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In re Lenny Perry's Produce

September 16, 2009

IN RE: LENNY PERRY'S PRODUCE, INC. DEBTOR.
JOHN B. ORDILLE, INC., ET AL., PLAINTIFFS,
v.
LENNY PERRY'S PRODUCE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

ORDER

Bankruptcy Case No. 09-10297-MJK

Chapter 7

Adversary Proceeding No. 09-01015-MJK

ORDER ESTABLISHING PACA TRUST CLAIMS PROCEDURE

This matter came before the Bankruptcy Court upon the Motion of Plaintiffs John B. Ordille, Inc., Jackson's Farming Co., Wings Landing Farms, Pismo-Oceano Vegetable Exchange, Wendell Roberson Farms, Inc., and Brooks Tropicals, LLC (collectively, "Plaintiffs") for Establishment of a procedure by which to handle claims of creditors that arise under the Perishable Agricultural Commodities Act, 7 U.S.C. § 499 et seq. ("PACA"). In support of this Motion, Plaintiffs submitted a Memorandum with accompanying Exhibits. In response, the Debtor (through its attorney Robert R. Radel Esq.), submitted a Response dated May 5, 2009. On May 6, 2009, the Bankruptcy Court held a hearing on Plaintiffs' Motion, attended by counsel for Plaintiffs, Devin J. Oddo, and counsel for Debtor, Robert R. Radel. On May 18, 2009, the Bankruptcy Court conducted a conference call to discuss the motion, attended by Mr. Oddo, Mr. Radel, Trustee Harold P. Bulan and U.S. Trustee Joseph W. Allen. After consideration of all materials and arguments, the Bankruptcy Court stated that:

1. The Debtor's PACA trust assets are not property of the estate and are not available for bankruptcy distribution until the claims of qualified PACA creditors have been satisfied.

2. That a PACA Claims Procedure ("Order") is appropriate, to a) establish a procedure wherein PACA claimants will establish their rights as qualified PACA creditors, b) establish a fund consisting of potential PACA Trust assets, c) set a procedure for the payment of qualified PACA creditors, if any, from the PACA Trust, and d) determine the amount of monies or assets that are available, after the payment of qualified PACA claims, if any, which would constitute the bankruptcy estate.

Accordingly, IT IS HEREBY ORDERED AND ADJUGED as follows:

THE PACA CLAIMS PROCEDURE

1. Debtor shall, within five (5) business days from the date of Judge Kaplan's Order dated August 7, 2009, provide Plaintiffs' counsel with the names and addresses of any additional or potential PACA claimants that are not listed on the Debtor's bankruptcy petition.

2. Plaintiffs' counsel shall, within ten (10) business days of Judge Kaplan's Order dated August 7, 2009, issue written notice ("Notice") via regular mail, in a form similar to Exhibit A, to every creditor indicated in the Debtor's bankruptcy petition, their counsel of record and entities who filed a Notice of Appearance. All persons or entities claiming to be PACA trust beneficiaries of the Debtor are hereby granted leave to intervene, without further notice or motion, and once having intervened and filed a Proof of Claim, each such entity shall be bound by all Orders entered in this case.

3. The Notice shall set forth the following filing deadlines; Complaint in Intervention and PACA Proof of Claim ("Claim Deadline")... August 31, 2009 Objections to PACA Proofs of Claim ("Objection Deadline")... September 17, 2009 Responses to Objections ("Response Deadline")........... September 30, 2009

4. Each unpaid supplier of Produce holding a claim for nonpayment and alleging rights under PACA, shall file with the Clerk of the Bankruptcy Court for this District, and serve counsel for Plaintiffs and Debtors, on or before the Proof of Claim deadline, a completed PACA Proof of Claim in a form similar to that attached to this Order as Exhibit B together with ...


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