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Exactly, and the price that one needs to pay to allow that to happen. It doesn't translate to $10 on an immediate basis, but, remains more or less the same acknowledging success and reflecting a premium on that
Agree with you when utilized. 1 cent saving through NOLs can have a ripple effect of 20 times over on the eps . BK experts prior to reorganisation valued it at 200 max approx.
I really don't understand any of this,so, take it as a grain of salt
I see shortcomings in FDC. KKR didn't see gold in the shell, but, something unique that could play in well to manage some of the risk associated with high debt financing, competition... NOLs fits in well to mitigate some of that. So, why expect WMIH to be something more than what its worth. The experts valued NOLs at 200 million. Were they all dumb. The price is a reflection of that imo. :)
I am not a paid member, so, had no choice, but, to send you a public message. Your beautiful word definitely made it worth the attempt. My humble request to preserve it for someone more deserving as I am nobody. Once again thank you. :)
And, "Yes", I am counting on FDC still for the news we all have been waiting for in addition to a merger with a reinsurance company. Price is close enough and their results are expected on Feb 9th.
Also, take his opportunity to thank Investorhub,upperlippy Altini, Donotunderstand, BKshadow and others :)
Here is mine, in the true spirit of full disclosure (you wish), An Update of “Nothingness”.
In all, I had sent about 25+ emails to just about anybody who was/is associated with, or, represented equity committee/creditors committee/SNHs... I reached out to about 20 odd people from the crowd over the phone. Most of them were not reachable. Some had moved on, others had resigned, and the one’s who did pick up the phone raised the Attorney-Client privilege/conflict/confidentiality clause. As if, I want to know, or, care a damn. I only wish I could call Shiela and, if nothing more, could give her my piece of mind, I mean “man to man love”.
All in all, it was “Meaningful” to explore, though, in this endeavor, I was truly missing, looking forward and searching for my true “Messiah”, my good friend Mike. Hope he is there somewhere reading, listening and paying attention.
Talk about motivation, here I am getting calls for a job, and, what am I doing; writing about my lost love with Wamu. I guess they can wait, as I’m not sure if I want to work. But, who gives a crap. I know, I know, just sharing. I think, I need to find myself a woman to set my priorities right. :)
Enough of this bs, can we get down to business please
So, my first call was to Rosen. This was my high and low point of the day. Never in my imagination did I foresee talking to Rosen and here he was talking to me. Point to be noted, “Your Honor”. Deekshant, doesn’t have his mom’s number saved in his contacts, but, he made a point to save Rosen’s number on the top of his list of personal contacts.
My experience was similar to Catz’s Famous, Infamous, Golden Secret, Private, Virtual, Firm... Handshake. Guys, it’s just a “Handshake”. Nothing more, Nothing less. Thanks to the msg. board for a very conclusive, definitive search result. Yeaaaaaah, it works! Rosen shot me down at the very instance. He asked me, why do I need a written reply. I didn’t have an answer. And, I didn’t want to tell him that there is a dog fight going on out here, for which, I needed a bait to influence the outcome. For a guy like me, what are the odds of winning against the bull. I think I was destined to fail and so was the performance. You know what they say, do your homework and come prepared. I regained my composure and did try to seek clarification knowing fully well that this conversation could end any sec. The communication went like this. I asked him about X, he interpreted as Y, and the Z reply was no where close to the question X. A true "Perfectionist". The truth is, the question “X”, interpretation “Y” and answer “Z” lacked specificity when compared to what was being asked in the email. He was not willing to refer to the email for context and, given the constraint, I didn't have the opportunity to read out the question to him in time.
As a follow up, I did send an email back to him stating just that
“Dear Mr. Rosen, Thank you for taking the call. Appreciate your willingness to help. In regards to our conversation regarding WMI Liquidating Trust, because of not being proficient to the extent desired, there was a communication gap. I was not able to put it across clearly. And, as a result, it was interpreted differently or I was not able to follow you completely.
Sir, ...I have tried my level best to be very very specific in respect of what clarification I am seeking. It will be great if you could take a look and help clarify”
Other than Rosen, my other “significant” conversation was with Edgar. IMO, he is your best “Lawyer” pal with one exception, don’t ask him anything about Wamu. Not completely true, but, he is strictly confined to making sure the “unequivocal and unambitious answer” is no where obvious. Unlike others, he is very forthcoming and friendly. I was able to send him across the questions over the email while on phone. He stopped short of an answer that would have rendered some value. Key highlights were, to derive an understanding from “The Plan” itself. If something is stated clearly within the plan, then, what’s given is not clear enough or what. Couldn’t tell him, that was the point I am here to prove with respect to “Released Claims”
provided, however,that “Released Claims” does not include...
(2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and
To cut it short, he ended the conversation saying that Sussman Godfrey doesn’t have any current engagement with WMI Liquidating Trust. His awareness is from the past and not present, as, he is no longer on the case. And, that, he would need to spend couple of hours to review and still be not able to say anything because of conflict of interest…
WTF, you made us read all this for nothing. Don’t worry, the surprise has yet to come.
Finally, I got my surprise from Chad Smith in a simple acknowledgement that overshadowed any value rendered in my conversation with the significant others.
He said, “Thank you for your email. We are reviewing the content. Thanks again.”
I can make few more calls, but, I am not going to. I am at a point, where I think, the communication has been streamlined which was the very purpose for the calls to elicit a response So, here is a “Salute to All”, while we wait.
ENJOY, AND THANKS FOR READING :)
Do what you may with the disclosure adjoined with a disclaimer. Here is mine stating, “ I’am not good at this. Thought, will try to soothe the palette for a change.”
(a) any and all WMI Released Claims, JPMC Released Claims, FDIC Released Claims, Settlement Note Released Claims and Creditors’ Committee Released Claims,
(b) claims or causes of action that arise in, relate to or have been or could have been asserted (i) in the Chapter 11 Cases, the Receivership or the Related Actions, or (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims or holders of Equity Interests relating to Equity Interests, as the case may be, they have against the Debtors (with respect to releases given by Creditors or holders of Equity Interests, as the case may be), and
(c) claims that otherwise arise from or relate to the Receivership, the Purchase and Assumption Agreement, the 363 Sale and Settlement, the Plan, this Agreement, and the negotiations and compromises set forth in this Agreement and the Plan, including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,the assets to be received by JPMC pursuant to this Agreement, the Debtors’ Claims, the JPMC Claims, the FDIC Claim, the WMI/WMB Intercompany Claims, any intercompany claims on the books of WMI or WMB related to the WaMu Pension Plan or the Lakeview Plan, or the Trust Preferred Securities (including, without limitation, the creation of the Trust Preferred Securities, the financing associated therewith, the requested assignment of the Trust Preferred Securities by the Office of Thrift Supervision and the transfer and the asserted assignment of the Trust Preferred Securities subsequent thereto);
provided, however,that “Released Claims” does not include
(1) any and all claims that the JPMC Entities, the Receivership, the FDIC Receiver and the FDIC Corporate are entitled to assert against each other or any other defenses thereto pursuant to the Purchase and Assumption Agreement, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement,
(2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and
(3) any avoidance action or claim objection regarding an Excluded Party or the WMI Entities, WMB, each of the Debtors’ estates, the Reorganized Debtors and their respective Related Persons; and, provided, further, that “Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. "
SUMMARY OF THE BREAK DOWN STRUCTURE OF "RELEASED CLAIMS"
(a) any and all WMI Released Claims, JPMC Released Claims, FDIC Released Claims, Settlement Note Released Claims and Creditors’ Committee Released Claims,
MEANS(a) any and all WMI, JPMC, FDIC, SNs Released Claims,
(b) claims or causes of action that arise in, relate to or have been or could have been asserted (i) in the Chapter 11 Cases, the Receivership or the Related Actions, or (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims or holders of Equity Interests relating to Equity Interests, as the case may be, they have against the Debtors (with respect to releases given by Creditors or holders of Equity Interests, as the case may be), and
MEANS(b) claims or causes of action that arise in, relate to... (i) Chapter 11 Bankruptcy and the Receivership or... (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims ...they have against the Debtors (with respect to releases given by Creditors...), and
(c) claims that otherwise arise from or relate to the Receivership, the Purchase and Assumption Agreement, the 363 Sale and Settlement, the Plan, this Agreement, and the negotiations and compromises set forth in this Agreement and the Plan, including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,the assets to be received by JPMC pursuant to this Agreement, the Debtors’ Claims, the JPMC Claims, the FDIC Claim, the WMI/WMB Intercompany Claims, any intercompany claims on the books of WMI or WMB related to the WaMu Pension Plan or the Lakeview Plan, or the Trust Preferred Securities (including, without limitation, the creation of the Trust Preferred Securities, the financing associated therewith, the requested assignment of the Trust Preferred Securities by the Office of Thrift Supervision and the transfer and the asserted assignment of the Trust Preferred Securities subsequent thereto);
MEANS(c) claims that otherwise arise from or relate to the Receivership, the P&A, ..., the Plan, this Agreement, ... including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,...;
PROVIDED, HOWEVER,THAT "RELEASED CLAIMS" DOES NOT INCLUDE
(1) any and all claims that the JPMC Entities, the Receivership, the FDIC Receiver and the FDIC Corporate are entitled to assert against each other or any other defenses thereto pursuant to the Purchase and Assumption Agreement, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement,
MEANS(1) any and all claims/defenses that the JPMC,FDIC Corporate/Receiver are entitled to assert against each other...pursuant to the P&A, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement,
(2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and
MEANS(2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and
(3) any avoidance action or claim objection regarding an Excluded Party or the WMI Entities, WMB, each of the Debtors’ estates, the Reorganized Debtors and their respective Related Persons; and, provided, further, that “Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. "
MEANS(3) ...“Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. "
Part 1: Clarification sought from LT-General_Counsel on "Released Claims"
In re:
WASHINGTON MUTUAL INC., et al. (WMI)
Chapter 11 Case Number 08-12229 (MFW)
(Jointly Administered)
Debtors
Attention: General Counsel and Attorneys to WMI Liquidating Trust 800 Fifth Avenue, Suite 4100, Seattle, Washington 98104
Dear Sir, I am a shareholder who has been involved in this case since inception and has been issued beneficial interests in the WMI Liquidating Trust. Since you have served or are serving on the liquidating trust, I come to you to seek help and clarification.
