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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1 6 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 7 Attorney for: Plaintiff TERENCE J. LONG, TRUSTEE PURSUANT TO COURT ORDER 2 3 4 5 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION 10 11 ONIONS ETC., INC., and DUDA FARM FRESH FOODS, INC., 12 13 Plaintiffs, v. 14 15 16 17 18 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. 19 20 AND ALL RELATED ACTIONS 21 This stipulation and order to establish a PACA claims procedure to allow 22 Fresno-Madera Federal Land Bank Association, FLCA, to object to certain PACA trust claims 23 is entered into by and between Plaintiff in Intervention Terence J. Long, Trustee Pursuant to 24 Court Order (the “Trustee”) and Fresno-Madera Federal Land Bank Association, FLCA (the 25 “Bank”), and their attorneys of record, as follows: 26 RECITALS 27 WHEREAS, the Trustee set a hearing on March 28, 2011, at 10:00 a.m., for his 28 noticed motion for an order establishing a procedure to allow the Bank to object to certain PERKINS, MANN & EVERETT, APC {00032441.DOC;6} 1 ____________________________________________________________________________________________ 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 1 claims of trust benefits under the Perishable Agricultural Commodities Act of 1930, as 2 amended, 7 U.S.C. §499a, et seq. (“PACA”); 3 WHEREAS, the Bank was the only party to oppose the motion; 4 WHEREAS, the Court, on March 28, 2011, continued the hearing on the motion 5 to April 11, 2011; 6 7 WHEREAS, the Trustee and the Bank resolved any disputes they had regarding the motion and the order on the motion proposed by the Trustee; 8 WHEREAS, the Bank has indicated that it has objections, attached hereto as 9 Exhibit A, to certain of the PACA trust claims (each, a “Claim Objectionable to Bank”) that 10 were filed pursuant to the earlier order establishing a PACA claims procedure (Doc. No. 48), 11 dated June 24, 2009 (the “June 2009 Order”); and 12 WHEREAS, as to the PACA claims other than the Claims Objectionable to 13 Bank (each, a “Non-Objectionable Claim”), the Bank has no objection to the determinations 14 of validity and amounts of the Non-Objectionable Claims as stated under the column “Claim 15 Amount Net of Invalid PACA Claims” in Trustee Terence J. Long’s Revised Second PACA 16 Trust Chart Calculations Filed Pursuant to the Court’s Order, dated December 24, 2009, 17 Document No. 407 (the “Trustee’s Prior Chart”); The Trustee and the Bank hereby stipulate and propose an order as follows: 18 STIPULATION 19 1. 20 For purposes of this order (the “April 2011 Order”), the PACA proof of 21 claim of each claimant with a Claim Objectionable to Bank shall be deemed to be the PACA 22 proof of claim filed by the claimant pursuant to the June 2009 Order. 2. 23 On or before April 15, 2011, objections, as identified in Exhibit A, to the 24 Claims Objectionable to Bank may be made by the Bank only, and the Bank shall file and serve 25 the objections. Each objection must set forth in detail the legal and factual basis for the 26 objection to each Claim Objectionable to Bank and any supporting document subject to the 27 objection and attach any documents on which the objection is based. 28 /// PERKINS, MANN & EVERETT, APC {00032441.DOC;6} 2 ____________________________________________________________________________________________ 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 1 3. Any amount, either in part or in whole, of a Claim Objectionable to Bank 2 to which the Bank does not file and serve an objection by the objection date, shall be deemed a 3 valid PACA claim for purposes of this April 2011 Order. 4 4. On or before April 29, 2011, a claimant whose Claim Objectionable to 5 Bank the Bank has objected to as provided in paragraph 2 above may file and serve a detailed 6 response to the Bank’s objection; said claimant may rely upon any documents or evidence to 7 rebut an objection by the Bank to a Claim Objectionable to Bank. 8 9 10 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. 11 12 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: 13 a. The name of each claimant with a Claim Objectionable to Bank; 14 b. The amount of each Claim Objectionable to Bank; 15 c. The amount of each Claim Objectionable to Bank that is subject 16 to an objection by the Bank; d. 17 18 valid due to the Bank not filing and serving an objection; and e. 19 20 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. 21 The claimants with claims to which the Bank has filed and served 22 objections as provided in paragraph 2 and the Bank shall exercise their best efforts to resolve 23 any of the Bank’s objections. In the event said parties are unable to resolve any objections, on 24 or before May 27, 2011, the claimants, as applicable, shall file with the Court a separate motion 25 to determine the validity or amount of the Claims Objectionable to Bank to which the parties 26 were unable to resolve objections. 27 /// 28 /// PERKINS, MANN & EVERETT, APC {00032441.DOC;6} 3 ____________________________________________________________________________________________ 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 1 8. After resolution of all objections, either as a result of agreement between 2 parties or a motion, as provided in paragraph 7, the Trustee shall timely file a final chart that 3 will set forth the following listed items, each in a separate column: 4 5 a. The names of all claimants, including the names of both those with Claims Objectionable to Bank and those with Non-Objectionable Claims; 6 b. The amounts of each claim, representing, as applicable, either the 7 amount of each Claim Objectionable to Bank as finally determined by the procedures set forth 8 herein or the amount of each Non-Objectionable Claim as set forth in the Trustee’s Prior Chart. 9 9. The total maximum amount of the PACA claim to which the Trustee 10 alleges the Bank’s secured interest to be subject shall be calculated as follows: the total amount 11 of the claims set forth in 8.b above minus the total amount of all prior distributions to any 12 claimants. Any subsequent distributions to any PACA claimants not accounted for in the 13 previous sentence shall reduce said maximum amount of the PACA claim to which the Trustee 14 alleges the Bank’s secured interest to be subject. 15 Dated: April 8, 2011 PERKINS, MANN & EVERETT, APC 16 17 By: /s/ Jan T. Perkins Jan T. Perkins, attorneys for TERENCE J. LONG, TRUSTEE 18 19 20 Dated: April 8, 2011 . LANG, RICHERT & PATCH, APC 21 22 23 24 By: /s/ Scott J. Ivy Scott J. Ivy, attorneys for FRESNO-MADERA FEDERAL LAND BANK ASSOCIATION, FLCA . 25 26 27 28 PERKINS, MANN & EVERETT, APC {00032441.DOC;6} 4 ____________________________________________________________________________________________ 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 1 2 ORDER The Stipulation above shall be the order of this Court. 3 4 Dated: April 11, 2011 5 /s/ OLIVER W. WANGER UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PERKINS, MANN & EVERETT, APC {00032441.DOC;6} 5 ____________________________________________________________________________________________ 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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