IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE. Chapter 11

Transcription

1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re WASHINGTON MUTUAL, INC., et al., 1 Debtors. Chapter 11 Case No (MFW) (Jointly Administered) Re: Docket Nos: 10227, and Hearing Date: June 28 at 10:30 AM Response Deadline: June 22 at Noon (as extended) RESPONSE AND OBJECTION OF BENEFICIARIES OF THE DIME SAVINGS BANK KEY EXECUTIVE LIFE INSURANCE/DEATH BENEFIT PLAN LISTED ON SCHEDULE A ATTACHED TO WMI LIQUIDATING TRUST S SEVENTY-SIXTH AND SEVENTY-SEVENTH OMNIBUS OBJECTIONS TO JPMC SETTLEMENT CLAIMS The beneficiaries of the Dime Savings Bank Key Executive Life Insurance/Death Benefit Plan (the Dime KELP Plan ) listed on Schedule A attached (the Beneficiaries ) by and through their undersigned counsel, Reed Smith LLP, hereby file this response and objection the Response ) to WMI Liquidating Trust s ( WMILT ) Seventy-Sixth And Seventy-Seventh Omnibus Objections To JPMC Settlement Claims (the Objections ) 2 ; and respectfully state the following in support thereof: 1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor s federal tax identification number are (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The Debtors principal offices are located at 925 Fourth Avenue, Seattle, Washington This Response and objection also applies to WMILT s Seventy-Fifth Omnibus Objection to Claims, D.I. No , to the extent, if any, that that Objection seeks the disallowance of other claims for benefits under insurance policies related to the Dime KELP Plan, as such terms are hereafter defined. US_ACTIVE

2 BACKGROUND AND JURISDICTION 1. On September 26, 2008, each of the Debtors commenced with this Court a voluntary case pursuant to chapter 11 of the Bankruptcy Code. 2. On December 12, 2011, the Debtors filed their Seventh Amended Joint Plan of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy Code [D.I. 9178] (as modified, the Plan ). By order [D.I. 9159] (the Confirmation Order ), dated February 23, 2012, this Court confirmed the Plan and the Plan was consummated on March 19, The Debtors and JPMC, among others, are parties to that certain Second Amended and Restated Settlement Agreement, dated as of February 7, 2011 (as amended, the Settlement Agreement ), a copy of which is annexed to the Plan as Exhibit H. The Settlement Agreement became effective on March 19, 2012 upon the consummation of the transactions contemplated by the Plan. 4. This Court has jurisdiction to consider this matter pursuant to 28 U.S.C. 157 and This is a core proceeding pursuant to 28 U.S.C. 157(b). Venue is proper before this Court pursuant to 28 U.S.C and RESPONSE TO OBJECTIONS 5. The Beneficiaries or their predecessors in interest formerly were officers and directors of Dime Savings Bank who were beneficiaries of the Dime KELP Plan and one of the JPMC Rabbi Trusts 3 (the Trust ). The assets of the Trust included split dollar insurance policies on the lives of each of the Beneficiaries or their predecessors in interest each whose death benefit is to be split such that a portion of it will be paid to the Beneficiary and the rest to the successor in interest to the Trust. Pursuant to the Plan and Section 2.9(c) of the Settlement 3 Capitalized terms not otherwise defined herein have the meanings given to them in the Plan

3 Agreement, the Trustee of the Trust conveyed all of the Trust s interests in such insurance polices 4 to JPMC following consummation of the Plan. 6. In the Objections, WMILT asserts that the Claims of the Beneficiaries listed on Schedule A attached to this Response, among others, should be disallowed because with respect to the Claims [of the Beneficiaries] JPMC has already begun the process of reviewing its obligations to pay or provide any and all benefits and because such Claims will be satisfied pursuant to and consistent with the terms of the Settlement Agreement and Plan to the extent that they are valid obligations relating to the JPMC Rabbi Trusts Objections at WMILT thereby asserts that the economic responsibility for the Beneficiaries Claims rests with JPMC. However, while JPMC in fact has already acknowledged and communicated its intentions with respect to the treatment of substantially all of the Class 5 JPMC/Rabbi Trust/Policy Claims under the Plan which were made by or known to the Beneficiaries, JPMC to date has not provided any such acknowledgement or communication with respect to any of the Beneficiaries Claims in question which are covered by this Response, and such Claims are classified in Class 6 under the Plan, not Class Moreover, the Amended Settlement Agreement provides JPMC with broad powers. For example, it provides that JPMC may change the form and time of payment of such benefits, that JPMC is not required to assume such arrangements and that any obligation of JPMC to make payments or provide benefits shall be a new obligation of JPMC. Settlement Agreement at Section 2.9(a). 9. Finally, Article X of the Plan, through Plan Section 1.135, provides that JPMC is only responsible to pay or fund the payment of the Beneficiaries' Claims to the extent such 4 These split dollar policies and the Trust were the subject of an Adversary Proceeding brought in these Cases by the Trustee for the Trust which was dismissed after consummation of the Plan, Adv. Proc No There are two types of such policies. Under one type the insured and the Trust were co-owners of the policy, and under the other type the insured is not a co-owner of the policy but the Trust provided an endorsement that the insured s beneficiary is entitled to a portion of the policy s death benefit