1)Refer to the section on “Released Claims” under the (‘‘SECOND AMENDED AND RESTATED SETTLEMENT AGREEMENT’ p.14) within ‘FINDINGS OF FACTS, CONCLUSIONS OF LAW, AND ORDER CONFIRMING THE SEVENTH AMENDED JOINT PLAN OF AFFILIATED DEBTORS PURSUANT TO CHAPTER II OF THE UNITED STATES BANKRUPTCY CODE (www.kccllc.net/wamu/document/0812229120224000000000001, p.361) and confirm that WMI Liquidating Trust as Successor-in-Interest of Washington Mutual, Inc. and WMI Investment Corp is entitled to assert and has not intended to have given releases, nor shall it have the effect of releasing any and all claims held by entities against the Receivership and the FDIC Receiver solely with respect to the Receivership.
"“Released Claims” shall mean, collectively,(a) any and all WMI Released Claims, JPMC Released Claims, FDIC Released Claims, Settlement Note Released Claims and Creditors’ Committee Released Claims, (b) claims or causes of action that arise in, relate to or have been or could have been asserted (i) in the Chapter 11 Cases, the Receivership or the Related Actions, or (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims or holders of Equity Interests relating to Equity Interests, as the case may be, they have against the Debtors (with respect to releases given by Creditors or holders of Equity Interests, as the case may be), and (c) claims that otherwise arise from or relate to the Receivership, the Purchase and Assumption Agreement, the 363 Sale and Settlement, the Plan, this Agreement, and the negotiations and compromises set forth in this Agreement and the Plan, including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,the assets to be received by JPMC pursuant to this Agreement, the Debtors’ Claims, the JPMC Claims, the FDIC Claim, the WMI/WMB Intercompany Claims, any intercompany claims on the books of WMI or WMB related to the WaMu Pension Plan or the Lakeview Plan, or the Trust Preferred Securities (including, without limitation, the creation of the Trust Preferred Securities, the financing associated therewith, the requested assignment of the Trust Preferred Securities by the Office of Thrift Supervision and the transfer and the asserted assignment of the Trust Preferred Securities subsequent thereto); provided, however,that “Released Claims” does not include (1) any and all claims that the JPMC Entities, the Receivership, the FDIC Receiver and the FDIC Corporate are entitled to assert against each other or any other defenses thereto pursuant to the Purchase and Assumption Agreement, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement,(2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and (3) any avoidance action or claim objection regarding an Excluded Party or the WMI Entities, WMB, each of the Debtors’ estates, the Reorganized Debtors and their respective Related Persons; and, provided, further, that “Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. "
2)As per the Global Settlement Agreement and the terms and conditions stipulated within, can you please clarify if WMI Liquidating Trust as Successor-in-Interest of Washington Mutual, Inc. and WMI Investment Corp is allowed a Judicial/Administrative Review under 12 U.S.C. § 1821(d)(11)(B)(III) https://www.law.cornell.edu/uscode/text/12/1821
3) As per the ‘NOTICE REGARDING ABANDONMENT OF EQUITY INTERESTS IN WASHINGTON MUTUAL BANK’, Dated March 16, 2012, WMI Liquidating Trust as Successor-in-Interest of Washington Mutual, Inc. and WMI Investment Corp has not given releases to any claims asserted by WMI as a creditor of WMB against FDIC, in its capacity as receiver for WMB or in its corporate capacity, on account of WMI’s status as a creditor, and do not withdraw or release any rights under the Global Settlement Agreement including the ‘SECOND AMENDED AND RESTATED SETTLEMENT AGREEMENT’ http://www.sec.gov/Archives/edgar/containers/fix067/933136/000090951812000125/mm03-2312_8ke991.htm
"PLEASE TAKE NOTICE that, pursuant to the Order Authorizing Washington Mutual, Inc. to Abandon Its Equity Interests in Washington Mutual Bank, dated July 11, 2011 [D.I. 8135], and the Order Reaffirming Order Authorizing Washington Mutual, Inc. to Abandon Its Equity Interests in Washington Mutual Bank, dated September 19, 2011 [D.I. 8629] (collectively, the “Orders”), the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) (i) authorized Washington Mutual, Inc. (“WMI”) and its chapter 11 estate, upon the entry of an order confirming a chapter 11 plan in their chapter 11 cases, to abandon their equity interests in the outstanding stock (the “WMB Stock”) of Washington Mutual Bank (“WMB”), and (ii) established that, upon such abandonment, WMI and its chapter 11 estate shall automatically be deemed to have permanently surrendered and relinquished all of their right, title and interest to the WMB Stock, including any recovery rights and/or litigation claims with respect thereto; provided, however, that such abandonment shall not constitute a withdrawal or release of any claims asserted by WMI as a creditor of WMB against the Federal Deposit Insurance Corporation (the “FDIC”), in its capacity as receiver for WMB or in its corporate capacity, on account of WMI’s status as a creditor, and does not constitute a withdrawal or release of any rights under the Second Amended and Restated Settlement Agreement, dated as of February 7, 2011, among WMI, FDIC and the other signatories thereto (as amended, the “Global Settlement Agreement”)."
4) In re:
WMI Investment Corp. Case Number: 08-12228 (MFW)
Refer to 'GENERAL NOTES AND STATEMENT OF LIMITATIONS, METHODOLOGY AND DISCLAIMER REGARDING THE DEBTORS’ SCHEDULES AND SOFAS' (https://www.kccllc.net/wamu/document/0812229081219000000000009, p. 4) and clarify if WMI Liquidating Trust as Successor-in-Interest of Washington Mutual, Inc. and WMI Investment Corp possesses any contingent claims that could commence under the provisions of chapter 5 of the Bankruptcy Code and FIRREA (The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA))
"Contingent Assets/Causes of Action. The Debtors believe that they may possess certain claims and causes of action against various parties. Additionally, the Debtors may possess contingent claims in the form of various avoidance actions they could commence under the provisions of chapter 5 of the Bankruptcy Code and other relevant non-bankruptcy laws. The Debtors, despite reasonable efforts, may not have set forth all of their causes of action against third parties as assets in their Schedules and SOFAs. The Debtors reserve all of their rights with respect to any claims, causes of action, or avoidance actions they may have and nothing contained in these General Notes or the Schedules and SOFAs shall be deemed a waiver of any such claims, avoidance actions, or causes of action or in any way prejudice or impair the assertion of such claims. "
I am currently out of the country, so, will appreciate if a reply could be sent over the email. My details are given below
There are other indications in support. Please do follow the sequence ;) :) Thanks
1) Lehman's staff manages a portfolio of more than $10 billion in assets, including piles of cash and securities, interests in real estate and private equity investments, 2) Lehman's management can make investments if they determine it will likely benefit creditors.
3) Since exiting bankruptcy protection, the investment bank has remained in business, managing a large pool of assets and selling when it finds a good deal, rather than in a panic. This has resulted in greater-than-expected recovery for Lehman’s creditors.
4) In 2012, Lehman ponied up about $3 billion to buy two minority positions held by other banks in Archstone, an owner of apartment complexes, giving it full ownership. It later sold Archstone for $6.5 billion.
5) Lehman last year spent $151 million on private placement of stock in First Data.
6) Lehman provided financing in 2007 for the buyout of First Data, which was led by KKR & Co (KKR.N).
7) Lehman’s new board is run by executives and directors of businesses and subsidiaries related toDelphi Automotive PLC, Morgan Stanley, American International Group Inc. and Capmark Financial Group Inc., took over in 2012.
8) Mr. Gallagher was also appointed to serve as the Chief Executive Officer of the WMIH. Mr. Gallagher is currently an Executive Vice President and member of the board of directors at Capmark Financial Group Inc. (“Capmark”). Mr. Gallagher served as President and CEO of Capmark from February 2011 to November 2014. He was Executive Vice President and Chief Risk Officer of Capmark from March 2009 to February 2011.
Thomas L. Fairfield is anticipated to become a director upon consummation of the reincorporation, and has served as a consultant of WMIHC since November 21, 2014. It is also anticipated that Mr. Fairfield will be appointed to serve as the chief operating officer of the Company. Mr. Fairfield is currently an Executive Vice President and member of the board of directors at Capmark. Mr. Fairfield was Chief Operating Officer of Capmark from February 2011 to November 2014. From August 2013 to March 2014, Mr. Fairfield served as a director of The Cash Store Financial Services Inc. From March 2006 to February 2011, Mr. Fairfield served as Executive Vice President, Secretary and General Counsel of Capmark. Prior to joining Capmark, Mr. Fairfield was a partner at the law firm of Reed Smith LLP from September 2005 to March 2006 and prior to that at Paul, Hastings, Janofsky & Walker LLP from February 2000 to August 2005 and LeBoeuf, Lamb, Greene & MacRae, LLP, from January 1991 to February 2000, where his practice focused primarily on general corporate and securities law, mergers and acquisitions, corporate finance and financial services.
