IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION,

et al.1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes

EX PARTE MOTION TO STRIKE PLEADINGS OF NUGAR, S.A. DE C.V.

The above-captioned debtors (collectively, the Debtors) hereby move the Court (the Ex Parte Motion) for the entry of an order, substantially in the form of Exhibit A, striking (a) the Motion of Nugar, S. A. de C.V. (Nugar) for its Wrong Inclusion as Creditor of Dura Convertible Systems Inc. filed on August 10, 2005 [Docket No. 924] (the Nugar Motion), (b) the Amendment to the Nugar Motion filed on August 29, 2005 [Docket No. 1028] (the Nugar Amendment), (c) the Comments of Nugar, S. A. de C.V. to Debtors Objection to Motion and Debtors Objection to Motion Amendment for Wrong Inclusion as Creditor of Dura
1

The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 0555991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 0555964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 05-55946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 05-55962; and Wickes Manufacturing Company, Case No. 05-55968.

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Convertible Systems Inc. filed on September 30, 2005 [Docket No. 1405] (the Nugar Comments) and (d) any and all other ancillary documents, other than any proofs of claim, related to the Nugar Pleadings (as defined below) previously filed with the Court in these cases on behalf of Nugar, S.A. de C.V. (e.g., notices, proofs of service, etc.) (collectively, the Ancillary Documents, and together with the Nugar Motion, the Nugar Amendment and the Nugar Comments, the Nugar Pleadings). In support of this Ex Parte Motion, the Debtors respectfully state as follows: Jurisdiction 1. The Court has jurisdiction over this matter pursuant to 28 U.S.C. 1334. This

matter is a core proceeding within the meaning of 28 U.S.C. 157 (b)(2). 2. 3. Venue is proper pursuant to 28 U.S.C. 1408 and 1409. The statutory bases for the relief requested herein are Rule 9010(a) of the Federal

Rules of Bankruptcy Procedure (the Bankruptcy Rules) and Rule 9010-1 of the Local Rules for the United States Bankruptcy Court for the Eastern District of Michigan (the Local Rules). The additional bases for the relief requested herein are the First Amended Notice, Case Management and Administrative Procedures, as approved by this Court pursuant to the first day motion for entry of an order establishing certain notice, case management and administrative procedures approved by order of this Court on May 17, 2005 and filed on June 9, 2005 [Docket No. 294] (the Case Management Procedures). Background 4. On May 17, 2005 (the Petition Date), the Debtors filed their voluntary petitions

for relief under chapter 11 of the Bankruptcy Code, 11 U.S.C. 101-1330 (the Bankruptcy Code). The Debtors are operating their businesses and managing their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. No trustee or 2
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examiner has been appointed in these cases. On the Petition Date, the Court entered an order jointly administering these cases pursuant to Bankruptcy Rule 1015(b). 5. On May 24, 2005, the United States trustee appointed an official committee of

unsecured creditors pursuant to section 1102 of the Bankruptcy Code (the Committee). 6. 7. On August 10, 2005, the Nugar Motion was filed with this Court. On August 25, 2005, the Debtors filed an objection to the Nugar Motion [Docket

No. 990] (the First Objection). As set forth in the First Objection, the Debtors engaged in various discussions with counsel for Nugar trying to resolve the issues set forth in the Nugar Motion. During such discussions, the Debtors explained that, among other things, they are not authorized to pay prepetition claims to general unsecured creditors absent court authorization.2 8. Subsequent to the filing of the First Objection, the Debtors engaged in additional

discussions with Nugar during which discussions counsel to the Debtors inquired as to whether Nugar had retained local counsel to appear before this Court so that counsel to the Debtors could discuss the Nugar Motion and the First Objection with such counsel in an effort to resolve the issues set forth in such pleadings. Counsel to Nugar stated to Debtors counsel that Nugar had neither retained such local counsel nor planned on retaining such counsel. 9. 10. On August 29, 2005, the Nugar Amendment was filed with this Court. On September 16, 2005, the Debtors filed an objection to the Nugar Amendment

[Docket No. 1186] (the Second Objection). The Second Objection incorporated by reference the First Objection in its entirety and set forth that, among other things, the Nugar Motion and

The Debtors hereby incorporate by reference the facts and arguments set forth in the First Objection.

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the Nugar Amendment were procedurally improper, failed to comply with the Case Management Procedures and sought relief not available under the Bankruptcy Code.3 11. On September 30, 2005, the Nugar Comments were filed. Relief Requested 12. Through this Ex Parte Motion, the Debtors submit that the Nugar Pleadings

should not be considered by this Court for a number of reasons and, accordingly, the Debtors seek entry of an order, on an ex parte basis, striking the Nugar Pleadings from the docket in these cases. Alternatively, the Debtors respectfully move this Court to deny the relief requested in the Nugar Pleadings. Basis for Relief 13. Bankruptcy Rule 9010 and Local Rule 9010-1 both require that creditors

appearing in a case under the Bankruptcy Code act either in their own behalf or by an attorney authorized to practice in the court where the case is pending. 14. Specifically, Bankruptcy Rule 9010(a) sets states: A debtor, creditor, equity security holder, indenture trustee, committee or other party may (1) appear in a case under the Code and act either in the entitys own behalf or by an attorney authorized to practice in the court, and (2) perform any act not constituting the practice of law,4 by an authorized agent, attorney in fact, or proxy.

