In re Murray Energy Holdings Co.

Full title: In re: MURRAY ENERGY HOLDINGS CO., et al., Debtors.

Court: United States Bankruptcy Court, Southern District of Ohio

Date published: Sep 29, 2023

654 B.R. 110 (Bankr. S.D. Ohio 2023)

Opinion

Case No. 19-56885

2023-09-29

IN RE: MURRAY ENERGY HOLDINGS CO., et al., Debtors.

Tiffany Strelow Cobb, Melissa S. Giberson, Brenda K. Bowers, Thomas Loeb, Vorys Sater Seymour & Pease LLP, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, for Creditor Committee. Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel. Monica V. Kindt, Benjamin A. Sales, Office of the United States Trustee, Cincinnati, OH, for U.S. Trustee. Jeremy Shane Flannery, Office of the United States Trustee, Columbus, OH, for U.S. Trustee.

John E. Hoffman, Jr., United States Bankruptcy Judge

Tiffany Strelow Cobb, Melissa S. Giberson, Brenda K. Bowers, Thomas Loeb, Vorys Sater Seymour & Pease LLP, Benjamin Butterfield, Todd Goren, Jennifer Marines, Lorenzo Marinuzzi, Erica Richards, Allison B. Selick, Morrison & Foerster LLP, New York, NY, for Creditor Committee. Roma N. Desai, Bernstein Shur Sawyer & Nelson PA, Portland, ME, for Special Counsel. Monica V. Kindt, Benjamin A. Sales, Office of the United States Trustee, Cincinnati, OH, for U.S. Trustee. Jeremy Shane Flannery, Office of the United States Trustee, Columbus, OH, for U.S. Trustee. MEMORANDUM OPINION AND ORDER (A) DENYING PLAN ADMINISTRATOR'S MOTION FOR SUMMARY JUDGMENT (Doc. 2536) (B) GRANTING IN PART AND DENYING IN PART PILLAR INNOVATIONS , LLC'S MOTION FOR SUMMARY JUDGMENT (Doc. 2537) AND (C) SCHEDULING STATUS CONFERENCE John E. Hoffman, Jr., United States Bankruptcy Judge

I. Introduction

This contested matter involves a lien priority dispute between Pillar Innovations, LLC ("Pillar") and Drivetrain, LLC, the Plan Administrator appointed under the confirmed Chapter 11 plan ("Plan") (Doc. 2082, Ex. 1) of Murray Energy Holdings Co. ("Murray Energy") and its affiliated debtors and debtors in possession (collectively, "Murray" or "Debtors").¹ Pillar supplied equipment, labor and materials for several of the Debtors' coal mines in West Virginia, Ohio and Kentucky at various times in 2018 and 2019. When Pillar was not paid for its goods and services, it filed mechanic's liens in counties in each of those states against the Murray company or companies for which it worked.

1 Murray Energy Holdings Co. and 98 coal and energy-related companies filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code on October 29, 2019 ("Petition Date"). The cases are jointly administered, but the various Debtors' estates have not been substantively consolidated. The Plan was confirmed on August 31, 2020. Documents filed in connection with the Debtors' objection to the allowance of Pillar's mechanic's lien claims were filed prior to the confirmation of the Plan by Murray and postconfirmation by the Plan Administrator.

In West Virginia, Pillar filed mechanic's liens against five companies: The Harrison County Coal Company, The Marshall County Coal Company, The Ohio County Coal Company, The Monongalia County Coal Company and The Marion County Coal Company (collectively, the "West Virginia Coal Operators"). Pillar filed its mechanic's liens in four counties: Marshall, Monongalia, Marion and Harrison.

In Ohio, Pillar filed one mechanic's lien in Belmont County against American Energy Corporation ("American Energy").

In Kentucky, Pillar filed one mechanic's lien in Ohio County against two Murray companies: Western Kentucky Consolidated Resources, LLC ("WKY-Resources") and Western Kentucky Coal Company, LLC ("WKY-Coal"). Pillar filed another mechanic's lien in Muhlenberg County, Kentucky against WKY-Resources and The Muhlenberg County Coal Company, LLC ("Muhlenberg Coal").

Based on these liens, Pillar filed secured claims against the relevant Debtors' estates. In response, the Debtors filed their First Omnibus Objection to Certain Mechanic's Lien Claims ("Omnibus Objection") (Doc. 1749), including those filed by Pillar and many other mechanic's lienholders, and sought to reclassify them as general, unsecured claims on two bases: (1) that the mortgages ("Term Loan Mortgages" or, where applicable, "Term Loan Mortgage") the Debtors granted to their prepetition senior term loan lenders ("Lenders") under the Superpriority Credit and Guaranty Agreement ("Credit Agreement") executed in June 2018 took priority over the mechanic's liens; and (2) that the properties subject to the mechanic's liens were of insufficient value to support the lienholder's secured status. Pillar responded to the Omnibus Objection, and both parties filed motions for summary judgment along with their respective responses and replies.²

2 In addition to the Omnibus Objection, the parties to this contested matter also filed the following documents:

• Objection of Pillar Innovations, LLC to Debtors' First Omnibus Objection to Certain Mechanic's Lien Claims ("Pillar Claim Objection Response") (Doc. 1819);

• Reply in Support of Debtors' First Omnibus Objection to Certain Mechanic's Lien Claims ("Omnibus Reply") (Doc. 2068);

• Declaration of Ernest C. Banks, Jr., in Support of Plan Administrator's Motion for Sustaining the First Omnibus Objection to Certain Mechanic's Lien Claims ("Banks Declaration") (Doc. 2519);

• Plan Administrator's Motion for Summary Judgment Sustaining the First Omnibus Objection to the Mechanic's Lien Claims of Pillar Innovations, LLC (Doc. 2536);

• Pillar Innovations, LLC Motion for Summary Judgment (Doc. 2537);

• Pillar Innovations, LLC Response to Plan Administrator's Motion for Summary Judgment Sustaining the First Omnibus Objection to the Mechanic's Lien Claims of Pillar Innovations, LLC ("Pillar MSJ Response") (Doc. 2585);

• Plan Administrator's Response to Pillar Innovations, LLC's Motion for Summary Judgment ("Plan Administrator MSJ Response") (Doc. 2593);

• Pillar Innovations, LLC Reply to Plan Administrator's Response to Pillar Innovations, LLC's Motion for Summary Judgment ("Pillar MSJ Reply") (Doc. 2612);

• Plan Administrator's Reply in Support of Its Motion for Summary Judgment Sustaining the First Omnibus Objection to Mechanic's Lien Claims of Pillar Innovations, LLC ("Plan Administrator MSJ Reply") (Doc. 2634); and

• Joint Stipulation Regarding the "Bundle of Sticks" Argument Set Forth by the Plan Administrator and Addressed in the Responses thereto filed by Anderson Excavating, LLC, Frontier-Kemper Constructors, Inc., GMS Mine Repair and Maintenance, Inc., Laurel Aggregates of Delaware, LLC, Miller Contracting Services, Inc., Ohio-West Virginia Excavating Co. and Pillar Innovations LLC. ("Joint Stipulation") (Doc. 2850).

For the reasons explained below, the Court concludes that Pillar's mechanic's liens as to certain parcels of property have priority over the Term Loan Mortgages held by the Lenders, and the Court grants summary judgment in favor of Pillar and against the Plan Administrator as to those liens and applicable claims. The Court is unable, however, to determine the priority of liens as to certain other parcels of property and thus denies Pillar's and the Plan Administrator's requests for summary judgment as to those liens and related claims. A status conference will be scheduled at which counsel for the parties should be prepared to address those claims.

II. Jurisdiction and Constitutional Authority

The Court has jurisdiction to hear and determine this matter under 28 U.S.C. § 1334(b) and the general order of reference entered in this district in accordance with 28 U.S.C. § 157(a). An action seeking the allowance or disallowance of claims against the estate is a core proceeding, see 28 U.S.C. § 157(b)(2)(B), as is the determination of the validity, extent, or priority of liens, see 28 U.S.C. § 157(b)(2)(K). "To the extent [a] matter involves a determination of the validity, extent and priority of liens on property of the estate and claims against such property, the matter 'would necessarily be resolved in the claims allowance process,' " BMO Harris Bank, N.A. v. Vista Mktg. Grp., Ltd. (In re Vista Mktg. Grp., Ltd.), 548 B.R. 502, 512 (Bankr. N.D. Ill. 2016) (quoting Stern v. Marshall, 564 U.S. 462, 499, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011)), and a bankruptcy court therefore would have the constitutional authority to finally adjudicate it. See Waldman v. Stone, 698 F.3d 910, 919 (6th Cir. 2012) ("When a debtor . . . seeks disallowance of a creditor's claim against the estate . . . the bankruptcy court's authority is at its constitutional maximum."); Black Diamond Comm. Fin. L.L.C. v. Murray Energy Corp. (In re Murray Energy Holdings Co.), 616 B.R. 84, 87 (Bankr. S.D. Ohio 2020) ("[B]ankruptcy courts have the constitutional authority to enter final orders adjudicating the validity and priority of liens on property of the estate."). The Court accordingly has the constitutional authority to finally adjudicate this contested matter.

