PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO 28 U.S.C. § 157(C)(1) AND FED. R. BANKR. P. 9033(A)

Related to Adv. Docket Nos. 97, 143, 144, 146, 147, 158, 159.

BRENDAN LINEHAN SHANNON, Bankruptcy Judge.

Before the Court is the Motion for Partial Summary Judgment (the "Partial MSJ") filed by New Dominion, LLC ("ND")1 and the Renewed Motion for Summary Judgment (the "MSJ") filed by J. Aron & Company ("J. Aron").2 The parties are more than familiar with the complex background of this bankruptcy case and family of adversary proceedings. As relevant here, ND sold oil to SemCrude3 who promptly sold that oil to third parties. ND was not paid in full for the oil it sold to SemCrude between June 1 and July 1, 2008. ND argues that SemCrude (or one of its affiliates) sold at least some of that oil to J. Aron, and ND asserts a security interest and lien on the proceeds thereof under Oklahoma law. ND commenced this litigation to foreclose upon its asserted lien. By J. Aron's MSJ, J. Aron seeks a ruling from this Court that it purchased oil from the Debtors free and clear of any liens or other rights of ND. As set forth in detail below, the Court finds that ND sold its oil to SemCrude pursuant to standard industry terms that provide a warranty that the oil was sold free and clear of all liens, claims and encumbrances. Accordingly, ND waived its right to assert any lien in the oil it sold. The Court will therefore recommend that J. Aron's MSJ be granted.

I. BACKGROUND4

On July 22, 2008 (the "Petition Date"), SemGroup, L.P. and certain direct and indirect subsidiaries (collectively, "SemCrude" or the "Debtors") each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code (the "Code"). By Order dated October 28, 2009 (the "Confirmation Order"),5 the Court confirmed the Debtors' Fourth Amended Joint Plan of Affiliated Debtors (the "Plan").6 The Plan and the Confirmation Order expressly preserved certain claims and causes of action and provided for this Court's retention of jurisdiction over those claims, including ND's claims currently before the Court in this adversary proceeding.7

As of the Petition Date, the Debtors' business involved purchasing oil and gas from upstream producers, like ND (collectively, the "Producers") and selling it to downstream purchasers, like J. Aron (collectively, the "Downstream Purchasers"). After the bankruptcy filing, many Producers were owed millions of dollars for oil and gas delivered to the Debtors in the weeks leading up to the filing.8 ND claimed that it was not paid in full for more than 22,000 barrels of oil, worth roughly $2.75 million, that it provided to SemCrude between June 1 and July 1, 2008.9 Each of ND's contracts with SemCrude governing the oil sales expressly incorporated the Conoco General Provisions, which include a warranty that the oil was delivered "free from all . . . liens [and] encumbrances."

J. Aron purchased over 24 million barrels of oil from SemCrude, priced at approximately $324 million, for delivery in Cushing, Oklahoma and El Dorado, Kansas in June 2008.10 On July 21, 2008, the day before SemCrude filed its bankruptcy petition, J. Aron exercised netting rights under its ISDA Master Agreement to set off $435 million of oil purchased from SemCrude against approximately $345 million in SemCrude's oil derivatives trading obligations.11

Shortly after the Petition Date, ND, an Oklahoma-based company, filed liens under the Oklahoma Oil and Gas Owners' Lien Act, Okla. Stat. Ann. tit. 52, §§ 548.1-548.6 (the "Oklahoma Oil & Gas Lien Act").12 This statute granted Producers like ND "a lien upon the oil or gas severed [from its wells], or the proceeds of sale if such oil or gas has been sold, to the extent of [its] interest until" full payment is received. Okla. Stat. Ann. tit. 52, § 548.2. On August 4, 2008, ND notified J. Aron that it had filed liens on the proceeds of its oil allegedly held by J. Aron.13

ND filed suit in Oklahoma state court asserting a single count against J. Aron to foreclose on the alleged statutory lien.14 The matter was eventually transferred to the District of Delaware, and then referred to this Court.

