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Full title: Objection to Claim Number by Claimant William Polk. William Polk. Liquidation Trustee's Objection to Proof of Claim No. 114 Filed by William Polk Hearing scheduled for 10/4/2021 at 10:00 AM at telephone and video conference. (Attachments: # 1 Exhibit A - Kinel Declaration # 2 Exhibit B - Claim 114 # 3 Proposed Order)(McRoberts, Travis) (Entered: 08/26/2021)
Document posted on Aug 25, 2021 in the bankruptcy, 10 pages and 0 tables.
Bankrupt11 Summary (Automatically Generated)
Norman N. Kinel, in his capacity as Liquidation Trustee (the “Liquidation Trustee”) of the BJS Liquidation Trust (the “Liquidation Trust”), hereby submits this objection to Proof of Claim Number 114 (“Claim 114”) filed against BJ Services, LLC (“BJ Services”) by William Polk (the “Claimant”).In support hereof, the Liquidation Trustee submits the Declaration of Norman N. Kinel in Support of the Liquidation Trustee’s Objection to Proof of Claim No. 114Specifically, any such entity must file an original, written proof of claim (a “Proof of Claim”), and “[i]n order to have prima facie validity, each Proof of Claim must include supporting documentation in accordance with Bankruptcy Rules 3001(c) and 3001(d).”As set forth in Bankruptcy Rule 3001(f), a properly executed and filed proof of claim constitutes prima facie evidence of the validity and the amount of the claim under section 502(a) of the Bankruptcy Code.Without limiting the forgoing, due notice was afforded, whether by facsimile, electronic mail, overnight courier or hand delivery, to parties in interest, including: (a) the Office of the U.S. Trustee for the Southern District of Texas; (b) the administrative agent under the Debtors’ prepetition asset-based revolving credit facility and counsel thereto; (c) the administrative agent under the Debtors’ prepetition term loan facility and counsel thereto; (d) the administrative agent under the Debtors’ prepetition real estate loan and counsel thereto; (e) the United States Attorney’s Office for the Southern District of Texas; (f) the Internal Revenue Service; (g) the Environmental Protection Agency and similar state environmental agencies for states in which the Debtors conduct business; (h) the state attorneys general for states in which the Debtors previously conducted business; (i) the United States Securities and Exchange Commission; (j) any party that has requested notice pursuant to Bankruptcy Rule 2002; and (k) the Claimant.
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Document ContentsIN 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) ) LIQUIDATION TRUSTEE’S OBJECTION TO PROOF OF CLAIM NO. 114 FILED BY WILLIAM POLK THIS IS AN OBJECTION TO YOUR CLAIM. THIS OBJECTION ASKS THE COURT TO DISALLOW THE CLAIM THAT YOU FILED IN THIS BANKRUPTCY CASE. IF YOU DO NOT FILE A RESPONSE WITHIN 30 DAYS AFTER THE OBJECTION WAS SERVED ON YOU, YOUR CLAIM MAY BE DISALLOWED WITHOUT A HEARING. A HEARING HAS BEEN SET ON THIS MATTER ON OCTOBER 4, 2021 AT 10:00 A.M. (CENTRAL TIME) IN COURTROOM 404, 515 RUSK, HOUSTON, TEXAS 77002. YOU MAY PARTICIPATE IN THE HEARING BY AUDIO/VIDEO CONNECTION. AUDIO COMMUNICATION WILL BE BY USE OF THE COURT’S DIAL-IN FACILITY. YOU MAY ACCESS THE FACILITY AT (832) 917-1510. YOU WILL BE RESPONSIBLE FOR YOUR OWN LONG-DISTANCE CHARGES. ONCE CONNECTED, YOU WILL BE ASKED TO ENTER THE CONFERENCE ROOM NUMBER. JUDGE ISGUR’S CONFERENCE ROOM NUMBER IS 954554. YOU MAY VIEW VIDEO VIA GOTOMEETING. TO USE GOTOMEETING, THE COURT RECOMMENDS THAT YOU DOWNLOAD THE FREE GOTOMEETING APPLICATION. TO CONNECT, YOU SHOULD ENTER THE MEETING CODE “JUDGEISGUR” IN THE GOTOMEETING APP OR CLICK THE LINK ON JUDGE ISGUR’S HOME PAGE ON THE SOUTHERN DISTRICT OF TEXAS WEBSITE. ONCE CONNECTED, CLICK THE SETTINGS ICON IN THE UPPER RIGHT CORNER AND ENTER YOUR NAME UNDER THE PERSONAL INFORMATION SETTING. HEARING APPEARANCES MUST BE MADE ELECTRONICALLY IN ADVANCE OF THE HEARING. TO MAKE YOUR ELECTRONIC APPEARANCE, GO TO THE SOUTHERN DISTRICT OF TEXAS WEBSITE AND SELECT “BANKRUPTCY COURT” FROM THE TOP MENU. SELECT “JUDGES’ PROCEDURES,” THEN “VIEW HOME PAGE” FOR JUDGE ISGUR. UNDER “ELECTRONIC APPEARANCE” SELECT “CLICK HERE TO SUBMIT ELECTRONIC APPEARANCE”. SELECT THE CASE NAME, COMPLETE THE REQUIRED FIELDS AND CLICK “SUBMIT” TO COMPLETE YOUR APPEARANCE. 1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: BJ Services, LLC (3543); BJ Management Services, L.P. (8396); BJ Services Holdings Canada, ULC (6181); and BJ Services Management Holdings Corporation (0481). The Debtors’ service address is: 11211 Farm to Market 2920 Road, Tomball, Texas 77375.
