Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 1 of 15 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE In re: GT ADVANCED TECHNOLOGIES, INC., et al., Reorganized Debtors GTAT CORPORATION, Plaintiff, v. INTERSTATE ELECTRICAL SERVICES CORPORATION, Defendant. Chapter 11 Case No. 14-11916-CJP Jointly Administered Adv. Pro. No. 16-01050 CJP DEFENDANT INTERSTATE ELECTRICAL SERVICES CORPORATION S OBJECTION TO PLAINTIFF S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS The Defendant Interstate Electrical Services Corporation (hereinafter Interstate ), hereby objects to Plaintiff s Consolidated Motion for Partial Judgment on the Pleadings (hereinafter Motion ) and respectfully requests this Honorable Court to deny the Motion and instead to enter judgment in favor of Interstate by declaring that a mechanic s lien was created and perfected by Interstate pursuant to N.H. Rev. Stat. 447 and said mechanic s lien is enforceable against Plaintiff GTAT Corporation (hereinafter GTAT ) pursuant to Section 546(b) of the United States Bankruptcy Code. FACTUAL AND PROCEDURAL HISTORY 1. Interstate is an electrical contractor that provides electrical services, including performing labor and furnishing materials, equipment and supplies in connection with various construction projects. 2. On or about October 6, 2014 ( Petition Date ), GTAT, along with eight related entities, filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code.
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 2 of 15 3. Prior to the Petition Date, Interstate performed labor and furnished materials, equipment and supplies to and for the benefit of GTAT at its property located at 243 Daniel Webster Highway, Merrimack, New Hampshire ( Property ). 4. The labor Interstate performed and the materials it supplied to the Property were furnished pursuant to three (3) contracts and one small purchase order. Two (2) of the contracts and the purchase order were entered into directly with GTAT, and the third contract was as a subcontractor of Green Leaf Construction, LLC who had a contract with GTAT. 5. As of the Petition Date, Interstate was owed $279,667.98 for labor performed and materials furnished directly to GTAT at the Property, as more fully detailed in Interstate s Proof of Claim filed on December 5, 2014 in GTAT s bankruptcy proceeding (Case No. 14-11919- HJB) [Claim No. 299]. 6. On or about October 31, 2014, Interstate filed suit with the Hillsborough Superior Court in order to perfect its mechanic s lien pursuant to N.H. Rev. Stat. 447 et seq., and simultaneously filed a Petition/Motion for Ex Parte Attachment. On or about November 3, 2014, Interstate obtained a Writ of Attachment in the amount of $279,667.98, which was duly recorded on or about said date with the Hillsborough County Registry of Deeds. 7. On or about November 3, 2014, Interstate filed a Notice of Lien with this Court pursuant to Section 546 of the Bankruptcy Code [Docket No. 424]. 8. On or about March 12, 2015, Interstate transferred and assigned to Liquidating Solutions, Inc. ( LSI ) $271,497.00 of the amounts owed to Interstate by GTAT as reflected in its Proof of Claim and mechanic s lien. LSI subsequently transferred back to Interstate said claim which transfer was approved by the Court. 2
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 3 of 15 9. N.H. Rev. Stat. 447:9 expressly provides that a lien shall continue for a period of 120 days after the services are performed, or the materials, supplies or other things are furnished. Here, Interstate s state court filing to obtain the Writ of Attachment was timely, as it perfected its lien within 120 days after its services were performed for or materials furnished to GTAT. 10. For the next 18 months, GTAT took no action to dismiss, vacate or otherwise contest the lien filed by Interstate or other similarly situated mechanic s lien holders, namely, Green Leaf, LLC, Metro Walls, Inc., Granite State Plumbing and Heating, Decco Inc. and C.I. Design, Inc. (collectively, Mechanic s Lien Defendants ). 11. On or about March 8, 2016, the Court entered an order confirming the Plan. Recognizing the validity of the liens held by the Mechanic s Lien Claimants, the claims of the Mechanic s Lien Claimants were identified as unimpaired secured creditors under the Plan, and as such, the Mechanic s Lien Claimants were deemed to have accepted the Plan and were not entitled to vote on the Plan. The Plan was confirmed and became effective on March 17, 2016. 12. On June 21, 2016, GTAT filed this action alleging that Interstate s mechanic s lien was unperfected and unenforceable because it was not filed before GTAT filed its voluntary petition for bankruptcy. A. Standard of Review ARGUMENT Federal Rule of Civil Procedure 12(c) is a vehicle available to a party to move for judgment on the pleadings after the pleadings are closed, but before it may delay the trial. 1 1 Interestingly, after GTAT filed its Motion, GTAT file an Amended Complaint on September 26, 2016. 3
