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ResCap Liquidating Trust’s mission is to maximize returns to Unitholders by vigorously pursuing and resolving the mortgage correspondent litigation, monetizing the Trust’s remaining assets in a timely and efficient manner and finalizing resolution of remaining claims.
The ResCap Liquidating Trust was established in December 2013 under the Second Amended Joint Chapter 11 Plan of Residential Capital, LLC, et al. to liquidate and distribute assets of the debtors in the ResCap bankruptcy case. The Liquidating Trust, through its agents, shall wind down the affairs of and dissolve the Debtors and their subsidiaries including the Non-Debtor subsidiaries.
The most current financial information can be found in the Consolidated Financial Statements section of this website.
John J. Ray III was appointed Liquidating Trust Manager (“LTM”) on November 18, 2016. Prior to his appointment as LTM, Mr. Ray served as Chief Counsel to the Trust from September 2015. Mr. Ray is Senior Managing Director of Greylock Partners, LLC. Mr. Ray has served in various capacities with respect to Chapter 11 bankruptcy estates. From 2012 to 2014, Mr. Ray served as Chief Restructuring Officer of Overseas Shipping Group and from 2014 to 2015, Chairman of the Board of Overseas Shipping Group. From 2010, Mr. Ray has served as the principal officer of Nortel Networks, Inc. From 2014 to 2016, Mr. Ray served as the Chairman of the Restructuring Committee of the Board of GT Technologies. From 2004 to 2009, Mr. Ray was Chairman of the post confirmation Board of Enron Corporation and, from 2005 to 2009, President of post confirmation Enron Corporation.
Matt Doheny has over twenty years of experience in the distressed investing, turnaround and restructuring industry. He is the founder of North Country Capital, an investment and advisory firm where he currently serves as President. Previously, he was a Managing Director and Co-Head of Special Situations Trading at HSBC Securities, where he headed up credit research. Mr. Doheny was a portfolio manager at Fintech Advisory Inc., a hedge fund focusing on undervalued securities and turnarounds in the U.S., until December 2010.
Prior to Fintech, Mr. Doheny served as a Managing Director and helped lead the Distressed Products Group of Deutsche Bank Securities Inc. for nine years. Prior to Deutsche Bank, he was a bankruptcy attorney in the corporate reorganization groups of Orrick and Kelley Drye.
Mr. Doheny currently serves on the boards of YRC Worldwide Inc, Affinity Gaming, Arcapita Inc (RA Holdings) and Eastman Kodak Inc. He received a BA from Allegheny College and a Juris Doctor from Cornell Law School.
David Pauker is a turnaround manager and restructuring advisor with more than 25 years of experience advising underperforming companies and their investors. David was formerly the Executive Managing Director of Goldin Associates, a leading US restructuring advisory firm. He was CRO of Refco, a diversified financial services company that was one of the largest-ever US bankruptcies, and has acted as CRO, CEO, turnaround manager or financial advisor for companies in diverse industries, including apparel and textile, energy and natural resources, financial services, food and consumer products, information technology, manufacturing, media and telecommunications, professional services, real estate, retail and wholesale distribution. A Fellow of the American College of Bankruptcy, David has frequently been ranked among leading U.S. restructuring advisors.David is a director of TerraForm Power and reorganized Lehman Brothers. He is a graduate of Cornell University and the Columbia University School of Law.
Samuel L. Molinaro, Jr. is a Group Managing Director and heads the UBS Non-Core and Legacy division. He joined UBS as the chief operating officer of the Investment Bank in March 2012. Prior to joining UBS, he was the chief executive officer of Braver Stern Securities from 2010-2011. Prior thereto, he spent 22 years at Bear Stearns, where he was executive vice president, chief operating officer and chief financial officer of The Bear Stearns Companies Inc. and its subsidiary Bear Stearns & Co. Inc. Mr. Molinaro was appointed to the executive committee in 2001 and served as executive vice president of The Bear Stearns Companies Inc. and its subsidiary Bear Stearns & Co. Inc. from 2001 to 2008. He was promoted to chief operating officer in 2007. Mr. Molinaro was a member of the Bear Stearns’ Management and Compensation Committee from 1998 through 2008. He was promoted to chief financial officer in 1996 and held that title through 2008. Mr. Molinaro has also served as a director of the Securities Industry and Financial Markets Association (SIFMA). He received a bachelor’s degree in business administration from St. Bonaventure University in 1980 and completed the Harvard Business School Advanced Management Program in 1992.
