Post by 3bid on Sept 17, 2013 23:26:06 GMT -5
These crooks tried to destroy the company. BUSTED!
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
IMPERIAL PETROLEUM RECOVERY CORPORATION
[...]
Here's the conspiracy confession, something out of a movie: 17. In early 2008, Gaiennie [CPA] removed essentially all of IPRC's cash from its bank accounts and attempted to render IPRC incapable of meeting its financial obligations. All of Gaiennie's conduct was, according to his sworn testimony, at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
9. The Carmichaels, Winston, KK&PK, acting by and through Kirk Kanady, as controlling members of Agribiofuels, L.L.C. ("ABF"), by and through their agent and co-conspirator, Gaiennie, the manager of ABF, tortiously interfered with IPRC's August 1, 2005, Management Agreement by causing ABF wrongfully to terminate that agreement before its term expired. That wrongful termination occurred in 2008. The wrongful termination and the other wrongful conduct was all part of an attempt by these parties to seize all of IPRC's extraordinarily valuable assets, particularly IPRC's technology, patents, and other intangible rights.
10. In 2005, the Carmichaels, Winston, Emmott and K.K.&P.K. entered into security agreements with IPRC for repayment of certain loans. Many, if not all, of IPRC's assets secure the repayment of those loans. However, said security interests were only perfected as to Don Carmichael, Winston and K.K.&P.K., and such security interests were not perfected until February 14, 2012, within one year of the Debtor�s Filing Date, January 31, 2013. The perfection of these security interests would be preferences under 11 U.S.C. � 547 if such creditors were insiders.
11. More specifically, beginning in 2008, Gaiennie acted simultaneously as an agent and officer both for ABF and IPRC, and also acting as the agent for and co-conspirator with the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott, commenced a series of activities that nearly destroyed IPRC. In sworn testimony, Gaiennie admitted that he acted at
Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 4 of 9
5 | P a g e
the direction and behest of Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott, threby breaching his duty of loyalty to IPRC.
12. Gaiennie, a CPA, caused ABF to withhold tax credits from IPRC, one of the owners of ABF, for fiscal years 2007 through 2011, and caused ABF to distribute those tax credits to one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. Gaiennie, engaged in a conspiracy with one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott to defraud IPRC by falsely distributing those tax credits in a manner other than a pro rata distribution in accordance with the ownership of ABF and its governing instruments.
13. Gaiennie, a licensed certified public accountant in the State of Texas, prepared or directed the preparation of the tax returns through which one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott misappropriated the ABF tax credits. Gaiennie has admitted in sworn testimony that one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott directed him to take those actions to withhold the tax credits from IPRC and to distribute those tax credits wrongfully to them for their direct personal benefit since they all have extraordinarily high income and sought, illegally, to shield themselves from tax liability to the United States Department of the Treasury, Internal Revenue Service.
14. Defendants have also engaged in a conspiracy to harm IPRC by disabling its ability to raise investor funds by providing false information to its auditors for its filings with the United States Securities and Exchange Commission.
15. Gaienne served as Chief Financial Officer and a member of the Board of Directors of IPRC until approximately January 25, 2008. On at least two occasions he Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 5 of 9
6 | P a g e
represented to the Board of Directors of lPRC that he had prepared IPRC's filings for the United States Securities and Exchange Commission in "audit ready form." In reliance upon Gaienne's affirmative representations to IPRC's Board of Directors, IPRC issued to Gaienne 950,000 shares of IPRC stock. After Gaienne left the employ of IPRC, IPRC discovered that Gaienne's representations to IPRC's Board of Directors were false, deceptive, and fraudulent. Gaienne had failed to prepare IPRC's filings and has caused IPRC to expend more than $125,000.00 in professional fees to accomplish the actions which Gaienne had represented, in his capacity as a fiduciary, that he had completed. Additionally, Gaienne's actions have cost IPRC several hundred thousand dollars, which is a minimum calculation of the amount of investment funds IPRC lost as a result of Gaienne's failure to prepare those filings.
