Free Motion to Vacate - District Court of Colorado - Colorado

Case 1:04-cv-00592-WDM-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-CV-592-WDM-PAC

THE KIT CARSON STATE BANK, a Colorado corporation Plaintiff, v. JACQUELINE L. HATCHER, MIKE SPINI, and HUGHS LIVESTOCK, INC., a Kansas corporation, Defendants.

MOTION TO VACATE TRIAL PREPARATION CONFERENCE AND TRIAL AND STATUS REPORT

Plaintiff The Kit Carson State Bank ("Kit Carson") hereby moves the Court to vacate both the Trial Preparation Conference scheduled for September 26, 2005 at 3:30 p.m. as well as the trial scheduled for October 11, 2005 at 9:00 a.m. In addition, Kit Carson submits this Status Report as required by the Court's Minute Order dated August 11, 2005. 1. six causes of action: a. The First Cause of Action seeks to recover against This case was filed on March 25, 2004. The Complaint set forth the following

Jacqueline L. Hatcher ("Ms. Hatcher") and Mike Spini ("Mr. Spini")

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amounts owed under the June 4, 2002 loan made to Milk Palace Dairy, LLC, which they both co-signed; b. The Second Cause of Action seeks to recover against

Ms. Hatcher amounts owed under a guaranty she signed in connection with the June 4, 2002 loan; c. The Third Cause of Action seeks to recover against

Mr. Spini amounts owed under a guaranty he signed in connection with the June 4, 2002 loan; d. The Fourth Cause of Action seeks to recover against

Ms. Hatcher and Mr. Spini amounts owed under the October 24, 2002 loan made to Milk Palace Dairy, LLC and MDR Management, LLC which they both co-signed; e. The Fifth Cause of Action seeks to recover against

Hugh Livestock, Inc. amounts owed under the May 15, 2003 loan made to it; and f. The Sixth Cause of Action seeks to recover against

Ms. Hatcher amounts owed under the December 1, 1998 loan made to Ms. Hatcher and her late husband, Darrell G. Hatcher. This matter is currently schedule to go to trial on October 11, 2005 at 9:00 a.m. 2. On or about April 14, 2005, Ms. Hatcher filed a voluntary petition pursuant

to Chapter 11 of the Bankruptcy Code with the United States Bankruptcy Court for the District of 2

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Kansas, Case No. 05-12036. On or about April 18, 2005, Ms. Hatcher filed her Notice of Bankruptcy Filing in this action. 3. With Ms. Hatcher's bankruptcy filing, there remained to be tried the first, third

and fourth causes of action against Mr. Spini and the fifth cause of action against Hughs Livestock. 4. By correspondence dated August 9, 2005, Hughs Livestock agreed to confess

judgment. A copy of the August 9, 2005 correspondence is attached as Exhibit A. A Confession of Judgment has been prepared and, based on representations of Hughs Livestock's Kansas counsel, it has been signed by the Hughs Livestock and should be filed by Hughs Livestock's Colorado counsel later this week. 5. With Hughs Livestock's confession of judgment, the only remaining claims

to be tried were those claims against Mr. Spini. Kit Carson recently received a Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors and Deadlines indicating that Mr. Spini filed for bankruptcy protection on August 17, 2005. A copy of the Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors and Deadlines is attached as Exhibit B. 6. Pursuant to 11 U.S.C. § 362(a)(1), the continuation of a judicial,

administrative, or other action or proceeding against the debtor or the debtor's property that was commenced before the commencement of the bankruptcy case is prohibited. Accordingly, Kit Carson requests the Court vacate both the Trial Preparation Conference scheduled for September 26, 2005 at 3:30 p.m. as well as the trial scheduled for October 11, 2005 at 9:00 a.m.

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7.

Following the filing of Hughs Livestock's Confession of Judgment, Kit Carson

believes it appropriate to administratively close this matter pending a resolution of both Ms. Hatcher's and Mr. Spini's bankruptcy cases. WHEREFORE, Plaintiff The Kit Carson State Bank requests this Court (a) vacate the Trial Preparation Conference scheduled for September 26, 2005 at 3:30 p.m., (b) vacate the trial scheduled for October 11, 2005 at 9:00 a.m., (c) administratively close this case pending resolution of Ms. Hatcher's and Mr. Spini's bankruptcy cases, and (d) for such other and further relief as is just. DATED this 14th day of September, 2005. SHERMAN & HOWARD L.L.C.

/s Kimberley H. Tyson Kimberley H. Tyson, #18592 633 17th Street, Suite 3000 Denver, CO 80202 Telephone: (303) 297-2900 Facsimile: (303)298-0940 E-mail: [email protected] Attorneys for Plaintiff The Kit Carson State Bank

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CERTIFICATE OF SERVICE I hereby certify that on this 14th day of September, 2005, I electronically filed the foregoing MOTION TO VACATE TRIAL PREPARATION CONFERENCE AND TRIAL AND STATUS REPORT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Wm. Andrew Wills II, Esq. Wills & Adams, LLP 2 North Cascade Avenue, Suite 1000 Colorado Springs, Colorado 80903 [email protected] and that a true and correct copy of the foregoing, was sent by United States mail, first-class postage prepaid, addressed to the following:

Michael Spini P.O. Box 781 Syracuse, Kansas 67878

s/ Diane Collier

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