Preview
FILED
11/19/2021 3:26 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
CAUSE N0. DC-18-17503
6534 Stuebner Airline Road, LLC, 825 West § IN THE DISTRICT COURT
Kearney Street, LLC, 1000 Ave J Realty, §
LLC, 501 Yates Realty, LLC, 716 Mimosa §
Realty, LLC, 1026 E. Goode Realty, LLC, §
1405 W. Storey Realty, LLC §
§
Plaintififv, §
§
§
§ 0F DALLAS COUNTY, TEXAS
§
Concord Healthcare Group, LLC, CHG §
Operator 029, LLC, East Texas §
Management, LLC, Josef Neuman, and §
Oscar Rosenberg §
§
Defendants. § 191ST JUDICIAL DISTRICT
PLAINTIFFS’ MOTION TO SEVER DEBTOR OSCAR ROSENBERG
Plaintiffs 6534 Stuebner Airline Road, LLC, 825 West Kearney Street, LLC, 1000 Ave J
Realty, LLC, 501 Yates Realty, LLC, 716 Mimosa Realty, LLC, 1026 E. Goode Realty, LLC, and
1405 W. Storey Realty, LLC file this Motion to Sever Debtor Oscar Rosenberg and would
respectfully show the Court as follows:
Plaintiffs acknowledge that by virtue of the automatic stay imposed by 11 U.S.C. § 362(a)
this matter is stayed as to Oscar Rosenberg pending an Order of the Bankruptcy Court vacating or
otherwise terminating the automatic stay. See In re Southwestern Bell Telephone Co., 35 S.W.3d
602, 604 (Tex. 2000) (“When a defendant files a bankruptcy petition, an automatic stay goes into
effect and abates any judicial proceeding against that party.”). However, the stay only operates
against the debtor, and does not operate against non-debtors or even co-debtors, co-tortfeasors, or
co-defendants. Id.
While an express severance of the debtor is not required for proceedings to continue against
non-debtor co-defendants, it is not uncommon for courts to sever the claims against the debtor into
a new cause of action. See GA TX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 716 (5th
Cir. 1985); Wedgeworth v. Fibreboard Corp, 706 F.2d 541, 544 (5th Cir. 1983); Pusjetovsky v.
Rapid American Corp, 35 S.W.3d 643, 645 n. 2 (Tex. 2000); Law Offices ofMark S. Stewart and
Assocs. v. Compass Bank, No. 2-05-393-CV, 2006 WL 34338160, at *1 (Tex. App—Forth Worth
Nov. 30, 2006, no pet.); Hooker v. Hooker, No. 05-00-00268-CV, 2002 WL 1462210, at *2 (Tex.
App—Dallas July 9, 2002, no pet.).
Severance of the debtor does not violate the automatic stay provisions of the Bankruptcy
Code. See Wedgeworth, 706 F.2d at 544.
Nonetheless, out of an abundance of caution, Plaintiffs sought and obtained permission
from the Bankruptcy Court to sever Oscar Rosenberg from this cause and continue to prosecute to
judgment Plaintiffs’ claims against his non-debtor co-defendants. See Exhibit 1, Dkt. Nos. 100
and 118, Case No. 21-30277-sgj7, In re Oscar Wayne Rosenberg, in the United States District
Court for the Northern District of Texas, Dallas Division. Therefore, there is no impediment to the
severance that Plaintiff seeks.
For the foregoing reasons, Plaintiffs pray that the Court grant their Motion to Sever, sever
Plaintiffs’ claims against Oscar Rosenberg from Plaintiffs’ claims against Concord Healthcare
Group, LLC, Trinity HC Operator, LLC, and Josef Neuman, order the Clerk of the Court to assign
a new number to the severed cause, and allow Plaintiffs to proceed with their claims against
Concord Healthcare Group, LLC, Trinity HC Operator, LLC, and Josef Neuman. Plaintiffs pray
for all further relief to which they may show themselves justly entitled.
