Opinion
CASE NO. 10-34433 JFS Adversary No. 11-00025 JFS
2012-07-13
In re: STEVEN J. CRAMER Debtor RICHARD DIPASQUALE DINA DIPASQUALE Plaintiffs v. STEVEN J. CRAMER Defendant Third Party Plaintiff v CARLA CRAMER DIPASQUALE Third party Defendant
Michael G. Rinn, Esquire Law Office of Michael G. Rinn Counsel for Defendant and Third Party Plaintiff John A. Austin #00776 Counsel for Plainitffs Carla DiPasquale Cramer Third Party Defendant
SO ORDERED
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U. S. BANKRUPTCY JUDGE
CHAPTER 7
STIPULATION AND CONSENT ORDER
Richard and Dina DiPasquale (the "Plaintiffs"), and Steven J. Cramer (the "Debtor/Defendant"), by their respective undersigned counsel, hereby stipulate and agree as follows:
WHEREAS the Debtor/Defendant and his then wife, the third party Defendant Carla Cramer, entered into a verbal agreement to borrow from Carla Dipasquale Cramer's parents, the Plaintiffs herein, the sum of $200,000.00 and the Plaintiffs did in fact loan and pay to the Debtor /Defendant and his then wife, the Third Party Defendant Carla DiPasquale Cramer the sum of $200,000.00;
WHEREAS The Plaintiffs assert they were induced to lend this money to the Plaintiffs' Daughter Carla DiPasquale Cramer, based upon the representation made by the Defendant that Plaintiffs' would be given a priority lien with respect to the proceeds of the sale of debtor's property.;
WHEREAS In June, 2006, the subject property was sold by the Defendant and the Third Party Defendant Carla Dipasquale Cramer. Because a mortgage instrument to be executed by the Defendant and Third Party Defendant, granting a lien to the Plaintiffs, had not been recorded, no monies were withheld from the settlement proceeds to pay the Plaintiffs. Subsequently, the Defendant/Debtor and the Plaintiffs' daughter Carla Cramer did in fact repay to the Plaintiffs the sum of $100,000.00 on the obligation.
WHEREAS, the Defendant and Third Party Defendant Carla Dipasquale Cramer are jointly and severally indebted to the Plaintiffs in the amount of $100,000.00 (the "Debt"), which amount comprises the remaining pre-petition balance of the sums advanced by the Plaintiffs;
WHEREAS, on October 25, 2010, the Defendant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code;
WHEREAS, on January 13, 2011, the Plaintiffs filed the above-captioned adversary proceeding against the Defendant, asserting that the Debt of the Defendant is non-dischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) (the "Adversary Proceeding"), and seeking attorneys' fees and other costs to be awarded in connection with the Adversary Proceeding; The Defendant, while not admitting this assertion, agrees that the evidence to be produced in this case could reasonably support a finding that Debt of the Defendant is non-dischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A); and
WHEREAS, the Plaintiffs, the Defendant and the Third Party Defendant have reached a resolution of the matters between them relating to the Debt and the Adversary Proceeding;
NOW THEREFORE, it is hereby stipulated and agreed by and between the Plaintiffs and the Defendant, and it is hereby ADJUDGED, ORDERED and DECREED by this Court that:
A. The stipulations set forth above form an integral and substantive part of this Stipulation and Consent Order and are incorporated herein.
B. Judgment be and hereby is granted in favor of the Plaintiffs and against the Defendant in the amount of $40,000.00 (the "Claim"), which amount comprises a compromise of the indebtedness of the Defendant to the Plaintiffs in the amount of $100,000.00.
C. The Claim, upon which judgment is entered hereby in the total amount of $40,000.00, is hereby deemed and stipulated to be non-dischargeable in the Defendant's/Third Party Plaintiffs Bankruptcy case pursuant to 11 U.S.C. §§ 523(a)(2)(A).
D. The Plaintiffs shall accept, as payment in full of the Claim, the sum of $40,000.00, without interest, which amount shall be paid as follows:
(a) The Defendant shall pay to the Plaintiffs $500.00 per month, commencing August 15, 2012 and continuing thereafter on the fifteenth (15th) day of each succeeding month until July 15, 2014, (24 payments of $500.00); then
(b) The Defendant shall pay to the Plaintiffs $1,500.00 per month, commencing August 15, 2014 and continuing thereafter on the fifteenth (15th) day of each succeeding month until January 15, 2016 (18 payments of $1,500.00); then
(c) The Defendant shall pay to the Plaintiffs a final payment of $1,000.00 on February 16, 2016.
E. The Claim and Judgment shall be deemed paid in full in the event the Defendant makes all payments as and when required hereunder, resulting in total payments to the Plaintiffs of $40,000.00 without interest; and
F. At such time as the terms of the Stipulation and Consent Order have been fully and timely performed by the Defendant, the Plaintiffs shall forward to Defendant, a duly executed Order of Satisfaction for filing by the Defendant with the Court, and by such Order of Satisfaction to be filed by Defendant, shall cause the judgment entered or to be entered as "Agreed, Settled and Satisfied"
G. Forbearance: Provided no event of default has occurred and has continued uncorrected by Defendant for a period of ten (10) days from the date of written notice of such default given by Plaintiffs to Defendant, Plaintiffs on their part, agree to forbear in the exercise of any post judgment remedies available to Plaintiffs against the Defendant arising from the judgment to be entered in connection with this Stipulation and Consent Order, specifically including but not limited to interrogatories in aid of execution, levy and execution and garnishment or other involuntary seizure or encumbrance of any of the assets or property of Defendant.
H In the event the Defendant fails to make the payments as and when required by this Stipulation and Consent Order, and such default has continued uncorrected by Defendant for a period of ten (10) days from the date of written notice of such default given by Plaintiffs to Defendant, the entire amount of the Claim shall be due and owing in full, and the Plaintiffs shall have the right, notwithstanding any Bankruptcy discharge received by the Defendant, to pursue their rights and remedies in the enforcement and collection of the Claim.
I. The Debtor/Defendant, as Third Party Plaintiff, agrees that upon Court approval of this Stipulation and Consent Order, the Third Party Complaint against Carla Cramer Dipasquale shall be dismissed with prejudice and the claim of the Third Party Plaintiff against Carla Cramer Dipasquale arising out of discovery sanctions shall be released.
J. Each party shall pay its own attorney fees and costs.
CONSENTED TO:
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Michael G. Rinn, Esquire
Law Office of Michael G. Rinn
Counsel for Defendant and
Third Party Plaintiff
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John A. Austin #00776
Counsel for Plainitffs
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Carla DiPasquale Cramer
Third Party Defendant
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Steven Cramer
Defendant and Third Party Plaintiff
cc:
Michael G. Rinn, Esquire
John A. Austin , Esq
29 W. Susquehanna Avenue, #302
Towson MD 21204
Carla DiPasquale Cramer
204 Morris Avenue
Lutherville, MD 21093
Office of the United States Trustee
Marc H. Baer, Trustee