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Full title: Objection to Claim Number by Claimant Third Omnibus Objection to Claims that have been Satisfied. Third Omnibus Objection to Claims that have been Satisfied. Hearing scheduled for 8/12/2021 at 10:00 AM at telephone and video conference. (Attachments: # 1 Exhibit A # 2 Declaration # 3 Proposed Order # 4 Service List)(Vasek, Julian) (Entered: 06/29/2021)
Document posted on Jun 28, 2021 in the bankruptcy, 7 pages and 0 tables.
Bankrupt11 Summary (Automatically Generated)
Creditors receiving this objection should locate their names and claims on the attached Exhibit A. TO THE HONORABLE CHRISTOPHER M. LOPEZ, U. S. BANKRUPTCY JUDGE: COMES NOW John D. Cornwell, Trustee (“Trustee”) of the VitalPet Liquidating Trust (“Liquidating Trust”) in the above styled and numbered chapter 11 bankruptcy case (the “Bankruptcy Case”), and files this Third Omnibus Objection to Claims That Have Been Satisfied (the “Objection”), respectfully stating as follows: I. JURISDICTION AND VENUE 1. On December 17, 2020, this Court held a hearing to consider confirmation of the Debtors’ First Amended Joint Combined Chapter 11 Plan and Disclosure Statement of Veterinary Care, Inc. and TVET Management, LLC [Docket No. 442] (the “Plan”).1 Pursuant thereto, on the same date, the Court confirmed the Plan by entry of its Order Confirming the First Amended Joint Combined Chapter 11 Pursuant to the Plan, the Confirmation Order, and the Trust Agreement, the Trustee is charged with, among other things, the administration of claims and making distributions of the net proceeds of all Liquidating Trust assets.Following the Effective Date and his appointment, the Trustee initiated his claims review process in order to formulate and identify potential objections, and has begun conferring with claimants in order to attempt to resolve objections where appropriate. To the extent that a response regarding any Objectionable Claim is not resolved as between the holder of such claim and the Trustee, each such claim and the Objection thereto will constitute a separate contested matter as contemplated by Bankruptcy Rule 9014.
List of Tables
Document ContentsIN 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. § TRUSTEE’S THIRD OMNIBUS OBJECTION TO CLAIMS THAT HAVE BEEN SATISFIED 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 August 12, 2021 at 10:00 a.m. in Courtroom 401, 515 Rusk, Houston, TX 77002. Such hearing may be conducted remotely. 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 Lopez conference room number is 590153. 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 “JudgeLopez” in the GoToMeeting app or click the link on Judge Lopez’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. If you object to the relief requested, you must respond in writing. Unless otherwise directed by the Court, you must file your response electronically at https://ecf.txsb.uscourts.gov/ within thirty days from the date this objection was filed. Otherwise, the Court may treat the pleading as unopposed and grant the relief requested. Creditors receiving this objection should locate their names and claims on the attached Exhibit A.
1TO THE HONORABLE CHRISTOPHER M. LOPEZ, U. S. BANKRUPTCY JUDGE: COMES NOW John D. Cornwell, Trustee (“Trustee”) of the VitalPet Liquidating Trust (“Liquidating Trust”) in the above styled and numbered chapter 11 bankruptcy case (the “Bankruptcy Case”), and files this Third Omnibus Objection to Claims That Have Been Satisfied (the “Objection”), respectfully stating as follows: I. JURISDICTION AND VENUE 1. This Court has jurisdiction over the Bankruptcy Case and this Objection pursuant to 28 U.S.C. §§ 157 and 1334. This Objection constitutes a core proceeding pursuant to 28 U.S.C. § 157(b). 2. Venue of the Bankruptcy Case, and of this Objection, is appropriate before this Court in this district under 28 U.S.C. §§ 1408 and 1409. II. FACTS A. Background 4. 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. filed an involuntary Chapter 11 petition against debtor Veterinary Care, Inc. d/b/a VitalPet (“VCI”), thereby initiating this Bankruptcy Case. 5. On November 8, 2019, this Court entered its Order Granting Involuntary Petition providing for its order for relief with respect to VCI. On November 18, 2019, TVET Management, LLC (“TVET” and, collectively with VCI, the “Debtors”) filed its voluntary Chapter 11 petition. The two cases are being jointly administered. 6. On January 31, 2020, the United States Trustee filed its Notice of Appointment of an official committee of unsecured creditors. Prior to plan confirmation in this Bankruptcy Case, the Debtors remained in possession of their assets and administered their bankruptcy estates as debtors-in-possession.
