I recently mailed in my objections to Debtors Motion to Deny LTW holders Claim.
Other than to change the spelling of Credit Suisse First Boston Corporation the filing is identical.
IN THE UNITED STATES BANKRUPCY COURT
FOR THE DISTRICT OF DELAWARE
------------------------------------------------------x
in re :
: Chapter 11
WASHINGTON MUTUAL, INC., et al., :
Debtors in Possession :
:
vs. :
LITIGATION TRACKING WARRANTS : : : Case No 08-12229 (MFW)
J. Philip Max et al- Plaintive :
Claimant - per se :
------------------------------------------------------x Hearing July 20, 2010 Amount claimed: Excess of $400,000,000.00 File 4750
To be distributed to holders of approximately 112,000,000 LTW(tm)
Rebuttal to Debtors’ Forty-Third and Forty Fourth
OMNIBUS OBJECTION TO CLAIMS
The Honorable Mary F. Walrath
United States Bankruptcy Court
Your Honor:
May it Please the Court, I am a registered owner of DIMEZ certificates referred to as DIME LTW in this Court. I am hereby petitioning the Court, on my behalf and on behalf of all LTW(tm) holders, to deny Debtors’ claim to, any and all, net proceeds from any awards granted or to be granted by the US Court of Claims in an action referred to “Anchor Litigation”, the trial of which is still in progress.
A very excellent and meritorious defense and rebuttal to Debtors claims against the LTW(tm) rights was submitted in briefs by Broadbill, Nantahala and others to this Court. This petition is an addendum to, and complementary to, other rebuttal filings, as I, a layman, have no competence to cite the numerous legal jargons used. My contribution here, if any, is to highlight some features of this case with information that, I hope, Your Honor will find beneficial in deciding the outcome of this Bankruptcy hearing.
Debtors rely on various manipulations and interpretations of Bankruptcy Law to deny the merits of LTW(tm). Specifically, a long and convoluted description of the US Bankruptcy code is cited to discredit LTW(tm) claims...yet, they offer no proof of claim on their own behalf, as there are none.
The LTW(tm) are, by intent and deed, secured in their right to collect any Court Award and no other existing assets belonging to the creditors of the Bank are herein claimed. The assets claim by LTW(tm) are earmarked awards that may be won thru LITIGATION.
From all that I read, so far, the troubling aspect of our claim, is the unfortunate construction in the terminology of the LTW(tm). Forgetting that there are prefix words LITIGATION TRACKING, Counsel has honed in on usage of the term WARRANT.
Let me put the issue to rest once and for all. The term LTW(tm) is a trademark product owned by the Credit Suisse First Boston Corporation. (See Dime Bancorp Inc ,S-3/A -12/15/10 locator: http/www.secinfo.com/dsvrt.56gn.htm.) (See Attachment A). This instrument is designed as a conduit for the equitable distribution of net proceeds from the Litigation. The owner of this trademark rightfully defines its meaning, not the Attorneys from Weil, Gotshal. To isolate and redefine the meaning of a single word out of context, “Warrant” in this case, by citing the Bankruptcy Code as its only legal definition is as idiotic as defining Band-Aid(tm) as a band ( ribbon or an instrumental group) that is an aid (helper or first-aiders ), and than cite detailed FDA regulations that affect the application of such an appliance - resulting in a ridiculous conclusion - as to prohibit, outright, the use of Band-Aid(tm) by an unlicensed person.
The divestiture of this contingent asset was specifically intended to divorce all future activities of the Bank from the constant speculation as to the outcome of this Litigation as it TRACKED its way thru the US Court of Claims. The reason was clearly stated, to reduce the vicissitudes of market fluctuations on the price of the Bank stock based on market speculation of the than pending outcome of the Trial. It may be recalled that Dime Bancorp (DME) stock was trading at approximately $1.25; yet, the potential LITIGATION award was $2.50+/- per share. Thus, it was a situation where the “tail was wagging the dog”. The spin-off was, therefore, a benefit to the Bank, insofar, as it minimized unwarranted volatility in the stock price of the Bank.