16. IPRC discovered in 2013 that all of Gaiennie's misconduct occurred at the direction and behest of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. IPRC further discovered in 2013 that Gaiennie's loyalty has always been these parties, over and above and in lieu of his duty of loyalty to IPRC.
17. In early 2008, Gaiennie removed essentially all of IPRC's cash from its bank accounts and attempted to render IPRC incapable of meeting its financial obligations. All of Gaiennie's conduct was, according to his sworn testimony, at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
18. Gaiennie caused critical supplies, for which IPRC had paid, to disappear from IPRC's inventory and reappear within the inventory of ABF while acting at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 6 of 9
7 | P a g e
19. Gaiennie misappropriated IPRC equipment for use in ABF's biodiesel plant without any financial reimbursement of IPRC for the use or value of that equipment, while acting at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
20. The Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott have fraudulently concealed their wrongful conduct.
Basis for Objection
21. Carmichael�s violation of the duty of good faith under Section 1.304 of the Texas Business and Commerce Code bars his claims and enforcement of his alleged rights.
22. Carmichael�s claims are barred by estoppel.
23. Carmichael�s claims are barred by fraud.
24. Offset in the form of IPRC�s claims against Carmichael in Adversary Proceeding Nos. 13-03098 and 13-03087.
25. Carmichael�s claims are barred by substantial breach of the agreements supporting his claim.
26. Carmichael�s claims are barred by the first breach having been engaged in by Carmichael.
27. Carmichael�s claims are barred by failure of consideration.
28. Carmichael�s claims are barred by laches and limitations.
Conclusion
29. For the foregoing reasons, Claim No. 5 should be determined to be $0. Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 7 of 9
9/17/13 Posts copied from the iHub message board investorshub.advfn.com/Imperial-Petroleum-Recovery-Corp-IRECQ-3674
That is some really good stuff! Way to go RAWNOC! Great DD. We need to pass this along. All that activity with what sounds like some pretty heavy hitters one expected to bring $10 million? WOW! And this stuff isn't BS. It's recorded in the courts. WOW!
-crowsdaddy
5 possibly monster deals on the table, the common might stay 100% intact (looks probable), and the biggest creditors who forced the BK in the first place got their collective asses kicked really bad today, now if I'm reading correctly, aren't entitled to jack shi* squat. -rawnoc
I read it the same as you do. They get zip, nada, nothing and are more or less told to stay out of the way. The train is rolling through. LOL That's the way I see it. Their claims were shot down and the judge seemed to buy the possibility of these 5 monster deals. The one had a price tag of $10 million. Can't even imagine what the other 4 will come to. This isn't some goofy PR or marketwire crap. This is sworn under oath court records. I do wish the company would do a press release with all this good news. This thing has the potential to explode real quick with the share structure. That's why i bought in to it in the 1st place. I'm stoked with all this good news.
-crowsdaddy
How do you delete a post? I got excited and posted this board to couple others. Then I got to thinking about it. Not to be a jerk but would rather put it out in the morning after the market opens instead of possibly having a rush at the opening bell.
-crowsdaddy
Try sending a PM to admin. No PRs I'm guessing is because Springer wants to actually close a deal officially before he PRs it.
No wonder they want to get the filings all caught up as well.
-rawnock
This is surreal. I pretty much had written this off for dead. Then there was the financing to get the SEC filings that gave me some renewed hope, but it is still quite rare for common shareholders to do well with a bankruptcy filing. This one was a bit different as it was forced on them. Still, it wasn't exactly looking very hopeful.
-rawnock
Today, different story. I thought I was reading a screenplay with the conspiracy crap documented in court by a whistle-blower who was also the main man behind it!
That one Carmichael shi*head was the biggest creditor (44% was it?) -- and he gets ZIP? lol ouch.
Starting to understand why Springer has been so silent and paranoid now. We still need to actually CLOSE one of those 5 deals, but it looks like shareholders get to keep the company for at worst some dilution (at worst) and not a terrible amount either. I will continue to monitor the court proceedings.
