Case 13-13087-KG Doc 1908 Filed 05/19/16 Page 1 of 14 FOR ...€¦ · PRELIMINARY STATEMENT 1. The instant dispute may be simply summarized. TREMEC asserts, without any meaningful

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re:

FAH LIQUIDATING CORP. (f/k/a FISKER AUTOMOTIVE HOLDINGS, INC.), et al,'

Debtors.

) Chapter 11

) Case No. 13-13087 (KG)

) (Jointly Administered) ) Re: Docket Nos. 1505 and 1866

REPLY OF LIQUIDATING TRUSTEE (I) TO THE RESPONSE OF TRANSMISIONES Y EQUIPOS MECANICOS, S.A. DE C.V. (TREMEC) TO EIGHTH OMNIBUS

OBJECTION TO CLAIMS AND (II) IN FURTHER SUPPORT OF THE LIQUIDATING TRUSTEE'S EIGHTH OMNIBUS OBJECTION WITH RESPECT

TO CLAIM 644 FILED BY TREMEC

Emerald Capital Advisors Corp., as liquidating trustee (the "Liquidating Trustee") for the

FAH Liquidating Trust (the "Liquidating Trust") appointed in the above-captioned proceedings

of FAH Liquidating Corp. (f/k/a Fisker Automotive Holdings, Inc.), et al. (the "Debtors"), by

and through its undersigned counsel, hereby submits this reply (this "Reply") to the Response of

Transmisiones Y Equipos Mecanicos, S.A. de C. V. (TREMEC) To Eighth Omnibus Objection to

Claims [Docket No. 1866] (the "TREMEC Response") and in further support of the Liquidating

Trustee's Eighth Omnibus Objection to Claims (Insufficient Documentation) (Non -Substantive)

[Docket No. 1505] (the "Eighth Omnibus Objection") with respect to Claim 644 (as defined

below) filed by Transmisiones Y Equipos Mecanicos, S.A. de C.V. ("TREMEC"). In support

hereof, the Liquidating Trustee respectfully states as follows:

The Debtors, together with the last four digits of each Debtor's federal tax identification number, are Fisker Automotive Holdings, Inc. (9678) and Fisker Automotive, Inc. (9075). The service address for the Debtors

is 3080 Airway Avenue, Costa Mesa, California 92626.

652197.1 05/19/2016

Case 13-13087-KG Doc 1908 Filed 05/19/16 Page 1 of 14

PRELIMINARY STATEMENT

1. The instant dispute may be simply summarized. TREMEC asserts, without any

meaningful documentary support, an entitlement to an approximately $7.1 million claim against

the Debtors' estates. The Liquidating Trustee, following a rigorous review of the Debtors'

Books and Records, has determined that although TREMEC is owed something on account of

the TREMEC Contract, that amount is substantially less than $7.1 million; rather, TREMEC is

owed only $546,649.45. Under Bankruptcy Code sections 501 and 502, TREMEC, as claimant,

bears the initial burden of establishing the prima facie validity of its claim. To do so, TREMEC

must allege facts sufficient to support that it is owed a legal liability from the Debtors in the

amount of $7.1 million. Critically, where, as here, a claim is based upon a writing, Bankruptcy

Rule 3001(c)(1) requires the claimant to file the writing along with its proof of claim. Further,

where a claimant whose claim was initially scheduled by the debtor on its schedule of assets and

liabilities takes the additional step of filing of proof of claim, the filed proof of claim supersedes

the scheduled amount pursuant to Bankruptcy Rule 3003(c)(4).

2. Neither Claim 644 nor the recently-filed TREMEC Response (each as defined

below) alleges facts sufficient to satisfy TREMEC's initial burden of establishing the prima facie

validity of its claim. Most fundamentally, TREMEC has not provided (and, on information and

belief, is unable to locate) the TREMEC Contract (as defined below)—the very source of the

legal liability TREMEC asserts against the estate. Rather, the only support TREMEC can muster

for its claim is in the form of (i) a cursory citation to the Debtors' Schedules (which under

Bankruptcy Rule 3003(c)(1) lacks any legal significance), and (ii) an ad hoc compilation of self-

created summaries and invoices (none of which can be independently verified by the Liquidating

Trustee). In stark contrast to TREMEC's sparse documentation, the Liquidating Trustee has

2 652197.1 05/19/2016


provided an affidavit signed under penalty of perjury stating that the Debtors' Books and

Records (as defined below) support a liability owed to TREMEC of only $546,649.45—and not

a penny more.

