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VERITEXT REPORTING COMPANY www.veritext.com
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Case No. 10-13800-scc - - - - - - - - - - - - - - - - - - - - -x In the Matter of:
INNKEEPERS USA TRUST AND INK ACQUISITION II LLC,
Debtors.
- - - - - - - - - - - - - - - - - - - - -x
United States Bankruptcy Court One Bowling Green New York, New York
January 18, 2012 10:11 AM
B E F O R E: HON. SHELLEY C. CHAPMAN U.S. BANKRUPTCY JUDGE
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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 Transcribed by: Avigayil Roth Motion for Objection to Claim(s)/Debtors Objection to Guaranty Claims Asserted by Midland Loan Services, Inc. Against Grand Prix Holdings LLC Motion for Objection to Claim(s)/Debtors Objection to Guaranty Claim Asserted by Lehman Ali, Inc. Against Grand Prix Holdings LLC Motion for Objection to Claim(s)/Debtors Objection to Guaranty Claims Asserted by TriMont Real Estate Advisors, Inc. Against Grand Prix Holdings, LLC Status Conference
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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 BY: MICHAEL J. SAGE, ESQ. DECHERT LLP Attorneys for Lehman Ali, Inc. 1095 Avenue of the Americas New York, NY 10036 BY: JOHN D. PENN, ESQ. HAYNES AND BOONE, LLP Attorneys for Five Mile Capital Real Estate Advisors LLC 201 Main Street Suite 2200 Fort Worth, TX 76102 BY: BRIAN S. LENNON, ESQ. A P P E A R A N C E S : KIRKLAND & ELLIS LLP Attorneys for Debtors Citigroup Center 153 East 53rd Street New York, NY 10022
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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Attorneys for Apollo Investment Corp. 1285 Avenue of the Americas New York, NY 10019
BY:
LAUREN SHUMEJDA, ESQ.
KILPATRICK TOWNSEND & STOCKTON LLP Attorneys for TriMont Real Estate Advisors, Inc. 1100 Peachtree Street, N.E. Suite 2800 Atlanta, GA 30309
BY:
TODD C. MEYERS, ESQ.
PERKINS COIE Attorneys for C-III Management and CW Capital Asset Management 131 South Dearborn Street Suite 1700 Chicago, IL 60603
BY:
DAVID M. NEFF, ESQ. (TELEPHONICALLY) VERITEXT REPORTING COMPANY www.veritext.com
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Doc 2292INNKEEPERS USA TRUST AND INK ACQUISITION II LLC Filed 01/19/12 Entered 02/06/12 11:46:15 Main Document Pg 5 of 32
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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 wine. MR. LENNON: THE COURT: seat. MR. LENNON: THE COURT: MR. LENNON: THE CLERK: THE COURT:
P R O C E E D I N G S All rise. Good morning. How is everybody? Have a
Good morning, Your Honor. Good morning, Mr. Lennon. Brian Lennon of Kirkland & Ellis on
behalf of AlixPartners as the liquidating trust for Innkeepers USA Trust. THE COURT: Okay. So did you manage to get this
settled at your dinner last night? MR. LENNON: THE COURT: No, Your Honor. We did not.
Should have ordered another bottle of
Yes.
I wish.
I have a problem with the sound system
that was supposed to be fixed, so I'm getting a reverb. MR. LENNON: THE COURT: MR. LENNON: THE COURT: MR. LENNON: THE COURT: MR. LENNON: Yeah. So I'm just going to just talk. That's fine. Is that better? I think we can all hear you. Okay. Go ahead, Mr. Lennon.
Your Honor, they say that all good things
come to an end, but Innkeepers is still here, unfortunately.
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So obviously this is, if you can believe it, six months since the confirmation hearing. THE COURT: Right. And this is the end of the six-
month hiatus on the guaranty -MR. LENNON: THE COURT: MR. LENNON: It's the end of the six-month hiatus. Right. Correct. We agreed that there'd be the
abatement period in which there'd be no discussions other than settlement discussions. There were a couple of attempts to
resolve the issue around the time of the new Cerberus deal. And we tried to facilitate some discussions in the last couple of days, but we have not reached that goal just yet. So, Your Honor, going forward what the liquidating trustee would like to see is responses filed to the objections by the various claimants. And we've been talking to Mr. Sage,
Mr. Meyers and Mr. Penn about response dates; and I think we have an agreement among the three of us that responses would be due on February 24th. What happens after February 24th, I What the liquidating trust would
think is still up in the air.
like to see is that we come back in for another status conference shortly after those responses are filed. We'll
see -- we'll have reviewed the responses, determined what if anything we need to do in order to get to the next step. And
then ultimately set a hearing on the matter at which we can finally resolve these claims.
