Opinion
Case No.: 07-18467-NVA.
February 28, 2008
Michael E. Blumenfeld, Attorney for American General, Financial Services, Inc.
Edward M. Miller, Attorney for herbert B. Holland.
Michael E. Blumenfeld (Bar No. 025062), Brown Sheehan, LLP, Baltimore, Maryland, Attorneys for Movant.
Edward M. Miller, Miller and Miller, LLP., Westminster, Maryland, Attorney for Debtor.
ORDER OF STIPULATION OF AGREEMENT AND CONSENT ORDER OF AMERICAN GENERAL FINANCIAL SERVICES, INC.
UPON CONSIDERATION of the Motion for Relief from the Automatic Stay of American General Financial Services, Inc. ("American General"), the consent of Herbert B. Holland (the "Debtor"), (collectively, the "Parties") having been given, and good cause having been demonstrated, the Parties state as follows:
Pursuant to the terms of a Loan Agreement and Disclosure Agreement (the "Agreement") dated May 25, 2006, Debtor became indebted to American General in the original principal amount of Twenty-Five Thousand, Seven Hundred Ninety-Seven Dollars and Fifty-Two Cents ($25,797.52). To secure repayment of the Agreement, American General took a security interest in Debtor's 2001 Chevrolet Corvette, VIN No. 1G1YY32G315107130 (the "Vehicle").
Debtor has failed to make the required payments due to American General under the Agreement. As of the filing of the Motion for Relief from the Automatic Stay, Debtor is delinquent post petition in the amount of Three Thousand, Six Hundred Fifty-One Dollars and Thirty-Five Cents ($3,751.35). The itemization of delinquent post-petition payments, attorneys' fees and Court costs is as follows:$150.00 TOTAL $3,751.35
September 2007 $590.27 November 2007 $590.27 December 2007 $590.27 January 2007 $590.27 February 2007 $590.27 Attorney Fees $650.00 Court Costs As a result, American General has been forced to incur attorneys' fees in the amount of Six Hundred Fifty Dollars ($650.00) and Court costs in the amount of One Hundred Fifty Dollars ($150.00), both of which are included in the itemization above.The Parties now seek to resolve their dispute without the costs and risks of litigation by entering into this Consent Order.
The Parties acknowledge that each has participated in the negotiation of this Consent Order, and no provision of this Consent Order shall be construed against or interpreted to the disadvantage of any party hereto by any court or other governmental or judicial authority by reason of such party having or being deemed to have structured, dictated or drafted such provision.
ORDERED, that the Automatic Stay is terminated as to American General and its successors and assigns and as to any purchaser at a sale conducted at the discretion of American General, and it successors and assigns, so as to permit American General and its successors and assigns to exercise any and all of its rights and remedies under its judgments and applicable non-bankruptcy laws, including the right to repossess and sell the Vehicle and granting American General such other relief as this Court finds just and proper.
ORDERED, that American General shall forbear from exercising the rights set forth above, provided that Debtor complies with all of the following terms:
1. That Debtor shall resume regular monthly payments beginning on March 4, 2008, until the outstanding debt is satisfied; and
2. That Debtor shall make additional monthly payments for the next four (4) months beginning on March 20, 2008, in the amount of Nine Hundred Thirty-Seven Dollars and Eighty-Four Cents ($937.84), representing one fourth (1/4th) of the total post-petition arrearages, attorneys' fees and Court costs.
ORDERED, that if any of the payments described herein are not made timely, or any other default occurs under the applicable Agreement, then American General, or its successor and assigns, shall file a notice of default ("Notice") with this Court, which Notice shall be presumed served upon mailing to Debtor's last known address and to his counsel, and if such default is not cured within ten (10) days ("Cure Period"), American General is authorized to exercise immediately its rights as set forth above, including but not limited to the right to repossess and sell the Vehicle. Furthermore, Debtor may avail himself of only two Cure Periods, and upon Debtor's third failure to remit a payment, or upon the third occurrence of an event of default under the applicable Agreement and Security Instrument, American General need not send Debtor notice, but may instead proceed to exercise its rights under applicable law and under the applicable Agreement and Security Instrument, without further notice, order or hearing of this Court; and it is further
ORDERED, that if this case is converted from a Chapter 11 to a Chapter 7, Debtor agrees that: (1) the automatic stay as to American General shall be terminated without further hearing before this Court; (2) American General may exercise any and all of its rights and remedies under its judgments and applicable non-bankruptcy laws, including the right to repossess and sell the Vehicle and granting American General Financial Services, Inc. such other relief as this Court finds just and proper; and (3) the ten (10) day waiting period mandated by Rule 4001(a)(3) is hereby waved; and it is further
ORDERED, that the Motion to Lift Stay Hearing scheduled for Thursday, February 21, 2008 at 1:00 p.m., shall be dismissed based on the foregoing reasons asserted in this Consent Order.