vol 2 motions & pleadings.pdf

8/10/2019 Vol 2 Motions & Pleadings.pdf

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VVOOLLUUMMEE22

MMOOTTIIOONNSS&&PPLLEEAADDIINNGGSS

FFoorrIIppaadd

Copyright 2011

By the Law Offices of O. Max Gardner III, P.C.

All Rights Reserved.


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VOLUME2MOTIONSANDPLEADINGS

TABLEOFCONTENTS

Section Page

A.NOPROTESTMOTIONS

AbandonProperty MtAbandonwithInRemRemedyastoTaxHO

Fees

8

SurrenderRealPropertyCh13QuitClaim 10

SurrenderVehicle ReducePlanPayment 12

ApproveSettlements WorkersCompensation 15

SocialSecurityDisability 17

PersonalInjury 19

PhysicalDamageResidence 21

PhysicalDamage

Vehicle

Net

to

Debtors 23

PhysicalDamageVehicle SubstituteCollateral 25

PhysicalDamageVehicle Repairs 27

PreferenceRecovery 29

AdversaryProceeding 31

AdversaryProceedingLoanModification 33

LifeInsuranceSettlement 38

BriefinSupportofMttoApproveSettlement 40

AvoidJudicialLien AvoidJudicialLien 45

AvoidLienHouseholdGoods 47

AffidavitinSupportAvoidLienHHG 49

Continue

Automatic

Stay

MtContinue

Auto

Stay 52

DeclarationofDebtors 54

EmployProfessionals MtApproveEmploymentofSpecialCounsel 57

MtEmployProfessionalforSpecificPurpose 59

ApplicationtoEmployRealEstateBroker 61

ApplicationtoEmployIndependentExpert 63

FeeApplications FirstApplicationforInterimCompensation 66

FilingRequirements MtforWaiverofCreditCounseling&Other

Requirements

73

MtforPermanentWaiverofCreditCounseling

IncarceratedDebtor

75

ExParte

Mt

Extending

Time

to

file

Schedules

77

MtExcuseCompliancewithDSORequirements 78

MtExcusefromRequirementtoFileScheduleI 79

EmergencyMtStrikePetition 81

ModifyPlan MtModifytoAddMortgagePayments 84

MtModifytoAddTaxDebt 86

MtModifytoRemoveDebtsBasedon

SeparationofDebtors

88


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MtModifytoReducePlanPayments 90

MtModifytoReducePlanPaymentsTotal

DestructionofVehicle

92

BriefinSupportofMtModifyRemoveDebts 95

MtApproveDisbursementfrom401k 107

MtModifytoPaymentsMade 109

Mtfor

Hardship

Discharge 111

NewCredit MtApproveNewMortgageLoanPurchase

Residence

114

MtApproveMortgageRefinance 116

RefinancingInformationWorksheet 118

MtApproveMortgageRefinancewithPayoffof

Plan

119

MtApproveCreditAuthorizationforPurchaseof

Vehicle

121

SaleofProperty MtApproveSaleofPersonalProperty 124

MtApproveSaleofRealProperty 126

MtApprove

Sale

of

Commercial

Property 128

MtApproveSaleofVehicleNuncProTunc 130

MtApproveShortSaleofRealProperty 132

Servicemembers Act MtApplyServicemembersCivilReliefAct 135

SocialSecurityNumbers ExParteMtRestrictPublicAccess 138

ApplicationforOrderDirectingCorrectionofSSN 140

B.MOTIONS

AmendComplaint MtAmendComplaint 143

Motions

to

Consolidate

Mt

to

Consolidate

and

Joint

Administration

146ConvertObjPOCtoA.P. MtConvertObjPOCtoAdversaryProceeding 149

DeemMortgageCurrent MtReconsiderClaimofMortgageServicerand

DeclareMortgageCurrent

155

DiscoveryMotions MtCompelDiscoveryandForSanctions 160

GoodFaithLetter ResponsetoRTP 163

GoodFaithLetterCompelProperResponses 164

MtforLeavetoPropoundSupplemental

Interrogatories

166

MtQuashSubpoenatoProduceDocuments 168

MtQuashSubpoenaDirectedtoDtrCounsel 170

Mtfor

Rule

2004

Examination 172

MtforRule2004ExamandIssuanceof

SubpoenaDuces Tecum

174

ExhibitADocumentRequest 177

ExhibitBTopicsforExamination 179

ExhibitAtoSubpoenaforRule2004Exam 182

MtForAttorneyFeesPursuanttoFRCP37(c)(2) 184

MemorandumofPointsandAuthorities 186


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DeclarationofAttorneyforPlaintif 193

MtforRule7056(f)SummaryJudgment 194

AffidavitofDebtor 197

MotionstoDismiss MttoDismisstheComplaintFailuretoStatea

Claim

200

MtDismissFailuretoSubstitutePlaintif 202

MtDismiss

Lack

of

Subject

Matter

Jurisdiction

204

MtforJudgmentonthePleadings 206

MemorandumofPointsandAuthorities 207

MotionstoStrike MtStrikeAnswer 211

MtStrikeAffidavit 213

MtStrikeAffirmativeDefenses 215

Motions

for

Sanctions

MtSanctionsPursuanttoRule9011 219

Rule9011Letter 221

MtSanctionsRule9011Waive21DayPrior

Notice

222

MtSanctionsandAttorneyFeesFederal

CommonLaw

225

MotionsforTurnover MtSanctionsandforTurnover 228

C.RELIEFFROMSTAY

ObjectiontoMotionfor

ReliefFromStayReal

Property

DefendingaMotionforRelief 232

NoticeLettertoDebtor 236

MFRSHearingQuestionnaire 237

Request

for

Complete

Transaction

History 239 TILARequestforOwnerofNoteandDT 240

ShortQWR 241

ObjectiontoMFRSMEGA 244

ObjectionandMtStrikeAffidavit 258

MtDismissMFRSMERSwithBrief 260

MtDismiss MFRSNotHolderofOriginalNote 266

MtDismissMFRSNotRealPartyinInterest

AbsenceofCauseofAction

268

MtDismissAmendedMFRS 271

MtDismissMFRSFailuretoComplyw

HAMP/HARP

273

ObjectiontoNoticeofWithdrawalofMFRS 276

RequestforProductionof Documents 278

RequestforProductionandInterrogatories 290

RequestforAdmissionsofFact 296

InterrogatoriesandRequeststoProduce

ElectronicDiscovery

301

MtSetAsideWithdrawaland/orMtReconsider 310


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D.NOTICES

Notices NoticeOfPhoneNumberforDSORecipient 313

NoticeofOpportunityforHearing 314

Notice

of

Hearing 316 NoticeofAmendmenttoScheduleandMaster

MailingMatrix

318

NoticeofChangeofAddress 320

NoticeofChangeofEmployment 321

NoticeofContinuationofAutomaticStay 322

NoticeofDeathofDebtor 324

WithdrawalofObjectiontoProofofClaim 325

WithdrawalofMotion toWithdraw 326

WithdrawalofObjection/ResponsetoMFRS 327

WithdrawalofMotiontoModify 328

Notice

of

Voluntary

Dismissal

of

Ch

13 329 NoticeofVoluntaryDismissalofAdversary

ProceedingwPrejudice

330

StipulationofDismissalofAdversaryProceeding 331

NoticeofSettlement 332

NoticeofConversiontoCh7 333

NoticeofConversiontoCh13 334

Rule1019InformationNecessaryforConversion 335

StatementofSchedulesforConversion 336

NoticeofRemoval 337

NoticeofRescissionofReaffirmationAgreement 339

Rule

30(b)(6)

