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Recent Case Summaries

Ball Homes, Inc. & Lochmere Development Company v. Andover Golf & Country Club, Inc. and Whitaker Bank (2017-CA-885, 1038& 1047), Fayette Circuit Court 17-CI-640, 986 & 1360
ANDOVER GOLF & COUNTRY CLUB LITIGATION:   A flurry of litigation commenced April 2017 involving the foreclosure by Whitaker Bank of the Andover Golf Course property which includes the clubhouse and pool.  With the Andover entity apparently "handing over" the property to Whitaker in February 2017, Whitaker filed a foreclosure action (read the Complaint) in the Fayette Circuit Court (case #17-CI-640) on February 17, 2017, and quickly obtained an Order of Sale (read the Sale Order with disclosures for the sale).  Whitaker appears to be trying to strip off the restriction filed of record in the Fayette County Clerk's office that requires the property to be continuously used for a golf course by way of a separate Declaration of Rights lawsuit it filed March 15, 2017.  (Read case # 17-CI-986) Declaration of Rights Complaint).  The original developers of the property (Ball Homes, Inc. and Lochmere Development Corporation/Troy Thompson) moved to intervene in the foreclosure case to protect the development and to enforce the requirement that the golf course be maintained and used as a golf course.    They challenged Whitaker's efforts (see Motion to Dismiss) and filed a separate action, Fayette Circuit case # 17-CI-1360 (read the Complaint) to enforce the restrictions that require the property to continuously be used for a golf course that includes certain amenities of a clubhouse, restaurant and pool. The Developers filed a motion for temporary injunction asking the court to order Andover Golf and Country Club and Whitaker Bank and any successors, assigns or purchasers to open, operate and properly maintain the golf course and club.  Read the April 26, 2017 Motion.  Numerous homeowners' associations intervened in the cases by the time of the injunction hearing. On June 6, 2017, the Fayette Circuit Court granted the request of the Developers for a Temporary Injunction to require Whitaker Bank to maintain the property as a golf course and to operate the course.  Read the Temporary Injunction.  In June 2017, the Developers filed a motion with the Court pof Appeals to challenge the $1 Million Bond set by the trial judge.  Whitaker filed a similar motion challenging the injunction and seeking to dissolve it.  Those motions remain pending with the Court of Appeals. During the litigation the Developers issued letters to the Andover residents fully explaining their position and intent.  Read the April 25, 2017, Letter.  Read the July 25, 2017, Letter. The homeowners' associations then surprisingly challenged the standing of the Developers and argued that the Developers had no right to enforce the golf course restriction, nor any legal duty or obligation to enforce the restriction.  Whitaker joined in the standing challenge and further argued that the restriction of record is not enforceable.  As a result of the associations taking a position adverse to the Developers, several individual property owners intervened in the actions to express and protect their rights and position which is consistent with the position and arguments of the Developers.  In an Opinion and Order entered September 20, 2017, the trial court ruled that the Developers did not have standing to enforce the restriction even though the restriction is specifically for the benefit of and in the name of the Developers.  Read the Opinion.   Filed Under:   Litigation   Transactional Law

Behr Properties, LLC, The Beer Trappe, Inc. and Behr Enterprises, LLC v. Ashland Properties, et al. (2017-CA-1155, 17-CI-2156, Fayette Circuit Court)
The Behr entities filed an action against seeking an immediate injunction to validate its trespass through another business property.  The trial court denied the request and granted the property owner's request by cross motion for injunction prohibiting the trespass.  Behr appealed the temporary injunction to the Court of Appeals under CR 65.07.  On September 20, 2017, the Court of Appeals denied Behr's request to dissolve the injunction entered in favor of Ashland Properties and other defendants.  The injunction prohibits Behr and the other plaintiffs from trespassing on the defendants' property.  See the Court of Appeals Order Denying Motion for Interlocutory Relief; and see the Fayette Circuit Court's June 27, 2017, Temporary Injunction. Ashland Properties is seeking sanctions against Behr based upon the failure to comply with the Court's Temporary Injunction. Filed Under:   Litigation   Transactional Law

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