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 4 of 15 Sanchez v. Esso Standard Oil de Puerto Rico, Inc., 747 F. Supp. 2d 261, 263 (D. Mass. 2010), citing Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings is made applicable in adversary proceeding pursuant to Bankruptcy Rule 7012. Fed.R.Civ.P. 12(c) allows for dismissal of claims when there are no facts in dispute and the Court is able to determine the legal sufficiency of claims based on the information in the pleadings. Tavares de Almeida v. The Children s Museum, 28 F. Supp. 2d 682, 685 (D. Mass. 1998). Such is the case here. The burden is on the moving party to establish its right to dismissal, and the facts are reviewed in the light most favorable to the non-movant, along with all reasonable inferences being drawn in favor of the non-movant. Gulf Coast Bank & Trust Co. v. Reder, 355 F. 3d 35, 38 (1 st Cir. 2004). The standard applied in determining a Rule 12(c) Motion is similar to the standard applied in deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6). Sanchez, at 263. Specifically, to survive Plaintiffs have an obligation to provide the grounds of [their] entitlement to relief [which] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Sanchez, at 263, citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Put another way, taking into consideration both the Plaintiff s Complaint and the Defendant s Answer and Counterclaim, there must exist factual allegations sufficient to raise a right to relief above the speculative level. Sanchez, at 263-264, quoting Bell Atl. Corp. v. Twombly, at 555. Here, based on the pleadings as a whole, GTAT is not entitled to judgment on the pleadings as to Interstate s mechanic s lien, but in fact Interstate is entitled to judgment and dismissal of Plaintiff s eight (8) separate causes of action in which GTAT seeks to overturn Interstate s perfected mechanic s lien that arose from work it performed for GTAT s benefit prior to the voluntary petitions for relief pursuant to Chapter 11 of Title 11 of the United States 4
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 5 of 15 Code were filed. Contrary to Plaintiff s assertions, the pleadings filed to date support Interstate s claim that it properly perfected the mechanic s lien in question and that despite GTAT s filing of its Chapter 11 petitions, Interstate has a valid and enforceable mechanic s lien. The pleadings provide all information necessary for the Court to reach the inevitable conclusion that the Plaintiff does not have legally cognizable claims against Interstate, that Interstate has a valid and enforceable mechanic s lien, and that GTAT breached the settlement agreement in which GTAT promised to pay for the labor and materials GTAT received from Interstate. B. Statutory Lien For Labor and Materials Provided By Interstate To GTAT Before GTAT s Petition For Bankruptcy Was Properly Created And Perfected Pursuant To N.H. Rev. Stat. 447 And Is Enforceable. In New Hampshire, any person who performs labor or furnishes materials to the amount of $15 or more for erecting a building shall have a lien on any material so furnished and on said structure, an on any right of the owner to the lot of land on which it stands. N.H. Rev. Stat. 447:2. The mechanic s lien arises by operation of law when the labor and materials are furnished. See Pine Gravel, Inc. v. Cianchette d/b/a Site Prep., 128 N.H. 460, 464 (1986). There is no dispute that Interstate provided labor and materials to GTAT for the improvement of GTAT s Property and that said labor and materials were provided to GTAT prior to GTAT s filing of its voluntary petitions for relief under Chapter 11 of Title 11 of the United States Code. GTAT knew that it had received services from Interstate and that Interstate had not been compensated fully. Within 120 days after providing its services, Interstate filed a Petition/Motion for Ex Parte Attachment in Hillsborough County Superior Court seeking a writ of attachment to perfect its mechanic s lien, the lien which it obtained when it furnished its labor and materials. The Petition was allowed and on November 3, 2014, a Writ of Attachment was issued by the Court. Interstate filed a Notice of Lien under Section 546 of the Bankruptcy 5
