Upload
others
View
1
Download
0
Embed Size (px)
Citation preview
GORDON SILVERGERALD M. GORDON, ESQ., Nevada Bar No. 229E-mail: [email protected] M. NOALL, ESQ., Nevada Bar No. 3549E-mail: [email protected] H. FELL, ESQ., Nevada Bar No. 3717E-mail: [email protected] D. HOMEYER, ESQ., Nevada Bar No. 12402E-mail: [email protected] Howard Hughes Pkwy., 9th FloorLas Vegas, Nevada 89169Telephone (702) 796-5555Facsimile (702) 369-2666
and
DLA PIPER (US) LLPGREGG M. GALARDI, ESQ., New York Bar No. 4535506E-mail: [email protected](admitted pro hac vice)1251 Avenue of the AmericasNew York, New York 10020Telephone (212) 335-4640Facsimile (212) 884-8540
1
2
3
4
5
6
7
8
9
10
11
12
13Attorneys for Debtor
14
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEVADA
In re: Case No.: 11-53860-BTBChapter 11
AHERN RENTALS, INC.
Debtor. Date: October 9, 2012Time: 2:00 p.m.Place: Clifton Young Federal Bldg.
300 S. Booth StreetReno, Nevada 89509
15
16
17
18
19
20
21
22DECLARATION OF THOMAS H. FELL, ESQ. IN SUPPORT OF DEBTOR'S REPLY
TO THE OPPOSITIONS TO DEBTOR'S SECOND OMNIBUS OBJECTION TOPERSONAL INJURY CLAIMS FILED BY THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS AND CREDITOR RAMIRO TINOCO
I, Thomas H. Fell, Esq., hereby declare as follows:
1. I am over the age of 18 and am mentally competent. I have personal knowledge
of the facts in this matter and if called upon to testify, could and would do so. I make this
declaration in support of the Debtor's Reply to the Oppositions to Debtor's Second Omnibus
23
24
25
26
27
28
104500-002/1680025
Gordon SilverAttorneys At Law
Ninth Floor3960 Howard Hughes PkwyLas Vegas, Nevada 89169
(702) 796-5555
Case 11-53860-btb Doc 1162 Entered 10/05/12 18:09:57 Page 1 of 3
Objection to Personal Injury Claims Filed by the Official Committee Of Unsecured Creditors
and Creditor Ramiro Tinoco (the "Reply").
2. I am a shareholder with the law firm of Gordon Silver ("GS"). GS maintains
offices at 3960 Howard Hughes Parkway, Ninth Floor, Las Vegas, Nevada 89169. I am admitted
to practice law before this Court and am a member in good standing of the Nevada State Bar.
GS represents Debtor in the above-captioned bankruptcy case (the "Chapter 11 Case").
3. Except as otherwise indicated, all facts set forth in this declaration are based upon
my personal knowledge of Debtor's business and legal affairs, information learned from my
review of relevant documents, and information supplied to me by other members of Debtor's
management, Debtor's various business and legal advisors, and other parties in interest to the
Chapter 11 Case. If called upon to testify as to the content of this declaration, I could and would
do so.
4. On or about July 17, 2012, Claimant Ramiro Tinoco, by and through his counsel,
Guy W. Murray, Esq., filed a complaint (the "Tinoco Complaint") against Debtor in the Superior
Court of California, County of San Luis Obispo, case number CV 120419. A true and correct
copy of the Tinoco Complaint is attached hereto as Exhibit "1."
5. On or about July 18, 2012, my office sent to Mr. Murray a letter notifying him
that the filing of the Tinoco Complaint against Debtor violated the automatic stay imposed by
Section 362 of the Bankruptcy Code and was thus void as a matter of law. Enclosed with the
letter was a copy of Debtor's Notice of Chapter 11 Bankruptcy Cases, Meeting of Creditors, and
Deadlines [ECF No. 40] (the "Notice of Bankruptcy"). A true and correct copy of this
correspondence including the enclosed Notice of Bankruptcy is attached hereto as Exhibit "2."
6. On or about August 10, 2012, Claimants Bob and Judy Spaugh, by and through
their counsel, Lester W. Vance, Esq., filed a complaint (the "Spaugh Complaint") against Debtor
in the 199th Judicial District Court, Collin County, Texas, case number 199029692012. A true
and correct copy of the Spaugh Complaint is attached hereto as Exhibit "3."
7. On or about September 7, 2012, my office sent to Mr. Vance a letter notifying
him that the filing of the Spaugh Complaint against Debtor violated the automatic stay imposed
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gordon SilverAttorneys At Law
Ninth Floor3960 Howard Hughes PkwyLas Vegas, Nevada 89169
(702) 796-5555
2104500-002/1680025
Case 11-53860-btb Doc 1162 Entered 10/05/12 18:09:57 Page 2 of 3
DATED this day of October, 2012.
THOMAS H. FELL, ESQ.
by Section 362 of the Bankruptcy Code and was thus void as a matter of law. Enclosed with the
letter was a copy of Notice of Bankruptcy. A true and correct copy of this correspondence
including the enclosed Notice of Bankruptcy is attached hereto as Exhibit "4."
I declare under penalty of perjury of the laws of the United States that these facts are true
to the best of my knowledge and belief.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3Gordon Silver
Attorneys At LawNinth Floor
3960 Howard Hughes PkwyLas Vegas, Nevada 89169
(702) 796-5555
104500-002/1680025
Case 11-53860-btb Doc 1162 Entered 10/05/12 18:09:57 Page 3 of 3
EXHIBIT1
EXHIBIT1
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 1 of 35
SUM-100SUMMOdS(CITACION JUDICIAL)
NOTICE TO DEFENDANT: Ahern Equipment Rentals, Santa(AVISO AL DEMANDADO):Maria Equipment Rental, and does1 through 50, inclusive
YOU ARE BEING SUED BY PLAINTIFF: Ramiro Tinoco(LO ESTA DEMANDANDO EL DEMANDANTE):
FOR COURT USE ONLY(SOLO PARA USO DE LA CORTE)
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the informationbelow.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copyserved on the plaintiff. A letter or phone call will net protect you. Your written response must be in proper legal form if you want the court to hear yourcase. There may be a court form that you can use for your response. You can find these court forms and more Information at the California CourtsOnline Setf-Help Center (www.courtinfo.ca.gevisa►thgo), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, askthe court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and properlymay be taken without further warning from the court,
There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorneyreferral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locatethese nonprofit groups at the Cafifomla Legal Services Web site (wwwlawheticalifornaorg), the California Courts Online Self-Help Center(www.couninfo.cagoviselfhep), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees andcosts on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.tAV1S01 Lo han demandado. Si no respond° denim de 30 dies, la carte puede decidir en su contra sin escuchar su version. Lea la información acontinuacien
Tiene 30 DIAS DE CALENDARIO despues de que fe entreguen esta citacibn y papelos legates pars presenter una respuesta por escrito en estacarte y hater que se &tit-ague una cope& al demandante. Una carte o una lambda tssefOnIca no to protegen. Su respuesta par °scree bone quo esteren format° legal correcto si dessa quo pmcesen su caso en la code. Es posit% que haya un formulas qua usted puede user pare su respuesta.Puede encontrar estas formalarros de/a carte y mas informactrin en el Centro de Ayuda de las Cortes de California (vwrw.sucorte.cagov), en labiblioteca de leyes de su condado a en la cone que is quede mhs cerca. Si n° puede pager la mote de presentacibn, pida at secreted° de la carteque le d8 un for-malaria de axe/704n de page de cuotas. SI no presents su respuesta a tiempo, puede perder el caso par incumplimiento y la mite lepadre guitar su sue/do, dinero y bienes sin mss advertencie.
