Summary
applying the vertical and horizontal dimension tests
Summary of this case from In re Fairmont Gen. Hosp., Inc.Opinion
Case No. 03-50356.
December 1, 2008
MEMORANDUM OPINION
Unauthorized by the court, James B. Fromhart made two post-petition loans to Ohio Valley Amusement Company (the "Debtor") totaling $700,000. Mr. Fromhart now seeks to be allowed an administrative claim against the Debtor's estate in that amount.
The Debtor seeks entry of summary judgment on Mr. Fromhart's application for administrative expenses on the basis that the loan was not made in the ordinary course of the Debtor's business, and was made without court approval.
For the reasons stated herein, the court will grant the Debtor's motion for summary judgment.
I. BACKGROUND
The Debtor is primarily engaged in the business of leasing video lottery machines to various establishments in West Virginia. When it filed its February 3, 2003 Chapter 11 bankruptcy petition, the Debtor's principal was Francis Tucker. After the Debtor confirmed its November 14, 2007, plan of reorganization, Francis Tucker was no longer a shareholder or officer of the Debtor.
According to the Debtor's Statement of Revenues and Expenses for calendar year 2005, the Debtor claimed to earn $3,290,575 in gross revenue, and claimed a yearly net income of $300,153. The Debtor claimed net revenue of $17,956 in January 2006, $9,457 in February, and $54,938 in March. In April 2006, the Debtor listed an unexplained deduction from its monthly revenues for a "bad debt expense" in the amount of $250,285, and, therefore, claimed a net loss of $250,710 for the month.
In the ordinary course of its business, the Debtor maintained four bank accounts: (1) an "operating" account, (2) a "state" account (3) a "location" account, and (4) a "payroll" account. At the end of April 2006, the Debtor's bank records reflect that the "operating" account had a negative balance of $34,410, the "state" account had $1,611, the "location" account had $141,643, and the "payroll" account only had $1,426.
This "state" account appears to be the bank account required by W. Va. Code § 29-22B-1401, which mandates that each video lottery licensed permit holder "maintain in its bank account an amount equal to or greater than the Lottery Commission's share of the gross terminal income from its operation of video lottery machines. . . ." The State Lottery Commission has the right to electronically transfer those funds out of the account on dates established by the Commission.
Of the total revenues generated by a video lottery terminal, the State's share of the revenue is determined under § 29-22B-1408. Two percent of gross terminal revenue is paid to the State Lottery Fund. § 29-22B-1408. After that deduction, the Commission's share of gross terminal profits is determined on a sliding scale from 30% to 50%, depending on how much income a video lottery terminal generates.
In May 2006, the Debtor's annual video lottery license fee was due to the State of West Virginia. The Debtor states that it was licensed to operate 502 video lottery machines, and that the permit fee was $1,000 for each machine, or $502,000. W. Va. Code § 29-22B-1103. For the month of May 2006, the Debtor realized $233,667 in gross business revenues, and claimed to have a net operating profit of $21,130. In short, it appears that the Debtor had insufficient funds in its bank accounts to make the required payment to the State of West Virginia.
Each month the Debtor deducted from its gross operating revenue an amount due for "taxes and licenses." As of December 31, 2005, the Debtor allocated $609,796.36 for this expense category. From January 2006 through April 2006, the Debtor had paid into this expense category $216,926.70. No satisfactory explanation is before the court detailing where this money went.
Without court approval, Francis Tucker, executed two post-petition loan agreements with Mr. Fromhart on behalf of the Debtor. On April 10, 2006, the Debtor deposited $200,000 in loan proceeds in its "State" bank account. Mr. Fromhart asserts that this deposit represents the proceeds of his loan. That loan was not reduced to writing until May 30, 2006, but the promissory note states that "the parties agree that the sum was loaned on the 23rd day of December 2005." The loan's interest rate is 16% per annum, and payments were to be $615.38 per week, made by the Debtor to Mr. Fromhart in the form of wages. Also, the Debtor agreed to provide Mr. Fromhart and his family with health insurance, and to suspend all rent for a tavern owned by Mr. Fromhart so long as Mr. Fromhart, his spouse, and his sons, were living. The loan was an unsecured, cash transaction.
In addition to the $200,000 deposited in the Debtor's bank account on April 10, 2006, Francis Tucker negotiated a second loan from Mr. Fromhart in the amount of $500,000. The proceeds from this loan were paid in installments from April 28, 2006 to May 1, 2006. The loan was an unsecured, cash transaction — $227,000 of the loan was cash transferred to the Debtor by Ms. Fromhart, and the remainder was from the proceeds of a loan that Mr. Fromhart obtained from a bank so that he could re-lend the money to the Debtor. Like the first loan, this second loan was also reduced to writing on May 30, 2006. The loan was to be repaid by the Debtor at a 7.5% annual interest rate, and the note called for monthly payments until the loan was paid. Francis Tucker states that the loans from Mr. Fromhart enabled the Debtor to make its annual video lottery license payment, and allowed the Debtor to continue its operations.
Regarding the need for court approval of these post-petition loan transactions, Francis Tucker stated in his affidavit that he was in constant contact with the Debtor's bankruptcy attorney regarding the need of the Debtor to raise capital. When he mentioned the possibility of obtaining a loan from Mr. Fromhart, the Debtor's attorney said that Francis Tucker and Mr. Fromhart must obtain court approval. Based on that conversation, Mr. Fromhart made the $500,000 loan. After the loan was made, Francis Tucker stated that he informed the Debtor's attorney, who allegedly stated that he would obtain court approval for the transaction.
