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Full title: Emergency Motion for Relief from Plan Injunction Filed by Creditor Daniel Vasquez (Attachments: # 1 Proposed Order) (Akard, John) (Entered: 08/04/2021)

Document posted on Aug 3, 2021 in the bankruptcy, 5 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal taxidentification number, are: BJ Services, LLC (3543); BJ Management Services, L.P. (8396); BJ ServicesHoldings Canada, ULC (6181); and BJ Services Management Holdings Corporation (0481). Daniel Vasquez (“Vasquez”), party-in-interest in the above referenced bankruptcy,hereby files this Emergency Motion for Relief from Plan Injunction (the “Motion”) to bring toconclusion a settlement reached between Vasquez and BJ Services, LLC (“BJS”) (through itsinsurance provider, Berkley Oil and Gas (“Berkley”)) and states as follows: FACTS 1.He has already suffered significant financial, physical and mental harm as a result ofEmergency Motion of Daniel Vasquez for Relief from Plan Injunction the Debtors’ negligence.Both Bass and the undersigned counsel for Vasquez have attempted to resolve this mattertimely with debtors’ counsel, Amber M. Carson, who has stated that this Motion is necessary toexpedite this matter to conclusion. I hereby certify that a true and correct copy of the foregoing Emergency Motion ofDaniel Vasquez for Relief from Plan Injunction has been served by ECF upon all persons whohave filed ECF appearances in this case, including counsel of record for the Debtors, counsel ofrecord for Norman N. Kinel, Liquidation Trustee, counsel of record for Scott A. Simaldi, Wind-Down Trustee, and all parties requesting notice on August 4, 2021.

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: § CHAPTER 11 § BJ SERVICES, LLC, et al,1 § CASE NO. 20-33627 (MI) § DEBTORS § (Jointly Administered) EMERGENCY MOTION OF DANIEL VASQUEZ FOR RELIEF FROM PLAN INJUNCTION THIS MOTION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE MOTION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE YOUR RESPONSE WITHIN 21 DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE MOTION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE RELIEF MAY BE GRANTED WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE MOTION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE MOTION AT THE HEARING. REPRESENTED PARTIES SHOULD ACT THROUGH THEIR ATTORNEY. EMERGENCY RELIEF HAS BEEN REQUESTED. IF THE COURT CONSIDERS THE MOTION ON AN EMERGENCY BASIS, THEN YOU WILL HAVE LESS THAN 21 DAYS TO ANSWER. IF YOU OBJECT TO THE REQUESTED RELIEF OR IF YOU BELIEVE THAT THE EMERGENCY CONSIDERATION IS NOT WARRANTED, YOU SHOULD FILE AN IMMEDIATE RESPONSE. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal taxidentification number, are: BJ Services, LLC (3543); BJ Management Services, L.P. (8396); BJ ServicesHoldings Canada, ULC (6181); and BJ Services Management Holdings Corporation (0481). The Debtors’service address is: 11211 Farm to Market 2920 Road, Tomball, Texas 77375. Emergency Motion of Daniel Vasquez for Relief from Plan Injunction

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TO THE HONORABLE MARVIN ISGUR, U.S. BANKRUPTCY JUDGE: Daniel Vasquez (“Vasquez”), party-in-interest in the above referenced bankruptcy,hereby files this Emergency Motion for Relief from Plan Injunction (the “Motion”) to bring toconclusion a settlement reached between Vasquez and BJ Services, LLC (“BJS”) (through itsinsurance provider, Berkley Oil and Gas (“Berkley”)) and states as follows: FACTS 1. BJS’ insurance carrier, Berkley, entered into a settlement agreement withVasquez resolving his claim for injuries that he sustained on August 15, 2019. After enteringinto the settlement agreement, the adjuster informed Vasquez’ personal injury counsel, MarcoBass, that BJS was in bankruptcy and he needed to obtain authorization from debtors’ counsel. Since that time, Bass has attempted to obtain authorization or relief to no avail, necessitating thefiling of this Motion. 2. On August 15, 2019, Vasquez was severely injured by BJS employee andco-defendant, Gabriel Hernandez (“Hernandez”) (the “Incident”). While Hernandez was in thecourse and scope of his employment, and while operating a 2017 Ford F150 truck, he failed tosecure his cargo load. Hernandez and Vasquez were traveling in opposite directions withHernandez traveling northbound on FM 181 and Vasquez traveling southbound on FM 181. Astheir paths crossed, Defendants’ loose cargo hurled into the air and descended on a direct pathtowards Vasquez’ front window forcing Vasquez to take evasive action. Vasquez was forced toslam his brakes, veer right then left in an effort to avoid the unsecured cargo, but he and hisvehicle still sustained significant injuries and damages. 3. Taking over for other counsel, Bass sent demand to Berkley in May 2021 andthereafter (on behalf of BJS) Berkley entered into a settlement agreement with Vasquez,agreeing to pay $185,000.00 for the injuries and damages Vasquez sustained. After tendering aRelease of Bodily Injury Claim (“Release”), Berkley’s adjuster informed Bass that BJS had filedbankruptcy and that he needed to obtain authorization from debtors’ counsel before thesettlement could be funded. In effect, the matter has been resolved and is complete except forfunding the settlement. Emergency Motion of Daniel Vasquez for Relief from Plan Injunction

