Case PJW Doc 733 Filed 07/23/13 Page 1 of 19

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1 Case PJW Doc 733 Filed 07/23/13 Page 1 of 19 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE X In re: : : Chapter 11 PENSON WORLDWIDE, INC., et al., : : Case No (PJW) Debtors: : : (Jointly Administered) X MOTION OF SLAWOMIR WISNIEWSKI TO DEEM LATE PROOF OF CLAIM AS TIMELY FILED Slawomir Wisniewski ( Mr. Wisniewski ), by his undersigned attorneys, brings this Motion (the Motion ) for an order deeming his proof of claim as timely filed. In support of the Motion, Mr. Wisniewski respectfully states as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. 157 and Venue is proper in this Court pursuant to 28 U.S.C and This is a core proceeding under 28 U.S.C. 157(b)(2)(O). The bases for the relief requested herein are Bankruptcy Code 105 and Bankruptcy Rules 3003(c)(3) and 9006(b). A. The Bankruptcy Filing BACKGROUND 2. On January 11, 2013 (the Petition Date ), Debtors Penson Worldwide, Inc., SAI Holdings, Inc., Penson Financial Service, Inc. ( PFSI ), Penson Holdings, Inc., Penson Execution Services, Inc., Nexa Technologies, Inc., GHP1, Inc., GHP2, LLC and Penson Futures (collectively, the Debtors ) filed their voluntary petitions for relief under chapter 11 of the Bankruptcy Code in this Court (the Chapter 11 Cases ). On January 15, 2013, the Court entered an order jointly administering these cases. { }

2 Case PJW Doc 733 Filed 07/23/13 Page 2 of On January 14, 2013, the Debtors filed their Joint Liquidation Plan of Penson Worldwide, Inc. and its Affiliated Debtors (the Plan of Liquidation ). [Dkt. No. 2]. The Plan of Liquidation had been negotiated pre-petition with the Debtors note holders. 4. On January 22, 2013, the Debtors filed their Motion for Order Establishing Bar Dates for Filing Prepetition Proofs of Claim, Including Section 503(b)(9) Claims, and Approving the Form and Manner of Notice Thereof (the Bar Date Motion ) [Dkt No. 68]. 5. On February 7, 2013, the Court entered the Order Establishing Bar Dates for Filing Prepetition Proofs of Claim, Including Section 503(b)(9) Claims, and Approving the Form and Manner of Notice Thereof [Dkt. No. 144] (the Bar Date Order ). 6. The Bar Date Order established the deadline for all persons and entities except governmental units, holding or wishing to assert a claims arising prior to the Petition Date, including Section 503(b)(9) Claims, against the Debtors as the date which is 30 days after the Service Date, the date upon which the Debtors commence service of the Bar Date Notice (the General Bar Date ). 7. The Bar Date Motion explained that on the date the Debtors commence service of the Bar Date Notice Package, the Debtors would file on the docket a copy of the Bar Date Notice that specifies the actual date of the General Bar Date. 8. On February 8, 2013, the Debtors filed a copy of the Bar Date Notice stating that March 11, 2013, was the actual date of the General Bar Date. (Dkt. 178). 9. On February 13, 2013, the Debtors published notice of the General Bar Date in The New York Times. [Dkt. No. 188]. The Debtors did not provide for any other publication notice of the General Bar Date. { }

3 Case PJW Doc 733 Filed 07/23/13 Page 3 of Because Section 502(b)(9) of the Bankruptcy Rules provides, in relevant part, that [a] claim of a governmental unit shall be timely filed if it is filed before 180 days after the Petition Date, the Court approved July 10, 2013 as the deadline for all governmental units to file pre-petition claims (the Governmental Bar Date ). 11. Confirmation of the Plan of Liquidation is currently scheduled for July 31, B. Mr. Wisniewski s Claim and Discovery of the Fraud in January of Roman Sledziejowski ( Sledziejowski ) is the former principal of TWS Financial, LLC ( TWS ), the broker-dealer that Mr. Wisniewski engaged to hold his securities. Sledziejowski speaks Polish and English and traveled to Poland to obtain Mr. Wisniewski s business and trust. 1 Proof of Claim 3, In or about March of 2007, based on Sledziejowski s recommendation, Mr. Wisniewski transferred 212,500 shares of Central European Distribution Corporation stock (the CEDC Stock ) from an account at Wachovia Securities, LLC to PFSI Account Number (the Primary Account ). The Primary Account was opened by Sledziejowski and TWS in Mr. Wisniewski s name to hold Mr. Wisniewski s CEDC Stock. Sledziejowski also caused TWS to open Mr. Wisniewski s PFSI Account number as a supplementary account linked to a debit card (the Supplementary Account ). A third account, of which Mr. Wisniewski was not aware and did not authorize to be opened, was also created by TWS at PFSI on behalf of Mr. Wisniewski (the Third Account ). TWS used PFSI as its clearing agent with regard to these accounts. In or about June of 2012, PFSI sold its clearing business to Apex Clearing Corporation ( Apex ). Proof of Claim 3, 5. 1 The facts are set forth more fully in Mr. Wisniewski s Proof of Claim attached hereto as Exhibit 1 (the Proof of Claim ) and the Declaration of Slawomir Wisniewski executed on July 19, 2013 attached hereto as Exhibit 2 (the Wisniewski Decl. ) { }

