Case: HJB Doc #: 3116 Filed: 02/16/16 Desc: Main Document Page 1 of 4

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1 Case 4-96-HJB Doc # 36 Filed 02/6/6 Desc Main Document Page of 4 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW HAMPSHIRE x In re GT ADVANCED TECHNOLOGIES INC., et al., Debtors x Chapter Case No HJB Jointly Administered MOTION FOR RECONSIDERATION AND TO SET ASIDE ORDER ON 2 TH OMNIBUS OBJECTION AS TO McCARTHY BUILDING COMPANIES, INC. (Claim no. 7) NOW COMES McCarthy Building Companies, Inc. ( McCarthy ), and pursuant to Bankruptcy Rule 3008, requests that the Court reconsider and set aside its Order dated February 5, 206 granting the Debtors Twelfth Omnibus Objection to Claims (Reclassified and Modified 503(b)(9) Claims; Modified Administrative Expense Claims, Reclassified 507(a) Claims, Reclassified and Modified Secured Claims, no Liability Claims) [doc. #3066] as to McCarthy s timely filed claim no. 7 because it did not receive notice of the filing of the Twelfth Omnibus Objection until Friday, February 2, 206. Further, McCarthy has a valid defense to the objection made to McCarthy s claim in that the Debtors objection misrepresents that McCarthy has been paid on its claim by a third party, which is not the case. McCarthy further states. Reconsideration of any order that disposes of a claim may be sought under Bankruptcy Rule 3008 and USC 502(j). A court may reconsider the disallowance of a claim "for cause. Bankr. Rule What constitutes cause is not defined with precision. Courts have considered such factors as new evidence, cause existing under the applicable standards for a

2 Case 4-96-HJB Doc # 36 Filed 02/6/6 Desc Main Document Page 2 of 4 reversal of the order, or that a manifest injustice has been done. Courts have also applied the excusable neglect standard set forth in Bankruptcy Rule 9006 in determining whether to grant reconsideration of an order. 9 Collier on Bankruptcy, 5 ed. revised, Chapter 3008, paragraph [4]. McCarthy has good cause for seeking relief in this motion under Rule 3008 lack of notice of the filing of the Twelfth Omnibus Objection and a valid defense to that Objection. 2. McCarthy filed a timely proof of claim in the amount of $22,93.36 (Claim no. 7) arising out of a contract it entered into with certain of the Debtors for the decommissioning, removal and restoration of the GT Advanced Cz Facility located at Park Place, Hazelwood, Missouri. The referenced facility location is owned by third party Westcore Delta, LLC. See Motion for Relief from Automatic Stay [doc. #992]. 3. In July, 205, McCarthy sought and was granted limited relief from the automatic stay by this Court to pursue a mechanics lien claim in Missouri state court in July 205 against Westcore Delta, LLC, GT Advanced CZ, LLC, GT Advanced Technologies, Inc., and GTAT Corporation. [doc. #200]. The mechanics lien action is ongoing at this time in Missouri state court, and is in the midst of discovery. Affidavit of Michelle C. Eller, Esq at The Twelfth Omnibus Objection to Claims [doc. #2842] lists McCarthy s claim on Schedule 5 to the Proposed Order, identifies Michelle C. Eller, Esq. as Associate General Counsel to McCarthy, and justifies expungement of the claim with the representation that Claim was paid in full by Westcore. Accordingly, the claim should be disallowed an expunged in its entirety. 5. As set forth in Attorney Eller s affidavit filed herewith, the Twelfth Omnibus Objection [doc. #2842] was never received by McCarthy; hence, McCarthy did not know it had been filed, and failed to file a response to it for that reason. See id. at 3. 2

3 Case 4-96-HJB Doc # 36 Filed 02/6/6 Desc Main Document Page 3 of 4 6. It was not until Friday, February 2, 206 that Attorney Eller received in the mail a copy of the Notice of Revised Order [doc. #3063] just before the holiday weekend, and learned from it about the filing of the Twelfth Omnibus Objection. Id. McCarthy has taken prompt efforts to seek reconsideration now that it has notice of the Twelfth Omnibus Objection. 7. Further, McCarthy has a valid defense to the Objection to its claim no. 7; the representation made by Debtors in objection to McCarthy s claim is false. Id. at 4. McCarthy is, quite frankly, surprised that Debtors would make such a representation where there has been no payment to McCarthy on its claim by Westcore, or anyone else. Id. The mechanics lien case against Westcore, as stated above, is still in the midst of discovery. Id. 8. Moreover, given these circumstances, McCarthy had no reason to suspect that Debtors would challenge the validity of its claim on the ground that the claim had been satisfied in full by Westcore. The GTAT Debtors involved in the Missouri action should be aware of its posture and the fact that McCarthy s claim has not been satisfied. McCarthy assumes that Debtors simply included McCarthy s claim no. 7 in the Twelfth Omnibus Objection in error. Nevertheless, under the circumstances, McCarthy has not had any reason to be closely monitoring the bankruptcy docket for a possible challenge to its otherwise valid and unsatisfied claim. 9. Allowing the objection to McCarthy s claim to stand where McCarthy had not received notice of the filing of the Twelfth Omnibus Objection until after the order issued, and that objection relied on a factually incorrect reason to support expungement of McCarthy s claim, would result in a manifest injustice to McCarthy justifying the requested relief. See Bankr. R The alternative would suggest an improper effort to deceive the Court, which McCarthy hopes is not the case. 3

