alg Doc 6326 Filed 03/12/14 Entered 03/12/14 22:30:23 Main Document Pg 1 of 6

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1 Pg 1 of 6 JONES & ASSOCIATES Roland Gary Jones, Esq. New York Bar No. RGJ-6902 One Rockefeller Plaza 10th Floor Tel. (646) Fax (212) rgj@rolandjones.com Counsel for Indusys Technology, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et. al., Debtors. Chapter 11 Case No (ALG) INDUSYS TECHNOLOGY, INC. S RESPONSE TO THE DEBTOR S FIFTY-NINTH OMNIBUS OBJECTION TO CLAIMS Indusys Technology, Inc. ( Indusys ), by and through undersigned counsel, respectfully submits this response and objection to the Fifty-Ninth Omnibus Objection to Claims (the Objection ) [Docket #6279] filed by Eastman Kodak Company, et al. (the Debtors ). Claim ). BACKGROUND On or about June 7, 2012, Indusys filed proof of claim #2477 for $597, (the Filed On or about February 14, 2014, the Debtors filed the Objection, which included a Proposed Order. 1

2 Pg 2 of 6 In the Objection, the Debtors alleged that the creditors listed in Exhibit A to the Proposed Order listed amounts that were higher than the amount of liability reflected in the books and records of the Debtors (see Objection, pg. 7). Indusys was among the creditors listed in Exhibit A, which indicated that Indusys Filed Claim should be reduced to $497, (the Proposed Claim ). The Debtors submitted no evidence in support the bare allegation that the Filed Claim was greater than the amount in the Debtors books and records. RESPONSE AND OBJECTION I. INDUSYS FILED CLAIM IS PRIMA FACIE VALID AND THE DEBTORS FAILED TO MEET THE BURDEN OF PROOF TO DISPUTE THE FILED CLAIM Fed. R. Bankr. P. 3001(f) states that a "proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." The objector to the claim bears the initial burden of persuasion. See In re Oneida, Ltd., 400 B.R. 384 at 389 (Bankr. SDNY, 2009); see also Reilly v. Novak, 245 B.R. 768, 774 (2d Cir. B.A.P. 2000) ( To overcome this prima facie evidence, the objecting party must come forth with evidence which, if believed, would refute at least one of the allegations of the claim. ). The Debtors submitted no evidence in support of the Objection to the Filed Claim not one single invoice, purchase order or accounting record printout to show that the Proposed Claim is the correct claim. It goes without saying that the Debtors failed to meet the burden of persuasion. For this reason, Indusys objects to the reduction of the Filed Claim due to the lack of clear and convincing evidence on the part of the Debtors. 2

3 Pg 3 of 6 II. THE DEBTORS POSITIONS WITH RESPECT TO INDUSYS CLAIM AGAINST THEM HAVE BEEN INCONSISTENT AND SHOULD NOT BE ADOPTED Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him. This rule, known as judicial estoppel, generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. Intellivision v. Microsoft Corp., No cv (2nd Cir., Jun. 11, 2012) citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001). In the Debtors schedules filed on April 18, 2012 [Docket #887], the Debtors admitted that they had an unsecured debt to Indusys in the amount of $570, (the Scheduled Claim ) (see Schedule of Assets and Liabilities for Eastman Kodak Company, Case No , Exhibit F-2, pg, 53 of 119). For close to two years, the Debtors did nothing to assert a different amount. Now, close to two years after the Debtors filed their schedules, and when Indusys records may no longer be complete, the Debtors are asserting a Proposed Claim far below the Scheduled Claim. This indicates a lack of accuracy in the Debtors records and their calculation, which led to the Proposed Claim, should not be favorably viewed by this Honorable Court. Furthermore, the differences between the Proposed Claim on the one hand; and the Scheduled Claim and the Filed Claim on the other hand are substantial. The acceptance of the Proposed Claim at this point in time will prejudice Indusys, which, on information and belief, is currently experiencing financial difficulties and needs every dollar that it can recover from the 3

4 Pg 4 of 6 Debtors bankruptcy estate. Finally, the costs associated with defending the Filed Claim in the face of an unsubstantiated objection is an undeserved and unreasonable burden on Indusys. CONCLUSION WHEREFORE, for the reasons set forth above, the Debtors Objection should be overruled and Indusys Filed Claim be admitted as the correct claim. Indusys prays for such other and further relief as this Honorable Court may deem just and proper. Dated: March 12, 2014 New York, New York JONES & ASSOCIATES By: /s/roland Gary Jones Roland Gary Jones New York Bar No. RGJ-6902 One Rockefeller Plaza 10th Floor Tel. (646) Fax (212) rgj@rolandjones.com TO: Sean T. Greecher YOUNG CONAWAY STARGATT & TAYLOR, LLP 1270 Avenue of the Americas Suite sgreecher@ycst.com 4

5 Pg 5 of 6 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: EASTMAN KODAK COMPANY, et. al., Debtors. Chapter 11 Case No (ALG) I, Roland Gary Jones, Esq., certify under penalty of perjury that on March 12, 2014, I caused to be served Indusys Technology, Inc. s Response to the Debtor s Fifty-Ninth Omnibus Objection to Claims, by electronic mail and first class mail 1, postage prepaid, upon the parties listed on the service listed on the service list annexed hereto. Dated: March 12, 2014 By: /s/roland Gary Jones Roland Gary Jones, Esq. New York Bar No. RGJ-6902 JONES & ASSOCIATES One Rockefeller Plaza 10th Floor Tel: (347) Fax: (212) rgj@rolandjones.com 1 Unless another, or additional method of delivery is indicated on the Service List.

6 Pg 6 of 6 SERVICE LIST By Electronic Mail and U.S. Mail: Sean T. Greecher YOUNG CONAWAY STARGATT & TAYLOR, LLP 1270 Avenue of the Americas Suite sgreecher@ycst.com Counsel for the Debtors