08/31/2007 185 Order Scheduling EVIDENTIARY Hearing (related document(s)156 Motion to Appoint Trustee, filed by U.S. Trustee, 167 Motion to Appoint Chapter 11 Trustee filed by Creditor Pro Plas LLC). Evidentiary Hearing scheduled for 10/3/2007 at 10:00 AM at Lexington Courtroom, 3rd Floor. (rah, ) (Entered: 08/31/2007)
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Doc 185
IN RE:
PLASTICON INTERNATIONAL, INC.
CASE NO. 07-50934
DEBTOR
ORDER SCHEDULING EVIDENTIARY HEARING
This matter having come before the court for a preliminary hearing on the Motion of the United States Trustee for Appointment of a Chapter 11 Trustee (Doc. #156) and the Motion by Pro Plas LLC for Appointment of a Chapter 11 Trustee (Doc. #167) and the matter having been heard on August 30, 2007, the court having heard arguments of counsel, and it appearing to the court that an evidentiary hearing is necessary, it is hereby ORDERED AS FOLLOWS:
1) An evidentiary hearing will be conducted before the court on October 3, 2007 at the hour of 10:00 a.m. in the United States Bankruptcy Courtroom, Courtroom B, Third Floor, Community Bank Building, 100 East Vine Street, Lexington, Kentucky.
2) The Motions before the court are contested matters as set forth in FRBP 9014. For purposes of discovery pursuant to FRBP 9014(c), the response period for such discovery is shortened to ten (10) days.
3) The parties shall file with the court stipulations of fact signed by attorneys for all parties on or before October 1, 2007. The process shall be initiated jointly by the movants and proposed stipulations shall be served on debtor’s counsel on or before September 21, 2007. Each party shall append proposed stipulations which they intend to prove in order to prevail in the matter. The objecting parties may strike any of the other parties’ proposed stipulations which they can controvert and shall propose their additional stipulations. Movants shall then strike those stipulations which movants can controvert. Movants shall prepare the Joint Stipulations which shall be all stipulations not stricken by any party. The Joint Stipulations thus arrived at shall be signed by all counsel and filed with the court as required above. Stipulations may include appended documents.
IT IS FURTHER ORDERED the following procedures shall be followed for the presentation of evidence at the hearing. The purpose of this procedure is to ensure a fair and expeditious hearing. The procedure is similar to a motion for summary judgment, except the admissibility of an affidavit is dependent upon the presence of the affiant at the hearing for cross-examination.
1. AFFIDAVITS:
a) Except as herein provided, each party shall present the testimony of its witnesses, under penalty of perjury, by affidavits of said witnesses otherwise admissible under Federal Rules of Evidence.
b) The oral testimony offered at the hearing by a party through its witnesses will be strictly limited to rebuttal testimony.
c) If a portion of a witness’ affidavit concerns an exhibit to be admitted into evidence at the hearing, the exhibit must be attached to the affidavit.
d) If a party is unable to obtain an affidavit of a witness, counsel for that party shall file an affidavit stating the name of the witness and a detailed summary of the expected testimony and why counsel was unable to obtain the witness’ affidavit. Failure to make every reasonable effort to obtain the affidavit of any such witness will result in exclusion of any oral testimony of such witness offered by the party.
e) If the party intends to present the witness’ testimony by a transcript of a deposition of the witness, only those portions of the transcript intended to be offered should be attached to counsel’s affidavit.
f) The affidavit of a witness for a party will be admissible at the hearing, subject to timely objections, and only if the affiant is present at the hearing to submit to cross-examination.
2. QUALIFICATIONS OF EXPERT WITNESS:
The parties shall serve and file a statement as to the qualifications of any expert witness to be relied upon at the hearing. The testimony of the witness will be allowed unless written objections to the qualifications of the witness are made
to the court within the time limit established in this order.