Notice

of

Deposition 340 NoticeofDepositionbyWrittenQuestions 345

NoticetoPreserveElectronicEvidence 351

E.OBJECTIONSTOPROOFSOFCLAIM

ObjectionstoProofsofClaim AttorneysWhoMishandleTheirClientsProofs

ofClaimLeaveThemselvesOpentoSignificant

Blame

356

DecipheringMortgageProofsofClaim 359

MortgageProofofClaimChecklist 366

Letterto

Creditor

re

Pending

Objection

to

Claim

370

Objection toPOCRule3001(c) 371

NewRule3001(c) 373

ObjectiontoPOCDuplicateClaim 375

ObjectiontoPOCNotTimelyFiled 377

ObjectiontoPOCImproperandUnauthorized

Fees

379

ObjectiontoPOCStatuteofLimitations 381


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ProofofClaimAdmitsSOL 384

ObjectiontoPOCIRSandNCDOR 386

ObjectiontoPOCLostNoteAffidavit 388

RTP,QWRandPayoffRequestreLostNote

Affidavit

390

MttoConvertObjectiontoPOCtoAdversary 397

MtStrike

Withdrawal

of

POC 399

F.OBJECTIONSANDRESPONSES

ObjectionsandResponses ObjectiontoTrusteesMotiontoModifyPlan 403

ObjectiontoTrusteesMtforAllowanceof

Claims

404

ObjectiontoNoticeofTerminationofAutomatic

StayPursuanttoAllegedDefaultofConsent

Order

406

Objection

to

Courts

Notice

of

Intent

to

Dismiss

AdversaryProceeding 408

ResponsetoObjectiontoConfirmation 410

ResponsetoObjectiontoConfirmationand

MotiontoDismiss

412

ResponsetoObjectiontoValuation 414

ResponsetoTrusteesObjectiontoClaimandMt

toAllowSecuredTreatmentofClaim

416

ResponsetoTrusteesObjectiontoClaimandMt

forSanctions

418


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A.NoProtest

AbandonProperty


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2009 Max Gardners Bankruptcy Boot Camp

IN THE UNITED STATES BANKRUPTCY COURT

WESTERN DISTRICT OF NORTH CAROLINASHELBY DIVISION

IN THE MATTER OF:

NAME: CHAPTER 13 CASE NO.OUR FILE NO.

ADDRESS:

SSN:

DEBTOR.________________________________________________

DEBTORS MOTION TO ABANDON REAL PROPERTY

(with In Rem Remedy as to taxes and HO fees)

COMES NOW, the debtor, by and through undersigned counsel, and moves theCourt, pursuant to 11 U.S.C. 554 and Bankruptcy Rule 6007(b), for an Order deemingthe debtors real property abandoned, and in support thereof states:

1. The matters set forth herein are core proceedings pursuant to 28 U.S.C.157 (b) (2)and In re Thompson, 193 B.R. 83, 84 (D.D.C. 1994).

2. The debtors filed his Voluntary Chapter 13 on __________ seeking the fundamentalprotections afforded by the bankruptcy laws and rules.

3. The Meeting of Creditors was held on __________.

4. The debtors plan was confirmed by order of this court on __________.

5. On Schedule A, the debtor listed real property located at: 9160 River Circle, Shelby,Cleveland County, North Carolina 28152. The legal description is: Being all of Lot 45of River Acres, more fully shown on plat recorded in Book 15 at Page 3, ClevelandCounty Registry.

6. Debtor estimated the fair market value of the property to be $380,000.00.

7. On Schedule D, the debtor listed the current mortgage servicer Homebanc Mortgage asthe secured creditor on the First and Second Mortgages.

8. There is no equity in the property and abandonment is the appropriate remedy.

9. Debtor desires to have the property declared abandoned and an order entered

thereon to prevent the potential problems with homeownership after surrendering thereal property in their Chapter 13 plan. To wit: tax assessments, judgments for notmaintaining the home, etc.

10. Debtor requests this Court issue an Order directing that Homebanc Mortgage willassume any and all risk of loss associated with, related to, or arising out of thesaid property, including, without limitation, liability for real and/or personalproperty taxes, hazard insurance, homeowner's dues, and maintenance of saidproperty, pursuant to Section 544 of Title 11 of the Bankruptcy Code.


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WHEREFORE, the Debtor respectfully requests the Court to issue an order findingabandoning the property and for such other and further relief as this Court deemsnecessary and just.

This the day of , 2009.

O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.

Attorney for the Debtor

NC State Bar #6164P.O. Box 1000

Shelby, NC 28151-1000(704) 487-0616

FAX (704) 487-0619

e-mail: [email protected]


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IN THE UNITED STATES BANKRUPTCY COURTFOR THE WESTERN DISTRICT OF NORTH CAROLINA

SHELBY DIVISION

IN THE MATTER OF:

NAME: Chapter 13 No.Our File No.

ADDRESS:

SSN:Debtors.

________________________________________________

MOTION TO MODIFY CHAPTER 13 PLAN

TO SURRENDER REAL PROPERTY AND TO QUIT-CLAIM PROPERTY TOTHE MORTGAGE SERVICER

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order modifying the plan and in support hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of thisCourt on ____________.

2. The 341(a) meeting of creditors was held in Shelby, North Carolina on____________.

3. The Chapter 13 plan was subsequently confirmed by order of this Court.

4. The plan presently provides for a monthly payment of $1146.00.

5. The Debtors plan as filed includes a first deed of trust in favor of CitiFinancialMortgage Company and a second deed of trust in favor of CitiFinancial (currently servicedby Resurgent Capital) on their residential real estate located at ____________.

6. The debtors have determined that due to substantial and material changes incircumstances since the confirmation of the plan in this case, they are no longer in afinancial position to retain this collateral and therefore desire to surrender the same to thesecured creditor listed herein and to grant said creditor relief from the automatic stay toforeclose on the property.

7. In support hereof, the debtors have attached hereto and incorporate hereinby this reference Amended Schedules I and J.

8. The debtors are therefore moving the Court to modify their plan by directingthe Trustee to strike the secured claim [plus any unsecured split-claim related thereto] ofthe creditor identified herein and by allowing the said creditor 120 days from the date of theentry of the order granting this motion to file any deficiency claims with the Chapter 13Trustee.


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9. The debtors are also moving the court pursuant to Section 544 of Title 11 ofthe Bankruptcy Code to abandon any interest they may have in the property to the securedcreditor named herein and to have such creditor assume any and all risk of loss associatedwith, related to, or arising out of the said property. The debtors are simply no longer in afinancial position to maintain or insure the property and such obligations would be

extremely burdensome to the debtors and the estate.

10. The debtors are also moving the Court to reduce the percentage payout tounsecured creditors with filed and allowed claims from 95% to 10% and to reduce the planpayments from $1146.00 per month to $410.00 per month.

11. The debtors are informed and believe and therefore allege that they will beable to make the plan payments at the stated monthly rate after this modification has beenapproved by the court.

12. The debtors are also moving the Court for such other and additional relief asto the court may seem just and proper.

WHEREFORE,the debtors respectfully pray of the Court as follows:

A. That the debtors motion to modify plan be granted as provided for in thebody of this motion;

B. That the monthly plan payments be changed, modified or maintained asrequested herein;

C. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $108.00, said fee and expenses to be paid by the Trustee outof the funds paid by the debtors into the Plan.

D. That the debtor be permitted to execute a quit-claim deed to the mortgageservicer for the subject property;

E. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the Debtors

NC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619e-mail: [email protected]


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FOR THE WESTERN DISTRICT OF NORTH CAROLINA

SHELBY DIVISION

IN THE MATTER OF:

NAME: Chapter 13 No.

Our File No.

ADDRESS:

SSN:

Debtors.

________________________________________________

MOTION TO MODIFY CHAPTER 13 PLAN

TO SURRENDER MOTOR VEHICLE AND REDUCE PLAN PAYMENTS

COME NOWthe above-named debtors, by and through their attorney of record, and

respectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order modifying the plan and in support hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of thisCourt on ____________.

2. The 341(a) meeting of creditors was held in Shelby, North Carolina on____________.



5. The plan includes a debt to Capital One Auto Finance (Capital One) for firstlien on a 2001 Dodge Neon. The claim in favor of Capital is identified as bifurcated claimnumber 0003 (secured) and number 2003 (unsecured) on the records of the Trustee.

