10353089.1 UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION In re ) ) EQUIPMENT ACQUISITION RESOURCES, INC. ) Case No.: 09 B 39937 ) Debtor. ) Hon. Timothy A. Barnes ) ) Date: September 24, 2012 ) Time: 1:30 p.m. NOTICE OF MOTION To: See Attached Service List PLEASE TAKE NOTICE that on September 24, 2012, at 1:30 p.m. , the undersigned shall present to the Honorable Timothy A. Barnes, or any judge sitting in his stead, in Courtroom 642, in the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, at 219 South Dearborn Street, Chicago, Illinois, the PLAN ADMINISTRATOR’S MOTION TO APPROVE SETTLEMENT PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE WITH FIA CARD SERVICES, N.A. F/K/A MBNA AMERICA BANK, N.A., DISCOVER BANK, DFS SERVICES, LLC, INDUSTRIAL ASSET RECYCLING LLC, MILL IRON RANCH, LLC, KIM WHEELDON, AND CHANCY WHEELDON, a copy of which is attached and served upon you. Respectfully Submitted, William A. Brandt, Jr., acting solely in his capacity as the Plan Administrator for Equipment Acquisition Resources, Inc. By: /s/ George P. Apostolides One of his attorneys George P. Apostolides (6228768) Kevin H. Morse (6297244) ARNSTEIN & LEHR LLP 120 S. Riverside Plaza, Suite 1200 Chicago, IL 60606 Telephone: 312-876-7100 Facsimile: 312-876-0288 Case 09-39937 Doc 805 Filed 09/19/12 Entered 09/19/12 15:35:40 Desc Main Document Page 1 of 26
Transcript
10353089.1
UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION In re ) ) EQUIPMENT ACQUISITION RESOURCES, INC. ) Case No.: 09 B 39937 ) Debtor. ) Hon. Timothy A. Barnes ) ) Date: September 24, 2012 ) Time: 1:30 p.m.
NOTICE OF MOTION To: See Attached Service List PLEASE TAKE NOTICE that on September 24, 2012, at 1:30 p.m., the undersigned shall present to the Honorable Timothy A. Barnes, or any judge sitting in his stead, in Courtroom 642, in the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division, at 219 South Dearborn Street, Chicago, Illinois, the PLAN ADMINISTRATOR’S MOTION TO APPROVE SETTLEMENT PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE WITH FIA CARD SERVICES, N.A. F/K/A MBNA AMERICA BANK, N.A., DISCOVER BANK, DFS SERVICES, LLC, INDUSTRIAL ASSET RECYCLING LLC, MILL IRON RANCH, LLC, KIM WHEELDON, AND CHANCY WHEELDON, a copy of which is attached and served upon you.
Respectfully Submitted, William A. Brandt, Jr., acting solely in his capacity as the Plan Administrator for Equipment Acquisition Resources, Inc.
By: /s/ George P. Apostolides One of his attorneys George P. Apostolides (6228768) Kevin H. Morse (6297244) ARNSTEIN & LEHR LLP 120 S. Riverside Plaza, Suite 1200 Chicago, IL 60606 Telephone: 312-876-7100 Facsimile: 312-876-0288
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10353089.1
CERTIFICATE OF SERVICE
I, George P. Apostolides, certify that on September 10, 2012, I caused a copy of the PLAN ADMINISTRATOR’S MOTION TO APPROVE SETTLEMENT PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE WITH FIA CARD SERVICES, N.A. F/K/A MBNA AMERICA BANK, N.A., DISCOVER BANK, DFS SERVICES, LLC, INDUSTRIAL ASSET RECYCLING LLC, MILL IRON RANCH, LLC, KIM WHEELDON, AND CHANCY WHEELDON, to be served on the parties identified on the attached Service List as receiving notice via CM/ECF or by regular United States Mail at the addresses listed.