III. Factual and Procedural Background

As stated above, in June 2018—about sixteen months before they filed their Chapter 11 cases—Murray Energy and certain of its affiliated companies entered into the Credit Agreement with the Lenders. See Banks. Decl., Doc. 2519-1 ¶ 7. To secure the repayment of the loans made under the Credit Agreement, they granted liens to the Lenders on their title and interest in and to land, fixtures, personalty and other collateral located in West Virginia, Ohio, Kentucky and Pennsylvania. See id. ¶ 8. The Term Loan Mortgages securing the Debtors' obligations under the Credit Agreement were recorded in July and August 2018 in various counties in those states. Id. ¶ 9. In late 2019 and early 2020, after the Petition Date, Pillar filed seven mechanic's liens in the counties in West Virginia and Kentucky where it had performed work for, or provided goods to, Murray. Pillar Claim Obj. Resp., Doc. 1819 at 2-3. Pillar also filed a mechanic's lien in Belmont County, Ohio in September 2019, a month or so before the Petition Date. Id. at 3. Pillar eventually filed proofs of claim as to each of these mechanic's liens.

This dispute began several months after the commencement of the Debtors' Chapter 11 cases, when Murray filed the Omnibus Objection. The Omnibus Objection itself does not identify the claims to which it objects. Instead, it includes as an exhibit a proposed order granting the Omnibus Objection with an attached "Schedule 1" listing disputed mechanic's lien claims. Omnibus Obj., Doc. 1749-1 at 6-12.³ The list contains 81 claims filed by 21 claimants, including the eight claims filed by Pillar. Pillar's claims are identified as Claim Nos. 1105, 1106, 1107, 1112, 1114, 1117, 1123 and 1299. Id. at 10. The Omnibus Objection seeks reclassification of all 81 mechanic's lien claims from secured to general, unsecured status.

3 When citing documents in the summary judgment record, the Court will cite the .pdf page number.

The Omnibus Objection is bare bones. It first asserts that the priority status claimed by the lienholders is not reflected on the Debtors' books and records or supported under the Bankruptcy Code. It goes on to state that the Debtors had conferred with counsel in the various states and confirmed that the mechanic' liens were junior in priority to the Term Loan Mortgages. In support of the Debtors' proposed reclassification of the claims of the mechanic's lienholders, the Omnibus Objections states that

[i]n all cases, the asserted mechanics' liens did not arise until after prior liens had been granted by the Debtors and perfected in 2018 on all affected assets by holders of [a] certain superpriority term loan facility (the "Superpriority Term Loan, or after the Court's approval of the Debtors' postpetition financing (the DIP Facility") in these chapter 11 cases on December 12, 2019, where applicable. As of the date hereof, the collateral value is insufficient to cover the Superpriority Term Loan and the DIP Facility in full. Because there is no value cushion remaining to attribute to the Mechanic's Lien Claims, such Claims, at best, are allowable only as general unsecured claims.

Id. at 6. In other words, in the Omnibus Objection the Debtors advanced two theories in support of their request for reclassification of the mechanic's lienholders' claims. First, they say that the Term Loan Mortgages granted in 2018 to the Lenders were recorded before the mechanic's liens were filed and thus have priority over any later-filed mechanic's liens. Second, Murray maintains that the mechanic's liens were recorded after the Court's approval of the Debtors' DIP lending facility and are therefore junior to the security interests granted to those Lenders who provided postpetition financing under that facility. Under either theory, the Debtors argue, there are insufficient assets to support both the mechanic's liens and the Lenders' senior liens (i.e., the Term Loan Mortgages and liens granted to secure the DIP lending facility). Thus, according to the Debtors, the mechanic's liens claims must be reclassified from secured to unsecured status.

Pillar responded to the Omnibus Objection by noting that the use of an omnibus objection is procedurally improper for two reasons. First, the claims do not fall within any of the categories permitted for omnibus claims objections under Rule 3007(d) of the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules").⁴ And second, the challenge to the mechanic's lienhholders' claims should have been brought as a lien avoidance action. Pillar Claim Obj. Resp., Doc. 1819 at 4, 6. Further, Pillar argues, no copy of the Credit Agreement or proof of its recording was provided, "nor is there any evidence that the loan facility constitutes a lien as to any specific property." Id. at 4. Pillar also asserts that:

4 Bankruptcy Rule 3007(d) reads:

Subject to subdivision (e), objections to more than one claim may be joined in an omnibus objection if all the claims were filed by the same entity, or the objections are based solely on the grounds that the claims should be disallowed, in whole or in part, because:

(1) they duplicate other claims;

(2) they have been filed in the wrong case;

(3) they have been amended by subsequently filed proofs of claim;

(4) they were not timely filed;

(5) they have been satisfied or released during the case in accordance with the Code, applicable rules, or a court order;

(6) they were presented in a form that does not comply with applicable rules, and the objection states that the objector is unable to determine the validity of the claim because of the noncompliance;

(7) they are interests, rather than claims; or

(8) they assert priority in an amount that exceeds the maximum amount under § 507 of the Code.

Fed. R. Bankr. P. 3007(d).

Pillar is correct that the grounds provided in the Omnibus Objection do not fall under any of these categories, nor were all mechanic's lien claims filed by the same entity. Nonetheless, on motion of the Debtors (Doc. 1346) the Court entered an order (Doc. 1457) approving the proposed omnibus claims objection procedures prior to the filing of the Omnibus Objection. These procedures permitted the Debtors to object to claims on a non-exclusive list of "Additional Grounds." Unfortunately, due to what now appears to have been an improvident decision by the Court to authorize the use this omnibus claim objection procedure, the mechanic's lien claim objection process in this case has been byzantine. For example, the Banks Declaration filed in connection with the Omnibus Objection (Doc. 2519) contains 2,659 pages of attachments, which are numbered but otherwise unidentified. The Omnibus Reply (Doc. 2068) contains 3,685 pages of exhibits, declarations, charts, and various other attachments, but again, nowhere in all this is there an index or table of contents of these documents, nor any explanation of why some or all of those 3,685 pages of submitted exhibits are relevant to the issues in dispute. The Pillar claim dispute alone has generated nearly 1,300 additional pages of exhibits, again with no corresponding indices. To date, there have been upwards of 70 numbered docket entries in connection with the mechanic's lien disputes, many with hundreds of pages of exhibits attached. In addition, numerous exhibits filed in connection with the mechanic's lien disputes are copies of old land records that are in some cases illegible, along with invoices, shipping notices, purchase orders and the like, attached with no explanation of their relevance nor any apparent organizational scheme. The dollar value of attorney/paraprofessional time spent by the parties in making and responding to these filings, and the judicial resources expended by the Court in trying to decipher and synthesize them, appears to be grossly disproportionate to the amounts in controversy, which, in Pillar's case is—in the aggregate—approximately $385,000. All of this demonstrates the patent inaccuracy of the Debtors' assertion that utilizing an omnibus claims process would "minimize the cost, confusion, and delay otherwise attendant to preparing and filing individual objections on a Claim-by-Claim basis." Omnibus Mot., Doc. 1346 at 5.

• "In some jurisdictions the Superpriority Term Loan is not of record at all and in other jurisdictions it does not describe the subject property to constitute a lien." Id. at 5.

• Its Ohio mechanic's lien was filed prepetition, and as a result, it is not subject to avoidance. Id. at 3.

• All its liens arose prior to the approval of the DIP Facility. Id.

Murray filed an Omnibus Reply to all the lien claimants' responses in which it maintains that the Term Loan Mortgages "are first in time and encumber the same real property purportedly encumbered by the Junior Mechanic's Liens." Omnibus Reply, Doc. 2068 at 10. The only specific reference to Pillar's claims in the Omnibus Reply is a chart reflecting Pillar's lien attachment dates in relation to the recording dates of the Term Loan Mortgages. Omnibus Reply, Doc. 2068-3 at 4-5.

The Plan Administrator followed the Omnibus Reply with its motion for summary judgment against Pillar. The Plan Administrator's summary judgment motion contains a somewhat different and more detailed argument for reclassification of the mechanic's lienholders claims (from secured to unsecured claims) than that made by the Debtors in the original Omnibus Objection—namely, the so-called bundle of sticks argument. The argument takes its name from a "common idiom describ[ing] property as a 'bundle of sticks'—a collection of individual rights which, in certain combinations, constitute property." See United States v. Craft, 535 U.S. 274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (citing Benjamin Cardozo, Paradoxes of Legal Science 129 (1928) (reprint 2000)). In advancing this argument in its Omnibus Reply against Pillar and several other mechanic's lienholders,⁵ the Plan Administrator begins by positing that (1) Murray either owned or leased the subsurface coal seams (also called subsurface estates) to which the Pillar's mechanic's liens attached, and (2) the Murray companies that granted the Lenders Term Loan Mortgages on the subsurface estates underlying the properties subject to Pillar's mechanic's liens thus had the right to use as much of the surface of a parcel of real property as necessary to reasonably mine the subsurface coal. See Plan Adm'r Mot. For Summ. J., Mem. in Support, Doc. 2536-2 at 3-6, 11. The Plan Administrator characterized this right to use the surface estate as one "stick" in the bundle of property rights held by the Debtors. Plan Adm'r MSJ Reply, Doc. 2634 at 4-5. With these initial premises as its starting point, the Plan Administrator went on to assert that:

5 The mechanic's lienholders whose secured claims the Plan Administrator sought to reclassify as unsecured based on its assertion of the bundle of sticks argument included Pillar; Anderson Excavating, LLC; Frontier-Kemper Constructors, Inc.; GMS Mine Repair & Maintenance; Laurel Aggregates of Delaware, LLC; Miller Contracting Services, Inc.; and Ohio-West Virginia Excavating Co.