Tagar C. Olson is anticipated to become a director upon consummation of the reincorporation, and has served as an observer to the board since March 13, 2014. Mr. Olson is a Member of KKR. He joined KKR in 2002, and he currently serves as Head of KKR’s financial services industry team. Mr. Olson has played a significant role in KKR’s investment activity in the financial services sector over the past decade and currently sits on the boards of directors of Alliant Insurance Services, First Data Corporation, Santander Consumer USA, Sedgwick, Inc. and Visant Corporation and is involved with KKR’s investment in Nephila Capital Ltd. Prior to joining KKR, Mr. Olson was with Evercore Partners Inc. starting in 1999, where he was involved in a number of private equity transactions and mergers and acquisitions. Mr. Olson holds a B.S. and B.A.S., summa cum laude, from the University of Pennsylvania.
Quote: Muyuan51 it's not my intention to darken shadows, but if you have a closer look to the WaMu Asset Acceptance Corp.(WAAC) filing ABS-15G from 11/12/2015 you will see that you were mentioning the list of Total Assets in ABS by Originator (about $ 16 bil) instead of looking to the list Demand in dispute (about $ 12,1 bil) , whereof about $ 11,789 bil relate to WAMU Bank ... just sayin' ....
but as a nugget I'm citing from the WAAC ABS-15G from 11/12/2015:
"... (T)he information in this Form ABS-15G has not been verified by any third party.In addition, while we requested Reportable Information from trustees and other Demand Entities as to investor demands that occured prior to July 22, 2010, it is possible that this disclosure does not contain information about all investor demands upon those parties made prior to that date ...."
May be, I jumped in without knowing what the thread is all about as this is not what I did seek a clarification on. I agree to what you said, but, you didn't answer the question really. Sorry :)
Catz: More important though, is understanding what the "Safe harbor" process is for, and whom it protects, and why it was created in the first place.
Hint. Not WMB, Not WMI. Not WMILT.
Catz, I have not followed the thread, so, just posting based on your input. What has retained interest in securitized assets got to do with understanding the reason behind "Safe Harbor" definition. Is "Safe Harbor" not a part of Securitization. And, if its not WMB or WMI, then, can you explain how WMI/WMB has/had retained interest in them
The Company transforms loans into securities through a process known as securitization. When the Company securitizes loans, the loans are usually sold to a qualifying special-purpose entity ("QSPE"), typically a trust. The QSPE, in turn, issues securities, commonly referred to as asset-backed securities, which are secured by future cash flows on the sold loans. The QSPE sells the securities to investors, which entitle the investors to receive specified cash flows during the term of the security. The QSPE uses the proceeds from the sale of these securities to pay the Company for the loans sold to the QSPE. These QSPEs are not consolidated within the financial statements since they satisfy the criteria established by Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. In general, these criteria require the QSPE to be legally isolated from the transferor (the Company), be limited to permitted activities, and have defined limits on the types of assets it can hold and the permitted sales, exchanges or distributions of its assets.
When the Company sells or securitizes loans that it originated, it generally retains the right to service the loans and may retain senior, subordinated, residual, and other interests, all of which are considered retained interests in the sold or securitized assets. Retained interests in mortgage loan securitizations, excluding the rights to service such loans, were $1.71 billion at December 31, 2007, of which $1.56 billion are of investment grade quality. Retained interests in credit card securitizations were $1.84 billion at December 31, 2007, of which $426 million are of investment grade quality. Additional information concerning securitization transactions is included in Notes 7 and 8 to the Consolidated Financial Statements – "Securitizations" and "Mortgage Banking Activities." http://www.secinfo.com/dVut2.t21c.htm#1stPage
Quote: Hotmeat Nice reading deekshant....thanks!!! When this thread is over would you care to comment on post# 438002 by mordicai?
Quote: Mordicai I recently came across an FDIC memo written by the then Director of the Division of Resolutions and Receiverships concerning the Safe Harbor Rule which explains what "legal isolation" means. At page 6 speaking about the 2000 12 C.F.R. Sec 360.6 (which is applicable to the washington mutual bank case) it states "To satisfy the legal isolation condition, the transferred financial asset must have been presumptively placed beyond the reach of the transferor, its creditors, a bankruptcy trustee, or in the case of an IDI insured depository institution, the FDIC as conservator or receiver." www.kattenlaw.com/files/upload/FDIC_Memo_Safe_Harbor.pdf see also https://www.fdic.gov/regulations/laws/federal/00TreatFA.pdf[t][/t]
So the residential mortgage backed securities were not only put beyond the reach of the debtors bankruptcy estate but were also put beyond the reach of the FDIC as receiver for washington mutual bank. These securities were not part of the bankruptcy estate, so why or how would the liquidation trust end up with any of the residuals?Where in the plan does it provide the liquidation trust receives any non bankruptcy estate assets? Moreover, since legal isolation puts them beyond the reach of fdic as the receiver and thereby the creditors of the receivership, who ends up with any residuals. IMO it will be to the reorganized debtors free and clear of all liens maybe even fdic administrative costs. This explains why the rmbs are not accounted for in the recievership. It explains why the rmbs are not accounted for in the bankruptcy estate. It explains why the theory of buying liquidating trusts assets for stock is absurd despite the fact that the liquidating trust expressly prohibits it. And if you believe that substantial residuals exist, then the stock price of wmih is seriously undervalued by the market.
There are two aspects to be taken into consideration.
1) Perfect Vs Imperfect Security 2) Cash as against return of assets
imo, only an imperfect security allows return of an illiquid asset, but, that is not what is stated or is in question. So, I don’t believe in any return of assets other than a few falling in Imperfect security exception
Hypothetical Lien Creditor under Avoidance Actions (Perfect Vs Imperfect Securities) www.kirkland.com/siteFiles/kirkexp/publications/2416/Document1/Friedland%20-%20Overview%20of%20Avoidance%20Actions.pdf),
imo, Perfect security doesn’t lead to return of assets as it converts an illiquid asset to liquidity.
How does securitization increase liquidity? www.investopedia.com/ask/answers/042115/how-does-securitization-increase-liquidity.asp
These securities were not part of the bankruptcy estate, so why or how would the liquidation trust end up with any of the residuals?
WMI/LT retains a claim for the recovery value of the the whole derived from institutions assets and liabilities. Securitization is just a part of it.
I have a very limited understanding so I am not in a position to comment on it to the extent desired. I think the following highlighted text has some relevance, but, it is not very clear to me
Entities Created Pursuant to Bankruptcy Plans under Chapter 11 of the Bankruptcy Code When an entity (debtor) files for bankruptcy under Chapter 11 of the Bankruptcy Code, a trustee is appointed to handle the bankruptcy. The goal is to reorganize the debtor’s business assets and return the debtor to normal operation in a better financial position. In certain situations, such as one in which a portion of the business operation is to be terminated or sold, a liquidating trust may be created. Generally by creating this trust, the debtor is treated as having transferred the assets to the creditors, and the creditors then as transferring the assets to the liquidating trust, with the creditors being treated as the grantors and beneficiaries of the liquidating trust. The beneficiaries must report each item of income, gain, deduction, loss, and credit of the liquidating trust. The deemed transfer of the assets to the creditors is likely treated as a satisfaction of the debtor’s obligation to those creditors for the fair market value of the assets transferred. The debtor may recognize cancellation of debt income as a result, as well as gain or loss from the deemed sale or exchange of the property transferred. Under certain circumstances, the trustee of the liquidating trust may establish an escrow account or fund to hold assets that are subject to disputed claims and elect to treat this account or fund as a “disputed ownership fund.” See section 1.468B-9(c)(2(ii). If this election is made, the assets in the disputed ownership fund are not treated as transferred to the creditors and the trustee must prepare a separate income tax return for the fund https://www.kpmg.com/US/en/IssuesAndInsights/ArticlesPublications/taxnewsflash/Documents/us-sep24-liquidating-trusts.pdf
STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE Pursuant to and subject to the provisions of that certain Second Amended and Restated Settlement Agreement, dated as February 7, 2011 (as amended, the “Settlement Agreement”), and the Findings of Fact, Conclusions of Law, and Order Confirming Seventh Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United Stated Bankruptcy Code (the “Plan”), dated Feb 24, 2012, plaintiffs and counterclaim defendents Washinton Mutual Inc and WMI Investment Corp. (collectively, the “Plaintiffs”), defendent and counterclaim plaintiff FDIC, in its capacity as receiver for WMB(the “FDIC-receiver”), defendent FDIC in its corporate capacity (“FDIC-Corporate”), intervenor defendent and counterclaim defendent JPMC, and those holders of notes issued by WMB that have intervened as defendents in the action (the “Bank Bondholders”) hereby stipulate and agree that, the Effective Date of the Plan and Settlement Agreement having occured, all claims causes of action, and objections of any sort asserted in the above-captioned litigation shall be and hereby are dismissed with prejudice to refiling the same or any part thereof except to the extent any claim has been expressly preserved in the Settlement Agreement. Each of the Plaintiffs, the FDIC-Receiver, FDIC-Corporate, JPMC, the Bank Bondholders, and any of the other intervening parties shall be responsible for its own costs of court and attorneys’ fees Dated: New York, New York March 19, 2012 www.plainsite.org/dockets/download.html?id=33270727&z=bd530f06
...the DC Action dismissal was prejudiced to execution of the settlement claims to be completed per the Global Settlement Agreement on the Effective Date.