6. The debtors have determined that due to substantial and material changes incircumstances since the confirmation of the plan in this case, they are no longer in afinancial position to retain this collateral and therefore desire to abandon the same to thesecured creditor listed herein and to grant said creditor relief from the automatic stay torepossess and dispose of the said collateral. The debtors have in fact, delivered the vehicleto the office of their attorney, where it is currently being stored.

7. In support hereof, the debtors are submitting Amended Schedules I and Jattached hereto and incorporated herein.

8. The debtors are therefore moving the Court to modify their plan by directingthe Trustee to strike the secured claim [plus any unsecured split-claim related thereto] ofthe creditor identified herein, identified on the records of the Trustee as claim number 0003and 2003, and by allowing the said creditor 90 days from the date of the entry of the ordergranting this motion to file any deficiency claim with the Chapter 13 Trustee.


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9. The debtors are also moving the Court to reduce the plan payments from$600.00 to $310.00 in light of the removal of the claims in favor of Capital One.

10. The debtors are informed and believe and therefore allege that they will beable to make their plan payments at the stated monthly rate after this modification hasbeen approved by the court.

11. The debtors are also moving the Court for an Order ordering Capital One totake recovery of the subject vehicle within ten days of the order granting this motion.



A. That the debtors' motion to modify plan be granted as provided for in thebody of this motion;

B. That the monthly plan payments be changed, modified or maintained as

requested herein;

C. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $60.00, said fee and expenses to be paid by the Trustee out ofthe funds paid by the debtors into the Plan.

D. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619e-mail: [email protected]


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A.NoProtest

ApproveSettlements


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SHELBY DIVISIONIN THE MATTER OF:


ADDRESS:

SSN:Debtors.

___________________________________________________

MOTION FOR APPROVAL OF

WORKERS COMPENSATION SETTLEMENTAND

MOTION TO MODIFY SCHEDULES

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code, Rule9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rules for theentry of an order approving a workers compensation settlement and in support hereof allege and saythat:

1. This case was commenced by the filing of a petition with the Clerk of this courton __________.

2. The 341(a) meeting of creditors was held in Shelby, North Carolina on__________.



5. The male debtor died in a work-related accident on __________.

6. The female debtor has entered into an Agreement for Compensation for Deathfrom the male debtors employer, The City of Shelby. The Agreement provides for the female debtorto receive the sum of $346.65 for 400 weeks.

7. The debtors are informed and believe and therefore allege that the said offer is fairand reasonable.

8. The debtors are therefore moving this Court to approve the settlement with thedisbursement to be made to the female debtor as set forth in the settlement.

9. The debtors are hereby moving this court to amend their schedules to reflect thenet amount of the settlement as property of the estate and to exempt the property pursuant to NorthCarolina General Statutes Section 97-21.

10. The debtors are also moving the court for such other and additional relief as tothe court may seem just and proper.


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A. That the debtors motion for approval of a workers compensation settlementbe granted as provided for in the body of this motion;

B. That the debtors motion to modify schedules be granted as provided for in thebody of this motion;

C. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $106.00, said fee and expenses to be paid by the Trustee fromfunds paid by the debtors into the plan;

D. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsN.C. State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616 / FAX (704) 487-0619Email: [email protected]


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SHELBY DIVISION

IN THE MATTER OF:


Our File No.

ADDRESS:

SSN:

Debtors.___________________________________________________

MOTION FOR APPROVAL OFSOCIAL SECURITY DISABILITY SETTLEMENT

ANDMOTION TO MODIFY SCHEDULES

COMES NOWthe above-named debtor, by and through her attorney of record, andrespectfully moves the Court pursuant to Section 1329 of Title 11 of the United States Code, Rule9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rules for theentry of an order approving a Social Security Disability settlement and in support hereof alleges andsays that:

1. This case was commenced by the filing of a petition with the Clerk of this court

on_____________.

2. The 341(a) meeting of creditors was held in Shelby, North Carolina on_____________.


4. The plan presently provides for monthly payments of $140.00 per month.

5. The debtor filed for Social Security Disability Benefits which was denied. Thedebtor appealed and has been awarded a back award of $24,859.80 and $945.00 per month.

6. The debtor is therefore moving this Court to approve the settlement with theproceeds to be disbursed to the debtor as exempt property pursuant to 42 U.S.C. 407.

7. The debtor is also moving this Court for approval of $5,300.00 in legal fees and$788.00 in expenses to be paid from the settlement to____________, the attorney whorepresented the debtor in her appeal.

8. The debtor is hereby moving this court to amend her schedules to reflect the netamount of the Social Security Disability settlement as property of the estate and to exempt theproperty under 42 U.S.C. 407.

9. The debtor is also moving the court for such other and additional relief as to thecourt may seem just and proper.


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WHEREFORE,the debtor respectfully prays of the Court as follows:

A. That the debtors motion for approval of a Social Security Disability settlementbe granted as provided for in the body of this motion;

B. That the attorney for the debtor be granted an additional non-base legal fee of$350.00 and expenses of $42.00, said fee and expenses to be paid by the debtor from theproceeds paid to the debtor;

C. That the debtors motion to modify schedules be granted as provided for in thebody of this motion;

D. That the debtor have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorN.C. State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616 / FAX (704) 487-0619email: [email protected]


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ADDRESS:

SSN:DEBTORS

MOTION FOR APPROVAL OFPERSONAL INJURY INSURANCE SETTLEMENT

AND MOTION TO MODIFY SCHEDULES

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order approving a personal injury insurance settlement andmodifying the schedules and in support hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of this court

on_____________.

2. The 341(a) meeting of creditors is scheduled to be held in Shelby, North Carolinaon _____________.



5. The debtors aver that the female debtor was involved in an accident in whichshe sustained personal injuries.

6. The debtors aver that as a result of the said injuries the female debtorpursued a personal injury claim against the other party involved in the aforesaid accident.The debtors aver that the matter has been settled.

7. The female debtor has received and accepted an offer to settle the personalinjury claim for the sum of $25,000.00 from the at-fault party, $1,000.00 from the debtorsmedical payments coverage on their own insurance policy, and the sum of $16,487.00 whichis being held in the trust account of the female debtors personal injury attorney from

Liability for a workers compensation lien.

8. The debtors are informed and believe and therefore allege that the said offeris fair and reasonable.

9. The debtors are therefore moving this Court to approve the settlement withthe following disbursements to be made from the said insurance proceeds:


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A. To the Law Offices of____________(legal fees) $8,403.00;

B. To the Law Offices of____________(expenses) $65.00;

C. To____________Insurance Company $8,333.00;

D. To the debtors the sum of $25,686.00, the balance of the net proceeds, to bepaid to the debtors (specifically the female debtor) as exempt property pursuant toNorth Carolina General Statutes Section 1C-1601(a)(8).

10. The debtors are hereby moving this court to amend their schedules to reflectthe net amount of the personal injury settlement as property of the estate and to exemptthe property under Chapter 1C of the North Carolina General Statutes.

11. The debtors are also moving the court for such other and additional relief asto the court may seem just and proper.


A. That the debtors motion for approval of a personal injury insurancesettlement be granted as provided for in the body of this motion;

B. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $162.00, said fee and expenses to be paid by the debtors fromthe net proceeds paid to the debtors;

C. That the debtors motion to modify schedules be granted as provided for in thebody of this motion;

D. That the insurance settlement be approved as set forth herein with the netproceeds to be paid as provided for herein; and

E. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsN.C. State Bar #6164P.O. Box 1000Shelby, NC 28151-1000

(704) 487-0616 / FAX (704) 487-0619Email: [email protected]


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SHELBY DIVISION

IN THE MATTER OF:

NAME: CHAPTER No.OUR FILE No.

ADDRESS:

SSN:

Debtors.

___________________________________________________


PHYSICAL DAMAGE INSURANCE SETTLEMENT REGARDING RESIDENCE

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order approving a physical damage insurance settlement, and insupport hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of thisCourt on _____________.