• The Term Loan Mortgages on the subsurface estates extended to the surface estates of property the Debtors had the right to use but did not actually own. Id. at 16-19.

• Those Term Loan Mortgages, having been recorded prior to the filing of the mechanic's liens, were first in time. Plan Adm'r Mot. for Summ. J., Mem. in Support, Doc. 2536-2 at 15-17.

• Because there was insufficient collateral value to support the Term Loan Mortgages, related security agreements and mechanic's liens, the mechanic's lien claims must be reclassified as unsecured claims. Id.

As previously stated, Pillar filed its own motion for summary judgment, seeking judgment in its favor as to the priority of its mechanic's liens identified in Pillar's Claim Nos. 1105, 1106, 1107, 1112, 1114, 1117, 1123, and 1299.⁶ Pillar Summ. J. Mot., Doc. 2537 at 1. Each of the parties then responded to the other's summary judgment motion and filed replies in further support of their original motions. Pillar—and the other mechanic's lienholders whose secured status was being challenged by the Plan Administrator based on its bundle of sticks legal theory—countered that they are entitled to allowance of their secured claims based on the first-in-time status of their liens on the surface estates of the real property in question. While the parties agreed that the Term Loan Mortgages pre-dated the filing of the mechanic's liens, Pillar and the other mechanic's lienholders argued that the Debtors that granted Term Loan Mortgages to secure their obligations under the Credit Agreement held title only to the subsurface estates with the right to use the surface as necessary for mining purposes. They maintained, however, that the Debtors did not hold title to the surface estates and accordingly had no right to mortgage them.

6 Oddly, after moving for summary judgment as to the priority of all its mechanic's lien claims, including Claim No. 1112 (its Ohio mechanic's lien), Pillar's Statement of Material Facts and accompanying Memorandum of Law address only its West Virginia and Kentucky mechanic's liens; it is silent as to its Ohio mechanic's lien claim. Further, the Declaration of Brian Fike filed in support of the Pillar Motion also fails to mention the Ohio lien. See Pillar Summ. J. Mot., Statement of Material Facts, Doc. 2537-1, Mem. in Support, Doc. 2537-2, Decl. of Brian Fike, Doc. 2573-3.

Given that the Plan Administrator relied on the bundle of sticks argument in challenging the secured status of seven mechanic's lienholders, including Pillar, the Court decided to hold a status conference for the purpose of scheduling a joint oral argument on this common issue of law. This would enable counsel for the Plan Administrator and all the affected mechanic's lienholders to address the merits of the bundle of sticks legal theory in a single proceeding. Following this status conference, the Court requested that, in advance of oral argument, counsel for the Plan Administrator and the affected mechanic's lienholders file a joint stipulation "identifying the claims, related real property, and Mechanic's liens where the Plan Administrator has asserted the [b]undle of [s]ticks argument as part of the summary judgment briefing." See Joint Stip., Doc. 2850 at 2.

By the Joint Stipulation, the parties agreed that the bundle of sticks argument applied to Pillar's Claim Nos. 1106, 1107, 1114, 1117 and 1123—that is, the mechanic's lien claims filed against the West Virginia Coal Operators. Joint Stip., Doc. 2850 at 6-7. The Joint Stipulation did not address Pillar's Claim No. 1112 (Ohio) or Claim Nos. 1105 and 1299 (Kentucky), although the bundle of sticks argument was made as to the West Virginia, Ohio and Kentucky claims in the Plan Administrator's summary judgment motion (Doc. 2536-2 at 3-6), and again as to all those claims in the Plan Administrator's MSJ Reply (Doc. 2634 at 16-20).

As discussed below, after it heard oral argument and took the matter under advisement, the Court rejected the Plan Administrator's bundle of sticks theory for the reasons stated in In re Murray Energy Holdings Co., 638 B.R. 588 (Bankr. S.D. Ohio 2022).

IV. Legal Analysis

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure, made applicable in this matter by Rule 7056 of the Federal Rules of Bankruptcy Procedure, provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts." Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (cleaned up). "A dispute is 'genuine' only if based on evidence upon which a reasonable [finder of fact] could return a [judgment] in favor of the non-moving party." Gallagher v. C. H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009). And a "factual dispute concerns a 'material' fact only if its resolution might affect the outcome of the suit under the governing substantive law." Id.

When parties file cross motions for summary judgment, "[e]ach party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law." Fed. Energy Regul. Comm'n v. Coaltrain Energy, L.P., 501 F. Supp. 3d 503, 522 (S. D. Ohio 2020). "The fact that one party fails to satisfy that burden on his or her own Rule 56 motion does not automatically indicate that the opposing party or parties has satisfied the burden and should be granted summary judgment on the other motion." Id.

Here, the Plan Administrator has failed to show that it is entitled to judgment as a matter of law for one of two reasons. First, the Plan Administrator asks the Court to reclassify certain of Pillar's secured claims solely based on its bundle of sticks theory. But Pillar is entitled to summary judgment on those secured claims because the Court has previously found the Plan Administrator's legal argument to be unmeritorious. See Murray Energy, 638 B.R. at 594-600. Second, the Plan Administrator seeks to reclassify a different subset of Pillar's secured claims on the ground that there are one or more first-in-time Term Loan Mortgages encumbering the surface estates to which Pillar's mechanic's liens attach. But as to those secured claims, there remain genuine issues of material fact as to whether Pillar's mechanic's liens attached to the same property that the Plan Administrator says is subject to an earlier-recorded Term Loan Mortgage. Thus, for the reasons explained below, entry of summary judgment in favor of Pillar is appropriate as to some, but not all, of its secured claims.

B. Plan Treatment of Mechanic's Lienholders' Secured Claims

The Plan's disparate treatment of secured and unsecured claims—including the secured claims asserted by Pillar and the other mechanic's lienholders—provides the legal backdrop for the parties' dispute. While the Plan is a joint Chapter 11 plan, it "constitutes a separate plan for each Debtor," Plan at 6, and "the classification of Claims and Interests set forth in the Plan [applies] separately to each of the Debtors." Disclosure Statement for the Debtors' First Am. Joint Plan Pursuant to Chapter 11 of the Bankruptcy Code ("Disclosure Statement") (Doc. 1344-1) at 15. The claims of mechanic's lienholders were classified under the Plan as "Class 2 Other Secured Claims." Plan at 29, 30. Class 2 claimants, unless they agreed to less favorable treatment, were to receive, on the effective date of the Plan, payment of their allowed secured claims in full in cash or such other treatment as would render their claims unimpaired. Id. at 30.

More than a dozen mechanic's lienholders objected to confirmation of the Plan. They argued that their liens were being released, and then possibly reinstated, which they said could allow the attachment of intervening liens. The mechanic's lienholders also argued that the Plan's injunction eliminated their in personam rights against the Debtors. The Debtors resolved most of these objections by including language in the order confirming the Plan ("Confirmation Order") (Doc. 2135) that, in essence, provided that if a mechanic's lienholder's claim were allowed, the lien or liens would remain on the property to which they attached, notwithstanding the transfer of that property to the purchaser of substantially all the Debtors' assets. This provision also ensured that the mechanic's lienholder's claims would retain the same priority they held before the entry of the Confirmation Order.⁷

7 The full text of this provision in the Confirmation Order reads as follows:

Notwithstanding anything to the contrary in this Confirmation Order, the Plan, or the Stalking Horse APA, until a Disputed Other Secured Claim is Allowed or disallowed by Final Order or an agreement of the claimant with the Debtors (prior to the Effective Date) or the Stalking Horse Bidder (after the Effective Date), the lien or liens on property securing such Disputed Other Secured Claim shall remain on such property in the same priority that such lien or liens held prior to entry of the Confirmation Order. Notwithstanding the foregoing, the holder of a Disputed Other Secured Claim may not seek, and shall not have any rights, to enforce such lien or liens unless and until the corresponding Disputed Other Secured Claim is Allowed in an amount greater than zero. To the extent that an Other Secured Claim is Allowed and the Debtors (with the consent of the Stalking Horse Bidder) or the Plan Administrator, as applicable, elect for the holder of such Allowed Other Secured Claim to receive the treatment set forth in section III.B.2(b)(ii) of the Plan, (a) the lien or liens on property securing such Allowed Other Secured Claim shall remain on such property in the same priority that such lien or liens held prior to entry of the Confirmation Order, as established by order of the Bankruptcy Court (including an agreed order by and among the Debtors (with the consent of the Stalking Horse Bidder) or the Plan Administrator, as applicable, and the holder of such Allowed Other Secured Claim), and, to the extent the property subject to such liens constitutes an Acquired Asset, such liens shall constitute Permitted Encumbrances under the Stalking Horse APA and (b) notwithstanding anything to the contrary in this Confirmation Order or the Plan, any in personam rights that such Allowed Other Secured Claim may entitle such holder to have against any applicable Debtors shall be preserved and not released, discharged, or extinguished, and the holder of any such Claim shall not be enjoined from exercising any such rights against any applicable Debtors or the Wind-Down Trust. If a Disputed Other Secured Claim is either disallowed, Allowed in an amount of zero, or reclassified as a General Unsecured Claim by a Final Order or an agreement of the claimant with the Debtors (with the consent of the Stalking Horse Bidder), the lien or liens on property securing such claim shall be deemed released and extinguished. Nothing herein shall prejudice any party's rights with respect to the Debtors' First Omnibus Objection to Certain Mechanic's Lien Claims [Docket No. 1749] or any of the responses, replies, objections, or oppositions filed or other litigation related thereto.