/s/ George P. Apostolides
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Katie Hinrichs 16 Trent Road Hawthorn Woods, IL 60047-9100
Forbes Enterprises,Inc. Joseph Stephen Risi 405 N. 5th Street Coos Bay, OR 97420
William Sullivan Martin Brown Sullivan Roadman & Hartnett Ltd. 135 S. LaSalle Street, Suite 3200 Chicago, IL 60603
Brian H. Meldrum Stites & Harbison, PLLC 400 S. Market Street Louisville, KY 40207
David J. Fischer Wildman Harrold Allen & Dixon LLP 225 W. Wacker Drive, Suite 3000 Chicago, IL 60606
Douglas J. Lipke Vedder Price P.C. 222 N. LaSalle Street, Suite 2600 Chicago, IL 60601
Internal Revenue Service Mail Stop 5010 CHI 230 S. Dearborn Street, Ste 2300 Chicago, IL 60606
Associate Area Counsel SB/SE 200 W. Adams Street, Suite 2300 Chicago, IL 60606
Joel Nathan United States Attorney 219 South Dearborn Street Chicago, IL 60604
D. Patrick Mullarkey Tax Division (DOJ) P.O. Box 55 – Ben Franklin Station Washington, DC 20044
Illinois Department of Revenue 101 W. Jefferson Street Springfield, IL 62702
Assistant Attorney General Revenue Litigation Bureau 100 W. Randolph Street, 13th Floor Chicago, IL 60601
Luis Arcos 1115 Miller Lane Apt. 204 Buffalo Grove, IL 60089-4249
John A. Benson, Jr. The Law offices of Brian Ira Tanenbaum, Ltd. 2970 Maria Avenue, Suite 207 Northbrook, IL 60062
Ryan T. Shultz Fox Swibel Levin & Carroll LLP 200 W. Madison Street, Suite 3000 Chicago, IL 60606
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David A. Kallick Tishler and Wald Ltd. 200 S. Wacker Drive, Ste 3000 Chicago, IL 60606
Richard M. Bendix Dykema Gossett PLLC 10 S. Wacker Drive, Suite 2300 Chicago, IL 60606
David J. Fischer Wildman Harrold Allen & Dixon LLP 225 W. Wacker Drive, Suite 3000 Chicago, IL 60606
Karen R. Goodman Shefsky & Froelich, Ltd. 111 E. Wacker Drive, Ste 2800 Chicago, IL 60601
SG Equipment Finance 480 Washington Boulevard 24th Floor Jersey City, NJ 07310
TD Banknorth Leasing Corporation c/o Thomas M. Lombardo Riemer & Braunstein LLP 71 South Wacker Drive, Suite 3515 Chicago, IL 60606
Home Federal Savings Bank c/o Joseph D. Roach Briggs and Morgan, P.A. 2200 IDS Center, 80 South 8th Str. Minneapolis, MN 55402
PNC Equipment Finance LLC Successor to Town & Country Leasing LLC Successor to National City Equipment Finance c/o James M. Crowley Crowley & Lamb P.C. 221 N. LaSalle Street, Suite 1550 Chicago, IL 60601
WesBanco Bank, Inc. c/o Denise Knouse Snyder 61 14th Street Wheeling, WV 26003
WesBanco Bank, Inc. c/o Todd J. Flagel Flagel & Papakirk, LLC 50 E. Business Way, Ste 410 Cincinnati, OH 45241
ICON Capital Corp. c/o James A. Rolfes Reed Smith LLP 10 South Wacker Drive Chicago, IL 60606-7407
General Electric Capital Corp. 1010 Thomas Edison Blvd SW Cedar Rapids, IA 52404
General Electric Capital Corp. c/o CT Corporation System 208 LaSalle Street, Suite 814 Chicago, IL 60604
J. Maxwell Beatty Diamond McCarthy LLP 909 Fannin, 15th Floor Two Houston Center Houston, TX 77010
Old Second Bancorp., Inc. Attn: William B. Skoglund 37 S. River Street Aurora, IL 60506
Richard N. Golding Law Offices of Richard N. Golding 500 N. Dearborn St., 2nd Floor Chicago, IL 60654
Edward Freud Ruff, Weidenaar & Reidy 222 N. LaSalle Street Suite 700 Chicago, IL 60601
Juyon Ham Askounis & Darcy, PC 401 N. Michigan Avenue, Suite 550 Chicago, IL 60611
TD BankNorth Leasing Corporation c/o Jeffrey D. Ganz Riemer & Braunstein LLP 3 Center Plaza, Floor 6 Boston, MA 02108-2003
TD BankNorth Leasing Corporation c/o Phillip J. Block Riemer & Braunstein LLP 71 S. Wacker Drive, Suite 3515 Chicago, IL 60606
Home Federal Savings Bank c/o Adam Goodman Goodman Law Offices LLC 105 W. Madison Street, Suite 1500 Chicago, IL 60602
Suntrust Leasing Corporation c/o Diana H. Psarras Robbins Salomon & Patt, Ltd. 25 E. Washington Street, Suite 1000 Chicago, IL 60602
Marie-Josee Dube Bankruptcy Coordinator IBM Corporation/IBM Credit LLC 1360 Rene-Levesque W., Suite 400 Montreal, QC, H3G 2W6 Canada
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UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In re ) ) EQUIPMENT ACQUISITION RESOURCES, INC. ) Case No.: 09 B 39937 ) Debtor. ) Hon. Timothy A. Barnes ) ) Date: September 24, 2012 ) Time: 1:30 p.m. PLAN ADMINISTRATOR’S MOTION TO APPROVE SETTLEMENT PURSUANT TO RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE WITH FIA
CARD SERVICES, N.A. F/K/A MBNA AMERICA BANK, N.A., DISCOVER BANK, DFS SERVICES LLC, INDUSTRIAL ASSET RECYCLING LLC, MILL IRON RANCH, LLC,
KIM WHEELDON, AND CHANCY WHEELDON AND FOR SHORTENED NOTICE
William A. Brandt, Jr. (“Brandt”), acting solely in his capacity as the Plan Administrator
for Equipment Acquisition Resources, Inc. (“EAR” or “Debtor”), by his attorneys, George P.
