Case 09-10555-DHS Doc 2405 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Main Document Page 1 of 3 FORMAN HOLT ELIADES RAVIN & YOUNGMAN LLC 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 Harry M. Gutfleish (HMG-6483) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) Co-Counsel for the Tarragon Creditor Entity UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY In re: TARRAGON CORPORATION, et al., Debtors. Chapter 11 Case No. 09-10555 (DHS) Jointly Administered Return Date: April 10, 2012 10:00 a.m. NOTICE OF OBJECTION OF THE TARRAGON CREDITOR ENTITY TO THE CLAIMS OF TDK CONSTRUCTION COMPANY, INC. (CLAIM NOS. 405 AND 469) TO: TDK Construction Company, Inc. 1610 S. Church Street, Suite C Murfreesboro, TN 37130 Attn: Kent M. Ayer, VP of Operations/General Counsel Roland Gary Jones, Esq. Jones & Associates 1230 6th Avenue 7th Floor New York, New York 10020 Attorneys for TDK Construction Company, Inc. PLEASE TAKE NOTICE that on April 10, 2012, at 10:00 a.m., or as soon thereafter as counsel may be heard, the Tarragon Creditor Entity (the TCE ) formed pursuant to the confirmed Second Amended and Restated Joint Plan of Reorganization Under Chapter 11 of 00083422-1
Case 09-10555-DHS Doc 2405 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Main Document Page 2 of 3 the Bankruptcy Code dated May 11, 2010 (the Plan ), through its undersigned counsel and by its trustee, WBT LLC, shall move before the Honorable Donald H. Steckroth, United States Bankruptcy Judge, at the United States Bankruptcy Court, Martin Luther King, Jr. Federal Building, 50 Walnut Street, Third Floor, Newark, New Jersey 07102, for entry of an Order pursuant to section 502 of title 11 of the United States Code and Rule 3007 of the Federal Rules of Bankruptcy Procedure disallowing certain claims filed against the Debtors by TDK Construction Company, Inc. (Claim Nos. 405 and 469) (the Objection ). PLEASE TAKE FURTHER NOTICE that the TCE shall rely on the Application submitted herewith in support of the relief requested. The TCE has submitted a proposed form of Order in accordance with Local Bankruptcy Rule 9013-1(a). PLEASE TAKE FURTHER NOTICE that, in accordance with Local Bankruptcy Rule 9013-2, the TCE has not submitted a brief since the Motion does not present any novel or complicated issues of fact or law. PLEASE TAKE FURTHER NOTICE that responses, if any, to the relief sought shall conform with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules, shall be filed with the Clerk of the Bankruptcy Court, P.O. Box 1352, Newark, New Jersey 07101 and, pursuant to Local Bankruptcy Rule 9013-1(d), shall be served upon the undersigned so as to be received no later than seven (7) days prior to the return date herein. PLEASE TAKE FURTHER NOTICE that unless responses are timely filed and served, the Objection shall be deemed uncontested in accordance with Local Bankruptcy Rule 9013-1(a), and the relief requested may be granted without further notice or hearing. -2-
Case 09-10555-DHS Doc 2405 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Main Document Page 3 of 3 PLEASE TAKE FURTHER NOTICE that the TCE waives oral argument unless responses to the Objection are timely filed. Dated: March 9, 2012 FORMAN HOLT ELIADES RAVIN & YOUNGMAN LLC By: /s/ Harry M. Gutfleish Harry M. Gutfleish 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 (201) 845-9112 (fax) - and - PATTERSON BELKNAP WEBB & TYLER LLP Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 (212) 336-2222 (fax) Co-Counsel for the Tarragon Creditor Entity -3-