1Norman N. Kinel, in his capacity as Liquidation Trustee (the “Liquidation Trustee”) of the BJS Liquidation Trust (the “Liquidation Trust”), hereby submits this objection to Proof of Claim Number 114 (“Claim 114”) filed against BJ Services, LLC (“BJ Services”) by William Polk (the “Claimant”). In support hereof, the Liquidation Trustee submits the Declaration of Norman N. Kinel in Support of the Liquidation Trustee’s Objection to Proof of Claim No. 114 Filed by William Polk attached hereto as Exhibit A (the “Declaration”). In further support hereof, the Liquidation Trustee respectfully represents as follows: RELIEF REQUESTED 1. The Liquidation Trustee seeks entry of the proposed order attached hereto (the “Proposed Order”), disallowing Claim 114, because Claim 114 failed to provide any supporting documentation to establish a valid claim and the Debtors’ books and records reflect no liability to the Claimant. JURISDICTION, VENUE, AND PROCEDURAL BACKGROUND 2. The United States Bankruptcy Court for the Southern District of Texas (the “Court”) has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b). 3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 4. The bases for the relief requested herein are sections 105(a), 502(a), and 502(b), of the title 11 of the United States Code (the “Bankruptcy Code”), Rule 3007 of Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rule 3007-1 of the Local Bankruptcy Rules of the Unites States Bankruptcy Court for the Southern District of Texas (the “Local Rules”).
25. On July 20, 2020 (the “Petition Date”), each of the above-captioned debtors (collectively, the “Debtors”) filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. 6. On November 6, 2020, Norman N. Kinel was appointed as the Liquidation Trustee of the BJS Liquidation Trust (the “Liquidation Trust”), which was established in accordance with the Debtors’ Combined Disclosure Statement and Joint First Amended Plan [Docket No. 1084] (the “Plan”). The Plan was confirmed by this Court on November 6, 2020 (the “Effective Date”) and became effective by its terms on the same day.2 7. Pursuant to Article VI.F of the Plan, on the Effective Date, the “Liquidation Trust [was] established for the primary purpose of liquidating the Liquidation Trust Assets.” See Plan, Article VI.F. In particular, the Plan affords the Liquidation Trustee the authority to “take any  action as authorized by the Liquidation Trust Agreement including objection to Claims.” Id. CLAIMS RECONCILIATION PROCESS 8. On September 3, 2020, the Debtors filed their respective statements of financial affairs and schedules of assets and liabilities [Docket Nos. 569–576], pursuant to Bankruptcy Rule 1007 and the Order (I) Extending Time to File Schedules of Assets and Liabilities, Schedules of Current Income and Expenditures, Schedules of Executory Contracts and Unexpired Leases, and Statements of Financial Affairs, and (II) Granting Related Relief [Docket No. 271]. 9. On September 2, 2020, the Court entered an Order (I) Setting Bar Dates for Filing Proofs of Claim, Including Requests for Payment Under Section 503(b)(9), (II) Establishing Amended Schedules Bar Date and Rejection Damages Bar Date, (III) Approving the Form of and 2 In accordance with the Plan, on the Effective Date, Anthony Schnur was appointed as the Wind-Down Trustee of the BJ Services Wind-Down Trust (the “Wind-Down Trust”). As of February 26, 2021, Scott Rinaldi, Managing Director with Ankura Consulting Group, LLC, has been appointed as the successor Wind-Down Trustee.
