UNITED STATES BANKRUPTCY COURT FOR THE EASTER DISTRICT OF TEXAS SHERMAN DIVISION

Transcription

1 UNITED STATES BANKRUPTCY COURT FOR THE EASTER DISTRICT OF TEXAS SHERMAN DIVISION ) IN RE: ) Chapter 7 ) S&A RESTAURANT CORP., ET AL, ) Case No ) Debtors ) (Jointly Administered) ) APPLICATION OF THEODORE J. KATSIROUBAS & SONS, INC. FOR ALLOWANCE OF ADMINISTRATIVE CLAIM UNDER 11 U.S.C. 503(B)(9) AND PACA TRUST FUND CLAIM Now comes Theodore J. Katsiroubas & Sons, Inc., which operates under the name and style of Katsiroubas Bros. (hereinafter Katsiroubas Bros. ) and seeks allowance of an administrative expense claim under 11 U.S.C. 503(b)(9) and a PACA Trust Fund Claim under 7 U.S.C. 499e. NO HEARING WILL BE CONDUCTED ON THIS APPLICATION UNLESS A WRITTEN OBJECTION IS FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AND SERVED UPON THE PARTY FILING THIS PLEADING WITHIN SIXTY (60) DAYS FROM DATE OF SERVICE UNLESS THE COURT SHORTENS OR EXTENDS THE TIME FOR FILING SUCH OBJECTION. IF NO OBJECTION IS TIMELY SERVED AND FILED, THIS PLEADING SHALL BE DEEMED TO BE UNOPPOSED, AND THE COURT MAY ENTER AN ORDER GRANTING THE RELIEF SOUGHT. IF AN OBJECTION IS FILED AND SERVED IN A TIMELY MANNER, THE COURT WILL THEREAFTER SET A HEARING. IF YOU FAIL TO APPEAR AT THE HEARING, YOUR OBJECTION MAY BE STRICKEN. THE COURT RESERVES THE RIGHT TO SET A HEARING ON ANY MATTER. In support of this application, Katsiroubas Bros. represents as follows. Page 1 of 5

2 1. Katsiroubas Bros. is a duly constituted Massachusetts corporate with a principal place of business in Boston, Massachusetts. 2. Katsiroubas Bros. is now and has at all times pertinent been the holder of a license issued by the U.S. Department of Agriculture ( USDA ) under the Perishable Agricultural Commodities Act ( PACA )., license no A copy of the record of the license from the USDA is attached hereto as Exhibit S&A Restaurant Corp. ( S&A ) was a customer of Katsiroubas Bros. purchasing produce for restaurants operated under the style of Bennigan s in Boston, Massachusetts and Peabody, Massachusetts. 4. Katsiroubas Bros. sold produce to S&A in the ordinary course of business. The agreed upon terms of sale required S&A to make payment a. For each purchase in or with 21 days of the date of delivery of the produce; b. Of interest at the rate of 1.5% per month on all Accounts 30 days old; and c. Of all collection costs including attorneys fees. 5. Attached hereto as Exhibit 2 is a copy of the Statement of Account and a Memorandum of Damages for the Bennigan s-peabody location. Attached hereto as Exhibit 3 is a copy of the receipted invoice set forth on the Statement of Account. The present balance due from the Bennigan s-peabody location is $205.39, plus interest in the amount of $12.68 for a total of $ to the date of the petition (per diem of $.1103), such interest as may be allowed post-petition and attorneys fees. 6. Attached hereto as Exhibit 4 is a copy of the Statement of Account and a Memorandum of Damages for the Bennigan s-boston location. Attached hereto as Exhibit 5 is a copy of Page 2 of 5

3 each invoice and delivery ticket set forth on the Statement of Account. The present balance due from the Bennigan s-boston location is $6,856.40, plus interest in the amount of $21.18 for a total of $6, to the date of the petition (per diem of $3.6818), such interest as may be allowed post-petition and attorneys fees. 7. Attached hereto as Exhibit 6 is the final check and remittance advice received from S&A. 8. Attached hereto as Exhibit 7 is a statement of the attorneys fees incurred by Katsiroubas Bros. for which recovery is sought in the amount of $2, See Middle Mt. Land and Produce v. Sound Commodities, Inc., 307 F.3d 1220 (9th Cir. 2002) and Travelers Casualty & Surety Co. Of American v. Pacific Gas & Electric Co., 127 S.Ct (2007). Wherefore, Katsiroubas Bros. prays that its application be allowed and this Court award it 1. A PACA Trust Fund claim in the amount of $7,061.79, plus interest in the amount of $33.86 to the date of the petition; 2. An administrative claim under 11 U.S.C. 503(b)(9) in the amount of $3,559.79, which sums are included in the PACA Trust Fund Claim; 3. Attorneys fees in the amount of $2,078.30; 4. Post-petition interest at the rate of $ per day from the date of the petition to the date of payment of this claim; and 5. Such other and further relief as this court deems just and mete. Page 3 of 5

4 THEODORE J. KATSIROUBAS & SONS, INC. D/B/A KATSIROUBAS BROS., By Its Attorneys OSBORNE & FONTE /s/andrew M. Osborne Adrew M. Osborne 20 Eastbrook Road Dedham, MA tel fax BBO# CERTIFICATION I, Nicholas Katsiroubas a principal of Katsiroubas Bros. do hereby declare and certify that I have in good faith reviewed all the invoices submitted herewith in support of the PACA claim of Katsiroubas Bros. and that all of the items for which payment is sought under PACA qualify for the protection of the PACA Trust and no part of the claim is for goods which are not eligible under PACA. Signed under the penalties of perjury this 12th day of December /s/nicholas P. Katsiroubas Nicholas P. Katsiroubas DECLARATION I, Andrew M. Osborne, counsel for Katsiroubas Bros. declare that the fees sought in this Application are reasonable under the factors set forth in Johnson v. Georgia Hw. Express, Inc., th 408 F.2d 714 (5 cir. 1974). /s/andrew M. Osborne Andrew M. Osborne Page 4 of 5

5 CERTIFICATE OF SERVICE The undersigned hereby certifies that he served the foregoing upon those persons receiving notice via the CM/ECF system on December 16, 2008 and by first class mail to: Joseph A. Friedman Attn: Section 503(b)(9) & PACA Claims Kane, Russell, Coleman & Logan, P.C Elm Street 3700 Thanksgiving Tower Dallas, Texas /s/andrew M. Osborne Andrew M. Osborne Page 5 of 5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96