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RELIEF REQUESTED 4. By this Motion, Vasquez respectfully requests that the Court enter an ordermodifying the injunction (the “Injunction”) established by Article XII.G. of the Debtors’Combined Disclosure Statement and Joint First Amended Plan [Docket No. 1084] and approvedby the Court pursuant to Order Confirming the Debtors’ Combined Disclosure Statement andJoint First Amended Chapter 11 Plan [Docket No. 1093] (the “Confirmation Order”) to allowthe parties to complete the agreed resolution of his injury claim, enter into the Release andreceive the related settlement funds. ARGUMENT 5. Although insurance policies are the property of the bankrupt estate, the proceedsof the policies are not. Houston v. Edgeworth, 993 F.2d 51, 55 (5th Cir. 1993). A discharge inbankruptcy does not extinguish the debts of the debtor, but merely releases the debtor formpersonal liability on those debts. Id. at 53. A judgement against the debtor that is satisfied fromthe proceeds of an insurance policy does not subject the debtor to personal liability. Id. Neitheran automatic stay nor a discharge in bankruptcy inures to the benefit of the insurer by barring orstaying suits filed against the debtor to determine the liability of the insurer. Id. at 53-54; In reFernstrom Storage and Van Company, 100 B.R. 1017, 1023-24 (N.D. Illinois 1989). Neitherdoes a party’s failure to file proof of claim in the bankruptcy impair the right of that party to filesuit to determine a third party’s liability on the debt. Edgeworth, 993 F.2d at 55; Fernstrom, 100B.R. at 1021. 6. No great prejudice to BJS will result if the Injunction is modified because BJShad liability insurance coverage in place at the time of the incident. As evidenced by theagreement and Release Debtors’ insurance carrier has already assumed financial liability forlitigation costs and any payouts. “Where it is undisputed that insurance coverage is substantial,an action to recover insurance proceeds may not cause great prejudice to the estate.” Fernstrom,100 B.R. at 1023-24. 7. On the other hand, Vasquez will suffer great hardship if the Injunction is notmodified. He has already suffered significant financial, physical and mental harm as a result ofEmergency Motion of Daniel Vasquez for Relief from Plan Injunction

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the Debtors’ negligence. In addition, Vasquez is an individual with modest means compared tothe Debtors. The balance of hardships weighs heavily in favor of Vasquez. 8. Accordingly, Vasquez respectfully requests that this Court modify the Injunctionand allow settlement to be funded. ALTERNATIVE REQUEST FOR RELIEF 9. The Incident occurred on August 15, 2019. As a result, the statute of limitationson the claim runs on August 15, 2021. Accordingly, if the Court does not grant emergency,immediate relief from the Injunction, Vasquez requests that he be granted limited relief to file apetition in state court and preserve his rights. EMERGENCY RELIEF REQUESTED 10. As noted, the Incident occurred on August 15, 2019 and thus the statute oflimitations on Vasquez’ claim runs on August 15, 2021. Vasquez seeks emergency relief so thathe may be granted relief from the Injunction or limited relief so that he may file suit prior to theexpiration of the statute of limitation. CONCLUSION 11. For the reasons set forth above, Daniel Vasquez respectfully requests that theCourt issue an order modifying the Injunction to allow Parties to complete the agreed resolutionof his claim, enter into the Release and fund the settlement. Alternatively, Vasquez requestsrelief to file suit to preserve his rights and the injury claim. Vasquez further request that he begranted such other relief as is just and proper. Respectfully Submitted By: /s/ John Akard Jr. JOHN AKARD, JR. State Bar No. 00790212 COPLEN & BANKS, P.C. 11111 McCracken, Suite A Cypress, TX 77429 Telephone: 832-237-8600 Telecopier: 832-237-2088 ATTORNEYS FOR DANIEL VASQUEZ Emergency Motion of Daniel Vasquez for Relief from Plan Injunction

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CERTIFICATE OF CONFERENCE Both Bass and the undersigned counsel for Vasquez have attempted to resolve this mattertimely with debtors’ counsel, Amber M. Carson, who has stated that this Motion is necessary toexpedite this matter to conclusion. Accordingly, it was necessary to file this Motion. By: /s/ John Akard Jr. JOHN AKARD, JR. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Emergency Motion ofDaniel Vasquez for Relief from Plan Injunction has been served by ECF upon all persons whohave filed ECF appearances in this case, including counsel of record for the Debtors, counsel ofrecord for Norman N. Kinel, Liquidation Trustee, counsel of record for Scott A. Simaldi, Wind-Down Trustee, and all parties requesting notice on August 4, 2021. By: /s/ John Akard Jr. JOHN AKARD, JR. Emergency Motion of Daniel Vasquez for Relief from Plan Injunction

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