Case Document 1590 Filed in TXSB on 03/16/12 Page 1 of 4

Transcription

1 Case Document 1590 Filed in TXSB on 03/16/12 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION IN RE: Case No LACK S STORES INCORPORATED, et al., (Chapter 11) DEBTORS 1 MOTION OF ISRAEL ORONA TO LIFT AUTOMATIC STAY THIS IS A MOTION FOR RELIEF FROM THE AUTOMATIC STAY. IF IT IS GRANTED, THE MOVANT MAY ACT OUTSIDE OF THE BANKRUPTCY PROCESS. IF YOU DO NOT WANT THE STAY LIFTED, IMMEDIATELY CONTACT THE MOVING PARTY TO SETTLE. IF YOU CANNOT SETTLE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY AT LEAST 7 DAYS BEFORE THE HEARING. IF YOU CANNOT SETTLE, YOU MUST ATTEND THEHEARING. EVIDENCE MAY BE OFFERED AT THE HEARING AND THE COURT MAY RULE. REPRESENTED PARTIES MAY ACT THROUGH THEIR ATTORNEYS. THERE WILL BE A HEARING ON THIS MATTER ON APRIL3, 2012 AT 2:30 P.M. BEFORE THE HONORABLE JEFF BOHM, UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS, 515 RUSK AVENUE, IN COURTROOM 600, HOUSTON, TEXAS COMES NOW, ISRAEL ORONA, (hereinafter Movant ) and files this Motion to Lift Automatic Stay, and in support thereof would respectfully show the Court as follows: 2. Movant is the Plaintiff in a lawsuit pending against debtor LACK S STORES, 1 The Debtors and the last four digits of their tax identification numbers are Lack s Stores, Incorporated (6528), Merchandise Acceptance Corporation (0972), Lack s Furniture Centers, Inc. (9468), and Lack Properties, Inc. (8961). MOTION OF ISRAEL ORONA TO LIFT AUTOMATIC STAY Page 1 of 4 US v.1

2 Case Document 1590 Filed in TXSB on 03/16/12 Page 2 of 4 INCORPORATED, one of the above-captioned debtors, and should be a party in interest in these proceedings. 3. Debtors Lack s Stores, Incorporated; Lack Properties, Inc.; Lack s Furniture Centers, Inc.; and Merchandise Acceptance Corporation filed Voluntary Petitions for Relief under Chapter 11 of Title 11 of the United States Code on November 16, Movant brings this action under 11 U.S.C. Sec. 362(d) for relief from the automatic stay arising from the filing of the petition in the above-captioned proceeding. This court has jurisdiction of this action under 28 U.S.C and 157 and 11 U.S.C Movant is a Plaintiff in a pending lawsuit against Lack s Stores Incorporated, cause number CV in the 79 th District Court of Jim Wells County, Texas. A true and correct file-marked copy of Plaintiff s Original Petition in that case is attached hereto as Exhibit A. 5. The automatic stay took effect because of the filing of the petition in bankruptcy, pursuant to 11 U.S.C Movant is entitled to relief from the operation of such stay for the reason that his interest in being fully compensated for his injuries and damages will not be adequately protected if the stay is allowed to remain in full force and effect. Further, it is the intention of the Movant to only seek compensation in the State Court action from debtor Lack s Stores, Incorporated up to the limits of Debtors insurance coverage through an insurance policy issued by Chartis Insurance Company / American MOTION OF ISRAEL ORONA TO LIFT AUTOMATIC STAY Page 2 of 4 US v.1

3 Case Document 1590 Filed in TXSB on 03/16/12 Page 3 of 4 International South Insurance Company, Claim Number , Policy Number Movant waives any and all claims and causes of action against the Debtors and their estates that are not payable from applicable insurance proceeds and shall have no such claims against the Debtors or their respective estates and agrees that any such claims filed against the estates are deemed withdrawn without any further action of the parties or this Court. 6. WHEREFORE, Movant respectfully requests that, after such notice and hearing upon this complaint as the court deems appropriate, the court grant relief from the automatic stay by terminating such stay with respect to its effect on Movant s claims in cause number CV in the 79 th District Court of Jim Wells County, Texas. Respectfully submitted, BRUNKENHOEFER LAW FIRM, P.C. 606 N. Carancahua Street, Suite 1200 Corpus Christi, Texas Phone No. (361) Fax No. (361) /s/ Anna C. Huff Brunkenhoefer ANNA C. HUFF BRUNKENHOEFER SBN: Robert E. Brunkenhoefer SBN: Craig E. Brunkenhoefer SBN: ATTORNEYS FOR ISRAEL ORONA MOTION OF ISRAEL ORONA TO LIFT AUTOMATIC STAY Page 3 of 4 US v.1

