郭文贵破产案 · ORDER · ECF #1288

# **UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION**

In re:

HO WAN KWOK, *et al.*[,](#page-0-0) 1

Debtor.

Chapter 11

Case No. 22-50073 (JAM)

(Jointly Administered)

**Re: Docket No. 1257**

# **OBJECTION OF BRAVO LUCK LIMITED TO MOTION OF CHAPTER 11 TRUSTEE, GENEVER HOLDINGS CORPORATION, AND GENEVER HOLDINGS LLC, PURSUANT TO BANKRUPTCY CODE SECTIONS 327, 328, AND 363, FOR ENTRY OF ORDER FURTHER EXTENDING (I) SALE PROCESS OF SHERRY NETHERLAND APARTMENT AND (II) RETENTION OF SOTHEBY'S INTERNATIONAL REALTY AS BROKER**

Bravo Luck Limited ("Bravo Luck"), by and through its counsel, hereby objects (this "Objection") to the *Motion of Chapter 11 Trustee, Genever Holdings Corporation, and Genever Holdings LLC, Pursuant to Bankruptcy Code Sections 327, 328, and 363, for Entry of Order Further Extending (I) Sale Process of Sherry Netherland Apartment and (II) Retention of Sotheby's International Realty as Broker* (Docket No. 1257) (the "Motion")[2](#page-0-1) filed by Luc Despins, in his capacity as the chapter 11 trustee (the "Trustee") appointed in the chapter 11 case of Ho Wan Kwok (the "Individual Debtor"), Genever Holdings Corporation ("Genever (BVI)"), and Genever Holdings LLC ("Genever (US)" and, together with the Trustee, and Genever (BVI), the "Movants"). In support of this Objection, Bravo Luck respectfully states as follows:

<span id="page-0-0"></span>¹ The Debtors in these chapter 11 cases are Ho Wan Kwok (last four digits of tax identification number: 9595), Genever Holdings LLC (last four digits of tax identification number: 8202) and Genever Holdings Corporation. The mailing address for the Trustee, Genever Holdings LLC, and the Genever Holdings Corporation is Paul Hastings LLP, 200 Park Avenue, New York, NY 10166 c/o Luc A. Despins, as Trustee for the Estate of Ho Wan Kwok (solely for purposes of notices and communications).

<span id="page-0-1"></span>² Capitalized terms used but not defined herein shall be ascribed the definitions provided to them in the Motion.

### **OBJECTION**

1. In Genever (US)'s bankruptcy case, Genever (US), Bravo Luck and PAX carefully crafted the Settlement Agreement, after months of hard-fought negotiations, in order to establish a framework for the sale of the Sherry-Netherland Apartment, including, among other things, the appointment of the Sales Officer and real estate broker and payment of the resulting sale proceeds into an escrow account, not to be released unless and until notice of any distribution was provided with an opportunity for objection and entry of a court order. Also as part of this comprehensive Settlement Agreement, Bravo Luck and PAX were granted specific consent and consultation rights related to the sale and marketing process. Without these guaranteed consent and consultation rights, the settlement never would have been reached and numerous concessions by Bravo Luck would never have been made.

2. As part of the Settlement Agreement, the sale process was limited to 180 days from the retention of a real estate broker, "subject to extension upon written agreement of the Debtor [Genever (US)], Bravo Luck, and PAX, or by further order of the Court for cause shown." Settlement Agreement, ¶ 4(e). Additionally, the Settlement Agreement provides that it may only be modified or amended by written agreement of Genever (US), Bravo Luck, and PAX.

3. By the Motion, the Movants do not simply request that the sale process in accordance with the Settlement Agreement be extended through February 1, 2023, without the prior written authorization of Bravo Luck as required by paragraph 4(e) of the Settlement Agreement. The Motion goes well beyond a simple extension request[3](#page-1-0) and seeks to terminate Bravo Luck's consent and consultation rights as expressly negotiated and provided by the

<span id="page-1-0"></span>³ To be clear, Bravo Luck's objection is solely as to the request to eliminate the consent and consultation rights granted pursuant to the Settlement Order and Settlement Agreement. Bravo Luck is not otherwise objecting to the extension of the sale and marketing process in accordance with the terms of the Settlement Order and Settlement Agreement.