-rawnock
Tonight at 10:30PM is a hearing to approve the $25,000 financing note at 6% interest, convertible to shares at .15/share.
IRECQ also wants 23 acres of land and improvements appraised it has a 20% interest in.
There's also a letter from the auditors to help them with the 10Qs and 10k for fiscal year ending October 2012.
ecf.txsb.uscourts.gov/doc1/178131920726 (need a pacer account to access)
-rawnoc
---------------------------------------------------------------
--------------------------------------------------------------------------------
HUGE PACER UPDATE #2 OUT 9/17/13 (TODAY)
ecf.txsb.uscourts.gov/doc1/178131923596
Bankruptcy Emergence Plan
There's different classes of creditors.
Class 1 -- Option of cash or shares at .05/share.
Class 2 -- Cash only.
Class 3 -- 60 month payment plan of cash.
Class 4 -- 5 year payment plan.
Class 5 -- Option of 60 month cash payment plan or shares at .08/share.
Class 6 -- This is the common shareholders. Plan calls for them to remain 100% intact.
--------------------------------------------------------------------------------
IPRC has focused on exporting the MST technology to several large multinational corporations which are summarized below:
One of IPRC�s key prospects is a division of one of the world�s largest oil services companies located in Houston, Texas. This division has a focus on oil and gas drilling and production. They operate in over 85 countries. IPRC began discussions with this company in November 2011 and over the past 20 months have conducted 5 technical demonstrations of various emulsions from several locations in the US. All of the demonstrations were excellent and in July 2013 IPRC was advised the R&D division had strongly recommended the technology be added to portfolio of specialized equipment for operations in the field. During IPRC�s last meeting in July 2013, the company presented a proposal for a long-term marketing and licensing agreement and anticipates that it will be contacted in the next several weeks to discuss the steps going forward which is customary since there are several different divisions that need to be brought into discussions on how best to acquire the MST technology.
A second key prospect for IPRC is one of the largest aluminum companies in the world operating in over 30 countries with over 200 individual locations. The division IPRC have been dealing with produce products primarily for the airline industry and NASA. The opportunity IPRC has is to incorporate IPRC�s MST technology to remediate the large volumes of water contaminated with hydraulic fluids, oils and other materials that need to be removed from the water so it can be safely disposed of. This identical opportunity exists in multiple plants throughout the world. IPRC�s first meeting on-site was very positive and IPRC will be conducting a demonstration of samples from 8 different locations throughout the plant during the next two weeks. IPRC believes the initial order could be in excess of $10M which would enable IPRC to complete the requirements for expansion and extension of current and future patents world-wide.
A third key prospect for IPRC is one of the largest international engineering companies in the world with operations in over 100 countries and in several key industries. IPRC�s focus has been with their �Water Technology Division� specifically for utilizing the MST for the remediation of �FRAC� water used in several oil and gas drilling operations throughout Texas and the Gulf States. IPRC has been in discussions since April 2013 and a technical demonstration was performed for their technical R&D staff in April 2013 at IPRC�s plant site in Houston. The results were excellent and discussions continued on incorporating the patented MST technology in conjunction with other technologies. The technical challenge is to increase the throughput from IPRC�s current 1000 barrels per day (bpd) to over 40,000 bpd to accommodate the throughput requirements of their off-shore sites. This company is one of the world leaders in the oil and gas extraction, conversion and transport sectors.
A fourth key prospect is one of the world�s largest integrated oil companies that have interest in incorporating MST technology to several upstream production fields where they are unable to process emulsions without the use of chemicals. They are attempting to substitute microwave energy for chemicals as an environmentally superior solution. IPRC have renewed discussions that began in 2007 and have recently begun with a focus on processing oil emulsions that exist upstream in several locations within the US. IPRC has conducted technical demonstrations of these emulsions under the direction of their R&D Division in Houston. IPRC believes there is an opportunity for IPRC�s technology to be incorporated into both the upstream and eventually downstream operations. A sample of the emulsions IPRC evaluated for them is shown below. A clear break of the emulsion is visible between the oil, water and the separated solids at the bottom of the container.
