Case KRH Doc 2696 Filed 06/15/16 Entered 06/15/16 12:20:39 Desc Main Document Page 1 of 6

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1 Document Page 1 of 6 Jonathan R. Wright (VSB #79827) Vivian Katsantonis (VSB #30448) WATT, TIEDER, HOFFAR & FITZGERALD, LLP 1765 Greensboro Station Place, Ste McLean, Virginia Tel: (703) Fax: (703) jwright@watttieder.com Counsel for Argonaut Insurance Company IN THE UNITED STATE BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA (Richmond Division) In re: Alpha Natural Resources, Inc., et al. Debtor. Chapter 11 Case No KRH (Jointly Administered) ARGO S MOTION TO EXPEDITE CONSIDERATION OF, AND SHORTEN THE NOTICE PERIOD APPLICABLE TO, ARGO S JOINDER TO SURETIES MOTION FOR ESTIMATION AND ALLOWANCE OF CLAIMS PURSUANT TO 11 U.S.C. 502(c) Argonaut Insurance Company a/k/a Argo Surety ( Argo ), a creditor and party-in-interest in the above-captioned case, by counsel and pursuant to Rule 9006 of the Federal Rules of Bankruptcy Procedure ( Bankruptcy Rules ), Rule (N) of the Court s Local Rules of Bankruptcy Procedure ( Local Rules ), the Court s Case Management Procedures [defined below] and 11 U.S.C. 105(a), hereby submits its Motion to Expedite Consideration of and Shorten the Notice Period ( Motion to Shorten Time ) Applicable to Argo s Joinder ( Joinder Motion ) to the Sureties 1 Motion for Estimation and Allowance of Claims Pursuant to 11 U.S.C. 502(c) [Dkt. No. 2614] ( Sureties Motion ). For the Motion to Shorten Time, Argo states as follows: 1 The Sureties are comprised of the following entities: Aspen American Insurance Company; Fidelity & Deposit Company of Maryland; Indemnity National Insurance Company; Travelers Casualty & Surety Company of America, and Zurich American Insurance Company. 1

2 Document Page 2 of 6 I. BACKGROUND 1. On August 3, 2015 ( Petition Date ), the Debtors commenced filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. The Debtors cases are being jointly administered pursuant to order of the Court [Dkt. No. 129]. The Debtors are continuing to operate their respective businesses as debtors-in-possession pursuant to Bankruptcy Code 1107(a) and On August 5, 2015, the Court entered the Order Establishing Certain Notice, Case Management and Administrative Procedures [Dkt. No. 111] in these chapter 11 cases approving certain case management and administrative procedures attached thereto as Schedule One (collectively, Case Management Procedures ). II. JURISDICTION 3. This Court has subject matter jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C and III. RELIEF REQUESTED 4. Argo seeks entry of an order, pursuant to Bankruptcy Rule 9006, Rule (N) of the Local Rules, the Case Management Procedures, and Section 105(a) of Title 11 of the United States Code ( Bankruptcy Code ): Expediting consideration of, and shortening the notice period applicable to, Argo s Joinder Motion so that the relief requested therein may be considered at the omnibus hearing schedule for the Court on June 28, 2016 at 10:00 a.m. (prevailing Eastern Time) ( June 28 th Hearing ). 2

3 Document Page 3 of 6 IV. BASIS FOR RELIEF 5. Bankruptcy Rule 9006(c)(1) provides that, when an act is required or allowed to be done at or within a specified time by these rules or by a notice given thereunder or by order of the court, the court for cause shown may in its discretion with or without motion or notice order the period reduced. Fed. R. Bankr. P. 9006(c)(1). 6. Local Rule (N) allows the setting of a hearing on an expedited basis as requested herein. In addition, Bankruptcy Code 105(a) provides that the Court, may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]. 11 U.S.C. 105(a). 7. Additionally, the Court s Case Management Procedures state: Nothing contained herein shall prejudice the rights of any party in interest to move the Court to further limit or expand notice of matters and proceedings upon a showing of good cause, including, but not limited to, the right to file a Request for Relief upon shortened notice, to seek expedited hearings, where appropriate, in accordance with Local Bankruptcy Rule (N) or to seek enlargement or reduction of time pursuant to Bankruptcy Rule By its Joinder Motion, Argo requests that the Court enter an order pursuant to Bankruptcy Code 502(c) estimating and allowing its claims for all purposes, including voting, allowance, and distribution of under the Plan prior to the deadline for Plan voting in the amounts set forth in Argo s Proofs of Claim. Argo has contingent and unliquidated claims, the liquidation of which would unduly delay the administration of the estate. 9. The language of Bankruptcy Code 502(c) mandates the estimation by the court if the claim is contingent or unliquidated and the fixing or liquidation of the claim would unduly delay the administration of the estate. In re Nova Real Estate Inv. Tr., 23 B.R. 62, 65 (Bankr. 3

