Barry E. Bressler (admitted pro hac vice) Richard A. Barkasy (admitted pro hac vice) Benjamin P. Deutsch (BD-5435) SCHNADER HARRISON SEGAL & LEWIS LLP 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 Attorneys for Genoveva Bermudez HEARING DATE AND TIME: June 15, 2010 at 9:45 a.m. (Eastern Time) OBJECTION DEADLINE: June 8, 2010 at 4:00 p.m. (Eastern Time) IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X : In re: : Chapter 11 : MOTORS LIQUIDATION COMPANY, et al., : Case No. 09-50026 (REG) f/k/a GENERAL MOTORS CORP., et al., : Debtors. : (Jointly Administered) -------------------------------------------------------------------------X MOTION OF GENOVEVA BERMUDEZ TO FILE LATE PROOF OF CLAIM OR, IN THE ALTERNATIVE, TO AMEND INFORMAL PROOF OF CLAIM Genoveva Bermudez ( Bermudez ) a creditor and party-in-interested in the above-referenced bankruptcy cases, by and through her undersigned counsel, hereby moves this Court to enter an Order allowing her to file a late proof of claim or, in the alternative, to amend her informal proof of claim. In support thereof, Bermudez states as follows: BACKGROUND 1. On June 1, 2009, General Motors Corporation and four of its affiliates (the Initial Debtors ) filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code (the Bankruptcy Code ). PHDATA 3282952_1
2. On October 9, 2009, two additional affiliates of General Motors Corporation (the Realm/Encore Debtors ) commenced voluntary cases under Chapter 11 of the Bankruptcy Code. 3. On September 16, 2009, the Court entered an Order [Docket No. 4079] establishing November 30, 2009 as the deadline for each person or entity to file a proof of claim in the Initial Debtors cases. 4. On December 2, 2009, the Court entered an Order [Docket No. 4586] establishing February 1, 2010 as the deadline for each person or entity to file a proof of claim in the Realm/Encore Debtors cases (except governmental units for which the Court set June 1, 2010 as the deadline to file proofs of claim). 5. On February 23, 2010, the Court entered an Order pursuant to 11 U.S.C. 105(a) and General Order M-390 authorizing implementation of Alternative Dispute Procedures, including mandatory mediation (the ADR Procedures ). 6. Bermudez was the wife of decedent, Edward Zuniga Torres ( Torres ). [Docket No. 5037] 7. On October 24, 2007, Torres lost his life as a result of severe burns he suffered in an accident while driving a truck manufactured by Motors Liquidation Company, f/k/a General Motors Corporation ( GM ), in Glendale, Arizona. Declaration of Larry E. Coben ( Coben Decl. ), 113. A true and correct copy of the Coben Decl. is attached as Exhibit A. 8. On October 22, 2008, Bermudez filed an action in the Superior Court of Arizona, Maricopa County, Docket No. CV 2008-026466 in which she asserts that, inter alia, the fire which erupted during the accident was caused by a defect in the GM-manufactured truck (the Arizona Case ) driven by Mr. Torres. Coben Decl. 4 and Exhibit A thereto. 5 PHDATA 3282952_1
9. Mr. Torres is survived by Ms. Bermudez and his four children. Id. Decl. 114. 10. Bermudez was listed as a product liability claimant in the bankruptcy schedules filed by the Debtors in this matter. Coben Decl. 6 and Exhibit B thereto. 11. In addition, Bermudez was appointed to the Official Committee of Unsecured Creditors (the Committee ). Coben Decl. 7 and Exhibit C thereto. 12. However, Bermudez failed to file a proof of claim before the bar date due to the excusable neglect of her counsel in the Arizona case. Each of the co-counsel representing Bermudez in the Arizona Case misunderstood that the other was going to submit the proof of claim form, but neither did so. Coben Decl. 8. 13. Co-counsel for Bermudez in the Arizona Case realized that neither had filed a proof of claim when they failed to receive an initial notice from the Debtors under the ADR Procedures with respect to Bermudez s claim. Coben Decl. 9. 