09/05/2007 190 Response Filed by Wyatt, Tarrant & Combs, LLP (RE: related document(s)168 Application to Employ). (Brice, John) (Entered: 09/05/2007)
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Extracted from Doc 190 -
RESPONSE TO APPLICATION TO EMPLOY FOWLER, MEASLE & BELL, PLLC AS ATTORNEYS FOR DEBTOR
Wyatt, Tarrant & Combs, LLP, hereby files this response to the Application to Employ Fowler, Measle & Bell, PLLC, as attorney's for Debtor, and respectfully states as follows:
1. On May 16, 2007, Plasticon International, Inc., filed for Chapter II bankruptcy protection in the United States Bankruptcy Court, Eastern District of Kentucky, Lexington Division. The Debtor is operating its business as a debtor-in-possession pursuant to II U.S.c. §§ 1107 and 1108.
2. On May 17, 2007, Plasticon International, Inc., filed its Application to Employ Wyatt, Tarrant & Combs, LLP, as attorneys for Debtor. ("Wyatt Application") As part of its Application to Employ, the Affidavit of Wyatt attorney Robert 1. Brown disclosed to the court that a pre-petition security retainer in the amount of $55,658.22 was being held by Wyatt, Tarrant & Combs, LLP, for services expected to be rendered post-petition. The source of said compensation was operational income of Plasticon International, Inc.
3. On June 5, 2007, an Order was entered authorizing the employment of Wyatt, Tarrant & Combs, LLP, as attorneys for the Debtor, effective retroactively to May 16, 2007. No objections were filed to the Application to Employ and the retainer agreement is reasonable in accordance with 11 U.S.c. §328(a).
4. On August 16, 2007, an Application to Employ Fowler, Measle & Bell, PLLC, as attorneys for Debtor was filed herein. ("Fowler Application") The Fowler Application and proposed order tendered to employ Fowler, Measle & Bell requests that any unused retainer held by Wyatt, Tarrant & Combs, LLP, be turned over to new counsel in this matter.
5. On August 27, 2007, the Official Committee of Unsecured Creditors filed a response to the Fowler Application. The unsecured creditors committee's response supports the Fowler, Measle & Bell application to employ and requests that Wyatt, Tarrant & Combs turn over any remaining unused retainer to Fowler, Measle & Bell. Said response further requests that any retainer turned over by Wyatt, Tarrant & Combs should be preserved for counsel for the Official Committee of Unsecured Creditors. (Response ~11)
6. As set forth in its response, Wise Delcotto has yet to be retained on behalf of the Official Committee of Unsecured Creditors, and thus lacks standing to present to the Court its proposed distribution of the remaining unused retainer. Furthermore, the subject retainer obtained by Wyatt, Tarrant & Combs, LLP, is a pre petition security retainer which is not available to the Official Committee of Unsecured Creditors, since only the Debtor's equitable interest in said funds constitutes property of the estate.
7. An agreement was previously reached between Wyatt, Tarrant & Combs and Fowler, Measle & Bell, subject to this Court's approval, whereby Wyatt, Tarrant & Combs would be able to deduct from its security retainer referenced above the costs it incurred post-petition in its representation of Plasticon International, Inc., and the debtor's subsidiary, Pro Mold, Inc., in the related Chapter II case, 07-50935. As of the date of this response, Wyatt, Tarrant & Combs has incurred costs of approximately $5,892.48 in Plasticon International, Inc., and approximately $2,570.71 in the related Pro Mold Chapter II case, 07-50935. In total, approximately $8,463.19, in costs has been incurred by Wyatt, Tarrant & Combs, which should not be subject to turnover, pending approval by the Bankruptcy Court.
8. Furthermore, subject to Court approval, Wyatt, Tarrant & Combs and Fowler, Measle & Bell further agreed that after the deduction of out of pocket costs, the subject retainer held by Wyatt, Tarrant & Combs would be split evenly between the two law firms for its representation efforts. Accordingly, approximately $23,597.51 of Wyatt's pre-petition security retainer should initially be turned over to Fowler, Measle & Bell, pursuant to the agreement reached by the parties and subject to Court approval.
9. Wyatt, Tarrant & Combs is in the process of preparing a final fee application for its representation in both the Plasticon International, Inc. and Pro Mold, Inc., bankruptcy actions. Upon the Court's approval of said final fee application, Wyatt, Tarrant & Combs should be entitled to retain its portion of the retainer it currently holds in accordance with the agreement previously reached with Fowler, Measle & Bell.
WHEREFORE, Wyatt, Tarrant & Combs, LLP, respectfully requests this Court enter an order approving the application to employ Fowler, Measle & Bell, PLLC as attorneys for Plasticon International, Inc., further ordering that Wyatt, Tarrant & Combs turnover $23,597.51 of Wyatt's pre-petition security retainer to Fowler, Measle & Bell, and further order that Wyatt, Tarrant & Combs, LLP, hold the remainder of its retainer pending submission of its final fee application with the Court.
NOTICE
The foregoing Response to Application to Employ Fowler, Measle & Bell, PLLC as Attorneys for Debtor shall come on for hearing before the United States Bankruptcy Court, Eastern District of Kentucky, Lexington Division, on September 6, 2007 at 2: 15 p.m., located at 100 East Vine Street, 3rd Floor, Bankruptcy Court, Lexington, Kentucky, or as soon thereafter as counsel may be heard.
Respectfully submitted,
/s/ John P. Brice
John P. Brice WYATT, TARRANT & COMBS, LLP
250 W. Main Street, Suite 1600 Lexington, KY 40507
(859) 233-2012
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response to Application to Employ Fowler, Measle & Bell, PLLC has been served electronically in accordance with the method established under this Court's CMIECF Administrative Procedures and Standing Order dated July 25, 2002, upon all parties listed on the attached Plasticon Master Service List No. 1 via facsimile, electronic and/or first-class, postage prepaid U.S, mail on this 5th day of September, 2007.
/s/ John P. Brice
John P. Brice |