Hay otros requisites legates. Es recomendable qua !lame a an abogado inmediatamente. Si no conoce a un abogado, puede /lamer a un servicio deremisidn a abogados. Si no puede pager a un abogado, es posible que cumpia con los requisitos pare obtener servicies legates gratultos de anprograma de servklos legates sin fines de !um. Puede encontrar estos gropes sin fines de luau en el silly web de California Legal Services,(www.lawhelpcalifomla.orW, en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) a poniandose en contact() con la cone o alcaegia de abogados locales. AV1SO: Por ley, la carte liana damcho a reamer las cuotas y los costos exentos par inponer un gravamen sabrecualquier recuperacitin de $10,000 0 mils de valor recibicia mediante un acuerdo o una concesibn de arbffrale en an caso de derecho cid. Ilene quapager el gravamen de la corte antes de ue la code puede desechar el caso.
e name an ► a ress 4 e coo CASE NUMBER.(El nombre y direcclOn de la come es):Superior Ct., County of San Luis Obispo1035 Palm Street, Room 385County Gov. CenteSan Luis Obispo, CA 93408The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:(El nombre, fa dinacclOn y namero de to/4ton° del abogado del demandante, o del demandante qua no (lane abogado, es):Guy W. Murray, Esq. #128716 (805) 929-7150LAW OFFICES OF GUY W. MURRAY
ATHERLY is/671 W. Tefft Street, Suite 3 P. 0. Bo California 93444 bubAN M 7,p E
DATE: Clerk, by , Deputy(Fecha) .11JL 1 7 201Z (Secretario) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)(Para - prueba de entrega de este citation use el formularlo Proof of Service of Summons, (P05-010)).
NOTICE TO THE PERSON SERVED: You are served1. ;71 as an individual defendant.2. F-1 as the person sued under the fictitious name of (specify):
3. LA on behalf of (specify):
under: L i CCP 416.10 (corporation) 1 CCP 416.60 (minor)17:j CCP 41620 (defunct corporation) CCP 416.70 (conservatee)F -1 CCP 416.40 (association or partnership) Fl CCP 416.90 (authorized person) other (specify):
by personal delive on date):
Paeo1oft
(NOmem del Case):
MAIO
arm Adopted for Mandatory UseJudicial Council of CaliforniaSUM-100 [Say. July 1. 20091
UMMONS ..uriCoda of C I Procedure 55 41220, 465
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 2 of 35
PLD.P -001ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Safe Ear number, a ).Guy W. Murray, Esq. #128716LAW OFFICES OF GUY W. MURRAY671 W. Tefft Street, Suite 3 P. 0. Box 180671 W. Tefft Street, Suite 3 P. O. Box 180Nipomo, California 93444
TELEPHONE NO (805) 929-7150 FA)( NO, (Optiond):E-MAIL ADDRESS (Optional):
ATTORNEY FOR Mame): Plaintiff
FOR COURT USE ONLY
—
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Luis ObispoSTREET ADDRESS . 1035 Palm Street, Room 385MAILING ADDRESS' County Gov . Cente
ci re AND ziP woe: San Luis Obispo, CA 93408BRANCH NAME:
PLAINTIFF: Ramiro Tinoco
DEFENDANT: Ahern Equipment Rentals, Santa Maria EquipmentRental, and does 1 through 50, inclusive
,. , DOES 1 TO
COMPLAINT—Personal Injury, Property Damage, Wrongful Death[J AMENDED (Number):
Type (check all that apply):--i, MOTOR VEHICLE 50 OTHER (specify): PROD LIABILITYr—j, Property Damage Fl Wrongful Death1-7 Personal Injury Lii Other Damages (specify):
Ju risdiction (check all that apply):CASE NUMBER:
I /
.---,I . 1 ACTION IS A LIMITED CIVIL CASEAmount demanded L does not exceed $10,000
. . , Ji, exceeds $10,000, but does not exceed $25,000____, ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000)i_ ,_ i ACTION IS RECLASSIFIED by this amended complaint
I - 71 from limited to unlimitedL j from unlimited to limited
1. Plaintiff (name or names):Ramiro Tinoco
alleges causes of action against defendant (name or names): Ahern Equipment Rental sSanta Maria Equipment Rental
2. This pleading, including attachments and exhibits, consists of the following number of pages: 53. Each plaintiff named above is a competent adult
a. LA except plaintiff (name):(1) HI a corporation qualified to do business In Califomla(2) Ell an unincorporated entity (describe):(3) rl a• public entity (describe):(4) Ft .a minor FT. an adult
(a) for whom a guardian or conservator of the estate or a guardian ad litem has been appointed(b) _ other (specify):
(5) o• ther (specify):
b. I i except plaintiff (name):(1) F-1 a• corporation qualified to do business in California(2) I I an unincorporated entity (describe):(3) r7-1 a public entity (describe):(4) FT a minor I an adult
(a) for whom a guardian or conservator of the estate or a guardian ad litem has been appointed(b) L_ j other (specify).'
(5) 1 other (specify):
; Information about additional plaintiffs who are not competent adults is shown in Attachment 3. Pageiof3
Form Approved for Optional UseJudicial Camel! of California
PI.D .P1,001 (Rev. Jenuary1, 2007)COMPLAINT—Personal Injury, Property
Damage, Wrongful Death SoCode of Civil Procedure, 42512
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 3 of 35
SHORT TITLE: TIN000 VS AHERN CASE NUMBER:
PLD-PI-001
4. 71'1 Plaintiff (name):is doing business under the fictitious name (specify):
and has complied with the fictitious business name laws.5. Each defendant named above is a natural person
a. except defendant (name): AHERN EQUIPMENTRENTALS
c. .1 except defendant (name):
(1) a business organization, form unknown (1) 1---1 a business organization, form unknown(2) [.__I a corporation (2) F-1 a corporation(3) an unincorporated entity (describe): (3) an unincorporated entity (describe):
(4) L ' 1 a public entity (describe): (4) L 1 a public entity (describe):
(5) LL other (specify): (5) L_ other (specify):
b. rk I except defendant (name): SANTA MARIA d. 71 except defendant (name):EQUIPMENT RENTALS
(1) i xi, a business organization, form unknown (1) a business organization, form unknown(2) [7i—i a corporation (2) a corporation(3) 1 —1 an unincorporated entity (describe): (3) L'_:7 an unincorporated entity (describe):
(4) L__11 a public entity (describe): (4) r-ii a public entity (describe):
(5) 11-1_, other (specify): (5) L1 1 other (specify):
Information about additional defendants who are not natural persons is contained in Attachment 5.6. The true names of defendants sued as Does are unknown to plaintiff.
a. I x j Doe defendants (specify Doe numbers): 41 —5 0 were the agents or employees of othernamed defendants and acted within the scope of that agency or employment.
b. x 1 Doe defendants (specify Doe numbers): 1-50 are persons whose capacities are unknown toplaintiff.
