Astropower liquidating trust

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Busenkell , Womble, Carlyle Sandridge & Rice, PLLC, Wilmington, DE, Philip J. ("Mc Mahan" or "Defendant") seeking dismissal of the First Amended Complaint (the "Complaint") [Docket No. On account of Mc Mahan's allegedly excessive fees and the facts alleged, Plaintiffs conclude that Charys did not receive reasonably equivalent value for the Transfers. Plaintiffs allege that prior to the Transfers, in January of 2007, Charys's balance sheet reflected tangible net assets of ,667,392 and then-current liabilities of ,749,969. On April 8, 2010, Mc Mahan filed the Motion, seeking to dismiss the Complaint. Mohr , Womble, Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, for Plaintiffs Charys Liquidating Trust and C & B Liquidating Trust. 10] filed by Charys Liquidating Trust and C & B Liquidating Trust (together, the "Trusts" or "Plaintiffs"). Counts I and II seek avoidance of transferred monies on constructive fraudulent transfer theories pursuant to sections 548(a)(1)(B) and 544 of the Bankruptcy Code. Plaintiffs further allege that Mc Mahan failed to obtain favorable terms on the Notes, failed to conduct proper due diligence in connection with the Notes issuance, and encouraged Charys to take on more debt than was justified by Charys's financial position. The Trusts filed a response in opposition to the Motion (the "Response") [Docket No. For the following reasons, the Court will deny the Motion. Charys later entered into an indenture agreement with the Bank of New York Mellon Trust Company, N. The Engagement Letter provided that Mc Mahan was to receive a fee of four percent (4%) of aggregate gross proceeds of a placement up to million and a fee of five percent (5%) of aggregate gross proceeds in excess of million. On or about March 8, 2007, Mc Mahan withheld an additional

Busenkell , Womble, Carlyle Sandridge & Rice, PLLC, Wilmington, DE, Philip J. ("Mc Mahan" or "Defendant") seeking dismissal of the First Amended Complaint (the "Complaint") [Docket No. On account of Mc Mahan's allegedly excessive fees and the facts alleged, Plaintiffs conclude that Charys did not receive reasonably equivalent value for the Transfers. Plaintiffs allege that prior to the Transfers, in January of 2007, Charys's balance sheet reflected tangible net assets of $74,667,392 and then-current liabilities of $97,749,969. On April 8, 2010, Mc Mahan filed the Motion, seeking to dismiss the Complaint. Mohr , Womble, Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, for Plaintiffs Charys Liquidating Trust and C & B Liquidating Trust. 10] filed by Charys Liquidating Trust and C & B Liquidating Trust (together, the "Trusts" or "Plaintiffs"). Counts I and II seek avoidance of transferred monies on constructive fraudulent transfer theories pursuant to sections 548(a)(1)(B) and 544 of the Bankruptcy Code. Plaintiffs further allege that Mc Mahan failed to obtain favorable terms on the Notes, failed to conduct proper due diligence in connection with the Notes issuance, and encouraged Charys to take on more debt than was justified by Charys's financial position. The Trusts filed a response in opposition to the Motion (the "Response") [Docket No. For the following reasons, the Court will deny the Motion. Charys later entered into an indenture agreement with the Bank of New York Mellon Trust Company, N. The Engagement Letter provided that Mc Mahan was to receive a fee of four percent (4%) of aggregate gross proceeds of a placement up to $75 million and a fee of five percent (5%) of aggregate gross proceeds in excess of $75 million. On or about March 8, 2007, Mc Mahan withheld an additional $1,434,635.42 from Charys's portion of the additional proceeds of $26,250,000 from the second Notes issuance. The Complaint alleges that pursuant to the terms of the Engagement Letter, Mc Mahan's fees should have totaled not more than $9,312,500. The Court has jurisdiction over this matter pursuant to 28 U. On or about October 11, 2006, Charys Holding Company, Inc. The Engagement Letter also provided Mc Mahan the option, which Mc Mahan subsequently exercised, to place an additional fifteen percent (15%) of the amount of the offering. A., as trustee, and then issued $201,250,000 of Notes (the "Mc Mahan Financing"). Mc Mahan received payments totaling $11,391,635.42 (the "Transfers") on account of the Mc Mahan Financing.

