Trinity - Objection to Claims for Voting Purposes (Filing Version)
- Date
- 2023-02-14
Summary
Doc 536-2, labeled Exhibit A, filed February 14, 2023 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), in the U.S. Bankruptcy Court for the District of Delaware. It is a declaration under 28 U.S.C. § 1746 by a Director at AlixPartners, LLP, the debtors' financial advisor, supporting the debtors' objection seeking temporary disallowance, solely for voting purposes, of claims filed by one claimant. The declaration states that the claimant filed six (6) proofs of claim, one against each debtor entity, asserting intellectual property and breach of contract claims. It states that the debtors reviewed their books and records and the claimant's state-court complaint against Radius Intelligence, Inc., and found no obligations owed to the claimant. Schedule 1 lists claim nos. 952-1, 953-1, 954-1, 956-1, 955-3 and 951-55.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 1 of 8
Exhibit A
Thoroddsen Declaration
RLF1 28598696V.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 2 of 8
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)
:
------------------------------------------------------------ x
DECLARATION OF
THORA THORODDSEN IN SUPPORT OF
THE DEBTORS’ OBJECTION FOR TEMPORARY DISALLOWANCE
OF CLAIMS FILED BY COLE RATIAS SOLELY FOR VOTING PURPOSES
I, Thora Thoroddsen, pursuant to 28 U.S.C. § 1746, hereby declare under penalty
of perjury that the following is true and correct to the best of my knowledge, information, and
belief:
1. I am a Director at AlixPartners, LLP (“AlixPartners”), who was retained
as financial advisor to Kabbage, Inc. d/b/a KServicing and its affiliated debtors in the above-
captioned chapter 11 cases (the “Chapter 11 Cases”), as debtors and debtors-in-possession
(collectively, the “Debtors”), by order of the Court entered on October 21, 2022, and have served
in such capacity since July, 2022.
2. I have been actively involved in the services provided by AlixPartners to
the Debtors. In particular, I was directly involved in preparing the Debtors’ requests for first-day
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.
RLF1 28598696V.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 3 of 8
relief sought on the Petition Date and the Debtors’ schedules of assets and liabilities and statements
of financial affairs. I have also led efforts to take inventory of and analyze all proofs of claim filed
against the Debtors. Through these efforts, I have become generally knowledgeable and familiar
with the Debtors’ day-to-day operations, business and financial affairs, books and records, and the
progression of these Chapter 11 Cases.
3. I have reviewed the Debtors’ Objection for Temporary Disallowance of
Claims Filed by Cole Ratias Solely for Voting Purposes (the “Objection”), filed by the Debtors
contemporaneously herewith, and I am authorized to submit this declaration (this “Declaration”)
on behalf of the Debtors in support of the Objection. Except as otherwise indicated herein, the
facts set forth in this Declaration are based upon my personal knowledge, my review of relevant
proofs of claim and documents, the Debtors’ books and records, information provided to me by
the Debtors and the Debtors’ advisors, and my opinion based upon my experience, knowledge,
and information concerning the Debtors. If called upon to testify, I would testify competently to
the facts set forth in this Declaration.
No Liability Claims
4. Based upon a careful review and analysis of the Debtors’ books and records
and the relevant proofs of claim, I believe that the No Liability Claims filed by Cole Ratias (the
“Claimant”), which are listed on Schedule 1 and summarized below, fail to provide any valid
basis upon which the Debtors are liable.
5. The Claimant filed six (6) proofs of claim, one against each of the Debtor
entities, asserting non-priority claims in a contingent and unliquidated amount. Each proof of
claim asserts “Infring[e]ment of intellectual property rights; unauthorized use of intellectual
property; breach of contract” as the basis for the claim. See proofs of claim nos. 952-1, 953-1,
2
RLF1 28598696v.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 4 of 8
954-1, 956-1, 955-3, and 951-55. After a thorough review of the Debtors’ books and records and
a complaint (the “Complaint”) filed by the Claimant in the Superior Court of California, County
of San Francisco for breach of contract, declaratory relief, and specific performance against Radius
Intelligence, Inc. (“Radius”) and certain unnamed defendants (collectively, the “Defendants”),
the Debtors determined that they do not have any obligations due and owing to the Claimant. In
the pending litigation, the Claimant has alleged he was a former shareholder of Radius and believes
he has certain claims based on transactions occurring in August of 2019 pursuant to which Radius’
secured lenders foreclosed on certain of Radius’ assets and then separately sold those assets to
Debtor Kabbage Diameter, LLC (“Diameter”). Such assets included, among other things, certain
of Radius’ contracts, copyrights, trademarks, patents, and customer accounts. Neither Diameter
nor any of the other Debtors are named as defendants in the Complaint. On August 2, 2022, the
Claimant filed a motion with the Superior Court of California, County of San Francisco requesting
the court allow him to amend his original complaint to, among other things, name a Mr. Joel
Carusone as a defendant (the “Amended Complaint”). Although the proposed Amended
Complaint mentions Diameter, it does not seek to name Diameter or any of the other Debtors as
defendants and does not allege any claims against Diameter or any of the other Debtors.
