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The case has been dismissed. I'm sure KarinCA will be able to elaborate, but pacer was updated today with this info.
New article - don't think I saw this posted here:
Morgan Stanley, RBS Stuck With FDIC's United
Western Suit
https://www.law360.com/banking/articles/635321/morgan-stanley-rbs-stuck-with-fdic-s-united-western-suit
You have to login, so I posted a pdf at this link:
https://www.dropbox.com/s/xvmje8qqih56iek/Morgan%20Stanley%2C%20RBS%20Stuck%20With%20FDIC%27s%20United%20Western%20Suit%20-%20Law360.pdf?dl=0
Here's the file that was posted today. Download from my dropbox link:
https://www.dropbox.com/s/qrl9gss427n9w8v/038128666124.pdf?dl=0
Just so it isn't lost in the lengthy gobbledygook of the Clerk's Notice of Fees due, the entry made on the 16th without a corresponding document number is this:
Full docket text:
Disposition of Adversary Proceeding Number 14-1188 ABC. Final Order or Judgment Has Entered. Tickle Due Date 9/30/2014. (saj)
Google that a bit and see what you can come up with. Whatever you find, it seems like the end is imminent.
I agree that things don't look so good. The only thing I keep going back to is some of the language used when the appeal was withdrawn:
FDIC and JPM - could this be what's been holding everything up?
http://www.streetinsider.com/Corporate+News/JPMorgan+(JPM),+FDIC+Enter+$515.4M+RMBS+Settlement/8905336.html
Real dollars and UWBK mentioned in the same article - how remarkable.
Here's the paragraph from the bank's motion to dismiss. The "best interest" line gets tossed around here a lot, but I think the first sentence is also intriguing:
This appeal was initially filed as a protective appeal until the real party in interest could be identified. The Board of United Western has concluded that it is no longer in the Bank’s interests to pursue this appeal. Likewise, Bancorp’s trustee has agreed that the appeal should not go forward. Thus, the Bank now moves to dismiss.
That's verbatim from the motion.
I'm still here.
Remember, this is from the defense (OCC). Of course they don't want this reviewed - this doc is their reasoning behind that. This is their motion, not a ruling of any kind.
Appellees' Motion posted to Pacer. Link below:
https://www.dropbox.com/s/l0a8x492r0dvapo/UWBK%20Appellees%20Motion.pdf
58 pages total with about 16 being the motion and the rest being the original opinion from ABJ
Appeal Timeline
More Pacer info posted.
This was added after my original post:
screenshot of docket:
https://dl.dropboxusercontent.com/u/1749408/Screen%20Shot%202013-04-30%20at%201.41.19%20PM.png
pdf of appeal:
https://dl.dropboxusercontent.com/u/1749408/UWBK%20appeal.pdf
Looks like there's no doc to review for the civil case yet. Most of the appeal pdf is a rehash of the timeline and the order from ABJ last month.
Appeal Posted to Pacer
I believe this the appeal we've all been waiting on. Link to image below:
https://dl.dropboxusercontent.com/u/1749408/Screen%20Shot%202013-04-30%20at%201.18.56%20PM.png
Here's unformatted text of the appeal. The image above will be easier to understand, though:
Case Query
13-5126 United Western Bank v. Office of the Comptroller of, et al
Associated Case Short Title Type Start End Status
Originating Case Lead Case Filed Execution Date Judgment NOA Originating Judge Court Reporter
1:11-cv-00408-ABJ 1:11-cv-00408-ABJ 02/18/2011 03/05/2013 04/26/2013 Jackson, Amy Berman
Party Party Type Terminated from Case Attorney
United Western Bank Plaintiff-Appellant Sandler,Andrew L.