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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 Lennon?
THE COURT:
Okay.
So since you're all here today, I
wondered if I could perhaps get just a little bit of a preview. Not to put anyone on the spot, but just a little bit of a preview as to what your responses will be to the objections. And also, if one or more of you could give me your view of what we're actually talking about in terms of the exposure that's going to be upstairs at Grand Prix. that. MR. LENNON: THE COURT: But we do have -I guess we're talking about shortfalls of And then Mr. Sage, I don't know if you know
going upstairs against the guaranty, right? your client's position -MR. SAGE: THE COURT: Cerberus deal, right? MR. SAGE: the hearing today. THE COURT: Okay. I'm explaining it.
-- became a little worse after the I mean, you were not as -I'm going to explain it to you at
Yeah.
Do you want to go first, Mr.
MR. LENNON:
Yeah.
Let me just to give an overview as
to exactly what we think is at stake here. THE COURT: objections. Right. I mean, I looked at the
But go ahead. It's (indiscernible) -Yeah.
MR. LENNON: THE COURT:
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MR. LENNON:
-- so Your Honor has a sense of what
we're talking about here. Based on the analysis that the liquidating trustee has put together, we believe as of today that there is about four million dollars that will be available for distribution to creditors of Grand Prix Holdings. There is a possibility that
there will be about another million dollars that will become available. There's a current dispute with Chartis as to
certain of their insurance payables under the insurance policies that we're dealing with. It's unclear as to how that
will be resolved as of this time, but if there is a resolution in favor of the estate, then we think that money would be split between Mr. Bienenstock's constituents, the Preferred C shareholders and B, Preferred A (ph.) shareholders, which flows up to the Grand Prix Holdings settlement. So that's really where we are. It's at least four And
million dollars, potentially around five million dollars.
unfortunately there's no clear timeline as to when the Chartis issue will be resolved. THE COURT: MR. SAGE: Your Honor. THE COURT: MR. SAGE: Good morning. Michael Sage, Dechert, on behalf of Lehman. Okay. Thank you. Mr. Sage? Good morning,
Yes, ma'am.
To the podium.
I just want to explain the capacity that I'm here in.
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THE COURT: MR. SAGE:
Okay. There are three Lehman claimant issues if
One is the Lehman mortgage guaranty claims, which
may be what Your Honor I was referring to, and then there are two other claims. One is the (indiscernible) guaranty claim.
And then again, I have a guaranty claim. Your Honor correctly deduced that my first claim got a little worse. And the results -- we're still speaking about
procedure, but that's probably going to go anyway as an issue. We're probably going to -- we probably will not pursue it. We're a little concerned that five million might become a larger number. I mean, we should hear about this more. The
whole point, I think, I would need to talk to the client one more time, but if we withdraw that claim, that's not going to (indiscernible) before our next appeal. THE COURT: MR. SAGE: Okay. I'm going to cede the podium to Mr. Meyers
in a moment, but I just wanted to tell you so you understand. I don't pretend to understand exactly the corporate structure of Lehman. But the bottom line is that TriMont and SASCO, that
relationship is now over, so the claim now resides in Lehman -they were together in the DIP. Mid's and our guaranty claim
were both Lehman (indiscernible). So rather than me quote the defendant, Mr. Meyers, is equally involved; he's going to be my co-counsel. I'll still
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be around and here once in a while, but Mr. Meyers will take the lead role in defending those claims. THE COURT: TriMont. MR. SAGE: THE COURT: MR. SAGE: Not exactly, no. No? No. In other words, TriMont's economic Okay. But Mr. Meyers is also here for
interest in that claim is -- I mean, they would like to see it get resolved right the way in their view, but -THE COURT: Okay. I guess I'm just a little confused.
Because there is a TriMont claim, right? MR. SAGE: It was filed by TriMont, but Lehman has
succeeded the economic interest in the claim. THE COURT: Okay. I'm sorry. So the debtor has
objected to TriMont claim as having been late filed? MR. SAGE: Correct. And Mr. Meyers is going to
preview the response -- and we'll move on to that, okay, in a moment. THE COURT: Okay. I'm just, I'm still confused. Are
we talking about -- are the Lehman claims the same claim economically as the TriMont claim? MR. SAGE: THE COURT: MR. SAGE: Yes. Yes. Lehman as an institution has succeeded to
