Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 1 of 13

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1 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 1 of 13 Kevin M. Lippman, Esq. Texas Bar No Davor Rukavina, Esq. Texas Bar No MUNSCH HARDT KOPF & HARR, P.C Ross Tower 500 N. Akard Street Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEYS FOR KELCY WARREN AND DALLAS PROTON, LLC IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION In re: DALLAS PROTON TREATMENT CASE NO sgj-11 CENTER, LLC (Chapter 11) Debtor. In re: DALLAS PROTON TREATMENT CASE NO hdh-11 HOLDINGS, LLC, (Chapter 11) Debtor. MOTION OF KELCY WARREN AND DALLAS PROTON, LLC TO CONVERT CASES OR, ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE TO THE HONORABLE JUDGES OF SAID COURTS: COME NOW Kelcy Warren ( Warren ) and Dallas Proton, LLC ( Dallas Proton, with Warren, the Movants ), and file this their Motion to Convert Case or, Alternatively, to Appoint Chapter 11 Trustee (the Motion ), filed in each of the above styled and numbered Chapter 11 bankruptcy cases (the Bankruptcy Cases ) of Dallas Proton Treatment Center, LLC ( Dallas ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 1

2 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 2 of 13 Center ) and Dallas Proton Treatment Holdings, LLC ( Dallas Holdings, with Dallas Center, the Debtors ), respectfully stating as follows: I. SUMMARY 1. Each of the Debtors is solely managed by Advanced Particle Therapy, LLC ( APT ). In direct violation of its representations to the Movants, in breach of fiduciary duty, and in fraud of creditors, APT transferred approximately $40 million of the Debtors funds to itself, of which approximately $30 million remains unpaid, which APT then transferred to other businesses it holds, while paying itself handsomely. The result is that the Debtors have no funds to complete their project in Dallas, no current business, mounting M&M liens, and no hope of rehabilitation, having filed the Bankruptcy Cases hours before the commencement of a state court receivership hearing. What the Debtors do have, however, are massive causes of action against APT the Debtors management and against other businesses owned or managed by APT, which the Debtors have done nothing to prosecute and will do nothing to preserve. These Bankruptcy Cases need impartial trustees to immediately protect the interests of creditors. These Bankruptcy Cases do not need massive Chapter 11 professional fees and delays to be expended protecting APT. Because there is no business, no employees and no viable reorganization, Chapter 7 is appropriate. Alternatively, a Chapter 11 trustee is appropriate. II. PROCEDURAL BACKGROUND 2. On August 17, 2015 (the Petition Date ), each of the Debtors filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, thereby initiating the Bankruptcy Cases and creating their respective bankruptcy estates (the Estates ). 3. The Debtors have yet to seek joint administration of the Bankruptcy Cases. 4. No trustee or examiner has been appointed to date. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 2

3 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 3 of The Court has jurisdiction over the Bankruptcy Cases and this Motion under 28 U.S.C Such jurisdiction is core under 28 U.S.C. 157(b)(2). III. FACTUAL BACKGROUND A. THE DEBTORS 6. APT promotes and develops cutting edge proton therapy cancer treatment centers, intending to develop four such centers: one in San Diego, California, one in Baltimore, Maryland, one in Atlanta, Georgia, and one in Dallas, Texas. 7. Dallas Holdings was created for the purpose of developing and owning the Dallas proton therapy center. For reasons not fully understood, however, APT also created Dallas Center, apparently for the purpose of actually being the ownership and operating entity (while a name change to the entities only cased more confusion). Dallas Holdings solely owns Dallas Center. APT manages both Dallas Holdings and Dallas Center. B. THE MOVANTS 8. APT approached Warren, a successful Dallas businessman and entrepreneur, about assisting in the financing of the development of proton therapy centers, specifically the centers to be built in Dallas and Baltimore. Warren previously acquired a preferred equity interest in the proton theory center APT developed in San Diego. All of the written and oral representations by APT were that each proton therapy center would be a separate, stand-alone entity, with its separate finances and capital structure. 9. Ultimately, Warren agreed to lend funds for the development of the proton therapy centers in Dallas and Baltimore. With respect to the Dallas proton therapy center in particular, APT represented in writing that the proceeds of Warren s loan would be used to build the Dallas proton therapy center not anything else and not for any other purpose. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 3

