Full text
RLF1 28074910v.1
Exhibit A
Proposed Order
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 1 of 24
RLF1 28074910v.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
In re
:
Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., :
Case No. 22-10951 (CTG)
:
:
Debtors.1
:
:
:
(Jointly Administered)
Ref. Docket No. __
------------------------------------------------------------ x
ORDER (I) ESTABLISHING A GENERAL BAR DATE TO FILE
PROOFS OF CLAIM, (II) ESTABLISHING A BAR DATE TO FILE
PROOFS OF CLAIM BY GOVERNMENTAL UNITS, (III) ESTABLISHING
AN AMENDED SCHEDULES BAR DATE, (IV) ESTABLISHING A REJECTION
DAMAGES BAR DATE, (V) APPROVING THE FORM AND MANNER FOR FILING
PROOFS OF CLAIM, (VI) APPROVING THE PROPOSED NOTICE OF BAR
DATES, (VII) APPROVING PROCEDURES WITH RESPECT TO SERVICE OF THE
PROPOSED NOTICE OF BAR DATES, AND (VIII) GRANTING RELATED RELIEF
Upon the motion (the “Motion”)2 of Kabbage, Inc. d/b/a KServicing and its debtor
affiliates, as debtors and debtors in possession in the Chapter 11 Cases (collectively,
the “Debtors”), for entry of an order (i) establishing a bar date for the filing of proofs of claim
(each, a “Proof of Claim”) in respect of prepetition claims, including secured claims, unsecured
priority claims, unsecured non-priority claims, and claims arising under section 503(b)(9) of title
11 of the United States Code (the “Bankruptcy Code”); (ii) establishing a bar date for the filing
of Proofs of Claim by governmental units in respect of prepetition claims against any of the
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.
2 Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in
the Motion.
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RLF1 28074910v.1
Debtors; (iii) establishing a bar date for filing of Proofs of Claim following the amendment or
supplement of the Debtors’ schedules of assets and liabilities (collectively, the “Schedules”);
(iv) establishing a bar date for filing of Proofs of Claim for damages arising from the Debtors’
rejection of executory contracts or unexpired leases; (v) approving the form and manner of filing
Proofs of Claim; (vi) approving the notice of the Bar Dates; (vii) approving the procedures with
respect to service of the proposed notice of the Bar Dates; and (viii) granting related relief, all as
more fully set forth in the Motion; and the Court having jurisdiction to consider the Motion and
the relief requested therein pursuant to 28 U.S.C. §§ 157(a)–(b) and 1334(b), and the Amended
Standing Order of Reference from the United States District Court for the District of Delaware,
dated February 29, 2012; and consideration of the Motion and the requested relief being a core
proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to
28 U.S.C. §§ 1408 and 1409; and due and proper notice of the Motion having been provided; and
such notice having been adequate and appropriate under the circumstances; and it appearing that
no other or further notice need be provided; and this Court having held a hearing, if necessary, to
consider the relief requested in the Motion (the “Hearing”), if necessary; and upon the record of
the Hearing; and this Court having determined that the legal and factual bases set forth in the
Motion establish just cause for the relief granted herein; and after due deliberation and sufficient
cause appearing therefor,
IT IS HEREBY ORDERED THAT
1.
The Motion is granted to the extent set forth herein.
2.
Unless otherwise provided herein, the following Bar Dates are hereby
approved and established in these Chapter 11 Cases:
a.
establish November 28, 2022 at 5:00 p.m. (Prevailing Eastern Time) as
the deadline for each person or entity (including individuals, partnerships,
corporations, joint ventures, and trusts, but not including any governmental
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RLF1 28074910v.1
units (as defined in section 101(27) of the Bankruptcy Code)
(“Governmental Units”)), to file a proof of claim (each, a “Proof of
Claim”) in respect of a prepetition claim (as defined in section 101(5) of
the Bankruptcy Code), including, for the avoidance of doubt, secured
claims, unsecured priority claims, and unsecured non-priority claims (the
“General Bar Date”), unless otherwise provided herein;
b.
establish April 3, 2023 at 5:00 p.m. (Prevailing Eastern Time) as the
deadline for Governmental Units to file a Proof of Claim in respect of a
prepetition claim against any of the Debtors (the “Governmental Bar
Date”);
c.
establish the later of (i) the General Bar Date or the Governmental Bar
Date, as applicable, and (ii) 5:00 p.m. (Prevailing Eastern Time) on the
date that is thirty (30) days from the date on which the Debtors provide
notice of a previously unscheduled claim, an amendment to the
Schedules (which, for the avoidance of doubt, shall include a change to
whether a claim is listed on the Schedules as “contingent,”
“unliquidated,” or “disputed,”) or a supplement to the Schedules (as
defined herein) as the deadline by which claimants holding claims affected
by such filing, amendment, or supplement must file Proofs of Claim with
respect to such claim (the “Amended Schedules Bar Date”);
d.
establish the later of (i) the General Bar Date or the Governmental Bar
Date, as applicable, and (ii) 5:00 p.m. (Prevailing Eastern Time) on the
date that is thirty (30) days following service of an order approving
rejection of any executory contract or unexpired lease of the Debtors as
the deadline by which claimants asserting claims resulting from the
Debtors’ rejection of an executory contract or unexpired lease must file
Proofs of Claim for damages arising from such rejection3 (the “Rejection
Damages Bar Date,” and, collectively with the General Bar Date, the
Governmental Bar Date, and the Amended Schedules Bar Date, the “Bar
Dates”);
e.
approve the Debtors’ proposed procedures for filing Proofs of Claim;
f.
approve the Debtors’ proposed form of Proof of Claim attached as Exhibit
1 to the Proposed Order (as defined below) (the “Proof of Claim Form”);
g.
approve the Debtors’ proposed procedures for providing notice of the Bar
Dates, including (i) the form of notice, substantially in the form annexed as
Exhibit 2 to the Proposed Order (as defined below) (the “Bar Date
Notice”), (ii) the proposed notice procedures with respect to providing
notice of the Bar Dates to Borrowers (as defined below), and (iii) the form
of publication notice of the Bar Dates (the “Publication Notice”); and
h.
grant related relief.
