Case No. 02 B49672 (Jointly Administered), Case No. 02 B49675.United States Bankruptcy Court, N.D. Illinois, Eastern Division.
April 14, 2004.
James H.M. Sprayrogon, P.C. (ARDC. No. 6190206), Anno Marrs Huber (ARDC No. 6226828), Anup Sathy (ARDC No. 6230191), Micah E. Marcus (ARDC No. 6257569), Kirkland Ellis LLP, Chicago, IL, Counsel for the Reorganized Debtors.
George J. Budzynski, Conseco Finance Corp., Saint Paul, Minnesota, Authorized Designee and Signatory for the CFC Estate.
Jeffrey J. Hartley, Helmsing, Leach, Herlong, Newman Rouse, P.C. Mobile, Alabama.
STIPULATION AND AGREED ORDER BETWEEN REORGANIZED DEBTORS, THE CFC ESTATE, AND HELMSING, LEACH, ET AL. RESOLVING MOTIONS AND TRANSFERRING CLAIMS
CAROL DOYLE, Bankruptcy Judge
The Reorganized Debtors, the CFC Estate, and Helmsing, Leach, Herlong, Newman Rouse, P.C. (“Claimant”) hereby state as follows for this Stipulation and Agreed Order Between Reorganized Debtors, The CFC Estate, And Helmsing, Leach, et al. Resolving Motions And Transferring Claim (“Stipulation”):
WHEREAS, on March 17, 2003, Claimant filed Proof of Claim No. 49672-007913 (the “First Unsecured Claim”) in the amount of $18,944.39 as a general unsecured claim against Conseco, Inc.;
WHEREAS, on April 4, 2003, Reorganized Debtors filed Debtors’ Sixth Omnibus Objection To Claims — Objection To Claims Against The Holding Company Debtors and objected to the First Unsecured Claim as late-filed (the “Sixth Omnibus Objection”) against Conseco, Inc.;
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WHEREAS, on May 12, 2003, Claimant filed Proof of Claim No. 49672-008548 against Conseco, Inc. for administrative expense in the amount of $26,630.00 (the “First Administrative Claim”);
WHEREAS, on May 12, 2003, Claimant filed Proof of Claim No. 49676-002193 against Conseco Finance Servicing Corp. for administrative expense in the amount of $26,630.00 (the “Second Administrative Claim”);
WHEREAS, on May 19, 2003, the Court sustained the Sixth Omnibus Objection in its Order Granting The Relief Sought In Debtors’ Sixth Omnibus Objection to Claims (docket 2454) and disallowed the First Unsecured Claim against the Reorganized Debtors;
WHEREAS, on July 18, 2003, the Reorganized Debtors filed th Reorganized Debtors’ Eleventh Omnibus Objection To Claims and objected to the Second Administrative Claim on the grounds it was filed against the wrong debtor;
WHEREAS, on August 4, 2003, Claimant filed Proof of Claim No. 49672-008622 (the “Second Unsecured Claim,” and together with First Unsecured Claim, the First Administrative Claim, and the Second Administrative Claim, the “Helmsing Claims”) in the amount of $36,114.39 as a general unsecured claim against Conseco, Inc.;
WHEREAS, on August 20, 2003, the Eleventh Omnibus Objection was sustained and the Second Administrative Claim was transferred to the Finance Company Debtors and re-filed as Proof of Claim No. 49676-002324;
WHEREAS, on September 9, 2003, the Court consolidated the estates of the Finance Company Debtors into a single estate in the Order Confirming Finance Company Debtors Joint Liquidating Plan Of Reorganization Pursuant To Chapter 11 Of The United States Bankruptcy Code (docket 5844);
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WHEREAS, on December 15, 2003, the CFC Estate filed CFC Estate’s Fifteenth Omnibus Objection To Claims asserted against the Finance Company Debtors and objected to the Second Administrative Claim as a duplicate claim to the First Administrative Claim (the “Fifteenth Omnibus Objection”);
WHEREAS, on January 14, 2004, the Court sustained the Fifteenth Omnibus Objection and disallowed the Second Administrative Claim;
WHEREAS, on March 4, 2003, Claimant filed its (i) Motion to Transfer Unsecured Claim to Appropriate Debtor and Motion for Telephonic Hearing; and (ii) Motion To Transfer Administrative Expense Claim To Appropriate Debtor and Motion for Telephonic Hearing (together, the “Helmsing Motions”);
WHEREAS, on April 7, 2004, the CFC Estate filed the CFC Estate’s Twenty-Sixth Omnibus Objection to Claims And Motions For Payment of Administrative Expenses Asserted Against the Finance Company Debtors (Supplemental Substantive Objection to Reclassify Certain Trust Collateral-Related Claims) (the “Twenty-Sixth Omnibus Objection”) and objected to the First Administrative Claim seeking to reclassify it as a general unsecured claim;
WHEREAS, Claimant may file a response to the Twenty-Sixth Omnibus Objection not later than April 28, 2004;
WHEREAS, it appears there is no basis for the Helmsing Claims against the Reorganized Debtors and Claimant intended to file the Helmsing Claims against one of the Finance Company Debtors;
WHEREAS, the Reorganized Debtors, the CFC Estate, and Claimant wish to correct the mistaken filing of the Helmsing Claims and to transfer the Second Unsecured Claim to the CFC
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Estate without prejudice to the rights of the CFC Estate to object to the Helmsing Claims on any grounds at any time; and
WHEREAS, the parties having reached an amicable resolution memorialized herein; and it appearing that due and sufficient notice having been given; and after due deliberation and good cause appearing for the entry of this Stipulation; and based upon the foregoing recitals and in consideration of the mutual covenants set forth below the parties agree as follows:
IT IS HEREBY STIPULATED AND AGREED, BY AND BETWEEN THEUNDERSIGNED PARTIES:
1. The Second Unsecured Claim is transferred to and deemed timely filed as an amended general unsecured claim for $36,114.39 against Conseco Finance Corp. as of August 4, 2003.
2. This Stipulation is without prejudice to the rights of the CFC Estate to object to the Second Unsecured Claim and/or the First Administrative Claim for any reason at any time and all rights are hereby reserved; provided, however, the CFC Estate agrees not to object to the Second Unsecured Claim on the ground that it was late-filed.
3. The Helmsing Motions are withdrawn as moot.
4. This Stipulation may be executed in counterparts and by facsimile, and all such counterparts shall constitute one stipulation.
5. 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.
6. The signatories to this Stipulation represent and warrant that they have been duly authorized to execute this Stipulation.
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7. This Stipulation is subject to the approval of the Bankruptcy Court and parties agree to use reasonable efforts to obtain such approval as quickly as possible.
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SO ORDERED.
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