Settlement Agreement, which Settlement Agreement was approved by the Bankruptcy Court pursuant to the Settlement Order. The Movants cannot pick and choose between aspects of the Settlement Agreement that benefit the Trustee and Debtors and eliminate provisions of the Settlement Agreement—such as Bravo Luck's consent and consultation rights—that the Movants dislike and would rather not be bound by despite the binding and final Settlement Order.

4. The Movants argue that "there is no basis . . . to allow Bravo Luck or PAX to continue to have consent and consultation rights during the sale and marketing process, now that an independent fiduciary oversees that process." Motion, ¶ 30. The Movants, however, are placing the burden on the wrong party. The Settlement Agreement granted express consent and consultation rights related to the sale and marketing of the Sherry-Netherland Apartment to Bravo Luck and PAX. A final court order approved the Settlement Agreement, including such consent and consultation rights.

5. The Movants' only semblance of an argument for unilaterally seeking to amend the Settlement Agreement to eliminate Bravo Luck's contractual consent and consultation rights is because the Trustee has been appointed as an independent fiduciary for the Individual Debtor's estate and now has indirect corporate control over Genever (US).

6. While the Trustee's appointment may resolve PAX's concerns (which Bravo Luck cannot speak to), it certainly does not satisfy Bravo Luck's purpose for entering into the Settlement Agreement, which was motivated by its asserted ownership interest in the Sherry-Netherland Apartment and, thus, the marketing process for, and disposition of the resulting proceeds of, any sale of the property until such ownership issues are resolved. Moreover, the Trustee's appointment is not an automatic veto over provisions of a settlement agreement bargained-for by parties and approved by the Bankruptcy Court for the Southern District of New York prior to the Trustee's involvement. Nor is Bravo Luck's ability to object to any future motion to approve the sale of the Sherry-Netherland Apartment a substitute for Bravo Luck's bargainedfor consent and consultation rights under the Court-approved Settlement Agreement.

7. The Movants also make a weak argument that the Settlement Agreement's consent rights are vague and may provide Bravo Luck and PAX with a veto right over a sale. *See* Motion, ¶ 31. To be sure, the Settlement Agreement's terms are not vague,[4](#page-3-0) however, the issue regarding interpretation of the Settlement Agreement is not ripe at the moment. If an issue arises as to the extent of Bravo Luck's consent and consultation rights, the parties to the Settlement Agreement can make any such arguments at that time and ask this Court to make a determination.[5](#page-3-1) Speculation about a potential disagreement related to the consent and consultation rights in the future is not a basis for improperly amending the Settlement Agreement and depriving Bravo Luck of its contractual rights.

8. By the Motion, the Movants are impermissibly attempting to circumvent the correct procedure for seeking relief from a final Settlement Order as required under Rule 60 of the Federal Rules of Civil Procedure (the "Civil Procedure Rules") as incorporated into Rule 9024 of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules"). Rule 60 (as incorporated by Bankruptcy Rule 9024) provides:

> (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;

<span id="page-3-0"></span>⁴ Without waiving any of its rights or arguments should a disagreement about Bravo Luck's consent and consultation rights arise in the future, there are multiple provisions throughout the Settlement Agreement that make clear that the Sales Officer has final authority over many aspects of the sale process, including selection of the winning bid. *See* Settlement Agreement, ¶¶2, 5(b), 5(f) ("The sale process shall include consultation rights for the Debtor, Bravo Luck and PAX, with the SO to have final authority in the event of any dispute pursuant to the authority granted to Ms. Cyganowski as an officer under Section 9.3 of the Operating Agreement."); 6.

<span id="page-3-1"></span>⁵ To date, the exercise of the consultation rights has been wholly productive by allowing parties with the most interest in the Sherry- Netherland Apartment to share their views with the Sales Officer for purposes of obtaining the highest and best price.