3 Provided that notwithstanding the foregoing, a party to an executory contract or unexpired lease that has not been
rejected by the Debtors by the date of entry of the Bar Date Order who asserts a claim on account of unpaid amounts
accrued and outstanding as of the Petition Date pursuant to such executory contract or unexpired lease (other than a
rejection damages claim) must file a Proof of Claim for such amounts on or before the applicable Bar Date, unless an
exception identified in this Motion or the Proposed Order applies.
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3.
The Proof of Claim Form, substantially in the form annexed hereto as
Exhibit 1, is approved.
4.
The proposed notice of the Bar Date, substantially in the form annexed
hereto as Exhibit 2 (the “Bar Date Notice”), is approved.
5.
The Borrower Notice, substantially in the form annexed hereto as Exhibit
3, is approved.
6.
The following Procedures for filing Proofs of Claim are hereby approved:
a.
Proofs of Claim must conform substantially to either (i) the Proof of Claim
Form or (ii) Official Form 410;4
b.
Proofs of Claim must be (i) filed electronically through the Omni’s Proof
of
Claim
website
for
these
cases
at
https://omniagentsolutions.com/kservicing by following instructions for
filing proofs of claim electronically; (ii) by transmitting the original proof
of claim by hand delivery, U.S. Postal Service mail, or overnight delivery
to Omni’s Claims Processing Center for the Debtors at Kabbage, Inc. d/b/a
KServicing, et al. Claims Processing c/o Omni Agent Solutions, 5955 De
Soto Ave., Suite 100, Woodland Hills, CA 91367.
c.
Proofs of Claim will be deemed filed only when received by Omni on or
before the applicable Bar Date;
d.
Proofs of Claim must (i) be signed by the claimant or, if the claimant is not
an individual, by an authorized agent of the claimant under penalty of
perjury; (ii) include supporting documentation (if voluminous, attach a
summary) or an explanation as to why documentation is not available; (iii)
be in the English language and (iv) be denominated in United States
currency;
e.
Proofs of Claim must specify by name and case number the Debtor against
which the claim is filed. If the holder asserts a claim against more than one
Debtor or has claims against different Debtors, a separate Proof of Claim
form must be filed with respect to each Debtor. If the holder lists multiple
Debtors on the Proof of Claim, then the Debtors will treat such claim as if
it is filed against the first listed Debtor. If the holder files a Proof of Claim
4 The Official Form 410 can be found at www.uscourts.gov/forms/bankruptcy-forms, the official website for the United
States Bankruptcy Courts. The Proof of Claim Form can be found at https://omniagentsolutions.com/kservicing, the
website established by Omni for the Debtors’ Chapter 11 Cases.
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without identifying a Debtor, such Proof of Claim will be deemed as filed
only against Kabbage, Inc. d/b/a KServicing;
f.
Proofs of Claim sent by facsimile, telecopy, or electronic mail transmission
will not be accepted.
7.
Except as otherwise set forth herein, the following persons or entities
holding claims against the Debtors arising prior to the Petition Date are required to file Proofs of
Claim on or before the applicable Bar Date:
a.
any person or entity whose claim against a Debtor is not listed in the
applicable Debtor’s Schedules or is listed as “contingent,” “unliquidated,”
or “disputed,” if such entity desires to participate in any of these Chapter 11
Cases or share in any distribution in any of these Chapter 11 Cases;
b.
any person or entity that believes that its claim is improperly classified in
the Schedules or is listed in an incorrect amount and that desires to have its
claim allowed in a different classification or amount other than that
identified in the Schedules; and
c.
any person or entity that believes that any prepetition claim as listed in the
Schedules is not an obligation of the specific Debtor against which the claim
is listed and that desires to have its claim allowed against a Debtor other
than the Debtor identified in the Schedules.
8.
The persons or entities (including, without limitation, individuals,
partnerships, corporations, joint ventures, trusts, or Governmental Units) who hold the following
claims are not required to file a Proof of Claim on or before the applicable Bar Date, solely with
respect to the claims described below:
a.
any claim listed on the Schedules filed by the Debtors; provided, that (i) the
claim is not listed on the Schedules as “disputed,” “contingent,” or
“unliquidated,” (ii) the person or entity does not dispute the amount, nature,
and priority of the claim as set forth in the Schedules, and (iii) the person or
entity does not dispute that the claim is an obligation of the specific Debtor
against which the claim is listed in the Schedules;
b.
any claim as to which the holder already has filed a signed Proof of Claim
with Omni against the respective Debtor(s) with respect to the claim being
asserted, utilizing the Proof of Claim Form or the Official Form 410, and
has otherwise complied with the Procedures;
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c.
an administrative expense allowable under section 503(b) and 507(a)(2) of
the Bankruptcy Code as an expense of administration (but not, for the
avoidance of doubt, claims asserting priority pursuant to section 503(b)(9)
of the Bankruptcy Code);
d.
any claim that has been allowed by order of this Court entered on or before
the applicable Bar Date;
e.
any claim that has been paid in full or will be paid in full in accordance with
the Bankruptcy Code or an order of this Court;
f.