4 Case PJW Doc 733 Filed 07/23/13 Page 4 of Between 2007 and 2010, Sledziejowski personally delivered falsified TWS account statements for the Primary Account to Mr. Wisniewski during in-person meetings in Poland, at which Sledziejowski represented to Mr. Wisniewski that these were true and accurate statements. Mr. Wisniewski relied on these representations, and did not know them to be untrue. These statements showed that the Primary Account still contained the CEDC Stock. Sledziejowski undertook extensive efforts to prevent Mr. Wisniewski from discovering the fraud. See Proof of Claim PFSI sent statements for the Supplementary Account directly to Mr. Wisniewski. 15. Mr. Wisniewski had repeated discussions with Sledziejowski regarding Mr. Wisniewski s desire to sell the CEDC Stock that he believed PFSI still held in his Primary Account. However, Sledziejowski persuaded Mr. Wisniewski not to sell the CEDC Stock until CEDC had released further financial results. Sledziejowski further convinced Mr. Wisniewski that rather than sell his CEDC Stock immediately, he should wait and purchase put options, which he could later exercise. Id. 16. During this period, Mr. Wisniewski did not receive account statements from PFSI for his Primary Account. PFSI was, however, aware of and in possession of Mr. Wisniewski s correct address in Torun, Poland (the Torun, Poland Address ), because PFSI sent Mr. Wisniewski account statements for the Supplementary Account directly to the Torun, Poland Address. In addition, PFSI s tax department sent W-8 forms to Mr. Wisniewski at the Torun, Poland Address to confirm Mr. Wisniewski s foreign status. PFSI, however, did not send any statements for the Primary Account or the Third Account to Mr. Wisniewski. Proof of Claim 12. { }

5 Case PJW Doc 733 Filed 07/23/13 Page 5 of In January of 2013, the Debtors were commencing their chapter 11 cases and finalizing their proposed Plan of Liquidation. Mr. Wisniewski was not aware of these events because he is a Polish citizen and resident of Torun, Poland who does not have any residence in or reason to visit the United States regularly. Wisniewski Decl. 1, In fact, it was only on January 3, 2013, that Mr. Wisniewski discovered that a significant portion of his life savings had been stolen pursuant to a scheme orchestrated by Sledziejowski, TWS, and others. Wisniewski Decl Unbeknownst to Mr. Wisniewski, Sledziejowski sold Mr. Wisniewski s CEDC Stock, and PSFI sent the proceeds to a destination still unknown to Mr. Wisniewski. Sledziejowski had sold all of the CEDC Stock by October of 2008 for approximately $5,688, without the authorization of or notice to Mr. Wisniewski. Thereafter, as set forth in the Proof of Claim, Sledziejowski, TWS, and others engaged in an extensive fraud to prevent Mr. Wisniewski from discovering the theft. Proof of Claim 14, In or about January of 2013, after not being able to communicate with Sledziejowski since October 2012, despite repeated attempts, Mr. Wisniewski requested that Apex advise him of the status of his PFSI Account. On January 3, 2013, Apex informed Mr. Wisniewski in writing that all of his CEDC Stock had been sold by October of 2008, and that proceeds had been taken from the Primary Account. It was only then that Mr. Wisniewski realized that his investment had been stolen. Wisniewski Decl. 6. Because PFSI had sold its clearing business to Apex in June of 2012, Mr. Wisniewski s calls to Apex did not alert him to PFSI s chapter 11 case. 21. Mr. Wisniewski s net loss is approximately $3,992, Proof of Claim 40. { }

