In re Trump Taj Mahal Associates

• Decision Date: 01 July 1993
• Docket Number: Adv. No. 93-2056.,91-13325,Bankruptcy No. 91-13321,91-13351 and 91-13334
• Citation: 156 BR 928
• Parties: In re TRUMP TAJ MAHAL ASSOCIATES, Trump Taj Mahal, Inc., The Trump Taj Mahal Corporation, and Trump Taj Mahal Funding, Inc., Debtors. TRUMP TAJ MAHAL ASSOCIATES, et al., Plaintiffs, v. Ginan ALIBRAHAM, Rashid Alibraham, Cynthia Smith, Ann Jordan, Marilyn Kunkel, Robert W. Matthews, Helen O'Hara, Eugene O'Hara, Louis J. Picariello, Cynthia Picariello, Rita Newman, Madelyn Tolerico, Louise McRee and Earl McRee, Defendants.
• Court: U.S. Bankruptcy Court — District of New Jersey

156 B.R. 928 (1993)

In re TRUMP TAJ MAHAL ASSOCIATES, Trump Taj Mahal, Inc., The Trump Taj Mahal Corporation, and Trump Taj Mahal Funding, Inc., Debtors TRUMP TAJ MAHAL ASSOCIATES, et al., Plaintiffs, v. Ginan ALIBRAHAM, Rashid Alibraham, Cynthia Smith, Ann Jordan, Marilyn Kunkel, Robert W. Matthews, Helen O'Hara, Eugene O'Hara, Louis J. Picariello, Cynthia Picariello, Rita Newman, Madelyn Tolerico, Louise McRee and Earl McRee, Defendants.

Bankruptcy Nos. 91-13321, 91-13325, 91-13351 and 91-13334, Adv. No. 93-2056.

United States Bankruptcy Court, D. New Jersey.

July 1, 1993.

COPYRIGHT MATERIAL OMITTED

Schwartz, Tobia & Stanziale by Jennifer T. Stone, Stephen C. Greene, Montclair, NJ, for debtors.

Carmen R. Faia, Pleasantville, NJ, for Helen O'Hara and Eugene O'Hara.

Law Firm of Barbara Rothenberg by Robert S. Fisher, Jeffrey Nydick, Cherry Hill, NJ, for Ann Jordan.

OPINION

ROSEMARY GAMBARDELLA, Bankruptcy Judge.

Before this Court is the Second Order to Show Cause Why Defendants Should not be Enjoined from Prosecuting an Action against Debtors Barred by 11 U.S.C. § 362, the Restraining Order Dated July 17, 1991, the Order of Confirmation Dated August 28, 1991 and 11 U.S.C. § 524(a)(3) and for Sanctions Filed by Trump Taj Mahal Associates, Trump Taj Mahal, Inc., the Trump Taj Mahal Corporation, and Trump Taj Mahal. The following constitutes this Court's findings of fact and conclusions of law.

FACTS

On July 16, 1991, the Trump Taj Mahal Associates and three affiliated debtors, Trump Taj Mahal, Inc., the Trump Taj Mahal Corporation, and Trump Taj Mahal Funding, Inc. (the "Taj" or the "Debtor") filed petitions under Chapter 11 of the Bankruptcy Code. The Debtors operate the Trump Taj Mahal Resort Casino and Hotel in Atlantic City, New Jersey. On August 28, 1991 this Court entered an Order confirming the Debtors' Second Amended Plan of Reorganization.

Prior thereto, on July 17, 1991, this court, inter alia, (i) established August 23, 1991 as the deadline for filing Proofs of Claim against the debtor, the Trump Taj Mahal Associates (the "Bar Date"); and (ii) allowed notice of the Bar Date by publication (the "Bar Date Order"). Pursuant to the Bar Date Order, notice of the Bar Date was published in the following newspapers:

(a) The New York Times, National Edition

(b) The Wall Street Journal, National Edition

(c) The Newark Star Ledger

(d) The Atlantic City Press

(e) The Philadelphia Inquirer

See July 17, 1991 Order.

The Bar Date Order further provided, in relevant part:

All persons . . . holding or wishing to assert claims as defined in 11 U.S.C. § 101(5) against the Debtors . . . are required to file on or before 5:00 pm Camden, New Jersey Time on August 23, 1991 (the "Bar Date"), a separate completed and executed proof of claim form. . . .

Any of the Creditors . . . who is required but fails to file a proof of claim . . . shall be forever barred, estopped and enjoined from asserting such claim. . . .

Pursuant to Bankruptcy Rule 2002(a)(8) . . . notice . . . shall be deemed good and sufficient notice to known and unknown Creditors if the Debtors cause the Notice: (a) to be mailed on or before July 23, 1991 to all creditors . . . and (b) to be published once during each of three (3) consecutive weeks commencing on or before July 23, 1991 in the national edition of each of the New York Times and The Wall Street Journal as well as in the Atlantic City Press, The Star Ledger and Philadelphia Inquirer. . . .

See Order Pursuant to Bankruptcy Rule 3003(c)(3) Setting a Final Date for Filing of Certain Proofs of Claim and Interests.

The Taj alleges that the defendants, Ann Jordan, and Helen O'Hara and Eugene O'Hara have violated the automatic stay.

Defendants O'Hara and Jordan have filed answers to the complaints and separate motions seeking an order permitting these parties to file Proofs of Claim out of time or declaring the Proofs of Claim timely filed.

Jordan

On November 18, 1990, Ann Jordan was a pedestrian lawfully on the premises of the Taj. She allegedly fell as a result of a dangerous and defective condition. Jordan claims that, as a result of the fall, she sustained serious and diverse personal injuries. Shortly after her fall, Jordan gave the Taj notice of her accident and claim.

