IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

Transcription

1 Case Document 387 Filed in TXSB on 02/25/16 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION In re: HII TECHNOLOGIES, INC. et al, Debtors. Chapter 11 Case No (Jointly Administered) EXPEDITED MOTION FOR SANCTIONS, OR, IN THE ALTERNATIVE, TO CONTINUE HEARING, COMPEL A RETURN TO MEDIATION AND EXTEND THE CHALLENGE DEADLINE THIS MOTION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE MOTION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE OUR RESPONSE WITHIN 21 DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE MOTION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE RELIEF MAY BE GRANTED WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE MOTION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE MOTION AT THE HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY. TO THE HONORABLE DAVID JONES, CHIEF UNITED STATES BANKRUPTCY JUDGE: MOTION FOR SANCTIONS AND OTHER RELIEF Page 1

2 Case Document 387 Filed in TXSB on 02/25/16 Page 2 of 5 COMES NOW the Ad Hoc Committee of Creditors of Apache Energy Services, Inc. (the Ad Hoc Committee ), consisting of creditors One Flow Energy Services, LLC, Black Gold Energy LLC, Fields Water services, LLC, Brent Mulliniks and Billy Cox, and file this EXPEDITED MOTION FOR SANCTIONS, OR, IN THE ALTERNATIVE, TO CONTINUE HEARING, COMPEL A RETURN TO MEDIATION AND EXTEND THE CHALLENGE DEADLINE, and for cause would respectfully show. 1. This Court has ordered mediation. 2. Everyone appeared at the mediation with multiple clients, except for the DIP Lenders, McLarty Capital Partners SBIC, L.P. and Heartland Bank. The DIP Lenders sent an law associate, who had no or limited authority to settle. This constitutes bad faith mediation practices and is a slap in the face to a busy judge (Judge Isgur), who took the time to mediate this case. 3. The mediation process has been frustrated by the arrogant behavior of the DIP Lenders and their New York lawyers. 4. Sanctions should be granted, at least in favor of the Ad Hoc Committee, whose undersigned attorney spent nine hours in a mediation where the principal adversary, for all intents and purposes, was absent. 5. Judge Isgur has indicated that he has Monday open, but that is the day this Court set the final hearing on the various motions of the MOTION FOR SANCTIONS AND OTHER RELIEF Page 2

3 Case Document 387 Filed in TXSB on 02/25/16 Page 3 of 5 Ad Hoc Committee. 6. Movant requests that the Court order the DIP Lenders immediately pay the undersigned counsel $4,050 (9 x $450 p/h) for the failed and useless day of mediation. 7. Movant requests that the Court compel the DIP Lenders, through a principal with settlement authority, and their counsel, to appear before Judge Isgur at 9:30 am on Monday, February 29, 2016, and attend a full day of mediation. 8. In the alternative, as a sanction, Movant requests that the Court strike the DIP Lenders defenses to the Ad Hoc Committee s motions and grant same. 9. If the Court grants the former relief, and the mediation is unsuccessful, Movants request that the Court commence the hearing on the Ad Hoc Committee s motions on the spill-over day, March 1, 2016, or at such other time that is convenient for the Court. 10. On October 14, 2015, the Court entered the following order: Final Order Approving the Debtors Emergency Motion for Entry of Interim and Final Orders (A) Authorizing Postpetition Financing; (B) Authorizing Use of Cash Collateral; and (C) Granting Adequate Protection to the DIP Lenders (the Order Authorizing Post-Petition Financing ) (ECF Doc 149). In paragraph 7, page 15, the Order Authorizing Post-Petition Financing provided that any proceeding to object to or challenge any claims, security interests, or liens of the Prepetition MOTION FOR SANCTIONS AND OTHER RELIEF Page 3

4 Case Document 387 Filed in TXSB on 02/25/16 Page 4 of 5 Lenders or Prepetition Agent shall be commenced no later than ninety (90) days after the Petition Date (the Challenge Deadline ). The Challenge Deadline has been extended to the conclusion of the hearing scheduled for the 29 th of February Movant requests that the Challenge Deadline continue to be extended until such time as the Court re-sets the hearing on the motions of the Ad Hoc Committee and concludes the hearing on said motions. 11. Movant requests such other and further relief as is just. Respectfully submitted this 25 th day of February, 2016, /s/ /s/leonard H. Simon Leonard H. Simon, Esq. TBN: ; SDOT: 8200 The Riviana Building 2777 Allen Parkway, Suite 800 Houston, Texas (713) (Direct) (832) (Direct Fax) lsimon@pendergraftsimon.com ATTORNEY IN CHARGE FOR THE AD HOC COMMITTEE OF COUNSEL: PENDERGRAFT & SIMON The Riviana Building 2777 Allen Parkway, Suite 800 Houston, Texas (713) (Main) (713) (Main Fax) MOTION FOR SANCTIONS AND OTHER RELIEF Page 4

5 Case Document 387 Filed in TXSB on 02/25/16 Page 5 of 5 CERTIFICATE OF SERVICE The undersigned, an attorney, hereby certifies that a true and correct copy of the above and foregoing was served on the this 25 th day of February, 2016, by the electronic case filing system. /s/ Leonard H. Simon MOTION FOR SANCTIONS AND OTHER RELIEF Page 5

6 Case Document Filed in TXSB on 02/25/16 Page 1 of 2 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION In re: HII TECHNOLOGIES, INC. et al, Debtors. Chapter 11 Case No (Jointly Administered) ORDER GRANTING EXPEDITED MOTION FOR SANCTIONS, OR, IN THE ALTERNATIVE, TO CONTINUE HEARING, COMPEL A RETURN TO MEDIATION AND EXTEND THE CHALLENGE DEADLINE CAME BEFORE THIS COURT the Ad Hoc Committee of Creditors of Apache Energy Services, Inc. (the Ad Hoc Committee ) sisting of creditors One Flow Energy Services, LLC, Black Gold Energy LLC, Fields Water services, LLC, Brent Mulliniks and Billy Cox, and file this EXPEDITED MOTION FOR SANCTIONS, OR, IN THE ALTERNATIVE, TO CONTINUE HEARING, COMPEL A RETURN TO MEDIATION AND EXTEND THE CHALLENGE DEADLINE. Having considered the Motion, and for good cause shown, it is ORDERED:. 1. The DIP Lenders immediately shall pay Leonard H. Simon $4,050 (9 x $450 p/h) for the failed and useless day of mediation. 2. DIP Lenders, through a principal with settlement authority, and their counsel, shall appear before Judge Isgur at 9:30 am on Monday, February 29, 2016, and attend a full day of mediation. ORDER GRANTING MOTION FOR SANCTIONS AND OTHER RELIEF Page 1

7 Case Document Filed in TXSB on 02/25/16 Page 2 of 2 3. If the DIP Lenders do not comply with the two decretal paragraphs above, the Court will strike the DIP Lenders defenses to the Ad Hoc Committee s motions and grant same. 4. If the mediation is unsuccessful, the Court shall commence the hearing on the Ad Hoc Committee s motions on. 5. The Challenge Deadline shall continue to be extended until such time as the Court re-sets the hearing on the motions of the Ad Hoc Committee and concludes the hearing on said motions. Signed this day of February, 2016, HONORABLE DAVID R. JONES, CHIEF U.S. BANKRUPTCY JUDGE ORDER GRANTING MOTION FOR SANCTIONS AND OTHER RELIEF Page 2