Office of the Comptroller of the Currency Defendant-Appellee Sterbenz,Christopher Alexander
Curry, Thomas J. Defendant-Appellee Sterbenz,Christopher Alexander
Federal Deposit Insurance Corporation Intervenor for Defendant-Intervenor for Appellee Stevens,Duncan Norman
Attorney Party Type(s) Represented Representation End
Sandler, Andrew L. Plaintiff-Appellant
Sterbenz, Christopher Alexander Defendant-Appellee
Stevens, Duncan Norman Intervenor for Defendant-Intervenor for Appellee
PACER Service Center
Transaction Receipt
DC Circuit (USCA) - 04/30/2013 16:23:29
Matrix motion to extend posted today. Didn't see anyone post this earlier - I apologize if it's duplicate info.
DEBTORS’ MOTION TO EXTEND DEADLINE FOR FILING SECOND AMENDED DISCLOSURE STATEMENT AND PLAN
UNITED WESTERN BANCORP, INC. (“UWBK”); MATRIX BANCORP TRADING, INC. (“MBT”); and MATRIX FUNDING CORP. (“MF”), Debtors-in-Possession herein (together, the “Debtors”), by and through their counsel, Sender Wasserman Wadsworth, P.C., respectfully submit their Motion to Extend Deadline to for Filing Second Amended Disclosure Statement and Plans. In support thereof, the Debtors state as follows:
1. The Debtors filed their petitions for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”) on March 2, 2012 (the “Petition Date”), and since that date have been operating as debtors-in-possession.
2. On November 6, 2012, the Debtors filed two plans of liquidation – a joint plan for MBT and MF, and a plan for UWBK – along with disclosure statement for both plans.
3. Debtors filed their First Amended Plans for Liquidation, for both plans, along with First Amended Disclosure Statement, on February 20, 2013.
Case No. 12-13815 ABC ) Chapter 11
Case No. 12-13822 ABC ) Chapter 11
Case No. 12-13824 ABC ) Chapter 11
4. On February 21, 2013, the Court held a hearing on the Disclosure Statement filed November 6, 2012. At the hearing, the Court Ordered the Debtors to file a Second Amended Disclosure Statement on or before March 8, 2013.
5. As the Court knows, UWBK’s plan and the disclosure statement contemplate the eventual resolution of an unknown contingency – specifically, the determination by the U.S. District court for the District of Columbia of a lawsuit brought by United Western Bank (“the Bank”), a wholly-owned subsidiary of UWBK, against the Office of the Comptroller of the Currency (“OCC”) in which the Bank sought, as potential relief, an award of money damages from the OCC. The lawsuit is discussed more fully in Section II of the Second Amended Disclosure Statement (“The Litigation”), which discussion is incorporated herein by reference.
6. On March 5, 2013, the U.S. District Court for the District of Columbia ruled against the Bank in a Memorandum Opinion, a copy of which is attached hereto as Exhibit 1.
7. UWBK and counsel need time now to evaluate the ruling and its impact on UWBK’s case going forward, including the question of whether liquidation in Chapter 11 or liquidation in Chapter 7 is in the best interests of UWBK’s creditors. Accordingly, UWBK seeks a 31-day extension of the deadline to file its amended disclosure statement.
8. Debtors’ counsel has conferred with counsel for the U.S. Trustee, who stated that the U.S. Trustee would not oppose an extension for this purpose.
WHEREFORE, the Debtors respectfully move the Court for a 31-day extension of the deadline for filing a second amended disclosure statement, to April 8, 2013, and for such other and further relief as the Court deems proper.
?Dated this 7th day of March, 2013.
I'll take $.35. Thanks.
Objection pdfs posted. Here are links to each of the objections. FDIC is the same as what I posted late last night. The other three are new - JPMorgan, United States Trustee and Marathon Document Solutions.
http://dl.dropbox.com/u/1749408/FDIC%20objection.pdf
http://dl.dropbox.com/u/1749408/JPMorgan%20objection.pdf
http://dl.dropbox.com/u/1749408/United%20States%20Trustee%20objection.pdf
http://dl.dropbox.com/u/1749408/Marathon%20objection.pdf
Just FYI that the exhibits are part of the PDF I posted. The last few pages are the reply from Sender. Wasn't sure if you were aware of that.