3. As a consequence, this Court should find that the Debtors' Books and Records are

entitled to presumptive validity and grant the Liquidating Trustee's Eighth Omnibus Objection

(as defined below) with respect to Claim 644.

RELEVANT BACKGROUND INFORMATION

4. On November 22, 2013 (the "Petition Date"), the Debtors filed a voluntary

petition for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101-1532

(the "Bankruptcy Code") in the United States Bankruptcy Court for the District of Delaware (the

"Bankruptcy Court" or this "Court").

5. On December 3, 2013, the Debtors filed their schedules of assets and liabilities

and executory contracts and unexpired leases and statements of financial affairs [Docket No. 94-

961, as required by section 521 of the Bankruptcy Code, and filed amended schedules on July 25,

2014 [Docket No. 11261 (collectively, the "Schedules").

6. On May 22, 2014, the Debtors filed the Notice of (A) Rejection of Certain

Unexpired Leases and Executory Contracts, (B) Assumption of Certain Unexpired Leases and

Executory Contracts, (C) and Extension of Retention Period With Respect to Certain Unexpired

Leases and Executory Contracts [Docket No. 923] (the "Rejection Notice"), in which the

Debtors, among other things, rejected certain executory contracts (the "Rejected Contracts")

effective June 1, 2014, and required counterparties to any Rejected Contracts wishing to file a

claim for rejection damages to file such claims on or before thirty (30) days from the effective

date of rejection. One of the Rejected Contracts was the TREMEC Contract (as defined below).

3 652197.1 05/19/2016


7. On June 6, 2014, TREMEC filed with the Debtors' designated Claims and

Noticing Agent, Rust Consulting/Omni Bankruptcy ("Rust/Omni"), proof of claim number 644

("Claim 644"), through which TREMEC asserted a general unsecured claim against the Debtors

in the amount of $8,797,966.00 for amounts purportedly due to TREMEC in connection with a

pre-petition contract executed between TREMEC and Fisker Automotive, Inc. (the "TREMEC

Contract"). As support, TREMEC attached to Claim 644 an excerpt from the Debtors'

Schedules. The TREMEC Contract itself is not appended to Claim 644.

8. On July 28, 2014, the Bankruptcy Court confirmed the Debtor's plan of

liquidation (the "Plan") pursuant to its Order Confirming Debtors' Second Amended Joint Plan

of Liquidation Pursuant to Chapter 11 of the Bankruptcy Code [Docket No. 1137] (the

"Confirmation Order").

9. On August 13, 2014, the Plan was substantially consummated and the Liquidating

Trust came into existence as the successor-in-interest to the Debtors. 2

10. On May 22, 2015, the Liquidating Trustee filed the Eighth Omnibus Objection in

which the Liquidating Trustee identified Claim 644 on Schedule 1 thereof as an Insufficient

Documentation Claim and sought to reduce Claim 644 to a "Modified Claim

Amount/Classification" in the amount of $546,649.45, which amount is consistent with the

Debtors' books and records (the "Books and Records").

11. To date, entities have filed approximately 700 proofs of claim against the Debtors

on an aggregate basis, collectively asserting more than $1 billion in aggregate liabilities. The

Liquidating Trustee and its advisors have undertaken a process of reviewing the proofs of claim,

including supporting documentation, if any, filed together with any proof of claim, and

2

The Plan explicitly states that "[for the avoidance of doubt, the Liquidating Trust is a successor-in-interest

to the Debtors." Plan, Art. IV.E.

