Case SSM Doc 440 Filed 08/03/09 Entered 08/03/09 10:58:05 Desc Main Document Page 1 of 10

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1 Document Page 1 of 10 David I. Swan (VSB No ) Kenneth M. Misken (VSB No ) MCGUIREWOODS LLP 1750 Tysons Blvd, Suite 1800 McLean, Virginia Tel: Fax: dswan@mcguirewoods.com kmmisken@mcguirewoods.com UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION IN RE: NATIONAL HERITAGE FOUNDTION, INC., Debtor. Case No SSM Chapter 11 OBJECTION BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO THE DEBTOR S MOTION FOR (A) CONDITIONAL APPROVAL OF DISCLOSUURE STATEMENT, (B) APPROVAL OF JOINT HEARING ON DISCLOSURE STATEMENT AND PLAN OF REORGANIZATION, (C) APPROVAL OF CERTAIN NOTICE PROCEDURES FOR THE DISCLOSURE STATEMENT, PLAN OF REORGANIZATION, AND JOINT CONFIRMATION HEARING FOR THE DEBTOR S PLAN AND DISCLOSURE STATEMENT, (D) APPROVAL OF NOTICE PROCEDURES FOR THE ASSUMPTION OF EXECUTORY CONTRACTS, AND (E) EXTENDING THE DEBTOR S EXCLUSIVITY PERIOD UNTIL THE CONCLUSION OF THE CONTEMPLATED PLAN CONFIRMATION PROCESS The Official Committee of Unsecured Creditors (the Official Committee ) appointed in the bankruptcy case of National Heritage Foundation, Inc. (the Debtor ), by and through its undersigned counsel, hereby submits this objection (the Objection ) to the Debtor s motion (the Motion ) seeking this Court s conditional approval of, among other things, the Debtor s Disclosure Statement and related solicitation procedures. In support of this Objection, the Committee respectfully represents as follows: APPLICABLE AUTHORITY AND LEGAL ANALYSIS I. THIS COURT SHOULD DENY THE DEBTOR S MOTION TO CONDITIONALLY APPROVE THE DISCLOSURE STATEMENT BECAUSE THE DISCLOSURE STATEMENT LACKS ADEQUATE INFORMATION AS REQUIRED BY SECTION 1125 OF THE BANKRUPTCY CODE. 1. A disclosure statement must contain adequate information to be approved by the Court. 1125(b), Bankruptcy Code. The Bankruptcy Code essentially defines adequate

2 Document Page 2 of 10 information as being information of a kind and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor and the condition of the debtor s books and records,... that would enable [ ] a hypothetical investor of the relevant class to make an informed judgment about the plan. 1125(a)(1), Bankruptcy Code. 2. The disclosure statement requirement of 1125 of the Bankruptcy Code is crucial to the effective functioning of the federal bankruptcy system, and the importance of full and honest disclosure cannot be overstated. RTC Mort. Trust 1995 S/N2 v. McMahon, 225 B.R. 604 (E.D. Va. 1997) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996) (citations omitted). 3. Adequate information under 1125 of the Bankruptcy Code is determined by the facts and circumstances of each case. Menard-Sanford v. Mabey (In re A.H. Robins Co.), 880 F.2d 694, 696 (4th Cir. 1988). The adequate information requirement is designed to help creditors in their negotiations with debtors over the plan. Century Glove, Inc. v. First Am. Bank, 860 F.2d 94, 100 (3d Cir. 1988). 4. Conditional approval of the Debtor s Disclosure Statement would be futile because it lacks adequate information. Each of the Official Committee s objections to the adequacy of the information in the Disclosure Statement is set forth below. A. The Disclosure Statement Fails to Disclose Information Regarding Important Historical Events Leading to the Debtor s Bankruptcy Filing. 5. An important part of any disclosure statement is a description of the events leading to the Debtor s bankruptcy filing. A thorough and complete disclosure will allow the general unsecured creditors to make an independent determination of whether the causes of the bankruptcy filing have been addressed during the reorganization, and as a result, whether 2

