CACB — Notice of Motion and Motion in Individual Chapter 11 Case for Order Authorizing Debtor-in-possession to (F2081-2.3MOTIONPAYROLL)

Source: https://www.cacb.uscourts.gov/sites/cacb/files/documents/forms/F2081-2.3MOTIONPAYROLL.pdf

Attorney or Party Name, Address, Telephone & FAX FOR COURT USE ONLY Nos., State Bar No. & Email Address

Individual appearing without attorney
Attorney for:
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA - SELECT DIVISION DIVISION

In re: CASE NO.: CHAPTER: 11

NOTICE OF MOTION AND MOTION IN INDIVIDUAL CHAPTER 11 CASE FOR ORDER

AUTHORIZING DEBTOR-IN-POSSESSION TO: (1) PAY PREPETITION PAYROLL; (2) HONOR PREPETITION EMPLOYMENT PROCEDURES; AND (3) CONTINUE PAYING TAXES [LBR 2081-1(a)(6)]

This motion is being made under ONLY ONE of the following notice procedures:

No hearing unless requested under LBR 9013-1(o)(4); or Hearing requested on emergency basis: LBR 9075-1(a); or Hearing requested on shortened notice: LBR 9075-1(b); or Hearing set on regular notice: LBR 9013-1(d): DATE: TIME:

COURTROOM: ADDRESS:

Debtor(s).

1. PLEASE TAKE NOTICE THAT the Debtor moves this court for an order authorizing the debtor-in-possession to (1) pay prepetition payroll; (2) honor prepetition employment procedures; and (3) continue paying taxes.

2. NOTICE PROVISIONS AND DEADLINES FOR FILING AND SERVING A WRITTEN RESPONSE: Your rights might be affected by this Motion. You may want to consult an attorney. Refer to the box checked below for the deadline to file and serve a written response. If you fail to timely file and serve a written response, the court may treat such failure as a waiver of your right to oppose the Motion and may grant the requested relief. You must serve

   This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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a copy of your opposition upon the Debtor and Debtor’s attorney and the United States trustee and also serve a copy on the judge assigned to this bankruptcy case pursuant to LBR 5005-2(d) and the Court Manual.

a. No Hearing Scheduled; Notice Provided Under LBR 9013-1(o): This Motion is filed by Debtor
pursuant to LBR 9013-1(o), which provides for granting of motions without a hearing, unless a hearing is
requested in writing. The full Motion is attached, including the legal and factual grounds upon which the
Motion is made. If you wish to oppose this Motion, you must file a written response and request for
hearing with the court and serve it as stated above, no later than 14 days after the date stated on the
Proof of Service of this Motion plus 3 additional days if you were served by mail, electronically, or
pursuant to F.R.Civ.P. 5(b)(2)(D), (E), or (F). Your opposition must comply with LBR 9013-1(f) and (o).

b. Hearing Requested on Emergency Basis under LBR 9075-1(a): Hearing Requested on Emergency
Basis under LBR 9075-1(a): Debtor has contacted the court and requested an emergency hearing on
less than 48 hours notice. If the court grants the request, you will receive a separate Notice of Hearing
that identifies the deadline for the Debtor to file and serve the Motion and the deadline for you to file and
serve a written response. If the court denies the request to set an emergency hearing, the Debtor will
provide written notice of a regular hearing date or other disposition of this motion and the deadline for
filing an opposition.

c. Hearing Requested on Shortened Notice under LBR 9075-1(b): Debtor has filed a separate
application asking the court to set a hearing on shortened notice. The application is entitled Application
for Order Setting Hearing on Shortened Notice (Application). If the court grants the Application, the
Debtor will serve you with another document providing notice of the deadline to file and serve a written
response. If the court denies the Application, the Debtor will provide written notice of a hearing date on
regular notice or other proposed disposition of this motion.

d. Hearing Set on Regular Notice; Notice Provided Under LBR 9013-1(d): This Motion is set for hearing
on regular notice pursuant to LBR 9013-1(d). The full Motion and supporting documentation are
attached, including the legal and factual grounds upon which the Motion is made. If you wish to oppose
this Motion, you must file a written response with the court and serve it as stated above no later than 14
days prior to the hearing. Your response must comply with LBR 9013-1(f). The undersigned hereby
verifies that the hearing date and time selected were available for this type of Motion according to the
judge’s self-calendaring procedures [LBR 9013-1(b)].

e. Other (specify):

Date: By: Signature of Debtor

Name: Printed name of Debtor

Date: By: Signature of attorney for Debtor, if any

Name: Printed name of attorney for Debtor, if any

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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MOTION FOR ORDER AUTHORIZING PAYMENT OF PREPETITION DATE PAYROLL AND TO HONOR PREPETITION PAYROLL PROCEDURES [LBR 2081-1(a)(6)]

1. In order to effectively reorganize, the Debtor must be able to retain and pay his/her employees.

2. Pursuant to 11 U.S.C. §§ 105(a), 363(b) and (c), 507(a)(4), (a)(5) and (a)(8), 541(b)(7), 1122(b) and 1129(a)(9), the Debtor requests authority: (a) to pay outstanding balances of prepetition payroll and accrued benefits as set forth in specific detail in the list of employees, prepetition wages and insider designation (Employee List), attached as Exhibit A, and to continue prepetition payroll procedures; (b) to pay benefits that accrued prepetition but that mature postpetition in the ordinary course of business; and (c) to pay any prepetition non-default sales, use and franchise taxes that the Debtor must collect or withhold (if any are listed in the list of sales, use and franchise taxes (Tax List).

3. The employees set forth in the Employee List are still employed by the Debtor.

4. Any employees who are insiders as defined by 11 U.S.C. § 101(31) are clearly identified as insiders on the Employee List.

