I 2 3 4
Alan R. Costello, State Bar No. 009953 COSTELLO LAW FIRM 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 (602) 248-4339 [email protected] Attorneys for David M. Reaves, Chapter 7 Trustee
5
6
7
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA
In Re: GTI CAPITAL HOLDINGS, L.L.C., an Arizona limited liability company dba ROCKLAND MATERIALS, Debtor. InRe: Chapter 7 Proceedings Case Nos. 2-03-bk-07923-SSC through 2-03-bk-07924-SSC Jointly Administered
8 9 10 II 12
13
14 15 16 17 18 19 20 21 22 23 24 25
G.H. GOODMAN INVESTMENTS COMPANIES, L.L.C., Debtor.
TRUSTEE'S MOTION FOR ORDER DIRECTING CLERK OF THE COURT TO RELEASE FUNDS HELD BY BANKRUPTCY COURT REGISTRY TO CHAPTER 7 TRUSTEE
David M. Reaves, the Chapter 7 Trustee (the "Trustee") herein, by and through his counsel undersigned, hereby requests the Court for an order directing the Clerk of the United States Bankruptcy Court to release certain proceeds previously deposited with the Bankruptcy Court Registry in connection with the above-referenced jointly administered cases. The Trustee's Motion is more fully set forth as follows:
1.
2.
The Debtors filed their voluntary Chapter II petitions on May 8, 2003. An Order authorizing and directing joint administration of the cases and the
use of a consolidated caption was signed by the Court on June 18,2003. 3. The cases were converted from Chapter II cases to Chapter 7 cases on
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 1 of 52
000038STATE-BK Preemption
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April 30, 2007 and the Trustee was appointed as the Chapter 7 Trustee in the jointly administered cases. 4. Prior to the conversion of the cases to Chapter 7, Edward M. McDonough,
the Court appointed examiner, deposited the total amount of$I,310,427.18 (the "Registry Funds") with the Bankruptcy Court Registry on or about February 26, 2007 pursuant to an Order Regarding Funds to be Deposited in Court Registry dated February 6, 2007 (Docket No. 1434) (the "Deposit Order"). Pursuant to the Deposit Order, the Registry Funds were to be deposited in a segregated interest-bearing account and were to remain there until further order of the Court. 5. On March I, 2007, the Court entered an Order to Deduct Registry Fee
(Docket No. 1441) (the "Fee Order") wherein the Court set the fees to be charged by the Clerk of the Court for establishing and maintaining the account for the Registry Funds. The Fee Order provides that the Clerk shall "deduct from the income earned on the investment a fee, not exceeding that authorized by the Judicial Conference of the United States and set by the Director of the Administrative Office at an amount equal to ten (10) percent of all income earned on the investment, whenever such income becomes available for deduction in the investment and without further order of the Court," together with any processing or service fees charged to the account or investment, (collectively the "Approved Charges"). 6. The Trustee believes and asserts that the Registry Funds were generated
solely from the sale of GIl Capital Holdings, L.L.C. ("GIl Capital") assets and therefore are property of the GIl Capital estate. The Trustee proposes to deposit the Registry Funds and all accrued interest thereon, minus Approved Charges, in the GIl Capital estate general account. 7. The Trustee further asserts that the Registry Funds and all accrued interest
2
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 2 of 52
000039STATE-BK Preemption
I 2 3 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22
thereon are unencumbered funds. Comerica Bank has asserted a lien against some or all of the Registry Funds; however, Comerica Bank has agreed to withdraw any claim it may have to the Registry Funds as part of a settlement pending in Adversary No. 2-07-ap00031-RTB. The Trustee has filed a motion to approve the settlement with the
Bankruptcy Court. In any event, the Trustee asserts that the requested release of the Registry Funds and all accrued interest thereon, minus the Approved Charges, to the Trustee is proper regardless of whether the settlement with Comerica Bank is approved by the Court. 8. Pursuant to the general powers and duties afforded to Chapter 7 Trustees,
the Trustee is charged with all duties pertaining to the administration of these bankruptcy estates, including the collection and liquidation of estate assets and the administration and disbursement of estate funds. 9. Since his appointment, the Trustee has administered the estates, collected There is no basis or reason for the
estate monies, and established estate accounts.
Registry Funds to remain with the Clerk of the Court or for the OTI Capital estate to continue to incur additional Approved Charges. It is appropriate that the Registry Funds and all accrued interest thereon, minus the Approved Charges, be released to the Chapter 7 Trustee for administration and disbursement. Accordingly, the Trustee respectfully requests the Court to order that the Registry Funds and all accrued interest thereon, minus the Approved Charges, be immediately released to the Trustee to hold, administer and disburse in the OTI Capital case as ordered by the Court.
23 25
III III
24 III
3
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 3 of 52
000040STATE-BK Preemption
1
DATED this
i h day of March, 2008.
COSTELLO LAW FIRM By: /s/ Alan R. Costello 009953 Alan R. Costello, Esq. 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 Attorneys for Chapter 7 Trustee
2
3
4 5
6
7
8
COPY of the foregoing MAILED this 7 th day of March, 2008, to: GT! Capita~ Holdings, L.L.C. 5110 N. 40 t Street, #110 Phoenix, AZ 85018-2143 Debtor G.H. Goodman Investments Companies, L.L.C. 5110 N. 40 th Street, #110 Phoenix, AZ 85018-2143 Debtor Grant Goodman Grant H. Goodman, P.L.L.C. 4156 N. 49 th Street Phoenix, AZ 85018 John R. Clemency Greenberg Traurig, L.L.P. 2375 East Camelback Road Phoenix, AZ 85016 Attorneys for Comerica Bank David M. Reaves Chapter 7 Trustee P.O. Box 44320 Phoenix, AZ 85064-4320 Michael W. Carmel Michael W. Carmel, Ltd. 80 E. Columbus Avenue Phoenix, AZ 85012-4965 Special Counsel for Trustee Edward M. McDonough Alvarez and Marsal 2355 E. Camelback Rd., Suite 805 Phoenix, AZ 85016
9 10 11 12
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14 15 16 17 18 19 20 21 22 23 24 25
4
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 4 of 52
000041STATE-BK Preemption
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6
Robert J. Miller Bryan Cave, L.L.P. Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorney for Examiner Renee Sandler Shamblin Office of the U.S. Trustee 230 North First Avenue, Suite 204 Phoenix, Arizona 85003 Clerk of the Court United States Bankruptcy Court 230 N. First Ave, Suite 101 Phoenix, AZ 85003
7 8
9 lsi Michelle C. Colwell
10
II 12 13 14 15 16
17
18 19 20 21 22 23 24 25
5
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 5 of 52
000042STATE-BK Preemption
I 2 3
Alan R. Costello, State Bar No. 009953 COSTELLO LAW FIRM 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 (602) 248-4339 [email protected] Attorneys for David M. Reaves, Chapter 7 Trustee
4 5
6
7 8 9 10 In Re: GTI CAPITAL HOLDINGS, L.L.C., an Arizona limited liability company dba ROCKLAND MATERIALS, Debtor. InRe: G.H. GOODMAN INVESTMENTS COMPANIES, L.L.C., Debtor. 15 16 17 18 19 20 21 22 23 24 25
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA
Chapter 7 Proceedings Case Nos. 2-03-bk-07923-SSC through 2-03-bk-07924-SSC Jointly Administered
11
12
13
14
NOTICE OF FILING TRUSTEE'S MOTION FOR ORDER DIRECTING CLERK OF THE COURT TO RELEASE FUNDS HELD BY BANKRUPTCY COURT REGISTRY TO CHAPTER 7 TRUSTEE AND NOTICE OF BAR DATE FOR FILING OBJECTIONS THERETO
NOTICE IS HEREBY GIVEN that David M. Reaves, the Chapter 7 Trustee (the
"Trustee") in the above-captioned case, has filed the Trustee's Motion for Order Directing Clerk of the Court to Release Funds held by Bankruptcy Court Registry to Chapter 7 Trustee (the "Motion"). The Motion provides that on or about February 26, 2007 and prior to the conversion of these jointly administered cases to Chapter 7, Edward M. McDonough, the Court appointed examiner, deposited the total amount of $1,310,427.18 (the "Registry Funds") in a segregated interest-bearing account with the Bankruptcy Court Registry. Pursuant to the general powers and duties afforded to Chapter 7 Trustees, the Trustee is charged with all duties pertaining to the administration
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 6 of 52
000043STATE-BK Preemption
1
2
of these bankruptcy estates, including the collection and liquidation of estate assets and the administration and disbursement of estate funds. The Motion asserts that the Registry Funds are unencumbered property of the GIl Capital Holdings, L.L.C. estate. The Motion further asserts that there is no reason for the Registry Funds to remain in the Court Registry and requests that the Registry Funds and all accrued interest thereon, minus certain pre-approved fees and charges, be released to the Chapter 7 Trustee to hold, administer and disburse in the GIl Capital Holdings, L.L.C. case as further ordered by the Court. A copy of the Motion is on file with the Clerk of the United States Bankruptcy Court for the District of Arizona at the address shown below and is available for public inspection during business hours. Any and all objections to the Motion must be made in writing, along with the original thereof filed under the above case caption to wit: Clerk of the Court United States Bankruptcy Court 230 North First Avenue Phoenix, Arizona 85003 And with a copy of the written objection served that same day upon the attorney
3 4
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for the Trustee, whose name and address is: 18 19 20 21 22 23 24 25 Alan R. Costello COSTELLO LAW FIRM 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 Attorneys for David M. Reaves, Chapter 7 Trustee If no objections are properly filed and served within twenty (20) days from the date of this Notice, the Court may approve the Motion without any further hearings in this matter.