4 Case Document 1590 Filed in TXSB on 03/16/12 Page 4 of 4 Certificate of Conference I hereby certify that I, Anna C. Huff Brunkenhoefer, attorney for Movant, have discussed this Motion with counsel for the Debtors and was able to reach an agreement on the requested relief, the terms of which are contained in the Agreed Order pertinent to this Motion. /s/ Anna C. Huff Brunkenhoefer MOTION OF ISRAEL ORONA TO LIFT AUTOMATIC STAY Page 4 of 4 US v.1

5 Case Document Filed in TXSB on 03/16/12 Page 1 of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION IN RE: LACK S STORES, INCORPORATED, ET AL., 1 DEBTORS. CASE NO (Chapter 11) (Jointly Administered) THE AUTOMATIC STAY UNDER 11 U.S.C 362 [Related to Dkt. No. ] The Court has considered the Motion of Israel Orona to Lift Automatic Stay [Docket No. ] (the Motion filed by the Movant ). The Court finds that (a) it has jurisdiction over this matter pursuant to 28 U.S.C. 1334(b); (b) this is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (G); and (c) due and adequate notice of this Motion has been given under the circumstances. Therefore, it is ORDERED that Movants Motion is GRANTED to the limited extent set forth herein. It is further ORDERED that the automatic stay imposed by 11 U.S.C. 362 is hereby by MODIFIED solely as to Movant for the limited purpose of permitting Israel Orona (the Plaintiff ) to proceed to final judgment in the state court lawsuit styled Israel Orona v. John Doe and Lack s Stores, Inc., Cause No CV now pending in the 79th Judicial District Court of Jim Wells County, Texas (the State Court Lawsuit ) and 1 The Debtors and the last four digits of their tax identification numbers are Lack s Stores, Incorporated (6528), Merchandise Acceptance Corporation (0972), Lack s Furniture Centers, Inc. (9468), and Lack Properties, Inc. (8961). THE AUTOMATIC STAY UNDER 11 U.S.C of 4 US v.2

6 Case Document Filed in TXSB on 03/16/12 Page 2 of 4 to allow the Plaintiff to execute, levy, and collect upon any final judgment as may be obtained by Plaintiff in the State Court Lawsuit; provided, however, that Plaintiff s recovery against each Debtor and non-debtor defendant in the State Court Lawsuit shall be limited solely to funds available for indemnity of defendants named in the State Court Lawsuit, to the full extent of available and unimpaired primary and excess insurance policy limits. It is further ORDERED that nothing in this Order shall be deemed or construed to authorize a lifting of the automatic stay as to recovery of any amounts whatsoever from any of the Debtors or their respective estates or of any assets that constitute property of the Debtors estates within the contemplation of Bankruptcy Code 541. It is further ORDERED that, in addition to the limitations contained in the preceding paragraphs, nothing contained in this Order shall be deemed to modify or otherwise alter the automatic stay to permit the incurrence by the Debtors respective estates of (a) adverse judgments that are not covered by insurance policies and payable by the proceeds thereof or (b) insurance deductibles, attorneys fees, or any other costs relating to the lawsuits contemplated by the Motion. It is further ORDERED that any and all claims asserted by Movant that are not payable from applicable insurance proceeds are hereby waived, and Movant shall have no such claims against the Debtors or their respective estates, and any such claims filed against the estates shall be deemed withdrawn without any further action of the parties or this Court. It is further THE AUTOMATIC STAY UNDER 11 U.S.C of 4 US v.2

7 Case Document Filed in TXSB on 03/16/12 Page 3 of 4 ORDERED that this Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation, interpretation, and/or enforcement of this Order. SIGNED this day of, Jeff Bohm UNITED STATES BANKRUPTCY JUDGE AGREED TO BY: VINSON & ELKINS LLP By: _/s/ Katherine D. Grissel Daniel C. Stewart, SBT # Paul E. Heath, SBT # Michaela C. Crocker, SBT # Katherine D. Grissel, SBT # Ross Avenue, Suite 3700 Dallas, Texas Tel: Fax: mcrocker@velaw.com kgrissel@velaw.com ATTORNEYS FOR THE DEBTORS THE AUTOMATIC STAY UNDER 11 U.S.C of 4 US v.2

8 Case Document Filed in TXSB on 03/16/12 Page 4 of 4 BRUNKENHOEFER LAW FIRM, P.C. By: /s/ Anna C. Huff Brunkenhoefer Anna C. Huff Brunkenhoefer SBN: S.D. Tex. Bar No.: Robert E. Brunkenhoefer SBN: Craig E. Brunkenhoefer SBN: B. Carancahua Street, Suite 1200 Corpus Christi, Texas Tel: Fax: anna@brunklaw.com ATTORNEYS FOR ISRAEL ORONA THE AUTOMATIC STAY UNDER 11 U.S.C of 4 US v.2