6 Case PJW Doc 733 Filed 07/23/13 Page 6 of Mr. Wisniewski only speaks very limited English. In January of 2013 he came to the realization that he had lost a significant portion of his savings. Mr. Wisniewski faced the daunting prospect of pursuing wrongdoers in the United States under a legal system that was foreign to him. 23. Mr. Wisniewski acted promptly in locating counsel in the United States. This task was made all the more difficult because Mr. Wisniewski did not have the funds to pay the ongoing fees of counsel. Nonetheless, on May 31, 2013, Mr. Wisniewski retained counsel in the United States counsel on a contingency basis to pursue his claims against Sledziejowski, TWS, and others. He and his counsel began to investigate the facts and what claims Mr. Wisniewski could pursue. Mr. Wisniewski can only communicate with his U.S. counsel through a translator. Wisniewski Decl Mr. Wisniewski did not learn about PFSI s bankruptcy until on or about May 23, 2013, and did not mention it to counsel until approximately 2 to 3 weeks after retaining counsel at the end of May. Upon obtaining a full account of the facts, counsel concluded that Mr. Wisniewski possessed a claim against PFSI. Wisniewski Decl. 12. C. Mr. Wisniewski s Proof of Claim Against the Debtor, PFSI 25. As set forth in his Proof of Claim, Mr. Wisniewski holds a claim against PFSI because PFSI breached its obligations to Mr. Wisniewski, which failures, include, but are not limited to (i) PFSI s failure to mail monthly and/or quarterly account statements for either the Primary Account or the Third Account to Mr. Wisniewski to the Torun, Poland Address; (ii) the failure to execute transactions in accordance with Mr. Wisniewski s instructions; (iii) the failure to hold Mr. Wisniewski s securities and cash or assets in an account owned by Mr. Wisniewski; and (iv) failure to obtain Mr. Wisniewski s authorization to distribute assets in Mr. Wisniewski s { }

7 Case PJW Doc 733 Filed 07/23/13 Page 7 of 19 account to third parties. Accordingly, Mr. Wisniewski has claims against PFSI for breach of contract, conversion, breach of contract and conversion as bailee, all as set forth with more particularity in the Proof of Claim. By reason of the foregoing, Mr. Wisniewski has been damaged by PFSI in the amount of not less than $3,992, (the Claim ). D. The Debtors Were Aware of Sledziejowski s and TWS Fraud prior to the Petition Date 26. On or about November 28, 2012, FINRA commenced Disciplinary Proceeding No against Sledziejowski (the FINRA Proceeding ). The Debtors were aware of the FINRA Proceeding prior to the Petition Date. See the Debtors Objection to the Motion by Andreszewski to Allow Claim Because Claimant Was a Known Creditor Who Was not Served With Notice of the Bar Date or, Alternatively, to Allow a Late Filed Proof of Claim at 14. [Dkt. No. 669]. Accordingly, the Debtors were aware that TWS and Sledziejowski had defrauded their clients who were Polish citizens. 27. Additionally, PFSI was made aware of a FINRA claim asserted against PFSI by one of Sledziejowski s former clients prior to the General Bar Date. See Motion to Allow Claim Because Adamba Was a Known Creditor Who Was Not Served With Notice of the Bar Date or, Alternatively, to Allow a Late Filed Proof of Claim. [Dkt. No. 580]. E. Sledziejowski s Victims Are a Small Group of Creditors 28. On January 15, 2013, Sledziewjowski filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the SDNY Bankr. Court ). See Declaration of Dallas L. Albaugh, Esq. executed on July 23, 2013, and attached hereto as Exhibit 3 ( Albaugh Decl. ). 29. The deadline to object to Sledziewjowski s discharge or the dischargeability of certain debts was April 8, Albaugh Decl, Ex. A, Dkt. No. 5. On or about April 8, 2013, a { }

