Case Document 187 Filed in TXSB on 07/06/12 Page 1 of 5

Transcription

1 Case Document 187 Filed in TXSB on 07/06/12 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: TAXMASTERS, INC. CASE NO H2 Debtor (Chapter 7) TRUSTEE S MOTION TO COMPEL PATRICK COX TO PROVIDE SAFE COMBINATION NOTICE PURSUANT TO LOCAL RULE 9013 THIS MOTION SEEKS AN ORDER THAT MAY ADVERSELY AFFECT YOU. IF YOU OPPOSE THE MOTION, YOU SHOULD IMMEDIATELY CONTACT THE MOVING PARTY TO RESOLVE THE DISPUTE. IF YOU AND THE MOVING PARTY CANNOT AGREE, YOU MUST FILE A RESPONSE AND SEND A COPY TO THE MOVING PARTY. YOU MUST FILE AND SERVE YOUR RESPONSE WITHIN 21 DAYS OF THE DATE THIS WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE MOTION SHOULD NOT BE GRANTED. IF YOU DO NOT FILE A TIMELY RESPONSE, THE RELIEF MAY BE GRANTING WITHOUT FURTHER NOTICE TO YOU. IF YOU OPPOSE THE MOTION AND HAVE NOT REACHED AN AGREEMENT, YOU MUST ATTEND THE HEARING. UNLESS THE PARTIES AGREE OTHERWISE, THE COURT MAY CONSIDER EVIDENCE AT THE HEARING AND MAY DECIDE THE MOTION AT THE HEARING. REPRESENTED PARTIES SHOULD ACT THOUGH THEIR ATTORNEY. EMERGENCY RELIEF HAS BEEN REQUESTED. IF THE COURT CONSIDERS THE MOTION ON AN EMERGENCY BASIS, THEN YOU WILL HAVE LESS THAN 21 DAYS TO ANSWER. IF YOU OBJECT TO THE REQUESTED RELIEF OR IF YOU BELIEVE THAT THE EMERGENCY CONSIDERATION IS NOT WARRANTED, YOU SHOULD FILE AN IMMEDIATE RESPONSE. To the Honorable David R. Jones, United States Bankruptcy Judge:

2 Case Document 187 Filed in TXSB on 07/06/12 Page 2 of 5 COMES NOW, W. Steve Smith, Trustee ( Trustee ) and files this Motion to Compel Patrick Cox to Provide Safe Combination (the Motion ), respectfully showing unto the Court as follows: FACTUAL AND PROCEDURAL BACKGROUND 1. TaxMasters, Inc. (the Debtor ) filed its Chapter 11 bankruptcy petition on March 18, On April 20, 2012, this Court signed an order appointing W. Steve Smith (the Trustee ) as Chapter 11 trustee. The Trustee eventually sought conversion of the estate, and on May 9, 2012, this Court entered an order converting this case to a Chapter 7 case. The Trustee continues to serve as trustee. 2. The Trustee recently received court authority to sell certain items located at the Debtor s former place of business. One of these items was a safe. Patrick Cox ( Cox ) has previously represented that the safe is his personal property. In response to Cox s claim of ownership, the Trustee requested documentation substantiating such claim and also requested that Cox provide for the removal of the safe (and other claimed items) on or before June 29, On June 28, 2012, during a phone call with Trustee s counsel, Cox indicated he would not be removing the safe and was essentially forgoing his claim to ownership. 3. Former employees of the Debtor have represented that no property of real value was stored in the safe during the Debtor s operations. To confirm these representations, the Trustee has previously attempted to access the inside of the safe using a combination provided by a former employee of the Debtor; however, the combination provided by that former employee did not allow access. Prior to relinquishing control of the safe (which will occur tomorrow given this Court s recent 2

3 Case Document 187 Filed in TXSB on 07/06/12 Page 3 of 5 order authorizing the safe s sale), the Trustee has need to ensure that no property is currently stored in the safe. Additionally, the purchaser of the safe has requested the combination. 4. To this end, on the afternoon of July 5, 2012, Trustee s counsel directed correspondence to both Cox and his counsel stating that the Trustee needed to be provided with the combination. Neither the Trustee nor his counsel received a response to this . This morning, Trustee s counsel again directed an to Cox s counsel requesting that the combination be provided today, and that if there was any reason the information could not be provided today, that such reason be identified. So far, neither Cox nor his counsel has responded to this . Finally, late morning/early afternoon, Trustee s counsel telephoned Cox s counsel at his office. After requesting to speak with Cox s counsel and providing her name/case association, Trustee s counsel was put on hold. Trustee s counsel was later told that Cox s counsel was unavailable to speak with her. Trustee s counsel requested the voic of Cox s counsel and left a message requesting a return call with regard to the matter involving the safe and its combination. Neither the Trustee nor his counsel has received a return call. 5. In light of the above-detailed events, the Trustee requests an order compelling Cox to provide the accurate combination to the safe. In the alternative or in conjunction with such order, the Trustee requests that he be authorized to incur an expense in conjunction with utilizing a locksmith to open the safe. To the extent that the estate incurs an expense associated with a locksmith, the Trustee requests that this Court order Cox to reimburse the estate for such expense. The Trustee has contacted a 3

4 Case Document 187 Filed in TXSB on 07/06/12 Page 4 of 5 locksmith for the purpose of securing an estimate of cost; however, the Trustee has not yet heard back from the locksmith. 6. The Trustee realizes that Cox and/or his counsel may yet respond to the Trustee s request for information. The Trustee must file the Motion prior to the end of the day, so that the Court will be aware of the Trustee s potential need for relief. To the extent that either Cox or his counsel provides the requested information to the Trustee prior to the Court issuing any order on the Motion, the Trustee will immediately notify this Court s case manager. REQUEST FOR EMERGENCY CONSIDERATON 7. The Trustee requests emergency consideration of the Motion because the safe is schedule to be picked up tomorrow afternoon. The Trustee has need to access the safe prior to its removal from its current location. 8. Based upon the forgoing, the Trustee requests that this Court approve the Trustee s requests as set forth above, and grant the Trustee such other and further relief as is just. DATED this 6 th day of July, Respectfully submitted, MCFALL, BREITBEIL, & SMITH P.C. By: /s/ Heather R. Potts Heather R. Potts State Bar No W. Steve Smith State Bar No Lamar Street, Suite 1250 Houston, Texas (telephone) (facsimile) ATTORNEYS FOR TRUSTEE 4

5 Case Document 187 Filed in TXSB on 07/06/12 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that true and correct copy of the above filing will be served on July 6, 2012, on all parties listed on the attached list via regular first class mail, postage prepaid, with the exception of an address marked with an asterisk (*) denoting the party will not receive this motion via U.S. Mail as previous mail has been returned. All ECF users registered in this case will receive electronic service of this filing on July 6 th, By: /s/ Heather R. Potts Heather R. Potts 5