Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :05-cv-00762-SLR Document 49 Filed 11/16/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONNECTICUT BANK OF )
COMMERCE, )
Plaintiff, i
v. g Civil Action No. 05-762 SLR
THE REPUBLIC OF CONGO, i
Defendant; i
CMS NOMECO CONGO INC., i
Gamishee. g
GARNISHEE CMS NOMECO’S OPPOSITION
TO AF-CAP’S MOTION TO SUBSTITUTE PARTIES
Gamishee CMS Nomeco Congo Inc. (now named CMS Nomeco Congo LLC)
("CMS Nomeco") opposes the Motion to Substitute Parties tiled by Af-Cap, Inc. ("Af-Cap"). In
support of its Opposition, CMS Nomeco states the following:
Af-Cap’s Motion to Substitute Parties is based on its contention that Af-Cap
acquired the debt that is the subject of this action from the FDIC, as receiver for Connecticut
Bank of Commerce, by way of an Assignment Agreement, which is referenced as Exhibit A to
the motion, but which was not in fact attached to the motion. At oral argument in the United
States Court of Appeals for the Fifth Circuit on June 5, 2006, in Af-Cap’s appeal of the dismissal
of its Texas gamishment litigation against CMS Nomeco and other companies, Af-Cap’s counsel
argued that the fact that Af-Cap purportedly acquired its interest in the debt from the United
States government had legal significance to its claims against CMS Nomeco.
Prior to the filing of the motion to substitute parties, CMS Nomeco had
communications with Af-Cap’s counsel concerning the fact that, on the information and belief of

Case 1:05-cv-00762-SLR Document 49 Filed 11/16/2006 Page 2 of 3
CMS Nomeco, Connecticut Bank of Commerce was acting on behalf of Af-Cap with regard to
the collection of the debt, such that Af-Cap owned the rights in the debt prior to the alleged
Assignment Agreement with the FDIC. The motion to substitute parties makes no reference to
that issue, and despite the issue having been raised in connection with the motion to substitute,
counsel for Af-Cap has provided no information on that issue. In light of the arguments of Af-
Cap’s counsel before the Fifth Circuit that acquisition of the debt from the FDIC should have
legal significance with regard to Af-Cap’s claimed rights against CMS Nomeco, CMS Nomeco
respectfully requests that the Court defer a ruling on the motion to substitute parties until after
CMS Nomeco has the opportunity to develop through discovery the facts relating to Af-Cap’s
interest in the debt prior to the alleged transaction with the FDIC. CMS Nomeco will submit
requests for production of documents, interrogatories, and a Rule 30(b)(6) deposition notice to
Af-Cap which will include, inter alia, issues relating to Af-Cap’s acquisition of and ownership of
the debt prior to the alleged Assignment Agreement with the FDIC, and will supplement its
response to the motion to substitute once that discovery is completed.
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Case 1:05-cv-00762-SLR Document 49 Filed 11/16/2006 Page 3 of 3
CONCLUSION
For the reasons set forth above, CMS Nomeco Congo Inc. (now named CMS
Nomeco Congo LLC) requests that the Court defer a ruling on Af-Cap’s motion to substitute
parties until after completion of the discovery referenced herein.
Respectfully submitted,
OF COUNSEL: /s/ M. Duncan Grant
M. Duncan Grant (Del. Bar No. 2994)
Guy S. Lipe James C. Carignan (Del. Bar No. 4230)
Jason M. Powers PEPPER HAMILTON LLP
VINSON & ELKINS L.L.P. Hercules Plaza, Suite 5100
First City Tower 1313 N. Market Street
1001 Fannin Street, Suite 2300 P.O. Box 1709
Houston, TX 77002-6760 Wilmington, DE 19899-1709
(713) 758-2222 (302) 777-6500
Dated: November 16, 2005 Attorneys for Garnishee CMS Nomeco Inc.
1825599
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