any claim for which a separate deadline has been fixed by an order of this
Court entered on or before the applicable Bar Date;
g.
any equity interest in the Debtors, which interest exclusively is based upon
the ownership of common or preferred stock, membership interests,
partnership interests, or warrants, options, or rights to purchase, sell, or
subscribe to such a security or interest; provided, that if any such holder
asserts a claim (as opposed to an ownership interest) against the Debtors
(including a claim relating to an equity interest or the purchase or sale of
such equity interest), a Proof of Claim must be filed on or before the
applicable Bar Date pursuant to the Procedures set for the herein;
h.
a claim held by a current employee of the Debtors, if an order of the Court
authorized the Debtors to honor such claim in the ordinary course of
business for wages, commissions, or benefits; provided, that a current
employee must submit a Proof of Claim by the applicable Bar Date for all
other claims arising before the Petition Date, including, but not limited to,
claims with respect to the Debtors’ non-qualified deferred compensation
plan or for wrongful termination, discrimination, harassment, hostile work
environment, and/or retaliation;
i.
any claim based on indemnification, contribution, or reimbursement of a
current officer, director, or employee of any of the Debtors; and
j.
any claim held by a Debtor or non-Debtor subsidiary or affiliate against
another Debtor.
9.
Pursuant to Bankruptcy Rule 3003(c)(2), any holder of a claim who is
required to timely file a Proof of Claim on or before the applicable Bar Date as provided herein,
but fails to do so, (i) shall not be treated as a creditor with respect to such claim for the purposes
of voting on a chapter 11 plan and distribution in these Chapter 11 Cases on account of such claim.
10.
Pursuant to Bankruptcy Rules 2002(a)(7), (f), and (l), the Debtors shall
provide notice of the Bar Dates, other than with respect to Borrowers, in accordance with the
following Procedures:
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a.
Within five (5) business days of entry of an order granting the relief
requested herein (the “Bar Date Order”) or within five (5) business days
after the Debtors file their Schedules, the Debtors propose to cause to be
mailed (i) a copy of the Proof of Claim Form and (ii) the Bar Date Notice,
substantially in the form annexed as Exhibit 2 to the Proposed Order to the
following parties:
i.
the Office of the United States Trustee for the District of Delaware
(the “U.S. Trustee”);
ii.
counsel to any statutorily appointed committee in these Chapter 11
Cases;
iii.
all known creditors and other known holders of potential claims
against any of the Debtors’ estates;
iv.
all counterparties to the Debtors’ executory contracts and unexpired
leases at the addresses stated therein or as updated pursuant to a
request by the counterparty or by returned mail from the post office
with a forwarding address;
v.
all parties to pending litigation against the Debtors (as of the date of
entry of the Bar Date Order);
vi.
all persons or entities who have filed claims (as of the date of entry
of the Bar Date Order);
vii.
all parties who have sent correspondence to the Court and are listed
on the Court’s electronic docket (as of the date of entry of the Bar
Date Order);
viii.
all parties who have requested notice pursuant to Bankruptcy Rule
2002 (as of the date of entry of the Bar Date Order);
ix.
all current and former employees of the Debtors (to the extent that
contact information for former employees is available in the
Debtors’ records;
x.
all known non-Debtor equity and interest holders of the Debtors as
of the date of entry of the Bar Date Order;
xi.
the Internal Revenue Service, the United States Attorney’s Office
for the District of Delaware, and all applicable Governmental Units;
xii.
all taxing authorities for the jurisdictions in which the Debtors
maintain or conduct business;
xiii.
all regulatory authorities that regulate the Debtors’ businesses,
including consumer protection, environmental, and permitting
authorities;
xiv.
such additional persons and entities deemed appropriate by the
Debtors; and
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xv.
to the extent not already included above, all parties (other than
Borrowers) listed on the Debtors’ consolidated creditor matrix
[Docket No. 20] and any amendments or supplements thereto.
b.
The Debtors shall post the Proof of Claim Form and the Bar Date Notice on
the
website
established
by
Omni
for
the
Debtors’
cases:
https://omniagentsolutions.com/kservicing.
11.
The Debtors shall serve the Bar Date Notice on the Borrowers by email, in
accordance with the procedures approved in the Creditor Matrix Order [Docket No. 77], provided
however, that the Debtors shall serve the Mail Notice Borrowers by mail, if the mailing address is
available, also in accordance with the procedures approved in the Creditor Matrix Order, with the
Borrower Notice via first-class presort postage or the most cost-effective method available within
five (5) business days of the entry of this Order.
12.
The Debtors shall publish the Publication Notice, at least twenty-one (21)
days prior to the General Bar Date, or as soon as practicable thereafter, with any necessary
modifications for ease of publication, once in each of the national editions of The New York Times
and USA Today, and in the Debtors’ sole discretion, to publish the Publication Notice in additional
national and/or local newspapers, trade journals, or similar publications, subject to applicable
publication deadlines, which publication is approved and shall be deemed good, adequate, and
sufficient publication notice of the Bar Dates and the Procedures for filing Proofs of Claim in these
Chapter 11 Cases.
13.
The Debtors and Omni are authorized and empowered to take such steps
and perform such acts as may be necessary to implement and effectuate the terms of this Order.
14.
Notification of the relief granted by this Order as provided herein is fair and
reasonable and will provide good, sufficient, and proper notice to all creditors (including for the
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 9 of 24
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avoidance of doubt, Borrowers) of their rights and obligations in connection with claims they may
have against the Debtors in these Chapter 11 Cases.
15.