2
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 7 of 52
000044STATE-BK Preemption
1 2 3
DATED this
i h day of March, 2008.
COSTELLO LAW FIRM By: lsi Alan R. Costello 009953 Alan R. Costello, Esq. 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 Attorneys for Chapter 7 Trustee
4 5
6
7 8 9 10 11 12 GT! Capital Holdings, L.L.C. th 5110 N. 40 Street, #110 Phoenix, AZ 85018-2143 Debtor COPY of the foregoing MAILED this 7th day of March, 2008, to:
G.H. Goodman Investments Companies, L.L.C. th 5110 N. 40 Street, #110 Phoenix, AZ 85018-2143 Debtor Grant Goodman Grant H. Goodman, P.L.L.C. th 4156 N. 49 Street Phoenix, AZ 85018 John R. Clemency Greenberg Traurig, L.L.P. 2375 East Camelback Road Phoenix, AZ 85016 Attorneys for Comerica Bank David M. Reaves Chapter 7 Trustee P.O. Box 44320 Phoenix, AZ 85064-4320 Michael W. Carmel Michael W. Carmel, Ltd. 80 E. Columbus Avenue Phoenix, AZ 85012-4965 Special Counsel for Trustee Edward M. McDonough Alvarez and Marsal 2355 E. Camelback Rd., Suite 805 Phoenix, AZ 85016
13
14 15 16 17 18 19 20 21 22 23 24 25
3
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 8 of 52
000045STATE-BK Preemption
1 2 3 4 5
Robert J. Miller Bryan Cave, L.L.P. Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorney for Examiner Renee Sandler Shamblin Office of the U.S. Trustee 230 North First Avenue, Suite 204 Phoenix, Arizona 85003 Clerk of the Court United States Bankruptcy Court 230 N. First Ave, Suite 101 Phoenix, AZ 85003 All parties on the Master Mailing List (to be noticed by the BNC)
6
7
8
9 10
lsi Michelle C. Colwell
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
4
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 9 of 52
000046STATE-BK Preemption
I
2 3
4
Alan R. Costello, State Bar No. 009953 COSTELLO LAW FIRM 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 (602) 248-4339 [email protected] Attorneys for David M. Reaves, Chapter 7 Trustee
5
6 7
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA In Re: GTI CAPITAL HOLDINGS, L.L.C., an Arizona limited liability company dba ROCKLAND MATERIALS, Debtor. InRe: G.H. GOODMAN INVESTMENTS COMPANIES, L.L.C., Debtor. CERTIFICATE OF SERVICE AND NO OBJECTIONS TO 1) TRUSTEE'S MOTION FOR ORDER DIRECTING CLERK OF THE COURT TO RELEASE FUNDS HELD BY BANKRUPTCY COURT REGISTRY TO CHAPTER 7 TRUSTEE; AND 2) NOTICE OF FILING TRUSTEE'S MOTION FOR ORDER DIRECTING CLERK OF THE COURT TO RELEASE FUNDS HELD BY BANKRUPTCY COURT REGISTRY TO CHAPTER 7 TRUSTEE AND NOTICE OF BAR DATE FOR FILING OBJECTIONS THERETO AND Chapter 7 Proceedings Case Nos. 2-03-bk-07923-SSC through 2-03-bk-07924-SSC Jointly Administered
8 9 10
II
12
13
14 15 16 17 18 19 20 21
NOTICE OF LODGING ORDER 22 23 24 25
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 10 of 52
000047STATE-BK Preemption
1 2 3
STATE OF ARIZONA County of Maricopa
) ) ss. )
I, Alan R. Costello, being first duly sworn upon oath, do depose and state:
1.
4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
I am the attorney of record in this matter for David M. Reaves, the Chapter
7 Trustee (the "Trustee"), and I make this Affidavit as evidence of service and notice of the Trustee's Motion for Order Directing Clerk of the Court to Release Funds Held by Bankruptcy Court Registry to Chapter 7 Trustee (the "Motion") and the Notice of Filing Trustee's Motion for Order Directing Clerk of the Court to Release Funds Held by Bankruptcy Court Registry to Chapter 7 Trustee and Notice of Bar Date for Filing Objections Thereto (the "Notice").
2.
On March 7, 2008, the Motion was electronically filed with the Bankruptcy
Court (the "Court"). The Motion is entered on the Court's docket at Docket No. 1504.
3.
On March 7, 2008, the Notice was electronically filed with the Court. The
Notice is entered on the Court's docket at Docket No. 1505.
4.
On March 7, 2008, copies of the Motion and the Notice were served via
first class United States Mail, postage prepaid to the following parties: GTI Capital Holdings, L.L.C. th 5110 N. 40 Street, #110 Phoenix, AZ 85018-2143 Debtor G.H. Goodman Investments Companies, L.L.C. th 5110 N. 40 Street, #11 0 Phoenix, AZ 85018-2143 Debtor Grant Goodman Grant H. Goodman, P.L.L.C. 4156 N. 49 th Street Phoenix, AZ 85018
2
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 11 of 52
000048STATE-BK Preemption
I
2
3
John R. Clemency Greenberg Traurig, L.L.P. 2375 East Camelback Road Phoenix, AZ 85016 Attorneys for Comerica Bank David M. Reaves Chapter 7 Trustee P.O. Box 44320 Phoenix, AZ 85064-4320 Michael W. Carmel Michael W. Carmel, Ltd. 80 E. Columbus Avenue Phoenix, AZ 85012-4965 Special Counsel for Trustee Edward M. McDonough Alvarez and Marsal 2355 E. Camelback Rd., Suite 805 Phoenix, AZ 85016 Robert J. Miller Bryan Cave, L.L.P. Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorney for Examiner Renee Sandler Shamblin Office of the U.S. Trustee 230 North First Avenue, Suite 204 Phoenix, Arizona 85003 Clerk of the Court United States Bankruptcy Court 230 N. First Ave, Suite 101 Phoenix, AZ 85003
4
5
6
7 8
9
10
II
12 13 14 15 16 17 18 19 20 21
5.
On March 9, 2008, copies of the Notice were served via first class United
States Mail, postage prepaid to all the parties on the master mailing list by the BNC as evidenced by the BNC's Certificate of Service entered on the Court's docket at Docket No. 1507. 6. The Notice states that if no objection is filed and served on Trustee's
22
23 24 25
counsel within twenty (20) days of the date of said Notice, the Motion may be approved
3
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 12 of 52
000049STATE-BK Preemption
I
by the Bankruptcy Court without further hearings. 7. The deadline for filing and serving objections has expired, and Trustee's
2
3
counsel has not been served with any objections. 8. Trustee's counsel has lodged concurrently herewith a proposed Order
4
5 6 7 8 9 10
II
Directing Clerk of the Court to Release Funds Held by Bankruptcy Court Registry to Chapter 7 Trustee, a copy of which is attached hereto as Exhibit "A". DATED this 3'd day of April, 2008. COSTELLO LAW FIRM By: lsi Alan R. Costello 009953 Alan R. Costello, Esq. 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 Attorneys for Chapter 7 Trustee SUBSCRIBED AND SWORN TO before me a Notary Public this 3'd day of April, 2008 by Alan R. Costello.