8 Case PJW Doc 733 Filed 07/23/13 Page 8 of 19 small group of Sledziejowski s creditors commenced dischargeability actions against Sledziejowski: Apex, Andrzej Abraszewski, Adamba Imports International, Inc., Adam Bak, Concentpol Limited, Jerzy Mendelka, NDV Investment Company, JM Property SP z.o.o. Sp.K., and Ryna Capital Inc. (collectively, the Initial Group of Sledziejowski Creditors ). 2 Albaugh Decl, Ex. A, Dkt. Nos ). 30. On April 15, 2013, the SDNY Bankr. Court entered an Order converting Sledziejowski s case to a case under chapter 7 of the Bankruptcy Code. Albaugh Decl, Ex. A, Dkt. No Conversion of the case to chapter 7 resulted in the establishment of July 15, 2013, as the new deadline to object to Sledziejowski s discharge or to the dischargeability of certain debts. Albaugh Decl, Ex. A, Dkt. No In July of 2013, a smaller group of Sledziejowski s creditors commenced dischargeability actions against Sledziejowski: Aleksander Lesz, Natalia Lesz, GNA Societe Anonyme Holding, and Mr. Wisniewski (together with the First Group of Sledziejowski Creditors, collectively, the Sledziejowski Creditors ). 3 Albaugh Decl, Ex. A, Dkt. Nos , Other than Apex, there are only 12 Sledziejowski creditors comprising the small group of fraud victims. That number is smaller because certain of the Sledziejowski Creditors are affiliates or family members. In other words, there are only 6 Sledziewjowski Creditors when family groups and affiliates are grouped together. Each of the Sledziejowski Creditors has now filed a claim against the Debtors or otherwise appeared in the Debtors chapter 11 cases. 2 Adam Bak is the sole owner of Adamba Imports International, Inc. and Concentpol Limited. Jerzy Mendelka is the sole owner of NDV Investment Company, JM Property SP z.o.o. Sp.K., and Ryna Capital Inc. 3 Aleksander Lesz is the sole owner of GNA Societe Anonyme Holding, and Aleksander Lesz is related to Natalia Lesz. { }

9 Case PJW Doc 733 Filed 07/23/13 Page 9 of 19 RELIEF REQUESTED 34. Mr. Wisniewski respectfully requests the entry of an order deeming the Proof of Claim to be timely filed. ARGUMENT A. Mr. Wisniewski s Proof of Claim Should be Deemed Timely Filed Based on Excusable Neglect. 35. Bankruptcy Rules 3003(c)(3) and 9006(b)(1) govern extensions of time, and those rules provide, in relevant part, [t]he court shall fix and for cause shown may extend the time within which proofs of claim may be filed. Fed. R. Bankr. P. 3003(c)(3). Bankruptcy Rule 9006(b)(1) provides that a bankruptcy court in its discretion may accept a late-filed proof of claim where a claimant establishes that its failure to adhere to the Bar Date is attributable to excusable neglect. Specifically, Rule 9006(b) states, in pertinent part, that: [W]hen an act is required or allowed to be done at or within a specified period by these rules or by notice given thereunder or by order of the court, the court for cause shown may at any time in its discretion... on motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. FED. R. BANKR. P. 9006(b). 36. The claims of creditors who do not have actual notice of the bar date may be deemed timely under the excusable neglect standard. In re New Century TRS Holdings, Inc., 465 B.R. 38, 50 (Bankr. D. Del. 2012) 37. The United States Supreme Court has articulated the standard for excusable neglect for allowing a proof of claim to be filed after the claims bar date explaining that a court s determination of whether the neglect is excusable should be an equitable one, whereby a court should take[e] account of all relevant circumstances surrounding the party s omission. Pioneer Inv. Serv. s Co. v. Brunswick Assoc. Ltd. P ship, 507 U.S. 380, 395 (1993) (hereinafter, { }

10 Case PJW Doc 733 Filed 07/23/13 Page 10 of 19 Pioneer ). The circumstances courts should consider include: (i) the danger of prejudice to the debtor; (ii) the length of delay and its potential impact on judicial proceedings; (iii) the reason for the delay, including whether it was within the reasonable control of the movant; and (iv) whether movant acted in good faith. Id. 38. Not all of the factors need to weigh in favor of the moving party for a bankruptcy court to grant relief. See In re Enron Corp., No (AJG), 2003 WL at * 4 (Bankr. S.D.N.Y. 2003)(granting the relief requested even though the court found against the movant as to the reason for the delay). The decision whether to grant the requested relief rests within the Court s discretion. See Midland Cogeneration Venture L.P. v. Enron Corp. (In re Enron Corp.), 419 F.3d 115, 125 (2d Cir. 1995)( the discretion of the bankruptcy court to allow or disallow late-filed claims is well-established ); In re Cable & Wireless USA, Inc., 338 B.R. 609, 614 (Bankr. D. Del. 2006)( The determination of excusable neglect is at the discretion of the bankruptcy court. ). 39. Moreover, the decisions of the Court of Appeals for the Third Circuit applying Pioneer repeatedly stress the equitable nature of its inquiry. The determination of whether a party s neglect of a date is excusable is essentially an equitable one, in which courts are to take into account all relevant circumstances surrounding a party s failure to file. Chemetron Corp. v. Jones, 72 F.3d 341, 349 (3d Cir. 1995)(citing Pioneer and then applying the four Pioneer factors). See also In re American Classic Voyages Co., 405 F.3d 127, 133 (3d Cir. 2005)(same); In re O Brien Envtl. Energy, Inc., 188 F.3d 116, 125 (3d Cir. 1999) (quoting Pioneer for the conclusion that determining whether neglect is excusable is an equitable determination that take[es] account of all relevant circumstances surrounding the party s omission and then applying the four Pioneer factors); George Harms Construc. Co. v. Chao, { }

