jeffer mangels butler & mitchell llp robert b. … · application, bottomley application, rizo...

SF 1514628v2

- 1 - DECL. OF R. KAPLAN ISO OBJ. TO APPLICATIONS FOR PAYMENT

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JEFFER MANGELS BUTLER & MITCHELL LLP ROBERT B. KAPLAN, P.C. (Bar No. 76950) NICOLAS DE LANCIE (Bar No. 84934) Two Embarcadero Center, Fifth Floor San Francisco, California 94111-3813 Telephone: (415) 398-8080 Facsimile: (415) 398-5584 Attorneys for Secured Creditor WELLS FARGO BANK, N.A.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

In re MI PUEBLO SAN JOSE, INC., Debtor and Debtor-in-Possession.

CASE NO. 13-53893-ASW Chapter 11 DECLARATION OF ROBERT B. KAPLAN IN SUPPORT OF OBJECTION BY WELLS FARGO BANK, NATIONAL ASSOCIATION TO APPLICATIONS BY: 1. BOTTOMLEY DISTRIBUTING

COMPANY; 2. TONY'S FINE FOOD, INC.; 3. CANDIES TOLTECA COMPANY; 4. VIZ CATTLE CORPORATION; 5. RIZO LOPEZ FOODS, INC.; 6, BETTER PRODUCE, INC.; AND 7. BAY AREA SEAFOOD, INC. FOR ALLOWANCE AND PAYMENT OF CHAPTER 11 ADMINISTRATIVE CLAIM UNDER BANKRUPTCY CODE § 503(b)(9) Date: October 4, 2013 Time: 1:15 p.m., 1:45 p.m., 2:15 p.m., and 3:00 p.m. Place: Courtroom 3020 280 South First Street San Jose, California

Case: 13-53893 Doc# 278 Filed: 09/27/13 Entered: 09/27/13 15:44:53 of 7

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I, Robert B. Kaplan, declare1:

1. I am an attorney at law duly licensed to practice before all of the courts of the

State of California and am a partner with Jeffer Mangels Butler & Mitchell LLP, attorneys of record

for Wells Fargo Bank, National Association ("Bank") in the above-entitled Chapter 11 case filed by

Mi Pueblo San Jose, Inc. ("Debtor" or "Mi Pueblo"). If called upon to testify as to the matters set

forth in this declaration, I could and would competently testify thereto as the facts herein set forth

are personally known to me to be true.

A. The Procedures Order

2. Attached hereto as Exhibit 1 is a true and correct copy of an Order

(I) Granting Administrative Expense Status to Debtor's Undisputed Obligations to Vendors Arising

Form Post-Petition Delivery of Goods Ordered Pre-Petition and Authorizing Debtor to Pay Such

Obligations in the Ordinary Course of Business; (II) Authorizing Payment for Goods Received

Within 20 Days of Filing and Establishing Administrative Claims Bar Date for Section 503(b)(9)

Claims; and (III) Establishing Procedures to Allow Claims of Perishable Agricultural Commodities

Act and Packers and Stockyard Act Claimants ("Procedures Order"), which was signed by the

Honorable Arthur S. Weissbrodt in the Debtor's Chapter 11 Case on July 24, 2013.

3. Attached hereto as Exhibit 2 is a true and correct copy of an Amended Order

(I) Granting Administrative Expense Status to Debtor's Undisputed Obligations to Vendors Arising

Form Post-Petition Delivery of Goods Ordered Pre-Petition and Authorizing Debtor to Pay Such

Obligations in the Ordinary Course of Business; (II) Authorizing Payment for Goods Received

Within 20 Days of Filing and Establishing Administrative Claims Bar Date for Section 503(b)(9)

Claims; and (III) Establishing Procedures to Allow Claims of Perishable Agricultural Commodities

Act and Packers and Stockyard Act Claimants ("Amended Procedures Order"), which was entered

in the above-entitled Chapter 11 case on July 31, 2013.

1 All capitalized terms not otherwise defined herein shall have the meanings ascribed to

them in the Objection by Wells Fargo Bank, National Association to Applications for Allowance and Payment, etc. filed concurrently herewith.


