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Peter L. Duncan (Cal. Bar No. 123308)PYLE SIMS DUNCAN & STEVENSONA Professional Corporation401 "B" Street, Suite 1500San Diego, California 92101Tel: (619) 687-5200Fax: (619) 687-5210Email: [email protected]
Attorneys for Secured Creditor Torrey Pines Bank
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
In re
HDOS ENTERPRISES, a Californiacorporation,
Debtor.
))))))))))))
Case No. 2:14-BK-12028-NB
Chapter 11
OBJECTIONS TO PAYMENT OF FEESAND EXPENSES OF FTI CONSULTING
Judge: Hon. Neil BasonCourtroom: 1545
Secured creditor Torrey Pines Bank, a division of Western Alliance Bank ("Bank"), hereby
objects to the Statement of Professional Fees of FTI Consulting for February 19, 2014 through March
31, 2014 filed on April 28, 2014 as Docket no. 258 (the “Statement”).
I.
FACTS
Debtor filed the above-captioned Chapter 11 case by filing a voluntary petition for relief under
Chapter 11 of the U.S. Bankruptcy Code on February 3, 2014 (the "Petition Date"). Debtor continues
to operate its business and manage its properties as a debtor in possession pursuant to 11 U.S.C. §§ 1107
and 1108.
///
Case 2:14-bk-12028-NB Doc 260 Filed 05/02/14 Entered 05/02/14 14:05:17 Desc Main Document Page 1 of 6
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Bank holds a first-priority prepetition security interest in the Estate’s assets.
On or about March 26, 2014, Debtor filed its Motion for Order Establishing Interim Fee
Application and Expense Reimbursement Procedures [Docket no. 221] (“Motion”). The defined terms
of the Motion are incorporated herein by reference. The Motion provides for a procedure which allows
the payment of 80% of all fees incurred and 100% of all costs without prior Court review if no objection
to a Monthly Fee Application is filed. The first Monthly Fee Application may include the Initial Period,
which can be as long as 56 days.
On March 27, 2014, this Court entered its ORDER (SECOND) APPROVING USE OF CASH
COLLATERAL PURSUANT TO STIPULATION FOR INTERIM USE OF CASH COLLATERAL
[Docket no. 223] (“Cash Collateral Order”).
The Cash Collateral Order allows the use of cash collateral to pay the administrative expenses
of the Debtor in Possession and the OCC, including professional fees, through May 31, 2014 pursuant
to the budget set forth in Exhibit “A” to the Second Stipulation for Interim Use of Cash Collateral filed
on March 25, 2014 (“Cash Collateral Stipulation”) [Docket no. 219].
The Bank indicated that it will object to the Motion unless the parties enter into a stipulation on
the ground that the procedures in the Motion do not limit the professional fees to be paid to the amounts
allowed under the Cash Collateral Order.
On April 8, 2014, the Bank, the Debtor in Possession and the OCC entered into a stipulation
filed as Docket no. 239 (“Stipulation”). The Stipulation provided that “the Motion is deemed modified
to provide that the amounts to be paid to professionals during the period covered by the Cash Collateral
Order shall not exceed the amounts set forth for professional fees in Exhibit "A" to the Cash Collateral
Stipulation.”
On April 10, 2014, the Debtor in Possession submitted the Declaration of J. Bennett Friedman
indicating there was no opposition to the Motion. [Docket no. 240.] The Declaration acknowledged the
Stipulation and stated that the “These clarifications will be reflected in the Order Granting the Motion.”
Despite this statement, the terms of the Stipulation do not appear to be included in the Order granting
the Motion entered on April 18, 2014. [Docket no. 242.]
///
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Case 2:14-bk-12028-NB Doc 260 Filed 05/02/14 Entered 05/02/14 14:05:17 Desc Main Document Page 2 of 6
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II.
OBJECTIONS
A. The Fees Requested Do Not Comply with the Stipulation or the Cash Collateral Order.
The Statement seeks $96,956.58 for the period from February 17, 2014 to March 31, 2014.
These are sought to be paid in April, 2014. The Cash Collateral Order provides for payment of the
OCC’s financial advisor in the amount of $50,000 during April and a similar amount for May.
The Bank objects to the payment of these fees in excess of the amounts set forth in the Cash
Collateral Order. The Bank does not object to the payment of $50,000 of the fees during April and
$50,000 in May, provided no additional statement is submitted for payment in May.