11 Case PJW Doc 733 Filed 07/23/13 Page 11 of F.3d 156, 164 (3d Cir. 2004)( Under Pioneer, a court must take into account all relevant circumstances surrounding a party s failure to file, and then applying the four Pioneer factors.). 40. The Third Circuit instructs lower courts to consider not a single circumstance by the totality of the circumstances presented in determining excusable neglect. See Chemetron Corp., 72 F.3d at 350 (faulting the district court for failing to undertake a comprehensive analysis of how the claimants late filing would prejudice the debtor, and for failing to consider the role that the debtor might have played in contributing to the delay). As such, the Third Circuit imposes a duty of explanation on bankruptcy courts to analyze all of the Pioneer factors comprising excusable neglect. See In re Orthopedic Bone Screw Prods. Liab. Litig., 246 F.3d 315, (3d Cir. 2001)(imposing a duty of explanation in conducting an excusable neglect analysis); In re Cendent Corp. PRIDES Litig., 235 F.3d 176, 182 (3d Cir. 2000)(finding insufficient the district court s determination that a creditor s explanation for its late filing was not worthy of the Court s consideration ). 41. In this case, the equities and each of the Pioneer factors weigh decidedly in favor of Mr. Wisniewski, a foreign creditor who did not receive actual notice of the General Bar Date. (i) Deeming the Proof of Claim as Timely Filed Will Not Prejudice the Debtors. 42. Although the Pioneer court did not define prejudice, the Third Circuit has enumerated the following factors to be considered when examining the prejudice element of the Pioneer test: (i) the size of the late claim with respect to the rest of the estate; (ii) whether allowing the late claim would have an adverse impact on judicial administration of the case; (iii) whether the plan was filed or confirmed with knowledge of the existence of the claim; (iv) the disruptive effect that the late filing would have on the plan or upon the economic model upon which the plan was based; and (v) whether allowing the claim would open the floodgates of other { }

12 Case PJW Doc 733 Filed 07/23/13 Page 12 of 19 similar claims. Manus Corp. v. NRG Energy, Inc. (In re O Brien Envtl. Energy, Inc.), 188 F.3d 116, 126 (3 rd Cir. 1999) (citing In re Keene Corp., 188 B.R. 903, (Bankr. S.D.N.Y. 1995)). 43. Mr. Wisniewski s Claim is not large when compared to the liabilities that the Debtors Plan of Liquidation was negotiated to resolve hundreds of millions of dollars of bond indebtedness owed to the Debtors note holders. The Debtors cases were commenced to effectuate a consensual wind-down of the Debtors businesses with the Debtors noteholders pursuant to January 10, 2013 restructuring support agreement that was negotiated pre-petition. See Declaration of Bruce B. Engel in Support of Chapter 11 Petition and Requests for First Day Relief at 62. [Dkt. No. 2]. The Debtors agreement with their noteholders contemplated that the Plan of Liquidation would be filed contemporaneously with the Petition Date. Id. In fact, the Plan of Liquidation was filed within three days of the Petition Date, and the Debtors contemplated a quick confirmation regardless of unliquidated litigation claims. [Dkt. No. 25]. Thus, Mr. Wisniewski s Claim is not large when compared with the liabilities that the Debtors Plan of Liquidation was negotiated to address. 44. For the same reasons, deeming Mr. Wisniewski s Proof of Claim timely would not have an adverse impact on judicial administration of these cases. The Plan of Liquidation has not yet been approved by this Court. The Proof of Claim is a General Unsecured Claim under the Plan of Liquidation. General Unsecured Claims will receive pro rata distributions from a predetermined pool of assets. Allowing the claim will not disrupt the Plan of Liquidation process or affect the economic model upon which the Plan of Liquidation is based. No revisions will have to be made to the Plan of Liquidation on account of the Proof of Claim. Mr. Wisniewsi { }