The record reflects that ND was paid in full for oil delivered between July 2, 2008 and July 21, 2008 pursuant to the administrative priority provisions of 11 U.S.C. § 503(b)(9). Additionally, ND was paid approximately 13% of its sales to SemCrude from June 1, 2008 to July 1, 2008 through a settlement agreement with the Debtors and the secured lenders.15 The issue before the Court at this stage, therefore, is whether ND possesses lien rights that it can assert against J. Aron to recover on the portion of its claim that was not paid by the Debtors.

II. JURISDICTION & VENUE

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), with the Court determining that this matter is "related to" the Debtors' Chapter 11 cases. Venue is proper in this Court and in this District pursuant to 28 U.S.C. §§ 1408, 1409. These adversary proceedings constitute non-core proceedings under 28 U.S.C. § 157(c)(1). See Arrow Oil & Gas, Inc. v. J. Aron & Co. (In re SemCrude, L.P.), 442 B.R. 258, 271 (Bankr. D. Del. 2010). As such, and in accordance with Fed. R. Bankr. P. 9033(a), the Court herewith files its proposed findings of fact and conclusions of law.

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper where, viewing the evidence in the light most favorable to the non-moving party and drawing all inferences in favor of that party, there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex v. Catrett, 477 U.S. 317, 322-23 (1986). Any doubt must be resolved in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The movant bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party carries its burden, the opposing party must go beyond the pleadings and identify specific facts showing more than a "mere existence of a scintilla of evidence" that a genuine dispute of material fact exists. Anderson, 477 U.S. at 252; see also Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts").

When ruling on cross-motions for summary judgment, the Court's analysis does not change. "Each party still bears the initial burden of establishing a lack of genuine issues of material fact." Liquidating Trust of U.S. Wireless Corp. v. Huffman (In re U.S. Wireless Corp.), 386 B.R. 556, 560 (Bankr. D. Del. 2008). Each motion must be considered independently, and "both motions will be denied if any genuine issues of material fact exist." WM Inland Adjacent LLC v. Mervyn's LLC (In re Mervyn's Holdings, LLC), Adv. No. 09-50920(KG), 2013 WL 85169, at *3 (Bankr. D. Del. Jan. 8, 2013) (citation omitted).

IV. THE PARTIES' POSITIONS

J. Aron's MSJ asserts numerous arguments for dismissing ND's claims. As a threshold matter, J. Aron contends that no lien rights can be asserted against it where (i) ND sold oil to the Debtors under an express warranty, and (ii) the Debtors sold oil to J. Aron under an identical warranty. Additionally, J. Aron asserts that ND cannot show through the extensive discovery already completed that J. Aron ever received any of ND's oil. In fact, the uncontested facts adduced through discovery show that SemCrude transported and sold 97% of the oil in question to Conoco, not to J. Aron. J. Aron states that ND has failed to show that J. Aron ever received any of the remaining oil.

In response, ND contends that its free-and-clear warranty does not preclude assertion of its lien, since its lien rights only arose later, when the Debtors failed to pay for the oil. Thus, ND asserts it cannot have waived rights it did not possess at the time of sale. ND argues that tracing the oil is not required under Oklahoma law, and that its perfected liens trump J. Aron's setoff rights. ND cites to case law, U.C.C. § 9-336, and the apparent intent of the Oklahoma legislature for the proposition that "Oklahoma applies the confusion of goods doctrine to products such as crude oil," allowing ND's statutory lien to attach to the whole commingled mass of oil held by SemCrude, irrespective of actual tracing.16

V. LEGAL ANALYSIS

The record reflects, and it is undisputed, that ND sold its oil to SemCrude pursuant to contracts incorporating express warranties that the oil was free of all security interests. All of ND's contracts with the Debtors reference the Conoco General Provisions.17 The Conoco General Provisions include the following term: "[t]he Seller warrants good title to all crude oil delivered hereunder and warrants that such crude oil shall be free from all royalties, liens, encumbrances and all applicable foreign, federal, state and local taxes."18 Therefore, not only did J. Aron receive an express warranty from the Debtors that the oil was free and clear of all security interests, but ND also expressly warranted that the oil it sold to SemCrude was free from all liens and encumbrances pursuant to the same warranty in the Conoco General Provisions. This Court has previously stated that:

Having expressly warranted that the oil it sold was free from all liens, ND cannot now enforce its liens against J. Aron.

