Court filing

Declaration of Kim D. Steverson re Ballot Solicitation and Tabulation — In re KServicing (Bankr. D. Del.)

Filed March 9, 2023 in Kservicing Bankruptcy; one of 140 filings from this case.

Record facts

Court	U.S. Bankruptcy Court for the District of Delaware
Filed	2023-03-09

U.S. Bankruptcy Court for the District of Delaware · No. 22-10951 · Doc. 635 · 2023-03-09 · Docket on CourtListener

Full text

UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re
:
:
KABBAGE, INC. d/b/a KSERVICING, et al., :
:
:
Debtors.1
:
:
:
Chapter 11
Case No. 22-10951 (CTG)
(Jointly Administered)
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DECLARATION OF KIM D. STEVERSON OF OMNI AGENT SOLUTIONS, INC.
REGARDING SOLICITATION OF VOTES AND TABULATION OF BALLOTS CAST
ON THE AMENDED JOINT CHAPTER 11 PLAN OF LIQUIDATION OF KABBAGE,
INC. (d/b/a KSERVICING) AND ITS AFFILIATED DEBTORS
I, Kim D. Steverson, declare under the penalty of perjury that the following is true
and correct to the best of my knowledge, information, and belief:
1.
I am the Vice President, Corporate Restructuring Services, of Omni Agent
Solutions, Inc. (“Omni”), a chapter 11 administrative services firm, whose offices are located at
5955 De Soto Ave., Suite 100, Woodland Hills, California, 91367, and 1120 Avenue of the
Americas, 4th Floor, New York, NY 11036. I am over the age of eighteen years and am duly
authorized to submit this declaration (the “Declaration”) on behalf of Omni.
2.
This Court authorized Omni’s retention as the claims, noticing and
solicitation agent to the above-captioned debtors and debtors in possession (collectively, the
“Debtors”) pursuant to (a) the Order Pursuant to 11 U.S.C § 105(a) and 28 U.S.C. § 156(c)
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). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 1 of 7

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Appointing Omni Agent Solutions, Inc. as Claims and Noticing Agent Effective as of the Petition
Date [Docket No. 69], and (b) the Order Authorizing Debtors to Employ and Retain Omni Agent
Solutions, Inc. as Administrative Agent Effective as of the Petition Date [Docket No. 138]
(collectively, the “Retention Orders”). The Retention Orders authorize Omni to assist the
Debtors with, among other things, the service of solicitation materials and tabulation of votes cast
to accept or reject the Plan (defined herein). Omni and its employees have considerable experience
in soliciting and tabulating votes to accept or reject chapter 11 plans, and have served as claims,
noticing and solicitation agent to numerous debtors in the United States Bankruptcy Court for the
District of Delaware.
3.
I submit this Declaration with respect to the solicitation of votes and the
tabulation of ballots cast on the Amended Joint Chapter 11 Plan of Liquidation of Kabbage, Inc.
(d/b/a KServicing) and its Affiliated Debtors [Docket No. 466] (as amended, modified, or
supplemented from time to time, the “Plan”).2
4.
Except as otherwise noted in this Declaration, all facts set forth herein are
based on my personal knowledge, information supplied to me or verified by individuals under my
supervision, my review of relevant documents, and/or my opinion based upon my experience. If
called upon to testify, I could and would testify competently as to the facts set forth herein.
Service and Transmittal of Solicitation Packages and the Tabulation Process
5.
The procedures for the solicitation and tabulation of votes (the “Solicitation
Procedures”) are set forth in the Order (I) Approving the Disclosure Statement of the Debtors,
(II) Establishing Solicitation, Voting, and Related Procedures, (III) Scheduling Confirmation

2 Capitalized terms used but not otherwise defined shall have the meanings ascribed to them in the Plan or the
Disclosure Statement Order (defined herein), as applicable.
Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 2 of 7

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Hearing, (IV) Establishing Notice and Objection Procedures for Confirmation of Plan, (V)
Approving Special Electronic Noticing Procedures, (VI) Approving Debtors’ Proposed Cure
Procedures for Unexpired Leases and Executory Contracts, and (VII) Granting Related Relief
[Docket No. 470] (the “Disclosure Statement Order”) As set forth herein, Omni adhered to these
procedures.
6.
The Disclosure Statement Order established January 19, 2023, as the record
date for determining which holders were entitled to vote on the Plan (the “Voting Record Date”).
Pursuant to the Plan and the Solicitation Procedures, only holders of claims as of the Voting Record
Date in Class 3 (Reserve Bank Claims) and Class 4 (General Unsecured Claims) (collectively, the
“Voting Classes”) were entitled to vote on the Plan. No other Classes were entitled to vote on the
Plan.
7.
In accordance with the Solicitation Procedures, Omni worked closely with
the Debtors and their advisors to identify the holders of Claims entitled to vote as of the Voting
Record Date and to coordinate the distribution of (i) the Disclosure Statement (with all exhibits
attached thereto, including the Plan), (ii) the Disclosure Statement Order (without exhibits), (iii)
the Confirmation Hearing Notice, (iv) an applicable Ballot, and (v) a return envelope (collectively,
the “Solicitation Package”). A detailed description of Omni’s distribution of the Solicitation
Package is set forth in the Affidavits of Service filed at Docket Nos. 518, 519, 520, 521, and 522.
8.
In accordance with the Solicitation Procedures, Omni reviewed, determined
the validity of, and tabulated the Ballots submitted to vote on the Plan. Each Ballot submitted to
Omni was date-stamped, scanned, entered in Omni’s voting database, and processed in accordance
with the Solicitation Procedures. To be included in the tabulation results as valid, a Ballot must
have been (a) properly executed and completed pursuant to the Solicitation Procedures,
Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 3 of 7

