the corporation consists of one family the lin family only one of the members of the lynn family who own shares in the corporation is active in that would be robert lynn who's the general manager of the hotel the hotel ran into financial troubles in two thousand and eleven and its primary lender grand pacific initiated a foreclosure at that time the debtor had taken out a loan with grand pacific in july of two thousand and five that the foreclosure case was resolved there was a forbearance agreement and everything was going well until about two thousand and seventeen at that  time your honour's external forces created some financial problems for us tommy the euclid avenue corridor in cleveland was remodeled which shut down the road on which the hotel sits and made it difficult to access t hotel the hotels revenue went down and it defaulted on the forbearance agreement and a foreclosure was again initiated by grand pacific the debtor filed this chapter eleven in order to reorganize rather than dismissal purports to grant the most that was filed by grant pacific on november twenty second two thousand and seventeen but importantly none of the grounds that are set forth in the motion the november twenty second motion existed at the time that the the motion was granted the motion was not granted until six months later may twenty second two thousand and eighteen specifically the grounds that were set forth in motion to dismiss all had to do with the debtor's use of cash collateral and adequate protection that would be provided to grand pacific in order to use the cash collateral for example the parties agreed that the debtor would provide weekly reports to grand pacific about what it was doing what expenditures it was making with the income that was coming in the cash collateral the several of the report weekly reports were delinquent at the beginning of this process and so the motion to dismiss related to the delinquency of those reports but importantly all of the grounds that were set forth in the motion to dismiss were resolved well before the motion was granted the the debtor had problems with its bookkeeping system and so the debtor needed to spend some time to get a new bookkeeper a new software to transfer thirty years worth of bookkeeping data entries over to the new software so that it could generate these weekly  reports that were required by grand pacific grand pacific also complained that it thought that the weekly reports from the debtor were not good enough it wanted third party confirmation that these expenditures were appropriate and so it as the debtor to perfect i'd receipts for every expenditure that the debtor was making during the course of the chapter eleven and the debtor did so so the debtor need to do accumulate receipts grounded in anything that was appropriate i mean the none of the other for example jesting that the debtor didn't have notice of the basis for dismissal because the grounds were not the same as originally filed over bell many month period well i will say this that at the may first hearing the court indicated to the debtor interesting that what the what the court said to the debtor was that it does look like you have a workable plan here but i'm concerned that it doesn't seem to be a plan that requires the bankruptcy court so if you don't have a deal if you haven't worked out a deal in three weeks with grand pacific then i'm going to dismiss the case and the problem with that in my view in my client's view is that it put one hundred percent of control of the case within grand pacific's grasp so here you have a trial court that saying it looks like you have a workable solution and yet if you can't get grand pacific to agree to a number then i'm going to throw the case out with commenting on the representation that they're with the buyer for the claim didn't have anything to really do with the debt or plan to either liquidate or reorganize well that's correct your honor in you know in my belief is that the grand pacific had said you know that it would consider being bought out and so we were operating under the belief that grand pacific wanted to be bought out and that if we could reach an agreement that that would probably be the most effective way to reorganize the debtor and so we were trying to come up with a figure in fact we did provide to grant pacific with two offers which they rejected out a hand but we do didn't know was that you know six days after dismissal a deal was reached with some other parties so they were apparently dealing with another party and not letting us know that if if we had known that they didn't have any interest there is a substitute plaintiff in the foreclosure case that's my understanding your honor so if this court were crew up your position then rebirth what would happen well it would go back to the bankruptcy court your honor i feel like the you know the buyer knows that the case was going to appeal because we appealed it right away and you know purchased at their own risk for i'm sorry purchase the lenders interest yes there was a statement in in my understanding is that the interest that was sold was grant the civics note not the receiver's interest to be to be honest your honor i think i haven't had much involvement in the state court proceedings so once the with question that what what relief could give at this point if we were persuaded that it was an abuse of discretion is there anything that would come in to be reorganised is it just the lenders interest it was sold or was the hotel hold just the lenders interest in out of time here your honor but let me just say this like none of the grounds for cause set forth in eleven u s c eleven twelve b were present in this case counsel for green pacific in a brief cites a number of cases indicating that you know the if you dismiss the case for cause you don't necessarily have to use one of the grounds of elicited in the statute but all of the cases that  are referenced by counsel were cases that could not be more dissimilar from this case all of those cases were dismissed in fact for bad faith and not for cause of the bad faith i suppose could be deemed to be a cause but they were all cases in which for example there in the only purpose was to avoid a not compete clause or the only purpose was to avoid a sale agreement in most of the cases there was no entity there was no cash flow there was no business in there was a lot of evidence of bad faith in this case the debtor really was doing everything right i mean the debtor was operating the hotel profitably the debtor was paid twenty thousand dollars a month which is more than you know the statute for adequate protection would have required it to pay it was making the us quarterly fees it was filing its monthly reports to the us trustee it was diligently negotiating with prospective purchasers