4 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 4 of On August 28, 2013, Dallas Holdings, as maker, executed that certain Unsecured Convertible Promissory Note payable to the Plaintiff in the original principal amount of $20,000, (the First Dallas Note ). The purpose of the First Dallas Note was to provide funds to help build the Dallas proton therapy center, including providing funds to purchase the land on which the center was to be built. 11. On or about November 12, 2013, Dallas Center acquired the real estate for the Dallas proton therapy center by Special Warranty Deed from Market Center Land, L.P., consisting of approximately acres of land generally located at 2310 N. Stemmons Freeway, Dallas, Texas (the Dallas Land ). The Special Warranty Deed contains special restrictions which, among other things, requires Dallas Center to build a 100,000 square foot proton therapy center on the land and to diligently and continuously pursue the construction with final completion no later than four (4) years following the commencement of construction; i.e. approximately the first half of If Dallas Center defaults on these special restrictions, the grantor has the purported right to repurchase the property for the price originally paid plus the fair market value of any improvements 12. On or about February 7, 2014, Dallas Holdings, as maker, executed that certain Amended and Restated Senior Secured Promissory Note payable to Warren in the original principal amount of $20,000, (the Secured Dallas Note ). The Secured Dallas Note amended and restated the First Dallas Note. 13. On or about February 7, 2014, Dallas Center executed that certain Deed of Trust in favor of Warren (the Deed of Trust ), which secures timely payment and performance of the obligations under the Secured Dallas Note, and which Deed of Trust Warren recorded against the Dallas Land. Thus, Warren has a perfected lien against the Dallas Land owned by Dallas Center. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 4

5 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 5 of 13 Also on or about February 7, 2014, Dallas Holdings executed that certain Security Agreement in favor of Warren (the Security Agreement ), which secures timely payment and performance of the obligations under the Secured Dallas Note. Warren perfected his security interests with the applicable jurisdictions. Thus, Warren has a perfected security interest against, among other things, promissory notes and intangibles owned by Dallas Holdings. 14. Dallas Holdings defaulted on the Secured Dallas Note by failing to make the interest payments required thereunder for February 2015 and March After notice and demand by Warren, Dallas Holdings failed to cure all defaults under the Secured Dallas Note. Accordingly, Warren validly accelerated the Secured Dallas Note on or about April 16, 2015, and the full principal amount under the Secured Dallas Note, together with all interest, fees, costs of collection, and other amounts provided for therein are immediately due and payable. Dallas Holdings has failed to pay the same. 15. On or about July 29, 2015, as subsequently amended, Warren assigned to Dallas Proton all of Warren s right, title, and interest in the Secured Dallas Note, any predecessor note, the Deed of Trust, the Security Agreement, and all other liens and security interests against Dallas Holdings and/or Dallas Center. While Warren transferred and assigned to Dallas Proton his contractual causes of action, he retained for himself all tort-based causes of action against the Debtors and APT. 16. On June 3, 2015, Warren filed a state court petition against the Debtors and APT with the 116th Judicial District Court for Dallas County, Texas (the State Court ). After various negotiations, procedural developments, and a Rule 11 agreement which the Debtors defaulted on, the State Court scheduled a hearing on Warren s and Dallas Proton s application ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 5

6 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 6 of 13 for a receiver for Dallas Holdings and Dallas Center on September 18, The Debtors filed their petitions the evening before said hearing. C. TRANSFERS TO APT 17. APT caused the Debtors to transfer approximately $40 million to APT, without notice to, or the knowledge of, Warren, and in direct fraud of Warren. Upon information and belief, a significant amount of the $40 million was from the proceeds of Warren s loan. APT then transferred the funds it took from the Debtors to its separate entities in Baltimore and Atlanta, where the funds were presumably used to develop those separate proton therapy centers The transfers were structured as unsecured promissory notes from APT to Dallas Holdings (the APT Notes ). Through a series of such notes, some of which matured and some of which were extended, APT still owes Dallas Holdings upwards of $30 million. 2 Various of the APT Notes come due in October, Dallas Holdings was not intended to be in the business of lending funds. Instead, Dallas Holdings was to use the funds that Warren (and others) lent to build and develop the Dallas proton therapy center. That was always Warren s understanding and expectation. At no time were there any representations, agreements, or understandings that the proceeds from Warren s loan would be used for any other purpose. Warren would not have extended the loan without the aforementioned representations and expectations 1 Warren loaned funds to the Baltimore entity, which funds were repaid in approximately May, 2015, after Warren initiated litigation and after the Baltimore entity obtained new financing provided by Deutsche Bank AG. 2 Movants have been told that approximately $10 million of the $40 million has been repaid. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 6