3 4

The Debtors hereby incorporate by reference the facts and arguments set forth in the Second Objection. With respect to what constitutes the practice of law in this Court, Local Rule 9010-1(a) states: None of the following constitutes the practice of law for purposes of these rules: (i) the signing or filing of a request for service; (ii) the signing or filing of a proof of claim or a ballot; (iii) attendance and participation at a meeting of creditors or an official committee; (iv) the signing or filing of a pleading or paper resolving an objection to a proof of claim; or (v) signing or filing a stipulation adjourning a hearing or extending a deadline.

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15.

Similarly, Local Rule 9010-1(a)(1) states: Except as otherwise provided by law, appearance before the Court on behalf of a person or entity may only be made by an attorney admitted to the bar of, or permitted to practice before, the United States District Court for the Eastern District of Michigan, under E.D. Mich. LR 83.20. A corporation, partnership, or other entity other than an individual may not file a petition or other pleading, nor appear as a debtor, plaintiff, defendant or other party in an adversary proceeding, unless it is represented by an attorney duly admitted to, and in good standing with, the bar of the United States District Court for this district.

16.

On information and belief, the Debtors submit that counsel for Nugar is not

authorized to practice before this Court. Based on conversations between counsel to the Debtors and Nugar, Nugars counsel is neither admitted to the bar of, nor permitted to practice before, the United States District Court for the Eastern District of Michigan. Further, on information and belief, Nugars counsel is not represented by local counsel that is authorized to so appear before this Court. Finally, the Debtors note that counsel to Nugar has not been admitted to appear pro hac vice before this Court.5 Nugars counsel, nevertheless, filed the Nugar Pleadings in

contravention of Bankruptcy Rule 9010 and Local Rule 9010. As such, Nugars counsel is engaging in the unauthorized practice of law before this Court and the Nugar Pleadings should not be considered and should instead be stricken from the record in these cases.6 17. Further, service of the Nugar Pleadings was procedurally improper and did not The Case Management

give notice to the core constituents participating in these cases.

Procedures require that parties serve routine pleadings (i.e., non-Rule 2002(a)(2)-(6) pleadings)

Finally, on November 1, 2005, Debtors counsel confirmed with the clerks office that the Court has no record of the admission of Luis Fernando Represas de Almeida, counsel to Nugar, to practice before the Court. In addition, the Debtors reserve any and all rights to seek the imposition of sanctions or recovery of expenses from Nugar or its counsel related to the Debtors consideration and response to the Nugar Pleadings.

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on the Core Group and Affected Parties, as such terms are defined therein. Nugar, however, did not follow such service requirements, serving only the Debtors with the Nugar Pleadings.7 It would be unfair to permit the Nugar Pleadings to be considered or heard without having provided appropriate notice and opportunity to respond to such constituents. Accordingly, for this reason alone, the Nugar Pleadings should be stricken from the record in these cases Notice 18. Pursuant to Bankruptcy Rule 9007, the Court has authority to regulate the time

within which, the entities to whom and the form and matter in which, notice shall be given, which includes the authority to determine appropriate notice for this Ex Parte Motion. Accordingly, under the circumstances, and in light of the nature of the relief sought herein, the Debtors respectfully submit that notice of this Ex Parte Motion was sufficient.8 No Prior Request 19. court. No prior motion for the relief requested herein has been made to this or any other

Nugar only filed an affidavit of service with respect to the Nugar Amendment [Docket No. 1030], so the Debtors presume that Nugar served the Nugar Motion and the Nugar Comments only on the Debtors as well. The Debtors provided a copy of this Ex Parte Motion to the Committee, the agent for the Debtors pre- and post petition secured lenders and the United States trustee.

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WHEREFORE, the Debtors respectfully request an entry of an order, substantially in the form attached hereto as Exhibit A, (a) striking the Nugar Pleadings or denying the relief requested in the Nugar Pleadings and (b) granting such other further relief as is just and proper. Dated: November 3, 2005 KIRKLAND & ELLIS LLP /s/ Ray C. Schrock Richard M. Cieri (NY RC 6062) Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -andDavid L. Eaton (IL 3122303) Ray C. Schrock (IL 6257005) Marc J. Carmel (IL 6272032) 200 East Randolph Drive Chicago, Illinois 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200 -andCARSON FISCHER, P.L.C. Joseph M. Fischer (P13452) 300 East Maple Road, Third Floor Birmingham, Michigan 48009 Telephone: (248) 644-4840 Facsimile: (248) 644-1832 Co-Counsel for the Debtors

