Case No. 02 B49672, (Jointly Administered)United States Bankruptcy Court, N.D. Illinois
August 20, 2003
James II.M. Sprayregen P.C., Anup Sathy, Roger Higgins, Dryden J. Liddle, Kirkland Ellis, Chicago, IL, for the Debtors and Debtors-In-Possession
Mindy D. Cohn, Kaye Scholer LLC, Chicago, Illinois, for Home City
Everett, Gaskins, Hancock Stevens, LLP, E.D. Gaskins, Jr., Michael J. Tadych, Raleigh, North Carolina, for Home City
STIPULATION AND ORDER (I) RESOLVING HOME CITY’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY AND (II) DEEMING HOME CITY’S PROOF OF CLAIM TIMELY FILED
CAROL DOYLE, Bankruptcy Judge
Upon consideration of Home City LTD’s (“Home City”) Motion for Relief from the Automatic Stay to Allow State Court Litigation and American Arbitration Association Arbitration to Proceed (the “Lift Stay Motion”) pursuant to I’ed. R. Bankr. P. 4001 and section 362(d)(1) of title 11 of the United States Code (the “Bankruptcy Code”) in connection with certain litigation pending in Wake County, North Carolina Superior Court, captioned as Conseco Finance Servicing Corporation v. Home City LTD., et al., Case No. 02-CV-005931 (the “Action”) and certain arbitration proceedings filed by Conseco Financ Servicing Corporation (“CFSC”) against Home City (The “Arbitration”); and the Motion of Home City for Entry of an Order Deeming Proof of Claim of Home City. LTD. As Timely Filed (the “Late Filed Claim Motion,” together with the Lift Stay Motion, the “Motions”) this Court having considered the
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Motions; the undersigned parties agreeing to and this Court finding that due and proper notice of the Motions and opportunity to object having been given; the undersigned parties agreeing to and this Court finding that due and proper opportunity for a hearing on the Motions having been appropriate in the particular circumstances; it appearing that sufficient cause exists for granting the requested relief as set forth herein; and that the relief requested in the Motions is in the best interests of all parties; and the parties having reached an amicable resolution as memorialized herein;
THE PARTIES STIPULATE AS FOLLOWS:
A. On December 17, 2002 (the “Initial Petition Date”), the Initial Finance Company Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. Subsequently, on February 3, 2003 (The “CFC Subsidiary Petition Date”), the CFC Subsidiary Debtors filed voluntary petitions for relief under chapter 11 of the Bankruptcy Code. On June 2, 2003, the New Debtors filed their voluntary petitions for relief under chapter 11 of the Bankruptcy Code, and on June 24, 2003, CFCCFC filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code (collectively, the “Chapter 11 Cases”).
B. On or about July 22, 2003, Home City filed its Lift Stay Motion seeking relief from automatic stay pursuant to section 362(d) of the Bankruptcy Code to proceed with the Action and the Arbitration.
C. On or about August 6, 2003, Home City filed its Late Filed Claim Motion alleging that Home City did not received notice of the Court’s Order (A) Establishing Bar Dates for Filing Proofs of Claim for all Prepetition Creditors of CFC Debtors, and (B) Approving the Form and Manner of Notice of the CFC Bar Dates, entered on April 14, 2003 (the “Bar Date Order”).
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D. The parties wish to resolve their differences with respect to the Motions without further legal proceedings or expense in order to save court time, docket space and service costs for all parties.
E. To the extent the automatic stay applies, the Finance Company Debtors hereby agree to a limited modification of the automatic stay pursuant to section 362(d) of the Bankruptcy Code to enable Home City to proceed with its defenses and/or counterclaims in the Action and the Arbitration or in any other action or proceeding in relation thereto.
F. It is hereby further stipulated that the Finance Company Debtors do not hereby waive, relinquish or surrender any other claims, rights or defenses they have or may have as against Home City in the Action, the Arbitration or in any other action or proceeding in relation thereto.
G. The parties also agree that Home City’s proof of claim designated on the claims register as Claim No. 49676-002150 (the “Claim”) shall be deemed timely filed and the Finance Company Debtors reserve their right to object to the Claim at any time and on any grounds other than timeliness.
H. This Stipulation constitutes the entire agreement between the parties with respect to the subject matter hereof. No prior or contemporaneous agreement may be used to alter the terms of the Stipulation.
I. This Stipulation may be modified only in writing and such modification must be signed by authorized representatives of both Home City and the Finance Company Debtors.
J. The signatories to this Stipulation represent and warrant that they have been duly authorized to execute this Stipulation.
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K. This Stipulation shall inure to the benefit and be binding upon Home City, their counsel, as well as the Finance Company Debtors and any Chapter 11 or Chapter 7 Trustee appointed herein.
L. This Stipulation is subject to the approval of the Bankruptcy Court. The parties agree to use reasonable efforts to obtain the approval of the Bankruptcy Court as quickly as possible.
M. In the event the Bankruptcy Court declines to approve this Stipulation, neither this Stipulation nor any part thereof may be used by any party for any purpose, except to enforce this provision,
N. This Stipulation may be executed in counterparts and by facsimile and all such counterparts shall constitute one Stipulation.
WHEREFORE, GOOD CAUSE HAVING BEEN DULY SHOWN AND FOUND, IT IS HEREBY ORDERED THAT:
1. The Motion is GRANTED as set forth herein.
2. Effective upon the dale of entry of this Order, the automatic stay is modified only in accordance with the terms set forth herein, to permit the Action and Arbitration to proceed as set forth herein.
3. The Finance Company Debtors retain and do not waive any and all of their claims, rights, defenses and objections they have or may have in the Action, the Arbitration or to The Claim or in any other action or proceeding in relation thereto.
4. Home City’s proof of claim designated on the claims register as Claim No. 49676-002150 shall be deemed timely filed and the Finance Company Debtors may object to the Claim at any time and on any grounds other than timeliness.
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5. This Court shall retain jurisdiction to hear and determine all matters arising from or related to the implementation of this Order.
6. The Terms and Conditions of this Order shall be immediately be effective and enforceable upon its Entry.
7. This Order is a complete and final resolution of the Motions.
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