Motion for Order Amending Case Caption — In re Kabbage
Summary
A motion filed July 20, 2023 as Doc 910 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), jointly administered Chapter 11 cases in the U.S. Bankruptcy Court for the District of Delaware. The Post-Confirmation Debtors ask the court to enter an order amending the case caption under section 105(a) of the Bankruptcy Code, Bankruptcy Rules 1005 and 2002 and Local Rule 9004-1. The motion states that the plan became effective on June 20, 2023 and that the debtors then changed their corporate names, including Kabbage Inc. to KServicing Wind Down Corp. It proposes a new caption reading In re KServicing Wind Down Corp., et al. and asks that the Clerk of Court update the ECF system. The seven-page motion is signed by Morris James LLP and Perkins Coie LLP, sets an objection deadline of August 3, 2023 and a hearing on August 22, 2023.
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 1 of 7
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
KABBAGE, INC. d/b/a KSERVICING, et al.,1 Case No. 22-10951 (CTG)
Debtors. (Jointly Administered)
Obj. Deadline: August 3, 2023 at 4:00 p.m. (ET)
Hearing Date: August 22, 2023 at 1:00 p.m. (ET)
MOTION OF THE POST-CONFIRMATION DEBTORS FOR ENTRY OF
AN ORDER AMENDING CASE CAPTION
The post-confirmation Debtors (the “Post-Confirmation Debtors”), operating as the Wind
Down Estates as defined in, and under terms of, the Amended Joint Chapter 11 Plan of Liquidation
of Kabbage, Inc. (d/b/a KServicing) and Its Affiliated Debtors, dated March 9, 2023 [Docket No.
627] (as amended, modified, or supplemented in accordance with its terms), file this motion (the
“Motion”) for the entry of an order, substantially in the form attached to this Motion as Exhibit A
(the “Proposed Order”), pursuant to section 105(a) of title 11 of the United States Code (the
“Bankruptcy Code”), rules 1005 and 2002 of the Federal Rules of Bankruptcy Procedure (the
“Bankruptcy Rules”), and rule 9004-1 of the Local Rules of Bankruptcy Practice and Procedure
of the United States Bankruptcy Court for the District of Delaware (the “Local Rules”), authorizing
the Post-Confirmation Debtors to amend the caption used in these jointly administered chapter 11
cases. In support of this Motion, the Post-Confirmation Debtors respectfully represent as follows:
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). The Debtors’ mailing and service address is 925B Peachtree Street NE,
Suite 383, Atlanta, GA 30309.
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 2 of 7
JURISDICTION AND VENUE
1. The United States Bankruptcy Court for the District of Delaware (the “Court”) has
jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing
Order of Reference from the United States District Court for the District of Delaware, dated
February 29, 2012. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). The Debtors
confirm their consent, pursuant to Rule 7008 of the Bankruptcy Rules and Rule 9013-1(f) of the
Local Rules, to the entry of a final order by the Court in connection with this Motion to the extent
that it is later determined that the Court, absent consent of the parties, cannot enter final orders or
judgments in connection herewith consistent with Article III of the United States Constitution.
2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
3. The bases for the relief requested herein are section 105(a) of the Bankruptcy Code,
Bankruptcy Rules 1005 and 2002, and Local Rule 9004-1.
BACKGROUND
4. On October 3, 2022 (the “Petition Date”), the above-captioned debtors
(collectively, the “Debtors”) filed voluntary petitions for relief under chapter 11 of the Bankruptcy
Code in the Court.
5. On March 9, 2023, the Debtors filed the Amended Joint Chapter 11 Plan of
Liquidation of Kabbage, Inc., (d/b/a KServicing) and Its Affiliated Debtors) (the “Plan”) [Docket
No. 627].
6. On March 15, 2023, this Court entered the Order Confirming Amended Joint
Chapter 11 Plan of Liquidation of Kabbage, Inc. (d/b/a KServicing) and its Affiliated Debtors
[Docket No. 680].