Mitchell I. Sonkin is currently a Senior Advisor to MBIA, Inc. Prior to his role as an advisor, he served as Executive Vice President and Chief Portfolio Officer for the company. In his capacity as Chief Portfolio Officer, Mr. Sonkin was responsible for the oversight of MBIA’s $778 billion global portfolio of insured municipal, corporate and structured finance credits, including, all workout, restructuring and litigation related remediation activities. He was also a member of the Board of MBIA Insurance Corporation and Capital Markets Assurance Corporation. Prior to this position, Mr. Sonkin was Managing Director and Head of the Insured Portfolio Management Division.
Mr. Sonkin was formerly senior partner and co-chair of the Financial Restructuring Department at the Wall Street law firm Cadwalader, Wickersham & Taft and a member of its Management Committee. Before joining MBIA in 2004, Mr. Sonkin was a senior partner at the international law firm, King & Spalding, where he was co-chair of King & Spalding’s Financial Restructuring Group and a member of the firm’s Policy Committee. He has over 30 years of experience in U.S. and international workouts and restructurings, corporate reorganization and insolvency matters, and has served as a court appointed examiner. Mr. Sonkin has played a significant role in complex structured finance, corporate, infrastructure, utility, healthcare and insurance company reorganizations and served as chief counsel in the rehabilitations of Mutual Benefit Life and Confederation Life Insurance (U.S.).
Mr. Sonkin has lectured and served on panels covering topics such as distressed debt trading, utility restructurings and life insurance company reorganizations. Mr. Sonkin is a cum laude graduate of the Temple University College of Liberal Arts where he earned a bachelor’s degree in political science and currently serves as a member of the Board of Visitors. He received his J.D. from the Syracuse University College of Law where he is a member of the Board of Advisors and its Executive Committee. A member of the Bar of the State of New York, Mr. Sonkin is also admitted to practice before the U.S. Supreme Court.
Paul J. Weber has over 35 years of experience in litigation support and expert witness work, restructuring consulting (both debtor and creditor) and auditing. Mr. Weber began his career at Price Waterhouse and served in a variety of positions and practices (including a 2-year foreign tour), leaving as a partner after 22 years. After his time at Price Waterhouse, he served as a Senior Managing Director at FTI Consulting. After retiring in 2011, Mr. Weber has served on the Contra Costa Civil Grand Jury, performed occasional independent consulting projects and assumed board/trustee positions. Mr. Weber currently serves on Board of Directors of winery Truett Hurst, Inc., and chairs the audit committee.
The ResCap Liquidating Trust was established in December 2013 under the Second Amended Joint Chapter 11 Plan of Residential Capital, LLC, et al. to liquidate and distribute assets of the debtors in the ResCap bankruptcy case. The Trust maintains a website at www.rescapliquidatingtrust.com, where Unitholders may obtain information concerning the Trust.
ResCap Liquidating Trust’s mission is to maximize returns to Unitholders by vigorously pursuing and resolving the mortgage correspondent litigation and monetizing the Trust’s remaining assets in a timely and efficient manner.
Since its creation, and as of December 31, 2019, the Liquidating Trust has, among other things:
The current Trust Manager is John J. Ray III. Mr. Ray has extensive experience as a chief restructuring officer and plan administrator in notable bankruptcy cases and situations involving Overseas Shipholding Group Inc., Nortel Networks Inc. and the Enron Corporation.
“Units” are defined as units of beneficial interest issued by the Liquidating Trust, which entitle the holders thereof to receive from the Liquidating Trust a Pro Rata share of Distributable Cash.
There are 98,859,354 units outstanding.
