mg Doc 753 Filed 10/07/16 Entered 10/07/16 17:12:20 Main Document Pg 1 of 10

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1 Pg 1 of 10 Bruce Bennett (admitted pro hac vice JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA Tel: ( Attorneys for Term Loan Lenders* John W. Spiegel (admitted pro hac vice MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA Tel: ( Attorneys for Term Loan Lenders* [*complete list of represented Defendants listed in Appendix A hereto; additional counsel listed on signature page] UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: MOTORS LIQUIDATION COMPANY, et al., Debtors. MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee, vs. Plaintiff, JPMORGAN CHASE BANK, N.A., et al., Defendants. Chapter 11 Case Case No (MG (Jointly Administered Adversary Proceeding Case No (MG

2 Pg 2 of 10 CONSENT MOTION TO WITHDRAW AS ATTORNEYS OF RECORD In accordance with Local Rule (e of this Court, the individual counsel of Jones Day and of Munger, Tolles & Olson LLP listed below (collectively, Movants hereby respectfully move for entry of an order withdrawing Movants as attorneys of record for Defendants Eaton Vance Loan Opportunities Fund, Ltd., Evergreen High Yield Bond Trust, and Evergreen VA High Income Fund in the above-captioned adversary proceeding. The Motors Liquidation Company Avoidance Action Trust ( Trust does not oppose this motion. Good cause exists to grant this motion because, as detailed below, the aforementioned Defendants do not exist, and thus Movants may not act on their behalf. 1. Plaintiff in this adversary proceeding named over 500 Defendants in its 2009 Complaint. See Adversary Compl., at 1-9 (July 31, 2009 (Dkt. 1. The Trust added more Defendants in its 2015 Amended Complaint. First Am. Adversary Compl., at 1-11 (May 20, 2015 (Dkt. 91 ( Amended Complaint. Fourteen of the Defendants that the Trust named in its Amended Complaint are identified as Eaton Vance entities, and seven as Evergreen entities. E.g., id. at 4. After Plaintiff filed the Amended Complaint and began attempting to serve Defendants (other than JPMorgan Chase Bank, N.A., six years into the proceeding, Movants entered a notice of appearance for over ninety of the entities Plaintiff had named, including the fourteen Eaton Vance entities and the seven Evergreen entities. See Notice of Appearance and Request for Notice & Service of Papers, at 1-4 (Aug. 6, 2015 (Dkt Movants subsequently also filed a motion on behalf of non-party Eaton Vance Management (among other non-parties. Plaintiff had attempted to serve one of the Eaton Vance-named entities, Eaton Vance Loan Opportunities Fund, Ltd., by mailing a copy of the Amended Complaint and summons to non-party Eaton Vance Management. Eaton Vance -2-

3 Pg 3 of 10 Management, specially appearing through Movants, moved to quash process and service of process on the ground that it was not Eaton Vance Loan Opportunities Fund, Ltd. and, indeed, that that entity did not exist and had not existed for several years when the Trust filed and attempted to serve the Amended Complaint. See Nonparties Mot. to Quash Process & Service of Process (Nov. 16, 2015 (Dkt. 239; Mem. in Supp. of Nonparties Mot. to Quash Process & Service of Process, at 1 (Nov. 16, 2015 (Dkt Non-party Eaton Vance Management submitted a declaration explaining that, on April 10, 2012, the Cayman Islands had issued a Certificate of Dissolution for Eaton Vance Loan Opportunities Fund, Ltd. (Dkt ; a copy of that certificate is attached for the Court s convenience as Exhibit A. Eaton Vance Loan Opportunities Fund, Ltd. was not listed as one of the Defendants in the subsequently filed Answer and Cross-Claims or described in corporate disclosures. See Answer & Cross-Claims of Term Loan Lenders, App. A (Nov. 16, 2016 (Dkt. 241; Rule Disclosure (Jan. 19, 2016 (Dkt Thereafter, as the result of a stipulation that service on Eaton Vance Loan Opportunities Fund, Ltd. had not occurred, the non-party motion to quash was withdrawn. See Notice of Withdrawal of Mots. to Quash Service & Service of Process as Moot (Feb. 25, 2016 (Dkt Movants subsequently also have determined that two other of the over ninety Defendants named in the Amended Complaint and listed in their Notice of Appearance do not exist. Plaintiff in its Amended Complaint added Evergreen High Yield Bond Trust as a Defendant. Am. Compl., at 4. The Trust seeks to recover from this Defendant a pre-petition transfer of $5, Id., Exh. 4, at 4. (Plaintiff does not seek to recover any post-petition transfer. See id., Exh. 3, at 4. Evergreen High Yield Bond Trust, however, no longer exists: It was liquidated in November 2009, and, indeed, the Delaware trust that maintained this series -3-