On May 16, 2007, Mr. Fromhart first filed his applications for administrative expenses. Six claims were filed in the total amount of $1,040,000; four of the applications concerned loans made to an affiliated debtor company, Mound City, and two applications represented the $700,000 in loans made to the Debtor. All of the applications were withdrawn without explanation on July 23, 2007, but Mr. Fromhart asserts that the applications in the Debtor's case for administrative expenses in the amount of $200,000 and $500,000 were withdrawn improperly. Mr. Fromhart also claims to have no knowledge of the remaining four administrative expense claims filed in his name.
On November 6, 2007, the Debtor filed its Amended Disclosure Statement and Plan of Reorganization. No administrative claim was listed in favor of Mr. Fromhart based on the earlier withdrawal of his claims. On December 14, 2007, the Court confirmed the Debtor's plan, which called for a transfer of stock ownership from Francis Tucker to his brother Tom Tucker (490 shares), an attorney, Rod Berry (20 shares), and the remainder to the entity that recapitalized the Debtor, Alexas Entertainment, LLC (490 shares). Alexas also holds a note payable to it by the Debtor in the amount of $724,000. As represented by the Debtor, this arrangement was necessary because the majority of the shareholders in a West Virginia video lottery business must be residents of West Virginia and Alexas is a foreign business entity.
II. DISCUSSION
The Debtor argues that Mr. Fromhart cannot have an administrative claim against its bankruptcy estate on the grounds that Mr. Fromhart failed to follow the requirements for post-petition financing set forth in 11 U.S.C. § 364. Mr. Fromhart contends that his loans helped the Debtor operate, and that the court should give nunc pro tunc approval to his post-petition lending such that he be allowed an administrative claim against the estate. Construing all inferences in favor of Mr. Fromhart as the non-moving party on summary judgment, the court agrees with the Debtor that Mr. Fromhart's claims for administrative expenses should be denied.
Mr. Fromhart also contends that the Debtor's motion for summary judgement should be denied on the basis that the Debtor's counsel needs to be deposed, and, in general, that more discovery is necessary. Mr. Fromhart, however, has failed to meet the requirements of Fed.R.Civ.P. 56(f), and has not submitted an affidavit showing that he cannot present facts essential to justify his opposition to summary judgment. Moreover, Mr. Fromhart has not identified the particular information sought, or how that information will preclude entry of summary judgment.
Section 364 of the Bankruptcy Code provides four methods for a debtor in bankruptcy to obtain post-petition credit; only two of those methods are applicable in this case. First, a debtor may obtain unsecured credit and incur unsecured debt in the ordinary course of business. § 364(a). The creditor is rewarded for continuing to do business with the debtor by an administrative expense claim against the estate under § 503(b)(1), which, if not timely paid, is entitled to second tier priority under § 507(b)(2). § 364(a). The administrative expense claim available under § 364(a) is generally entitled to full payment in a confirmed Chapter 11 plan. § 1129(a)(9). Second, a debtor may obtain court approval to obtain unsecured credit and incur unsecured debt outside of the debtor's ordinary course of business. § 364(b). A creditor that lends to a debtor outside the ordinary course of business is also entitled to an administrative expense claim against the estate. Id.
Not applicable to this case are §§ 364(c) and 364(d). Under § 364(c), if the debtor is unable to obtain unsecured credit either in or out of the ordinary course of business based on the enticement of an administrative expense claim, three options are available to bait the creditor: a super-priority administrative expense, a lien on property of the estate that is not otherwise secured by a lien, or a junior lien on property of the estate that is already subject to a lien. Under § 364(d), the court may approve the imposition of a senior or equal lien on property of the estate that is already subject to liens if the debtor cannot otherwise obtain credit and the existing lien holders are afforded adequate protection.
In this case, the only issues are whether: (1) Mr. Fromhart's loans to the Debtor were in the ordinary course of the Debtor's business under § 364(a), or, (2) if the loans were not in the ordinary course of the Debtor's business, should Mr. Fromhart's failure to obtain court approval for his post-petition lending be excused. As the party seeking the allowance of an administrative expense claim, Mr. Fromhart bears the burden of proof on both issues. E.g., In re Merry-Go-Round Enterprises, 180 F.3d 149, 157 (4th Cir. 1999) (creditor has burden of proving an administrative expense claim); General Amer. Transp. Corp. v. Martin (In re Mid Region Petroleum, Inc.), 1 F.3d 1130, 1132 (10th Cir. 1993) ("[T]he party claiming entitlement to administrative expense priority has the burden of proof"); In re Alpha Corp. of Virginia, No. 91-1809, 1992 U.S. App. LEXIS 30367 at *10 (4th Cir. Nov. 18, 1992) ("Because the debtor-in-possession did not get court approval for incurring this indebtedness, the burden was upon [the administrative expense claimant] to prove that it was incurred in the ordinary course of business.").
1. Borrowing in the Ordinary Course of Business
In support of his assertion that his $700,000 in loans to the Debtor were made in the Debtor's ordinary course of business, Mr. Fromhart directs the court's attention to the affidavit of Francis Tucker:
Cash flow was a vital day to day concern of OVAC. Some of the cash flow concerns were relieved by a series of loans from Brad Fromhart ("Fromhart"), each loan in the amount of $100,000. All but one of these loans from Fromhart to OVAC, during the latter part of 2005, were repaid. I didn't think we needed any court approval for these loans, so I didn't think to mention or run these loans past our Bankruptcy Attorney. They seemed like ordinary month to month transactions.
(Document No. 1095).
