04/16/2008 432 Objection Filed by 10315 LLC, John P Murphy III, John P. Murphy Revocable Trust No. 1 III, Pro Plas LLC (RE: related document(s)407 Motion for Relief From Stay filed by Creditor First National Bank of Barnesville, Georgia). (Case, E.) (Entered: 04/16/2008)
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Doc 432
OCR extract
In re:
Case No. 07-50934
Chapter 11
PLASTICON INTERNATIONAL, INC.,
Debtor.
THE MURPHY ENTITIES' OBJECTION TO FIRST NATIONAL BANK OF BARNESVILLE'S MOTION FOR RELIEF FROM STAY AND ABANDONMENT OF PROPERTY
OPP LLC f/k/a Pro Plas LLC, a Missouri limited liability company, the John P. Murphy III Revocable Trust No. 1, 10315 LLC, a Missouri limited liability company, and John P. Murphy, an individual (the "Murphy Entities"), file this their Objection to First National Bank of Barnesville's Motion for Relief from Stay and Abandonment of Property and in support thereof state the following:
1. The Murphy Entities admit the allegations in paragraph 1 of First National Bank of Barnesville's Motion for Relief from Stay and Abandonment of Property ("FNBB's Motion").
2. The Murphy Entities admit the allegation in paragraph 2 of FNBB's that Debtor Plasticon International, Inc. filed its Chapter 11 Voluntary Petition for Relief on May 16, 2007 but are without knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations in paragraph 2 of FNBB's Motion.
3. The Murphy Entities admit the allegations in paragraph 3 of FNBB's Motion that Exhibit 1 is a copy of the Proof of Claim that FNBB filed with the Clerk of the United States Bankruptcy Court but are without knowledge or information sufficient to form a belief as to the truth of the allegation that $1,448,039.95, plus late charges, cost and reasonable attorneys' fees is due and owing to FNBB.
a. James Turek testified during his deposition in this case that an agreement was reached with George Butler, Chief Executive Officer of FNBB in Las Vegas, Nevada reducing the indebtedness from $1,448,039.95 to $500,000 and that the agreement was recorded on a cocktail napkin.
b. Attached hereto and incorporated herein as Exhibit "A" is a cocktail napkin from the Rio All Suites Hotel & Casino in Las Vegas, Nevada that has written on it "Agreement between Plasticon & First Nat'L Barnesville" and is executed by "James Turek Pres, Plasticon" and by "George Butler, CEO. FNBBV".
c. Attached hereto and incorporated herein as Exhibit "B" is a copy of a letter dated February 22, 2005 from George Butler, President of FNBB, addressed to "Jim" in regard to FNBB selling "Wicklund Holding Company's original loan to Promotional Container, Inc." and terminating FNBB's "previous agreement with Wicklund Holding Company".
d. In the February 22, 2005 letter George Butler stated "As I have indicated to you I have released the collateral and will shortly provide you the loan documents and pay-off statements per our agreement."
e. Attached hereto and incorporated herein as Exhibit "C" is a copy of a letter dated April 21, 2006 from "George" at FNBB addressed to "Jim" verifying that "as of January 1, 2005 your company's (Plasticon's) debt to our bank was $500,000." and a copy of the FNBB fax coversheet dated April 21, 2006 from George Butler to Judy Payner at Plasticon.
f. Additional documents were produced during the depositions of the various parties in regard to the reduction of the debt from $1,448,039.95 to $500,000 and the perfection and release of the collateral.
4. The Murphy Entities deny the allegations in paragraph 4 of FNBB's Motion.
a. The Murphy Entities specifically deny that FNBB has a lien on "all of the assets of the Debtor, its divisions and subsidiaries".
b. The Murphy Entities deny that the following items listed on Exhibit "2" to FNBB's Motion are the property of Debtor Plasticon and are subject to the lien of FNBB because the following items were the property of Debtor Pro Mold and were foreclosed upon:
(1) Moisture analyzer/scale/wprinter .AD 1191 (See Exhibit "D");
(2) 2 Quality test machines Including drawings and technical set-up data (Designed and built by Pro Mold, Inc. engineers with component parts and machinery provided by Pro Mold, Inc. — affidavit can be obtained);
(3) All quality manuals (Proprietary work of the molder, Pro Mold, Inc.);
(4) All quality records/samples and data from initial production runs thru October 2006 (Location unknown, may be on one of the trailers);
(5) 2 Hot runner controllers (12) zone, with cables (See Exhibit "E")
c. The "Inventory Continued", "Manufactured Product Inventory" and the "Inventory" on "attached Excel Spread Sheet" listed on Exhibit "2" of FNBB's Motion was addressed in and is governed by the Compromise and Settlement Agreement (Pro Mold D.E. #338 and PLNI D.E. #338) that was approved by the Court (Pro Mold D.E. #350 and PLNI D.E #349).
5. The Murphy Entities deny the allegations in paragraphs 5 through 12 of FNBB's Motion.
WHEREFORE, the Murphy Entities request that the Court deny First National Bank of Barnesville's Motion for Relief from Automatic Stay and Abandonment of Property or in the alternative, if the Court grants the First National Bank of Barnesville's Motion for Relief from Automatic Stay and Abandonment of Property that the Court order that the personal property listed above in paragraph 4.b. is not the property of Debtor Plasticon International, Inc., but was the property of Debtor Pro Mold, Inc. and was foreclosed upon and that the personal property listed above in paragraph 4.c. was addressed and is governed by the Compromise and Settlement Agreement that was previously approved by the Court.
STONE, LEYTON & GERSHMAN A Professional Corporation
By: /s/ E. Rebecca Case
E. Rebecca Case, EDMO #2800
Howard S. Smotkin, EDMO #4407
7733 Forsyth Boulevard, Suite 500
St. Louis, Missouri 63105
(314) 721-7011
(314) 721-8660
Facsimile erc@stoneleyton.com
hss@stoneleyton.com
Attorneys for the Murphy Entities
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served electronically and/or by first class mail in the method established under CM/ECF Administrative Procedures Manual and the Local Court Standing Order dated July 25, 2002, via electronic and/or first class, postage prepaid U.S. mail on this l6th day of April 2008. |