12 13 14
lsi Michelle C. Colwell
IS
16 17 18 19 20 21 COPY of the foregoing MAILED this 3'd day of April, 2008, to: GTI Capital Holdings, L.L.C. 5110 N. 40 th Street, #110 Phoenix, AZ 85018-2143 Debtor G.H. Goodman Investments Companies, L.L.C. 5110 N. 40 th Street, #11 0 Phoenix, AZ 85018-2143 Debtor Grant Goodman Grant H. Goodman, P.L.L.C. 4156 N. 49 th Street Phoenix, AZ 85018 My Commission Expires: November 9,2011
Notary Public
22
23 24 25
4
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 13 of 52
000050STATE-BK Preemption
1 2 3 4 5
John R. Clemency Greenberg Traurig, L.L.P. 2375 East Camelback Road Phoenix, AZ 85016 Attorneys for Comerica Bank David M. Reaves Chapter 7 Trustee P.O. Box 44320 Phoenix, AZ 85064-4320 Michael W. Carmel Michael W. Carmel, Ltd. 80 E. Columbus Avenue Phoenix, AZ 85012-4965 Special Counsel for Trustee Edward M. McDonough Alvarez and Marsal 2355 E. Camelback Rd., Suite 805 Phoenix, AZ 85016 Robert J. Miller Bryan Cave, L.L.P. Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorney for Examiner Renee Sandler Shamblin Office of the U.S. Trustee 230 North First Avenue, Suite 204 Phoenix, Arizona 85003 Clerk of the Court United States Bankruptcy Court 230 N. First Ave, Suite 101 Phoenix, AZ 85003
6
7 8 9 10
II
12 13 14 15 16 17 18 19
20
21 22 23 24 25
lsi Michelle C. Colwell
5
Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 Page 14 of 52
000051STATE-BK Preemption
I 2 3
Alan R. Costello, State Bar No. 009953 COSTELLO LAW FIRM 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 (602) 248-4339 [email protected] Attorneys for David M. Reaves, Chapter 7 Trustee
4 5
6
7
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA
In Re: GTI CAPITAL HOLDINGS, L.L.C., an Arizona limited liability company dba ROCKLAND MATERIALS, Debtor. InRe: G.H. GOODMAN INVESTMENTS COMPANIES, L.L.C., Debtor. Chapter 7 Proceedings Case Nos. 2-03-bk-07923-SSC through 2-03-bk-07924-SSC Jointly Administered
8 9 10 11 12
13
14 15 16 17 18 19 20 21 22 23 24 25
ORDER DIRECTING CLERK OF THE COURT TO RELEASE FUNDS HELD BY BANKRUPTCY COURT REGISTRY TO CHAPTER 7 TRUSTEE
The Court having considered the Trustee's Motion For Order Directing Clerk Of The Court To Release Funds Held By Bankruptcy Court Registry To Chapter 7 Trustee (the "Motion"), the Motion having been noticed, no objections having been filed;
IT IS HEREBY ORDERED authorizing and directing the Clerk of the United
States Bankruptcy Court to release the funds previously deposited in the Court Registry pursuant to this Court's Order Regarding Funds to be Deposited in Court Registry dated February 6, 2007 (Docket No. 1434) (the "Deposit Order") in the amount of $1,310,427.18, together with all accrued interest thereon, but minus the charges payable to the Clerk of the United States Bankruptcy Court as set forth in and authorized by the
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 15 of 52
000052STATE-BK Preemption
1 2 3 4 5 6
Deposit Order, to David M. Reaves, as Chapter 7 Trustee of the estate of GIl Capital Holdings, Inc.
IT IS FURTHER ORDERED that the Chapter 7 Trustee shall deposit the funds
III
the GIl Capital Holdings, Inc. estate's general account for administration and
disbursement in the GIl Capital Holdings, Inc. case as further ordered or approved by the Court. DATED:
7 8 9 10 11 12
13
HONORABLE SARAH SHARER CURLEY UNITED STATES BANKRUPTCY JUDGE
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17 18 19 20 21 22 23 24 25
2
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 16 of 52
IT IS HEREBY ADJUDGED and DECREED this is SO ORDERED.
000053STATE-BK Preemption
1 2
3 4
Alan R. Costello, State Bar No. 00995Bated: April 11 2008 COSTELLO LAW FIRM ' 1440 E. Missouri Avenue, Suite C-170 Phoenix, Arizona 85014 (602) 248-4339 [email protected] Attorneys for David M. Reaves, Chapter 7 Trustee
U.S. Bankruptcy Judge
5 6
7
---------------
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA
InRe: GTI CAPITAL HOLDINGS, L.L.C., an Arizona limited liability company dba ROCKLAND MATERIALS, Debtor. In Re: G.H. GOODMAN INVESTMENT COMPANIES, L.L.C., Debtor. gh
8 9 10 11 12 13 14 15 16 17 18 19 20 21
~~"1Iie'f'rm;teeA; Motion For Order Directing Clerk Of
The Court To Release Funds Held oticed, no objections having been filed; authorizing and directing the Clerk of the United r lease the funds previously deposited in the Court Registry ........
,t
ether with all accrued interest thereon, but minus the charges payable
of the United States Bankruptcy Court as set forth in and authorized by the
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 17 of 52
000054STATE-BK Preemption
I 2 3 4 5
Deposit Order, to David M. Reaves, as Chapter 7 Trustee of the estate of GT! Capital Holdings, Inc.
IT IS FURTHER ORDERED that the Chapter 7 Trustee shall deposit the funds
III
the GT! Capital Holdings, Inc. estate's general account for administration and
disbursement in the GTI Capital Holdings, Inc. case as further ordered or approved by the Court. DATED:
6
7
8
9 10 11
12
13
14 15
Case 2:03-cv-01587-JAT
Document 132-3
2
Filed 06/13/2008
Page 18 of 52
000055STATE-BK Preemption
1 2
Law Offices of MICHAEL W. CARMEL, LTD. 80 East Columbus Avenue Phoenix, Arizona 85012-2334 Telephone: (602) 264-4965 Arizona State Bar No. 007356 Facsimile: (602) 277-0144 E-mail: [email protected] Attorney for Plaintiff IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA In re: Chapter 7 Proceedings GTI CAPITAL HOLDINGS, LLC, Case Nos. 2-03-bk-07923-SSC through 2-03-07924-SSC In re: G.H. GOODMAN INVESTMENT COMPANIES, L.L.c., Debtors. DAVID M. REAVES, Chapter 7 Trustee, Plaintiff,
v.
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5
6
7
8
9
10
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12
Jointly Administered
13
14 15 16 17 18 19 20 21
Adversary No. 2:07-ap-00031 NOTICE OF ERRATA Hearing Date: March 11, 2008 Hearing Time: 10:00 a.m. Courtroom No. 701
COMERlCA BANK-CALIFORNIA, Defendant.
On February 27, 2008, the Trustee filed the proposed Settlement Agreement with Comerica Bank. Exhibit A to that Agreement was inadvertently excluded. Attached to this pleading is a copy of Exhibit A, which is the proposed Release the Trustee will execute, assuming the Court approves the Settlement Agreement. DATED this 28 th day of February 2008. MICHAEL W. CARMEL, LTD. /s/ Carmel, M.W. 007356 Michael W. Carmel 80 East Columbus Avenue Phoenix, Arizona 85012-2334 Attorney for Plaintiff
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Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 19 of 52
000056STATE-BK Preemption
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2
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COPY of the foregoing mailed, or served via elelhtronic notificatlOn** if so marked, this 28 day of February 2008 to: U.S. TRUSTEE'S OFFICE
230 N. First Ave. Suite 204 Phoenix, AZ 85003-1706
5 6
7
** [email protected] Edward M. McDonough, Examiner Alvarez & Marsal 2355 East Camelback Road, Suite 805 Phoenix, Arizona 85016 John R. Clemency ** clemencyjcw,gtlaw.com GREENBERG TRAURlG, LLP 2375 E. Camelback Road, Suite 700 Phoenix, AZ 85016 Attorneys for Comerica Bank-California Robert J. Miller ** [email protected] BRYAN CAVE LLP Two N. Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorneys for Examiner William Novotny" william.novotny@mwmfcom MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012-2705 Attorneys for Arizona Portland Cement William Scott Jenkins ** [email protected] MYERS & JENKINS, PC 3003 N. Central Avenue, Suite 1900 Phoenix, Arizona 85012 Attorneys for Caterpillar Fin '1. Services Corp. Michael R. Law ** [email protected] OFFICE OF THE CITY ATTORNEY 200 W. Washington St., Suite 1300 Phoenix, AZ 85003-1611 Attorneys for City of Phoenix Scott Gibson ** [email protected] GIBSON NAKAMURA & DECKER PLLC 2941 N. Swan Rd., Suite 101 Tucson, AZ 85712-2343 Attorneys for cn Howard C. Meyers .... [email protected] BURCH & CRACCHIOLO, P.A. 702 E. Osborn Road, Suite 200 Phoenix, AZ 85011-6882 Attorneys for Empire Southwest Co.
2
8 9
10 11 12 13 14 15 16 17 18 19 20 21
Mary B. Artigue, Esq. ** [email protected] GAMMAGE & BURNHAM Two North Central Avenue Eighteenth Floor Phoenix, AZ 85004-4470
Larry G. Haddy ** [email protected] Burch & Cracchiolo, P.A.
