Case CSS Doc 866 Filed 12/12/18 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) Chapter 11

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1 Case CSS Doc 866 Filed 12/12/18 Page 1 of 5 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: CHARMING CHARLIE HOLDINGS INC., et al, 1 Reorganized Debtors. Chapter 11 Case No (CSS Re: D.I. 756, 757 & 847 Hearing Date: 12/17/18 at 10 a.m. (ET Response Deadline: Extended by Agreement to 12/12/18 at 4 p.m. (ET PRELIMINARY LIMITED OBJECTION BY LLOYD S UNDERWRITERS/TOKIO MARINE KILN SYNDICATES LIMITED, AS ASSIGNEE OF, INTER ALIA, CLAIMS FILED BY FRAGMENTS HOLDING LLC TO: A: REORGANIZED DEBTORS FIRST OMNIBUS OBJECTION TO CERTAIN PROOFS OF CLAIM (NON-SUBSTANTIVE B: THE REORGANIZED DEBTORS SECOND OMNIBUS OBJECTION TO CERTAIN PROOFS OF CLAIM (SUBSTANTIVE, AND C: MOTION OF REORGANIZED DEBTORS FOR ENTRY OF AN ORDER ISSUING A FINAL DECREE AND CLOSING THE CHAPTER 11 CASES Lloyd s Underwriters/Tokio Marine Kiln Syndicates Limited, as assignee of, inter alia, claims filed by Fragments Holding LLC (in such capacity, the Claimant, hereby submits this preliminary limited objection to: (a Reorganized Debtors First Omnibus Objection to Certain Proofs of Claim (Non-Substantive [D.I. 756] (the Wrong Debtor Claim Objection, (b Reorganized Debtors Second Omnibus Objection to Certain Proofs of Claim (Substantive [D.I. 757] (the Claim Objection and (c Motion of Reorganized Debtors for Entry of an Order Issuing a Final Decree and Closing the Chapter 11 Cases [D.I. 847], and respectfully states as follows: 1 The Reorganized Debtors in these cases, along with the last four digits of their respective federal taxpayer ID numbers, are Charming Charlie Canada, LLC (0693; Charming Charlie Holdings Inc. (6139; Charming Charlie International LLC (5887; Charming Charlie LLC (0263; Charming Charlie Manhattan LLC (7408; Charming Charlie USA, Inc. (3973; and Poseidon Partners CMS, Inc. (3302. The Debtors address is 5999 Savoy Dr., Houston, TX { }

2 Case CSS Doc 866 Filed 12/12/18 Page 2 of 5 Relevant Background 1. Fragments Holding LLC ( Fragments filed Claim No. 81 in the amount of $708, of which $108, is entitled to an expense of administration (the 503(b(9 Claim. 2. The Claim Objection seeks to reduce or reclassify $99, of the 503(b(9 Claim on the allegation that (i Claimant holds a pre-petition deposit from the Debtors that should be applied to satisfy the 503(b(9 Claim, and (ii the books and records of the Debtors reflect a different amount of goods received in the 20-day period preceding the Petition Date. Below is the chart from the proposed order to the Claim Objection with respect to Fragments claim: Name of Seq. Claimant No. 81 Fragments Holding LLC Name of Debtor Charming Charlie LLC Claim No. Claim Amount 81 $108, Admin. $600, GUC Claim Classification Status Modified Classificati on Status Admin/GUC $8, (b(9 $650, GUC Relief Requested by Debtors Claimant holding $50,000 deposit from Check No dated December 4, 2017, reducing administrative claim. Additionally, Debtors' records reflect only $58, in goods received by the Debtors in the 20-day period immediately proceeding their bankruptcy filings. After setting off deposit against administrative claims, remaining balance GUC. { } 2

3 Case CSS Doc 866 Filed 12/12/18 Page 3 of 5 3. Claimant disputes Debtors assertion. The Debtors received $108, in goods in the 20 period preceding their bankruptcy filings. Claimant denies it is holding any deposit. The check received by Fragments from the Debtors was applied pre-petition to satisfy outstanding invoices. Claimant also disputes any contention by the Debtors that they clearly and expressly directed that the check be applied to Fragments most recent invoices. Such direction was never given, so Fragments was free to apply the check to its oldest outstanding invoices. Although the parties have devoted substantial time and effort to consensually resolve the Claim Objection they are at an impasse. There remain open legal and factual issues and discovery is required. 4. The Wrong Debtor Claim Objection seeks to assert the 503(b(9 Claim against Charming Charlie, LLC instead of Charming Charlie Holdings, Inc. The parties have focused their efforts on the Claim Objection, so open factual issues remain with respect to the Wrong Debtor Claim Objection and discovery is needed. 5. The Motion for Final Decree seeks to close these cases, on the basis, inter alia that [t]he Debtors anticipate all matters relating to Charming Charlie Holdings Inc., Charming Charlie LLC, and Charming Charlie USA, Inc. will be resolved at or prior to the hearing on this Motion. However, to the extent any matters remain pending as to one or more of the Debtors, the Debtors respectfully request that this Court enter an order granting this Motion in part and adjourning the Motion for further consideration as to the remaining Debtors. Motion for Final Decree at 10. The Wrong Debtor Claim Objection and Claim Objection remain open. Relief Requested 6. Claimant requests: (i the hearing on the Wrong Debtor Claim Objection and the Claim Objection be adjourned; (ii the Court enter a scheduling order providing for discovery, and { } 3