"[T]he courts have engaged in a two-step inquiry for determining whether a transaction is in 'the ordinary course of business': a 'horizontal dimension' test and a 'vertical dimension' test." In re Roth Am., Inc., 975 F.2d 949, 952 (3d Cir. 1992) ( citing Benjamin Weintraub Alan Resnick, The Meaning of "Ordinary Course of Business" Under the Bankruptcy Code — Vertical and Horizontal Analysis, 19 UCC L.J. 364 (1987)); see also 3 Collier on Bankruptcy, ¶ 363.03[1] (Alan N. Resnick Henry J. Sommer eds., Matthew Bender 2008) (explaining the vertical and horizontal dimension tests).
The "horizontal dimension" test, considers "whether from an industry-wide perspective, the transaction is of the sort commonly undertaken by companies in that industry." Roth Am., 975 F.2d at 953. See also Martino v. First Nat'l Bank (In re Garofalo's Finer Foods), 164 B.R. 955, 962-63 (Bankr. N.D. Ill. 1994), aff'd in part and rev'd in part, 186 B.R. 414 (N.D. Ill. 1995). The "vertical dimension" test considers the creditors' expectations and whether the economic risk of the transaction is different from those accepted by creditors that extended credit to the debtor pre-petition. See, e.g., In re James A. Phillips, Inc., 29 B.R. 391, 394 (S.D.N.Y. 1983) (concluding that "ordinariness" is a creditor's expectation of transactions a debtor is likely to undertake in the ordinary course of business). Consonant with the horizontal and vertical dimension tests, the Court of Appeals for the Fourth Circuit in Bowers v. Atlanta Motor Speedway (In re Southeast Hotel Props. Ltd. P'ship), 99 F.3d 151, 158 (4th Cir. 1996), analyzed a post-petition transaction to see whether the type of transaction was a "common practice" in the debtor's industry, and whether a creditor could "reasonably expect" a debtor to enter into that type of post-petition transaction.
At the time it obtained the loans from Mr. Fromhart, the Debtor was engaged in the video lottery business. Primarily, the Debtor leased video lottery machines to various business establishments and received a percentage of each video lottery machine's revenue. Although the parties have not presented the court with evidence of the types of transactions that are common in the video lottery industry, logically, one could expect any business to resort to a lender in an effort to overcome cash flow problems, but such borrowing is not necessarily regarded as being in the ordinary course of a debtor's business. E.g., Dobin v. Presidential Fin. Corp. (In re Cybridge Corp.), 304 B.R. 681, 686 (Bankr. D.N.J.) ("Cybridge is in the business of entering into personal service contracts. Secured borrowing is not the essence of Cybridge's business. . . . It is undoubtedly true that virtually all businesses rely on credit; that does not lead to the conclusion that secured borrowing is ordinary course."), aff'd 312 B.R. 262 (D.N.J. 2004). Although Mr. Fromhart apparently made several unauthorized loans to the Debtor, the court does not believe that borrowing large sums of money, in cash, off the books of the Debtor is a type of transaction that is a common practice in the Debtor's video lottery industry, and certainly not one that a creditor would reasonably expect to the Debtor to engage in.
It does not appear as if the Debtor itself considered the loans from Mr. Fromhart to be in its ordinary course of business. From February 2006 to June 2006, the Debtor's balance sheet reflects $750,000 in current notes payable. Apparently, the Debtor did not carry the loans from Mr. Fromhart — which were received in April and May 2006 — on its books as a business expense. Moreover, the Debtors balance sheet for the same period of time shows declining balances in the Debtor's long term loans payable. In addition, Francis Tucker stated that he informed his bankruptcy counsel about the need to obtain post-petition financing, and he stated that the Debtor's bankruptcy counsel told him that the Debtor would have to obtain court approval for any such loan.
It would certainly strain credulity to anoint the two loans from Mr. Fromhart to the Debtor as transactions within the ordinary course of the Debtor's business given that over half the proceeds — $427,000 out of $700,000 — were provided in cash, off the books of the Debtor, and carried with them rather unusual terms. In this court's experience, the transactional structure of the Fromhart loans were, at the very least, unconventional, if not downright foolhardy. Based on the record before the court, and construing all inferences in favor of Mr. Fromhart as the non-moving party, the court concludes that borrowing money to finance a video lottery business is an extraordinary transaction that is not commonly undertaken in the operation and leasing of video lottery machines, and, moreover, that a creditor could not reasonably expect the Debtor to enter into the transactions at state here upon such irregular terms.
Consequently, Mr. Fromhart's loans to the Debtor were not made in the Debtor's ordinary course of business and do not qualify as an administrative expense under 11 U.S.C. § 364(a).
2. Borrowing Outside the Ordinary Course of Business
Mr. Fromhart agrees that he never obtained court approval for his post-petition loans to the Debtor. Nevertheless, Mr. Fromhart contends that it is appropriate for the court to grant nunc pro tunc approval of his loans. Nunc pro tunc approval is necessary, Mr. Fromhart argues, based on the compelling equities of the case. Mr. Fromhart asserts that without nunc pro tunc approval, the Debtor will be unjustly enriched, and that the Debtor, "in effect, manipulated [him] to loan his life savings."
