IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) )

In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors.

Chapter 11 Case No. 11-11795 (KG) Jointly Administered

Objections Due: October 11, 2011 at 4:00 p.m. Hearing Date: October 31, 2011 at 10:00 a.m.

MOTION OF ANTON GIRANDE FOR ENTRY OF AN ORDER ALLOWING LATE FILED CLAIM Anton Girande, (Movant) by and through his counsel Rachel B. Mersky, Esquire of Monzack Mersky McLaughlin and Browder, P.A. and pursuant to 11 U.S.C. 501 and Fed. R. Bankr. P. 3003(c)(3) and 9006(b)(1), files this motion for leave to file his proof of claim after the expiration of the Bar Date (Motion). In support of this Motion, Anton Girande respectfully represents as follows: I. 1. INTRODUCTION

On December 18, 2009, Anton Girande was injured in a multi-vehicle collision

resulting in serious bodily injury to Anton Girande, as well as resulting property damages and expenses. (See Affidavit of Leon Brunet attached hereto as Exhibit A and incorporated herein by reference. Mr. Brunet is counsel to Mr. Girande and his Affidavit is submitted in furtherance of this Motion). 2. Upon information and belief, at the time of the collision the adverse driver was in

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.

the course and scope of his employment with the Debtor, Perkins & Marie Callenders Inc., and was operating an automobile which carried liability and property damage insurance in the name of the Debtor, Perkins & Marie Callenders Inc. identified as Policy # CAL-H-07961431 with ACE American Insurance Company. 3. On or about January 29, 2010, Mr. Girande formally asserted a personal injury

claim against the Debtors Policy # CAL-H-07961431 and Leon Brunet, Esquire, as counsel for Mr. Girande has had ongoing communications with the assigned claims adjuster and counsel for the carrier regarding the potential settlement of Mr. Girandes personal injury claim. 4. On June 13, 2011 (the Petition Date), the Debtors filed Voluntary Petitions for

relief under Chapter 11 of Title 11 of the United States Bankruptcy Code (the Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware. 5. Despite actual or constructive knowledge of this claim, Debtors failed to serve

Notice on either Mr. Girande or his counsel regarding commencement of the bankruptcy or any other pleadings providing notice of a proof of claim deadline. 6, Mr. Brunet first learned of the commencement of the bankruptcy on June 21,

2011 by email notice from the claims adjuster for the Debtor, but this notice did not include any information regarding a proof of claim bar date. 7. Immediately upon learning of the filing of the action, Mr. Brunet determined that

there were no pending proof of claim deadlines and he continued to correspond with the insurance claims agent for the Debtor. 8. On June 24, 2011, barely a week after the Petition date, the Debtor filed a Motion

seeking to set August 16, 2011 as the Bar Date for filing proof of claims, however neither Mr. Girande nor Mr. Brunet were served with this Motion.

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9.

On July 7, 2011 Joy Bernstein, counsel for Debtors insurance carrier, wrote to

Mr. Brunet regarding the Automatic Stay, but failed to advise Mr. Brunet that a Motion seeking to set a Bar Date for August 16,2011 was scheduled to be heard on July 9, 2011. 10. Less than a month after the Petition date, on July 9, 2011, the Court entered its

Order establishing August 16, 2011 as the deadline to file a proof of claim (Proof of Claim) against any of the Debtors that arose prior to August 16, 2011 (the Bar Date). It should be noted that this Bar Date was set for a date barely two months after the commencement of the Chapter 11 proceedings. II. 11. JURISDICTION

This Court has Jurisdiction over this case pursuant to 28 U.S.C. 1344 and 157.

The matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(o). Venue is proper in this District pursuant to 28 U.S.C. 1408. III. 12. EXTENSION OF BAR DATE

Mr. Girande moves this Court for leave to file his claim after the expiration of the

Bar Date pursuant to Fed. R. Bankr. P. 3003(c)(3) and 9006(b)(1). 13. The Federal Rules of Bankruptcy Procedure (Bankruptcy Rules) address those

situations in which the court may extend the time to perform certain acts. Bankruptcy Rule 9006(b)(1) provides that a request for an extension of time may indeed be made after the expiration of the specified period in which the act was to be performed. Rule 9006(b)(1) provides, in pertinent part: [W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown may at any time in its discretion . . . (2) on motion made after the expiration of the specified period permit

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the act to be done where the failure to act was the result of excusable neglect. (emphasis added.) 14. This rule has repeatedly been applied to allow requests for extension of time long

after a bar date has passed. In In re Dix, 95 Bankr. 134 (1988), the Ninth Circuit Bankruptcy Appellate Panel affirmed a Bankruptcy Court order which permitted a creditor to file a motion to the extend time for filing a proof of claim where the motion was made two years after the bar date. The Court further affirmed the finding that the failure to timely file the proof of claim was due to excusable neglect, and allowed the creditor's claim. Id. at 136. IV. THE FOUR-FACTOR TEST FOR DETERMINING EXCUSABLE NEGLECT, AS SET FORTH BY THE UNITED STATES SUPREME COURT IN PIONEER

15.

A proof of claim filed beyond the claims bar date may be allowed if there is a

finding of excusable neglect. As discussed supra, the Bankruptcy Court may, in its discretion, extend the time to file a proof of claim, where the failure to act was the result of excusable neglect. Bankruptcy Rule 9006(b)(1)(2). The United States Supreme Court in Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. Pship, 113 S.Ct. 1489 (1993), set forth four factors to consider in determining whether excusable neglect under Rule 9006 has been established. In establishing these factors, the Supreme Court held that excusable neglect is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer. Id. at 1495. Rather, the Court found that excusable neglect involves an equitable

determination based on the facts and circumstances surrounding the party's omission. Id. at 1498. 16. In Pioneer, the debtor contended that the enforcement of filing deadlines was

essential to the Bankruptcy Code's goals of certainty and finality, and contended that any showing of fault on the part of the late filer would defeat a claim of excusable neglect. Id. at 1494. The Court rejected this contention, finding that Rule 9006 expressly grants reprieve for

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late filing which was due to neglect. The Court held: The ordinary meaning of neglect is to give little attention or respect to a matter, or, closer to the point for our purposes, to leave undone or unattended to especially through carelessness. Id. at 1494-95 (italics in original, quoting Webster's Ninth New Collegiate Dictionary 791 (1983)). 17. The Supreme Court upheld the lower courts decision (which relied on the five

factors set forth in Dix, supra), finding that the first four Dix factors were appropriate considerations to determine excusable neglect. Id. at 1498-99. However, the Court explicitly rejected the fifth factor. Id. Thus, the four factors to be followed in determining excusable neglect are as follows: [1] the danger of prejudice to the debtor; [2] the length of the delay and its potential impact on judicial proceedings; [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith. Id. at 1498. 18. It is important to note the weight that the Court gave to the four factors. The third

factor encompasses those circumstances where the late filing was within the control of the movant. The Court held that this factor alone, i.e., where the late filing was fully within the control of the movant, will not justify the denial of a time extension -- at least one other additional factor is needed in such a case. Id. at 1500. 19. The Court found that in the case before it, factor three weighed against allowing

an extension because the Court did not believe that upheaval in a law practice removed control from the attorney. Id. at 1499. However, the Court found that the remaining three factors weighed in favor of a time extension. Id. With only the third factor weighing against time extension, the Court affirmed the extension of time granted by the lower court. Id. 20. In Dix, supra, the case relied upon by the lower court in Pioneer, the Ninth

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Circuit Bankruptcy Appellate Panel addressed a request for an extension of time to file a proof of claim. The Court held that because the disallowance of a late proof of claim forecloses trial on the merits of the claim, the liberal standard of excusable neglect should be applied. 95 Bankr. at 138. The Court applied five factors, as mentioned supra, and affirmed the Bankruptcy Court's ruling that a proof of claim filed two years after the bar date would be allowed, as a showing of excusable neglect had been made pursuant to Rule 9006(b)(1). Id. 21. Regarding the first factor, the Court in Dix found there was no prejudice to the

debtor, because the plan of reorganization took the claim into account. Id. The Court next found that while the two-year delay in filing the claim might be extraordinary, there was no indication it had a negative impact on efficient court administration. Id. Regarding whether the delay was within the control of the creditor, the Court found that the evidence did not establish that the creditor was aware of his claim prior to the bar date. Id. at 139. Finally, regarding the fourth factor, the Court found there was no evidence which would suggest bad faith. Id. After consideration of all of the factors, the Court held that the creditor had established excusable neglect. Id. 22. Since the Supreme Court's ruling in Pioneer, numerous other courts have In In re Earth Rock, 153 Bankr. 61 (Bankr. D. Idaho 1993), a

followed its reasoning.