4 652197.1 05/19/2016


reconciling the proofs of claim with the Debtors' Books and Records to determine the validity of

the proofs of claim. Based on its review, the Liquidating Trustee has determined that certain

claims are objectionable (the "Disputed Claims"). In accordance with Rules 3007 and 9014 of

the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") and Rules 3007-1 and

9006-1(d) of the Local Rules of Bankruptcy Practice and Procedure of the United States

Bankruptcy Court for the District of Delaware (the "Local Rules"), the Liquidating Trustee has

filed a series of omnibus objections to the Disputed Claims.

12. On April 14, 2016, TREMEC filed the TREMEC Response in which TREMEC

requests (i) that the Court overrule the Eighth Omnibus Objection with respect to Claim 644, and

(ii) that Claim 644 be allowed in the amount of $7,056,062.00.

ARGUMENT

I. Legal Standard For Claims Objections.

13. Bankruptcy Code section 501(a) provides that "[a] creditor. . . may file a proof of

claim." 11 U.S.C. § 501(a). The Bankruptcy Rules provide that "[a] proof of claim is a written

statement setting forth a creditor's claim . . . [It] shall conform substantially to the appropriate

Official Form." Fed. R. Bankr. P. 3001(a). 3 Under Bankruptcy Rule 3001(f), a properly

executed and filed proof of claim constitutes prima facie evidence of the validity and the amount

of the claim under section 502(a) of the Bankruptcy Code. See In re Allegheny Intl, Inc., 954

F.2d 167, 173 (3d Cir. 1992). Section 502(a) of the Bankruptcy Code provides that "[a] claim or

interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party

in interest . . . objects." 11 U.S.C. §502(a).

3 Official Form 10, the relevant form referenced in Bankruptcy Rule 3001(a), requires a claimant to "[a]ttach redacted copies of any documents that support the claim, such as promissory notes, purchase orders, invoices, itemized statements of running accounts, contracts, judgments, mortgages, and security

agreements." Fed. R. Bankr. P. Official Form 10.

5 652197.1 05/19/2016


14. Critically, proofs of claim are not automatically entitled to prima facie validity.

Rather, "Nile burden of proof for claims brought in the bankruptcy court . . . rests on different

parties at different times." See Allegheny Intl, 954 F.2d at 173. The initial burden belongs to

the claimant, which must satisfy its initial obligation to go forward by "alleg[ing] facts sufficient

to support a legal liability to the claimant." Id. It is only when the claimant has "allege[d] facts

sufficient to support the claim" that, in bankruptcy parlance, the claim becomes prima facie

valid. See id.

15. If the claimant successfully ascends the hill to prima facie validity, "Nile burden

of going forward then shifts to the objector to produce evidence sufficient to negate the prima

facie validity of the filed claim." See Allegheny Intl, 954 F.2d at 173. This, of course, begs that

question of what constitutes "evidence sufficient to negate the prima facie validity of the filed

claim." See id. In Allegheny International, the Third Circuit answered this question as follows:

in order to "negate the prima facie validity of the filed claim . . . the objector must produce

evidence equal in force to the prima facie case. In practice, the objector must produce evidence

which, if believed, would refute at least one of the allegations that is essential to the claim's legal

sufficiency." See Allegheny Intl, 954 F.2d at 173-74. At this juncture, if the objecting party

"produces sufficient evidence to negate one or more of the sworn facts in the proof of claim, the

burden reverts to the claimant to prove the validity of the claim by a preponderance of the

evidence." See Allegheny Intl, 954 F.2d at 174; In re Rockefeller Center Properties, 272 B.R.

524, 539 (Bankr. S.D.N.Y. 2000). Put another way, once the prima facie validity of a claim is

rebutted, "it is for the claimant to prove his claim, not for the objector to disprove it." In re

Kahn, 114 B.R. 40, 44 (Bankr. S.D.N.Y. 1990). If after the burden reverts back to the claimant

the claimant cannot produce sufficient evidence to prove the validity of the claim by a

6 652197.1 05/19/2016


preponderance of the evidence, the claim fails, and the court should sustain the underlying

objection. See In re Hilton, No. 12-61102, 2013 WL 6229100, at *4-5 (Bankr. W.D. Va. Dec. 2,

2013). Finally, it is important to bear in mind that at every node of the burden-shifting

framework, the burden of persuasion is "always on the claimant." See Allegheny Intl, 954 F.2d

at 173-74.