13 Case PJW Doc 733 Filed 07/23/13 Page 13 of 19 is not seeking to modify or object to the Plan of Liquidation. He supports the Plan of Liquidation and only seeks to share in the pool of assets reserved for similarly situated creditors. 45. Moreover, the Debtors have affirmatively sought to defer liquidation of litigation claims until after confirmation. The Debtors have repeatedly informed the Court and parties in interest that they were parties to 38 litigation matters, including 15 FINRA Arbitration Claims, as of the Petition Date. See, e.g., The Debtors Objection ( Grace Objection ) to the Motion of Grace Financial Group, LLC for Relief from the Automatic Stay Pursuant to Section 362(d) of the Bankruptcy Code [Dkt. No. 458]. In the Grace Objection, the Debtors states that it would be inequitable for the Debtors to be required to divert their limited resources from the Plan confirmation process to the liquidation of FINRA claims and other litigation claims. The Debtors requested that the liquidation of litigation claims be deferred until after confirmation. 46. Thus, the record in these cases clearly demonstrates that deeming Mr. Wisniewski s Proof of Claim as timely filed would not prejudice the Debtors. It would not have an adverse impact on judicial administration of the cases because the Debtors specifically deferred liquidation of FINRA and other litigation claims until after confirmation of the Plan and the effective date of the Plan of Liquidation. The Plan of Liquidation was filed before the General Bar Date evidencing that the existence of additional litigation claims would not prejudice the Debtors, and the Proof of Claim has been filed before confirmation. 47. Finally, deeming Mr. Wisniewski s Proof of Claim as timely filed will not have a disruptive effect on the Plan of Liquidation or upon the economic model upon which the Plan was based. The opposite is true. Throughout these cases, each time a creditor has filed a stay relief motion to proceed with a FINRA Arbitration, the Debtors have contended that they would { }

14 Case PJW Doc 733 Filed 07/23/13 Page 14 of 19 be prejudiced if creditors were able to liquidate their claims prior to confirmation. For example, the Debtors have stated in response to FINRA claimants stay relief motions: Diversions such as these could delay the solicitation, confirmation and consummation of the plan, a result detrimental to all creditors and these estates. Debtors Grace Objection at Page 7. Debtors are merely seeking this Court s recognition that the claim is better dealt with after the Plan goes effective. At that time, PFSI (or its successor under the Plan) can focus on the Unliquidated Claims and evaluate them through a collective, fair and streamlined process, including through the ADR Process (if implemented). There will be ample time and minimal further delay if the Movant liquidates its claims during the claims reconciliation process after the plan is confirmed. Debtors Grace Objection at Page Based upon the foregoing, it clear that allowing Mr. Wisniewski s Proof of Claim will not add uncertainty or disruption to the confirmation proceedings, a position which is consistent with contentions of the Debtor in these proceedings. There is thus no prejudice to the Debtors. See, e.g., In re New Century TRS Holdings, Inc., 465 B.R. at 52 (noting that a delay of two months may be significant if the debtor proceeds expeditiously to resolve outstanding claims, while a much longer delay may seem less important when the debtor allows itself more time between confirmation and closing under the plan ); In re Inacom Corp., No (PJW), 2004 WL , at *6 (D. Del. Oct. 4, 2004) (delay of nine months after plan confirmation was not significant when the debtor was still litigating disputed claims and distributions to creditor would be based upon the debtor s progress in resolving claims); In re Garden Ridge Corp., 348 B.R. 642, 646 (Bankr. D. Del. 2006) (late claim had minimal impact on judicial proceedings when the Committee was in the midst of bringing their claims objections (e.g., late filed, amended, and duplicate) and a distribution is not expected for some time. ). { }