5. The plan included a debt to CitiFinancial Mortgage (hereinafter "CitiFinancial")secured by a first lien on the debtors residence. The debtors have surrendered thisproperty to the secured creditor and upon information and belief, Resurgent CapitalServices, LP is the current servicer.

6. Prior to the surrender of the debtors home, the debtors aver that their airconditioning unit sustained damage when it was struck by lightening.

7. The debtors obtained repairs to the air conditioning unit from RutherfordHeating & Air, Inc. in the amount of $1431.00 including labor and materials.

8. NC Grange Mutual Insurance has offered to settle the insurance damage claimfor the sum of $1231.00 and in fact has issued a check made payable to the debtors and toCitiFinancial in this amount. This check is being held at the office of the attorney for thedebtors pending this Courts approval of this motion.


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9. The debtors are therefore moving this Court to approve the settlement withthe entire amount of the settlement to be paid to Rutherford Heating & Air, Inc.

10. The debtors are further moving this Court for an Order requiring CitiFinancialto endorse the settlement check and return it to the office of the attorney for the debtors orto accept the insurance settlement check and issue a check directly to Rutherford Heating &

Air, Inc.

11. The debtors are also moving this Court to adopt the settlement as an ordersubject to the contempt powers of this Court.



A. That the debtors motion for approval of a physical damage insurancesettlement be granted as provided for in the body of this motion;

B. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $108.00, said fee and expenses to be paid by the Trustee outof the funds paid by the debtors into the Plan;

C. That the insurance settlement be approved as set forth herein with theproceeds to be used to pay for repairs;

D. That CitiFinancial be ordered to endorse the settlement check and return it tothe office of the attorney for the debtors or to accept the insurance settlement check andissue a check directly for the repairs;

E. That the debtors have such other and further relief as to the Court may seem

just and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619

[email protected]


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SHELBY DIVISION

IN THE MATTER OF:


Our File No.

ADDRESS:

SSN:Debtors.

___________________________________________________

MOTION FOR APPROVAL OFPHYSICAL DAMAGE INSURANCE SETTLEMENT

REGARDING MOTOR VEHICLE WITH NET PROCEEDS PAYABLE TO DEBTORS

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order approving a physical damage insurance settlement and insupport hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of thiscourt on _____________.




5. The plan included a debt to Americredit Financial Services (hereinafter"Americredit") secured by a first lien on the debtors 1999 Plymouth Neon. The debtorsaver that the secured portion of the debt to Americredit is identified on the records of theTrustee as claim number 0003 in the remaining amount of $266.06. Americreditsunsecured claim is identified on the records of the Trustee as claim number 2003 in theremaining amount of $2551.35 to be paid at 21%. The debtors aver that the amountnecessary to pay Americredit in full for this claim is approximately $830.00.

6. The debtors aver that this vehicle was damaged in an automobile accidentand that Nationwide Mutual Insurance Company (Nationwide) has offered to settle theproperty damage claim for the sum of $2941.19.

7. The debtors are informed and believe and therefore allege that the offer ofNationwide is fair and reasonable.

8. The debtors are therefore moving this Court to approve the settlement to beused to pay the claim of Americredit and for the remaining amount of approximately$2111.18 to be paid to the debtors to pay for bills and medical expenses.


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9. The debtors are further moving this Court to require Americredit to releasethe lien on the title to the 1999 Plymouth Neon and deliver the title to the attorney for thedebtors within ten (10) days of the receipt of the order granting this motion.

10. The debtors are further moving the Court to order Nationwide to deliver thesettlement check made payable to O. Max Gardner III, P.C., Trust Account, within ten (10)days of the receipt of the order granting this motion.

11. The debtors are further moving the Court to order that the obligations ofAmericredit and Nationwide are independent and that the debtors may move to enforce anyorder entered in this case by motion and that in the event of any such enforcementproceeding that the debtors be entitled to recover actual damages, punitive damages andlegal fees and expenses.

12. The debtors are therefore moving this Court to approve the settlement as setforth herein.





B. That the attorney for the debtors be granted an additional non-base legal feeof $450.00 and expenses of $92.00, said fee and expenses to be paid through the plan;

C. That the insurance settlement be approved as set forth herein with theproceeds to be used to pay the claim of Americredit and for the remainder to be paid to thedebtors to pay bills and medical expenses;

D. That Americredit be ordered to release the lien on the title to the 1999Plymouth Neon and deliver the title to the attorney for the debtors within ten (10) days ofthe receipt of the order granting this motion;

E. That Nationwide be ordered to deliver the settlement check made payable toO. Max Gardner III, P.C., Trust Account, within ten (10) days of the receipt of the ordergranting this motion;

F. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616/FAX (704) 487-0619


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SHELBY DIVISION

IN THE MATTER OF:


Our File No.ADDRESS:

SSN:

Debtors.

___________________________________________________


PHYSICAL DAMAGE INSURANCE SETTLEMENT

REGARDING MOTOR VEHICLE AND

MOTION FOR SUBSTITUTION OF COLLATERAL

COME NOWthe above-named debtors, by and through their attorney of record, and

respectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order approving a physical damage insurance settlement andsubstitution of collateral and in support hereof allege and say that:




4. The debtors aver that in the petition and schedules in this case, they dulylisted a secured debt in favor of Heritage Finance (Heritage) secured by a 1996 HondaAccord.

5. The debtors aver that this vehicle was totally destroyed in an automobileaccident and that Progressive Insurance (Progressive) has offered to settle the claim forthe sum of $5,477.79.

6. The debtors are informed and believe and therefore allege that the offer ofProgressive is fair and reasonable.

7. The debtors are therefore moving this Court to approve the settlement to be

paid to the debtors to use the full settlement to purchase a replacement vehicle ofcomparable price with Heritage to retain the first lien on the title to the replacement vehicle.

8. The debtors are further moving this Court to require Heritage to release thelien on the title to the 1996 Honda Accord and deliver the title to the attorney for thedebtors within ten (10) days of the receipt of the order granting this motion.


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9. The debtors are further moving the Court to order Progressive to deliver thesettlement check made payable to O. Max Gardner III, P.C., Trust Account, within ten (10)days of the receipt of the order granting this motion.

10. The debtors are further moving the Court to order that the obligations ofHeritage and Progressive are independent and that the debtors may move to enforce any

order entered in this case by motion and that in the event of any such enforcementproceeding that the debtors be entitled to recover actual damages, punitive damages andlegal fees and expenses.






B. That the attorney for the debtors be granted an additional non-base legal feeof $450.00 and expenses of $170.00, said fee and expenses to be paid by the Trustee outof the funds paid by the debtors into the Plan;

C. That the insurance settlement be approved as set forth herein with the netproceeds to be paid to the debtors to purchase a replacement vehicle with Heritage to retainthe first lien on the title to the replacement vehicle;

D. That Heritage be ordered to release its lien on the title of the 1996 HondaAccord and deliver said title to the office of the attorney for the debtors within ten (10) daysof the receipt of the order granting this motion;

E. That Progressive be ordered to issue the settlement check made payable tothe O. Max Gardner, III, PC Trust Account and deliver it to the office of O. Max Gardner, III,PC within ten (10) days of the order granting this motion;

F. That the debtors have such other and further relief as to the Court may seemjust and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000


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SHELBY DIVISION

IN THE MATTER OF:


Our File No.

ADDRESS:

SSN:

Debtors.___________________________________________________

MOTION FOR APPROVAL OFPHYSICAL DAMAGE INSURANCE SETTLEMENT

REGARDING MOTOR VEHICLE TO USE TO REPAIR VEHICLE

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local BankruptcyRules for the entry of an order approving a physical damage insurance settlement to beused to repair the vehicle and in support hereof allege and say that:


2. The 341(a) meeting of creditors was held on in Shelby, North Carolina, on_____________.



5. In the petition and schedules in this case, the debtors duly listed a secureddebt in favor of Union Acceptance Corporation (hereinafter Union Acceptance) secured bya 2001 PT Cruiser, said claim being identified on the records of the Trustee as claim number0013.