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A. Viz Cattle Corporation's Claim

4. On August 30, 2013, I sent a letter to counsel for Viz Cattle, Tony's

Bottomley, and Better Produce acknowledging receipt of the Viz Cattle Application, Tony's

Application, Bottomley Application, Rizo Application, and Better Produce Application and advised

counsel that a Claim Package had not yet been submitted by Mi Pueblo in accordance with Section

6 of the Procedures Order for any of their clients, except for Bottomley. A true and correct copy of

my August 30, 2013 letter is attached hereto as Exhibit 3.

5. On September 17, 2013, I spoke with Viz Cattle Corporation's ("Viz Cattle")

counsel regarding whether a Claim Package was submitted by Debtor for Viz Cattle. On September

19, 2013, I sent an e-mail to Viz Cattle's counsel confirming that no Claim Package was submitted

by Mi Pueblo for Viz Cattle, a true and correct copy of which is attached hereto as Exhibit 4. To

date, the Bank still has not received a Claim Package from Mi Pueblo for the Claim of Viz Cattle.

C. Bottomley Distributing Company's Claim

6. Pursuant to section 6 of the Procedures Order, on August 13, 2013, I received

an email from John Zott ("Zott"), employed by the Debtor, a true and correct copy of which is

attached hereto as Exhibit 5, which included a Claim Package (as that term is defined in section 6 of

the Procedures Order) for Bottomley Distributing Company ("Bottomley"). On August 16, 2013,

my colleague and one of the Bank's counsel, Walter W. Gouldsbury III, Esq., sent an e-mail to

Debtor's counsel, a true and correct copy of which is attached hereto as Exhibit 6, responding to the

Bottomley Claim Package and advising Debtor's counsel that the Bank did not object to the

allowance of the amounts set forth in the Bottomley Claim Package, except for $5,483.95, but that

the Bank objected to the payment of the amounts set forth in the Bottomley Claim Package.

D. Tony's Fine Foods Inc.'s Claim

7. Pursuant to section 6 of the Procedures Order, on September 2, 2013, I

received an email from Zott, a true and correct copy of which is attached hereto as Exhibit 7, which

included a Claim Package for Tony's Fine Foods, Inc.'s ("Tony's"). The Tony's Claim Package

submitted on September 2, 2013 was incomplete and was not in compliance with the requirements

of Section 6 of the Procedures Order. As a result, on September 3, 2013, Mr. Gouldsbury sent an e-


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mail to Debtor's counsel, a true and correct copy of which is attached hereto as Exhibit 8, advising

him that the Tony's Claim Package was incomplete and would not be reviewed by the Bank.

8. Thereafter, pursuant to section 6 of the Procedures Order, on September 10,

2013, I received an email from Zott re-submitting the Tony's Claim Package, a true and correct

copy of which is attached hereto as Exhibit 9. On September 12, 2013, Mr. Gouldsbury sent an e-

mail to Debtor's counsel notifying him that the Bank objected to the each Claim Package submitted

by Mi Pueblo on September 10, 2013 as a whole for the reasons set forth in Mr. Gouldsbury's

September 12, 2013 e-mail, a true and correct copy of which is attached hereto as Exhibit 10. Mr.

Gouldsbury's September 12 e-mail also requested that Mi Pueblo review each Claim Package

submitted on September 10, 2013, which included the Tony's Claim Package, to confirm the

accuracy of the information submitted, and re-submit each Claim Package.

9. On September 12, 2013, I received a letter from Tony's counsel requesting

confirmation as to whether Debtor had submitted a Claim Package on behalf of Tony's, a true and

correct copy of which is attached hereto as Exhibit 11. On September 18, 2013, Mr. Gouldsbury

sent a letter to Tony's counsel, a true and correct copy of which is attached hereto as Exhibit 12, and

responded that as of September 18, 2013, a Claim Package for Tony's was submitted, but was not in

compliance with the requirements of the Procedures Order, and was objected to by the Bank.