The DC Action dismissal was prejudiced to execution of the settlement claims to be completed per the GSA in part or in entirety? It is the parties who agreed to the above that was approved by the court. It wasn’t the court who made the determination. I don’t know if there is a difference between court ordered judgement as against a consent given by the court for the terms agreed to among the parties concerned. As per the GSA, “Released claims” page 361 draw out an exception and note has been highlighted by underlining the text.
“Released Claims” shall mean, collectively, (a) any and all WMI Released Claims, JPMC Released Claims, FDIC Released Claims, Settlement Note Released Claims and Creditors’ Committee Released Claims, (b) claims or causes of action that arise in, relate to or have been or could have been asserted (i) in the Chapter 11 Cases, the Receivership or the Related Actions, or (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims or holders of Equity Interests relating to Equity Interests, as the case may be, they have against the Debtors (with respect to releases given by Creditors or holders of Equity Interests, as the case may be), and (c) claims that otherwise arise from or relate to the Receivership, the Purchase and Assumption Agreement, the 363 Sale and Settlement, the Plan, this Agreement, and the negotiations and compromises set forth in this Agreement and the Plan, including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,the assets to be received by JPMC pursuant to this Agreement, the Debtors’ Claims, the JPMC Claims, the FDIC Claim, the WMI/WMB Intercompany Claims, any intercompany claims on the books of WMI or WMB related to the WaMu Pension Plan or the Lakeview Plan, or the Trust Preferred Securities (including, without limitation, the creation of the Trust Preferred Securities, the financing associated therewith, the requested assignment of the Trust Preferred Securities by the Office of Thrift Supervision and the transfer and the asserted assignment of the Trust Preferred Securities subsequent thereto); provided, however, that “Released Claims” does not include (1) any and all claims that the JPMC Entities, the Receivership, the FDIC Receiver and the FDIC Corporate are entitled to assert against each other or any other defenses thereto pursuant to the Purchase and Assumption Agreement, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement, (2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership,and (3) any avoidance action or claim objection regarding an Excluded Party or the WMI Entities, WMB, each of the Debtors’ estates, the Reorganized Debtors and their respective Related Persons; and, provided, further, that “Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. Page 361 www.kccllc.net/wamu/document/0812229120224000000000001
...so, unless one of the parties in interest believes that they were not treated appropriately upon execution of the terms of the Global Settlement Agreement (note, it has been over 3-years, nothing mentioned anywhere by anyone), that action is over.
Agree completely with one exception. Plaintiff cannot file a suit unless they want it denied prior to exhaustion of administrative remedies. Equity claims fall under Section 12 U.S.C. § 1821(d)(11) and the statute of limitations is 10 years.
While FIRREA does not provide “an explicit mandate for exhaustion of administrative remedies[,] [its] provisions are accepted by the cases and by Congress as having that meaning.” F.D.I.C. v. Lacentra Trucking, Inc., 157 F.3d 1292, 1294 (11th Cir.1998).Thus, for post-receivership claims—such as Interface's potential claim against the FDIC—the court has “no subject matter jurisdiction unless the claimant has exhausted the administrative remedies.” Damiano v. F.D.I.C., 104 F.3d 328, 333 (11th Cir.1997); see also Aguilar v. F.D.I.C., 63 F.3d 1059, 1061 (11th Cir.1995) (per curiam) (noting that "under FIRREA, federal courts generally lack the authority to decide claims against an institution in federal receivership until the claimant has exhausted his administrative remedies against the FDIC”).Because “FIRREA contains no provision granting federal jurisdiction to claims filed after a receiver is appointed but before administrative exhaustion,” Meliezer v. Resolution Trust Co., 952 F.2d 879, 882 (5th Cir.1992), and because it is undisputed that Interface has not submitted a claim against the FDIC through the FIRREA administrative claims process, the district court lacked jurisdiction to declare that Interface is not entitled to damages from the FDIC. Accordingly, this portion of the district court's judgment is also vacated. - See more at: caselaw.findlaw.com/us-11th-circuit/1620601.html
Are claims time barred
FIRREA administrative exhaustion
Whether with a timely or untimely claim, “[a] claimant must . . . first complete the claims process before seeking judicial review.”
Whether a particular statute is intended to impose a mandatory duty is a question of interpretation for the courts. [Citation.] ‘Unless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory.’ [Citation.]” (Id. at pp. 224-225.)
The Supreme Court has lately cautioned against too readily treating statutory preconditions to suit as jurisdictional requirements rather than nonjurisdictional claim-processing rules. See, e.g., Sebelius v. Auburn Reg'l Med. Ctr., 133 S.Ct. 817, 824 (2013); Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012); Henderson ex rel. Henderson v. Shinseki, 131 S.Ct. 1197, 1202–03 (2011); Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237, 1243–44 (2010); Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 130 S.Ct. 584, 596 (2009); Arbaugh v. Y & H Corp., 546 U.S. 500, 510–16 (2006); Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004). Claim-processing provisions establish “rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Henderson, 131 S.Ct. at 1203. - See more at: caselaw.findlaw.com/us-7th-circuit/1653629.html
Our holding today that the 60–day time limit in § 1821(d)(6)(A) is jurisdictional should come as no surprise; we have said or assumed as much in earlier opinions, albeit with little or no discussion. See Maher v. FDIC, 441 F.3d 522, 525 (7th Cir.2006); Maher v. Harris Trust & Sav. Bank, 75 F.3d 1182, 1190 (7th Cir.1996); Capitol Leasing, 999 F.2d at 192–93.3 Our recent opinion in Campbell v. FDIC, 676 F.3d 615 (7th Cir.2012), is not to the contrary. We said there that “[w]hile in the past we have referred to ‘[c]ompliance with the FIRREA process [as] a strict jurisdictional prerequisite,’ it is our belief that in light of the Supreme Court's more recent decisions, the proper characterization of FIRREA's rules for claims submission [is] as claims processing rules.” Campbell, 676 F.3d at 618 (first and second alterations in original) (citations omitted) (quoting Maher, 75 F.3d at 1190). For that proposition we favorably cited the Second Circuit's decision in Carlyle Towers Condominium Ass'n v. FDIC, 170 F.3d 301 (2d Cir.1999). But neither Campbell nor Carlyle Towers addressed the 60–day time limit in § 1821(d)(6)(A) for seeking additional administrative or judicial review of disallowed claims. Instead, both cases involved the FDIC's receivership-specific deadline for submitting claims to the agency, and the opinions addressed whether the failure to timely file deprived the district court of jurisdiction to entertain complaints seeking judicial review of the disallowed claims. The statutory provision at issue in Campbell and Carlyle Towers states simply that claims submitted after the deadline established by the FDIC “shall be disallowed and such disallowance shall be final.” 12 U.S.C. § 1821(d)(5)(C)(i). Unlike § 1821(d)(6)(A), it does not speak in jurisdictional terms. The Second Circuit explicitly recognized as much. Carlyle Towers, 170 F.3d at 307–08 (“Although the FIRREA makes exhaustion a jurisdictional requirement, it does not necessarily follow that compliance with time limits imposed by the FDIC have the same force· This provision contains no reference to jurisdiction, nor to the consequences of a failure to file within the time limits established by the FDIC.”). - See more at: http://caselaw.findlaw.com/us-7th-circuit/1653629.html#sthash.7dY5kXPX.dpuf
“In FIRREA, Congress enacted a comprehensive and mandatory statutory scheme to enable the RTC [the predecessor to the FDIC], when acting as receiver for a failed institution, to carry out its fundamental functions of conserving and preserving the assets of the failed institution, and ultimately making pro rata distributions of those assets to the creditors of the institutions. . . . [¶] The administrative claims process . . . provides a centralized mechanism for consideration and resolution of the bulk of claims against insolvent thrifts without the delay and expense of litigation, by requiring that all claims be submitted to the receiver within a finite time period, and by allowing the receiver the initial opportunity to review and resolve the claims.” (2947 Properties, supra, 23 Cal.App.4th at pp. 876-877, fns. omitted.) www.courts.ca.gov/opinions/archive/B246412.DOC
In addition there exist a De Novo argument for hearing. Wamu employee case touches on every single aspect in great detail. www.courts.ca.gov/opinions/archive/B246412.DOC
...so, until a former equity shareholder actions a litigation and is granted standing, there simply is nothing but straws of discussion and speculation.
As per my understanding of the GSA, no former equity shareholder other than WMI/LT can file a claim against FDIC in its capacity as receiver. The claim can only be made by WMI/LT as a general unsecured creditor against FDIC in its capacity as reciever.
Are there other remedies available without a suit. "Yes", through Judicial Review
FIRREA - Financial Institutions Reform, Recovery, and Enforcement Act
FIRREA, as codified in Title 12, United States Code, section 1821, sets out a mandatory administrative process for claims against failed lending entities and the entity that purchases a failed lending institution’s assets from the Federal Deposit Insurance Corporation (“FDIC") to allow the FDIC to quickly resolve many of the claims against failed financial institutions without unduly burdening the courts. See 12 U.S.C. §§ 1821(d)(3)-(13); see also Stamm v. Paul, 121 F.3d 635, 639 (11th Cir. 1997); Lazarre v. JPMorgan Chase Bank, N.A., 780 F.Supp. 2d 1320, 1325 (11th Cir. 2011) (citing Am. First Fed., Inc. v. Lake Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir.1999)).