7 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 7 of The APT Notes are not on reasonable business or economic terms for the simple reason that no bona fide third party lender would have lent such funds to APT, especially on an unsecured basis. It was only by its management of the Debtors and its control of the Debtors funds that APT was able to lend itself $40 million, or more. 21. The APT Notes also represent insider transactions, without reasonably equivalent value, and in actual fraud of creditors. The APT Notes represent self-dealing by management, in gross violation of its fiduciary duties. APT essentially used the Debtors as a piggy bank to fund other projects. Additionally, after Dallas Holdings ceased making payments on the Secured Dallas Note, APT caused Dallas Holdings to continue paying certain favored creditors, many of whom lent money to the Baltimore and/or Atlanta centers. Moreover, even after building of the Dallas facility stopped, APT continued to pay itself development and management fees related to Dallas. Some of those payments were purportedly used to pay the Debtors share of APT s expenses. Accordingly, APT alone decides when amounts would be repaid, in what amounts, and for what purposes. 22. Other than APT making some payments on the APT Notes, the Debtors have done nothing to collect on the APT Notes. In fact, when the APT Notes came due, or were about to come due, the Debtors, again for no consideration, simply extended the maturity dates. The Movants have no doubt that, left in charge, the Debtors will simply do so again (although this would be a violation of section 364 of the Bankruptcy Code, among other violations). 23. Dallas Proton has valid and perfected security interests against the APT Notes. Dallas Proton has not consented, and does not consent, to any of its cash collateral being used by the Debtors. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 7

8 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 8 of 13 D. NO BUSINESS 24. The Debtors have no employees, no revenue, and no business activities. 25. The Debtors have (or did as of the beginning of September 2015) approximately $100,000 in the bank, while their debt exceeds $80 million. 26. The Debtors commenced construction on the Dallas Land. However, as a direct result of the almost $40 million transferred to APT, the Debtors are unable to continue the development and construction of the Dallas theory facility. Instead, there is a large, uncompleted, construction wasteland. Worse, APT has allowed large M&M liens to be recorded against the Dallas Land. To date, alleged M&M liens asserting claims in excess of $5.2 million have been filed against the Dallas Land. One vendor secured a default judgment in May, 2015, and recorded an abstract of judgment against the Dallas Land on May 15, 2015, scheduling the abstract and lien for foreclosure in September, The foreclosure sale was stopped after this lien creditor s claim was paid. 27. The Debtors have publicly informed their creditors that the project to build the Dallas proton therapy center is on hold. 28. Substantially all assets of the Debtors and of the Estates are subject to Dallas Proton s valid and perfected security interests. The Debtors have no unencumbered funds with which to attempt any rehabilitation, and any such attempt would be futile. IV. DISCUSSION A. CONVERSION TO CHAPTER There is nothing for the Debtors to do but to litigate the Estates causes of action. The problem is that those causes of action are against APT, and APT is not about to sue itself or its other businesses that ultimately received the $40 million fraudulently transferred, of which ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 8

9 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 9 of 13 approximately $30 million purportedly remains unpaid. Creditors need a trustee to promptly initiate that litigation, while there is still any value to preserve. Creditors do not need large Chapter 11 professional and administrative claims, while APT uses the Bankruptcy Cases to delay. 30. Under the Bankruptcy Code, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate. 11 U.S.C. 1112(b)(1). If cause is shown, the Court may not convert a case if: (i) the Court finds and specifically identifies unusual circumstances establishing that converting or dismissing the case is not in the best interests of creditors and the estate ; (ii) the Debtor demonstrates that there is a reasonable likelihood that a plan will be confirmed... within a reasonable period of time ; and (iii) there is a reasonable justification for the act or omission giving rise to the cause which will be cured within a reasonable period of time. See id. at 1112(b)(2). 31. Cause to convert a case includes substantial or continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation, and gross mismanagement of the estate. See id. at 1112(b)(4). Significantly, the statutory list of cause is not exhaustive. Here, there is an ongoing diminution of the Estates, as there is no income and only professional and administrative expenses, while the Debtors have done nothing about preserving and prosecuting the only real assets that the Estates have, which is the causes of action against APT and its other businesses. Likewise, there has been and continues to be gross mismanagement of the Debtors and the Estates. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 9