both of Mr. Meyers' claims.
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THE COURT:
Okay.
So then it's beside the point that
TriMont's claim was late-filed, no? MR. SAGE: THE COURT: MR. SAGE: No. I'm sorry. The only (indiscernible) that claim would
be (indiscernible) -- or not -- or lack of (indiscernible) that it has. So the fact that -- I mean, I would like to -THE COURT: Okay. So I have the -- I'm out of order.
Who filed the Lehman claims, TriMont? MR. MEYERS: Your Honor, remember there was a Lehman
claim, which was the -THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: MR. SAGE: MR. MEYERS: THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: THE COURT: (indiscernible). MR. MEYERS: (indiscernible). That's right, Lehman basically became the Right. -- the floating rate -Yes. -- property level claim. I told you that those-Then there -Well, (indiscernible) gone. Right. Okay. But then there were -But then Lehman became the
TriMont was always just a special servicer
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for a trust called the SASCO Trust. THE COURT: MR. MEYERS: of that trust. Right. Lehman bought all the economic interests
I don't know if they've collapsed that trust
and put the obligations on their balance sheet or not, but for all practical purposes, TriMont is now sort of the -- or would have been the servicer for what Lehman owns, and they don't need a servicer so now it's just Lehman. It's as if TriMont
filed these claims and then assigned them to somebody else. Somebody else Lehman -THE COURT: MR. MEYERS: THE COURT: Okay. But who filed the claims late?
Nobody. Good answer. It's alleged that TriMont
filed the claims late.
But at that point, when in the course
of the transfer of the economic interest did that occur? MR. MEYERS: the SASCO Trust. THE COURT: Okay. That's why you said, Mr. Sage, you You -When TriMont was the special servicer for
can't get better than what existed before you bought. MR. SAGE: THE COURT: MR. SAGE: he did or didn't do. THE COURT: Okay. Right. You can't prove -Right. Exactly.
I'm stuck with whatever
So for the purposes of our going
forward, then, what confused me is the debtors have objected to
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the claims asserted by TriMont.
And then the debtors have So is the Lehman
objected to the claim asserted by Lehman Ali. Ali claim the one that's going to go away? MR. SAGE: THE COURT: MR. SAGE: THE COURT: MR. SAGE: primary voice. THE COURT: MR. SAGE: I got it. Okay. Correct. Okay. I got it.
And I'm only here just to tell you that -I got it. Okay. That would be the
We're co-counsel.
Thank you.
And this is (indiscernible) explain it to
you a little bit now about -THE COURT: MR. SAGE: THE COURT: MR. SAGE: MR. MEYERS: Okay. -- what the response is going to be. Great. Thank you.
Thank you, Your Honor. Thank you, Your Honor. Todd Meyers.
Your Honor, we're obviously not here to argue the merits. THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: Sure. I'm going to just to give you a preview. Right. Normally I would tell you that since for
six months all you've been able to see is this objection and not the response, you've only seen one side of the story. But
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in fact, with respect to our principal argument -- the one that we think is the easiest for Your Honor to reach. You've really The
seen both sides of it just with what the debtor filed.
debtor has acknowledged that what the bar date order says -now, they argue that that doesn't mean what it says or it was intended to mean something else. But we're talking about a bar Forfeiture or
date to take valuable rights away from a party.
waiver or what you call it, and as we'll point out in our brief, the law will construe or such as that. Here, we would argue the order isn't even ambiguous; it unambiguously did not require TriMont to do anything different than what it did. But at best for the debtor or the And even if it's ambiguous,
liquidating trust, it's ambiguous.
you need to go no farther because you're not going to bar a claim based upon it's ambiguous bar date order. The amigu --
or the alleged ambiguity is the language that says that if you're required to file a proof of claim and you don't file a proof of claim then your barred from asserting a claim for more than a scheduled amount. Okay. That's what the order says. And it's not
dealing with people that had claims that were noncontingent, unliquidated and undisputed, because those people aren't required to file proof of claim at all under another section of the order. It's only dealing in that section with people who It says that if you are
are required to file a proof of claim.