-UG
Here's a link to the file in dropbox:
http://dl.dropbox.com/u/1749408/FDIC%20objection.pdf
FDIC Rejection of Liquidation Plan posted. Matrix has a new posting on pacer tonight. 15+ pages. I sent the pdf to deadmau5 for posting if he's able to.
----
OBJECTION OF THE FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER TO DISCLOSURE STATEMENT FOR DEBTORS’ PLANS OF LIQUIDATION DATED NOVEMBER 6, 2012
The Federal Deposit Insurance Corporation, in its capacity as receiver for United Western Bank of Denver, Colorado (the “FDIC-Receiver”), by and through its undersigned counsel, hereby objects to approval of the Disclosure Statement for Debtors’ Plans of Liquidation Dated November 6, 2012 [Docket No. 213]1 (the “Disclosure Statement”) proposed by United Western Bancorp, Inc. (“UWBK”), Matrix Bancorp Trading, Inc. (“MBT”) and Matrix Funding Corp. (“MF,” and together with UWBK and MBT the “Debtors”). In support of its objection, the FDIC-Receiver states as follows:
I. INTRODUCTION
The Disclosure Statement should not be approved because it fails to contain sufficient information to enable the FDIC-Receiver and the Debtors’ creditors to make an informed judgment about the Plans (defined below) proposed by the Debtors. As is described in more detail below, on nearly every important factor that is likely to influence the decision of creditors on whether to support the Plans, the Disclosure Statement fails to provide basic information. Therefore, the Disclosure Statement should not be approved in its present form.
I'll go with $.55 - And I'm a cheap date as I'd probably drive to Vegas.
I don't think he's asking you to convince anyone. But when you post something like this:
New Matrix Pacer docs posted today:
DEBTORS’ UNOPPOSED MOTION TO EXTEND DEADLINE
TO FILE RESPONSE TO FDIC MOTION
UNITED WESTERN BANCORP, INC. (“UWBK”); MATRIX BANCORP TRADING,
INC. (“MBT”); and MATRIX FUNDING CORP. (“MF”), Debtors-in-Possession herein (together,
the “Debtors”), by and through their counsel, Sender Wasserman Wadsworth, P.C., respectfully
submit their Unopposed Motion to Extend Deadline to File a Response to FDIC Motion. In support
thereof, the Debtors state as follows:
1. The Federal Deposit Insurance Corporation, as Receiver for United Western Bank
(“FDIC-Receiver”), filed its to Motion of the Federal Deposit Insurance Corporation as Receiver for
an Order Pursuant to §§ 105 and 363 of the Bankruptcy Code Regarding Establishment of a
Segregated Joint Account (“Motion”) on November 14, 2012. Therein, the FDIC-Receiver seeks
authority to establish a segregated account to hold tax refunds which, according to the FDICReceiver,
are property of the FDIC-Receiver and which, according to Debtor UWBK, are property
of its bankruptcy estate.
2. The deadline for filing an objection to the Motion is November 27, 2012.
3. Since the filing of the Motion, Debtors’ counsel and counsel for the FDIC-Receiver
have been actively engaged in discussions about how to resolve the matter.
4. Debtors believe the parties will be able to settle the matter without seeking a
determination from the Court; however, the parties need additional time to discuss and agree upon
the terms of a stipulation.
5. The FDIC-Receiver does not oppose a one-week extension of the objection deadline
for this purpose.
WHEREFORE, the Debtors respectfully move the Court for a one-week extension of
deadline for objecting to the Motion to December 4, 2012, and for such other and further relief as the
Court deems proper.
Dated this 26th day of November, 2012.
Pacer update:
Minute Entry for proceedings held before Judge Amy Berman Jackson: Motion Hearing held on 11/20/2012 re [99] MOTION for Summary Judgment filed by UNITED WESTERN BANK, [100] MOTION for Summary Judgment and Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment filed by THOMAS J. CURRY, OFFICE OF THE COMPTROLLER OF THE CURRENCY. Motions heard and taken under advisement. (Court Reporter Kellie M. Humiston.) (ldc, )
It was. I hope they make you happy in the end. If they do, then my leftovers will make me happy as well.
