Machne Menachem

Latest papers submitted to Bankruptcy Court of Pennsylvania by the Original Directors Motion #2

Posted in Uncategorized by machnemenachem on May 27, 2009

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

IN RE:
MACHNE MENACHEM, INC.,
Debtor CASE NO. 5:01 – 04926

DEBTOR’S BRIEF IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT BY YAAKOV
SPRITZER AND A-ONE MERCHANDISING, INC.

Debtor, by and through its counsel files this Brief in Opposition to the Motion for Summary Judgment filed by Yaakov Spritzer and A-One Merchandising, Inc.

ADDITIONAL FACTUAL BACKGROUND

Debtor has filed a Supplemental Answer to the summary Judgment Motion supporting its contention that the Spritzer claim should not be allowed, in furtherance of its previously filed Objection to this claim.

In summary the Mortgage document dated November 6, 2001 between Machne Menachem. Inc. (Mortgager) and Yaakov Spritzer (Mortgagee) in the amount of $1,000,000 was executed by Meir Schreiber as “Vice President/Treasurer”. However, Meir Schreiber as well as Yaakov Spritzer, were removed by Judge Glasser in the Federal action in New York which resolved the management dispute among the directors of Machne Menachem, Inc. Further Debtor avers that Yaakov Spritzer has not accounted for finds missing and unaccounted for during the period of his operation of the summer camp.

Argument

A. DEBTOR HAS PRODUCED SUBSTANTIAL EVIDENCE QUESTIONING THE VALIDITY OF THE SPRITZER CLAIM WHICH WAS DISPUTED.

It is well settled, as Movant notes in his Brief that Summary Judgment is appropriate where viewing the record in a light most favorable to the non-moving party there is no genuine issue of material fact and so that the Movant is entitled to judgment as a matter of law.

The supplemental Answer to the Summary Judgment Motion is specific in its attack on the Spritzer claim and should overcome its prima facie validity.

B. THE ALLEGED DELAY IN PROSECUTION OF THE CLAIM IS EXCUSABLE.

Debtors have met the balancing test set forth in the Poulis case 747 F.2d 863,868 (3rd cir. 1984) cited by Movant.

A meritorious claim has been set forth in the Supplemental Answer, detailing the unauthorized expenditures and unaccounted funds.

Debtors relied on their counsel Ronald Santora, Esquire who represented them throughout the proceeding for presentation and determination of its objection to Spritzer’s claim. Further there is no prejudice to Spritzer in that the other claims have just now been authorized and paid and the Trustee’s Fee Application is pending.

The time is now ripe to decide whether the remaining balance should be paid over to the Debtor or to the Claimant. There do not appear to be no other alternatives to the severe sanction of dismissal and due to its severity; and in view of the substantial sum involved, Debtor should be given an opportunity to have its Objections to the Spritzer claim determined on the merits.

RESPECTFULLY SUBMITTED,
/s/ ALLEN T. REISHTEIN
ALLEN T. REISHTEIN, ESQUIRE
SUITE 650, 8 W. MARKET STREET
WILKES-BARRE, PA 18701
570.823.7171
PAID# 01812
Attorneys for Debtor Machne Menachem, Inc.

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