UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAR E IN RE: MERVYN S HOLDINGS, LLC, et al. DEBTORS.

) ) ) ) ) ) ) Chapter 11 Case No. 08-11586 (KG) Jointly Administered

MOTION OF TANYA CREATIONS, INC. FOR ALLOWANCE OF LATE FILED CLAIM Tanya Creations, Inc. ( Movant ), by and through the undersigned counsel and pursuant to 11 U.S.C. 501 and Fed. R. Bankr. P. 3003(c)(3) and 9006(b)(1), files this motion for leave to allow an administrative proof of claim after the expiration of the Bar Date (the Motion ). In support of this Motion, Movant respectfully represents as follows: . 1. BACKGROUND

On July 29, 2008 (the Petition Date ), the above-captioned Debtor ( Debtor )

filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code ). 2. Pursuant to 1107 and 1108 of the Bankruptcy Code, the Debtors are continuing

to operate their businesses and manage their properties and assets as debtors in possession. 3. Movant supplied specialty goods to Debtors both pre and post-petition. During the

post-petition period 8/8/2008-10/15/2008 Debtors placed orders for $227,183.45 of goods with Movant that were filled by Movant during this post-petition period and which were received by Debtors during the period 8/18/2008-10/22/2008. A summary of the invoices including the invoice number, order date, ship date, order number, PO Number and Mervyn s received date is

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0811586090520000000000007

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attached hereto as Exhibit A and is incorporated herein by reference. 4. On or about December 2, 2008, the Court entered its Order establishing

February 2, 2009 as the deadline to file a proof of claim ( Proof of Claim ) against any of the Debtors (the Bar Date ). The Bar Date Order appears to include both 503(b)(9) claims as well as post-petition claims that were incurred prior to November 30, 2008. Recently, Debtors have sought to set a Second Administrative Bar Date for claims arising during the period November 30, 2008 to April 30, 2009. II. 5. JURISDICT ION

This Court has Jurisdiction over this cause pursuant to 28 U.S.C. 1344 and

157. The matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(o). Venue is proper in this District pursuant to 28 U.S.C. 1408.

III. 6.

EXTENSION OF BAR DATE AND ALLOWANCE OF CLAIM Movant seeks to have its administrative claim allowed as timely filed after the

expiration of the Bar Date pursuant to Fed. R. Bankr. P. 3003(c)(3) and 9006(b)(1). 7. Moreover, the period for filing a claim should be enlarged under Bankruptcy Rule

9006. Pursuant to Rule 9006(b)(1), the Court can enlarge the time for filing a proof of claim where the failure to act was the result of excusable neglect . See e.g., Pioneer Inv. Servs. Corp. v. Brunswick Assoc. Ltd. P ship, 507 U.S. 380, 113 S.Ct. 1489 (1993) (finding counsel s failure to file a proof of claim before the bar date was attributable to excusable neglect partly due to the fact that the notice of claims bar date was not prominently announced and accompanied by an explanation of its significance.) Movants respectfully submit that Debtors failure to provide the requisite statutory notice justifies the allowance of these late filed claims as a simple, faultless

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omission which qualifies as excusable neglect. See Pioneer, 507 U.S. at 388; see also In re Spring Ford Indus., Inc., 2003 WL 21785960, at *2 (Bankr. E.D.Pa. July 25, 2003) (noting that Claimants have no duty to inquire about what is procedurally required of them but rather may assume that they will receive effective notice). 8. In Pioneer, the United States Supreme Court held that the following

circumstances should be weighed: (1) the danger of prejudice to the debtor; (2) the length of delay and any potential impact on the proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith. 507 U.S. at 395. 9. Applying the foregoing Pioneer factors to the present case, the balance of equities

weighs in favor of granting Movants requested relief. 10. First, there is no danger of prejudice to the Debtors because Debtors ordered,

received, and sold the goods ordered from the Movant during the post-petition period. All activity was post-petition and fully benefitted the post-petition Debtors estate. In addition, although confirmation of a plan of reorganization would not moot this argument, the fact that the plan has not yet been filed, let alone confirmed further diminishes the possibility of prejudice to the Debtors. See e.g., In re Eagle-Picher Indus., 158 B.R. 713 (Bankr. S.D. Ohio 1993) (no prejudice or delay where reorganization plan has neither been proposed nor confirmed); and see Grand Union, 204 B.R. at 871 (noting that claimant who is not given reasonable notice cannot be bound by the legal effects of confirmation). On the contrary, if Movants are not allowed to file their claim, they will be unfairly prejudiced by the improper discharge of their rights. 11. Second, the length of delay since the bar date is not material and allowance of a

late filed claim will not hinder the bankruptcy proceedings. Furthermore, the Debtors have

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recently filed a Second Motion to set order establishing bar dates for post-petition claims, so the scope of Debtors post petition liability for administrative claims is still being determined. 12. Finally, Movant has, at all times, acted in good faith and has acted in an

expeditious manner to make known to Debtors their intent to proceed. In addition, Movant, through counsel, has attempted to resolve this matter consensually through calls to counsel and emails to counsel, however those efforts have been unsuccessful to date. 13. Based on the foregoing reasons, Movant should not be sanctioned for failure to

timely file its post-petition claim that has benefitted the Debtors post petition estate and the claim in the amount of $227,183.45 should be allowed as an administrative post-petition claim. WHEREFORE, Movants respectfully request that the Court enter granting Movant leave to file a proof of claim after the claims Bar Date and granting allowance of Movant s claim as a post-petition administrative claim in the amount of $227,183.45 and for such other and further relief as the Court deems just and appropriate. Dated May 20, 2009 MONZACK MERSKY MCLAUGHLIN AND BROWDER, P.A /s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 North Orange Street, Suite 400 Wilmington, Delaware 19801 Tel: (302) 656-8162 Fax: (302) 656-2769 E-mail: [email protected] ATTORNEY FOR TANYA CREATIONS, INC.