4 Pg 4 of 10 under Delaware law was itself cancelled on March 1, See Exh. B; see generally 12 Del. C. 3806(b(2 (trust may provide for a series ; id. 3804(a (trust acts on behalf of a series. 4. Plaintiff in its Amended Complaint also added Evergreen VA High Income Fund as a Defendant. The Trust seeks to recover from this Defendant a pre-petition transfer of $2, and a post-petition transfer of $ Am. Compl., Exh. 3, at 4, & Exh. 4, at 4. Evergreen VA High Income Fund, however, no longer exists: It was liquidated in April 2010, and, indeed, the Delaware trust that maintained this series under Delaware law ceased to be a registered investment company on October 22, See Exh. C; Liquidation Supplement to the Prospectuses and Statement of Additional Information of Evergreen Variable Annuity Funds (SEC Form 497 (filed Dec. 30, Because these named Defendants Eaton Vance Loan Opportunities Fund, Ltd., Evergreen High Yield Bond Trust, and Evergreen VA High Income Fund do not exist, Movants may not act on their behalf. E.g., Abadin v. Marvel Entm t, Inc., No. 09CIV.0715PAC, 2010 WL , at *1 (S.D.N.Y. Mar. 31, 2010 (holding that lawyer was not authorized to act on behalf of dissolved Colorado corporation; see, e.g., Restatement (Third of the Law Governing Lawyers 31(2(b (2000 ( [A] lawyer s actual authority to represent a client ends when... the client dies or, in the case of a corporation or similar organization, loses its capacity to function as such.. Accordingly, good cause exists for the granting of this motion to withdraw with respect to those Defendants. 6. On October 7, 2016, counsel for the Trust confirmed that they do not oppose this motion. For the foregoing reasons, Movants respectfully request that the Court grant this motion and order that Movants be withdrawn as counsel of record for the aforementioned Defendants. -4-

5 Pg 5 of 10 Dated: October 7, 2016 Respectfully submitted, /s/ Bruce Bennett Bruce Bennett Erin Burke JONES DAY 555 South Flower Street, 50th Floor Los Angeles, CA Tel: ( bbennett@jonesday.com eburke@jonesday.com Gregory Shumaker Christopher DiPompeo JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C Tel: ( gshumaker@jonesday.com cdipompeo@jonesday.com /s/ John W. Spiegel John W. Spiegel George M. Garvey Todd J. Rosen Matthew A. Macdonald MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA Tel: ( john.spiegel@mto.com george.garvey@mto.com todd.rosen@mto.com matthew.macdonald@mto.com Kristin A. Linsley MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA Tel: ( kristin.linsley@mto.com Attorneys for Term Loan Lenders* [*complete list of represented Defendants listed in Appendix A hereto] -5-

