UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ) In Re: ) Chapter 11 ) PROCARE AUTOMOTIVE SERVICE ) Case No. 06-10605 SOLUTIONS LLC, ) Debtor. ) Judge: Pat E. Morgenstern-Clarren ) ) ______________________________________________________________________________ MOTION OF THE DEBTOR FOR AN ORDER ESTABLISHING BAR DATES WITH RESPECT TO PREPETITION CLAIMS, ADMINISTRATIVE EXPENSE CLAIMS AND DIRECTOR AND OFFICER LIABILITY CLAIMS AND APPROVING THE FORM AND MANNER OF NOTICE THEREOF ______________________________________________________________________________ ProCare Automotive Service Solutions LLC, as debtor and debtor in possession (the "Debtor") under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code"), hereby moves the Court (the "Motion"), for entry of an order pursuant to 11 U.S.C. § 501 and Rule 3003(c)(3) of the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") establishing July 17, 2006, or such other date as determined by the Court, as the last date (the "Bar Date") for (A) all holders of pre-petition Claims, as defined in Section 101(5) of the Bankruptcy Code (other than Governmental Units as defined below), to file a Proof of Claim regarding their Claims; (B) all parties asserting administrative expense claims under Section 503(b) of the Bankruptcy Code that were incurred or that accrued prior to May 25, 2006 (other than claims for fees and expenses of professionals retained by the Debtor or the Official Unsecured Creditors Committee in this case) to file a request for payment of such administrative expense ("Requests for Payment of Administrative Expenses"); and (C) all parties asserting any claims involving actions taken by the Debtor's officers or directors prior to May 25, 2006 for
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which the Debtor is obligated to indemnify such officers or directors, to assert such claims ("D&O Claims"). In addition, the Debtor requests that the Court establish September 12, 2006, or such other date as determined by the Court, as the last date for Governmental Units (defined below) which hold Claims against the Debtor to file proofs of claim. The Debtor also requests that the Court approve the form and manner of the notice of the Bar Dates pursuant to Bankruptcy Rules 2002(a)(7), 2002(m) and 9007. The proposed Notice of Bar Date for Filing Proofs of Claim, Requests for Payment of Administrative Expenses, and D&O Claims (the “Bar Date Notice”) is attached hereto as Exhibit A. In support of the Motion, the Debtor respectfully states as follows: JURISDICTION 1. This Court has jurisdiction over this motion under 28 U.S.C. §§ 157 and 1334.
Venue is proper under 28 U.S.C. §§ 1408 and 1409. This is a core proceeding as defined in 28 U.S.C. § 157(b)(2). 2. The substantive bases for the relief requested herein are set forth at 11 U.S.C.
§ 501 and Bankruptcy Rules 2002(a)(7), 2002(m), 3003(c)(3) and 9007. BACKGROUND 3. The Debtor commenced this case by the filing of a voluntary petition for relief
under chapter 11 of the Bankruptcy Code on March 5, 2006 (the "Petition Date"). Pursuant to 11 U.S.C. §§ 1107(a) and 1108, the Debtor is managing its affairs as a debtor in possession. 4. On March 13, 2006, an official committee of unsecured creditors (the
"Committee") was appointed. As of the date hereof, no trustee or examiner has been appointed in this chapter 11 case.
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5.