FIRREA's effect on subject matter jurisdiction
Under FIRREA, no court has jurisdiction over these claims until the claimant exhausts this administrative process—section 1821 requires that claims against these entities first be submitted to the FDIC for administrative review and adjudication prior to judicial review in a court. See Stamm, 121 F.3d at 639 (“In enacting FIRREA, Congress anticipated that, as a receiver for failed lending entities, the [FDIC] would face numerous claims. . . . Accordingly, it sought to reduce the volume of formal litigation . . . by providing for administrative review of such claims by the [FDIC] before judicial proceedings could commence."). Specifically, 12 U.S.C. § 1821(d)(13)(D) provides:
Limitation on judicial review.
[N]o court shall have jurisdiction over . . . (ii) any claim relating to any act or omission of such [failed lending] institution or the [FDIC] as receiver.
12 U.S.C. § 1821(d)(13)(D) (emphasis added). Thus, the statute strips all courts of jurisdiction over claims made outside the administrative procedures of section 1821, and only after exhaustion of the administrative review procedures set forth in section 1821(d) may a party seek adjudication of a claim in court. See§§ 1821(d)(3)-(13)(D); see also Lazarre, 780 F.Supp. 2d at1325 (“Courts have construed section 1821(d)(13)(D) as an administrative exhaustion requirement.");Stamm, 121 F.3d at 639 (referring to section 1821(d)(13)(D) as a “statutory exhaustion requirement"); Gomez v. BankUnited, 2011 WL 114066, slip op. at *2 (S.D. Fla. Jan. 13, 2011) (holding dismissal proper for failure to exhaust administrative remedies).
...some might state that 'they won't talk to them, but I have not had any issues in contacting any party in a genuine, professional and respectful demeanor; whether by phone, email or written correspondence.
...I believe that your presentation is genuine, professional and respectful and you should give it a shot.
Thank you. I never thought about that, but, I agree limited questions with a Yes or No can be asked citing the above case law as there is nothing to hide or implicate to elicit a response. I will make an effort in this regard and share with you all for refinement prior it sending it across.
BKShadow: Plaintiffs retains the ability to refile Appreciate your helping hand. Thanks
deekshant
If you look at the applicable document, the one filed in DC, (not the one filed in BK) you will see the following additional words:
Quote: ... with prejudice to refiling the same or any part thereof except to the extent any claim has been expressly preserved in the settlement agreement.
Case 1:09-cv-00533-RMC Document 119 Filed 03/22/12 Claims: Preserved
Quote: BKShadow I don't see this footing in the order, however I do see the quote above. Those refer to the Global Settlement Agreement; i.e., everything is "dismissed with prejudice" to the "claims" "expressly preserved in the settlement agreement." That would be the Global Settlement Agreement.
...so, the STAYED status of the DC Action was culminated to DISMISSAL with "prejudice" to any claim under the Global Settlement Agreement.
...and that is that.
REFILING AFTER A VOLUNTARY DISMISSAL BE COGNIZANT OF THE DISTINCTION BETWEEN FEDERAL AND STATE REFILING DEADLINES
If you look at the applicable document, the one filed in DC, (not the one filed in BK) you will see the following additional words: Quote
... with prejudice to refiling the same or any part thereof except to the extent any claim has been expressly preserved in the settlement agreement.
Case 1:09-cv-00533-RMC Document 119 Filed 03/22/12
Claims: Preserved
Refer to the given Wamu case to understand mandatory administrative exhaustion requirements of FIRREA for certain claims against the receivership estate, see 12 U.S.C. § 1821, (d)(3)-(10), ‘to ensure that the assets of a failed institution are distributed fairly and promptly among those with valid claims against the institution.
www.courts.ca.gov/opinions/archive/B246412.DOC
“The court described only the first prong of § 1821(d)(13)(D), which “states that individuals (This is not just limited to individuals) seeking to make claims that affect assets acquired by the FDIC in its capacity as a conservator or receiver must exhaust the FDIC's administrative claims process before seeking judicial review.”
“Further, to the extent plaintiffs assert they currently lack a remedy, that result can only be attributed to their failure to exhaust. Cf. Bueford v. Resolution Trust Corp., 991 F.2d 481, 486 (8th Cir.1993) ( “Since the language of the statute expressly provides for judicial review after exhaustion of the administrative procedures, [plaintiff] cannot prevail on her claim that FIRREA's administrative procedures deny her due process by making judicial review unavailable.”)."
“As to § 1821(d)(13)(D), we expressed some confusion as to the nature of the plaintiff's argument. “If, by citing this provision, [the plaintiff] means to imply that the statute bars the state court's adjudication of the dispute with [the property owner], he is mistaken.” Henrichs, 474 F.3d at 614. We concluded that § 1821(d)(13)(D) does not “confer exclusive federal jurisdiction.” Henrichs, 474 F.3d at 614. The court further stated that “the requirement to exhaust administrative remedies applies only in an action against the FDIC as receiver.” Id.” caselaw.findlaw.com/us-9th-circuit/1596298.html
Thanks once again. I try, but, cannot match up to your level of skill and expertise. And so, will leave it at that shy of a complete response.
BKShadow:
Actually, it is totally about the "Receivership's" assets and liabilities. Any CLAIM has to be "certificated" by the FDIC-R for other than bonded indebtedness. So, for the WMI shareholder/debtor, it filed a CLAIM with the FDIC-R for billions and it was 'denied. That was the impetus for the "WMI" or "DC Court Action;" and the claims for violation of the 5th takings clause, fraudulent transfers, failure to maximize asset sale, etc. ALL of that was "STAYED" by the first GSA and, ultimately, it was "DISMISSED as part of the final GSA, the 7th Amended Plan of Reorganization, or "POR 7," as explained in the Disclosure Statement all provided to equity classes for ballot approval and 'releases.
Assuming what you say is correct and complete, do you agree that FDIC termination will lead to a final accounting report based on institutions assets and liabilities. If yes, then, do you agree that there could be a recovery based off on that assuming assets are greater then liabilities. If yes, then recovery is foreseeable. If no, then we live with our differences with no further comments. Since, this outcome is in future and there exists a possibility that assets are greater then liabilities, is there a reason why LT would have released this claim and not be able to go after that. Sorry, with all due respect to you, Rosen/Sussman are not dumb. You can prove me wrong for my inadeptness, but, what is expected of you is not to exploit that for the sake of argument, but, render an opinion that speaks highly of you in being fair to whats given.
“Released Claims” shall mean, collectively, (a) any and all WMI Released Claims, JPMC Released Claims, FDIC Released Claims, Settlement Note Released Claims and Creditors’ Committee Released Claims, (b) claims or causes of action that arise in, relate to or have been or could have been asserted (i) in the Chapter 11 Cases, the Receivership or the Related Actions, or (ii) by the Debtors (with respect to releases given by the Debtors) and by Creditors relating to Claims or holders of Equity Interests relating to Equity Interests, as the case may be, they have against the Debtors (with respect to releases given by Creditors or holders of Equity Interests, as the case may be), and (c) claims that otherwise arise from or relate to the Receivership, the Purchase and Assumption Agreement, the 363 Sale and Settlement, the Plan, this Agreement, and the negotiations and compromises set forth in this Agreement and the Plan, including, without limitation, in connection with or related to any of the Debtors, the Affiliated Banks, and their respective subsidiaries, assets, liabilities, operations, property or estates,the assets to be received by JPMC pursuant to this Agreement, the Debtors’ Claims, the JPMC Claims, the FDIC Claim, the WMI/WMB Intercompany Claims, any intercompany claims on the books of WMI or WMB related to the WaMu Pension Plan or the Lakeview Plan, or the Trust Preferred Securities (including, without limitation, the creation of the Trust Preferred Securities, the financing associated therewith, the requested assignment of the Trust Preferred Securities by the Office of Thrift Supervision and the transfer and the asserted assignment of the Trust Preferred Securities subsequent thereto); provided, however, that “Released Claims” does not include (1) any and all claims that the JPMC Entities, the Receivership, the FDIC Receiver and the FDIC Corporate are entitled to assert against each other or any other defenses thereto pursuant to the Purchase and Assumption Agreement, which claims and defenses shall continue to be governed by the Purchase and Assumption Agreement, (2) any and all claims held by entities against WMB, the Receivership and the FDIC Receiver solely with respect to the Receivership, and (3) any avoidance action or claim objection regarding an Excluded Party or the WMI Entities, WMB, each of the Debtors’ estates, the Reorganized Debtors and their respective Related Persons; and, provided, further, that “Released Claims” is not intended to release, nor shall it have the effect of releasing, any party from the performance of its obligations in accordance with this Agreement, the Confirmation Order or the Plan. https://www.fdic.gov/bank/individual/failed/wamu_global_settlement_agreement.pdf
Accounting-&-Value Claim is based on assets-&-liabilities
First, thanks for the reply. It is very very interesting. And thanks to "soundincrest" as well.
...a quick note, the small bank receivership you note was operated by the FDIC-R for a period of time and the issue was asserted that the bankrupt Chapter 7 holding company parent should share pari passu in the performance of certain loans.
...WMB was seized, placed into receivership and sold almost simultaneously.
Observation:Doesn’t change the fact that accounting is required and FDIC can be sued on account of that.
What’s interesting is because FDIC couldn’t win over on a claim for accounting, so, they invoked a "No Value Determination" leading to dismissal on the grounds of subject matter jurisdiction.