ND argues that it could not have waived a right that had not yet accrued. As cited by ND, Oklahoma law provides that waiver is a voluntary relinquishment of a known right. See Faulkenberry v. Kansas City S. Ry. Co., 602 P.2d 203, 206-07 (Okla. 1979). In the present case, the record reflects that ND sold oil to the Debtors in full expectation that the Debtors would promptly sell that oil downstream. And indeed, the record further reflects that the Debtors did just that, selling the oil under contracts that again warranted to the buyer that the oil was free and clear of all liens.

ND's position is that its lien only arose weeks or months after the sale to the Debtors, when payment for the oil was due and not made. Accordingly, ND reasons that its express warranty was accurate at the time of sale, but is no bar to assertion of the lien due to the subsequent payment default.

This Court respectfully disagrees. Any right that ND may have had to assert a lien in its oil was waived when the oil was sold under the express warranty embodied in the Conoco General Provisions. It cannot be revived and asserted against subsequent purchasers at a later point in the event of a payment default by the first purchaser: this proposition is entirely inconsistent with the legal intent and effect of a warranty of good title, and wholly impractical in the context of the energy market.20

Accordingly, the record reflects that there is no genuine dispute of material fact that J. Aron obtained oil from SemCrude free and clear of any lien or other encumbrance. J. Aron is entitled to summary judgment in its favor.

VI. CONCLUSION

For the foregoing reasons, the Court recommends that ND's Partial MSJ be denied, and J. Aron's MSJ granted.21

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

NEW DOMINION, LLC'S OBJECTION TO THE COURT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff New Dominion, LLC ("NDL"), by and through its undersigned counsel, hereby objects to the Bankruptcy Court's Proposed Findings of Fact and Conclusions of Law Pursuant to 28 U.S.C. § 157(c)(1) and Federal RUles of Bankruptcy Procedure 9033(a) filed January 17, 2018.

RELEVANT BACKGROUND

1. On December 10, 2003, NDL brought suit against J. Aron & Co ("J. Aron"), seeking foreclosure of oil and gas owners' liens filed by NDL pursuant to Okla. Stat. tit. 52, §§ 548.1-548.6 (the "Oil and Gas Lien Act") against proceeds of production from oil and gas wells that was held by J. Aron. The action was originally filed in Oklahoma state court, removed to federal court in Oklahoma, transferred to the United States District Court for Delaware and was then referred to the United States Bankruptcy Court for the District of Delaware. The parties filed cross motions for summary judgment, and the Bankruptcy Court heard arguments in February 2013.1

2. On January 17, 2018, the Bankruptcy Court issued its Proposed Findings of Fact and Conclusions of Law Pursuant to 28 U.S.C. § 157(c)(1) and Federal Rules of Bankruptcy Procedure 9033(a) (the "Proposed Determination").2 The Proposed Determination recommends that this Court grant J. Aron's motion for summary judgment.

STANDARD OF REVIEW

3. Pursuant to Bankruptcy Rule 9033(d), this Court conducts a de novo review of all matters included in the Proposed Determination. As explained below, the Bankruptcy Court's Proposed Determination is factually and legally incorrect.

OBJECTION

4. In its Proposed Determination, the Bankruptcy Court found that NDL's statutory lien claims under the then-existing Oklahoma law3 were waived when NDL sold its oil to SemCrude subject to the Conoco General Provisions which provide "the Seller warrants good title to all crude oil delivered hereunder and warrants that such crude oil shall be free from all royalties, liens, encumbrances and all applicable foreign, federal, state and local taxes."4 (emphasis added). The Proposed Determination misinterprets the Conoco General Provisions.

5. A waiver is a voluntary relinquishment of a known right. Faulkenberry v. Kansas City S. Ry. Co., 1979 OK 42, ¶ 6, 602 P.2d 203. An intent to waive a lien is never presumed and is a question of fact. Hall v. Black, 1923 OK 395, ¶ 13, 220 P. 50. A warranty is an undertaking that a certain fact regarding the subject of a contract is what it is represented to be, but collateral to the object of the contract. Pauls Valley Milling Co. v. Gabbert, 1938 OK 244, ¶ O, 78 P.2d 685; Commonwealth Cotton Co. v. Lester, 1932 OK 2, ¶ O, 9 P.2d 738.

