Hermitage objects to receiver's scope

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NEWFANE — The Hermitage Club is objecting to the scope of receivership proposed by Berkshire Bank as the groups move forward in a foreclosure process.

"The business of the club has been shut down and 'mothballed,'" Hermitage attorney Bob Fisher wrote in an objection to the bank's proposed order filed Tuesday. "The receiver in this instance is a property manager that is protecting and preserving the assets pending the judicial sale."

Fisher called the proposal for the receiver to take over emails and passwords "a complete overreach." The receiver, he said, should not keep the company from "executing its restructuring, for to do so would amount to the receivership being a dissolution of a company rather than a mechanism by which to preserve and maintain a company's assets."

"To grant the receiver authority over all passwords and computers, etc. eliminates the ability of the Hermitage to provide the new lenders with the information required to close the deal," wrote Fisher.

Fisher said the Hermitage sees a conflict of interest in allowing the receiver to have authority to coordinate with the bank during the foreclosure process as the receiver is meant to be an arm of the court. He also objected to the proposed costs — $32,500 for each of the first two months and $16,250 for every month after, with a 6 percent administrative fee — and said the prices should be "commensurate" with property management fees in the area.

Fisher said three undeveloped villages, "simply wooded lands with no infrastructure or amenities to maintain," will not require any preservation or maintenance until the sale of the properties. Although it is unclear to Fisher whether the bank intends to have the receivership cover the Chamonix Townhouse units, he calls it unnecessary, because the properties are managed and maintained by a homeowners association.

The Hermitage requested that the court prohibit the receiver from having any authority or control over any new funds loaned to it.

"Thus, the receiver should have no authority to take control of all bank accounts because such action would cripple the company's ability to facilitate the restructuring," Fisher wrote. "The receiver will have full authority to create his own accounts from which to pay various contractors and governmental authorities. In fact, having a separate account will make the accountings to the court easier."

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.

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