Opinion
Case No: 09-25072 NVA, Adversary No: 10-00323.
January 18, 2011
James R. Schraf 03470, Logan, Yumkas, Vidmar Sweeney, LLC, Annapolis, Maryland, Attorney for Sean C. Logan, Plaintiff and Chapter 7 Trustee.
Thomas C. Valkenet 03968, Young Valkenet, Baltimore, Maryland, Attorney for Defendant, Wells Fargo Bank, N.A.
STIPULATION AND CONSENT ORDER GRANTING TRUSTEE'S MOTION TO APPROVE SETTLEMENT PURSUANT TO BANKRUPTCY RULE 9019(a) WITH WELLS FARGO BANK, N.A.
Sean C. Logan, Chapter 7 Trustee ("Trustee") in the bankruptcy case of Thomas W. Franklin ("Debtor"), by his undersigned counsel and Wells Fargo Bank, N.A. ("Wells Fargo") by their undersigned counsel do hereby enter into this Stipulation and Consent Order:
WHEREAS, Debtor filed a voluntary Chapter 7 Petition on August 17, 2009 (the "Petition Date"), initiating this bankruptcy case and Sean C. Logan was appointed Chapter 7 Trustee;
WHEREAS, the Debtor was the record owner of a one-half interest in real property located at 2910 Illinois Avenue Baltimore, Maryland (the "Property") on the Petition Date;
WHEREAS, a transfer and refinancing of the Property occurred at a settlement on March 24, 2009;
WHEREAS, the parties hereto agree that deed of trust in connection with the refinancing was not filed in the land records of Baltimore County, Maryland until July 27, 2009 within ninety (90) days of the Petition Date;
WHEREAS, the Trustee has filed an adversary proceeding styled as Logan vs. Grand Bank, et al., Adversary No. 09-00323 (the "Adversary Case") and has alleged that the deed of trust referred to above was filed within ninety (90) days of the Petition Date, and may be avoidable by the Trustee as set forth in the Amended Complaint filed in the Adversary Case;
WHEREAS, the parties hereto agree that the transfer of the Property and lien evidenced by the deed of trust filed on July 27, 2009 may be avoidable by the Trustee;
NOW THEREFORE, it is stipulated and agreed by and between the Trustee and the Defendants, and it is hereby ORDERED, ADJUDGED and DECREED by this Court that:
1. The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334, and this is a core proceeding under 28 U.S.C. § 157(b)(2) and venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
2. Sufficient and adequate notice of Trustee's Motion to Approve Settlement Pursuant to Bankruptcy Rule 9019(a) with Wells Fargo Bank, N.A. has been given pursuant to Bankruptcy Rule 9019. No further notice of, or hearing on, the relief sought in this Stipulation and Consent Order is necessary or required.
3. The stipulations set forth above form an integral and substantive part of the Stipulation and Consent Order and are incorporated herein.
4. The terms of the Settlement Agreement attached to the Trustee's motion for approval of this settlement as Exhibit 1 are incorporated herein and form a part of this order.
5. Within ten (10) days after this Order becomes a final order the Trustee shall pay Wells Fargo the sum of $84,486.58 and to retain the sum of $40,486.59 for the benefit of the unsecured creditors of the estate.
6. Upon payment by the Trustee of the amount set forth in paragraph five (5) above, the parties through their counsel will execute a stipulation of dismissal with prejudice of the adversary proceeding.
7. Wells Fargo waives any potential secured or unsecured claims against the bankruptcy estate, and hereby releases any such claim secured or unsecured.
8. The settlement of the potential dispute regarding the validity of the transfer of the Property and asserted lien against the Property is in the best interest of the bankruptcy estate.
9. The Parties represent and warrant that (i) they have read and understand the terms of this Stipulation and Consent Order, (ii) they have been represented by counsel with respect to this Stipulation and Consent Order and all matters covered by and relating to it, and (iii) the Parties to this Stipulation and Consent Order have entered into this Stipulation and Consent Order for reasons of their own and not based upon representations of any other party hereto.
10. This Stipulation and Consent Order does not constitute an admission by any party to any violation of any statute, regulation, or contract, or of any fact, condition, circumstance, violation of law, or standard of liability in law or equity, arising out of or in any way related to the subject matter described in this Stipulation and Consent Order. This Stipulation and Consent Order is being entered into by the Parties solely to settle and compromise any and all disputes within the scope of this Stipulation and Consent Order. This Stipulation and Consent Order and any settlement discussion related hereto shall be subject to Federal Rule of Evidence 408 and any other applicable confidentiality rule and, as such, shall not be admissible in any proceeding, whether by claim or defense, as evidence or an admission of any kind, except that in a proceeding to enforce the provisions of this Stipulation and Consent Order, any settlement discussions shall be admissible as evidence solely for the purposes of that proceeding.
11. Each of the Parties shall pay its own respective costs and attorneys' fees incurred with respect to the Adversary Case and this Stipulation and Consent Order.
12. The Parties hereto agree promptly to execute any further and additional documents and to take all further steps necessary to effectuate the terms and intent of this Stipulation and Consent Order as may be required.
13. This Stipulation and Consent Order may be amended, modified or supplemented only by written agreement of the Parties hereto executed by all of the Parties and approved by the Court. No provision of this Stipulation and Consent Order may be waived except in a writing signed by the Party against whom such waiver is sought to be enforced.
14. This Stipulation and Consent Order constitutes the entire agreement and supersedes any prior written and/or verbal agreements between the Trustee and the Defendants.
15. By this Stipulation and Consent Order, each of the Parties submits to the jurisdiction of the Bankruptcy Court for any action to enforce or interpret this Stipulation and Consent Order.
16. This Stipulation and Consent Order may be executed in counterparts and all such counterparts when so executed shall together constitute the final Stipulation and Consent Order as if one document had been signed by all of the Parties. This Stipulation and Consent Order may be executed by facsimile copy and each signature thereto shall be and constitute an original signature, again as if all Parties had executed a single original document.
17. This Stipulation and Consent Order shall be construed and interpreted in accordance with the laws of the State of Maryland. This Stipulation and Consent Order shall not be construed against any of the Parties but shall be given a reasonable interpretation.
18. Should a court of competent jurisdiction deem any provision of this Stipulation and Consent Order illegal, invalid or otherwise unenforceable, in whole or in part, the remainder of this Stipulation and Consent Order shall be valid and enforceable to the fullest extent permitted by law.
19. This Stipulation and Consent Order is binding upon and inures to the benefit of the Parties hereto and their respective parent corporations, subsidiaries, affiliates, directors, officers, agents, employees, stockholders, heirs, executors, administrators, legal representatives, predecessors, successors and assigns.