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chapter 11 of the Bankruptcy Code. Early in the bankruptcy case
(stock interest in WMB) without just compensation; (4) conversion
WMB debt security holders (the “WMB Noteholders”) were permitted
(Ex. D-42.) JPMC filed a motion to dismiss the Debtors’
2009. (Ex. D-45.) JPMC sought leave to appeal that ruling,
2009. (Ex. D-49.) JPMC filed an answer, counterclaim and a
(Ex. D-69.) The Debtors filed a second motion under Rule 2004
Agreement to have JPMC transfer the Deposit Accounts back to the
FDIC (to allow the FDIC to set off against them claims it asserts
Court to consider the Debtors’ Summary Judgment Motion with the
FDIC’s Motion; oral argument on the motions was continued several
Settlement”). (Kosturos Decl. at ¶ 36.) The Global Settlement
$150 million) to WMB Senior Noteholders and WMB Subordinated
TPS will go to JPMC free of all claims under the Global
Defendants’ motions and denied the TPS Holders’ motion for
LTW Adversary. The motion was briefed and oral argument was held
Committee of Equity Security Holders (the “Equity Committee”)
Appointment of an Examiner Pursuant to Section 1104(c) of the
Bankruptcy Code (the “Initial Examiner Motion”). (D.I. # 3579.)
With the release under the Global Settlement of substantial
75 (Bankr. S.D.N.Y. 2010) (denying retention application of
Accounts held at JPMC and vigorously defended the JPMC Adversary
9019 of the Federal Rules of Bankruptcy Procedure is committed to
(Bankr. D. Del. 2005) (finding that pursuant to Bankruptcy Rule
(3d Cir. 2006). Because the Plan Objectors contend that they are
Court should conduct an auction of the Anchor Litigation because
Court believes that the interests of the LTW Holders can be
D. Del. June 2, 2009) (finding the debtors provided “little
Plan Supporters in this case to determine whether the Global
WMB that was in bank accounts in the Debtors’ name. The Debtors
2009) (“In line with the broad definition of ‘property of the
U.S.C. § 541(a)(1) (property of the estate includes “all legal or
Deposit Accounts are property of the Debtors’ estate should not
53.) In support of its response to the Debtors’ summary judgment
(Kosturos Decl. at ¶ 54.) The Debtors disputed this and argued
WMB had against WMI under the P&A Agreement. (Kosturos Decl. at
section 9.5 of the P&A Agreement. (Id. at ¶ 60.) The Debtors
Deposit Accounts totaling almost $4 billion. The Court concludes
Sharing Agreement for any amounts attributable to WMB’s losses
Sharing Agreement among WMI and its affiliates required WMI to
WMI for WMB’s share of the tax refunds which was almost the
Objectors contend that JPMC would not be entitled to the bulk of
Opinion the Court concludes that because the Conditional Exchange
Section 363(f) provides in relevant part:
Assignment Agreement. (Smith Decl. at ¶ 17.) As noted in the
Section 546(e) provides in relevant part:
WMB before the Debtors filed bankruptcy may be avoided as
Section 365(o) provides in relevant part:
FDIC would have a corresponding claim (potentially
Debtors took the position that the trademarks were owned by WMI
Pension Plan at the direction of WMI. (Id. at ¶ 27.) As the
JPMC also sought damages from WMI to the extent that the value of
Supporters contend that the Global Settlement treatment is
WMB on its books and records and WMB was the successor to the
WMI/WMB records. (Goulding Decl. at ¶ 55.) There appears to be
JPMC began to administer and pay the claims under that plan of
995 split dollar policies. (Id.) JPMC contended that those
Pacific Life policies and JPMC will keep the split dollar
Inc. (“Visa”). (Goulding Decl. at ¶ 62.) Those shares had been
WMI asserted that it was the owner because the shares were
Providian Financial Corporation which later merged into WMI
Visa shares and the strategic agreement to JPMC for $25 million
(Id. at ¶¶ 76 & 81.) JPMC will assume all indemnification
Debtors’ business but are used only in WMB’s operations. (Id. at
Recovery and Enforcement Act of 1989 (“FIRREA”). (Goulding Decl
WMI. (Goulding Decl. at ¶ 93 & n.37; D.I. # 542.) That motion
LTW Holders are entitled to common stock of WMI upon a trigger
11 U.S.C. § 510(b). The term “security” is defined to include a
JPMC over the Goodwill Litigation is not reasonable. They note
JPMC the Anchor Litigation (which is worth more than $419
Section 548(c) provides:
202-04 (Bankr. D.N.J. 2006) (holding that a good faith defense
Plaintiffs”) filed an action against JPMC in state court in
Court on motion of JPMC and the FDIC Receiver as intervening
Business Tort Claims which are similar to the various claims
F.3d 1394, 1399 (D.C. Cir. 1995) (finding that anyone bringing a
ANICO Plaintiffs. This issue is addressed in Part
Receiver contend that any derivative claim that WMI may have for
1821(d)(2)(A)(i) (providing that the FDIC as receiver “succeeds
Plan Objectors contend that the Business Tort Claims are valid
There is a question whether the Business Tort Claims were
Decl. at ¶ 30.) The Plan Supporters contend that the litigation
(Ex. D-5C.) They also note that the creditors will be paid
Objectors argue that the Global Settlement must be rejected as
Plan (and the Global Settlement) are excessively broad and not
section 43.5 to the Debtors only. Any releases by non-debtors
JPMC and the FDIC in releasing claims and resolving litigation as
FDIC by the Debtors (and derivatively by third parties) relating
Accounts and portions of the Tax Refunds) and by waiving the
JPMC and the FDIC have to virtually every asset in the Debtors’
FDIC contained in the Global Settlement and given the numerous
Global Settlement. The total payout under the Plan is expected
Liquidating Trust and Trustee from any and all claims. (Ex. D-2
Claims and Causes of Action relating to the period prior to the
There is quite simply no basis for the Debtors’ releases of their
section 43.5 of the Plan, certain parties are getting an
Investment Committee of the WaMu Savings Plan. The Court finds
F.3d at 246. The Third Circuit reasoned that such a provision
(Ex. D-2 at § 43.8.) The October 29 modification of the Plan
Agreement to protect the interests of the LTW Holders. Because
First Nat’l Bank and Trust Co. of Tulsa (In re W. Real Estate
145 (Bankr. D. Del. 2010) (finding improper releases of third
Entities and that Released Parties would not include Related
section 43.6 of the Plan, the Plan currently provides that the
Confirmation Order to remedy deficiencies in the Plan or to deal
JPMC related to the Debtors. The ANICO Plaintiffs objected to
Global Settlement by the ANICO Plaintiffs of their direct claims
Debtors file in the ANICO Litigation must expressly state that
Settlement and the Plan. Those activities are nothing more than
Related Persons. Nor is there any evidence of what contribution
The UST contends that this violates section 1123(a)(4) of the
Code and the “fundamental bankruptcy policy of ‘equality of
section 11 23(a)(4)
Noteholders’ claims and the Senior Subordinated Noteholders’
344. The Plan Supporters argue that they have met this
section 726 permit the payment of interest on other unsecured
U.S.C. § 726(a). The priority of distributions established under
730 (Bankr. D. Del. 2002) (subordinating fraudulent transfer and
1999) (“Dow I”) (determining that the phrase “interest at the
II”) (finding that a creditor of a solvent bankruptcy estate must
chapter 7 trustee in a hypothetical liquidation in comparison
Thoma is the holder of a PIERS claim which is less than the $2
Reorganized Debtor. (Ex. D-2 at §§ 20.4 & 34.1.) Mr. Thoma
Section 1123(a)(4) provides that “a plan shall - . . . (4)
Reorganized Debtor (each can buy stock based on its percentage of
11/30/2010 at Ex. A.) The Debtors presented testimony that the
Reorganized Debtor to be held by the PIERS Claimants exceeds the
PIERS’ warrants have not been exercised and they currently do not
Class 19 (REIT Holders) because the latter are receiving
D. Del. 2006) (finding that a secured creditor’s gift to a junior
510(b). A hearing on the objection as it relates to the WMB
Section 510(b) provides, in relevant part:
Noteholders have a claim against WMB based on their debt
Trustee is not performing. The Court agrees with the Equity
(Hr’g Tr. 12/2/2010 at 152-54; D.I. # 6188.) The Settlement
Supporters note that the Plan has a mechanism to change the Board
Court agrees with the Plan Objectors that there should be some
Mary F. Walrath
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DIMEQ Court Decision - Summary Judgment Denial

DIMEQ Court Decision - Summary Judgment Denial

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Published by: traviscocke on Jan 29, 2011
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