702 E. Osborn Road, Suite 200 Phoenix, AZ 85014
Attornevs for Amerioride Linen and Aooarel Services
Demse Ann Faulk ** [email protected] Office of the Attorney General Bankruptcy & Collection Enforcement 1275 W. Washin&ton St. Phoenix, AZ 85 07-1298 Attorneys for Arizona Dept. of Revenue Wilham E. Corley, 1II Senior Attorney, Legal Dept. BOMBARDIER CAPITAL INC. 12735 Gran Bay Parkway West, Suite 1000 Jacksonville, FL 32258
David N, Ingrassia, PC
1212 E.
**DaviJCu)ingrassialaw.phxcoxmaiLcom
22
23 24 25 26 27 28
Osborn Road Phoenix, AZ 85014 Atty for General Electric Capital Corp., successor in int. to Citicapital Comm'l Leasing Corp. fka Associates Leasing Inc.; CitiCapital Tech Finance Inc. fka EAB Leasing Corp. Craig J. Bolton ** [email protected] John G. Sinodis ** j~s(dlJhc-law.com JENNINGS, HAUG & UNNINGHAM, LLP 2800 N. Central Avenue, Suite 1800 Phoenix, AZ 85004-1049 Attorneys for Crown Bank Leasing James EdwardShiVely **[email protected] POLl & ~L, PLC. 2999 N. 44' Street, Suite 500 Phoenix, AZ 85018 Attorneys for DaimlerChrysler Services North America
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 20 of 52
000057STATE-BK Preemption
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4
James A. Tiemstra ** [email protected] LAW OFFICES OF JAMES A. TIEMSTRA Tribune Tower, 15 th Floor 409 Thirteenth Street Oakland, CA 94612 Attorneys for Engs Motor Truck Co. db. Engs Lease Plan Darren A. Pascarella
[email protected]
Alan M. Levinsky .. * [email protected] Buchalter Nemer 16435 N. Scottsdale Rd., #440 Scottsdale, AZ 85254-1754 Attorneys for Ford Motor Credit Company
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**
7
8
9
REED SMITH LLP 599 Lexington Avenue, 29 th Floor New Yark, NY 10022 Attorneys for General Electric Capital Corp
10
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22
23 24 25 26 27 28
Steven M. Cox ** [email protected] Michelle H. Tong ** mtong(aJ,wechv.com WATERFALL, ECONOMIDlS, CALDWELL, ET AL. 5210 E. Williams Circle, Suite 800 Tucson, AZ 85711 Attornevs for GMAC Sean P. O'Bnen ** spobnen(aJ,gustlaw.com Joseph F. Musumeci, PC ·· GUST ROSENFELD P.L.C. JFM4101@aokcorn 4539 N. 22" Street 201 E. Washington Bank of America / Collier Center Suite 800 Suite 200 Phoenix, AZ 85016 Phoenix, AZ 85004-2327 Attorneys for Hurricane Fence Co. Attorneys for Liberty Mutual Insurance Co. ** cpacira(izl,aOl.com Mark Sttlerrnan ** DaVid S. Mark, CIRA [email protected] ArizSota Business Consulting Company NORLING KOLSRUD SIFFERMAN DAVIS, 9208 E. Champagne Drive, Suite 2 P.L.C. Sun Lakes, AZ 85248 16427 N. Scottsdale Road, Suite 210 Debtors' Financial Advisors Scottsdale, AZ 85254-1592 Attorneys for Border States Electric Supely; Lonesome Valley, L.L.C., Perkins Ranc , Inc., Thomas Y and Margaret L. Perkins J. Phillip Glasscock *'" JPlj(aJJPGlaw.com Richard C. Cole, Jr. ** J. PHILLIP GLASSCOCK, P.e. [email protected] 13430 N. Scottsdale Road, Suite 106 RICHARD C. COLE, JR., LTD. Scottsdale, AZ 85254 Attorneys for Mobile Mini, Inc. 7321 N. 16th Street Phoenix, AZ 85020 Attorneys for Navajo Pump & Supply, Inc.
Marico~a
Carlos M. Arboleda ** [email protected] ARBOLEDA BRECHNER 4545 E. Shea Blvd. Suite 120 Phoenix, AZ 85028 Local counsel General Electric Capital Corp Grant H. Goodman ** [email protected] 4156 N. 49 th Street Phoenix, AZ 85018 Attorneys for Grant and Teri Goodman; Triad Comm'l Captive Insurance Co.
County Division of County
Counse 222 N. Central Avenue, Suite 1100 Phoenix, AZ 85004-2206 Attornevs for Maricopa County 3
Daniel P. Beeks ** [email protected] Gregory W. Falls ** [email protected] MOHR, HACKETT, PEDERSON, BLAKLEY, RANDOLPH & HAGA, P.e. 2800 N. Central Ave., Suite 1100 Phoenix AZ 85004-1043
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1 2
3 4
5
6
Joshua R. Forest ** iforestrillfclaw.com Dewain D. Fox ** dfox(iilfc1aw.com FENNEMORE CRAIG, P.c. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Oshkosh/McNeilus Financial Servo John J. Hebert, Esq. ** [email protected] Mark W. Roth, Esq. [email protected] Hebert Sch~nk PC 4742 N. 24' St., Suite 100 Phoenix, AZ 85016-4858
Attornevs for Onx Financial Services. Inc. Paul Sala ** [email protected] ALLEN & SALA, P.L.C. Viad COItorate Center 1850 N. entral Avenue, Suite 1150 Phoenix, AZ 85004-4712 Local Counsel for PACCAR Financial Corn. Don C. Fletcher ** dfletcherglicavanaghlaw.com THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for Scottsdale 101 Associates, LLC Paul D. Petersen, Esq. Law Offices of Paul D. Petersen 1440 S. Clearview Ave., #103 Mesa, AZ 85012-2334
7 8
9
10
II
Rebecca K. O'Brien **
[email protected]
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
RUSING & LOPEZ, PLLC 6262 N. Swan Road, Suite 200 Tucson, AZ 850718 Attornevs for PACCAR Financial Corn. Julio M. Zapata ** jzapata(mfclaw.com FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Syseo Corporation Jeffrey H. Levinson ** [email protected] ANDERSON BRODY BUCHALTER NEMER P.A. 4600 E. Shea Blvd., Suite 100 Phoenix, AZ 85028 Attornevs for W.R. Graee Scott K. Brown ** [email protected] LEWIS AND ROCA LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for Bombardier Capital Inc.
Jeffrey R. Parker ·· [email protected] WTI,INC. Office of the General Counsel 3737 E. Broadway Road Phoenix, AZ 85040 Attornevs for Western Technologies. Inc. CARSON MESSINGER ELLIOTT LAUGHLIN & RAGAN 3300 N. Central Avenue, Suite 1900 Phoenix, AZ 85067-3907 Attornevs for Zions Credit Corporation Renee Sandler Shamblm **[email protected] Office of the U.S. Trustee 230 N. First Avenue, Suite 204 Phoenix, AZ 85003-1706
lsi Nancy G. Forty
4
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EXHIBIT A RELEASE OF CLAIMS
This Release of Claims (the "Release") is delivered by David M. Reaves, the duly appointed Chapter 7 Trustee ("Trustee") for GTI Capital Holdings LLC, dba Rockland Materials, an Arizona limited liability company ("GTI") and G.H. Goodman Investment Companies, LLC, an Arizona limited liability company ("GHG", with GTI, collectively, the "GTI Debtors") in favor of Comerica Bank, a Texas banking association, successor by merger with Comerica Bank, a Michigan corporation, successor by merger to Comerica Bank-California ("Comerica"). This Release is delivered in connection with the "Settlement Agreement" of an even date between the Trustee and Comerica (the "Settlement Agreement"). Unless otherwise indicated, capitalized terms used in this Release will correspond to the capitalized terms used in the Settlement Agreement. For present and fair consideration, the receipt and sufficiency of which are herby acknowledged, the Trustee agrees as follows: 1. The Trustee, on behalf of itself, the GTI Debtors, and the bankruptcy
estates of the GTI Debtors (collectively, the "GTI Releasing Parties") hereby does remise, release, and forever discharge Comerica and each of Comerica's former, present, and future officers, directors, attorneys, agents, partners, predecessors, successors, assigns, parents, affiliates, subsidiaries, control persons, representatives and employees (the "Comerica Released Parties") of and from any and all sums of money, claims, rights, demands, suits, debts, dues, accounts, promises, damages, and causes of action known or unknown or suspected or unsuspected, including claims for attorneys' fees, which any of the GTI Releasing Parties now or hereafter owns, holds, has or claims to have by reason of any matter, cause or thing whatsoever from the beginning of time to the date of this Release and which arise out of or are in any way connected with or related to
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transactions, occurrences, events, acts or omissions arlsmg from, relating to or concerning in any way the relationships between or among any of the GTI Releasing Parties and the Comerica Released Parties (including claims pending in the Bankruptcy Cases, in the Bankruptcy Appellate Panel, in the Arizona Superior Court, in the Arizona Court of Appeals and Supreme Court, in the United States District Court, and in the Ninth Circuit Court of Appeals), provided however, that this Release does not extend to obligations of the Comerica Released Parties under the Settlement Agreement. 2. This Release is intended to be as broad as legally possible, and the Trustee
agrees to the immediate dismissal with prejudice of all actions brought by the GTI Releasing Parties against the Comerica Released Parties in the Bankruptcy Cases, in the Bankruptcy Appellate Panel, in the Arizona Superior Court, in the Arizona Court of Appeals and Supreme Court, in the United States District Court, and in the Ninth Circuit Court of Appeals. 3. This Release is effective upon the approval of the Settlement Agreement
by the Court presiding over the Bankruptcy Cases and the payment of the Settlement Amount by Comerica.