The WARRANTS do not represent an interest in, or rights to, any profits or distributions from the future activities of the Bank or its successors.
Please note that the warrants here confer “a right to receive the net proceeds thereof” (85% in this specific instance) of the Litigation outcome and only that. This, ipso facto means, that no one else has a claim to that portion of net proceeds dedicated to the warrant holders.
These dedicated financial instruments, the LTW(tm), are not securities as defined by any conventional definition of “securities”. The LTW(tm) are neither bonds, in that they do not guarantee a “repayment of principal” or “interest”. The LTW(tm) are not “warrants”, in that they do confer the “right to convert” or “the right to sell or purchase” stocks bond or other “securities” of the Bank. The LTW(tm) are not options, in that they are not dependent on the Bank stock price fluctuations for exercise. Nor, do they have a time limit, a necessary component of warrants and options, as the warrants were to exist to the year 2059 which was defined as “indefinite”. The warrant is a “claim to” or “chit” against the Award.
The LTW(tm) are simply and wholly, rights to the net proceeds dependent on fulfilment of a specific act, namely, the settlement award which Triggers the payout to its holders. Thus, they are totally contingent upon the positive award settlement from a specific US Court case. This was meant to be effective, regardless of the present and future successes or failures of the activities of the issuing Bank (or its successor(s)). There are similar instruments in the market-place that allow the holder to claim a percentage of future insurance proceeds or litigation outcome from tort claims. And let us not forget the famous Credit Default Swaps, that got us into this mess in the first place, these instruments practically demand the demise of an institution before they accrue any value.
Having defined the LTW(tm) in its original intent, let us proceed next, to issues with Debtors claims to possession.
The Dime Bancorp Inc ( later WMI) was appointed to prosecute its case against the FDIC. That was, and is, its only connection to the LTW(tm). It is therefore, a FIDUCIARY AGENT to the interests of the LTW(tm). In consideration of this responsibility, it was granted a right to 15% of the proceeds from any recovery. By Debtors refusal to act in this Fiduciary role, and instead, confiscate the rightful assets of the LTW(tm), it is as though they are refusing to process mortgages payments, received on behalf of third parties owners, just because the Bank filed for bankruptcy, and instead pocket the proceeds for themselves.
Now, the successor Bank, WMI, is in Bankruptcy Court. This should have no affect on the Bank’s Fiduciary responsibilities to the LTW(tm) and should be of no concern to the LTW(tm) holders, as their rights to the proceeds from the LITIGATION have not been altered in any way. The new successor Bank, JPM, is attempting to strong-arm the Bankruptcy Court to deny LTW(tm) holders their rightful claim in order to purloin the proceeds of the LITIGATION for its own purse. There can be no rationale in Law, Reason, or Equity to deny the rights of the LTW(tm) to their rightful claim, by awarding claim-jumpers this right. This is an affront to the legal system and an insult to every American. Legally it is called conversion, I prefer the conventional usage, “STEALING”
The fact remains that the LTW(tm), BY DEFINITION, are rightfully the only ones in line to receive the balance of the proceeds from the LITIGATION WARRANTS as none of the denials to the LTW(tm) intrinsic rights to this claim have been demonstrated to this Court or altered by the sale and subsequent Bankruptcy of the Bank.
Any action that adversely affects the outcome of the Litigation due to malfeasance on the part of the Bank will be actionable by the LTW(tm) holders. Indeed, it may well be argued that JPM should be stripped of it successor rights to administer the LITIGATION as its action in this Court demonstrate that its interests are inimical to the interests of the LTW(tm).
Therefore, I pray the Court to deny Debtors any claim to benefit from the long and arduous process that the LTW(tm) holders were subjected to, and to grant the LTW(tm) their just claim to the future Awards in their Litigation proceedings.
END
Respectfully Submitted,
Dated: Thursday July 8, 2010
J. Philip Max ____________________________
Beneficial owner of Dime LTW(tm)
J. Philip Max et al
46 Maple Ave
Cedarhurst NY 11516-2222
Telephone: 516-569-1623
AI
