h. First National Bank of Barnesville (“FNBB”)
...
(1) In James N. Turek, Sr.’s Affidavit in Support of First Day Motions, he swears: “29. Except for capital leases, neither Plasticon nor Pro Mold has secured creditors other than the Murphy Entities described above.” (Exhibits “15 and 23”)
Part 2 - Doc 83 - Motion for Relief from Stay, filed by Pro Plas LLC
f. Patent Ownership
(1) Debtor Plasticon stated on Schedule B, Personal Property, that it owns Patent No. 4,942,714 Slab Bolster U.S. and that it has an unknown value. (Exhibit “26”)
(2) James N. Turek, Sr. in his Affidavit in Support of First Day Motions states that “Plasticon owns a patent for the manufacture of slab bolsters and individual supports, which patent has significant value. Plasticon has donated use of the patent to Pro Mold without charge.” (Exhibits “15” and “23”)
(3) However, an entity owned or controlled by James N. Turek, Sr., Promotional Containers, Inc., asserts in a lawsuit in the United States District Court, Eastern District of Kentucky, Lexington Division, Case No. 04-cv-00336, styled Promotional Containers, Inc. vs. Aztec Concrete Accessories, Incorporated et al., that as of 6/12/2006 it was the assignee of Patent No. 4,942,714 Slab Boster. Docket No. 65, First Amended Complaint.
(Exhibit “28”, page 2, paragraph 7, First Amended Complaint)
g. Other Erroneous, False, or Incomplete Statements on Schedule B
(1) Debtor Plasticon failed to list any office equipment, furnishings or supplies on Schedule B, Personal Property, Number 28; however, James N. Turek, Sr., in his Affidavit in Support of First Day Motions, asserts that Plasticon has been headquartered in Lexington, KY since 1989 and Plasticon has asserted it is electronically connected to Pro Mold in St. Louis, Missouri. (Exhibits “15”, “23” and “26”)
(2) Debtor Plasticon failed to list on Schedule B, Number 21, any claims it has against any entity, including the lawsuits described herein. (Exhibit “26”)
h. First National Bank of Barnesville (“FNBB”)
(1) In James N. Turek, Sr.’s Affidavit in Support of First Day Motions, he swears: “29. Except for capital leases, neither Plasticon nor Pro Mold has secured creditors other than the Murphy Entities described above.” (Exhibits “15 and 23”)
(2) On Schedule D, Creditors Holding Secured Claims, Debtor Plasticon listed FNBB as holding a secured claim in the amount of $435,625.46 secured by “Patents and Molds” with an “Unknown” value. (Exhibit “26”)
(3) Debtor Plasticon did not state on Schedule D when the FNBB’s claim was incurred or the nature of the lien. (Exhibit “26”)
(4) Debtor Plasticon did not mark an “X” on Schedule D in the column labeled “Codebtor”. (Exhibit “26”)
(5) Debtor Plasticon did not list the claim of FNBB on Schedule D as disputed, contingent or unliquidated. (Exhibit “26”)
(6) FNBB filed a Proof of Claim in Debtor Plasticon’s case and stated that it is owed $1,448,039.95, that its’ collateral is “Patents”, and that the value of the Patents is “Unknown.” (Exhibit “18”)
(7) FNBB’s Proof of Claim was signed by George W. Butler, President and CEO. (Exhibit “18”)
(8 ) George W. Butter (sic) is listed on Debtor Plasticon’s SOFA, question number 21.b. as a Director of Debtor Plasticon. (Exhibit “26”)
(9) Attached to the FNBB’s Proof of Claim is a Promissory Note signed by James N. Turek, President of Wicklund Holding Company (“Wicklund”), for the principal sum of $1,448,040.95 dated June 14, 2000 with a Maturity Date of September 12, 2000. (Exhibit “18”)
(10) The purpose of the FNB loan was stated as “Business: Consolidate FL Curbing & Wicklund Notes.” (Exhibit “18”)
(11) The FNBB Promissory Note states the following:
“THIS NOTE IS SECURED BY ASSIGNMENT OF REBAR AND BEAM BOLSTER, SLAB AND BEAM BOLSTER UPPER AND REBAR AND BEAM HIGHCHAIR PATENT FROM INTERNATIONAL PLASTICS CORPORATION; ASSIGNMENT AT REEL 010327, FRAM 0090 REC 10/22/99; DSD RE 3613 WINDING WOOD LN & DSD RE 2196 BROADHEAD PLACE LEXINGTON, KY. THIRD PARTY PLEDGE AGREEMENT FROM JAMES & IRIS TUREK; PERSONAL GUARANTY OF JAMES N TUREK; CORPORATE GUARANTY OF FLORIDA CURBING, INC.; ACCOUNTS RECEIVABLE OF FLORIDA CURBING INC.
INTEREST TO BE PAID MONTHLY (JULY 12, 2000, AUGUST 12, 2000 AND SEPTEMBER 12, 2000. NOTE TO BE PAID OUT BY STOCK OFFERING IF SUCCESSFUL.” (Exhibit “18”)
(12) Attached to the FNBB Proof of Claim is a Security Agreement dated June 14, 2000 executed by James N. Turek, President of Wicklund. (Exhibit “18”)
(13) Wicklund granted FNBB a security interest in Wicklund’s:
(a) inventory;
(b) equipment;
(c) accounts;
(d) general intangibles; and
(e) “Assignment of patents from International Plastics Corp.”
(14) Attached to the FNBB Proof of Claim is an unlimited Guaranty dated June 14, 2000 executed by James N. Turek. (Exhibit “18”)
(15) The unlimited Guaranty states that it is secured by a mortgage or security agreement; however, no mortgage or security agreement is attached to the FNBB Proof of Claim. (Exhibit “18”)
(16) Attached to the FNBB Proof of Claim is an unsecured Guaranty by Corporation dated June 14, 2000 executed by James N. Turek, President of Florida Curbing, Inc. (Exhibit “18”)
(17) No UCC-1 Financing Statements were attached to the FNBB Proof of Claim. (Exhibit “18”)
(18 ) No UCC-1 Financing Statements were filed by FNBB in Kentucky, Missouri or Wyoming as to Debtor Plasticon. (Exhibit “18”)
(19) No documents were attached to the FNBB Proof of Claim that established that it has a lien on patents on file with the United States Patent and Trademark Office as to Debtor Plasticon. (Exhibit “18”)
(20) Debtor Plasticon stated in response to SOFA question number 3.b. that it paid $19,389.00 to the FNBB for “3/27/07 note payments on secured loan” and that the “Amount Still Owing” was $435,625.46. (Exhibit “18”)
(21) Debtor Plasticon should investigate and if appropriate, object to the scheduled FNBB Claim and the claim filed by FNBB. |