6 Pg 6 of 10 APPENDIX A Ares Enhanced Loan Investment Strategy III, Ltd. Ares Enhanced Loan Investment Strategy IR, Ltd. Ares IIIR/IVR CLO Ltd. Ares VIR CLO Ltd. Ares VR CLO Ltd. Ares XI CLO Ltd. Atrium IV Atrium V Avery Point CLO, Limited Bentham Wholesale Syndicated Loan Fund Black Diamond CLO Ltd. Black Diamond CLO Ltd. Black Diamond CLO (Cayman Ltd. Black Diamond International Funding, Ltd. Board of Retirement of the San Diego County Employees Retirement Association Castle Garden Funding Caterpillar Inc. Pension Master Trust Chatham Light II CLO, Limited Credit Suisse Loan Funding LLC Crescent Senior Secured Floating Rate Loan Fund LLC Eaton Vance CDO IX, Ltd. Eaton Vance CDO VIII, Ltd. Eaton Vance CDO X PLC Eaton Vance Floating Rate Income Trust Eaton Vance Floating Rate Portfolio Eaton Vance Institutional Senior Loan Fund Eaton Vance International (Cayman Islands Floating Rate Income Portfolio Eaton Vance Limited Duration Income Fund Eaton Vance Senior Debt Portfolio Eaton Vance Senior Floating Rate Trust Eaton Vance Senior Income Trust Eaton Vance Short Duration Diversified Income Fund Eaton Vance Variable Trust Floating Rate Income Fund FIAM Floating Rate High Income Commingled Pool FIAM High Yield Bond Commingled Pool FIAM High Yield Fund, LLC Fidelity Advisor Series I: Fidelity Advisor Floating Rate High Income Fund Fidelity Advisor Series I: Fidelity Advisor High Income Advantage Fund Fidelity Advisor Series I: Fidelity Advisor High Income Fund Fidelity Advisor Series II: Fidelity Advisor Strategic Income Fund Fidelity American High Yield Fund Fidelity Canadian Asset Allocation Fund Fidelity Central Investment Portfolios LLC: Fidelity Floating Rate Central Fund Fidelity Central Investment Portfolios LLC: Fidelity High Income Central Fund 1 Fidelity Central Investment Portfolios LLC: Fidelity High Income Central Fund 2-6-

7 Pg 7 of 10 Fidelity Income Fund: Fidelity Total Bond Fund Fidelity Puritan Trust: Fidelity Puritan Fund Fidelity School Street Trust: Fidelity Strategic Income Fund Fidelity Summer Street Trust: Fidelity Capital & Income Fund Fidelity Summer Street Trust: Fidelity High Income Fund First Trust Senior Floating Rate Income Fund II GE Capital US Holdings, Inc. General Electric Pension Trust High Yield Bond Fund, a series of 525 Market Street Fund LLC IBM Personal Pension Plan Trust International Paper Company Commingled Investment Group Trust Iowa Public Employees Retirement System Jersey Street CLO, Ltd. Katonah III, Ltd. Katonah IV, Ltd. Legg Mason ClearBridge Capital & Income Fund Los Angeles Department Water and Power Employees Retirement, Disability and Death Benefit Insurance Plan Madison Park Funding I Ltd. Madison Park Funding II Ltd. Madison Park Funding III Ltd. Madison Park Funding IV Ltd. Madison Park Funding V Ltd. Madison Park Funding VI Ltd. Marlborough Street CLO, Ltd. Metropolitan West High Yield Bond Fund MFS Charter Income Trust MFS Intermarket Income Trust I MFS Intermediate High Income Fund MFS Meridian Funds - Global High Yield Fund MFS Multimarket Income Trust MFS Series Trust III on behalf of MFS Global High Yield Fund MFS Series Trust III on behalf of MFS High Income Fund MFS Series Trust VIII on behalf of MFS Strategic Income Fund MFS Series Trust XIII on behalf of MFS Diversified Income Fund MFS Special Value Trust MFS Variable Insurance Trust II on behalf of MFS High Yield Portfolio MFS Variable Insurance Trust II on behalf of MFS Strategic Income Portfolio Microsoft Global Finance Momentum Capital Fund Ltd. Mt. Wilson CLO II, Ltd. Napier Park Distressed Debt Opportunity Master Fund Ltd. Nash Point CLO -7-