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 6 of 15 Code in which it identified services it performed at the Property and the monies that were owed and subject to the mechanic s lien. GTAT misstates in its motion that Interstate admitted that it did not attempt[] to perfect any of the Mechanic s Liens prior to the Petition Date. See GTAT s Memorandum of Law at p. 6, footnote 17. In fact, Interstate denied this allegation in its Answer and Counterclaim. See 17 at Exhibit 6 (Complaint) and Exhibit 5 (Interstate s Answer and Counterclaim) attached to GTAT s Motion. By misstating Interstate s position, GTAT is suggesting that Interstate admitted that it failed to assert its lienholder rights in a timely fashion. This is not true. Based on the fact that Interstate denied in its Answer that it failed to attempt to perfect its mechanic s lien prior to the Petition Date, that alone should be sufficient in and of itself to deny GTAT s Motion given a material question of fact is obviously in dispute. N.H. Rev. Stat. 447:9 provides, The lien created by N.H. Rev. Stat. 447:2-7, inclusive, shall continue for 120 days after the services are performed, or the materials, supplies or other things are furnished, unless payment therefor is previously made, and shall take precedence of all prior claims except liens on account of taxes. [emphasis added] There is no dispute that Interstate provided goods and services to GTAT and that upon providing same, under New Hampshire state law, a lien was created. There is also no allegation that Interstate failed to perfect the lien within 120 days from the last day it provided labor and materials to GTAT. GTAT incorrectly maintains that the lien is unenforceable because it was perfected after GTAT filed its petition for bankruptcy and became debtor-in-possession pursuant to 11 U.S.C. 1107, 1108. 6
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 7 of 15 The mechanic s lien was properly created and perfected consistent with N.H. Rev. Stat. 447. After the mechanic s lien is created and perfected, it shall take precedence of all prior claims except liens on account of taxes. N.H. Rev. Stat. 447:9. C. Section 546(b) Of The Bankruptcy Code Protects The Creditor Who Has Perfected A Mechanic s Lien Where Relation Back Has Been Established. GTAT is seeking protection under Section 545 of the Bankruptcy Code by claiming that as a debtor-in-possession, it stands in the shoes of a bona fide purchaser and that the debts are avoidable. GTAT has taken the position that as a debtor in possession, GTAT shall have all the rights... of a trustee serving in a [Chapter 11 bankruptcy case]. See 11 U.S. Code 1107. Therefore, according to GTAT, if the trustee has the rights and powers of a bona fide purchaser pursuant to 11 U.S. Code 1107, then GTAT, as a debtor-in-possession, shall receive the same protections afforded to bona fide purchasers pursuant Section 545(2). Thus, GTAT maintains that Section 545 permits it, as a debtor-in-possession, to avoid any lien that is not perfected at the time the petition is filed. However, Section 546(b) exempts from the trustee s power of avoidance any generally applicable law that permits the perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection. (emphasis added). A lien that relates back is the quintessential interest protected by Section 546(b), as it has the effect of priming earlier perfected interests. In re Microfab, Inc., 105 B.R. 152, 158 (Bankr.D.Mass. 1989). Therefore, simply stated, if a creditor possesses a prepetition interest in property, and state law establishes a time period for perfection of a lien based upon that interest, the lien does not lose its preferred standing by reason of the fact that it [is] not perfected until after the commencement of bankruptcy so long as it is perfected within the time period established by state law. Poly Industries, Inc. v. Mozley, 362 F.2d 453, 457 (9th Cir.), cert. denied, 385 U.S. 7
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 8 of 15 958, 87 S.Ct. 393, 17 L.Ed.2d 304 (1966). The relatively narrow purpose of this exception is to protect, in spite of the surprise intervention of [the] bankruptcy petition, those whom state law protects by allowing them to perfect an interest they obtained before the bankruptcy proceedings began. H.R.Rep. No. 595, 95th Cong., 1st Sess. 371, reprinted in 1978 U.S.Code Cong. & Admin. News 6327; S.Rep. No. 989, 95th Cong., 2d Sess. 86, reprinted in 1978 U.S.Code Cong. & Admin. News 5872. GTAT asserts in conclusory fashion that the Defendants are not protected by state law because the mechanic s liens were not perfected through a recorded writ of attachment until