6. The debtors 2001 PT Cruiser was damaged in an automobile accident andAuto Owners Insurance (hereinafter "Auto Owners"), has offered to settle the claim for thesum of $1,066.48. Auto Owners has in fact already issued a check to Union Acceptance,the debtors and the debtors son in the amount of $1,066.48, which is being held in at theoffice of the attorney for the debtors, pending this courts approval of this settlement.

7. The debtors are informed and believe and therefore allege that the offer ofAuto Owners is fair and reasonable.

8. The debtors are therefore moving this Court to approve the settlement to bepaid to the debtors to use the net settlement proceeds to pay for repairs to the vehicle.

9. The debtors are also moving this Court for an order requiring UnionAcceptance to endorse the settlement check and return it to the office of the attorney forthe debtors within ten days of the order granting this motion.


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10. The debtors are further moving the Court to order that the obligations ofUnion Acceptance and Auto Owners are independent and that the debtors may move toenforce any order entered in this case by motion and that in the event of any suchenforcement proceeding that the debtors be entitled to recover actual damages, punitivedamages and legal fees and expenses.






B. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $70.00, said fee and expenses to be paid by the Trustee out ofthe funds paid by the debtors into the Plan;

C. That the insurance settlement be approved as set forth herein with the netproceeds to be paid to the debtors to use to pay for repairs to the vehicle;

D. That Union Acceptance be ordered to endorse the settlement check andreturn it to the office of the attorney for the debtors within ten days of the order grantingthis motion;

E. That the debtors have such other and further relief as to the Court may seem

just and proper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619

Email: [email protected]


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ADDRESS:

SSN:Debtors.

_______________________________________

MOTION FOR APPROVAL OF PREFERENCE RECOVERY SETTLEMENT

COME NOWthe above-named debtors, by and through their attorney of record,

and respectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code,Rule 9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rulesfor the entry of an order approving a preference recovery settlement and in support hereof allegeand say that:

1. This case was commenced by the filing of a petition with the Clerk of this Court on

_____________.

2. The 341(a) meeting of creditors was held in Shelby, North Carolina on

_____________.


4. The plan presently provides for a monthly payment of $1,390.00.

5. The debtors aver that their attorney obtained a preference recovery settlement inthe amount of $440.70 from MBNA.

6. The debtors are therefore requesting the Court approve this settlement with theproceeds to be disbursed as follows: for one-half of the recovery ($220.35) to be paid to theattorney for the debtors as and for legal expenses incurred in obtaining the recovery settlement,and the remaining one-half ($220.35) to be paid to the Trustee to be applied to the Chapter 13plan of the debtors.

7. The debtors are also moving the court for such other and additional relief as to the

court may seem just and proper.


A. That the debtors motion for approval of the preference recovery settlement, withthe proceeds to be disbursed as set forth above, be granted and approved;

B. That the debtors have such other and further relief as to the Court may seem justand proper.


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This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNCSB #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619e-mail: [email protected]


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NAME(S): CHAPTER 13 NO.

OUR FILE NO.ADDRESS:

SSN:DEBTOR(S)

_______________________________________Adv. Proc. No.

Plaintiffs,versus

Defendants._______________________________________________

MOTION FOR APPROVAL OF SETTLEMENT OF ADVERSARY PROCEEDING

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code, Rule 9019of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rules for the entry ofan order approving the settlement agreement in this contested matter and in support hereof allege andsay that:

1. The Plaintiffs filed this adversary proceeding on____________for various allegedacts of improper mortgage servicing, improper fees and stay violations.

2. The defendants were served with the Summons and Complaint.

3. Defendant filed an answer to the complaint on____________.

4. The parties have reached an agreement to resolve the issues between them and tosettle the pending complaint.

5. The obligations of the parties as set forth in the settlement are as follows:

Obligations of Defendants:

Plaintiffs Attorneys Fees and Expenses. The Defendants shall pay O. Max Gardner, III, thePlaintiffs attorney, reasonable legal fees based on 27.75 hours at $325.00 per hour for a total ofnine thousand eighteen and 75/100s ($9,018.75) in satisfaction of his attorneys fees and onehundred eighty seven and 50/100s in satisfaction of all expenses incurred in connection with theAdversary Proceeding. The Defendants agree to pay these amounts within ten days followingreceipt of an executed Settlement Agreement, Release of All Claims in favor of Defendants, andcompleted W-9 form from O. Max Gardner, III.

Payment to Plaintiffs. The Defendants shall pay to the Plaintiffs the sum of three thousandfive hundred and no/100s ($3,500.00) Dollars as damages within ten days following receipt of anexecuted Settlement Agreement and Release of All Claims in favor of Defendants.

Cure of Default. The Defendant agrees that it will apply all necessary credits in order to

declare the mortgage loan current through____________and permanently waive any allegeddefault through that date.


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Removal of Improper Fees. The Defendant agrees to permanently remove and waive anyand all fees and charges assessed to the subject loan, not previously approved by the BankruptcyCourt.

Prior Consent Order, Notices of Default and Reinstatement Letters. The Defendant agrees

that the____________Consent Order has expired. Defendant further agrees that it willvacate all prior notices of default, including all reinstatement letters, and reinstate the mortgagesubject to the automatic stay and pursuant to the terms of the chapter 13 plan.

Obligations of Plaintiffs.

Future payments: The Plaintiffs agree to accept responsibility for any amounts accruing on

the subject Loan after____________.

Dismissal of Adversary Proceeding. The Plaintiffs shall file the within motion with the Courtseeking the Courts approval to enter into this Agreement. The Plaintiffs shall file a Stipulation ofVoluntary Dismissal With Prejudice signed by all the parties subsequent to this Courts approval ofthe settlement.

Stipulation. Plaintiffs hereby stipulate and agree that they shall take no action to furthermodify or discharge their obligation to the Defendant in respect of the subject loan. Defendanthereby stipulates that the Mortgage Loan is or will be post-petition current through

____________.

6. The debtors are therefore requesting the Court approve this settlement as set forthherein, and to allow the parties to enter into and execute the same in full settlement of this contestedmatter.

7. The debtors are also moving the court for such other and additional relief as to the courtmay seem just and proper.


A. That the debtors motion for approval of the Settlement Agreement, be granted andapproved, for the parties to enter into and execute the same in full settlement of this contestedmatter;

B. That the debtors have such other and further relief as to the Court may seem just andproper.

This the _____ day of __________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the DebtorsNCSB #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619e-mail: [email protected]


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WILKESBORO DIVISIONIN THE MATTER OF:

NAME: CHAPTER 13 CASE NO.OUR FILE NO.

ADDRESS:

SSN:

DEBTORS._______________________________________

DEBTOR AND WIFE,Adv. Proc. No.

Plaintiffs,versus

SELECT PORTFOLIO SERVICING, INC.F/K/A FAIRBANKS CAPITAL CORPORATION,THE BANK OF NEW YORK AS TRUSTEEUNDER EQCC TRUST 2001-2 andEQCC TRUST 2001-2,

Defendants._______________________________________

MOTION FOR APPROVAL OF SETTLEMENT

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code, Rule9019 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rules for theentry of an order approving the settlement agreement in this contested matter and in supporthereof allege and say that:

A. The Plaintiffs (Claimants) filed this adversary proceeding against the Defendants on_______ for various alleged acts of improper mortgage servicing, improper fees and stayviolations.

B. The Defendants were served with the Summons and Complaint.

C. Defendants have not yet filed an answer in this proceeding but ________ and

______________ have appeared as counsel of record for the Defendants.

D. The parties have reached an agreement to resolve the issues between them and to settlethe pending complaint.

E. The obligations of the parties as set forth in the settlement are as follows:

1) The Mortgage Servicer will agree to enter into a loan modification with thePlaintiffs for the entire mortgage, to reduce the payoff to $___,000.00, including all pre- and


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post-petition arrears, fees and charges, with sum repayable at 0% interest, with a monthlypayment of $______ each month for ______ months and with a balloon payment due on the37thmonth. The Plaintiffs will refinance the balloon portion of the loan on or before the 37hmonth. The loan modification as contemplated herein must be signed by both the Plaintiffs.The Deed of Trust securing this obligation will remain in full force and effect until the obligation

is paid in full as provided for in this agreement and the Williams hereby waive any and alldefenses to the validity of the said Deed of Trust subsequent to the execution of thisagreement. To that extent, the claim of the Mortgage Servicer shall be at all times deemed asecured claim until and unless this agreement is fully performed by the Debtors.