4 portion of any such Claim becomes an Allowed Claim. Since the Objections seek disallowance of the Beneficiaries Claims, such disallowance could be interpreted to mean that JPMC would not be obligated to satisfy the Beneficiaries Claims because they are not Allowed Claims. 10. The Beneficiaries accordingly believe that the Objections to their Claims should be overruled at least until JPMC acknowledges whether and how it will satisfy such Claims. There will be no prejudice to WMILT in the meantime since the Beneficiaries will not pursue any of the Claims in question against WMILT in the interim. 11. For the record, the Beneficiaries have been and continue to be highly appreciative of the parties efforts to date, particularly those of JPMC, to treat them fairly under what at times have been difficult and contentious circumstances. 12. WHEREFORE, the Beneficiaries respectfully request that this Court overrule the Objections insofar as they pertain to their Claims and grant such other and further relief as this Court may deem necessary and proper. Dated: June 22, 2012 Wilmington, Delaware Respectfully submitted, REED SMITH LLP By: /s/ Kathleen Murphy Kathleen Murphy (No. 5215) 1201 Market Street, Suite 1500 Wilmington, DE Telephone: (302) Facsimile: (302) and - J. Andrew Rahl, Jr., Esquire 599 Lexington Avenue New York, NY Telephone: (212) Facsimile: (212) arahl@reedsmith.com Counsel for the Ad Hoc Committee of Dime Savings Bank Rabbi Trust Beneficiaries - 4 -

5 Exhibit A To Response to WMILT s Seventy-Fifth, Seventy-Sixth and Seventy-Seventh Objections to JPMC Settlement Claims Claimant Claim Number Filed Claim Amount Debtor WMILT s Reason(s) for Objection William J. Candee, IV Trustee 2160 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim William Candee, III 2161 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Thomas Vanarsdale 2163 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Richard Terzian c/o J. Andrew Rahl, Jr. Richard H. Terzian and Bretta D. Terzian Revocable 2164 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 2165 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Robert Turner 2166 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Richard Parsons 2167 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim John B Petit, Jr Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Jenne Britell Irrevocable Deed of Trust 2218 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim John V. Brull 2219 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Jenne Brittel 2221 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Norman J. Stafford 2393 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim The Norman J. Stafford Irrevocable Insurance Trust 2407 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Michael A. Gallagher 2427 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Gene C. Brooks 2437 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Frank Deangelo 2445 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Gene C. Brooks Insurance Trust 2461 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim - 1 -

6 Carlos Munoz 1999 Irrevocable Life Insurance Trust 2490 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Carlos Munoz 2493 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Donald P. Schwartz Irrevocable Insurance Trust James E. Kelly 1999 Trust dated January 26, Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 2615 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Andrew Hickey 3000 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Anthony R. Burriesci Insurance Trust Dennis E. Stark Fund At The Rhode Island Community Foundation Franklin L. Wright Irrevocable Trust Harold E. Reynolds c/o 3016 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3037 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3038 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3064 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Lawrence W. Peters c/o The Lawrence W. Peters Trust c/o 3067 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3072 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Joseph Jiannetto 3076 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Murray F. Mascis 1999 Insurance Trust c/o Richard A. Mirro Irrevocable Trust c/o 3079 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3092 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim - 2 -

7 1999 Phyllis Marino Family Trust c/o Toal Family Insurance Trust c/o Robert K. Kettenmann 1997 Irrevocable Trust Insurance Trust 3093 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3106 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3141 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Robert K. Kettenmann 3144 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim Toa Descendants Insurance Trust c/o William Phillips c/o Robert Murphy c/o Phyllis Marino c/o 3186 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3188 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3190 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim 3270 Unliquidated WMI JPMC Rabbi Trust / Benefit Plan Claim - 3 -

8 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re WASHINGTON MUTUAL, INC., et al., 1 Chapter 11 Case No (MFW) (Jointly Administered) Debtors. CERTIFICATE OF SERVICE I, Kathleen A. Murphy, Esq. hereby certify that I caused a true and correct copy of RESPONSE AND OBJECTION OF BENEFICIARIES OF THE DIME SAVINGS BANK KEY EXECUTIVE LIFE INSURANCE/DEATH BENEFIT PLAN LISTED ON SCHEDULE A ATTACHED TO WMI LIQUIDATING TRUST S SEVENTY-SIXTH AND SEVENTY-SEVENTH OMNIBUS OBJECTIONS TO JPMC SETTLEMENT CLAIMS to be served upon the addressee listed below in the manner indicated: VIA HAND DELIVERY & Mark D. Collins, Esq. Michael J. Merchant, Esq. Richards, Layton & Finger, P.A. One Rodney Square 920 N. Market Street Wilmington, DE collins@rlf.com merchant@rlf.com VIA FIRST CLASS MAIL & Brian S. Rosen Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY brian.rosen@weil.com By: Kathleen A. Murphy Kathleen A. Murphy (No. 5215) 1 The Debtors in these chapter 11 cases along with the last four digits of each Debtor s federal tax identification number are (i) Washington Mutual, Inc. (3725); and (ii) WMI Investment Corp. (5395). The Debtors principal offices are located at 925 Fourth Avenue, Seattle, Washington US_ACTIVE KAMURPHY /22/12 10:37 AM