MARY KAY VYSKOCIL, Bankruptcy Judge.
Pending before the Court is the Trustee's Supplemental Motion for Summary Judgment as to Purported Affirmative Defenses Asserted by the Defendant (the "
In her Supplemental Summary Judgment Motion, the Trustee seeks a ruling that, by reason of its Redemption Request, the Debtor, Soundview Elite Ltd. ("
This adversary proceeding concerns a transaction between two related Soundview entities whereby one entity, Elite, purchased shares issued by Composite and, several years later, issued a request to redeem those shares. The dispute arose as a result of Composite's failure to honor Elite's redemption request. As particularized below, in his Summary Judgment Decision, Judge Gerber found that Composite had failed to comply with its obligation to honor Elite's redemption request and that Composite owes Elite the Net Asset Value (as defined below) of Elite's shares in Composite as of the close of business on September 30, 2011. See Summ. Judg. Order at ¶¶ 2(j), 2(l). The Summary Judgment Decision left unresolved "the amount of Elite's entitlement, and the extent to which other creditors' claims are senior to, or pari passu with, Elite's claims." Summ. Judg. Dec'n at 79. This issue is now before the Court on the Supplemental Summary Judgment Motion.
Elite and Composite each is a mutual fund, registered in the Cayman Islands as an exempted open-ended investment company. See Complaint at ¶¶ 3, 5; Answer at ¶ 5. All of the assets of Composite are maintained in an account at Wilmington Trust Company (the "
At the time of the redemption request at issue, Soundview Capital Management Ltd. ("
On September 24, 2013 (the "
In January 2014, Peter Anderson and Matthew Wright, in their capacity as the Joint Official Liquidators for Elite, Soundview Premium Limited and Soundview Star Limited, appointed by the Grand Court of the Cayman Islands (the "
At the Court's request, the parties have jointly submitted an account statement reflecting that the balance in the Wilmington Trust Account, as of July 31, 2016, is $3,725,607.54. See ECF No. 133.
In May 2007, Composite issued a Confidential Private Placement Memorandum (the "
By complaint, dated April 1, 2014 (the "
On May 2, 2014, Composite filed an answer to the Complaint (the "
On May 19, 2014, the Trustee moved for summary judgment declaring, inter alia, that (a) Elite properly redeemed its interest in the Composite Shares, (b) Composite failed to comply with its obligation to honor the Redemption Request, and (c) Composite owes Elite the Net Asset Value (as defined below) of Elite's investment in Composite. See Notice of Trustee's Motion for Summary Judgment, dated May 19, 2014 (the "
Composite opposed the Trustee's Summary Judgment Motion and asserted that outstanding material issues of fact remain, including that the Trustee had not established that (i) Elite's Redemption Request was issued and complied with the governing documents; (ii) Composite waived a gating requirement; or (iii) the precise amount owing to Elite. See Defendant's Memorandum of Law in Opposition to Trustee's Motion for Summary Judgment, June 16, 2014 (the "
On January 4, 2016, Judge Gerber issued his decision on the Summary Judgment Motion. The Court found that the Net Asset Value of Elite's investment, which it defined as the "Owed Amount," "effectively is everything Composite would have after the payment of Composite's creditor liabilities." Summ. Judg. Dec'n at 1-2. Judge Gerber concluded that no material issues of fact exist with respect to the following matters, and that the Trustee has established that:
See Summ. Judg. Order at ¶ 2, Summ. Judg. Dec'n at pp 79-80, (emphasis added).
Accordingly, Judge Gerber granted summary judgment to the Trustee "on all issues other than the amount of Elite's entitlement, and the extent to which other creditors' claims [against Composite] are senior to, or pari passu with, Elite's claims." Summ. Judg. Dec'n at 79. These are the issues now before the Court on the Trustee's Supplemental Summary Judgment Motion.
After issuing his summary judgment ruling, Judge Gerber held a status conference on January 7, 2016 (the "
In response to the Trustee's discovery demands, Composite submitted Defendant's Responses to Plaintiff's First Set of Interrogatories, dated January 22, 2016 (see Dailey Dec'l at Exh. A) (the "
On April 8, 2016, this adversary proceeding was reassigned to the Honorable Mary Kay Vyskocil, upon her assuming judicial office. At a status conference on April 14, 2016, (the "
Once discovery was concluded, counsel to Composite and the Trustee agreed, at a subsequent status conference before the Court, that the parties would seek to resolve the outstanding issue identified by Judge Gerber in the Summary Judgment Decision by means of briefing a supplemental summary judgment motion to be filed by the Trustee.