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required to file a proof of claim and you don't, here are the consequences. And the consequences for TriMont -- now Lehman
is the successor, were you can't assert a claim for more than the scheduled amount. disputed. Okay. The only issue with our claims were they were contingent and unliquidated. Contingent and unliquidated Our claim was scheduled and it was not
because you didn't know how much, if anything, you were going to receive on the principal obligation. Okay. So that issue
we believe Your Honor can resolve on a plea -- we'll file the response. We'll file -- we'd like to -- suggest we file an a Not
motion for judgment on the pleadings or summary judgment.
spend money on discovery, there are factual issues with respect to our other arguments, but you don't need to get there if you resolve this issue in our favor. If you decide that there are factual issues on that, or that we're not entitled to judgment as a matter of law in that argument, then we can set discovery schedules and briefing on the other arguments. THE COURT: Okay. And remind me, so the amount that's I mean,
going up is virtually the full fixed amount, right? there was very little pay-up on the mass debt. MR. MEYERS: THE COURT: MR. MEYERS: That's right. Right. On the floating rate --
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THE COURT: MR. MEYERS: THE COURT: MR. MEYERS:
Was there anything --- there was not anything. Any payment, right. On the N.I. Meds (ph.) there will
probably be some recovery, but I don't imagine that to be liquidated. MR. SAGE: I think according to the debtors -- or, I'm
sorry, the liquidating trust, that of the four million dollars, roughly 2.1 of it would go -THE COURT: MR. SAGE: THE COURT: MR. SAGE: How much? 2.1. 2.1. Of the four would go to the guaranty claim So I think 1.8 and 200,000, roughly. How does that factor in Mr. Penn's claim?
and Anaheim together. THE COURT: If that's -MR. MEYERS:
Well, I think -- in other words, I think
what Mr. Sage is saying is that for the most part, there are over a hundred million dollars worth of the TriMont claims; (indiscernible). Yes, they might be reduced slightly because
the Anaheim claim is going to have some recovery. THE COURT: MR. MEYERS: Right. But it's not going to be material, so I
they're going to have a hundred-plus-million-dollar claim. think Midland has a hundred-plus-million-dollar claim.
They're
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not fifty-fifty, but it's probably fifty-five: something like that -THE COURT: Okay.
forty-five,
That was my question.
That 2.1
million dollar figure is based against -- the four million dollar in the pot is based on an assumption that the Midland claim is allowed in full, right? MR. SAGE: THE COURT: MR. SAGE: THE COURT: Yes. Correct.
That's the point. That is correct. So if the Midland claim -- if the debtors
concede with respect to the Midland claim then -- and you prevail on your claim that it's not late filed, you get the whole -MR. SAGE: probably Mr. Neff -THE COURT: MR. SAGE: MR. LENNON: THE COURT: MR. LENNON: But it's much smaller, right? Correct. That's right, Your Honor. Okay. We agreed -- well, we agreed with Mr. No. They still get an Ontario claim,
Neff as part of the Ontario plan that he would have a claim of up to 1.5 million dollars. THE COURT: the phone? MR. NEFF: I am, judge. Unfortunately, I can't hear Okay. All right. Mr. Neff, are you on
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you very well, I can only hear whatever counsel is talking in the microphone. THE COURT: MR. NEFF: THE COURT: All right. positioned. MR. MEYERS: Your Honor, we have other arguments that I'm sorry. I will --
Now I can hear you. Okay. I pulled the mic back. All right.
I think I now understand where everybody is
will be in our response. THE COURT: MR. MEYERS: that today or not. THE COURT: MR. MEYERS: That's okay. But there are -- because the fundamental Sure. I don't know if you need to hear about
principal of gate-keeping threshold issue is does the order require us to do anything different than we did. If Your Honor
finds that it does then we've got lots of other arguments as to why we still -- the claim is either -- was filed timely or can be excused from being late. THE COURT: MR. LENNON: quickly? Or -THE COURT: MR. LENNON: THE COURT: Quickly. I'm not going to get into the merits. Okay. Okay. Thank you very much.
Your Honor, may I respond to Mr. Meyers
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MR. LENNON:
But the point as to what we do if Your
Honor finds in our favor -- hold on one second, let me just take a step back. So the debtors did acknowledge that paragraph 11 does create an issue that Mr. Meyers is going to argue entitles him to file a proof of claim. The reason we pointed that out in