The plain language of § 364(b) requires court approval — "after notice and a hearing" — of any unsecured credit or debt incurred outside the ordinary course of the Debtor's business. Assuming that the requirements for gaining court approval for a loan outside a debtor's ordinary course of business under § 364(b) are met, nunc pro tunc approval of that extension of credit generally requires "extraordinary" circumstances. Courts have cited the following factors for consideration in determining whether nunc pro tunc approval of a previously unauthorized loan is appropriate:
1. Whether the court is confident that it would have approved the loan if the application for court approval had been timely made;
2. Whether the court is reasonably persuaded that no creditor has been harmed by the continuation of the business made possible by the loan;
3. Whether the debtor and the lender honestly believed they had the authority to enter into the transaction.
In re Lite Coal Mining Co., 122 B.R. 692, 695-96 (Bankr. N.D.W. Va. 1990) (citing In re Am. Cooler Co., 125 F.2d 496 (2d Cir. 1942) (addressing nunc pro tunc approval of lien pursuant to § 3 64(d)). Other courts add the requirement that there must be "something more compelling in the nature of equities and absence of prejudice to interested parties to allow such an extraordinary dispensation." In re Lehigh Valley Prof'l Sports Clubs, Inc., 260 B.R. 745, 751 (Bankr. E.D. Pa. 2001); see also In re Blessing Indus., 263 B.R. 268, 274 (Bankr. N.D. Iowa 2001) ("[A] party seeking a nunc pro tunc order in this context must satisfy all three factors set forth in American Cooler, as well as demonstrate that extraordinary, if not unusual, circumstances exist which warrant ex post facto approval.").
Here, the court is not at all confident that it would have approved the $200,000 loan, or the loan terms, if they had timely been presented to the court. Mr. Tucker states that the $200,000 was used in the Debtor's ordinary course of business to fund its operations, but other than a bank account entry reflecting a $200,000 deposit on April 10, 2006, no corresponding entry exists on the Debtor's balance sheet reflecting the new liability. In fact, from January 2006 through March 2006, the Debtor reported net positive income of $82,351.68, and it does not appear from the Debtor's statement of revenues and expenses that it needed the loan to fund its continuing operations. The loan from Mr. Fromhart may be related to a one-time "Bad Debt Expense" deduction from income entry on the Debtor's April 2006 Statement of Revenues and Expenses, but no explanation is before the court as to what that expense entails. In fact, "bad debt expense" entries are normally associated with accounts receivables that cannot be collected — they are not expenses that must be paid to third parties and are not deducted from gross revenues in a cash-based accounting method.
Also, the purported terms of the loan are atypical. Loan payments were to be in the form of wages, the Debtor agreed to provide Mr. Fromhart with health insurance, and to suspend all rent due from Mr. Fromhart's business establishment known as Elites. Although the loan was made on April 10, 2006, the parties agreed that the loan date was deemed to be December 23, 2005, and the loan was not reduced to writing until May 30, 2006. Both the circumstances of the loan, and the loan terms, are highly unusual. The loan was in cash, and the requirement that Mr. Fromhart be paid wages was likely in violation of the video lottery lease agreement between the Debtor and Mr. Fromhart's tavern that required both the Debtor and Elites to be independent contractors. In sum, the court is not confident that it would have approved the $200,000 loan had a timely application been made by the parties to the court because it does not appear as if the Debtor needed the money based on its Statement of Revenues and Expenses, the money was loaned off the Debtor's books, and the terms of the loan are highly unusual and problematic.
Counsel for the Debtor also asserted that video lottery operator cannot employ a person working for a video lottery retailer under applicable State law.
Regarding the $500,000 loan made by Mr. Fromhart to the Debtor, funded on April 28th and May 1, 2006, and reduced to writing on May 30, 2006, the Debtor's bank records reflect that the Debtor was short on cash. The total sum in the Debtor's four bank accounts as of May 1, 2008 was $144,660, and the Debtor's "operating" bank account had a negative balance of $34,410. For the month of May 2006, the Debtor realized $233,667 in gross business revenues, and had a net operating profit of $21,130. The Debtor's annual $502,000 video lottery license fee was due on May 1, 2006. Without the $500,000 loan from Mr. Fromhart, it does not appear as if the Debtor would have been able to make that payment. Unlike the $200,000 loan that was funded in April 2006, the $500,000 loan has more conventional terms (although half of it was in cash, and it may have violated the parties' video lottery lease agreement and applicable State law). It bears interest at 7.5%, and calls for monthly payments until paid. In fact, the court approved a similar type loan made by Alexas to the Debtor in 2007 to pay the same yearly video lottery license fee.
Assuming, without deciding, that the court would have approved of Mr. Fromhart's $500,000 loan to the Debtor, and that no creditor has been harmed by the continuation of the Debtor's business that was made possible by the loan, the court finds no evidence to support the requirement that the Debtor and Mr. Fromhart honestly believed that they had authority to enter the transaction without court approval.
By April 2006, the Debtor had been operating under bankruptcy protection for over three years. As early as March 17, 2003, the Debtor had requested permission from the court to incur post-petition debt so that it could purchase new video lottery machines. At all relevant times, the Debtor was represented by competent counsel who knew the requirements of 11 U.S.C. § 364, and how to obtain court approval to incur post-petition debt. No reason has been advanced by any party as to why Francis Tucker, on behalf of the Debtor, and Mr. Fromhart failed to seek court approval of their loan transaction. Attempting to explain this failure, Mr. Fromhart submitted the affidavit of Francis Tucker:
For several weeks before the May 2006 deadline to pay the State of West Virginia, I was in constant communication with our Bankruptcy Attorney regarding the urgency of getting money for the license. I mentioned the possibility of getting a loan from Brad Fromhart — like all the other loans we got from him — to our Bankruptcy Attorney, who said we should get court approval. I asked Fromhart for the loan. Fromhart loaned the money. Our Bankruptcy Attorney said he would get court approval. Our Bankruptcy Attorney told me this over the phone while Fromhart was in OVAC's office making sure his loan was safe. I don't know why court approval was never gotten. About the time of all this, a company named Alexas became more and more interested in OVAC.
