Case No. 03-46590(DML) 11 Jointly Administered.United States Bankruptcy Court, N.D. Texas, Fort Worth Division.
October 4, 2004
Robin E. Phelan, Judith Elkin, Ian T. Peck, HAYNES AND BOONE, L.L.P., Dallas, Texas, Thomas E Lauria, Michelle C. Campbell, WHITE CASE LLP, Miami, Florida, ATTORNEYS FOR THE DEBTORS AND DEBTORS-IN-POSSESSION.
ORDER GRANTING DEBTORS’ MOTION TO (1) DISALLOW AND EXPUNGE FROM CLAIMS REGISTER CLAIMS BASED ON EQUITY INTERESTS; AND (2) MAINTAIN CLAIMS BASED ON EQUITY INTERESTS AS PROOFS OF INTEREST
DENNIS MICHAEL LYNN, Bankruptcy Judge
On August 18, 2004, Mirant Corporation (“Mirant”) and its above-captioned debtors (collectively, the “Debtors”) filed and served their “Debtors’ Motion to (1) Disallow and Expunge from Claims Register Claims Based on Equity Interests; and (2) Maintain Claims Based on Equity Interests as Proofs of Interest” (the “Motion”) pursuant to which Debtors requested entry of an order allowing Claims Based on Security Interests in these chapter 11 cases to be (1) expunged from the Claims Register and disallowed in their entirety; and (2) maintained as Proofs of Interest on a separate proof of interest register.[1] The Court held a hearing on the Motion on September 29, 2004.
The following parties submitted responses to the Motion: (i) Mrs. Abraham Resnikoff, trustee of the Abraham Resnikoff Trust, by letter postmarked August 30, 2004; (ii) Ms. Shirley M. Wise, by letter dated September 3, 2004; (iii) Louis J. Saucier, by letter dated September 5, 2004; (iv) Sondra D. Dudley, by facsimile dated September 7, 2004; (v) Bernard Marocco, by letter dated September 11, 2004; and (vi) Milton C. Herr Mrs. Emily A. Herr, Jt
Page 2
Ten, by letter dated September 13, 2004[2] (the “Responses”). Each of the Responses indicates that the relevant proof of claim is a Claim Based on an Equity Interest.
Upon consideration of the Motion; and it appearing that the Court has jurisdiction to consider the Motion; and it appearing that the relief requested in the Motion is in the best interest of the Debtors, theirs estates and creditors; and it appearing that due notice of the Motion has been given and no further notice need be given; and upon good and sufficient cause appearing; and recognizing that the Official Committee of Equity Security Holders of Mirant Corporation supports the relief requested in the Motion.
IT HEREBY IS ORDERED THAT:
1. The Motion is hereby GRANTED;
2. The Claims Based on Equity Interests identified on Exhibit A to the Motion, and Claim 7446, are hereby expunged from the Claims Register and disallowed in their entirety;
3. The Debtors may direct the claims agent to maintain the Claims Based on Equity Interests, including Claim 7446, as proofs of interest on a separate proof of interest register;
4. To the extent a party who filed a Claim Based on an Equity Interest wishes to assert any prepetition claims against the Debtors’ estates, such claimant will be required to
Page 3
seek leave of this Court and meet the appropriate standards for filing untimely proofs of claim at the time of asserting any such prepetition claims; and
5. Any additional claims based on equity interests that are not identified on Exhibit A to the Motion shall be deemed automatically expunged from the Claims Register and disallowed in its entirety pursuant to the following procedures:
• The Debtors are authorized to mail a notice, substantially in the form of the Equity Notice (the “Modified Equity Notice”), to parties who appear to have filed proofs of claims based upon equity interests not identified on Exhibit A to the Motion (the “Additional Equity Claimants”);
• The Additional Equity Claimants must respond to the Modified Equity Notice (as provided therein) within 30 days of mailing of such notice; otherwise the claim of any Additional Equity Claimant will be deemed automatically expunged from the Claims Register and disallowed in its entirety on the 31st day after the mailing of such Modified Equity Notice, and transferred to the previously established proof of interest register;
6. Nothing in the Motion or the accompanying exhibits or this Order constitutes a waiver of the Debtor’s rights to assert any claims, counterclaims, rights of offset or recoupment, preference actions, fraudulent-transfer actions, or any other bankruptcy or nonbankruptcy claims against the claimants whose claims are the subject of the Motion, including, without limitation, the right to object to the amount or validity of the proofs of interest;
7. Nothing herein modifies paragraph 13 of the “Order Pursuant to Bankruptcy Rule 3003(c) (I) Establishing a Bar Date for Filing Certain Proofs of Claim; (II)
Page 4
Establishing Ramifications for Failure to Comply Therewith; (III) Approving Proof of Claim Form and Consolidated Notice of (A) Case Commencement, (B) Bar Date, and (C) Meeting of Creditors Under Section 341(a) of the Bankruptcy Code; and (IV) Approving Notice and Publication Procedures:” Holders of equity securities of the Debtors need not file a proof of interest; provided, however,
that an equity security holder must file a proof of claim to the extent that such equity security holder asserts any rights as a creditor against any of the Debtors.
Page 1