7, 1---1 Defendants who are joined under Code of Civil Procedure section 382 are (names):
8. This court Is the proper court becausea.1 at least one defendant now resides in Its jurisdictional area.b. :1 the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area.c. Lx injury to person or damage to personal property occurred in Its jurisdictional area.d 1 other (specify):
9. L j Plaintiff is required to comply with a claims statute, anda. Lj has complied with applicable claims statutes, orb. r 1 is excused from complying because (specify):
PLO-P1-001 Pay January t, 2OW1 COMPLAINT—Personal Injury, Property Paola 2 et 3
Damage, Wrongful Death
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 4 of 35
OR ATTORNEY
COMPLAINT—Pemonal Injury, PropertyDamage, Wrongful Death
Pap 3013
Date: JULY 17, 2012
GUY W. MUltRAY(TYPE OR PRINT NAII1E)
PLO-PI-OM (Rev. JartuarY 1, 20E71
PLD-PI 0SHORT TITLE: TINOCO VS AHERN CASE NUMBER:
10. The following causes of action are attached and the statements acauses of action attached):a.Li Motor Vehicleb.LI-7-1 G• eneral Negligencec. Intentional Tortd.>T] P• roducts Liabilitye. Li Premises LiabilityL Li Other (specify):
e apply to each (each complaint must have one or more
11. Plaintiff has suffereda. (1 wage lossb. = loss of use of propertyc.rx-1 h• ospital and medical expensesd. [&J general damagee. I 1 property damagef. [Xi loss of earning capacityg.L 1 other damage (specify):
12. I 1 The damages claimed for wrongful death and the relationships of plaintiff to the deceased area.I i listed in Attachment 12.b.LT as follows:
13. The relief sought In this complaint is within the jurisdiction of this court.
14. Plaintiff prays for judgment for costs of suit; for such relief as Is fair, just, and equitable; and fora. (1) I compensatory damages
(2) ni p• unitive damagesThe amount of damages is (in cases for personal injury, or wrongful death, you must check (1)):(1)al a• ccording to proof(2) I- in the amount of: $
15. [ I The paragraphs of this complaint alleged on Information and belief are as follows (specify paragraph numbets):
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 5 of 35
CAUSE OF ACTION—Products Liability Coda of Civil procedure, § 425.12
PLO-PI-001(5)
SHORT TITLE: TINOCO VS AHERN ASC NUMBER
FIRST CAUSE OF ACTION—Products Liability(number)
ATTACHMENT TO r_j Complaint I I Cross-Complaint(Use a separate cause of action form foreach cause of action.)
Plaintiff (name): Ramiro Tinoco
Page 4
Prod. L-1. On or about (date): 07 / 23/10 plaintiff was Injured by the following product:
scissor lift
Prod. L-2. Each of the defendants knew the product would be purchased and used without inspection for defects.The product was defective when it left the control of each defendant. The product at the time of injurywas beingdill used in the manner intended by the defendants.I x 1 used in a manner that was reasonably foreseeable by defendants as involving a substantial danger not
readily apparent. Adequate warnings of the danger were not given.Prod. L-3. Plaintiff was a
E .1 purchaser of the product. ri 1 user of the product. bystander to the use of the product. other (specify):
PLAINTIFFS INJURY WAS THE LEGAL (PROXIMATE) RESULT OF THE FOLLOWING:Prod. L-4. Lx jCount One—Strict liability of the following defendants who
a. 571 manufactured or assembled the product (names): AHERN EQUIPMENT RENTALS, SANTAMARIA EQUIPMENT RENTALS AND
Does 1 to 10b. designed and manufactured component parts supplied to the manufacturer (names):
rio Does 11 to 2,0 c. sold the product to the public (names):AHERN EQUIPMENT RENTALS, SANTA MARIAEQUIPMENT RENTALS AND
Does 21 to 30Prod. L-5. WI Count Two--Negligence of the following defendants who owed a duty to plaintiff (names):
AHERN EQUIPMENT RENTALS, SANTA MARIA EQUIPMENT RENTALS AND
j Does 31 to4 0Prod. L-6. F-X1 Count Three—Breach of warranty by the following defendants (names): AHERN EQUIPMENT
RENTALS, SANTA MARIA EQUIPMENT RENTALS AND
n Does 41 to 50a. who breached an Implied warrantyb. who breeched an express warranty which was
1 —1 written I I oralProd. L-7. n The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are
L__ listed in Attachment-Prod. L-7 as follows:
Form Approved for Optional UsaJudicial Council of California
FLO-PI-001(5) play, Jemmy 1, 20071
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 6 of 35
flFus
Form Approved for Optional UaeJudicial Council of California
PLO .P1-001(2) 'Rev. January 1, 20071
Pa loriCOdS of Civil Procedure 425.12
CAUSE OF ACTION—General Negligence So
PLO-131 1(2)
SHORT TITLE: TINOCO VS AHERN CASE NUMBER:
SECOND CAUSE OF ACTION—General Negligence(number)
ATTACHMENT TO I '11 Complaint Li Cross - Complaint
(Use a separate cause of action form for each cause of action.)
GN-1. Plaintiff (name): Ramiro Tinoco
alleges that defendant (name): Ahern Equipment RentalsSanta Maria Equipment Rental and
Page 5
Lk Does 41 to 50
was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendantnegligently caused the damage to plaintiffon (date): July 23, 2010at (place): an undisclosed job site in San Luis Obispo
(description of reasons for liability):DEFENDANTS DID RENT, LEASE AND MAKE AVAILABLE TO PLAINTIFF THAT CERTAIN SCISSORLIFT THAT THEY KNEW OR SHOULD HAVE KNOWN WAS IN A STATE OF DISREPAIR AND UNSAFEFOR USE. THAT DESPITE SAID KNOWLEDGE DEFENDANTS DID LEASE AND RENT THE EQUIPMENTAND PLACE IT IN THE STREAM OF COMMERCE
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 7 of 35
Case Management ConferenceAHERN EQUIPMENT RENTALS
RAM IRO TiNocoPlaintiff(s),
CASENUMM
CV1 2 0 4 1 9
Defenclant(s).
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
Murray, Guy W.671 West Tefft Street, Suite 3P. 0. Box 180Nipomo CA 93444-0180
NOTICE OF ASSIGNMENT & CASE MANAGEMENT CONFERENCE.
This case is assigned to Hon. Dodie A. Harman for all purposes.Plaintiff must serve the Summons and Complaint, a copy of this Notice, the Standing Case Management Order of thejudge assigned for all purposes and must file proofs of service within 60 days after the complaint is filed.Defendants shall file responsive pleadings within 30 days of service
unless the parties stipulate to an extension of not more than 15 days.IT IS HEREBY ORDERED:1. The parties must appear for a first Case Management Conference on:November 29, 2012 at 9:00 am in Department 8
THE PARTIES OR THEIR ATTORNEYS MUST APPEAR AT THE CASE MANAGEMENT CONFERENCE*"For information about telephone appearances call COURTCALL at (888) 882-6878
2. Each party must file & serve a Case Management Statement at least 15 days , before the conference.3. The person appearing at the first Case Management Conference must be familiar with the case and prepared to discuss
suitability of the case for mediation, binding arbitration, judicial arbitration or some form of alternative dispute resolution.4. Trial will be set within the 11th or 12th month after the filing of the complaint. Counsel must arrange their schedules,
reserve dates with witnesses and schedule trial preparation with this in mind. Continuances will be granted only on a clearshowing of good cause.