Confirmation Order at 55-56.

The upshot is that, under the terms of the Plan and Confirmation Order, if the claims of the holders of mechanic's liens are found to be unsecured, they will be reclassified as Class 9 general unsecured claims and receive, at best, a minimal recovery. See Suppl. Disclosure Statement for Debtors' Second Am. Plan (Doc. 1934-2) at 12 (estimating the recovery on general unsecured claims to be 0-1%). But if the claims are allowed as secured claims, they will be treated as Class 2 Other Secured Claims and will be satisfied in full in one of two ways: the mechanic's lienholders will either (1) receive satisfaction of their claims through payment in full in cash; or (2) they will have the same right to foreclose the liens against the properties securing their claims as existed on the Petition Date. See Plan at 30. Thus, whether Pillar's mechanic's lien claims are classified as secured (as filed) or are reclassified as unsecured (as Murray requests) will have a significant impact on both Pillar's recovery and the Murray estate's liability on those claims.

With those governing legal principles in mind, the Court will address—on a state-by-state basis—each of Pillar's mechanic's lien claims. C. West Virginia - Claim Nos. 1106, 1107, 1114, 1117 and 1123

As stated above, Pillar's claims against the West Virginia Coal Operators are based on mechanic's liens filed and recorded in Harrison, Marshall, Monongalia and Marion Counties, West Virginia, in November and December 2019.⁸ The Plan Administrator's opposition to the allowance of those claims relies on four Term Loan Mortgages granted to the Lenders by one of the Debtors, Consolidation Coal Company, in July 2018. Those mortgages were recorded in the same four counties prior to the recording of the mechanic's liens. See Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 ¶ 5; Mem. in Support, Doc. 2536-2 at 2, 12-15. The Plan Administrator argues that the Term Loan Mortgages, which encumber Consolidation Coal Company's coal rights, associated mining rights, and surface use in those counties (including its interests in land, fixtures, personalty, and improvements on, in or under the land),⁹ take priority over Pillar's mechanic's liens. The Plan Administrator makes this argument even though Pillar filed its liens against the individual West Virginia Coal Operators and not against Consolidation Coal Company, and even though Consolidation Coal Company asserted only that it owned the coal tracts and granted mortgages in the coal seams and associated mining rights and surface use in the land described in Pillar's liens. See Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 at 11-12, 14-16; Mem. in Support, Doc. 2536-2 at 5, 12-15.

8 A Notice of Lien Perfection Pursuant to 11 U.S.C. § 546(b) ("Lien Notice") was filed by Pillar on March 30, 2020. Doc. 1104. The Lien Notice includes as attachments all the notices of lien filed in West Virginia, Ohio and Kentucky by Pillar against Murray companies.

9 See Term Loan Mortgages' descriptions of "Mortgaged Property." Omnibus Reply, Doc. 2068-19 at 4-6 (Harrison County); Doc. 2068-20 at 4-6 (Marion County); Doc. 2068-21 at 4-6 (Marshall County); Doc. 2068-24 at 5-7 (Monongalia County).

By contrast, Pillar's West Virginia claims each assert a lien against property owned by an individual West Virginia Coal Operator¹⁰ for work performed at or material supplied to that location. The property covered by each lien is set forth as that company's "interest in and to those certain mining complexes, warehouses, facilities, buildings, structures, mines, and improvements located upon the property commonly referred to as" whichever mine is referenced, e.g., the Marion County Mine, the Ohio County Mine, the Harrison County Mine, the Monongalia County Mine, or the Marshall County Mine. See Claim Nos. 1106, 1107, 1114, 1117 and 1123.¹¹ Claim No. 1123, filed against the Marion County Coal Company, also asserts a lien against the "Marion County Preparation Plant" in addition to the "mining complexes, warehouses, facilities, buildings, structures, mines, and improvements located upon" the mine property. Claim No. 1123 at 5.

10 See Lien Notice, Doc. 1104-1 (The Marion County Coal Company); Doc. 1104-2 (The Ohio County Coal Company); Doc. 1104-4 (The Harrison County Coal Company); Doc. 1104-7 (The Monongalia County Coal Company); and Doc. 1104-8 (The Marshall County Coal Company).

11 The proofs of claim may be found at http://cases.ra.kroll.com/murray energy/Home-ClaimInfo. They are also attached as Exhibits C, D, F, G and H to the Memorandum in Support of the Plan Administrator's Motion.

The Plan Administrator argues that because Consolidation Coal Company had the exclusive right to mine coal at these various mines, the Term Loan Mortgages it granted to the Lenders "attaches to both the surface and coal tracts" within those mines. Plan Adm'r Summ. J. Mot., Mem. In Support, Doc. 2536-2 at 15. In other words, the Plan Administrator relies on the bundle of sticks argument described above, asserting that it may encumber both the surface and subsurface rights in property when it only owns one "stick," i.e., the subsurface or mineral rights. Plan Adm'r MSJ Resp., Doc. 2593 at 22.

Indeed, the parties stipulated that the Plan Administrator's bundle of sticks argument applied to each of Pillar's secured claims based on its West Virginia mechanic's liens. Specifically, the Joint Stipulation states:

11. Regarding Pillar's Claim No. 1106:

a. The Bundle of Sticks applies to Pillar's lien on the Harrison County Mine in Harrison County, West Virginia.

b. The lien on the Harrison County Mine in Harrison County, West Virginia comprises the entire security for Pillar's Claim No. 1106.

12. Regarding Pillar's Claim No. 1107:

a. The Bundle of Sticks applies to Pillar's lien on the Marshall County Mine in Marshall County, West Virginia.

b. The lien on the Marshall County Mine in Marshall County, West Virginia comprises the entire security for Pillar's Claim No. 1107.

13. Regarding Pillar's Claim No. 1114:

a. The Bundle of Sticks applies to Pillar's lien on the Ohio County Mine in Marshall County, West Virginia.

b. The lien on the Ohio County Mine in Marshall County, West Virginia comprises the entire security for Pillar's Claim No. 1114.

14. Regarding Pillar's Claim No. 1117

a. The Bundle of Sticks applies to Pillar's lien on the Monongalia County Mine in Monongalia County, West Virginia.

b. The lien on the Monongalia County Mine in Monongalia County, West Virginia comprises the entire security for Pillar's Claim No. 1117.

15. Regarding Pillar's Claim No. 1123:

a. The Bundle of Sticks applies to Pillar's lien on the Marion County Mine in Marion County, West Virginia.

b. The lien on the Marion County Mine in Marion County, West Virginia comprises the entire security for Pillar's Claim No. 1123.

Joint Stip., Doc. 2850 at 6-7.

The Joint Stipulation is binding on the Plan Administrator and Pillar. See Christian Legal Soc'y v. Martinez, 561 U.S. 661, 677, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010) (noting that the Supreme Court has "refused to consider a party's argument that contradicted a joint stipulation . . . [because] . . . factual stipulations are formal concessions . . . that have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact, [making] a judicial admission . . . conclusive in the case") (cleaned up). See also 303 Creative LLC v. Elenis, 600 U.S. 570, 143 S. Ct. 2298, 2316, 216 L.Ed.2d 1131 (2023) (rejecting argument that was "difficult to square with the parties' stipulations"). And by stipulating that the "Bundle of Sticks applies," the Plan Administrator essentially concedes that Pillar is entitled to summary judgment on its secured claims that are based on its West Virginia mechanic's liens. Why? Because as stated above, this Court has already considered and rejected the Plan Administrator's bundle of sticks legal argument. Indeed, in that opinion, the Court found that the Plan Administrator's bundle of sticks legal argument was untenable, characterizing it as "misconceived." Murray Energy Holdings, 638 B.R. at 594. The Court so held because

[t]he right to mortgage the surface estate is not one of the five rights in the bundle of sticks granted to the owner of a severed mineral estate. The right in the surface estate that the owner of a severed mineral estate holds is the right to develop the surface, including the right of ingress and egress. But [the Plan Administrator] is trying to bootstrap the right to develop the property (including the rights of ingress and egress) into a broader entitlement—to mortgage the surface—that is not one of the bundle of rights held by the owner of a severed mineral estate.

Id. at 595. Based on this reasoning, this Court held "that an entity that owns the subsurface estate with the right to use the surface for mining purposes has no right to mortgage the surface estate." Id. at 600. The Court accordingly denied the Plan Administrator's summary judgment motions "to the extent that they seek to reclassify claims as unsecured based on the bundle of sticks argument." Id.

Given the Court's decision in Murray Energy Holdings, the result must be the same here. Pillar accordingly is entitled to summary judgment under Bankruptcy Rule 7056 as to Claim Nos. 1106, 1107, 1114, 1117 and 1123. Those claims may not be reclassified as general, unsecured claims, but shall retain their priority over the interests of the Lenders, secured to the extent of the value Pillar obtains upon the exercise of its foreclosure remedies.