15 Case PJW Doc 733 Filed 07/23/13 Page 15 of Moreover, for these reasons the Proof of Claim will not require any special or further mailing of Plan solicitation materials. These facts alone support a finding of excusable neglect. CIT Group, Inc. v. McKissick (In re McKissick), 298 B.R. 535, 540 (Bankr. W.D. Pa. 2003) (finding excusable neglect where the delay did not impair balloting on a proposed plan or the disclosure statement and/or confirmation process. ). 50. A further reason why there is no prejudice to the Debtors is that they are winding down their businesses and pursuing a Plan of Liquidation. A creditor trust will be responsible for administering remaining assets and determining the allowance of claims. Thus, there is no interest of a debtor or reorganization that will be imperiled. In re Premier Membership Services, LLC, 276 B.R. 709, 714 (Bankr. S.D. Fla. 2002)(noting that there is very little danger of prejudice to a debtor with a liquidating plan as a result of permitting a late claims); In re Sacred Heart Hospital of Norristown, 186 B.R. 891, 897 (Bankr. E.D. Pa. 1995)(holding that no prejudice to the debtor would result from allowing creditor s late claim given that the debtor was a closed hospital that had filed a liquidating plan). (ii) Deeming the Proof of Claim as Timely Filed will not Open the Floodgates. 51. The Debtors cannot demonstrate that deeming Mr. Wisniewski s Proof of Claim as timely filed will open the floodgates to additional late claimants. The record is to the contrary. The Debtors primary indebtedness is to its note holders. That is the reason that there are only approximately 300 proofs of claim filed in these cases when there is hundreds of millions of dollars of indebtedness. Moreover, this is not a mass tort case where hundreds or thousands of late claims could potentially be on the horizon. The Debtor was a party to only 38 litigations as of the Petition Date. That number alone demonstrates that there is not a sea of late claimants waiting in the wings. The record reflects that only three creditors have filed motions { }

16 Case PJW Doc 733 Filed 07/23/13 Page 16 of 19 to deem their late claims as timely filed, including Mr. Wisniewski. The three movants are all victims of Sledziejowski. As set forth above, Sledziejowski s bankruptcy case has been pending since January of Only thirteen Sledziejowski Creditors (which group includes Apex as well as groups of affiliates and relatives) filed dischargeability complaints against Sledziejowski, and the deadline to commence those actions has passed. Each of the Sledziejowski Creditors has now filed a proof of claim against the Debtors. Thus, there is no evidence that granting this Motion will open a floodgate to additional Sledziejowski victims. (iii) The Length of the Delay is Insignificant 52. The Claim is being asserted on July 23, 2013, approximately four months after the General Bar Date. See, e.g., Greyhounds Lines, Inc. v. Rogers (In re Eagle Bus Mfg., Inc.), 62 F.3d 730, 740 (5 th Cir. 1995) (finding excusable neglect where delay was six to eight months). 53. Because the Plan has not yet been considered by this Court, and as set forth in detail above, the delay is not significant both under applicable case law and the procedural posture of these cases. Finally, the Debtors set July 10, 2013 as the Governmental Bar Date. This is further evidence that the length of delay is insignificant. (iv) The Delay Resulted from Claimant not Receiving the Bar Date Notice 54. Mr. Wisniewski did not receive notice of the General Bar Date. Although aware of Mr. Wisniewski s status as a former account holder and in possession of his Torun, Poland Address, the Debtors did not notify Mr. Wisniewski of the General Bar Date. The publication notice in The New York Times provided no notice to Mr. Wisniewski because he lives in Poland, and does not speak English fluently. See, e.g., New Pentex Film, Inc. v. Trans World Airlines, Inc., 936 F.Supp. 142, 151, n.1 (S.D.N.Y. 1996)(questioning adequacy of publication notice in The Wall Street Journal to litigant who resides in Italy and who did not have United States { }

17 Case PJW Doc 733 Filed 07/23/13 Page 17 of 19 counsel). Although the Debtors were aware of the FINRA Proceeding against Sledziejowski which outlined the fraud against Polish nationals, the Debtors did not provide actual notice of the General Bar Date to Mr. Wisniewski, a Sledziejowski victim. Nonetheless, the Debtors cannot claim to be surprised by Mr. Wisniewski s Proof of Claim given their involvement with the FINRA Proceeding. 55. Despite the lack of notice to Mr. Wisniewski, it is respectfully submitted that he acted promptly and diligently under the circumstances. In this respect we note that he is a victim of fraud, and ascertaining his claims was not a simple process. Mr. Wisniewski lives in Poland and did not have the funds to retain counsel in the United States nor did he have any contacts in the United States to assist him. His first step was locating counsel and negotiating a contingency arrangement. 56. The next step was an investigation of the fraud claims and all parties involved in the transactions. Not surprisingly, Mr. Wisniewski s initial focus was on Sledziejowski and TWS. It takes time to investigate fraud claims, and Mr. Wisniewski s task has been even more difficult because he must communicate with his counsel through a translator. He obtained information from Apex so Mr. Wisniewski had no reason to contact PFSI for account information. Finally, it took time to investigate the facts and law regarding Mr. Wisniewski s Claim against PFSI. Thus, under the circumstances, Mr. Wisniewski has acted promptly and diligently in asserting his Proof of Claim against PFSI. The delay was not within his control. (v) Claimant Acted in Good Faith 57. Mr. Wisniewski has at all times acted diligently and in good faith. Unfortunately, due to circumstance beyond his control, Mr. Wisniewski asserts his Claim against PFSI after the General Bar Date. Despite these facts and all of the hurdles that he faced, Mr. Wisniewski has { }