our papers is because he had already that to us in a letter, if we thought it was appropriate to do so. We do think that
paragraph 11 does not excuse a party from filing a proof of claim simply by virtue of the fact that you refer back to Bankruptcy Rule 3003(c)(2) in that paragraph 11. So 3003(c)(2)
makes it clear that any claimant that is scheduled for a contingent, unliquidated or disputed claim has to file a proof of claim. The other point that I just wanted to note is that the bar date notice was very clear that if you were a CUD you had to file a proof of claim. And the bar date motion -- both of
which Mr. Meyers and his client did receive -- were very clear that if you are a CUD you have a file a proof of claim. THE COURT: talk about Midland. All right. Thank you. Okay. So let's
So this is the issue of whether in some
course of negotiations there was a waiver, if I'm remembering it correctly, right? MR. PENN: A couple of things. As far as in line with
all of the (indiscernible), it's not Midland, it's currently
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Five Mile Capital Real Estate Advisors LLC as the special servicer of (indiscernible). THE COURT: MR. PENN: Okay. Okay. But there are a few issues that get
to -- you have to address before we get to the waiver question at all. First is whether the bar date were to even apply to
us, which you have to look at both the cash collateral order that made it very clear -THE COURT: MR. PENN: Okay. -- that the bar date order did not apply to
representatives filing any claim against any debtor. Then the next point would be the one Mr. Meyers addressed. And that is that what does the bar date order
provide for the consequence of not filing a proof of claim. And the schedules listed an amount greater than we are asserting. So we've got those legal issues.
Then before you can get to the waiver theory there's the legal issue of parol evidence rule. the actual documents say. THE COURT: MR. PENN: Right. Which is why we believe that before we open And that is what do
up the dog war (ph.), if you will, on the discovery that would have to flow from those kinds of questions. That the gating
issues, which are legal issues that Mr. Meyers described in this summary judgment, judgment of pleadings, whichever way you
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want to do it.
Or just say the first -- herein whatever we
have is not an issue, then we can address legal issues -THE COURT: MR. PENN: Right. -- so we don't have to create more paper.
If we want to approach it that way. THE COURT: MR. PENN: Right. But let's get the legal issues disposed of
up-front before we start any kind of discovery, which (indiscernible) believes that part of what flows from the status conference today should be a continuation at least of an abatement of discovery because -THE COURT: right. Well, I think that that's absolutely
Because for better or worse in the scheme of this case,
twelve million dollars is a very small number. MR. PENN: You'd have a heck of a bonfire with it, and
there's no point in doing that. THE COURT: And I really don't -- I mean, I'd really
much rather -- much as I always enjoy seeing you, I really would much rather that the money actually get paid to your clients rather than to professionals. And we'll just go
through a million dollars just like that, which is also an argument for you to continue with the trial. since it is (indiscernible). MR. PENN: I understand. But I think that the gating (Indiscernible)
issue (indiscernible) to that.
But we're not going to get to a
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settlement just yet. description -THE COURT:
It would be the most accurate
All right.
I understand.
All right.
But
I thoroughly agree with the notion that we shouldn't be starting discovery yet. That we should brief the threshold
issues, and I will -- if it doesn't settle by that point, I'll make a preliminary determination on whatever I'd really like to make a determination on, and then we'll go from there. I think I know the answer to this question, but just let me be sure. Also being teed up right now -- and some of
you may be more familiar with this than others -- is the propriety or impropriety of the voluntary discontinuance of the action by LNR against CRES. of that. MR. PENN: THE COURT: involved in that. I remember reading about it. Okay. That -- because Five Mile's I don't know if you all are aware
That is -- there's no nexus between anything
that happens on that and what your claim of the Grand Prix might be. MR. PENN: THE COURT: closest. MR. PENN: THE COURT: MR. PENN: Correct. Okay. And in fact, it maybe needs a separate file Correct. That's the closest and this is the
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now -THE COURT: MR. PENN: It might be. Right.