Contrary to Francis Tucker's assertion, the time records for the Debtor's attorney, submitted to the court in his application for compensation, fail to reflect any time entries related to obtaining a loan from Mr. Fromhart in April of May of 2006. There are no time entries between March 28, 2006 and May 15, 2006.
In sum, both Francis Tucker and Mr. Fromhart knew that they had to obtain court approval before Mr. Fromhart could make the loan to the Debtor. Notwithstanding that knowledge, Mr. Fromhart proceeded at his own peril and loaned $500,000 to the Debtor, on an unsecured basis, without taking any steps to first obtain the court's approval. Nunc pro tunc approval of a post-petition loan is not available to a party that knows court approval of the loan is necessary, but then fails to take affirmative steps to obtain that approval before loaning the money. E.g., Bezanson v. Indian Head National Bank et al., (In re J.L. Graphics), 62 B.R. 750, 755 n. 1 (Bankr. D.N.H. 1986) ("In this procedural context, in which relief is available in a matter of days even hours if the circumstances are urgent the rationale for permitting retroactive validation orders for secured borrowing and attachment of liens to post-petition transactions no longer exists."), aff'd, 818 F.2d 1027 (1st Cir. 1987).
It is astounding to the court that Mr. Fromhart engaged in at least two loan transactions with the Debtor over the course of three weeks in which he loaned $700,000 to the Debtor, well over half of it in cash, and did so apparently without the benefit of legal counsel or more conventional transactional structuring. The assistance of competent legal counsel could have saved Mr. Fromhart considerable difficulty and untoward consequences.
IV. CONCLUSION
The loans allegedly made by Mr. Fromhart to the Debtor were not made in the ordinary course of the Debtor's video lottery gaming business. No court approval was obtained for the loans, and nunc pro tunc approval is not applicable in this case because the court is not convinced that the $200,000 loan was necessary to continue the Debtor's operations, or that it would not have approved of the terms for the $200,000 loan had those terms been presented to it. Nunc pro tunc approval of the $500,000 loan is improper because it was made without court approval when the parties both knew that court approval was necessary.
Regarding the status of unauthorized post-petition loans to a debtor, Collier on Bankruptcy, provides the following guidance:
Where the borrowing is out of the ordinary course of business and prior court authorization is not obtained, the lender may be relegated to the status of a general unsecured creditor or the loan transaction may be cancelled or disregarded. Indeed, it could be argued that if the loan is not entitled to administrative expense treatment, it is not a claim recognizable in the bankruptcy, since it is neither a prepetition claim nor a claim treated under section 502 or 503 as if it had arisen prepetition. The debtor's failure to obtain court approval before entering into postpetition financing agreements may also support a finding of bad faith, warranting dismissal of the bankruptcy case.
3 Collier on Bankruptcy ¶ 364.03[2] (Alan N. Resnick Henry J. Sommer, eds., 15th ed. rev. 2008).
The court is making no determination in the context of the Debtor's motion for summary judgment on how to treat the claim of Mr. Fromhart against Francis Tucker and/or the Debtor. The court is only determining that his claim is not entitled to administrative expense status under 11 U.S.C. § 503(b).
Notice Recipients
