03/14/2008 404 Application for Administrative Expenses for Eagle View One, LLC, Other Professional, fee: $7,172.50, expenses: $., filed by Eagle View One, LLC. Hearing scheduled for 4/10/2008 at 02:30 PM at Lexington Courtroom, 3rd Floor. (Attachments: # 1 Proposed Order) (Dean, Leslie) (Entered: 03/14/2008)
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Doc 404
IN RE:
Case No. 07-50934
Chapter 11
PLASTICON INTERNATIONAL, INC.
Debtor
(1) MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSE;
(2) NOTICE OF PROOF OF CLAIM MITIGATION AND UDPATED PROOF OF CLAIM AMOUNT; and
(3) OBJECTION TO DEBTOR’S EMPLOYEES BEING PAID WAGES, BENEFITS, OR OTHER MONETARY AMOUNTS DUE TO NONADMINISTRATIVE EXPENSE
Comes Eagle View One, (EVO) and by counsel herein respectfully states as follows:
1. Creditor EVO moves the Court for payment of administrative expense rent pursuant to 11 U.S.C. §365.[1]
[1] See also 11 U.S.C. §502 and 11 U.S.C. §503.
2. As set forth in the record, EVO leased to Plasticon non-residential, commercial property at 3288 Eagle View Drive, Suite 290, Lexington, Kentucky 40509 (1/1/06-12/31/10 at $5,662.50 per month). See the parties lease filed previously in the record and part of EVO’s Proof of Claims.
3. Plasticon, including its trustee, did not pay the October, 2007 rent of $5,662.50 forward and became a holdover after failing to actually assume or reject the lease which was deemed legally rejected. After advertising and actively searching for a tenant, the property was re-let February 14, 2008.
4. The Court ordered Plasticon to surrender the property on November 8, 2007.
5. The Court should order immediate payment of $7,172.50 ($5,662.50 for 10/07 and $1,510.00 for the 8 days occupied in 11/07) for the period from October 1, 2007 to the date of surrender, November 8, 2007, at which time Plasticon occupied the property, including the property being full of Plasticon’s furniture in all of the rooms. Said amount is based on the lease amount and also constitutes the reasonable value and use of the leased premises. This expense has administrative priority status. See 11 U.S.C. §365 and In re Cardinal Indus., 109 B.R. 738 (B.C. S.D. Ohio 1989) and In re Bio-Med Labs, 131 B.R. 72 (B.C. N.D. Ohio 1991).
6. EVO also makes known its claim for post-rejection lost rents of $18,015.75, itemized as follows:
-$4,152.50 (11/9/07 to 11/30/07 rent)
-$5,662.50 (12/07 rent)
-$5,662.50 (1/08 rent)
-$2,538.25 (2/1/08 to 2/13/08 rent)
__________________
$18,015.75
Said amount is based on the lease amount and constitutes the reasonable value and use of the lease premises. Said updated proof of claim amount does not include its claim for attorney fees and costs per the parties’ lease contract, to be itemized at the Court’s direction if any money is left to divide between the general unsecured creditors.
7. Also, EVO, having a claim for post-rejection lost rents, expressly object to Plasticon’s employees getting paid any monies post-petition, including, but not limited to, any health insurance payments, commissions, wages, or other benefits, because any activity by said persons, if at all, has not benefitted the estate and was not necessary to the preservation of the estate such that they are not administrative expenses or under 11 U.S.C. §503. A hearing should be held for the Court to determine said issues before any amounts are paid to said employees, including Jim Turek, because payment of the same hinders distribution to creditors. The hearing should focus on issues including, but not limited to, work claimed performed for Plasticon, the benefit to the estate, as well as where the Plasticon employees were also working at the same time. EVO believes that Jim Turek may be attempting to pay TelcoBlue employees (and/or pay alleged Plasticon employees for work done for TelcoBlue or other companies) by and through the Plasticon case. EVO had to recently evict TelcoBlue for non-payment of rent after having receiving cold checks from TelcoBlue.
WHEREFORE, having updated the Court on its claims (not including attorney fees and costs per the parties’ lease contract), and having moved for administrative expenses for the period which should have been paid by the debtor/trustee to EVO timely per 11 U.S.C. §365, but was not, EVO respectfully requests the Court to order said immediate payment of $7,172.50 as an administrative expense as set forth herein.
VERIFICATION
The foregoing is true and correct to the best of my knowledge and belief.
__________________________
Melvin K. Drury
Managing Member of
Eagle View One, LLC
NOTARY PUBLIC
Acknowledged, subscribed, and sworn to before me, Leslie Dean, this the 14th day
of March, 2008 at 3288 Eagle View Lane, Suite 300, Lexington, Kentucky 40509.
__________________________
Notary Public
KY State at Large; Fayette Co.
Comm. exp: 6/15/10
NOTICE OF HEARING
Please take notice that the foregoing shall come on for hearing before the Bankruptcy Court for the Eastern District of Kentucky, Lexington Division, on the 10th day of April, 2008 2:30 p.m. or as soon as thereafter may be heard, at the United States Bankruptcy Court, 100 East Vine Street, 3rd Floor Courtroom, Lexington, Kentucky 40507.
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served electronically and to all parties listed on the Master Service List via electronic and/or first class, postage prepaid U.S. mail on this 14th day of March, 2008.
/s/ Leslie Dean_______________
Leslie Dean
By: /s/ Leslie Dean________________
Leslie Dean
Leslie Dean, Atty. at Law, PSC
3288 Eagle View Lane, Suite 300
Lexington, KY 40509
Telephone: (859) 296-4575
Facsimile: (859) 296-4577
Email: ldean@LeslieDean.com
Attorney for Eagle View One, LLC |