(and, yes, the picture was in the court documents)
A fifth major prospect is another international oil services company that operates throughout the world. IPRC has had business relationships in the past with a division of this company that resulted in a contract to Esso back in 2003. IPRC�s discussions now are focused on their �completion and production segment� which deal with emulsions upstream, drilling fluids and remediation of �FRAC� water. This company is a direct competitor to prospect #1 and a partial competitor to prospect #3
--------------------------------------------------------------------------------
The 5 companies:
(1) "one of the world�s largest oil services companies located in Houston, Texas. This division has a focus on oil and gas drilling and production. They operate in over 85 countries"
NYSE: SLB
en.wikipedia.org/wiki/Schlumberger
(2) "one of the largest aluminum companies in the world operating in over 30 countries with over 200 individual locations"
NYSE: AA
www.alcoa.com/global/en/about_alcoa/map/globalmap.asp
(3) one of the largest international engineering companies in the world with operations in over 100 countries and in several key industries. IPRC�s focus has been with their �Water Technology Division�
NYSE: SI is my guess.
(4) "one of the world�s largest integrated oil companies...under the direction of their R&D Division in Houston"
Shell
"the Shell International R&D division in Houston"
www.tpud.org/documents/ppi_tide_proposal_v1_100528_web.pdf
(5) Not sure about #5. Any guesses?
-rawnoc
More PACER updates getting more interesting by the minute...
THEREFORE, IT IS ORDERED that Debtor�s Objection should be and hereby is sustained, and that Claim No.5 is hereby disallowed in its. The Claimant, Don B. Carmichael, is not entitled to any distribution from the Debtor�s estate.
ecf.txsb.uscourts.gov/doc1/178131923808
I believe that's a $3 million claim. IRECQ ripped the dude a new a-hole in court. Some dirty crap was alleged and agreed to by the judge (due to witness testimony) with the early attempts to force IRECQ into bankruptcy. Wow, great drama!
--------------------------------------------------------------------------------
More PACER updates!
The Claimant, Barry D. Winston, is not entitled to any distribution from the Debtor�s estate.
ecf.txsb.uscourts.gov/doc1/178131926873
--------------------------------------------------------------------------------
Here's the conspiracy confession, something out of a movie: 17. In early 2008, Gaiennie removed essentially all of IPRC's cash from its bank accounts and attempted to render IPRC incapable of meeting its financial obligations. All of Gaiennie's conduct was, according to his sworn testimony, at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
--------------------------------------------------------------------------------
1 | P a g e
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
IMPERIAL PETROLEUM RECOVERY CORPORATION
DEBTOR
�
�
�
�
�
�
�
�
Case No. 13-30466
Chapter 11
DEBTOR�S OBJECTION TO CLAIM NO. 5
FILED BY DON B. CARMICHAEL.
[ Related to Claim No. 5 ]
THIS IS AN OBJECTION TO YOUR CLAIM. THE OBJECTING PARTY IS ASKING THE COURT TO DISALLOW THE CLAIM THAT YOU FILED IN THIS BANKRUPTCY CASE. YOU SHOULD IMMEDIATELY CONTACT THE OBJECTING PARTY TO RESOLVE THE DISPUTE. IF YOU DO NOT REACH AN AGREEMENT, YOU MUST FILE A RESPONSE TO THIS OBJECTION AND SEND A COPY OF YOUR RESPONSE TO THE OBJECTING PARTY WITHIN 21 DAYS AFTER THE OBJECTION WAS SERVED ON YOU. YOUR RESPONSE MUST STATE WHY THE OBJECTION IS NOT VALID. IF YOU DO NOT FILE A RESPONSE WITHIN 21 DAYS AFTER THE OBJECTION WAS SERVED ON YOU, YOU CLAIM MAY BE DISALLOWED.
