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Archive for May 17th, 2013

“Additional financing to existing borrowers: The merged entity may not provide additional financing which is not contractually committed at the time of the approval of the joint restructuring plan (in line with the commitment referred to in point (ii)).” European Commission decision on 29th June 2011 on the run-down of Anglo and Irish Nationwide

There is no development at the High Court in respect of Paddy McKillen’s (and Denis O’Brien’s) application for an injunction against the Sunday Times and its reporter, Mark Tighe – there are no new filings and we are now well past the six weeks which was intimated would be the full hearing date when the partial injunction was obtained by Paddy at the end of March 2013. The Sunday Times has in recent weeks provided some additional reporting of the general matter subject to the injunction, and it seems one of the details is that Paddy sought what was described by the Sunday Times as an emergency loan approval last October 2012 to pay some of the €25m estimated legal fees which Paddy was ordered to pay when he lost his High Court challenge against the Barclay brothers.

The Sunday Times reported that Paddy sought approval for a [CORRECTED] GBP 5.0m (€6) – the Sunday Times refers to a GBP 5m (€5.9m) loan in one part of the story and a [CORRECTED] GBP 5.9m legal fees bill elsewhere [CORRECTION: the loan sought was €5.9m but the legal fees bill that was falling due to be paid was GBP 5.9m, in other words, Paddy was seeking a loan for just part of the legal fees bill] – loan to pay the legal fees that he was required to pay on account, pending the appeal of the decision, the outcome of which we’re still eagerly awaiting. The Sunday Times reported that the board of IBRC – remember Mike Aynsley was then CEO and Alan Dukes was chairman – approved the loan. According to Paddy, he eventually decided to fund the [CORRECTED] GBP 5.0m element of the GBP 5.9m legal fees from elsewhere.

All well and good.

But it seems that there is now an issue regarding the decision by the IBRC board to approve the loan to Paddy, even if Paddy didn’t eventually draw it down. IBRC operates under rules imposed on it in June 2011 when the European Commission approved an orderly wind-down of IBRC. One of the terms of the decision by the EU is that

“Additional financing to existing borrowers: The merged entity may not provide additional financing which is not contractually committed at the time of the approval of the joint restructuring plan (in line with the commitment referred to in point (ii)).”

Point (ii) states

“Ban to develop new activities and to enter new markets: The merged entity will not develop any new activities and will not enter new markets, that is to say that the merged entity will not carry out any activities other than those that are consistent with managing the work-out of the Anglo and INBS legacy loan book (including loan sales, where appropriate, to maximise recovery values). In particular, the merged entity will maintain and use its banking licence only as long as necessary for the work-out of the loan portfolios and will not use it to develop new activities. […].”

In the Dail this week, the Sinn Fein finance spokesperson Pearse Doherty asked Minister for Finance Michael Noonan if IBRC breached these rules in approving a €5m (sic) additional loan to Paddy. Minister Noonan, whilst citing the European Commission decision overall, says that he is “not aware of any breaches by IBRC of the Commitments contained in that decision.”

The parliamentary question and response is here.

Deputy Pearse Doherty: asked the Minister for Finance his views on whether the Irish Bank Resolution Corporation breached the terms of its Commitments Letter to the European Commission by issuing a further €5 million loan to a person (details supplied) in 2012 to pay legal costs, when their debt with IBRC amounted to approximately €900 million in personal and corporate accounts at the time. [23153/13]

Minister for Finance, Michael Noonan: I am advised by the Special Liquidators that they are not in a position to comment on individual cases. The information requested is confidential and it would not be appropriate for the Special Liquidators to release such information.The terms of the European Commission Commitments letter are contained in the Commission Decision of 29.06.2011 and published at –

http://ec.europa.eu/competition/state_aid/cases/235764/235764_1251125_112_6.pdf

I am not aware of any breaches by IBRC of the Commitments contained in that decision.

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GayleNoticeParty

According to the US court service, PACER, there have been 52 filings so far in Sean Dunne’s bankruptcy in Connecticut – the betting is that by the time this bankruptcy is resolved there will be a multiple of 52. Yesterday’s filing is by Sean’s wife, who is now styled “Gayle Killilea Dunne”, not Gayle Killilea and not Gayle Dunne. Gayle’s request is to be recognized as a notice party in the bankruptcy under Rule 2002 and Rule 9010 of the Rules of Bankruptcy Procedure. Rule 2002 applies to “Creditors, Equity Security Holders, Administrators in Foreign Proceedings, Persons Against Whom Provisional Relief is Sought in Ancillary and Other Cross-Border Cases” and requires the applicant to be treated as notice party to the bankruptcy proceedings. Rule 9010 appears to simply allow the notice party to be represented by a lawyer.

Gayle has engaged Connecticut law firm Reid and Reige and her specific lawyer is Eric Henzy, described on his bio at the firm as practicing in “business bankruptcies and workouts and business and commercial litigation”.

It should be stressed, if it isn’t apparent already, that it is only Sean Dunne who has filed for bankruptcy; by all appearances, Gayle’s finances appear to be hale and hearty and she is financially separate from her husband. It should also be stressed that there is no separation or divorce proceedings chez Dunne, and Gayle’s Irish solicitors, Clerkin Lynch have made that clear this week, though that story appears no longer to be online. [CORRECTION: the Sunday Times story is accessible here]

The application is here.

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Welcome to another depressingly sparse and qualified blogpost on NAMA’s latest foray in Dublin’s High Court.

Yesterday NAMA, or specifically, National Asset Loan Management Limited represented by top-tier law firm, McCann Fitzgerald launched two separate actions in Dublin’s High Court – case references 2013/1590S and 2013/1591 S. The defendant in the first case is an individual named “Maria Byrne”. The defendant in the second case is an individual named “Graham Byrne”. As is usual in recently-filed cases, there is no solicitor on record for the respondents.

Who is Maria Byrne and who is Graham Byrne? Impossible to say, because neither NAMA nor the Court Service will confirm their identities, with associated companies or specific or general addresses. Are they related? Other than sharing a surname, “Byrne”, impossible to say, the could be husband and wife, but they could be totally unrelated, naturally or legally. Are they even Irish? Again, impossible to say, they might be Nigerian for all we know.

And why is NAMA is suing them, and what is NAMA seeking from the action? Again, impossible to know as NAMA won’t say and the Court Service won’t provide the application. In the past, NAMA has had lodged very serious applications seeking judgments of hundreds of millions, on the other hand, it has made so-called “protective applications” to reserve its position to sue on a matter for example, when the Statute of Limitations would bar future legal action unless a protective application was made.

So, there you go. NAMA’s 18th and 19th applications in Dublin’s High Court this year. NAMA has been on the receiving end of 15 applications, including 12 relating to a development in Portugal where buyers want their deposits back, one where Paddy McKillen is suing (again) for alleged breach of privacy and confidentiality. And finally please no speculation on who the Byrnes are, you can assume that the names have been Googled and run through company director records and media reporting.

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