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 1 of 6 FORMAN HOLT ELIADES RAVIN & YOUNGMAN LLC 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 Harry M. Gutfleish (HMG-6483) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) Co-Counsel for the Tarragon Creditor Entity UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY In re: TARRAGON CORPORATION, et al., Debtors. Chapter 11 Case No. 09-10555 (DHS) Jointly Administered Return Date: April 10, 2012 10:00 a.m. APPLICATION IN SUPPORT OF THE OBJECTION OF THE TARRAGON CREDITOR ENTITY TO THE CLAIMS OF TDK CONSTRUCTION COMPANY, INC. (CLAIM NOS. 405 AND 469) TO: Honorable Donald H. Steckroth United States Bankruptcy Judge The Tarragon Creditor Entity (the TCE ) formed pursuant to the confirmed Second Amended and Restated Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code (the Plan ) filed by the above-captioned debtors and debtors-in-possession (the Debtors ), through its undersigned counsel and by its trustee, WBT LLC (the Trustee ), submits this application (the Application ) in support of its motion for entry of an Order pursuant to section 502 of title 11 of the United States Code and Rule 3007 of the Federal Rules of Bankruptcy Procedure disallowing certain claims filed against the Debtors by TDK Construction 00083429-1
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 2 of 6 Company, Inc. (Claim Nos. 405 and 469) (the Objection ). In support of the Objection, the TCE respectfully represents that: JURISDICTION AND VENUE 1. This Court has jurisdiction over the Application pursuant to 28 U.S.C. 1334 and 157(b). The statutory predicates for the relief requested herein are section 502 of the Bankruptcy Code and Bankruptcy Rule 3007. 2. This is a core proceeding as that term is defined in 28 U.S.C. 157(b)(2)(A) and (O). Venue is proper in this District pursuant to 28 U.S.C. 1409(a). BACKGROUND Establishment of the TCE 3. On January 12, 2009 (the Petition Date ) and thereafter, the Debtors filed voluntary petitions for relief pursuant to chapter 11 of the Bankruptcy Code. After the Petition Date, the Debtors remained in possession of their assets and continued management of their businesses as debtors-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. On February 4, 2009, the Office of the United States Trustee for the District of New Jersey appointed an Official Committee of Unsecured Creditors. 4. On May 11, 2010, the Court issued an Order approving, among other things, the Debtors Second Amended and Restated Disclosure Statement for the Second Amended and Restated Joint Plan of Reorganization (Docket No. 1836). The Plan was confirmed on June 18, 2010, and became effective on July 6, 2010 (the Effective Date ). 5. Pursuant to the Plan and a related Liquidating Trust Agreement (the LTA ), the TCE was formed on the Effective Date and WBT LLC became the Trustee of the TCE. As set forth in greater detail in the Plan and the LTA, the purpose of the TCE is to -2-
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 3 of 6 resolve, liquidate and realize upon the Trust Assets (as defined in the LTA) for the benefit of the holders of Allowed Claims. Among other things, the Trustee has primary responsibility for reducing the assets of each Reorganized Debtor to cash and making pro rata distributions of that cash to the holders of Allowed Claims against each Debtor. The Bar Date 6. On February 12, 2009, the Debtors filed a motion (the Bar Date Motion ) requesting entry of an order fixing May 3, 2009 (the General Bar Date ) as the last date by which creditors could file proofs of claim and July 12, 2009, as the bar date for governmental units (as defined in section 101(27) of the Bankruptcy Code) (the Governmental Bar Date, and together with the General Bar Date, the Bar Date ). By Order dated March 5, 2009, this Court granted the Bar Date Motion and fixed May 4, 2009, as the General Bar Date and July 12, 2009, as the Governmental Bar Date. 7. One of the Trustee s duties under the Plan and LTA is to review and, if appropriate, object to proofs of claim filed against the Debtors. Immediately after the Effective Date, the Trustee and its professionals began reviewing the Debtors books and records, as well as the register of claims filed against the Debtors. The TDK Claims 8. On or about April 27, 2009, TDK Construction Company, Inc. ( TDK filed claim number 405 against Tarragon Corporation ( Tarragon ) in the amount of $1,599,880.83 ( Claim No. 405 ). On or about that same date, TDK filed claim number 469 against Tarragon Stonecrest, LLC ( Stonecrest ), one of the Debtors, also in the amount of $1,599,880.83 ( Claim No. 469, and, with Claim No. 405 and all other claims of TDK against any of the Debtors, the TDK Claims ). The TDK Claims do not include sufficient detail to -3-