The Trust’s mortgage assets include mortgage loans, servicer advances, interest income, real estate owned, trading securities, net of costs to sell the assets. The Trust continues to pursue strategies to maximize the recoveries of the Mortgage Asset portfolio for the benefit of the Unitholders.
Please refer to the Liquidating Trust website section entitled Litigation Activity for information on legal claims.
Please refer to the Liquidating Trust website section entitled “Tax Information.”
Please refer to the Liquidating Trust website section entitled “contact us.”
Section 2.5(b) of the Liquidating Trust Agreement provides that if assets cannot be transferred to the Liquidating Trust by a Debtor entity, or it is impracticable or inadvisable to do so, the Debtor entity will continue to retain those assets until it is notified that the Liquidating Trust may receive the assets. Assets that are held by the Debtor entities under these circumstances are referred to as assets held in bailment.
As of December 17, 2013, the Liquidating Trust had $2.26 billion in assets held in bailment. As of December 31, 2017, all assets previously held in bailment have been transferred to the Trust.
The reduction in the assets held in bailment between December 17, 2013 and December 31, 2017 is primarily attributable to the initial distribution and the bank accounts of the Debtors being novated to the Liquidating Trust following the plan effective date. Additional assets were transferred to the Trust as circumstances warranted.
The Liquidating Trust issued units beginning on December 17, 2013 and made an initial cash distribution to each person to whom units were issued. The initial cash distribution was $17.65 per unit.
Please refer to the Liquidating Trust website’s section entitled Litigation Activity for information on pending lawsuits.
CAP RE of Vermont, LLC (“Cap Re” ) is a capt ive insurance company incorporated and licensed under the laws of the State of Vermont. Cap Re, which is taxed as a C corporation, was owned by GMAC Mortgage, LLC and is now owned by the Liquidating Trust. Cap Re provided reinsurance on mortgage loans originated by GMAC Mortgage LLC and its affiliates and correspondent lenders through entering into reinsurance agreements with various primary mortgage insurers in which the company assumed the risk of loss in excess of various loss percentages. Effective December 31, 2008, Cap Re ceased reinsuring new risk, placing the existing reinsurance agreements into run-off in accordance with their terms. CapRe was dissolved as of December 31, 2017.
As of December 31, 2015, the Trust no longer holds mortgage servicing rights. Previously, the Liquidating Trust held the mortgage servicing rights.
As of December 17, 2013, the Effective Date of the Plan, the Liquidating Trust beneficially owned approximately 80 properties located in 34 states. Effective as of January 15, 2014, the Liquidating Trust contributed those properties (as well as certain interests in mineral rights that have only nominal value) to ResCap Securities Holdings Co., a wholly-owned U.S. corporate subsidiary. In addition, any real property acquired subsequent to that date in connection with foreclosure proceedings has been and will be conveyed directly to ResCap Securities Holdings Co., rather than to the Liquidating Trust. It is contemplated that the corporate subsidiary is a United States real property holding corporation within the meaning of section 897 of the U.S. Internal Revenue Code. Between December 17, 2013 and January 15, 2014, the Trust sold four properties, on which no gain or loss was recognized for income tax purposes. Over the course of 2019, ResCap Securities Holdings Co owned 23 properties across 16 states and has added and disposed of properties throughout the period. As of December 31, 2019, ResCap Securities Holdings Co owned 6 properties in 4 states.
The Trust is a liquidating trust for federal and, if applicable, state income tax purposes. The Liquidating Trust Agreement provides that the Liquidating Trust was “established for the purpose of liquidating and distributing the Liquidating Trust Assets in accordance with Treasury Regulations Section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business, except to the extent reasonably necessary to, and consistent with, its liquidating purpose….” The Trust Agreement further provides that “no part of the Liquidating Trust Assets shall be … used or disposed of in furtherance of any trade or business.” Consistent with these provisions, and in light of the nature of the Liquidating Trust’s assets, the Liquidating Trust does not believe that to date it has recognized any income that would constitute trade or business income (or unrelated business taxable income or income that is effectively connected to the conduct of a trade or business in the United States, though such characterizations may depend in part on each Unitholder’s unique tax position) , and it does not anticipate that it will do so in the future. However, there can be no assurance that this will be the case.