Now, I would suspect that it is, but I
haven't really (indiscernible). THE COURT: MR. PENN: Right. All I know is that it is not something
that's ever made its way around the table, much less onto my plate. THE COURT: All right. So do you want to send -- I
think Mr. Lennon had said February 24th. MR. LENNON: THE COURT: That's right, Your Honor. As a date. And that works for everybody
on this side of the room, February 24th? MR. LENNON: We can work with that, although I don't
think you've heard from Mr. Neff yet, before we -THE COURT: MR. LENNON: THE COURT: MR. NEFF: THE COURT: MR. NEFF: THE COURT: Oh, I'm sorry. You're quite right.
I didn't want him to have to interrupt. Mr. Neff? Again, Judge, it's hard to hear you. How about that? That's much better. All right. Does February 24th work as a
date for what we'll call a response to the debtors' objection to the claims? MR. NEFF: Yes. And actually, we've resolved our
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issues, which is one of the reasons I'm not there in-person in front of you. So I don't believe we'll be involved with the
discovery; we have already agreed with the debtors the treatment of our claim against Grand Prix. THE COURT: MR. NEFF: Okay. So we're just an interested party as to how
this turns out for the debtor with regard to the other claims. THE COURT: Okay. response. I got it. Okay. Thank you.
So February 24th will be the deadline for the
And then the liquidation trustee is going to want to
file a reply, correct? MR. LENNON: THE COURT: MR. LENNON: THE COURT: March 9th? Yes, Your Honor. Okay. So when would you like to do that?
If we could have two weeks -Okay. So that gives you until Friday
Does that work for everyone? Is that the right, Pat (ph.)? That's two weeks after February 24th. Is
MR. LENNON: THE COURT: that all right? MR. PENN: THE COURT:
That should work. Okay. And should we set a hearing date? Yes. Yes, please. I would note that at least
UNIDENTIFIED SPEAKER: UNIDENTIFIED SPEAKER: MR. SAGE:
That'd be fine.
back home, the following week is spring break.
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THE COURT: here as well.
It is spring break.
It is spring break
And it's also American College of Bankruptcy, So -- okay.
Duberstein dinner, lots of good stuff that week.
I have to be out much of the week of the 19th for NCBJ matters, so I'm going to have to kick you over to March 28th, all right? All right. right? So the week of the 12th is the spring break week,
And then the following week I don't have availability. Does that work for everyone? Your Honor, March 28th works fine for me.
So March 28th.
MR. MEYERS:
But I do have a different spring break which starts March 31, and this is case is always you show up one day and the hearing is going to go the next day, the next day and it doesn't start for three days. end of that week. this. THE COURT: I'm not doing my job. If I don't have you done on that day then So there is no risk, and you can tell I'm just pointing out I got to be done by the I hope we've moved beyond that point with
your family that there is no risk to your vacation. MR. MEYERS: Thank you, Your Honor. Thank you. I
hearken back to days where I'm sitting in a hotel and the hearing is supposed to start in an hour and then it's going to be the next day -THE COURT: it's dimming. I have a vague recollection of that, but
It's dimming. Your Honor, just to clarify, what exactly
MR. LENNON:
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are we going to be arguing on the 28th? THE COURT: So you're going to argue the objection.
In other words, you're going to convince me at least on the issues of law that the bar date order precludes their claims. And they're going to convince me that the bar date doesn't preclude their claims. It's going to be a predicate to
basically a judgment on the pleadings or a summary judgment. MR. LENNON: THE COURT: Okay. Any issues that you identify I can dispose And maybe you will disagree But I'm somewhat optimistic that
of before getting to discovery. even on that threshold issue.
at least you'll agree on what I can dispose of without evidence, and what I can't. MR. LENNON: THE COURT: Okay. I mean, alternatively, we could just set But I think in the spirit of
that date as a status date.
moving this along that we should set it as an argument date. And to Mr. Meyers point, if at that point settlement discussions seem like they're bearing fruit, just call us and we'll adjourn it. But we'll adjourn it before people get on
planes and move around on that date. MR. LENNON: THE COURT: MR. LENNON: THE COURT: Okay. All right? Um-hum. You look a little perplexed. Am I not
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being clear? MR. LENNON: I'm just thinking about other issues that
