Kabbage - COC re Pietschner Voting Stipulation, Doc. 538-1 — In re KServicing Wind Down Corp., et al.
- Date
- 2023-02-15
Summary
A stipulation between the debtors and Paul Pietschner disallowing certain claims solely for voting purposes, filed February 15, 2023 as Doc 538-1 (Exhibit 1) 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. The recitals state that Pietschner filed twelve (12) proofs of claim on November 30, 2022, withdrew six of them on January 30, 2023, and that the claims relate to a lawsuit he filed on behalf of the United States in the Eastern District of Texas, Case No. 4:21-cv-110. The parties agree that the Subsidiary Claims are deemed disallowed solely for voting on the Plan, while rights regarding allowance and distributions are preserved and the KS Claims are unaffected. The stipulation is dated February 14, 2023 and signed by counsel for both sides.
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Case 22-10951-CTG Doc 538-1 Filed 02/15/23 Page 1 of 6
EXHIBIT 1
Stipulation
RLF1 28594271v.1
Case 22-10951-CTG Doc 538-1 Filed 02/15/23 Page 2 of 6
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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:
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors. 1 : (Jointly Administered)
:
------------------------------------------------------------ x
STIPULATION BY AND BETWEEN
THE DEBTORS AND PAUL PIETSCHNER
DISALLOWING CERTAIN CLAIMS SOLELY FOR VOTING PURPOSES
This stipulation (this “Stipulation”) is made and entered into by and between
Kabbage, Inc. d/b/a KServicing and its debtor affiliates, as debtors and debtors in possession in
the above-captioned chapter 11 cases (collectively, the “Debtors”), and Paul Pietschner
(“Pietschner” and, together with the Debtors, the “Parties”), by and through their respective
undersigned counsel.
RECITALS
WHEREAS, on October 3, 2022 (the “Petition Date”), the Debtors commenced
with the United States Bankruptcy Court for the District of Delaware (the “Court”) a voluntary
case under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532
(the “Bankruptcy Code”);
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 538-1 Filed 02/15/23 Page 3 of 6
WHEREAS, on January 19, 2023, the Court entered the Order (I) Approving the
Disclosure Statement of the Debtors, (II) Establishing Solicitation, Voting, and Related
Procedures, (III) Scheduling Confirmation 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”)
approving the Amended Disclosure Statement for the Amended Joint Chapter 11 Plan of
Liquidation of Kabbage, Inc. (d/b/a KServicing) and its Affiliated Debtors [Docket No. 467]
(together with all schedules and exhibits thereto, and as may be modified, amended, or
supplemented from time to time, the “Disclosure Statement”), which authorized the Debtors to
solicit votes to accept or reject the Amended Joint Chapter 11 Plan of Liquidation of Kabbage,
Inc. (d/b/a KServicing) and its Affiliated Debtors [Docket No. 466] (together with all schedules
and exhibits thereto, and as may be modified, amended, or supplemented from time to time, the
“Plan”);
WHEREAS, on November 30, 2022, Pietschner filed the following twelve (12)
proofs of claim against the Debtors:
1. Claim nos. 955-8 and 955-10 against Kabbage Asset Funding 2019-A
LLC;
2. Claim nos. 952-7 and 952-8 against Kabbage Canada Holdings, LLC;
3. Claim nos. 953-5 and 953-6 against Kabbage Asset Securitization LLC;
4. Claim nos. 954-6 and 954-7 against Kabbage Asset Funding 2017-A LLC;
5. Claim nos. 956-6 and 956-7 against Kabbage Diameter, LLC; and
6. Claim nos. 951-133, and 951-174 against Kabbage, Inc. d/b/a KServicing
(the “KS Claims”)
On January 30, 2023, Pietschner withdrew claim nos. 953-5, 954-6, 956-6, 952-7,
955-8, and 951-133. Claim nos. 955-10, 952-8, 953-6, 954-7, and 956-7 are collectively referred
2
Case 22-10951-CTG Doc 538-1 Filed 02/15/23 Page 4 of 6
to as the “Subsidiary Claims”. The KS Claims and the Subsidiary Claims each assert an
unliquidated, contingent amount against the Debtors on account of a lawsuit filed on behalf of the
United States of America by Pietschner in the United States District Court for the Eastern District
of Texas, Sherman Division, Case No. 4:21-cv-110.