Nothing in this Order shall prejudice the right of the Debtors or any other
party in interest to dispute or assert offsets or defenses to any claim reflected in the Schedules or
otherwise.
16.
Entry of this Order is without prejudice to the right of the Debtors to seek a
further order of this Court fixing the date by which holders of claims not subject to the Bar Dates
established herein must file such claims against the Debtors.
17.
This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation and/or enforcement of this Order.
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 10 of 24
RLF1 28074910v.1
Exhibit 1
Proof of Claim Form
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 11 of 24
Official Form 410
Proof of Claim
Page 1
Part 1:
UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE
Official Form 410
Proof of Claim
Read the instructions before filling out this form. This form is for making a claim for payment in a bankruptcy case. Do not use this form to
make a request for payment of an administrative expense. Make such a request according to 11 U.S.C. § 503.
04/22
Filers must leave out or redact information that is entitled to privacy on this form or on any attached documents. Attach redacted copies of any
documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments,
mortgages, and security agreements.
explain in an attachment.
Do not send original documents; they may be destroyed after scanning. If the documents are not available,
A person who files a fraudulent claim could be fined up to $500,000, imprisoned for up to 5 years, or both. 18 U.S.C. §§ 152, 157, and 3571.
Fill in all the information about the claim as of the date the case was filed. That date is on the notice of bankruptcy (Form 309) that you received.
Carefully read instructions included with this Proof of Claim before completing. In order to have your claim considered for payment and/or voting purposes,
complete ALL applicable questions.
The original of this Proof of Claim must be sent to: Kabbage, Inc. dba KServicing, et al., c/o Omni Agent Solutions,
5955 De Soto Avenue, Suite 100, Woodland Hills, CA 91367 by MON DD, YYYY at X:00 pm prevailing Eastern Time or MON DD, YYYY
at X:00 pm prevailing Eastern time for governmental entities.
Identify the Claim
1. Who is the current creditor?
Name of the current creditor (the person or entity to be paid for this claim)
Other names the creditor used with the debtor
2. Has this claim been acquired
from someone else?
No
Yes
From whom?
3. Where should notices and
payments to the creditor be
sent?
Federal Rule of
Bankruptcy Procedure
(FRBP) 2002(g)
Where should notices to the creditor be sent?
Where should payments to the creditor be sent? (if
different)
Name
Name
Number
Street
Number
Street
City
State
ZIP Code
City
State
ZIP Code
Contact Phone
Contact Phone
Contact email
Contact email
Uniform claim identifier for electronic payments in chapter 13 (if you use one)
4. Does this claim amend one
already filed?
No
Yes
Claim Number on court claims registry (if known)
Filed On
MM / DD / YYYY
5. Do you know if anyone else
has filed a proof of claim for
No
this claim?
Yes
Who made the earlier filing?
Fill in the information to identify the case (Select only one Debtor per form):
Kabbage, Inc. d/b/a KServicing (CASE NO. 22-10951)
Kabbage Asset Funding 2017-A, LLC (CASE NO. 22-10954)
Kabbage Canada Holdings, LLC (CASE NO. 22-10952)
Kabbage Asset Funding 2019-A, LLC (CASE NO. 22-10955)
Kabbage Asset Securitization, LLC (CASE NO. 22-10953)
Kabbage Diameter, LLC (CASE NO. 22-10956)
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 12 of 24
Official Form 410
Proof of Claim
Page 2
Give Information About the Claim as of the Date the Case Was Filed
6. Do you have any number you
No
use to identify the debtor?
Yes
Last 4 digits of the debtor's account or any number you use to identify the debtor:
7. How much is the claim?
$
Does this amount include interest or other charges?
No
Yes
Attach statement itemizing interest, fees, expenses, or other
charges required by Bankruptcy Rule 3001(c)(2)(A).
8. What is the basis of the
Examples: Goods sold, money loaned, lease, services performed, personal injury or wrongful death, or credit card.
claim?
Attach redacted copies of any documents supporting the claim required by Bankruptcy Rule 3001(c).
Limit disclosing information that is entitled to privacy, such as health care information
9. Is all or part of the claim
No
secured?
Yes
The claim is secured by a lien on property
Nature of property:
Real Estate If the claim is secured by the debtor's principal residence, file a Mortgage Proof of Claim
Attachment (Official Form 410-A) with this Proof of Claim
Motor Vehicle
Other
Describe:
Basis for perfection:
Attach redacted copies of documents, if any, that show evidence of perfection of a security interest (for example,
a mortgage, lien, certificate of title, financing statement, or other document that shows the lien has been filed or
recorded.
Value of Property:
$
Amount of the claim that is secured:
$
Amount of the claim that is unsecured:
$
(The sum of the secured and unsecured
amounts should match the amount in
line 7).
Amount necessary to cure any default as of the date of the petition:
$
Annual Interest Rate:
(when case was filed)
%
Fixed
Variable
10. Is this claim based on a
No
lease?
Yes Amount necessary to cure any default as of the date of the petition.
$
11. Is this claim subject to a
No
right of setoff?
Yes
Identify the property:
12. Is this claim for the value
No
of goods received by the
Yes
Amount of 503(b)(9) Claim: $
debtor within 20 days
before the
commencement date of
this case (11 U.S.C.
§503(b)(9)).?
Part 2:
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 13 of 24
Official Form 410
Proof of Claim
Page 3
Part 3:
13. Is all or part of the claim
entitled to priority under
11 U.S.C. § 507(a)?
No
Yes
Check all that apply
Amount entitled to priority
A claim may be partly
priority and partly
nonpriority. For example,
in some categories, the
law limits the amount
entitled to priority.
