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The Honorable Brian D. Lynch

Chapter 7
Hearing Date: December 3,2013
Hearing Time: 9:00 a.m.
Response Date: December 3,2013
Hearing Location: Vancouver, WA

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IN THE UNITED STATES BANKRUPTCY COURT

FOR THE \ilESTERN DISTRICT OF WASHINGTON

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In Re:

No. 13-46948-BDL

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TYTAN INTERNATIONAL, INC. d/b/A

TYTAN TRACTORS,

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NOTICE AND VERIFIED MOTION

FOR ABANDONMENT AND RELIEF
FROM THE AUTOMATIC STAY

Debtor

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NOTICE

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TO:

AND
AND
AND
AND
AND

TO:
TO:
TO:
TO:
TO:

TYTAN INTERNATIONAL, INC. d/b/a TYTAN TRACTORS, Debtor

ROBERT C. BRUNGARDT, Attorney for Debtor
DON THACKER, Chapter 7 Trustee
UNITED STATES TRUSTEE
CLERK OF THE COURT
PARTIES REQUESTING SPECIAL NOTICE

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You, lNo Encu oF You, are hereby given notice that GE Commercial Distribution
Finance Corporation ("Creditor"), has moved the Court for abandonment and relief from the
automatic stay concerning the following inventory and the proceeds thereof ("Property"):
Mfq Name

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BAD
BAD
BAD
BAD
BAD
BAD
BAD

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BOY.
BOY.
BOY,
BOY,
BOY,
BOY,
BOY,

INC
INC
INC
INC
INC
INC.
INC.

Model #

Serial#

880613685

051 31 003

BBX7231 KA

051 31 003

8806131KA
88061 3685
BZE6027KO

051 31 01 7

BCE543OBS
BCE543OBS

051 31 009

07131077

07131025
051 31 040

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NOTICE AND VEzuFIED MOTION FOR ABANDONMENT

AND RELIEF FROM THE AUTOMATIC STAY - 1

CARLSON...".

14077-qn'fB/586949

Case 13-46948-BDL

EISENHOWER

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Ent. 11/27/13 11:59:52

1200 \4'ells Fargo Paza

1201 Paclfic Avenue
'tlcorna, WA 98102

T:253-572-45O0
F:253-272-5732

Pg. 1 of 7

s tnrieisenhott'erltncont

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Debtor lists the Property on Schedule D - Creditors Holding Secured Claims as

having an unknown value. The Creditor is owed the principal amount of $42,763.00 on its
first position lien, plus charges, fees and costs. The Creditor moves for abandonment
pursuant to 11 U.S.C. $ 554(b), and for relief from the automatic stay pursuant to 11 U.S.C. $
362(dxl) and(2).

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The hearing on the Creditor's Motion for Abandonment and Relief from the
Automatic Stay will be heard on December 3,2013, at 9:00 a.m. in the Federal Building,
500 West 12th Street,2nd Floor Vancouver, WA 98660. The Clerk is requested to note
this Motion on the motion calendar for that date.
IF YOU OPPOSE the Motion, you must file your written response with the clerk of
court, serve two (2) copies to the Judge's chambers, and deliver a copy to the undersigned
NOT LATER THAN December 3,2013.

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In the absence of an objection, the Court will be requested to grant the relief

as

requested therein.

A complete copy of the full Motion may be obtained by written request from
Eisenhower & Carlson, PLLC and is also available for review at the office of the Clerk of the
United States Bankruptcy Court or can be obtained through Pacer at the Court's website.

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MOTION

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Creditor, through its counsel, hereby states the following in support of its Verified

Motion for Abandonment and Relief from the Automatic Stay:

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JURISDICTION

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This Court has jurisdiction over this matter pursuant to Sections 157 and

1334 of Title 28 of the United States Code. This is a core proceeding pursuant to Section

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157(bX2XA) and (G) of Title 28 of the United States Code.

FACTUAL BACKGROUND

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2.

Debtor cormenced this case by filing a voluntary petition for relief under

Chapter 7 of the United States Bankruptcy Code on November 7,2013 (the "Petition Date").

3.

Debtor operated a dealership prior to the Petition Date.