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 4 of 6 determine the nature of the liability alleged against Tarragon and Stonecrest. However, on information and belief, the TDK Claims seek payment for amounts allegedly due to TDK for construction work that TDK and/or certain subcontractors performed for the benefit of Stonecrest. On information and belief, TDK did not perform any work directly for Tarragon. 9. Before the Petition Date, however, TDK, Tarragon, Stonecrest and certain other Debtors entered into a settlement agreement (the 2008 Agreement ) to resolve all claims that TDK had against these Debtors in exchange for a series of installment payments from Tarragon and Stonecrest totalling $428,584.31. The TCE understands that, before the Petition Date, TDK received $200,000 from the Debtors in satisfaction of this liability, leaving $228,584.31 unpaid. A copy of the 2008 Agreement is annexed as Exhibit A. 10. After the Petition Date, the TCE, on behalf of Stonecrest, commenced an action against TDK for the avoidance and return of certain payments alleged to be preferential transfers pursuant to section 547 of the Bankruptcy Code. Pursuant to an agreement between the TCE and TDK (the 2011 Agreement ), TDK agreed to make a payment to the TCE in the amount of $55,000 and to release all claims against Stonecrest. A copy of the 2011 Agreement is annexed as Exhibit B. RELIEF REQUESTED 11. The TCE respectfully requests entry of an order, pursuant to section 502 of the Bankruptcy Code and Bankruptcy Rule 3007, (a) reducing and allowing Claim No. 405 against Tarragon in the amount of $228,584.31 (i.e., the unpaid balance due to TDK under the 2008 Agreement), and (b) disallowing and expunging all other TDK Claims, including Claim No. 469 against Stonecrest. TDK released all claims against Stonecrest, the entity for which it performed the construction work in question, pursuant to the 2011 Agreement. Therefore, it -4-
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 5 of 6 cannot be disputed that Claim No 469 should be expunged. And, with respect to Claim No. 405, TDK s only claim against Tarragon is in Tarragon s capacity as a signatory to the 2008 Agreement. The TCE does not believe that TDK has any direct claims against Tarragon for the work it performed for Stonecrest, one of Tarragon s subsidiaries. Having received partial payment of the amount due under that agreement, TDK s only remaining claim against Tarragon is for the unpaid balance, or $228,584.31. NOTICE 12. The TCE shall cause notice of the Objection and this Application to be served upon TDK and any other party entitled to receive notice. 13. No previous application has been made to this or any other court for the relief sought herein. WHEREFORE, the TCE respectfully requests entry of an order (a) reducing and allowing Claim No. 405 against Tarragon in the amount of $228,584.31, (b) disallowing and expunging all other TDK Claims, including Claim No. 469 against Stonecrest, (c) and granting the TCE such other or further relief as is just and proper. Dated: March 9, 2012 FORMAN HOLT ELIADES RAVIN & YOUNGMAN LLC By: /s/ Harry M. Gutfleish Harry M. Gutfleish 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 (201) 845-9112 (fax) - and - -5-
Case 09-10555-DHS Doc 2405-1 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Application in Support of Objection of The Tarragon Creditor Entity to the Claim Page 6 of 6 PATTERSON BELKNAP WEBB & TYLER LLP Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 (212) 336-2222 (fax) Co-Counsel for the Tarragon Creditor Entity -6-