D. Ohio - Claim No. 1112

Pillar bases Claim No. 1112 on its Affidavit for Mechanics Lien filed in Belmont County, Ohio on September 30, 2019. Lien Notice, Doc. 1104-3 at 1. Pillar's Affidavit for Mechanics Lien asserts a "lien on the land, building or leasehold, of which American Energy Corporation is/are or was/were the owner(s), part owner(s), or lessee(s), as the case may be, which property is described as" Parcel No. 46-00209.000, with the address of the Century Mine, 43521 Mayhugh Hill Road, Beallsville, Ohio 43716. Id.

The Plan Administrator relies on a Term Loan Mortgage granted to the Lenders on July 12, 2018, by Consolidated Land Company ("Consolidated Land"), a Murray debtor, for its argument that Pillar's mechanic's lien is junior in priority. This Term Loan Mortgage was recorded in the Belmont County, Ohio Recorder's office in Book 778, Page 742 and is found at Attachment 7 to the Banks Declaration. Doc. 2519-7. The interests covered by the Term Loan Mortgage include land, fixtures and personalty. Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 at 3-5. According to the Plan Administrator, "[n]on-debtor American Century Transport LLC owned the portion of the surface known as the 'Century Prep Plant' within the land described as 43521 Mayhugh Hill Road, Beallsville, Ohio 43716 and Tax Parcel ID 46-00209.00, at all relevant times," while "Consolidated Land owned the subsurface interest [in the same parcel] . . . , "including the coal and associated mining rights," and "[American Energy] used the surface and coal tracts [in that parcel] and the Century Mine[.]" Id. at 12-13.

At the same time, the Debtors said in their Responses to Pillar Innovations, LLC's First Set of Interrogatories and Requests for Admissions that:

Pillar recorded a mechanic's lien in Belmont County, Ohio against [American

Energy's] interest in property described as Parcel Identification No. 46-00209 on July 9, 2019. [American Energy] owned or controlled all right, title or dominant interest[¹²] in 46-00209 at all relevant times. Debtors refer Claimant to [American Energy's] recorded Mortgage in Belmont County, Ohio at Book 789, PG 274, 368 (page 95 of the mortgage document), which references 46-00209 as Mortgaged Property. Debtor recorded this Mortgage on August 28, 2018.

Pillar Summ. J. Motion, Ex. 4, Doc. 2537-4 at 6.

12 When the mineral interests of real property have been severed from the surface estate, the surface owner is said to have the servient estate and the mineral rights owner holds the dominant estate. See XTO Energy, Inc. v. Armenta, 144 N.M. 212, 185 P.3d 383, 386 (N.M. Ct. App 2008); Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 135 (N.D. 1979).

The summary judgment record, however, does not establish that American Energy owned or controlled the right, title or dominant interest in Parcel 46-00209 as stated by the Plan Administrator, or if it did, that it mortgaged its interest in that parcel to the Lenders. And that is because, rather than including Parcel 46-00209 in its listing of "Mortgaged Property," the August 28, 2018 Term Loan Mortgage,¹³ lists Parcel 46-00209.00 among "certain real property defined as the 'Released Real Property' below that is excluded from the real property intended to be encumbered by this instrument. All other real property described herein is intended to be encumbered by this instrument." Omnibus Reply, Attach. 7, Doc. 2068-8 at 93, 96 (emphasis added).

13 See Fourth Modification of Open-End Mortgage (First Lien), Security Agreement, Assignment of Rents and Leases and Fixture Filing By and Between American Energy Corporation, as Mortgagor and U.S. Bank National Association, as collateral trustee for the Secured Parties and as Mortgagee") (appended as Attachment 7 to the Omnibus Reply (Doc. 2068-8)). This mortgage is recorded at Vol. 789, page 274, and is the same mortgage referred to above in the Plan Adm'r Resp. to Pillar's First Set of Interrogatories. See Pillar Summ. J. Mot., Doc. 2537-4, Ex. B at 6.

Nor is it clear that Consolidated Land granted the Lenders a mortgage on any subsurface rights it may have had in Parcel 46-00209. The Open-End Mortgage (Superpriority), Security Agreement, Assignment of Rents and Leases and Fixture Filing (Banks Decl., Attach. 7, Doc. 2519-7 at 2) by which Consolidated Land granted a Term Loan Mortgage to the Lenders contains an Exhibit A with legal descriptions of the property subject to the mortgage. Id. at 26-87. But Exhibit A does not contain any reference to Parcel 46-00209. Page 26 of Exhibit A lists two brief descriptions of limited warranty deeds granting Consolidated Land coal and mining rights to the Pittsburgh No. 8 seam in Belmont County, one limited warranty deed granting Consolidated Land approximately 54 acres in Belmont County, and one limited warranty deed granting Consolidated Land coal rights in property in Monroe County. The second through twenty-fifth pages of Exhibit A then list property located in Monroe County, Ohio rather than Belmont County. Id. at 27-50. The next section of Exhibit A is a collection of quitclaim deeds, all of which (with three exceptions) contain parcel numbers other than Parcel 46-00209. The three remaining quitclaim deeds left the parcel number line blank. Id. at 52-80. The final section of Exhibit A contains descriptions of leasehold interests, some identified by land coordinates and some by instrument number, but none by parcel number. Id. at 81-87. Page 51 of Exhibit A contains a metes-and-bounds description of a property in Smith Township, Belmont County.

Thus, the Plan Administrator's own documentation is unclear and inconsistent and fails to establish Consolidated Land's ownership of the interests in property subject to the Term Loan Mortgage.¹⁴ But whether the subsurface estate and right to use the surface of Parcel 49-00209 is (or was at the relevant time) owned by Debtor American Energy or by Consolidated Land, and subject to mortgage granted by both or either, the Court has already ruled that a mortgage on the subsurface interests and the concomitant right to use the surface does not grant the holder of those interests a right to encumber the surface estate. Murray Energy Holdings, 638 B.R. at 600. For this reason, the Court concludes that the surface estate was not encumbered by the Term Loan Mortgages granted by Consolidated Land and American Energy.

14 An additional complication of this aspect of the Pillar lien dispute is the treatment of the Ohio mechanic's lien claim in the parties' papers. The Joint Stipulation relating to the bundle of sticks argument did not include Pillar's Ohio mechanic's lien claim. And while Pillar's introductory paragraph in its motion for summary judgment sets forth a request "for summary judgment in its favor as to the priority of Pillar's mechanic's liens identified in Pillar's Proof of Claim . . . 1112," the Pillar Summary Judgment Motion itself does not actually address Pillar's Ohio mechanic's lien. The Plan Administrator's MSJ Response likewise does not address Claim No. 1112 and in fact refers to only seven claims filed by Pillar, leaving out the Ohio claim altogether. Further, the Pillar MSJ Reply does not refer to its Ohio mechanic's lien. Yet, both the Plan Administrator's Motion for Summary Judgment and MSJ Reply assert that the bundle of sticks legal argument applies to the Pillar mechanic's lien that is the subject of Claim No. 1112. Plan Adm'r Summ. J. Mot., Mem. in Supp., Doc. 2536-2 at 15; Plan Adm'r MSJ Reply, Doc. 2634 at 22.

But the parties also have raised the issue of whether American Energy or American Century Transport LLC ("American Century") owns the surface estate of Parcel 46-00209. This matters because Pillar maintains that its mechanic's lien encumbers land owned by American Energy. Notice of Lien Perfection, Doc. 1104-3 at 1. According to the Plan Administrator, "[n]on-debtor [American Century] owned the portion of the surface known as the "Century Prep Plant" within the land described as 43521 Mayhugh Hill Road, Beallsville, Ohio 43716 and Tax Parcel Identification No. 46-00209.00 at all relevant times," and American Energy merely "used the surface and the coal tracts" at the Mayhugh Hill Road Property. Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 ¶¶ 24.a, 24.b.

For its part, Pillar denied that American Century owned the Mayhugh Hill Road Property at the relevant times, stating that the owner was instead American Energy:

Pillar denies the assertions in Paragraph 24, subpart (a) to the extent that the Plan Administrator claims that only [American Century] owned the land described as 43521 Mayhugh Hill Road, Beallsville, Ohio 43716 and Tax Parcel Identification No. 46-00209.00. [American Energy] owned the land identified by Tax Identification Parcel No: 46-00209.000 from January 11, 2016 until February 11, 2021, as evidenced by a search of the Belmont County Auditor's website of Tax Parcel Identification No. 46-00209.000. (See Supplemental Declaration of Brian Fike executed March 8, 2021, paragraph 7 filed contemporaneously herewith). In addition, at the time Pillar recorded its mechanic's lien, [American Energy] owned the land identified by Tax Parcel Identification No. 46-00209.000, as evidenced by a deed recorded in Book Volume 705, Page 556 of the Belmont County, Ohio Recorder's Office on February 22, 1995. (See Supplemental

Declaration of Brian Fike executed March 8, 2021, paragraph 8 filed contemporaneously herewith).

Pillar MSJ Resp., Doc. 2585-1 at 11. Consistent with Pillar's position, and as noted above, the Plan Administrator stated in response to one of Pillar's interrogatories that American Energy "owned or controlled all right, title or dominant interest in 46-00209 at all relevant times." Pillar Summ. J. Mot., Doc. 2537-4 at 6.