5. All law and motion matters will be calendared in the department of the assigned judge and filed with the Clerk's Office.6. Each party should be prepared to show cause why sanctions should not be imposed for a failure to comply with these rules. ***LIMITED JURISDICTION ONLY: unless the parties have entered into arbitration as required by Local Rules 9.00and 26.00. "Entered into arbitration" means the date upon which the administrator mails the arbitration list.encs.3
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 8 of 35
EXHIBIT2
EXHIBIT2
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 9 of 35
Kirk Homeyer
From: Jasminn G. HernandezSent: Wednesday, July 18, 2012 4:36 PMTo: '[email protected]'Cc: Kirk HomeyerSubject: Ahern adv. Tinoco: Violation of Automatic StayAttachments: Letter re Tinoco violation of automatic stay. From Homeyer to Murray..pdf
Good afternoon,
Attached please find correspondence (with enclosure) dated July 18, 2012, regarding the complaint of Ramiro Tinoco.Please note that the original will follow via first-class mail.
If you have any questions, please feel free to contact me at your earliest convenience.
Sincerely,
1
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 10 of 35
GORDON SILVER
July 18, 2012
VIA E-MAIL ANDFIRST-CLASS MAIL
Guy W. Murray, Esq.Law Offices Guy W. Murray671 W. Tefft Street, Suite 3P.O. Box 180Nipomo, CA 93444Email: [email protected]
Re: Ahern Rentals, Inc.Case No. 11-53860-BTB
Dear Mr. Murray:
The law firm of Gordon Silver represents Ahern Rentals, Inc. ("Ahern"). On December22, 2011, Ahern filed a voluntary petition for bankruptcy relief under Chapter 11 of Title 11 ofthe United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for theDistrict of Nevada (the "Bankruptcy Court"), Case No. 11-53860-BTB (the "Bankruptcy Case").Ahern is currently debtor and debtor-in-possession in the Bankruptcy Case. Enclosed herewith isa copy of the Notice of Chapter 11 Bankruptcy Cases, Meeting of Creditors, and Deadlines.
The automatic stay imposed by section 362 of the Bankruptcy Code prohibits "thecommencement or continuation, including the issuance or employment of process, of a judicial,administrative, or other action or proceeding against the debtor that was or could have beencommenced" before the debtor filed for bankruptcy protection. 11 U.S.C. § 362(a)(1). Thecommencement of an action against a debtor during bankruptcy proceedings is a violation of theautomatic stay and void as a matter of law.
I am in receipt of the summons you issued, and complaint you filed, upon Ahern onbehalf of your client, Ramiro Tinoco, on July 17, 2012, in the Superior Court of the State ofCalifornia, County of San Luis Obispo, Case No. CV-120419. As the issuance of the summonsservice of complaint directly violated the automatic stay imposed by Section 362 of theBankruptcy Code, the complaint is void and must be dismissed. Please provide proof thatthe action has been dismissed on or before close of business on July 31, 2012.
3960 HOWARD HUGHES PARKWAY, NINTH FLOOR I LAS VEGAS, NEVADA 89169T: 702.796.5555 I F: 702.369.2666
104500-002/1611101 gordonsilver.com
LAS VEGAS I PHOENIX I WASHINGTON, D.C.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 11 of 35
Gordon SilverAttorneys and Counselors at Law
Guy W. Murray, Esq.July 18, 2012Page 2
Should you fail to comply with the foregoing request, I will haveto seek an order to show cause from the Bankruptcy Court why youcontempt for intentionally violating the automatic stay.
Please do not hesitate to contact me if you have any questionsmatter further.
Sincerely,
no other alternative butshould not be held in
or wish to discuss this
ICDH:jghEnclosure
cc: Brian G. Ritz (via e-mail)Sarah J. Fisher (via e-mail)
104500-002/1611101
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 12 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 1 of 4
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
In re
AHERN RENTALS, Inc,dba AHERN HEAVY EQUIPMENTdba RHINO'S TURN EQUIPMENTdba SUPER GRIP WEST
Tax I.D. No. 88-0381960
Chapter 11
Case No.: BK-N-11-53860
Debtor. /
NOTICE OF CHAPTER H BANKRUPTCY CASES, MEETING OFCREDITORS, AND DEADLINES
A chapter 11 bankruptcy case was filed concerning the debtor(s) listed above on December 22, 2011.
You may be a creditor of the debtor. This notice lists important deadlines. You may want to consultan attorney to protect your rights. All documents filed in this case may be viewed at the bankruptcyclerk's office at the address listed on this Notice. The dockets and imaged case documents may also beviewed electronically at http ://ecf.nvb.uscourts.qov/ under the case: AHERN RENTALS, Inc., casenumber 11-53860 To register for a PACER login and password, call 1-800-676-6856 or go online athttp://www.pacer.gov.
NOTE: The staff of the bankruptcy clerk's office cannot give legal advice. See additional informationenclosed on the page of this Notice entitled "Explanations."
Attorney for Debtor(s):Thomas H. FellGordon Silver
3960 Howard Hughes Parkway, 9th FloorLas Vegas, NV 89169
Telephone Number: (702) 796-5555
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 13 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 2 of 4
Meeting of Creditors
DATE: January 30, 2012TIME: 4:00 PM
LOCATION: C. Clifton Young Federal Building and U.S. Courthouse300 Booth Street, Room 3024, Reno, NV 89509
Creditor with a Foreign Address:See additional information enclosed on the page of this Notice entitled "Explanations," under the
paragraph named "Meeting of Creditors."
Deadlines to File a Proof of Claim
For all creditors (except a governmental unit): 90 days after the date first set for the meeting ofcreditors.
For a governmental unit: 180 days after the date of the order for relief.
See additional information on the page of this Notice entitled "Explanations," under the paragraphnamed "Claims." All claims should be mailed to the Claims Agent listed below. If you wish to receivean acknowledgment of the receipt of your claim, you must provide an extra copy of the claim and a self-addressed stamped envelope.
Mail or hand deliver completed Proof of Claim forms to the Claims Agent for Debtor at:
Ahern Claims Processingc/o Kurtzman Carson Consultants LLC
2335 Alaska AveEl Segundo, CA 90245
DO NOT FILE PROOF OF CLAIM FORMS WITH THE COURT.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 14 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 3 of 4
Creditors May Not Take Certain Actions:
In most instances, the filing of the bankruptcy case automatically stays certain collection and otheractions against the debtor and the property. Under certain circumstances, the stay may be limited to 30days or not exist at all, although the debtor can request that the court impose a stay. If you attempt tocollect a debtor or take other action in violation of the Bankruptcy Code, you may be penalized. Consulta lawyer to determine your rights in this case.
