I have been following this closely for some time. The only argument that I see that Broadbill/etc. has not fleshed out is the following. Please read and let me know if it makes any sense.
Thanks, Tim
I am not sure why this argument has not been made. Even in the DimeQ Litigation Tracking Warrants are equity (which is disputed), the breach of the Warrant Agreement (and the right to receive damages from WAMU) occurred prior to bankruptcy. The breach occurred the day that Chase bought substantially all of the assets of WAMU (including the right to receive the proceeds from the Dime litigation). WAMU breached the Warrant Agreement by not also assigning the obligation to pay the DimeQ holders out of the proceeds to Chase as part of the asset sale. All of the filings seem to be focusing on whether or not DimeQ is an equity security and whether an equity security is entitled to a recovery as an unsecured creditor. In my opinion, we clearly moved out of the equity/non—equity bucket (and into the unsecured creditor bucket) the date of the asset sale.
If bankruptcy would never have happened, we would have sued WAMU for breaching the agreement and been in the same position we are today. The only difference bankruptcy made is that it puts our ability to collect a judgment in a more precarious position.
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