5. The employees’ claims are either within the limits established by 11 U.S.C. § 507(a)(4) or (5) or are clearly bifurcated in the Employee List into amounts within the limit and amounts in excess of the limit.

The payment of balances owed on prepetition payroll are necessary to fairly compensate the employees for the reasonable value of services performed in the ordinary course of employment consistent with historical payment terms and to pay accrued benefits, if any.

6. The prepetition payroll procedures sought to be continued are beneficial to the chapter 11 estate.

7. The Debtor has a reasonable prospect of reorganizing through chapter 11.

8. The payment(s) proposed will not render the estate administratively insolvent since there will be at least $ in cash reserves following the proposed payment(s).

The Debtor requests that he/she be authorized to (a) make the payments as outlined in the Employee List; (b) continue prepetition payroll procedures; and (c) pay the taxes outlined in the Tax List.

Date: By: Signature of attorney for Debtor, if any

Name: Printed name of attorney for Debtor, if any

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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DECLARATION OF DEBTOR IN SUPPORT OF MOTION FOR ORDER AUTHORIZING PAYMENT OF PREPETITION DATE PAYROLL AND HONOR PREPETITION PAYROLL PROCEDURES [LBR 2081-1(a)(6)]

1. I am the Debtor in this chapter 11 bankruptcy case. I make the following statements based upon my own personal

   knowledge.

2. Exhibit A is a true and correct list of employees, prepetition wages and insider designation (Employee List).

3. All of the employees set forth in the Employee List are still employed by the Debtor.

4. Employees who are insiders, if any, are clearly set forth as such in the attached list.

5. The employee claims are set forth in the Employee List and any amount in excess of the limit under 11 U.S.C. § 507 is separately listed.

6. The payroll and employee procedures sought to be continued are (specify):

7. These payroll and employee procedures are beneficial to the chapter 11 estate because (specify):

8. The payment of balances owed on prepetition payroll are necessary to fairly compensate the employees for the reasonable value of services performed in the ordinary course of employment and consistent with historic payment terms.

9. If authority to pay pre-petition non-default sales, use and franchise taxes is sought, I attached as Exhibit B a true and

   correct list of sales, use and franchise taxes (Tax List).

10. The Debtor has a reasonable prospect of reorganization because (specify):

11. After payment of the proposed payments, there will be at least $ in cash reserves.

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

Date Printed Name Signature

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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EXHIBIT A – EMPLOYEE LIST PREPETITION WAGES AND INSIDER DESIGNATION

DOLLAR AMOUNT OF DOLLAR AMOUNT OF PREPETITION PREPETITION WAGES INSIDER WAGES AND EMPLOYEE NAME AND ACCRUED (Yes ACCRUED BENEFITS BENEFITS UP TO LIMIT or No) ABOVE LIMIT OF OF 11 U.S.C. § 507 11 U.S.C. § 507 Wages: $ Wages: $ 1 Benefits: $ Benefits: $ Wages: $ Wages: $ 2 Benefits: $ Benefits: $ Wages: $ Wages: $ 3 Benefits: $ Benefits: $ Wages: $ Wages: $ 4 Benefits: $ Benefits: $ Wages: $ Wages: $ 5 Benefits: $ Benefits: $ Wages: $ Wages: $ 6 Benefits: $ Benefits: $ Wages: $ Wages: $ 7 Benefits: $ Benefits: $ Wages: $ Wages: $ 8 Benefits: $ Benefits: $ Wages: $ Wages: $ 9 Benefits: $ Benefits: $ Wages: $ Wages: $ 10 Benefits: $ Benefits: $ Wages: $ Wages: $ 11 Benefits: $ Benefits: $ Wages: $ Wages: $ 12 Benefits: $ Benefits: $ Wages: $ Wages: $ 13 Benefits: $ Benefits: $ Wages: $ Wages: $ 14 Benefits: $ Benefits: $ Wages: $ Wages: $ 15 Benefits: $ Benefits: $ Wages: $ Wages: $ 16 Benefits: $ Benefits: $ Wages: $ Wages: $ 17 Benefits: $ Benefits: $ Wages: $ Wages: $ 18 Benefits: $ Benefits: $ Wages: $ Wages: $ 19 Benefits: $ Benefits: $ Wages: $ Wages: $ 20 Benefits: $ Benefits: $ Wages: $ Wages: $ 21 Benefits: $ Benefits: $

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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EXHIBIT B – TAX LIST SALES, USE AND FRANCHISE TAXES

TAX TYPE ESTIMATED AMOUNT

$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$
$

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

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PROOF OF SERVICE OF DOCUMENT

I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business address is:

A true and correct copy of the foregoing document entitled: NOTICE OF MOTION AND MOTION IN INDIVIDUAL CHAPTER 11 CASE FOR ORDER AUTHORIZING DEBTOR-IN-POSSESSION TO: (1) PAY PREPETITION PAYROLL; (2) HONOR PREPETITION EMPLOYMENT PROCEDURES; AND (3) CONTINUE PAYING TAXES [LBR 2081-1(a)(6)] will be served or was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the manner stated below:

1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On (date) , I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the

following persons are on the Electronic Mail Notice List to receive NEF transmission at the email addresses stated below:

Service information continued on attached page

2. SERVED BY UNITED STATES MAIL: On (date) , I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the document is filed.

   Service information continued on attached page

3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on (date) , I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or email as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than 24 hours after the document is filed.

   Service information continued on attached page

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

Date Printed Name Signature

This form is optional. It has been approved for use in the United States Bankruptcy Court for the Central District of California.

June 2015 Page 7 F 2081-2.3.MOTION.PAYROLL