WELTMAN, WEINBERG & REIS CO., LPA 175 S. 3 rd Street, Suite 900 Columbus, OH 43215 (614) 857-4324 Geoffrey J. Peters, Esq. (GP4633) UNITED STATES BANKRUPTCY COURT SOUTHRN DISTRICT OF NEW YORK -------------------------------------------------------X In re: Chapter 11 TRONOX INCORPORATED Case No.: 09-10156-alg Debtor(s) -------------------------------------------------------X NOTICE OF MOTION TOYOTA MOTOR CREDIT CORPORATION, has filed papers with the court to seek relief from the automatic stay. Your rights may be affected. You should read these papers carefully and discuss them with your attorney, if you have one in this bankruptcy case. (If you do not have an attorney, you may wish to consult one.) If you do not want the court to grant relief from the automatic stay to TOYOTA MOTOR CREDIT CORPORATION, or if you want the court to consider your views on the motion, then on or before July 14, 2011, you or your attorney must: File with the court a written response, explaining your position at: Court Clerk U.S. Bankruptcy Court Alexander Hamilton U.S. Custom House, Courtroom 617 One Bowling Green New York, NY 10004-1408 If you mail your response to the court for filing, you must mail it early enough so that the court will receive it on or before the date stated above. You must also mail a copy to: Office of the U.S. Trustee Andrew A. Kassof, Esq. 33 Whitehall Street, 21st Fl. 300 N. Lasalle New York, NY 10004 Chicago, IL 60654 Tronox Incorporated Po Box 268859 Oklahoma City, OK 73126
Garretson Resolution Group, Inc., Tort Claims Trustee of the Tronox Incorporated Tort Claims Trust c/o Jason V. Stitt, Esq. Keating Muething & Klekamp PLL One East Fourth Street, Suite 1400 Cincinnati, OH 45202 Kerr-McGee Corporation c/o Lydia Protopapas Weil, Gotshal & Manges LLP 700 Louisiana St., Suite 1600 Houston, TX 77002 Official Committee of Unsecured Creditors c/o Alan W. Kornberg Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 Newcastle Capital Management, LP c/o Michael S. Fox Olshan Grundman Frome Rosenzweig & Wolosky, LLP Park Avenue Tower 65 E. 55th Street New York, NY 10022 Official Committee of Equity Holders of Tronox Inc. c/o David A. Crichlow Pillsbury Winthrop LLP 1540 Broadway New York, NY 10036 Ad Hoc Committee of Senior Secured c/o Tracy L. Klestadt Klestdat & Winters, LLP 570 Seventh Avenue 17 th Floor New York, NY 10018 Ad Hoc Unsecured Creditor Committees c/o William Duke Tollison Law Firm, P.A. 100 Courthouse Square Oxford, MS 38655
Attend the hearing scheduled to be held on July 21, 2011 at 10:00 a.m. at the U.S. Bankruptcy Court, One Bowling Green, New York, NY 10004-1408, Courtroom 617. If you or your attorney doe not take these steps, the court may decide that you do not oppose the relief sought in the motion and may enter an order granting that relief. PLEASE TAKE FURTHER NOTICE that pursuant to Rule 9006-1, Local Rules of Bankruptcy Practice for the Southern District of New York, answering papers and memoranda of law, if any, must be filed with the Court and served upon the undersigned so as to be received by the undersigned no later than seven (7) days before the return date of this motion. Date: June 28, 2011 /s/ Geoffrey J. Peters Geoffrey J. Peters, Esq. WELTMAN, WEINBERG & REIS CO., LPA 175 S. 3 RD Street, Suite 900 Columbus, OH 43215 (614) 857-4324 WWR #9197142
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------X In re: Chapter 11 TRONOX INCORPORATED Debtor(s) -------------------------------------------------------X Case No. 09-10156-alg AFFIRMATION IN SUPPORT OF MOTION FOR RELIEF FROM THE STAY GEOFFREY J. PETERS, ESQ., an attorney at law duly admitted to practice before the Courts of the State of New York and the SOUTHERN District of New York, under the penalties of perjury, duly affirms as follows: 1. I am a partner of the law firm of Weltman, Weinberg & Reis Co., L.P.A., attorneys for TOYOTA MOTOR CREDIT CORPORATION ( TOYOTA ), a secured creditor herein. I am familiar with the facts and circumstances of this matter based upon the information in our file and the attached affidavit of a representative of Movant herein. 2. Jurisdiction is conferred on this Court by the provisions of 28 U.S.C. 1334. This is a core proceeding within the meaning of 28 U.S.C. 157(b). 3. This application is brought pursuant to Rules 4001(a) and 9014 of the Federal Bankruptcy Rules of Procedure ( the Rules ) and 362(d)(1) of the United States Bankruptcy Code ( the Code ) for an Order, terminating, annulling or modifying the stay imposed under 362(a) of the Code. 4. The Debtor herein filed bankruptcy under Chapter 11 of the Bankruptcy Code on January 12, 2009. 5. Movant is the holder of a retail installment contract with Debtor with respect to a 2006 FORKLIFT WITH ATTACHMENTS (the Collateral ). A copy of the retail installment contract and electronic title evidencing perfection is attached hereto as Exhibits A and B.