14. By this Motion, Bermudez respectfully requests this Court to enter an order allowing her to file a late proof of claim or, in the alternative, permitting her to amend her informal proof of claim. JURISDICTION AND VENUE 15. This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. 157 and 1334. This matter is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. 16. The statutory predicates the relief requested herein are Section 105 of the Bankruptcy Code and Fed. R. Bankr. Proc. 9006(b)(1). 6 PHDATA 3282952_1
ARGUMENT A. Bermudez Should Be Permitted To File A Late Claim Pursuant To Bankruptcy Rule 9006(b)(1) 17. Pursuant to Fed. R. Bankr. Proc. 9006(b)(1), the Court may permit a claim to be filed after the bar date if the claimant s failure to comply with the deadline was the result of excusable neglect. 18. The determination of whether excusable neglect exists is at bottom an equitable one. Pioneer Inv. Srvs. Co. v. Brunswick Assocs. Ltd. P ship, 507 U.S. 380, 395 (1993). Among the circumstances that should be considered are the danger of prejudice to the debtor, the length of the delay and its potential impact on the proceedings, the reason for the delay and whether the movant acted in good faith. Id. 19. [T]he enlargement of presented time periods under the excusable neglect standard of Rule 9006(b)(1) is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer. Id. at 391. 20. Courts are permitted, where appropriate, to allow late claims caused by inadvertence, mistake or carelessness. Id. at 388. 21. The lack of prejudice to the debtor or the interests of efficient judicial administration, combined with the good faith of the claimant weigh strongly in favor of permitting the tardy claim. Id. at 398. 22. The Debtors will not suffer any prejudice if Bermudez s formal claim is allowed. The Debtors and all other parties in interest had knowledge of the claim long before the bar date. 23. Bermudez is listed as a products liability claimant on the bankruptcy schedules filed by GM. Exhibit B to Coben Decl. See In re Ginther, 2008 Bankr. LEXIS 1728 7 PHDATA 3282952_1
at *7 (Bankr. S.D. Tex. 2008) (late claim allowed where claim was listed on debtor s schedules as contingent, unliquidated and disputed). In re Bruno Machinery Corp., 2007 U.S. Dist. LEXIS 51201 at *10 (N.D. N.Y. 2007) (late claim permitted because Debtor had advance knowledge of the claim as they included it in Schedule F and [the creditor] had filed suit against it or this claim ). 24. Further, Bermudez was appointed and serves on the Committee. She is identified on the Notice of Appointment of the Committee filed on June 3, 2009 [Docket No. 356]. Exhibit C to Coben Decl. 25. Bermudez is also a member of the Ad Hoc Committee of Consumer Victims of General Motors (the Ad Hoc Committee ). The members of the Ad Hoc Committee hold tort claims, mostly involving personal injuries (including derivative claims and wrongful death actions) against GM. The Ad Hoc Committee has participated in this case on behalf of its members by, inter alia, filing a motion seeking appointment of an official committee of tort claimants; objecting to the sale of substantially all of the operating assets of GM under Section 363 of the Bankruptcy Code (the Sale ) to the extent that successor liability claims against the purchaser were extinguished by such Sale; and objecting to, and thereafter negotiating modifications to, the Debtors proposed ADR Procedures. 26. Bermudez is listed as a tort claimant with a pending lawsuit in Arizona on Exhibit A to the Rule 2019 Statement filed by counsel for the Ad Hoc Committee on June 19, 2009 [Docket No. 2066]. A true and correct copy of the Rule 2019 Statement filed by counsel for the Ad Hoc Committee is attached as Exhibit B. 27. The sale of substantially all of the Debtors operating assets has left the Debtors with fixed assets to distribute under a plan. As a result, the Debtors liability under a plan will not increase if Bermudez s claim is permitted. 8 PHDATA 3282952_1