In opposing the Trustee's Supplemental Summary Judgment Motion, Composite argues that the amount owing to Elite should reflect a reduction based on the following alleged liabilities of Composite, identified by Composite in Exhibit A to the Interrogatory Responses, totaling $504,711 (collectively, the "
Composite also argues that the amount owing to Elite should be further reduced by a $2.4 million amount to be held in reserve against Composite's claimed anticipated future financial obligations, which are also identified in Exhibit A to the Interrogatory Responses, and are broken down as follows (collectively, the "
The Trustee argues, in reply, that there is no factual basis for any of these alleged liabilities or the reserves and that the amount owing to Elite should not be reduced by any of the Alleged Liabilities or the Alleged Reserve Amounts.
Judge Gerber determined in the context of the Summary Judgment Motion that "the uncertainty as to the amounts to be turned over make use of the turnover power inappropriate," and accordingly, the Trustee's action to recover the amount owed to Elite is not a core proceeding under section 542 of the Bankruptcy Code, but rather, is a non-core matter, such that this Court cannot enter a final judgment. See Summ. Judg. Dec'n at 30. Thus, Judge Gerber concluded that the Court would submit proposed findings of fact and conclusions of law to the District Court, in accordance with 28 U.S.C. section 157(c)(1), and any final order or judgment shall be entered by the District Court judge after considering this Court's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. See Summ. Judg. Dec'n at 31.
Seeking what appears to be a second chance to litigate the matter Judge Gerber already has decided, Composite argues that Judge Gerber's conclusions regarding the Court's jurisdiction over the Trustee's turnover action require a denial of the Supplemental Summary Judgment Motion at the outset for two reasons.
Manifestly, had Judge Gerber determined that there was no longer a "case or controversy" pending before the Bankruptcy Court, he would not have gone on to issue an 80-page decision in which he concluded that Elite is entitled to a recovery based on its Redemption Request. Nor would he have held the January Status Conference at which he directed the parties to complete discovery with respect to the extent, value and priority of the Alleged Liabilities, with a view toward further proceedings in the Bankruptcy Court.
For the reasons discussed below, the Court finds that Composite's unsupported allegations that it owes amounts to third parties is nothing more than another baseless attempt to further delay honoring its contractual obligations to Elite.
Rule 56(c) of the Federal Rules of Civil Procedure ("
After a party opposing a summary judgment motion has been afforded a sufficient time for discovery, summary judgment must be entered against the opposing party if such party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There is no genuine issue concerning any material fact when "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
The summary judgment standard is interpreted in a way to support its primary goal of "dispos[ing] of factually unsupported claims or defenses." Id. at 323-24. The summary judgment movant meets its burden by "`showing' . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Application of the summary judgment procedure is not a disfavored procedural shortcut, but an integral part of the Federal Rules where there are no triable issues of fact. See id. at 327.
Judge Gerber has found that "Composite owes Elite the Net Asset Value of Soundview Elite's shares in Composite as of the close of business of September 30, 2011." Summ. Judg. Order at ¶ 2(l). And, Judge Gerber determined that "[t]he Court can and does quantify the Trustee's claim at `at least' $3.8 million, but is not otherwise in a position to now fix it in amount." Summ. Judg. Dec'n at 56. He went on to observe that "[t]he parties have not specifically briefed the issues surrounding the amount of other creditors' claims; whether Elite's claim would be junior to, or pari passu with, those other creditors' claims; and whether claims against Composite by insiders (such as the Management Company, Fletcher, Saunders and Ladner) would be senior to (or even pari passu with) Elite's entitlement." Summ. Judg. Dec'n at 57. Composite argues here that the Alleged Liabilities and the Alleged Reserve Amounts must be set aside from the funds from which Elite is paid the amount owing on account of Elite's Redemption Request (see Supp. Opp. Brf. at 13), while the Trustee contends that the Alleged Liabilities have not been substantiated and, for this and other reasons, should not be afforded priority over the amount owing to Elite on account of its Redemption Request (see Supp. Br. at 22).
