Onions Etc., Inc. et al v. Z & S Fresh, Inc. et al
Filing
637
STIPULATION and ORDER to Establish a PACA Claims Procedure to allow Fresno-Madera Federal Land Bank Assocaition, FCLA, to object to certain PACA Trust Claims signed by Judge Oliver W. Wanger on 4/11/2011. (Figueroa, O)
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Jan T. Perkins #057995
Jerry H. Mann #095466
Douglas V. Thornton #154956
Ray S. Pool #226188
PERKINS, MANN & EVERETT
A Professional Corporation
2222 West Shaw Avenue, Suite 202
Fresno, California 93711
Telephone (559) 447-5700
Facsimile (559) 447-5600
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Attorney for: Plaintiff TERENCE J. LONG, TRUSTEE PURSUANT TO COURT ORDER
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
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ONIONS ETC., INC., and DUDA FARM
FRESH FOODS, INC.,
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Plaintiffs,
v.
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Z & S FRESH, INC., a California corporation;
Z & S DISTRIBUTING COMPANY, INC., a
California corporation; MARTIN J.
ZANINOVICH, an individual; LOREN
SCHOENBURG, an individual; MARGE
SCHOENBURG, an individual,
Case No.: 1:09-cv-00906-OWW-MJS
STIPULATION AND ORDER TO
ESTABLISH A PACA CLAIMS
PROCEDURE TO ALLOW FRESNOMADERA FEDERAL LAND BANK
ASSOCIATION, FLCA, TO OBJECT TO
CERTAIN PACA TRUST CLAIMS
Defendants.
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AND ALL RELATED ACTIONS
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This stipulation and order to establish a PACA claims procedure to allow
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Fresno-Madera Federal Land Bank Association, FLCA, to object to certain PACA trust claims
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is entered into by and between Plaintiff in Intervention Terence J. Long, Trustee Pursuant to
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Court Order (the “Trustee”) and Fresno-Madera Federal Land Bank Association, FLCA (the
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“Bank”), and their attorneys of record, as follows:
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RECITALS
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WHEREAS, the Trustee set a hearing on March 28, 2011, at 10:00 a.m., for his
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noticed motion for an order establishing a procedure to allow the Bank to object to certain
PERKINS, MANN &
EVERETT, APC
{00032441.DOC;6}
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____________________________________________________________________________________________
Stipulation And Order To Establish A PACA Claims Procedure To Allow
Fresno-Madera Federal Lank Bank Association, FLCA, To Object To Certain PACA Trust Claims
PDF created with pdfFactory trial version www.pdffactory.com
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claims of trust benefits under the Perishable Agricultural Commodities Act of 1930, as
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amended, 7 U.S.C. §499a, et seq. (“PACA”);
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WHEREAS, the Bank was the only party to oppose the motion;
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WHEREAS, the Court, on March 28, 2011, continued the hearing on the motion
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to April 11, 2011;
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WHEREAS, the Trustee and the Bank resolved any disputes they had regarding
the motion and the order on the motion proposed by the Trustee;
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WHEREAS, the Bank has indicated that it has objections, attached hereto as
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Exhibit A, to certain of the PACA trust claims (each, a “Claim Objectionable to Bank”) that
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were filed pursuant to the earlier order establishing a PACA claims procedure (Doc. No. 48),
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dated June 24, 2009 (the “June 2009 Order”); and
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WHEREAS, as to the PACA claims other than the Claims Objectionable to
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Bank (each, a “Non-Objectionable Claim”), the Bank has no objection to the determinations
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of validity and amounts of the Non-Objectionable Claims as stated under the column “Claim
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Amount Net of Invalid PACA Claims” in Trustee Terence J. Long’s Revised Second PACA
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Trust Chart Calculations Filed Pursuant to the Court’s Order, dated December 24, 2009,
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Document No. 407 (the “Trustee’s Prior Chart”);
The Trustee and the Bank hereby stipulate and propose an order as follows:
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STIPULATION
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1.
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For purposes of this order (the “April 2011 Order”), the PACA proof of
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claim of each claimant with a Claim Objectionable to Bank shall be deemed to be the PACA
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proof of claim filed by the claimant pursuant to the June 2009 Order.
2.
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On or before April 15, 2011, objections, as identified in Exhibit A, to the
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Claims Objectionable to Bank may be made by the Bank only, and the Bank shall file and serve
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the objections. Each objection must set forth in detail the legal and factual basis for the
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objection to each Claim Objectionable to Bank and any supporting document subject to the
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objection and attach any documents on which the objection is based.