Address of the Bankruptcy Clerk's Office:
U.S. Bankruptcy Court300 Booth StreetReno, NV 89509
Telephone Number: (775) 326-2100
EXPLANATIONS
Filing of Chapter 11
A bankruptcy case under Chapter 11 of the Bankruptcy Code (title 11, United StatesBankruptcy Case Code) has been filed in this court by or against the debtor(s) listed in this Notice, and an
order for relief has been entered. Chapter 11 allows a debtor to reorganize or liquidatepursuant to a plan. A plan is not effective unless confirmed by the court. You may besent a copy of the plan and a disclosure statement telling you about the plan, and youmight have the opportunity to vote on the plan. You will be sent notice of the date of theconfirmation hearing, and you may object to the confirmation of the plan and attend theconfirmation hearing. Unless a trustee is serving, the debtor will remain in possession ofthe debtor's property and may continue to operate any business.
Legal Advice The staff of the bankruptcy clerk's office cannot give legal advice. Consult a lawyer todetermine your rights in this case.
Creditors Generally Prohibited collection actions are listed in Bankruptcy Code § 362. Common examples ofMay Not Take Certain prohibited actions include contacting the debtor by telephone, mail, or otherwise toActions demand repayment; taking actions to collect money or obtain property from the debtor;
repossessing the debtor's property; and starting or continuing lawsuits or foreclosures.Under certain circumstances, the stay may be limited to 30 days or not exist at all,although the debtor can request the court to extend or impose a stay.
Meeting of Creditors A meeting of creditors is scheduled for the date, time, and location listed in this Notice.The debtor's representative must be present at the meeting to be questioned under oathby the trustee and by creditors. Creditors are welcome to attend, but are not required todo so. The meeting may be continued and concluded under a later date specified in anotice filed with the court. The court, after notice and a hearing, may order that the UnitedStates trustee not convene the meeting if the debtor has filed a plan for which the debtorsolicited acceptances before filing the case.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 15 of 35
A Proof of Claim is a signed statement describing a creditor's claim. If a Proof of Claimform is not included with this Notice, you can obtain one at any bankruptcy clerk's officeor by downloading a Proof of Claim from the court's website at www.nvb.uscourts.gov. You may look at the schedules that have been or will be filed at the bankruptcy clerk'soffice (or view electronically at www.nvb.uscourts.gov and click on PACER). If yourclaim is scheduled and is not listed as disputed, contingent, or unliquidated, it will beallowed in the amount scheduled unless you filed a Proof of Claim or you are sent furthernotice about the claim. Whether or not your claim is scheduled, you are permitted to file aProof of Claim. If your claim is not listed at all, or if your claim is listed as disputed,contingent, or unliquidated, then you must file a Proof of Claim by the "Deadline to File aProof of Claim" found on this Notice or you might not be paid any money on your claimagainst the debtor in the bankruptcy case and may be unable to vote on a plan. A securedcreditor retains rights in its collateral regardless of whether that creditor files a Proof ofClaim. Filing a Proof of Claim submits the creditor to the jurisdiction of the bankruptcycourt, with consequences a lawyer can explain. For example, a secured creditor who filesa Proof of Claim may surrender important nonmonetary rights, including the right to a jurytrial. Filing Deadline for a Creditor with a Foreign Address: The deadlines for filingclaims set forth in this Notice apply to all creditors. If this Notice has been mailed to acreditor at a foreign address, the creditor may file a motion requesting the court to extendthe deadline.
Claims
Confirmation of chapter 11 plan may result in discharge of debts, which may include all orpart of your debt. See Bankruptcy Code § 1141(d). A discharge means that you maynever try to collect the debt from the debtor, except as provided for in the plan.
Discharge of Debts
Unless otherwise noted, any paper that you file in this bankruptcy case should be filed atthe bankruptcy clerk's office at the address listed in this Notice. You may inspect allpapers filed, including the debtor's property and debts and the list of the property claimedas exempt, at the bankruptcy clerk's office.
Bankruptcy Clerk'sOffice
Creditor with aForeign Address
Consult a lawyer familiar with United States bankruptcy law if you have any questionsregarding your rights in this case.
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 4 of 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 16 of 35
EXHIBIT3
EXHIBIT3
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 17 of 35
CT Corporafon Service of ProcessTransmittal08/29/2012
Cli11`11i11"11iiiiii ii2111111i7111i 211111111111111 11111111111 1TO: Howard Brown
Ahern Rentals1401 Mineral AvenueLas Vegas, NV 89106
RE: Process Served in Texas
FOR: Ahern Rentals, Inc. (Domestic State: NV)
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION: Bob Spaug and Judy Spaugh, etc., Pltfs. vs. Jon Wheeler and Ahern Rentals, Inc.,Dfts.
DOCUMENT(S) SERVED: Citation, Return, Original Petition
COURT/AGENCY: 199th Judicial District Court, Collin County, TXCase # 199029692012
NATURE OF ACTION: Personal Injury - Vehicle Collision - On or about August 13, 2010
ON WHOM PROCESS WAS SERVED: C T Corporation System, Dallas, TX
DATE AND HOUR OF SERVICE: By Process Server on 08/29/2012 at 12:20
JURISDICTION SERVED : Texas
APPEARANCE OR ANSWER DUE: By 10:00 a.m. on the Monday next following the expiration of 20 days
ATTORNEY(S) I SENDER(S): Lester VanceLester W. Vance, LLC1303 N. Sam Rayburn FreewaySherman, TX 75090903-892.2529
ACTION ITEMS: SOP Papers with Transmittal, via Fed Ex 2 Day , 59968838
SIGNED: C T Corporation SystemPER: Amber CarrouthADDRESS: 350 North St Paul Street
Suite 2900Dallas, TX 75201
TELEPHONE: 214-932-3601
Page 1 of 1 / TH
Information displayed on this transmittal is for CT Corporation'srecord keeping purposes only and is provided to the recipient forquick reference. This Information does not constitute a Legalopinion as to the nature of action, the amount of damages, theanswer date, or any information contained In the documentsthemselves. Recipient Is responsible for interpreting saiddocuments and for taking appropriate action. Signatures oncertified mail receipts confirm receipt of package only, notcontents.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 18 of 35
1
THE STATE OF TEXAS
CIVIL CITATION
CASE NO.199-02969-2012
Bob Spaugh, and wife Judy Spaugh Vs. Jon Wheeler, In the 199th District Courtand Ahern Rentals, Inc
Of Collin County, Texas
NOTICE TO DEFENDANT: "You have been sued. You may employ an attorney. If you or your attorneydo not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday nextfollowing the expiration of twenty days after you were served this citation and petition, a default judgmentmay be taken against you."
TO: Ahern Rentals Incby serving its registered agent CT Corporation System350 N St Paul Street Suite 2900Dallas TX 75201-4234, Defendant
GREETINGS: You are commanded to appear by filing a written answer to Plaintiff's Original Petition ator before ten o'clock A.M. on the Monday next after the expiration of twenty days after the date of service ofthis citation before the Honorable 199th District Court of Collin County, Texas at the Courthouse of saidCounty in McKinney, Texas.
Said Plaintiff's Petition was filed in said court, by Lester W Vance 1303 North Sam Rayburn FreewaySherman TX 74701 (Attorney for Plaintiff or Plaintiffs), on August 13, 2012, in this case, numbered 199-02969-2012 on the docket of said court.