The PPM sets forth the rights of investors to redeem their shares and provides as follows:
PPM at 31. Accordingly, the amount that a shareholder, such as Elite, is entitled to receive upon redemption is based on a calculation of the "Net Asset Value." "Net Asset Value" is defined in the PPM as "the total assets of the Fund,
The Parties have concluded the focused discovery directed by Judge Gerber with respect to the proper calculation of the Net Asset Value, which necessarily requires a determination of the extent, if any, of the Alleged Liabilities and Alleged Reserve Amounts. The Net Asset Value, by definition, is determined by the formula set forth in the PPM: the total assets of Composite, including all cash, cash equivalents and other securities (each valued at fair market value), less the total liabilities of Composite. PPM at 32-33. Accordingly, the Net Asset Value must be calculated as $3,725,607.54
The starting point for the Court's analysis is the finding by Judge Gerber that "Composite owes Elite the Net Asset Value of its shares as of the close of business of September 30, 2011." Summ. Judg. Order at ¶ 2(l). As Composite's counsel acknowledged at the Summary Judgment Hearing, Composite is the party responsible for determining the Net Asset Value:
See, Tr. of August 11, 2016 Hearing at 41:19-25 (emphasis added). The Trustee's Supplemental Motion Papers, Composite's Supplemental Opposition Papers, the Interrogatory Responses, the six documents produced and relied upon by Composite, and the record in this case establish that there is no genuine issue as to any material fact with respect to the existence of, or bona fides of, any of the Alleged Liabilities. As noted above, Composite has produced all documents in its possession that possibly could establish the existence of (or, here, create a genuine issue of material fact as to the existence of) the Alleged Liabilities, and Composite has acknowledged that it does not have any other documents that would support its claim that the amount owing to Elite should be reduced by the Alleged Liabilities. Because (i) Judge Gerber has found that Elite is entitled to the Net Asset Value of Elite's shares in Composite as of September 30, 2011, which is equal to the full value of the Wilmington Trust Account, subject only to a reduction for any legitimate liabilities of Composite, (ii) there is no competent evidence in the record that would support, much less create a genuine issue of material fact as to, the existence of any of the Alleged Liabilities (with the exception of the Law Firm Liability), and (iii) as discussed below, the Law firm Liability was incurred well after the September 30, 2011 date found by Judge Gerber for calculation of the Net Asset Value, the Trustee is entitled to judgment that the amount owing to Elite in connection with its Redemption Request is not subject to reduction by any of the Alleged Liabilities.
In her Interrogatories, the Trustee requested that Composite identify, with respect to all persons or entities to whom any current, outstanding, unpaid or claimed payment obligation, debt or amount owed or purportedly owed by Composite: (i) the name of such person or entity; (ii) the date(s) on which such indebtedness was incurred or accrued; (iii) the amounts of such indebtedness; and (iv) the contracts, agreements, documents and any other basis or reason that gives rise to such payment obligations. See Interrogatory Responses at 1. Composite responded to the Trustee with a table, attached as Exhibit A to its Interrogatory Responses, which lists names of parties to whom such indebtedness allegedly is owing, the time period during which the obligation purportedly was incurred, and the amount of the alleged liability ("
During the Supplemental Summary Judgment Motion Hearing, the Court repeatedly invited Composite to explain which of the Composite Documents support which Alleged Composite Liability, but Composite's counsel, after refusing to provide answers to the Court's questions, ultimately confessed that Composite was unable to point to any evidentiary support, other than the unverified Interrogatory Responses, to support the existence of Alleged Liabilities. See, Tr. of August 11, 2016 Hearing.
See id. at 38:15-24.
Id. at 43:11-25-44:1-4.
After failing to obtain an explanation of which of the Composite Documents purportedly substantiate the Alleged Composite Liabilities, the Court asked Composite's counsel from where the amounts claimed by Composite to constitute the Alleged Liabilities listed in Table A are derived. Composite's counsel informed the Court that the amounts were estimates given to Composite at the time Composite was preparing its responses to the Interrogatories in this adversary proceeding. See id. at 44:5-12. When the Court asked Composite's counsel whether the documents on which those estimates were based were produced in response to the Trustee's Document Requests, Composite's counsel stated "I'm not sure that they were based on any documents." See id. at 44-15-17. In fact, Composite's counsel stated that although Composite asked the parties to whom the Alleged Liabilities purportedly are owing to provide documentation supporting the liabilities, no documentation was provided to Composite. See id. at 41:17-18.