after the petition date. GTAT suggests that New Hampshire state law does not provide relation-back protection and, therefore, Interstate may not argue that its lien is exempted from GTAT s purported avoiding powers under Section 546(b). However, GTAT fails to cite to any legal authority that explicitly states that New Hampshire has not adopted the relation-back principal as it pertains to mechanic s liens pursuant to N.H. Rev. Stat. 447. New Hampshire state law controlling mechanic s liens adopts the relation-back principal in order to afford contractors and subcontractors better protection in securing debts owed for their goods and services. In Daniel v. Hawkeye Funding, Ltd. Partnership, 150 N.H. 581 (2004), the Court, relying upon its decision in Pine Gravel, held that a mechanic s lien is created as soon as any work or materials are furnished under the contract. Id. at 583. [emphasis added] The act of obtaining a writ of attachment is merely perfecting a lien already in existence by virtue of the statute. Thayer v. Padelford, 69 N.H. 301 (1897). GTAT s reliance upon the court s decision in Chagnon Lumber Co., Inc. v. Stone Mill Const. Corp., 124 N.H. 820 (1984) is misplaced. The Court in Chagnon Lumber addressed 8
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 9 of 15 whether a pre-judgment real estate attachment pursuant to N.H. Rev. Stat. 511, not N.H. Rev. Stat. 447, was enforceable against bona fide purchasers of the subject property who had no actual or constructive notice of liens for materials. Furthermore, Chagnon Lumber was not decided in a bankruptcy context. The defendants and bona fide purchasers, Mr. and Mrs. John Breiten, purchased real estate and were misinformed by the owner that no liens existed. The court held that a materialman s lien may not be secured by attachment of the Breitens interest since they were bona fide purchasers for value. Id. at 590. The facts in the case at bar are clearly distinct from Chagnon Lumber. GTAT was not a bona fide purchaser of value but rather a debtor-in-possession pursuant to 11 USC 1107 or assumed a hypothetical status of a bona fide purchaser. Moreover, GTAT had actual notice that Interstate provided goods and services within 120 days but were never paid fully. Therefore, GTAT was not a bona fide purchaser under New Hampshire state law. Interstate properly asserted its rights pursuant to N.H. Rev. Stat. 447 and did not seek to enforce rights under N.H. Rev. Stat. 511, which was the statute at issue in Chagnon Lumber. GTAT also misapplies a decision out of the U.S. Bankruptcy Court of New York in which the Court found that the law governing construction liens in New Jersey did not protect the creditor from bona fide purchasers and subsequent lien claimants and, thus, the trustee was permitted to avoid the lien as a debtor-in-possession pursuant to Section 546(b). Schoonover Electric Co., Inc. v. Enron Corp., 294 B.R. 232 (Bankr. S.D.N.Y. 2003). The lien statute that was examined by the Court explicitly stated, no lien claim shall attach to the estate or interest acquired by a bona fide purchaser first record or lodge for record; nor shall a lien claim enjoy priority over any mortgage, judgment or other lien first record, lodge for record, filed or docketed. Id. at 239 citing N.J. Stat. Ann. 2A:44A-10. The Court held that given that 10 9
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 10 of 15 [of the Construction Lien Law] is explicit in stating that a lien will not attach to the interest acquired by a bona fide purchaser... the [liens] do not qualify for the 546(b) exception. Id. In the case at bar, the New Hampshire mechanic s lien statute contains no explicit language stating that the lien will not attach to an interest acquired by a bona fide purchaser. In fact, N.H. Rev. Stat. 447:9 provides that a mechanic s lien shall take precedence of all prior claims except liens on account of taxes. To permit creditors to avoid liability for debts it knowingly accrued just before declaring bankruptcy would render the New Hampshire statute meaningless and vitiate the Legislature s intent to protect a contractor s ability to receive consideration for goods and services provided. The only question as to whether the exception under Section 546(b) applies is whether any generally applicable law that permits the perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection. As demonstrated in detail above, Interstate s mechanic s lien arose by operation of law at the time Interstate furnished labor and materials to GTAT. See Pine Gravel, Inc. v. Cianchette d/b/a Site Prep., 128 N.H. 460, 464 (1986) and N.H. Rev. Stat. 447:2. The act of obtaining a writ of attachment merely perfected the lien that already in existence by virtue of the statute. Thayer v. Padelford, 69 N.H. 301 (1897). Therefore, GTAT may not invoke the protections afforded by Sections 545 and 546(b). D. Section 546(b) Does Not Protect Debtor-In-Possession With Knowledge Of Mechanic s Lien. In WWG Industries, Inc., Debtor, v. United Textiles, Inc., 772 F.2d 810 (1985), the United States Court of Appeals of the Eleventh Circuit held that a contractor s right to a lien had been created pre-petition when the debtor, WWG, received the contractor s services. Id. at 813. 10