It's a valid concern, but at least paste the entire sentence in to show that he doesn't get royalties until after the first $2 million in revenue:
On August 5, 2012, the Company’s wholly-owned subsidiary, Wetwinds Inc., entered into a license agreement with WEC ASSET LLC for the rights to use a certain Social Media concept developed by WEB ASSET LLC. The license agreement calls for royalty payments of 49% of all revenues derived for the use of the licensed rights subsequent to the Company’s initial $2,000,000 of revenue, to be paid quarterly.
I've been following this for a while. Didn't see anyone post the full Pacer response to the Plaintiff's Motion to Strike. Here it is. Deadmau5, I can get you this pdf to post on scribd if it helps.
-UG
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
UNITED WESTERN BANK, )
)
Plaintiff, )
v. ) C.A. No. 11-cv-408 (ABJ)
)
OFFICE OF THE COMPTROLLER OF )
THE CURRENCY, et al. )
)
Defendants. )
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO STRIKE
Defendants Office of the Comptroller of the Currency and Comptroller Thomas J. Curry (collectively “OCC”) submit this opposition to Plaintiff’s Motion to Strike the Defendants Statement of Facts with References to the Administrative Record. Plaintiff’s motion is premised on an interpretation of Local Civil Rule 7(h) (“LCvR”) which is neither mandated by the language of the rule nor by the actual application of the rule in similar cases.
Local Civil Rule 7(h) guides the parties regarding the briefing of motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.1 The first part of the Local Rule articulates the obligations of the parties and the manner in which such motions are briefed:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate
1 Local Rule 7(h) “assists the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (referring to the former LCvR 108(h)). The rule puts the onus on counsel to sift through the records of their cases in order to crystallize for the Court the “material facts and relevant portions of the record.” Id. at 151. In 2008 the Court amended the rule to distinguish normal discovery-track cases, with the possibility of material facts being disputed, necessitating a trial, from administrative record cases, in which the Court does not conduct a trial. The 2008 revision did not relieve counsel from the requirement to submit a “statement of facts with references to the administrative record.” LCvR 7(h)(2).
concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. Each such motion and opposition must also contain or be accompanied by a memorandum of points and authorities and proposed order as required by LCvR 7(a), (b) and (c). In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
LCvR 7(h)(1).
The second part of the Local Rule addresses the specific circumstance of briefing a Rule 56 motion in the context of a challenge to an agency action pursuant to the Administrative Procedure Act and similar statutes:
Paragraph (1) shall not apply to cases in which judicial review is based solely on the administrative record. In such cases, motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record.
LCvR 7(h)(2).
In instances where (as is the case here) a party files a motion for summary judgment where review is limited to the factual record that was before the agency, Rule 7(h)(2) eliminates the obligation under Rule 7(h)(1) for the proponent of a summary judgment motion to prepare (and the opposing party’s obligation to respond to) a statement of material facts as to which the moving party contends there is no genuine issue. This is because “in cases where review is based on an administrative record the court is not called upon to determine whether there is a genuine issue of material fact, but rather to test the agency action against the administrative record.” See Comment to LCvR 7(h).
The essence of Plaintiff’s motion to strike is the contention that Rule 7(h)(2) must be read as mandating that the “statement of facts with references to the administrative record” required under the rule cannot be a separate document, but must be incorporated into the memorandum of
points and authorities. This, they argue,2 makes it subject to LCvR 7(e), which limits a “memorandum of points and authorities in support of or in opposition to a motion” to not more than 45 pages. The OCC respectfully disagrees.
While the language of LCvR 7(h)(2) makes it clear that a motion for summary judgment “shall include a statement of facts with references to the administrative record” – as the OCC’s submission does – the rule does not preclude a proponent of a Rule 56 motion from filing a separate Statement of Facts. Plaintiff has not cited any case law that supports its interpretation of the Local Rules or that demonstrates that a separate submission is improper.
