ALTERNATIVELY, THIS COURT SHOULD GRANT LEAVE TO APPEAL. Alternatively, this Court should grant leave to appeal under 28 U.S.C. § 158(a)(3), which provides this Court jurisdiction to hear appeals with leave of court, from interlocutory orders and decrees. Id.

The district court in a bankruptcy appeal … functions as an appellate court in reviewing the bankruptcy court's decision. See 28 U.S.C.A. § 158(a) and 28 U.S.C.A. §158(c). The district court is not authorized to make independent factual findings; that is the function of the bankruptcy court.

28 U.S.C. § 158(a)(l)-(3). The Fifth Circuit Court of Appeals does not have a Bankruptcy Appellate Panel ("BAP"), and thus no notice of election to have the District Court hear the appeal was necessary under 28 U.S.C. § 158(c)(l). C. Filing Dates Establishing Timeliness of Appeal On August 3, 2017, the Bankruptcy Court entered the Order. (Dkt. 8-2, AR02216 - AR02218.

The Nevada Bankruptcy Court Order is not appealable as of right under § 158(a)(1) or (2). Subsection (2) of § 158(a) does not apply because the Nevada Bankruptcy Court Order was not issued under section 1121 of the Bankruptcy Code. Moreover, subsection (1) of § 158(a) does not apply because the Nevada Bankruptcy Court Order is not a “final” judgment, order, or decree.

STANDARD OF REVIEW 1. General Standards Applicable To This Appeal This Court exercises jurisdiction over an appeal from the Bankruptcy Court pursuant to 28 U.S.C. §158(a). This Court will not disturb the Bankruptcy Court’s findings of fact unless it is determined that those findings were “clearly erroneous”.

As noted, section 157(b)(1) of title 28 permits a bankruptcy court to “hear and determine” all cases and all “core proceedings arising under title 11, or arising in a case under title 11.” A bankruptcy court can enter orders and judgments in such matters, subject to appellate review under 28 U.S.C. § 158. Subsection (b)(2) lists examples of “core proceedings,” including “matters affecting the administration of the estate”, 28 U.S.C. § 157(b)(2)(A), and “proceedings to determine, avoid, or recover fraudulent conveyances.”

: : : : : : : : : : Adv. No. 09-01032 (JMP) ----------------------------------------------------------------------------x NOTICE OF APPEAL Case 1:11-mc-00330-PAC Document 1 Filed 09/16/11 Page 40 of 45 -2- Defendants Barclays Bank plc, Long Island International Limited, BlackRock Mortgage Investors Master Fund, L.P. and Ballyrock ABS CDO 2007-1 Limited (“Ballyrock”), by their undersigned counsel, appeal under 28 U.S.C. § 158(a) from the Order Granting in Part and Denying in Part the Motion to Dismiss of Ballyrock, entered in this adversary proceeding on June 28, 2011, which is attached to this Notice of Appeal. The names of all parties to the judgment, order, or decree appealed from and the names, addresses, and telephone numbers of their respective attorneys are as follows: APPELLANTS: Barclays Bank plc and Long Island International Limited Robinson B. Lacy Joshua Fritsch SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004 212-558-4000 BlackRock Mortgage Investors Master Fund, L.P. Andrew W. Stern Nicholas P. Crowell Alex J. Kaplan SIDLEY AUSTIN LLP 787 Seventh Avenue New York, NY 10019 212-839-5300 PLAINTIFF-APPELLEE: Lehman Brothers Special Financing, Inc.

ARGUMENT I. THE STANDARD FOR LEAVE TO APPEAL Pursuant to 28 U.S.C. § 158(a)(3), this Court has discretionary appellate jurisdiction over interlocutory orders of the Bankruptcy Court. In re Kassover, 343 F.3d 91, 94 (2d Cir. 2003). “While neither the Bankruptcy Code nor the Federal Rules of Bankruptcy provide standards for evaluating a motion for leave to appeal, the majority of courts have applied the analogous standard for certifying an interlocutory appeal set forth in 28 U.S.C. § 1292(b).”

[and] counsel to the committee did not focus on the requirements of Rule 25(a) . . . .” Farley Decl., Ex. 6 (Tr.) at 249. ARGUMENT The Order is an interlocutory order from which the Estate requests leave to appeal under 28 U.S.C. § 158(a)(3). Courts in this Circuit will grant leave to appeal an interlocutory order if the three factors set forth in 28 U.S.C. § 1292(b) are satisfied or if there are other “exceptional circumstances.”

District court jurisdiction over appeals of bankruptcy court rulings is governed by 28 U.S.C. § 158(a), which provides that “[t]he district courts of the United States shall have jurisdiction to hear appeals from final judgments, orders, and decrees; [and,] with leave of court, from other interlocutory order orders and decrees.” 28 U.S.C. § 158(a). Accordingly, Harbinger cannot appeal the Bankruptcy Court’s Decision and Order as of right — and without leave of this Court — unless the Order is final.