Gregory M. Sudbury Hudson M. Jobe UILLING SELANDER …

Gregory M. Sudbury Hudson M. Jobe QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 – Telephone (214) 871-2111 – Facsimile Attorneys for PharMerica Long Term-Care, LLC d/b/a PharMerica

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

IN RE: § § CASE NO. 18-33967 (BJH) SENIOR CARE CENTERS, LLC, et al § (Chapter 11) § Jointly Administered DEBTORS-IN-POSSESSION SUPPLEMENTAL BRIEF IN SUPPORT OF OBJECTION TO MOTION OF DEBTORS FOR ENTRY OF INTERIM AND FINAL ORDERS (I) AUTHORIZING THE USE OF

CASH COLLATERAL, (II) GRANTING ADEQUATE PROTECTING, (III) MODIFYING THE AUTOMATIC STAY, (IV) SETTING A FINAL HEARING, AND (V)

GRANTING RELATED RELIEF (DOCKET NO. 24)

PharMerica Long Term-Care, LLC d/b/a PharMerica (“PharMerica”) files its

Supplemental Brief in Support of Objection to Motion of Debtors for Entry of Interim and Final

Orders (I) Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III)

Modifying the Automatic Stay, (IV) Setting a Final Hearing and (V) Granting Related Relief

(Docket No. 24) as follows:

SUMMARY

1. Pre-petition, PharMerica garnished $314,738.98 from the Debtors’ accounts with

its asserted primary secured lender, CIBC. That created a lien against the Debtors’ accounts

under Texas law. After filing bankruptcy, the Debtors and CIBC kept this amount segregated by

Case 18-33967-bjh11 Doc 712 Filed 03/18/19 Entered 03/18/19 18:25:46 Page 1 of 14

agreement in the cash collateral orders.1 The prior agreement also preserved all rights of

PharMerica through the Final Hearing.2 Accordingly, PharMerica’s lien position is not subject to

the various findings and deadlines regarding CIBC’s lien validity and priority.

2. This case is unusual insofar as the garnished funds are either the collateral of

PharMerica or its asserted secured lender, CIBC. The funds are not, as in most cases, the wages

or other exempt property of an individual debtor, or subject to an avoidance action for the benefit

of the general unsecured creditor body. The segregated funds would be approximately sufficient

to pay PharMerica’s claim in full, while they only represent less than 1% of the Debtors’ asserted

credit facility with CIBC.

3. As of today, PharMerica has a facially valid lien in the segregated funds that will

be subject to various disputes that require an adversary proceeding. The Debtors have not

provided PharMerica with a draft Final Cash Collateral Order, but the Debtors have confirmed

that they intend to release the freeze and use the funds. The Debtors have not offered

PharMerica any adequate protection for the usage of the segregated funds. As discussed more

fully herein, PharMerica believes it is entitled to be adequately protected by the continued freeze

of the funds, or in the alternative, provided similar treatment as CIBC if the funds are to be used.

Also, PharMerica and the segregated funds should be “carved-out” of the general and sweeping

liens and lien priority determinations given to CIBC in the Cash Collateral Order pending a

determination of the parties’ rights to the segregated funds. Last, none of PharMerica’s rights as

1 See, e.g., paragraph 20, Docket No. 673 (“The Administrative Agent and Debtors agree to leave in place the monetary hold on one of the Debtors’ accounts in the amount of approximately $314,738.98 (the “Garnishment Funds”) until the Final Hearing. All rights of PharMerica and the Debtors are preserved until the Final Hearing.”

2 Id.


to the funds should be decided by a summary proceeding, and instead should be fully preserved

for an adjudication by adversary proceeding.

BACKGROUND

4. On September 28, 2018, PharMerica obtained a Final Default Judgment against

Senior Care Centers, LLC, as well as its affiliated entities PM Management – El Paso I, NC and

SCC Socorro, LLC (collectively the “Judgment Debtors”), in the amount of $314,738.98 in the

101st District Court, Dallas County, Texas (the “Judgment”), a true and correct copy of which is

attached as Exhibit “1.” On November 15, 2019, PharMerica filed its Original Application for

Writ of Garnishment - a true and correct copy of which is attached as Exhibit “2.”. The Court

issued the Writ of Garnishment on November 19, 2018, and such Writ was then served on CIBC

on or about November 26, 2018. a true and correct copy of the Writ is attached as Exhibit “3”.3

5. The above-captioned bankruptcy cases were filed by the Judgment Debtors on

December 4, 2018, prior to CIBC’s response date in the garnishment proceeding. To date, CIBC

has not provided any formal or informal response or other position to the Notice of Garnishment.

6. CIBC, on its own behalf and as Administrative Agent for other lenders, asserts the

status as the primary secured lender in this case on an alleged $45MM credit facility. The

Debtors and CIBC were aware of the garnishment proceeding when this case was filed, and the

Debtors informed PharMerica that CIBC had segregated $314,738.98 (the “Segregated Funds”).

PharMerica does not concede that CIBC has fulfilled its garnishment obligations by merely

freezing the Segregated Funds. The Debtors have demanded PharMerica to dismiss the

garnishment proceeding, but have not offered any provision for replacement funds or other

adequate protection.

3 See also, Unsworn Declaration of Gregory Sudbury in support of these Exhibits and attached as Exhibit “4” hereto.


7. In fact, the Debtors’ Motion of Debtors for Entry of Interim and Final Orders (I)

Authorizing the Use of Cash Collateral, (II) Granting Adequate Protection, (III) Modifying the

Automatic Stay, (IV) Setting a Final Hearing and (V) Granting Related Relief (Docket No. 24)

(the “Motion to Use Cash Collateral”) failed to make any mention of PharMerica, the Notice of

Garnishment, or the Segregated Funds. And while at the same time they fail to mention

PharMerica and its secured position, the Motion to Use Cash Collateral and Interim Order

includes sweeping findings and treatment for Garnishee that would arguably jeopardize the rights

of PharMerica.