Respectfully submitted,
/s/Andrew C. Nelson
Andrew C. Nelson
State Bar No. 24074801
Elizabeth F. Turco
State Bar No. 24088555
WRIGHT CLOSE & BARGER, LLP
One Riverway, Suite 2200
Houston, Texas 77056
Telephone: (713) 572-4321
Facsimile: (713) 572-4320
nelson@wrightclosebarger.com
turco@wrightclosebarger.com
Attorneys for Plaintiffs
CERTIFICATE OF CONFERENCE
Counsel for movant has personally attempted to contact the counsel for respondent to
resolve the matters presented as follows:
November 17, 2021 10:00 am: Phone call, attempted to leave message, but mailbox was
full
November 17, 2021, 10:37 am: Email, out of office message received
November 19, 10:00 am: Email, no response
Counsel for the movant has caused to be delivered to counsel for respondent and counsel
for respondent has received a copy of the proposed motion. At least one attempt to contact the
counsel for respondent followed the receipt by counsel for respondent of the proposed motion.
Counsel for respondent has failed to respond or attempt to resolve the matters presented.
/s/Andrew C. Nelson
Andrew C. Nelson
CERTIFICATE OF SERVICE
I hereby certify that on November 19, 2021, a true and correct copy of the above and
foregoing document was served upon all counsel of record in compliance with the Texas Rules
of Civil Procedure.
/s/Andrew C. Nelson
Andrew C. Nelson
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Michelle Heigelmann on behalf of Andrew Nelson
Bar No. 24074801
heigelmann@wrightclose.com
Envelope ID: 59347437
Status as of 11/22/2021 8:29 AM CST
Associated Case Party: Stuebner Airline Road, LLC
Name BarNumber Email TimestampSubmitted Status
Patrick McAndrew 24042596 patrick@trammellpc.com 11/19/2021 3:26:21 PM SENT
Andrew C.Nelson nelson@wrightclosebargemom 11/19/2021 3:26:21 PM SENT
Michelle Heigelmann heigelmann@wrightclosebarger.com 11/19/2021 3:26:21 PM SENT
Tere Nelson tnelson@wrightclosebargemom 11/19/2021 3:26:21 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
David GrantCrooks dcrooks@foxrothschild.com 11/19/2021 3:26:21 PM SENT
Jessica Sagui jsagui@foxrothschild.com 11/19/2021 3:26:21 PM SENT
Associated Case Party: Oscar Rosenberg
Name BarNumber Email TimestampSubmitted Status
J. Mark Chevallier mchevallier@mcslaw.com 11/19/2021 3:26:21 PM SENT
Preview
FILED 11/19/2021 3:26 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY CAUSE N0. DC-18-17503 6534 Stuebner Airline Road, LLC, 825 West § IN THE DISTRICT COURT Kearney Street, LLC, 1000 Ave J Realty, § LLC, 501 Yates Realty, LLC, 716 Mimosa § Realty, LLC, 1026 E. Goode Realty, LLC, § 1405 W. Storey Realty, LLC § § Plaintififv, § § § § 0F DALLAS COUNTY, TEXAS § Concord Healthcare Group, LLC, CHG § Operator 029, LLC, East Texas § Management, LLC, Josef Neuman, and § Oscar Rosenberg § § Defendants. § 191ST JUDICIAL DISTRICT PLAINTIFFS’ MOTION TO SEVER DEBTOR OSCAR ROSENBERG Plaintiffs 6534 Stuebner Airline Road, LLC, 825 West Kearney Street, LLC, 1000 Ave J Realty, LLC, 501 Yates Realty, LLC, 716 Mimosa Realty, LLC, 1026 E. Goode Realty, LLC, and 1405 W. Storey Realty, LLC file this Motion to Sever Debtor Oscar Rosenberg and would respectfully show the Court as follows: Plaintiffs acknowledge that by virtue of the automatic stay imposed by 11 U.S.C. § 362(a) this matter is stayed as to Oscar Rosenberg pending an Order of the Bankruptcy Court vacating or otherwise terminating the automatic stay. See In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 604 (Tex. 2000) (“When a defendant files a bankruptcy petition, an automatic stay goes into effect and abates any judicial proceeding against that party.”). However, the stay only operates against the debtor, and does not operate against non-debtors or even co-debtors, co-tortfeasors, or co-defendants. Id. While an express severance of the debtor is not required for proceedings to continue against non-debtor co-defendants, it is not uncommon for courts to sever the claims against the debtor