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Case 09-10555-DHS Doc 2405-4 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Proposed Order Page 1 of 2 FORMAN HOLT ELIADES RAVIN YOUNGMAN LLC 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 Harry M. Gutfleish (HMG-6483) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) Co-Counsel for the Tarragon Creditor Entity UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY In re: TARRAGON CORPORATION, et al., Debtors. Chapter 11 Case No. 09-10555 (DHS) Jointly Administered Return Date: April 10, 2012 10:00 a.m. ORDER GRANTING THE OBJECTION OF THE TARRAGON CREDITOR ENTITY TO THE CLAIMS OF TDK CONSTRUCTION COMPANY, INC. (CLAIM NOS. 405 AND 469) ORDERED. The relief set forth on the following page, numbered two (2), is hereby 00083435-1
Case 09-10555-DHS Doc 2405-4 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc (Page 2) Proposed Order Page 2 of 2 In re: Tarragon Corporation, et al. Case No. 09-10555 (DHS) Caption: ORDER GRANTING THE OBJECTION OF THE TARRAGON CREDITOR ENTITY TO THE CLAIMS OF TDK CONSTRUCTION COMPANY, INC. (CLAIM NOS. 405 AND 469) This matter having been opened to the Court upon the motion filed by the Tarragon Creditor Entity formed pursuant to the confirmed Second Amended and Restated Joint Plan of Reorganization Under Chapter 11 of the Bankruptcy Code dated May 11, 2010, through its co-counsel, Forman Holt Eliades Ravin & Youngman LLC and Patterson Belknap Webb & Tyler LLP, for entry of an Order pursuant to section 502 of title 11 of the United States Code and Rule 3007 of the Federal Rules of Bankruptcy Procedure certain claims filed against the Debtors by TDK Construction Company, Inc. (Claim Nos. 405 and 469) (the Objection ); and good and sufficient notice of the Objection having been provided, as evidenced by the Affidavit of Service filed with the Court; and the Court having considered the Application in support of the Objection, the opposition thereto, if any, and the arguments of counsel, if any; and good cause appearing for the entry of this Order; IT IS ORDERED as follows: 1. The Objection is granted. 2. Claim number 405 of TDK Construction Company, Inc. is hereby REDUCED and ALLOWED against Tarragon Corporation in the amount of $228,584.31. 3. Except as set forth in the immediately proceeding paragraph, all claims of TDK Construction Company, Inc., against any of the Debtors, including but not limited to claim number 469 against Tarragon Stonecrest, LLC, are hereby DISALLOWED and EXPUNGED in their entirety. to the Objection. 4. This Court shall retain jurisdiction to hear and consider all matters related
Case 09-10555-DHS Doc 2405-5 Filed 03/09/12 Entered 03/09/12 15:38:33 Desc Certificate of Service Page 1 of 1 FORMAN HOLT ELIADES RAVIN & YOUNGMAN LLC 80 Route 4 East, Suite 290 Paramus, New Jersey 07652 (201) 845-1000 Harry M. Gutfleish (HMG-6483) PATTERSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036-6710 (212) 336-2000 Daniel A. Lowenthal (admitted pro hac vice) Brian P. Guiney (admitted pro hac vice) Co-Counsel for the Tarragon Creditor Entity UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY In re: TARRAGON CORPORATION, et al., Chapter 11 Case No. 09-10555 (DHS) Jointly Administered Debtors. Return Date: April 10, 2012 10:00 a.m. CERTIFICATION OF SERVICE I, Debbie Koehnlein, a legal assistant with Forman Holt Eliades Ravin & Youngman LLC, certify that on March 9, 2012, I caused to be served copies of the (1) Notice of Objection of the Tarragon Creditor Entity to the Claims of TDK Construction Company, Inc. (Claim Nos. 405 and 469), (2) Application in Support of the Objection of the Tarragon Creditor Entity to the Claims of TDK Construction Company, Inc. (Claim Nos. 405 and 469), and (3) Proposed Order, by regular first class mail, upon the claimant, as follows: TDK Construction Company, Inc. 1610 S. Church Street, Suite C Murfreesboro, TN 37130 Attn: Kent M. Ayer, VP of Operations/General Counsel Roland Gary Jones, Esq. Jones & Associates 1230 6th Avenue 7th Floor New York, New York 10020 Attorneys for TDK Construction Company, Inc. Dated: March 9, 2012 /s/ Debbie Koehnlein Debbie Koehnlein 00083423-1