4 Document Page 4 of 6 E.D. Va. 1982) ( This language is mandatory, not permissive, and creates in the Court an affirmative duty under proper circumstances to estimate any such unliquidated claim ). 10. Furthermore, Argo s Joinder Motion is in the best interests of the estate. To date, the Debtors have not lodged any objections to any of Argo s Proofs of Claim. Also, courts have recognized that the purposes of Section 502(c) s requirements is to provide the debtor the fresh start and preserve value for creditors. In re Choice ATM Enters., 2015 Bankr. LEXIS 689, at *17 (U.S. Bankr. N.D. Tex. Mar. 4, 2015)(citing In re Brints Cotton Mktg., Inc., 737 F.2d 1338, 1340 (5th Cir. 1984)). See also, The Manville Bankruptcy: Treating Mass Tort Claims in Chapter 11 Proceedings, 96 Harv. L. Rev at and (1983)( The new requirement that the court estimate all claims is one of many reforms in the Bankruptcy Code that are intended to implement the Code's broad policy of affording the debtor the most complete relief and the freshest start feasible by disposing of all possible claims during the bankruptcy proceeding. Congress wished to eliminate the possibility that after the completion of reorganization the debtor would still be faced with the uncertainty of contingent debts that could ruin the financial stability achieved in the reorganization proceedings. ). 11. Furthermore, courts have also recognized that the time needed to identify a claim with specificity may, run counter to the efficient administration of the bankrupt s estate and where there is sufficient evidence on which to base a reasonable estimate of the claim, the bankruptcy judge should determine the value. Bittner v. Borne Chem. Co., 691 F.2d 134, 135 (3d Cir. 1982). 12. Shortening the notice period with respect to Argo s Joinder Motion would also not prejudice parties in interest. To date, no parties have objected to the Sureties Motion, the motion upon which the Joinder Motion is based. Further, pursuant to the Debtors Notice of 4

5 Document Page 5 of 6 Debtors Determination of Certain Wholly Contingent and/or Disputed Claims Pursuant to Tabulation Rules [Dkt. No. 2638], permitted certain holders of with contingent and/or disputed claims to be temporarily allowed for purposes of voting on the Plan. Thus, Debtors have already consented to allow certain creditors with contingent claims to vote on the Plan. 13. For the foregoing reasons, and as further described in the Joinder Motion, Argo requests that the Court shorten the notice period and consider the relief requested therein at the June 28 th Hearing. No Prior Request 14. No prior request for the relief sought in this Motion to Shorten Time has been made by Argo to this Court in connection with the Bankruptcy Case. V. CERTIFICATION FOR EXPEDITED HEARING 15. In further support of the Motion to Shorten Time, and as required by Local Rule (N), undersigned counsel certifies as follows: (i) I am a member of the bar of this Court; (ii) I have carefully examined this matter and have concluded that there is a true need for an expedited hearing; and (iii) I have not created the emergency for a lack of due diligence; and (iv) I have made a bona fide effort to resolve the matter without a hearing. Dated: June 15, 2016 Respectfully submitted, WATT, TIEDER, HOFFAR & FITZGERALD, LLP /s/ Jonathan R. Wright Jonathan R. Wright (VSB #79827) Vivian Katsantonis (VSB #30448) 1765 Greensboro Station Place, Ste McLean, Virginia Tel: (703) Fax: (703) jwright@watttieder.com Counsel for Argonaut Insurance Company 5

6 Document Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on June 15, 2016, I caused a copy of the foregoing Motion to Expedite Consideration of, and Shorten the Notice Period Applicable to, Argo s Joinder to Sureties Motion for Estimation and Allowance of Claims Pursuant to 11 U.S.C. 502(c) to be served via the Court s electronic CM/ECF system to all counsel of record and parties in interest receiving electronic notice and via first class mail, postage prepaid, upon all parties on the Master Service List maintained by Kurtzman Carson Consultants LLC. /s/ Jonathan R. Wright Jonathan R. Wright 6

7 Case KRH Doc Filed 06/15/16 Entered 06/15/16 12:20:39 Desc Proposed Order Proposed Order Page 1 of 2 IN THE UNITED STATE BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF VIRGINIA (Richmond Division) In re: Alpha Natural Resources, Inc., et al. Debtor. Chapter 11 Case No KRH (Jointly Administered) ORDER GRANTING ARGO S MOTION TO EXPEDITE CONSIDERATION OF, AND SHORTEN THE NOTICE PERIOD APPLICABLE TO, ARGO S JOINDER TO SURETIES MOTION FOR ESTIMATION AND ALLOWANCE OF CLAIMS PURSUANT TO 11 U.S.C. 502(c) This matter coming before the Court on Argonaut Insurance Company s a/k/a Argo Surety ( Argo ), Motion to Expedite Consideration of and Shorten the Notice Period ( Motion to Shorten Time ) Applicable to Argo s Joinder ( Joinder Motion ) to the Sureties 1 Motion for Estimation and Allowance of Claims Pursuant to 11 U.S.C. 502(c) [Dkt. No. 2614] ( Sureties Motion ), the Court having reviewed Argo s Joiner Motion and Motion to Shorten Time and the statements of counsel with respect to the motions and finding that the Court has jurisdiction over this matter, service of the motions was proper, that the relief requested is appropriate, its hereby: ORDERED, that the Motion to Shorten Time is GRANTED; and it is further ORDERED, that the relief requested in the Joinder Motion shall be heard at the hearing scheduled for June 28, 2016 at 10:00 a.m. (prevailing Eastern Time). SO ORDERED. Dated:. Hon. Kevin R. Huennekens, United States Bankruptcy Judge 1 The Sureties are comprised of the following entities: Aspen American Insurance Company; Fidelity & Deposit Company of Maryland; Indemnity National Insurance Company; Travelers Casualty & Surety Company of America, and Zurich American Insurance Company. 1

8 Case KRH Doc Filed 06/15/16 Entered 06/15/16 12:20:39 Desc Proposed Order Proposed Order Page 2 of 2 WE ASK FOR THIS: /s/ Jonathan R. Wright Jonathan R. Wright (VSB #79827) Vivian Katsantonis (VSB #30448) 1765 Greensboro Station Place, Ste McLean, Virginia Tel: (703) Fax: (703) jwright@watttieder.com Counsel for Argonaut Insurance Company CERTIFICATION UNDER LOCAL RULE BANKR. P (C) Pursuant to Local Bankruptcy Rule (C), I hereby certify that the foregoing proposed order has been served upon all necessary parties. /s/ Jonathan R. Wright Jonathan R. Wright