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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IN RE:
Bankr. No. 19-23178-CMB
SHOPPINGTOWN MALL NY LLC,
Chapter 11
Debtor.

DESIREE YAGAN, Related to Doc. No.: 586

Movant,

v.

SHOPPINGTOWN MALL NY LLC,

Respondent.

OBJECTION TO MOTION FOR EVIDENTIARY HEARING, MOTION FOR RULE

2004 EXAMINATION, MOTION FOR ADVERSARY PROCEEDING, MOTION FOR
RELIEF FILED BY CREDITOR DESIREE YAGAN

AND NOW COMES, Shoppingtown Mall NY LLC (the “Debtor”), by and through its

undersigned counsel, Bernstein-Burkley, P.C., and files this objection to the Motion for

Evidentiary Hearing, Motion for Rule 2004 Examination, Motion to Adversary Proceeding, and

Motion for Relief (the “Motion”) filed by Desiree Yagan (“Yagan”), and in support thereof, avers

as follows:

Preliminary Statement

Since the outset of this Case, the Debtor has provided Yagan with adequate notice of all

relevant pleadings, including the notice of bar date, as necessary. In fact, presumably as a result of

this notice that Yagan was provided, Yagan began to contact Debtor’s counsel as early as June 3,

2020 regarding her dispute with the Town of Dewitt without any mention of a claim against the
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Debtor. 1 Further, when Yagan filed her objection to the Motion to Sell its Property to Onondaga

County [Doc. No. 483] (the “Motion to Sell”), Yagan filed her objection and then called counsel

for the Debtor stating that she wanted a 2004 examination for a representative of the Town of

Dewitt – not for the Debtor – based on her dispute of the police report related to the incident in

question. At no point until she filed her proof of claim did Yagan assert a claim against the Debtor

as opposed to the Town of Dewitt. Notwithstanding the fact that Yagan’s proof of claim was filed

late, Yagan has failed to provide any evidence of a claim, such as bills or medical records, to

establish a claim against the Debtor. The relief requested in the Motion serves no purpose other

than the delay the Case and, for the reasons set forth herein, the Motion should be denied in its

entirety.

Background

1. On August 13, 2019 (the “Petition Date”), the Debtor filed its voluntary petition for

relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101 et seq. (as amended,

the “Bankruptcy Code”) in the United States Bankruptcy Court for the Western District of

Pennsylvania (the “Court”) at case no. 2:19-bk-23178 (the “Case”).

2. On February 11, 2021, the Debtor filed its Third Amended Plan of Reorganization

[Doc. No. 548] (the “Plan”) and the Fourth Amended Disclosure Statement [Doc. No. 549] (the

“Disclosure Statement”).

3. On January 11, 2021, Yagan filed a proof of claim in the Case in the amount of

$11,000,000 [Claim No. 14] (the “Yagan Claim”).

4. On March 30, 2021, Yagan filed an objection to the Disclosure Statement.

5. On March 31, 2021, the Court approved the Disclosure Statement.

1
Debtor’s counsel was copied on an email from Ms. Yagan in early June of 2020, see Exhibit A, and then heard
nothing of substance from Ms. Yagan until she filed the objection to the Debtor’s Motion to Sell.
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6. On May 3, 2021, Yagan filed the Motion.

Objection

7. Yagan has failed to evidence a need for an evidentiary hearing or a 2004

examination of the Debtor. Additionally, it is unclear what purpose an evidentiary hearing, 2004

examination, or adversary proceeding would serve in this Case. Yagan has failed to establish a

need for the relief requested in the Motion and the Motion should be denied in its entirety.

8. As the Court is aware, Yagan filed a proof of claim in the amount of $11,000,000

more than a year after the bar date had passed and well after Yagan had notice of both the Case

and the bar date. Bankruptcy Rule 3003(c)(2) provides that any creditor with a claim filed as

contingent, disputed, or unliquidated who fails to file a proof of claim on or before the bar date

“shall not be treated as a creditor with respect to such claim for the purposes of voting and

distribution.” Fed.R.Bankr.P. 3003(c)(2).