6. It is important to note that the Conoco General Provisions do not contain express waiver language. Rather, NDL warranted that, when selling oil to SemCrude under the Conoco General Provisions, the oil was free of liens existing as of the date of the sale; J. Aron did not cite anything in the record demonstrating that NDL voluntarily waived and relinquished its right to the statutory lien provided by the Oil and Gas Lien Act. Moreover, all oil sales in this case occurred in Oklahoma, and all parties were on notice of the Oil and Gas Lien Act. Had any party intended to waive its rights under that Act, the Conoco General Provisions would have specifically stated the same.

7. When finding that NDL's sales under the Conoco General Provisions constitute a waiver of NDL's lien rights, the Proposed Determination quotes the Bankruptcy Court's prior opinion in this matter in In Re SemCrude, 504 B.R. 39, 60, n.66 (Bankr. D. Del. 2013) finding that sales by other producers under the Conoco General Provisions constitute a waiver of statutory security interests. However, the statutory lien asserted by NDL is not the same type of statutory lien as the liens asserted by other oil and gas producers in the prior decision that were based upon the Oklahoma Production Revenue Standards Act (the "PRSA"), 52 O.S. § 570.10. The Oklahoma Court of Appeals has recently found that producers should have pursued claims against third party purchasers when the producers were not paid due to the SemGroup bankruptcy under the Oil and Gas Lien Act, as NDL did here, rather than the PRSA. See Gaskins v. Texon L.P., 2014 Ok. Ct. App. 22, ¶ 15, 321 P.2d 985.

8. At a minimum, the issue of whether NDL waived its claims under the Oil and Gas Lien Owners Act remains a disputed issue of fact, so the recommendation of granting J. Aron's motion for summary judgment on this basis is error.

CONCLUSION

Based upon the foregoing, the Proposed Determination should be rejected.

THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

J. ARON & COMPANY LLC'S RESPONSE TO THE OBJECTIONS FILED BY NEW DOMINION, LLC TO THE BANKRUPTCY COURT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

J. Aron & Company LLC ("J. Aron")1 submits this memorandum of law in response to the objections filed on January 30, 2018 ("Objections" or "Obj.") by New Dominion, LLC ("New Dominion") to the Proposed Findings of Fact and Conclusions of Law pursuant to 28 U.S.C. § 157(c)(1) and Fed. R. Bankr. P. 9033(a) issued on January 17, 2018 (the "FFCL") by the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court").2

PRELIMINARY STATEMENT

New Dominion does not dispute that it was a complete stranger to J. Aron before the Debtors' 2008 bankruptcy or that it received substantial payments under the Debtors' Chapter 11 plan for oil it sold to the Debtors before their Chapter 11 filings. Despite acknowledging that 97% of that oil went to someone else and without any evidence that J. Aron, as a downstream purchaser, ever obtained from the Debtors any portion of the remaining 3% of that oil, New Dominion nevertheless persists in its theory that it is entitled to obtain an additional priority recovery from J. Aron based on a purported statutory lien under the Oklahoma Gas Owners' Lien Act, Okla. Stat. Ann. tit. 52, §§ 548.1-548.6 (the "Oklahoma Act").3

The Bankruptcy Court properly found no genuine dispute of material fact that New Dominion waived any such purported lien by incorporating into its contracts the 1993 Conoco General Provisions, which expressly provide that New Dominion, as the seller, "`warrants good title to all crude oil delivered hereunder and warrants that such crude oil shall be free from all royalties, liens, [and] encumbrances.'" FFCL at 6 (quoting 1993 Conoco General Provisions; emphasis in original). The Bankruptcy Court accordingly recommended summary judgment on the basis that J. Aron necessarily purchased oil from the Debtors free and clear of New Dominion's purported lien.4

