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I found this to be very interesting ruling. And these are the reasons why FDIC, IRS, OCC and others are changing the rules to un-scramble the egg. They can not transfer the assets. Period.
Escrows are golden.. WHY: Preferred Shares and WMB WAMPQ and WAMKQ Assets not transferred to JPM.. Question is now.. When and How much.. will they close the claims against the estate
Below is my proof..
Provided by Sidedraft..
www.sidedraught.com/stocks/...inion%20and%20order-05182015.pdf
PDF Page 30
The court has found that none of these Schedules includes the Anchor claim. Therefore, the court can only conclude that the FDIC assented to the transfer
PDF Page 10
Defendant, however, argues that the FDICs intent is irrelevant. Defendant argues that regardless of the FDICs intent, any purported transfer or assignment of the Anchor claim is barred
by the Anti-Assignment Acts, and hence void ab initio. Def.s Mot. Dismiss, ECF No. 329, at 9.
Defendant also cites to the DOJs litigation authority, 28 U.S.C. § 516, arguing that the FDIC could not, in any event, waive the Anti-Assignment Acts on behalf of the United States without the consent of the DOJ. Def.s Reply, ECF No. 337, at 12.
Plaintiff sees these arguments as smoke and mirrors. Plaintiff argues that Anchors transfer was a transfer of an asset as that term is used in 12 U.S.C. § 1821(d)(2)(G), which gives the
FDIC explicit authority to transfer any asset or liability without any approval, assignment, or consent [of any other entity] with respect to such transfer. Pl.s Resp. at 16. It also analogizes a bank failure to a failed company in bankruptcy, or to a company that merged with another company
and, consequently, transferred its assets by operation of law. Id. at 1617. Transfers by operation of law, plaintiff explains, are exempt from the scope of the Anti-Assignment Acts. Therefore,
plaintiff argues, the Anti-Assignment Acts do not apply.
PDF page 14
Judges Opinion:
Plaintiff responds by claiming that (1) RCFC 17s real party-in-interest requirement does not go to jurisdiction, and in any event was waived by the government; (2) the P&A Agreement
was intended to convey the Anchor judgment to JPMC; and (3) the Anti-Assignment Acts do not bar the government from assigning the Anchor judgment. Plaintiff also opposes defendants motion for discovery.
PDF PAge 23
Fourth, the bankruptcy courts 139 page opinion in WMI only mentions the Anchor
judgment in one sentenceit simply states, in the background section, that Under the P&A, JPMC obtained substantially all of the assets of WMB for $1.88 billion plus the assumption of
more than $145 billion in deposit and other liabilities of WMB. The FDIC, as the receiver of WMB, retained claims that WMB held against others. ECF No. 346-1, app two, at 2. This passing
reference has no bearing on this courts interpretation of the plain language of the P&A Agreement, nor is it inconsistent with the courts interpretation of Schedule 3.5. As explained above, the purpose of Schedule 3.5 was not to retain all claims generally, but to retain claims held by the FDIC-R against directors and officers of WMB whose actions or omissions contributed to the collapse of WMB.
PDF Page 25
Nearly two years ago, in the months after the P&A transaction, there were conversations between DOJ staff and FDIC attorneys in which DOJ was advised that the claim had been transferred to [JPMC]. DOJ staff at that time disagreed with FDICs interpretation of the P&A [Agreement], but deferred to the FDIC and did not pursue it further.
PDF Page 26
In short, the court finds that the letters written by the FDIC Assistant General Counsel and other FDIC attorneys amount to nothing less than a smoking gun in favor of plaintiffs
interpretation of the P&A Agreement because they demonstrate that all of the parties to the P&A Agreement namely, the FDIC and JPMCunderstood the agreement as encompassing the Anchor litigation. See A. R. F. Products, Inc., 388 F.2d at 696 (holding that the court gives great, if not controlling, weight to the interpretation placed by the parties themselves upon the contract
as evidenced by their statements and conduct prior to the time when the contract becomes the subject of controversy).
PDF Page 30
The court has found that none of these Schedules includes the Anchor claim. Therefore, the court can only conclude that the FDIC assented to the transfer
Plaintiff is entitled to additional mitigation costs of $63,191,000. In sum, the total Anchor is entitled to recover, before the addition of the gross-up figure, is $419,645,910.91. The court - 39 -
also finds that $227.1 million of these damages are subject to a tax gross-up. The parties are hereby directed to meet to determine the appropriate calculation for the final gross-up rate, and submit a status report to the court by Friday, June 19, 2015.
IT IS SO ORDERED.
s/Lawrence J. Block
Lawrence J. Block
Judge
Very Interesting Ruling.
GO WMIH GO..
DrR..
Gruß
Just
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