Dated: February_, 2008 DAVID M. REAVES, Chapter 7 Trustee for GTI Capital Holdings, L.L.C., dba Rockland Materials, and G.H. Goodman Investment Companies, L.L.C. Bankruptcy Case Nos. 2:03-bk-07923 and 07924 By: Nam-e:--:::D"'a-v7'id:-M.,...,..."""R"'e-a-ve-s------Title: Trustee
2
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SETTLEMENT AGREEMENT
This Settlement Agreement f'Agreemenr') is made and entered into e as of FebrualY _ 2008, by and between; (i) David M. Reaves, the duly appointed C apter 7 Trustee ("Trustee') for GTI Capital Holdings LLC, dba Rockland Materials, an A 'zona limited liability company ("GTI') and G.H. Goodman Investment Companies, L C, an Arizona limited liability company ("GHG", with GTI, collectively, the "GTI Debtors ; and (ii) Comerica Bank, a Texas banking association, successor by merger with Co Bank, a Michigan corporation, successor by merger to Comerica Bank-Cal ("Comerica"). The Trustee, GTI Debtors, and Comerica are referred to i Agreement as the "Parties." this
RECITAbS
A. On May 8, 2003 ("Petition Date"), the GTI Debtors filed voluntary pe· ions reby nited under Chapter 11 of Title 11 of the United States Code ("Bankruptcy Code), commencing case numbers 2-03-bk-7923 and 2-03-bk-7924 pending in the States Bankruptcy Court for the District of Arizona (the "Bankruptcy Cases"). B.
As of the Petition Date, Comerica asserts that the GTI Debtors were
indebted to Comerica in the amount of approximately $18,000,000 (the "Co erica Indebtedness"). As security for repayment of the Comerica Indebtedness, Co erica claimed valid and enforceable liens on real property, titled equipment, and other personal property owned by the GTI Debtors. C. Prior to the Petition Date, the GTI Debtors and Comerica were involv
number of pieces of litigation pending before the Superior Court of Arizona, incl ding; (i) a case bought by the GTI Debtors against Comerica asserting (among other claims sounding in lender liability (Case No. CV2003-005802, the "Pre.Emptive (ii) a request by Comerica for the appointment of a receiver to take custody and ings) uit"); I
of the assets of the GTI Debtors (Case No. CV2OO3-006484, the "Receiv rship Action"); and (iii) the pursuit by Comerica of recovery of the Comerica Indeb from principals and guarantors of the GTI Debtors, Grant and Teri G (collectively, "Goodman")(Case No. CV2003-OO7563, the "Guarantor Action"). D. Approximately two (2) months after the Petition Date, and at the req
1
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Comerica with the support of other creditors and the Office of the United
tates
Trustee, the Court presiding over the Bankruptcy Cases appointed an Exami er to oversee the operations of the GTI Debtors. On or about January 23, 2004, th GTI
Debtors ceased all business operations. The Examiner eventually sold in Febru ry of 2004 substantially all of the assets of the GTI Debtors free and clear of the lien and interests of Comerica and other creditors for $8,000,000 (the "Sale Proceeds").
E.
Comerica, the GTI Debtors, and the Examiner were involved in leng
and
protracted litigation in the Bankruptcy Cases over lien avoidance, surcharge, and other matters. F. On April 30, 2007, the Bankruptcy Cases were converted to cases nder Chapter 7 of the Bankruptcy Code. The Trustee is the duly appointed Cha ter 7 Trustee for the Bankruptcy Cases. G. Prior to the conversion of the Bankruptcy Cases to Chapter 7, th GTI lien
Debtors filed an adversary proceeding against Comerica seeking damages an
and claim subordination (Adv. No. 07-31, the "Adversary Proceeding"). Followi g his appointment as Chapter 7 Trustee, the Trustee substituted for GTI and beca e the plaintiff in the Adversary Proceeding. There is considerable disagreement bebMI Trustee and Comerica over the factual and legal issues presented in the Ad Proceeding. H. Shortly after the conversion to Chapter 7, the Court presiding 0 r the
Bankruptcy Cases entered jUdgment (the "DePrizio Judgmenr) in favor of Come'ca in the so-called DePrizio Litigation which had been commenced by the GTI btors
shortly after the Petition Date. As a result of the DePrizio Judgment, Comerica holds an adjudicated lien on $638,959 of the Sale Proceeds (the "UCC Proceeds"). The Trustee has taken an appeal of the DePrizio Judgment, and the appeal is before the Ninth Circuit Bankruptcy Appellate Panel as Case No. AZ-07-130 "BAP Appeal"). nding (the
I.
The Trustee and Comerica wish to avoid further litigation and
sh to and
resolve all of the respective claims and appeals of the estates of the GTI Debto
Comerica against each other in the Bankruptcy Cases, in the Pre-Emptive Suit, in the Guarantor Action, and elsewhere, including all claims in: (1) the Adversary Pro
2
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and (2) the BAP Appeal. J. The Trustee and Comerica agree that this Agreement is designed and shall resolve any and all pending or potential disputes, disagreements, e liabilities, offsets, credits, rights, claims, appeals, and causes of action, whether or unknown, contingent or fixed, latent or obvious, between Comerica, the Trus GTI Debtors, and the estates of the GTI Debtors. By entering into this Ag neither the Trustee nor Comerica makes any admission of fault or liability. NOW, THEREFORE, based on valuable consideration, the receip sufficiency of which are hereby acknowledged, the Trustee and Comerica ag follows: COVENANTS 1. Recitals. The foregoing Recitals are true and correct an are and as , the
incorporated into these Covenants without any difference or distinction between t e two (2) segments of this Agreement. 2. Settlement Pa men Dismissal of Pendin and
Comprehensive Release. The Trustee and Comerica agree as follows: a. Payment by Comerica. Comerica shall pay to the Trustee or the (the
benefit of the bankruptcy estates of the GTI Debtors the sum of $950,00
"Settlement Amount"). The Settlement Amount will be paid in two (2) parts: i) the Trustee will retain the UCC Proceeds (in the amount of $638,959); and (ii) Coilnerica will pay the balance of the Settlement Amount (in the amount of $311, "$311,041 Payment") by check or wire transfer as promptly as practical fo execution of this Agreement. The Trustee will hold the $311,041 Payment in Payment to Comerica immediately if Bankruptcy Court Approval is not obtained. b. Release of Claims. Contemporaneously with the execution of this at is n: (1) Agreement, the Trustee (on behalf of the GTI Debtors and bankruptcy estates of the GTI Debtors) will execute and deliver to Comerica the "Release of Claims" 1, the 'ng st for
Comerica pending Bankruptcy Court Approval, and the Trustee will retum the $3 1,041
attached as Exhibit A (the "Release"). The Release will become effective only u
3
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000064STATE-BK Preemption
the payment of the Settlement Amount by Comerica; and (2) Bankruptcy Court a of this Agreement. c. Bankruptcy Court Approval. The terms and conditions
roval
f this
Agreement will be presented to the Bankruptcy Court for approval after noti hearing. The Trustee shall diligently and expeditiously pursue approval y the ive
Bankruptcy Court of the terms of this Agreement. This Agreement shall be e
upon the entry of an Order of the Bankruptcy Court approving this Agreement, p vided that no stay has been entered by the Bankruptcy Court or any appellate court ("Bankruptcy Court Approval"). c. Dismissal. Upon both (1) the Trustee's receipt of the Se
Amount; and (2) Bankruptcy Court Approval, the Adversary Proceeding and th Appeal will be dismissed with prejudice, and each of Comerica and the Trust bear itS own fees and costs associated with the Adversary Proceeding and Appeal. d. Additional Claim in Favor of Comerica. Effective upon pay ent of will
the Settlement Amount, Comerica shall have an allowed unsecured, pre-petitio in the Bankruptcy Cases for the Settlement Amount, provided that Comerica proof of claim (or amends itS previously filed proof of claim) for the Settlement within forty-five (45) days following Bankruptcy Court Approval. Nothing herei shall
impact or cause the release, disallowance, or reduction of the proof of claim pre iously filed by Comerica in the Bankruptcy Cases.