3. TIME FOR FILING AFFIDAVITS AND OBJECTIONS TO AFFIDAVITS, EXHIBITS, AND QUALIFICATIONS OF EXPERT WITNESS:
a) The movants shall serve and file affidavits, exhibits, and statement of the qualifications of any expert witness on or before September 14, 2007.
b) The objecting parties shall file any reply affidavits and objections on or before September 26, 2007.
c) No other affidavits and exhibits will be allowed, except by agreement of the parties. The only additional evidence a party may offer at the hearing is rebuttal evidence.
IT IS FURTHER ORDERED that related Debtor Pro Mold, Inc. shall comply with any and all terms of the Agreed Order on Debtor’s Amended Emergency Motion to Use Cash Collateral (“Cash Collateral Order”) that was signed and entered on May 31, 2007 (Doc. 53) in Case No. 07-50935.
If Debtor Pro Mold, Inc. fails to comply with any terms of the Cash Collateral Order the following shall occur:
a) The Murphy Entities shall file a Notice of Breach with the Clerk of the United States Bankruptcy Court and e-mail a copy of the Notice of Breach to Debtor Pro Mold and Debtor Pro Mold’s attorney and any Committee counsel.
b) Debtor Pro Mold shall have five (5) days from the date the Notice of Breach is e-mailed to cure the default.
c) Debtor Pro Mold must file a Notice of Cure with the Clerk of the United States Bankruptcy Court and deliver a copy of the Notice of Cure to the attorney for the Murphy Entities within five (5) days from the date the Notice of Breach is emailed.
d) If the default is Debtor Pro Mold making an expenditure relating to a non-budgeted item including capital improvements, without the prior written approval of the Murphy Entities or the Court’s prior written authorization, the Notice of Cure must include, as an attachment, a copy of the cashier's check or money order returning the funds to Debtor Pro Mold’s Debtor in Possession bank account and proof that the returned funds were deposited in to Debtor Pro Mold’s Debtor in Possession bank account. (Cash Collateral Order page 5, paragraph E)
e) If the default is Debtor Pro Mold incurring an obligation relating to non-budgeted items including capital improvements, without the prior written approval of the Murphy Entities or the Court’s prior written authorization, the Notice of Cure must include, as an attachment, documentation to establish that Debtor Pro Mold has been released from the incurred obligation. (Cash Collateral Order, Page 5, paragraph E)
f) If the default is Debtor Pro Mold failing to “make all other post-petition payments to the Murphy Entities pending further Order of the Court”, the Notice of Cure must include, as an attachment, a copy of the cashier’s check or money order delivered by Debtor Pro Mold to the attorney for the Murphy Entities. (Cash Collateral Order, Page 5, paragraph H)
g) The other post-petition payments listed in the Budget that must be paid to the Murphy Entities are as follows:
(1) John P. Murphy, III Trust Note No. 1 $3,088
(2) John P. Murphy, III Trust Note No. 2 $9,619
(3) John P. Murphy, III Trust Note No. 3 $4,740
(4) 10315 LLC (monthly rent) $12,479.41 (component of rent line item)(The Court did not rule on the Murphy Entities request that the $125,000 payment that was due on April 16, 2007 be escrowed and reserved this matter for the final hearing on Debtor Pro Mold’s Motion to Use Cash Collateral.)
If Debtor Pro Mold fails to cure the default within five (5) days of the e-mailing of the Notice of Breach, the Murphy Entities shall tender a proposed Order to the Court and the Court will take the matter under submission to consider immediate entry of an order appointing a Chapter 11 Trustee in either or both cases.
COPIES TO:
Dean A. Langdon, Esq.
John P. Brice, Esq.
Rebecca Case, Esq.
Gregory R. Schaaf, Esq.
Rachelle C. Williams, Esq.
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The affixing of this Court's electronic seal below is proof this document has been signed by the Judge and electronically entered by the Clerk in the official record of this case.
Signed By:
William S. Howard
Bankruptcy Judge
Dated: Friday, August 31, 2007
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