4 Case CSS Doc 866 Filed 12/12/18 Page 4 of 5 (iii any final decree be modified to allow the Wrong Debtor Claim Objection and Claim Objection to be adjudicated by this Court. Basis for Relief 7. Fragments sent the Debtors an , attached hereto as Exhibit A, indicating that the check it received would be applied to the oldest invoice. Fragments advises they did not receive a response from the Debtors and applied the check that way. Fragments holds no deposit. 8. The law is settled that, absent clear instructions to the contrary, a creditor can apply a payment in any manner it wants. See Federal Land Bank of St. Louis v. Wilson, 719 F.2d 1367, 1371 (8th Cir ( A creditor can, absent clear direction otherwise, apply a payment from a debtor to any debt he chooses to maximize his security. ; Elysian Fed. Savs. Bank v. Tednick Corp., 1994 WL , at *2 (N.D.N.Y. Oct. 14, 1994; In re Corradini, 276 B.R. 571, 576 (Bankr. W.D. Mich ( The creditor has wide discretion and may decide, for instance, to apply the payment to satisfy the oldest debt or the debt that is unsecured rather than secured. ; In re Custer, 88 B.R. 573, 576 (Bankr. D. Conn. 1988; Matter of Goehring, 23 B.R. 323, 325 (Bankr. W.D. Mich. 1982, 9. The Reorganized Debtors may contest Claimant s position as a matter of law and fact. 10. Another contested factual issue is the date certain goods were physically received by the Debtors. This requires discovery to determine, inter alia, whether certain carriers were acting as Fragments or the Debtors carriers. 11. Further, discovery is needed regarding which Debtor is responsible for the 503(b(9 Claim. { } 4

5 Case CSS Doc 866 Filed 12/12/18 Page 5 of The need for discovery should come as no surprise to the Reorganized Debtors, as Claimant previously advised that, if the matter is not settled, discovery will be needed. 13. The final decree should be modified to keep these cases open pending the resolution of the Wrong Debtor Claim Objection and the Claim Objection. Prior Requests WHEREFORE, Claimant respectfully requests that the Court adjourn the hearing on the Wrong Debtor Claim Objection and Claim Objection, enter a discovery scheduling order submitted on consent by the parties, modify any final decree to keep these cases open for purposes of adjudicating the Wrong Debtor Claim Objection and Claim Objection, and grant such other and further relief as is just and proper. Dated: December 12, 2018 Wilmington, Delaware THE ROSNER LAW GROUP LLC /s/ Scott J. Leonhardt Scott J. Leonhardt (DE # N. Market Street, Suite 810 Wilmington, DE Leonhardt@teamrosner.com Counsel to the Claimant { } 5

6 Case CSS Doc Filed 12/12/18 Page 1 of 4 Exhibit A {Exhibit A. }

7 Case CSS Doc Filed 12/12/18 Page 2 of 4 From: Gail Admoni Sent: Tuesday, December 5, :23 AM To: AP Merchandise <AP.merchandise@charmingcharlie.com> Cc: Dianne Martinez <Dianne.Martinez@charmingcharlie.com>; Al Bellon <Al.Bellon@charmingcharlie.com> Subject: RE: check Hi Miroslava, I see that nothing was applied to any specific invoices. Can you please apply as follows so our books match?: Type Date Num P. O. # Due Date Open Balance Amount Gross paid Discount Balance open Invoice 07/31/ /09/2017 3, , Full Invoice 07/31/ /09/2017 1, , Full Invoice 07/31/ /09/2017 2, , Full Invoice 07/31/ /09/2017 3, , Full Invoice 07/31/ /09/2017 4, , Full Invoice 07/31/ /09/2017 8, , Full Invoice 07/31/ /09/ Full Invoice 07/31/ /09/2017 4, , Full Invoice 07/31/ /09/2017 2, , Full Invoice 07/31/ /09/2017 5, , Full Invoice 07/31/ /09/2017 1, , Full Invoice 07/31/ /09/ Full Invoice 07/31/ /09/2017 4, , Full Invoice 07/31/ /09/2017 5, , Full Invoice 07/31/ /09/2017 9, , partial 3, , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

8 Case CSS Doc Filed 12/12/18 Page 3 of 4 Gail Admoni Controller gadmoni@fragments.com Ext. 246 From: AP Merchandise [mailto:ap.merchandise@charmingcharlie.com] Sent: December 04, :58 PM To: Gail Admoni <gadmoni@fragments.com> Subject: RE: check Hi Gail Here is the check information for your reference. Sincerely Miroslava Marlin 5999 Savoy Drive, Houston, Texas charmingcharlie.com From: Gail Admoni [mailto:gadmoni@fragments.com] Sent: Monday, December 4, :40 AM To: Dianne Martinez <Dianne.Martinez@charmingcharlie.com> Cc: AP Merchandise <AP.merchandise@charmingcharlie.com>; Al Bellon <Al.Bellon@charmingcharlie.com> Subject: check Hi Dianne, I understand that a check for about 50K went out last week. Can you please send me a check copy and tracking info? Thanks, 2

9 Case CSS Doc Filed 12/12/18 Page 4 of 4 Gail Admoni Controller gadmoni@fragments.com Ext