Opinion
Case No. 11-32994 Adv. Proc. No. 12-00123
04-13-2012
In re: MICHAEL A. FAMA Debtor. FIRST MARINER BANK, Plaintiff, v. MICHAEL A. FAMA, Defendant.
Juliana Bell Federal Bar No. 29182 Miles & Stockbridge P.C. Counsel to First Mariner Bank Nicholas J. DelPizzo, III Federal Bar No. 24666 Counsel to Defendant cc: Juliana Bell Miles & Stockbridge P.C. Counsel to First Mariner Bank Nicholas J. DelPizzo, III Counsel to Defendant George W. Liebmann Liebmann & Shively, P.A. Chapter 7 Trustee Office of the United States Trustee Garmatz Federal Courthouse
______________________
U.S. BANKRUPTCY JUDGE
STIPULATION AND CONSENT ORDER
First Mariner Bank (the "Plaintiff" or "Bank"), and Michael A. Fama (the "Defendant"), by their respective undersigned counsel, hereby stipulate and agree as follows:
WHEREAS, on or about May 21, 2009, the Defendant opened an individual checking account at the Bank (the "Account");
WHEREAS, the Defendant is indebted to the Bank in the amount of $3,890.07 (the "Debt"), which amount comprises an overdraft of $3,777.60, overdraft fees of $78 and other costs and fees of $34.47, as well as attorneys' fees and costs in addition to the Debt, because of the Defendant's overdraft of the Account;
WHEREAS, on November 22, 2011, the Defendant filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code;
WHEREAS, on February 21, 2012, the Bank 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) and 523(a)(6) (the "Adversary Proceeding"), and seeking attorneys' fees and other costs to be awarded in connection with the Adversary Proceeding; and
WHEREAS, the Bank and the 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 Bank 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 Bank and against the Defendant in the amount of $5,300 (the "Claim"), which amount comprises the Debt of $3,890.07 (comprising an overdraft of $3,777.60, overdraft fees of $78, and other costs and fees of $34.47), plus attorneys' fees and costs of $1,409.93 incurred in connection with the Adversary Proceeding.
C. The Claim, upon which judgment is entered hereby in the total amount of $5,300, is hereby deemed non-dischargeable in the Defendant's bankruptcy case pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(6);
D. The Bank shall accept, as payment in full of the Claim, the sum of $5,300, which amount shall be paid as follows: the Defendant (a) shall surrender to the Bank, as of the date the Court enters this Stipulation and Consent Order, all money held in all accounts at the Bank held by him or any of his corporate entities, including but not limited to the C&M Flooring Services account opened on or about September 6, 2008; and (b) shall pay the Bank $500 on April 1, 2012; and (c) shall pay the Bank $200 on April 15, 2012 and, thereafter, $200 on the fifteenth (15th) day of each succeeding month until the Claim is paid in full;
E. In the event the Defendant fails to make the payments as and when required by this Stipulation and Consent Order, the entire amount of the Claim shall be due and owing in full, and the Bank shall have the right, notwithstanding any bankruptcy discharge received by the Defendant, to pursue its rights and remedies in the enforcement and collection of the Claim.
F. The Claim 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 Bank of $5,300; and
G. There shall be no cure period or notice of default required prior to the Bank exercising any and all of its rights and remedies under this Stipulation and Consent Order or applicable non-bankruptcy law for payments missed by the Defendant hereunder.
[Signatures Next Page]
CONSENTED TO:
______________________
Juliana Bell
Federal Bar No. 29182
Miles & Stockbridge P.C.
Counsel to First Mariner Bank
CONSENTED TO:
______________________
Nicholas J. DelPizzo, III
Federal Bar No. 24666
Counsel to Defendant
I HEREBY CERTIFY that the terms of the copy of this Stipulation and Consent Order are identical to those set forth in the original Stipulation and Consent Order; and the signatures represented by the /s/ on this copy reference the signatures of consenting parties on the original Stipulation and Consent Order.
Juliana Bell
Juliana Bell
cc:
Juliana Bell
Miles & Stockbridge P.C.
Counsel to First Mariner Bank
Nicholas J. DelPizzo, III
Counsel to Defendant
George W. Liebmann
Liebmann & Shively, P.A.
Chapter 7 Trustee
Office of the United States Trustee
Garmatz Federal Courthouse