Apostolides and Kevin H. Morse of Arnstein & Lehr LLP, hereby moves this Court pursuant to
Federal Rule of Bankruptcy Procedure 9019 for an order approving the Settlement Agreements
(the “Settlement Agreements”) between Brandt on the one hand and FIA Card Services, N.A.
f/k/a MBNA America Bank, N.A. (“FIA”), Discover Bank and DFS Services, LLC (collectively,
“Discover”), Industrial Asset Recycling LLC (“IARLLC”), and Mill Iron Ranch, LLC
(“MIR”), Kim Wheeldon (“Kim”), and Chancy Wheeldon (“Chancy”) (collectively, MIR, Kim,
and Chancy are “Wheeldon”) on the other hand (FIA, Discover, IARLLC, and Wheeldon are
collectively the “Defendants”), which resolves the adversary proceedings filed against those
parties, on shortened notice.1 In support of this motion (the “Motion”), Brandt states as follows.
1 Chancy was not named as a defendant in the action filed against MIR and Kim (11 A 2183), however, he has been included as part of the settlement and mutual releases between Brandt, MIR and Kim.
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I. JURISDICTION AND VENUE
1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and
1334. This is a core proceeding under 28 U.S.C. § 157(b). Venue is proper in this Court under
28 U.S.C. §§ 1408 and 1409. Relief can be granted to Brandt under 11 U.S.C. § 105 and Rule
9019.
II. BACKGROUND
A. The Debtor and Brandt
2. On October 23, 2009, the Debtor filed a voluntary petition for relief under chapter
11 of the Bankruptcy Code in this Court (the “Petition Date”). This Court approved the
Debtor’s Second Amended Plan of Liquidation (the “Plan”) by Order dated July 15, 2010 [ECF
No. 322]. Pursuant to the terms of the Plan, the Debtor executed the Plan Administrator
Agreement, naming Brandt as Plan Administrator of the Debtor.
3. The Plan expressly retained the Debtor’s Litigation Claims, as defined in Plan
¶1.43. Under the terms of the Plan and the Plan Administrator Agreement, Brandt has the
responsibility and right to pursue litigation claims on behalf of the Debtor, including the claims
against the Defendants.
4. On multiple occasions between October, 2005 and October, 2009, EAR made
transfers to the Defendants which formed the basis of lawsuits against them.
B. FIA Card Services, N.A. f/k/a MBNA America Bank, N.A.
5. On October 21, 2011, Brandt filed an adversary proceeding, Case No. 11 A 2176,
which named FIA as a defendant. The Complaint sought the recovery of thirty (30) payments
totaling $606,328.21 which EAR made to FIA in the four year period prior to the bankruptcy
petition date of October 23, 2009 pursuant to 11 U.S.C. § 544. These transfers were to pay
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charges to both EAR credit cards and credit cards which were held by individuals, some of
whom were associated with EAR management and others of whom were not. Brandt has agreed
to settle with FIA for $364,253.38. A copy of the draft settlement agreement is attached as
Exhibit A.
C. Discover Bank and DFS Services LLC
6. On October 21, 2011, Brandt filed an adversary proceeding, Case No. 11 A 2177,
which named Discover as a defendant. The Complaint sought the recovery of forty-nine (49)
payments totaling $106,863.61 which EAR made to Discover in the four year period prior to the
bankruptcy petition date of October 23, 2009 pursuant to 11 U.S.C. § 544, 547, and 548. These
transfers were to pay charges to a credit card which was held by Sheldon Player individually, and
two other cards whose holders are unidentified. Brandt has agreed to settle with Discover for
$59,500.00. A copy of the draft settlement agreement is attached as Exhibit B.