8. On December 19, 2018, PharMerica filed its Objection to Motion of Debtors for

Entry of Interim and Final Orders (I) Authorizing the Use of Cash Collateral, (II) Granting

Adequate Protection, (III) Modifying the Automatic Stay, (IV) Setting a Final Hearing and (V)

Granting Related Relief (Docket No. 24) as Docket No. 154 in the above-captioned bankruptcy

cases (the “Objection”). On December 26, 2018, PharMerica filed its Brief in Support of its

Objection (Docket No. 205). This Supplemental Brief is submitted in support of the Objection to

Usage of Cash Collateral to re-urge the same arguments in the prior Brief and also address new

developments since this original Objection and Brief were filed.

BRIEF IN SUPPORT

9. The parties appear to agree that the garnishment created, at a minimum, a lien in

favor of PharMerica on the funds of the Judgment Debtors deposited with CIBC. In re Bensen,

262 B.R. 371, 376 (Bankr. N.D. Tex. 2001) (“A lien created by the service of a writ of

garnishment creates a lien on property subject to such writ from the date of service of the

writ… Additionally, a writ of garnishment not only impounds funds in the hands of a garnishee

when the writ is served but also such funds belonging to the debtor up to and including the day

the garnishee is to answer.”) (internal citations and quotations omitted). Further, PharMerica


assumes there is no dispute that such cash collateral cannot be used under 11 U.S.C. § 363(a)

absent Court approval, and that 11 U.S.C. § 363(p) places the burden upon the Debtors to show

how PharMerica would be adequately protected in any proposed usage of the cash collateral.

See, e.g., In re Johnson, 479 B.R. 159, 171 (Bankr. N.D. Ga. 2012) (“Further, funds subject to

a garnishment lien are “cash collateral” under 11 U.S.C. § 363(a) (because the funds are cash in

which the garnishing creditor has an interest by virtue of its garnishment lien.”).

10. Instead, the parties dispute: (a) whether under these facts PharMerica has an

obligation to release the garnishment pursuant to the automatic stay provisions of 11 U.S.C. §

362(a) in the complete absence of any offer and showing by the Debtors of sufficient adequate

protection; (b) whether PharMerica’s lien may be avoidable as a preference under 11 U.S.C. §

547; and (c) presumably, the lien priority between PharMerica and CIBC on the Segregated

Funds.

Automatic Stay

11. First, in Olivas, the United States Bankruptcy Court for the Western District of

Texas has squarely rejected the Debtors’ position here and instead ruled: (a) a garnishment lien is

an interest in cash collateral that must be adequately protected if the debtor requests authority to

use the funds; (b) maintaining the garnishment lien is not a stay violation; and (c) any alleged

lien priority issues or avoidance must be generally determined by adversary proceeding.4 No

4 See In re Olivas, 129 B.R. 122, 125-6 (Bankr. W.D. Tex. 1991):

According to both Texas statutory and case law, [the garnishor] had obtained a valid enforceable lien, i.e., a property right, on the accounts prior to the Debtor's bankruptcy…the [garnishor] thus had a valid lien on the bank accounts the day the writ was served, which was prior to the bankruptcy petition…The accounts in issue as of the petition date were property of the bankruptcy estate. By the same token, the accounts were also subject to the liens obtained in the state court proceedings. [The garnishor], as a lien creditor, is entitled to adequate protection through Section 363 as surely as would be any other secured creditor… This right to receive adequate protection supports the conclusion that this court cannot impose, in the name of enforcing the automatic stay, an affirmative duty on the creditor to release a lien. Such a result would be a de facto taking of the Bank's property without due process of law in violation of


Bankruptcy Court in the Northern District of Texas has expressly adopted the specific holding of

Olivias in the garnishment context. One court in the Northern District cited Olivias favorably

nine times, but ultimately ruled on different grounds not present here.5 Specifically, an individual

debtor’s ability to avoid a lien on exempt property by motion.6

12. Even though the Northern District has not more expressly adopted Olivias, its

holding is consistent with the garnishment opinions in the Northern District and many other

cases cited by the Debtors.

13. Court consideration of the implications of a bankruptcy case upon a pending

garnishment proceeding are fact-specific and often involve situations such as continuing post-

petition wage garnishments, garnishments on exempt property, and other distinguishing facts not

present here. The most common fact patterns present in garnishments in bankruptcy is

summarized well by another bankruptcy court in In re Johnson, 479 B.R. 159, 170–71 (Bankr.

N.D. Ga. 2012):

In general, the automatic stay prohibits a creditor from taking action against the debtor or the debtor's property (most of which becomes property of the estate under 11 U.S.C. § 541(a)). In some instances, application of the automatic stay in the garnishment context is clear. Thus, a garnishment action commenced after the filing of the petition is void, and the creditor must dismiss it. In the case of a continuing wage garnishment, the automatic stay imposes an affirmative obligation on the creditor to take “careful and deliberate steps” to stop the employer's withholding of postpetition earnings, even if service of the summons of garnishment occurred prior to the filing of the petition. Funds owed to a debtor or other property of the debtor in the garnishee's possession or control that are subject to a garnishment summons are property of the estate under 11

the Fifth Amendment to the Constitution. U.S. Const. amend. V.; Wright v. Union Cent. Life Ins. Co., 304 U.S. 502, 518, 58 S.Ct. 1025, 1034, 82 L.Ed. 1490 (1938)…the proper method to determine the relative interests in the accounts…is by an adversary proceeding initiated under Section 542. This is the due process procedural safeguard that must be utilized.

5 See, In re Bensen, 262 B.R. 371 (Bankr. N.D. Tex. 2001). 6 See id. (granting individual chapter 7 debtor’s motion to avoid garnishment lien on exempt property under section 522(f)).