3.
General.
a. Successors and Assigns. This Agreement is binding up n the
Parties, as well as their heirs, legal representatives, personal represen successors, assigns, agents, and other representatives. b. Goveming Law. This Agreement and all questions relatin and
validity, interpretation, performance, and inducement shall be governed
construed, interpreted, and enforced in accordance with the substantive laws of the United States, and to the extent not inconsistent therewith, the laws of the S Arizona (exclusive of itS laws governing conflict of laws). of
4
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000065STATE-BK Preemption
c.
Choice of Forum. Any action involving or arising from this Sett ment Court ings the
0
Agreement shall be commenced and maintained in the United States Bankrupt Arizona lacks jurisdiction or declines to exercise jurisdiction, then such proce shall occur in the Superior Court of Arizona, County of Maricopa. d. Entire Agreement: Modifications. This Agreement sets fo complete and final agreement of the Trustee and Comerica with respect
for the District of Arizona; if the United States Bankruptcy Court for the Dis rict of
the
resolution of the matters set forth herein and amends any and all prior agreem nts or understandings, if any, pertaining to the matters addressed in this Agreeme . This Agreement may not be altered or amended except by a written instrument exec both the Trustee and Comerica. e. Counterparts. This Agreement may be executed by the stee imile and Comerica in separate counterparts. Upon execution of a counterpart by e ch of them, such counterparts shall be deemed one and the same Agreement. Fa signatures shall be accepted as original signatures. f. Construction. The Trustee and Comerica agree and ackno that the terms and language of this Agreement have been jointly drafted b respective counsel. Because the Trustee and Comerica have each reviewed th terms of this Agreement and have relied upon the advice of their respective attomeys a to its terms and provisions, this Agreement shall not be construed or interpreted agai st any
of the drafters, but shall be given its plain meaning.
g.
Additional Instruments and Acts.
The Parties agree to e ecute ssary
such other documents and to take such other actions as may reasonably be ne to further the purpose of this Settlement Agreement.
[signatures appear on following page]
5
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IN WITNESS WHEREOF, the Trustee and Comerica have executed origin counterparts of this Agreement effective as of the day and year first above written.
Dated: ---,'J;...'_rJ_fc_oa
_
David M. Reaves, Chapter 7 Trustee for GTI Capital Holdings, L.L.C., dba Rockland Materials, and G.H. Goodman Investment Companies, L.L.C. Case Nos. 2:03-bk-07923 and 07924
Dated:
c>l ;22 1- ;200 g
COMERICA BANK
By:
Name:cYJl(leeCl"ierles. Its: Senior Vice President - West
~C3 ;s;:;--.:'
.
6
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I
2
3 4
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7
Law Offices of MICHAEL W. CARMEL, LTD. 80 East Columbus Avenue Phoenix, Arizona 85012-2334 Telephone: (602) 264-4965 Arizona State Bar No. 007356 Facsimile: (602) 277-0144 E-mail: [email protected] Attorney for Plaintiff IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA Inre: GTI CAPITAL HOLDINGS, LLC, Case Nos. 2-03-bk-07923-SSC through 2-03-07924-SSC In re: G.H. GOODMAN INVESTMENT COMPANIES, L.L.c., Debtors. DAVID M. REAVES, Chapter 7 Trustee, Plaintiff,
v.
8
9
10
Chapter 7 Proceedings
11
12
Jointly Administered
13
14 15 16 17 18 19 20 21
Adversary No. 2:07-ap-00031 NOTICE OF ERRATA Hearing Date: March 11, 2008 Hearing Time: 10:00 a.m. Courtroom No. 701
COMERICA BANK-CALIFORNIA, Defendant.
On February 27, 2008, the Trustee filed the proposed Settlement Agreement with Comerica Bank. Exhibit A to that Agreement was inadvertently excluded. Attaehed to this pleading is a eopy of Exhibit A, whieh is the proposed Release the Trustee will execute, assuming the Court approves the Settlement Agreement. DATED this 28 th day of February 2008. MICHAEL W. CARMEL, LTD. /s/ Carmel, M.W. 007356 Michael W. Cannel 80 East Columbus Avenue Phoenix, Arizona 85012-2334 Attorney for Plaintiff
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1
2
3
4
COpy of the fore~oing mailed, or served via ele\htronic noti IcatlOn** if so marked, this 28 day of February 2008 to: U.S. TRUSTEE'S OFFICE 230 N. First Ave. Suite 204 Phoenix, AZ 85003-1706 ** emcdonough@a!varczandmarsal.com Edward M. McDonough, Examiner Alvarez & Marsal 2355 East Camelback Road, Suite 805 Phoenix, Arizona 85016 John R. Clemency ** [email protected] GREENBERG TRAURIG, LLP 2375 E. Camelback Road, Suite 700 Phoenix, AZ 85016 Attorneys for Comerica Bank-California Robert J. Miller ** [email protected] BRYAN CAVE LLP Two N. Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Attorneys for Examiner William Novotny" [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012-2705 Attornevs for Arizona Portland Cement William Scott Jenkins ** wsj@mj1ega!.com MYERS & JENKINS, PC 3003 N. Central Avenue, Suite 1900 Phoenix, Arizona 85012 Attorneys for Caterpillar Fin'!. Services Corp. MIchael R. Law ** [email protected] OFFICE OF THE CITY ATTORNEY 200 W. Washin~ton St., Suite 1300 Phoenix, AZ 8 003-1611 Attorneys for City of Phoenix Scott Gibson ** [email protected] GIBSON NAKAMURA & DECKER PLLC 2941 N. Swan Rd., Suite 101 Tucson, AZ 85712-2343 Attorneys for cn Howard C. Meyers ** [email protected] BURCH & CRACCHIOLO, P.A. 702 E. Osborn Road, Suite 200 Phoenix, AZ 85011-6882 Attorneys for Empire Southwest Co. 2
5
6
7 Mary B. Artigue, Esq. ** [email protected] GAMMAGE & BURNHAM Two North Central Avenue Eightcenth Floor Phoenix, AZ 85004-4470 Larry G. Haddy ** [email protected] Burch & Cracchiolo, P.A. 702 E. Osborn Road, Suite 200 Phoenix, AZ 85014 Attornevs for Amerinride Linen and Annare! Services Denise Ann Faulk ** [email protected] Office of the Attorney General Bankruptcy & Collection Enforcement 1275 W. Washington St. Phoenix, AZ 85007-1298 Attornevs for Arizona Dept. of Revenue William E. Corley, III Senior Attorney, Legal Dept. BOMBARDIER CAPITAL INC. 12735 Gran Bay Parkway West, Suite 1000 Jacksonville, FL 32258
David N. Ingrassia, PC 1212 E. Osborn Rnad
*"'Du\,jdCiliingrdssialaw.phxcoxmail.com
8
9
10 11 12 13 14 15 16 17 18 19 20 21
Phoenix, AZ 85014 Atly for General Electric Capital Corp., successor in int.
to Citicapital Corom'l Leasing Corp. fka Associates Leasing Inc.; CitiCapital Tech Finance Inc. fka EAR
22
23 24 25 26 27 28
Leasing Corp. Craig J. Bolton ** [email protected] John G. Sinodis ** i17s(alihc-law.com JENNINGS, HAUG & CUNNINGHAM, LLP 2800 N. Central Avenue, Suite 1800 Phoenix,AZ 85004-1049 Attornevs for Crown Bank Leasinl! James Eaward Shively **shively@polibal!.com POLl & BA\hL, PLC. 2999 N. 44 Street, Suite 500 Phoenix, AZ 85018 Attornevs for DaimlerChrvsIer Services North America
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1
2
3 4
James A. Tiemstra *.. [email protected] LAW OFFICES OF JAMES A. TIEMSTRA Tribune Tower, 15 th Floor 409 Thirteenth Street Oakland, CA 94612 Attorneys for Engs Motor Trock Co, dba Engs Lease Plan Darren A. Pascarella
[email protected]
Alan M. Levinsky ** alevinsky,%buchalter.com Buchalter emer 16435 N. Scottsdale Rd., #440 Scottsdale, AZ 85254-1754 Attorneys for Ford Motor Credit Company
5
6
**
7
8
9
10 11 12
REED SMITH LLP 599 Lexington Avenue, 29th Floor New York, NY 10022 Attorneys for General Electric Capital Corp Steven M. Cox ** smcox@wechv,com Michelle H. Tong ** mtong(al,wechv.com WATERFALL, ECONOMIDIS, CALDWELL, ET
AL.