Applying these principles, the No Value Determination concerning the assets of the K Bank receivership establishes conclusively that general creditors will be unable to recover any value. See 12 U.S.C. § 1821(i)(2) (limiting FDIC’s liability to amount equal to value of failed institution’s assets and liabilities). http://www.gpo.gov/fdsys/pkg/USCOURTS-mdd-1_11-cv-01604/pdf/USCOURTS-mdd-1_11-cv-01604-4.pdf
Through what’s given, a claim for value is based on failed institutions’s assets and liabilities. Please note, it has nothing to do with what price Wamu was sold for under P&A Agreement i.e. 1.9 billion.
It is yet to be seen what will come out of it, but, the following gives credence to the value in question
www.secinfo.com/dJ5e.m8v.b.htm 55: R203 Off-Balance Sheet Lending-Related Financial HTML 150K Instruments, Guarantees and Other Commitments - Loan Sales- and Securitization-Related Indemnifications (Details)
These details that Spot posted are coming directly from SEC. (Obfuscating without clarifying if its WMB or WMI or both)
...Amount of residential mortgage loans, private-label securitization by Washington Mutual 165,000,000,000
Amount of residential mortgage loans, private-label securitization by Washington Mutual, Repaid 78,000,000,000
Amount of residential mortgage loans, private-label securitization by Washington Mutual, Liquidated 49,000,000,000
Percent of residential mortgage loans originally sold or deposited into private-label securitization by Washington Mutual, Average Loss Severity 59.00%
JPMorgan found a $30 billion 'unexpected bonus' in the remains of Washington Mutual www.businessinsider.com/r-jpmorgan-builds-up-apartment-loan-leader-from-wamu-rubble-2015-7?IR=T
STANDING against the FDIC-R is based on one' (Plaintiff's) seat at the table; the "Distribution Priority, FIRREA (Title 12).
...DISTRIBUTION PRIORITY is as follows:
B. FIRREA and Distribution Priority
(i) Administrative expenses of the receiver.
(ii) Any deposit liability of the institution.
(iii) Any other general or senior liability of the institution (which is not a liability described in clause (iv) or (v)).
(iv) Any obligation subordinated to depositors or general creditors (which is not an obligation described in clause (v)).
(v) Any obligation to shareholders or members arising as a result of their status as shareholders or members (including any depository institution holding company or any shareholder or creditor of such company).
I understand we are not there yet as we have an unsecured creditors claim
...so, as I have stated, a party in interest needs to take an action and GET STANDING to make such requests that are underlying the assertions.
Not possible till FDIC finalizes/terminates receivership
...the STANDING of an equity shareholder of the former bankrupt parent company Washington Mutual, Inc. (the sole shareholder of Washington Mutual Bank in the FIRREA "distribution priority" of the last priority), in which such shareholder's attempted action would also be "derivative," does not IMO have a chance in all heck of being met.
How does a claim for value based on assets and liabilities become derivative in nature
Plaintiffs claim for accounting_request approved against FDIC's own accounting
Kind of late but worth sharing the added info
Bkshadow: Comments in blue
...The 9th Circuit COA ruled that they must provide the available financial information already disseminated inter-agency and intra-agency to the shareholder (parent) and the general public.
...that information requested was fair and reasonable as the FDIC took a short cut and only produced a couple page summary document after six (6) years.
Strengthened accounting standards elevate sunlight over secrecy.
...agreed, however, I don't believe the REAL PROBLEM is at the FDIC in receiverships.
...I believe the real problem is in financial reporting 'in bankruptcy code compliance.
The issue addressed is with respect to receivership not bankruptcy. What is established is that accounting report produced by FDIC was inadequate and the given case below highlights that one can sue in light of that
Here is a case in bits and pieces where the plaintiffs claim for accounting was approved by the court against FDIC's own accounting and reporting practices and procedures
Date: 05/16/2012 CHARLES R. GOLDSTEIN, Chapter 7 Trustee for K Capital Corporation, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Receiver of K Bank, Defendant.
K Capital is a “bank holding company” that wholly owned a Maryland bank, K Bank, as its subsidiary. The Trustee filed suit against the FDIC, in its capacity as receiver, seeking damages...
Factual Background Under the alleged lending “scheme,” K Bank would typically lend a borrower between 80% and 90% of the value of real estate used as collateral to secure the loan, and would obtain a first-priority lien on the real estate collateral. Id. ¶ 13. Simultaneously, K Capital would extend a further loan to the borrower in an amount between 5% and 15% of the value of the collateral, and would receive a second-priority lien on the collateral. Id. ¶ 14. K Bank then would act as the servicer for both loans. Id. ¶ 16
The Trustee contends that the scheme was made possible because although the two entities were “nominally independent” of each other, they were “consolidated on an accounting and tax basis,” id. ¶ 8, and the “boards of K Capital and K Bank were populated by the same individuals who made decisions for both entities, despite conflicting interests.” Id. ¶ 18.
Based on these allegations, the Trustee, in the exercise of his duty to administer the estate of K Capital for the benefit of its creditors, see id. ¶ 5, asserts five claims against the FDIC in its capacity as receiver for K Bank: unjust enrichment (Count I); promissory estoppel (Count II); declaratory judgment (Count III); constructive trust (Count IV); and accounting (Count V).
Discussion The FDIC also argues that the Trustee’s claim for an accounting (Count V) should meet the same fate, but this is not so clear.
The FDIC argues that another provision of FIRREA, 12 U.S.C. § 1821(d)(15), establishes the FDIC’s responsibilities to provide an accounting for a receivership.11 According to the FDIC, “plaintiff has no private right to compel any additional accounting.” Reply at 23.
Quote 11 Section 1821(d)(15) states, in part:
(A) In general The [FDIC] as conservator or receiver shall, consistent with the accounting and reporting practices and procedures established by the [FDIC], maintain a full accounting of each conservatorship and receivership or other disposition of institutions in default.
(B) Annual accounting or report With respect to each conservatorship or receivership to which the [FDIC] was appointed, the [FDIC] shall make an annual accounting or report, as appropriate, available to the Secretary of the Treasury, the Comptroller General of the United States, and the authority which appointed the [FDIC] as conservator or receiver
The FDIC also argues that Maryland law does not recognize a freestanding claim for an accounting, but rather treats accounting only as a remedy. Although assertion of an independent cause of action for accounting is no longer necessary in most cases, it has not been entirely abolished in Maryland.
Quote (C) Availability of reports Any report prepared pursuant to subparagraph (B) shall be made available by the [FDIC] upon request to any shareholder of the depository institution for which the [FDIC] was appointed conservator or receiver or any other member of the public.
In the recent case of Polek v. J.P. Morgan Chase Bank, N.A., 424 Md. 333, 36 A.3d 399 (2012), decided after the FDIC’s Motion was briefed, the Maryland Court of Appeals stated: “In Maryland, a claim for an accounting is available when ‘one party is under [an] obligation to pay money to another based on facts and records that are known and kept exclusively by the party to whom the obligation is owed, or where there is a [confidential or] fiduciary relationship between the parties . . . .’”
In my view, the Maryland Court of Appeals’s recent reiteration in Polek of the principles of liability for accounting indicates that, in some circumstances, an accounting may serve as an - 25 - information, discovery is the remedy given to plaintiffs who prove they are entitled to an accounting.” Golub ex rel. Golub v. Cohen, 138 Md. App. 508, 523, 772 A.2d 880, 889 (2001).
Moreover, according to the complaint, the “FDIC, as receiver of K Bank, refuses to allow K Capital to inspect its account books, records, and documents so that it may determine the full extent of the proceeds of payments on the Joint Loans and/or collateral.” Id. ¶ 44.13 In my view, these allegations are sufficient to state a claim for accounting.14 Accordingly, I decline to dismiss Count V
Quote 14 Indeed, the Trustee would appear to have a basis for an accounting claim due to K Bank’s role as servicer of K Capital’s loans and the FDIC’s alleged refusal, as receiver, to provide the Trustee with documentation regarding those loans, independent of the Trustee’s claims that K Capital’s loans should be treated as joint loans with K Bank’s loans on a pari passu basis.
Quote 15 In Golub, supra, 138 Md. App. at 519-24, 772 A.2d at 887-90, the intermediate Maryland appellate court recognized that, because “discovery is the remedy given to plaintiffs who prove they are entitled to an accounting,” some bifurcation of discovery may be appropriate in a suit seeking accounting: “‘the first stage concerns whether there is any right to an accounting, and only if it is determined that there is such a right does the proceeding move on to the second stage, which comprises the actual accounting.’” Id. at 520, 772 A.2d at 887 (citation omitted).
Because the defenses are highly fact-specific, I will not resolve them at the pleading stage. Even if unclean hands or in pari delicto may be asserted against a bankruptcy trustee, the record before me is insufficient to determine whether the defenses should bar the Trustee’s claims in this case.The FDIC may reassert its defenses of unclean hands and in pari delicto after a factual record has been developed through discovery[color=red][/color] http://www.mdd.uscourts.gov/Opinions/Opinions/CGoldsteinMTD.pdf
FDC-WMIH Merger This still has a high probability then any out there as no other speculation has so many dots connected. Nothing wrong in paying off debt by soliciting funds from equity. Hey, we couldn't do it ourselves. Another, reason of doing this could have been that some financiers were not on board to the possibility of making it happen. KKR still controls the decision on this. I say lets keep our eyes open :)
Every billion debt gone makes this an ideal candidate for leveraging NOLs as business model/profitability speaks highly in favor of merging them together. Lots of room to accommodate with 3.5 billion shares. Only problem in my view is that it sounds to good to be true :)
Why no reflection in the market? Because, FDC is private and WMIH price wouldn't jump on this possibility without addressing the debt that FDC has on its books
"...the FDIC-R has provided QUARTERLY and ANNUAL reports (also available on its website) for the Receivership of Washington Mutual Bank since seized in 2008.