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.

(1) *Timing.* A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

(2) *Effect on Finality.* The motion does not affect the judgment's finality or suspend its operation.

FED. R. CIV. P. 60.[6](#page-4-0)

9. At this time, the Movants cannot make arguments under Bankruptcy Rule

9024 and Civil Procedure Rule 60 without providing a new notice period to affected parties, such as Bravo Luck. Moreover, a motion for relief from a final order "must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." FED. R. CIV. P. 60(c)(1). The Motion was filed well after a year from the date the Settlement Order was entered on October 8, 2021. Additionally, the Motion was

<span id="page-4-0"></span>⁶ Bankruptcy Rule 9024 incorporates Civil Procedure Rule 60 as follows:

Rule 60 F.R.Civ.P. applies in cases under the Code except that (1) a motion to reopen a case under the Code or for the reconsideration of an order allowing or disallowing a claim against the estate entered without a contest is not subject to the one year limitation prescribed in Rule 60(c), (2) a complaint to revoke a discharge in a chapter 7 liquidation case may be filed only within the time allowed by § 727(e) of the Code [11 USCS § 727(e)], and (3) a complaint to revoke an order confirming a plan may be filed only within the time allowed by § 1144, § 1230, or § 1330 [11 USCS § 1144, 1230, or 1330]. In some circumstances, Rule 8008 governs post-judgment motion practice after an appeal has been docketed and is pending.

filed almost six months after the Trustee's appointment and after multiple extensions of the sale process were sought after the Trustee's appointment and approved by the Bankruptcy Court for the Southern District of New York in Genever (US)'s bankruptcy case. *See* Case No. 20-12411 (JLG), Docket No. 202 (extending sale process to September 12, 2022); Docket No. 222 (extending sale process to October 31, 2022).

10. Thus, even if the Movants had properly asserted grounds to strike Bravo Luck's consent and consultation rights from the Settlement Agreement (which it has not and cannot do), such request was brought outside of a reasonable time and should be denied.

### **CONCLUSION**

WHEREFORE, for the reasons set forth above, Bravo Luck respectfully requests

that the Court deny the Motion.

Dated: January 4, 2023

### Amston, CT BRAVO LUCK LIMITED

By: /s/ David M. S. Shaiken, Esq. David M. S. Shaiken Shipman, Shaiken & Schwefel, LLC Its Counsel 433 South Main Street, Suite 319 West Hartford, CT 06110 Telephone: (860) 606-1703 Facsimile: (866) 431-3248 E-mail: [david@shipmanlawct.com](mailto:david@shipmanlawct.com) Fed. Bar. No. ct02297

## **TROUTMAN PEPPER HAMILTON SANDERS LLP**

By: /*s/ Francis J. Lawall* Francis J. Lawall 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: francis.lawall@troutman.com *Counsel for Bravo Luck Limited*

# **Certification of Service**

The foregoing Objection was served this 4th day of January, 2023, via the Court's electronic filing system or by United States mail, first-class, postage prepaid, on all parties listed on the Service List.

