HTML Document View

Full title: Agreed Motion to Allow Claims . Objections/Request for Hearing Due in 21 days. Filed by Trustee John Cornwell (Attachments: # 1 Proposed Order # 2 Service List) (Vasek, Julian) (Entered: 01/19/2021)

Document posted on Jan 18, 2021 in the bankruptcy, 4 pages and 0 tables.

Bankrupt11 Summary (Automatically Generated)

TO THE HONORABLE CHRISTOPHER M. LOPEZ, U. S. BANKRUPTCY JUDGE: COMES NOW John D. Cornwell, Trustee of the VitalPet Liquidating Trust (“Trustee”) and Theresa Paoloni, DVM (“Creditor”), an unsecured creditor in the above styled and numbered chapter 11 bankruptcy case (the "Bankruptcy Case"), and file this Agreed Motion To Allow Late Claim (the "Motion"), respectfully stating as follows: I. BACKGROUND FACTS 1.Accordingly, by this Motion, the Trustee, jointly with the Creditor, requests that the Debtor’s Schedule E/F, filed at Docket No. 131, be deemed amended to schedule and acknowledge the following claim as undisputed, noncontingent and liquidated, and not subject to offset: Theresa Paoloni, DVM Here, the Creditor’s asserted of her Omitted Claim is within a few months of the applicable Bar Date, and the Debtors and estate have had actual knowledge and notice of this claim sufficient to consider it in connection with the Debtor’s plan formulation efforts. Theresa Paoloni Jay H. Ong Theresa Paoloni, DVM Texas State Bar No. 24028756 1717 West 6th Street, Suite 250 Austin, Texas 78703 Telephone: (512) 391-6100 Facsimile: (512) 391-6149 COUNSEL FOR THE LIQUIDATING TRUSTEE CERTIFICATE OF SERVICE I hereby certify that on this 19th day of January, 2021, I personally caused to be served a true and correct copy of the above and foregoing document, (A) by electronically filing it with the Court using the Court’s CM/ECF system, which sent notification to all parties of interest receiving notice in this case through the CM/ECF system; and (B) by first class U.S. mail, postage prepaid, on the attached service list.

Page 1

IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION In re: § § Jointly Administered VETERINARY CARE, INC. d/b/a § VITALPET, et al., § Case No. 19-35736 § (Chapter 11) Debtors. § AGREED MOTION TO ALLOW LATE CLAIM THIS PLEADING REQUESTS RELIEF THAT MAY BE ADVERSE TO YOUR INTERESTS. IF NO TIMELY RESPONSE IS FILED WITHIN 21 DAYS FROM THE DATE OF SERVICE, THE RELIEF REQUESTED HEREIN MAY BE GRANTED WITHOUT A HEARING BEING HELD. A TIMELY FILED RESPONSE IS NECESSARY FOR A HEARING TO BE HELD. TO THE HONORABLE CHRISTOPHER M. LOPEZ, U. S. BANKRUPTCY JUDGE: COMES NOW John D. Cornwell, Trustee of the VitalPet Liquidating Trust (“Trustee”) and Theresa Paoloni, DVM (“Creditor”), an unsecured creditor in the above styled and numbered chapter 11 bankruptcy case (the "Bankruptcy Case"), and file this Agreed Motion To Allow Late Claim (the "Motion"), respectfully stating as follows: I. BACKGROUND FACTS 1. On October 10, 2019 (the "Petition Date"), Warren Resell, D.V.M, James H. Kelly, D.V.M., and Larry D. Wood, D.V.M. (collectively, “Petitioners”) filed an involuntary petition against debtors Veterinary Care, Inc. d/b/a VitalPet and TVET Management, LLC (collectively, “Debtors”), thereby initiating this Bankruptcy Case.

Page 2

2. The Court has jurisdiction over this Motion under 28 U.S.C. § 1334. This Motion is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). Venue of the Bankruptcy Case and of this Motion is proper in this District under 28 U.S.C. §§ 1408 and 1409. 3. On December 20, 2019, the clerk issued notice that the proof of claim bar date was set as April 22, 2020. See Docket No. 117. 4. As of the Petition Date, Creditor was the holder of seller notes in the amount of $61,000, and $403,000.00. 5. The Creditor was scheduled with an undisputed, noncontingent and liquidated claim in the amount of $61,000. See Schedule E/F [Docket No. 131] at Part 2, No. 3.217 (p. 35). However, Creditor’s additional seller note claim in the amount of $403,000.00 was inadvertently omitted from the Debtors’ schedules (the “Omitted Claim”). 6. Although Creditor had notice of the bankruptcy and failed to timely object, the Omitted Claim is not disputed. It is noncontingent and liquidated. The Liquidating Trustee understands that the Debtors have acknowledged on the record that the Creditor’s claim had been omitted from the Debtor’s Schedules and have had sufficient notice of the Omitted Claim and its amount to consider it in connection with their plan formulation efforts. 7. Accordingly, by this Motion, the Trustee, jointly with the Creditor, requests that the Debtor’s Schedule E/F, filed at Docket No. 131, be deemed amended to schedule and acknowledge the following claim as undisputed, noncontingent and liquidated, and not subject to offset: Theresa Paoloni, DVM Seller Note/Convertible Note $403,000.00. III. ARGUMENTS AND AUTHORITIES 8. In instances of excusable neglect, Rule 9006(b) allows the Court to treat a claim that has been asserted untimely as a timely claim. Fed. R. Bankr. P. 9006(b). Excusable neglect

Page 3

“encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 388 (1993). The excusable neglect standard with respect to late-filed proofs of claim is one which is equitable in nature and “tak[es] account of all relevant circumstances surrounding the party’s omission.” Id. at 395. 9. Here, the Creditor’s asserted of her Omitted Claim is within a few months of the applicable Bar Date, and the Debtors and estate have had actual knowledge and notice of this claim sufficient to consider it in connection with the Debtor’s plan formulation efforts. The Omitted Claim was intended to be timely acknowledged through the Debtor’s Schedules. Creditor did not delay out of any bad faith motive. By this Motion, Trustee and Creditor request that the Court deem and allow the Creditor Claim as a timely Scheduled claim. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Trustee and Creditor respectfully request the entry of an order: (i) granting this Motion; and (ii) deeming and allowing the Creditor’s Claim as Scheduled under the Debtor’s Schedule E/F, as undisputed, noncontingent and liquidated, and not subject to offset in the amount of $403,000.00. RESPECTFULLY SUBMITTED this 19th day of January, 2021.

Page 4

MUNSCH HARDT KOPF & HARR, P.C. By: /s/ Jay H. Ong By: /s/ Theresa Paoloni Jay H. Ong Theresa Paoloni, DVM Texas State Bar No. 24028756 1717 West 6th Street, Suite 250 Austin, Texas 78703 Telephone: (512) 391-6100 Facsimile: (512) 391-6149 COUNSEL FOR THE LIQUIDATING TRUSTEE CERTIFICATE OF SERVICE I hereby certify that on this 19th day of January, 2021, I personally caused to be served a true and correct copy of the above and foregoing document, (A) by electronically filing it with the Court using the Court’s CM/ECF system, which sent notification to all parties of interest receiving notice in this case through the CM/ECF system; and (B) by first class U.S. mail, postage prepaid, on the attached service list. By: /s/ Jay H. Ong Jay H. Ong