may not necessarily bear on this. THE COURT: MR. LENNON: THE COURT: Okay. No. Your vacation plans? No. No. No. No.
I don't -- this shouldn't (indiscernible)
anybody's vacation plans. MR. LENNON: MR. MEYERS: THE COURT: No. Trust me, it would not.
Your Honor? So, Mr. Sage, you think you'll have
greater clarity by then, I think, with respect to the floating claim. MR. SAGE: (indiscernible). THE COURT: Meyers? MR. MEYERS: different ways. Your Honor, we can do it in a lot of Great. Okay. All right. Yes, Mr. I think it's almost ninety-nine percent
But just to be clear, the way I was
envisioning, and I think Mr. Penn was envisioning, is on the February 24th date we'll file a response to the debtors' objection, which lists all of the different arguments. some that are legal, some are factual; lists them all. THE COURT: MR. MEYERS: Right. And then we were going to -- whether we We have
do it one pleading or two -- I mean, I guess I was envisioning
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two, but we could do it one -- is a motion for judgment on the pleadings. THE COURT: MR. MEYERS: That's fine. That says with respect to issue 1 -- not
2, 3, and 4, but 1 -- which is the order -THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: THE COURT: issues. MR. MEYERS: THE COURT: Right. And then when the liquidation trustee Sure. Then you --
-- that we're entitled to judgment -Right. Right. -- what we'll call the purely legal So you'll identify the pure --
responds they will respond to that or state their view that those are not purely legal issues; whatever it is your response is going to be. MR. LENNON: THE COURT: MR. LENNON: That's acceptable, Your Honor. Okay. With Mr. Meyers' claim, we just wanted to
get the facts up-front as to what the excusable neglect justification would be. THE COURT: MR. LENNON: THE COURT: MR. LENNON: Right. Yeah. Okay.
But his point is that he -He'll brief that on February 24th.
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THE COURT:
Right.
He's going to -- his view is that
you don't even get to excusable neglect -MR. LENNON: THE COURT: him to do anything. MR. MEYERS: THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: Correct. Right? Right. Right. Right. But we'll simply -- we will Um-hum. -- because the bar order didn't require
include in our response -THE COURT: MR. MEYERS: Sure. -- the various other arguments why even
if the order did require us to file it -THE COURT: MR. MEYERS: THE COURT: MR. MEYERS: THE COURT: Right. -- why we're nevertheless -Got it. -- did what we were supposed to do. Got it.
Yes, Mr. Penn? MR. PENN: nonevidentiary? THE COURT: MR. PENN: THE COURT: Totally not evidentiary. And the abatement on discovery continues? Right. Just so we're clear, March 28th is totally
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MR. PENN: THE COURT:
Okay. Okay.
That's acceptable, Your Honor. So now let's be clear on the papers
that are coming next round, declarations are going to be put in or no? No. Nothing. Nothing of an evidentiary nature
whatsoever, right? MR. PENN: THE COURT: MR. PENN: I don't think so. Just raising the question. The only minor evidentiary that could
possibly be would be the evidentiary support that this is the signed document. THE COURT: MR. PENN: THE COURT: in the documents. MR. PENN: THE COURT: Right. Which -Other than a lawyer's declaration putting No I was in the middle of negotiations -Correct. -- this was said, this was my view.
MR. PENN: THE COURT: All right.
Okay. Okay. I just wanted to be clear on that.
I think that's it, right? Yeah, I believe so. Okay. Does it make sense just to tag that March
MR. LENNON: THE COURT: MR. LENNON:
28th date as an omnibus hearing -THE COURT: Sure.
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MR. LENNON: THE COURT: MR. LENNON: THE COURT: MR. LENNON: THE COURT:
-- for any other issues that we may have? That's fine. Okay. We can do that. Great. 10 o'clock on the 28th. All right. So
we'll say 4 p.m. on February 24th for the next round, and with the responses due by 4 p.m. on March 9th. And a hearing on the
purely legal issues -- or the alleged purely legal issues on March 28th, unless we pick another date before then. have March 28th as an omnibus date. All right. MR. LENNON: Thanks, folks. Great. Have a good day. And also
Thank you, Your Honor. Thank you, Judge.
UNIDENTIFIED SPEAKER:
(Whereupon these proceedings were concluded at 10:42 AM)
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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 Veritext 200 Old Country Road Suite 580 Mineola, NY 11501 I, Avigayil Roth, certify that the foregoing transcript is a true and accurate record of the proceedings. C E R T I F I C A T I O N
Avigayil Roth ______________________________