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NOTICE AND VERIFIED MOTION FORABANDONMENT

AND RELIEF FROM THE AUTOMATIC STAY. 2

ifti

14077-81TMB.1586949

Case 13-46948-BDL

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EISENHOWER
CARLSON,,.",

Ent. 11/27/13 11:59:52

1200 \.['clls Frrgo Plaza

I 20 I Pacifc Avenue
'llconu, Wr\ 98.102
T: 253-572-4500

lt:25i\-272-5732

\rlrieiscnho$'erhrtrcom
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4.

On or about June

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2006, Debtor entered into an Inventory Financing

Agreement (the "Security Agreement") with Creditor which secures the payment

of all

advances to Debtor in connection with the financing of and Debtor's acquisition of inventory.

A copy of the Security Agreement is attached hereto and incorporated herein

as

Exhibit A.

5.

Pursuant to the terms of the Security Agreement, Debtor granted Creditor a

security interest in certain of its personal property as more particularly defined in the Security

Agreement (the "Collateral"). Creditor

200616688412) with the V/ashington Secretary of State on June 15, 2006. Copies of the

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UCC-I filing

as

well

as the amendments

filed a UCC-I Financing

to and continuation thereof are attached hereto and

incorporated herein collectively as Exhibit B.

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Pursuant to the Security Agreement, Creditor financed Debtor's acquisition

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A listing of the Property financed by Creditor

attached hereto and incorporated herein as Exhibit

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each unit of Property is contained in Exhibit C.

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inventory from manufacturers and distributors for Debtor's retail sale to the general public.

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Statement (No.

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and for which payment is due is

C. An itemization of the balance due for

Debtor is in default of the Security Agreement based upon its failure to make

payments as due. Creditor has performed all obligations required of

it under the Security

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Agreement.

9.

On November 4, 2013, Creditor inspected the Property. Creditor was advised

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that two (2) units had been sold without remitting payment to Creditor, a practice known in

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the commercial lending industry as "selling out of trust" or "SOT". The balance due for one

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of those units remains unpaid and totals $4,849.00. This SOT unit is denoted by "Sold Out

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of Trust" on Exhibit C.
NOTICE AND VERIFIED MOTION FOR ABANDONMENT
AND RELIEF FROM THE AUTOMATIC STAY - 3

CARLSON

14077-8nMB/586949

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Ent. 11/27/13 11:59:52

I 200 14'ells Fargo Plaza

1201 Pacllic Arenue
'l'uconra, \4/A f.lt402

T: 253-s72'4500
-: 25!l-272-7.12
!r\!1eisenhos'crlN,.cont

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Creditor is unaware of whether the Collateral is currently insured.

Based upon its most recent inspection and experience in the industry, Creditor

estimates that the remaining Property is valued at most at $37,914.00. Creditor is owed the

principal sum of $42,763.00, plus charges, fees and costs.

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12.

Pursuant to the Security Agreement and applicable provisions of the Uniform

Commercial Code, Creditor is entitled to immediate possession of the Property.

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STAY RELIEF

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Section 362(d) of the Bankruptcy Code provides, in pertinent part, as follows:

(d)

On request of a party in interest and after notice and a hearing, the

court shall grant relief from the stay provided under subsection (a) of
this section, such as by terminating, annulling, modifying or
conditioning such stay:

(1)
(2)

for cause, including the lack of adequate protection of an interest in

property of such party in interest; or
with respect to a stay of an act against a property under subsection (a)
of this section, if:

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14.

(A)

the debtor does not have any equity in such property; and

(B)

such property is not necessary to an effective reorganization.

Section 362(d) is written in the disjunctive and authorizes relief from the stay

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if a party with an interest in property of the estate can demonstrate cause,

including lack of

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adequate protection, or establish that the debtor has no equity in the property and that the

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property is not necessary to an effective reorganization.

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15.

Pursuant to 11 U.S.C. $ 362(dxl), sufficient cause exists, including the lack

of adequate protection, for lifting the automatic stay as to Creditor and the Property to permit

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Creditor to exercise any and all of its state law and contractual rights and remedies with
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respect to the Property.