Accordingly, not only were the amounts which Composite claims that it owes to third parties not supported by documentation, Composite's counsel ultimately acknowledged that the amounts are also not conclusively supported by the Composite Documents or indeed by any documents whatsoever. Specifically, Composite's counsel stated at the Supplemental Summary Judgment Hearing that "we recognize that those documents [i.e. the Composite Documents] do not conclusively establish that the amounts are owed, but as I've stated, we would submit that those parties should be given an opportunity to be heard as to those claims." Id. at 45:8-11.
The Court finds that there is simply no support in the record by competent evidence (or otherwise) that creates a genuine issue of material fact as to the existence of the Alleged Liabilities (with the possible exception of the Alleged Law Firm Liability, as discussed below). Accordingly, the Court rejects what it finds to be Composite's thinly veiled attempt to further delay paying Elite the amount owing on its Redemption Request (which Judge Gerber found had been issued at least 4 years ago), on the basis that the amount owed is not subject to calculation without the involvement of alleged third party creditors.
The Court notes that the longer Composite staves off its obligation to calculate the Net Asset Value and pay over to the Trustee the funds held in the Wilmington Trust Account, the longer Composite has to attempt to divert the funds for its own benefit (i.e. payment of liabilities to be incurred in the future) and, quite possibly, as it already has done during the course of this adversary proceeding, for the improper benefit of its insiders and affiliates. For example, Judge Gerber found that "Mr. Fletcher caused funds to be withdrawn from Composite's Wilmington Trust account under an order authorizing only a lesser amount of funds to be withdrawn, and for different purposes. Mr. Fletcher used frozen funds not just for the purposes of paying counsel for Composite to defend it on these motions and in an investigation by the SEC (as this Court had authorized), but for a host of impermissible purposes."
As discussed below, Composite has failed to create a genuine issue of material fact as to the existence of any Alleged Composite Liability, with the possible exception of the Alleged Law Firm Liability, which liability, while potentially legitimate, was incurred well past the date on which funds were due and owing to Elite by reason of its Redemption Request.
In its Interrogatory Responses, Composite did not explain the basis for the Alleged SCM Liability other than stating the general proposition that the amounts set forth on Exhibit A to the Interrogatory Responses "represent financial obligations incurred by Soundview Composite either [sic] pursuant to written agreements with the Person identified on Exhibit A." Interrogatory Responses at 4. Since SCM acted as investment manager to Composite, the only plausible basis for the Alleged SCM Liability is services SCM provided to Composite in this capacity.
The Trustee argues that, pursuant to the PPM, Composite may pay its investment manager (i.e. SCM) in respect of Class D, Class E, Class F, Class Y and Class P shares, a monthly management fee in a specified amount, pursuant to the terms of the Investment Management Agreement. See Supp. Brf. at 13 (citing the PPM at 14). However, the relevant portion of the PPM, entitled "FEES AND EXPENSES" under the sub-heading "The Investment Manager's Fees" does not account for payment of SCM's fees in respect of the Composite Shares (i.e. the Class H shares). To this point, the PPM provides as follows:
PPM at 15. (emphasis added) Accordingly, any fee arrangement with SCM whereby fees would be payable on account of the Composite Shares must have been separately negotiated with Elite, as the only holder of the Class H Shares. Composite has not identified, either in its Interrogatory Responses or its Supplemental Opposition Brief, any evidence of the requisite separate negotiations in this regard with Elite (which Elite denies to have occurred). When asked at the Supplemental Summary Judgment Hearing whether there were any such negotiations with Elite, Composite's counsel replied that she was "not aware of any negotiations." See Tr. of August 11, 2016 Hearing at 42:5-25-43:1.
In the event that Composite might have relied on the Investment Management Agreement as such separate agreement serving as a basis for the Alleged SCM Liability,
The Court notes the absence of any invoices from SCM, evidence of prior payments to SCM, or any corporate records reflecting amounts purportedly owing with respect to the Alleged SCM Liability, or so much as referencing any services provided by SCM on account of the Alleged SCM Liability.