To the extent Pillar's lien against American Energy purports to attach to the surface estate, i.e., land, the Court must determine whether American Energy in fact owns the surface estate, as Pillar asserts, or whether non-Debtor American Century owns the surface estate, as the Plan Administrator argues. If it is the latter, then Pillar's lien on the land would be unenforceable because there is no evidence in the summary judgment record establishing that Pillar had a contract with American Century or did any work for it. See Anderson Excavating, LLC v. Weiss World L.P., Civil Action No. 22-cv-0512, 638 F.Supp.3d 525, 534 (W.D. Pa. Nov. 2, 2022) ("Where the surface estate and the subsurface estate have been severed, a contractor . . . retained by the subsurface estate owner may only lien that owner's interest. It cannot lien the separate property of the surface estate owner.").

In sum, because there is a genuine issue of material fact raised as to the ownership of the surface estate against which Pillar filed its mechanic's lien, the Court is unable to grant summary judgment to either party as to Claim No. 1112. The Court will schedule a status conference at which counsel for Pillar and the Plan Administrator should be prepared to address this and any other remaining disputes between the parties that remain unadjudicated after the issuance of this opinion due to the existence of genuine issues of material fact.

E. Kentucky - Claim Nos. 1105 and 1299

1. The Mantazas Road and River Haul Road Term Loan Mortgages

In August 2018, to secure the Debtors' repayment obligations under the Credit Agreement, the Lenders filed and recorded Term Loan Mortgages in Ohio County, Kentucky and Muhlenberg County, Kentucky. Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 at 3. Each Term Loan Mortgage was denominated as a "Specified Superpriority Fee and Leasehold Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing." Omnibus Reply, Supp. Lewandowski Decl., Doc. 2068-5, Attach. 4 and Doc. 2068-6, Attach. 5. The Court will refer to these mortgages as the "Mantazas Road Mortgage" and the "River Haul Road Mortgage," respectively.

2. Pillar's Kentucky Mechanic's Liens

a. Claim No. 1105

Pillar filed two claims relating to work done for two Murray companies in Kentucky for which it was not paid. The first, Claim No. 1105,¹⁵ is based in part on a mechanic's lien filed against WKY-Resources as owner, and WKY-Coal as lessee. The statement of mechanic's lien provides that "Pillar Innovations, LLC is claiming and has filed and perfected a mechanics' and materialman's lien against the interests of the Owner, [WKY-Resources], and a lien against the interests of the Lessee, [WKY-Coal], in and to the real property/mine and any and all leasehold interests and interests of the Lessee associated therewith, located at 175 Mantazas Road,¹⁶ Central City, Muhlenberg County, Kentucky, all as more particularly described in that General Warranty Deed of record in Deed Book 425, Page 117, in the office of the Ohio County Clerk[.]" Lien Notice, Doc. 1104-6 at 1 (emphasis added).

15 Claim No. 1105 has two components: a secured claim in the amount of $32,806.83 and an unsecured claim in the amount of $850.73. See Plan Adm'r Summ. J. Mot., Doc. 2536-4, Ex. B.

16 This location is sometimes identified in the documents as Mantazas Road; other times it is called Matanzas Road. These are presumably the same property.

b. Claim No. 1299

Pillar's second claim, Claim No. 1299,¹⁷ is based in part on a mechanic's lien filed against WKY-Resources as owner, and Muhlenberg Coal as lessee. The amended and restated mechanic's and materialman's lien states that "Pillar Innovations, LLC, is claiming and has filed and perfected a mechanics' and materialman's lien against the interests of Owner, [WKY-Resources], and a lien against the interests of the Lessee, [Muhlenberg Coal], in and to the real property/mine and any and all leasehold interests and interests of the Lessee associated therewith, located at 2800 River Haul Road, Central City, Muhlenberg County, Kentucky, all as more particularly described in that General Warranty Deed of record in Deed Book 588, Page 1559, in the office of the Muhlenberg County Clerk." Lien Notice, Doc. 1104-5 at 1-2 (emphasis added).

17 Claim No. 1299 has two components: a secured claim in the amount of $7,953.09, and an unsecured claim in the amount of $6,735.12. See Plan Admn'r Summ. J. Mot., Doc. 2536-11, Ex. I.

3. The Plan Administrator's Argument

The Plan Administrator asserts that:

• Pillar's Kentucky liens attach to the same real property encumbered by the Mantazas Road and River Haul Road Term Loan Mortgages and those mortgages were first in time. Plan Adm'r. Summ. J. Mot., Mem. in Support, Doc. 2536-2 at 2.

• "[WKY-Resources] owned the coal rights within the land described at 175 Mantazas Rd., Central City, KY and 2800 River Haul Rd., Central City, Kentucky, respectively." Id. at 5.

• "The two (2) [WKY-Resources's Term Loan] Mortgages relevant to this motion for summary judgment contain language expressly granting a lien and security interest in [WKY-Resources's] real and personal property located at the Genesis Mine (including 175 Mantazas Rd., Central City, KY) and the Pride Mine (including 2800 River Haul Rd., Central City, KY) against which Pillar also asserted its mechanic's liens." Id. at 9.

• The WKY-Resources's Term Loan Mortgages encumber the real property at both addresses as well as "hundreds of other parcels" at the Genesis and Pride Mines. Id. at 10.

• In Claim No. 1105, Pillar recorded a mechanic's lien on WKY-Resources's and the WKY-Coal's "interest in the land described at 175 Mantazas Road, Central City, KY, which is the address for the portal to the Genesis Mine, and purportedly the Genesis Mine in its entirety." Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 at 10.

• In Claim No. 1299, Pillar recorded a mechanic's lien against WKY-Resources's and The Muhlenberg Coal's

"interests in the land described as 2800 River Haul Rd., Central City, KY, which is the portal to the Pride Mine, and purportedly the Pride Mine in its entirety[.]" Id. at 16.

• "Because [WKY-Resources] had the exclusive right to mine coal at the Genesis Mine and Pride Mine, it also had the right to possess the surface so far as it was necessary to carry on its respective mining operations at the Genesis Mine and Pride Mine. Thus, the [WKY-Resources Term Loan] Mortgages attach to both the surface and coal tracts within the Genesis Mine and Pride Mine." Plan Adm'r Summ. J. Mot., Mem. in Supp., Doc. 2536-2 at 11 (internal citations omitted).

4. The Plan Administrator's Summary Judgment Evidence Does Not Establish That the Properties Encumbered by Pillar's Mechanic's Liens Are Subject to First-in-Time Term Loan Mortgages Held by the Lenders.

a. Flaws in the Plan Administrator's Argument

Having reviewed the documents in the summary judgment record, the Court is unable to determine whether—as the Plan Administrator argues—the Kentucky properties encumbered by Pillar's mechanic's liens are subject to the first-in-time Mantazas and River Haul Road Mortgages. The reasons for this are two-fold: (1) the unclear and seemingly obfuscatory language the Plan Administrator uses in its Statement of Material Facts to describe the interests held by WKY-Resources and WKY-Coal in the Kentucky properties encumbered by Pillar's mechanic's liens; and (2) the lack of clarity in the mortgage documents the Plan Administrator relies upon to support its contention that the properties encumbered by Pillar's liens are subject to the Mantazas Road and River Haul Road Mortgages.

b. Lack of Clarity in the Plan Administrator's Statement of Material Facts

The Plan Administrator's description of the interests held by WKY-Resources, WKY-Coal and Muhlenberg Coal in the property encumbered by Pillar's mechanic's liens is not a model of precision—perhaps by design. For example, as for Claim No. 1105, which asserts a mechanic's lien against WKY-Resources's and WKY-Coal's interests in property at 175 Mantazas Road, Central City, Kentucky, the Plan Administrator states:

a. [WKY-Coal] used the surface and coal tracts in the land described as the Genesis Mine, including 175 Mantazas Road, Central City, Kentucky, at all relevant times.

b. WKY-Resources owned the Debtors' interest in the surface and coal tracts in the land described as the Genesis Mine, including 175 Mantazas Road, Central City, Kentucky, at all relevant times.

Plan Adm'r Summ. J. Mot., Statement of Material Facts, Doc. 2536-1 at 10 (emphasis added).

The Plan Administrator uses the same language in referring to Claim No. 1299, in which Pillar asserts a mechanic's lien against WKY-Resources and Muhlenberg Coal's interests in property at 2800 River Haul Road, Central City, Kentucky:

a. [WKY-Resources] owned the Debtors' interests in the surface and coal tracts at the Pride Mine, including the land described at 2800 River Haul Road, Central City, Kentucky, at all relevant times.

b. [Muhlenberg Coal] used the surface at the Pride Mine, including the land

described at 2800 River Haul Road, Central City, Kentucky, at all relevant times.

Id. at 16 (emphasis added).

