Mirabilis Ventures, Inc. et al v. Palaxar Group, LLC et alRESPONSE re Suggestion of Pendency of Reorganization PetitionM.D. Fla.May 29, 2008UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MIRABILIS VENTURES, INC. and NEXIA STRATEGY CORPORATION, Plaintiffs, -vs.- PALAXAR GROUP, LLC; PALAXAR HOLDINGS, LLC; FRANK HAILSTONES; EDITH CURRY a/k/a EDITH BROADHEAD; and TERENCE CHU, Defendants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 6:07-CV-1788-ORL-28-GJK vs. MIRABILIS VENTURES, INC., et al. Counterclaim and Third Party Defendants. ) ) ) ) ) ) ) __) RESPONSE OF DEFENDANTS EDITH CURRY, FRANK HAILSTONES, PALAXAR GROUP, LLC, AND PALAXAR HOLDINGS, LLC TO “SUGGESTION OF PENDENCY OF REORGANIZATION PROCEEDINGS” FILED BY ATTORNEY FOR MIRABILIS VENTURES, INC. Plaintiff and Counterclaim Defendant Mirabilis Ventures, Inc. (“MVI”) filed for Bankruptcy Protection on May 27, 2008 in the case styled In re: Mirabilis Ventures, Inc., Case No. 6:08-BK-04327. Today the attorney representing MVI in its request for proceedings for reorganization under Chapter 13 “suggests” to this Court that the action before this Court is stayed pursuant to 11 U.S.C. § 362. Section 362 provides, in pertinent part, that the filing of a petition in bankruptcy operates as a stay, applicable to all entities, of: 1 Case 6:07-cv-01788-JA-GJK Document 144 Filed 05/29/2008 Page 1 of 4 the commencement or continuation [ ] of a judicial [ ] action or proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy case], or to recover a claim against the debtor that arose before the [bankruptcy case.] See also In re Chestnut Hill Rehab. Hospital, __ B.R. __, 2008 WL 1733679 (Bkrtcy. M.D. Fla., March 25, 2008) at *1; In re Dolen, 265 B.R. 471, 478, (Bkrtcy. M.D. Fla. 2001). More particularly, the provisions of the automatic stay under Section 362 do not apply when an action was initiated by the debtor or to recover a claim by the debtor. See Roberts v. Commissioner, 175 F.3d 889 (11th Cir. 1999) The pending Motion for Summary Judgment is based on claims brought by the debtor and another Plaintiff, not against the debtor. The only portions of this case that may be subject to an automatic stay are the Counterclaims against Mirabilis, none of which are being addressed under the Motion for Summary Judgment currently before the Court. Nexia Strategy Corporation and the other Counterclaim Defendants are not entitled to protection by the bankruptcy code for any reason. The bankruptcy attorney for MVI also cited 11 U.S.C. § 108(b) as a possible reason for providing relief in this situation. While it is not clear what relief MVI’s attorney is referring to, it appears that MVI is “suggesting” that it is entitled to an additional sixty (60) days in which to file a response to the Motion for Summary Judgment. However, 11 U.S.C. § 108(b) provides them with no such relief. The relevant language of 11 U.S.C. § 108(b) states: if applicable non-bankruptcy law, an order entered in a non-bankruptcy proceeding, or an agreement fixes a period within which the debtor . . . may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee 2 Case 6:07-cv-01788-JA-GJK Document 144 Filed 05/29/2008 Page 2 of 4 may only file, cure, or perform, as the case may be, before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 60 days after the order for relief. Notably, however, for Section 108 to apply, the time period for the pleading, notice, proof of claim or any other similar act must not have expired by the time the bankruptcy petition is filed. In this matter, MVI’s petition for bankruptcy was filed on May 27, 2008. But MVI’s deadline to respond to Defendants’ Motion for Summary Judgment was May 20, 2008, a full week earlier. MVI’s filing of a motion to extend the time to file its response did not change MVI’s May 20, 2008 deadline. Thus, Section 108 does not apply and MVI is not entitled to an additional time to file a response to Defendants’ Motion for Summary Judgment. Accordingly, the Motion for Summary Judgment is fully briefed and ripe for decision and should not be impacted by Mirabilis’ bankruptcy petition. Respectfully submitted, MARTIN R. RASKIN Florida Bar No. 315206 JANE SERENE RASKIN Florida Bar No. 848689 RASKIN & RASKIN, P.A. 2601 South Bayshore Drive Suite 725 Miami, Florida 33133 Telephone: (305) 444-3400 Facsimile: (305) 445-0266 mraskin@raskinlaw.com Attorneys for Defendant Curry, Palaxar Group, LLC and Palaxar Holdings, LLC /s/ Kathleen B. Havener KATHLEEN B. HAVENER KATHLEEN B. HAVENER ATTORNEY AT LAW LLC 15511 Russell Road Chagrin Falls, OH 44022 Telephone: 216-288-6009 Facsimile: 440-893-9326 kbhavener@havenerlaw.com Attorney for Defendants Curry, Hailstones, Palaxar Group, LLC and Palaxar Holdings, LLC 3 Case 6:07-cv-01788-JA-GJK Document 144 Filed 05/29/2008 Page 3 of 4 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 29, 2008, I electronically filed the foregoing Response of Defendants Edith Curry, Frank Hailstones, Palaxar Group, LLC, and Palaxar Holdings, LLC to Suggestion of Pendency of Reorganization Proceeding with the Clerk of Court using the CM/ECF system which will send a notice of electric filing to the appropriate attorneys. I further certify that on May 29, 2008, a copy of the foregoing has been furnished by U.S. Mail to: Terence Chu 5637 Country Hills Lane Glen Allen, VA 23059 Defendant Frank Amodeo 614 Lake Avenue Orlando, Florida 32801 Third Party Defendant /s/ Kathleen B. Havener___ KATHLEEN B. HAVENER Case 6:07-cv-01788-JA-GJK Document 144 Filed 05/29/2008 Page 4 of 4