into a new cause of action. See GA TX Aircraft Corp. v. M/V Courtney Leigh, 768 F.2d 711, 716 (5th Cir. 1985); Wedgeworth v. Fibreboard Corp, 706 F.2d 541, 544 (5th Cir. 1983); Pusjetovsky v. Rapid American Corp, 35 S.W.3d 643, 645 n. 2 (Tex. 2000); Law Offices ofMark S. Stewart and Assocs. v. Compass Bank, No. 2-05-393-CV, 2006 WL 34338160, at *1 (Tex. App—Forth Worth Nov. 30, 2006, no pet.); Hooker v. Hooker, No. 05-00-00268-CV, 2002 WL 1462210, at *2 (Tex. App—Dallas July 9, 2002, no pet.). Severance of the debtor does not violate the automatic stay provisions of the Bankruptcy Code. See Wedgeworth, 706 F.2d at 544. Nonetheless, out of an abundance of caution, Plaintiffs sought and obtained permission from the Bankruptcy Court to sever Oscar Rosenberg from this cause and continue to prosecute to judgment Plaintiffs’ claims against his non-debtor co-defendants. See Exhibit 1, Dkt. Nos. 100 and 118, Case No. 21-30277-sgj7, In re Oscar Wayne Rosenberg, in the United States District Court for the Northern District of Texas, Dallas Division. Therefore, there is no impediment to the severance that Plaintiff seeks. For the foregoing reasons, Plaintiffs pray that the Court grant their Motion to Sever, sever Plaintiffs’ claims against Oscar Rosenberg from Plaintiffs’ claims against Concord Healthcare Group, LLC, Trinity HC Operator, LLC, and Josef Neuman, order the Clerk of the Court to assign a new number to the severed cause, and allow Plaintiffs to proceed with their claims against Concord Healthcare Group, LLC, Trinity HC Operator, LLC, and Josef Neuman. Plaintiffs pray for all further relief to which they may show themselves justly entitled. Respectfully submitted, /s/Andrew C. Nelson Andrew C. Nelson State Bar No. 24074801 Elizabeth F. Turco State Bar No. 24088555 WRIGHT CLOSE & BARGER, LLP One Riverway, Suite 2200 Houston, Texas 77056 Telephone: (713) 572-4321 Facsimile: (713) 572-4320 nelson@wrightclosebarger.com turco@wrightclosebarger.com Attorneys for Plaintiffs CERTIFICATE OF CONFERENCE Counsel for movant has personally attempted to contact the counsel for respondent to resolve the matters presented as follows: November 17, 2021 10:00 am: Phone call, attempted to leave message, but mailbox was full November 17, 2021, 10:37 am: Email, out of office message received November 19, 10:00 am: Email, no response Counsel for the movant has caused to be delivered to counsel for respondent and counsel for respondent has received a copy of the proposed motion. At least one attempt to contact the counsel for respondent followed the receipt by counsel for respondent of the proposed motion. Counsel for respondent has failed to respond or attempt to resolve the matters presented. /s/Andrew C. Nelson Andrew C. Nelson CERTIFICATE OF SERVICE I hereby certify that on November 19, 2021, a true and correct copy of the above and foregoing document was served upon all counsel of record in compliance with the Texas Rules of Civil Procedure. /s/Andrew C. Nelson Andrew C. Nelson Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Michelle Heigelmann on behalf of Andrew Nelson Bar No. 24074801 heigelmann@wrightclose.com Envelope ID: 59347437 Status as of 11/22/2021 8:29 AM CST Associated Case Party: Stuebner Airline Road, LLC Name BarNumber Email TimestampSubmitted Status Patrick McAndrew 24042596 patrick@trammellpc.com 11/19/2021 3:26:21 PM SENT Andrew C.Nelson nelson@wrightclosebargemom 11/19/2021 3:26:21 PM SENT Michelle Heigelmann heigelmann@wrightclosebarger.com 11/19/2021 3:26:21 PM SENT Tere Nelson tnelson@wrightclosebargemom 11/19/2021 3:26:21 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status David GrantCrooks dcrooks@foxrothschild.com 11/19/2021 3:26:21 PM SENT Jessica Sagui jsagui@foxrothschild.com 11/19/2021 3:26:21 PM SENT Associated Case Party: Oscar Rosenberg Name BarNumber Email TimestampSubmitted Status J. Mark Chevallier mchevallier@mcslaw.com 11/19/2021 3:26:21 PM SENT