The Liquidating Committee v. Binsky & Snyder, Inc. et al

Filing 2

CONSENT ORDER finding that Appeal is Interlocutory and Dismissing Appeal. Signed by Judge Graham Mullen on 2/8/07. (chh)

The Liquidating Committee v. Binsky & Snyder, Inc. et al

Doc. 2

Case 3:07-cv-00049-GCM

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Filed 02/08/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION No. 3:07-CV-00049 THE LIQUIDATING COMMITTEE, ) ) Plaintiff, ) ) v. ) ) BINSKY & SNYDER, INC. et. al. ) ) Defendants. ) __________________________________________)

CONSENT ORDER FINDING THAT APPEAL IS INTERLOCUTORY AND DISMISSING APPEAL

This matter came before the Court on a notice of appeal filed by the Liquidating Committee from the United States Bankruptcy Court for the Western District of North Carolina (the "Bankruptcy Court") January 16, 2007 Order Partially Granting and Partially Denying Defendants' Motion for Summary Judgment (the "Order") which was filed in various adversary proceedings pending before the Bankruptcy Court. The Order granted partial summary

judgment in favor of the Defendants on the legal issue of whether subcontractors who had released statutory lien rights could assert a new value defense pursuant to 11 U.S.C. § 547(c)(1) if the Defendants were to make certain requisite showings of fact. The Order was entered upon stipulated facts from the parties in an attempt to reduce unnecessary discovery, and the parties specifically reserved their rights to contest the facts and conduct discovery in each adversary proceeding. The Liquidating Committee appealed the Order in an abundance of caution in order to ensure that its rights to appeal were preserved. The parties have subsequently agreed that the Order is interlocutory and have jointly requested that the Court enter an order dismissing the appeal and finding that the Order is interlocutory. Upon review of the Order, the Court agrees with the parties and finds that the Order is

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Case 3:07-cv-00049-GCM

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interlocutory and not final. Accordingly, the appeal is hereby DISMISSED as interlocutory without prejudice to the rights of the parties to appeal from any final order of the Bankruptcy Court in the underlying adversary proceedings. CONSENTED TO this 8th day of February 2007. /s/ David A. Matthews ___________ David H. Conaway (N.C. Bar no. 10648) David M. Grogan (N.C. Bar no. 19570) David A. Matthews (N.C. Bar No. 28306) Shumaker, Loop & Kendrick, LLP 128 South Tryon Street, Suite 1800 Charlotte, North Carolina 28202 Counsel for the Liquidation Committee /s/ William L. Esser IV________ J. William Porter (N.C. #7975) William L. Esser IV (N.C. #29201) PARKER, POE, ADAMS & BERNSTEIN, L.L.P. 401 South Tryon Street Suite 3000 Charlotte, North Carolina 28202 phone: [phone] fax: [phone] Counsel for Binsky & Snyder, Inc., Electro Chemical Engineering & Mfg., Inc., Specialty Flooring Fine Painting and Decorating Co., Inc. /s/ Christopher J. Fernandez, Esq. Christopher J. Fernandez, Esq. ALSTON & BIRD, LLP Bank of America Plaza 101 South Tryon Street, Suite 4000 Charlotte, NC 28280 Telephone: [phone] Counsel for S.M. Electric Company, Inc., Schoonover Electric Company, Inc., and EII, Inc.

Systems, Inc.,

/s/ Daniel P. Mazo Daniel P. Mazo CURTIN & HEEFNER, LLP

Case 3:07-cv-00049-GCM

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250 N. Pennsylvania Avenue Morrisville, PA 19067 Telephone: [phone] Counsel for Spacesaver Systems of New Jersey, Inc. /s/ Zakarij O. Thomas Zakarij O. Thomas BUCHANAN INGERSOLL & ROONEY PC One Oxford Centre, 40th Floor Pittsburgh, PA 15219-6498 Telephone: [phone] Counsel for Clemens Construction Company, Inc. /s/ Michael B. Stein Michael B. Stein Matthew T. McKee Kellam & Pettit, P.A. 2701 Coltsgate Rd., Suite 300 Charlotte, NC 28211 Telephone: [phone] Counsel for Workspace Solutions, Inc.

SO ORDERED. Signed: February 8, 2007