For all the reasons set forth above, the Court finds that there is simply no support for any purported liability to SCM and, as such, there is no genuine issue of material fact as to the existence of the Alleged SCM Liability. The Court therefore concludes that the Alleged SCM Liability should not factor into the calculation of the Net Asset Value owing to Elite.
Composite similarly has not provided any evidence to substantiate its claim that Composite owes the Alleged Individual Liabilities. There is no evidence in the record that Fletcher, Ladner or Saunders provided services to Composite during the time period referenced in Table A. Nor is there any evidence that would allow the Court to evaluate the extent to which any services allegedly provided would give rise to the corresponding amounts listed in Table A. The only evidence that appears to this Court even to have conceivable relevance to the Alleged Individual Liabilities (as Composite has forced the Court to surmise which of the Composite Documents might potentially support which Alleged Liabilities) is the Board Consent Document. However, rather than support Composite's argument, this document only gives rise to more questions about the Alleged Individual Liabilities since the Board Consent Document is dated over two years after the Alleged Individual Liabilities purportedly began to accrue in July 2012. Moreover, there are serious evidentiary issues with respect to the authenticity and admissibility of the Board Consent Document. Composite has not offered any evidence to show that the Board Consent Document ever was properly executed, was within the authority of Fletcher and Ladner (the purported signatories to the document), or otherwise binding on Composite. Composite has not offered any other evidence of the existence or amount of this purported corporate indebtedness: no corporate books or records, no evidence of board meetings, or any other services performed by Fletcher, Ladner or Saunders; no expense reports, e-mails or other evidence of meetings attended or work performed, or even any written declaration by Ladner, Saunders or Fletcher (or anyone from Composite) claiming such amounts to be owing.
Accordingly, for the reasons set forth above, the Court finds that there is simply no support for any of the Alleged Individual Liabilities and, as such, there is no genuine issue of material fact as to the existence of any of the Alleged Individual Liabilities. The Court therefore concludes that the Alleged Individual Liabilities should not factor into the calculation of the Net Asset Value owing to Elite.
There is a complete absence in the record of any evidence relating to an alleged indebtedness to AFS or to Richcourt USA. None of the Composite Documents contain an apparent reference to AFS or to Richcourt USA. Composite has not produced any invoices, corporate books or records, or any other materials or declarations referring to AFS, and, as discussed above, has refused to provide any additional information as to the basis for these alleged liabilities when repeatedly offered an opportunity to do so at the Supplemental Summary Judgment Hearing.
Accordingly, the Court finds the Alleged AFS Liability and the Alleged Richcourt USA Liability to be wholly without support and concludes that the alleged liabilities to AFS and Richcourt USA may not be factored into the calculation of the Net Asset Value to which Elite is entitled.
There is similarly a complete absence in the record of any evidence relating to Composite's claimed indebtedness to RFS. Once again, Composite and its counsel have declined to point to any evidentiary support for the Alleged RFS Liability. The Court has carefully reviewed the six Composite Documents produced in discovery and finds that the only document produced by Composite that so much as mentions RFS is the Financial Services Agreement. See Dailey Dec'l, Exh. B (Financial Services Agreement).
As an initial matter, there are serious evidentiary issues with respect to the admissibility of the Financial Services Agreement. First, the document appears on its face to be incomplete. The "Funds" referenced in the Financial Services Agreement are, according to the agreement, identified on Schedule A to the agreement. However, Composite did not produce in discovery or provide the Court with Schedule A. In addition, the copy of the agreement produced by Composite has not been signed and, in fact, does not appear to contain a signature page. It is also unclear to the Court whether, aside from the missing Schedule A, there are any other portions of the agreement that have not been provided to the Court. Even if it were admissible, the Financial Services Agreement does not constitute competent or even relevant evidence of the alleged liability of Composite to RFS. According to the document, RFS was "formed for the purposes of providing financial services." Financial Services Agreement at 1. And the Financial Services Agreement goes on to provide that "[a]s compensation for RFS's performance of its services hereunder, the Funds (as such entities are listed on Schedule A) will pay RFS an annual fee at" a specified rate. See id. at § 4 (Compensation). Composite is not mentioned anywhere in the Financial Services Agreement.
Moreover, Composite has not produced any corporate books or records, any invoices, or any other document referencing Composite's purported indebtedness to RFS.