28. In addition, Bermudez s claim will have only a negligible impact on the distributions of the Debtors remaining assets to unsecured creditors. Bermudez s claim represents only a very tiny fraction of the billions of dollars of unsecured claims asserted against the Debtors in these cases. 29. The short delay in Bermudez formally asserting her claim will not delay or otherwise effect the proceedings. The Debtors have not yet filed a plan of reorganization and the claims resolution process is in its infancy. See In re McKissick, 298 B.R. 535, 540 (Bankr. W.D. Pa. 2003) (permitting late claim where delay did not impair balloting on a proposed plan or the disclosure statement and/or the confirmation process ). 30. Bermudez s failure to timely file a formal proof of claim was the result of excusable neglect and she has acted in good faith. It is clear that Bermudez s Arizona counsel made an honest, inadvertent error and she has acted promptly and diligently to remedy the situation. See In re Any Mountain, Inc., 2007 Bankr. LEXIS 712 at *2 (Bankr. N.D. Cal. 2007) (finding excusable neglect where claimant s counsel misread bankruptcy court notice). pursuant to Rule 9006(b)(1). 31. For these reasons, Bermudez should be permitted to file a late claim B. Bermudez Should Be Permitted To Amend Her Informal Proof of Claim. 32. Courts in the Second Circuit have long recognized the validity of informal proofs of claim. In re The Float, Inc., 163 B.R. 18, 20 (Bankr. N.D. N.Y. 1993). 33. An informal proof of claim is subject to amendment subsequent to the bar date. In re Southhold Development Corp., 173 B.R. 63, 71 (E.D. N.Y. 1994). 34. An informal proof of claim should be recognized where the debtor is made aware of the intent of [the creditor] to hold the estate liable. In re Rockville Orthopedic Associates, P.C., 365 B.R. 366, 369 (Bankr. D. Conn. 2007); see also In re Collins, 2004 Bankr. 9 PHDATA 3282952_1
LEXIS 2522 at *8 (Bankr. D. S.C. 2004) (finding informal proof of claim where debtor identified claim on schedules and claimant attended first meeting of creditors); In re Hawaiian Airlines, 2006 Bankr. LEXIS 2714 (Bankr. D. Haw. 2006) (letter from personal injury claimant s attorney to the debtor constituted amendable informal proof of claim); In re Judy Wood Publishing Corp., 289 B.R. 319, 322 (Bankr. E.D. Va. 2002) (informal proof of claim existed because creditor was listed on the debtor s schedules and the debtor s mailing list of creditors). 35. The filings identified above put all interested parties on notice of Bermudez s intent to hold the estate liable and, therefore, are more than adequate to constitute an informal proof of claim. 36. Consequently, Bermudez should be permitted to amend her informal claim by filing a formal proof of claim form. [INTENTIONALLY LEFT BLANK] 10 PHDATA 3282952_1
CONCLUSION For the foregoing reasons, Bermudez respectfully requests that the Court grant her motion permitting her to file a proof of claim and deeming such proof of claim timely filed or, in the alternative, allowing her to amend her informal proof of claim. SCHNADER HARRISON SEGAL & LEWIS LLP Dated: May 10, 2010 By: /s/ Benjamin P. Deutsch Benjamin P. Deutsch (BD-5435) bdeutsch@schnader.com 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 - and - Barry E. Bressler, Esquire (admitted pro hac vice) bbressler@schnader.com Richard A. Barkasy, Esquire (admitted pro hac vice) rbarkasy@schnader.com 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Phone: (215) 751-2000 Fax: (215) 751-2205 Attorneys for Genoveva Bermudez 11 PHDATA 3282952_1