Bankruptcy Court in the Ninth Circuit applied Pioneer to find that a creditor whose proof of claim filed eight months after the bar date was entitled to an extension of the bar date. The creditor had intentionally not filed his claim by the bar date, because of a belief that an offset may be claimed by the Debtor. Id. at 62. Thus, the third Pioneer factor weighed against allowing an extension. However, the Debtor's disclosure statement contained a discussion of the creditor's claim, and the Court thus found there was no prejudice to the debtor. Id. at 63. The Court next

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found that consideration of the creditor's claim under the debtor's plan would not alter treatment of remaining creditors, and thus there would be no delay in the debtor's reorganization proceeding. Id. In conclusion, the Court held that the deadline for filing the proof of claim should be extended. The Court reasoned that there is little interest to be served in depriving this Creditor of the right to participate in this case. Id. at 64. 23. The Bankruptcy Court in In re Broadmoor Country. Club & Apt., 158 Bankr. 146

(Bankr. W.D.Mo. 1993) also addressed the issue of excusable neglect in the context of a late filed claim. The creditor's attorney had mistakenly transposed the bar date from 5/3 to 5/13. Id. at 147. The claim was filed on 5/11. When counsel for the creditor learned that the bar date had passed, counsel filed a motion to enlarge time or, in the alternative, to deem the claim timely filed, on the grounds the late claim was due to excusable neglect. Id. The Court followed Pioneer, and emphasized that where the only factor present is that the circumstances of the late filing were within the filer's control. Id. at 148. Based upon this analysis, the Court held as follows: This case, as in Pioneer, has only the third factor weighing against the enlargement of time. The teaching of Pioneer is that excusable neglect is not limited to those circumstances where untimely filing is due to circumstances beyond the attorney's control. Thus, as in Pioneer, the request for enlargement of time to file should be granted. Id. (emphasis added.) V. APPLICATION OF THE EXCUSABLE NEGLECT STANDARD TO THE PRESENT CASE

24.

Applying the principles set forth in Pioneer, Dix, Earth Rock and Broadmoor to

the present case, the categorization of Mr. Girandes failure to timely file its proof of claim as excusable neglect is clearly established. The four factors as set forth by Pioneer all weigh

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heavily in favor of a finding of excusable neglect entitling Mr. Girande to an extension of time. Furthermore, Movant respectfully submits that Debtors failure to provide the requisite statutory notice justifies the allowance of these late filed claims as a simple, faultless omission which qualifies as excusable neglect. See Pioneer, 507 U.S. at 388; see also In re Spring Ford Indus., Inc., 2003 WL 21785960, at *2 (Bankr. E.D.Pa. July 25, 2003) (noting that Claimants have no duty to inquire about what is procedurally required of them but rather may assume that they will receive effective notice). A. 25. There Is No Prejudice Whatsoever To The Debtor There can be no prejudice to the Debtor where the debtor knows of the claim and

has accounted for it. Dix, 95 Bankr. at 138; Earth Rock, 153 Bankr. at 62; Broadmoor, 158 Bankr. at 149. In the present case, Debtors insurance representatives had contact with counsel for Mr. Girande for over a year before the Petition Date regarding the claim. Counsel for the insurance carrier wrote to counsel for Mr. Girande on July 7, 2011, after the Motion to Set a Bar Date had been filed and raised issues regarding the effect of the Automatic Stay, but failed to advise Mr. Brunet of the pending Motion to set a Bar Date and proposed Bar Date of August 16, 2011. B. The Delay Was Not Great, And There Would Be No Impact On Judicial Proceedings In Allowing The Proof of Claim In the Ninth Circuit, the Bankruptcy Appellate Panel has held that even a two-

26.

year delay does not tip this factor against the creditor, where there is no negative impact on the court administration. Dix, 95 Bankr. at 138. Likewise, in Earth Rock, 153 Bankr. 61, a