U.S.C. § 541(a). Funds or property in the custody of the garnishment court at the time of the bankruptcy filing are also property of the estate. Paragraph (3) of § 362(a) stays any act to obtain possession of property of the estate or to control property of the estate. Thus, the automatic stay prevents a creditor from seeking disbursement of funds or property in the garnishment court's custody or from seeking to compel a garnishee to deliver funds or property to the garnishment court. Specifically, the automatic stay prohibits any act to enforce a garnishee's obligation to answer a garnishment summons and to deliver funds or property subject to garnishment to the garnishment court. The automatic stay does not, however, require a dismissal of the garnishment action, a release of the garnishment, or disbursement to the debtor of funds or property already in the garnishment court's registry or subject to a pending garnishment summons as of the date of the bankruptcy filing. The creditor's lien attaches to garnished funds or property upon service of the summons of garnishment or, in the case of earnings that occur after service of the summons, when they are earned. Moreover, the filing of a bankruptcy case does not affect a creditor's lien unless some proceeding occurs in the bankruptcy case with regard to the lien. At the time of the filing of the bankruptcy case, therefore, any garnished funds or property remain subject to the creditor's garnishment lien. As Part V explains, a debtor in some circumstances may be entitled to garnished funds or property through exercise of her rights to exempt them and avoid the garnishment lien under 11 U.S.C. § 522(f). A debtor may also be able to exempt garnished funds or property that a trustee may recover as a preferential transfer under 11 U.S.C. § 547, and may prosecute the preference claim if the trustee does not. Nevertheless, the fact that a debtor has the right to garnished funds under the Bankruptcy Code by following proper procedures does not mean that a creditor's refusal to dismiss the garnishment action or to effect the disbursement of funds to the debtor by dismissing the garnishment action is a violation of the automatic stay… As earlier text notes, a bankruptcy filing alone does not affect a creditor's garnishment lien. See cases cited supra note 53. The conclusion that the automatic stay requires a creditor to dismiss a pending garnishment upon the filing of a bankruptcy case effectively eliminates the creditor's lien without any action in the bankruptcy court, thus contradicting this principle. Moreover, requiring the creditor to eliminate its lien immediately upon the filing of the case fails to take account of the creditor's rights to be heard with regard to the debtor's claims of exemptions and the avoidance of its lien and the fact that the debtor is not at that time entitled to the exempt property… Arguably, a garnishing creditor's failure to dismiss a garnishment action amounts to an attempt to exercise control over property of the estate in violation of


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but the filing of the notice of the automatic stay in the garnishment action would indicate, instead, an act to maintain the status quo pending later events in the bankruptcy court… And because the creditor's lien attaches to the garnished funds unless it is avoided, the trustee cannot do anything with the funds except hold them. Because the garnishment lien encumbers the garnished funds or property until the garnishment lien is avoided, the Bankruptcy Code's restrictions on the use of encumbered property apply. Thus, the court may condition the use of garnished funds or property on the provision of adequate protection under 11 U.S.C. § 363(e). Further, funds subject to a garnishment lien are “cash collateral” under 11 U.S.C. § 363(a) (because the funds are cash in which the garnishing creditor has an interest by virtue of its garnishment lien). Therefore, a bankruptcy trustee cannot use the funds without the consent of the creditor or an order of the court that provides adequate protection. 11 U.S.C. § 363(c)(2).

(emphasis added) (internal citations omitted).

14. Rather than acknowledge that the funds constitute cash collateral, the Debtors

insist that the garnishment must be released using inapposite cases, mostly in the consumer

context:

In re Kuzniewski, 508 B.R. 678 (Bankr. N.D. Ill. 2014) (discussing alleged stay violation of unreleased garnishment of individual Chapter 13 debtor’s account that included exempt property);

Chicago Painters’ & Decorators’ Pension, Health & Welfare & Deferred Sav. Plan Trust Funds v. Cunha, 121 B.R. 232 (N.D. Ill. 1990) (non-bankruptcy court denied a post-petition motion for turnover after a bankruptcy case had been filed, while notably declined to dismiss the garnishment proceeding in deference to further bankruptcy court proceedings); In re Johnson, 479 B.R. 159, 171 (Bankr. N.D. Ga. 2012) (Debtors quote one sentence from the same opinion quoted at length above without fairly informing the court of the entire discussion and reasoning applied in different factual circumstances); In re Roche, 361 B.R. 615 (Bankr. N.D. Ga. 2005) (addressing garnishment of funds claimed by individual debtor as exempt); In re Burbano, 2017 WL 1058219, at *5 (Bankr. N.D. Ga. Mar. 20, 2017) (comparing continued suspension of driver’s license after petition to a continued post-petition garnishment and noting such differences as “prepetition garnished funds may not need to be released, but anything garnished postpetition certainly must…”); In re Mims, 209 B.R. 746 (Bankr. M.D. Fla. 1997) (conclusory opinion finding creditor had obligation to release garnishment on an individual chapter 13 debtor’s bank account);


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In re Bensen, 262 B.R. 371 (Bankr. N.D. Tex. 2001) (granting individual chapter 7 debtor’s motion to avoid garnishment lien on exempt property under section 522(f)); In re Arturo Rodriguez, 278 B.R. 749, 753 (Bankr. N.D. Tex. 2002) (granting individual chapter 7 debtor’s motion to avoid garnishment lien on exempt property under section 522(f)); In re Renfro, 368 B.R. 540 (Bankr. N.D. Tex. 2007) (discussing lien perfection issues on a completely irrelevant fact pattern to this case, namely stock certificates); Southwest Bank & Trust Co. v. Calmark Asset Mgmt. Inc., 694 S.W.2d 199 (Tex. App. Ct. 1985) (non-bankruptcy court discussion of irrelevant title issues to the automatic stay issue in this case); In re Seigfied, 2014 WL 7240071, at *3 (Bankr. D.N.M. Dec. 14, 2014) (cited for the undisputed proposition that creation of a garnishment lien does not mean that a debtor loses all interests in the encumbered property); United States v. Whiting Pools Inc., 462 U.S. 198, 205 (1983) (cited for the undisputed proposition that IRS levied property is subject to turnover under section 542 of the Bankruptcy Code, but remains subject to other provisions of the Code, such as section 363); Carlsen v. I.R.S. (In re Carlsen), 63 B.R. 706, 710-11 (Bankr. C.D. Cal. 1986) (discussing IRS levy of post-petition paychecks of individual debtor and noting that such funds would not be entitled to the protections of cash collateral because they were obtained post-petition); and In re C.W. Min. Co., 508 B.R. 746 (Bankr. D. Utah 2014) (Debtors cite single sentence from dicta comment from court in dispute where garnishor had previously voluntarily abandoned enforcement of garnishment lien).

