Opinion
Case No. 08-15079-JS.
July 18, 2008
Michael C. Bolesta, Bar No.: 27667, Gebhardt Smith LLP, Baltimore, MD, Counsel to Navistar, Financial Corporation.
Deborah G. VanBergen, Bar No.:, Crain Professional, Bethesda, Maryland, Counsel to the Debtor.
Vance Dennis Dixon, Owings Mills, Maryland, Debtor.
STIPULATION AND CONSENT ORDER TERMINATING THE AUTOMATIC STAY AS TO NAVISTAR FINANCIAL CORPORATION AND A CERTAIN VEHICLE OWNED BY THE DEBTOR
Navistar Financial Corporation ("Navistar") and Vance Dennis Dixon (the "Debtor"), by their respective undersigned counsel, hereby stipulate and agree that, subject to the terms of this Stipulation and Consent Order, Navistar shall be granted relief from the automatic stay of 11 U.S.C. § 362(a) to enforce its non-bankruptcy law rights and remedies with respect to a 2000 Freightliner Sleeper Tractor, VIN # 1FUYSSZB1YLG34758 (the "Vehicle") owned by the Debtor, and state as follows:
STIPULATION
WHEREAS, on or about April 11, 2008 (the "Petition Date"), the Debtor filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code (the "Code"); and
WHEREAS, the Debtor is presently indebted to Navistar in connection with a commercial loan (the "Loan") that Navistar provided to the Debtor, which loan is evidenced by, among other things, a Commercial Loan and Security Agreement, dated September 21, 2005, executed by and between the Debtor and Navistar (the "Agreement"); and
WHEREAS, all indebtedness that is owed by the Debtor to Navistar under the Agreement is secured by a first-priority duly perfected security interest in, to and against the Vehicle, pursuant to the Agreement and the Notice of Security Interest Filing relating to the Vehicle that was issued by the State of Maryland ("Security Interest Filing"). The Agreement and the Security Interest Filing are collectively referred to herein as the "Loan Documents;" and
WHEREAS, pursuant to the Debtor's Chapter 13 Plan (the "Plan"), the Debtor is obligated, inter alia, to pay Navistar's pre-petition arrears under the Plan and to continue making post-petition payments under the Loan Documents directly to Navistar; and
WHEREAS, the Debtor is currently in default under the Loan Documents as a result of his failure to make all payments under the Agreement and Plan, as and when due. Consequently, all indebtedness that is owed under the Loan and the Loan Documents is immediately due and owing from the Debtor to Navistar. Additionally, there remains due and owing from the Debtor to Navistar under the Loan Documents a portion of the June 27, 2008 post-petition payment in the amount of $338.20; and
WHEREAS, as of the Petition Date, the Debtor was indebted to Navistar under the Loan and the Loan Documents, exclusive of attorneys' fees and expenses, in the amount of $10,369.30; and
WHEREAS, the Debtor acknowledges that Navistar is entitled on the basis of the Debtor's defaults in connection with the Loans and the Loan Documents to relief from the automatic stay of 11 U.S.C. § 362 to permit Navistar to exercise and enforce its various rights and remedies under the Loan Documents and applicable law with respect to the Vehicle; and
WHEREAS, subject to the terms and conditions of this Stipulation and Consent Order, Navistar has agreed to forbear from exercising its non-bankruptcy law rights and remedies with respect to the Vehicle.
CONSENT ORDER
NOW, THEREFORE, on the basis of the foregoing stipulations, it is, by the United States Bankruptcy Court for the District of Maryland, hereby
ORDERED, that, subject to the terms and conditions of this Stipulation and Consent Order, the automatic stay of 11 U.S.C. § 362(a) shall be, and hereby is, terminated to permit Navistar to exercise any and/or all of its non-bankruptcy law rights and remedies with respect to the Vehicle including, without limitation, repossessing and selling the Vehicle and applying the proceeds arising therefrom to reduce the indebtedness that is owed by the Debtor to Navistar under the Loan Documents; and it is further
ORDERED, that Navistar agrees to forbear from exercising its non-bankruptcy law rights and remedies with respect to the Vehicle unless and until an "Event of Default" (as described herein below) under the terms of this Stipulation and Consent Order or the Loan Documents has occurred, provided, however, that, if an Event of Default under the Stipulation and Consent Order occurs, Navistar shall be entitled immediately to exercise its non-bankruptcy law rights and remedies as described above without any notice to the Debtor or Order of the Court; and it is further
ORDERED, that beginning July 1, 2008, the Debtor shall commence making timely monthly payments to Navistar under the Loan pursuant to the terms and conditions of the Loan Documents, time being of the essence, until all payments due thereunder from and after the Petition Date have been paid in full. The aforementioned payments shall be applied by Navistar towards the payment of the Debtor's indebtedness under the Loan Documents as provided in those documents. In addition to, but not in lieu of, any of the remedies Navistar may have under the Loan Documents, in the event of any of the aforementioned payments are received by Navistar after its due date, a late fee may be assessed at the rate set forth in the Agreement, which late fee shall be added to the Debtor's debt to Navistar; and it is further
ORDERED, that in addition to the events of default contained in the Loan Documents, it shall be an Event of Default if the Debtor fails to make any regular monthly payment to the Trustee on account of the Plan or if the Debtor fails to make any regular monthly payment as described above so as to be actually received by Navistar on or before the date on which such payment is due, whether or not such date falls on a non-banking day, such as Saturday, Sunday or holiday, time being of the essence; and it is further
ORDERED, that the terms and conditions of the Loan Documents are incorporated herein by reference and made a part hereof as if fully set forth herein. Except as modified by this Stipulation and Consent Order, the parties hereto acknowledge and agree that all other terms and conditions of the Loan Documents shall remain unchanged, in full force and effect and are hereby ratified and confirmed by the Debtor and Navistar in all respects; and it is further
ORDERED, that the date of receipt of any payment described in this Stipulation and Consent Order shall be the date on which Navistar actually received such payments, if received on a banking day; otherwise, if received on a non-banking day, the date of the receipt by Navistar shall be the first banking day following the day of actual receipt. The Debtor is responsible for insuring that Navistar receives payments timely and that payments, whether the Debtor make payment by a check or in good funds. If any payment is made by a check that is later returned for insufficient funds or not payable for any other reason, the payment shall be deemed not to have been made; and it is further
ORDERED, that the terms of this Stipulation and Consent Order shall be binding upon Navistar, the Debtor, any trustee that may be appointed for the Debtor, and any successor trustee, including a Chapter 7 trustee that may be hereinafter appointed.