16. In addition, where, as here, a claim is based on a writing, a claimant is obligated

to produce sufficient documentation to corroborate its claim. Bankruptcy Rule 3001(c)(1)

requires that if a claim is based on a writing, "a copy of the writing shall be filed with the proof

of claim." This requirement reflects that Bankruptcy Rule 3001(c)(1) is designed to provide the

debtor with "fair notice of the conduct, transaction and occurrences that form the basis of the

claim." In re O'Brien, 440 B.R. 654, 662-663 (Bankr. E.D. Pa. 2010). If a proof of claim based

on a writing fails to comply with Bankruptcy Rule 3001(c)(1)—by, for instance, failing to attach

the underlying contract—it does not constitute prima facie evidence of the claim's validity and

amount under Bankruptcy Rule 3001(f). See In re Consolidated Pioneer Mortg., 178 B.R. 222,

226 (B.A.P. 9th Cir. 1995) ("It is generally held that failure to attach writings to a proof of claim

• . . [means] the claim is not entitled to be considered as prima facie evidence of the claim's

validity."); In re Tran, 369 B.R. 312 (S.D. Tex. 2007) (affirming disallowance of claim where

creditor failed to either attach the writing upon which the claim was based or explain the

circumstances behind the writing's loss or destruction); In re Manchester Gas Storage, Inc., 309

B.R. 354 (Bankr. N.D. Okla. 2004) (proof of claim for rejection damages not entitled to prima

facie validity where creditor did not attach copies of employment contract); In re Lindell Drop

Forge Co., 111 B.R. 137, 140 (Bankr. W.D. Mich. 1990).

7 652197.1 05/19/2016


17. Finally, under Bankruptcy Rule 3003(c)(4), a filed proof of claim "supersede[s]

any scheduling of that claim[.]" Fed. R. Bankr. P. 3003(c)(4); see In re Desert Village Limited

Partnership, 337 B.R. 317 (Bankr. N.D. Ohio 2006). This means, as a practical matter, that a

scheduled creditor that elects also to file a proof of claim must demonstrate the existence of the

liability allegedly owed to it in the proof of claim itself. Where the claim is based on a writing in

accordance with Bankruptcy Rule 3001(c), the claimant cannot establish prima facie validity

merely by pointing to the debtor's schedules. See Fed. R. Banks. P. 3003(c)(4).

TREMEC Fails To Correctly Assert And Cannot Prove Its Claim.

A. Claim 644 Is Not Prima Facie Valid.

18. In view of the foregoing, TREMEC has not satisfied its initial burden to establish

a prima facie claim against the Liquidating Trust. Claim 644 is not prima facie valid for the

simple reason that TREMEC has failed to attach or otherwise provide any meaningful

documentation in support of its proof of claim, in violation of Bankruptcy Rule 3001(c)(1). 4

TREMEC asserts an approximately $7.1 million claim against the Debtors for purported "goods

sold," however the only support for its claim comes in the form of a conclusory citation to the

Debtors Schedules. Without additional supporting documentation, the Liquidating Trustee has

no way to ascertain the veracity of these purported amounts—particularly where the nearly $7.1

million demanded by TREMEC differs by an order of magnitude from the liability supported by

the Debtors' Books and Records. What is more, conspicuously missing from the proof of claim

is the underlying TREMEC Contract. This omission is necessarily fatal to the validity of Claim

644—after all, "it is axiomatic that before there can be a breach of contract[,] there must be a

4 On May 17, 2016, at the request of the Liquidating Trustee, TREMEC provided by email certain additional documentation that TREMEC contends supports its entitlement to an approximately $7.1 million claim.

This documentation did not include the underlying TREMEC Contract.

8 652197.1 05/19/2016


contract." See Allegheny Intl, 954 F.2d at 175 (citing Weissman v. Cole Prods. Corp., 269 F.2d

340, 341 (7th Cir. 1959)).

