PETER WALSH, Chief Judge
Dear Mr. Werkheiser:
I understand that you represent the petitioning creditors in this chapter 7 involuntary case. Ten days ago, I received a February 17, 2011 letter from Martin J. Levine, CPA, one of the petitioning creditors. Attached is a copy of that letter together with seven pages of attachments.
I have no idea what Mr. Levine is complaining about and I did not receive any prior letter as referenced in paragraph three of his February 17, 2011 letter. I have docketed the February 17, 2011 letter, together with the attachments. I would appreciate your advising me as to the issues that Mr. Levine is addressing and whether they involve any matters that the Court should be addressing at this time.
Of course, your response should be docketed and I would appreciate a copy being delivered to Chambers.
Attachments
MARTIN J. LEVINE, CPA PO Box 457 Manasquan, New Jersey 08736 The Hon. Judge Peter J. Walsh February 17, 2011 United States Bankruptcy Court 824 No. Market Street Wilmington, Delaware 19801 Re: Making Virtual Solid, LLC; Case No: 10-12530 (PJW) Dear Judge Walsh:
The last piece of correspondence that I received from the court regarding the above referenced matter was in November 2010 stating "deadline by which to file proof of claim will be provided at a later date" (see attached) — I am awaiting an update.
Since the beginning of this matter I have filled out and faxed and mailed the "questionnaire for official committee of unsecured creditors in September 2010 (see attached) and I was told in passing by the trustee in December 2010 (no official notice) that there was no interest in a creditor's committee so one was not formed.
I sent to the debtor's attorney a 2004 request in accordance with local rules and it was ignored and I was told it was my problem by the trustee in January 2011. It also appears that my letter to you has been ignored.
To me, you have been have been derelict in you fiduciary responsibility to the creditors and are not following up on what to me as an accountant are flagrant discrepancies in what the debtor has provided (see my update to my last correspondence)
Very truly yours,
Martin J. Levine, CPA MARTIN J. LEVINE, CPA PO Box 457 Manasquan, New Jersey 08736 The Hon. Judge Peter J. Walsh United States Bankruptcy Court 824 No. Market Street Wilmington, Delaware 19801 Re: Making Virtual Solid, LLC; Case No: 10-12530 (PJW) Dear Judge Walsh:
As I was told that there was no interest in a creditor committee (which I still don't understand) I assume it then becomes the court's and the trustee's responsibility to protect our interests. I MUST ADD RIGHT NOW IT APPEARS THAT THIS IS "GOOD OL' BOY" TYPE PROCESS.
As such, let me lay out what I believe a creditor's committee would have questioned or found.
1 — We never got any documents at all and specifically the ones sought in conjunction with the 2004 examination which we requested on September 1, 2010. THE ATTORNEY FOR THE DEBTOR SAID IT WENT TO A DIFFERENT PARTNER AT THE FIRM THEREFORE IT WAS IGNORED, EVENTHOUGH IT COMPLIED WITH YOUR LOCAL RULES. THE TRUSTEE IGNORED IT AND DIDN'T COMPEL THE DOCUMENTS.
2 — Benchmark Electronics has a standard operating procedure which requires a signed purchase order in advance of any work being done and in the case of MVS in the past required payment in advance of starting the work. When and why did this change — THIS COULD NOT BE THE CASE AS BENCHMARK ELECTRONICS IS A PUBLIC COMPANY AND IS REQUIRED BY SARBANES-OXLEY TO HAVE THESE PROCEDURES AND ADHERE TO THEM.
Contact Information for Benchmark: `Susan Johnston, Vice President-Business Development, (504) 535-4500.
3 — Attached is the notice dated 6/23/10 stating they were conveying (I believe fraudulently) all the assets of MVS to MVS-California leaving all the liabilities in MVS (old). They state MVS-CA raised a total of $1,060. (Note: Ms Shulman testified she didn't remember but it was less than $100,000 — to me an intentional understatement). (
Exhibit B attached). IGNORED AS AN ISSUE BY THE TRUSTEE.
4 — The plan above was written and orchestrated by Mr. Bruce Maximov of Farella Braun Martell, LLP- and as listed on MVS website as legal counsel (
Exhibit C) but he is also legal counsel for MVS-Ca-yet all the bills were listed as a liability of MVS. IGNORED AS AN ISSUE BY THE TRUSTEE.
5 — If this were a legitimate licensing deal and not a fraudulent conveyance then why is MVS still paying for the leases and the cars yet the employees of MVS-CA are the sole users of them? IGNORED AS AN ISSUE BY THE TRUSTEE.
