien in any Personal Property.
01:12258036.1
7
36. Accordingly, the Debtor hereby requests that the Defendant's asserted Prepetition
Lien in any Personal Property be avoided; that such avoided lien be preserved for the benefit of
the Debtor's estate; and the Court award such costs and fees which the Court in its power may
award pursuant to sections 544, 550 and/or other applicable provisions of the Bankruptcy Code.
WHEREFORE, the Debtor requests that this Court enter a judgment in favor of the
Debtor and against the Defendant:
01:12258036.1
a. Declaring that the Defendant's Prepetition Lien m the Personal Property 1s
unperfected;
b. A voiding the Defendant's Prepetition Lien in any Personal Property pursuant to
sections 544 and 550 of the Bankruptcy Code;
c. Preserving the security interest for the benefit of the Debtor's bankruptcy estate
pursuant to Bankruptcy Code section 5 51;
d. Preserving all of the Debtor's rights to raise any other claims regarding validity,
extent, priority, enforceability, perfection or otherwise against the Defendant;
e. Awarding such costs and fees to the Debtor which the Court in its power may
award pursuant to sections 544, 550 and/or other applicable provisions of the
Bankruptcy Code or applicable law; and
f. Awarding the Debtor such other and further relief as this Court deems just and
proper.
8
Dated: Wilmington, Delaware
July 2, 2012
01:12258036.1
FOLEY & LARDNER LLP
Christopher Celentino (CA No. 131688)
Mikel Bistrow (CA No. 1 02978)
Erika Morabito (VA No. 44369)
402 West Broadway, Suite 2100
San Diego, California 92101
Telephone: (619) 234--6655
Facsimile: (619) 234-3510
-and-
YOUNG CONAWAY STARGATT & TAYLOR, LLP
( Z h ~ ~
Michael R. Nes(N0:3526)
Joseph M. Barry (No. 4221)
Donald J. Bowman, Jr. (No. 4383)
Kenneth J. Enos (No. 4544)
Rodney Square
1 000 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 571-6600
Facsimile: (302) 571-1253
Proposed Counsel for Debtor and Debtor in Possession
9
EXHIBIT A
Alpine Financing Statement
01:12258036.1
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
Kursten canada Esq_:., =::::--::-:------:--:-:--:---:-------"-9.:.c70::.:9:.;;4:.;:9c.:::0.:..70::..7:.._-i
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
DELAWARE DEPARTMENT OF STATE
U.C.C. FILING SECTION
FILED 05:27 PM 06/30/2009
INITIAL FILING # 2009 2098165
I SRV: 090663504
GliRFIEID & HECHT, P.C.
P.O. BOX 5450
L=:_voN oo 81620
_j
1. DEBTOR'S EXACT FULL LEGAL NAME insert only one debtor name (Ia or lb)- do not abbreviate or combine names
-
la. ORGANIZATION'S NAME
OORDI:r.I.ERA GOLF CIJJB, LLC
OR
1 b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
lc. MAILING ADDRESS CITY STATE
I POSTAL CODE
COUNTRY
P.O. BOX 988 EDW11RDS co 81632 U'S
11e. TYPE OF ORGANIZATION 1f. JURISDICTION OF ORGANIZATION
I LTD LIABILITY OOMPliNY: I DE
2 ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME insert only !1M debtor name (2a or 2b) do not abbreviate or combine names
2a. ORGANIZATION'S NAME
OR
OORDI:r.I.ERA F&B, LLC
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
2c. MAILING ADDRESS CITY STATE
I POSTAL CODE
COUNTRY
P.O. BOX 988 EDW11RDS 00 81632 U'S
12e. TYPE OF ORGANIZATION 2f. JURISDICTION OF ORGANIZATION
!LTD LIABILITY OOMPANY: DE
3 SECURED PARTY'S NAME (or NAME ofTOTAL ASSIGNEE of ASSIGNOR SIP)- insert only llllll secured party name (3a or 3b)
3a. ORGANIZATION'S NAME
ALPINE BliNK, A OOIDRI\DO BliNKING OORPORATION
OR
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
3c. MAILING ADDRESS CITY STATE
rOSTALCODE
COUNTRY
12 VAIL ROAD SU'ITE 200 VAIL co 81657 U'S
4. T h ~ s FINANCING STATEMENT covers the follow1ng collateral:
PDF ATTACHED
Debtor 2
EXHIBIT B
Alpine Correction Statement
01:12258036.1
JUN. 23.2010 9:49AM
GARFIELD & HECHT, P. C. (AVON)
NO. 2877 P. 3/4
CORREC'riON STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF PERSON FlUNG THIS STATEMENf (optiona[)
Kursten Canada, Esq.
