12/17/2007 326 Motion for Immediate Relief Pursuant to Order on Motion for Relief (D.E. #322), filed by 10315 LLC,John P. Murphy III Revocable Trust No 1, John P Murphy III,Pro Plas LLC. Hearing scheduled for 12/20/2007 at 10:00 AM at Lexington Courtroom, 3rd Floor. (Case, E.) (Entered: 12/17/2007)
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Doc 326
In Re:
Case No. 07-50935
Judge William S. Howard
Chapter 11
PRO MOLD, INC.
Debtor.
Hearing Date: December 20, 2007
Hearing Time: 10:00 a.m.
(Telephonic Hearing)
PRO PLAS LLC, JOHN P. MURPHY III REVOCABLE TRUST NO. 1,
10315 LLC AND JOHN P. MURPHY,
Movants,
v.
PRO MOLD, INC.,
Respondent.
MOTION FOR IMMEDIATE RELIEF PURSUANT TO ORDER ON MOTION FOR RELIEF (D.E. #322)
Movants and Creditors Pro Plas LLC, a Missouri limited liability company; John P. Murphy III Revocable Trust No. 1; 10315 LLC, a Missouri limited liability company; and John P. Murphy (collectively “the Murphy Entities”), file this their Motion for Immediate Relief Pursuant to Order on Motion for Relief (D.E. #322) and in support thereof respectfully report unto the Court the following:
Jurisdiction and Bankruptcy Filing
1. The Court has jurisdiction regarding this matter pursuant to 28 U.S.C. §1334 and 28 U.S.C. §157 and the Local Rules for the United States District Court for the Eastern District of Kentucky.
2. This matter is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(D).
3. On May 16, 2007 Debtor Pro Mold, Inc. (“Debtor Pro Mold”), filed its Voluntary Chapter 11 Petition for Relief in the United States Bankruptcy Court for the Eastern District of Kentucky, Lexington Division (“Court”).
4. Debtor Pro Mold continued to operate its business and manage its financial affairs pursuant to Sections 1107 and 1108 of the Bankruptcy Code from May 16, 2007 until October 3, 2007, under the control of James N. Turek, Sr., Debtor Pro Mold's President.
5. On October 3, 2007, this Court ordered the Appointment of a Chapter 11 Trustee.
The Office of the United States Trustee appointed Kenneth Henry to serve as the Chapter 11 Trustee (“Trustee”).
6. Even with the appointment of a Chapter 11 Trustee, Debtor Pro Mold continues to struggle and its financial condition continues to decline.
December 6, 2007 Order (D.E. #322)
7. On December 6, 2007 the Court signed and the Clerk entered the Order on Motion for Relief from Automatic Stay filed by the Murphy Entities. (“Order”)(D.E. #322) and the Order is incorporated herein by reference.
8. The Murphy Entities request immediate relief from the automatic stay of 11 U.S.C. Section 362 pursuant to paragraph L(1) of the Order (D.E. #322) because the Trustee has not paid at least one of the amounts identified in paragraphs E, F, G or H of the Order (D.E. #322).
9. The Trustee has not timely paid the following as of December 17, 2007:
Creditor - Amount* - Due Date of Oldest Post Petition Invoice
a. Remedy - (temporary service - $23,857.82 - 10/26/2007
b. Matt Lang - $7,618.00 - 11/09/2007
c. Excel Temporary Service (approximately)- $4,333.80 - 11/19/2007
d. Flexway Trucking, Inc. - $3,546.00 - 11/30/2007
e. Anthem Blue Cross Blue Shield Missouri - $7,622.96 - 12/07/2007
f. John P. Murphy III Revocable Trust No. 1 - $3,087.71 - 12/13/2007
g. John P. Murphy III Revocable Trust No. 1 - $9,619.45 - 12/13/2007
h. Total – $59,685.74
*Amounts obtained for this schedule were from Debtor Pro Mold’s Quickbooks download as of approximately 9:00 a.m. on Friday, December 14, 2007.
10. Pursuant to paragraph L(2) of the Order (D.E. #322), the Murphy Entities have given three (3) days notice of the hearing on their request for immediate relief from the automatic stay by facsimile, e-mail or telephone, in addition to being served by regular first class United States Mail.
11. The hearing on the Murphy Entities request for immediate relief from the automatic stay will be held by telephone pursuant to paragraph L(3) of the Order (D.E. #322) on Thursday, December 20, 2007 at 10:00 a.m. EST.
12. Pursuant to paragraph M of the Order (D.E. #322) the Murphy Entities request that they immediately be granted relief from the automatic stay to proceed with their state court remedies and foreclose on their respective security interests in Debtor Pro Mold’s personal property (“PMI Collateral”).
13. Pursuant to paragraph N of the Order (D.E. #322), the Murphy Entities request that the Court also order the immediate surrender of Debtor Pro Mold’s office and manufacturing facility to 10315 LLC.
14. The Murphy Entities request authorization to take immediate possession of and have beneficial use of the PMI Collateral and to use it in any lawful manner not inconsistent with their loan documents until the Murphy Entities foreclose upon the PMI Collateral.
WHEREFORE, the Murphy Entities request:
A. that the Court order the following:
1. The Murphy Entities be granted immediate relief from the automatic stay to proceed with their state court remedies and foreclose on their respective security interests in Debtor Pro Mold’s personal property (“PMI Collateral”).
2. Debtor Pro Mold immediately surrender Debtor Pro Mold’s office and manufacturing facility to 10315 LLC.
3. The Murphy Entities be granted authorization to take immediate possession of and have beneficial use of the PMI Collateral and to use it in any lawful manner not inconsistent with their loan documents until the Murphy Entities foreclose upon the PMI Collateral.
B. such other and further relief as the Court deems just.
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 John P. Murphy III Revocable Trust No. 1; Pro Plas LLC; 10315 LLC, and John P. Murphy, III, individually
NOTICE OF HEARING
Please take notice that the foregoing shall come on for a hearing before the Bankruptcy Court for the Eastern District of Kentucky, Lexington Division on December 20, 2007 at 10:00 a.m. EST or as soon thereafter as may be heard, at the United States Bankruptcy Courthouse, 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 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 17th day of December 2007.
E. Rebecca Case |
