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IN RE VARTEC TELECOM, INC.

Bankruptcy No. 04-81694-HDH-11. ADVERSARY No. 05-3514.

335 B.R. 631 (2005)

In re VARTEC TELECOM, INC., et al., Debtors. Official Committee of Unsecured Creditors of Vartec Telecom, Inc., Excel Communications Marketing, Inc., Excel Management Services, Inc., Excel Products, Inc., Excel Telecommunications, Inc., Excel Telecommunications of Virginia, Inc., Excel Teleservices, Inc., Excelcom, Inc., Telco Communications Group, Inc., Telco Network Services, Inc., Vartec Business Trust, Vartec Properties, Inc., Vartec Resources Services, Inc., Vartec Solutions, Inc., Vartec Telecom Holding Company, Vartec Telecom International Holding Company, Vartec Telecom of Virginia, Inc., Debtors, on Behalf of the Bankruptcy Estates of Said Debtors, Plaintiff, v. Rural Telephone Finance Cooperative, Defendant.

United States Bankruptcy Court, N.D. Texas, Dallas Division.

December 16, 2005.

Attorney(s) appearing for the Case

J. Michael Sutherland, Stephen A. Goodwin, Peter Tierney, Carrington, Coleman Sloman & Blumenthal, LLP, Dallas, TX, for Plaintiff Official Committee of Unsecured Creditors of VarTec.

Toby L. Gerber, William R. Greendyke, John N. Schwartz, Fulbright & Jaworski, LLP, Dallas, TX, for Defendant Rural Telephone Finance Cooperative.

MEMORANDUM OPINION ON MOTION TO DISMISS COUNT TEN

HARLIN D. HALE, Bankruptcy Judge.

This opinion addresses the question as to whether "deepening insolvency" may be pled as a separate cause of action or whether it is treated only as a breach of a separate duty under state tort law or as a theory of damages. In the instant adversary proceeding, the Rural Telephone Finance Cooperative ("RTFC") has filed a Motion to Dismiss Count Ten of Complaint and...

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