15. The well-reasoned opinion of the Georgia bankruptcy court in In re Johnson, 479

B.R. 159, 170–71 (Bankr. N.D. Ga. 2012) quoted above most fairly distinguishes the obligations

of a garnishor in the context of business disputes, such as this, where funds have been garnished

pre-petition and remain segregated pending an offer and showing of adequate protection by a

corporate debtor through a request to use cash collateral. There is no obligation on the garnishor

to voluntarily dismiss and relinquish its lien and adequate protection rights under section 362.

This is a different than a situation where an individual debtor’s post-petition earnings are

continuing to be frozen, or an individual debtor has an exemption claim to the funds under

section 522(f).


16. The cases cited by Debtors from Judge Jones in the Northern District of Texas

support PharMerica’s position. In those cases, the Court recognized the existence of the

garnishment lien, and spent considerable time analyzing whether such liens were avoidable

judicial liens on exempt property. See In re Arturo Rodriguez, 278 B.R. 749, 753 (Bankr. N.D.

Tex. 2002); In re Bensen, 262 B.R. 371 (Bankr. N.D. Tex. 2001). Because the liens were

avoidable as exempt property, the funds were not cash collateral and any discussion of adequate

protection was irrelevant. There is no indication from those opinions that if the funds had not

constituted exempt property and thus subject to section 522(f), the Court would have required the

funds to be turned over as a stay violation and allowed the funds to be used absent adequate

protection.

17. In this case, the Segregated Funds are not exempt and there is no concern

regarding PharMerica’s garnishment lien interfering with the Debtors’ post-petition receivables.

The Segregated Funds constitute PharMerica’s cash collateral and the Debtors’ simply refuse to

acknowledge this by offering adequate protection. Regardless of whether PharMerica could be

compelled to dismiss the garnishment under section 362, the Debtors still cannot use such funds

absent providing PharMerica the same adequate protection as CIBC while PharMerica and CIBC

resolve their presumed lien dispute. Accordingly, PharMerica disputes that it is obligated to

release its garnishment of the Segregated Funds, both generally and also specifically in this

instance where PharMerica has not been provided with any preservation of position.

Avoidable Preference – 11 U.S.C. § 547

18. The Debtors claim that PharMerica’s lien may be avoided as a preference. That

argument is irrelevant to the current usage of the Segregated Funds because such lien continues

to exist absent a final, non-appealable order by adversary proceeding. And this dispute will be


hotly contested by PharMerica, and PharMerica is entitled to have its position protected while it

litigates this issue.

19. Without waiver of any arguments of PharMerica in connection with such an

avoidance action, the instant garnishment is an unusual circumstance where the garnished funds

are likely either the collateral of the alleged primary secured lender, CIBC, or the collateral of

PharMerica. Accordingly, the garnishment would arguably not be avoidable as a preference

because it did not diminish the unsecured estate.

20. As more fully explained by Judge Rhoades in the United States Bankruptcy Court

for the Eastern District of Texas in In re Brown, 375 B.R. 348, 353 (Bankr. E.D. Tex. 2007), as

corrected (Oct. 2, 2007):

Clearly, there is a question as to whether a transfer may be avoided if the preference is merely a technical one. See In re Biggers,249 B.R. 873, 877–79 (Bankr. M.D. Tenn. 2000). “Essentially, a voidable preference must have depleted the estate.” In re Ramba, Inc., 437 F.3d 457, 460 (5th Cir. 2006) (citing Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc., 837 F.2d 224, 230–31 (5th Cir. 1988)). In Ramba, for example, the Fifth Circuit concluded that the transfer of fully encumbered assets did not deplete the estate and could not be avoided as a preference, since the Debtor held bare legal title to those assets. Likewise, when a debtor exchanges one secured debt for another, the estate is not diminished. See Shapiro v. Homecomings Financial Network, Inc. (In re Davis), 319 B.R. 532, 536 (Bankr. E.D. Mich. 2005); Gregory v. Community Credit Co. (In re Biggers), 249 B.R. 873, 877–79 (Bankr. M.D. Tenn. 2000). 21. Under this reasoning, even if the Debtors could technically meet the elements of a

preference under 547 as to the garnishment, the garnishment would not be avoidable if, in the

absence of the garnishment, the Segregated Funds would have constituted the secured collateral

of CIBC. Accordingly, the preference claim here will be subject to compelling defenses and

must be litigated. And PharMerica’s position must be adequately protected in the meantime.

Lien Priority

22. PharMerica and CIBC will have a lien priority dispute over the Segregated

Funds. And there may be additional disputes, because PharMerica does not concede that CIBC


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has necessarily fulfilled its garnishment obligations. To date, the Debtors and CIBC have not

provided any proof that the funds have been segregated this entire time, nor do any of the current

pleadings on file offer or require such funds to be segregated in the future. Last, PharMerica is

entitled to attorneys’ fees and interest in addition to the amount of the judgment.

23. These are matters are far beyond the scope of the current cash collateral

proceedings and will take time to litigate. In the meantime, PharMerica requests that its position

be maintained.

24. The Debtors have suggested informally that PharMerica is “out of time” because

of the prior findings and deadlines regarding CIBC’s lien position. Such findings and deadlines

did not apply to PharMerica by agreement to segregate the funds and maintain respective rights

and argument:

The Administrative Agent and Debtors agree to leave in place the monetary hold on one of the Debtors’ accounts in the amount of approximately $314,738.98 (the “Garnishment Funds”) until the Final Hearing. All rights of PharMerica and the Debtors are preserved until the Final Hearing.

Paragraph 20, Third Interim Cash Collateral Order, Docket No. 673.

25. Accordingly, PharMerica’s lien position is not subject to the various findings and

deadlines regarding CIBC’s lien validity and priority.

26. Very recently on March 12, 2019, the Committee filed an adversary proceeding

against CIBC raising a host of challenges to CIBC’s lien position. See Docket Sheet, Adversary

Proceeding No. 19-03026-bjh. PharMerica is still reviewing the 14,000 pages of CIBC loan

documents, the allegations raised by the Committee, and PharMerica’s own arguments on lien

priority. Those rights should be preserved until such time as the parties have adjudicated those

rights in an adversary proceeding.