Barry E. Bressler (admitted pro hac vice) Richard A. Barkasy (admitted pro hac vice) Benjamin P. Deutsch (BD-5435) SCHNADER HARRISON SEGAL & LEWIS LLP 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 Attorneys for Genoveva Bermudez HEARING DATE AND TIME: June 15, 2010 at 9:45 a.m. (Eastern Time) OBJECTION DEADLINE: June 8, 2010 at 4:00 p.m. (Eastern Time) IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X : In re: : Chapter 11 : MOTORS LIQUIDATION COMPANY, et al., : Case No. 09-50026 (REG) f/k/a GENERAL MOTORS CORP., et al., : Debtors. : (Jointly Administered) -------------------------------------------------------------------------X NOTICE OF MOTION OF GENOVEVA BERMUDEZ TO FILE LATE PROOF OF CLAIM OR, IN THE ALTERNATIVE, TO AMEND INFORMAL PROOF OF CLAIM PLEASE TAKE NOTICE that upon the annexed motion, dated May 10, 2010 (the Motion ), of Genoveva Bermudez (the Movant ) to File Late Proof of Claim or, in the Alternative, to Amend Informal Proof of Claim, a hearing will be held before the Honorable Robert E. Gerber, United States Bankruptcy Judge, in Room 621 of the United States Bankruptcy Court for the Southern District of New York, One Bowling Green, New York, New York 10004, on June 15, 2010 at 9:45 a.m. (Eastern Time), or as soon thereafter as counsel may be heard. PHDATA 3282952_1
PLEASE TAKE FURTHER NOTICE that any responses or objections to the Motion must be in writing, shall conform to the Federal Rules of Bankruptcy Procedure and the Local Rules of the Bankruptcy Court, and shall be filed with the Bankruptcy Court (a) electronically in accordance with General Order M-242 (which can be found at www.nysb.uscourts.gov) by registered users of the Bankruptcy Court s filing system, and (b) by other parties in interest, on a 3.5 inch disk, preferably in Portable Document Format (PDF), Word Perfect, or any other Windows-based word processing format, and served in accordance with General Order M-182 (which can be found at www.nysb.uscourts.gov), and served in accordance with General Order M-242, and on Schnader Harrison Segal & Lewis LLP, 1600 Market Street, Suite 3600, Philadelphia, Pennsylvania 19103 (Attn: Barry E. Bressler, Esquire and Richard A. Barkasy, Esquire) so as to be received mo later than June 8, 2010 at 4:00 p.m. (Eastern Time) (the Objection Deadline ). If no objections are timely filed and served with respect to the motion, the Movant may, on or after the Objection Deadline, submit to the Bankruptcy Court an order substantially in the form of the proposed order attached to the Motion, which order may be entered with no further notice or opportunity to be heard offered to any party. SCHNADER HARRISON SEGAL & LEWIS LLP Dated: May 10, 2010 By: /s/ Benjamin P. Deutsch Benjamin P. Deutsch (BD-5435) bdeutsch@schnader.com 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 - and 2 PHDATA 3282952_1
Barry E. Bressler, Esquire (admitted pro hac vice) bbressler@schnader.com Richard A. Barkasy, Esquire (admitted pro hac vice) rbarkasy@schnader.com 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Phone: (215) 751-2000 Fax: (215) 751-2205 Attorneys for Genoveva Bermudez 3 PHDATA 3282952_1
IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X : In re: : Chapter 11 : MOTORS LIQUIDATION COMPANY, et al., : Case No. 09-50026 (REG) f/k/a GENERAL MOTORS CORP., et al., : Debtors. : (Jointly Administered) -------------------------------------------------------------------------X ORDER GRANTING MOTION OF GENOVEVA BERMUDEZ TO FILE LATE PROOF OF CLAIM OR, IN THE ALTERNATIVE, TO AMEND INFORMAL PROOF OF CLAIM Upon the motion (the Motion ) of Genoveva Bermudez (the Movant ) to File Late Proof of Claim or, in the Alternative, to Amend Informal Proof of Claim, and the Court having determined that the legal and factual bases set forth in the Motion establish just cause for the relief granted herein; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore, it is hereby ORDERED, that the Motion is GRANTED; and it is further ORDERED, that Movant is permitted to file a proof of claim and such proof of claim shall be deemed timely filed, or, in the alternative, Movant is permitted to amend her informal proof of claim. Dated:, 2010 Honorable Robert E. Gerber UNITED STATES BANKRUPTCY JUDGE PHDATA 3282952_1