Dated: May 2, 2014
PYLE SIMS DUNCAN & STEVENSONA Professional Corporation
By: /s/ Peter L. Duncan Peter L. DuncanAttorneys for Secured Creditor Torrey Pines Bank
- 3 -
Case 2:14-bk-12028-NB Doc 260 Filed 05/02/14 Entered 05/02/14 14:05:17 Desc Main Document Page 3 of 6
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012 F 9013-3.1.PROOF.SERVICE
PROOF OF SERVICE OF DOCUMENT I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is: 401 B Street, Suite 1500, San Diego, California 92101. A true and correct copy of the foregoing document entitled (specify): OBJECTIONS TO PAYMENT OF FEES AND EXPENSES OF FTI CONSULTING _____________________________________________________ ________________________________________________________________________________________________ ________________________________________________________________________________________________ will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below: 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On (date) May 2, 2014, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below: Service information continued on attached page 2. SERVED BY UNITED STATES MAIL: On (date) May 2, 2014, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed. Service information continued on attached page 3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on (date) May 2, 2014, I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed. Via Federal Express: Hon. Neil W. Bason United States Bankruptcy Court Central District of California Edward R. Roybal Federal Building and Courthouse 255 E. Temple Street, Suite 1552 / Courtroom 1545 Los Angeles, CA 90012 Service information continued on attached page I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. May 2, 2014 Theresa A. Moser /s/ Theresa A. Moser Date Printed Name Signature
Case 2:14-bk-12028-NB Doc 260 Filed 05/02/14 Entered 05/02/14 14:05:17 Desc Main Document Page 4 of 6
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012 F 9013-3.1.PROOF.SERVICE
1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF):
Michael Avanesian [email protected], [email protected];[email protected];[email protected];[email protected]
Lindsey F Baker [email protected] Dustin P Branch [email protected],
[email protected];[email protected];[email protected];[email protected]
Jeffrey W Broker [email protected] John P Byrne [email protected] Jeffrey W Dulberg [email protected] Peter L Duncan [email protected], [email protected] Jerome Bennett Friedman [email protected], [email protected];jmartinez@flg-
law.com;[email protected];[email protected] Todd R Gabriel [email protected] Ronald E Gold [email protected] Christopher V Hawkins [email protected],
[email protected];[email protected];[email protected] Joan Huh [email protected] Dare Law [email protected], [email protected];[email protected] Lori A Lewis [email protected] Michael Y Lo [email protected], [email protected] Scotta E McFarland [email protected], [email protected] Thor D Mclaughlin [email protected], [email protected] Jessica Mickelsen [email protected],
[email protected];[email protected] Kevin M Newman [email protected], [email protected] Randy P Orlik [email protected] Ernie Zachary Park [email protected] Kristen N Pate [email protected] Jeffrey N Pomerantz [email protected] Peter J Rudinskas [email protected] Aaron M Silver [email protected] Howard Steinberg [email protected], [email protected];[email protected] Ronald M Tucker [email protected], [email protected];[email protected];[email protected] United States Trustee (LA) [email protected] Eric R Wilson [email protected] Rebecca J Winthrop [email protected], [email protected]
2. SERVED BY UNITED STATES MAIL: Debtor
HDOS Enterprises
5942 Priestly Drive
Carlsbad, CA 92008
Debtor’s Counsel
Friedman Law Group, P.C.
Jerome Bennett Friedman
1900 Ave of the Stars 11th Fl
Los Angeles, CA 90067‐4409
Committee Member & RSN
Simon Property Group, Inc.
Ronald M. Tucker, VP Bankruptcy Counsel
225 W. Washington Street
Indianapolis, IN 46204
Case 2:14-bk-12028-NB Doc 260 Filed 05/02/14 Entered 05/02/14 14:05:17 Desc Main Document Page 5 of 6
This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California.
June 2012 F 9013-3.1.PROOF.SERVICE
Committee Member
Hansen Distribution Group
c/o John R. Haynes Loevenguth, Consultant
Schulze, Haynes Loevenguth & Co.
4340 Von Karmen Ave., Suite 110
Newport Beach, CA 92660
Committee Member
GGP Limited Partnership
c/o Julie Minnick Bowden, Manager National
Bankruptcy
110 N. Wacker Drive
Chicago, IL 60606
Hot Dog on a Stick Employee Ownership Trust
c/o Nicholas Saakvitne
532 Colorado Ave.
Santa Monica, CA 90401
Employment Development Dept.
Bankruptcy Group MIC 92E
P.O. Box 826880
Sacramento, CA 94280‐0001
Franchise Tax Board
Bankruptcy Section, MS:A‐340
P.O. Box 2952
Sacramento, CA 95812‐2952
FTI Consulting
Cynthia Nelson
633 West 5th Street
Suite 1600
Los Angeles, CA 90071
RSN
Paul M Weiser
16435 N Scottsdale Rd, Ste 440
Scottsdale, AZ 85254‐1754
RSN
GGP Limited Partnership, as Agent
Kristen N. Pate
110 N. Wacker Drive
Chicago, IL 60606
RSN
Rouse Properties Inc.
Robert L. LeHane, Esq.
Kelley Drye & Warren LLP
101 Park Avenue
New York, NY 10178
RSN
ER Metro, Inc.
BUCHALTER NEMER
Paul M. Weiser
16435 North Scottsdale Road
Suite 440 RSN
Counsel for Landlord Creditors The Macerich Company, Westfield, LLC and Plaza West Covina LP
Dustin P. Branch
KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East, Suite 2600
Los Angeles, CA 90067‐3012
RSN
Robert L. LeHane, Esq.
Kelley Drye & Warren LLP
101 Park Avenue
New York, New York 10178
RSN
CAPREF Lloyd Center LLC
Rebecca J. Winthrop
Fulbright & Jaworski LLP
555 S. Flower Street, 41st Floor
Los Angeles, CA 90071
RSN
CAPREF Lloyd Center LLC
Anna F. Patras
Patras Williams LLC
14 Countryside Lane, Suite 100
Ringwood, NJ 07456
RSN
Terramar Retail Centers LLC
Todd R. Gabriel, Esq.
Sparber Annen Morris & Gabriel APLC
501 West Broadway, Suite 1720
San Diego, CA 92101‐3555
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