19. As a threshold matter, it cannot be seriously disputed that Claim 644 is "based on

a writing" within the meaning of Bankruptcy Rule 3001(c)(1). Accordingly, TREMEC was

obligated under the Bankruptcy Rules to attach the TREMEC Contract—the very source of the

Debtors' purported payment obligation to TREMEC—to its proof of claim. See In re Cluff, 313

B.R. 323, 332-33 (Bankr. D. Utah 2004). This requirement is altogether unremarkable; for

instance, in cases involving proofs of claim filed on account of credit card debt, courts routinely

require the claimant to attach the credit card agreement to the proof of claim. See In re Tran, 351

B.R. 440, 447 (Bankr. S.D. Tex. 2006); In re Henry, 311 B.R. 813, 817 (Banks. W.D. Wash.

2004).

20. Furthermore, the Debtors' Schedules are no salvation for Claim 644. TREMEC

may not, consistent with the Bankruptcy Code and applicable law, blithely cite to the Debtors'

Schedules as corroboration for its $7.1 million claim. Indeed, it is black-letter law that a filed

proof of claim (here, Claim 644) supersedes the Debtors' Schedules. See Fed. R. Bankr. P.

3003(c)(4); In re Desert Village Limited Partnership, 337 B.R. 317 (Bankr. N.D. Ohio 2006). As

a result, TREMEC's assertion that it is entitled to a $7.1 million prima facie claim merely

because the Debtors' Schedules say so runs roughshod over Bankruptcy Rule 3003(c)(4).

21. Because TREMEC has failed to append any meaningful supporting

documentation to Claim 644 (including, most crucially, the TREMEC Contract), the "Modified

Claim Amount" identified in the Liquidating Trustee's Eighth Omnibus Objection (and

supported by the Debtors' Books and Records) is entitled to presumptive validity. See Caplan v.

B-Line, LLC (In re Kirkland), 572 F.3d 838 (10th Cir. 2009) (disallowing filed claim for failure

9 652197.1 05/19/2016


to append any supporting documentation). The Kirkland case is particularly instructive on this

point. In Kirkland, the debtor scheduled a $5,004 credit card debt as a general unsecured claim.

Id. at 839. Thereafter, the creditor purportedly owed that debt filed a proof of claim, but did not

attach any supporting documentation thereto. Id. Instead, the creditor relied entirely on the

debtor's schedules as evidence of its claim. Id. at 841. After observing that the debtor's

"schedules were of no evidentiary value" once the creditor filed a stand-alone proof of claim, the

Tenth Circuit Court of Appeals disallowed the creditor's proof of claim because the creditor

"failed to produce a single document to support its proof of claim." Id. at 840-841. Here,

TREMEC's conduct mirrors that of the creditor in Kirkland. See id. at 839. As a result, the

"Modified Claim Amount" reflected in the Eighth Omnibus Objection is the most reliable

measure of what TREMEC is actually owed by the estate.

22. In view of the foregoing, TREMEC has failed to establish the prima facie validity

of Claim 644. See Allegheny Intl, 954 F.2d at 173. The Court should therefore grant the

Liquidating Trustee's Eighth Omnibus Objection with respect to Claim 644.

B. The TREMEC Response Adds Nothing To The Analysis And In Any Event Fails To Establish Why The Debtors' Books and Records Are Not Entitled To Presumptive Validity.

23. The TREMEC Response is similarly unavailing. Although TREMEC asserts a

"rightful claim to damages for breach and rejection of its substantial contract," see TREMEC

Response at 1, the TREMEC Contract itself is conspicuously missing from the pleading. And

the exhibits attached to the TREMEC Response fail to get TREMEC any nearer to the goal line

of prima facie validity. Exhibit A is simply a carbon copy of Claim 644. Exhibit B, purportedly

"a spreadsheet providing detail for the amounts set forth in the Proof of Claim," see TREMEC

Response at 6, merely regurgitates some of the incomprehensible figures attached to the proof of

10 652197.1 05/19/2016


claim. Exhibit C, which TREMEC contends contains "backup documentation," see TREMEC

Response at 6, is nothing more than an ad hoc compilation of tables and excerpts from purchase

orders that are not susceptible to any logical analysis by the Liquidating Trustee. Simply put,

despite its best efforts, the Liquidating Trustee cannot make sense of this documentation, and

certainly cannot do so without the benefit of having the TREMEC Contract at its disposal.