The natures of Plaintiff's demand is fully shown by a true and correct copy of Plaintiff's Original Petitionaccompanying this citation and made a part hereof
Issued and given under my hand and seal of said Court at McKinney, Texas, on this the 28th day of August,2012.
ATTEST: Andrea Stroh Thompson, District ClerkCollin County, Texas
Collin County Courthouse2100 Bloomdale Road
McKinney, Texas 75071972-548-432 Metro 972-424-1460 ext. 4320
The law prohibits the Judge and the clerks from giving legal advice, soplease do not seek such advice. Any questions you have should bedirected to an attorney.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 19 of 35
Fled12 August 10 P4:43Mckes Stroh Thar.'District Clark
i.Collin District Cin,JvviCAUSE NO. IV
§ IN THE Ed DISTRICT COURT
§ OF
§ CO IN COUNTY, TEXAS
BOB SPAUGH, and wifeJUDY SPAUGH
Plaintiffs,
Vs.
JON WHEELER, and AHERN RENTALSINC.,
Defendants.
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, BOB SPAUGH, and wife JUDY SPAUGH, hereinafter referred to as
"Plaintiffs", complaining of, Jon Wheeler, Ahern Rentals Inc., and for cause of action would
respectfully show unto the Court as follows:
1. Discovery is intended to be conducted under Level 3 of TEXAS RULES OF CIVIL
PROCEDURE 190.
A.
PARTIES
2. Plaintiff, Bob Spaugh, and wife, Judy Spaugh are individuals and residents of Denison,
Grayson County, Texas.
3. Defendant, Jon Wheeler (hereafter referred to as "Defendant Wheeler"), is an individual
and a resident of Collin County, Texas, and may be served with process at his place of
employment, Ahern Rentals, Inc., 6301 W. University Drive, McKinney, Collin County,
Texas 75071-7871.
4. Defendant, Ahern Rentals, Inc. (hereafter referred to as "Defendant Ahern Rentals") is a
company incorporated under the laws of the. State of Texas and having its principal place
PLAINTIFFS ORIGINAL PETITION Page 1
11
iiii
it1fiii
ji
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 20 of 35
of business in Texas and may be served with process by serving its registered agent, CT
Corporation System, 350 N. St. Paul Street, Suite 2900, Dallas, Texas 75201-4234.
B.
JURISDICTION AND VENUE
5. The Court has jurisdiction over Defendant because Defendant Wheeler is a Texas
resident. The Court has jurisdiction over the amount in controversy because the damages
are within the jurisdictional limits of the Court.
6. Venue is comet because all actions made the basis of this lawsuit occurred in Collin
County, Texas.
7. The Court has jurisdiction over Defendant Ahern Rentals because Defendant Ahern
Rentals is doing business in Texas.
8. All conditions precedent to recovery have been performed or have occurred.
C.
BACKGROUND FACTS
9. On or about . August 13, 2010, Plaintiff Bob Spaugh, the driver of a 2010 Toyota Tundra, was
struck by Defendant Wheeler while stopped in the 101 block of W. Virginia Parkway in
McKinney, Coffin County, Texas (the "Collision"). At the time of the accident, Defendant
Wheeler was driving a 2007 Ford truck, owned by Ahem Rentals. A copy of the McKinney
Police Department Event Report is attached hereto as Exhibit "A".
10. Plaintiff incorporates the preceding paragraphs as if restated in full. Plaintiff brings this suit to
recover damages for personal injuries sustained by the Plaintiff in a collision in Collin County,
Texas.
PLAINTIFF'S ORIGINAL. PETITION Page 2
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 21 of 35
D.
CAUSES OF ACTION AGAINST
11, Plaintiff incorporates the preceding paragraphs as if restated in full. Plaintiff will show
that on the occasion in question, Defendant Wheeler failed to use ordinary care by
various acts and omissions, including the following, each of which, singularly or in
combination with others, was a proximate cause of the occurrence in question:
a. In failing to maintain a proper lookout and attention;b. In failing to timely apply the brakes;c. In failing to stop in observance of traffic conditions;d. In driving said vehicle at a rate of speed which was greater thin that which
an ordinary prudent person would have driven under the same of similarcircumstances;
e. In failing to maintain said vehicle in a proper and safe condition;f. In failing to keep the vehicle under proper control;g. In failing to take proper evasive action; andh. In failing to maintain a proper and safe distance between vehicles.
11 Each of such acts or omissions, singularly or in combination with others, constitute
negligence on the part of Defendant. Wheeler which proximately caused the injuries and
damages which Plaintiff now suffers.
E.
VICARIOUS LIABILITY/RESPONDEAT SUPERIOR
13. All allegations and causes of action above are incorporated into this cause of action by
reference.
14. Based upon information provided by Defendant Wheeler, at the time of the Collision
made the basis of this lawsuit, Defendant Wheeler was an employee of Defendant Ahem
Rentals.
15. Based upon information provided by Defendant Wheeler, at the time of the Collision,
Defendant Wheeler was acting within the course and scope of his employment with
Defendant Ahem Rentals.
PLAINTIFF'S ORIGINAL PETITION Page 3
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 22 of 35
16. The acts of Defendant Wheeler, an employee, were performed while in the employment
of Defendant Ahem Rentals, to accomplish the objective for which the employee was
hired, and within the course and scope of that employment or within the authority
delegated to the employee.
17. Based upon information provided by Defendant Wheeler, at the time of the Collision
made the basis of this lawsuit, Defendant Ahern Rentals directed the operation of the
truck and/or owned, possessed, controlled and/or benefitted by Defendant Wheeler's
operation of the truck at the time and on the occasion complained of herein,
18. Based upon information provided by Defendant Wheeler, at the time of the Collision,
Defendant Wheeler was acting in and for the benefit of Defendant Ahem Rentals.
19. Based upon information provided by Defendant Wheeler, at the time of the Collision,
Defendant Wheeler was acting at the direction, instruction and authority of Defendant
Ahern Rentals.
20. Defendant Ahern Rentals is vicariously liable for the acts and/or omissions of Defendant
Wheeler for the causes of action above.
21. Defendant Ahern Rentals by either words or conduct, held out Defendant Wheeler as
having the authority to act on the behalf of Defendant Ahem Rentals' behalf.
F.NEGLIGENT HIRING, TRAINING, AND RETENTION
22. All allegations and causes of action above are incorporated into this cause of action by
reference. Defendant Ahern Rental, Inc. by either words or conduct, held out Defendant
Wheeler as having the authority to act on the Defendant's behalf.
11
11
PLAINTIFF'S ORIGINALPET7'I`ION Page 4
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 23 of 35
G.
NEGLIGENT ENTRUSTMENT
23. All allegations and causes of action above are incorporated into this cause of action by
reference.
24. At the time and on the occurrence in question, Defendant Ahern Rentals negligently
entrusted their vehicle to a person they knew or should have known did not possess the
adequate skills or reason to operate a vehicle. Said acts and/or omissions, singularly or in
combination with others, constitute negligence, which was the proximate cause of the
occurrence made the basis of this lawsuit and Plaintiffs' injuries and damages.
H.
