In re Aurora Memory Care, LLC

589 B.R. 631
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedSeptember 27, 2018
DocketNo. 18 B 11289
StatusPublished
Cited by17 cases

This text of 589 B.R. 631 (In re Aurora Memory Care, LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Aurora Memory Care, LLC, 589 B.R. 631 (Ill. 2018).

Opinion

A. Benjamin Goldgar, United States Bankruptcy Judge

Before the court for ruling is the motion of creditor West Suburban Bank (the "Bank") to convert or dismiss the chapter 11 case of debtor Aurora Memory Care, LLC ("AMC") under section 1112(b) of the Bankruptcy Code, 11 U.S.C. § 1112(b). For the reasons discussed below, the motion will be granted. Although the Bank prefers dismissal, the case will be converted to chapter 7.

1. Background

The facts are drawn from the parties' papers; other materials on the docket of the bankruptcy case; materials on the docket in a related and now-dismissed adversary proceeding, Aurora Memory Care, LLC v. West Suburban Bank , No. 18 A 183; and materials on the district court's docket in U.S. Securities & Exchange Comm'n v. Kameli , No. 17 C 4686. No facts are in dispute. Because no party has requested a formal evidentiary hearing, and because all the relevant facts are before the court and are familiar, no evidentiary hearing is necessary. In re Bartle , 560 F.3d 724, 729 (7th Cir. 2009).

AMC operates a health care facility in Aurora, Illinois. The 100% owner of AMC is Aurora Real Estate and Property Investments, LLC ("ARE") which is itself a debtor in a chapter 11 case, In re Aurora Real Estate & Property Invs., LLC , No. 18 B 16030. Taher Kameli, a Chicago immigration lawyer, owns 100% of ARE.

AMC is one of several health care facilities in Illinois and Florida with which Kameli is involved. These facilities, or more specifically the investment funds Kameli established in connection with them, have served as investment vehicles for foreign nationals interested in gaining U.S. citizenship though the U.S. Citizenship and Immigration Service's EB-5 Program. Created under the Immigration Act of 1990, the EB-5 Program extends citizenship to immigrants who invest in designated U.S. businesses that create a certain number of jobs.

Kameli's investment scheme has not sat well with the federal government. In April 2017, the SEC brought a civil enforcement action (the "SEC action") against Kameli and others alleging that the handling of the investment funds violated the Securities Act of 1933 and the Securities Exchange Act of 1934. AMC was named in the action as a "relief defendant," meaning that it was not accused of any wrongdoing but was joined to have it disgorge monies received as a result of the wrongdoing of other defendants. See, e.g. , *635Holzhueter v. Groth (In re Holzhueter) , 575 B.R. 444, 449 (Bankr. W.D. Wis. 2017). In September 2017, the district court denied the SEC's motion for a preliminary injunction to bar Kameli from further violations of the securities laws and further involvement with EB-5 investments. See S.E.C. v. Kameli , 276 F.Supp.3d 852 (N.D. Ill. 2017). The defendants have since moved to dismiss the SEC's complaint. Those motions are pending.

Foreign investment was not the only one source of AMC's funding. In 2015, the Bank loaned AMC $6.5 million. The loan was secured by a mortgage on AMC's property as well as pledges of ARE's ownership interest in AMC and Kameli's ownership interest in ARE. Kameli also personally guaranteed the loan.

The loan matured on December 1, 2016. When AMC failed to repay it on the maturity date, the Bank filed an action in Illinois state court to foreclose on the mortgage and recover on the note. The complaint also included a claim for replevin seeking to recover Kameli's interest in ARE and ARE's interest in AMC. Within days of the action's filing, the state court appointed a receiver who assumed responsibility for the property. At some point, the Bank moved for partial summary judgment on its complaint, and the state court set the motion for ruling on April 27, 2017.1

On April 18, before the state court could rule on the motion, a creditor of AMC, Meridian Senior Living, LLC, filed an involuntary chapter 11 petition against AMC. The Bank moved under section 543(d)(1) of the Code, 11 U.S.C. § 543(d)(1), to have the receiver excused from his obligation to turn over the property, and the motion was granted. The receiver has remained in possession of the property.

For reasons that have never been clear, petitioning creditor Meridian waited until May 9 to have a summons issued to AMC. Rather than contest the petition, though, on June 4 AMC consented to the entry of an order for relief, and an order for relief was entered the next day. Since then, the case has proceeded as a voluntary case under chapter 11.

AMC's list of creditors and other entities was due on June 12, and its schedules, statement of financial affairs, and other documents were due on June 19. See 11 U.S.C. § 521(a)(1) ; Fed. R. Bankr. P. 1007(a)(2), (c). AMC failed to file any of these materials on time, prompting the U.S. Trustee to move to convert or dismiss the case. The SEC joined in the motion.

AMC eventually filed partial schedules on July 23, several days late. AMC filed its list of creditors the next day, more than a month late. The remaining schedules and amended versions of the earlier schedules were not filed until August 7, two months after the order for relief was entered. The statement of financial affairs was not filed until August 22. A set of amended schedules was filed the same day. (After the amended schedules were filed, the U.S. Trustee withdrew its motion.)

*636The schedules AMC filed raise questions about the value of its facility, questions that have never been answered adequately. The Schedule D filed on July 23 listed the facility's value as $10 million. The amended Schedules A/B and D filed on August 22, on the other hand, listed the value as $16 million. According to the amended schedules, the new value was based on an "appraisal." AMC has mentioned the appraisal several times in the course of the case, but it has never been produced.2

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Cite This Page — Counsel Stack

Bluebook (online)
589 B.R. 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-aurora-memory-care-llc-ilnb-2018.