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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAR E IN RE: MERVYN S HOLDINGS, LLC, et al. DEBTORS. ) ) ) ) ) ) ) Chapter 11 Case No. 08-11586 (KG) Jointly Administered
Objections Due: June 17, 2009 at 4:00 p.m. Hearing Date: June 25, 2009 at 2:00 p.m.

NOTICE OF MOTION TO: Counsel to Debtors, Counsel to the Official Committee of Unsecured Creditors, Counsel to Lenders and the Office of the United States Trustee.

Tanya Creations, Inc. has filed the Motion of Tanya Creations, Inc. for Allowance of Late Filed Claim (the Motion ) which seeks an order allowing an administrative claim as set forth in the Motion which claim is sought to be entered after the established proof of claim deadline. Any responses or objections thereto must be filed on or before June 17, 2009 at 4:00 p.m. At the same time, you must also serve a copy of the response upon the following: MONZACK MERSKY McLAUGHLIN AND BROWDER, P.A. Rachel B. Mersky, Esquire 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Telephone: (302) 656-8162 Facsimile: (302) 656-2769 Email: [email protected] If any responses or objections are timely filed, a hearing on this matter will be held on June 25, 2009 at 2:00 p.m.

IF YOU FAIL TO RESPOND IN ACCORDANCE WITH THIS NOTICE, THE COURT MAY GRANT THE RELIEF DEMANDED BY THE MOTION WITHOUT FURTHER NOTICE OR HEARING.

Dated: May 20, 2009

MONZACK MERSKY McLAUGHLIN AND BROWDER, P.A.

/s/ Rachel B. Mersky Rachel B. Mersky (DE #2049) 1201 N. Orange Street, Suite 400 Wilmington, DE 19801 Tel: (302) 656-8162 Fax: (302) 656-2769 Email: [email protected] Attorneys for Tanya Creations, Inc.

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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAR E IN RE: MERVYN S HOLDINGS, LLC, et al. DEBTORS. ) ) ) ) ) ) ) Chapter 11 Case No. 08-11586 (KG) Jointly Administered Related to Docket No. _____

ORDER ON MOTION OF TANYA CREATIONS, INC. FOR ALLOWANCE OF LATE FILED CLAIM Upon the Motion of Tanya Creations, Inc. for Allowance of Late Filed Claim, (the Motion ), and it appearing that this Court has jurisdiction over this matter; and it appearing that notice of the Motion as set forth therein is sufficient, and that no other or further notice need be provided; and it further appearing that the relief requested in the Motion is in the best interest of the Parties; and upon all of the proceedings had before the Court; and after due deliberation and sufficient cause appearing therefore, it is hereby ORDERED that the Motion is granted; and, it is further ORDERED that Tanya Creations, Inc. shall be granted an allowed administrative claim in the amount of $227,183.45; and, it is further ORDERED that this Court shall, and hereby does, retain jurisdiction with respect to all matters arising from or in relation to the implementation of this Order. Dated: _________________, 2009 Wilmington, DE

The Honorable Kevin Gross

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UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWAR E IN RE: MERVYN S HOLDINGS, LLC, et al. DEBTORS. ) ) ) ) ) ) ) Chapter 11 Case No. 08-11586 (KG) Jointly Administered

CERTIFICATE OF SERVICE
I, Shelley A. Losito, certify that I am not less than 18 years of age, and that I caused service of the Motion of Tanya Creations, Inc. for Allowance of Late Filed Claim to be made on May 20, 2009 upon all parties shown below list via hand delivery upon those parties located in Wilmington, Delaware and via first class mail upon all other parties. Mark D. Collins, Esquire Daniel J. DeFranceschi, Esquire Christopher M. Samis, Esquire RICHARDS, LAYTON & FINGER, PA One Rodney Square 920 N. King Street Wilmington, DE 19801 Counsel to Debtors Jonathan N. Helfat, Esquire Daniel F. Fiorillo, Esquire OTTERBOURG, STEINDLER, HOUSTON & ROSEN, P.C. 230 Park Avenue New York, NY 10169-0075 Counsel for Agent Robert Sussman, Esquire Cathy Hershcopf, Esquire COOLEY GODWARD KRONISH LLP The Grace Building 1114 Avenue of the Americas New York, NY 10036-7998 Counsel to the Official Committee of Unsecured Creditors Howard S. Beltzer, Esquire Wendy S. Walker, Esquire MORGAN LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178-0060 Counsel to Debtors

Paul M. Basta, Esquire Joshua A. Sussberg, Esquire KIRKLAND & ELLIS LLP 153 East 53rd Street New York, NY 10022 Counsel to Subordinated Note Agent

William P. Bowden, Esquire Amanda M. Winfree, Esquire ASHBY & GEDDES, PA 500 Delaware Avenue, 8th Floor Wilmington, DE 19801 Counsel to the Official Committee of Unsecured Creditors

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Office of the United States Trustee Jane Leamy, Esquire 844 King Street, Suite 2207 Lockbox 35 Wilmington, DE 19801

I further certify that the foregoing was also served electronically on the CM/ECF System.

Date: May 20, 2009

/s/ Shelley A. Losito Shelley A. Losito, Paralegal

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