On February 13, 1991, the Taj acknowledged this notice through the following letter addressed to her then attorney Allen L. Rothenberg, Esq.:

February 13, 1991 Lois Dimitri, Paralegal ALLEN L. ROTHENBERG, ESQUIRE 1518 Walnut Street 18TH Floor, Rothenberg Tower Philadelphia, PA 19102 Re: Your Client: Ann Jordan D/I: 11-18-90 Our Claim #: 5500525 Dear Ms. Dimitri This is to acknowledge your letter regarding your above mentioned client, we would like to conclude this claim in an expedient manner. Please give us copies of all medical specials received to date, including a narrative report from the treating physician. Very truly yours Jay B. Baver Claims Adjuster Risk Management

See Brief of Robert S. Fisher, filed March 3, 1993, Exh. "C" (hereinafter "Jordan Brief"). In response to this letter, Jordan's counsel forwarded a complete package of special damages and the theory of liability. At that time the Taj and Jordan entered into settlement negotiations. The parties, however, failed to reach a settlement.

On August 7, 1992, Jordan filed suit against the Taj in the New Jersey Superior Court, Atlantic County (the "State Court Action"). In that suit, Jordan is represented by Robert S. Fisher, Esq., of the law office of Barbara Rothenberg. On October 22, 1992, the debtor, represented by Horn, Goldberg, Gorny, Daniels, Paarz, Plackter and Weiss, filed an answer to Jordan's State Court Action. The parties have apparently actively litigated this matter. Jordan alleges that discovery is virtually complete.

On September 14, 1992, Mr. Fisher received a letter from the Taj asking Jordan to voluntarily withdraw her action because she had failed to comply with the Bar Date Order. Jordan admits that she received notice of the Bar Date Order, but she believes that she received it after the Bar Date. Moreover, Jordan argues that, as a lay person, she was unaware of the legal consequences of failing to file a timely Proof of Claim. Upon receipt of the September 14, 1992 letter, Mr. Fisher immediately filed a Proof of Claim. See Jordan Brief, Exh. "B".

Jordan requests that this court employ its equitable powers to allow Jordan to file a late Proof of Claim. Moreover, she argues that the Taj will not suffer appreciable prejudice if she is allowed to file a late Proof of Claim because the Taj was aware of her claims prepetition.

O'Hara

Helen O'Hara, an elderly woman, was allegedly injured on August 23, 1990 at the Taj. On the same day, the O'Haras filed a report of the accident with a security guard or other representative of the Taj. The O'Haras, therefore, conclude that the Taj had due notice and knowledge of the accident and injury. See Certification of Carmen R. Faia, Esq. in Opposition to Plaintiff's Second Order to Show Cause, filed February 17, 1993, para. 2 (hereinafter "Faia cert.").

Mrs. O'Hara was transported to Burdette Tomlin Memorial Hospital, where she was treated for her injuries. See Reply Brief, filed March 12, 1993 (hereinafter "O'Hara Reply"). In a letter dated October 12, 1990, Jay Baver, a Claims Adjuster for the Taj sent Mrs. O'Hara the following letter:

I am in receipt of our incident report outlining your unpleasant experience mentioned above.

In an effort to confirm your patronage is valuable, we are willing to consider paying your out-of-pocket medical bills associated with this matter as well as additional compensation for distress. In order for us to do so we will need copies of all medical bills and the doctors sic evaluation of your injury. Upon receipt of the above requested information we will contact you again.

On behalf of Trump Taj Mahal we apologize for this incident and hope it will not keep you from visiting us again.

See Response of Reorganized Debtors in Opposition to Notice of Motion of Helen O'Hara and Eugene O'Hara to Grant an Extension of Time Within Which to File a Proof of Claim, filed March 8, 1993, Exh. "A". The O'Haras apparently failed to reply to this letter. Id.

Carmen R. Faia, Esq. represents the O'Haras. On August 21, 1992, the O'Haras filed a Complaint in the Superior Court of New Jersey, Law Division, Atlantic County, seeking damages as a result of the alleged injuries suffered by Mrs. O'Hara at the Taj on August 23, 1990. The Sheriff of Atlantic County apparently properly served the Complaint on the Taj. See Faia cert., para. 3-4.

On October 7, 1992, Mr. Faia received a letter dated October 5, 1992, from Nicholas F. Moles, Esq., Senior Vice President of Law at the Taj. In that letter, Mr. Moles stated:

We are in receipt of a Summons and Complaint in the Caption matter.

Please be advised that on or about July 16, 1991, Petitions in Bankruptcy were filed by the Debtor. On July 17, 1991, an Order Pursuant to Bankruptcy Rule 3003(c)(3) Setting a Final Date for Filing Certain Proofs of Claim and Interests was entered, which, among other things, bars Claimants from asserting any claim or interest against the Debtor. For your reference, a copy of said Order is attached.

Notice of the bar date, in addition to being forwarded to all claimants of whom we had knowledge, was published in various newspapers of general circulation, including The Star Ledger, The New York Times, The Wall Street Journal, Philadelphia Inquirer and The Press of Atlantic City.

There is no record of a proof of claim having been filed on behalf of this claimant and, accordingly, further proceedings in this matter are barred by the provisions of the United States Bankruptcy Code.

Therefore I would request that you voluntarily dismiss the Complaint or I shall have no alternative but to pursue all remedies available to my client in the Federal Bankruptcy Court.

See Faia cert., Exh. "A". Mr. Faia asserts...