United States District Court, W.D. Texas, San Antonio Division
ORDER DENYING STAY PENDING APPEAL
RODRIGUEZ UNITED STATES DISTRICT JUDGE
date, the Court considered the status of this case. On April
3, 2019, based on the representations made in the Emergency
Motion to Stay Sale Order Pending Appeal filed by Appellant
Voltaire Asset Managers II, LLC (docket no. 2), the Court
granted ex parte a temporary stay (docket no. 3) of the
Bankruptcy Court's sale order.
April 8, Voltaire filed a Motion for Expedited Briefing
Schedule (docket no. 5), pursuant to Rule 8013(a)(2)(B) of
the Federal Rules of Bankruptcy Procedure. Later the same
day, Palomar, LLC, and Camco Land, Ltd., moved to intervene
in this appeal (docket nos. 8, 11). Intervenors' motions
are granted: Camco and Palomar have satisfied the
intervention requirements of Bankruptcy Rule 8013(g). The
intervenors' motions for leave to respond to
Voltaire's motion for stay pending appeal (docket nos.
12, 14) are also granted.
Court's prior order stated that the temporary stay will
expire April 17 and that after hearing from Appellee
Tresha-Mob, LLC, the Court would consider whether to continue
the stay pending completion of the appeal or whether to
dissolve the stay. The Court did not grant a full stay
pending appeal, but rather granted a temporary stay based on
the urgencies presented in Voltaire's motion. Although
the debtor, Tresha-Mob, did respond to the order granting
temporary stay, the intervenors have informed the Court that
Appellant Voltaire is the managing member of Appellee
Tresha-Mob, and thus the intervenors, not Tresha-Mob, are the
true opposition to the stay Voltaire seeks and this appeal
the benefit of the additional arguments and factual context
these intervenors' responses provide, the Court now
considers whether the Sale Order should be stayed pending
appeal. As stated below, the Court concludes it should not be
stayed, and thus the temporary stay is dissolved.
case comes before the Court on appeal from an April 2 order
of the Bankruptcy Court, the Order Relating to the
Debtor's Motion to (A) Establish Bidding Procedures in
Connection with the Sale of Substantially All of the
Debtor's Assets and Assignments of Assumed Leases; (B)
Authorize the Debtor to Select a Designated Purchaser or a
Stalking Horse Bidder and/or Hold an auction; (C) Approve the
Form and Manner of Notice; and (D) Grant Related Relief (the
“Sale Order”). See In re: Tresha-Mob,
LLC, No. 18-52420-RBK, ECF No. 123.
Sale Order approved the results of a March 27 auction
sponsored by the Bankruptcy Court. In that auction,
Intervenor Camco Land, Ltd., submitted the winning bid for
the purchase of a medical office building, the principal
asset of debtor Tresha-Mob, LLC. Bankruptcy Judge Ronald King
deemed Camco a good faith purchaser. Voltaire's challenge
to this order (and the auction it approved) stems from Judge
King's exclusion from the bidding process of Cherish
Medical Office Building, LLC.
the Bidding Procedures established for this auction, approved
on March 5, Tresha-Mob designated four Qualified Bidders.
Camco and Cherish were two of these Qualified Bidders.
Palomar, LLC (an intervenor in this case and, along with
Voltaire, one of two members of Tresha-Mob) claims it learned
the identities of the bidders the day before the auction.
Docket no. 12-1 at 5. It then “discovered a
long-standing business relationship” between Voltaire
manager Michael Horrell and Cherish principal Randy Soule
that included, in 2014, “suspicious activity between
Horrell and Soule involving conveying and re-conveying
between themselves . . . title to the same real property
being auctioned by the Debtor.” Id. At the
auction, Palomar argued that Cherish should not be permitted
to bid because of this potentially undisclosed relationship.
Bidding Procedures state “[a]ll Qualified Bidders must
attend” the auction, docket no. 13-4 at 5, but the only
Cherish representative at the auction was attorney Michael
Colvard, who stated that he was retained by Cherish the day
before the auction, knew almost no information about Cherish,
and was authorized only to submit a bid. Judge King sustained
Palomar's objection and excluded Cherish from the
bidding. At the hearing, Judge King stated:
[Cherish does not] have anybody here, and we don't know
what their motivation is or what their interest in this is.
And I'm concerned about the sanctity of a bidding process
where an insider might come in and bid things up. Whether
they intend to close or whether they don't intend to
close, it could have an adverse effect on the other bidders
and on the price. And it may increase it. But if it did
increase it, it might increase it artificially.
Docket no. 12-1 at 16.
then twice challenged Judge King's ruling in a motion for
reconsideration and a motion for authority to prosecute a
limited objection to the sale hearing on behalf of the
debtor. See In re: Tresha-Mob, LLC, No.