The Liquidating Trust owns all of the stock of two US corporations – RFC Foreign Equity Holding Co. and ResCap Securities Holdings Co. – that owned the stock of several foreign corporations. The foreign corporations have all been liquidated as of December 31, 2017. The Liquidating Trust did not directly own any stock of any foreign corporation.
The Liquidating Trust files income tax returns in those states in which it determines it has a filing obligation. The Liquidating Trust provides Tax Worksheets for Beneficiaries for each of the states in which the Trust files an income tax return via postings on the Trust’s website at: www.rescapliquidatingtrust.com. The Worksheets reflect the income and deductions that the Trust determines should be allocated to each state in which it files an income tax return. The Liquidating Trust does not provide tax advice. Each Unitholder should seek advice from its own tax advisor as to which state income tax returns, if any, it is required to file as a result of owning Units or otherwise and its share of Trust income and deductions, if any, that must be reported on any such state income tax return.
In addition, if you are entitled to receive Units, you must also provide broker information. You must designate a broker, bank or other financial institution with which you maintain a securities account to receive your Units on your behalf. You may email the Trust at rescapliquidatingtrust@rescapestate.com to request a form on which to provide your securities account information or access such form on the Trust’s website here. A link to the Securities Account Information Form is provided under the section titled “Forms.”
The completed forms should be returned promptly to the following email or address:
ResCapLiquidatingTrust@ResCapEstate.com or
ResCap Liquidating Trust
P.O. Box 385220
Bloomington, Minnesota 55438
IRS Form W-9 is posted on the Trust’s website here. A link to the Form W-9 is provided under the section titled Distribution Info – Forms. Copies of the W-9 form can also be found at ww.irs.gov.
A Beneficiary that did not acquire its Units from the Trust in the initial distribution as of December 17, 2013 may have an adjusted tax basis per Unit (and therefore an adjusted tax basis in the underlying Trust assets attributable to such Units) that differs from the adjusted basis of a Unit acquired from the Trust as of December 17, 2013. The basis difference per Unit, in general, should equal the difference Between (i) such Beneficiary’s tax basis in each of its Units at the time it acquired such Units and (ii) $28.02 (the December 17, 2013, tax basis per Unit), increased by the per Unit Trust items of taxable income and gains through the date that the Beneficiary acquired its Units and reduced by the per Unit Trust items of taxable deduction and loss and distributions made through the date that the Beneficiary acquired its Units, in each case as reported by the Trust and available on its website under the heading “financial and tax information.” Because the Trust, in general, does not know the price and date at which such a Beneficiary acquired its Units, it cannot provide this basis information for each Beneficiary.
A basis difference as described above could affect the Beneficiary’s taxable income and loss from holding Trust Units, because the basis difference in Units generally will also result in the Beneficiary having a tax basis in its share of the underlying Trust assets that differs from the basis that the Trust uses in computing its taxable income and loss. A Beneficiary with a basis difference should consult its tax advisor as to whether and how any adjustments should be made as a result of such differing basis to the per Unit Trust items of taxable income and loss as reported by the Trust for the periods that such Beneficiary holds its Units. In general, that may depend, in part, on the determination as to which Trust assets or liabilities the basis differential is attributable and how to calculate the recovery of basis that is allocable to multiple assets of the same class, such as the litigation claims. For example, a Beneficiary whose per Unit adjusted tax basis exceeds that of a Unit acquired from the Trust as of December 17, 2013 may conclude that the excess basis is attributable to the Trust’s litigation claims and that, therefore, its per Unit share of the income recognized from specific litigation recoveries is less than that reported by the Trust.