6. Moreover, the Debtors’ books and records show that the Debtors do not owe
Radius any amounts and are unaware of a basis that the Claimant, an alleged shareholder of Radius,
would be owed any amounts by the Debtors based on Diameter’s acquisition of Radius’ assets
from Radius’ secured lenders or otherwise. Additionally, the Claimant does not attach any
documentation to the proof of claim forms in support of the claims, and I am not otherwise aware
of any other documentation that would support his claims. Accordingly, I believe the temporary
3
RLF1 28598696v.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 5 of 8
disallowance of the No Liability Claims solely for voting purposes for the reasons set forth in the
Objection is appropriate.
7. Based on the foregoing, my experience, and my review of the Objection, the
Debtors’ books and records, and the relevant proofs of claim, the information contained in the
Objection and the schedule attached thereto is true and correct, and the relief requested by the
Objection is in the best interests of the Debtors’ estates, creditors, and economic stakeholders.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge, information, and belief.
Date: February 14, 2023
Woodcliff Lake, New Jersey
/s/ Thora Thoroddsen
Thora Thoroddsen
Director
AlixPartners, LLP
4
RLF1 28598696v.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 6 of 8
Schedule 1
No Liability Claims
RLF1 28598696V.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 7 of 8
Schedule 1
No Liability Claims
Claimant Date Claim Claim Reason for Temporary Disallowance
# Debtor Name Asserted Claim Amount
Name Filed No. Solely for Voting Purposes
Cole Ratias (the “Claimant”) filed identical proofs of
claim against each Debtor, which proofs of claim were
Kabbage Canada Holdings, assigned claim nos. 952-1, 953-1, 954-1, 956-1, 955-3,
1 11/25/2022 952-1 and 951-55. However, the Claimant has no
Cole Ratias LLC
relationship with any of the Debtors that would give
rise to a claim and has not alleged any relationship with
any of the Debtors that would give rise to a claim.
Based on the Debtors’ research, including their review
Kabbage Asset of a complaint (the “Complaint”) that the Claimant
2 11/25/2022 953-1
Cole Ratias Securitization, LLC filed in the Superior Court of California, County of San
Francisco against Radius Intelligence, Inc. (“Radius”),
and certain unnamed defendants (collectively, the
“Defendants”), the Claimant has alleged that he is a
Contingent and shareholder of Radius and believes he has claims
Kabbage Asset Funding Unliquidated against the Defendants in connection with transactions
3 11/25/2022 954-1
Cole Ratias 2017-A, LLC pursuant to which Radius’ secured lenders foreclosed
on certain of Radius’ assets and separately sold those
assets to Debtor Kabbage Diameter, LLC
(“Diameter”).
4 11/25/2022 956-1 Kabbage Diameter, LLC None of the Debtors, including Diameter, were named
Cole Ratias
as defendants in the Complaint, including in a proposed
amended version of the Complaint that the Claimant
filed as recently as August 2022 (the “Amended
Complaint”). Moreover, while the Amended
Kabbage Asset Funding Complaint mentions Diameter, it does not allege any
5 11/25/2022 955-3
Cole Ratias 2019-A, LLC claims against Diameter.
RLF1 28598696V.1
Case 22-10951-CTG Doc 536-2 Filed 02/14/23 Page 8 of 8
Claimant Date Claim Claim Reason for Temporary Disallowance
# Debtor Name Asserted Claim Amount
Name Filed No. Solely for Voting Purposes
Finally, based on a review of the Debtors’ books and
records, the Debtors do not owe Radius any amounts
and are unaware of a basis that the Claimant, an alleged
shareholder of Radius, would be owed any amounts by
Kabbage, Inc. d/b/a
6 11/25/2022 951-55 the Debtors.
Cole Ratias KServicing
Accordingly, the No Liability Claims should be
disallowed for voting purposes as set forth in the
Objection.
2
File and source
- File
- gov.uscourts.deb.188293.536.2.pdf
- Size
- 273,478 bytes
- SHA-256
- a3f686319592b567424605b8f715da022c382b635df2e744ce6cc36203fedb09
- Original
- archive.org