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EXHIBIT A

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IN THE UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: COLLINS & AIKMAN CORPORATION, et al.1 Debtors. ) ) ) ) ) ) ) ) Chapter 11 Case No. 05-55927 (SWR) (Jointly Administered) (Tax Identification #13-3489233) Honorable Steven W. Rhodes

ORDER GRANTING DEBTORS EX PARTE MOTION TO STRIKE PLEADINGS OF NUGAR, S.A. DE C.V. Upon the ex parte motion (the Ex Parte Motion)2 of the above-captioned debtors (collectively, the Debtors) to strike the Nugar Pleadings; it appearing that the relief requested is in the best interest of the Debtors estates, their creditors and other parties in interest; it appearing that the Court has jurisdiction over this matter pursuant to 28 U.S.C. 157 and 1334; it appearing that this proceeding is a core proceeding pursuant to 28 U.S.C.

The Debtors in the jointly administered cases include: Collins & Aikman Corporation; Amco Convertible Fabrics, Inc., Case No. 05-55949; Becker Group, LLC (d/b/a/ Collins & Aikman Premier Mold), Case No. 05-55977; Brut Plastics, Inc., Case No. 05-55957; Collins & Aikman (Gibraltar) Limited, Case No. 05-55989; Collins & Aikman Accessory Mats, Inc. (f/k/a the Akro Corporation), Case No. 05-55952; Collins & Aikman Asset Services, Inc., Case No. 05-55959; Collins & Aikman Automotive (Argentina), Inc. (f/k/a Textron Automotive (Argentina), Inc.), Case No. 05-55965; Collins & Aikman Automotive (Asia), Inc. (f/k/a Textron Automotive (Asia), Inc.), Case No. 0555991; Collins & Aikman Automotive Exteriors, Inc. (f/k/a Textron Automotive Exteriors, Inc.), Case No. 05-55958; Collins & Aikman Automotive Interiors, Inc. (f/k/a Textron Automotive Interiors, Inc.), Case No. 05-55956; Collins & Aikman Automotive International, Inc., Case No. 05-55980; Collins & Aikman Automotive International Services, Inc. (f/k/a Textron Automotive International Services, Inc.), Case No. 05-55985; Collins & Aikman Automotive Mats, LLC, Case No. 05-55969; Collins & Aikman Automotive Overseas Investment, Inc. (f/k/a Textron Automotive Overseas Investment, Inc.), Case No. 05-55978; Collins & Aikman Automotive Services, LLC, Case No. 05-55981; Collins & Aikman Canada Domestic Holding Company, Case No. 05-55930; Collins & Aikman Carpet & Acoustics (MI), Inc., Case No. 05-55982; Collins & Aikman Carpet & Acoustics (TN), Inc., Case No. 05-55984; Collins & Aikman Development Company, Case No. 05-55943; Collins & Aikman Europe, Inc., Case No. 05-55971; Collins & Aikman Fabrics, Inc. (d/b/a Joan Automotive Industries, Inc.), Case No. 05-55963; Collins & Aikman Intellimold, Inc. (d/b/a M&C Advanced Processes, Inc.), Case No. 05-55976; Collins & Aikman Interiors, Inc., Case No. 05-55970; Collins & Aikman International Corporation, Case No. 05-55951; Collins & Aikman Plastics, Inc., Case No. 05-55960; Collins & Aikman Products Co., Case No. 05-55932; Collins & Aikman Properties, Inc., Case No. 0555964; Comet Acoustics, Inc., Case No. 05-55972; CW Management Corporation, Case No. 05-55979; Dura Convertible Systems, Inc., Case No. 05-55942; Gamble Development Company, Case No. 05-55974; JPS Automotive, Inc. (d/b/a PACJ, Inc.), Case No. 05-55935; New Baltimore Holdings, LLC, Case No. 05-55992; Owosso Thermal Forming, LLC, Case No. 05-55946; Southwest Laminates, Inc. (d/b/a Southwest Fabric Laminators Inc.), Case No. 05-55948; Wickes Asset Management, Inc., Case No. 05-55962; and Wickes Manufacturing Company, Case No. 05-55968. Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Motion.

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 157(b)(2); it appearing that venue of this proceeding and this Ex Parte Motion in this District is proper pursuant to 28 U.S.C. 1408 and 1409; notice of this Ex Parte Motion was appropriate under the particular circumstances and that no other or further notice need by given; and after due deliberation and sufficient cause appearing therefor, it is hereby ORDERED 1. 2. The Ex Parte Motion is granted in its entirety. The Nugar Motion [Docket No. 924], the Nugar Amendment [Docket No.

1028], the (the Nugar Comments) [Docket No. 1405] and the Ancillary Documents are hereby stricken from the record of these cases. 3. The Debtors are authorized to take all actions necessary to effectuate the

relief granted pursuant to this Order in accordance with the Ex Parte Motion. 4. The terms and conditions of this Order shall be immediately effective and

enforceable upon its entry. 5. The Court retains jurisdiction with respect to all matters arising from or

related to the implementation of this Order. Dated: __________________, 2005 United States Bankruptcy Judge

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