|By Douglas Hanks, The Miami
HeraldMcClatchy-Tribune Regional News
November6 6, 2009 - --Jeffrey Soffer created a "corporate shell game" to borrow nearly $3 billion for the Fontainebleau Las Vegas and now is trying to shield his family's real estate empire from the fallout of that project's bankruptcy, according to a new lawsuit against companies controlled by the Aventura developer.
The suit by title insurers involved in the $2.8 billion Vegas financing package takes aim at the complex web of holding companies that ultimately controls Soffer properties from Miami Beach to Las Vegas.
The lawsuit alleges the holding companies all amount to one Soffer entity that should be vulnerable to roughly $600 million in contractor claims covered by title insurance on the Fontainebleau Vegas project. Contractors are demanding payment for work done on the 63-story casino tower, which remains unfinished after lenders cut off building funds in April.
Filed in Miami-Dade Circuit Court, the lawsuit wants a judge to force other Soffer companies, including the parent of the Fontainebleau Miami Beach, to accept any liability for the contractor claims. Soffer's lawyers have said the Vegas project is isolated from the rest of the Soffer empire thanks to a series of corporations and holding companies -- an arrangement the suit describes as deceptive.
"These corporate and partnership entities are a fiction created to deceive lenders, title companies and members of the public, and to hide assets and avoid liabilities," reads the suit by Fidelity National and eight other title insurance companies that issued guarantees on the Vegas project.
Scott Baena, the Miami bankruptcy lawyer representing Fontainebleau Vegas, called the suit "scurrilous," but declined an interview because he does not represent the Soffer companies named as defendants: Fontainebleau Resorts, Turnberry West Construction and Turnberry Residential Limited Partner.
Senior Fontainebleau executive Howard Karawan declined to comment. Plaintiff lawyers at Tew Cardenas in Miami and Miller Starr in Walnut Creek, Calif., also declined interviews.
On Thursday, the Miami judge handling the bankruptcy case warned he may take direct control of the stalled project after learning the Fontainebleau Vegas transferred nearly $5 million to lenders on the eve of filing for bankruptcy protection.
Bankrupt companies need court permission to distribute money, so payments made in the weeks before a Chapter 11 filing get scrutinized.
"It certainly smacks to me of a fraudulent transfer," Judge A. Jay Cristol said at the hearing in federal court, though he added he might have overlooked an earlier disclosure of the transfer.
Cristol said he might name a trustee next week to take charge of the project, rather than let Soffer's team retain authority under Chapter 11 protection.
Soffer's lawyers say they're days away from securing an opening bid for the Vegas Fontainebleau. They haven't revealed a price, but say the prime suitor, Penn National Gaming, will offer "substantially less" than $300 million for a project expected to cost at least $1 billion to finish.
That likely limits the money at stake in the Fideity case, since the title insurance policies only cover contractor claims up to the value of the property.
But the central argument of the suit touches a key question in South Florida: How much exposure do the Soffers face from the Fontainebleau Las Vegas bankruptcy?
To secure the Vegas title insurance in 2007, Soffer pledged the three companies named in the suit as a first line of defense against potential contractor liens.
The companies own or control other Soffer entities that ultimately own key parts of the family's condo and resort empire, including the Fontainebleau Miami Beach, Turnberry condo towers in the Vegas MGM complex, and the Ocean Colony condo complex in Sunny Isles Beach.
The family's crown commercial jewel, the Aventura Mall, is owned by a separate corporate network run by Jeffrey's sister, Jackie Soffer. Both took over the family's main company, Aventura's Turnberry Associates, from father Donald Soffer, who created Aventura in the 1970s.
Fidelity said it asked the three defendant companies to fight the Vegas contractor claims and post bonds needed to clear them, but that the Soffer companies refused.
In 2005, Jeffrey Soffer engineered the $312 million purchase of the Fontainebleau Miami Beach and announced plans to build the 3,800-room Fontainebleau Vegas.
Construction overruns, a failed effort to sell condo-hotel units in Vegas and last year's economic meltdown swamped the Vegas project. In April, banks cut off construction funding and a bankruptcy judge is trying to sell the unfinished tower for a fraction of the $2 billion pumped into the project since 2007.
After the Fontainebleau Vegas filed for Chapter 11 bankruptcy protection, Soffer said the financial problems were isolated and would not affect his family's vast wealth or real estate portfolio.
But he has acknowledged personal exposure: Soffer guaranteed at least a portion of $200 million in Vegas debt, and a Turnberry entity issued a $100 million construction guaranty on the project.
In a September court hearing, Baena, a partner at Bilzin Sumberg in Miami, said Soffer likely would lose $500 million in the Vegas venture.
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