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PERKINS, MANN &
EVERETT, APC
{00032441.DOC;6}
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____________________________________________________________________________________________
Stipulation And Order To Establish A PACA Claims Procedure To Allow
Fresno-Madera Federal Lank Bank Association, FLCA, To Object To Certain PACA Trust Claims
PDF created with pdfFactory trial version www.pdffactory.com
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3.
Any amount, either in part or in whole, of a Claim Objectionable to Bank
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to which the Bank does not file and serve an objection by the objection date, shall be deemed a
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valid PACA claim for purposes of this April 2011 Order.
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4.
On or before April 29, 2011, a claimant whose Claim Objectionable to
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Bank the Bank has objected to as provided in paragraph 2 above may file and serve a detailed
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response to the Bank’s objection; said claimant may rely upon any documents or evidence to
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rebut an objection by the Bank to a Claim Objectionable to Bank.
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5.
objection as provided in paragraph 2 above, and no timely response was filed and served, shall
be disallowed to the extent of the objection filed by the Bank.
6.
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Any Claim Objectionable to Bank to which the Bank filed and served an
On or before May 13, 2011, the Trustee shall file and serve a chart,
which shall set forth the following listed items, each in a separate column:
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a.
The name of each claimant with a Claim Objectionable to Bank;
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b.
The amount of each Claim Objectionable to Bank;
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c.
The amount of each Claim Objectionable to Bank that is subject
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to an objection by the Bank;
d.
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valid due to the Bank not filing and serving an objection; and
e.
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The amount of each Claim Objectionable to Bank that is deemed
The amount of each Claim Objectionable to Bank that is
disallowed due to the claimant failing to file and serve a response to an objection by the Bank.
7.
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The claimants with claims to which the Bank has filed and served
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objections as provided in paragraph 2 and the Bank shall exercise their best efforts to resolve
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any of the Bank’s objections. In the event said parties are unable to resolve any objections, on
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or before May 27, 2011, the claimants, as applicable, shall file with the Court a separate motion
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to determine the validity or amount of the Claims Objectionable to Bank to which the parties
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were unable to resolve objections.
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PERKINS, MANN &
EVERETT, APC
{00032441.DOC;6}
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____________________________________________________________________________________________
Stipulation And Order To Establish A PACA Claims Procedure To Allow
Fresno-Madera Federal Lank Bank Association, FLCA, To Object To Certain PACA Trust Claims
PDF created with pdfFactory trial version www.pdffactory.com
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8.
After resolution of all objections, either as a result of agreement between
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parties or a motion, as provided in paragraph 7, the Trustee shall timely file a final chart that
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will set forth the following listed items, each in a separate column:
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a.
The names of all claimants, including the names of both those
with Claims Objectionable to Bank and those with Non-Objectionable Claims;
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b.
The amounts of each claim, representing, as applicable, either the
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amount of each Claim Objectionable to Bank as finally determined by the procedures set forth
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herein or the amount of each Non-Objectionable Claim as set forth in the Trustee’s Prior Chart.
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9.
The total maximum amount of the PACA claim to which the Trustee
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alleges the Bank’s secured interest to be subject shall be calculated as follows: the total amount
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of the claims set forth in 8.b above minus the total amount of all prior distributions to any
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claimants. Any subsequent distributions to any PACA claimants not accounted for in the
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previous sentence shall reduce said maximum amount of the PACA claim to which the Trustee
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alleges the Bank’s secured interest to be subject.
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Dated: April 8, 2011
PERKINS, MANN & EVERETT, APC
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By: /s/ Jan T. Perkins
Jan T. Perkins, attorneys for
TERENCE J. LONG, TRUSTEE
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Dated: April 8, 2011
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LANG, RICHERT & PATCH, APC
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By: /s/ Scott J. Ivy
Scott J. Ivy, attorneys for
FRESNO-MADERA FEDERAL LAND
BANK ASSOCIATION, FLCA
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PERKINS, MANN &
EVERETT, APC
{00032441.DOC;6}
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____________________________________________________________________________________________
Stipulation And Order To Establish A PACA Claims Procedure To Allow
Fresno-Madera Federal Lank Bank Association, FLCA, To Object To Certain PACA Trust Claims
PDF created with pdfFactory trial version www.pdffactory.com
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ORDER
The Stipulation above shall be the order of this Court.
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Dated: April 11, 2011
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/s/ OLIVER W. WANGER
UNITED STATES DISTRICT JUDGE
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PERKINS, MANN &
EVERETT, APC
{00032441.DOC;6}
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____________________________________________________________________________________________
Stipulation And Order To Establish A PACA Claims Procedure To Allow
Fresno-Madera Federal Lank Bank Association, FLCA, To Object To Certain PACA Trust Claims
PDF created with pdfFactory trial version www.pdffactory.com
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