6. The Debtor is obligated to pay to TOYOTA monthly payments in the sum of $566.26 per month for a period of forty-eight (48) months under the Commercial Lease Agreement ( Agreement ) dated June 16, 2006, by and between TOYOTA and Debtor. In addition, the Debtor must submit a late fee for any payment which is not received within ten (10) days of the due date. 11 USC 362(d)(1) 8. Section 362(d)(1) of the Code provides that the Court shall modify the automatic stay for cause including lack of adequate protection. 9. According to the books and records of TOYOTA, the Debtor is in arrears for the payments that became due contractually on December 1, 2008, and all subsequent payments. Therefore as of March 9, 2011 the contractual arrears will total at least $2,034.86, plus late fees, attorney fees and related costs. As such, TOYOTA is not adequately protected. Attached as Exhibit C is an Affidavit of a qualified Bankruptcy representative employed by Movant. 10. Accordingly, it is submitted that sufficient cause has been demonstrated to vacate the stay pursuant to 11 U.S.C. 362(d)(1). Additional Relief 11. The Movant is requesting a waiver of the 14-day stay set forth in Bankruptcy Rule 4001(a)(3), insofar as the Movant is further prejudiced by an additional 14 day stay due to the rapidly depreciating value of the Collateral and the Movant s inability to verify that the Collateral is presently insured. 12. No prior application for the relief requested herein has been made. WHEREFORE, based on the foregoing and under 362(d) of the Code, TOYOTA respectfully requests that this Court enter an Order terminating, annulling or modifying the automatic stay under 362 to the extent necessary to permit TOYOTA to
promptly repossess and sell the Collateral, and for such other and further relief as is just and proper under the circumstances. Dated: Columbus, Ohio June 28, 2011 /s/ Geoffrey J. Peters GEOFFREY J. PETERS, ESQ.
STATE OF OHIO ) COUNTY OF FRANKLIN ) ss.: ANITA PANNELL, being duly sworn, deposes and says: deponent is not a party to the action, is over 18 years of age and resides at Columbus, Ohio. On June 28, 2011 deponent served the within NOTICE OF PRESENTMENT, AFFIRMATION IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY with attached exhibits and PROPOSED ORDER upon the following parties, at the addresses designated by said parties for that purpose, by depositing a true copy of same, enclosed in a post-paid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Postal Service within the State of Ohio: Office of the United States Trustee 33 Whitehall Street, 21 st Floor New York, NY 10028 Andrew A. Kassof, Esq. 300 N. Lasalle Chicago, IL 60654 Tronox Incorporated Po Box 268859 Chicago, IL 60654 Garretson Resolution Group, Inc., Tort Claims Trustee of the Tronox Incorporated Tort Claims Trust c/o Jason V. Stitt, Esq. Keating Muething & Klekamp PLL One East Fourth Street, Suite 1400 Cincinnati, OH 45202 Kerr-McGee Corporation c/o Lydia Protopapas Weil, Gotshal & Manges LLP 700 Louisiana St., Suite 1600 Houston, TX 77002 Official Committee of Unsecured Creditors c/o Alan W. Kornberg Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019 Newcastle Capital Management, LP c/o Michael S. Fox Olshan Grundman Frome Rosenzweig & Wolosky, LLP Park Avenue Tower
65 E. 55th Street New York, NY 10022 Official Committee of Equity Holders of Tronox Inc. c/o David A. Crichlow Pillsbury Winthrop LLP 1540 Broadway New York, NY 10036 Ad Hoc Committee of Senior Secured c/o Tracy L. Klestadt Klestdat & Winters, LLP 570 Seventh Avenue 17 th Floor New York, NY 10018 Ad Hoc Unsecured Creditor Committees c/o William Duke Tollison Law Firm, P.A. 100 Courthouse Square Oxford, MS 38655 /s/ Anita Pannell ANITA PANNELL Sworn to before me this 24 th day of June, 2011 /s/ Annette Rains Notary Public Annette Rains Notary Public, State of Ohio No. 26482 Qualified in Franklin County Commission Expires 05/27/12
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------X In re: Chapter 11 TRONOX INCORPORATED, Debtor(s) -------------------------------------------------------X Case No. 09-10156-alg MEMORANDUM OF LAW PRELIMINARY STATEMENT This is a Motion pursuant to Rule 4001(a)(1) of the Federal Rules and Bankruptcy Procedures to lift the Automatic Stay imposed by 362(a) of the United States Bankruptcy Code. The moving party is seeking relief from the Automatic Stay to exercise its state rights under a Retail Installment Contract, in which Movant is secured by 2006 FORKLIFT WITH ATTACHMENTS ( Collateral ). The basis for this Motion is that Movant has cause for requesting the automatic stay be lifted and Debtor does not have equity in the Collateral and the Collateral is not necessary for an effective reorganization within the meaning of 362(d)(1). All of the necessary parties to this Motion have been served with copies of the Notice and supporting Application. FACTS As set forth in the application of Secured Creditor, the Debtor(s) executed the Note to the Movant in the amount of $32,044.77, which Contract was secured by the Collateral. On January 12, 2009, the Debtor filed a Petition under Chapter 11 of the Bankruptcy Code. Debtor owes Movant $10,411.93. Pursuant to Equipment Watch Value the value of the Collateral is $11,750.00.
