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Until Agway commenced its Chapter 11 in 2002, it had not defaulted on any payments to its insurers.
As a result, in its proof of claim, Fidelity simply “asserted no more than a contingent right to payment” under the agreements.
By establishing a liquidating trust pursuant to section 1123(b)(3) in a confirmed plan of reorganization or liquidation, a debtor can transfer causes of action and other assets to a trust, for future liquidation and distribution to the debtor’s creditors, and avoid delaying plan confirmation.
David was formerly the Executive Managing Director of Goldin Associates, a leading US restructuring advisory firm. He was promoted to chief operating officer in 2007. Molinaro was a member of the Bear Stearns’ Management and Compensation Committee from 1998 through 2008. from the Syracuse University College of Law where he is a member of the Board of Advisors and its Executive Committee. The Trust maintains a website at where Unitholders may obtain information concerning the Trust. The Trust continues to pursue strategies to maximize the recoveries of the Mortgage Asset portfolio for the benefit of the Unitholders.The trustee, Ogle, conceded that Fidelity was entitled to the fees under state contract law, but argued that the Code barred Fidelity’s recovery.The issue presented to the Second Circuit was: “[u]nder the Bankruptcy Code, is an unsecured creditor entitled to recover post-petition attorneys’ fees that were authorized by a prepetition contract but were contingent on post-petition events?to liquidate and distribute assets of the debtors in the Res Cap 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.