Bankruptcy Court in the Ninth Circuit found no great delay in a claim filed eight months after the Bar Date. By contrast there is barely any delay on the part of Mr. Girande. Specifically, Mr. Girande, through counsel, only learned of the Bar Date on September 1, 2011 at which time there

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was almost immediate contact with counsel for the Debtors to try and resolve this without the filing of a Motion. Counsel for Debtors has yet to resolve whether they will consensually allow the claim and a related request for relief from stay, but in order to prevent the passage of additional time without action, counsel for Mr. Girande filed this motion barely a month after the Bar Date. Furthermore, the Bar Date in this case was set in an extremely expedited timeframe of just over two months after the Petition Date. The minimal time that has transpired is certainly not a delay sufficient to weigh this factor against Mr. Girande. 27. Moreover, consideration of the late claim will not alter treatment of remaining

creditors, there will be no delay in the reorganization proceeding and thus no negative impact on the court administration. Earth Rock, 153 Bankr. at 62. Allowing Mr. Girandes claim will not alter the treatment of the remaining creditors in this case nor will it adversely affect the court's administration, as a plan for reorganization has not yet been approved. Therefore, allowing Mr. Girandes claim will not reduce any payments to remaining creditors, and will not delay the reorganization proceeding. C. Whether The Reason For The Delay Was Within The Reasonable Control Of Mr. Girande Mr. Girande, through his personal injury counsel, Mr. Brunet inadvertently failed

28.

to file a Proof of Claim by the original Bar Date. However, the Debtors knew, or through reasonable inquiry of their insurance company, should have known of Mr. Girandes claim, and yet failed to notify either Mr. Girande or Mr. Brunet. In fact, there was ongoing communication from the Debtors insurance counsel after Debtors had filed the Motion for Bar Date in which issues regarding the Automatic Stay were addressed, but there was no reference to a Bar Date. Immediately, upon being advised of the Bar Date, action was taken and the delay was nominal without any adverse impact on the Debtors. Since Mr. Girande was a known creditor of the

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Debtors, it was incumbent upon the Debtors to notify him, or his counsel, of the Bar Date, which was never done. However, even if this factor weighed against Mr. Girande, this factor alone would not justify the denial of a time extension -- at least one other additional factor is needed in such a case. Pioneer, 113 S.Ct. at 1500; Broadmoor, 158 Bankr. at 148. D. 29. Mr. Girande Acted In Good Faith This factor has been found to weigh in favor of the creditor seeking to file a late

claim in virtually every single case applying it. Pioneer, 113 S.Ct. at 1499; Dix, 95 Bankr. at 139; Broadmoor, 158 Bankr. at 148. The same finding is warranted in the present case. There was no bad faith on the part of Mr. Girande in his failure to file his Proof of Claim by the original Bar Date.

VI.
30.

CONCLUSION

In sum, all four Pioneer factors indisputably weigh heavily in favor of finding

excusable neglect, entitling Mr. Girande to an extension of time to file his Proof of Claim. For the reasons stated herein, Mr. Girande submits that his failure to timely file his Proof of Claim was the result of excusable neglect and requests that this Court allow the late filing of the claim.

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WHEREFORE, Mr. Girande respectfully requests this Court to enter an Order granting this Motion, allowing the filing of Mr. Girandes Proof of Claim and granting such other and further relief as the Court deems just and proper. Dated: September 20, 2011 MONZACK, MERSKY, MCLAUGHLIN AND BROWDER, P.A.

/s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Tel: (302) 656-8162 Fax: (302) 656-2769 Email: rmersky@monlaw.com ATTORNEYS FOR ANTON GIRANDE

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EXHIBIT A

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 11-11795 (KG) Jointly Administered
Objections Due: October 11, 2011 at 4:00 p.m. Hearing Date: October 31, 2011 at 10:00 a.m.