Barry E. Bressler (admitted pro hac vice) Richard A. Barkasy (admitted pro hac vice) Benjamin P. Deutsch (BD-5435) SCHNADER HARRISON SEGAL & LEWIS LLP 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 Attorneys for Genoveva Bermudez HEARING DATE AND TIME: June 15, 2010 at 9:45 a.m. (Eastern Time) OBJECTION DEADLINE: June 8, 2010 at 4:00 p.m. (Eastern Time) IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X : In re: : Chapter 11 : MOTORS LIQUIDATION COMPANY, et al., : Case No. 09-50026 (REG) f/k/a GENERAL MOTORS CORP., et al., : Debtors. : (Jointly Administered) -------------------------------------------------------------------------X CERTIFICATE OF SERVICE OF MOTION OF GENOVEVA BERMUDEZ TO FILE LATE PROOF OF CLAIM OR, IN THE ALTERNATIVE, TO AMEND INFORMAL PROOF OF CLAIM served: I, Benjamin P. Deutsch, hereby certify that on May 10, 2010, I caused to be (i) Motion of Genoveva Bermudez to File Late Proof of Claim or, in the Alternative, to Amend Informal Proof of Claim; and (ii) Notice of Motion of Genoveva Bermudez to File Late Proof of Claim or, in the Alternative, to Amend Informal Proof of Claim via: (a) the United States Bankruptcy Court for the Southern District of New York s electronic filing system to all parties requesting electronic notice and (b) via first class mail, postage prepaid, upon the persons and entities listed below: Harvey R. Miller, Esq. Stephen Karotkin, Esq. Joseph H. Smolinsky, Esq. Weil, Gotshal & Manges, LLP 767 Fifth Avenue New York, NY 10153 Motors Liquidation Company 500 Renaissance Center, Suite 1400 Detroit, MI 48243 Attn: Ted Stenger PHDATA 3282952_1
General Motors, LLC 400 Renaissance Center Detroit, MI 48265 Attn: Lawrence S. Buonomo U.S. Department of Treasury 1500 Pennsylvania Avenue NW Room 2312 Washington, DC 20220 Attn: Joseph Samarias Thomas Moers Mayer, Esq. Amy Caton, Esq. Laura Macksoud, Esq. Jennifer Sharret, Esq. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 David S. Jones, Esq. Natalie Kuehler, Esq. U.S. Attorney s Office 86 Chambers Street, 3 rd Floor New York, NY 10007 Trevo W. Swett, II, Esq. Kevin C. Maclay, Esq. Caplin & Drysdale One Thomas Circle, N.W. Suite 1100 Washington, D.C. 20005 John J. Rapisardi, Esq. Cadwalader, Wickersham & Taft LLP One World Financial Center New York, NY 10281 Michael J. Edelman, Esq. Michael L. Schein, Esq. Vedder Price P.C. 1633 Broadway, 47 th Floor New York, NY 10019 Office of the U.S. Trustee 33 Whitehall Street, 21 st Floor New York, NY 10004 Attn: Diana G. Adams Elihu Inselbuch, Esq. Rita C. Tobin, Esq. Caplin & Drysdale 375 Park Avenue, 35 th Floor New York, NY 10152-3500 Sander L. Esserman, Esq. Robert T. Brousseau, Esq. Stutzman, Bromberg, Esserman & Plifka 2323 Bryan Street, Suite 2200 Dallas, TX 75201 SCHNADER HARRISON SEGAL & LEWIS LLP Dated: May 10, 2010 By: /s/ Benjamin P. Deutsch Benjamin P. Deutsch (BD-5435) bdeutsch@schnader.com 140 Broadway, Suite 3100 New York, NY 10005-1101 Phone: (212) 973-8000 Fax: (212) 972-8798 - and - 14 PHDATA 3282952_1
Barry E. Bressler, Esquire (admitted pro hac vice) bbressler@schnader.com Richard A. Barkasy, Esquire (admitted pro hac vice) rbarkasy@schnader.com 1600 Market Street, Suite 3600 Philadelphia, PA 19103-7286 Phone: (215) 751-2000 Fax: (215) 751-2205 Attorneys for Genoveva Bermudez 15 PHDATA 3282952_1