Tamarack Foreclosure Process Moves Forward - Update
MEMORANDUM
TO: Tamarack Municipal Association, Inc. Membership
FROM: TMA Counsel, Stephen J. Lord
RE: Foreclosure Scheduling Hearing on September 1, 2011
DATE: September 2, 2011
The purpose of the September 1 hearing was to determine the remaining steps to conclude the foreclosure case.
The Court and counsel agreed to first determine attorney fees that will be claimed against various parties. The timeline for that is estimated to be 75 to 90 days. Near the end of the judicial business day on September 2, I have not seen any order from the Judge, so the timeline will likely start after Labor Day 2011.
- 14 days to file affidavits and memoranda in support of claims for attorneys' fees.
- 30 day period for Credit Suisse to respond to claims of attorneys who represent lien holders who are senior to Credit Suisse.
- 14 to 20 days after the close of a 30-day period to conduct any hearings that might be needed if there are any remaining disputes over items for fees.
- 15 -30 days for the Judge to enter an order on fees and a decree of foreclosure.
Everyone agreed also that interest accruing under the various construction contracts needs to be brought current, including per diem for each claim that can be added following the entry of judgment.
At the conclusion of the process to calculate attorney fees and interest, the Court will likely enter a decree of judgment of foreclosure which leads to a sheriff's sale.
Credit Suisse's lawyers suggested to the Court that two separate decrees of foreclosure be entered: one for the "Village Plaza mortgage," in which Banner/Sabey is the senior-most lien holder, and the other for the "Tamarack mortgage" which is all of the Tamarack Resort, LLC owned property outside of the Village Plaza. There was broad consensus in support of this two track approach. The "Tamarack mortgaged property" includes some properties in which other lien claimants have liens senor to Credit Suisse - BAG'S lien on the hotel pads, MHTN's lien on Lake Wing, OZ Architects lien on partly-finished Trillium townhouses.
Credit Suisse appears to be headed in a direction where Credit Suisse will enter a credit bid at a sheriff's sale and become the owner of most or all of the Tamarack Resort LLC property, other than Village Plaza.
Assuming Credit Suisse bids for the "Tamarack mortgage" it will likely be required to carve out property subject to senior claims (BAG, MHTN and OZ) and cash bid other senior lien holders (North Lake Recreation and Sewer and Water and Valley County real and personal property taxes).
At present, it appears that after foreclosure:
- Banner/Sabey (and perhaps its subcontractors) will own Village Plaza.
- MHTN will own Lake Wing.
- OZ Architects may own some or all of 67, 69, 71, 73, 75, 77, 79, 81, 86, 92, 94, 104, 106, 108, 110 and 112 Golden Bar Court (16 townhouse units), although their lien claim total for all 16 units through October 31, 2010, was $81,385.38.00 with per diem interest at $6.49.
- BAG will own the Fairmont hotel pads
- Credit Suisse will own everything else.
TMA has discussed with counsel for Credit Suisse the question whether Credit Suisse would agree to allow TMA to continue winter operations. Counsel for Credit Suisse indicated that the matter had been discussed with the Credit Suisse loan syndicate, and there was no opposition to this approach.
At present, TMA is negotiating with TRLLC (to the extent that it still has rights in the property), Credit Suisse, and the State of Idaho for lease terms that are substantially similar to the lease terms from the 2010 2011 winter season.
TMA is ahead of where we were in August of last year, when Credit Suisse had not even given TMA's proposal serious consideration.
As a consequence, regardless of whether Credit Suisse becomes the owner after a sheriff's sale, or whether Credit Suisse is able to sell the property to a third party before, at, or after a sheriff's sale, TMA is in a good position to continue mountain operations for winter 2011-2012.
As always, there are ample opportunities in these processes for things to become delayed again. However, all of the lawyers present at the hearing in Judge Owen's courtroom on September 1, 2011, appeared motivated to get the matter resolved and concluded.