In re Enron Corp.

United States Bankruptcy Court, S.D. New YorkDec 19, 2002
Case No. 01-16034 (AJG), Jointly Administered (Bankr. S.D.N.Y. Dec. 19, 2002)

Case No. 01-16034 (AJG), Jointly Administered

December 19, 2002


Upon the Motion (the "Motion") of Energy Investments, LLC ("Energy") dated November 21, 2002 for an Order granting relief from the automatic stay pursuant to section 362(d) of the Bankruptcy Code to permit the commencement and prosecution of lien foreclosure proceedings (the "Foreclosure Proceedings") against certain personal property and property owned by non-debtors and certain improvements upon such real property that may be owned by the Debtors in the captioned case due notice of the Motion having been given to all parties entitled thereto; and the Court having conducted a hearing to consider the Motion on December 19, 2002, at which, by prior agreement, counsel for the Debtors, not Energy, was present and heard; and upon the record made on December 19, 2002; it is

ORDERED, that the Energy Motion is granted to the extent provided herein; and it is further

ORDERED, that the automatic stay pursuant to Bankruptcy Code section 362(a) is modified, to the extent applicable, for cause pursuant to Bankruptcy Code section 362(d) solely to permit Energy to commence and prosecute actions to foreclose its mechanics liens against any and all real and personal property to which its mechanics liens attach, and, if required by applicable non-bankruptcy law, to name as defendants in such actions Enron Energy Services North America Corp. ("EESNA") and EFS Construction Management Services, Inc. ("EFS"), which were contractors with respect to such real property, but Energy may not seek in such Foreclosure Proceedings to enforce any money judgment against the Debtors (or any of the Debtors' affiliates) or otherwise affect the Debtors' operations; and it is further

ORDERED, that to the extent there is any deficiency claim in favor of Energy resulting from the Foreclosure Proceedings, any such deficiency claim shall only be asserted and adjudicated in EESNA's or EFS' bankruptcy case as general pre-petition unsecured claims, and subject to review and objection by the Debtors and other parties-in-interest; and it is further

ORDERED, that the Debtors may, but shall not be required to, participate in any of the Foreclosure Proceedings commenced by Energy to foreclose its mechanics liens, and none of the findings of fact, conclusions of law, decisions or judgments in such proceedings will act as any collateral estoppel or res judicata bar to any objection by the Debtors or other parties in interest to any claims that may be asserted against the Debtors' estates by Energy; and it is further

ORDERED, that Energy shall account in writing to the Debtors to advise of all of the collateral and proceeds that Energy may recover in its actions and proceedings to foreclose its mechanics liens; and it is further

ORDERED, that any amounts recovered by Energy in connection with the foreclosure of its mechanics liens that exceed the total amount due to Energy and are attributable to Energy's foreclosure upon any assets or improvements owned by the Debtors shall be paid over to the Debtors within ten (10) business days after Energy's receipt of such surplus, and Energy shall have no liability whatsoever arising from its compliance with this Order; and it is further

ORDERED, that for cause shown, the 10-day stay provided under Fed.R.Bank.P. 4001(a)(3) be, and it hereby is, waived.