4 Case 4-96-HJB Doc # 36 Filed 02/6/6 Desc Main Document Page 4 of 4 0. No separate memorandum of law is filed as the relief requested is within the Court s discretion and relevant authority is cited herein. WHEREFORE, McCarthy respectfully requests that this Court reconsider and set aside its February 5, 206 Order on the Twelfth Omnibus Objection [doc. #3066] with respect to McCarthy s claim no. 7, grant leave to McCarthy to file a late response to that Objection within 4 days of its order on this motion, and grant it such other and further relief as is just and equitable. Dated at Concord, New Hampshire this 6th day of February, 206. Respectfully submitted, McCARTHY BUILDING COMPANIES, INC. By /s/ Lisa Snow Wade Lisa Snow Wade (BNH #0726) Orr & Reno, PA 45 S. Main Street Box 3550 Concord, NH (603) lwade@orr-reno.com and Jennifer L. Therrien Greensfelder, Hemker & Gale, P.C. 0 S. Broadway, Suite 2000 St. Louis, MO 6302 Phone (34) jlm@greensfelder.com 43856_ 4

5 Case 4-96-HJB Doc # 36- Filed 02/6/6 Desc Affidavit of Michelle Eller Page of 2 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW HAMPSHIRE UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE In re * * Chapter GT Advanced Technologies, Inc., et al. * * Case No HJB Debtors. * * Jointly Administered AFFIDAVIT OF MICHELLE C. ELLER NOW COMES Michelle C. Eller who deposes and states as follows. I am the Associate General Counsel for McCarthy Building Companies, Inc. ( McCarthy ). McCarthy is a Missouri corporation, with its principal place of business located at 34 Rock Hill Rd., St. Louis, Missouri I am over the age of 8 and believe in the obligations of an oath. 3. Despite my name being identified in Schedule 5 of the Order Granting Debtors Twelfth Omnibus Objection to Claims (Reclassified and Modified 503(b)(9) Claims, Modified Administrative Expense Claim, Reclassified 507(a) Claims, Reclassified and Modified Secured Claims, No Liability Claims) ( Proposed Order ), I did not receive notice of Debtors Twelfth Omnibus Objection to Claims (the Objection) or the Proposed Order, until Friday, February 2, 206 when I received the Debtor s Notice of Filing of the Revised Proposed Order Granting Debtors Twelfth Omnibus Objection to Claims in the mail. The Debtors, along with the last four digits of each debtor s tax identification number, as applicable, are GT Advanced Technologies, Inc. (6749), GTAT Corporation (760), GT Advanced Equipment Holding LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire Systems Holding LLC (447), GT Advanced Cz LLC (985), GT Sapphire Systems Group LLC (526), and GT Advanced Technologies Limited (72). The Debtors corporate headquarters are located at 243 Daniel Webster Highway, Merrimack, NH

6 Case 4-96-HJB Doc # 36- Filed 02/6/6 Desc Affidavit of Michelle Eller Page 2 of 2 4. McCarthy is pursuing a mechanics lien action against Westcore Delta, LLC (and debtors GT Advanced CZ, LLC, GT Advanced Technologies, Inc., and GTAT Corporation) as permitted by the Bankruptcy Court s order granting relief from automatic stay. At the present time, discovery is ongoing in that action. To date, Westcore has not paid any of the amount claimed by McCarthy in the bankruptcy proceeding pending in this Court (claim no. 7). McCarthy has not received any payment at all on its claim from any source, and I am surprised that debtors counsel would make a representation to this Court that Westcore had satisfied McCarthy s claim. _February 6, 206_ Date _/s/ Michelle C. Eller Michelle C. Eller STATE OF MISSOURI COUNTY OF ST. LOUIS The foregoing instrument was acknowledged before me this 6 th day of February 206, by Michelle C. Eller. [SEAL] /s/ Michelle A. Ballard Notary Public My Commission Expires 8/26/ _ 2