D. Industrial Asset Recycling LLC
7. On October 17, 2011, Brandt filed adversary proceeding 11 A 2100, against
IARLLC. That case initially sought the recovery of preferential payments totaling $192,000.00
which EAR made to IARLLC in the ninety (90) day period prior to the bankruptcy petition date
of October 23, 2009 pursuant to 11 U.S.C. § 547. The adversary complaint was later amended to
include a count for the recovery of two (2) payments pursuant to 11 U.S.C. § 548. IARLLC has
provided documentation which demonstrates that it had what may have been a complete defense
to the preference claims, and has also provided documentation which demonstrates that it has a
defense to the fraudulent transfer claims. Brandt has agreed to settle with IARLLC for
$8,000.00. A copy of the draft settlement agreement is attached as Exhibit C.
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E. Mill Iron Ranch, LLC, Kim Wheeldon, and Chancy Wheeldon
8. On October 21, 2011, Brandt filed an adversary proceeding, Case No. 11 A 2183,
which identified MIR and Kim as defendants. Chancy is married to Kim and part of the
proposed settlement agreement and release. The Complaint sought the recovery of two payments
for $4,600.00 which EAR made to MIR in the two year period prior to the bankruptcy petition
date of October 23, 2009 pursuant to 11 U.S.C. § 548 and the recovery of that payment plus ten
(10) payments totaling $132,050.00 which EAR made to MIR in the four year period prior to the
bankruptcy petition date of October 23, 2009 pursuant to 11 U.S.C. § 544. The Complaint also
sought the recovery of one payment totaling $12,000.00 which EAR made to Kim in the four
year period prior to the bankruptcy petition date of October 23, 2009 pursuant to 11 U.S.C. §
544. Counsel for MIR, Kim, and Chancy have provided information and documentation which
indicates that they have defenses to the claim, and have additionally provided information
regarding the ability of Brandt to collect a judgment against them in Wyoming, where they are
all located. Brandt has agreed to settle with MIR, Kim, and Chancy for a total of $5,000.00. A
copy of the draft settlement agreement is attached as Exhibit D.
III. TERMS OF SETTLEMENT
9. With a view toward maximizing the recoverable value of Brandt’s claims, in
furtherance of broader efforts to facilitate the estate’s distribution of funds, and to otherwise
avoid the time, expense, and uncertainty of litigation, based upon his business judgment, Brandt
seeks the approval of the Settlement Agreements.
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IV. ARGUMENT
A. The 9019 Order
i. The Standard for Approval of Settlement Agreements
10. Compromise and settlement have long been an inherent component of the
bankruptcy process. See Protective Comm. for Indep. Stockholders of TMT Trailer Ferry, Inc. v.
Anderson, 390 U.S. 414, 424 (1958) (citing Case v. Los Angeles Lumber Prods. Co., 308 U.S.
106, 130 (1939)). Rule 9019 provides:
(a) COMPROMISE. On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States Trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the Court may direct.
11. Compromises are favored in bankruptcy and public policy favors compromise
because litigation “can occupy a court’s docket for years on end, depleting resources of the
parties and the taxpayers while rendering meaningful relief elusive.” In re Grau, 267 B.R. 896,
“Approval of a settlement is committed to the court’s sound discretion.” In re Commercial Loan
Corp., 316 B.R. 690, 697 (Bankr. N.D. Ill. 2004). Brandt asks the Court to exercise its authority
and discretion and, based on the standards for the approval of compromises under Rule 9019,
approve the Settlement Agreements.
12. The paramount question in approving a bankruptcy settlement is whether the
compromise is in the best interests of the estate. E.g., In re Andreuccetti, 975 F.2d 413, 421 (7th
Cir. 1992). The “linchpin” of this examination is “a comparison of the value of the settlement
with the probable costs and benefits of litigating. In re Doctors Hosp. of Hyde Park, Inc., 474
F.3d 421, 426 (7th Cir. 2007). Factors that the Court should consider include “the litigation’s
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probability of success, complexity, expense, inconvenience, and delay, including the possibility
that disapproving the settlement will cause wasting of assets.” Id. (internal quotations omitted).
13. In conducting such an analysis, “a precise determination of likely outcomes is not
required, since ‘an exact judicial determination of the values in issue would defeat the purpose of
compromising the claim.’” In re Telesphere Communications, Inc., 179 B.R. 544, 553 (Bankr.