...it is NOT COMPARABLE to First Pacific. "
First, it is not clear if the reports provided annually or quarterly are audited. Based on the case, FDIC provided unaudited financial info upon termination to Bancorp.
Court opinion is "...before the Bank went into receivership in 1990, it was required to submit annual reports, audited by independent public accountants, to the FDIC.
Strengthened accounting standards elevate sunlight over secrecy.
Not only is the FDIC required to maintain a “full accounting of each receivership,” it is also required to make an annual accounting or report of those matters to three specified entities, id. § 1821(d)(15)(A), (B), and to make that accounting or report available on request, id. § 1821(d)(15)(C).
The shareholders may sue for an accounting “consistent with the accounting practices and procedures established by the FDIC. "
Given the above, I cannot say if the accounting report submitted upon termination is an audited one. I presume so is the case moving forward but not sure.
It will be great if someone who was a shareholder of the bank that went into receivership can request a copy of the accounting report
1) You are right that WMI is WMB shareholder, but, if you refer to the case then the law is extended to include other shareholders
Plaintiff First Pacific Bancorp, Inc. (“Bancorp”), a Delaware corporation, is a one-bank holding company and the sole shareholder of First Pacific Bank (“the Bank”). Plaintiffs Ada P. Sands, Leonard S. Sands and Michael Zugsmith are shareholders of Bancorp. -
2) This has nothing to do with a derivative litigation/releases. In fact, they cannot bring one up. What has been established through this case is that FDIC must provide an accounting report that is in conformity with the FDIC's own accounting and reporting practices and procedures. Also, shareholders can request a copy of the above
Given your background and expertise, you can do much better than this by agreeing to the above as it is not me who is saying it. Thanks
FDIC–R's distribution of a receivership surplus is governed by 12 U.S.C. § 1821(d)(11). The version of the statute that was in effect at the time the FDIC was appointed as receiver for Meritor, and which is controlling in this case, provided:
In any case in which funds remain after all depositors, creditors, other claimants, and administrative expenses are paid, the receiver shall distribute such funds to the depository institution's shareholders or members together with the accounting report required under paragraph (15)(B). 12 U.S.C. § 1821(d)(11)(B) (emphasis added).4
(C) ACCOUNTING REPORT.--Any distribution by the Corporation in connection with any claim described in subparagraph (A)(v) shall be accompanied by the accounting report required under paragraph (15)(B). https://www.fdic.gov/regulations/laws/rules/1000-1220.html
What is (15)(B) (15)Accounting and recordkeeping requirements (A)In general The Corporation as conservator or receiver shall, consistent with the accounting and reporting practices and procedures established by the Corporation, maintain a full accounting of each conservatorship and receivership or other disposition of institutions in default.
(B)Annual accounting or report With respect to each conservatorship or receivership to which the Corporation was appointed, the Corporation shall make an annual accounting or report, as appropriate, available to the Secretary of the Treasury, the Comptroller General of the United States, and the authority which appointed the Corporation as conservator or receiver https://www.law.cornell.edu/uscode/text/12/1821
What is (A)(v) (11)Depositor preference (A)In generalSubject to section 1815(e)(2)(C) of this title, amounts realized from the liquidation or other resolution of any insured depository institution by any receiver appointed for such institution shall be distributed to pay claims (other than secured claims to the extent of any such security) in the following order of priority: (i)Administrative expenses of the receiver. (ii)Any deposit liability of the institution. (iii)Any other general or senior liability of the institution (which is not a liability described in clause (iv) or (v)). (iv)Any obligation subordinated to depositors or general creditors (which is not an obligation described in clause (v)). (v)Any obligation to shareholders or members arising as a result of their status as shareholders or members (including any depository institution holding company or any shareholder or creditor of such company). https://www.law.cornell.edu/uscode/text/12/1821
CASE LAW(in bits and pieces) First Pacific Bancorp, Inc., Plaintiff-Appellant, v. Federal Deposit Insurance Corporation, Receiver for First Pacific Bank, Defendant-Appellee. Nos. 98-55634, 98-56942. Decided: August 8, 2000
Please note: Plaintiff First Pacific Bancorp, Inc. (“Bancorp”), a Delaware corporation, is a one-bank holding company and the sole shareholder of First Pacific Bank (“the Bank”).
BACKGROUND On August 7, 1990, the California Department of Banking appointed the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for the Bank. Sometime around May 7, 1996, nearly six years after the Bank went into receivership, the FDIC notified Plaintiffs that it was terminating its receivership of the Bank. Along with the notice, the FDIC gave Plaintiffs two pages of unaudited financial information covering the period from August 10, 1990, through December 31, 1995. One report was entitled “Statement of Financial Condition,” and reported the assets, liabilities, and equity of the bank as of August 10, 1990 and as of December 31, 1995. The other statement, “Financial Condition and Liquidation Activity,” reported aggregated amounts of receipts and disbursements of the Bank between August 10, 1990, and December 31, 1995.1 The information contained in these two skeletal reports spanned a period of over five years. No detailed information was given for interim dates or time periods
Unsatisfied with the financial information provided by the FDIC and unable to obtain any further details of the Bank's financial picture through informal means, the Plaintiffs filed suit in the U.S. District Court for the Central District of California on October 4, 1996 (Bancorp I?). In their complaint, the Plaintiffs requested an accounting of the Bank's financial condition beginning with the FDIC's appointment as receiver. Issue: The issue we confront is whether 12 U.S.C. § 1821(d)(15) gives Bancorp, as shareholder of a bank in receivership,2 a private right of action against the FDIC to compel it to provide a financial accounting in conformity with the FDIC's own accounting and reporting practices and procedures.
ISSUE: The issue we confront is whether 12 U.S.C. § 1821(d)(15) gives Bancorp, as shareholder of a bank in receivership,2 a private right of action against the FDIC to compel it to provide a financial accounting in conformity with the FDIC's own accounting and reporting practices and procedures.
Our holding is limited to a finding that when inadequate or meaningless information is provided to a shareholder of a bank in receivership with the FDIC, the shareholders may sue for an accounting “consistent with the accounting practices and procedures established by the FDIC
ANALYSIS The third inquiry is whether implying the equitable remedy of an accounting is consistent with the underlying purposes of the legislative scheme. The FDIC argues that the purpose of the Act is to enhance its power to preserve the solvency of its insurance fund. To that end, the Act requires every institution insured by the FDIC to submit an audited annual report to the FDIC. See 12 U.S.C. § 1831m. Thus, before the Bank went into receivership in 1990, it was required to submit annual reports, audited by independent public accountants, to the FDIC. This requirement advances the purpose of preserving solvency of the insurance fund by allowing for early detection of institutions in financial trouble.
A somewhat different purpose is advanced by requiring the FDIC to continue the annual reporting of the financial activities of a failed institution for which it has been appointed receiver. Not only is the FDIC required to maintain a “full accounting of each receivership,” it is also required to make an annual accounting or report of those matters to three specified entities, id. § 1821(d)(15)(A), (B), and to make that accounting or report available on request, id. § 1821(d)(15)(C). This requirement is consistent with at least one of the stated purposes of FIRREA, viz., “to improve the supervision of savings associations by strengthening capital, accounting, and other supervisory standards.” H.R. Conf. Rep. No. 101-222, at 393 (1989), reprinted in 1989 U.S.C.C.A.N. 432, 432. Strengthened accounting standards elevate sunlight over secrecy.(not my words) :)
In analyzing this factor, the district court voiced its concern over the number of demands that might be made on the FDIC to provide the annual accounting. The FDIC is already required to prepare an annual accounting that conforms to the requirements it imposes on its member banks and to submit that accounting or report to the entities named in the statute. Upon the request of any shareholder-or any member of the public-the FDIC need only provide a copy of the report that it is already obliged to prepare. Enforcing this statute does not impose an additional duty on the FDIC, but rather ensures that the FDIC fulfills the obligations already imposed by Congress. Our holding therefore imposes no additional burden on the FDIC. :)
CONCLUSION: We remand Bancorp I to the district court for a determination whether the six pages provided to Plaintiffs by the FDIC comply with the annual accounting and reporting practices and procedures required by the statute. If those six pages are sufficient, then Plaintiffs have received everything to which the statute entitles them. If they are not, the FDIC must perform the accounting required by the statute.
FOOTNOTES 1. The statement broke down the total amount of money received by the FDIC during the five-plus year period into only two categories: ?“Principal Collections and Interest Income on Assets, Net of Participation,” reported at nearly $83 million, and “Receipts from FDIC and Others,” reported at over $20 million. The disbursements received similar treatment, reported in only two aggregate amounts: ?“Liquidation and Other Disbursements” at nearly $84 million, and “Payments to FDIC” totalling over $18 million. http://caselaw.findlaw.com/us-9th-circuit/1296303.html
The way documents of this type are worded, one cannot simply "cherry pick" paragraphs to establish a line of thought or opinion. There is a section in the GSA that would indicate that claims against the FDIC C/R were released. This can be plainly seen to be not 100% true since section 1.183 plainly states otherwise.
