william handley settlement

1. _____________________________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 1 of 5
#4834-0987-7806
Eric W. Pinker, P.C. (epinker@lynnllp.com)
Texas Bar No. 16016550
John Volney (jvolney@lynnllp.com)
Texas Bar No. 24003118
LYNN PINKER COX & HURST
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3800 Telephone
(214) 981-3839 Facsimile
ATTORNEYS FOR PLAINTIFF
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: §
§
FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-hdh-11
Debtor, § Chapter 11
______________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT
AGREEMENT BETWEEN THE TRUSTEE AND WILLIAM HANDLEY
______________________________________________________________________________
NO HEARING WILL BE CONDUCTED ON THIS MOTION UNLESS A WRITTEN
RESPONSE IS FILED WITH THE CLERK OF THE UNITED STATES
BANKRUPTCY COURT AT 1100 COMMERCE, ROOM 12A24, DALLAS, TEXAS
75242-1496, BEFORE THE CLOSE OF BUSINESS ON MARCH 28, 2016, WHICH IS
MORE THAN TWENTY-FOUR (24) DAYS FROM THE DATE OF THIS MOTION’S
SERVICE.
ANY RESPONSE MUST BE IN WRITING AND FILED WITH THE CLERK, AND A
COPY MUST BE SERVED UPON COUNSEL FOR THE TRUSTEE PRIOR TO THE
CLOSE OF BUSINESS ON MARCH 28, 2016.
IF A RESPONSE IS FILED, A HEARING WILL BE HELD WITH NOTICE ONLY TO
THE OBJECTING PARTY. IF NO HEARING ON THIS MOTION IS TIMELY
REQUESTED, THE RELIEF REQUESTED SHALL BE DEEMED TO BE
UNOPPOSED, AND THE COURT MAY ENTER AN ORDER GRANTING THE
RELIEF SOUGHT OR PERMITTING THE NOTICED ACTION TO BE TAKEN.
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2. _____________________________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 2 of 5
#4834-0987-7806
TO THE HONORABLE HARLIN D. HALE,
UNITED STATES BANKRUPTCY JUDGE:
COMES NOW Matthew D. Orwig, the duly-appointed Chapter 11 Trustee and
Liquidating Trustee of the FirstPlus Financial Group, Inc. bankruptcy estate (the “Trustee”)
seeking this Court’s approval for the settlement and compromise of controversies between the
Trustee and William Handley (“Handley”) (collectively, the “Parties”). In support of this
motion, which is made pursuant to Bankruptcy Rule 9019, the Trustee would show the Court the
following:
JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of this Motion pursuant to 28
U.S.C. § 1334(b) and the standing order of reference of the District Court. This matter is a core
proceeding. 28 U.S.C. § 157(b)(1), (b)(2)(O).
2. Venue in this Court is proper under 28 U.S.C. §§ 1408 and 1409.
BACKGROUND FACTS
3. The Debtor filed for relief under Chapter 11 of the United States Bankruptcy
Code on June 23, 2009. The Trustee was appointed on July 24, 2009.
4. No creditors’ committee was appointed in this case by the United States Trustee.
5. Handley filed proof of claim no. 178 (the “Claim”) asserting a claim in the
amount of $2,625,735.89 for unpaid compensation, expenses, and indemnification.
6. As alleged in the Trustee’s First Amended Complaint in the adversary proceeding
styled Orwig v. Freeman, et al., Adversary No. 11-03397-hdh, pending in this Court (the
“Adversary Proceeding”), Handley served on Debtor’s board of directors and participated in the
wrongdoing made the basis of the lawsuit.
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3. _____________________________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 3 of 5
#4834-0987-7806
7. The Trustee and Handley have agreed upon terms for settlement of the Claim and
the Adversary Proceeding. A copy of the Compromise and Settlement Agreement (the
“Agreement”) is attached to this motion as Exhibit A, and is incorporated herein by reference.
The Agreement is a walk-away providing that Handley will withdraw his $2.6 million proof of
claim and that the Trustee will drop his claims pleaded against Handley. The Agreement
provides for a full release of any and all pre- and post-petition claims and causes of action
between the Parties.
8. Because the controversies between the Parties involve issues that would likely
take substantial time and money to resolve, the Trustee has concluded that the interests of the
estate are better served by entering into the attached Agreement. The Trustee requests approval
to enter into the Agreement as follows.
BASIS FOR RELIEF REQUESTED
9. In deciding whether to approve a proposed settlement agreement or compromise
of controversy, a bankruptcy court should consider the following factors:
a. the probability of success on the merits and the resolution of the dispute;
b. the complexity of the litigation being settled;
c. the expense, inconvenience and delay associated with litigating the dispute; and
d. the paramount interests of creditors.