| ResCap Liquidating Trust Summary of Distributions to Unitholders |
|||||||
|---|---|---|---|---|---|---|---|
| Distribution # | Date Declared | Record Date |
Distribution Date | Total Amount Distributed | Cumulative Distributed | Amount Per Unit | Cumulative Per Unit |
| 1 | N/A | 12/17/2013 | 12/27/2013 | $1,765,000,000 | $1,765,000,000 | $17.6500 | $17.6500 |
| 2 | 5/15/2014 | 5/23/2014 | 6/9/2014 | $115,000,000 | $1,880,000,000 | $1.1500 | $18.8000 |
| 3 | 9/18/2014 | 10/2/2014 | 10/17/2014 | $150,000,000 | $2,030,000,000 | $1.5000 | $20.3000 |
| 4 | 3/6/2015 | 3/16/2015 | 3/31/2015 | $200,000,000 | $2,230,000,000 | $2.0000 | $22.3000 |
| 5 | 5/3/2017 | 5/18/2017 | 6/2/2017 | $200,000,000 | $2,430,000,000 | $2.0000 | $24.3000 |
| 6 | 8/2/2017 | 8/17/2017 | 9/1/2017 | $150,000,000 | $2,580,000,000 | $1.5000 | $25.8000 |
| * | 9/29/2017 | N/A | N/A | $(28,603,867) | $2,551,396,133 | $– | $25.8000 |
| 7 | 11/16/2017 | 11/27/2017 | 12/12/2017 | $140,000,000 | $2,691,396,133 | $1.4156 | $27.2156 |
| 8 | 12/4/2017 | 12/14/2017 | 12/29/2017 | $100,000,000 | $2,791,396,133 | $1.0112 | $28.2268 |
| ** | 3/30/2018 | N/A | N/A | $(902,383) | $2,790,493,750 | $– | $28.2268 |
| 9 | 5/25/2018 | 6/28/2018 | 7/13/2018 | $350,000,000 | $3,140,493,750 | $3.5403 | $31.7671 |
| 10 | 11/16/2018 | 12/13/2018 | 12/28/2018 | $100,000,000 | $3,240,493,750 | $1.0115 | $32.7786 |
| 11 | 2/26/2019 | 3/8/2019 | 3/25/2019 | $75,000,000 | $3,315,493,750 | $0.7586 | $33.5372 |
| 12 | 5/7/2019 | 5/20/2019 | 6/4/2019 | $25,000,000 | $3,340,493,750 | $0.2528 | $33.7900 |
*On September 29, 2017, 1,108,677 Units of Beneficial Interest in the Trust were cancelled, bringing Trust Units outstanding to 98,891,323. Previously declared distributions of $25.80 per Unit for the cancelled Units were reversed.
**On March 31, 2018, 31,969 Units of Beneficial Interest in the Trust were cancelled, bringing Trust Units outstanding to 98,859,354. Previously declared distributions of $28.2268 per Unit for the cancelled Units were reversed.
In accordance with Sections 5.2 and 5.3 of the Liquidating Trust Agreement (“LTA”), distribution dates are determined by the Liquidating Trust Board (the “Board”), and are required to occur no less frequently than semi annually, unless the Board determines that the aggregate amount of cash distribution makes a distribution impracticable. In such a case, the cash will be distributed on a subsequent distribution date. Distributions are made to Unitholders as of a distribution record date established by the Board which will be between 15 to 30 days before the distribution date. The Trust will announce and post to the website the record date and distribution amount for an upcoming distribution at least 5 business days before each record date.
The ex-dividend date is 1 day prior to the the record date unless the distribution is greater then 25% of the market value, in which case the ex-dividend date is 1 day after the the distribution date.
The Trust does not have the necessary information concerning the identity and tax status of its unit holders to complete any required tax withholding. Thus, the Trust will distribute the gross amount of the distribution to brokers (through DTC) and anticipates that any required tax withholding will be effected by U.S. brokers (or other nominees). Unit holders should refer to the Liquidating Trust website and consult with their tax advisors with respect to the tax treatment of any distribution.