Plaintiff does cite Koretoff v. Vilsack, 2012 U.S. Dist. LEXIS 5346 (D.D.C. Jan. 18, 2012) to suggest Defendant’s “submission was improper.” Pl.’s Mem. at 2. Koretoff, however, did not address whether filing a separate statement of facts was improper. Rather, the objection in Koretoff concerned the extrinsic evidence outside the administrative record that plaintiff cited in the separate statement. The plaintiff submitted, inter alia, a witness declaration and approximately 300 pages of documents that were neither relied upon by the agency nor present in the administrative record of the case. See Koretoff v. Vilsack, C.A. No. 08-cv-1558 (ESH)(D.D.C.) (Documents No. 46-1 and 2, plaintiff’s filing of Aug. 8, 2011). The Court properly regarded this as an ill-conceived attempt to turn an administrative record review case into one “that has proceeded to summary judgment after discovery.” Koretoff at *8-9, n.3.
Plaintiff’s reliance, see Pl.’s Mem. at 2-3, upon Davis v. Pension Benefit Guaranty Corp., 815 F. Supp. 283 (D.D.C. 2011), is similarly misplaced. As was the case in Koretoff, the Davis Court did not consider Plaintiff’s claim that a “complete summary judgment submission” must
2 See Plaintiff’s Memorandum (“Pl.’s Mem”) at 2.
be limited to no more than 45 pages. Instead, like Koretoff, the Davis Court addressed plaintiff’s improper attempt to include extra-record materials in its submission to the Court. Id. at 288-93.
Plaintiff’s other cases from this Court do not address the issue pertinent to this Motion. Some are not even administrative record review cases, but instead involve private litigants only.3 See, e.g., OAO Alfa-Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005) (defamation lawsuit brought by Russian businessmen against various American citizens) and Canady v. Erbe Elekromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C. 2004) (patent infringement case brought involving medical devices).
Perhaps more to the point, a brief review of this Court’s dockets in other record review cases shows that it is an entirely usual and customary practice for litigants filing motions for summary judgment in these cases to submit precisely what the OCC submitted in this case: 1) a motion for summary judgment; 2) a separate statement of facts with citations to the administrative record; and 3) a memorandum of points and authorities in support of the motion for summary judgment.4
For example, in Mingo Logan Coal Co. v. EPA, C.A. No. 10-cv-541 (ABJ) (D.D.C.) (Jackson, J.), the Court considered a challenge under the Clean Water Act to a decision by the Environmental Protection Agency (“EPA”) to revoke a permit granted to the company by the Army Corps of Engineers allowing discharge of fill into two streams. As with the current matter
3 Plaintiff’s reliance upon Fed. R. App. P. 28(a)(7), see Pl.’s Mem at 3, n.3, is similarly misplaced. This is not a case in the Court of Appeals.
4 The Local Rules do not expressly require submission of three separate documents. A party may choose to integrate its submissions in one memorandum of points and authorities, which may be reasonable, for example, when the administrative record is short and the legal issues are few. But such a procedure is not, as Plaintiff suggests, mandated by LCvR 7(e) and (h)(2).
Case 1:11-cv-00408-ABJ Document 103 Filed 05/29/12 Page 4 of 7
before the Court, the case was to be decided on the basis of the administrative record that was before the agency. The plaintiff submitted a motion for summary judgment, a statement of facts, and a memorandum of points and authorities which, taken together, totaled 103 pages.5 Id. (Document No. 26, Mingo Logan’s filing submitted May 27, 2011). In response, defendant EPA submitted its own motion for summary judgment, a statement of facts, and memorandum of points and authorities totaling 120 pages. See Id. (Document No. 46, EPA’s filing submitted July 25, 2011). The Court’s memorandum opinion, reported at 2012 U.S. Dist. LEXIS 39532 (D.D.C. Mar. 23, 2012), cited the parties’ separately-submitted statements of facts throughout the decision.