6 — The debts owed to Martin Levine, Arcellus Group, Levine Family Partnership are intentionally mischaracterized — they are solely Demand Notes and not loan/investment (
Exhibit D). IGNORED AS AN ISSUE BY THE TRUSTEE.
7 — ATTACHED IS THE LAST PIECE OF CORRESPONDENCE I RECEIVED — STILL HAVE NOT BEEN ASKED TO FILE A CLAIM —
It is quite evident that The Court will ignore the creditors unless they spend money on an attorney. It is a disgusting and shameful attitude.
We are relying on you to do the right thing.
Very truly yours,
Martin J. Levine, CPA IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: : Chapter 11 : Making Virtual Solid, L.L.C., : Case No. 10-12530 (PJW) : Debtor. : :
NOTICE OF COMMENCEMENT OF CHAPTER 11 BANKRUPTCY CASE(S), MEETING OF CREDITORS AND FIXING OF CERTAIN DATES
On September 13, 2010, the Court entered an Amended Order for Relief in the above-captioned case for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. § 101 through 1330 (the "Bankruptcy Code"). The Debtors' address, case numbers and federal tax identification numbers are as follows: DEBTOR (Other names, if any, used by the Debtor ADDRESS CASE NO. EID # in the last 6 years appear in brackets) (Insert Debtor name and address. Use (insert debtors address) (insert case no) (insert EID#) lines below for multiple debtors) Making Virtual Solid, L.L.C. 1018 Boulevard 10-12530 **_***3137 New Milford, NJ 07646
DATE, TIME AND LOCATION OF MEETING OF CREDITORS.
December 16, 2010 at 1:00 p.m. (EST), J. Caleb Boggs Federal Building, 2nd Floor, Room 2112, Wilmington, Delaware 19801.
DEADLINE TO FILE A PROOF OF CLAIM.
Notice of the deadline by which to file proofs of Claim will be provided at a later date. NAME, ADDRESS AND TELEPHONE NUMBER OF TRUSTEE. None. COUNSEL FOR THE DEBTOR. John D. McLaughlin, Jr. Ciardi Ciardi Astin 919 Market Street, Suite 700 Wilmington, DE 19801 Tel: (302) 658-1100 Fax: (302) 658-1300 jmclaughlin@ciardilaw.com OFFICE OF THE UNITED STATES TRUSTEE DISTRICT OF DELAWARE 844 King Street, Suite 2207 Wilmington, DE 19801 Tel. No. (302) 573-6491 Fax No. (302) 573-6497 QUESTIONNAIRE FOR OFFICIAL COMMITTEE OF UNSECURED CREDITORS Making Virtual Solid, LLC 10-12530 (PJW) Please Type or Print Clearly . I am willing to serve on a Committee of Unsecured Creditors. Yes (x) No () A. Unsecured Creditor's Name and Contact Information: Martin Levine — Arcellus Group - Name: Levine Family Partnership Phone: 908 305 9558 Address: Po Box 457 Fax: 866-511-8815 Manasquam, NJ 05736 E-Mail: MLevine@arceleo.com ________________________________ B. Counsel (If Any) for Creditor and Contact Information: Name: Judith Elkin — Haynes Boone LLP Phone: (212) 659-4968 Address: 1221 Avenue of Arrericas 26th Floor Fax: (212) 884-8228 New York, NY 10020-1007 E-mail: Judith.Elkin@haynesboone.co ________________________________ C. Amount of Unsecured Claim (U.S. $) Martin Levine: 60,000 Arcellus Group: 375,000 Levine Family Porthership 150,000 D. If your claim is against more than one debtor, list all debtors: __________________ ____________________________________________________________________________________ ____________________________________________________________________________________ E. Describe the nature of your claim(s), i.e., whether arising from goods or services provided; loans made; litigation; etc., including whether any portion is secured. If any portion of the claim(s) arise from litigation, please state the nature of the claim, the case number and jurisdiction (if applicable) and the status. Loans made — ______________________________________________________________________________________________ ________________________________________________________________________________________________ ___________________________________________________________________________________________________________ F. Amount of Unsecured Claim entitled to 11 U.S.C. § 503(b) treatment as an administrative expense: __________________________________________________________________________________________________________ G. Representations: 1. Are you or the company you represent in any way: "affiliated" with any of the debtors within the meaning of Section 101(2) of the Bankruptcy Code, a shareholder of, or related to the debtor(s)? Yes (x) No ( ) If a shareholder, state the number of shares: MARTIN LEVINE 5,435 ARCELWS GROUP 6,521 LEVINE FAMILY 3,261 2. Do you, or the company you represent, engage in a business which directly or indirectly competes with any of the businesses of the debtor(s)? Yes () No (X) 3. Have you ever been or are you an officer, director, agent, representative or employee of the debtor(s)? Yes () No (x) Does your claim arise from this relationship? Yes () No () 4. Did you acquire any portion of your unsecured claim after the bankruptcy filing? Yes () No (x) If so, set forth the date(s) acquired, the amount paid and the face amount of the claim: ________ _______________________________________________________________________________________ 5. Have you made a UCC § 2-702 reclamation claim? Yes () No (x) 6. Have you or your attorney entered into a settlement agreement with the debtor regarding resolution of your claim? Yes () No (x) 7. Do you have a claim against any entity affiliated with the debtor? Yes () No (x) State the name of the entity and the nature and amount of the claims: _________________________ _______________________________________________________________________________________ 8. Do you or any affiliated entities have any other claims against and/or debt or equity securities of the debtor(s)? Yes () No (x) A. Do you or any affiliated entities have any financial arrangement that may affect the value of your claim(s) against or interest(s) in the debtor(s)? Yes () No (x) Description of Claims, Debt And/or Equity Amount Securities/Other Financial Arrangement 9. If you are represented by counsel, does your attorney represent any other parties in this bankruptcy case? Yes () No () I do not know (x) 10. If you have given a proxy to a third party either to represent you at the creditors' committee formation meeting, or in connection with your claim, please attach a copy of the written proxy. You may attach a written statement to explain or respond to any responses.
If you are appointed to the Official Committee of Unsecured Creditors, the United States Trustee may require periodic certifications of your claims while the bankruptcy case is pending. Creditors wishing to serve as fiduciaries on an official committee are advised that they may not purchase, sell or otherwise trade in or transfer claims against the debtor while they are committee members absent an order of the court on application of the creditor.
I hereby certify that, to the best of my knowledge and belief, the answers to this Questionnaire are true and correct. By executing this questionnaire, you agree to provide the periodic certifications referenced in the prior paragraph to the United States Trustee if the United States Trustee so requests. _____________ Date: 9/22/10 Signature MARTIN LEVINE Print Name INDNIDVAZ MANAGING DIRECTOR Title haynes boone
September 1, 2010
Via E-Mail and US Mail
Mr. John D. McLaughlin, Jr.
Ciardi Ciardi Astin
Citizens Bank Center Suite 700
919 Market Street
Wilmington, DE 19801
Re: Making Virtual Solid LLC — Case no. 10-12540-11 (PJW)
Dear Jack:
As we indicated at the hearing last week, we would like to take the 2004 examination of the Debtor. In conjunction with the 2004 examination, please produce the following documents commencing no later than September 15, 2010. • A list of all creditors of the Debtor • All documents supporting the claims of each identified creditor, including, but not limited to, all invoices, contracts, leases, notes, security agreements, purchase orders and engagement letters, and the like, and any electronic or other form of correspondence regarding any such creditor's claim • All books and records of the Debtor, including, but not limited to, financial statements (both audited and unaudited), board of director meeting minutes, and/or consents in lieu of board of director meetings • All documents setting forth or describing the relationship between the Debtor and Making Virtual Solid California LLC, including but not limited to any license agreements, asset sales agreements, term sheets, sale proposals, as well as any drafts of the same, and any related correspondence • All corporate organization charts, lists of officers and directors of the Debtor and any and all employment agreements relating to same • All documents relating to attempts by the Debtor to obtain financing, raise debt or equity capital, or any other type of funding for operations and/or development of the Debtor's technology assets, including, but not limited to, names, addresses and potential terms. • All documents relating to the transactions described in the memo attached as Exhibit B to the interim trustee motion. • All documents relating to any lien or security for which a UCC or other security interest perfection document was filed and all documents evidencing or relating to the indebtedness thereby secured Pursuant to Local Bankruptcy Rule 2004-1, transmittal of this letter constitutes our attempt to confer with the Debtor prior to filing a motion for examination of the Debtor under Bankruptcy Rule 2004. Please let us know what dates work for you and your client during the last two weeks of September. This letter constitutes our initial request for production of documents and examination of the Debtor. We reserve the right to seek production of additional documents and examination of additional witnesses as necessary.
Thank you for your attention to this matter.
Very truly yours,
Judith Elkin
Partner
Haynes and Boone, LLP
Direct Phone Number: (212) 659-4968
Direct Fax Number: (212) 884-8228
judith.elkin@haynesboone.com