9. On numerous occasions, Yagan has been made aware that she must seek allowance

of her claim in order to be treated as a creditor in this Case. She has failed to do so, but has

continued to cause the Debtor to incur unnecessary legal fees despite the fact that she does not

hold a valid claim. 2

10. Regardless of the repercussions of Bankruptcy Rule 3003(c)(2), Yagan has failed

to provide any evidence or support of her asserted claim against the Debtor in any amount and the

Debtor disputes that it has any liability for any injury that Yagan may have had. Yagan’s

documentation contains an allegation that the governmental entities are working against her, but

does not indicate how or why the Debtor would be liable for any injuries caused by such a theory

2
The Debtor acknowledges that Yagan filed a Motion to Allow Claim Temporarily for Voting Purposes [Doc. No.
587] (the “Motion to Allow”). The Debtor believes that this Motion to Allow does is inadequate to make Yagan a
creditor in this Case and is more akin to an objection to the Debtor’s Motion to Estimate Claim for Voting Purposes
[Doc. 569] than a motion to allow the Claim.
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that does not involve the Debtor. Only in this Motion has Yagan now asserted a claim against the

Debtor for “Debtor liability, Breach of Contract, Violation of Duty of Care, and Destroying

Evidence.”

11. The Debtor is unsure of what “Debtor liability” references and does not believe that

any such theory of liability exists under these circumstances. There is no contract between Yagan

and the Debtor for a breach of contract to have occurred and there have been no facts asserted

which might lead to a finding of a violation of the Debtor’s duty of care. Finally, Yagan continues

to claim that the Debtor destroyed video surveillance evidence of the incident, but no such

surveillance video has ever existed as the police report makes clear.

12. Yagan’s Claim references $77,000 in hospital bills, but no such bills or records of

expenses have been provided. Further, the supporting documentation attached to the Yagan Claim

draws into question the legitimacy of the injury that Yagan alleges to have suffered and it appears

that the emergency room doctor who assessed Yagan after the incident in question found that she

had no injuries to her leg. See Yagan Claim, page 25. Yagan asserts that the doctor failed to

diagnose broken bones and torn tendons, but no x-rays, records, or documents – including the

documents provided by the rehabilitation center – other than Yagan’s own notes and emails

indicate that she suffered any injury to her leg(s).

13. There has been no record or documentation provided to support a claim against the

Debtor in any amount and to require the Debtor to proceed with an evidentiary hearing, 2004

examination, or an adversary proceeding would be a waste of estate funds and judicial resources.

14. The Debtor has already been required to expend additional legal fees to answer

Yagan’s various objections and motions in this case. The Debtor has made efforts to answer

Yagan’s questions during hearings and respond to her requests for documents related to the Plan.
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However, at this point, Yagan’s disruptions to this Case appear to lack any merit and have now

negatively affected all creditors who seek to be paid through the Plan as the legal fees incurred in

answering to Yagan will decrease the amount available for the initial distribution to creditors.

15. To allow Yagan to continue to disrupt these proceedings is unfair to all other parties

in interest. Yagan has not provided any evidence of a claim against the Debtor despite the fact that

she has been given numerous opportunities to do so since the outset of this Case.

16. Finally, while the Debtor recognizes that Yagan has been proceeding pro se, the

procedures required to have an evidentiary hearing, 2004 examination, or adversary proceeding

have not been followed and it is unclear how any of this relief would advance Yagan’s claim or do

anything other than delay the Case given the lack of evidence of a valid claim against the Debtor

in any amount.

17. Yagan’s efforts to disrupt the progress of this Case at the 11th hour without any

evidence should not be rewarded by allowing her to continue to make baseless allegations and

cause unnecessary delay and expenses to the detriment of the creditors in this Case.

WHEREFORE, the Debtor respectfully requests that the Court (i) deny the Motion in its

entirety and (ii) grant such other relief that the Court may deem just and proper.

Dated: May 11, 2021 Respectfully submitted,

BERNSTEIN-BURKLEY, P.C.

/s/ Sarah E. Wenrich

Kirk B. Burkley (PA ID No. 89511)
Harry W. Greenfield (pro hac vice)
Sarah E. Wenrich (PA ID No. 325834)
707 Grant Street, Suite 2200 Gulf Tower
Pittsburgh, PA 15219-1900
Telephone: (412) 456-8163
Facsimile: (412) 456-8135
Email: swernrich@bernsteinlaw.com
Attorneys for the Debtor