Texas Extrusion Corp. v. Lockheed Corp. (In re Texas Extrusion Corp.), 844 F.2d 1142,
1158-59 (5th Cir. 1988), cert denied, 105 S. Ct. 31 (1989); United States v. Aweco, Inc. (In re
Aweco, Inc.), 752 F.2d 293, 298 (5th Cir. 1984), cert. denied, 469 U.S. 880 (1984).
10. While it is necessary for the proponent of a compromise to set forth the factual
and legal basis for the compromise so the court can make an intelligent and informed evaluation
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4. _____________________________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 4 of 5
#4834-0987-7806
of the proposed settlement, it is not incumbent upon the proponent to present a mini-trial or a full
evidentiary hearing. Texas Extrusion, 844 F.2d at 1158-59; Aweco, 725 F.2d at 298.
11. The Agreement is in the best interests of the Debtor’s bankruptcy estate and
should be approved. The Settlement provides for Handley to withdraw his proof of claim for
$2,625,735.89 while the Trustee dismisses his claims against Handley. While the Trustee
believes that he has a strong claim against Handley, Handley contends that he has strong factual
and legal defenses to the Trustee’s claim. The Trustee is also concerned that, even if he is
ultimately successful in prosecuting his claims, there are insufficient collectable assets to justify
the prosecution. Given the cost of prosecuting the Trustee’s claim, the Trustee believes that
Handley’s agreement to withdraw his claim in exchange for the Trustee doing the same is in the
best interests of the estate. Accordingly, the Trustee requests that the Court grant this motion
and authorize the Trustee and Handley to enter into the Agreement.
WHEREFORE, the Trustee respectfully requests that this Court find that service on the
attached service list is proper and that the Agreement incorporated as Exhibit B is in the best
interest of the Debtor’s estate and approve of the Agreement between the Trustee and William
Handley.
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5. _____________________________________________________________________________________________
MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 5 of 5
#4834-0987-7806
Date: March 4, 2016 Respectfully submitted,
/s/ John Volney
Eric W. Pinker, P.C. (epinker@lynnllp.com)
Texas Bar No. 16016550
John Volney (jvolney@lynnllp.com)
Texas Bar No. 24003118
LYNN PINKER COX & HURST
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3800 Telephone
(214) 981-3839 Facsimile
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on March 4, 2016 via ECF or United States Mail to the parties of
record.
/s/ John Volney
John Volney
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6. ______________________________________________________________________________
COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 1
#4812-0420-0750
______________________________________________________________________________
COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY
______________________________________________________________________________
This Settlement Agreement (the “Settlement”) is entered into by and between Matthew
D. Orwig, the duly appointed Chapter 11 and Liquidating Trustee (the “Trustee”) of the FirstPlus
Financial Group, Inc. (the “Debtor”) bankruptcy estate (the “Estate”) and William Handley
(“Handley”) to be effective upon approval by the Bankruptcy Court.
R E C I T A L S:
WHEREAS, on June 23, 2009 (the “Petition Date”), the Debtor filed a voluntary petition
for relief in the United States Bankruptcy Court for the Northern District of Texas, Dallas
Division (the “Bankruptcy Court”) under Chapter 11 of the Bankruptcy Code, commencing
bankruptcy case number 09-33918-HDH-11 (the “Bankruptcy Case”); and
WHEREAS, Matthew D. Orwig (the “Trustee”) was appointed as the Chapter 11 trustee
for the Debtor on July 24, 2009; and
WHEREAS, Handley filed proof of claim number 178 against the Estate in the amount of
$2,625,735.89 (the “Claim”) in which William Handley asserted that he was owed that amount
for unpaid compensation, expenses, and indemnification; and
WHEREAS the Trustee objected to Handley’s proof of claim and filed other claims
against Handley in the Adversary Proceeding styled Matthew D. Orwig, as Chapter 11 Trustee of
FirstPlus Financial Group, Inc. vs. Freeman, et al., Adversary No. 11-3397 (“Adversary
Proceeding”);
WHEREAS, on February 6, 2012, the Court entered its Order Confirming Trustee’s
Amended Plan of Liquidation for the Debtor in the Bankruptcy Case (Docket No. 770), which
formed a Liquidating Trust and appointed the Trustee as the Liquidating Trustee; and
WHEREAS, the Trustee and Handley wish to avoid the uncertainty and expense of
litigation by compromising forever the claims existing between them;
NOW THEREFORE, in consideration of the mutual benefits and obligations contained
herein, the Trustee and Handley have agreed and do hereby agree as follows:
1. The Trustee agrees to dismiss with prejudice all of the claims against Handley
asserted in the Adversary Proceeding.