Domestic support obligations (including alimony and child support) under
11 U.S.C. § 507(a)(1)(A) or (a)(1)(B).
$
Up to $3,350* of deposits toward purchase, lease, or rental of property or services for
personal, family, or household use. 11 U.S.C. § 507(a)(7).
$
Wages, salaries, or commissions (up to $15,150*) earned within 180 days before the
bankruptcy petition is filed or the debtor's business ends, whichever is earlier. 11
$
U.S.C. § 507(a)(4).
Taxes or penalties owed to governmental units. 11 U.S.C. § 507(a)(8).
$
Contributions to an employee benefit plan 11 U.S.C. § 507(a)(5).
$
Other. Specify subsection of 11 U.S.C. § 507(a)(
) that applies.
$
* Amounts are subject to adjustment on 4/01/25 and every 3 years after that for cases begun on or after the date of adjustment.
Sign Below
The person completing
this proof of claim must
sign and date it.
FRBP 9011(b).
If you file this claim
electronically, FRBP
5005(a)(2) authorizes
Check the appropriate box:
I am the creditor.
I am the creditor's attorney or authorized agent.
I am the trustee, or the debtor, or their authorized agent. Bankruptcy Rule 3004. I
am the guarantor, surety, endorser, or other codebtor. Bankruptcy Rule 3005.
courts to establish local
rules specifying what a
I understand that an authorized signature on this Proof of Claim serves as an acknowlegment that when calculating the
signature is.
A person who files a
fraudulent claim could be
fined up to $500,000,
imprisoned for up to 5
years, or both.
18 U.S.C. §§ 152, 157, and
3571.
amount of the claim, the creditor gave the debtor credit for any payments received toward the debt.
I have examined the information in this Proof of Claim and have a reasonable belief that the information is true
and correct.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on date
MM / DD / YYYY
Signature
Print the name of the person who is completing and signing this claim:
Name
First Name
Middle Name
Last Name
Title
Company
Identify the corporate servicer as the company if the authorized agent is a servicer.
Address
Number
Street
City
State
ZIP Code
Contact Phone
Email
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 14 of 24
RLF1 28074910v.1
Exhibit 2
Bar Date Notice
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 15 of 24
RLF1 28074910v.1
UNITED STATES BANKRUPTCY COURT, DISTRICT OF DELAWARE
In re
KABBAGE, INC. D/B/A KSERVICING, et al.,
Debtors.
Chapter 11 Case Nos.: 22-10951 (CTG)
Through 22-10956
(Jointly Administered)
NOTICE OF DEADLINES TO FILE PROOFS OF CLAIM
TO: ALL PERSONS AND ENTITIES WHO MAY HAVE CLAIMS AGAINST ANY OF THE FOLLOWING DEBTOR
ENTITIES:
Name of Debtor
Case Number
Tax Identification Number
Kabbage, Inc.
22-10951
36-4973937
Kabbage Canada Holdings, LLC
22-10952
N/A
Kabbage Asset Securitization, LLC
22-10953
N/A
Kabbage Asset Funding 2017-A LLC
22-10954
61-1854803
Kabbage Asset Funding 2019-A LLC
22-10955
83-4698973
Kabbage Asset Diameter, LLC
22-10956
N/A
OTHER NAMES USED BY THE DEBTORS IN THE PAST 8 YEARS:
Kabbage, Inc.
d/b/a KServicing, Inc., KService Corp., KServicing, and Kabbage Platform
(Kabbage Platform used solely in the state of New York)
Attorneys for Debtors
Daniel J. DeFranceschi (No. 2732)
Zachary I. Shapiro (No. 5103)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
Attorneys for Debtors
Ray C. Schrock, P.C.
Natasha S. Hwangpo, Esq.
Chase A. Bentley, Esq.
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Address of the Clerk of the Bankruptcy Court
Clerk of the United States Bankruptcy Court,
824 North Market Street, 3rd Floor, Wilmington, DE 19801
Telephone: 302-252-2900
Hours Open: 8:00 a.m.–4:00 p.m. Monday–Friday
PLEASE TAKE NOTICE THAT:
YOU ARE RECEIVING THIS NOTICE BECAUSE YOU MAY HAVE A CLAIM AGAINST THE
DEBTORS IN THE ABOVE-CAPTIONED CHAPTER 11 CASES. THEREFORE, YOU SHOULD READ
THIS NOTICE CAREFULLY AND CONSULT AN ATTORNEY IF YOU HAVE ANY QUESTIONS,
INCLUDING WHETHER YOU SHOULD FILE A PROOF OF CLAIM.
On October 3, 2022 (the “Petition Date”), the Debtors commenced with the Court voluntary cases
under the Bankruptcy Code (the “Chapter 11 Cases”). The Debtors are authorized to continue operating their business
and managing their properties as debtors in possession pursuant to section 1107(a) and 1108 of the Bankruptcy Code.
No trustee, examiner, or statutory committee has been appointed in these Chapter 11 Cases.
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On [●], 2022, the Bankruptcy Court, having jurisdiction over the Chapter 11 Cases of the Debtors,
entered an order (the “Bar Date Order”) establishing the following Bar Dates:
i.
November 28, 2022 at 5:00 p.m. (Prevailing Eastern Time) as the deadline for each person or entity
(including individuals, partnerships, corporations, joint ventures, and trusts, but not including any
governmental units (as defined in section 101(27) of the Bankruptcy Code) (“Governmental Units”)),
to file a proof of claim (each, a “Proof of Claim”) in respect of a prepetition claim (as defined in section
101(5) of the Bankruptcy Code), including, for the avoidance of doubt, secured claims, unsecured
priority claims, and unsecured non-priority claims (the “General Bar Date”), unless otherwise provided
herein;
ii.