TO THE HONORABLE JEFF BOHM, CHIEF UNITED STATES BANKRUTPCY JUDGE:
Imperial Petroleum Recovery Corporation (�IPRC� or �Debtor�), files this Objection to Proof of Claim No. 5 filed by Don B. Carmichael (�Carmichael�), and in support thereof would respectfully show the following:
Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 1 of 9
2 | P a g e
I.
JURISDICTION
1. This Court has jurisdiction over this matter pursuant to 28 U.S.C. � 157(b)(1). This is a core proceeding pursuant to 28 U.S.C. � 157(b)(2)(A), (B) and (O).
II.
THE CLAIM MADE THE BASIS OF DEBTOR�S OBJECTION
2. Pursuant to 11 U.S.C. � 502(a), Fed. R. Bank. P. 3007 and L. Rule 3007, the Debtor objects to the allowance of the following claim (the �Carmichael Claim�):
Claim No.: 5
Date Filed: August 5, 2013
Amount: $3,171,275.32
Type: Secured
Claimant: Don B. Carmichael
III.
INTRODUCTION
3. On or about January 31, 2012 (the �Filing Date�), an involuntary petition was filed against Debtor under chapter 7 of title 11 of the United States Code by petitioning creditors Don Carmichael (�Carmichael�), KK & PK Family LP (�KK&PK�), Barry Winston (�Winston�) and Gary Emmott (�Emmott�) (collectively the �Petitioning Creditors�). On April 3, 2013, Debtor filed a motion to convert the case to one under chapter 11 (ECF Document No. 14). On April 4, 2013, the Court entered an order for relief (ECF Document No. 21) and an order granting Debtor�s motion to convert (ECF Document No. 22). Debtor continues to serve in the capacity of a Debtor-in-Possession, no trustee having been requested or appointed. Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 2 of 9
3 | P a g e
4. On August 5, 2013, Carmichael filed a proof of claim alleging that he had a secured claim in the amount of $3,171,275.32 (Claim No. 5) based on a promissory note (Exhibit �1�).
5. On September 17, 2013, Debtor filed a Combined Disclosure Statement and Plan of Reorganization (the �DS/Plan�).
III.
DEBTOR�S OBJECTIONS
6. Pursuant to 11 U.S.C. � 502(a) and (b), Debtor objects to the Carmichael�s Claim and asks the Court to make a determination that the amount of Claim No. 5 is $0.
Relevant Facts
7. The secured claims of the Barry Winston (�Winston�), Don Carmichael and his mother, Mary Jane Carmichael (the �Carmichaels�), Gary Emmott (�Emmott�), and KK&PK Kanady Family LP (�KK&PK�) arise from a series of promissory notes issued by IPRC in 2005. IPRC borrowed these funds to provide operating revenue for its business, to repay other debt, and to fund working capital needs. The notes each had a term of two years, were secured by the collateral described below, and were convertible into common stock of IPRC at the option of the note holders.
8. None of the note holders elected to convert their debt into equity in the Company, and IPRC was unable to repay the notes due to tortious and fraudulent conduct of the Carmichaels, Winston, KK&PK and Edward C. Gaiennie ("Gaiennie"), a former officer and director of IPRC. IPRC attempted to settle the debt, but on March 27, 2012, Winston, the Carmichaels, Emmott and KK&PK filed suit against IPRC for breach of the promissory notes and to foreclose on certain property owned by IPRC pursuant to the notes and security agreements, and to appoint a receiver, said suit currently pending as Adversary Proceeding No. 13-03098. The notes were each secured Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 3 of 9
4 | P a g e
by, among other things, all of IPRC�s assets, accounts, deposits, securities and all other investment property, contractual rights, claims, intangibles including patents, patent applications, trademarks, software, engineering drawings, customer lists, goodwill, recorded data, etc. Property excepted from the security agreements included the Microwave Separation Technology Equipment and the MST skid and the Separator skid because these items were already covered by pre-existing liens.