Conclusion

27. On a practical basis, PharMerica acknowledges that the Judgment and Segregated

Funds constitute less than 1% of the asserted secured lending facility. That being the case, the

garnishment position is significant to PharMerica on its claim and should not be summarily

subverted by sweeping findings, liens, and other treatment that could arguably jeopardize

PharMerica’s lien position.

28. Accordingly, PharMerica objects to the Motion to Use Cash Collateral and Final

Order to the extent such pleadings would: (i) authorize the Debtors’ to use the Segregated Funds;

(ii) grant CIBC any liens on the Segregated Funds; (iii) adjudicate the respective lien positions of

PharMerica and CIBC to the Segregated Funds; or (iv) adjudicate, modify, waive, or in any way

impair the claims and other rights of PharMerica with respect to the Debtors, the Segregated

Funds, their accounts with CIBC, CIBC, or any other party.

29. Specifically, PharMerica requests that any Final Cash Collateral Order provide:

“[n]otwithstanding any provision of this Order, the Debtors and CIBC Bank USA shall continue

to segregate and administratively freeze $314,738.98 (the “Segregated Funds”) in connection

with the pending garnishment proceeding by PharMerica Long Term-Care, LLC d/b/a

PharMerica (“PharMerica”), and nothing in this Order shall adjudicate, modify, waive, or in any

way impair the liens, claims, encumbrances, and other interests of PharMerica with respect to the

Debtors, the Segregated Funds, their accounts with CIBC, CIBC, or any other party as pending

further adjudication by this Court, including as necessary by adversary proceeding. For the

avoidance of any doubt, the foregoing exceptions to the scope of this Order as to PharMerica

include the resolution of all competing claims to the Segregated Funds.”


Respectfully submitted,

QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 (Telephone) (214) 871-2111 (Facsimile) By: /s/ Hudson M. Jobe Gregory M. Sudbury State Bar No. 24033367 Hudson M. Jobe State Bar No. 24041189 ATTORNEYS FOR PHARMERICA LONG TERM-CARE, LLC D/B/A PHARMERICA

CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of March, 2019, a true and correct copy of the foregoing instrument has been served by electronic transmission via the Court’s CM/ECF system upon all parties registered to receive electronic notice in this bankruptcy case.

/s/ Hudson M. Jobe Hudson M. Jobe


-.

CAUSE NO. DC-18-09962

PHARMERICA LONG-TERM CARE, LLC D/8/A PHARMERICA

Plaintiff,

v.

PM MANAGEMENT- EL PASO I NC, LLC D/8/A TRISUN CARE CENTERNORTHEAST EL PASO, et al

IN THE DISTRICT COURT

101 81 JUDICIAL DISTRICT

Defendants. DALLASCOUNTY,TEXAS

FINAL DEFAULT JUDGMENT

This matter came before the Court's consideration on Plaintiff's Motion for Default

Judgment and Supplement to Motion for Default Judgment (collectively the "Motion"), and after

considering the Motion and being duly advised, the Court finds the Motion should be granted

because although Defendants were duly served with process on August 6, 2018, the Defendants

have failed to appear or respond to Plaintiffs Original Petition and Request for Disclosure filed

July 31, 20 I 8, ancl are in default.

The Court further finds the citations with the officer's returns were filed on August 14,

2018 and have been on file for more than ten ( I 0) days exclusive of this date and the day of service,

and default judgment is therefore proper pursuant to Tex R. Civ. P. 107 and 239. The Court finds

the Defendants were also notified by the Court on August 6, 2018 that this case is set for dismissal

pursuant to Tex. R. Civ. P. 165A on September 27, 2018 and ifno Answer has been filed as of that

date, that Plaintiff is expected to move for a default judgment on or prior to that date.

The Court further finds that this cause of action is proved by written instruments and

damages are liquidated. Based on those written instruments, it is ORDERED, ADJUDGED AND

DECREED that the Plaintiff, PharMerica Long-Term Care, LLC d/b/a PharMerica have judgment

PharMerica • 1

Case 18-33967-bjh11 Doc 712-1 Filed 03/18/19 Entered 03/18/19 18:25:46 Page 1 of 3

against the Defendants PM Management - El Paso I NC, LLC d/b/a Trisun Care Center- Northeast

El Paso and SCC Socorro, LLC d/b/a Las Ventanas de Socorro, and judgment against the

Defendant Senior Care Centers, jointly and severally, for the following:

a. Damages for unpaid invoices in the principal amount of $165,371.84 against Tri sun

and SCC;

b. Damages for unpaid invoices in the principal amount of $47,367.85 against Las

Ventanas and SCC;

c. Pre-judgment interest at the contract rate of 18% per year totaling $22,691.57

through August 30, 2018, and a per diem rate of interest of $82.20 for each day after August 30.

2018 to the date of judgment against Trisun and SCC;

d. Pre-judgment interest at the contract rate of 18% per year totaling $6,979.72

through August 30, 2018, and a per diem rate of interest of $23.36 for each day after August 30,

2018 to the date of judgment against Las Ventanas and SCC;

e. Damages for lost profits against Trisun and sec of $59,430.00;

f. Damages for lost profits against Las Ventanas and SCC of $5,898.00;

g. Post-judgment interest from the date of judgment until paid accruing at the

applicable legal rate; ~ ~ lD 7,000.00

Reasonable and necessary attorneys' fees in the amount of $14 ,6Q;l.~; and h.

i. Costs of this action iR the emetmt 0f$980.Q~

This is a final judgment disposing of all issues and parties in this case. Plaintiff is allowed

such writs and processes as necessary for the enforcement and collection of this judgment.

2


...

Dated: ¼ ~,-U>l~

3


1 WRIT 3 NOT ES

FILE[ DALLAS COUNT'

11/15/2018 2:11 Pt. FELICIA PITRE

DISTRICT CLERt

DC-18-17348 CAUSE NO.