Recipients submitted to the BNC (Bankruptcy Noticing Center) without an address: Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0424-5 User: bjc Date Created: 12/1/2008 Case: 5:03-bk-50356 Form ID: pdfdoc Total: 191 aust Robert Michael Umberger cr Myron D. Yoho fa Inglewood Associates, Inc. ex Robert L. Nistendirk 684604 MARLET L GOODWIN TOTAL: 5 ust United States Trustee ustpregion04.ct.ecf@usdoj.gov intp Martin P. Sheehan sheehanparalegal@mail.wvdsl.net aty Arch W. Riley, Jr. arileyjr@spilmanlaw.com aty David A. Riggi wvbkdar@gmail.com aty David Kevin Coleman dkc@schraderlaw.com aty Debra A. Wertman debra.a.wertman@usdoj.gov aty Donald J. Epperly epperldj@steptoe-johnson.com aty Douglas A. Kilmer douglas.a.kilmer@usdoj.gov aty James Helton Joseph jjoseph@spilmanlaw.com aty James Helton Joseph jjoseph@spilmanlaw.com aty James T. McClure jmcclure@gmmlegal.com aty Jennelle Harper Jones wvbankruptcy@tax.state.wv.us aty Kevin L. Neiswonger kevin@nwlawoffice.com aty Kristian White kristian.white@steptoe-johnson.com aty Larry M. Bonham larry.bonham@wvinsurance.gov aty Randy Dean Gossett rdglaw@comcast.net aty Richard M. Francis kfrancis@bowlesrice.com aty Robert W. Trumble trumble275@aol.com aty Rodney T. Berry rberry100@aol.com aty Steven L. Thomas s.thomas@kaycasto.com TOTAL: 20 db Ohio Valley Amusement Company 231 Jefferson Avenue Moundsville, WV 26041-1437 consult Randolf E. Richardson 41 15th Street Wheeling, WV 26003 acc Kevin Smith Anthony and Associates 1144 Market Street Suite 204 Wheeling, WV 26003 cr Wayne Jones Betson Pittsburgh Distribution 2707 West Carson Street Pittsburgh, PA 15204 cr David P. Gollday TriState Security, Inc. Post Office Box 2238 Wintersville, OH 43953 cr James E. Swann, Jr. National Equipment Company One Fourteenth Street Wheeling, WV 26003 cr Gent Culver Kalkreuth Roofing and Sheet Metal, Inc. Post Office Drawer 6399 Wheeling, WV 26003 cr Patricia Smith Kalkreuth Roofing and Sheet Metal, Inc. Post Office Drawer 6399 Wheeling, WV 26003 cr Union Bank of Tyler County PO Box 145 Middlebourne, WV 26149 cr West Virginia State Tax Division Post Office Box 766 Charleston, WV 25323-0766 cr Firestone Financial Corp. c/o Donald J. Epperly Steptoe Johnson PLLC P.O. Box 2190 Clarksburg, WV 26301-2190 cr Allan Hart Post Office Box 525 Chester, WV 26034 cr Susan A. Bane RD 1, Box 220 Moundsville, WV 26041 cr Greg George 45052 National Road St. Clairsville, OH 43950 cr Donald Zavolta 106 Longview Avenue Mingo Junction, OH 43938 cr Charles Hammer 501 Tenth Street Apartment 202 Moundsville, WV 26041 cr Ohio River Amusement, L.L.C. 3166 Main ST Weirton, WV 26062 intp Rodney T. Berry Berry, Kessler, Crutchfield. Taylor Go 514 Seventh Street Moundsville, WV 26041 aty David A. Riggi 326 Gaston Avenue Fairmont, WV 26554 aty Carl H Cather, III Spilman, Thomas Battle, PLLC 150 Clay Street, 2nd Floor P.O. Box 615 Morgantown, WV 26507-0615 aty Eric M. Gordon 514 7th Street Moundsville, WV 26041 aty Gerald G. Jacovetty, Jr. Post Office Box 649 Wheeling, WV 26003 aty Henry Simon Barlow Garsek Simon, LLP 3815 Lisbon Street Fort Worth, TX 76107 aty James W. Martin, Jr. Siegrist White PLLC P. O. Drawer 2550 Clarksburg, WV 26302 aty John M. Butler P.O. Box 700 St. Marys, WV 26170 aty John Preston Bailey Riley Bldg., STE 900 P.O. Box 631 Wheeling, WV 26003 aty Martin P. Sheehan Sheehan Nugent, PLLC 41 15th Street Wheeling, WV 26003 aty Marye L. Wright Workers' Compensation Commission Post Office Box 2027 Charleston, WV 25327-2027 aty Robert A. Simon Barlow Garsek Simon, LLP 3815 Lisbon Street Fort Worth, TX 76107 aty Robert L. Nistendirk 231 Capitol Street Suite # 400 Charleston, WV 25301 aty Rodney T. Berry Berry, Kessler, Crutchfield Taylor 514 Seventh Street Moundsville, WV 26041 aty Ronald W. Zavolta 1140 Main Street Fl 3 Wheeling, WV 26003 aty Todd M. Kildow Phillips, Gardill, Kaiser Altmeyer 61 Fourteenth Street Wheeling, WV 26003 684348 ACE HARDWARE 134 NORTH LAFAYETTE AVENUE MOUNDSVILLE WV 26041 684531 ACE HARDWARE 134 NORTH LAFAYETTE AVENUE MOUNDSVILLE WV 26041 684532 ADELINE LOPER 150 GRANDVIEW DRIVE WELLSBURG WV 26070 684350 ADVANTAGE PAYROLL SERVICES 111 PARKVIEW LANE WHEELING WV 26003 684351 AEP PO BOX 24400 CANTON OH 44701-4400 684533 AEP PO BOX 24400 CANTON OH 44701-4400 684352 AL HART PO BOX 525 CHESTER WV 26034 684534 ALLEGHENY POWER PO BOX 1392 FAIRMONT WV 26555-1392 684535 AM LEGION POST 114 538 WASHINGTON STREET NEWELL WV 26050 684536 AM LEGION POST 89 1419 JACOB STREET WHEELING WV 26003 684356 ANTHONY ASSOCIATES 1144 MARKET STREET LACONIA BUILDING SUITE 204 