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UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

INRE: DELTA PRODUCE, L.P ., Debtor

Case No. 12-50073-LMC (Chapter 11) JOINTLY ADMINISTERED

OMNIBUS OBJECTIONS TO CERTAIN PACA TRUST CLAIMS

In accordance with the February 29, 2011 Amended Order Establishing a Deadline to File PACA Trust Claims (referred to as the "PACA Claims Procedure Order"), PACA creditors Bernardi and Associates, Inc., DiMare Enterprises, Inc., Uesugi Farms, Inc., Frank's Distributing of Produce, LLC, Fresh Pac International, Harvest Crown Co., Inc., J-C Distributing, Inc., Mission Produce, Inc., California Artichoke & Veg Growers Corp. dba Ocean Mist Farms, Pacific International Vegetable Marketing Inc. dba Pacific International Marketing Prime Time Sales, LLC, Royal Flavor, LLC, and Wilson Produce, LLC ( hereinafter referred to as the "R&J Group"), by and through their undersigned counsel, hereby submit the following objections to the trust claims of the below-identified creditors of Delta Produce, L.P. ("Debtor") under the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. 499a, et seq.

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The PACA establishes a non-segregated floating trust for the benefit of unpaid sellers and suppliers of produce under the following terms: Perishable agricultural commodities received by a commission merchant, dealer, or broker in all transactions, and all inventories of food or other products derived from perishable agricultural commodities, and any receivables or proceeds from the sale of such commodities or products, shall be held by such commission merchant, dealer, or broker in trust for the benefit of all unpaid suppliers or sellers of such commodities or agents involved in the transaction, until full payment of the sums owing in connection with such transaction has been received by such unpaid suppliers, sellers, or agents. 7 U.S.C. 499e(c)(2) In order to become a perfected PACA trust beneficiary, a PACA claimant must meet three requirements. First, the claim in question must be for the sale of perishable agricultural commodities. Perishable agricultural commodities are defined under 7

U.S.C. 499a(b)(4) as fresh fruits and vegetables of every kind and character, whether or not frozen or packed in ice ("Produce"). Second, the Produce must have been purchased and accepted by a commission merchant, dealer or broker as defined by PACA 7 U.S.C. 499a(b)(5-7). Third, the claimant must have provided the purchaser with written notice of its intent to preserve its rights under PACA within 30 days: (i) after expiration of the ten day payment term set forth in the PACA regulations, 7 C.P.R. 46.2 (aa)(S); or (ii) after expiration of such other time by which payment must be made, as the parties have expressly agreed to in writing before entering into the transaction, 7 U.S.C. 499e(c)(3). The claimant can send written notice of its intent to preserve trust benefits by sending the purchaser a separate written notice ("Trust Notice") 7 U.S.C 499e(c)(3); 7 C.P.R. Page 2of5

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46.46()(1) and (3). This Trust Notice must contain the transaction dates, conunodities, invoice prices, payment terms, and the amount past due and unpaid, as prescribed by regulation. If the claimant holds a PACA license, it may use its invoice or billing statement as the notice if it contains specific statutory language ("Invoice Method"). 7 U.S.C. 499e(c)(4); 7 C.P.R. 46.46(f)(3)(i).

See In re Country Harvest Buffet

Restaurants, Inc., 245 B.R. 650, 653 (9'h Cir. BAP 2000).
In this case, numerous creditors of debtor, including the Objecting Parties, have filed PACA trust claims pursuant to the terms of the PACA Claims Procedure Order. The creditors' PACA trust claims described below are deficient and, therefore, are objectionable for the reasons described below. In order to aid in the analysis of these numerous claims, Objecting Parties have set forth a numerical key to objections. Rather than reiterating the text of objections common to several claims under the heading of each objectionable claim, reference is instead made to the applicable objection number set forth in the Objection Key. Objections made on grounds other than set forth in the Objection Key are separately stated.
Objection Key Objection 1 - Claimant may not recover as PACA trust beneficiary for items

which are neither perishable agricultural commodities nor sums owing in connection therewith. 7 U.S.C. 499e(c)(2); 7 U.S.C. 46.2(u)-(w).
Objection 2 - Absent a contractual rate of interest, Claimant seeks interest at an

incorrect rate. Tex.Fin.Code 302.002 (6% per year legal rate).

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Objection 3- Claimant has failed to establish delivery or receipt of the perishable


agricultural commodities listed in their claim.

Objections
1.

Five Brothers Jalisco Produce Co., Inc.


Objection 2.

2.

JFJ Company
Objection 1. Claimant improperly seeks trust coverage for items which are not

perishable agricultural commodities (pressure washing).

3.

London Fruit, Inc.


Objection 3.

4.

Muller Trading Co., Inc.


Objection 3. Respectfully submitted,

DATED: March 30, 2012

By:

/s/ Diana M. Geis Diana M. Geis, Esq. Curl & Stahl, P.C. 700 North St. Mary's Street, Suite 1930 San Antonio, Texas 78205 (210) 226-2182 Tel (210) 226-1691 Fax dmgeis@curlstahl.com Email

By:

Is/ Bart M. Botta


Bart M. Botta, Esq. Rynn & Janowsky, LLP 4100 Newport Place Drive, Suite 700 Newport Beach, CA 92660 (949) 752-2911 Tel 949-752-0953 Fax bart@rjlaw.com Email

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CERTIFICATE OF SERVICE
I hereby certify that on March 30, 2012, I electronically filed the foregoing Omnibus Objections to Certain P ACA Trust Claims with the Clerk of the Court using the CMIECF system which will send a notice of electronic filing to all parties of record.

By:

Is/ Diana M. Geis Diana M. Geis, Esq. Curl & Stahl, P.C. 700 North St. Mary's Street, Suite 1930 San Antonio, Texas 78205 (210) 226-2182 Tel (210) 226-1691 Fax dmgeis@curlstahl.com Email

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