Angie Avina

-----

PHARMERICA LONG-TERM CARE, LLC, § D/B/ A PHARMERICA §

Judgment Creditor, § §

~ § §

CIBC BANK USA § Garnishee, §

§ And §

§ PM MANAGEMENT- EL PASO I NC, LLC § D/B/ A TRIS UN CARE CENTER - NORTHEAST § EL PASO, et al. §

Judgment Debtors. §


193rd JUDICIAL DISTRICT

DALLASCOUNTY,TEXAS

ORIGINAL APPLICATION FOR WRIT OF GARNISHMENT

PharMerica Long-Term Care, LLC d/b/a PharMerica, Judgment-Creditor and Garnishor

("Gamishor"), respectfully submits its Original Application for Writ of Garnishment and as

grounds therefore would show the following:

PARTIES

l. Gamishor is a Judgment-Creditor of Defendants PM Management - El Paso I NC,

LLC d/b/a Trisun Care Center - Northeast El Paso ("Trisun"). Trisun may be served with notice

through its registered agent, Amarillo Corporate Services, LLC, 500 S. Taylor, Suite l l 00, LB

219, Amarillo, Texas 79101 .

2. Gamishor is a Judgment-Creditor of SCC Socorro, LLC d/b/a Las Ventanas de

Socorro ("Las Ventanas"). Las Ventanas may be served with notice through its registered agent,

Amarillo Corporate Services, LLC, 500 S. Taylor, Suite 1100, LB 219, Amarillo, Texas 79101.

PharMerica - 2 ORIGINAL APPLICATION FOR WRIT OF GARNISHMENT-PAGE 1

Page I of 10


3. Gamishor is a Judgment-Creditor of Senior Care Centers, LLC ("SCC"). SCC

may be served with notice through its registered agent, Amarillo Corporate Services, LLC, 500

S. Taylor, Suite 1100, LB 219, Amarillo, Texas 79101.

3. CIBC Bank USA ("Garnishee") transacts business in the State of Texas and may

be served through its registered agent, Corporation Service Company d/b/a CSC - Lawyers

Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701.

VENUE

4. Venue is proper in Dallas County, Texas in that this is an ancillary proceeding to

the original cause styled PharMerica Long-Term Care, LLC dlbla PharMerica v. El Paso I NC,

LLC dlb/a Trisun Care Center - Northeast El Paso, SCC Socorro, LLC dlbla Las Ventanas de

Socorro, and Senior Care Centers, LLC filed in the District Court for the l O l st Judicial District,

Dallas County, Texas, Cause No. DC-18-09962, with the judgment in that matter subsequently

entered in Dallas County, Texas.

BACKGROUND AND BASIS FOR ISSUANCE OF WRIT OF GARNISHMENT

5. On September 28, 2018, Gamishor obtained a final default judgment against

Trisun, Las Ventanas and SCC (collectively Trisun, Las Ventanas and SCC are the "Judgment

Debtors"), jointly and severally, for the following:

1. Damages for unpaid mvo1ces in the principal amount of $165,371.84

against Trisun and SCC;

2. Damages for unpaid mvo1ces m the principal amount of $47,367.85

against Las Ventanas and SCC;

3. Pre-judgment interest at the contract rate of I 8% per year totaling

$22,691.57 through August 30, 2018, and a per diem rate of interest of $82.20 for

each day after August 30, 2018 to the date of judgment against Trisun and SCC;

ORIGINAL APPLICATION FOR WRIT OF GARNISHMENT-PAGE 2

Page 2 of 10


4. Pre-judgment interest at the contract rate of 18% per year totaling

$6,979.72 through August 30, 2018, and a per diem rate of interest at $23.36 for

each day after August 30, 2018 to the date of judgment against Las Venta:nas and

SCC;

5. Damages for lost profits against Trisun and SCC of $59,430.00;

6. Damages for lost profits against Las Ventanas and SCC of $5,898.00;

7. Post-judgment interest from the date of judgment until paid accruing at the

applicable legal rate;

8. Reasonable and necessary attorneys' fees in the amount of $7,000.00; and

9. Costs of this action.

(the "Judgment"). A true and accurate copy of the Judgment is attached to the Affidavit of

Berard Tomassetti as Exhibit "l" (p. 8). Berard Tomassetti 's Affidavit is attached as Exhibit

"A" (p. 5). The Judgment is valid, subsisting, and unpaid.

6. Garnishor has conducted an asset investigation and, on the basis of that

investigation, believes that Judgment-Debtors do not have or possess property in Texas subject to

execution sufficient to satisfy the Judgment.

7. Garnishor, based upon its asset investigation, believes that Garnishee is indebted

to the Judgment-Debtors or has in its possession effects belonging to said Judgment-Debtors.

Without limitation, and upon information and belief, Garnishee has in its possession funds in the

name of Judgment-Debtors.

WHEREFORE, Garnishor prays that a writ of garnishment be issued and served upon

Garnishee and that Gamishor have and recover judgment to the extent permitted by law and for

such other and further relief to which it may be justly entitled.


Page 3 of 10


Respectfully Submitted,

Isl Gregory M. Sudbun1

Gregory M. Sudbury Texas Bar No. 24033367 QUILLING SELANDER LOWNDS,

WINSLETT & MOSER, P.C. 200 l Bryan Street, Suite 1800 Dallas, Texas 7520 l Telephone: (214) 871-2100 Facsimile: (214) 871-2111 [email protected]

-and-

Benjamin C. Fultz Jennifer Metzger Stinnett FULTZ MADDOX DICKENS PLC 101 South Fifth Street, 27th Floor Louisville, Kentucky 40202 Telephone: (502) 588-2000 Facsimile: (502) 588-2020 [email protected] [email protected]