8 Pg 8 of 10 Northern Trust Global Advisors, Inc., as Named Fiduciary to the Central States, Southeast, and Southwest Areas Pension Fund 1 Oaktree High Yield Fund II, L.P. Oaktree High Yield Fund, L.P. Oaktree High Yield Plus Fund, L.P. Oaktree Loan Fund 2x (Cayman, L.P. Oaktree Senior Loan Fund, L.P. OCM High Yield Trust Pacific Gas and Electric VEBA PG&E Corporation Retirement Master Trust Race Point II CLO, Limited Race Point III CLO, Limited Race Point IV CLO, Ltd. Reinsurance Group of America, Inc. Sankaty High Yield Partners III Grantor Trust State Street Bank and Trust Company as Trustee of the FCA US LLC Master Retirement Trust State Teachers Retirement System of Ohio TCW High Income Partners Ltd. TCW Senior Secured Loan Fund L.P. Texas County & District Retirement System TMCT II, LLC TMCT, LLC Transamerica Aegon High Yield Bond VP, a series of Transamerica Series Trust Variable Insurance Products Fund: High Income Portfolio Variable Insurance Products Fund: Strategic Income Portfolio Velocity CLO Ltd. Vitesse CLO Ltd. Wells Fargo & Company Master Pension Trust Wells Fargo Core Plus Bond Fund, a series of Wells Fargo Funds Trust (f/k/a Evergreen Core Plus Bond Fund and Wells Fargo Income Plus Fund Wells Fargo High Yield Bond Fund, a series of Wells Fargo Funds Trust (f/k/a Evergreen High Income Fund Wells Fargo Income Opportunities Fund (f/k/a Evergreen Income Advantage Fund Wells Fargo Multi-Sector Income Fund (f/k/a Evergreen Multi Sector Income Fund and Evergreen Managed Income Fund Wells Fargo Principal Investments, LLC Wells Fargo Utilities and High Income Fund (f/k/a Evergreen Utilities & High Income Fund Wespath Benefits and Investments West Bend Mutual Insurance Company Western Asset Floating Rate High Income Fund, LLC 1 Northern Trust Global Advisors, Inc., as Named Fiduciary to the Central States, Southeast, and Southwest Areas Pension Fund is represented for all purposes by Munger, Tolles & Olson LLP and not by Jones Day. -8-

9 Pg 9 of 10 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: MOTORS LIQUIDATION COMPANY, et al., Debtors. MOTORS LIQUIDATION COMPANY AVOIDANCE ACTION TRUST, by and through Wilmington Trust Company, solely in its capacity as Trust Administrator and Trustee, vs. Plaintiff, JPMORGAN CHASE BANK, N.A., et al., Defendants. Chapter 11 Case Case No (MG (Jointly Administered Adversary Proceeding Case No (MG [PROPOSED] ORDER GRANTING CONSENT MOTION TO WITHDRAW AS ATTORNEYS OF RECORD Upon the Consent Motion to Withdraw as Attorneys of Record filed by the individual attorneys of Jones Day and of Munger, Tolles & Olson LLP listed therein (collectively, Movants, and for good cause shown, it is hereby ORDERED, that Movants motion is GRANTED. Dated:, 2016 Honorable Martin Glenn United States Bankruptcy Judge

10 Pg 10 of 10 CERTIFICATE OF SERVICE The undersigned hereby certifies that, on October 7, 2016, a copy of the foregoing Consent Motion to Withdraw as Attorneys of Record was filed electronically with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all counsel of record. By, /s/ Bruce Bennett Bruce Bennett

11 mg Doc Filed 10/07/16 Entered 10/07/16 17:12:20 Exhibit A Pg 1 of 2 Exhibit A

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18 mg Doc Filed 10/07/16 Entered 10/07/16 17:12:20 Exhibit C Pg 2 of 2 UNITED STATES OF AMERICA BEFORE THE SECURITIES AND EXCHANGE COMMISSION INVESTMENT COMPANY ACT OF 1940 Release No / October 22, 2014 In the Matter of : : EVERGREEN VARIABLE ANNUITY TRUST : 200 Berkeley St. : Boston, MA : : ( : : ORDER UNDER SECTION 8(f OF THE INVESTMENT COMPANY ACT OF 1940 DECLARING THAT APPLICANT HAS CEASED TO BE AN INVESTMENT COMPANY Evergreen Variable Annuity Trust filed an application on August 19, 2014, and an amendment on September 5, 2014, requesting an order under section 8(f of the Act declaring that it has ceased to be an investment company. On September 26, 2014, a notice of filing of the application was issued (Investment Company Act Release No The notice gave interested persons an opportunity to request a hearing and stated that an order disposing of the application would be issued unless a hearing was ordered. No request for a hearing has been filed, and the Commission has not ordered a hearing. The matter has been considered and it is found, on the basis of the information set forth in the application, as amended, that applicant has ceased to be an investment company. Accordingly, IT IS ORDERED, under section 8(f of the Act, that applicant's registration under the Act shall forthwith cease to be in effect. For the Commission, by the Division of Investment Management, under delegated authority. Kevin M. O Neill Deputy Secretary