Digitally signed by Avigayil Roth DN: cn=Avigayil Roth, o, ou, email=digital1@veritext.com, c=US Date: 2012.01.19 17:13:26 -05'00'
January 19, 2012 _________________ DATE
AVIGAYIL ROTH
AAERT Certified Electronic Transcriber CET**D-640
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Filed 01/19/12 Entered 02/06/12 11:46:15 Pg 1 of 32

INNKEEPERS USA TRUST AND INK ACQUISITION II LLC,

January 18, 2012 10:11 AM

B E F O R E: HON. SHELLEY C. CHAPMAN U.S. BANKRUPTCY JUDGE

Filed 01/19/12 Entered 02/06/12 11:46:15 Pg 2 of 32

VERITEXT REPORTING COMPANY www.veritext.com

Filed 01/19/12 Entered 02/06/12 11:46:15 Pg 3 of 32

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Filed 01/19/12 Entered 02/06/12 11:46:15 Pg 4 of 32

LAUREN SHUMEJDA, ESQ.

TODD C. MEYERS, ESQ.

DAVID M. NEFF, ESQ. (TELEPHONICALLY) VERITEXT REPORTING COMPANY www.veritext.com

P R O C E E D I N G S All rise. Good morning. How is everybody? Have a

Should have ordered another bottle of

I have a problem with the sound system

Your Honor, they say that all good things

come to an end, but Innkeepers is still here, unfortunately.

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think is still up in the air.

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So since you're all here today, I

Do you want to go first, Mr.

Let me just to give an overview as

But go ahead. It's (indiscernible) -Yeah.

MR. LENNON: THE COURT:

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-- so Your Honor has a sense of what

million dollars, potentially around five million dollars.

I just want to explain the capacity that I'm here in.

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THE COURT: MR. SAGE:

Okay. There are three Lehman claimant issues if

One is the Lehman mortgage guaranty claims, which

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both of Mr. Meyers' claims.

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So then it's beside the point that

TriMont was always just a special servicer

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I don't know if they've collapsed that trust

Nobody. Good answer. It's alleged that TriMont

filed the claims late.

But at that point, when in the course

I'm stuck with whatever

So for the purposes of our going

forward, then, what confused me is the debtors have objected to

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the claims asserted by TriMont.

And then the debtors have So is the Lehman

And this is (indiscernible) explain it to

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seen both sides of it just with what the debtor filed.

date to take valuable rights away from a party.

liquidating trust, it's ambiguous.

are required to file a proof of claim.

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