ATTORNEYS FOR PLAINTIFF


Page 4 of IO


CAUSE NO. -----PHARMERICA LONG-TERM CARE, LLC, § D/B/A PHARMERICA §

Garnishor, § § § §

V. § § §

CIBC BANK USA § Garnishee, §

§ §

And § §

PM MANAGEMENT - EL PASO I NC, LLC § D/B/A TRISUN CARE CENTER- NORTHEAST § EL PASO, et al. §

Judgment Debtors § § § § §

IN THE DISTRlCT COURT

___ JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

AFFIDAVIT OF BERARD TOMASSETTI IN SUPPORT OF

APPLICATION FOR WRIT OF GARNISHMENT

COMMONWEAL TH OF KENTUCKY § §

COUNTY OF JEFFERSON §

BEFORE ME, the undersigned authority, on this day personally appeared Berard

Tomassetti, who, upon his oath, deposed and stated the following:

1. "My name is Berard Tomassetti. I am the Senior Vice President & Chief

Accounting Officer for PharMerica Corporation, the parent company of PharMerica Long-Term

Care, LLC d/b/a PharMerica ("Garnishor"). I have personal knowledge of the facts stated

herein, and they are all true and correct. As Senior Vice President & Chief Accounting Officer, I

AFFIDAVIT IN SUPPORT OF

APPLICATION FOR WRIT OF GARNISHMENT-PAGE 1 m Page 5 of IO


am the custodian of the records of Gamishor for the debt that is subject of this lawsuit. I have

personally reviewed the documents in our file and the transaction histories relevant to this debt.

2. On September 28, 2018, Gamishor obtained a final default judgment against

Trisun, Las Ventanas and SCC (collectively Trisun, Las Ventanas and SCC are the "Judgment

Debtors") for the following;

1. Damages for unpaid invoices in the principal amount of $165,371.84

against Trisun and SCC;

2. Damages for unpaid invoices in the principal amount of $47,367.75

against Las Ventanas and SCC;

3. Pre-Judgment interest at the contract rate of 18% per year totaling

$22,691.57 through August 30, 2018, and a per diem rate of interest of $82.20 for

each day after August 30, 2018 to the date of judgment against Trisun and SCC;

4. Pre-Judgment interest at the contract rate of 18% per year totaling

$6,979.72 through August 30, 2018, and a per diem rate of interest at $23.36 for

each day after August 30, 2018 to the date of judgment against Las Ventanas and

SCC;

5. Damages for lost profits against Trisun and SCC of $59,430.00;

6. Damages for lost profits against Las Ventanas and SCC of $5,898.00;

7. Post-Judgment interest from the date of judgment until paid accruing at

the applicable legal rate;

8. Reasonable and necessary attorneys' fees in the amount of $7,000.00; and

9. Costs of this action.

AFFIDAVIT IN SUPPORT OF

APPLICATION FOR WRIT OF GARNISHMENT-PAGE 2

Page 6 of 10


(the "Judgment"). A true and accurate copy of the Judgment is attached to the Affidavit of

Berard Tomassetti as Exhibit "l ." The Judgment is valid, subsisting and w1paid.

6. Garnishor has conducted an asset investigation and, on the basis of that

investigation, believes that Judgment-Debtors do not have or possess property in Texas subject to

execution sufficient to satisfy the Judgment.

7. Gamishor, based upon its asset investigation, believes that Garnishee is indebted

to the Judgment-Debtors or has in its possession effects belonging to said Judgment-Debtors.

Without limitation, and upon information and belief, Garnishee has in its possession funds in the

name of Judgment-Debtors.

Further Affiant sayeth not.

Berard Tomassetti

SUBSCRIBED AND SWORN TO BEFORE ME on this '6-'r-\ day of November, 2018 by Berard Tomassetti.

AFFIDAVIT IN SUPPORT OF APPLICATION FOR WRIT OF GARNISHMENT-PAGE 3

Notary Public, Commonwealth of Kentucky

My Commission Expires: \.- "!»(.).. 'J~~\

Page 7 of IO


CAUSE NO. DC-18-09962

PHARMERICA l,ONG-TERM CARE, LLC D/B/A PHARMERICA

Plaintiff,

v.

PM MANAGEMENT- EL PASO I NC, LLC D/8/ A TRIS UN CARE CENTER -NORTHEAST EL PASO, et al

Defendants.


10l81 JUDICIAL DISTRICT

DALLASCOUNTY,TEXAS

FINAL DEFAULT JUDGMENT

This matter came before the Court's consideration on Plaintiffs Motion for Default

Judgment and Supplement to Motion for Default Judgment (collectively the "Motion"), and after

considering the Motion and being duly advised, the Court finds the Motion should be granted

because although Defendants were duly served with process on August 6, 2018, the Defendants

have failed to appear or respond to Plaintiffs Original Petition and Request for Disclosure filed

July 31, 2018, and are in default.

The Court further finds the citations with the officer's returns were filed on August 14,

2018 and have been on file for more than ten ( I 0) days exclusive of th is date and the day of service,

and default judgment is therefore proper pursuant to Tex R. Civ. P. 107 and 239. The Court finds

the Defendants were also notified by the Court on August 6, 2018 that this case is set for dismissal

pursuant to Tex. R. Civ. P. 165A on September 27, 2018 and ifno Answer has been filed as of that

date, that Plaintiff is expected to move for a default judgment on or prior to that date.

The Court further finds that this cause of action is proved by written instruments and

damages are liquidated. Based on those written instruments, it is ORDERED, ADJUDGED AND

DECREED that the Plaintiff, PharMerica Long-Term Care, LLC d/b/a PharMerica have judgment

Page 8 o 1

1


against the Defendants PM Management - El Paso I NC, LLC d/b/a Trisun Care Center- Northeast

El Paso and SCC Socorro, LLC d/b/a Las Ventanas de Socorro, and judgment against the

Derendanl Senior Care Cenlers, joinlly and severally, for the following:

a. Damages for unpaid invoices in the principal amount of$165.371.84 againstTrisun

and SCC;

b. Damages for unpaid invoices in the principal amounl of $47,367.85 against Las

Vcntanas and SCC;

c. Pre-judgment interest at the contract rate of 18% per year totaling $22,691.57

through August 30, 2018, and a per diem rale or inleresl or $82.20 for each day after August 30.