9. The Carmichaels, Winston, KK&PK, acting by and through Kirk Kanady, as controlling members of Agribiofuels, L.L.C. ("ABF"), by and through their agent and co-conspirator, Gaiennie, the manager of ABF, tortiously interfered with IPRC's August 1, 2005, Management Agreement by causing ABF wrongfully to terminate that agreement before its term expired. That wrongful termination occurred in 2008. The wrongful termination and the other wrongful conduct was all part of an attempt by these parties to seize all of IPRC's extraordinarily valuable assets, particularly IPRC's technology, patents, and other intangible rights.
10. In 2005, the Carmichaels, Winston, Emmott and K.K.&P.K. entered into security agreements with IPRC for repayment of certain loans. Many, if not all, of IPRC's assets secure the repayment of those loans. However, said security interests were only perfected as to Don Carmichael, Winston and K.K.&P.K., and such security interests were not perfected until February 14, 2012, within one year of the Debtor�s Filing Date, January 31, 2013. The perfection of these security interests would be preferences under 11 U.S.C. � 547 if such creditors were insiders.
11. More specifically, beginning in 2008, Gaiennie acted simultaneously as an agent and officer both for ABF and IPRC, and also acting as the agent for and co-conspirator with the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott, commenced a series of activities that nearly destroyed IPRC. In sworn testimony, Gaiennie admitted that he acted at
Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 4 of 9
5 | P a g e
the direction and behest of Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott, threby breaching his duty of loyalty to IPRC.
12. Gaiennie, a CPA, caused ABF to withhold tax credits from IPRC, one of the owners of ABF, for fiscal years 2007 through 2011, and caused ABF to distribute those tax credits to one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. Gaiennie, engaged in a conspiracy with one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott to defraud IPRC by falsely distributing those tax credits in a manner other than a pro rata distribution in accordance with the ownership of ABF and its governing instruments.
13. Gaiennie, a licensed certified public accountant in the State of Texas, prepared or directed the preparation of the tax returns through which one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott misappropriated the ABF tax credits. Gaiennie has admitted in sworn testimony that one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott directed him to take those actions to withhold the tax credits from IPRC and to distribute those tax credits wrongfully to them for their direct personal benefit since they all have extraordinarily high income and sought, illegally, to shield themselves from tax liability to the United States Department of the Treasury, Internal Revenue Service.
14. Defendants have also engaged in a conspiracy to harm IPRC by disabling its ability to raise investor funds by providing false information to its auditors for its filings with the United States Securities and Exchange Commission.
15. Gaienne served as Chief Financial Officer and a member of the Board of Directors of IPRC until approximately January 25, 2008. On at least two occasions he Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 5 of 9
6 | P a g e
represented to the Board of Directors of lPRC that he had prepared IPRC's filings for the United States Securities and Exchange Commission in "audit ready form." In reliance upon Gaienne's affirmative representations to IPRC's Board of Directors, IPRC issued to Gaienne 950,000 shares of IPRC stock. After Gaienne left the employ of IPRC, IPRC discovered that Gaienne's representations to IPRC's Board of Directors were false, deceptive, and fraudulent. Gaienne had failed to prepare IPRC's filings and has caused IPRC to expend more than $125,000.00 in professional fees to accomplish the actions which Gaienne had represented, in his capacity as a fiduciary, that he had completed. Additionally, Gaienne's actions have cost IPRC several hundred thousand dollars, which is a minimum calculation of the amount of investment funds IPRC lost as a result of Gaienne's failure to prepare those filings.
16. IPRC discovered in 2013 that all of Gaiennie's misconduct occurred at the direction and behest of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. IPRC further discovered in 2013 that Gaiennie's loyalty has always been these parties, over and above and in lieu of his duty of loyalty to IPRC.