WKY-Resources may well have owned the subsurface coal tracts for both the Genesis and Pride Mines and had the right to encumber those tracts and to use the surface to conduct its mining operations. But this language in the Statement of Material Facts does not make it clear that WKY-Resources owned the surface estates upon which Pillar asserts its mechanic's liens. There is a material difference between fee ownership of the surface and "own[ing] the Debtor's interests in the surface and coal tracts"—particularly when the Debtor's interests may have been solely the right to use the surface to conduct its mining operations. Again, the Court has previously rejected the Plan Administrator's bundle of sticks argument, ruling that the Debtors have no right to mortgage surface estates they did not own. Murray Energy Holdings, 638 B.R. at 600. If WKY-Resources did not own a fee interest in the surface estates, then it may not assert that the mortgage it granted on its subsurface interests takes priority over Pillar's mechanic's liens.

c. Lack of Clarity in the Mortgage Documents the Plan Administrator Relies Upon

The Plan Administrator's argument fails for another reason. The exhibits attached to the Mantazas Road and River Haul Road Mortgages describing the property subject to those mortgages are unclear and do not show—as the Plan Administrator argues—that those mortgages cover the same property encumbered by Pillar's mechanic's liens.

The Plan Administrator supplied a chart identifying the property, mortgage recording information and lien attachment and mortgage recording dates for all of the disputed mechanic's liens. Omnibus Reply, Doc. 2068-3 at 1-5. The chart says the Mantazas Road Mortgage is recorded in Book 549 at page 476, and the River Haul Road Mortgage is recorded in Book 703 at page 814. Id. at 4-5. Both mortgages grant liens and security interests on "Mortgaged Property" to the Lenders to secure the Debtors' repayment obligations under the Credit Agreement. Omnibus Reply, Doc. 2068-5 at 7, Doc. 2068-6 at 7. "Mortgaged Property" is defined in both as the mortgagor's right, title and interest in and to any and all present estates or interest of Mortgagor in the real property described in an attached Exhibit A, together with land, mortgaged leases, leased premises, improvements, fixtures, permits, personalty, deposit accounts, subleases, rents, property agreements, tax refunds, proceeds insurance and condemnation awards. Omn. Reply, Doc. 2068-5 at 3-5, Doc. 2068-6 at 4-6.

(i) Mantazas Road Mortgage

The Mantazas Road Mortgage granted the Lenders a mortgage on all of WKY-Resources's right, title and interest in real property and leases described in Exhibit A. That exhibit describes "Owned Property" as:

I. All of [WKY-Resources's] right, title and interest in and to the following surface and/or coal properties:

(a) Certain property acquired from Armstrong Coal Company, Inc. - Dock area, Matanzas Waste Site Area, Genesis (formerly Kronos) Area and Lewis Creek Area and described as follows:

Doc. 2068-6 at 27.

There follows a chart listing a number of transfers of interests in various tracts from individuals and companies to the Armstrong Coal Company, Inc. between March 2008 and April 2017. Each entry on the list contains a very brief comment, e.g., "Pennington heirs interest in tracts;" "Hammons-Lewis Creek - A certain tract or parcel near Ceralvo Ohio Co KY;" "South of Dock Property in Ohio County, KY," etc. Id. at 27-29. Only four of the entries contain the word "Mantazas" or "Matanzas": The transfers numbered 22 and 53 refer to "Matanzas Waste Site," and those numbered 26 and 27 refer to "A certain tract [of land] 1.8 miles SE of Matanzas [KY &] 2.4 miles NW of."¹⁸ Id. at 27, 28.

18 The bracketed sections reflect minor deviations from one description to the other. The rest of the phrase following "NW of" is missing from both descriptions.

Section I of "Owned Property" goes on to state:

(a) All of the aforesaid source deeds and any exhibits and schedules thereto are hereby incorporated herein by reference and made a part hereof, together with all appurtenances thereunto belonging or in any wise appertaining thereto, and being subject to all known exceptions and prior conveyances. Attached hereto are descriptions of property contained in those certain source deeds from Cyprus Creek Land Company described at Item #'s 9, 22 & 33 above.

AND BEING a portion of the same property conveyed by Armstrong Coal Company, Inc., a Delaware corporation, to [WKY-Resources], a Delaware limited liability company, by deed dated February 20, 2018, recorded in Deed Book 425, at page 117 in the Office of the Ohio County Clerk.

Id. at 29 (emphasis added).

(b) Certain property acquired from Western Land Company, LLC-Armstrong Dock A/K/A Smallhous Dock" and McHenry Railroad Spur and described as follows:

Id. at 37. This is followed by a chart listing two property transfers to Western Land Company, LLC. Id. Subsection (b) then says:

All of the aforesaid source deeds and any exhibits and schedules thereto are hereby incorporated herein by reference and made a part hereof, together with all appurtenance thereunto belonging or in anywise appertaining thereto, and being subject to all known exceptions and prior conveyances. Attached hereto are descriptions of property contained in those certain source deeds from Point Pleasant Dock Company, Beaver Dam Coal Company, and Central States Coal Reserves of Kentucky described above. AND BEING a portion of the same property conveyed by Western Land Company, LLC, a Kentucky limited liability company, to [WKY-Resources], a Delaware limited liability company, by deed dated February 20, 2018, recorded in Deed Book 425, at page 147 in the Office of the Ohio County Clerk.

Id.

Exhibit A describes "Leased Property" as follows:

II. All real property described below, in which [WKY-Resources] has a leasehold, subleasehold, easement or other interest by virtue of the instruments described and/or referenced below:

(a) That certain Coal Mining Lease entered into as of February 9, 2011 by and among Western Diamond, LLC, a Nevada limited liability company, Western Mineral Development, LLC, a Delaware limited liability company, and Armstrong Coal Company, Inc., a Delaware corporation, a short

form of which is recorded in Deed Book 388, page 345, in the office of the Clerk of Ohio County, Kentucky. (Big Run-East Fork (Kronos-Warden)Lewis-Creek-Midway (part)).

Id. at 52.

(b) That certain Coal Mining Lease and Sublease entered into as of February 9, 2011, by Ceralvo Holdings, LLC, a Delaware limited liability company, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book, 388, page 421, in the office of the Clerk of Ohio County, Kentucky. (Elk Creek).

Id. at 116.

(c) That certain Coal Mining Sublease entered into February 9, 2011, by Ceralvo Holdings, LLC, a Delaware limited liability company, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 388, page 254, in the office of the Clerk of Ohio County, Kentucky. (Warden (part)).

Id. at 163.

(d) That certain Coal Mining Lease and Sublease entered into February 9, 2011, by and among Western Land Company, LLC, a Kentucky limited liability company, Western Mineral Development Company, LLC, a Delaware limited liability company, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 388, at page 183, in the office of the Ohio County Clerk. (West Fork - Midway (part) - Ben's Lick - Central Grove - McHenry - Rockport (part) - Ken Wye).

Id. at 180.

(e) That certain Coal Mining Lease entered into as of March 1, 2013, by George W. Lewis, Jr., et ux, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 400, page 117, in the office of the Clerk of Ohio County, Kentucky.

Id. at 248.

(f) That certain Coal Mining Lease entered into as of October 4, 2012 by Dennie Lee Grider, et ux, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 396, page 732, in the office of the Clerk of Ohio County, Kentucky.

Id. at 257.

(g) That certain Coal Mining Lease entered into as of November 12, 2010, by Bradford Lupino, et ux, and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 386, page 689, in the office of the Clerk of Ohio County, Kentucky.

Id. at 264.

(h) That certain Coal Mining Lease entered into as of August 30, 2010, by Young Manufacturing and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 385, page 689, in the office of the Clerk of Ohio County, Kentucky.

Id. at 265.

(i) That certain Coal Mining Lease entered into as of February 24,

2010, by Hazel Birchwell and Armstrong Coal Company, Inc., a Delaware corporation, a short form of which is recorded in Deed Book 383, page 198, in the office of the Clerk of Ohio County, Kentucky.

Id. at 266.

Each of Exhibit A's subparts is followed by one or more additional exhibits containing leases, legal descriptions and surveys of multiple tracts of land, mining maps, lists setting forth common sources of title, schedules of known exceptions, and prior conveyances.

Exhibit A concludes with the following language:

Items Exhibit A.II (a), (b), (c), (d), (e), (f), (g), (h), and (i) being a portion of the leases and subleases assigned by Armstrong Coal Company, Inc., a Delaware corporation, to [WKY-Resources] a Delaware limited liability company, by that certain Assignment of Leases dated February 20, 2018, and recorded in Deed Book 425, at page 134 in the office of the Ohio County Clerk, Kentucky. The legal descriptions of the tracts or parcels of land, mineral tracts, coal tracts or coal seams contained in the deeds, leases or other instruments identified or referred to in this Exhibit A are fully incorporated in this Exhibit A by reference with the same effect as if said descriptions were set forth herein in their entirety. In the event a referenced prior conveyance contains a more accurate descriptions [sic], then in that event, the more accurate referenced description shall govern.

There is Excepted and Excluded from the properties and interests in properties described in this Exhibit, all those certain properties and interests in properties previously conveyed, assigned, or transferred to others by any prior deeds or other instruments of record.

All recording references are to the Office of the Ohio County Clerk unless otherwise noted.

Id. at 271.