10 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 10 of More fundamentally, though, there is no purpose to be served by retaining the Bankruptcy Cases in Chapter 11. The Debtors have no income, no employees and no business operations in other words, the Debtors have nothing to protect by Chapter 11. See, e.g., In re Original IFPC Shareholders Inc., 317 B.R. 738, (Bankr. N.D. Ill. 2004) ( [w]here the estate is not generating revenue but value exists to be maximized for creditors benefit, and where the creditor body will have more enhanced protection in the federal bankruptcy forum than in noncollective state-court proceedings, conversion to Chapter 7... may be appropriate ). While liquidation in Chapter 11 is possible, that is what Chapter 7 is for, especially where, as here, the biggest assets of the Estates are claims against insiders. 33. Indeed, the facts here mirror most of the factors identified by the Fifth Circuit in Little Creek Development: The debtor has one asset, such as a tract of undeveloped or developed real property. The secured creditors liens encumber this tract. There are generally no employees except for the principals, little or no cash flow, and no available sources of income to sustain a plan of reorganization or to make adequate protection payments pursuant to 11 U.S.C. 361, 362(d)(1), 363(e), or 364(d)(1). Typically, there are only a few, if any, unsecured creditors whose claims are relatively small. The property has usually been posted for foreclosure because of arrearages on the debt and the debtor has been unsuccessful in defending actions against the foreclosure in state court. Alternatively, the debtor and one creditor may have proceeded to a stand-still in state court litigation, and the debtor has lost or has been required to post a bond which it cannot afford. Bankruptcy offers the only possibility of forestalling loss of the property. There are sometimes allegations of wrongdoing by the debtor or its principals... Resort to the protection of the bankruptcy laws is not proper under these circumstances because there is no going concern to preserve, there are no employees to protect, and there is no hope of rehabilitation, except according to the debtor s terminal euphoria. In the Matter of Little Creek Dev. Co., 779 F.2d 1068, 1073 (5th Cir. 1986) (emphasis added). So here, other than there being only a few minor unsecured creditors: ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 10

11 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 11 of 13 Dallas Center has only one property, undeveloped real property, subject to Dallas Proton s lien; Dallas Proton posted the Dallas Property for foreclosure, which is stayed by the filing; Dallas Holdings only assets the APT Notes are subject to Dallas Proton s lien; there is no income, cash flow, or business operations; there are no employees, except for insiders at APT, who have been paid large amounts by the Debtors; there are no sources of income to develop the property or make adequate protection payments; there is malfeasance, fraud, and breaches of fiduciary duty; and the Debtor was about to very likely lose on the Movants application for a receiver in the State Court the day after the Petition Date. 34. Although Little Creek counsels in favor of dismissal of the Bankruptcy Cases, the Movants believe that conversion is appropriate and in the best interests of the Estates creditors, in order that a trustee may promptly preserve whatever value remains. B. APPOINTMENT OF CHAPTER 11 TRUSTEE 35. Alternatively, the Movants request the immediate appointment of a Chapter 11 trustee for the Debtors and the Estates. Pursuant to the Bankruptcy Code, the Court shall appoint a trustee: (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause, but not including the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor; or (2) if such appointment is in the interests of creditors, any equity security holders, and other interests of the estate, without regard to the number of holders of securities of the debtor or the amount of assets or liabilities of the debtor. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 11

12 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 12 of U.S.C. 1104(a). 36. Taking $40 million out of the Debtors, rendering them hopelessly insolvent and unable to develop their project, while paying millions of dollars to APT for management and development fees, while amassing more than $5 million in M&M claims against the Dallas Land, is the height of fraud, dishonesty, incompetence, and gross mismanagement. The results speak for themselves: no proton center and just a construction wasteland. The only thing left is to litigate and prosecute the Estates causes of action, which APT is incapable of doing and has an irreconcilable conflict of interest with. V. PRAYER WHEREFORE, PREMISES CONSIDERED, the Movants respectfully request that the Court enter an order: (i) granting this Motion; (ii) converting the Bankruptcy Cases to Chapter 7; (iii) alternatively, appointing a Chapter 11 trustee; and (iv) granting the Movants such other and further relief to which they may be justly entitled. RESPECTFULLY SUBMITTED on this the 23d day of September, MUNSCH HARDT KOPF & HARR, P.C. By: /s/ Davor Rukavina Kevin M. Lippman, Esq. Texas Bar No Davor Rukavina, Esq. Texas Bar No Ross Tower 500 N. Akard Street Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEYS FOR KELCY WARREN AND DALLAS PROTON, LLC ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 12

13 Case sgj11 Doc 11 Filed 09/23/15 Entered 09/23/15 18:06:47 Page 13 of 13 CERTIFICATE OF CONFERENCE The undersigned hereby certifies that he discussed the relief requested herein with Holly O Neal and Marcus Helt, attorneys for the Debtors, and that no agreement was reached. This Motion is therefore submitted as opposed. By: /s/ Kevin M. Lippman Kevin M. Lippman, Esq. CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this the 23d day of September, 2015, true and correct copies of this document were electronically served by the Court s ECF system on parties entitled to notice thereof, including counsel for the Debtors and the United States Trustee, and that, on the same day, he caused true and correct copies of this document to be served by U.S. first class mail, postage prepaid, on the parties listed on the attached Service List. By: /s/ Davor Rukavina Davor Rukavina, Esq. ALTERNATIVELY, TO APPOINT CHAPTER 11 TRUSTEE Page 13 MHDocs _