7 Case 4-96-HJB Doc # 36-2 Filed 02/6/6 Desc Proposed Order Page of UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW HAMPSHIRE In re * * Chapter GT Advanced Technologies, Inc., et al. * * Case No HJB Debtors. * * Jointly Administered ORDER GRANTING MOTION FOR RECONSIDERATION AND TO SET ASIDE ORDER ON 2 TH OMNIBUS OBJECTION AS TO McCARTHY BUILDING COMPANIES, INC. (Claim no. 7) Before the Court is the Motion for Reconsideration and to Set Aside Order on 2 th Omnibus Objection as to McCarthy Building Companies, Inc. (Claim no. 7). It is hereby ordered that () The Motion is granted; (2) Creditor McCarthy Building Companies, Inc. is granted 4 days to file a response to the Twelfth Omnibus Objection to claims [doc. #2842]. Entered in Manchester on, 206. Hon. Henry J. Boroff United States Bankruptcy Court The Debtors, along with the last four digits of each debtor s tax identification number, as applicable, are GT Advanced Technologies, Inc. (6749), GTAT Corporation (760), GT Advanced Equipment Holding LLC (8329), GT Equipment Holdings, Inc. (0040), Lindbergh Acquisition Corp. (5073), GT Sapphire Systems Holding LLC (447), GT Advanced Cz LLC (985), GT Sapphire Systems Group LLC (526), and GT Advanced Technologies Limited (72). The Debtors corporate headquarters are located at 243 Daniel Webster Highway, Merrimack, NH

8 Case 4-96-HJB Doc # 36-3 Filed 02/6/6 Desc Notice of Hearing Page of UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW HAMPSHIRE In re Chapter Case No HJB GT Advanced Technologies Inc., et al, Jointly Administered Hrg. Date April 4, 206 Debtors. Hrg. Time 000 a.m. Objection Deadline April 7, 206 NOTICE OF HEARING Please be advised that a hearing will be held in the Courtroom, United States Bankruptcy Court for the District of New Hampshire, Courtroom 2, 000 Elm Street, th Flood, Manchester, NH 0303, on April 4, 206 at 000 a.m. (the Hearing ), at which the Court will consider the MOTION FOR RECONSIDERATION AND TO SET ASIDE ORDER ON 2 TH OMNIBUS OBJECTION AS TO McCARTHY BUILDING COMPANIES, INC. (Claim no. 7) All objections must be filed with the Court at least seven (7) days before the Hearing, on or before April 7, 206. Dated February 6, 206 Concord, NH By /s/ Lisa Snow Wade Lisa Snow Wade, Esq. (BNH 0726) ORR & RENO, P.A. 45 South Main Street, P.O. Box 3550 Concord, NH Telephone (603) Facsimile (603) lwade@orr-reno.com The Debtors are GT Advanced Technologies Inc., GTAT Corporation, GT Advanced Equipment Holding LLC, GT Equipment Holdings, Inc., Lindbergh Acquisition Corp., GT Sapphire Systems Holding LLC, GT Advanced Cz LLC, GT Sapphire Systems Group LLC, and GT Advanced Technologies Limited.

9 Case 4-96-HJB Doc # 36-4 Filed 02/6/6 Desc Certificate of Service Page of 2 UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF NEW HAMPSHIRE In re Chapter Case No HJB GT Advanced Technologies Inc., et al, Jointly Administered Hrg. Date April 4, 206 Debtors. Hrg. Time 000 a.m. Objection Deadline April 7, 206 CERTIFICATE OF SERVICE McCarthy Building Companies, Inc. ( McCarthy ), a creditor in the above-captioned chapter cases, by and through its undersigned attorneys, hereby submits that they have caused the following document(s) to be served via Electronic Mail on the U.S. Trustee, Creditor s Committee, Debtors counsel, and all other parties listed on the Court s CM/ECF register, as well as via first class mail on the parties listed on the attached Exhibit A Motion For Reconsideration And To Set Aside Order On 2 th Omnibus Objection As To McCarthy Building Companies, Inc. (Claim No. 7); Proposed Order; and Notice of Hearing. Dated February 6, 206 Concord, NH By /s/ Lisa Snow Wade Lisa Snow Wade, Esq. (BNH 0726) ORR & RENO, P.A. 45 South Main Street, P.O. Box 3550 Concord, NH Telephone (603) Facsimile (603) lwade@orr-reno.com The Debtors are GT Advanced Technologies Inc., GTAT Corporation, GT Advanced Equipment Holding LLC, GT Equipment Holdings, Inc., Lindbergh Acquisition Corp., GT Sapphire Systems Holding LLC, GT Advanced Cz LLC, GT Sapphire Systems Group LLC, and GT Advanced Technologies Limited.

10 Case 4-96-HJB Doc # 36-4 Filed 02/6/6 Desc Certificate of Service Page 2 of 2 GE Capital Information Technology Solutions, Inc F/D/B/A Ikon Financial Services c/o Christine R. Etheridge Bankruptcy Administration 738 Bass Road PO Box 3708 Macon GA EXHIBIT A TO CERTIFICATE OF SERVICE IRS Internal Revenue Service Centralized Insolvency Operation PO Box 7346 Philadelphia PA Official Committee Of Unsecured Creditors Kelley Drye & Warren, Llp James S. Carr 0 Park Avenue New York, NY 078 Mesmer & Deleault, PLLC Frank B. Mesmer, Jr. 4 Brook St Manchester NH 0304 PSNH Christopher J. Allwarden Senior Counsel, Law Department 780 No. Commercial St. PO Box 330 Manchester NH State Of New Hampshire Office of the Attorney General Peter C.L. Roth, Senior Asst. Attorney General 33 Capitol St Concord NH _