Blank copies of the IRS Form W-9, W-8BEN, and the Securities Account Information Form are available for download here:
Any completed forms should be returned to the following email or address: ResCapLiquidatingTrust@rescapestate.com or
ResCap Liquidating Trust
P.O. Box 385220
Bloomington, Minnesota 55438
Since December 17, 2013, the ResCap Liquidating Trust (the “Trust”) has filed 96 actions against correspondent lenders to Residential Funding Company LLC (“RFC”) on grounds of indemnity and breach of contract. As of February 26, 2020, the Trust has settled 85 cases, recovering more than $1.2 billion for its creditors. A list of all active and resolved cases is provided below with links to the docket activity.
| Case Name | Case Number | Case Location |
| Residential Funding Company, LLC v. Home Loan Center, Inc. and Tree.com, Inc. (Stayed by Home Loan Center Chapter 7 filing; Case No. 19-51455 MEH Chapter 7 Hon. M. Elaine Hammond) | 19-2533 | 8th Circuit Appellate |
| ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. | 13-cv-3451 | (D. Minn.) |
| ResCap Liquidating Trust v. LendingTree, LLC and LendingTree, Inc. | 19-cv-2360 | (D. Minn.) |
| Case Name | Date | Time | Judge | Purpose |
| ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. | Tuesday, March 3, 2020 | 9:00 a.m. CST | Judge Susan Richard Nelson | Trial |
| ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. | Wednesday, March 4, 2020 | 9:00 a.m. CST | Judge Susan Richard Nelson | Trial |
| ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. | Thursday, March 12, 2020 | 9:00 a.m. CST | Judge Susan Richard Nelson | Trial (if needed) |
| ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. | Friday, March 13, 2020 | 9:00 a.m. CST | Judge Susan Richard Nelson | Trial (if needed) |
| ResCap Liquidating Trust v. LendingTree, LLC and LendingTree, Inc. | Tuesday, April 14, 2020 | 2:00 p.m. CST | Judge Susan Richard Nelson | Case Management Conference |
Regarding Servicing Transfer of Mortgage Asserts – The Trust transferred the Servicing of its loan portfolio and outstanding claims to LoanCare on November 1, 2016.
For more information related to LoanCare, please click on the links below to visit their website:
Questions regarding your distribution under the Debtors’ Second Amended Joint Chapter 11 Plan should be directed to ResCapLiquidatingTrust@rescapestate.com.
Important Note: If you are a borrower whose residential mortgage loan was serviced by the Debtors prior to or during the Chapter 11 proceedings and you timely filed a claim in those proceedings, it is highly likely that your questions are best directed to Peter S. Kravitz, as representative of the Borrower Claims Trust created under the Plan. The Borrower Claims Trust was established for the sole benefit of the holders of Allowed Borrower Claims and is administered by the Borrower Claims Trustee.
**If you are requesting a lien release or a corrected assignment on a loan liquidated prior to February 15, 2013, please note that the Joint Chapter 11 Plan (the “Plan”) approved and ordered by the bankruptcy court limits the Trust’s rights and obligations.
Pursuant to the Plan, the ResCap Liquidating Trust has been released from liability for pre-petition claims. Accordingly, Paragraph 40(G) of the Order confirming the Plan bars any claims against the Debtors or the Liquidating Trust (the “Plan Injunction”). A copy of the confirmation order can be found here.
To: Parties Holding Senior Liens on Properties Seeking Relief from the Automatic Stay to Foreclose on their Senior Liens and Parties Seeking to Clear or Quiet Title to Properties
Please be advised that on August 5, 2019, on Motion of the ResCap Liquidating Trust (the “Liquidating Trust”) dated July 29, 2019 (the “Modification Motion”), the United States Bankruptcy Court entered the following order (the “Modification Order”):
ORDER (I) MODIFYING THE COURT’S ORDER APPROVING PROCEDURES BY WHICH THIRD PARTIES MAY REQUEST AND OBTAIN STIPULATED RELIEF FROM THE AUTOMATIC STAY TO COMMENCE OR CONTINUE ACTIONS TO FORECLOSE ON SENIOR LIENS, (II) CLARIFYING THE SCOPE OF THE PLAN INJUNCTION PROVISIONS, (III) TO THE EXTENT NECESSARY, MODIFYING THE AUTOMATIC STAY AND PLAN INJUNCTION PROVISIONS TO PERMIT THIRD PARTIES TO COMMENCE AND COMPLETE ACTIONS TO FORECLOSE ON SENIOR LIENS AND NON-MONETARY CAUSES OF ACTION SEEKING TO CLEAR OR QUIET TITLE, AND (IV) MODIFYING THE COURT’S ORDER ESTABLISHING PROCEDURES ENFORCING INJUNCTIVE PROVISIONS OF THE PLAN AND CONFIRMATION ORDER
The Modification Order can be found here and the Modification Motion can be found here.
