IN RE FASTECH, LLC (Bankr.E.D.Okla. 9-24-2010)

There comes on for consideration before the Court Plaintiff's Motion for Summary Judgment (Docket Entry 11), and Defendant's Objection (Docket Entry 22). After reviewing the briefs and record submitted, the Court determines that Plaintiff's Motion must be denied.

To prevail on a motion for summary judgment, the moving party must establish that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Fed.R.Bankr.P. 7056. Facts must be viewed in the light most favorable to the nonmoving party, but only if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

Although the Court admits that this is a close question, the Court finds that there is a genuine issue for trial. Defendant has raised several factual issues, including the valuations used in the Trustee's liquidation analysis and the Defendant's payment to creditors out of the loan closing proceeds, as well as raised affirmative defenses that depend upon a factual analysis. The Court cannot make these factual determinations based upon the record presented on summary judgment. Accordingly, Plaintiff's motion must be denied, and the case shall proceed to trial as previously ordered.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Summary Judgment (Docket Entry 11) is denied, and this matter shall proceed to trial in accordance with this Court's Order and Notice of Trial (Docket Entry 24).

The following is ORDERED:

District/Off: 1086-7 User: susan Date Created: 9/24/2010 Case: 10-08013 Form ID: pdfpo Total: 10 Recipients submitted to the BNC (Bankruptcy Noticing Center) without an address: ust Joel Pelofsky ust Mary E. May ust John E. Foulston ust Barbara A. Shangraw ust Joel Pelofsky ust Mary E. May ust Hawkins TOTAL: 7 Recipients — SUBMITTED — to the BNC (Bankruptcy Noticing Center) for mailing: ust Office of the US Trustee Office of the Assistant U.S. Trustee 224 S Boulder Ste 225 Tulsa, OK 74103 ust Katherine McC. Vance 224 South Boulder Suite 225 Tulsa, OK 74103 ust Office of the US Trustee 224 South Boulder Suite 225 Tulsa, OK 74103 TOTAL: 3