2) All monthly payments are due on the 25thday of the month. Plaintiffs will makeall payments directly to SPS and not through their Chapter 13 plan. If payments are notreceived on the 25thday of the month, then a default will occur. SPS will send written noticeof the default to the Plaintiffs with a copy to O. Max Gardner III. SPS will request a deliveryreceipt from the post office or other delivery service. The notice will be deemed received whenmailed. The Plaintiffs will have 18 days from the mailing date to tender the past due paymentto SPS. If the Plaintiffs fail to do so, then the automatic stay will lift and SPS will be releasedfrom the Chapter 13 Bankruptcy Case to proceed with a foreclosure of the Property without

further order of the court. The initial payment date will be due during the first month that falls45 days from the date of the execution of this Agreement. By way of example, if thisAgreement is signed by all of the parties on October 10 of 2008 then the first monthlypayment provided for herein shall be due during the month of November of 2008 and no laterthan the 25thday of that month. On the other hand, if this Agreement is not signed by all ofthe parties until October 25, 2008, then the first monthly payment provided for herein shall bedue during the month of December of 2008 and no later than the 25thday of that month.The parties agree that this Agreement shall be fully executed by all parties no later than the31stday of October of 2008.

3) The Plaintiffs will be required to keep real estate taxes current and insurance inforce at all times during the pendency of this Agreement. If taxes and/or insurance lapse,Plaintiffs understand and agree that this lapse will trigger the default remedies as set forth in

paragraph 2. In conjunction herewith, Plaintiffs must provide in their new Chapter 13 plan(see paragraph number 14) for the repayment of all real estate taxes on the Property andfurthermore must provide The Mortgage Servicer with proof of insurance on or beforeexecution of the loan modification agreement.

4) No additional fees or charges will be assessed for any matter related to theexecution, closing and recording of the loan modification. No additional fees or expenses willbe added to the loan for any other matter or thing related to or arising out of this case or thepresent Chapter 13 case. No additional fees or charges of any type will be assessed to orcharged against this loan in the future without strict compliance with Rule 2016(a) of theFederal Rules of Bankruptcy Procedure either during the pendency of the present and futureChapter 13 case or at any time after discharge to the extent the services were performedduring the case. The Mortgage Servicer reserves the right upon notice to the Plaintiffs and theright to object to seek any fees authorized by the loan instruments for any services that arerendered after the execution of this Agreement and that are not discharged by the termsherein.

5) The Plaintiffs and the Mortgage Servicer agree that the arrearage claimsidentified on the online records of the Trustee as claims numbered 22 and 26 in favor ofNationscredit Financial Corporation will not be reasserted in the new Chapter 13 case as saidclaims are deemed to be included in the agreed amount owed.


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6) The Plaintiffs and the Mortgage Servicer agree that the balance of the debt overand above the $____,000.00 loan balance stated herein will be discharged in the new Chapter13 Case, provided that the Plaintiffs make all of the required payments to the MortgageServicer included herein. The Mortgage Servicer will not file any objection to the Chapter 13Plan in the new case to be filed by the Debtors unless it is not consistent with this agreement.

However, the terms of this agreement are contingent on the Debtors filing a new Chapter 13case no later than December 1, 2008 and obtaining an Order of Confirmation in that case.

7) Upon payment of the $_____,000.00 loan balance in full, SPS will report theloan as paid in full to all three of the national credit reporting agencies. SPS agrees thatsubsequent to the execution of this Agreement SPS will report to the three national creditreporting agencies that the total amount of the indebtedness is $_____,000.00 andfurthermore will report the status of the monthly payments as provided for in this Agreementand as actually made by the Plaintiffs. By way of example, if the first monthly payment is duein December of 2008 and is received prior to the 25thday of that month then and in that eventthe Mortgage Servicer shall report the monthly payments as current to the three nationalconsumer reporting agencies (Equifax, Experian and Trans Union). Contemporaneously withthe execution of this Agreement the Mortgage Servicer shall submit a Uniform Data Report (a

UDR) to the said creditor reporting agencies that will provide for the removal of any negativetrade-line information inconsistent with the terms of this Agreement.

8) SPS will pay $5,000.00 to Plaintiffs counsel as legal fees and will return to thePlaintiffs the $6,821.00 currently being held in an escrow account. Both of these checks shallbe made payable to O. Max Gardner III, Trust Account. The funds in the amount of $6,821.00are unapplied funds received from the Chapter 13 Case Trustee in the form of claimdisbursements. SPS has been holding these funds in a Suspense Account. Plaintiffs Counselwill make arrangements to obtain these funds on behalf of the Plaintiffs to apply to hisoutstanding legal fees and expense and to the legal fees and expenses incurred by co-counsel,P. Wayne Sigmon of the Sigmon Law Firm in Gastonia, North Carolina. SPS shall release thesefunds to O. Max Gardner III within 5 days of the date of the execution of this Agreement.

9) The funds identified in Section 8 above will be deemed the property of thePlaintiffs and the Servicer will release all claims thereto. The parties also agree that any fundsheld in the Trust Account of O. Max Gardner III for the benefit of the Plaintiffs shall be deemedthe sole and separate property of the Plaintiffs and SPS hereby releases any claims to any ofthe said Trust funds.

10) The Plaintiffs will prepare and file a Motion for Approval of this settlement withnotice of opportunity for hearing to be served case-wide in the Chapter 13 Case on all partiesin interest.

11) The Adversary Proceeding will be dismissed with prejudice within 10 days afterthe Settlement Agreement is executed by all parties and the loan modification instruments arefully executed.

12) SPS will dismiss the state foreclosure action, pending as case number ________in _________ County, and the motion for relief from stay filed in the Chapter 13 Case withinthe same time period as set forth in paragraph 11. Both actions will be dismissed withoutprejudice.

13) The Relief from Stay Agreed Order filed in the pending Chapter 13 Case on_________ will be vacated and set aside. The Plaintiffs will file a motion to vacate the saidorder promptly after the execution of this Agreement.


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14) Within 30 days of full compliance with the matters set forth herein, the Plaintiffsshall file a voluntary dismissal without prejudice of their pending Chapter 13 case andsimultaneously therewith shall file a new Chapter 13 case for a term of at least 36 months.The claim of SPS shall be scheduled as secured claim in that case in the sum of

$______,000.00 repayable without interest as provided for herein.

15) The loan modification shall not be conditioned on the entry of a discharge orderin the new Chapter 13 case. If the contractual amount is paid before the Chapter 13 case isdischarged, then all of the obligations shall be extinguished.

16) The Plaintiffs agree to keep the terms and provisions of this Agreementconfidential and shall not divulge the contents to third-parties outside of their immediatefamily members, tax preparers, accountants, and attorneys, except as necessary in seekingapproval from the Bankruptcy Court, to enforce this Agreement or to comply with any laws orregulations of the Unites States or any state thereof, other than to disclose that the AdversaryProceeding has been resolved.

17) The parties will agree to waive arbitration as to any future disputes related inany way to this loan and the servicing thereof or to any matter or thing arising out of therelationship of the parties.

18) Williams, on behalf of themselves, their heirs, successors and assigns, herebyremise, release, acquit, and forever discharge the Defendants, as well as their officers,directors, employees, agents, assigns, affiliates, predecessors in interest, and successors ininterest, and any holder of the Note and Deed of Trust for which The Servicer providesservicing, including without limitation the Trustee, the Trust, and Nationscredit FinancialServices Corporation of and from any and all liability, obligation, claims, actions, causes ofaction, demands, damages, punitive damages, treble damages, statutory penalties, stayviolations, costs, attorneys fees, and/or expenses whatsoever arising out of or relating to theNote or the Deed of Trust, whether such claims or causes of action are known or unknown,

including but not limited to all claims alleged in the Adversary Proceeding.