NOTICE AND VEzuFIED MOTION FORABANDONMENT

AND RELIEF FROM THE AUTOMATIC STAY - 4
14077-&/TMB/586949

Case 13-46948-BDL

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EISENHOWER
CARLSON,,",

Ent. 11/27/13 11:59:52

1200 Wells Fargo Plaza

l20l

Pacifc Avcnue

'lrcon, W^.98402
T:253-572-45OO
It: 2311-272-5732
s tnv.eisenhon eLlnLconl

Pg. 4 of 7

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16.
examples

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Regardless

Although the Bankruptcy Code does not define adequate protection,

it lists

Section 361, which include periodic cash payments or replacement liens.

of the form that adequate protection takes, the secured creditor is entitled to

receive the "indubitable equivalent of such entity's interest in such property." 11 U.S.C.

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361(3). The Collateral continues to depreciate in value. The Collateral, including the

Property, is at risk of being lost, damaged or stolen. In the event of a loss and without

insurance, Creditor

property interest. Debtor has failed to adequately protect Creditor for the Property, and thus

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will

suffer irreparable harm, with possibly no ability to replace its lost

Creditor is entitled to relief from the automatic stay.

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Pursuant

to

11 U.S.C.

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362(d)(2), sufficient cause exists for lifting the

automatic stay as to Creditor and the Property to permit Creditor to exercise any and all of its
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state law and contractual rights and remedies with respect to the Property, in that (1) Debtor,

in interest payments, has no equity in the Property and

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due to sales out of trust and arrearage

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(2) the Property is not necessary to an effective reorganization, as this is a liquidation case.

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Abandonment of the Property is appropriate because

it is of inconsequential

value and benefit to the bankruptcy estate.

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Creditor fuither requests that the provisions of Federal Rule of Bankruptcy

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Procedure 4001(a)(3) which state that the Order Granting Relief from Automatic Stay will be

effective fourteen days from the date of its entry be waived.

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WHEREFORE, Creditor respectfully requests that the Court issue an Order,

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pursuant

No prior application for the relief requested herein has been made.

to 11 U.S.C. $ 362(d)(1) and (2) granting Creditor relief from the automatic

stay,

permitting Creditor to exercise any and all of its state law and contractual rights and remedies
NOTICE AND VERIFIED MOTION FORABANDONMENT
AND RELIEF FROM THE AUTOMATIC STAY - 5

1200 Wells Faryo Plaza

1201 Pacihc enue
'lhconra. \4/\ 98402
T: 253-572-4500
F:25:J-272-5732

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with respect to the Property, including selling the same or returning the Property to the

applicable manufacturers or distributors, and compelling abandonment under 11 U.S.C.

$55a(b); or, in the alternative, providing adequate protection; (b) waiving the provision of

Federal Rule of Bankruptcy Procedure a001(aX3) which states that the Order Granting Relief
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from Automatic Stay will be effective fourteen days from the date of its entry; and (c) for
such other and further relief as the Court may deem just and proper,

A proposed order is attached hereto.

DATED this

27Th

day of November, 2013.

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EISENHOV/ER CARLSON PLLC

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By: /s/ Todd M. Blodgett

Todd M. Blcdgett, V/SBA #43542
Attorneys for Creditor

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NOTICE AND VERIFIED MOTION FOR ABANDONMENT

AND RELIEF FROM THE AUTOMATIC STAY.6
14077-8nV181586949

EISENHOWER
CARLSON..,

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STATE OF ILLINOIS

COLINTY OF COOK

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ss.

The undersigned, being first duly swom, on oath deposes

and says:
That
Corporation

Relief from
The exhibits

Jason

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SIGNED AND SWORN to before me on this

Jason Rozga.

,'t -t PL

J/ ,/

day of November, 20l3,by

1l
NOT
Y PUBLIC in and for the State
Illinois
My commission
,'iv S

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NOTICE AND VEzuFIED MOTION FORABANDONMENT

AND RELIEF FROM THE AU|OMATIC STAY - 7
MOTION-FOR-RFS-AND-AB AN DONMENT. DOCX

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Case 13-46948-BDL

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Ent. 11/27/13 11:59:52

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