CASE NO. 02-43582-H4-11, Jointly AdministeredUnited States Bankruptcy Court, S.D. Texas
November 19, 2003
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas, for Counsel to the Debtors’ Disbursing Agent
John Mayer, ROSS, BANKS, MAY, CRON CAVIN, P.C., Houston, Texas, for Counsel to Discovertheoutdoors.com
STIPULATION AND AGREED ORDER REGARDING DISBURSING AGENT’S OBJECTION TO DISCOVERTHEOUTDOORS.COM’S PROOFS OF CLAIM (DOCKET #2994)
WILLIAM GREENDYKE, Bankruptcy Judge
Encompass Services Corporation and its subsidiaries (the “Debtors”) and Discovertheoutdoors.com (the “Claimant” and together with the Debtors, the “Parties”) stipulate as follows:
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code.
2. WHEREAS, on May 21, 2003, this Court entered an order confirming the Immatenally Modified Second Amended Join Plan of Reorganization of Encompass Services Corporation and its Affiliated Debtors Under Chapter 11 of the Bankruptcy Code and supplemented by the Plan Supplement, the First Amended Plan Supplement, and the Second Amended Plan Supplement (collectively, the “Plan”). On June 9, 2003, the Plan became effective.
3. WHEREAS, as of the Effective Date, and pursuant to Article 5.3 of the Plan, each of Debtor’s assets and liabilities were merged with and pooled with the assets and liabilities of each of the other Debtors, and each and every Claim filed or to be filed in the Chapter 11 case of any of the Debtors is deemed filed against the consolidated Debtors and is deemed one Claim against, and obligations of, the consolidated Debtors.
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4. WHEREAS, on or about February 24, 2003, the Claimant filed proof of claim number 825 (“Proof of Claim No. 825”) in Bankruptcy Case No. 02-43582 alleging a secured claim in the amount of $9,663.34and an unsecured non-priority claim in the amount of $44,599.80.
5. WHEREAS, on or about February 25, 2003, the Claimant filed proof of claim number 23 in Bankruptcy Case No. 02-43582 (“Proof of Claim No. 23”) alleging a secured claim in the amount of $9,663.34and an unsecured non-priority claim in the amount of $44,599.80. Proof of Claim No. 825 is a duplicate of Proof of Claim No. 23.
6. WHEREAS, the Disbursing Agent filed the Third Omnibus Objection to Duplicate Proofs of Claim (the “Omnibus Objection”) (Docket #2815) objecting, inter alia, to Proof of Claim No. 825 on the ground that it is a duplicate of Proof of Claim No. 23.
7. WHEREAS, On August 6, 2003, the Claimant filed its Response to the Omnibus Objection (Docket #2907). By the Response, the Claimant requested the allowance of an amended proof of claim in Bankruptcy Case No. 02-43582 (the “Amended Proof of Claim”) (together with Proof of Claim No. 23 and Proof of Claim No. 825, the “Proofs of Claim”). The Amended Proof of Claim purports to amend Proof of Claim No. 825 and Proof of Claim No. 23 and alleges a secured claim in the amount of $9,663.34 and an unsecured non-priority claim in the amount of $727,336.66. The Amended Proof of Claim has not yet been assigned a claim number.
8. WHEREAS, on August 27, 2003, the Disbursing Agent filed its Objection to Discovertheoutdoors.com’s Proofs of Claim (Docket No. 2994) (the “DTO Objection”) requesting the Claimant’s Proofs of Claim be denied in their entirety.
9. WHEREAS, on September 15, 2003, the Claimant filed its response to the DTO Objection (Docket No. 3065).
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NOW THEREFORE, THE PARTIES HERETO STIPULATE AS FOLLOWS:
1. that Proof of Claim No. 23 is disallowed in its entirety;
2. that Proof of Claim No. 825 is disallowed in its entirety;
3. that the Amended Proof of Claim is allowed as an unsecured non-priority claim in amount of $29,002.19 for moving and relocation expenses only, with the remainder disallowed in its entirety;
4. that the Claimant does not have any other claims against the Debtors in these bankruptcy cases;
5. that the Debtors expressly reserve the right to object to any Claim not subject to this Stipulation.
IT IS HEREBY ORDERED that the Stipulation is approved.
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