13
14 15 16 17 18 19 20 21
5210 E, Williams Circle, Suite 800 Tucson, AZ 85711 Attornevs for GMAC Sean P. O'Bnen ** spobrien(a)gustlaw.com GUST ROSENFELD P.L.C. 20 I E. Washington Bank of America / Collier Center Suite 800 Phoenix, AZ 85004-2327 Attorneys for Hurricane Fence Co. .... [email protected] DaVid S. Mork, CIRA ArizSota Business Consulting Company 9208 E, Champagne Drivc, Suite 2 Sun Lakes, AZ 85248 Debtors' Financial Advisors
Carlos M. Arboleda ** [email protected] ARBOLEDA BRECHNER 4545 E. Shea Blvd. Suite 120 Phoenix, AZ 85028 Local counsel General Electric Capital Coro Grant H. Goodman ** granthgoodman@msn,com 4156 N, 49 th Street Phoenix, AZ 85018 Attorneys for Grant and Teri Goodman; Triad Comm'l Captive Insurance Co. JosephF. MusumecI, PC ** JFM41 0I@ao~,com 4539 N. 22" Street Suite 200 Phoenix, AZ 85016 Attorneys for Liberty Mutual Insurance Co. Mark Sittennan .. * [email protected] NORLING KOLSRUD SIFFERMAN DAVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, AZ 85254-1592 Attorneys for Border States Electric SupCly; Lonesome Valley, L.L.C., Perkins Ranc , Inc, Thomas Y and Mar!!aret L. Perkins Richard C. Cole, Jr. ** [email protected] RICHARD C. COLE, JR., LTD. 7321 N. 16th Street Phoenix, AZ 85020 Attorneys for Navajo Pump & Supply, Inc,
22
23 24 25 26 27 28
1. Phillip Glasscock .. * [email protected] 1. PHILLIP GLASSCOCK, P.C. 13430 N. Scottsdale Road, Suite 106
Scottsdale, AZ 85254 Attorneys for Mobile Mini, Inc.
Maricoya County Division of County Counse 222 N, Central Avenue, Suite 1100 Phoenix, AZ 85004-2206 Attorneys for Maricopa County
3
Damel P. Beeks *.. dbeeks(almhnlaw.com Gregory W. Falls ** [email protected] MOHR, HACKETT, PEDERSON, BLAKLEY, RANDOLPH & HAGA, P.c. 2800 N, Central Ave., Suite 1100 Phoenix AZ 85004-1043
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I
2 3 4
5
Attornevs for Orix Financial Services. Inc. Paul Sala ** [email protected] Joshua R. Forest ** iforest(d)fclaw.com ALLEN & SALA, P.L.e. Dewain D. Fox ** [email protected] Viad COItorate Center FENNEMORE CRAIG, P.C. 1850 N. entral Avenue, Suite 1150 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85004-4712 Phoenix, AZ 85012-2913 Attorneys for Oshkosh/McNeilus Financial Local Counsel for PACCAR Financial Com. Servo John 1. Hebert, Esq.** [email protected] Mark W. Roth, Esq. [email protected] Hebert Schgnk PC 4742 N. 24' St., Suite 100 Phoenix, AZ 85016-4858 Don C. Fletcher ** [email protected] THE CAVANAGH LAW FIRM 1850 N. Central Avenue, Suite 2400 Phoenix, AZ 85004 Attorneys for Scottsdale 101 Associates, LLC Paul D. Petersen, Esq. Law Offices of Paul D. Petersen 1440 S. Clearview Ave., #103 Mesa, AZ 85012-2334
6 7
8
9 10 11 12 13 14
Rebecca K. O'Brien **
[email protected]
RUSING & LOPEZ, PLLC 6262 N. Swan Road, Suite 200 Tucson, AZ 850718 Attornevs for PACCAR Financial Com. Julio M. Zapata ** [email protected] FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorneys for Sysco Corporation JeUrey H. Levmson ** [email protected] ANDERSON BRODY BUCHALTER NEMER P.A. 4600 E. Shea Blvd., Suitc 100 Phoenix, AZ 85028 Attornevs for W.R. Grace Scott K. Brown ** [email protected] LEWIS AND ROCA LLP 40 N. Central Avenue Phoenix, AZ 85004-4429 Attorneys for Bombardier Capital Inc.
IS
16 17 18 19 20 21 22 23 24 25 26 27 28
Jeffrey R. Parker ** [email protected] WTI,INC. Office of the General Counsel 3737 E. Broadway Road Phoenix, AZ 85040 Attorneys for Western Technologies. Inc. CARSON MESSINGER ELLIOTT LAUGHLIN & RAGAN 3300 N. Central Avenue, Suite 1900 Phoenix, AZ 85067-3907 Attornevs for Zions Credit Comoration Renee Sandler Shamblm **[email protected] Office of the U.S. Trustee 230 N. First Avenue, Suite 204 Phoenix, AZ 85003-1706
/s/ Nancy G. Fortv
4
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000071STATE-BK Preemption
Law Offices of MICHAEL W. CARMEL, LTD. 80 East Columbus Avenue Phoenix, Arizona 85012-2334 (602) 264-4965 Facsimile: (602) 277-0144 E-mail: michae1(a)mcarmellaw.eom February 6, 2008
David M. Reaves, Chapter 7 Trustee P.O. Box 44320 Phoenix, AZ 85064-4320 Grant H. Goodman, Esq. Grant H. Goodman PLLC 4156 N. 49 th St. Phoenix, AZ 85018-0001
RE:
In re GTI Capital Holdin\:s, LLC, an Arizona limited liability company dba Rockland Materials; Case No. 2:03-bk-07923-SSC through 2:03-Q7924-SSC
Dear Dave and Grant: I enclose copies ofthe Depositions ofMichael Fulton and Thomas R. Shanle, representatives of Comerica Bank-California, taken January 22, 2008, for your information. Very truly yours,
Michael W. Cannel MWC:ngf Enclosure
Case 2:03-cv-01587-JAT
Document 132-3
Filed 06/13/2008
Page 35 of 52
DEPOSITION OF THOMAS R. SHANLE -1/22/2008
000072STATE-BK Preemption
IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ARIZONA
In re:
GTI CAPITAL HOLDINGS, LLC, an Arizona limited liability company dba ROCKLAND MATERIALS, G.H. GOODMAN INVESTMENT COMPANIES, LLC, ) an Arizona limited liability ) company, )
) Debtor. ) ) ) GTI CAPITAL HOLDINGS, LLC, an ) Arizona limited liability company ) dba ROCKLAND MATERIALS, G.H. )
) ) ) ) )
Case Nos. GOODMAN INVESTMENT COMPANIES, LLC, ) 2-03-bk-07923-SSC an Arizona limited liability ) through company, ) 2-03-7924-SSC Plaintiffs, -vs) ) ) ) ) ) ) ) ) ) ) )
COMERICA BANK-CALIFORNIA, as Successor by Merger to IMPERIAL BANK, a California banking corporation, Defendant.
1.
Case 2:03-cv-01587-JAT & STROMBERG, INC. Filed 06/13/2008 PULONE Document 132-3 800-200-1252
Page 36 of 52
CERTIFIED SHORTHAND REPORTING & VIDEOCONFERENCING SERVICES
DEPOSITION OF THOMAS R. SHAI'\LE -1/22/2008
Q.
2
Ok.ay.
000073STATE-BK Preemption
No,
w~'ll
1
A.
Q.
-- that's on the third line. Yeah, I couldn't make that out.
2
MR.
CI.EMt::NCY;
do that.
3
4
3
{off the record.)
MR.
CLE,~ENCY:
A.
It's four
~gits
there.
I can't make it out
5
CO'Ji.d 1 get c1.a::ification, Did you discuss this memOranO:.lm
5
6 7 8
either, but it's an internal extension number. Q. And I take it, the middle one, which clearly is
Hil:e?
Is the question:
6
with othe:: people?
not all the numbers, does that look at all familiar to you?
8
MR. CARP.EL:
speak 'l>Iith -- what
No.
I thought my question was -Did he
we're going to get to that, but my question was:
was
9 10
11
A. Q.
No, it does not.
9
the discussion he had with
he
Do you have any recollection of sending a fax
10
11
Ms. McDonald, as best prepare this document? MR. CLEMENCY:
you~
recalls, that caused him to
to anybody with this document?