WHEELING WV 26003 684357 ARACHNID PO BOX 2901 ROCKFORD IL 61132-2901 684358 AT T PO BOX 9001309 LOUISVILLE KY 40290-1309 684359 AT T WIRELESS PO BOX 6028 CERRITOS CA 90703-6028 684360 ATM DISTRIBUTING 11012 AURORA HUDSON ROAD STREETSBORO OH 44241 684437 ATTN SPECIAL PROCEDURES STAFF INTERNAL REVENUE SERVICE P O BOX 1040 ROOM 2301 PARKERSBURG WV 26102-1040 684439 ATTORNEY GENERAL OF WV BUILDING 1 E 26 GROUND FLOOR MAIN UNIT CAPITOL BUILDING CHARLESTON WV 25301 1045582 Alexas Entertainment, LLC BARLOW GARSEK SIMON, LLP 3815 Lisbon Street Fort Worth, TX 76107 697273 Allegheny Power Post Office Box 1392 Fairmont WV 26555-1392 689373 American Electric Power Post Office Box 2021 Roanoke VA 24022-2121 684361 BETSON PITTSBURGH DISTRIBUTING 2707 W CARSON STREET PITTSBURGH PA 15204 684364 BRENDA S TAYLOR ROCK TAVERN ROUTE 3 BOX 291A CAMERON WV 26033 684539 BUDDY S AKA SIPPI S 128 FIFTEENTH STREET WHEELING WV 26003 710995 Betson Pittsburgh Distribution 2707 West Carson Street Pittsburgh PA 15204 684541 CAMERON COFFEE SHOP 30 RAILROAD STREET CAMERON WV 26033 684366 CARDELLO ELECTRIC 2201 MAIN STREET WHEELING WV 26003 684542 CARDELLO ELECTRIC 701 NORTH PT DRIVE PITTSBURGH PA 15233 684367 CARNEY SLOAN 518 MAIN STREET WHEELING WV 26003 684368 CAS FROSTY PO BOX 4225 STEUBENVILLE OH 43952 684544 CAS FROSTY PO BOX 4225 STEUBENVILLE OH 43952 684369 CATHY TUCKER 15 MICHELLE COURT GLEN DALE WV 26038 684546 CHECKERED FLAG 125 Barnhart Street Weirton WV 26062-2703 684547 CLUB 17 106 NORTH 17TH STREET WARWOOD WV 26003 684554 CORNER LUNCH SEVENTH COMMERCE WELLSBURG WV 26070 684370 CRYSTAL SPRINGS WATER PO BOX 6189 WHEELING WV 26003 684555 CURLY S 712 MYRTLE AVENUE MOUNDSVILLE WV 26041 689697 Club 17 104 North 17th Street Wheeling WV 26003 684556 DANNY H BURKEY 1 BANK PLAZA WHEELING WV 26003 684433 DEBRA WERTMAN ASSISTANT U S TRUSTEE 300 VIRGINIA ST EAST RM 2025 CHARLESTON WV 25301 684559 DEN OF FOXES 3068 MAIN STREET WEIRTON WV 26062 684563 ELK S 1553 834 CHARLES STREET WELLSBURG WV 26070 684565 ELK S LODGE 74 1819 JACOB STREET WHEELING WV 26003 684569 FINNEGANS 1431 MARKET STREET WHEELING WV 26003 1013450 Firestone Financial Corporation 27 Christina Street P.O. Box 610325 Newton, MA 02461 711542 First Lease, Inc. Theodore Kapnek 185 Commerce Drive, Unit 102 Fort Washington, PA 19034 684573 G G 1429 MARKET STREET WHEELING WV 26003 684574 GARIBALDI LODGE 670 MAIN STREET FOLLANSBEE WV 26037 684378 GARY TUCKER 615 WHEELING AVENUE GLEN DALE, WV 26038-1641 684379 GREG GEORGE 45042 NATIONAL ROAD SAINT CLAIRSVILLE OH 43950 684578 HAYNES HEATING AND AIR COND. 258 JEFFERSON AVENUE MOUNDSVILLE WV 26041 684580 HOME ELECTRIC SUPPLIES 86 SUN VALLEY GLEN DALE WV 26038-1222 684384 HOSFELTS ELECTRONICS 2700 SUNSET BLVD STEUBENVILLE OH 43952 684582 HOT SHOTS 649 CAROLINA AVENUE CHESTER WV 26034 684583 HUDSON HOUSE SALOON 1233 MAIN STREET WELLSBURG WV 26070-1415 684385 HUNTINGTON NATIONAL BANK ROBERT A HUNT SPECIAL ASSETS SOUTHEAST REGION PO BOX 633 CHARLESTON WV 25322 684584 HUNTINGTON NATIONAL BANK SPECIAL ASSETS SOUTHEAST REGION PO BOX 633 CHARLESTON WV 25322 684585 HURRICANE CLUB 3179 MAIN STREET WEIRTON WV 26062 718000 IGT International Game Technology Post Office Box 10580 Reno, NV 89521 684386 INTERNATIONAL GAME TECHNOLOGY 9295 PROTOTYPE DRIVE PO BOX 10580 RENO NV 89510-0580 1037777 Internal Revenue Service P.O. Box 21126 Philadelphia PA 19114-0326 684587 JACK HINERMAN 109 CHESTNUT STREET SISTERSVILLE WV 26175 684392 JERRY MCCLURE 212 MORTON AVENUE MOUNDSVILLE WV 26041 684591 K OF C 3734 1 COVE HILL ROAD WEIRTON WV 26062 684592 K OF C MOUNDSVILLE 1200 SECOND STREET MOUNDSVILLE WV 26041 684594 KALKREUTH ROOFING 41 40TH STREET WHEELING WV 26003 684395 KING OF CLUB ASSOCIATION 2102 MAIN STREET WHEELING WV 26003 684596 KING OF CLUBS 2102 MAIN STREET WHEELING WV 26003 690665 Kalkreuth Roofing 41 40th Street Wheeling WV 26003 684599 LEDO S 1201 PENNSYLVANIA AVENUE WEIRTON WV 26062 684397 LEE AND GARY WOOD LEE S RESTAURANT RD 3 BOX 398 CAMERON WV 26033 684600 LEE S RESTAURANT RD 3 BOX 398 CAMERON WV 26033 684601 LUCKY LADY SALOON ASSN 17 BRIDGE ST CAMERON