WHEREAS, in accordance with the procedures set forth in the Disclosure
Statement Order, the KS Claims and the Subsidiary Claims are in Class 4 (General Unsecured
Claims).
WHEREAS, in accordance with the procedures set forth in the Disclosure
Statement Order, the Parties have agreed that the Subsidiary Claims shall be deemed disallowed,
solely for purposes of voting on the Plan.
NOW THEREFORE, THE PARTIES, BY AND THROUGH THEIR
RESPECTIVE UNDERSIGNED COUNSEL, HEREBY STIPULATE AND AGREE AS
FOLLOWS:
1. The above recitals are fully incorporated herein and made an express part
of this Stipulation.
2. Upon approval of this Stipulation by the Court, the Subsidiary Claims
shall be deemed disallowed, solely for purposes of voting on the Plan, as currently proposed.
To the extent that the Plan is withdrawn or the rights of the Class 4 General Unsecured Creditors
are materially modified, the Parties expressly agree that Pietschner reserves the right to
withdraw this Stipulation.
3. Except as otherwise expressly set forth in the preceding paragraph, each
of the Parties’ rights and remedies with respect to the Subsidiary Claims and the KS Claims are
expressly and fully preserved, including but not limited to with respect to the allowance of the
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Case 22-10951-CTG Doc 538-1 Filed 02/15/23 Page 5 of 6
Subsidiary Claims and the KS Claims for distributions under the Plan. Nothing contained
herein shall be an admission or, except as otherwise expressly set forth in the preceding
paragraph, waiver of the substantive or procedural rights, remedies, claims, or defenses of any
of the parties in these chapter 11 cases, whether at law or equity and the Debtors expressly
reserve the right to file in the future objections to, and/or requests for estimation of, the
Subsidiary Claims and the KS Claims on any basis. For the avoidance of doubt, nothing in this
Stipulation affects the KS Claims for any purpose, including for purposes of voting on the Plan
in accordance with the Disclosure Statement Order.
4. This Stipulation constitutes the entire agreement between the Parties and
supersedes all prior agreements and understandings, both written and oral, between the Parties
with respect to the subject matter hereof and, except as otherwise expressly provided herein, is
not intended to confer upon any other person any rights or remedies hereunder.
5. This Stipulation may be executed in counterparts, any of which may be
transmitted by electronic mail, and each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
6. This Stipulation may not be amended without the express written consent
of all Parties hereto and approval by the Court.
7. The Court shall retain jurisdiction over any and all disputes or other
matters arising under or otherwise relating to this Stipulation.
4
Case 22-10951-CTG Doc 538-1 Filed 02/15/23 Page 6 of 6
Dated: February 14, 2023
Wilmington, Delaware
/s/ Zachary I. Shapiro /s/ William C. Meyers
RICHARDS, LAYTON & FINGER, P.A. GOLDBERG KOHN LTD.
Daniel J. DeFranceschi, Esq. (No. 2732) William C. Meyers, Esq.
Amanda R. Steele (No. 5530) 55 East Monroe, Suite 3300
Zachary I. Shapiro (No. 5103) Chicago, Illinois 60603
Matthew P. Milana (No. 6681) Telephone: (312) 201-3919
One Rodney Square Email: william.meyers@goldbergkohn.com
920 North King Street
Wilmington, Delaware 19801 Attorney for Paul Pietschner
Telephone: (302) 651-7700
E-mail: defranceschi@rlf.com
steele@rlf.com
shapiro@rlf.com
milana@rlf.com
-and-
WEIL, GOTSHAL & MANGES LLP
Ray C. Schrock (admitted pro hac vice)
Candace M. Arthur (admitted pro hac vice)
Natasha S. Hwangpo (admitted pro hac vice)
Chase A. Bentley (admitted pro hac vice)
767 Fifth Avenue
New York, New York 10153
Telephone: (212) 310-8000
E-mail: ray.schrock@weil.com
candace.arthur@weil.com
natasha.hwangpo@weil.com
chase.bentley@weil.com
Attorneys for the Debtors and Debtors in
Possession
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