The Liquidating Trust recommends that any (i) party seeking relief from the Bankruptcy Court to (a) foreclose on a senior lien or (b) take any other action with respect to a senior lien (each of (a) or (b) a “Senior Lien Foreclosure Action”), and (ii) party seeking to clear or quiet title to a property (a “Quiet Title Action”), to carefully review the Modification Motion and Modification Order. In all circumstances the terms of the Modification Order will control and nothing set forth herein is intended to modify the express terms of the Modification Order.
Procedures for Parties Seeking Relief from the Automatic Stay to Initiate Foreclosure Actions on Senior Liens
The Modification Order provides that holders of senior liens or their representatives are relieved from compliance with the terms of the order entered by the Bankruptcy Court on October 15, 2012, Approving Procedures by Which Third Parties May Request and Obtain Stipulated Relief from the Automatic Stay to Commence or Continue Actions to Foreclose Senior
Liens (the “Senior Lien Stay Relief Order”); provided, however, if any such party seeks to initiate a Senior Lien Foreclosure Action on a property in which the Liquidating Trust maintains an interest (collectively, the “Mortgage Assets”), such party is still required to comply with the terms and conditions of the Senior Lien Stay Relief Order. A list of the Mortgage Assets can be found at Exhibit 2 to the Modification Motion. In all other circumstances, relief from the Bankruptcy Court will not be required in order for a party to commence a Senior Lien Foreclosure Action provided the party seeks only equitable and non-monetary relief with respect to the Liquidating Trust or any Debtor.
Procedures for Parties Seeking to Quiet or Clear Title
If you are requesting a lien release or a corrected assignment on a loan liquidated prior to February 15, 2013, please note that the Joint Chapter 11 Plan (the “Plan”) approved and ordered by the Bankruptcy Court limits the Liquidating Trust’s rights and obligations.
Pursuant to the Plan, the Liquidating Trust has been released from liability for pre-petition claims. Accordingly, Paragraph 40(G) of the Order confirming the Plan bars any claims against the Debtors or the Liquidating Trust (the “Plan Injunction”). A copy of the confirmation order can be found here.
In addition, on March 13, 2015, the Bankruptcy Court entered an Order Granting the Motion for Entry of an Order Establishing Procedures Enforcing Injunctive Provisions of Plan and Confirmation (“Procedures Order”). The Procedures Order (i) bars parties from continuing to prosecute actions against the Debtors that violate the injunction provisions of the Plan and Confirmation Order, and (ii) permits the Liquidating Trust to seek further relief from the Bankruptcy Court in the event a party refuses to dismiss such an action with respect to the Debtors. The Procedures Order can be found here.
In light of these court-approved orders, the Liquidating Trust is unable to assist with your request for a lien release or corrected assignment. However, the Modification Order provides for a modification of the automatic stay and Plan Injunction where a party seeks only equitable relief to clear or quiet title relating to a property in which the Liquidating Trust does not hold a current interest and where that party does not seek any monetary damages against any of the Debtors or the Liquidating Trust. Accordingly, subject to these provisions and provided the property in issue is not one of the Mortgage Assets, parties may commence Quiet Title Actions in appropriate forums and, to the extent required by applicable law, may name the Liquidating Trust or any Debtor as a nominal defendant in such Quiet Title Actions.
To the extent required by applicable law, parties to Senior Lien foreclosure Actions and Quiet Title Actions may effect service on the Debtors and the Liquidating Trust at Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808 and 8400 Normandale Lake Boulevard, Suite 920, Bloomington, MN 55437.