2018 to the date of judgment against Trisun and SCC;

d. Pre-judgment interest at the contract rate of 18% per year totaling $6,979.72

through August 30, 2018, and a per diem rate of interest of $23.36 for each day after August 30,

2018 to the date of judgment against Las Ventanas and SCC;

e. Damages for lost profits against Trisun and sec of $59,430.00;

f. Damages for lost profits against Las Ventanas and SCC of $5,898.00;

g. Post-judgment interest from the date of judgment until paid accruing at the

applicable legal rate; 0

J;}. @ l, ooo.oo

Reasonable and necessary attorneys' fees in the amount of $14,liQJ.~; and h.

I. Costs of this action iR O=ie emeuRt of$98Q.9~

This is a final judgment disposing of all issues and parties in this case. Plaintiff is allowed

such writs and processes as necessary for the enforcement and collection of this judgment.

2

Page 9 of 10


...

Dated: ¼ ~f UDl't?'

3

Page 10 of IO


GARNISHMENT-AFTER JUDGMENT-Form 379

THE STATE OF TEXAS

TO: CIBC Bank USA

GARNISHEE, GREETING:

Whereas, ON THIS THE 15TH DAY OF NOVEMBER, 2018, PHARMERICA LONG-TERM CARE, LLC D/B/A PHARMERICA~ Filed an application for a Writ of Garnishment

after judgment stating that on the 28TH DAY OF SEPTEMBER 2018, in the District court of Dallas County 101ST DISTRICT COURT of Texas, PHARMERICA LONG-TERM CARE I LLC

D/B/A PHARMERICA Recovered against PM MANAGEMENT-EL PASO I NC, LLC D/B/A TRISUN CARE CENTER-NORTHEAST EL PASO; sec SOCORRO, LLC D/B/A LAS VENTANAS DE SOCORRO; AND SENIOR CARE CENTER, LLC , JOINTLY AND SEVERALLYA judgment for the sum of$ 165,371.84 (DAMAMGES FOR UNPAID INVOICE AGAINST TRISUM AND seq /PLUS $47,367.85 (DAMAGES AGAINST LAS VENTANAS AND SCC)/PLUS $22,691.57 PRE-JUDGMENT INTEREST THROUGH AUGUST 301 2018 AND A PER DIEM RATE OF INTEREST OF $82,20 EACH DAY AFTER AUGUST 30, 2018 TO DATE OF JUDGMENT AGAINST TRISUN AND SCC; /PLUS $6,979.72 PRE-JUDGMENT INTEREST THROUGH AUGUST 30, 2018 AND A PER DIEM RATE OF $23.36 FOR EACH DAY AFTER AUGUST 30, 2018 TO DATE OF JUDGMENT AGAINST LAS VENTANAS AND sec; /PLUS $59,430.00 (DAMAGES OF LOST PROFITS AGAINST TRISUN AND SCC/PLUS $5,898.00 (DAMAGES FOR LOST PROFITS AGAINST LAS VENTANAS AND SCC). with interest thereon from 28TH DAY OF SEPTEMBER 2018 at the rate of APPLICABLE LEGAL RATE; per cent per annum besides the costs of suits;/ PLUS $7,000.00 ATTORNEYS FEES/PLUS $324.00 COURT COST that said judgment

still remains due and unsatisfied, and that the defendant, has not within affiant's knowledge, property in his possession, within this State, subject to execution, sufficient to

satisfy such judgment; and that the plaintiff has reason to believe, and does believe that CIBC Bank USA resident of UNKNOWN County, Texas is indebted to the defendant or

that it has in its hands effects belonging to the defendant, and has applied for a writ of Garnishment against the said CIBC BANK USA.

THEREFORE, you are hereby commanded to be and appear before the said 101ST DISTRICT COURT. to be held at Dallas, in Dallas County, on Monday, at or before 10:00

o'clock a.m. on the Monday next following the expiration of twenty days from the date of service hereof, then and there to answer upon oath, what, if anything you are indebted

to the said defendant PM MANAGEMENT-EL PASO I NC, LLC D/B/A TRISUN CARE CENTER-NORTHEAST EL PASO; sec SOCORRO, LLC D/B/A LAS VENTANAS DE SOCORRO; ANO

SENIOR CARE CENTER, LLC and were when this writ was served upon you, and what effects, if any, of the said defendant PM MANAGEMENT-EL PASO I NC, LLC D/B/A TRISUN CARE CENTER-NORTHEAST EL PASO; SCC SOCORRO, LLC D/B/A LAS VENTANAS DE SOCORRO; AND SENIOR CARE CENTER, LLCyou have in your possession, and had when this

writ was served, and what other persons, if anything within your knowledge, are indebted to the said defendant PM MANAGEMENT-EL PASO I NC, LLC D/B/ A TRISUN CARE CENTER-NORTHEAST EL PASO; SCC SOCORRO, LLC D/B/A LAS VENTANAS DE SOCORRO; AND SENIOR CARE CENTER, LLCor have effects belonging to said defendant(s), in their

possession; YOU ARE FURTHER COMMANDED NOTto pay defendant any debt or to deliver to him any effects, pending further orders of this Court.

TO: PM MANAGEMENT-EL PASO I NC, LLC D/B/A TRISUN CARE CENTER-NORTHEAST EL PASO; sec SOCORRO, LLC D/B/A LAS VENTANAS DE SOCORRO; AND SENIOR CARE CENTER, LLC, DEBTOR

You are hereby notified that certain properties alleged to be claimed by you have been garnished. If you claim any rights in such property, you are advised:

"YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A 'REPLEVY' BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING

WITH THE COURT A MOTION TO DISSOLVE THIS WRIT." ,111 ,...,, ,,,,,, '11,,_

.t~ ~~}~L~~, ~.,~ HEREIN FAIL NOT, but of this writ make due return as the la"' f ~.--~·%\

WITNESS my official seal and signature, at my office, in the C \ts..~ 1 ~: •• }:las ON THIS THE 19TH DAY OF NOVEMBER, 2018. ~ Ii, ,, (.; ... ,~

fl '1AA . . • ,,,,,,f,. • .. ,,,~' FELICIA PITRE, District Clerk, Dallas County, Texas ~ VVl-0"8"\iJV •U111,,,, By ___________ Deputy.

CARMEN MOORER

PharMerica - 3


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