2
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 3 of 7
7. On June 20, 2023 the Plan became effective, See Docket No. 870, Notice of (I)
Entry of Order Confirming Amended Joint Chapter 11 Plan of Liquidation of Kabbage, Inc. (d/b/a
KServicing) and its Affiliated Debtors and (II) Effective Date.
8. Under the Plan, the Post-Confirmation Debtors may change their corporate name.
Specifically, Section 5.5 of the Plan provides that:
Upon the Effective Date, by virtue of entry of the
Confirmation Order, all actions contemplated by this Plan
(including any action to be undertaken by the Wind Down
Officer) shall be deemed authorized, approved, and, to the
extent taken prior to the Effective Date, ratified without any
requirement for further action by holders of Claims or
Interests, the Debtors, or any other Entity or Person. All
matters provided for in this Plan involving the corporate
structure of the Debtors, and any corporate action required
by the Debtors in connection therewith, shall be deemed to
have occurred and shall be in effect as of the Effective Date,
without any requirement of further action by the Debtors or
the Estates.
Plan, § 5.5.
9. Following the Plan’s Effective Date, the Debtors filed the necessary documentation
with the appropriate division of the Delaware Secretary of State to change each of their corporate
names as follows: the corporate names of (i) Kabbage Inc., (ii) Kabbage Canada Holdings LLC,
(iii) Kabbage Asset Securitization LLC, (iv) Kabbage Assest Funding 2017-A LLC, (v) Kabbage
Asset Funding 2019-A LLC, and (vi) Kabbage Asset Diameter LLC have been amended to
(a) KServicing Wind Down Corp., (b) KServicing Wind Down Canada Holdings LLC,
(c) KServicing Wind Down Asset Securitization LLC, (d) KServicing Wind Down Asset Funding
2017-A LLC, (e) KServicing Wind Down Asset Funding 2019-A LLC, and (f) KServicing Wind
Down Diameter LLC, respectively.
3
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 4 of 7
RELIEF REQUESTED
10. By this Motion, the Post-Confirmation Debtors request that the Court enter the
Proposed Order authorizing the Post-Confirmation Debtors to amend the caption used in these
jointly administered chapter 11 cases. Additionally, the Post-Confirmation Debtors request that
this Court authorize the Clerk of the United States Bankruptcy Court for the District of Delaware
(the “Clerk of Court”) and other parties in interest to take whatever actions are necessary to update
the ECF filing system and their respective records to reflect the name changes, including the
insertion of a docket entry in these jointly administered chapter 11 cases announcing the change
of corporate names of the Debtors.
BASIS FOR RELIEF REQUESTED
11. Bankruptcy Rules 1005 and 2002 and Local Rule 9004-1 set forth the information
required to be contained in the caption of all Court filings. This information includes the name of
the debtor. See Bankruptcy Rules 1005, 2002(n); Local Rule 9004-1. Local Rule 9004-1(c) further
provides that the case caption may only be modified by order entered by the Court on a separate
motion filed and served in accordance with the Local Rules. See Local Rule 9004-1(c). Section
105(a) of the Bankruptcy Code empowers a bankruptcy court to issue “any order, process, or
judgment that is necessary or appropriate to carry out the provisions of” the Bankruptcy Code
11 U.S.C. § 105(a). The purpose of section 105 of the Bankruptcy Code is to ensure the bankruptcy
court has the power “to take whatever action is appropriate or necessary in aid of the exercise of
[its] jurisdiction.” 2 Collier on Bankruptcy 105.01 (Alan N. Resnick & Henry J. Sommer eds.,
16th ed. 2019).