DAMAGES FOR PLAINTIFF
25. As a direct and proximate result of the occurrence made the basis of this law
Plaintiff, was caused to the following:
A. Reasonable medical care and expenses in the past. These expenses were incurredby Plaintiff for the necessary care and treatment of the injuries resulting from theaccident complained of herein and such charges are reasonable and were usualand customary charges for such services in the county and state in which theywere incurred:
DATES PROVIDER AMOUNT EXHIBIT08123-08/31/2010 Olin Chiropractic $ 850.00 B08/20-10/06/2010 Dr. John Prudich $ 646.0009/16-09/08/2011 Dr. Richard Brown $ 709.4909/01/2011 Up & Open Imaging $ 709.4910/06/2011 Dr. Richard Marks 6,595.00
TOTAL $ 8 85.49
Plaintiff specifies the following damages (B) - (K), but leaves the amount to be awardedas reasonable compensation to the discretion of the jury:
B. Reasonable and necessary medical care and expenses which will in all reasonableprobability be incurred in the future;
PLAINTIFFS ORIGINAL PETTiTION
Page 5
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 24 of 35
1, the value of the contract of insurance,
2. compensatory damages for pecuniary loss,
3. out of pocket damages,
4. loss of income,
5. mental anguish
6. contract-damages (i.e. consequential and/or incidentaland/or fiduciary), including loss of income over and aboveshort term disability, and loss of health insurance benefits;
Prejudgment and post judgment interest.
d. Court costs;
e. Additional damages including but not limited to treble damages and
exemplary damages and others as outlined above;
f. Such other and further relief, both general and special, at la and in
equity, to which Plaintiff may show himself justly entitled.
Respectfully submitted,
By: Leger VadAce,
Lester W. Vance, LLC
Texas Bar No. 20476250
1303 N. Sam Rayburn Freeway
Sherman, Texas 75090
Tel. (903)892-2529
Fax (903)892-3052
ATTORNEY FOR PLAINTIFF
PLAINTIFF'S ORIGINAL PETITION Page 7
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 25 of 35
PLAINTIFFS HEREBY DEMAND TRIAL BY JURY
FOR THE COURTS EYES ONLY
PLAINTIFF'S ORIGINAL PETITION
Page 8
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 26 of 35
EXHIBIT4
EXHIBIT4
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 27 of 35
GORDON SILVER
Date:
To:
Facsimile No.:
Telephone No.:
From:
File No.:
Subject:
Number of pagesincl. cover page:
Facsimile Transmittal Sheet
September 7, 2012
Lester W. Vance, EsqLester W. Vance, LLC1-903-892-3052
Kirk D. Homeyer, Esq.
104500-002
Ahern Rentals, Inc., Chapter 11 Bankruptcy (Case No.: 11-53860-BTB)
7
Please see attached q Per your request q For your reviewq Please review, sign and return q Please acknowledge receipt q For your information or records
Message: Original will follow via first class mail.
The following pages are confidential communications intended only for the person or persons named above. If you are not that person, or theemployee or agent responsible for the delivery of the following information, you are hereby notified that any dissemination, distribution or copyingof this communication is prohibited. If you have received this communication In error, please immediately notify us by telephone and return theoriginal message to us by mail. We will gladly reimburse your telephone and postage expenses.
104500-00211654725
3960 HowARD HUGHES PARKWAY, NINTH FLOOR I LAS VEGAS, NEVADA 89169T: 702.796.5555 1 F: 702.369.2666
gordonsilver.com
LAS VEGAS I PHOENIX I RENO I WASHINGTON, D.C.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 28 of 35
GORDON SILVER
September 7, 2012
VIA FACSIMILE: 903-892-3052AND FIRST-CLASS MAIL
Lester W. Vance, Esq.Lester W. Vance, LLC1303 N. Sam Rayburn FreewaySherman, Texas 75090
Re: Ahern Rentals, Inc.Case No. 11-53860-BTB
Dear Mr. Vance:
The law firm of Gordon Silver represents Ahern Rentals, Inc. ("Ahern"). On December22, 2011, Ahern filed a voluntary petition for bankruptcy relief under Chapter 11 of Title 11 ofthe United States Code (the "Bankruptcy Code") in the United States Bankruptcy Court for theDistrict of Nevada (the "Bankruptcy Court"), Case No. 11-53860-BTB (the "Bankruptcy Case").Ahern is currently debtor and debtor-in-possession in the Bankruptcy Case. Enclosed herewith isa copy of the Notice of Chapter 11 Bankruptcy Cases, Meeting of Creditors, and Deadlines.
The automatic stay imposed by section 362 of the Bankruptcy Code prohibits "thecommencement or continuation, including the issuance or employment of process, of a judicial,administrative, or other action or proceeding against the debtor that was or could have beencommenced" before the debtor filed for bankruptcy protection. 11 U.S.C. § 362(a)(1). Thecommencement of an action against a debtor during bankruptcy proceedings is a violation of theautomatic stay and void as a matter of law.
I am in receipt of the petition you filed against Ahern, among others, on behalf of yourclients, Bob and Judy Spaugh, on August 10, 2012, in the 199th District Court of Collin County,Texas, Case No. 199-02969-2012. As the filing of the petition against Ahern directlyviolated the automatic stay imposed by section 362 of the Bankruptcy Code, the complaintwith respect to Ahern is void and must be dismissed. Please provide proof that this actionhas been dismissed or that Ahern has been dismissed on or before close of business onSeptember 14, 2012.
Should you fail to comply with the foregoing request, I will have no other alternative butto seek an order to show cause from the Bankruptcy Court why you should not be held incontempt for intentionally violating the automatic stay.
3960 HOWARD HUGHES PARKWAY, NINTH FLOOR I LAS VEGAS, NEVADA 89169T: 702.796.5555 I F: 702.369.2666
104500-002/1653880 gordonsilver.com
LAS VEGAS I PHOENIX I RENO I WASHINGTON, D.C.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 29 of 35
Gordon SilverAttorneys and Counselors at Law
Lester W. Vance, Esq.September 7, 2012Page 2
Please do not hesitate to contact me if you have any questions or wish to discuss thismatter further.
Sincerely,
KDH:jghEnclosure
cc: Thomas H. Fell, Esq. (via e-mail)Brian G. Ritz (via e-mail)Sarah J. Fisher (via e-mail)
104500-002/1653880
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 30 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 1 of 4
IN THE UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
In reChapter 11
AHERN RENTALS, Inc,
dba AHERN HEAVY EQUIPMENT
Case No.: BK-N-11-53860dba RHINO'S TURN EQUIPMENTdba SUPER GRIP WEST
Tax I.D. No. 88-0381960
Debtor. /
Attorney for Debtor(s):Thomas H. FellGordon Silver
3960 Howard Hughes Parkway, 9th FloorLas Vegas, NV 89169
Telephone Number: (702) 796-5555
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NOTICE OF CHAPTER 11 BANKRUPTCY CASES, MEETING OFCREDITORS, AND DEADLINES
A chapter 11 bankruptcy case was filed concerning the debtor(s) listed above on December 22, 2011.
You may be a creditor of the debtor. This notice lists important deadlines. You may want to consultan attorney to protect your rights. All documents filed in this case may be viewed at the bankruptcyclerk's office at the address listed on this Notice. The dockets and imaged case documents may also beviewed electronically at htto://ecf.nvb.uscourts.qov/ under the case: AHERN RENTALS, Inc., casenumber 11-53860 To register for a PACER login and password, call 1-800-676-6856 or go online athttp://wvvw.pacer.gov.