Bk, I love and respect your presentation with facts in support of how you want others to see. Its a lawyers speak regardless of who’s side he is on. Hardly convincing otherwise who fails to address what's not given that has been shown to exist. I only wish you had rendered a helping hand beyond what is given with your level of expertise and comprehension to cover the whole as against in parts
1) Broad powers with FDIC when in receivership under FIRREA: Case Law mandates claims resolution through exhaustion of administrative remedies before a judicial review is possible. Statutory limitation is 10 years.
2) When in Receivership, FDIC deprives the bankruptcy court of its jurisdiction over a claim.
3)If 4 billion SJ was ruled in favor of WMI, FDIC would have taken over the amount and parked it as a disputed claim pending resolution under FIRREA. JPM/FDIC would have also upped their claim by 4 billion to neutralize any benefit from it.
If you agree to the above then I will lead on to say FDIC perpetrated this fraud and connived with JPM as it knew how it could use its powers when in receivership to control the outcome to its own benefit.
Under court deposition, Sheila Bair went on record to say she advised bidding bank JPMC about the US Government’s intention to seize solvent Washington Mutual two weeks prior. Begs the question, did JPMC along with GS short the stock leading to its demise. Or, was this exactly what FDIC wanted, so it could seize the bank. Wamu’s destiny was already written way in advance before it unfolded. Bidding and subsequent sale was just a procedure to formalize the process and make it legal. insert-text-here
Mr. Joe Jiampietro, an investment banker and a lawyer was a top adviser to the F.D.I.C. chairwoman, Sheila C. Bair and was directly involved with Project ORCA (Sale of Washington Mutual) while being a Managing Director at JPM, who was recently fired by Goldman
Claims against WMB/Non-WMB-assets possible against FDIC Receivership/Corporate capacity
PLEASE TAKE FURTHER NOTICE that, on the date hereof and pursuant hereto, (i) WMI and its chapter II estate hereby abandon their equity interests in the WMB Stock and hereby surrender and relinquish all right, title and interest to the WMB Stock,including any recovery rights and/or litigation claims with respect thereto; provided, however, for the avoidance of doubt, WMI and its chapter II estate do not hereby withdraw or release any claims asserted by WMI as a creditor of WMB against FDIC, in its capacity as receiver for WMB or in its corporate capacity, on account of WMI's status as a creditor, and do not withdraw or release any rights under the Global Settlement Agreement, (ii) all references to ownership of the WMB Stock shall be stricken from WMI's and its chapter II estate's books and records, and (iii) the stock certificate representing the shares of common stock of WMB having been lost or misplaced, WMI has caused an affidavit with respect to the lost or misplaced stock certificate representing shares of common stock of WMB to be delivered to WMB, and, in accordance with RCW 63.29.170, a copy of such affidavit together with a copy of this Notice will be served by registered first class mail to the Washington State Department of Revenue."
"WMI as a creditor of WMB against FDIC, in its capacity as receiver for WMB or in its corporate capacity, on account of WMI's status as a creditor,"
Imo, there are two parts to this given text.
1) WMB only: We can only file claims against FDIC in its capacity as receiver for WMB 2) Everything else other then WMB: We can go after FDIC in its corporate capacity for all claims excluding WMB
Jiampietro connection/COI to Shiela Bair JPM & Wamu
Project ORCA, JPM, FDIC Shiela Bair and Joe Jiampietro
Does anyone notice that Mr. Jiampietro, an investment banker and a lawyer was a top adviser to the F.D.I.C. chairwoman, Sheila C. Bair and was directly involved with Project ORCA (Sale of Washington Mutual) while being a Managing Director at JPM who was recently fired by Goldman
"Between them, Mr. Wigand and Mr. Jiampietro have sold more than $508 billion in assets over the last two years, from financial giants like Washington Mutual and Corus Bankshares to little-noticed community lenders. "
"Mr. Jiampietro, an investment banker and a lawyer, has drawn on previous experience in Washington and on Wall Street in his role as a top adviser to the F.D.I.C. chairwoman, Sheila C. Bair. A former aide to the Senate Banking Committee, Mr. Jiampietro spent more than a decade advising financial firms on mergers and other complex transactions. (He has also kept a toe in politics, donating money to the Obama campaign and to Senator Kirsten Gillibrand of New York, a childhood friend.) To join the F.D.I.C., in March 2009, he took himself out of consideration for a senior Treasury Department post."
"But they approach the job as if they were co-heads of the government’s own financial institutions group. They eschew Washington’s alphabet-soup acronyms in favor of jargon like “doughnut structures,” “true-ups” and “equity kickers.” And like their Wall Street colleagues, they shroud their deal-making plans under the cover of code names. The sale of Washington Mutual was known as Project Orca, while the one for BankUnited of Florida was called Project Beach.)" www.nytimes.com/2010/04/01/business/01FDIC.html?pagewanted=all&_r=0
Interestingly, yesterday's news discloses that Joe Jiampietro was recently fired by Goldman
"The Times story finesses the damning part: the significance fact that Goldman and the Fed took action on September 26, firing Bansal and his supervisor, Joseph Jiampietro, and the New York Fed terminating Jason Gross."
"But in an email to his supervisor, Joseph Jiampietro, Mr. Bansal shared some potentially confidential supervisory information about a Goldman banking client. Mr. Jiampietro — a managing director at Goldman who was once a senior adviser to Sheila Bair, the former F.D.I.C. head — has since told colleagues he had no idea the information was subject to regulatory restrictions." www.e-brm.com/blog/?p=5037
NEW YORK (TheStreet) -- Joe Jiampietro, a longtime investment banker and corporate attorney who was one of the key dealmakers at the Federal Deposit Insurance Corp. during the crisis until he left last summer, has joined Goldman Sachs as a managing director in the unit that advises banks. Prior to joining the FDIC in March 2009, Jiampietro worked as managing director at JPMorgan Chase, and, prior to that, UBS Jiampietro, who at Goldman will report to John Mahoney, co-head of North American depositories and specialty finance, also worked at the law firm Simpson Thacher & Bartlett, and was legal counsel to the Senate Banking Committee. www.wopular.com/goldman-sachs-snares-fdic-dealmaker
you are up several notches, so I cannot get back at you but honestly I didn't get convinced with your reasoning at all. Sorry, can't add much in support, but I am no where alluding to recovery claims/derivative claims. Indirectly and may be not effectively, all I am saying is a value claim resides within P&A closure and falls under FDIC administrative remedies governed by FIRREA
BKshadow: So, where is this WMI litigation against anyone, the FDIC, JPM, GS, the US government by any WMI equity parties?
Why I think open P&A governed by FIRREA which has a 10-year statute of limitations has something to do with it. Basically, it seems that we cannot go after FDIC/JPM as any claim or action for payment requires that we must first route this through FDIC as P&A is governed by FIRREA. It needs to be addressed through FDIC administrative remedies and then only a judicial review/challenge is possible. Since P&A is open, administrative remedies have yet not been exhausted. WMILT has not released FDIC as receiver in its capacity as creditor of WMB.
"Limitation on judicial review. Except as otherwise provided in this subsection, no court shall have jurisdiction over—
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver."
"FIRREA requires that a plaintiff exhaust these administrative remedies with the FDIC before filing certain claims. Henderson v. Bank of New England, 986 F.2d 319, 321 (9th Cir.1993). The statute provides:"
“As to § 1821(d)(13)(D), we expressed some confusion as to the nature of the plaintiff's argument. “If, by citing this provision, [the plaintiff] means to imply that the statute bars the state court's adjudication of the dispute with [the property owner], he is mistaken.” Henrichs, 474 F.3d at 614. We concluded that § 1821(d)(13)(D) does not “confer exclusive federal jurisdiction.” Henrichs, 474 F.3d at 614. The court further stated that “the requirement to exhaust administrative remedies applies only in an action against the FDIC as receiver.” Id.”
“Further, to the extent plaintiffs assert they currently lack a remedy, that result can only be attributed to their failure to exhaust. Cf. Bueford v. Resolution Trust Corp., 991 F.2d 481, 486 (8th Cir.1993) ( “Since the language of the statute expressly provides for judicial review after exhaustion of the administrative procedures, [plaintiff] cannot prevail on her claim that FIRREA's administrative procedures deny her due process by making judicial review unavailable.”)."
“The court described only the first prong of § 1821(d)(13)(D), which “states that individuals seeking to make claims that affect assets acquired by the FDIC in its capacity as a conservator or receiver must exhaust the FDIC's administrative claims process before seeking judicial review.”
"The problem with this novel argument is that all of [plaintiffs'] claims against [the purchasing bank] are directly related to acts or omissions of the FDIC as the receiver of [the failed bank]. As the district court explained, accepting the [plaintiffs'] argument and permitting claimants to avoid the provisions of (d)(6) and (d)(13) by bringing claims against the assuming bank would encourage the very litigation that FIRREA aimed to avoid." Must read http://caselaw.findlaw.com/us-9th-circuit/1596298.html
FIRREA
The FDIC transferred certain WaMu assets, including the Rundgrens’ mortgage, to Chase. The panel held that because WaMu was placed into the receivership of the FDIC and the Rundgrens failed to exhaust the administrative remedies provided by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as required by 12 U.S.C. § 1821(d)(13)(D), the district court correctly determined it lacked jurisdiction to hear the Rundgrens’ claims. The panel concluded that the claims in the Rundgrens’ complaint are “claims” for purposes of § 1821(d)(3)(D) and that their claims “relate to any act or omission” of WaMu. http://cdn.ca9.uscourts.gov/datastore/opinions/2014/07/29/12-15368.pdf
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