Snow Covered Capital, LLC v. Weidner ( 2024 )

—— FILED ——— RECEIVED —— ENTERED ——— SERVED ON COUNSEL/PARTIES OF RECORD 1 {| Bob L. Olson (NV Bar No. 3783) SNELL & WILMER L.L.P. FEB 27 2004 2 || 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 CLER 3 || Telephone: (702) 784-5200 DIST ne STRICT COURT Facsimile: (702) 784-5252 BY: OF NEVADA 4 || Email: bolson@swlaw.com DEPUTY 5 || James D. McCarthy (admitted pro hac vice) Mary Ann Joerres (admitted pro hac vice) 6 || David Reynolds (admitted pro hac vice) Melissa Marrero (admitted pro hac vice) 7 || DIAMOND MCCARTHY, LLP 2711 North Haskell Avenue, Suite 3100 8 || Dallas, Texas 75204 Telephone: (214) 389-5300 9 | Facsimile: (214) 389-5399 Email: jmccarthy@diamondmccarthy.com 10 mjoerres@diamondmccarthy.com dreynolds@diamondmccarthy.com mmarrero@diamondmccarthy.com g 12 || Attorneys for Snow Covered Capital, LLC 13 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA | 1g | SNOW COVERED CAPITAL, LLC, Case No.: 2:19-cv-00595-APGNJK z 8 Plaintiff, 17 STIPULATION AND ORDER vs. REGARDING SNOW COVERED 18 CAPITAL’S PRE-FORECLOSURE WILLIAM WEIDNER, ANDREW FONFA, | DAMAGES AND THE CALCULATION OF 19 || DAVID JACOBY, and LUCKY DRAGON LP, | THE BORROWER’S INDEBTEDNESS 20 Defendants. 21 22 This Stipulation is entered into by and among Plaintiff Snow Covered Capital, LLC 23 |} (“SCC”), Defendant William Weidner, and Defendant Jodi Fonfa, as executrix to decedent estate 24 || of Andrew S. Fonfa (collectively, the “Defendants”, and together with SCC, the “Parties”), by and 25 || through their respective undersigned counsel, as follows: 26 WHEREAS, on May 3, 2016, SCC entered into a Construction Loan Agreement with Lucky 27 || Dragon, LP, a Nevada limited partnership (“LD LP”), whereby SCC agreed to loan LD LP 28 || $30,000,000 pursuant to a Secured Promissory Note (Construction Loan) and $15,000,000 pursuant 1074469v2 4889-408]-6295 | 1 || to a Secured Promissory Note (Line of Credit) (collectively the “Notes”). The Notes contain an 2 || attorneys’ fees provision. 3 WHEREAS, repayment of the Notes was secured by a Construction Deed of Trust (With 4 || Assignment of Leases and Rents, Security Agreement and Fixture Filing) (the “Deed of Trust”) 5 || which encumbered real property located at 300 West Sahara Avenue, Las Vegas, Nevada, then 6 || known as the Lucky Dragon Hotel & Casino (the “Property”’). 7 WHEREAS, Defendants executed and delivered a Recourse Obligations Guaranty (the 8 || “Guaranty”) which was triggered when LD LP filed for bankruptcy. 9 WHEREAS, the Property to be sold to SCC at an October 30, 2018 nonjudicial foreclosure 10 |} sale (the “Foreclosure Sale”). 1] WHEREAS, the trial in this case will be held from February 26, 2024 through March 8, g 12 |} 2024. | js 13 WHEREAS, the trial will address the issues of both the indebtedness (including any pre- 14 || foreclosure damages claimed by SCC) and the fair market value of the Property on and through the i 15 || date of the Foreclosure Sale in order to determine any deficiency amount, if any. | 16 WHEREAS, the Parties have met and conferred regarding the indebtedness issue, and : 17 || regarding the categories and amounts of the pre-foreclosure damages SCC will be seeking at the 18 || forthcoming trial. 19 WHEREAS, the Parties desire to stipulate to the amounts of each category of pre- 20 || foreclosure damages that the Court should include in the calculation of indebtedness in order to: 21 || (a) avoid the expenses associated with bringing expert witnesses to the trial; (b) reduce the length 22 || and complexity of the trial; (c) avoid incurring additional legal fees associated with further litigating 23 || the amount of certain categories of damages; and (d) generally promote judicial economy. 24 NOW, THEREFORE, based on the foregoing and subject to Court approval, the Parties 25 || hereby agree as follows: 26 1. The Parties hereby stipulate to the following categories and amounts of damages, all 27 || of which the Parties agree fall within the “indebtedness” for the purposes of this action (collectively 28 || the “Stipulated Indebtedness”): -2- AR80.AN81.4906 1 ; | 14 2. The Parties agree that the Stipulated Indebtedness includes the entire amount of 15 || indebtedness (including any claimed pre-foreclosure damages, such as any consequential or other | 16 || alleged asserted damages) and that neither party will attempt to offer evidence at trial to expand 17 || upon or limit the Stipulated Indebtedness. Further, SCC agrees not to offer or argue that there are 18 || any other pre-foreclosure damages other than those agreed upon in the Stipulated Indebtedness. 