WV 26033-1130 789786 Loranger Mfg. Corporation 10083 Oakridge Drive Wexford, PA 15090-9762 1036125 M.L.H., LLC 777 Main Street, Suite 3100 Fort Worth, TX 76102 684399 MARATHON ASHLAND OIL 539 SOUTH MAIN STREET CCC MAIL DESK FINDLAY OH 45840 684400 MARCIA J THOMPSON MARTS DINER 15 BRIDGE STREET CAMERON WV 26033 684603 MARINO S ITALIAN PIZZA 3854 MARION DRIVE WEIRTON WV 26062 1035216 MAZZCO 106 GARLISCH DR. ELK GR, IL 60007-1316 684402 MAZZCO 106 Garlisch Dr Elk Gr IL 60007-1316 684606 MEIGHEN COUNTRY CLUB RD 1 BOX 48A GLEN EASTON WV 26039 684607 MOOSE LODGE 1087 233 JEFFERSON AVENUE MOUNDSVILLE WV 26041 684608 MOUNDSVILLE REFUSE SERVICE PO BOX E MOUNDSVILLE WV 26041 684609 MOUNDVILLE WATER DEPT PO BOX 480 MOUNDSVILLE WV 26041 684403 MTS SEATING 7100 INDUSTRIAL DRIVE TEMPERANCE MI 48182 684611 MUG SHOTS 3327 PENNSYLVANIA AVENUE WEIRTON WV 26062 684404 NATIONAL EQUIPMENT CO INC 1 FOURTEENTH STREET WHEELING WV 26003 684405 NEUTRON 7107 NORTH BLACK CANYON HIGHWAY PHOENIX AZ 85021 684406 NEXTEL 1344 COVE HILL ROAD WEIRTON WV 26062 684613 NICHOLAS RENZELLA 1519 MARSHALL LANE GLEN DALE WV 26038 684407 NORTHERN HANCOCK BANK 3RD WASHINGTON NEWELL WV 26050 684616 NORTHERN HANCOCK BANK 3RD WASHINGTON STREET NEWELL WV 26050 684617 OASIS LOUNGE 103 SOUTH 11TH STREET WEIRTON WV 26062 684618 OHIO VALLEY AMUSEMENT COMPANY 212 MORTON AVENUE MOUNDSVILLE WV 26041-1456 684408 OHIO VALLEY FORD 20 JEFFERSON AVENUE EXT. MOUNDSVILLE WV 26041 1042028 Ohio River Amusement, L.L.C. 3166 Main ST Weirton, WV 26062 684624 PASCO S PIZZA 758 NORTH MAIN STREET NEW MARTINSVILLE WV 26155 684627 PESO CLUB 825 LAFAYETTE AVENUE MOUNDSVILLE WV 26041 684411 PESO CLUB ASSOCIATION PESO CLUB 825 LAFAYETTE AVENUE MOUNDSVILLE WV 26041 684628 PIER 12 30 TWELFTH STREET WELLSBURG WV 26070 684630 POES BAR GRILL RR 5 BOX 250 CAMERON WV 26033-9509 684413 PRECISION PRINTED PRODUCTS PO BOX 2059 WHEELING WV 26003 684631 REBECCA S LOUNGE 202 NORTH CHESTER ST NEW CUMBERLAND WV 26047 684415 ROBERT BUSCHE 8025 BREN DINA COURT MURRYSVILLE PA 15668 684635 SHORTY S PLACE RD 1 BOX 400 CHESTER WV 26034 684638 STEEL VALLEY LANES 450 ELAINE ST WEIRTON WV 26062 684418 STEVE RUNSINKO 9 CHEROKEE DRIVE MOUNDSVILLE WV 26041 684419 SUMMIT DISTRIBUTING LTD 2476 OVERLAND AVENUE BILLINGS MT 59102 714353 Summit Amusement Distributing Ltd Attention: Timothy D. Carson 2476 Overland Avenue Billings MT 59102 1043503 Susan A. Bane RD 1, Box 220 Moundsville, WV 26041 684641 THE DINER 3980 MAIN STREET WEIRTON WV 26062 684421 THE KOFFEE SHOP INC 128 FIFTEENTH STREET WHEELING WV 26003 1094197 TOMS DINNER BELL TOMKAT LLC RR 1 BOX 494 MOUNDSVILLE, WV 26041-9537 684643 TRAVELERS RD 1 BOX 347 MOUNDSVILLE WV 26041 684425 U P S PO BOX 650580 DALLAS TX 75265-0580 684426 UNION BANK OF TYLER COUNTY PO BOX 145 MIDDLEBOURNE WV 26149 684645 UNION BANK OF TYLER COUNTY PO BOX 4 5 MIDDLEBOURNE WV 26149 684434 UNITED STATES ATTORNEY S OFFICE POST OFFICE BOX 591 WHEELING WV 26003-0011 684427 VERIZON PO BOX 660720 DALLAS, TX 75266-0720 684646 VFW POST 3526 208 NORTH CHESTER ST NEW CUMBERLAND WV 26047 684647 VFW POST 437 114 GRANT AVENUE MOUNDSVILLE WV 26041 711540 Verizon 1500 MacCorkle Avenue Room 203 Charleston WV 25314 684429 WEIRTON ELECTRIC 3061 MAIN STREET WEIRTON WV 26062 684648 WEIRTON ELECTRIC 3061 MAIN STREET WEIRTON WV 26062 684430 WESBANCO I BANK PLAZA WHEELING WV 26003 684649 WET N WILD 2102 MAIN STREET WHEELING, WV 26003 684650 WHEELING MUNICIPAL SERVICE 1500 CHAPLINE STREET WHEELING WV 26003 684435 WORKERS COMPENSATION PO BOX 3151 CHARLESTON WV 25332-3151 684442 WV BUREAU OF EMPLOYMENT PROGRAMS MARYE L WRIGHT COUNSEL LEGAL SERVICES DIVISION BANKRUPTCY POST OFFICE BOX 2027 CHARLESTON WV 25327-2027 684441 WV DEPT OF TAX AND REVENUE BANKRUPTCY UNIT P O BOX 766 CHARLESTON WV 25323-0766 1011055 WV Insurance Commission 1124 Smith Street Greenbrooke Building Charleston, WV 25305-0540 684431 WV STATE TAX DEPARTMENT SPECIAL PROCEDURES PO BOX 7 6 6 CHARLESTON WV 25323-0766 689997 WesBanco Bank, Inc. Attn: David Yeager One Bank Plaza Wheeling WV 26003 684432 ZEP MANUF ACTURING PO BOX 6 LEETSDALE PA 15056-0006