10. On September 19, 2013, I was copied with an e-mail from Tony's counsel to

Debtor's counsel inquiring about the status of the re-submission of the Tony's Claim Package to the

Bank, a true and correct copy of which is attached hereto as Exhibit 13.


received an email from Zott, a true and correct copy of which is attached hereto as Exhibit 14,which

included a re-submission of the Tony's Claim Package. On September 26, 2013, Mr. Gouldsbury

sent an e-mail to Debtor's counsel notifying him that the Bank did not object to the allowance of the

amount set forth in the Tony's Claim Package, but objected to the payment thereof., a true and

correct copy of which is attached hereto as Exhibit 15.

///

///


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E. Rizo Lopez Foods, Inc.'s Claim



included a Claim Package from Rizo Lopez Foods, Inc. ("Rizo"). The Rizo Claim Package


of Section 6 of the Procedures Order. As a result, on September 3, 2013, Mr. Gouldsbury

responded via e-mail to Debtor's counsel advising Debtor's counsel that the Rizo Claim Package

was incomplete, a true and correct copy of which is attached hereto as Exhibit 8.

13. Thereafter, pursuant to section 6 of the Procedures Order, on September 10,

2013, I received an email from Zott re-submitting the Rizo Claim Package, a true and correct copy

of which is attached hereto as Exhibit 9. On September 12, 2013, Mr. Gouldsbury e-mailed Mi

Pueblo's counsel, a true and correct copy of which is attached hereto as Exhibit 10, advising

Debtor's counsel that the Bank objected to the each Claim Package submitted by Mi Pueblo on

September 10, 2013 as a whole for the reasons set forth in Mr. Gouldsbury September 12, 2013 e-

mail. Mr. Gouldsbury's e-mail also requested that Mi Pueblo review each Claim Package submitted

on September 10, 2013, which included the Rizo Claim Package, to confirm the accuracy of the

information submitted, and re-submit each Claim Package.

14. On September 12, 2013, I received a letter from Rizo's counsel requesting

confirmation as to whether Debtor had submitted a Claim Package on behalf of Rizo, a true and

correct copy of which is attached hereto as Exhibit 16. On September 18, 2013, Mr. Gouldsbury

sent a letter to Rizo's counsel, a true and correct copy of which is attached hereto as Exhibit 12, and

responded that as of September 18, 2013, a Claim Package for Rizo was submitted, but was not in

compliance with the requirements of the Procedures Order and was objected to by the Bank.

15. On September 19, 2013, I was copied with an e-mail sent from Rizo's counsel

to Debtor's counsel, a true and correct copy of which is attached hereto as Exhibit 17, inquiring

about the status of the re-submission of the Rizo Claim Package to the Bank.


received an email from Zott, a true and correct copy of which is attached hereto as Exhibit 14,


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which included a re-submission of the Rizo Claim Package. On September 26, 2013, Mr.

Gouldsbury sent an e-mail to Debtor's counsel notifying him that that the Bank did not object to the

allowance of the amount set forth in the Rizo Claim Package, but objected to the payment thereof.,

a true and correct copy of which is attached hereto as Exhibit 15.

F. Candies Tolteca Company's Claim



included a Claim Package from Candies Tolteca Company ("CT"). The CT Claim Package


of Section 6 of the Procedures Order. As a result, on September 3, 2013, Mr. Gouldsbury set an e-

mail to Debtor's counsel, a true and correct copy of which is attached hereto as Exhibit 8, and

advising Debtor's counsel that the CT Claim Package was incomplete.

18. Thereafter, pursuant to section 6 of the Procedures Order, on September 10

2013, I received an email from Zott, a true and correct copy of which is attached hereto as

Exhibit 9, which included a re-submission of the CT Claim Package. On September 12, 2013, Mr.

Gouldsbury sent an e-mail to Mi Pueblo's counsel, a true and correct copy of which is attached

hereto as Exhibit 10, advising Debtor's counsel that the Bank objected to each Claim Package

submitted by Mi Pueblo on September 10, 2013 as a whole for the reasons set forth in the Mr.

Gouldsbury's September 12, 2013 e-mail. Mr. Gouldsbury's e-mail also requested that Mi Pueblo

review each Claim Package submitted on September 10, 2013, which included the CT Claim

Package, to confirm the accuracy of the information submitted, and re-submit each Claim Package.

19. To date, Debtor has not re-submitted the CT Claim Package to the Bank for

review.