April 3, 2023 at 5:00 p.m. (Prevailing Eastern Time) as the deadline for Governmental Units to file a
Proof of Claim in respect of a prepetition claim against any of the Debtors (the “Governmental Bar
Date”);
iii.
the later of (i) the General Bar Date or the Governmental Bar Date, as applicable, and (ii) 5:00
p.m. (Prevailing Eastern Time) on the date that is thirty (30) days from the date on which the
Debtors provide notice of a previously unscheduled claim, an amendment to the Schedules (which,
for avoidance of doubt, shall include a change to whether a claim is listed on the Schedules as
“contingent,” “unliquidated,” or disputed,”) or a supplement to the Schedules (as defined herein)
as the deadline by which claimants holding claims affected by such filing, amendment, or supplement
must file Proofs of Claim with respect to such claim (the “Amended Schedules Bar Date”); and
iv.
the later of (i) the General Bar Date or the Governmental Bar Date, as applicable, and (ii) 5:00
p.m. (Prevailing Eastern Time) on the date that is thirty (30) days following service of an order
approving rejection of any executory contract or unexpired lease of the Debtors as the deadline by
which claimants asserting claims resulting from the Debtors’ rejection of an executory contract or
unexpired lease must file Proofs of Claim for damages arising from such rejection1 (the “Rejection
Damages Bar Date,” and, collectively with the General Bar Date, the Governmental Bar Date, and the
Amended Schedules Bar Date, the “Bar Dates”).
You may be a creditor of one or more of the debtors.
If you have any questions relating to this Notice, please feel free to contact Omni Agent
Solutions (“Omni”) at (866) 956-2138 (toll free) or (747) 226-5953 (international) or by e-mail at
KServicingInquiries@OmniAgnt.com.
NOTE: The staff of the Bankruptcy Clerk’s Office, the Office of the United States Trustee, and the Debtors’ Claims
and Noticing Agent cannot give legal advice.
INSTRUCTIONS:
1.
WHO MUST FILE A PROOF OF CLAIM
Except as otherwise set forth herein, the following entities holding claims against the Debtors arising prior
to the Petition Date are required to file Proofs of Claim on or before the applicable Bar Date:
a.
any person or entity whose claim against a Debtor is not listed in the applicable Debtor’s
Schedules or is listed as “contingent,” “unliquidated,” or “disputed,” if such entity desires
to participate in any of these Chapter 11 Cases or share in any distribution in any of these
Chapter 11 Cases;
1 Provided that notwithstanding the foregoing, a party to an executory contract or unexpired lease that has not been
rejected by the Debtors by the date of entry of the Bar Date Order who asserts a claim on account of unpaid amounts
accrued and outstanding as of the Petition Date pursuant to such executory contract or unexpired lease (other than a
rejection damages claim) must file a Proof of Claim for such amounts on or before the applicable Bar Date, unless an
exception identified in this Motion or the Proposed Order applies.
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b.
any person or entity that believes that its claim is improperly classified in the Schedules or
is listed in an incorrect amount and that desires to have its claim allowed in a different
classification or amount other than that identified in the Schedules; and
c.
any person or entity that believes that any prepetition claim as listed in the Schedules is not
an obligation of the specific Debtor against which the claim is listed and that desires to
have its claim allowed against a Debtor other than the Debtor identified in the Schedules.
Pursuant to section 101(5) of the Bankruptcy Code and as used in this Notice, the word “claim” means (i) a
right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (ii) a right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.
Further, claims include unsecured claims, secured claims, and priority claims.
Pursuant to section 101(15) of the Bankruptcy Code and as used in this Notice, the term “entity” has the
meaning given to it in section 101(15) of the Bankruptcy Code, and includes all persons, estates, trusts, and
governmental units. In addition, the terms “persons” and “governmental units” are defined in sections 101(41) and
101(27) of the Bankruptcy Code, respectively.
2.
WHO NEED NOT FILE A PROOF OF CLAIM
The persons or entities (including, without limitation, individuals, partnerships, corporations, joint ventures,
trusts, or Governmental Units) who hold the following claims are not required to file a Proof of Claim on or before
the applicable Bar Date, solely with respect to the claims described below:
a.
any claim listed on the Schedules filed by the Debtors; provided, that (i) the claim is not
listed on the Schedules as “disputed,” “contingent,” or “unliquidated,” (ii) the person or
entity does not dispute the amount, nature, and priority of the claim as set forth in the
Schedules, and (iii) the person or entity does not dispute that the claim is an obligation of
the specific Debtor against which the claim is listed in the Schedules;
b.
any claim as to which the holder already has filed a signed Proof of Claim with Omni
against the respective Debtor(s) with respect to the claim being asserted, utilizing the Proof
of Claim Form or the Official Bankruptcy Form No. 410 (the “Official Form 410”), and
has otherwise complied with the Procedures;
c.
an administrative expense allowable under section 503(b) and 507(a)(2) of the Bankruptcy
Code as an expense of administration (but not, for the avoidance of doubt, claims asserting
priority pursuant to section 503(b)(9) of the Bankruptcy Code);
d.
any claim that has been allowed by order of this Court entered on or before the applicable
Bar Date;
e.
any claim that has been paid in full or will be paid in full in accordance with the Bankruptcy
Code or an order of this Court;
f.
any claim for which a separate deadline has been fixed by an order of this Court entered
on or before the applicable Bar Date;
g.