3 Document Page 3 of 10 the proposed plan is in their best interests. The Debtor s proposed plan does not adequately disclose the factual events leading up to and contributing to the Debtor s bankruptcy filing. 6. In the late 1990s and early 2000s, the Debtor entered into approximately 114 Charitable Gift Annuities ( CGAs ) with individuals ( Annuitants ) who paid the Debtor a lump sum amount in exchange for future periodic payments. The Debtor obligated itself to make these periodic payments to the Annuitants until the Annuitant dies (in the case of a one-life CGA) or until the Annuitant and a second person dies, usually the Annuitant s spouse (in the case of a two-life CGA). In exchange for the promised periodic payments, the Annuitants paid to the Debtor approximately $25 million in the aggregate. 7. As of the Petition Date, the Debtor had annual payment obligations to the Annuitants totaling approximately $1.64 million, with an average monthly obligation of $137, for Most of the Annuitants (68%) are entitled to receive monthly payments from the Debtor, with the remaining Annuitants entitled to receive quarterly (18%), semi-annual (<1%) or annual (2%) payments. The Committee has asserted that many of the annuitants rely upon their scheduled periodic payments for their everyday living expenses and that some of the Annuitants gave the Debtor their entire life savings in exchange for the periodic annuity payments and thus have no other source of income. 8. The Debtor invested 100% of the $25 million it received from the Annuitants in a Massachusetts business trust it created called The Vantage Funds. The Debtor was the sole shareholder of and sole investor in The Vantage Funds. 9. The Vantage Funds was managed by a six-member Board of Trustees, which included (i) John T. Houk, III, the current President of the debtor and proposed board member of the reorganized debtor, and (ii) Julie Houk, John T. Houk s wife, former board member of the debtor and proposed board member of the reorganized debtor. The president of The Vantage 3

4 Document Page 4 of 10 Funds was Ian Scott-Dunne, and the administrator was Stellar Financial, Inc. Mr. Scott-Dunne was also the CEO of Stellar Financial, Inc. Mr. Scott-Dunne, as president of The Vantage Funds, would recommend to the Board of Trustees investments in the form of high-risk unsecured loans known as private placements. Since its inception in 2004, The Vantage Funds made 16 private placement loans, with many of the loans made to insiders. 10. The Debtor s schedules reflect that the investments in The Vantage Funds have a book value of $16,739,772. Neither the Debtor s schedules nor the Disclosure Statement discloses the loans that were made through The Vantage Funds. Many of the loans were made to insider companies, such as Stellar McKim, Brightstar, and Front Range Hockey. 11. At least one of the notes was converted to equity by the Debtor. In addition, the Debtor listed on its bankruptcy schedules a note receivable from My Public Info in the face amount of $2,242,200, although the loan was initially made by The Vantage Funds. Shortly after the loan was made, Julie Houk was hired by My Public Info as its Chief Marketing Officer. The Debtor questions whether it will be able to recover anything on account of the My Public Info note receivable. 12. In addition, one of the loans made by The Vantage Funds was made to Stellar McKim, the direct parent and 100% shareholder of Stellar Financial, and used by Stellar McKim to, among other things, purchase Brightstar. As of the petition date, Stellar McKim owed The Vantage Funds $14 million (inclusive of interest). The loans were made to Stellar McKim are unsecured, and the fiduciaries of The Vantage Funds did little, if no, due diligence on whether Stellar McKim had the wherewithal to repay the loans (or any of the loans made by The Vantage Funds). The Debtor now questions the collectability of the Stellar McKim note. 13. Brightstar itself is also indebted to The Vantage Funds under various notes. The Board of Directors of Brightstar from June 2005 were Ian Scott-Dunne, James J. Cahill (an 4

