12/05/2007 329 Proposed Order submitted by Howard S. Smotkin (RE: related document(s)83 Motion for Relief From Stay filed by Creditor Pro Plas LLC). (Smotkin, Howard) (Entered: 12/05/2007)
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Doc 329
In Re:
Case No. 07-50934
Judge William S. Howard
Chapter 11
PLASTICON INTERNATIONAL, INC.
Debtor.
PRO PLAS LLC,
Movant,
v.
PLASTICON INTERNATIONAL, INC.
Respondent.
ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY FILED BY PRO PLAS LLC
On the 19th day of November 2007, came on to be heard the Motion for Relief from Automatic Stay filed by Pro Plas LLC, a Missouri limited liability company (“Motion”), (D.E. #83) filed in the above-styled and numbered case. The Court finds that all parties received notice as required by law of the filing of the Motion and the hearing thereon. Further, based on the exhibits and other evidence submitted in accordance with this Court’s Scheduling Order and a review of the record as a whole, the Court finds as follows:
Jurisdiction and Bankruptcy Filing
1. The Court has jurisdiction regarding this matter pursuant to 28 U.S.C. §1334 and 28 U.S.C. §157 and the Local Rules for the United States District Court for the Eastern District of Kentucky.
2. This matter is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(D).
3. On May 16, 2007 Debtor Plasticon International, Inc. (“Debtor Plasticon”), filed its Voluntary Chapter 11 Petition for Relief in the United States Bankruptcy Court for the Eastern District of Kentucky, Lexington Division (“Court”).
4. Debtor Plasticon continued to operate its business and manage its financial affairs pursuant to Sections 1107 and 1108 of the Bankruptcy Code from May 16, 2007 until October 3, 2007, under the control of James N. Turek, Sr., Debtor Plasticon’s President.
5. On October 3, 2007, this Court ordered the Appointment of a Chapter 11 Trustee.
6. The Office of the United States Trustee appointed Stephen Palmer to serve as the Chapter 11 Trustee (“Trustee”).
7. Even with the appointment of a Chapter 11 Trustee, Debtor Plasticon continues to struggle and its financial condition continues to decline.
Relief from the Automatic Stays of 11 U.S.C. §362
Introduction
8. Movant Pro Plas LLC (“Movant” or “Pro Plas”) assignee of and successor to the John P. Murphy III Revocable Trust No. 1 (“Trust”) requests relief from the automatic stay to foreclose on its security interests in Debtor Pro Mold, Inc.’s (“Debtor Pro Mold’s”) personal property (the “PMI Collateral”) to the extent necessary, and all of the issued and outstanding stock of Debtor Pro Mold, represented by Stock Certificate No. 4, consisting of one thousand shares (1,000) shares of common stock of Debtor Pro Mold, (“the Pro Mold Stock”) collectively the “PLNI Collateral”.
9. Movant Pro Plas also seeks authority to apply the proceeds from the foreclosure sale of the Pro Mold Stock against the secured debt due and owing to Movant Pro Plas.
10. The Motion was filed on June 22, 2007.
11. The only evidence before the Court are the affidavits and exhibits submitted by Movant Pro Plas in compliance with this Court's Amended Order Rescheduling Evidentiary Hearing (D.E. #276) ("Scheduling Order").
12. Debtor Plasticon filed two responses to the Motion (D.E. #101 and D.E. #291).
13. Other than Movant Pro Plas, no other party complied with the Scheduling Order by submitting proposed exhibits or affidavits, or participating in the preparation of a joint stipulation of fact, or objecting to the submissions of Movant Pro Plas.
14. Pro Plas holds valid security interests in the PLNI Collateral, sufficient to entitle it to the relief requested in the Motion and the right to credit bid its debt in the event it forecloses on the PLNI Collateral or the PLNI Collateral is otherwise sold.
15. The Court makes no finding as to whether the security interests of Movant Pro Plas in the PLNI Collateral are avoidable under any applicable provision of the Bankruptcy Code or other applicable law.
Order On Motion For Relief From Automatic Stay Filed By Pro Plas LLC, John P. Murphy III Revocable Trust No. 1, 10315 LLC And John P. Murphy In Debtor Pro Mold’s Case
16. On November 19, 2007 the Court also heard the Motion for Relief from Automatic Stay filed by Pro Plas LLC, John P. Murphy III Revocable Trust No. 1, 10315 LLC and John P. Murphy (the “Murphy Entities”) in Debtor Pro Mold’s case. (USBC-EDKY Case No. 07-5035 - D.E. #77).
17. On December __, 2007 the Court signed and the Clerk entered the Order on Motion for Relief from Automatic Stay Filed by Pro Plas LLC, John P. Murphy III Revocable Trust No. 1, 10315 LLC and John P. Murphy (USBC-EDKY Case No. 07-50935 D.E. #__) in Debtor Pro Mold’s case (Order on Motion for Relief in Debtor Pro Mold’s case).
18. The Order on Motion for Relief in Debtor Pro Mold’s case is incorporated herein by reference.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT,
A. Concurrently with the granting of any relief from the automatic stay in Debtor Pro Mold’s case to the Murphy Entities , the Court shall also grant relief from the automatic stay in this case to Pro Plas.
B. Oral findings of fact and conclusions made by the Court at the hearing are incorporated herein by reference in their entirety.
C. The automatic stay of 11 U.S.C. §362 shall remain in full force and effect as to Pro Plas until relief therefrom is granted pursuant to order entered in accordance with this Order.
Submitted by:
Howard S. Smotkin
STONE, LEYTON & GERSHMAN
A Professional Corporation
7733 Forsyth Boulevard, Suite 500
St. Louis, Missouri 63105
(314) 721-7011
(314) 721-8660 Facsimile
hss@stoneleyton.com
Attorneys for the Murphy Entities
Pursuant to Local Rule 9022-1(c), Howard S. Smotkin shall cause a copy of this order to be served on each of the parties designated to receive this order pursuant to Local Rule 9022-1(a) and shall file with the court a certificate of service of the order upon such parties within ten (10) days hereof.
Plasticon International, Inc.
Attorney for Debtor
Office of the U.S. Trustee
Eric Assoouline
Gregory R. Schaaf Attorney for Official Unsecured Creditors’ Committee in Plasticon International, Inc. Kenneth C. Henry Attorney for Pro Mold Chapter 11 Trustee
Steven Palmer
Attorney for Plasticon Chapter 11 Trustee Master Service List No. 1 |