The Debtor and its professionals determined that a prompt sale of substantially all
of its assets as a going-concern was in the best interests of the Debtor's creditors. Accordingly, pursuant to procedures approved by the Court, on April 26, 2006, the Debtor conducted an auction of substantially all of its assets. 6. The Debtor and its professionals, after consulting with counsel for the Committee
and the Debtor's principal prepetition secured lenders, Key Mezzanine Capital Fund I, L.P. and Regis Capital Partners, L.P. (collectively, the "Lenders"), determined that Monro Muffler Brake, Inc. ("Monro") submitted the highest and best bid for substantially all of the Debtor's assets. 7. The Court approved the going-concern sale of the Debtor's assets to Monro at a
hearing on April 28, 2006. The sale to Monro promptly closed the next day on April 29, 2006. 8. Since substantially all of the Debtor's assets have been sold, the Debtor is now in
the process of winding down its estate and expects to file a plan of liquidation in the coming months. In order to facilitate the plan confirmation process, the Debtor must understand the amount of claims, both pre-petition and post-petition, that may be asserted against the Estate. Accordingly, the Debtor seeks the relief requested herein. RELIEF REQUESTED 9. The Debtor requests that the Court establish July 17, 2006, or such other date as
determined by the Court (the “Bar Date”) as the last date for (i) holders of pre-petition Claims to file a Proof of Claim with respect to such Claims, (ii) parties asserting administrative expense claims under Section 503(b) of the Bankruptcy Code that were incurred or that accrued prior to May 25, 2006 (other than claims for fees and expenses of professionals retained by the Debtor or the Committee) to file Requests for Payment of Administrative Expenses, and (iii) parties asserting D&O Claims that arose prior to May 25, 2006 to assert such claims.
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10.
The Debtor further requests, in conformity with the requirements of Section
502(b)(9) of the Bankruptcy Code, that the Court set a separate bar date of September 12, 2006, or such other date as determined by the Court, for Governmental Units1 (collectively with the July 17, 2006 Bar Date, the "Bar Dates"). 11. Reasonable Bar Dates are required in order for the Debtor to evaluate the full
range of asserted Claims against the estate and its directors and officers, as well as for the Debtor to identify potential disputes as to Claims, and to move the Chapter 11 case toward complete resolution and closure. Without knowledge of the Claims pending against the estate, including the indemnification obligation of the Debtor owed to its directors and officers in the event of a D&O Claim, the Debtor cannot properly develop its liquidating plan. 12. In addition, the Debtor requests approval of and authorization to mail the Bar
Date Notice, in substantially the form attached hereto as Exhibit A, and authorization to mail a Proof of Claim form, in substantially the form as that shown in Official Bankruptcy Form No. 10, including all instructions thereto, to all known creditors. 13. Under Bankruptcy Rule 3003(c)(3), a Court is empowered to fix the time within
which proofs of claim may be filed. Bankruptcy Rule 2002(a)(7) requires at least twenty (20) days notice to creditors of the time fixed for filing proofs of claim pursuant to Rule 3003(c)(3). 14. The proposed Bar Dates would apply to every Claim asserted by a creditor,
whether or not the Debtor was previously authorized to pay any such Claim, except for the following: (i) any Claim asserted by a party who has already properly filed a Proof of Claim or a Request for Payment of Administrative Expense as to the Debtor in this Court; (ii) any Claim
Pursuant to 11 U.S.C. § 101(27), "'Governmental Unit' means United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency or instrumentality of the United States (but not the United States trustee while serving as a trustee in a case under title 11), a State, a Commonwealth, District, Territory, a municipality or a foreign state; or other foreign or domestic government."