5 Document Page 5 of 10 investment advisor for The Vantage Funds and managing member of Stellar McKim), Robert Taggert (an investment advisor for The Vantage Funds and President of Front Range Hockey, which itself borrowed money from The Vantage Funds), and Julie Houk. The Debtor also questions the collectability of the Brightstar note. 14. The liquidity problems resulting from the Debtor s investment of all of the $25 million in annuity assets in The Vantage Funds, coupled with The Vantage Funds problem loans to various insider entities such as Stellar McKim and Brightstar, led to the chapter 11 filing. The Debtor relied upon The Vantage Funds to meet its payment obligations to annuitants. Once the $25 million was invested in The Vantage Funds and the loans made by The Vantage Funds became uncollectible, the Debtor began liquidating its Donor Advised Funds to meet its annuity obligations. 15. The Debtor s disclosure statement does not disclose (i) the Debtor s creation of The Vantage Funds, (ii) the Debtor s investment of approximately $25 million into The Vantage Funds, (iii) the Debtor s control over The Vantage Funds, (iv) the loans made by The Vantage Funds and the outstanding balances, (v) the duties and obligations of John and Julie Houk as trustees of The Vantage Funds and the role that the trustees played in overseeing The Vantage Funds, (vi) the details of any causes of action that the estate may have against the trustees of The Vantage Funds or the other insiders, including but not limited to, Ian Scott-Dunne and James Cahill, (vii) the relationships between the insiders of The Vantage Funds and the companies that received loans, (viii) the details relating to the My Public Info loan from The Vantage Funds and how that note became a note in favor of the Debtor, and (ix) the due diligence that was performed before any loan was made by The Vantage Funds. This information is crucial and must be disclosed so that creditors can make an informed decision about the proposed plan. 5

6 Document Page 6 of 10 B. The Debtor s Disclosure Statement Fails to Adequately Disclose Key Facts to Allow Individuals with Charitable Remainder Trusts to Make an Informed Decision. 16. In 7.7 of the Debtor s Disclosure Statement, the Debtor recognizes that [c]ertain beneficiaries under Charitable Remainder Trusts have asserted approximately $1.4 million of claims against the Debtor for past and future income distributions detailed in the applicable trust agreement. The Debtor then states that it will object to these claims as they are not properly asserted against the Debtor, but rather are claims against the applicable Charitable Remainder Trust. See Disclosure Statement, Apparently, to the extent that the Charitable Remainder Trust claims are determined to be allowed claims, the Debtor proposes to treat those claims by paying the amount of any Allowed Claim into the applicable Charitable Remainder Trust. Id. 18. The Debtor s Disclosure Statement does not disclose important information that would allow the beneficiaries of the Charitable Remainder Trusts to make an informed decision about the Debtor s plan. In particular, the Debtor s Disclosure Statement fails to provide the beneficiaries with the following information: (a) (b) The individuals that have Charitable Remainder Trusts; The amount that is currently being held in trust for the benefit of the beneficiaries; (c) How the funds are currently being invested and how the Debtor will invest those funds post-confirmation; and (d) Whether the beneficiaries of the Trust are impaired or unimpaired. This information is important for a beneficiary of a Charitable Remainder Trust to determine whether to accept or reject the Plan because, upon information and belief, the Debtor invested 6

7 Document Page 7 of 10 some of the purported trust funds into The Vantage Funds. As explained above in Section B, the Debtor lost approximately $25 million by creating and investing in private placements with insider companies through The Vantage Funds. The information listed above is crucial to allow the beneficiaries of the trusts to make an informed decision about the plan, especially since the Debtor proposes to replenish any trust assets if it is determined that the Debtor mismanaged the trusts and because the Debtor proposes to remain the trustee of those trusts. C. The Debtor s Disclosure Statement Fails to Provide an Adequate Liquidation Analysis. 19. The Debtor s Disclosure Statement states that [a]t a minimum, because Allowed Claims of creditors are being satisfied in full, they cannot receive more advantageous treatment in a Chapter 7 Case. See Disclosure Statement, Art. X. This statement should be deleted because it is misleading and incorrect. 20. A creditor being asked to accept payment over a period of time the annuitants and the beneficiaries of the charitable remainder trusts are entitled to know what the alternative result would be in a chapter 7 liquidation. In a chapter 7 liquidation, creditors would be entitled to an immediate payment of their claims after the Debtor s assets were liquidated, which may be a more acceptable alternative than the Debtor s chapter 11 plan which proposes to pay their claims over time. D. The Debtor s Disclosure Statement Fails to Identify the Relationship between the Debtor and The Delp Company. 21. The Debtor s Plan provides that the Debtor will establish a trust under which all future payments to annuitants will be made. The Debtor proposes to require the unnamed trustee of that trust to hire The Delp Company ( Delp ) to provide certain advisory services in connection with the performance of the trustee s obligations under the trust agreement. 7

