Response of SMI and Duncan to Ttee Obj to POC 5

Summary

SMI, LLC, TR&L, LLC, and Roy Baker Duncan II respond to the trustee's objection to Proof of Claim No. 5, which the Sheriff of Hardy County filed in the Panthera Enterprises, LLC bankruptcy, Northern District of West Virginia. The Sheriff claims priority creditor status for personal property taxes for the tax years 2016 through 2019. The response states that Duncan never owned or possessed the personal property and was simply an employee of the Debtor and/or the Debtor's predecessor. It states there has been no determination that SMI or TR&L ever owned the property. The response is filed solely to clarify ownership and possession, and Duncan, SMI and TR&L otherwise concur in the relief the Trustee seeks.

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IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

In re:

PANTHERA ENTERPRISES, LLC,

Chapter 7

Debtor.

BK No. 2:19-bk-00787

RESPONSE OF SMI, LLC, TR&L, LLC, AND ROY BAKER DUNCAN II
TO OBJECTION OF TRUSTEE TO PROOF OF CLAIM
NO. 5 FILED BY THE SHERIFF OF HARDY COUNTY

COME NOW SMI, LLC (“SMI”), TR&L, LLC (“TRI”), and Roy Baker Duncan, II (aka
Rob Duncan) (“Duncan”), by and through counsel, Kathy M. Santa Barbara, Esquire and The Law
Office of Kathy M. Santa Barbara, PLLC, and hereby responds to the Objection of Trustee to Proof
of Claim No. 5 Filed by the Sheriff of Hardy County [Doc. 390] (the “Objection”) for the purpose
of clarifying certain averments made by the Trustee therein of which the following is a statement:
1.
The Sheriff of Hardy County (the “Sheriff”) filed Proof of Claim No. 5 (the “POC”)
in which he claims to be a priority creditor of Panthera Enterprises, LLC (the “Debtor”) on account
of personal property taxes due and owing to him for the tax years 2016 through 2019, inclusive.
2.
 The Trustee avers that for the tax years 2016 and 2017, the taxpayer would have
been Panthera Training Center, LLC (“PTC”) or Duncan.
3.
Although the Trustee avers that Panthera Training, LLC possessed the personal
property prior to the assessment deadline for 2018 personal property taxes and that the taxpayer
for the 2018 taxes was PTC and/or James Punelli, he further avers that the personal property was
owned by SMI at that time. The Trustee further avers that for the year 2019 Panthera Training,
LLC possessed the personal property.
No. 2:19-bk-00787    Doc 391    Filed 09/01/21    Entered 09/01/21 17:16:49    Page 1 of 4

4.
Duncan never owned nor did he ever possess the personal property, the taxation of
which is the subject of the Trustee’s Objection. Duncan was simply an employee of the Debtor
and/or the Debtor’s predecessor in whose care the personal property tax invoices showing
assessment of taxes against PTC, a separate entity from the Debtor, were mailed by the Sheriff at
the address used by the Debtor and PTC for such purpose.
5.
In this bankruptcy proceeding, a claim by TR&L, by virtue of an assignment from
SMI, that it was the owner of, or secured creditor collateralized by, certain personal property was
disputed by the Trustee, by Panthera Training, LLC, and by the West Virginia Economic
Development Authority and was the subject of Adversary Proceeding No. 2:21-ap-00002. All
claims in that adversary proceeding were fully settled and resolved pursuant to a Stipulation of
Dismissal and Consent Order [Doc. 39] filed in that proceeding. There has been no determination
at any time that SMI, or by assignment, TR&L, ever owned the personal property which is the
subject of the Sheriff’s POC.  At no time did SMI or TR&L ever possess any personal property
which is the subject of the Sheriff’s POC.
6.
Neither Duncan, SMI or TR&L are subject to taxation for the personal property
taxes claimed to be owed by the Debtor in the Sheriff’s POC pursuant to W.Va. Code §§ 11-3-
1(c), 11-3-1(f)(4), nor 11-3-8.
7.
This Response is filed solely for the purpose of clarifying ownership and possession
of the personal property which may be subject to taxation by the Sheriff. In all other respects,
Duncan, SMI and TR&L concur in the relief sought by the Trustee.
Dated this 1st day of September, 2021.

No. 2:19-bk-00787    Doc 391    Filed 09/01/21    Entered 09/01/21 17:16:49    Page 2 of 4

SMI, LLC, TR&L, LLC, and

ROY BAKER DUNCAN, II

By Counsel,

/s/ Kathy M. Santa Barbara

Kathy M. Santa Barbara (WVSB
#5960)
THE LAW OFFICE OF KATHY M.
SANTA BARBARA, PLLC
518 West Stephen Street
Martinsburg, WV 25401
Telephone: (304) 264-0000
Email:  Kathy@ksblawofc.com

No. 2:19-bk-00787    Doc 391    Filed 09/01/21    Entered 09/01/21 17:16:49    Page 3 of 4

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing RESPONSE OF SMI, LLC, TR&L,
LLC, AND ROY BAKER DUNCAN II TO OBJECTION OF TRUSTEE TO PROOF OF
CLAIM NO. 5 FILED BY THE SHERIFF OF HARDY COUNTY was filed and served via the
Court’s CM/ECF system on this the 1st day of September, 2021.

/s/ Kathy M. Santa Barbara

Kathy M. Santa Barbara (WVSB #5960)

No. 2:19-bk-00787    Doc 391    Filed 09/01/21    Entered 09/01/21 17:16:49    Page 4 of 4

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