17. In early 2008, Gaiennie removed essentially all of IPRC's cash from its bank accounts and attempted to render IPRC incapable of meeting its financial obligations. All of Gaiennie's conduct was, according to his sworn testimony, at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
18. Gaiennie caused critical supplies, for which IPRC had paid, to disappear from IPRC's inventory and reappear within the inventory of ABF while acting at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott. Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 6 of 9
7 | P a g e
19. Gaiennie misappropriated IPRC equipment for use in ABF's biodiesel plant without any financial reimbursement of IPRC for the use or value of that equipment, while acting at the behest and direction of one or more of the Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott.
20. The Carmichaels, Winston, KK&PK (acting by and through Kanady) and Emmott have fraudulently concealed their wrongful conduct.
Basis for Objection
21. Carmichael�s violation of the duty of good faith under Section 1.304 of the Texas Business and Commerce Code bars his claims and enforcement of his alleged rights.
22. Carmichael�s claims are barred by estoppel.
23. Carmichael�s claims are barred by fraud.
24. Offset in the form of IPRC�s claims against Carmichael in Adversary Proceeding Nos. 13-03098 and 13-03087.
25. Carmichael�s claims are barred by substantial breach of the agreements supporting his claim.
26. Carmichael�s claims are barred by the first breach having been engaged in by Carmichael.
27. Carmichael�s claims are barred by failure of consideration.
28. Carmichael�s claims are barred by laches and limitations.
Conclusion
29. For the foregoing reasons, Claim No. 5 should be determined to be $0. Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 7 of 9
8 | P a g e
Wherefore, Debtor respectfully request that this Bankruptcy Court enter an order disallowing Claim No. 5 filed by Carmichael; and granting Debtor such other and all further relief to which Debtor may be justly entitled.
Respectfully Submitted this 17th day of September 2013.
/s/ Leonard H. Simon
Leonard H. Simon, Esq.
TBN: 18387400; SDOT: 8200
The Riviana Building
2777 Allen Parkway, Suite 800
Houston, Texas 77019
(713) 737-8207 (Direct)
(832) 202-2810 (Direct Fax)
lsimon@pendergraftsimon.com
ATTORNEY IN CHARGE FOR DEBTOR
OF COUNSEL:
PENDERGRAFT & SIMON
The Riviana Building
2777 Allen Parkway, Suite 800
Houston, Texas 77019
(713) 528-8555 (Main)
(713) 868-1267 (Main Fax)
Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 8 of 9
9 | P a g e
CERTIFICATE OF SERVICE
This is to certify that on this 17th day of September 2013, a true and correct copy of the above and foregoing Objection to Claim No. 5 has been served by electronic transmission to all registered ECF users appearing in the case and to the following parties by the following means:
(1) Claimants and Counsel for Claimants (by regular first class mail):
Don B. Carmichael, M.D.
18223 Theiss Mail Route
Spring, Harris County, Texas 77379
Chapoton Sanders LLP
Two Riverway, Suite 1500
Houston, Texas 77056
John J. Marek
Attorney At Law
15851 Dallas Parkway, Suite 600
Addison, Texas 75001
(3) The United States Trustee (via regular first class mail):
Judy A. Robbins
United States Trustee (Region 7)
515 Rusk Street, Suite 3516
Houston, TX 77002
(4) Parties who have filed a notice of appearance (by ECF):
/s/ Leonard Simon
Leonard H. Simon Case 13-30466 Document 130 Filed in TXSB on 09/17/13 Page 9 of 9
--------------------------------------------------------------------------------
ORDER DISALLOWING CLAIM NO. 5, FILED BY DON B. CARMICHAEL
The court, having considered the Debtor�s Objection to Claim No. 5, filed by Don B. Carmichael (the �Objection�), the response thereto, and the evidence and argument of counsel, is of the opinion that the Objection is meritorious and should be sustained.
THEREFORE, IT IS ORDERED that Debtor�s Objection should be and hereby is sustained, and that Claim No.5 is hereby disallowed in its. The Claimant, Don B. Carmichael, is not entitled to any distribution from the Debtor�s estate.
Date:
HONORABLE JEFF BOHM
CHIEF UNITED STATES BANKRUPTCY JUDGE
--------------------------------------------------------------------------------