8 Document Page 8 of The Debtor s Disclosure Statement fails to disclose the Debtor s prior and current business relationships with Delp and any compensation paid by the Debtor to Delp. As stated above, the Debtor invested approximately $25 million that it received from individual annuitants under the charitable annuity agreements with The Vantage Funds. Most, if not all, of the current outstanding loans are uncollectible. The Debtor is now asking the annuitants to accept a plan which provides the annuitants payment over the course of their lifetime while the Debtor s hand-picked money-manager (investor) invests the money from which they will be paid. E. The Debtor s Disclosure Statement Incorrectly States the Committee s Position Regarding the Annuity Claims. 23. In 7.6 of the Disclosure Statement, the Debtor acknowledges that annuitants have filed claims, with some annuitants claiming that they are entitled to distributions in the amount of the present value of their claim, and others claiming that they are entitled to a lump sum payment equal to the product of their periodic payments and their life expectancy. The Debtor then states that [t]he Debtor and, upon information and belief, the Committee, disagrees with these claims and believes that, to be truly unimpaired, Annuitants shall be entitled to what they would have received as if the Bankruptcy Case was never filed payment in full of their periodic payments both prior to and since the Petition Date, as well as reasonable assurances that such periodic payments can and will be made to each Annuitant for the duration of their life. (Emphasis added.). 24. The Committee requested the Debtor to delete the underlined phrase because the Committee does not agree with the Debtor s assertion. The Debtor should be required to delete any reference to the Committee s position relating to whether the annuitants claims are unimpaired under the plan. 8

9 Document Page 9 of 10 F. The Debtor Fails to Adequately Disclose Important Information Relating to the Actions Filed Against the Debtor. 25. In 5.2 of the Disclosure Statement, the Debtor lists its liabilities and the causes of action that have been filed against it. The Disclosure Statement fails to disclose any facts relating to the 9 causes of action, including any potential cause of action that the Debtor may have against Veronica Flaggs. Veronica Flaggs used over $1 million of the Debtor s cash to pay for personal expenses. The Disclosure Statement does not disclose this fact, nor does it disclose any information on how the Debtor is pursuing recoveries of those sums (i.e., insurance proceeds, fraudulent transfer action, etc.). 26. In addition, the Debtor lists 9 actions that were filed against it. One of those actions resulted in the $6.2 million judgment in favor of the Mancillas (see 4.2 of the Disclosure Statement). The Debtor fails to disclose that the Texas jury found that the basis for the Mancillas judgment was that the Debtor breached its fiduciary duty and committed fraud. Moreover, the Disclosure Statement fails to disclose any facts (either alleged or procedural) relating to the other causes of action listed. II. THE DEBTOR SHOULD BE REQUIRED TO SEND THE DISCLOSURE STATEMENT AND PLAN TO ALL GENERAL UNSECURED CREDITORS. 27. The Debtor requests the Court to allow the Debtor to send to each creditor, party in interest, and donor, among other things, a summary of the material terms of the Debtor s Plan. The Committee objects to the Debtor s requested procedure to the extent the Debtor seeks to modify its notice requirements as they related to the annuitants and other general unsecured creditors. A copy of the disclosure statement, plan, and other notices and documents should be mailed to all creditors. 9

10 Document Page 10 of 10 III. CONCLUSION. 28. The Official Committee believes that any Disclosure Statement that is sent to the creditors in this case must contain the information described above to provide adequate information for the Debtor s creditors to evaluate the plan. For the reasons cited above, the Disclosure Statement in its current state lacks adequate information as required under 1125 of the Bankruptcy Code, and therefore, should not be conditionally approved. DATED: Alexandria, Virginia August 3, 2009 /s/ Kenneth M. Misken David I. Swan (VSB No ) Kenneth M. Misken (VSB No ) McGuireWoods LLP 1750 Tysons Blvd., Suite 1800 McLean, VA Tel: (703) Fax: (703) dswan@mcguirewoods.com kmisken@mcguirewoods.com Counsel for the Official Committee of Unsecured Creditors of National Heritage Foundation, Inc. 10