12. Amendment of the case caption as set forth herein is necessary and appropriate
under the circumstances. As noted above, under Section 5.5 of the Plan the Post-Confirmation
Debtors were authorized to change their corporate name, See Plan § 5.5. Following the Plan’s
4
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 5 of 7
Effective Date, the Post- Confirmation Debtors filed the necessary documentation with the
appropriate division of the Delaware Secretary of State to change each of their corporate names as
follows: the corporate names of (i) Kabbage Inc., (ii) Kabbage Canada Holdings LLC, (iii)
Kabbage Asset Securitization LLC, (iv) Kabbage Assest Funding 2017-A LLC, (v) Kabbage Asset
Funding 2019-A LLC, and (vi) Kabbage Asset Diameter LLC have been amended to
(a) KServicing Wind Down Corp., (b) KServicing Wind Down Canada Holdings LLC,
(c) KServicing Wind Down Asset Securitization LLC, (d) KServicing Wind Down Asset Funding
2017-A LLC, (e) KServicing Wind Down Asset Funding 2019-A LLC, and (f) KServicing Wind
Down Diameter LLC, respectively. However, the Post-Confirmation Debtors require entry of the
Proposed Order to amend the case caption used in these jointly administered chapter 11 cases to
reflect these name changes. Accordingly, the relief requested in this motion is consistent with
implementation of the Plan.
13. In light of the foregoing, the Post-Confirmation Debtors respectfully request that
the Court approve an amended case caption in the form set forth below to reflect the Debtors’
new corporate names in accordance with the provisions of the Plan and the Local Rules:
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter 11
KServicing Wind Down Corp., et al., Case No. 22-10951 (CTG)
Post-Confirmation Debtors (Jointly Administered)
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: KServicing Wind Down Corp. (f/k/a Kabbage, Inc. d/b/a
KServicing) (3937); KServicing Wind Down Canada Holdings LLC (f/k/a Kabbage Canada Holdings, LLC)
(N/A); KServicing Wind Down Asset Securitization LLC (f/k/a Kabbage Asset Securitization LLC) (N/A);
KServicing Wind Down Asset Funding 2017-A LLC (f/k/a Kabbage Asset Funding 2017-A LLC) (4803);
KServicing Wind Down Asset Funding 2019-A LLC (f/k/a Kabbage Asset Funding 2019-A LLC) (8973);
and KServicing Wind Down Diameter LLC (f/k/a Kabbage Diameter, LLC) (N/A). The Debtors’ mailing
and service address is 925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
5
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 6 of 7
NOTICE
14. Notice of this Motion has been or will be provided to: (a) the Office of the U.S.
Trustee; (b) the United States Attorney’s Office for the District of Delaware; (c) the Internal
Revenue Service; (d) the state attorneys general for all states in which the Debtors conduct business
or have conducted business; and (e) any party that requests service pursuant to Bankruptcy
Rule 2002. The Debtors submit that, in light of the nature of the relief requested, no other or further
notice need be given.
NO PRIOR REQUEST
15. No previous request for the relief requested herein has been made to this or any
other court.
[Remainder of Page Intentionally Left Blank]
6
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Case 22-10951-CTG Doc 910 Filed 07/20/23 Page 7 of 7
CONCLUSION
WHEREFORE, the Post-Confirmation Debtors respectfully request that the Court
enter the Proposed Order, substantially in the form attached here as Exhibit A, granting the relief
requested in the Motion and such other and further relief as may be just and proper.
Dated: July 20, 2023 MORRIS JAMES LLP
/s/ Brya M. Keilson
Eric J. Monzo (DE Bar No. 5214)
Brya M. Keilson (DE Bar No. 4643)
Tara C. Pakrouh (DE Bar No. 6192)
500 Delaware Avenue, Suite 1500
Wilmington, DE 19801
Telephone: (302) 888-6800
Facsimile: (302) 571-1750
E-mail: emonzo@morrisjames.com
E-mail: bkeilson@morrisjames.com
E-mail: tpakrouh@morrisjames.com
and
PERKINS COIE LLP
Bradley A. Cosman (admitted pro hac vice)
Kathleen Allare (admitted pro hac vice)
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telephone: (602) 351-8000
Facsimile: (602) 648-7000
E-mail: BCosman@perkinscoie.com
E-mail: KAllare@perkinscoie.com
and
John D. Penn (admitted pro hac vice)
500 North Akard Street, Suite 3300
Dallas, TX 75201-3347
Telephone: (214) 965-7700
Facsimile: (214) 965-7799
E-mail: JPenn@perkinscoie.com
Counsel to the Post-Confirmation Debtors,
operating as the Wind Down Estates
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