Bankruptcy Case No. 11-30937 JTM
Elizabeth R. Loveridge, David A. Nill, WOODBURY & KESLER, P.C. Attorneys for Chapter 7 Trustee
Elizabeth R. Loveridge,
David A. Nill,
WOODBURY & KESLER, P.C.
Attorneys for Chapter 7 Trustee
ORDER APPROVING SETTLEMENT AGREEMENT
Elizabeth R. Loveridge, Chapter 7 trustee ("Trustee"), moved for Court approval of a settlement between the Trustee and Kendell Kennington. On February 25, 2013, the Trustee sent notice of the hearing on the motion to all parties and to the creditors listed on the matrix. There have been no responses or objections to the Motion.
Based upon the Motion, the pleadings on file with the Court, and being apprised of the controlling facts and law, and for good cause appearing the Court
The Motion to Approve Settlement Agreement between the Trustee and Kendell Kennington is granted, the Settlement Agreement attached as Exhibit "A" is approved, and the hearing set for March 27, 2013 at 11:00 a.m. is stricken.
DESIGNATION OF PARTIES TO BE SERVED
Service of the ORDER APPROVING SETTLEMENT AGREEMENT shall be served to the parties as follows: By Electronic Service: I certify that the following are registered CM/ECF users and will be served with the ORDER APPROVING SETTLEMENT AGREEMENT through the CM/ECF system: U.S. Trustee
Elizabeth R. Loveridge, Chapter 7 Trustee
Stephen M. Enderton
By U.S. Mail: the ORDER APPROVING SETTLEMENT AGREEMENT should be served on the following according to Rule 5(b). Kendell Kennington
3087 S. Melbourne St.
Salt Lake City, Utah
CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2013, I sent a copy of the ORDER APPROVING SETTLEMENT AGREEMENT via ECF, first class U.S. Mail or as otherwise noted to:
UNITED STATES TRUSTEE'S OFFICE
Attn: Rayla Meyers (via ECF)
Stephen M. Enderton (via ECF)
3087 S. Melbourne St.
Salt Lake City, Utah
Elizabeth R. Loveridge, Chapter 7 Trustee (the "Trustee") and Kendell Kennington (the "Debtor") agree as follows:
A. The Debtor and his spouse filed a Chapter 7 bankruptcy, Case No. 11-30937 on July 27, 2011 (the "Petition Date").
B. After the Petition Date, the Debtor, formerly an insurance agent, received commissions for insurance contract renewals of approximately $13,050.00 (the "Renewal Commissions").
C. The Debtor also received a 2011 tax refund of $1,898.00 (the "Refund").
D. The Renewal Commissions and the Refund are property of the bankruptcy estate.
E. The Trustee demanded the Debtor deliver the Renewal Commissions and the Refund to the estate.
F. The Debtor amended his schedules to claim an exemption for the Renewal Commissions.
G. The Trustee objected to the claimed exemption of the Renewal Commissions. The objection remains pending before the Court.
H. The Trustee filed a Complaint in Adversary Proceeding No. 12-02537 to revoke the Debtor's discharge and recover the Refund (the "Action").
I. The parties now desire to settle the matter.
1. The Debtor will pay to the Trustee $10,420.00, which includes $420.00 to cover the estate's administrative costs and filing fees. The Debtor will pay to the estate $5,000.00 upon signing this Settlement Agreement, will pay monthly installments of $900.00 with the first installment due on January 31, 2013, and will pay the full $10,420.00 on or before June 30, 2013. Each payment must be in certified funds payable to Elizabeth R. Loveridge, Chapter 7 Trustee and must be delivered to the offices of Woodbury & Kesler, P.C, 265 East 100 South, Suite 300, Salt Lake City, Utah 84111.
2. The Trustee, upon receipt of the $10,420.00, releases, waives and discharges the Debtor, his heirs, agents, and successors in interest of all liabilities, debts, causes of action, rights and other claims arising out of the facts and transactions which are the subject of the Action or related to the Renewal Commissions or Refunds, whether such claims are known or unknown and whether such claims are currently existing or would accrue in the future.
3. The Debtor releases, waives and discharges all liability, debts, causes of action, rights, and other claims he has asserted or could assert against the Trustee and/or the bankruptcy estate of the Debtor arising out of the facts and transactions which are the subject of or related to the Action, the Refund or the Renewal Commissions, whether such claims are known or unknown and whether such claims are currently existing or would accrue in the future.
4. This Settlement Agreement is subject to and conditioned upon Court approval. The Trustee agrees to move for Court approval. The Debtor agrees to cooperate with the Trustee and to take all actions reasonably requested by the Trustee to support the Trustee's motion for Court approval of the Settlement Agreement.
5. Failure to pay any installmentt when due under this Settlement Agreement is a breach of this Settlement Agreement. If the Debtor fails to pay within 5 days of any due date, the Trustee may immediately, and without further notice to the Debtor, submit this Settlement Agreement and an affidavit stating the particulars of the Debtor's breach to the Court, and obtain a judgment awarding the Trustee $14,950.00, interest at the federal judgment interest rate in effect on November 30, 2012, plus costs and attorneys' fees incurred by the estate. The Debtor waives all defenses he might otherwise assert.
6. If the Court does not approve the Settlement Agreement, the parties will return to their pre-settlement positions and the matter will continue as if no settlement was reached.
7. This Settlement Agreement is the full and complete agreement of the parties. All prior negotiations, communication, representations, and discussions are merged into this Settlement Agreement.
8. The parties have: 1) consulted, or had opportunity to consult, with their attorney regarding this Settlement Agreement; and 2) read, reviewed, and understood this Settlement Agreement, or had opportunity to do so. The parties have signed this Settlement Agreement based on their own free will and without duress or compulsion.
SIGNED by the parties as follows: Dated this ___ day of December 2012. ________________
Dated this ___ day of December 2012.
Elizabeth R. Loveridge
Chapter 7 Trustee