they're engaged they're still interested in the hotel the they still would like to be involved in get it reorganized the prospective purchasers your honour's want to stay in chapter eleven because they believe that the other lien holders and there are other legal is this is not a two party dispute there's an s b a loan for a million dollars in and you know the state has some tax liens and then there's a whole host of general unsecured creditors the de hopes to get some value to all of those creditors with this dismissal of course all of the value will only go to grand pacific i'm not of town here out of time here but your honour's the that the debtor believes that a reorganization podium i want to leave you with just one one question follow up to my colleagues the brief that was filed says and i'm quoting after the case was dismissed grant pacific's court appointed receiver entered into an agreement to sell its interest as it is to f t three six one for euclid l l c for two point six million so i am left with confusion as to what was told because it sounds like the receiver is no longer in place your honor may i have mr pappas address that because he's been more involved with the state you have reserved some time for a battle i'm just letting you know that one of my lingering questions th good afternoon afternoon your honour's may please the court my name is heather have a line here is counsel on behalf of the substitute happily cleveland crimson hotel investors l case because none of the grounds for that were cited in the motion to dismiss were present at the time the bankruptcy court determined that dismissal was appropriate in the motion to dismiss graham pacific requested that the case be dismissed for cause under section eleven twelve b of the bankruptcy code which provides a list of factors that courts can consider or promised to provide and agreed to provide in the court ordered them to provide in the cash collateral orders mr nematt mentions that graham pacific somehow wanted third party verification of of the amounts that's not actually what it was requesting it was just requesting some information that us tommy had agreed to provide to show what the expenses were and in the cash collateral order the order required us timing just to attach supporting documentation to its weekly reports and it hadn't done that and didn't comply with those orders until january twenty third of twenty eight thousand so we're talking two and a half months after the motion to dismiss was filed the legislative history to twelve eleven twelve b you suggest that the court can consider a variety of factors and  and can consider the totality of the circumstances as they arise and in this case at each hearing us time he would meet or right before each hearing they would maybe supplement some of the requested information and week it trickled in over time for two and a half months overtime some of the causes for dismissal and the reasons why pacific ended up seeking dismissal evolved over time  at the beginning of the case u s time he suggested that it's exit strategy to come out of bankruptcy was to find a buyer for graham pacific's claim we started talking about that in  december we and each hearing judge price myth the bankruptcy court judge would ask us tell me where the case was going where it was in seeking alternative financing and each time there was a reason why maybe it didn't have have that financing ultimately we got to hearing on may first where us time he had filed a plan suggesting to the grand pacific would need to take a discount on the amount of the amount of its claim i think it is less than it would be except in less than half of its claim of the till rate and the plan itself was only five pages long the disclosure statement didn't have anything attached to it to suggest how the plan could work any projections nothing and it was only at that hearing or right the morning of that hearing that graham pacific first received an  we got to the hearing on may first they submitted the offer that was based on an appraisal that graham pacific had never seen it was offering approximately liquidation value for or what i determined liquidation value for the hotel was mr namath when we were talking when he was talking and making his presentation he was talking about how they were over in the us timing was operating under the impression that graeme pacific was interested in selling its claim that's not necessarily untrue but we but some of these discussions were happening back in december we went five months with nothing so there was some other interested parties outside of the bankruptcy court interested in bank pacific's claim and if i may clarify some of your questions to mr nematt and it wasn't six days after the bankruptcy was dismissed graham pacific did accept an offer to sell its claim i believe that transaction closed in september of twenty twenty eight thousand so three months after the dismiss all at the same time the state court appointed receiver who is in possession and control of the property and who has hired is the principal of us tommy to manage the property also had found a buyer and entered into a potential purchase agreement and did procedures that hasn't been resolved yet so graham pacific's claim was sold to crimson cleveland hotel investors the receiver has also found an interested party has filed bid procedures to sell the property so there are interested people timing also complains that it didn't have notice of the of the motion to dismiss and the heat and the hearing that ultimately occurred on may twenty second and that argument to me is somewhat disingenuous given that the motion itself was filed back in november of two thousand and seventeen the court held six hearings in each of the hearings there was discussion about where the case was going the judge's concerns about how us tommy was going to resolve it chapter eleven case and its strategy for doing that was more about how it was going to handle itself outside of bankruptcy as opposed to managing it operations inside and so as i stated previously when we got to may first and we had seen that the more or less form planned the disclosure statement that was incomplete we received an offer from a third party who had not been involved in the case at all and that graeme pacific really had no dealings with prior to that time a very low amount in its opinion  purchase or whatever and whilst i understand the may from december through january and february that was kind of the works certainly by the time we have the plan which is the end of march it's five pages you would know right away that doesn't look very viable so simply par or supplement or remember to your motion include these these factors white wedding got a cur that's a fair point your honor and we and i think pacific probably could have