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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34180
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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Settlement

Resolved Question:

Dear Just Answer:


Below is my bankruptcy Chapter 13 settlement agreement:


Whereas, Plaintiff brought the above captioned adversary proceeding against Defendant, and


Whereas, Defendant has denied the allegations of Plaintiff, and Whereas, Plaintiff and Defendant have agreed to settle their disputes upon the following terms and conditions:


Now Therefore,


1. Defendant agrees to pay the sum of Nine Thousand Five Hundred and 00/100 Dollars ($9,500.00) to Plaintiff, payable upon the approval of the Motion to Compromise by the United States Bankruptcy Court for the Eastern District of North Carolina. Said amount is being held in trust by an escrow agent, and will be paid to Plaintiff upon the Court’s approval of this Motion. If the Plaintiff does not receive the entire sum of $9,500.00 within seven (7) days for any reason, then Defendant has an additional seven (7) days to cure. If not, then this settlement agreement is NULL and VOID.


 


2. Plaintiff agrees that the Court’s approval of the Motion to Compromise will dismiss this action with prejudice.


 


3. The Plaintiff, Defendant, Defendant’s counsel acknowledge that they have read and fully understand this settlement agreement. Wherefore the parties and Defendant’s Counsel have placed their hands to this SETTLEMENT AGREEMENT.


------------------------------------------


Below is the Motion:


MOTION FOR APPROVAL OF COMPROMISE OF CLAIM AND DISMISSAL WITH PREJUDICE


 


Now comes the Defendant in the above-captioned cause and motions the Court for approval of compromise of claim in the cause and in support thereof alleges the following:


1. Plaintiff brought this action against Defendant contesting dischargeability.


2. Defendant has denied the allegations of the Plaintiff;


 


3. As a complete settlement of all claims the parties have agreed to the following:


 


a. Defendant hereby agrees to pay the sum of nine thousand five hundred and 00/100 dollars ($9,500.00) to the Plaintiff upon the Court’s approval of this Motion. The Defendant obtained said sum from family members, and, as such, the payment will not affect her ability to meet the terms of her Chapter 13 Plan.


 


b. Plaintiff agrees to dismiss this action with prejudice.


 


3. Defendant believes the settlement to be in the best interests of the estate. Wherefore, Defendant motions the Court for approval of the proposed compromise and dismissal of the adversary proceeding with prejudice as set out above.


-------------------------------------------------------------------------------


My question is Why is the other lawyer not incorporating my settlement agreement to the motion, but write a little differently? Will my settlement agreement carry any weight at all in court vs the motion if the defendant do not pay me? If the judge is to issue an order to approve the settlement and I did not get paid, the case will be dismissed with prejudice and I do not have any saying in the case at all? Can I even reopen the case at all?  I forgot another thing, if the settlement amount is held in trust for me pending approval of the court, do I need to worry about the motion at all?

Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 1 year ago.
My question is Why is the other lawyer not incorporating my settlement agreement to the motion, but write a little differently?

A: Because the other lawyer wants to control the outcome of the settlement.

Will my settlement agreement carry any weight at all in court vs the motion if the defendant do not pay me?

A: Your settlement has no weight at all, unless it is incorporated into the court's final order. However, the motion itself, is also not an order -- it merely describes what the moving party requests from the court. The motion should have an accompanying order, and that is the only document that counts, because that's what the court will sign and thereby order.

Now, if this motion contains a place at the bottom for the judicial officer to sign, so as to turn the motion into an order, then that would mean that the motion and the order are one document, and once again, your settlement would have no weight at all, because it won't be ordered.

If the judge is to issue an order to approve the settlement and I did not get paid, the case will be dismissed with prejudice and I do not have any saying in the case at all?

A: I agree, that this motion language is insufficient to protect your rights. Generally, a settlement is written with language that authorizes an aggrieved party to seek enforcement in the trial court, and the dismissal order is made pursuant to the settlement agreement, so as to reserve ancillary jurisdiction with the court to enforce the settlement.

Can I even reopen the case at all?

A: Based on the language of the motion, the answer is no.

I forgot another thing, if the settlement amount is held in trust for me pending approval of the court, do I need to worry about the motion at all?

A: The assumption is that an escrow agent has agreed to distribute the money to you upon presentation of the dismissal order. If yes, then you wouldn't have much to worry about -- as long as the escrow instructions are sufficiently precise.

Hope this helps.

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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34180
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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