12
13 14 15
A.
Q.
I don't have a
All right.
r~collection
of having sent it.
12
13 14 15
Weil, maybe you should
~e-ask
So the second and third page is a
quest.ions. MR. CARMEL: Okay.
document that you prepared; correct?
A. The beginning where it says Exhibit A?
Yes. Yes.
BY MR. CARMEL:
Q.
16
17 18 19
20
Q. A.
Q.
16
17
In preparing Exhibit A, did you review
Mr. Shanle, do you recall any of the
conversations that you had with Ms. McDonald prior to your preparing the Exhibit A to settlement authorization?
Okay.
18 19
20
any documents?
A. Q.
A.
Q.
I don't recall. Did you review any correspondence?
MR. CLEMENCY:
Object to the form.
21
22
21
22
23
If you under.stand the question, you can answer. THE WITNESS: to me, please. THE REPORTER: BY MR. CARMEL: Would you read the question back
I don't recall.
Did you speak to anybody?
Yes. Wi th whom did you speak?
23
24
A. Q.
24
Of course.
"
1 2
14
A. attorney. Q. A.
I
"
1
16
Q. do that. A. I'm just trying to listen and answer it.
know I
I
spoke with John Clemency, our
If you want me to rephrase, I would be happy to
also spoke with Diana McDonald.
2
3
4
What position did McDonald have? She was in the Speci.l Assets Department, which She is what we
3
4
MR. CLEMENCY: like:
The way you asked him, it sounds
5
6 7 8 9
means that she was a workout officer. would call the internal client. Q. Anybody else?
I
5
6 7 8 9
Did you have any conversations with Diana
McDonald before you prepared the settlement documentation? BY MR. CARI-1EL:
Q. Let's go this way. Let me break i t down.
A.
Q.
don't recall.
In the course of preparing a document such as
10
11
Exhibit A, generally speaking, would you have reviewed documents? A. It depends on the circumstances of the credits,
I
10
11
Did you have any conversations with Ms. McDonald about GTI Capital?
A.
12
13
14 15
12
13 14 15
Yes. Were any of those conversations prior to your
how complicated they were.
would review enough to
Q.
be -- to fael comfortable making a summary. Q. Do you recall what the specifics of what is in
preparing this settlement authorization? A.
Q.
Yes. Were any of those conversations -- did they
~n
16
17 18 19
20
Exhibit A address?
16
MR. CLEMENCY: THE WITNESS: BY MR. CARMEL: Q.
Okay.
Object to the form. I'm not sure I understand.
17
assist you
acquiring facts so that you could prepare
18
19
this Exhibit A? A. Q. I don't rElcall. Do you recall what any of the conversations
What did Ms. McDonald tell you,
as best
20
21
22
23
as you can recall?
21
with Ms. McDonald were as i t relates to GTI Capital?
MR. CLEMENCY:
Objection.
I need to just cover
22
A.
Q. are
I do not. Okay. Other than the four individuals who
something briefly, to see if I want to let him answer the q:.lestion. MR. CARMEL: Fair enough. Do you want me to
24
"
I"
24
23
who signed off on the authorization on page 1, do
you know of anybody else in the bank who has seen
15
I
17
5 (Pages 14 to 17)
PULONE Document 132-3 800-200-1252 Case 2:03-cv-01587-JAT & STROMBERG, INC. Filed 06/13/2008 CERTIFIED SHORTHAND REPORTING & VIDEOCONFERENCING SERVICES
Page 37 of 52
DEPOSITION OF THOMAS R. SHANLE - 1/22/2008
1 2
000074STATE-BK Preemption
Q.
And a report that you would have prepared?
Yes.
1
Q.
Have you seen Exhibit 2 prior to today? Yes.
A.
Q. A.
2
A. Q.
document?
3
How often would that have occurred?
I'm not sure we were on a regular. In fact, I
We had
,
5
3
What is your understanding of the terms of this
What was your understanding? MR. CL:::MENCY: Object to '::he
fo~m.
5
believe we were not on a regular schedule.
6
7
periodic telephone conference calls where we would
discuss pending litigation. And those were sometimes
6
7
8
TCIE h'TTNESS: BY
Of terms of this document?
MR.
Q.
CARMEL: Yes. Let me ask the question this way because
8
9
subject to the availability of people. Q. So there were periodic telephone calls, but
9
maybe we can get a focus a little bit better. Did you have any understanding of what this term sheet was or its terms? A. At the time i t was entered into? Yes. Yes. What was that understanding? Well, in general, we were settling most of the
10
11
were there actual written litigation reports prepared? A. For each of those telephone calls, there would
10
11
12
13 14
be a list of the matter and a description. Q. A. With whom were those periodic telephone calls? Besides myself, Barbara DeBenedetto was
12
13 14
Q.
A.
15
16
typically a party, John Bilstrom was typically a party, and there mayor may not have been somebody else from Detroit in the legal department.
15
16 17
Q. A.
17
disputes that related to this credit and all the litigation and the bankruptcy. Q. Do you have any understanding of how the term
18
19
Q. A.
Is Mr. Bilstrom in California? No, he's in Detroit. And Detroit is where Comerica's corporate
18
19
20
20
21
Q.
sheet came about, who prepared it? A.
I
headquarters are located?
21
think Mr. Clemency -- I was always under the
22
A.
Q.
Were at the time. Where are they now? I think they're in Texas. I'm not sure where
23
2'
25
A.
in Texas.
I::
2
impression that Mr, Clemency prepared it. Q. Did you review i t before i t was circulated to
the other side?
They moved after I left the bank.
1 ' 25
A.
I don't have a specific recollection of
30
1
32
1
2
Q.
How many litigation reports did -- was GTI
reviewing i t before i t was circulated to the other side, but I believe that I the bank. Q. Okay. Yes. And Ms. McDonald was authorized to sign this on And that was signed by Ms. McDonald? reviewed i t before i t was signed by
2
capital listed on?
,
5 6
3
MR. CLEMENCY:
THE WITNESS:
I
Object to
the form.
don't recall.
,
5 6
7
3
BY MR. CARMEL:
Q.
More than five? I don't recall. More than 10?
I
A.
Q.
7
8 9
A.
Q.
June 30, 2004, as set forth on Exhibit 2, is that -- I'm sorry -- page 2 of Exhibit 2?
8
9
A.
Q.
don't recall.
A.
Urn, I'm sure she was,
She wouldn't have signed
10
11
But you do recall that GTI was on at least one
10
11
i t if she hadn't been.
The only thing is, this Exhibit
litigation report? A. Q. Yes. Was GTI the subject of more than one of these
1, anybody's authority to act on the bank was dependent
on this having been executed and appro~d in advance.
12
13 14
12 13
14
Q.
A.
SO Exhibit 1 was -So when I say she was authorized, I'm assuming
telephone calls?
15
16
A.
There was a telephone conference call for So the numbers would be
15
this Exhibit 1 was fUlly executed before she signed.
almost every litigation report. comparable. (EXHIBIT 2 WAS THE BY
~D,)
16
17
Q.
And Exhibit 1 is a necessary step before
17
Exhibit 2 could be executed, as far as you understand?
18
19
18
19
A.
Yes. Okay. Did you review any documents in
REPORTER:
Exhibit 2.
Q.
20
MR. CARMEL:
Q.
20
preparation of your authorizing Exhibit 2 to be circulated to the examiner?
21
22 23
Mr.
Shanle, I've handed you Exhibit 2 to your
21
22
deposition today.
Urn, generally speaking, the parties
Are you
MR. CLEMENCY:
Object to the form. I don't reGall.
refer to this document as a term sheet. comfortable with me
us~ng
23
THE
BY MR. Q.
WITNESS~
2'
25
that terminology?
2'
25
CARMEL:
Did you speak with anyone about this?
A.
Yes.
31
33
9 (Pages 30 to 33)
PULONE & STROMBERG, INC. 800-200-1252 Case 2:03-cv-01587-JAT Document 132-3 Filed 06/13/2008 CERTIFIED SHORTHAND REPORTING & VIDEOCONFERENCING SERVICES
Page 38 of 52
DEPO:iJTION OF THOMAS R. SHAI\LE -1/22/2008
000075STATE-BK Preemption
1 2 that after you had concluded there was no likelihood of success, as set forth in Exhibit I?
1
Q.
Did yoU ever discuss with Mr. Clemency whether
2 3
the bank should assert a position that the examiner did not have the power or authority to pursue the rolling stock avoidance action?
3
4
A.
I have to go back and tell you about Exhibit I,
said there is no likelihood
and that sentence, where I
4
5
6 7
5
6 7
of success.
When I sa
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