For these reasons, the Court finds that there is no genuine issue of material fact with respect to Elite's entitlement to judgment that the Alleged RFS Liability should not be taken into account in calculating the Net Asset Value to which it is entitled by reason of the Redemption Request.
Composite's Interrogatory Responses state that the Alleged Law Firm Liability relates to work performed between June 1, 2015 and December 31, 2015. As evidence of the Alleged Law Firm Liability, Composite produced the Law Firm Invoice, which is an invoice from the Law Firm, dated January 22, 2016, in the amount of $24,169.56. The Law Firm Invoice is addressed to the attention of Fletcher, at Composite. The time entries set forth on the Law Firm Invoice for which legal fees were incurred related to the time period beginning May 7, 2015 and November 18, 2015 and reflect that a majority of the work performed by the Law Firm relates to the Law Firm's representation of Composite, Richcourt USA, Fletcher, Ladner and Saunders (collectively, the "
As was the case with the Alleged Liabilities, Composite has declined to identify which, if any, of the Composite Documents relate to which Alleged Reserve Amount listed in the table at the bottom of Exhibit A to the Interrogatory Responses ("
At the Supplemental Summary Judgment Hearing, the Court offered Composite's counsel an opportunity to present its case with respect to the Alleged Reserve Amounts and asked Composite's counsel to identify the source of the purported reserve amounts listed on Table B. Confirming that the reserve amounts are entirely speculative, Composite's counsel replied as follows: "I believe they come from Soundview Composite's directors' representations as to potential liabilities that the fund may have." See, Tr. of August 11, 2016 Hearing at 49: 22-25. No evidence has been put forth demonstrating the basis for such representations and, in fact, no declaration from any of Composite's directors as to the Alleged Reserve Amounts has been submitted to the Court in connection with Composite's Supplemental Opposition Papers or otherwise provided in response to the Document Requests or Interrogatories.
Having independently reviewed the Composite Documents, the Court is aware that the PPM provides for the establishment of reserves as follows:
PPM at 19.
Although the PPM clearly provides the authority for reserving funds for "unamortized, undetermined or contingent liabilities," Composite has not offered any evidence, or any explanation, in either its Supplemental Opposition Papers or at oral argument, as to why each of the Alleged Reserve Amounts constitute unamortized, undetermined or contingent liabilities for which a reserve properly should be established.
Accordingly, the Court finds that the Alleged Reserve Amounts are purely speculative and without any support. The Court concludes that the Alleged Reserve Amounts are not properly factored into the calculation of the Net Asset Value to which Elite is entitled by reason of its Redemption Request.
For the reasons discussed above, the Court concludes that the Trustee is entitled to summary judgment that none of the Alleged Liabilities or the Alleged Reserve Amounts should be considered in determining the Net Asset Value of the Class H class of shares, which is the amount owing to Elite on account of its Redemption Request. In sum, the Court finds that there are no liabilities of Composite which are properly factored into the calculation of the Net Asset Value of Elite's Composite share to which it is entitled by reason of its Redemption Request. Any such liabilities and/or reserves claimed by Composite as relevant to the calculation of Net Asset Value are wholly without support in the record. The Court therefore concludes that the Trustee is entitled to summary judgment that, in calculating the Net Asset Value payable to Elite on its Redemption Request, Composite may not deduct any of the following amounts:
Accordingly, the Trustee is entitled to recover the full amount of the funds held in the Wilmington Trust Account (i.e. $3.875 million), representing less than the lowest amount Judge Gerber found Elite is entitled to recover as the Net Asset Value of its shares by reason of its Redemption Request.
In light of the foregoing, the Supplemental Summary Judgment Motion is granted. Because granting the Supplemental Summary Judgment Motion will be dispositive of the Complaint, a bankruptcy court does not have authority to enter a final order or judgment in this case absent consent of the parties, which has not been given. Therefore, this Decision shall be treated as proposed findings of fact and conclusions of law, subject to the objection procedure set forth in FRBP 9033, and final judgment must be entered by the District Court.
See Summ. Judg. Dec'n at 2, n.5 (emphasis added). As Composite has no funds other than those held in the Wilmington Trust Account and the funds held in the Wilmington Trust Account currently total $3,725,607.54, such amount is the amount from which Composite's liabilities, if any, would be subtracted.