3Manner for Filing Proofs of Claim, Including Section 503(b)(9) Requests, (IV) Approving Notice of Bar Dates, and (V) Granting Related Relief [Docket No. 547] (the “Bar Date Order”). Pursuant to the Bar Date Order, the Court, among other things, established October 2, 2020, at 5:00 p.m. (prevailing Central Time) (the “Bar Date”), as the deadline for all non-governmental entities holding or wishing to assert a “claim” (as defined in section 101(15) of the Bankruptcy Code) to file a proof of claim. 10. In addition, the Bar Date Order establishes certain substantive requirements for any entity holding or wishing to assert a claim against any of the Debtors that arose before the Petition Date. Specifically, any such entity must file an original, written proof of claim (a “Proof of Claim”), and “[i]n order to have prima facie validity, each Proof of Claim must include supporting documentation in accordance with Bankruptcy Rules 3001(c) and 3001(d).” See Bar Date Order, ¶ 9(f). 11. To date, approximately 735 proofs of claim have been filed against the Debtors, totaling over $940 million in the aggregate. The Liquidation Trustee and his advisors (collectively, the “Reviewing Parties”), have been working diligently to review the general unsecured proofs of claim filed in these chapter 11 cases, including any supporting documentation filed therewith. 12. Claim 114 was filed on September 14, 2020 by the Claimant and asserts a general unsecured liability against Debtor BJ Services, LLC (“BJS”) for an unknown/unliquidated amount.3 The Claimant is a former employee of BJS, and asserts a claimed based on an alleged pension plan with BJS. However, beyond asserting that the basis of the claim was for “[his] pension plan with BJ,” Claim 114 does not provide any additional information or support for any claim by the Claimant against BJS. Significantly, BJS did not have any pension plans, and the 3 A copy of Claim 114 is attached hereto as Exhibit B.
4Reviewing Parties’ review of the Debtors’ books and records reflect no liability to the Claimant. In an effort to obtain any supporting information from the Claimant, the Liquidation Trustee’s counsel attempted to contact the Claimant on multiple occasions. However, as of the date of this filing, the Claimant has not responded to the Liquidation Trustee’s request for additional information. 13. Accordingly, as set forth in greater detail below, and based on the Reviewing Parties’ review, the Liquidation Trustee has determined that Claim 114 should be disallowed. BASIS FOR OBJECTION 14. Section 101 of the Bankruptcy Code provides that a creditor holds a claim against a debtor only to the extent that it has a “right of payment” for an asserted liability. See 11 U.S.C. § 101(5), (10). By contrast, there is no right to payment, and therefore, no claim, to the extent that a liability is not due and owing by a debtor. See id. Further, section 502(b) of the Bankruptcy Code provides that a claim shall be allowed only if “enforceable against the debtor and property of the debtor, under any agreement or applicable law.” Id. § 502(b)(1). Section 502 of the Bankruptcy Code also provides, in pertinent part, as follows: “A claim or interest, proof of which is filed under section 501 of [the Bankruptcy Code], is deemed allowed, unless a party in interest . . . objects.” 11 U.S.C. § 502. 15. As set forth in Bankruptcy Rule 3001(f), a properly executed and filed proof of claim constitutes prima facie evidence of the validity and the amount of the claim under section 502(a) of the Bankruptcy Code. See In re Tran, 351 B.R. 440, 444 (Bankr. S.D. Tex. 2006). To receive the benefit of prima facie validity, however, the evidence in the proof of claim must be “sufficient to sustain a judgment in favor of the issue which it supports.” Virginia v. Black, 538 U.S. 343, 369 (2003). Additionally, a claimant’s proof of claim is entitled to the presumption of
5prima facie validity under Bankruptcy Rule 3001(f) only until an objecting party refutes at least one of the allegations that are essential to the claim’s legal sufficiency. See In re Bryant, 600 B.R. 533, 535-36 (Bankr. N.D. Tex. 2019) (holding that “prima facie validity may be rebutted by the objecting party producing evidence ‘of a probative force equal to that of the creditor’s proof of claim.’”) (internal citation omitted). Once such an allegation is refuted, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence. Id. Despite this shifting burden during the claim objection process, the “ultimate burden of persuasion to establish the validity and amount of the claim by a preponderance of the evidence” is with the claimant. In re Rally Partners, LP, 306 B.R. 165, 168-69 (Bankr. E.D. Tex. 2003). OBJECTION TO CLAIM 114 FILED BY WILLIAM POLK 16. Where a proof of claim is based on a writing, a claimant must attach all necessary supporting documents in order to comply with rule 3001(c) of the Bankruptcy Rules. 11 U.S.C. § 3001(c); see also In re High Standard Mfg. Co., Inc., No. 15-33794 (MI), 2016 WL 5947244, at *2 (Bankr. S.D. Tex. Oct. 13, 2016) (“Ultimately, a proof of claim must fulfill its ‘essential purpose of providing objecting parties with sufficient information to evaluate the nature of the claims.’”) (quoting In re Wyly, 552 B.R. 338, 378 (Bankr. N.D. Tex. 2016)). Moreover, if a proof of claim fails to set forth the necessary supporting facts, it is “not entitled to the presumption of prima facie validity, and the burdens of going forward and of proving its claims by a preponderance of the evidence are on [the claimant].” In re Marino, 90 B.R. 25, 28 (Bankr. D. Conn. 1988); see also In re O’Connor, 153 F.3d 258, 260 (5th Cir. 1998) (stating that “the creditor must prove the validity of the claim” following a proper objection to a proof of claim); In re Svendsen, 34 B.R. 341, 342 (Bankr. D.R.I. 1983) (stating proofs of claim failed to “set forth all the necessary facts to establish the claim[s]” (internal quotation marks omitted) (alteration in original)).