19 3. This Stipulation reflects a compromise regarding the amounts set forth above and 20 || shall not be construed as an admission or concession as to the validity of any portion of the 21 || Stipulated Indebtedness. 22 4. In light of this Stipulation, the Parties’ expert witnesses, Scott Leslie and Paul 23 || Regan, will not offer testimony in this phase of the trial and their designations as trial witnesses in 24 || the Joint Pretrial Order are withdrawn from this phase of the trial; 25 5. The Stipulation conclusively settles the amounts of those SCC’s damages listed in 26 || paragraph 1, provided that nothing herein shall be construed as a determination of the interest rate, 27 || the proper calculation of interest, and/or the amount of interest to be charged in the post-foreclosure 2g || period should the Court find any deficiency. -3- 4889-4081-6295 1 l 6. Except as otherwise provided herein, this Stipulation shall not prejudice SCC’s 2 || argument that it is entitled to post-foreclosure damages against Defendants pursuant to the 3 || Guaranty, other applicable agreements among the Parties, Nevada’s deficiency judgment statutes, 4 || or other applicable law. Defendants dispute that any deficiency exists and also dispute that any 5 || additional damages (post-foreclosure or otherwise) are available to SCC pursuant to the Guaranty, 6 || other applicable agreements among the Parties, Nevada’s deficiency judgment statutes, or other 7 || applicable law. Nothing in this Stipulation shall prejudice defendants’ arguments that SCC is 8 || foreclosed from recovering post-foreclosure damages. 9 7. Nothing contained herein shall prejudice the right of SCC to allege that it is entitled 10 || to recover additional attorneys’ fees and costs incurred in any period following the Foreclosure Sale 11 || pursuant to, among other things, the Guaranty and/or Federal Rule of Civil Procedure 54; 12 8. Nothing contained herein shal! prejudice the right of the Parties to seek to introduce | 13 |i any evidence that any Party believes to be relevant to the value of the Property on the date of the 18228 14 || Foreclosure Sale. 16228 Beas 15 9. Nothing contained herein shall prejudice any arguments available to Defendants in | = | 16 || this case. 17 10... Nothing contained herein shall prejudice the right of the Defendants to oppose any 18 || request of SCC that it is entitled to recover any damages, attorneys’ fees, and costs it incurred in 19 || any period following the Foreclosure Sale. 20 11. For the avoidance of doubt, nothing herein is intended to modify in any way the 21 }| Court’s Orders dated March 10, 2022 (ECF No. 243) and July 15, 2022 (ECF No. 264); ITIS sos STIPULATED. 33 DATED this 47 day of February 2024. DATED this Z#tay of February 2024. SNE WILMER L.L.P. HOLLEY DRIGGS ob L. Olson (NV Bar No. 3783) Nicholas J. Santoro (NV BarNo. 0532) > | 3883 Howard Hughes Parkway, Suite 1100 Oliver J. Pancheri (NV Bar No. 7476) Las Vegas, Nevada 89169 300 South 4" Street, Suite 1600 26 I! Tel: (702) 784-5200 Las Vegas, NV 89101 Fax: (702) 784-5252 Tel: (702) 791-0308 27 Fax: (702) 791-1912 28 and and -4- ARRO_ANR1-67995 1 1 |} James D. McCarthy (admitted pro hac vice) David Brian Snyder (admitted pro hac vice) MaryAnn Joerres (admitted pro hac vice) FOX ROTHSCHILD 2 || David Reynolds (admitted pro hac vice) 2000 Market Street, 20" Floor Melissa Marrero (admitted pro hac vice) Philadelphia, PA 19103 3 | DIAMOND MCCARTHY, LLP Telephone: (215) 299-2000 2711 North Haskell Avenue, Suite 3100 Facsimile: (215-299-2150 4 || Dallas, Texas 75204 Attorneys for Defendant William Weidner Telephone: (214) 389-5300 5 || Facsimile: (214) 389-5399 Attorneys for Plaintiff Snow Covered Capital 6 || LLC i [ { 7 DATED thig ay of February 2024. 8 HOWAR H ORNEYS PLLC Robert W. Hernquist (NV 710616) 10 3800 Howard Hughes Parkway, Suite 1000 Las Vegas, Nevada 89169 1] Telephone: (702) 257-1483 Facsimile: (702) 567-1568 12 Attorneys for Jodi Fonfa, as Executrix of the Estate of Andrew S. Fonfa | 3313 14 ORDER ; 15 The Court having considered the foregoing Stipulation between the Parties, and good cause | 33 16 || appearing, 2 17 IT IS HEREBY ORDERED that the Stipulation is approved; and 18 IT IS SO ORDERED. Ge— 19 NE DISTRICT COURT JUDGE DATED: /e¥. + 4.20 21 22 23 24 25 26 27 28 -5-