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(b) returned to Omni via Omni’s online electronic balloting portal or by an approved method of
delivery set forth in the Solicitation Procedures, and (c) received by Omni by 5:00 p.m., prevailing
Eastern Time, on February 28, 20233 (the “Voting Deadline”), except to the extent the Voting
Deadline was extended by the Debtors.4
9.
All Ballots cast by holders entitled to vote in the Voting Classes that were
received by Omni on or before the Voting Deadline were tabulated pursuant to the Solicitation
Procedures.
10.
The summary and final tabulation of timely and properly completed Ballots
is attached hereto as Exhibit A,5 and a summary chart6 is set forth below:
Class 3 (Reserve Bank Claims)
Result
Debtor
Kabbage, Inc d/b/a KServicing

Ballots Received
1 vote accepting the Plan
0 votes rejecting the Plan
ACCEPTED
Accept
100% in number of votes accepting the Plan
100% in dollar amount accepting the Plan
($536,450,940.00)
Reject
0% in number of votes rejecting the Plan
0% in dollar amount rejecting the Plan ($0.00)

3 On February 10, 2023, the Voting Deadline was extended from February 21, 2023 to February 28, 2023 at 5:00 p.m.
(Prevailing Eastern Time). See Docket No. 523
4 The Voting Deadline was extended by agreement to March 2, 2023 for the Federal Reserve Bank of San Francisco.
5 The Debtors received four (4) valid Class 4 Ballots in which the holder abstained from voting and elected to opt-out
of the Third Party Releases (defined below). Such Ballots are included in tabulation report but are not reflected in
the summary chart. As described below, a list of holders of Claims or Interests that have opted out of the Third
Party Releases is attached as Exhibit D.
6 Pursuant to the Plan, the Disclosure Statement Order and section 1129(a)(8) of the Bankruptcy Code, Class 4
(General Unsecured Claims) with respect to the cases of Kabbage Canada Holdings, LLC, Kabbage Asset
Securitization LLC, Kabbage Asset Funding 2017-A LLC, Kabbage Asset Funding 2019-A LLC, and Kabbage
Diameter, LLC shall be deemed eliminated from the Plan for purposes of voting to accept or reject the Plan and for
purposes of determining acceptance or rejection of the Plan.
Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 4 of 7

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Class 4 (General Unsecured Claims)
Result
Debtor
Kabbage, Inc d/b/a KServicing

Ballots Received
18 votes accepting the Plan
24 votes rejecting the Plan
REJECTED
Accept
39.13% in number of votes accepting the Plan
33.70% in dollar amount accepting the Plan
($504,957.42)
Reject
52.17% in number of votes rejecting the Plan
66.30% in dollar amount rejecting the Plan
($993,562.25)
Class 3 (Reserve Bank Claims)
Result
Debtor
Kabbage Canada Holdings, LLC

Ballots Received
1 vote accepting the Plan
0 votes rejecting the Plan
ACCEPTED
Accept
100% in number of votes accepting the Plan
100% in dollar amount accepting the Plan ($1.00)
Reject
0% in number of votes rejecting the Plan
0% in dollar amount rejecting the Plan ($0.00)
Class 3 (Reserve Bank Claims)
Result
Debtor
Kabbage Asset Securitization, LLC

Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 5 of 7

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Class 3 (Reserve Bank Claims)
Result
Debtor
Kabbage Asset Funding 2019-A, LLC

11.
Attached hereto as Exhibit B is a list of Claims that were disallowed solely
for voting purposes pursuant to stipulations entered into between the Debtors and the holders of
such Claims.7
12.
Attached hereto as Exhibit C is a list of Ballots that did not conform to the
voting instructions, or which were irregular or defective.
13.
There were no Ballots submitted for which the Debtors waived any defect
or irregularity.

7 In addition, on February 14, 2023, the Debtors filed the Debtors’ Objection for Temporary Disallowance of Claims
Filed by Cole Ratias Solely for Voting Purposes [Docket No. 536] (the “Voting Objection”). No Rule 3018 Motions
were received before the Rule 3018 Deadline. Accordingly, all claims identified in the Voting Objection were
disallowed for purposes of voting on the Plan.
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Opt-Outs of Third Party Releases
14.
The Ballots included instructions on how to opt-out of the third party
releases provided for in Section 10.6 of the Plan (the “Third Party Releases”). Further, the Plan
provides that holders of Claims not entitled to vote on the Plan have the ability to opt-out of the
Third Party Releases by objecting to such releases and the Confirmation Hearing Notice provided
clear instructions for filing objections to the Plan, including in order to opt-out of the Third Party
Releases. Further, I have been informed and it is my understanding that certain parties contacted
counsel to the Debtors in lieu of filing a formal objection indicating that they opted out of the Third
Party Releases. A list of parties that opted out of the Third Party Releases by either indicating
such election on a Ballot or informally or formally objecting to the Third Party Releases is attached
hereto as Exhibit D.
To the best of my knowledge, information, and belief, I declare under penalty of
perjury that the foregoing information concerning the distribution, submission, and tabulation of
Ballots in connection with the Plan is true and correct.

Dated: March 9, 2023
Pearland, Texas

/s/ Kim D. Steverson

Kim D. Steverson
Vice President, Corporate Restructuring
Services
Omni Agent Solutions
Case 22-10951-CTG Doc 635 Filed 03/09/23 Page 7 of 7

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Declaration of Kim D. Steverson re Ballot Solicitation and Tabulation — In re KServicing (Bankr. D. Del.)

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