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 11 of 15 In support of its decision, the Court cited to 4 Collier on Bankruptcy 545.04 (15 th Ed.1985) which states, in part, that [t]he rights granted to the holder of a statutory lien by Section 546(b) only prevail against the trustee if the holder perfects pursuant to applicable law and that perfection relates back to a time prior to the filing of the petition. Id. 814. The Court examined the Congressional history of Section 546(b) cited to the congressional record which stated that [i]f a [lienholder] is able to perfect under section 546(a) and that perfection relates back to an earlier date, then in spite of the filing of the bankruptcy petition, the trustee would not be able to defeat the lien, because the lien would be perfected and enforceable against a bona fide purchaser that purchased the property on the date of the filing of the petition. Id. at 814 citing to H.Rep. No. 95-595, p. 371, U.S. Code Cong. & Admin.News 1978, 5787, p. 6327. The Court also examined Georgia law to determine the rights of a purchaser who has notice of a preexisting, unperfected lien. WWG argued, just as GTAT does, that Section 545 gives the debtor-in-possession the rights of a bona fide purchaser even if it had constructive or actual notice of the lien. Id. at 812. WWG argued that by definition, a bona fide purchaser has no notice of the liens and thus may avoid liability. Id. Relying upon the Court s decision in In re Marietta Baptist Tabernacle, 576 F.2d. 1237 (5 th Cir.1978), the Court determined that Georgia state law is settled that a lien will not be valid against a bona fide purchaser until notice of the claim of lien has been filed. Id. at 813 citing In re Marietta at 1239-40. In the present case, there is no dispute that Interstate provided goods and services to GTAT and that New Hampshire state law affords Interstate the right to assert a lien claim which relates back to a time when the services were provided. N.H. Rev. Stat. 447 does not state, explicitly or implicitly, that the lien is unenforceable against bona fide purchasers for value. Moreover, New Hampshire law defines a bona fide purchaser for value as one who acquires 11
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 12 of 15 title to property for value, in good faith, and without notice of competing claims and interests in the property. Hawthorne Trust v. Maine Savings Bank, 136 N.H. 533, 537 (1992). If this Court were to examine New Hampshire law for the purposes of determining the rights of GTAT as a bona fide purchaser, as was done in WWG, GTAT s actual notice of the mechanic s liens would disqualify it from seeking protection under Section 546. GTAT s reliance on Chagnon Lumber is a red herring. While statutes governing attachments of real estate (N.H. Rev. Stat. 511) and recording of instruments affecting title to any interest of real estate (N.H. Rev. Stat. 477) require the recording of an instrument in order to put the bona fide purchaser on notice, Interstate is not pursuing its rights under those statutes. Furthermore, the bona fide purchasers in Chagnon Lumber purchased the property without notice of the liens. GTAT is not a bona fide purchaser as defined by New Hampshire law and should not be permitted to avoid the mechanic s lien created before the Petition Date and properly perfected pursuant to N.H. Rev. Stat. 447. The pleadings demonstrate that GTAT received goods and services from Interstate and that the mechanic s lien was perfected in a manner and within the time constraints dictated by New Hampshire state law. To apply the requirements enumerated in N.H. Rev. Stat. 511 and 477 would contravene with the language and intent of N.H. Rev. Stat. 447. E. Mechanic s Lien Relates Back Pursuant to Section 547. While 11 U.S.C. 547 pertains to preferences, the definition of transfer, as contained therein, further supports Interstate s position that its perfected mechanic s lien relates back and cannot be set aside by the Plaintiff. Under NH RSA 447:9, Interstate obtained an inchoate mechanics lien on the subject property that became effective when it supplied good and services under its contracts with GTAT Corporation. 11 U.S.C. 547(e)(2)(A) provides that a transfer 12