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asserted by a party, which is not listed as disputed, contingent, or unliquidated by the Debtor in their schedules of assets and liabilities (the “Schedules”) and the party does not object to the classification or the amount set forth in the Schedules; (iii) any Claim that has previously been allowed by order of this Court; (iv) any Claim asserted by a Governmental Unit; and (v) any Claim for which the Court has already authorized payment and for which payment has already been made. 15. The Debtor hereby reserves all rights to dispute any Claim listed on the Schedules
as to amount, liability, classification, or otherwise, including without limitation, all rights to assert any defenses, rights of setoff, or otherwise, and to amend its Schedules to designate any Claim as disputed, contingent, or unliquidated. However, if the Debtor amends the Schedules to designate a Claim as disputed, contingent, or unliquidated, or to change the amount of a Claim, the affected creditor shall have twenty (20) days from the date of the notice to such creditor to file a Proof of Claim, notwithstanding the establishment of the proposed Bar Date. 16. Pursuant to Bankruptcy Rule 3003(c)(2), any person or entity (other than a
creditor asserting a Claim that falls within one of the exceptions set forth in paragraph 14, above) whose Claim is (i) not scheduled; (ii) is scheduled in an incorrect amount; or (iii) is scheduled as disputed, contingent, or unliquidated, should be required to file a Proof of Claim on or before the Bar Date, or be forever barred, estopped and enjoined from asserting any Claim that such person or entity holds as to the Debtor. Similarly, any person or entity asserting an administrative expense claim under Section 503(b) of the Bankruptcy Code that was incurred or that accrued prior to May 25, 2006 (other than claims for fees and expenses of professionals retained by the Debtor or the Committee), and any person or entity asserting a D&O Claim that arose prior to May 25, 2006, should be required to file a Request for Payment of Administrative Expense or
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assert the D&O Claim on or before the Bar Date, or be forever barred, estopped and enjoined from asserting such claim that such person or entity may hold. 17. The Bar Date Notice will be mailed by first class United States Mail to the United
States Trustee’s office, counsel for the Committee, those parties that have filed notices of appearance in this case, and all parties who may have a Claim, whether pre-petition or postpetition, against the Debtor whose names and addresses are known to the Debtor. The Bar Date Notice provides that a Proof of Claim, a Request for Payment of Administrative Expense, or a D&O Claim must be received by and filed with the Clerk of Court (the “Clerk”) for the Bankruptcy Court for the Northern District of Ohio, no later than 4:00 p.m. (E.S.T.) on the Bar Date. The Debtor submits that the Bar Date Notice complies with the notice requirements set forth in Bankruptcy Rule 2002. 18. The Debtor submits that the Bar Dates serve the dual objectives of providing
potential claimants with ample time to assert their Claims while promoting the expeditious resolution and closure of this case. This procedure will reduce the administrative expenses incurred by the Debtor’s estate in connection with allowance of Claims and will therefore benefit the Debtor’s estate and creditors. WAIVER OF MEMORANDUM OF LAW 19. This Motion does not raise any novel issues of law and, accordingly, the Debtor
respectively request that the Court waive the requirement contained in LBR 9013-1 that a separate memorandum of law be submitted. NOTICE 20. No trustee or examiner has been appointed in this Chapter 11 case. Notice of this
Motion has been given by overnight mail, hand delivery or facsimile to the following parties or,
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in lieu thereof, their counsel if known: (a) the United States Trustee, (b) counsel for the Committee, (c) the Debtor's prepetition Lenders; (d) JPMorgan Chase Bank, N.A., and (e) any other party requesting notice of papers filed in this case. In light of the nature of the relief requested, the Debtor submits that no further notice need be given. WHEREFORE, the Debtor request that the Court enter an Order: (i) establishing July 17, 2006, or such other date as may be determined by the Court, as the Bar Date in this case, exclusive of Governmental Units, with respect to the claims identified herein; (ii) establishing September 12, 2006, or such other date as may be determined by the Court, as the Governmental Unit Bar Date in this case; (iii) approving the Bar Date Notice attached hereto; and (iv) granting such other and further relief as the Court deems just and proper. Dated: May 12, 2006 Respectfully submitted, /s/ Alan R. Lepene Alan R. Lepene (Ohio Reg. # 0023276) Jeremy M. Campana (Ohio Reg. # 0074541) Sean A. Gordon (Ohio Reg. # 0074243) THOMPSON HINE LLP 3900 Key Center 127 Public Square Cleveland, OH 44114-1291 216.566.5500 216.566.5800 (facsimile) alan.lepene@thompsonhine.com jeremy.campana@thompsonhine.com sean.gordon@thompsonhine.com Attorneys for the Debtor and Debtor in Possession
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