New Dominion's objection does not overcome the Bankruptcy Court's finding of clear, knowing, and voluntary waiver. New Dominion does not dispute that it warranted good title to the oil it sold to the Debtors and that such oil would be "free from all . . . liens," and concedes it was "on notice" of the Oklahoma Act when it entered into its contracts with the Debtors unambiguously disclaiming "all" liens. Critically, New Dominion fails to distinguish itself from other producers who the Bankruptcy Court found in SemCrude I waived purported statutory liens by selling to the Debtors under identical contractual language — despite the Third Circuit's explicit recognition in SemCrude III that the oil industry relies on the "Conoco warranty that this oil is sold free and clear of any liens" and that "the effect of any opinion from us upholding the Producers' positions would be chaos." 864 F.3d at 300-01. The Court should therefore accept the Bankruptcy Court's FFCL and enter summary judgment for J. Aron.

BACKGROUND

As the Bankruptcy Court noted in its FFCL, the history of extensive producer litigation in this bankruptcy case is detailed at length in its prior SemCrude I decision. J. Aron refers below only to the undisputed facts that are pertinent to the Bankruptcy Court's FFCL here.

J. Aron's Trading Agreement with SemGroup

Beginning in November 2007, J. Aron and SemGroup, L.P. ("SemGroup") entered into an ISDA Master Agreement (together with related documents and trade confirmations, the "Trading Agreement") under which J. Aron purchased crude oil and gas from SemGroup and the parties executed swaps and derivatives trades.5 All of the oil J. Aron purchased (including during June and July 2008, the only months at issue here) was sold to it by SemGroup, which warranted to J. Aron that it sold such oil with good title and "free from all royalties, liens, [and] encumbrances."6 At the time of those purchases, J. Aron had no knowledge of the interests that New Dominion would later assert in any oil J. Aron purchased from SemGroup, or of the Oklahoma Act under which such interests purportedly arise.7

In June and July 2008, J. Aron purchased approximately $435 million worth of oil from SemGroup.8 In addition, during this time, SemGroup incurred obligations to J. Aron on its swaps and derivatives trades totaling approximately $345 million.9 On July 21, 2008, J. Aron exercised its express contractual rights under the ISDA Master Agreement and terminated the Trading Agreement for default by SemGroup,10 which resulted in a net obligation to SemGroup of approximately $90 million. Pursuant to the release provisions ordered by the Bankruptcy Court,11 which are expressly incorporated into the Debtors' Fourth Amended Plan, J. Aron credited $345 million in oil purchases against the Debtors' obligations under the Trading Agreement and tendered to the Debtors approximately $90 million in complete satisfaction of its net obligations under the Trading Agreement. See Order Confirming Debtors' Fourth Am. Joint Plan ¶ 65(f) [D.I. 6347 in Case No. 08-11525].

New Dominion's Sale of Oil to SemCrude

New Dominion sold crude oil in Oklahoma to SemCrude, L.P. ("SemCrude"), a wholly owned subsidiary of SemGroup, during June 2008 pursuant to contracts that expressly incorporate and include the 1993 Conoco General Provisions.12 Paragraph B of the 1993 Conoco General Provisions contains a warranty by the Seller (New Dominion) that the oil delivered is "free from all . . . liens [and] encumbrances."13 New Dominion placed no restrictions on what SemCrude could do with its oil after SemCrude took delivery of the oil,14 nor did it notify J. Aron of any potential encumbrance on the oil J. Aron acquired until well after the bankruptcy.15

Procedural History of this Adversary Proceeding

New Dominion filed suit in Oklahoma state court asserting a single count against J. Aron to foreclose on its alleged statutory lien16 to the extent it has not been paid in full.17 The matter was removed to federal court, transferred to the District of Delaware, and referred to the Bankruptcy Court.18 Following extensive fact discovery and competing motions for summary judgment,19 on January 17, 2018, the Bankruptcy Court issued its FFCL recommending that summary judgment be entered in favor of J. Aron.20

STANDARD OF REVIEW

The District Court reviews de novo "any portion of the bankruptcy judge's findings of fact or conclusions of law to which specific written objection has been made." Fed. R. Bankr. P. 9033(d); see also 28 U.S.C. § 157(c)(1). Proposed findings of fact and conclusions of law as to which New Dominion has not objected may be adopted after reviewing for clear error. Davis v. Merv Griffin Co., 128 B.R. 78, 80 (D.N.J. 1991) (court "need only satisfy itself that there is no clear error on the face of the record in order to accept" a bankruptcy court recommendation to which there has been no objection).

