Declaration of Isaac Nesser in Support of Rule 2004 Motion — In re KServicing (Bankr. D. Del.)

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U.S. Bankruptcy Court for the District of Delaware · No. 22-10951 · Doc. 623 · 2023-03-08 · Docket on CourtListener

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21679252  
IN THE UNITED STATES BANKRUPTCY COURT 
FOR THE DISTRICT OF DELAWARE 
In re  
KABBAGE, INC. d/b/a KSERVICING, et al.,  
Debtors.1 
Chapter 11 
Case No. 22-10951 (CTG) 
(Jointly Administered) 
DECLARATION OF ISAAC NESSER IN SUPPORT OF JOINT MOTION OF CROSS 
RIVER BANK AND CUSTOMERS BANK FOR AN ORDER, PURSUANT TO SECTION 
105(a) OF THE BANKRUPTCY CODE, BANKRUPTCY RULE 2004, AND LOCAL 
BANKRUPTCY RULE 2004-1, AUTHORIZING AND DIRECTING THE 
EXAMINATION OF AMERICAN EXPRESS KABBAGE INC. 
Pursuant to 28 U.S.C. § 1746, I, Isaac Nesser, hereby declare under penalty of perjury as 
follows: 
1.
I am a partner at Quinn Emanuel Urquhart & Sullivan LLP, counsel for Cross River
Bank in the above-captioned cases.  I am admitted pro hac vice to the Court for these cases.  I 
submit this declaration on behalf of Cross River Bank in support of the Joint Motion of Cross River 
Bank and Customers Bank for an Order, Pursuant to Section 105(a) of the Bankruptcy Code, 
Bankruptcy Rule 2004, and Local Bankruptcy Rule 2004-1, Authorizing and Directing the 
Examination of American Express Kabbage Inc. (the “Motion”).2 
1  The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal 
tax identification number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage 
Canada Holdings, LLC (N/A); Kabbage Asset Securitization LLC (N/A); Kabbage Asset 
Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC (8973); and Kabbage 
Diameter, LLC (N/A) (collectively, the “Debtors”). 
2  Capitalized terms not defined herein have the meaning ascribed to them in the Motion.   
RE: D.I. 622
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2.
Cross River requested information concerning a number of Cross River’s loans
being serviced by Kabbage a year and a half ago, including through correspondence and/or meet 
and confers in August, September, and November 2021, and February 2022.   
3.
On December 5, 2022, counsel for Cross River, including myself, had a call with
counsel for the Debtors to request the CRB Servicing Files and related information.   
4.
On December 8, 2022, my colleague sent an email to counsel for the Debtors,
requesting again that the Debtors provide the CRB Servicing Files.   Attached hereto as Exhibit 1 
is a true and correct copy of that December 8, 2022 email from Matthew Scheck to Candace Arthur 
and Ms. Arthur’s response confirming receipt. 
5.
In the following weeks, Cross River and the Debtors further discussed the transfer
of the CRB Servicing Files to Cross River, including a call among Cross River’s and Kabbage’s 
business, legal, and operations teams, and their respective outside counsel on December 21, 2022. 
6.
On January 11, 2023, Cross River and the Debtors entered into a stipulation
requiring the Debtors to provide the CRB Servicing Files, which the Court so ordered on January 
17, 2023.  Attached hereto as Exhibit 2 is a true and correct copy of the January 17, 2023 Order 
Approving Stipulation Between the Debtors and Cross River Bank [ECF 444 & ECF 444-1].  
7.
On or around January 6, 2023, Cross River’s General Counsel, Arlen Gelbard,
inquired with in-house counsel at American Express regarding obtaining Cross River’s servicing 
files in connection with the PPP loans being serviced by Kabbage.  That counsel directed Cross 
River to American Express’s outside counsel, Sullivan & Cromwell.   
8.
As a result of that communication from American Express, I called American
Express’s outside counsel, Amanda Davidoff from Sullivan & Cromwell on January 11, 2023 to 
meet and confer.  During that call, Ms. Davidoff informed me on behalf of American Express that 
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it would be most efficient for American Express to receive information requests directly from the 
Debtors.   
9.
Based on that representation from American Express, and at the urging of me and
my colleagues at Quinn Emanuel, the Debtors wrote a letter to American Express on January 13, 
2023 demanding that American Express agree by January 19, 2023 to provide certain requested 
materials, including parts of the CRB Servicing Files, and demanding that American Express 
actually provide those materials by February 17, 2023.  Attached hereto as Exhibit 3 is a true and 
correct copy of the aforementioned January 13, 2023 letter from Theodore Tsekerides to James 
Bromley, and the document requests attached thereto.    
10.
My understanding is that American Express has not provided the information, and
Cross River has not received any part of the CRB Servicing Files from American Express.  Nor 
have Debtors pursued any legal action as to American Express to obtain the materials.  
Pursuant to 28 U.S.C. § 1746, I, declare under penalty of perjury that the foregoing is true 
and correct. 
Dated: March 8, 2023 
New York, New York 
/s/ Isaac Nesser 
Isaac Nesser 
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