Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00951-JJF Document 46 Filed O4/14/2005 Page 1 of 3
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April 14, 2005
The Honorable Joseph J , Farnan, Jr.
United States District Court
for the District of Delaware
J Caleb Boggs Federal Building
844 N, King Street
Locicbox 18
Wilmington, DE l980l
Re: JPMorgan Chase Bank v. US. Bank Natio::alAssocintior1,
Case No. 04—951 MJF)
Your Honor:
I write to respond to the April 13, 2005 letter sent to your chambers by US, Bank
National Association ("U,S. Bank"), the appellee in the aboveaeferenced case, in which US
Bank makes various contentions concerning the Court’s stay order of September 28, 2004 (the
“Stay Order") and requests a hearing. .ll’i\/lorgan Chase Bank ("QFPi\/{organ"), the appellant,
respectfully submits that there is no need to burden the Court and the parties with a hearing for
any reason stated in US, Bank’s letter
First, lPl\/{organ contends that, in the context of an appeal, the phrase "finai
resolution" is reasonably susceptible to one meaning only ——» i.e , resolution by the highest court
to consider the appeal. US. Bank offers nothing in support of its interpretation of the Stay
Order. Nor coutd it As this Court has repeatedly acknowledged throughout these proceedings,
the district court sits as an intermediate appellate court in bankruptcy cases. Accordingly, this
Court, as a matter of law, is not the tina} arbiter ofthe Reserve Appeal. In all events, resolution
of this issue surely does not require a hearing, for the Court can easily issue an order stating what
it means by the phrase "tinal resolution ofthe Reserve Appeal "
Moreover, while US, Bank asserts —~ again, without citation to any authority ~—
that JPMorgan "must” seek a stay from the Third Circuit Court of Appeals once this Court
renders its decision in the Reserve Appeal, the governing law provides that stays pending appeal
are the province of the district court in the first instance See Fed. R. App B 8(a) Accordingly,
the stay issue belongs in this Court in the tirst instance irrespective of the Court’s interpretation
of the phrase "final resolution ofthe Reserve Appeal "
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Case 1:04-cv-00951-JJF Document 46 Filed O4/14/2005 Page 2 of 3
The Honorable Joseph.} Faman, Jr
April 14, 2005
Page 2
As to Li S Banl~:’s reconsideration motion, JPMorgan continues to maintain that
the motion should be denied for all the reasons stated in its previously tiled opposition to the
motion, a copy of which is enclosed herewith for the Court’s convenience. Among other things,
as was the case in October 2004, nothing in the facts or the law has changed since the Court’s
Stay Order that would provide the Court with a basis to amend that Order See, eg., Schering
Corp. in Amgen, Inc., 25 F. Supp 2d 293, 295 (D Del, 1998) (reciting applicable standards,
including that “a motion for reargutnent may not be used by the losing litigant as a vehicle to
supplement or enlarge the record provided to the Court and upon which the merits decision was
made unless new factual matters not previously obtainable have been discovered since the issue
was submitted to the Court", stating that "reargu1nent should be denied where the proponent
simply rehashes materials and theories already briefed, argued and decided", and denying
reargument because the movant “r[a]n afoul of several of these principles,” and because "the
grounds asserted for reargument merely constitute [the movant]’s disagreernent with the Court’s
conclusions") (internal quotation marks and citations omitted), In re Reliance Sec. Litig., 2004
WL 1196800, *2 (D Del. 2004) (denying reargurnent where, inter alia, the niovants did not
present “any new facts to persuade me that rearguinent would result in an amendment to the
c0urt’s previous order"), see also September 22 Hrg Trans. at 37-38, 54, 56 (U S. }3ank’s
counsel arguing that nothing has “changed" or is “new")
While U S Bank claims that the rights of U S Bank and its constituents are
"unfairly prejudiced" by Jl’Morgan’s interpretation of the Stay Order in light of the Court’s
February li', 2005 decision in the Claims Appeals, this argument does not provide a basis for
granting U S Bank’s reconsideration motion Moreover, U S Bank has made no showing that
unsecured creditors have suffered or will suffer any losses as a consequence of the Stay Order
Nor could such a showing be made, as the interests of creditors are protected by the fact that the
monies held in reserve during the stay accrue interest at a rate equal or equivalent to the federal
rate of interest prescribed by 28 U SC, § l96l
Significantly, US. Bank also fails to acknowledge that JPMorgan, with the assent
of US Bank and the GHC Liquidation Trustee, has tiled a motion in the Third Circuit seeking
expedited consideration ofthe Claims Appeals
ilLl*1—28638B4—1

Case 1:04-cv-00951-JJF Document 46 Filed O4/14/2005 Page 3 of 3
The Honorable Joseph I . Farnan, Jr.
April 14, 2005
Page 3
Thank you for your consideration
Respectiirlly,
Q»,»§47?¢%M~··»r_
Jason M. Madron
Jl\/ljM!vjl
cc: Clerk, U.S District Court (via hand delivery)
Karen C, Bifferato, Esquire (via hand delivery and e—mail)
Derek C Abbott, Esquire (via hand delivery)
Wiliiam F Taylor, Jr., Esquire (via hand delivery)
Mark S Kenney, Esquire (via hand deiivery)
Laurie Selber Silverstein, Esquire (via hand delivery)
Eric Lopez Schnabel, Esquire (via hand delivery)
Christopher D Loizides, Esquire (via hand delivery)
Michael B. Fisco, Esquire (via Federal Express and e-mail)
Robert Stark, Esquire (via Federal Express and e~mail)
John J. Galban, Esquire (via tirst class mail)
Rheba Rutkowski, Esquire (via first class mail)
Michael J . Reilly, Esquire (via first class maii)
Steven G Varner, Esquire (via first class mail)
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