617. As set forth herein and in the Declaration, the Liquidation Trustee and his advisors thoroughly reviewed Claim 114 and determined that the Debtors’ books and records reflect no liability to the Claimant and the Claimant has failed to provide sufficient corroborating information or supporting documentation for the Liquidation Trustee to conclude differently. In fact, Claim 114 failed to provide any support for its asserted claim beyond the phrase, “This was for my pension plan with BJ.” As stated above, BJS did not maintain any pension plans for its employees, and the Claimant failed to provide any other evidence of outstanding claims. Importantly, the Liquidation Trustee attempted to contact the Claimant prior to filing this objection to request additional supporting information from the Claimant but did not receive a response. 18. Failure to disallow Claim 114 in its entirety would result in the Claimant receiving an unwarranted recovery against the estates, to the detriment of creditors in these chapter 11 cases. Accordingly, the Liquidation Trustee requests that Claim 114 be disallowed as set forth on the Proposed Order. RESERVATION OF RIGHTS 19. This Objection is limited to the grounds stated herein. Accordingly, it is without prejudice to the rights of the Liquidation Trustee, the Wind-Down Trustee or any other party in interest to object to Claim 114 on any other grounds whatsoever and the Liquidation Trustee expressly reserves all further substantive or procedural objections that may be available. 20. Nothing contained herein is intended or should be construed as an admission as to the validity of any claim against the Debtors’ estates, a waiver of the Liquidation Trustee’s or the Wind-Down Trustee’s right to dispute any claim, or an approval or assumption of any agreement, contract, or lease under section 365 of the Bankruptcy Code. The rights of the Liquidation Trustee and the Wind-Down Trustee to contest any claim related to the relief sought herein are expressly
7preserved. Likewise, if the Court grants the relief sought herein, any payment made pursuant to an order of the Court is not intended to be nor should it be construed as an admission as to the validity of any claim or a waiver of the Liquidation Trustee’s or the Wind-Down Trustee’s right to subsequently dispute such claim. NOTICE 21. Notice of the hearing on the relief requested in this Objection has been provided by the Liquidation Trustee in accordance and compliance with Bankruptcy Rules 4001 and 9014, as well as the Local Rules, and is sufficient under the circumstances. Without limiting the forgoing, due notice was afforded, whether by facsimile, electronic mail, overnight courier or hand delivery, to parties in interest, including: (a) the Office of the U.S. Trustee for the Southern District of Texas; (b) the administrative agent under the Debtors’ prepetition asset-based revolving credit facility and counsel thereto; (c) the administrative agent under the Debtors’ prepetition term loan facility and counsel thereto; (d) the administrative agent under the Debtors’ prepetition real estate loan and counsel thereto; (e) the United States Attorney’s Office for the Southern District of Texas; (f) the Internal Revenue Service; (g) the Environmental Protection Agency and similar state environmental agencies for states in which the Debtors conduct business; (h) the state attorneys general for states in which the Debtors previously conducted business; (i) the United States Securities and Exchange Commission; (j) any party that has requested notice pursuant to Bankruptcy Rule 2002; and (k) the Claimant. The Liquidation Trustee submits that, in light of the nature of the relief requested, no other or further notice need be given. WHEREFORE, the Liquidation Trustee respectfully requests entry of the Proposed Order (a) sustaining the Liquidation Trustee’s objection to Claim 114, (b) disallowing Claim 114 in its entirety, and (c) granting such other relief as the Court deems just and proper.
8Dated: August 26, 2021 SQUIRE PATTON BOGGS (US) LLP /s/ Travis A. McRoberts Travis A. McRoberts (TX Bar No. 24088040) 2000 McKinney Ave., Suite 1700 Dallas, TX 75201 Telephone: (214) 758-1500 Facsimile: (214) 758-1550 Email: email@example.com Counsel to Norman N. Kinel, as Liquidation Trustee of BJS Liquidation Trust
9CERTIFICATE OF SERVICE I hereby certify that on August 26, 2021, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will serve notice on all parties registered to receive notice in this case. /s/ Travis A. McRoberts Travis A. McRoberts