Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:07-cv-00559-SLR

Document 9-4

Filed 08/19/2008

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE __________________________________________ In re: § § Chapter 11 NEW CENTURY TRS HOLDINGS, INC., § Bk. No. 07-10416v (KJC) et al., § § Jointly Administered Debtors. § § POSITIVE SOFTWARE SOLUTIONS, § INC., § § Appellant, § § v. § Civ. No. 07-559-SLR § NEW CENTURY TRS HOLDINGS, § INC., et al., § § Appellees § MOTION TO DISMISS To the Hon. Sue L. Robinson, United States District Court Judge: Appellant Positive Software Solutions, Inc. ("PSSI"), moves to dismiss the captioned appeal (the "Appeal") and in support of this motion would show as follows: 1. PSSI initiated the Appeal, seeking the reversal of an order issued by the Bankruptcy Court below finding that PSSI had violated the automatic stay (the "Stay Ruling"). 2. Appellee Debtors in the captioned jointly administered bankruptcy case (the "Debtors") opposed PSSI's appeal of the Stay Ruling, but did not assert any cross-appeal to the Stay Ruling. 3. In connection with an omnibus settlement agreement entered into between the Debtors and PSSI (the "Agreement"), PSSI and the Debtors resolved the portion of the Stay Ruling from which PSSI appealed. In particular, the Agreement provides that the parties will request that the Bankruptcy Court withdraw its holding finding that PSSI had violated the automatic stay.

Case 1:07-cv-00559-SLR

Document 9-4

Filed 08/19/2008

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4. In accordance with the Agreement, the Bankruptcy Court has withdrawn the portion of the Stay Order currently that is the subject of this appeal. Accordingly, this appeal has become moot. 5. In accordance with a confirmed bankruptcy plan, the Debtors have been succeeded in this matter by the New Century Liquidating Trust and Reorganized New Century Warehouse Corporation (collectively, the "Trust"). Accordingly, service of this motion is being made upon counsel of record for the "Trust". For the foregoing reasons, PSSI requests that this appeal be dismissed. Dated: Wilmington, Delaware August 19, 2008 By: CIARDI CIARDI & ASTIN, P.C. /s/ Daniel K. Astin Daniel K. Astin (Del. No. 4068) Anthony M. Saccullo (Del. No. 4141) Citizens Bank Center, Suite 725 919 N. Market Street Wilmington, Delaware 19801 Tel (302) 658-1100/Fax (302) 658-1300 [email protected] [email protected] -andTHE RALSTON LAW FIRM Mark H. Ralston 2603 Oak Lawn Avenue Suite 230, LB 2 Dallas, Texas 75219-9109 Telephone: (214) 295-6416 [email protected] Co-counsel to Positive Software Solutions, Inc.

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Case 1:07-cv-00559-SLR

Document 9-4

Filed 08/19/2008

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that on August 19, 2008, he caused to be served a true and correct copy of the foregoing motion by First Class U.S. Mail on the following counsel of record for the New Century Liquidating Trust and Reorganized New Century Warehouse Corporation. By: /s/ Daniel K. Astin Daniel K. Astin (Del. No. 4068)

Bonnie Glantz Fatell BLANK ROME LLP 1201 Market Street, Suite 800 Wilmington, Delaware 19801 Mark S. Indelicato HAHN & HESSEN LLP 488 Madison Avenue, 15th Floor New York, New York 10022

Case 1:07-cv-00559-SLR

Document 9-5

Filed 08/19/2008

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE _______________________________________ In re: § § NEW CENTURY TRS HOLDINGS, INC., § et al., § § Debtors. § § -------------------------------------- § § § POSITIVE SOFTWARE SOLUTIONS, § INC., § § Appellant, § § v. § § NEW CENTURY TRS HOLDINGS, § INC., et al., § § Appellees § § §

Chapter 11 Bk. No. 07-10416v (KJC) Jointly Administered

Civ. No. 07-559-SLR

ORDER GRANTING MOTION TO DISMISS Upon consideration of the Motion to Dismiss filed by Appellant Positive Software Solutions, Inc. ("PSSI"), this Court finds that the motion is meritorious and should be granted. Accordingly, IT IS ORDERED that the captioned appeal is hereby dismissed.

Dated: \ The Honorable Sue L. Robinson United States District Court Judge