done that except for the discussion in each of the hearings especially with respect to the february hearing where the where the debtor to suggest that you know it was asking simply for four additional time to file a plan and then the court said ok we can do that and if if the parties are comfortable with what's happening we can have a hearing on the confirmation of the plan in the disclosure statement or we can reset the hearing a motion to dismiss and the use of cash collateral so it was more or less a function of the discussion with the court that when she set the hearing on the motion to dismiss it was because graham pacific felt that that was the although the case law suggests that when the record is sufficiently establish an evidentiary hearing isn't required and also u s time you never asked for an evidentiary hearing and it never really asked for the motion to dismiss to be withdrawn either which is another one of their arguments u s time and it's briefs makes a point to say that there were some discussions and a representation that the motion to dismiss would be withdrawn some point along the way however there is a qualification in there by by us time is counsel that if you know all of these reportings were were given this was at  the this was at the december fifth hearing that if us time is found in compliance then the expectation would be that the motion to dismiss would be withdrawn but at the next at the very next hearing they were still having clients it wasn't until the day before the january twenty third hearing that they finally had delivered most of those accountings and at that point if it can even had a chance to review all of that information to figure out if anything was missing is it a fair statement from the record that at the may first hearing grand pacific left that hearing with an understanding the case would be dismissed  twenty one days if they didn't accept an offer on the property yes your honor at the may first hearing there was a representation by counsel that the elo why they did it that it had presented required an agreement as to price by may fifteenth of twenty eighteen so the judge at that hearing said well i will give you till may twenty second if we don't have an agreement then we're done case while a plan had been filed it was it was more or less a form planned that and a disclosure statement and really what was required was an agreement by grand pacific to sell its claim for a price that it is that agreed to  and which it's not required to do in order to resolve the debtors case if you started any law where in this this notion that the grounds for relief requested can evolve over time without it being in writing and just based on the practice of the hearing well just the legislative history of twelve eleven twelve b that says the court can consider all of the circumstances of the case to determine whether or not because it exists to  pappas for us tommy and judge wise to answer your question about the so called purchaser what's interesting and and i'm an old trial lawyer not a bankruptcy lawyer like my colleague here mr nemesis a bankruptcy attorney but this is a problem when you don't have an evidentiary hearing and you only hear statements of problems you don't have something to look at in the record we don't have letters of intent with dates on them that we can verify what actually happened in this case just answer your question and it's ironic because grand pacific is not here we have the note buyer crimson cleveland is here took graham pacific p may twenty eighth as my colleague said six days after the hearing the twenty second i believe which the order went into effect on june fifth so what had happened is they actually had according to graeme pacific's own vice president which i can't present because we don't have evidence that was ever submitted to the court we never had that opportunity but was absolutely i mean the reason that we're here is that we never had that opportunity my client family has his hotel for over thirty years we filed to reorganize we had the opportunity get some additional investments to pay off the  other creditors there is in the record that you requested an evidentiary hearing there an opportunity well i guess i'm not a bankruptcy lawyer but generally in normal trial courts we have evidence before you make a decision to court speaks its record there's nothing in the record to justify what the what the what the court did we only have arguments of counsel black letter law at least in my day that arguments accounts of what i see is not evidence it's one of them's two on the witness stand  submitted to the court was submitted as evidence of what stipulated by counsel there were no stipulations that i saw in the transcripts that said this is what actually happened we have mr nemesis this headline talking about what's going on but there's no evidence and even the judge's order dismissing the case refers to transcripts not evidence but anyway i just want to answer a question real quick so what happened may twenty eighth grand pacific signed over their note to somebody else this from a twenty eight through august the whatever date it was this the receiver was marketing the property they've got a number of two point six million again we can't prove it because i don't have the the evidence here that was submitted but crimson cleaving who bought the note rejected that offer and that's where we stand now in state court in the meantime my client has continually operated the hotel under the auspices of the receiver who basically monitors it but it's been the same operation all this time we've made the adequate protection payments the current expenses the utilities everything from the date the petition was filed everything's been paid and we never got the opportunity to even hear the plan a little loan talk about confirming a plan we had two offers  letter of intent was back in january the offers came february and march in the meantime graham pacific sold out there were complaining about not not enough money but you know they had a we don't know what it was because we don't have the evidence we weren't able to subpoena anything or bring anybody in but the bottom line is no it was not sold the hotel is still under the receivership and we would like that opportunity to go back to present our plan we have an investment strategy we have a new note buyer not graham pacific they're out of here they're gone and that's all we're asking for is the opportunity reorganize we have seventeen plus she has me employees we have you know the family interest we have other creditors that this was not a two two party thing graham pacific basically as you indicated had veto power and they're the ones that came in to veto this but the trustee did not object none of the other creditors objected the state of ohio did not