27. On March 14, 2020, the Court entered its Order (I) Approving Prevailing Bidder’s Asset Purchase Agreement and Authorizing the Sale of Assets Outside the Ordinary Course of Business, (II) Authorizing the Sale of Substantially All of the Debtors’ Assets Free and Clear of Liens, Claims, Encumbrances, and Interests, (III) Authorizing the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases, and (IV) Granting Related Relief [Docket No. 243] (the “Sale Order”). 8. On December 17, 2020, this Court held a hearing to consider confirmation of the Debtors’ First Amended Joint Combined Chapter 11 Plan and Disclosure Statement of Veterinary Care, Inc. and TVET Management, LLC [Docket No. 442] (the “Plan”).1 Pursuant thereto, on the same date, the Court confirmed the Plan by entry of its Order Confirming the First Amended Joint Combined Chapter 11 Plan and Disclosure Statement of Veterinary Care, Inc. and TVET Management, LLC [Docket No. 492] (the “Confirmation Order”). 9. Under the Plan, inter alia, the Liquidating Trust was established as the successor to the Debtors and their bankruptcy estates for all relevant purposes, and funded and vested with all assets of the estates. See, e.g., Plan, at Art. V, pp. 27-28. The Confirmation Order expressly approves of the appointment of the Trustee for the Liquidating Trust, as well as approving the Liquidating Trust Agreement (the “Trust Agreement”), incorporated into, and attached as Exhibit “C” to, the Plan. Confirmation Order, at ¶¶ 39-40, 42, 49-50. See also Notice of Filing of Plan Supplement [Docket No. 468]. 10. Pursuant to the Plan, the Confirmation Order, and the Trust Agreement, the Trustee is charged with, among other things, the administration of claims and making distributions of the net proceeds of all Liquidating Trust assets. See Plan, at Art. V, pp. 27-29; Confirmation Order, 1 Capitalized terms used and not otherwise defined herein have the same definitions as are set forth in the Plan.
3at ¶ 50; Trust Agreement, at §§ 4.01, 5.01. Under the Plan, “[f]ollowing the Effective Date, the Liquidating Trustee shall have the sole and exclusive right to object to the allowance of any Claims or Interests payable by the Liquidating Trust under the Plan.” Plan, at p. 32. 11. Following the Effective Date and his appointment, the Trustee initiated his claims review process in order to formulate and identify potential objections, and has begun conferring with claimants in order to attempt to resolve objections where appropriate. B. The Claims 12. Attached hereto as Exhibit “A” and incorporated herein by reference for all purposes, is a detailed list of objectionable claims – listed alphabetically by the holder of the claim – that have been satisfied during the course of the Bankruptcy Case (the “Objectionable Claims”). Creditors receiving this Objection should locate their names and claims in the attached Exhibit “A”. 13. Pursuant to the Sale Order, the Court authorized the Debtors to sell substantially all of their assets (the “Sale”) to Destination Pet, LLC or its assignee (“Destination Pet”). As part of the Sale, among other things, numerous executory contracts and unexpired leases were assumed and assigned to Destination Pet. See Docket Nos. 243, 245, 279, 288, and 332. At the time, any defaults were necessarily cured in connection with assumption and assignment, meaning each contract counterparty was paid in full. Likewise, the Debtors and Destination Pet agreed on the allocation of outstanding tax obligations, and it is believed that all outstanding tax claims have now been paid. 14. In particular, before the Plan was confirmed, The Claro Group, LLC (“Claro”) served as the Debtors’ financial advisors (as well as D. Brickley, Claro’s Managing Director, serving as the Debtors’ chief restructuring officer), and the Trustee has now retained Claro in the same capacity. Claro was intimately involved in the Debtor’s business during the Bankruptcy