24. As is the case with Claim 644, the TREMEC Response betrays a fundamental

misunderstanding of the Bankruptcy Code rules that govern the filing and validity of proofs of

claim. In the first instance, TREMEC repeats its warmed-over assertion that the Debtors'

Schedules somehow imbue Claim 644 with prima facie validity. See TREMEC Response at 1-2

("despite the fact that Fisker's own bankruptcy papers state that Fisker's prepetition defaults

under its contract with Tremec totaled $8,797,966, the liquidating trustee asserts that Tremec is

owed only $546,649.45."). As discussed supra, this misstates the law: Claim 644 plainly

supersedes the Debtors' Schedules and, accordingly, TREMEC must rely on its filed proof of

claim. TREMEC's filed proof of claim is deficient, however, and fails to clear the hurdle of

prima facie validity.

25. Second, TREMEC contends that the Eighth Omnibus Objection does not rebut the

prima facie validity of Claim 644 because it "does not provide any evidence refuting the

accuracy and/or validity of Tremec's claims." See TREMEC Response at 2. Here too,

TREMEC misapprehends the law. As discussed supra, it is TREMEC's burden to prove up its

prima facie claim—until it does so, there is nothing for the Liquidating Trustee to refute.

Moreover, notwithstanding TREMEC's protests to the contrary, the Liquidating Trustee's Eighth

Omnibus Objection is grounded solidly in the law. Bankruptcy Rule 3007(d)(6) authorizes the

Liquidating Trustee to object, in writing, to a proof of claim where "the objector is unable to

1 1 652197.1 05/19/2016


determine the validity of the claim." Fed. R. Bantu. P. 3007(d)(6). Similarly, Local Rule 3007-

1(d)(vi) authorizes the Liquidating Trustee to object to a claim where such claim "does not have

a basis in the debtor's books and records and does not include or attach sufficient information or

documentation to constitute prima facie evidence of the validity and amount of the claim." See

Local Rule 3007-1(d)(vi). Perhaps most significantly, Local Rule 3007-1(d)(vi) requires the

objecting party to submit "an affidavit or declaration that states that affiant or declarant has

reviewed the claim and all supporting information and documentation provided therewith, made

reasonable efforts to research the claim on the debtor's books and records and believes such

documentation does not provide prima facie evidence of the validity and amount of the claim."

See Local Rule 3007-1(d)(vi). The Liquidating Trustee has duly complied with this requirement

by attaching as Exhibit B to the Eighth Omnibus Objection the Declaration of John P. Madden

in Support of Eighth Omnibus Objection to Certain Proofs of Claim (Insufficient Documentation

Claims) (Non -Substantive) [D.I. 1505-3] (the "Madden Declaration"). In other words, the

Madden Declaration itself constitutes "evidence which. . . refute[s] at least one of the allegations

that is essential to [Claim 644's] legal sufficiency." See Allegheny Intl, 954 F.2d at 173-74.

What is more, even assuming arguendo that TREMEC has adequately established a prima facie

claim (it has not), by "affirmatively asserting in the objection that the debtors owe . . . less than

the amount claimed," the Liquidating Trustee has in any event satisfied its burden to rebut the

validity of Claim 644. See In re Shank, 315 B.R. 799, 811 (Bankr. N.D. Ga. 2004).

Accordingly, the burden of proof and persuasion remains squarely on TREMEC's shoulders.