## **Service List**

# a. **Electronic Mail Service**

Laura Aronsson laronsson@omm.com Tristan G. Axelrod taxelrod@brownrudnick.com William R. Baldiga wbaldiga@brownrudnick.com Kellianne Baranowsky kbaranowsky@gs-lawfirm.com, [aevans@gs-lawfirm.com;](mailto:aevans@gs-lawfirm.com) kbaranowsky@ecf.courtdrive.com Douglass E. Barron douglassbarron@paulhastings.com Nicholas A. Bassett nicholasbassett@paulhastings.com, jonathonkosciewicz@paulhastings.com; lucdespins@paulhastings.com; alexbongartz@paulhastings.com; [ezrasutton@paulhastings.com;](mailto:ezrasutton@paulhastings.com) douglassbarron@paulhastings.com; [ecf.frg@paulhastings.com;](mailto:ecf.frg@paulhastings.com) aviluft@paulhastings.com Patrick M. Birney pbirney@rc.com, ctrivigno@rc.com Christopher H. Blau cblau@zeislaw.com G. Alexander Bongartz alexbongartz@paulhastings.com Carollynn H.G. Callari ccallari@callaripartners.com Daniel Cantor dcantor@omm.com John L. Cesaroni jcesaroni@zeislaw.com Scott M. Charmoy scottcharmoy@charmoy.com, [ecf-3ae5beb98d9b@ecf.pacerpro.com;](mailto:ecf-3ae5beb98d9b@ecf.pacerpro.com) charmoysr97992@notify.bestcase.com Holley L. Claiborn holley.l.claiborn@usdoj.gov Samuel Bryant Davidoff sdavidoff@wc.com Luc A. Despins lucdespins@paulhastings.com, [matlaskowski@paulhastings.com;](mailto:matlaskowski@paulhastings.com) davidmohamed@paulhastings.com David S. Forsh dforsh@callaripartners.com Peter Friedman pfriedman@omm.com Taruna Garg tgarg@murthalaw.com, mgarcia@murthalaw.com Irve J. Goldman igoldman@pullcom.com, rmccoy@pullcom.com Evan S. Goldstein egoldstein@uks.com Mia N. Gonzalez mgonzalez@omm.com James C. Graham jgraham@npmlaw.com, [sgibbons@npmlaw.com;](mailto:sgibbons@npmlaw.com) NeubertPepeMonteithPC@jubileebk.net Lawrence S. Grossman LGrossman@gs-lawfirm.com, [aevans@gs-lawfirm.com;](mailto:aevans@gs-lawfirm.com) [ngolino@gs](mailto:ngolino@gs-lawfirm.com;%20lawrencegrossman@ecf.courtdrive.com)[lawfirm.com; lawrencegrossman@ecf.courtdrive.com;](mailto:ngolino@gs-lawfirm.com;%20lawrencegrossman@ecf.courtdrive.com) [mbuckanavage@gs-lawfirm.com;](mailto:mbuckanavage@gs-lawfirm.com) eross@gs-lawfirm.com David V. Harbach, II dharbach@omm.com James J. Healy jhealy@cowderymurphy.com Jeffrey Hellman jeff@jeffhellmanlaw.com, christen@jeffhellmanlaw.com Eric A. Henzy ehenzy@zeislaw.com, cjervey@zeislaw.com Jonathan Kaplan jkaplan@pullcom.com, [prulewicz@pullcom.com;](mailto:prulewicz@pullcom.com) rmccoy@pullcom.com Stephen M. Kindseth skindseth@zeislaw.com, cjervey@zeislaw.com

