If you received payroll checks through Axium that were not honored when Axium filed for Bankruptcy in January, 2008, and if you have not otherwise been paid in full for any such amounts owed by your signatory producer that used Axium as its payroll house, then you should file a Proof of Claim with the Bankruptcy Court. All such Proofs of Claim must be received by August 15, 2008; failure to file a timely proof of claim will prevent you from recovering any money from the bankruptcy process.
A "proof of claim" is the document required to state any claim you may have against Axium. If you do not file a proof of claim and the Debtors have not scheduled you as a creditor, you will not get any payment through the bankruptcy. If a Debtor has scheduled your claim, but not in an amount you believe to be correct, you will not get credit for the correct amount unless you file a proof of claim.
That said, the economics of the Axium bankruptcy appear quite dismal at this time, and even if you file a proof of claim, it is likely that any payment to you will be no more than a small fraction of your claim. Also, your Guild is pursuing producers that payrolled checks through Axium, asserting that Axium's failure does not excuse producer obligations to members. But if you want to maintain your rights against Axium through the bankruptcy process, a proof of claim may be necessary.
Unfortunately, the Guild is not in a position to file bankruptcy proofs of claim for you because the Guild is not in "contractual privity" with Axium. Stated simply, because the collective bargaining relationship is between the Guild and the signatory producer (and not Axium directly), the Guild does not have standing to file such claims on your behalf.
You may therefore want to consult your own attorney concerning your rights and remedies, but we offer the following general information concerning the claims process, and urge you to carefully read and follow the instructions issued with the Proof of Claim.
First, if you have not already been sent a Proof of Claim form by the Bankruptcy Court, Please proceed to the following website, maintained for Howard Ehrenberg, Esq., who is the Chapter 7 Trustee responsible for Axium's affairs:
Along the top you will see a button entitled "Proof of Claim Form," from which you can download a Proof of Claim and instructions for filing.
The instructions are straightforward, but some additional helpful information follows:
A. There are 37 separate "Debtors" - individual companies that were part of the Axium family of companies. The Proof of Claim must indicate the specific Debtor entity against which your claim lies. This will generally be the entity that was the Payor, identified in the upper-left-hand corner of your dishonored check. If you have checks from more than one Axium entity, you will need to file separate proofs of claim against each, in the amount owed you by each.
B. You will want to attach a copy of all unpaid checks issued by Axium entities.
C. We recommend you attach a summary providing further details concerning your claim. Such information may include identifying the project relating to your unpaid check and the production entity that hired you. We further recommend you add a sentence along the following lines: "This Proof of Claim shall not waive any corresponding claims of claimant against a producer-client of Axium, or against any other non-Axium entity liable to claimant."
D. In bankruptcy, "priority" claims are more likely to be paid than others, and Section 5 of the Proof of Claim allows you to claim priority for "wages, salaries and commissions (up to $10,950) earned with 180 days before filing of the bankruptcy petition..." If your unpaid check relates to services provided within 180 days prior to Axium's bankruptcy filing on January 8, 2008, the first $10,950 of your claims earned within that time period may be entitled to priority, and you will want to fill in Section 5 with that amount. However, we also expect that the Debtors will challenge priority claims when an Axium entity functioned as a payroll agent for a signatory producer. If you make a claim for priority wages, you may want to add a statement to the effect of "If disallowed as priority claims, all amounts for which priority is claimed are general unsecured claims."
E. To the extent your claim has been paid down by a producer, you need to credit that payment accordingly.
F. The Proof of Claim provides instructions on how it should be filed with the Bankruptcy Court; please follow those instructions carefully, and we recommend you take the steps described so as to get a return copy of your filed claim from the Court.
If you have any questions for your Guild, please contact the Axium Bankruptcy hotline at (323) 549-6450.
If you have any questions concerning the bankruptcy or the claims process, we recommend contacting the Chapter 7 Trustee: Hehrenberg@sulmeyerlaw.com
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