19) Except as provided herein, the Servicer, on behalf itself and its successors andassigns, hereby remises, releases, acquits, and forever discharges Williams and their heirsand successors, of and from any and all liability, obligation, claims, actions, causes of action,demands, damages, punitive damages, treble damages, statutory penalties, costs, attorneysfees, and/or expenses whatsoever arising out of or relating to the Note or the Deed of Trust,whether such claims or causes of action are known or unknown; provided, however, nothing inthis Agreement shall release or impair the right of the Servicer or its successors or assigns topursue foreclosure, acquire title to the Property through foreclosure, or receive foreclosure orinsurance proceeds in connection with the Property as provided for herein and in the LoanModification Agreement.

20) The parties agree that this Agreement constitutes settlement of doubtful anddisputed claims, and that nothing stated herein shall constitute an admission of liability on thepart of either party, such liability being expressly denied by the same.

21) This Agreement constitutes the entire agreement between the parties hereto,and shall inure to the benefit of the predecessors, successors and assigns of each. The partieshereto further state that they have carefully read the foregoing, understand the contentsthereof, and each have been independently represented by counsel in entering this Agreement.


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22) This Agreement may be executed in one or more counterparts, each of whichshall be deemed to be an original and all of which shall constitute one and the sameinstrument.

F. The debtors are therefore requesting the Court approve this settlement as set forth herein,

and to allow the parties to enter into and execute the same in full settlement of this contestedmatter.

G. The debtors are also moving the court for such other and additional relief as to the courtmay seem just and proper.


A. That the debtors motion for approval of the Settlement Agreement, be granted andapproved, for the parties to enter into and execute the same in full settlement of this contestedmatter;

B. That the attorney fees and expenses as set forth herein be approved; and

C. That the debtors have such other and further relief as to the Court may seem justand proper.

Dated this the ______ day of __________, 2009.

________________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.

Attorney for the DebtorsNC State Bar #6164P.O. Box 1000, Shelby, NC 28151-1000(704) 487-0616 / FAX (704) [email protected]

________________________________Wayne SigmonThe Sigmon Law Firm


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CHARLOTTE DIVISION

IN THE MATTER OF:


Our File No.

ADDRESS:

SSN:Debtors.

___________________________________________________

MOTION FOR APPROVAL OFLIFE INSURANCE SETTLEMENT

ANDPAYOFF OF BANKRUPTCY PLAN

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move the Court pursuant to Section 1329 of Title 11 of the United States Code, Rule9013 of the Rules of Bankruptcy Procedure, and Rule 9013-1 of the Local Bankruptcy Rules for theentry of an order approving a life insurance settlement and in support hereof allege and say that:

1. This case was commenced by the filing of a petition with the Clerk of this courton September 27, 2006.

2. The 341(a) meeting of creditors was held in Charlotte, North Carolina onNovember 9, 2006.



5. The debtors father has passed away and the debtor is to receive an approximateamount of $17,500.00 in life insurance proceeds. The debtor wishes to utilize the life insuranceproceeds to payoff her bankruptcy plan. The debtor is therefore moving this Court to approve thesettlement with the disbursement to be made to the Gardner Law Offices, Trust Account to be helduntil an order is entered directing the attorney for the debtor to forward the insurance proceeds inthe approximate amount of $17,500.00 to the Trustee to payoff the remainder of the bankruptcyplan.

6. The debtors assert that the Debtors plan should not be modified based on this

amount of life insurance and the fact that this does not represent a substantial change incircumstances. (see In Re Griffith04-32325). To date the debtor has paid in almost $34,000 to herplan and has paid about $5,076.95 to her unsecured creditors. She has already paid a 5% dividendto her unsecured creditors and the confirmed plan requires a 10% payment. The early repayment ofthe plan will yield a higher dividend to the filed unsecured creditors than originally proposed in thedebtors plan and will allow them to be paid earlier than under the terms of the plan.

7. The payoff of the plan with the Life Insurance is also done in good faith. Thedebtors case appears to be a no asset chapter 7 case. If she were to convert the case theunsecured creditors could potentially only get the amount they have been paid in the chapter 13.


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Furthermore, it appears from Schedule C that the debtor could amend her exemptions to claim someof the Life Insurance proceeds for herself. Instead of converting or amending the exemptions, shehas elected to payoff her plan in order to get a chapter 13 discharge.

9. The debtor is therefore moving this Court to approve the settlement as set forthherein and allow or the payoff of the chapter 13 plan.

10. The debtor is also moving the court for such other and additional relief as to thecourt may seem just and proper.


A. That the debtors motion for approval of a life insurance settlement and payoffof bankruptcy plan be granted as provided for in the body of this motion;

B. That the attorney for the debtors be granted an additional non-base legal feeof $350.00 and expenses of $74.00, said fee and expenses to be paid by the Trustee fromfunds paid by the debtors into the plan;

C. That the debtor has such other and further relief as to the Court may seemjust and proper.

Dated this the 10thday of March 2010

________________________________William S. GardnerGardner Law OfficesAttorney for the DebtorP.O. Box 1000, Shelby, NC 28151-1000N.C. State Bar No. 32684(704) 487-0616/Fax (888) 870-1644e-mail: [email protected]


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Brief in Support of Motion

To Approve Settlement

FRBP 9019 gives the court the authority to approve

compromise settlements. To be approved, a settlement must bereasonable in view of the circumstances of the case, as well as fair and

equitable. The party proposing a compromise has the burden of

showing that it is fair and equitable and should be approved, subject tothe sound discretion of the court that should not be overturned except

in cases of abuse leading to a result that the compromise is neither inthe best interests of the estate nor fair and equitable for the creditors.

In re Schmitt, 215 B.R. 417, 420 (9th Cir. BAP 1997); In re DebbieReynolds Hotel & Casino, Inc., 255 F.3d 1061, 1065 (9th Cir. 2001).

This Court addressed the tests for compromise and settlementunder F.R.B.P. Rule 9019(a) in In re Schrock, 9 Mont. B.R. 414, 416-

417 (Bankr. D. Mont. 1991) and In re Pierce Packing Company, 13Mont. B.R. 255, 256 (Bankr. Mont. 1994). In Pierce, this court

adopted the four factor test of the 9th Circuit to determine if thesettlement is reasonable, fair and equitable. Those factors, fairly well

defined and uniform in all circuits, are:

a) the probability of success on the merits in the litigation;

b) the difficulties, if any, encountered in the collection of anyjudgment that might be obtained;

c) the complexity of the litigation, the expense, inconvenience

and delay necessarily attending to it;

d) the paramount interest of the creditors with proper deference

to their reasonable views.

Martin v. Kane (In re A & C Properties), 784 F.2d 1377, 1380-1381

(CA 9 1986), cert. denied sub nom Martin v. Robinson, 479 U.S. 854(1986); In re Blair, 538 F.2d 849, 851 (9th cir. 1976); In re MGS

Marketing, 111 B.R. 264, 267 (9th Cir. B.A.P. 1990). See also In reGeneral Store of Beverly Hills, 11 B.R. 539, 541 (9th Cir. B.A.P. 1981)


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(in ruling on a request to compromise a dispute, a court shouldconsider the expense, benefits, hazards, complexity, the time requires

to litigate, and whether disallowance of the settlement would result inwaste of the estates assets).

In addition to the four prong test set forth in A & C Properties, itis also well established that the law favors compromise. In re Blair,

538 F.2d 849, 851 (9th Cir. 1976). In accordance with that principle,

Bankruptcy Rule 9019(a) gives this Court broad authority to approvea compromise or settlement. In re General Store of Beverly Hills, 11

B.R. 539, 542 (9th Cir. BAP 1981). The determination of whether toapprove a compromise or settlement is a matter within the sound

discretion of this Court. Providers Benefit Life Insurance Co. v.Tidewater Group, Inc., 13 B.R. 764, 765 (Bankr. N.D. Ga. 1981). Seealso, In re Lions Capital Group, 49 B.R. 163, 175-76 (Bankr. S.D. N.Y.