any equity interest in the Debtors, which interest exclusively is based upon the ownership
of common or preferred stock, membership interests, partnership interests, or warrants,
options, or rights to purchase, sell, or subscribe to such a security or interest; provided, that
if any such holder asserts a claim (as opposed to an ownership interest) against the Debtors
(including a claim relating to an equity interest or the purchase or sale of such equity
interest), a Proof of Claim must be filed on or before the applicable Bar Date pursuant to
the Procedures set forth herein;
h.
a claim held by a current employee of the Debtors, if an order of the Court authorized the
Debtors to honor such claim in the ordinary course of business for wages, commissions, or
benefits; provided, that a current employee must submit a Proof of Claim by the applicable
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 18 of 24
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Bar Date for all other claims arising before the Petition Date, including, but not limited to,
claims with respect to the Debtors’ non-qualified deferred compensation plan or for
wrongful termination, discrimination, harassment, hostile work environment, and/or
retaliation;
i.
any claim based on indemnification, contribution, or reimbursement of a current officer,
director, or employee of any of the Debtors; and
j.
any claim held by a Debtor or non-Debtor subsidiary or affiliate against another Debtor.
The fact that you have received this notice does not mean that you have claim or that the Debtors or
the Court believe that you have a claim against the Debtors. You should not file a Proof of Claim if you do not
have a claim against any of the Debtors.
3.
INSTRUCTIONS FOR FILING PROOFS OF CLAIM
Except as otherwise set forth herein, each entity that asserts a claim against the Debtors that arose
before the Petition Date MUST file a Proof of Claim.
The following procedures with respect to preparing and filing of Proofs of Claim will apply:
a.
Proofs of Claim must conform substantially to either (i) the Proof of Claim Form or (ii) the
Official Form 410;2
b.
Proofs of Claim must be filed (i) electronically through the Omni’s Proof of Claim website
for these cases at https://omniagentsolutions.com/kservicing by following instructions for
filing proofs of claim electronically; (ii) by transmitting the original proof of claim by hand
delivery, U.S. Postal Service mail, or overnight delivery to Omni’s Claims Processing
Center for the Debtors at Kabbage, Inc. d/b/a KServicing, et al. Claims Processing, c/o
Omni Agent Solutions, 5955 De Soto Ave., Suite 100, Woodland Hills, CA 91367.
c.
Proofs of Claim will be deemed filed only when received by the Omni on or before the
applicable Bar Date;
d.
Proofs of Claim must (i) be signed by the claimant or, if the claimant is not an individual,
by an authorized agent of the claimant under penalty of perjury; (ii) include supporting
documentation (if voluminous, attach a summary) or an explanation as to why
documentation is not available; (iii) be in the English language and (iv) be denominated in
United States currency;
e.
Proofs of Claim must specify by name and case number the Debtor against which the claim
is filed. If the holder asserts a claim against more than one Debtor or has claims against
different Debtors, a separate Proof of Claim form must be filed with respect to each Debtor.
If the holder lists multiple Debtors on the Proof of Claim, then the Debtors will treat such
claim as if it is filed against the first listed Debtor. If the holder files a Proof of Claim
without identifying a Debtor, such Proof of Claim will be deemed as filed only against
Kabbage, Inc. d/b/a KServicing;
f.
Proofs of Claim sent by facsimile, telecopy, or electronic mail transmission will not be
accepted.
4.
CONSEQUENCES OF FAILURE TO TIMELY FILE A PROOF OF CLAIM BY THE
APPLICABLE BAR DATE
Pursuant to the Bar Date Order and Bankruptcy Rule 3003(c)(2), any holder of a claim who is
required to timely file a Proof of Claim on or before the applicable Bar Date as provided herein, but fails to do
2 The Official Form 410 can be found at www.uscourts.gov/forms/bankruptcy-forms, the official website for the United
States Bankruptcy Courts. The Proof of Claim Form can be found at https://omniagentsolutions.com/kservicing, the
website established by Omni for the Debtors’ chapter 11 cases.
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 19 of 24
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so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution in
these Chapter 11 Cases on account of such claim.
5.
THE DEBTORS’ SCHEDULES, ACCESS THERETO, AND CONSEQUENCES OF AMENDMENT
THEREOF
You may be listed as the holder of a claim against the Debtors in the Debtors’ Schedules of Assets
and Liabilities (collectively, the “Schedules”). To determine if and how you are listed in the Schedules, please refer
to the descriptions set forth on the enclosed Proof of Claim Form regarding the nature, amount, and status of your
claim(s). If you received postpetition payments from the Debtors (as authorized by the Court) on account of your
claim, the enclosed Proof of Claim Form will reflect the net amount of your claims. If the Debtors believe that you
hold claims against more than one Debtor, you will receive multiple Proof of Claim Forms, each of which will reflect
the nature and amount of your claim against each Debtor, as listed in the Schedules.
As set forth above, if you agree with the nature, amount, and status of your claim as listed in the
Debtors’ Schedules and if your claim is not listed in the Schedules as “disputed,” “contingent,” or “unliquidated,” you
need not file a Proof of Claim. Otherwise, or if you decide to file a Proof of Claim, you must do so before the Bar
Date in accordance with the procedures set forth in this Notice.
Copies of the Schedules may be examined by interested parties on the Court’s electronic docket for
the Debtors’ Chapter 11 Cases, which is posted (i) on the website established by Omni for the Debtors’ cases at
https://omniagentsolutions.com/kservicing and (ii) on the Court’s website at www.deb.uscourts.gov. (A login and
password to the Court’s Public Access to Electronic Court Records (“PACER”) are required to access the information
on the Court’s website and can be obtained through the PACER Service Center at www.pacer.psc.uscourts.gov).