2. Handley agrees to withdraw the Claim and not to seek any additional amounts
from the Estate.
EXHIBIT A
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7. ______________________________________________________________________________
COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 2
#4812-0420-0750
3. Upon approval of this Agreement by the Bankruptcy Court, the Trustee, the
Liquidating Trustee, the Debtor and the Estate hereby releases William Handley from any and all
pre- and post- petition claims and causes of action they own, hold, or possess related to (i)
Handley’s actions as an officer or director for Debtor and (ii) any and all causes of action that are
asserted or could have been asserted against Handley in the Adversary Proceeding.
4. Upon approval of this Agreement by the Bankruptcy Court, Handley hereby
releases and forever discharges the Trustee and the Liquidating Trustee, both in their capacities
as trustee and individually, and the Debtor and the Estate and each of their and its employees,
agents, officers, partners, attorneys, and professionals from any and all pre- or post-petition
claims and causes of action he owns, holds or possesses related to (i) the Claim and (ii) any and
all causes of action that could have been asserted by Handley in the Adversary Proceeding.
Further, as set forth above, Handley agrees to withdraw the Claim and not to seek any additional
amounts from the Estate.
5. The parties understand and agree that this Agreement is being made to avoid the
uncertainty, time, trouble, and expense of litigation and that such settlement shall not be taken as
an admission of liability on the part of anyone, but rather, such liability has been and is expressly
denied. Each party agrees to bear its own costs, except as otherwise provided in this Agreement.
6. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas.
7. This Agreement constitutes the entire and complete understanding and agreement
of the parties, and supersedes prior understandings and agreements, if any, among the parties
with respect to the subject matter hereof.
8. This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which constitute one agreement. Executed versions of this
Agreement may also be delivered and exchanged via email. All parties agree to execute such
other and further documents and/or pleadings as may be reasonably necessary to evidence or
carry out the terms and provisions of this Agreement.
9. This Agreement shall be binding upon the Trustee, the Debtor, the Estate, and
Handley and each of their respective successors, heirs, legal representatives, and assigns.
10. Each of the undersigned warrants and represents that it is the owner of the claim
released hereunder and that it is legally competent to execute this Agreement. The person
executing the Agreement warrants and represents that he or she has read this Agreement, has
consulted with legal counsel about it, and has authority to execute this Agreement and has
executed this Agreement with full knowledge of its contents and meaning.
11. This Agreement may not be changed, modified, amended or contradicted except
in a writing signed by all parties to the Agreement.
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8. ______________________________________________________________________________
COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY Page 3
#4812-0420-0750
12. This Agreement shall not become effective until the date an order approving this
Agreement is final and not subject to appeal or rehearing. If the Bankruptcy Court does not
approve this Agreement, the Agreement is void ab initio.
IN WITNESS WHEREOF, the Trustee and William Handley have caused this
Agreement to be executed and delivered as of the date first herein written.
WILLIAM HANDLEY
__________________________________________
William Handley
Date: ____________________________________
MATTHEW D. ORWIG, TRUSTEE
__________________________________________
Matthew D. Orwig, Chapter 11 Trustee
Date: ____________________________________
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9. 1
#4826-2508-6510
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
In re: § Chapter 11
§
FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH
§
Debtor. §
ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT
BETWEEN THE TRUSTEE AND WILLIAM HANDLEY
Came on for consideration the Motion [docket 952] (the “Motion”) of Matthew D.
Orwig, the Liquidating Trustee (the “Trustee”), seeking this Court’s approval for the settlement
and compromise of controversies between the Trustee and William Handley (the “Agreement”).
The Court, having considered the Motion, the Agreement, proper service thereof, and any
evidence and arguments presented in support of the Motion and Agreement, finds that the
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#4826-2508-6510
Agreement is in the best interest of the Debtor’s estate. The Motion is therefore well-taken and
shall be, and hereby is, GRANTED. It is therefore,
ORDERED that the Agreement between the Trustee and William Handley is approved in
the form described in and attached to the Motion in all respects; and it is further
ORDERED that the Trustee is authorized to enter into this Agreement.
### END OF ORDER###
Submitted by:
John Volney
Texas Bar No. 24003118
LYNN PINKER COX & HURST
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
(214) 981-3800 Telephone
(214) 981-3839 Facsimile
jvolney@lynnllp.com
Counsel for Matthew D. Orwig,
the Chapter 11 Trustee and Liquidating Trustee
for the Estate of FirstPlus Financial Group, Inc.
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