G. Bay Area Seafood, Inc.'s Claim

20. Pursuant to section 6 of the Procedures Order, on August 1, 2013, I received

an email from Zott, a true and correct copy of which is attached hereto as Exhibit 18, which

included a Claim Package from Bay Area Seafood, Inc. ("Bay Area Seafood") seeking approval of

payments of amounts owed to Bay Area Seafood under PSA. On August 6, 2013, I sent an e-mail


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to Debtor's counsel, a true and correct copy of which is attached hereto as Exhibit 19, objecting to

the allowance and payment of the Bay Area Seafood Claim Package as the goods sold by Bay Area

Seafood did not qualify under PSA. Debtor has never re-submitted a Claim Package for Bay Area

Seafood for allowance and payment under section 503 (b)(9), or otherwise.

H. Better Produce, Inc.'s Claim

21. Pursuant to section 6 of the Procedures Order, on July 31, 2013, I received an

email from Zott, a true and correct copy of which is attached hereto as Exhibit 20, which included a

Claim Package from Better Produce, Inc. ("Better Produce") for allowance and payment under

PACA. On August 5, 2013, I sent an e-mail to Debtor's counsel, a true and correct copy of which is

attached hereto as Exhibit 21, consenting to payment to Better Produce by Debtor in the amount of

$52,023.60 under PACA. To date, Debtor has not submitted any Claim Package for Better Produce

under section 503 (b)(9).

I declare under penalty of perjury under the laws of the United States of America that

the foregoing is true and correct.

DATED: September 27, 2013 /s/ Robert B. Kaplan ROBERT B. KAPLAN, Declarant


Case: 13-53893 Doc# 278-1 Filed: 09/27/13 Entered: 09/27/13 15:44:53 Page 1 of 5

SF 1499966v1

PROOF OF SERVICE

STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO

In re: Mi Pueblo San Jose, Inc. Case No. 13-53893-ASW

I am employed in the City and County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is: Two Embarcadero Center, 5th Floor, San Francisco, California 94111.

On September 27, 2013 I served the document(s) described as

1. OBJECTION BY WELLS FARGO BANK, NATIONAL ASSOCIATION TO

APPLICATIONS BY:

1. BOTTOMLEY DISTRIBUTING COMPANY;

2. TONY'S FINE FOOD, INC.;

. CANDIES TOLTECA COMPANY;

4. VIZ CATTLE CORPORATION;

5. RIZO LOPEZ FOODS, INC.;

6, BETTER PRODUCE, INC.; AND

7. BAY AREA SEAFOOD, INC.

FOR ALLOWANCE AND PAYMENT OF CHAPTER 11 ADMINISTRATIVE CLAIM UNDER BANKRUPTCY CODE § 503(b)(9);

2. DECLARATION OF CURRIE BUTZBAUGH IN SUPPORT OF OBJECTION BY

WELLS FARGO BANK, NATIONAL ASSOCIATION TO APPLICATIONS BY:



3. CANDIES TOLTECA COMPANY;





FOR ALLOWANCE AND PAYMENT OF CHAPTER 11 ADMINISTRATIVE CLAIM UNDER BANKRUPTCY CODE § 503(b)(9); and

3. DECLARATION OF ROBERT B. KAPLAN IN SUPPORT OF OBJECTION BY

WELLS FARGO BANK, NATIONAL ASSOCIATION TO APPLICATIONS BY:



3. CANDIES TOLTECA COMPANY;





FOR ALLOWANCE AND PAYMENT OF CHAPTER 11 ADMINISTRATIVE CLAIM UNDER BANKRUPTCY CODE § 503(b)(9)

in this action addressed as follows:


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2

(BY MAIL) True and correct copies of the aforementioned document(s) were deposited, in a sealed envelope with postage thereon fully prepaid, with the U.S. Postal Service on that same day to be mailed via first class mail at San Francisco, California. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

(TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF)) Pursuant to the controlling Rules, the aforementioned document(s) will be served by the court via NEF and proper link(s) to the document(s).

Executed on September 27, 2013 at San Francisco, California.

I declare under penalty of perjury under the laws of the United States that the above is true and correct.

/s/ Robert B. Kaplan

Robert B. Kaplan


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