Nancy Bohan Kinsella nkinsella@npmlaw.com, [moshea@npmlaw.com;](mailto:moshea@npmlaw.com;%20smowery@npmlaw.com) [smowery@npmlaw.com;](mailto:moshea@npmlaw.com;%20smowery@npmlaw.com) npm.bankruptcy@gmail.com Andrew V. Layden alayden@bakerlaw.com Patrick R. Linsey plinsey@npmlaw.com, [karguello@npmlaw.com;](mailto:karguello@npmlaw.com) NeubertPepeMonteithPC@jubileebk.net Avram Emmanuel Luft aviluft@paulhastings.com Kristin B. Mayhew kmayhew@pullcom.com, [kwarshauer@mdmc-law.com;](mailto:kwarshauer@mdmc-law.com) bdangelo@mdmclaw.com Danielle L. Merola dmerola@bakerlaw.com Sherry J. Millman smillman@stroock.com Aaron A Mitchell aaron@lmesq.com James M. Moriarty jmoriarty@zeislaw.com, cgregory@zeislaw.com Sara Pahlavan spahlavan@omm.com Patrick N. Petrocelli ppetrocelli@stroock.com Lucas Bennett Rocklin lrocklin@npmlaw.com, NeubertPepeMonteithPC@jubileebk.net Aaron Romney aromney@zeislaw.com, swenthen@zeislaw.com Scott D. Rosen srosen@cb-shea.com, [msullivan@cbshealaw.com;](mailto:msullivan@cbshealaw.com) dtempera@cbshealaw.com Thomas J. Sansone tsansone@carmodylaw.com Stuart M. Sarnoff ssarnoff@omm.com, stuart-sarnoff-1059@ecf.pacerpro.com Douglas S. Skalka dskalka@npmlaw.com, [smowery@npmlaw.com;](mailto:smowery@npmlaw.com) NeubertPepeMonteithPC@jubileebk.net Jeffrey M. Sklarz jsklarz@gs-lawfirm.com, [aevans@gs-lawfirm.com;](mailto:aevans@gs-lawfirm.com) [mbuckanavage@gs](mailto:mbuckanavage@gs-lawfirm.com)[lawfirm.com;](mailto:mbuckanavage@gs-lawfirm.com) [eross@gs-lawfirm.com;](mailto:eross@gs-lawfirm.com) jsklarz@ecf.courtdrive.com Annecca H. Smith asmith@rc.com John Troy johntroy@troypllc.com Tiffany Troy tiffanytroy@troypllc.com, troylaw@troypllc.com U. S. Trustee USTPRegion02.NH.ECF@USDOJ.GOV Michael S. Weinstein mweinstein@golenbock.com Jay Marshall Wolman jmw@randazza.com, ecf-6898@ecf.pacerpro.com Peter J. Zarella [pzarella@mdmc-law.com](mailto:pzarella@mdmc-law.com)

# b. **Service by United States Mail**

| Brown Rudnick LLP | Dundon Advisers LLC | |-----------------------------------------|--------------------------------| | Attn: President or General Mgr | Attn: President or General Mgr | | One Financial Center | 10 Bank Street, Suite 1100 | | Boston, MA 02111 | White Plains, NY 10606 | | Chao-Chih Chiu, Huizhen Wang Yunxia Wu, | Peter M. Friedman | | Keyi Zilkie | O'Melveny & Myers LLP | | c/o TroyGould PC | 1625 Eye Street, NW | | 1801 Century Park East, 16th Floor | Washington, DC 20006 | | Attn: Christopher A. Lilly | | | Los Angeles, CA 90067-2367 | | | | |

Gregory A. Coleman Coleman Worldwide Advisors, LLC PO Box 2839 New York, NY 10008-2839

J. Ted Donovan and Kevin J. Nash Goldberg Weprin Finkel Goldstein LLP 1501 Broadway 22nd Floor New York, NY 10036

Sherry Millman Stroock & Stroock & Lavan LLP 180 Maiden Lane New York, NY 10038

Richard C. Morrissey Office of the U.S. Trustee 201 Varick Street, Room 1006 New York, NY 10014

Edward Moss, Diana Perez, Stuart Sarnoff, and Daniel Shamah O'Melveny & Myers LLP 7 Times Square New York, NY 10036

Alissa M. Nann Foley & Lardner LLP 90 Park Avenue New York, NY 10016

Irve Goldman, Esq. Pullman & Comley, LLC 850 Main Street Bridgeport, CT 06601

Steven E. Mackey Office of the U.S. Trustee The Giaimo Federal Building 150 Court Street, Room 302 New Haven, CT 06510

Gabriel Sasson Paul Hastings LLP 200 Park Avenue New York, NY 10166

Douglas E. Spelfogel Derek L. Wright Mayer Brown LLP 1221 Avenue of the Americas New York, NY 10020-1001

Stretto Attn: President or General Mgr 410 Exchange, Suite 100 Irvine, CA 92602

Yongbing Zhang 223 West Jackson Blvd. #1012 Chicago, IL 60606

Genever Holdings Corporation P.O. Box 3170 Road Town Tortola, British Virgin Islands

Genever Holdings LLC 781 Fifth Avenue Apt. 1801 New York, NY 10022-5520

/s/ David M. S. Shaiken David M. S. Shaiken