DELAWARE DEPAR1MENT OF S:rJU'E
U. C. C. FILING SECTION
FILED 11 :57 AM 06/23/2010
INITIAL FILING # 2009 2098165
AMENDMENT # 2010 2394041
SRV: 100682761
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
r
L
Garfield and Hecht, P .C.
P.O. Box 5450
Eagle, CO 81620
1
.J
TIIE AOVE SPACt lS FOR FILING OFF1CE USE ONLY
1. Idemlficntion ofthe RECORD to which this CORRECTION STATEMENT relates.
la. TYPE OF RECORD lb. FILE# Ol' INITIAL FINANCING STATEMENT
UCC Financing Statement 2009 2098165
2a. RECORD is inaccurate.
2b.
0
l?rovicle the basis for the belhlf of the person identified in item 4 that the RECORD identified in item 1 is lnaceuratc and indicate the manner
in which the persort believes the RECORD should be amended to the inaccuracy.
Item 4 of the UCC Financing Statement stated the collateral was attached in a PDF, but when filed the PDF did not
attach. Attached to this document is the missing collateral PDF that needs to be added to the original fili11g effective as
of the original filing date.
RECORD was WJ:ongfully filed.
Provide the basis for the belief of me perSon identifie.;i in item 4 that the RECORD identified in item 1 was wrongfully filed .
.3. If this CORRECTION STATEMENI relates to a RECORD filed [or recorded] in a filing office described in Section 9-:50l(a)(l) and this
CORRECTION STATEMENT is filed in such a filing offiee, provide the date [and time] on which the INITIAL FINANCING STATEMENT
identified in item 1 b above was filed or recorded .
3a. DATE 3b. TIME
4. NAME OF PERSON AUTHORIZJNG THE FILING OF TIIIS CORRECTION STA TBMe:NT- TI1e RECORD lA i\i!m 1 muat be indexed name.
4a. ORGANIZATION'S NAME:
Al ine Bank, a Colorado bankin
No.1204. Rev. 5-01. COJUU;CTION STATEMENT (FORM UCCS)
(I) FILING OFfiCE COPY (2) ACKNOVVLEDGMENT COPY (3) DEBTOR COPY (4) SECURED PARTY COPY
JUN. 23.2010 9:49AM GARFIELD & HECHT, P. C. (AVON) NO. 2877 P. 4/4
Attachment to UCC Filing

ALL FURNITURE, FIXTURES, EQUIPMENT, INVENTORY, ACCOUNTS
RECEIVABLE, GENERAL INTANGIBLES, CONTRACTS, AND CONTRACT
RIGHTS, PERMITS, GOODS, INSTRUMENTS, INVESTMENT PROPERTY,
LETTER OF CREDIT RIGHTS, CHATIEL PAPER. COMMERCIAL TORT CLAIMS,
AND ALL PROCEEDS FROM THE DISPOSITION THEREOF, TOGETHER WITH
ALL DUES, ASSESSMENTS, FEES OR OTHER CHARGES PAY ABLE TO DEBTOR
BY OR ON ACCOUNT OF ALL GOLF COURSE MEMBERSHIPS OF ALL
CATEGORIES AND ALL PRlVlLEGES WITH RESPECT TO ALL GOLF COURSE
PROPERTIES AND FACILITIES NOW OR HEREAFTER OWNED BY DEBTOR
INCLUDING BUT NOT LIMITED TO MEMBERSHIPS ISSUED PURSUANT TO
THE MEMBERSHIP PLAN FOR THE CLUB AT CORDILLERA AMENDED AND
RESTATED NOVEMBER 30, 2007 AND ANY AMENDMENTS, MODIFICATIONS,
SUPPLEMENTS OR RESTATEMENTS THEREOF (THE ''MEMBERSHIPS"), AND
ALL REVENEUES, WHETHER IN THE FORM OF A LUMP SUM PAYMENT OR
ANY INSTALLMENTS OR ON ANY OTHER CREDIT TERMS, FROM THE SALE,
EXCHANGE OR UPGRADE OF MEMBERSHIPS, INCLUDING, BUT NOT
LIMITED TO, PREMIER MEMBERSHIPS, LESS ALL REFUND PAYMENTS PAID
OR PAYABLE IN CONNECTION WITH THE SALE) EXCHANGE OR UPGRADE
OF ANY MEMBERSHIPS NOW EXISTING OR HEREAFTER ISSUED.
509913vl