[CLC-Discussion] Bankruptcy Proof Agreed Judgments

[Randall Gilbert]

First recommendation: Get a Guarantor.
Second recommendation: Here is a clause that I recently put into a settlement agreement....

A.                If any claim is ever made upon Plaintiff or their agents for the repayment or return of any part of the Settlement Payment made hereunder, and Plaintiff repays or returns all or part of said money or property by reason of (a) any judgment, decree or order of any court (including bankruptcy) or administrative body having jurisdiction over Plaintiff or (b) any settlement or compromise of any such claim between the Plaintiff and such claimant, then in such event the mutual release portion of this agreement given by Plaintiff to Defendant herein shall be automatically null and void and unenforceable by Defendant and Guarantor, and Plaintiff may elect either or any of the following: (1) enforce this Agreement against any non-bankrupt party hereto which is a guarantor or otherwise jointly and severally liable hereunder, if any;  and/or (2) have any party to this Agreement returned to their pre-Settlement Agreement positions and pursue any and all claims against said party; and/or (3) Retain any portion of the Settlement Payment not repaid or returned, crediting same against those sums claimed by Plaintiff.


Sincerely yours,
Randall Gilbert, Esq.
Board Certified Construction Lawyer

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From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Tracye
Sent: Thursday, June 14, 2012 10:18 AM
To: Mark Young; Construction Law Discussion
Subject: Re: [CLC-Discussion] Bankruptcy Proof Agreed Judgments

Mark:

You can keep the language of your Judgment clean and record it. Prepare a separate Stipulation for Stay of Execution (that needs not be filed). The Stip can provide for the discounted settlement.

If you go this route, add the following language in the Stip. "Should the payment of this settlement be hereafter voided for any reason, then the discounted settlement set forth in this Stipulation shall not apply".  It's not full proof, but I always include it.

Feel free to call me if you have any questions about the structure.

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Tracye K. Solove, Attorney at Law
Certified Civil Circuit Mediator
Tracye at solovelawfirm.com
Kendallwood Office Park One
12002 Southwest 128th Court
Suite 201
Miami, Florida  33186
Phone: (305) 612-0800
Facsimile: (305) 612-0801
http://www.solovelawfirm.com<http://www.solovelawfirm.com/>

Providing Statewide Legal Services in the areas of Commercial Collections and Recovery, Creditors' Rights, Commercial Landlord/Tenant and Real Estate Foreclosures

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Mark Young
Sent: Wednesday, June 13, 2012 8:43 PM
To: Construction Law Discussion
Subject: [CLC-Discussion] Bankruptcy Proof Agreed Judgments

Hypthetical:  Parties are working toward a settlement agreement, to be incorporated in a Final Judgment for a contract dispute.  Defendant has insufficient funds to make a lump payment of the Final Judgment and requires a payment plan that will take years.  Plaintiff is concerned with Defendant's ability to pay the judgment.  Is there any language that can be placed in a settlement agreement that will protect Plaintiff in the event Defendant files for bankrupty (non-dischargeable debt, secured creditor status, etc.)?

Thanks,

Mark
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