Opinion
CASE NO. 02-43582-H4-11, Jointly Administered
May 3, 2004
Marcy E. Kurtz, BRACEWELL PATTERSON, L.L.P., Houston, Texas for the Debtors
James H. Billingsley, Daniel I. Morenoff, HUGHES LUCE, L.L.P., Texas, for The Fred V. Duda Trust
Encompass Services Corporation and its subsidiaries (the "Debtors") and the Fred Duda Trust (the "Claimant" and together with the Debtors, the "Parties") stipulate as follows:
1. WHEREAS, on November 19, 2002, the Debtors filed their voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code.
2. WHEREAS, on May 21, 2003, this Court entered an order confirming the Immaterially Modified Second Amended Joint Plan of Reorganization of Encompass Services Corporation and its Affiliated Debtors Under Chapter 11 of the Bankruptcy Code and supplemented by the Plan Supplement, the First Amended Plan Supplement, and the Second Amended Plan Supplement (collectively, the "Plan"). On June 9, 2003, the Plan became effective.
3. WHEREAS, as of the Effective Date, and pursuant to Article 5.3 of the Plan, each of the Debtor's assets and liabilities were merged with and pooled with the assets and liabilities of each of the other Debtors, and each and every Claim filed or to be filed in the Chapter 11 case of any of the Debtors is deemed filed against the consolidated Debtors and is deemed one Claim against, and obligations of, the consolidated Debtors.
4. WHEREAS, on March 28, 2003, the Claimant filed Claim Nos. 287 and 363 on the Court's claims register in Bankruptcy Case No. 02-43582. Claim No. 287 alleges a general unsecured claim in an unliquidated amount. Claim No. 363 alleges a general unsecured claim in the amount of $287,724.92.
5. WHEREAS, on March 28, 2003, the claims agent for this case recorded these Proofs of Claim as Proofs of Claim Nos. 3847, 4283, and 4353 in Bankruptcy Case No. 02-43582. Proof of Claim No. 3847 reflects the general unsecured claim in an unliquidated amount filed in the Court's claim register as Claim No. 287. Proof of Claim No. 4283 reflects the general unsecured claim in the amount of $287,724.92 filed in the Court's register as Claim No. 363. Proof of Claim No. 4353 reflects the general unsecured claim in the amount of $287,724.92 filed in the Court's register as Claim No. 363.
6. WHEREAS, on April 17, 2003, the Claimant filed an amendment to Claim No. 287 on the Court's claims register as Claim No. 362. The claims agent for this case recorded this Proof of Claim as Proofs of Claim Nos. 4282, 4285 and 4352 (together with Proofs of Claim Nos. 3847, 4283 and 4353 and Claim Nos. 287, 362, and 363 on the Court's claims register, the "Proofs of Claim") in Bankruptcy Case No. 02-43582. Proof of Claim No. 4282 reflects the general unsecured claim in the amount of $394,580.07 filed in the Court's claims register as Claim No. 362. Proof of Claim No. 4285 reflects the general unsecured claim in the amount of $394,580.07 filed in the Court's claims register as Claim No. 362. Proof of Claim No. 4352 reflects the general unsecured claim in the amount of $394,580.07 filed in the Court's claims register as Claim No. 362. Each of these Proofs of Claim liquidates the claim amount alleged in Proof of Claim No. 3847.
7. WHEREAS, on February 19, 2004, the Disbursing Agent filed his Fifth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 3881) objecting to, inter alia, Proofs of Claim Nos. 4283, 4285 and 4352 as late-filed. On March 29, 2004, the Claimant filed its Response to the Disbursing Agent's Fifth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 4261).
8. WHEREAS, on February 24, 2004, the Disbursing Agent filed his Nineteenth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 3950) objecting to, inter alia, Proof of Claim No. 4282 as late-filed. On March 29, 2004, the Claimant filed its Response to the Disbursing Agent's Nineteenth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 4262).
9. WHEREAS, on February 25, 2004, the Disbursing Agent filed his Second Omnibus Objection to Contingent and Unliquidated Proofs of Claim (Docket No. 3997) objecting to, inter alia, Proof of Claim No. 3847 as contingent and unliquidated. On March 29, 2004, the Claimant filed its Response to the Disbursing Agent's Second Omnibus Objection to Contingent and Unliquidated Proofs of Claim (Docket No. 4263).
10. WHEREAS, on February 26, 2004, the Disbursing Agent filed his Ninth Omnibus Objection to Duplicate Claims (Docket No. 4026) objecting to, inter alia, Proofs of Claim Nos. 4285 and 4352 as duplicates of Proof of Claim No. 4282 and Proofs of Claim Nos. 3847 and 4353 as duplicates of Proof of Claim No. 4283. On March 29, 2004, the Claimant filed its Response to the Disbursing Agent's Ninth Omnibus Objection to Duplicate Claims (Docket No. 4264).
NOW THEREFORE, THE PARTIES HERETO STIPULATE AS FOLLOWS:
1. that this Stipulation settles only the dispute between the Parties concerning the Disbursing Agent's Fifth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 3881), Nineteenth Omnibus Objection to Late-Filed Proofs of Claim (Docket No. 3950), Second Omnibus Objection to Contingent and Unliquidated Claims (Docket No. 3997) and Ninth Omnibus Objection to Duplicate Claims (Docket No. 4026);
2. that Proofs of Claim Nos. 4285, 4352, 3847 and 4353 are disallowed in their entirety;
3. that Claim Nos. 287, 362, and 363 on the Court's claims register are disallowed in their entirety;
4. that Proofs of Claim Nos. 4282 and 4283 are deemed timely filed;
5. that Proofs of Claim Nos. 4282 and 4283 are the Claimant's only surviving claims against the Debtors' bankruptcy estates and are not duplicative;
6. that this Stipulation does not affect or otherwise address or resolve any of the Disbursing Agent's other objections with regard to the Proofs of Claim or any other claim against the Debtors' estate.