ARGUMENT Section 362(d) provides that upon request of a party in interest, the court shall grant relief from the automatic say, (1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or (2) with respect to a stay of an action against property under subsection (a) of this section if (a) the debtor does not have any equity in such property; and (b) such property is not necessary to an effective reorganization. Pursuant to 11 U.S.C. Section 362(g), the moving party carries the burden of proof with respect to the issue of equity of the property in question. In re Roxrun Estates, Inc. 74 B.R. 997, 1003 (Bankr. S.D.N.Y. 1987), a secured party is a party in interest for the purposes of 362 motions and by showing that the liens on the property exceed the property s worth, a secured creditor will have met this burden. Id. As aforementioned, the value of the Collateral is $11,750.00 and as such, no equity exists. Therefore, the stay must be lifted pursuant to 362(d)(1). In addition, a debtors failure to make regular monthly payments as they become due constitutes sufficient cause to life the automatic stay. In re Michael Lancelot Taylor, 151 B.R. 646, 648 (Bankr. E.D.N.Y. 1993). As aforementioned, the Debtor has failed to make 18 payments and the burden shifts to the Debtor to show that the Secured Creditor s interest is otherwise adequately protected. Unless this burden is met, the stay must be lifted pursuant to 362(d)(1).
CONCLUSION WHEREFORE, it is respectfully requested that the Automatic Stay be modified with respect to the Collateral to permit the Secured Creditor to exercise its rights pursuant to the terms of the Retail Installment Contract, and for such other and further relief as this Court deem just and equitable. Respectfully submitted, WELTMAN, WEINBERG & REIS CO. Attorneys for Secured Creditor TOYOTA MOTOR CREDIT CORPORATION By: /s/ Geoffrey J. Peters Geoffrey J. Peters, Esq. 175 S. 3 rd Street, Suite 900 Columbus, OH 43215 614/857-4325 Sworn to before me this 24 th day of June, 2011 /s/ Annette Rains Notary Public Annette Rains Notary Public, State of Ohio No. 26482 Qualified in Franklin County Commission Expires 05/27/12
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------X In re: Chapter 11 TRONOX INCORPORATED, Debtor(s) -------------------------------------------------------X Case No. 09-10156-alg ORDER TERMINATING THE AUTOMATIC STAY TOYOTA MOTOR CREDIT CORPORATION ( TOYOTA ) having moved this Court pursuant to a Motion for Relief from Stay dated June 28, 2011 for an Order terminating the stay imposed against TOYOTA and seeking authorization for TOYOTA to repossess and sell the 2006 FORKLIFT WITH ATTACHMENTS (the Collateral ), and sufficient cause having been shown, and after due deliberation by this Court, it is ORDERED, that the stay imposed against TOYOTA pursuant to 362(a) of the Bankruptcy Code is terminated, and TOYOTA is authorized to take any and all lawful actions necessary to enforce its rights and remedies, including repossession and sale of the Collateral under applicable State Law, and it is further ORDERED, that in the event of the sale of the Collateral, TOYOTA shall give notice to the Trustee of any surplus monies that may exist after the sale, and it is further ORDERED, that the provisions of Rule 4001(a)(3) of the Federal Rules of Bankruptcy Procedure are waived. Dated: ALLAN L. GROPPER United States Bankruptcy Judge