NOTE: The staff of the bankruptcy clerk's office cannot give legal advice. See additional informationenclosed on the page of this Notice entitled "Explanations."
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 31 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 2 of 4
Meeting of Creditors
DATE: January 30, 2012TIME: 4:00 PM
LOCATION: C. Clifton Young Federal Building and U.S. Courthouse300 Booth Street, Room 3024, Reno, NV 89509
Creditor with a Foreign Address:See additional information enclosed on the page of this Notice entitled "Explanations," under the
paragraph named "Meeting of Creditors."
Deadlines to File a Proof of Claim
For all creditors (except a governmental unit): 90 days after the date first set for the meeting ofcreditors.
For a governmental unit: 180 days after the date of the order for relief.
See additional information on the page of this Notice entitled "Explanations," under the paragraphnamed "Claims." All claims should be mailed to the Claims Agent listed below. If you wish to receivean acknowledgment of the receipt of your claim, you must provide an extra copy of the claim and a self-addressed stamped envelope.
Mail or hand deliver completed Proof of Claim forms to the Claims Agent for Debtor at:
Ahern Claims Processingc/o Kurtzman Carson Consultants LLC
2335 Alaska AveEl Segundo, CA 90245
DO NOT FILE PROOF OF CLAIM FORMS WITH THE COURT.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 32 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 3 of 4
Creditors May Not Take Certain Actions:
In most instances, the filing of the bankruptcy case automatically stays certain collection and otheractions against the debtor and the property. Under certain circumstances, the stay may be limited to 30days or not exist at all, although the debtor can request that the court impose a stay. If you attempt tocollect a debtor or take other action in violation of the Bankruptcy Code, you may be penalized. Consulta lawyer to determine your rights in this case.
Address of the Bankruptcy Clerk's Office:
U.S. Bankruptcy Court300 Booth StreetReno, NV 89509
Telephone Number: (775) 326-2100
1
2
3
4
5
6
7
8 EXPLANATIONS
Filing of Chapter 11 A bankruptcy case under Chapter 11 of the Bankruptcy Code (title 11, United StatesBankruptcy Case Code) has been filed in this court by or against the debtor(s) listed in this Notice, and an
order for relief has been entered. Chapter 11 allows a debtor to reorganize or liquidatepursuant to a plan. A plan is not effective unless confirmed by the court. You may besent a copy of the plan and a disclosure statement telling you about the plan, and youmight have the opportunity to vote on the plan. You will be sent notice of the date of theconfirmation hearing, and you may object to the confirmation of the plan and attend theconfirmation hearing. Unless a trustee is serving, the debtor will remain in possession ofthe debtor's property and may continue to operate any business.
Legal Advice The staff of the bankruptcy clerk's office cannot give legal advice. Consult a lawyer todetermine your rights in this case.
Creditors Generally Prohibited collection actions are listed in Bankruptcy Code § 362. Common examples ofMay Not Take Certain prohibited actions include contacting the debtor by telephone, mail, or otherwise toActions demand repayment; taking actions to collect money or obtain property from the debtor;
repossessing the debtor's property; and starting or continuing lawsuits or foreclosures.Under certain circumstances, the stay may be limited to 30 days or not exist at all,although the debtor can request the court to extend or impose a stay.
Meeting of Creditors A meeting of creditors is scheduled for the date, time, and location listed in this Notice.The debtor's representative must be present at the meeting to be questioned under oathby the trustee and by creditors. Creditors are welcome to attend, but are not required todo so. The meeting may be continued and concluded under a later date specified in anotice filed with the court. The court, after notice and a hearing, may order that the UnitedStates trustee not convene the meeting if the debtor has filed a plan for which the debtorsolicited acceptances before filing the case.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 33 of 35
Case 11-53860-btb Doc 40 Entered 12/23/11 15:52:33 Page 4 of 4
Claims A Proof of Claim is a signed statement describing a creditor's claim. If a Proof of Claimform is not included with this Notice, you can obtain one at any bankruptcy clerk's officeor by downloading a Proof of Claim from the court's website at www.nvb.uscourts.gov.You may look at the schedules that have been or will be filed at the bankruptcy clerk'soffice (or view electronically at www.nvb.uscourts.gov and click on PACER). If yourclaim is scheduled and is not listed as disputed, contingent, or unliquidated, it will beallowed in the amount scheduled unless you filed a Proof of Claim or you are sent furthernotice about the claim. Whether or not your claim is scheduled, you are permitted to file aProof of Claim. If your claim is not listed at all, or if your claim is listed as disputed,contingent, or unliquidated, then you must file a Proof of Claim by the "Deadline to File aProof of Claim" found on this Notice or you might not be paid any money on your claimagainst the debtor in the bankruptcy case and may be unable to vote on a plan. A securedcreditor retains rights in its collateral regardless of whether that creditor files a Proof ofClaim. Filing a Proof of Claim submits the creditor to the jurisdiction of the bankruptcycourt, with consequences a lawyer can explain. For example, a secured creditor who filesa Proof of Claim may surrender important nonmonetary rights, including the right to a jurytrial. Filing Deadline for a Creditor with a Foreign Address: The deadlines for filingclaims set forth in this Notice apply to all creditors. If this Notice has been mailed to acreditor at a foreign address, the creditor may file a motion requesting the court to extendthe deadline.
Discharge of Debts Confirmation of chapter 11 plan may result in discharge of debts, which may include all orpart of your debt. See Bankruptcy Code § 1141(d). A discharge means that you maynever try to collect the debt from the debtor, except as provided for in the plan.
Bankruptcy Clerk's Unless otherwise noted, any paper that you file in this bankruptcy case should be filed atOffice the bankruptcy clerk's office at the address listed in this Notice. You may inspect all
papers filed, including the debtor's property and debts and the list of the property claimedas exempt, at the bankruptcy clerk's office.
Creditor with a Consult a lawyer familiar with United States bankruptcy law if you have any questionsForeign Address regarding your rights in this case.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 34 of 35
*********************
*** TX REPORT ***
*********************
TRANSMISSION OK
TX/RX NO
RECIPIENT ADDRESS
DESTINATION ID
ST. TIME
TIME USE
PAGES SENT
RESULT
3935
19038923052
09/07 09:50
03'25
7
OK
09/07/2012 09:53 FAX
RI 001
GORDON g SILVER
Facsimile Transmittal Sheet
Date:
To:
Facsimile No.:
Telephone No.:
Fnrcolm. cover page:
File No.:
Subject:
Number of pagesi
September 7, 2012
Lester W. Vance, EsqLester W. Vance, LLC1-903-892-3052
Kirk D. Homeyer, Esq.
104500-002
Ahern Rentals, Inc., Chapter 11 Bankruptcy (Case No.: 11-53860-BTE)
7
rig Please see attached
q Per your request qI For your reviewq Please review, sign and return q Please acknowledge receipt q For your information or records
Message: Original will follow via first class mail.
Case 11-53860-btb Doc 1162-1 Entered 10/05/12 18:09:57 Page 35 of 35