1985).

Generally speaking, The law favors compromise and notlitigation for its own sake. In re A & C Properties, 784 F.2d at 1381.

A leading treatise, the Collier Handbook for Trustees and Debtors inPossession, echoes this sentiment:

The trustee should make every effort, alone or with the trustee's

attorney, to secure a prompt and equitable settlement for the benefitof the estate. The old saw that a bad settlement is better than a good

lawsuit has no truer application than in a bankruptcy case. Bankruptcy

courts have historically encouraged trustees to settle lawsuits to theend that the administration of the estate may be wound up promptly. .. . In the vast majority of cases, whether or not creditors appear and

object, courts will follow the business judgment and recommendationsof the trustee and counsel.

1999 Collier Handbook for Trustees and Debtors in Possession, 110.3[2], Liquidation of Choses in Action, Settlement, pp.11-6 to 11-7.

In determining whether to approve a proposed settlement, thescope of a bankruptcy court's inquiry is:

The bankruptcy court need not conduct an exhaustive investigation

into the validity of the asserted claim [;]. . . [i]t is sufficient that, afterapprising itself of all facts necessary for an intelligent and objective

opinion concerning the claims validity, the court determines thateither (1) the claim has a substantial foundation and is not clearly


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Finally, in reviewing a proposed settlement, the court must bemindful of the fact that the law favors compromise (A & C Properties,

784 F.2d at 1381; Blair 538 F.2d at 851) and that the bankruptcycourt is uniquely situated to evaluate whether a compromise is in the

best interest of the bankruptcy estate. Walsh, 669 F.2d at 1328.

Compromise settlements should be rejected only if they fall below thelowest point in the range of reasonableness. Cosoff v. Rodman (In re

W.T. Grant Co.), 699 F.2d 599, 608 (CA 2 1983)(citing Newman v.

Stine, 464 F.2d 689, 693 (CA 2 1972)).

________________________________


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A.

No

Protest

Avoid

Lien


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SHELBY DIVISION

IN THE MATTER OF:

NAME: CHAPTER 13 NO.OUR FILE NO.

ADDRESS:

SSN:

DEBTORS.

________________________________________________

MOTION TO AVOID JUDICIAL LIEN

OF RUTHERFORD HOSPITAL, INC.

COME NOWthe above-named debtors, by and through their attorney of record, andrespectfully move this Court pursuant to 11 U.S.C. 522(f) for the entry of an orderavoiding the judicial lien of the above referenced creditor and in support hereof allege andsay that:

1. This case was commenced by the filing on____________, of a voluntarypetition under Chapter 13 of Title 11 of the United States Code.

2. This Court has jurisdiction over this contested matter pursuant to 11 U.S.C. 522(f) in that this action is filed by the debtors to avoid a judicial lien on real property usedas the debtors residence. This is a core proceeding within the provision of 28 U.S.C. 157.

3. The movants are indebted to Rutherford Hospital, Inc. of 288 S. RidgecrestAve., Rutherfordton, NC 28139 (hereinafter respondent) for money owed. After thedebtors failed to satisfy the debt owed to respondent, respondent obtained a judicial lien inthe approximate sum of $427.00 as recorded with the Rutherford County Public Registry in

file________in and on the real property used as debtors residence at____________.The movants aver that the judgment is voidable in the absence of an underlying attachable

res per In re Thomas, 102 B.R. 199 (Bankr.E.D.Cal. 1989). The movants are informed andbelieve and hence allege that the judicial lien has been duly recorded in the Public Registryof the debtors home county evidencing said creditor's security interest and lien.

4. In the schedules filed in this case the debtors residential real estate had a fairmarket value of $12,080.00 with outstanding first mortgage debt to Green Tree Servicing,

LLC in the sum of $15,892.81.

5. The existence of respondent's lien on movants real property impairs theexemption to which movants would be entitled under 11 U.S.C. 522(b).

WHEREFORE,movants pray judgment against respondent for the cancellation andavoidance of the judicial lien on their residential real estate, and for such other and further


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relief as to this Court seems just and proper.

Dated this the ______ day of __________, 2009.

________________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the Debtor(s)P.O. Box 1000Shelby, NC 28151-1000N.C. State Bar No. 6164(704) 487-0616FAX (704) 487-0619Primary e-mail: [email protected]


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SHELBY DIVISION

IN THE MATTER OF:

NAME(S): CHAPTER 13 NO.OUR FILE NO.

ADDRESS:

SSN: --- -- ----

DEBTOR(S)_____________________________________________

MOTION TO AVOID LIENOF CITIFINANCIAL

(HOUSEHOLD GOODS)

COMES NOWthe above-named debtor(s), by and through his attorney of record,and respectfully moves this Court pursuant to 11 U.S.C. 522(f) for the entry of an orderavoiding the non-possessory, non-purchase money security interest in household andpersonal goods of CitiFinancial and in support hereof alleges and says that:

1. This case was commenced by the filing of a joint voluntary petition under

Chapter 13 of Title 11 of the United States Code on_____________.

2. The Court has jurisdiction over this contested matter pursuant to 11 U.S.C.Section 522(f) in that this action is filed by the debtor(s) to avoid a lien on household andpersonal goods. This is a core proceeding within the provision of 28 U.S.C. Section 157.

3. The movant(s) is/are indebted to CitiFinancial (hereinafter "respondent") formoney loaned. As security for the debt, the respondent insisted upon and the movant(s)executed a waiver of exemption of certain property and a security agreement granting torespondent a non-possessory, non-purchase money security interest in household goodswhich is property delineated by 11 U.S.C. Section 522(f)(2) and which is held primarily forthe personal, family, or household use of the movant(s) or dependents of the movant(s).The movant(s) is/are informed and believe(s) and hence allege(s) that a financing statementhas been duly recorded in the Public Registry of the debtor(s)' home county evidencing saidcreditor's security interest and lien.

4. The movant(s)' interest in any item of property referred to in the precedingparagraph does not exceed the value claimed exempt for that item in movant(s)' voluntary

petition.

5. The money so borrowed from the respondent does not represent any part ofthe purchase money of any of the articles covered in the security agreement whichmovant(s) executed, and all of the articles so covered remain in the possession of themovant(s) and movant(s)' family.


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6. The existence of respondent's lien on movant(s)' household goods andpersonal items impair the exemption to which movant(s) would be entitled under 11 U.S.C.Section 522(b).

7. The debtor(s) Affidavit is attached hereto as an Exhibit and incorporatedherein by this reference.

WHEREFORE,movant(s) pray(s) judgment against respondent for the cancellationand avoidance of the security interest in the personal and household goods to be effectiveupon the entry of a Discharge Order in this case and for such other and further relief as isjust and proper.

Dated this the ______ day of_____________, 2009.

_________________________________O. Max Gardner IIILaw Offices of O. Max Gardner III, P.C.Attorney for the Debtor(s)

NC State Bar #6164P.O. Box 1000Shelby, NC 28151-1000(704) 487-0616FAX (704) 487-0619Primary e-mail: [email protected]


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WESTERN DISTRICT OF NORTH CAROLINA

SHELBY DIVISION

IN THE MATTER OF:

NAME: CHAPTER 13 CASE NO.

OUR FILE NO.

ADDRESS:

SSN:

DEBTOR.

________________________________________________

AFFIDAVIT OF MOVANT IN SUPPORT OF MOTION TO AVOID

LIEN OF CITIFINANCIAL (HOUSEHOLD GOODS)

The undersigned Debtor, ____________, being duly sworn, states:

1. I am proceeding under 11 USC 522(f)(1)(B) to avoid a security interest heldby CitiFinancial in certain of my household goods and furnishings.

2. The property in which the creditor has a security interest is: Nintendo Wii andGameboy, 10 video ga