26. Third, TREMEC cites two cases for the proposition that "[t]he mere filing of a

claim objection, without supporting evidence, does not defeat a proof of claim's evidentiary

presumption of prima facie validity." TREMEC Response at 2. As discussed supra, this

12 652197.1 05/19/2016


contention puts the cart before the proverbial horse, as TREMEC has not proved up a prima facie

claim. But in any case, a careful reading of these cases demonstrates that they actually support

the Liquidating Trustee's position. In In re Sacko, 394 B.R. 90, 102 (Bankr. E.D. Pa. 2008), the

court found that the debtor-mortgagor successfully rebutted the validity of a claim filed by the

bank-mortgagee through testimony that certain payments had already been made. Likewise, in

In re Kinkaid, 388 B.R. 610, 617 (Bankr. E.D. Pa. 2008), the court found that the claims at issue

were not prima facie valid because the proofs of claim "provide[d] insufficient linkage" to

demonstrate the existence of a debt owed by the debtor to the claimant. The same result obtains

here—Claim 644, standing on its own, "provides insufficient linkage" to substantiate why

TREMEC is entitled to a nearly $7.1 million claim against the Liquidating Trust. See In re

Kinkaid, 388 B.R. at 617.

27. In sum, neither Claim 644 nor the TREMEC Response satisfy TREMEC's initial

burden of establishing the prima facie validity of its proof of claim. See Allegheny Intl, 954

F.2d at 173. Accordingly, this Court should deny the relief requested in the TREMEC Response

and grant the Liquidating Trustee's Eighth Omnibus Objection in all respects to Claim 644.

13 652197.1 05/19/2016


WHEREFORE, based on the foregoing, the Liquidating Trustee respectfully requests

that the Court (i) enter an Order granting the Liquidating Trustee's Eighth Omnibus Objection

with respect to Claim 644, and (ii) grant the Liquidating Trust such other and further relief as is

just and proper.

Dated: May 19,2016

SAUL EWING LLP

Mtark Minuti (DE Bar No .2659) 222 Delaware Avenue, Suite 1200 P.O. Box 1266 Wilmington, DE 19899 Telephone: (302) 421-6840 Facsimile: (302) 421-5873

-and-

BROWN RUDNICK LLP William R. Baldiga (admitted pro hac vice)

Seven Times Square New York, New York 10036

Telephone: (212) 209-4800 Facsimile: (212) 209-4801

-and-

Sunni P. Beville (admitted pro hac vice)

One Financial Center Boston, Massachusetts 02111 Telephone: (617) 856-8200 Facsimile: (617) 856-8201

Co-Counsel to the Liquidating Trustee

14 652197.1 05/19/2016


By: Ivfark Minuti (DE Bar No. 2659)

222 Delaware Avenue, Suite 1200

P. 0. Box 1266

Wilmington, DE 19899

(302) 421-6840

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

In re: ) Chapter 11

FAH LIQUIDATING CORP. (f/k/a FISKER ) Case No. 13-13087 (KG)

AUTOMOTIVE HOLDINGS, INC.), et al.,

) (Jointly Administered)

Debtors.

CERTIFICATE OF SERVICE

I, Mark Minuti, hereby certify that on May 19, 2016, I caused a copy of the foregoing

Reply of Liquidating Trustee (I) to the Response of Transmisiones Y Equipos Mecanicos,

S.A. de C.V. (Tremec) to Eighth Omnibus Objection to Claims and (II) in Further Support

of the Liquidating Trustee's Eighth Omnibus Objection with Respect to Claim 644 Filed by

Tremec to be served on the following parties in the manner indicated.

Mary F. Caloway, Esquire

Buchanan Ingersoll & Rooney

919 N. Market Street, Suite 1500

Wilmington, DE 19801

(Via Hand Delivery)

Marc M. Bakst, Esquire

Bodman PLC

1901 St. Antoine Street

6th Floor at Ford Field

Detroit, MI 48226

(Via Electronic Mail and First Class Mail)

SAUL EWING LLP

Dated: May 19, 2016

652197.1 05/19/2016

Case 13-13087-KG Doc 1908-1 Filed 05/19/16 Page 1 of 1

Documents

Case 13-13087-KG Doc 1908 Filed 05/19/16 Page 1 of 14 FOR ...€¦ · PRELIMINARY STATEMENT 1. The instant dispute may be simply summarized. TREMEC asserts, without any meaningful