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Busenkell , Womble, Carlyle Sandridge & Rice, PLLC, Wilmington, DE, Philip J. ("Mc Mahan" or "Defendant") seeking dismissal of the First Amended Complaint (the "Complaint") [Docket No. On account of Mc Mahan's allegedly excessive fees and the facts alleged, Plaintiffs conclude that Charys did not receive reasonably equivalent value for the Transfers. Plaintiffs allege that prior to the Transfers, in January of 2007, Charys's balance sheet reflected tangible net assets of $74,667,392 and then-current liabilities of $97,749,969. On April 8, 2010, Mc Mahan filed the Motion, seeking to dismiss the Complaint.

Mohr , Womble, Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, for Plaintiffs Charys Liquidating Trust and C & B Liquidating Trust. 10] filed by Charys Liquidating Trust and C & B Liquidating Trust (together, the "Trusts" or "Plaintiffs"). Counts I and II seek avoidance of transferred monies on constructive fraudulent transfer theories pursuant to sections 548(a)(1)(B) and 544 of the Bankruptcy Code. Plaintiffs further allege that Mc Mahan failed to obtain favorable terms on the Notes, failed to conduct proper due diligence in connection with the Notes issuance, and encouraged Charys to take on more debt than was justified by Charys's financial position. The Trusts filed a response in opposition to the Motion (the "Response") [Docket No.

For the following reasons, the Court will deny the Motion. Charys later entered into an indenture agreement with the Bank of New York Mellon Trust Company, N. The Engagement Letter provided that Mc Mahan was to receive a fee of four percent (4%) of aggregate gross proceeds of a placement up to $75 million and a fee of five percent (5%) of aggregate gross proceeds in excess of $75 million. On or about March 8, 2007, Mc Mahan withheld an additional $1,434,635.42 from Charys's portion of the additional proceeds of $26,250,000 from the second Notes issuance. The Complaint alleges that pursuant to the terms of the Engagement Letter, Mc Mahan's fees should have totaled not more than $9,312,500. The Court has jurisdiction over this matter pursuant to 28 U.

On or about October 11, 2006, Charys Holding Company, Inc. The Engagement Letter also provided Mc Mahan the option, which Mc Mahan subsequently exercised, to place an additional fifteen percent (15%) of the amount of the offering. A., as trustee, and then issued $201,250,000 of Notes (the "Mc Mahan Financing"). Mc Mahan received payments totaling $11,391,635.42 (the "Transfers") on account of the Mc Mahan Financing.

Second, a court should determine whether the remaining well-pled facts sufficiently show that the plaintiff "has a plausible claim for relief." Id. Federal Rule of Civil Procedure 8, applicable here pursuant to Federal Rule of Bankruptcy Procedure 7008, requires that a complaint contain, "a short and plain statement of the claim showing that the pleader is entitled to relief," to "give the defendant fair notice of what the .

Phillips, 515 F.3d at 234 (internal quotations omitted) (citations omitted). claim is and the grounds upon which it rests." Twombly, 550 U.

,434,635.42 from Charys's portion of the additional proceeds of ,250,000 from the second Notes issuance. The Complaint alleges that pursuant to the terms of the Engagement Letter, Mc Mahan's fees should have totaled not more than ,312,500. The Court has jurisdiction over this matter pursuant to 28 U. On or about October 11, 2006, Charys Holding Company, Inc. The Engagement Letter also provided Mc Mahan the option, which Mc Mahan subsequently exercised, to place an additional fifteen percent (15%) of the amount of the offering. A., as trustee, and then issued 1,250,000 of Notes (the "Mc Mahan Financing"). Mc Mahan received payments totaling ,391,635.42 (the "Transfers") on account of the Mc Mahan Financing.

Plaintiffs further allege that Charys's tangible assets were overvalued at all relevant times. (together, the "Debtors") filed petitions for relief under chapter 11 of title 11 of the United States Code. 669] confirming the First Amended Joint Plan of Reorganization of Debtors and Certain Nondebtor Affiliates under Chapter 11 of the Bankruptcy Code, Dated December 8, 2008 (the "Plan").

This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

a claim requires a complaint with enough factual matter (taken as true) to suggest the required element.

Following Diaz, bankruptcy courts in this Circuit have recognized that forum selection clauses should not be enforced in core matters, and specifically with regard to fraudulent transfer claims.

As explained by the Bremen court, a forum selection clause may be unreasonable if: i) it is the result of fraud or overreaching; ii) serious inconvenience would result from litigating in the selected forum; or iii) enforcement would result in contravention of a strong public policy in the selected forum. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir.1983).").

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