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 13 of 15 is made at the time such transfer takes effect between transferor and transferee, if such transfer is perfected at, or within 30 days after, such time.... Here, while the lien was created and effective when Interstate performed its work pre-bankruptcy, and since its mechanic s lien for that work was perfected within 30 days thereafter, its mechanic s lien relates back and is treated as if it occurred pre-bankruptcy. Since GTAT s hypothetical bona fide purchaser status under 11 USC 544(a)(3) is only effective as of the commencement of the case, Interstate s mechanic s lien, which is deemed to have been made prior to the Petition Date, takes priority over any hypothetical bona fide purchaser status that GTAT may have acquired on the Petition Date, such that Interstate s lien cannot be set aside by the Plaintiff. Moreover, because Interstate s mechanic s lien is deemed to have been made prior to the Petition Date, Plaintiff s claim under Section 545(2) also fails, because that section similarly contemplates hypothetical bona fide purchaser status that is acquired at the time of the commencement of the case. F. Breach Of Settlement Agreement. The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as the standard for evaluating a Rule 12(b)(6) motion to dismiss. See Fed.R.Civ.P. 12(c) and 12(b)(6); Preyer v. Dartmouth College, 968 F.Supp. 20, 23 (D.N.H.1997). In both instances, the court's inquiry is not whether the plaintiff, or in this case, counter plaintiff, will ultimately prevail on its claims, but rather, the question before the court is whether the counter plaintiff is entitled to offer evidence to support its claims. Preyer, 968 F.Supp. at 23. In making this inquiry, the court must accept as true all of the factual allegations of the counterclaim, and draw all reasonable inferences from those facts in a manner most favorable to complainant. Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992). Great specificity is not required to survive a 12(c) motion; it is enough for a plaintiff 13
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 14 of 15 to sketch an actionable claim by means of a generalized statement of facts. Preyer at 23 (citations omitted). It is alleged by Interstate that GTAT s counsel circulated a settlement agreement to Interstate and other similarly situated mechanic s liens holders in which GTAT agreed to provide payment to LSI, Interstate s then assignee. It is also alleged that the claimants agreed to the relevant terms of the agreement before it expressed its intention to withdraw from the settlement agreement without any explanation. Interstate was injured as a result of the GTAT s breach. There are genuine issues of material fact as to whether GTAT accepted the settlement agreement, if GTAT s conduct constituted a waiver or modification of the requirement that acceptance be in writing, if there was a meeting of the minds and whether there was a breach as alleged by Interstate in its counterclaim. Thusly, GTAT s Motion should be denied as there are facts in issue. CONCLUSION For the reasons as set forth above, GTAT s Motion for Judgment on the Pleadings should be denied as it has been demonstrated by the pleadings that Interstate properly perfected a valid and enforceable mechanic s lien and that GTAT cannot avoid liability pursuant to Sections 544, 545 and 546 of the Bankruptcy Code. In addition, there are genuine issues of material facts relating to the settlement agreement that was distributed by GTAT to interstate and the Mechanic s Lien Claimants. As such, the Defendant respectfully requests that this Honorable Court deny the Plaintiff s Motion for Judgment on the Pleadings and enter judgment in favor of Interstate by declaring that Interstate properly perfected an enforceable mechanic s lien and that GTAT has no legal ground to avoid liability to same. 14
Case: 16-01050-CJP Doc #: 38 Filed: 10/11/16 Desc: Main Document Page 15 of 15 Respectfully Submitted, /s/ James S. Singer James S. Singer, BBO # 464560 Rudolph Friedmann LLP JSinger@RFlawyers.com 92 State Street Boston, MA 02109 Dated: October 11, 2016 (617) 723-7700 CERTIFICATE OF SERVICE I hereby certify that on this 11th day of October, 2016, I made service of the foregoing to all parties who have received notices in this case via CM/ECF. /s/ James S. Singer James S. Singer (Admitted Pro Hac Vice) 15