(ii) River Haul Road Mortgage

The River Haul Road Mortgage granted the Lenders a mortgage on all of WKY-Resources's right, title and interest in real property and leases described in Exhibit A to the River Haul Road Mortgage, which describes "Owned Property" as:

I. All of [WKY-Resources's] right, title and interest in and to the following surface and/or coal properties:

(a) Certain property acquired from Central States Coal Reserves of Kentucky, LLC, Western Mineral Development, LLC and Mine Fab, LLC-Pride Mine Area F/K/A Parkway Mine Area and Survant Mine Area and described as follows:

Surface tracts consisting of approximately 661.54 acres, more or less, together with all surface facilities and surface and coal mining rights and privileges associated therewith or appurtenant thereto, and more particularly described on the attached descriptions as ITEM 1. 016-428 (T5), ITEM 2. 016-026, ITEM[S] 3 AND 4. 016-311 (T1 & T2), ITEM 5. 016-151, ITEMS 6, 7 AND 9. 016-067 (T3, T2 & T4) AND ITEM 8. 016-745 (P12) (T3) and map exhibit.

And being a portion of the same property Central State Coal Reserves of Kentucky, LLC conveyed to Western Land Company, LLC, by deed dated December 12, 2006, recorded in Deed Book 524 at Page 505 in the office of the Muhlenberg County Clerk.

And being a portion of the same property that Western Land Company,

LLC, conveyed a partial interest in to Western Mineral Development, LLC, by deed dated February 9, 2011, recorded in Deed Book 551 at Page 586 in the office of the Muhlenberg County Clerk.

And being the same property that Western Mineral Development, LLC re-conveyed to Western Land Company, LLC, by deed dated March 30, 2012, recorded in Deed Book 557 at Page 692 in the office of the Muhlenberg County Clerk. And being a portion of the same property Western Land Company, LLC conveyed to [WKY-Resources] by deed dated February 20, 2018, recorded in Deed Book 588 at Page 1559 in the office of the Muhlenberg County Clerk.

Doc. 2068-5 at 27, 34 (emphasis added).

Exhibit A describes "Leased Property" as:

II. All real property described below, in which [WKY-Resources] has a leasehold, subleasehold, easement or other interest by virtue of the instruments described and/or referenced below:

(a) Cyprus Creek Land Resources, LLC #8 Seam Coal - Subleased from Western Mineral Development, LLC.

And being the same subleased interests in real property and seams of coal that were described in that certain Coal Mining Sublease between Western Mineral Development, LLC (Sublessor) and Armstrong Coal Company, Inc. (Sublessee) dated October 1st, 2014, a short form of which has been recorded in Deed Book 571, at Page 91 in the office of the Muhlenberg County Clerk.

And being a portion of the same subleased interest in real property and seams of coal that were described in that certain Lease Assignment and Assumption Agreement between Armstrong Coal Company, Inc. and [WKY-Resources] dated February 20, 2018 and recorded in Deed Book 588, at Page 1546 in the office of the Muhlenberg County Clerk.

Id. at 35.

(b) Rogers #8 Seam Coal - Subleased from Western Mineral Development, LLC.

And being the same subleased interests in real property and seams of coal that were described in that certain Coal Mining Sublease between Western Mineral Development, LLC (Sublessor) and Thoroughfare Mining, LLC (Sublessee) dated October 1st, 2014, a short form of which has been recorded in Deed Book 571, at Page 371 in the office of the Muhlenberg County Clerk.

And being a portion of the same subleased interest in real property and seams of coal that were described in that certain Lease Assignment and Assumption Agreement between Thoroughfare Mining, LLC and [WKY-Resources] dated February 20, 2018, recorded in Deed Book 588, at Page 1607 in the office of the Muhlenberg County Clerk.

Id. at 46.

(c) Duncan #8 Seam Coal - Subleased from Western Mineral Development, LLC

And being the same subleased interest in real property and seams of coal that were described in that certain Coal Mining Sublease between Western Mineral Development, LLC (Sublessor) and Armstrong Coal Company, Inc. (Sublessee) dated

October 1st, 2014, a short form of which has been recorded in Deed Book 571, at Page 101 in the office of the Muhlenberg County Clerk. And being a portion of the same subleased interests in real property and seams of coal that were described in that certain Lease Assignment and Assumption Agreement between Armstrong Coal Company, Inc. and [WKY-Resources] dated February 20, 2018 and recorded in Deed Book 588, at Page 1546 in the office of the Muhlenberg County Clerk.

Id. at 147.

Exhibit A concludes with the following language:

The legal descriptions of the tracts or parcels of land, mineral tracts, coal tracts or coal seams contained in the deeds, leases, or other instruments identified or referred to in this Exhibit A are fully incorporated in this Exhibit A by reference with the same effect as if said descriptions were set forth herein in their entirety. In the event a referenced prior conveyance contains a more accurate descriptions [sic], then in that event, the more accurate referenced description shall govern.

There is Excepted and Excluded from the properties and interests in properties described in this Exhibit, all those certain properties and interests in properties previously conveyed, assigned, or transferred to others by any prior deeds or other instruments of record.

All recording references are to the Office of the Muhlenberg County Clerk unless otherwise noted.

Id. at 166.

d. Disconnect Between Property Descriptions

Despite its in-depth, exhaustive review of hundreds of pages of exhibits, the Court is unable to verify the Plan Administrator's claim that the properties listed in the River Haul Mortgage and the Mantazas Road Mortgage are the same properties that are subject to Pillar's mechanic's lien. See Plan Admin. Summ. J. Mot., Mem. in Supp., Doc. 2536-2 at 2. The disconnect between the property descriptions contained in the Kentucky mechanic's liens Pillar filed and those found in the exhibits attached to the Mantazas and River Haul Road Mortgages is discussed below.

(i) Mantazas Road Mortgage

Pillar's Claim No. 1105 contains a Notice of Mechanic's Lien that asserts a lien on "the real property/mine and any and all leasehold interests and interests of the Lessee associated therewith, located at 175 Mantazas Road, Central City, Muhlenberg County, Kentucky, all as more particularly described in that General Warranty Deed of record in Deed Book 425, Page 117 in the office of the Ohio County Clerk[.]" Claim No. 1105 at 4 (emphasis added); Doc. 1104-7 at 1 (emphasis added).

But the Mantazas Road Mortgage only mentions the deed found in Deed Book 425, Page 117 under the section "Owned Property," which includes "a portion of the same property conveyed by Armstrong Coal Company, Inc., a Delaware corporation, to [WYK-Resources], a Delaware limited liability company, by deed dated February 20, 2018, recorded in Deed Book 425, at page 117 in the Office of the Ohio County Clerk[.]" See Doc. 2068-6. And none of the property listed as "Leased Property" in Exhibit A to the Mantazas Road Mortgage refers to the deed recorded in Deed Book 425, Page 117. Id.

(ii) River Haul Road Mortgage

Similarly, Pillar's mechanic's lien that is the subject of its Claim No. 1299 asserts a lien on "the real property/mine and any and all leasehold interests and interests of the Lessee associated therewith located at 2800 River Haul Road, Central City, Muhlenberg County, Kentucky, all as more particularly described in that General Warranty Deed of record in Deed Book 588, Page 1559 in the office of the Ohio County Clerk[.]" Claim No. 1299 at 4 (emphasis added); Doc. 1104-6 at 1 (emphasis added).

Yet, as set forth above, the River Haul Road Mortgage only mentions the deed in Deed Book 588, Page 1559 under the section "Owned Property," which includes "a portion of the same property Western Land Company, LLC conveyed to Western Kentucky Consolidated Resources, LLC, by deed dated February 20, 2018, recorded in Deed Book 588 at Page 1559 in the office of the Muhlenberg County Clerk." See Doc. 2068-5. And again, none of the leases listed as "Leased Property" in Exhibit A to the River Haul Road Mortgage refer to the deed recorded in Deed Book 588, Page 1559. Id.

In both instances, the Plan Administrator fails to identify what "portion of the same property" upon which Pillar asserts its mechanic's liens is actually owned by the Debtors, or what portion of the Debtors' owned land is actually covered by the Mantazas and River Haul Road Mortgages. None of the mortgaged leasehold interests appear to correspond with the property encumbered by Pillar's mechanic's liens. And it is unknown, and possibly unknowable—given the Plan Administrator's broad statement that WKY-Resources's Term Loan Mortgages cover both the River Haul Road and Mantazas Road addresses plus "hundreds of [unidentified] parcels" at the Pride and Genesis mines—whether the "portion of the same property" encompasses the same property that is subject to Pillar's mechanic's liens.

In the final analysis, there exist genuine issues of material fact as to whether the Kentucky properties encumbered by Pillar's mechanic's liens are subject to the first-in-time Mantazas and River Haul Road Mortgages. Thus, insofar as Pillar Claims 1105 and 1299 are concerned, the Court is unable to grant summary judgment for either party.

V. Conclusion

For the reasons stated above, summary judgment is GRANTED in favor of Pillar Innovations, LLC, as to Claim Nos. 1106, 1107, 1114, 1117 and 1123. Those claims may not be reclassified as general, unsecured claims, but shall retain their priority over the claims of the Lenders, secured to the extent of the value available upon exercise of Pillar's foreclosure remedies against the property owned by the individual Murray company listed in each West Virginia Coal Operators' mechanic's liens. Due to the state of the record, the Court is unable to enter summary judgment in favor of either party as to Claim Nos. 1112, 1105 and 1299. Those claims shall be set for a status conference to be held on November 3, 2023 at 10 a.m. in Courtroom A, United States Bankruptcy Court, 170 N. High Street, Columbus, OH 43215. The representative of Drivetrain, LLC with primary responsibility for conducting the winddown of the Debtors' estates under the Plan is directed to appear in person at the status conference.

IT IS SO ORDERED.

This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.