Similar examples are found when other judges’ dockets and decisions are reviewed. In Association of Civilian Technicians, Inc. v. United States, 601 F. Supp. 2d 146 (D.D.C. 2009), the decision rendered by the Honorable Judge Kollar-Kotelly cites to the defendant’s separately-submitted statement of fact throughout her decision. Id. at 154, n.5. The docket in that case reflects that the government’s “complete summary judgment submission” consisted of a motion, a separate statement of facts, and a memorandum of points and authorities, and associated exhibits that totaled 233 pages.
In Bean Dredging, Inc. v. United States, 699 F. Supp. 2d 118 (D.D.C. 2010), the Honorable Judge Kennedy cites from the parties’ separately-submitted statements of facts submitted pursuant to LCvR7(h)(2). Id. at 121 n.3. The plaintiff’s “complete summary
5 Although Mingo Logan’s statement of facts was captioned as being submitted pursuant to LCvR 7(h)(1), it otherwise correctly cited to the administrative record submitted by the government to the Court. In that case, the Court entered a separate order granting the parties leave to exceed the LCvR 7(e) page limit, permitting the parties to file memoranda of points and authorities of 60 pages each, with replies limited to 30 pages. See C.A. No. 10-cv-541 (ABJ) (D.D.C.) (Minute Order of May 23, 2011). The parties’ total submissions thus well exceeded the 60 page limit that was imposed on their memoranda of points and authorities.
judgment submission” totaled 49 pages, and the defendant’s submission was 98 total pages. See also Kight v. United States, 2012 U.S. Dist. LEXIS 39551 (D.D.C. March 23, 2012)(Rothstein, J.) (defendant submitted a motion for summary judgment, a separate statement of facts, a separate memorandum of points and authorities, and associated exhibits totaling 71 pages).6
The OCC submitted its separate Statement of Facts to provide the Court with a roadmap to the relevant parts of a sizable administrative record in an effort to assist the Court with its review.7 Local Rule 7(h)(2) expressly requires a party to “include a statement of facts with references to the administrative record” in connection with “motions for summary judgment and oppositions thereto.” The OCC has done nothing more than comply with this requirement in a manner that comports with the language of the rule and established local practice.
6 Kight was an uncomplicated case with an administrative record of approximately 200 pages.
7 A separate statement of facts makes sense given the size of the administrative record and the need for the OCC to both argue its motion for summary judgment and respond to plaintiff’s motion for summary judgment in a single brief of 45 pages rather than 90 pages that would have been available if the summary judgment motion and opposition had been briefed separately. Compare Amended Scheduling Order of March 14, 2012 (OCC limited to 45 pages to respond to the Plaintiff’s motion for summary judgment and support its own motion for summary judgment) with Local Rule 7(e) (granting 45 pages to brief or oppose a summary judgment motion).
The OCC respectfully submits that the Court should deny Plaintiff’s motion to strike.
Date: May 29, 2012 Respectfully submitted,
Julie L. Williams,
Chief Counsel
Daniel P. Stipano,
Deputy Chief Counsel
Horace G. Sneed, (MI Bar No. P33434)
Director, Litigation Division
Gregory F. Taylor,
Assistant Director, Litigation Division
DC Bar No. 417096
/s/Christopher A. Sterbenz
Christopher A. Sterbenz,
Counsel, Litigation Division
DC Bar No. 437722
250 E Street, S.W.
Washington, D.C. 20219
Telephone: (202) 927-9124
Facsimile: (202) 874-5279
christopher.sterbenz@occ.treas.gov
Attorneys for Office of the Comptroller of the
Currency and Comptroller Thomas J. Curry
CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2012, I filed the foregoing on the Court’s electronic filing system. To the best of my knowledge all counsel of record will receive service thereby.
/s/Christopher A. Sterbenz
Case 1:11-cv-00408-ABJ Document 103 Filed 05/29/12 Page 7 of 7