4Case and the administration thereof, including the Sale process and the payment of claims in connection therewith. Whether in connection with the Sale or otherwise, Claro’s analysis, the record of the Bankruptcy Case, and the Debtors’ books and records show that the Objectionable Claims have all been satisfied. III. ARGUMENTS AND AUTHORITIES 15. Section 502 of the Bankruptcy Code provides, “A claim or interest, proof of which is filed under § 501 of this title, is deemed allowed, unless a party in interest … objects.” 11 U.S.C. § 502(a). However, a claim is objectionable to the extent that “such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured ….” 11 U.S.C. § 502(b)(1). Bankruptcy Rule 3007 provides certain grounds upon which “objections to more than one claim may be joined in an omnibus objection,” and those bases expressly include the situation where “the objections are based solely on the grounds that the claims should be disallowed, in whole or in part, because … they have been satisfied or released during the case in accordance with the Code, applicable rules, or a court order ….” Fed. R. Bankr. P. 3007(d). 16. “The doctrine is fundamental that, payment extinguishes the debt.” Ormsby v. State Life Ins. Co., 133 S.W.2d 797, 800 (Tex. App.—Dallas 1939); 60 Am. Jur. 2d Payment § 85 (2021) (“When payment is made in full and it is applied to the underlying debt, the debt is discharged.”). Here, the Objectionable Claims have all been satisfied. As a result, they have been extinguished and are no longer enforceable against the Debtors or the Trust. The Trustee therefore requests that the Court sustain this Objection and enter an order disallowing the Objectionable Claims in full. IV. RESERVATION OF RIGHTS 17. This Objection is limited to the grounds stated herein. Accordingly, it is without prejudice to the rights of the Trustee to object to any of the Objectionable Claims, or any other
5claims, on any other grounds whatsoever, and the Trustee expressly reserves all further substantive or procedural objections the Trustee may have. 18. Nothing contained herein, nor any actions taken pursuant to the relief sought, is intended or should be construed as: (a) an admission as to the validity of any prepetition claim; (b) a waiver of the Trustee’s right to dispute any prepetition claim on any grounds; (c) a promise or requirement to pay any prepetition claim; or (d) a waiver of the Trustee’s rights under the Bankruptcy Code or any other applicable law. 19. To the extent that a response regarding any Objectionable Claim is not resolved as between the holder of such claim and the Trustee, each such claim and the Objection thereto will constitute a separate contested matter as contemplated by Bankruptcy Rule 9014. Further, the Trustee requests that any order by the Court regarding an Objection or other reply asserted in response to this Objection be deemed a separate order with respect to each such Claim. V. PRAYER WHEREFORE, PREMISES CONSIDERED, the Trustee respectfully requests entry of an order: (i) Sustaining this Objection; (ii) disallowing the Objectionable Claims; and (iii) granting to the Trustee such other and further relief as is just. RESPECTFULLY SUBMITTED this 29th day of June, 2021.
6MUNSCH HARDT KOPF & HARR, P.C. By: /s/ Julian P. Vasek Jay H. Ong Texas State Bar No. 24028756 Julian P. Vasek Texas State Bar No. 24070790 1717 West 6th Street, Suite 250 Austin, Texas 78703 Telephone: (512) 391-6100 Facsimile: (512) 391-6149 firstname.lastname@example.org email@example.com COUNSEL FOR THE LIQUIDATING TRUSTEE CERTIFICATE OF SERVICE I hereby certify that on this 29th day of June, 2021, I personally caused to be served a true and correct copy of the above and foregoing objection, including all exhibits, if any, (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) via first class U.S. mail, postage prepaid, on the attached service list. By: /s/ Julian P. Vasek Julian P. Vasek