N.D. Ill. 1994) (quoting In re Energy Coop, Inc., 886 F.2d 921, 927 (7th Cir. 1989)). Instead, the
court must determine if the “settlement falls within the reasonable range of possible litigation
outcomes.” In re Doctors Hosp. of Hyde Park, Inc., 474 F.3d at 426. The standard is not met
“only if a settlement falls below the low end of possible litigation outcomes.” Id.
ii. The Settlement Agreements are Fair and Equitable
14. Brandt has analyzed the claims against the Defendants and believes that the
Settlement Agreements are reasonable and equitable in light of all of the relevant factors. In
reaching the terms of the proposed settlement, Brandt compared the value of the settlement with
the costs and benefits of litigating, and based on this analysis, Brandt believes that the Settlement
Agreements are in the best interest of the Estate.
1. Probability of Success in the Litigation
15. The Defendants have asserted a number of affirmative defenses to Brandt’s
claims. Considering the uncertainty and contingency involved in the litigation against the
Defendants, and the payments which the Defendants are willing to make to settle these cases, the
Settlement Agreements properly consider the probability of success for EAR in litigation.
16. There is no guarantee that Brandt would succeed if the parties litigated the
disputes that are the subject of the Settlement Agreements. Though Brandt is confident that he
can prove his prima facie case, he will also have to litigate defenses and introduce evidence
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which may create issues for EAR in the prosecution of not only these cases but also other
adversary proceedings in this case.
2. The Complexity of the Litigation Involved and the Expense, Inconvenience, and Delay Necessarily Attending It.
17. Should these cases proceed through five separate jury trials and the inevitable
post-trial briefing, as well as potential appeals, there is no doubt that it would be expensive to
litigate as all parties appear intent on vigorously backing their allegations. Therefore, Brandt has
concluded that the Settlement Agreements are fair, reasonable, and in the interest of the Estate
after weighing all relevant and material factors, including the strengths of the asserted claims and
defenses.
18. The Settlement Agreements will also facilitate a prompt and meaningful recovery,
which further supports Brandt’s belief that they are unquestionably in the best interest of the
Estate.
REQUEST FOR SHORTENED NOTICE
19. Pursuant to Federal Rule of Bankruptcy Procedure 9006(c)(1), shortened notice
may be ordered at the Court’s discretion “for cause shown.” As set forth below, Brandt has
cause for filing this Motion on ten (10) days’ notice and requesting that the Court shorten the
notice period. Shortened notice is appropriate because (1) all four of these settlements can be
included in this single Motion; (2) this Motion is being filed and giving the parties ten (10) days
notice; (3) having the Motion heard on shortened notice will bring the settlement funds into the
Estate expeditiously; and (4) there is no prejudice to the parties receiving notice by shortening
the time period.
20. As this Court knows, on August 15, 2012 it entered its Order Approving Case
Management and Litigation Procedures for Non-Lessor Adversary Proceedings (the “Procedures
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Order”). That order sets omnibus hearings in this case on September 24, 2012, November 14,
2012 and January 16, 2013. The order also indicates that all status hearings and motions,
applications and other filings shall be noticed for one of those dates. The Procedures Order is
attached as Exhibit E.
21. Counsel for Brandt has been working diligently with counsel for the Defendants
to finalize the language of their Settlement Agreements. Counsel for Brandt also waited until all
four of the agreements were finalized the file this Motion, in order to minimize the costs to the
Estate.
22. The four settlements included in this Motion will generate $436,753.38 in funds
for the Estate. The Estate is interested in bringing these funds into the Estate as soon as possible.
23. Finally, there is no prejudice to any party receiving this Motion on shortened
notice. The Court should also note that to date, no party has objected to any 9019 motion in this
case which involved the settlement of an adversary proceeding for money only.
V. CONCLUSION
24. After weighing all relevant and material factors, including the settlement amounts,
the strengths of the asserted claims and defenses, the costs and burdens of litigation, and the
general uncertainty and risk of litigation, Brandt believes the Settlement Agreements are in the
best interests of the Estate.
WHEREFORE, Plaintiff, William A. Brandt, acting solely in his capacity as the Plan
Administrator for Equipment Acquisition Resources, Inc., respectfully requests that this Court
approve the Settlement Agreements attached as Exhibits A through D on the terms set forth
above, enter the proposed Rule 9019 order, and provide such other and further relief as the Court
deems appropriate.
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DATED: September 14, 2012 Respectfully Submitted, William A. Brandt, Jr., acting solely in his capacity as the Plan Administrator for Equipment Acquisition Resources, Inc.
By: /s/ George P. Apostolides One of its attorneys Barry A. Chatz (6196639) George P. Apostolides (6228768) Kevin H. Morse (6297244) ARNSTEIN & LEHR LLP 120 S. Riverside Plaza, Suite 1200 Chicago, IL 60606 Telephone: 312-876-7100 Facsimile: 312-876-0288
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