Copies of the Schedules also may be examined between the hours of 8:00 a.m. and 5:00 p.m. (Prevailing Eastern
Time) Monday through Friday at the Office of the Clerk of the Bankruptcy Court, 824 North Market Street, 3rd Floor,
Wilmington, DE 19801. Copies of the Debtors’ Schedules also may be obtained by written request to the Debtors’
claims agent, Omni, at the address and telephone number set forth below:
Kabbage, Inc. d/b/a KServicing, et al. Claims Processing
c/o Omni Agent Solutions
5955 De Soto Ave., Suite 100
Woodland Hills, CA 91367
(866) 956-2138 (toll free)
(747) 226-5953 (international)
In the event that the Debtors amend or supplement their Schedules subsequent to date of entry of
the Bar Date Order, the Debtors shall give notice of any amendment or supplement to the holders of claims affected
by such amendment or supplement within fourteen (14) days after filing such amendment or supplement, and such
holders must file a Proof of Claim by the later of (a) the General Bar Date or the Governmental Bar Date, as
applicable, and (b) 5:00 p.m. (Prevailing Eastern Time) on the date that is thirty (30) days from the date on
which the Debtors provide notice of a previously unfiled Schedule or an amendment or supplement to the
Schedules, , and such deadline shall be contained in any notice of such amendment or supplement of the Schedules
provided to the holders of claims affected thereby.
6.
RESERVATION OF RIGHTS
Nothing contained in this Notice is intended to or should be construed as a waiver of the Debtors’
right to: (a) dispute, or assert offsets or defenses against, any filed claim or any claim listed or reflected in the
Schedules as to the nature, amount, liability, or classification thereof; (b) subsequently designate any scheduled claim
as disputed, contingent, or unliquidated; and (c) otherwise amend or supplement the Schedules.
If you require additional information regarding the filing of a proof of claim, you may contact the Debtors’
Claims and Noticing Agent directly at: Kabbage, Inc. d/b/a KServicing, et al. c/o Omni Agent Solutions, 5955
De Soto Ave., Suite 100, Woodland Hills, CA 91367; Telephone: (866) 956-2138 (toll free) or (747) 226-5953
(international); or by e-mail at KServicingInquiries@omniagnt.com.
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 20 of 24
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A holder of a possible claim against the Debtors should consult an attorney if such holder has any questions
regarding this Notice, including whether the holder should file a Proof of Claim.
Dated:
Wilmington, Delaware
BY ORDER OF THE COURT
____________, 2022
Ray C. Schrock, P.C.
Candace M. Arthur
Natasha S. Hwangpo
Chase A. Bentley
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
Facsimile: (212) 310-8007
Daniel J. DeFranceschi
Amanda R. Steele
Zachary I. Shapiro
Matthew P. Milana
RICHARDS, LAYTON & FINGER, PA
One Rodney Square
920 N. King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
PROPOSED ATTORNEYS FOR DEBTORS AND DEBTORS IN POSSESSION
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 21 of 24
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Exhibit 3
Borrower Notice
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 22 of 24
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KABBAGE, INC. D/B/A KSERVICING
No. 22-10951 (CTG) (Bankr. D. Del. 2022)
Kabbage, Inc., d/b/a KServicing
925B Peachtree Street NE, Suite 383
Atlanta, GA 30309
[GIVEN NAME] [MIDDLE INITIAL] [SURNAME/
FIRM NAME] [SURNAME SUFFIX]
[ADDRESS FIELDS FROM NCOA/CASS] -
including country
IMPORTANT LEGAL NOTICE
Read this Notice carefully. Your rights may
be affected.
Kabbage, Inc. d/b/a/ KServicing and certain of
its affiliates (“Debtors”) filed bankruptcy
cases in the U.S. Bankruptcy Court for the
District of Delaware (“Court”). You have been
identified as a current or former borrower of
the Debtors. This notice sets forth the
deadline for asserting claims against the
Debtors and other information.
If you wish to assert a claim, you must file a
proof of claim in accordance with deadlines
and instructions on this notice. If you fail to
do so, your claim may be forever barred and
you may receive no recovery on account
thereof.
For more information, call (866) 956‐2138
(toll free) or (747) 226‐5953 (international),
visit
https://omniagentsolutions.com/kservicing
(“Case
Website”),
or
email
KServicingInquiries@OmniAgnt.com.
For
legal advice, you should contact an attorney.
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 23 of 24
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Commencement. On October 3, 2022 (“Petition Date”), the Debtors each filed a petition for relief under
chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the Court.
Deadline for Filing Proofs of Claim. On [●], the Court entered an order [Docket No. [●]] establishing
November 28, 2022, at 5:00 p.m. (Prevailing Eastern Time) (the “General Bar Date”) as the deadline for
each person or entity to file a proof of claim (each, a “Proof of Claim”) in respect of a prepetition claim (as
defined in section 101(5) of the Bankruptcy Code), in respect of a prepetition claim against of the
Debtors, including, for the avoidance of doubt, secured claims, unsecured priority claims, unsecured non‐
priority claims, and claims arising under section 503(b)(9) of the Bankruptcy Code. If you believe you have
a claim against the Debtors, you must file a Proof of Claim, even if you are included in a class action lawsuit
or other representative action filed against the Debtors. Information about how to file a Proof of Claim,
including the ability to file such claim electronically, is available on the Case Website. If you fail to file a
Proof of Claim before the General Bar Date, you may not receive any distribution in these chapter 11
cases on account of such claim.
Case 22-10951-CTG Doc 96-2 Filed 10/11/22 Page 24 of 24