Opinion
Case No. 08-15258-RAG.
July 15, 2008
STIPULATION AND CONSENT ORDER TERMINATING THE AUTOMATIC STAY AS TO NAVISTAR FINANCIAL CORPORATION AND CERTAIN VEHICLES OWNED BY THE DEBTOR
Navistar Financial Corporation ("Navistar") and Stephen J. Knight (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 1999 Wabash Reefer, VIN No. 1JJV532WXXL568363 ("Vehicle No. 1"), a 1998 Wabash Reefer, VIN No. 1JJV532W4WL451876 ("Vehicle No. 2"), and a 1997 Utility Reefer, VIN No. 1UYVS2531VM296615 ("Vehicle No. 3" and, collectively with Vehicle No. 1 and Vehicle No. 2, the "Vehicles") owned by the Debtor, and state as follows:
STIPULATION
WHEREAS, on or about April 15, 2008 (the "Petition Date"), the Debtor and his wife, Patricia E. Knight, filed a joint voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code; and
WHEREAS, the Debtor is presently indebted to Navistar in connection with various commercial loans (collectively, the "Loans") that Navistar provided to the Debtor, which Loans are evidenced by, among other things, various Commercial Loan and Security Agreements executed and delivered by the Debtor to the order of Navistar (collectively, the "Agreements"); and
WHEREAS, all indebtedness that is owed by the Debtor to Navistar under the Agreements is secured by first-priority duly perfected security interests in, to and against the Vehicles, pursuant to the Agreements and various Financing Statements and Certificates of Title issued by the States of Maine with respect to Vehicle No.'s 1 and 2 and a Notice of Security Interest Filing issued by the State of Maryland with respect to Vehicle No. 3 (collectively, the "Security Documents"). The Agreements and the Security Documents are collectively referred to herein as the "Loan Documents;" and
WHEREAS, pursuant to the Debtor's Second Amended Chapter 13 Plan (the "Plan"), the debtor is obligated, inter alia, to make adequate protection payments with respect to Navistar's claims on Vehicle No. 1 and Vehicle No. 2 until confirmation of the Plan and, thereafter, the Debtor will pay such claims in full, as allowed, through equal monthly payments under the Plan; and
WHEREAS, the Debtor is currently in default under the Loan Documents as a result of his failure to make all payments under the Agreements as and when due. Consequently, all indebtedness that is owed under the Loans 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 the April 27, 2008, May 27, 2008 and June 27, 2008 post-petition payments in the amount of $706.58 each with respect to Vehicle No. 1; the April 21, 2008, May 21, 2008 and June 21, 2008 post-petition payments in the amount of $783.33 each with respect to Vehicle No. 2; and the May 7, 2008 and June 7, 2008 post-petition payments in the amount of $526.91 each with respect to Vehicle No. 3; and
WHEREAS, as of the Petition Date, the Debtor was indebted to Navistar under the Loans and the Loan Documents, exclusive of attorneys' fees and expenses, in the aggregate amount of $30,496.48; and
WHEREAS, prior to the Petition Date, the Debtor voluntarily surrendered Vehicle No. 3 to Navistar; 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 Vehicles; 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 Vehicle No. 1 and Vehicle No. 2; and the Debtor consents to Navistar exercising its non-bankruptcy law rights and remedies with respect to Vehicle No. 3, including selling Vehicle No. 3 and applying the proceeds arising therefrom to reduce the indebtedness that is owed by the Debtor to Navistar under the Loan Documents.
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 Vehicles including, without limitation, repossessing and selling the Vehicles 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 Vehicle No. 1 and Vehicle No. 2 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 or Loan Documents 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 Navistar shall be entitled immediately to exercise its non-bankruptcy law rights and remedies with respect to Vehicle No. 3, including selling Vehicle No. 3 and applying the proceeds arising therefrom to reduce the indebtedness that is owed by the Debtor to Navistar under the Loan Documents, without any notice to the Debtor or Order of the Court; and it is further
ORDERED, that upon entry of this Consent Order, the Debtor shall commence making timely monthly payments to the Trustee under the Plan, time being of the essence, until all payments due thereunder are paid in full (the "Plan Payments"). All Plan Payments received by Navistar shall be applied by Navistar toward the payment of the Debtor's indebtedness under the Loan Documents as provided in those documents; and it is further
ORDERED, it shall be an Event of Default if the Debtor fails to make any regular monthly payment to the Trustee in connection with the Plan, 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 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 13 trustee that may be hereinafter appointed.