18 Case PJW Doc 733 Filed 07/23/13 Page 18 of 19 filed his Proof of Claim prior to confirmation and before any distributions have been made. He has proceeded promptly and in good faith. 58. Here, each of the Pioneer factors weighs decidedly in favor of deeming Mr. Wisniewski s assertion of his Proof of Claim as timely. Mr. Wisniewski is a resident of Poland without any actual notice of any of the proceedings in the United States that affected his rights. He nonetheless acted promptly to assert his rights, including filing his Proof of Claim against PFSI. The Debtors proposed to liquidate litigation claims only after the effective date of the Plan of Liquidation. Thus, had Mr. Wisniewski filed his Proof of Claim a few months earlier nothing would be different. There is no prejudice to the Debtors. Mr. Wisniewski, however, lost a significant portion of his savings. His investment is long gone. Sledziejowski and his companies have also filed bankruptcy cases, and the outcome of those cases is uncertain. If Mr. Wisniewski is prevented from pursuing his Proof of Claim against PFSI, it would be extremely prejudicial to Mr. Wisniewski. WHEREFORE, for the foregoing reasons, Claimant hereby respectfully requests that this Court enter an order allowing the Proof of Claim as late filed and granting such other and further relief as is just and proper. Dated: Wilmington, Delaware July 23, 2013 THE ROSNER LAW GROUP LLC /s/ Scott J. Leonhardt Scott J. Leonhardt (DE #4885) 824 Market Street, Suite 810 Wilmington, DE leonhardt@teamrosner.com -and- { }

19 Case PJW Doc 733 Filed 07/23/13 Page 19 of 19 GOLENBOCK EISEMAN ASSOR BELL & PESKOE LLP Jonathan L. Flaxer, Esq. Michael Devorkin, Esq. Dallas L. Albaugh, Esq. 437 Madison Avenue New York, New York Telephone: (212) Facsimile: (212) Counsel for Slawomir Wisniewski { }

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122 Case PJW Doc Filed 07/23/13 Page 1 of 3 Proposed Form of Order { } # v1

123 Case PJW Doc Filed 07/23/13 Page 2 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE X In re: : : Chapter 11 PENSON WORLDWIDE, INC., et al., : : Case No (PJW) Debtors: : : (Jointly Administered) X Re: Dkt. Nos. ORDER GRANTING MOTION OF SLAWOMIR WISNIESKI TO DEEM PROOF OF CLAIM AS TIMELY FILED Upon the motion, dated July 23, 2013 (the Motion ) 1, of Slawomir Wisniewski, by his counsel, for entry of an order deeming Slawomir Wisniewski s Proof of Claim as timely filed; and the Court having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C. 157 and 1334; and consideration of the Motion and the relief requested therein being a core proceeding pursuant to 28 U.S.C. 157(b)(2); and venue being proper pursuant to 28 U.S.C and 1409; and the Court having held a hearing to consider the requested relief (the Hearing ); and upon the record of the Hearing; and after due deliberation and sufficient cause appearing therefor, it is HEREBY ORDERED THAT: 1. The Motion is granted. 2. Slawomir Wisniewski s Proof of Claim, attached to the Motion as Exhibit A, is deemed timely filed and no party shall object to the Proof of Claim on the basis that it was tardily filed. 3. The Debtors are authorized and directed to add the Proof of Claim to the official claims registry in these cases and assign it a claim number. 1 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion. { } # v1

124 Case PJW Doc Filed 07/23/13 Page 3 of 3 4. This Court shall retain jurisdiction over any and all matters arising from the interpretation or implementation of this Order. Dated: Wilmington, Delaware August, 2013 UNITED STATES BANKRUPTCY JUDGE { }