NOTICE OF MOTION TO: Office of the United States Trustee, Counsel to the Debtors, Counsel to the Official Committee of Unsecured Creditors and all parties receiving notice via CM/ECF electronic notifications. Movant, Anton Girande, has filed his Motion for Entry of an Order Allowing Late Filed Claim (the Motion) which seeks an order authorizing Movant to file his proof of claim after the established proof of claim deadline. Any responses or objections thereto must be filed on or before October 11, 2011 at 4:00 p.m. At the same time, you must also serve a copy of the response upon the following: MONZACK MERSKY MCLAUGHLIN AND BROWDER, P.A. Rachel B. Mersky, Esquire 1201 N. Market Street, Suite 400 Wilmington, DE 19801 Facsimile: (302) 656-2769 Email: rmersky@monlaw.com

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.

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If any responses or objections are timely filed, a hearing on this matter will be held on October 31, 2011 at 10:00 a.m. IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF DEMANDED BY THE MOTION WITHOUT FURTHER NOTICE OR HEARING. Dated: September 20, 2011 MONZACK, MERSKY, MCLAUGHLIN, AND BROWDER, P.A. /s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Telephone: (302) 656-8162 Facsimile: (302) 656-2769 Email: rmersky@monlaw.com ATTORNEYS FOR ANTON GIRANDE

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 11-11795 (KG) Jointly Administered
Related to Docket No. _________

ORDER ON MOTION OF ANTON GIRANDE FOR ENTRY OF AN ORDER ALLOWING LATE FILED CLAIM Upon the Motion of Anton Girande for Entry of an Order Allowing Late Filed Claim, and it appearing that this Court has jurisdiction over this matter; and it appearing that notice of the Motion as set forth therein is sufficient, and that no other or further notice need be provided; and it further appearing that the relief requested in the Motion is in the best interest of Anton Girande; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore, it is hereby ORDERED that the Motion is granted; ORDERED that Anton Girande be granted until November 5, 2011, to file his proof of claim; ORDERED that this Court shall, and hereby does, retain jurisdiction with respect to all matters arising from or in relation to the implementation of this Order.

Dated:_____________________, 2011

_______________________________________ The Honorable Kevin Gross

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.

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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: PERKINS & MARIE CALLENDERS INC, et al.,1 Debtors. ) ) ) ) ) ) ) Chapter 11 Case No. 11-11795 (KG) Jointly Administered

CERTIFICATE OF SERVICE I, Shelley A. Losito, certify that I am not less than 18 years of age, and that I caused service of the Motion of Anton Girande for Entry of an Order Allowing Late Filed Claim to be made on September 20, 2011, upon all parties shown below in the manner indicated. VIA FIRST CLASS MAIL Brett D. Goodman, Esquire Hollace Topel Cohen, Esquire Troutman Sanders LLP The Chrysler Building, 405 Lexington Ave New York, NY 10174 VIA FIRST CLASS MAIL Benjamin L. Schneider, Esquire Mark R. Somerstein, Esquire Ropes & Gray LLP 1211 Avenue of the Americas New York, NY 10036 VIA HAND DELIVERY Office of the United States Trustee 844 King Street, Room 2207 Lockbox #35 Wilmington, DE 19801 VIA HAND DELIVERY Robert S. Brady, Esquire Robert F. Poppiti, Jr., Esquire Young, Conaway, Stargatt & Taylor The Brandywine Bldg. 1000 West Street, 17th Floor Wilmington, DE 19801 VIA HAND DELIVERY Mark D. Olivere, Esquire Richard Scott Cobb, Esquire Landis Rath & Cobb LLP 919 N. Market Street, Suite 1800 Wilmington, DE 19801

The Debtors, together with the last four digits of each Debtors federal tax identification number, are: Perkins & Marie Callenders Inc. (4388); Perkins & Marie Callenders Holding Inc. (3999); Perkins & Marie Callenders Realty LLC (N/); Perkins Finance Corp. (0081); Wilshire Restaurant Group LLC (0938); PMCI Promotions LLC (7308); Marie Callender Pie Shops, Inc. (7414); Marie Callender Wholesalers, Inc. (1978); MACAL Investors, Inc. (4225); MCID, Inc. (2015); Wilshire Beverage, Inc. (5887); and FIV Corp. (3448). The mailing address for the Debtors is 6075 Poplar Avenue, Suite 800, Memphis, TN 38119.

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I further certify that the foregoing was also served electronically on the CM/ECF System. Date: September 20, 2011 /s/ Shelley A. Losito Shelley A. Losito

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