Barry Adam Singer

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re:
Barry Adam Singer,
Debtor.
Case No.: 2:13-bk-20975-TD
CHAPTER 7
ORDER GRANTING DEBTOR’S MOTION
FOR ORDER APPROVING COMPROMISE
OF CONTROVERSY
Date: March 6, 2014
Time: 10:00 AM
Courtroom: 1345
This motion was heard on March 6, 2014, on timely notice to the United States
Trustee and chapter 7 trustees Wesley Avery and Jason Rund. Appearances were
made as set forth on the record. A handwritten and signed agreement entitled
Settlement Agreement Terms was signed on November 22, 2013 (hereafter, November
22 Agreement). Barry Adam Singer, Debtor, Defendant, and Movant, now seeks an
order approving compromise of a controversy between the parties as outlined in the
November 22 Agreement.
Telfair Corporation, Respondent and Plaintiff in its adversary against Singer,
challenges the November 22 Agreement as incomplete, ambiguous and unenforceable.
Telfair introduced supplementary evidence of drafts of a further agreement to
implement, among other things, provisions relating to Telfair’s asserted rights to
additional penalties upon Singer’s default under the November 22 Agreement, based
upon Telfair’s pending adversary filed against Singer in this bankruptcy case. Singer
also introduced supplementary evidence.
The court considered the parties’ supplemental evidence and took Singer’s
FILED & ENTERED
APR 22 2014
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	toliver
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motion under advisement, subject to additional case law offered to support each party’s
position in the pending motion. The court has read and considered each party’s
additional case law.
The court hereby grants the Singer motion. The court finds that the November
22 Agreement is an integrated agreement. There are no material ambiguities. The
agreement is complete and enforceable as is.
Although handwritten, the record of the March 6 hearing shows that there is no
disagreement between the parties either as to the words of the agreement or as to the
identity and authority of the signatories to the agreement. The court has typed the
words of the agreement as affirmed by the parties at the hearing, as follows:
Telfair v. Singer
2:13-ap-01702-TD
11/22/2013 Settlement Agreement Terms
(1) 35000 x 42 months
(2) 5,00000 to be paid when order final from JAJ.
(3) Ryan to prepare Mtn to Approve Settlement
(4) Stipulation to be prepared by Kashfian
(5) Settlement amount is 29,400. If the Debtor makes the payments
pursuant to Settlement Agreement totaling the amount of 14,70000
then the obligation is fully satisfied, and no further payments are
required to be made.
(6) Settlement includes the corporation, the Debtor, Telfair.
(7) Grace Period 6 days
(8) Mail to Kashfian + Kashfian.
(9) Default to be entered on Declaration and submission of Judgment.
(10) Settlement Amount can be prepaid at any time w/o penalty
(11) Payment date to be determined for each month
The Parties signing below agree to the above terms of settlement.
11/22/2013 </s/ Brett B. Curlee>, attorney for Barry Singer
11/22/13 </s/ Barry Singer>
</s/ Nader Kashfian>
TELFAIR CORP.
</s/ Ryan Kashfian>, attorney for Telfair
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Unequivocally, the November 22 Agreement specifies that the litigated dispute is
settled. The November 22 Agreement establishes a settlement amount of $29,400 to
be “satisfied” by [$]350 x 42 months and a [$]5,000 payment “when order final from JAJ”
with “no further payments being required.” “Default” is “to be entered on Declaration
and submission of Judgment.”
“JAJ” refers to a California corporation, lessee under a commercial real property
lease dated June 26, 2012, guaranteed by Singer, as established by the evidence
received and considered by the court.
In this private two-party dispute arising in an adversary proceeding in chapter 7,
notice to any other party was and is unnecessary. No trustee has filed opposition to the
settlement or appeared at the hearing.
The monthly installment payments date is a minor matter and may be supplied
unilaterally by notice from Telfair or by California common or statutory law.
No other motion or stipulation is necessary to validate or explain the November
22 Agreement.
No other term necessary to the November 22 Agreement is referenced. The
November 22 Agreement is compete and not subject to valid dispute.
Telfair asserted otherwise. Telfair asserted that a penalty clause upon default
was contemplated and is necessary to a fair resolution of the dispute that led to the
adversary proceeding between the parties. The court disagrees with Telfair’s position.
No default penalty other than as expressed in the November 22 Agreement was
reserved within the meaning of Roth v. Marquez, 942 F.2d 617 (9th Cir. 1991). Although
the court considered Telfair’s evidence on this point, the court concludes that Telfair’s
assertions are not consistent with the terms of the November 22 Agreement. The
November 22 Agreement is not reasonably susceptible to the meaning asserted by
Telfair. The obvious, exclusive “default” penalty of the November 22 Agreement is a
penalty of $14,700 over and above the $5,000 JAJ payment and the 42 installment
payments of $350 payable monthly under the agreement. Nothing in Weddington Prod.,
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Inc. v Flick, 71 Cal.Rptr.2d 265 (2d Dist. 1998), cited by Telfair, requires a different
result.
Telfair was required to prepare a motion for approval of the agreement and a
stipulation. Telfair, or its attorneys, failed to do so. Their failure may be a breach of the
November 22 Agreement, but, from a bankruptcy standpoint, does not invalidate the
otherwise complete, integrated November 22 Agreement and the court so finds, based
on the evidence.
SO ORDERED.
Date: April 22, 2014
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