MOTION TO CONVERT CASE TO CHAPTER 7 OR APPOINT CHAPTER 11 TRUSTEE
COME now, MICHAEL WELCH, MATTHEW NICOLETTI, SCOTT FORSYTHE, EMPIRE CAPITAL, LLC and CAUGHT IN THE WEB, LLC (collectively “Movants”), creditors and parties in interest herein, and file this, their Motion to Convert Case to Chapter 7 or Appoint Chapter 11 Trustee (“Motion”), and would respectfully show unto the Court the following:
JURISDICTION AND VENUE
1. This Court has jurisdiction over this Motion pursuant to 28 U.S.C. §§ 157 and 1334. Consideration of this Motion is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). Venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409. The statutory predicate and rules governing the relief sought herein are 11 U.S.C. §§ 105, 1104, and 1112 and Federal Rules of Bankruptcy Procedure 1017 and 9014.
BACKGROUND
2. On December 16, 2013 (the “Petition Date”), Republic of Texas Brands, Inc. (“Debtor” or “RTXB”) filed its voluntary petition for relief under Chapter 11, Title 11 of the United States Code (the “Bankruptcy Code”).
3. Movants are all creditors of the Debtor. Additionally, Michael Welch (“Welch”) is a shareholder and the former CFO of the Debtor.
4. Prior to the Petition Date, Debtor and Empire Capital, LLC (“Empire”) entered into a Services Agreement, whereby Empire was to provide Debtor with general business development assistance, marketing assistance, sales assistance, incorporation services, business plan development assistance, and private placement assistance. In return, Debtor was to pay Empire $200,000.
5. Matthew Nicoletti (“Nicoletti”) and Scott Forsythe (“Forsythe”) are officers of Empire. They personally loaned money to the Debtor during the time Empire was performing services for the Debtor. Additionally, Caught in the Web, LLC, another company Forsythe is an officer of, also loaned money to the Debtor during the time Empire was performing services for the Debtor.
6. Debtor breached the Services Agreement, and Empire filed suit in the United States District Court for the Western District of North Carolina, case 3:13-cv-00628, on or about November 15, 2013.
7. Movants are aware of multiple actions taken by Debtor’s current management prior to the Petition Date, which constitute cause to convert this case to a chapter 7 proceeding, or appoint a chapter 11 trustee. These include but are not limited to:
- Management misrepresented to investors its history as a shell company in order to improperly issue shares under Rule 144 of the Securities and Exchange Act of 1934;
- Management took actions to attempt to thwart the issuance and delivery of shares to investors, knowing consideration for those shares had been received and that the issuance and delivery of those shares was approved by the board of directors;
- Management issued press releases misrepresenting that Debtor had entered into a lucrative co-packing agreement, knowing that said agreement had not been executed and despite being counseled as to the inappropriate timing of the press release;
- Management misrepresented to investors that it had a binding contract to purchase a restaurant chain, knowing that Debtor had nothing other than an expired, non-binding, letter of intent at the time the misrepresentations were made.
8. Management has continued to take actions after the Petition Date, which constitute cause to convert this case to a chapter 7 proceeding, or appoint a chapter 11 Trustee. These include but are not limited to:
- Management misrepresented, either in Debtor’s sworn schedules, or in Debtor’s 341 meeting testimony, or both, that liens have been granted against Debtor’s intellectual property;
- Management represented in Debtor’s 341 meeting that it was under a confidentiality agreement related to a potential merger candidate, but prior to the 341 meeting management sent correspondence to various noteholders and shareholders identifying aspects of the merger that were supposedly confidential and possibly exposing the Debtor to liability for breaching the confidentiality agreement management testified to;
- Management authorized the filing of an application to employ as counsel an individual that is a creditor of the Debtor, shareholder of the Debtor, officer of the Debtor, and fact witness in the litigation he would represent the Debtor on, willfully ignoring applicable Bankruptcy Code provisions, and despite being advised by the U.S. Trustee that the individual could not represent the Debtor, thus wasting estate assets;
- Management authorized the filing of an adversary proceeding against Welch that will be shown to be totally without merit, and even if it were not, the recovery the adversary proceeding seeks is the return of shares in the Debtor that would appear to be worthless based on the Debtor’s prospects for rehabilitation under chapter 11, a waste of estate assets;
9. The actions of Debtor’s current management exhibit dishonesty, incompetence, gross mismanagement of the Debtor’s affairs, and constitute cause to convert this case or appoint a trustee. Further, the Debtor has assets of less than $1,000, no business operations, and no indication that there is a reasonable likelihood of rehabilitation under chapter 11.
RELIEF REQUESTED
10. Movants request that the Court convert this case to a chapter 7 proceeding, or appoint a chapter 11 trustee, whichever is in the best interests of the creditors and the estate.
11. Because Debtor does not have ongoing operations and income and has assets of less than $1,000, a chapter 11 plan does not appear feasible. If the option of securing a third party to merge into the Debtor or acquire the Debtor’s assets as part of this case exists, that option can, and should, be completed by a chapter 7 trustee or chapter 11 trustee. Debtor’s current management has shown, both pre-petition and post-petition, that they cannot or will not act in the best interests of the creditors and the estate.
12. Section 1112(b)(1) of the Bankruptcy Code provides:
Except as provided in paragraph (2) and subsection (c), on request of a party in interest, and after notice and a hearing, the court shall convert a case under this chapter to a case under chapter 7 or dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause unless the court determines that the appointment under section 1104(a) of a trustee or an examiner is in the best interests of creditors and the estate.
11 U.S.C. § 1112(b)(1).
13. Section 1104(a) of the Bankruptcy Code provides:
At any time after the commencement of the case but before confirmation of a plan, on request of a party in interest or the United States trustee, and after notice and a hearing, the court shall order the appointment of a trustee… (1) for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor by current management, either before or after the commencement of the case, or similar cause…
11 U.S.C. § 1104(a)(1).
14. The actions of Debtor’s current management exhibit dishonesty, incompetence, gross mismanagement of the Debtor’s affairs, and constitute cause to convert this case or appoint a trustee under Bankruptcy Code sections 1104 or 1112.
WHEREFORE, PREMESIS CONSIDERED, Movants pray that this Court (i) grant the Motion; (ii) convert the case to a chapter 7 proceeding or appoint a chapter 11 trustee, whichever is in the best interests of creditors and the estate; and (iii) grant Movants such other and further relief to which they may be entitled.
Dated this 3rd day of March 2014.
Respectfully submitted,
ANDERSON TOBIN, PLLC
/s/ J. Seth Moore
J. Seth Moore
Texas Bar No. 24027522 One Galleria Tower
13355 Noel Road, Suite 1900
Dallas, Texas 75240
Telephone: (972) 789-1160
Facsimile: (972) 789-1606
E-Mail: atobin@andersontobin.com
ATTORNEYS FOR MICHAEL WELCH, MATTHEW NICOLETTI, SCOTT FORSYTHE,
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