Retail Marketing Company, Plaintiff-appellant, v. James A. Brady, Defendant-appellee, 5 F.3d 547 (10th Cir. 1993)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

In Retail Marketing Co. v. King (In re Mako, Inc.), 985 F.2d 1052 (10th Cir. 1993), we held that plaintiff Retail Marketing Company (RMC) lacked standing to prosecute avoidance actions against a number of defendants relating to the bankruptcy of Mako, Inc. However, we abated proceedings with respect to defendant James A. Brady because he had recently filed a bankruptcy proceeding. See id. at 1053 n. 1. By an order of July 6, 1993, the Bankruptcy Court for the Northern District of Oklahoma modified the automatic stay provisions of 11 U.S.C. § 362 to permit this court to adjudicate the pending dispute between RMC and Brady.

Brady's position is indistinguishable from that of the other defendants who prevailed in that appeal. It is therefore ordered that the decision of the district court is AFFIRMED on the basis of our earlier decision in Retail Marketing Co. v. King (In re Mako, Inc.), 985 F.2d 1052 (10th Cir. 1993).