ARGUMENT

As the Bankruptcy Court noted, "it is undisputed[] that [New Dominion] sold its oil to SemCrude pursuant to contracts incorporating express warranties that the oil was free of all security interests" — i.e., the 1993 Conoco General Provisions. FFCL at 5-6. Accordingly, "[h]aving expressly warranted that the oil it sold was free from all liens," the Bankruptcy Court concluded that New Dominion "cannot now enforce its liens against J. Aron" for the same reasons set forth in SemCrude I, which held that the inclusion of such an express warranty in a contract for sale of oil "`effectively waive[s] any statutory security interest in the oil sold.'" Id. at 6 (quoting SemCrude I, 504 B.R. at 60, n.66). New Dominion raises only three perfunctory objections to this straightforward analysis.

First, New Dominion argues that the 1993 Conoco General Provisions do not contain "express waiver language." Obj. at 3. But Oklahoma courts have repeatedly recognized that parties can and do waive rights even without specifically using the word "waiver." See, e.g., Leger Mill Co., Inc. v. Kleen-Leen, Inc., 563 P.2d 132, 138 (Okla. 1977) ("Leger Mill's arrangement with Scarbrough was totally inconsistent with the existence of the lien it now attempts to claim against Kleen-Leen."); Smith v. Citizens State Bank of Hugo, 732 P.2d 911, 913 (Okla. Civ. App. 1986) (party "can, by its conduct or statements, waive its lien rights"); see also Zumwalt v. Goodwin, 133 F.2d 984, 987 (10th Cir. 1943) ("The lien may be waived by the manifest action and conduct of the parties, or the waiver may be explicit in the transaction . . . ."). The language here is unambiguous: New Dominion "warrant[ed]" that the crude oil it sold "shall be free from all . . . liens." See ITT Fin. Servs. v. Schoenlein (In re Schoenlein), 157 B.R. 824, 827-28 (Bankr. N.D. Ohio 1993) (creditor cannot claim security interest in television if it previously disclaimed all security interests in that television). New Dominion identifies no evidence — and there is none — to suggest that its express disclaimer of "all" liens does not include a lien under the Oklahoma Act. Indeed, New Dominion concedes it was "on notice of the [Oklahoma Act]" in making this waiver. Obj. at 3.

Second, New Dominion argues that it only "warranted that, when selling oil to SemCrude under the Conoco General Provisions, the oil was free of liens existing as of the date of the sale." Obj. at 3. To the extent New Dominion is arguing, as it did below, that its lien arose only when SemCrude failed to pay for such oil, the Bankruptcy Court correctly rejected that argument. See FFCL at 6-7 ("Any right that [New Dominion] may have had to assert a lien in its oil was waived when the oil was sold under the express warranty embodied in the Conoco General Provisions. It cannot be revived and asserted against subsequent purchasers at a later point in the event of a payment default by the first purchaser . . . ."). Indeed, the Bankruptcy Court observed that New Dominion's argument would be "entirely inconsistent with the legal intent and effect of a warranty of good title," and also "wholly impractical in the context of the energy market." Id. at 7. New Dominion does not even attempt to explain why the Bankruptcy Court's analysis was wrong. Nor does it address the related concerns raised by the Third Circuit in SemCrude III that "[t]he Producers' contention that a lien or trust follows oil from their wells to the gas pump does not make sense for this type of market. The effect of any opinion from us upholding the Producers' positions would be chaos." 864 F.3d at 301.

Third, New Dominion argues that because its lien claims arise from the Oklahoma Act, they are different from those previously dismissed as to other producers. See Obj. at 3. But the source of the lien is a distinction without a difference here, because New Dominion expressly waived "all . . . liens." New Dominion does not, because it cannot, explain why the result should be different in this case simply because the lien being waived arises from a different statute.

CONCLUSION

For the foregoing reasons, the District Court should accept the Bankruptcy Court's recommendation to grant J. Aron's motion for summary judgment.