Free Motion for Order - District Court of Colorado - Colorado

Case 1:01-cv-00275-JLK

Document 772

Filed 10/17/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-275-JLK DOMINICK PAOLONI, et al., Plaintiffs, vs. DONALD I. GOLDSTEIN, et al., Defendants, and NBSA, LLC, et al., Relief Defendants. ____________________________________________________________________________ Civil Action No. 03-CV-0807-JLK-CBS VIATICAL LIQUIDITY, LLC, a California limited liability corporation, Plaintiff, v. MARK WOLOK, et al., Defendants. _____________________________________________________________________________ MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT ______________________________________________________________________________ COME NOW all Plaintiffs in the above-captioned actions and move that this Court approve the Settlement Agreement attached hereto as Exhibit A and incorporated herein by reference and, in support thereof, state as follows:

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1.

Effective September 16, 2005, all of the Plaintiffs in the above-captioned

litigation and Defendants, Hyman Lippitt, P.C., J. Leonard Hyman, Norman L. Lippitt, Douglas A. Hyman, Brian D. O'Keefe, Nazli G. Sater, H. Joel Newman, Kenneth F. Neuman (the "Hyman Lippitt Defendants") and Terry S. Givens ("Givens"), as well as non-party, Chicago Insurance Company, entered into a Settlement Agreement pursuant to which all of Plaintiffs' claims against the Hyman Lippitt Defendants and Givens in the above-captioned matters were fully and finally settled. This Settlement Agreement is attached hereto as Exhibit A. Pursuant to Section IV.A. of the Settlement Agreement, and as a condition precedent of the settlement, the parties agreed to seek an order and final judgment that accomplishes the following: a. b. Approves the settlement as fair, reasonable and adequate. Directs the parties to the Settlement Agreement and their counsel to

comply with and consummate the terms of the Settlement Agreement. c. Upon the Effective Date, dismiss both of the above-captioned actions on

the merits and with prejudice as to the Hyman Lippitt Defendants and Givens, without fees and costs to any party, except as provided in the Settlement Agreement. (The Effective Date is defined in Section I.P. as fourteen days following the entry of orders approving the settlement by this Court, by the United States Bankruptcy Court for the Southern District of Florida and by the United States Bankruptcy Court for the Southern District of California and the issuance of bar orders in both the Florida Bankruptcy Court proceeding and the California Bankruptcy Court proceeding as set forth in Section IV.B. of the Settlement Agreement.) d. Incorporates the release set forth in the Settlement Agreement and forever

discharges the Releasees from any Release Claims.

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e.

For this Court to retain jurisdiction over the administration and

enforcement of the Settlement Agreement. 2. Pursuant to Section IV.B. of the Settlement Agreement, as a condition precedent

to the consummation of the Settlement Agreement, John P. Barbee, Trustee, must obtain a bar order from the United States Bankruptcy Court for the Southern District of Florida and Viatical Liquidity, LLC must obtain a bar order from the United States Bankruptcy Court for the Southern District of California providing that any person who receives notice of the Settlement Agreement is precluded from prosecuting any and all claims against the Hyman Lippitt Defendants and Givens from any and all losses however arising both at law and equity relating to any matter, claim or right, whether presently known or unknown, past or present, asserted or unasserted, contingent or liquidated, which any such person has, ever had, or may have arising from any action or inaction of the Hyman Lippitt Defendants or Givens in any way based on, arising out of, or directly or indirectly related to any of the allegations against the Hyman Lippitt Defendants or Givens asserted in the above-captioned matters. In the event either or both of the United States Bankruptcy Court for the Southern District of Florida and/or the United States Bankruptcy Court for the Southern District of California, does not enter the bar order, the parties to the Settlement Agreement may waive such condition precedent and still consummate the Settlement Agreement. (See Section VI.A.3. and VI.B.) 3. Concurrent with the filing of this Motion, John P. Barbee, Trustee, is filing with

the United States Bankruptcy Court for the Southern District of Florida a motion to approve the Settlement Agreement and for entry of a bar order pursuant to the terms of the Settlement Agreement.

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4.

Concurrent with the filing of this Motion, Viatical Liquidity, LLC is filing with

the United States Bankruptcy Court for the Southern District of California a motion to approve the Settlement Agreement and for issuance of a bar order in accordance with the Settlement Agreement. 5. The parties to this settlement agreement believe it to be in the best interests of

each of them that the Settlement Agreement be consummated in accordance with its terms and conditions. Approval of this Settlement Agreement in accordance with its terms and conditions will eliminate the necessity of an extended trial, thus saving each of the parties a substantial amount of fees and expenses. Approval of this Settlement Agreement in accordance with its terms and conditions will fully and finally resolve the case of Viatical Liquidity, LLC v. Mark Wolok, et al. Approval of this Settlement Agreement in accordance with its terms and conditions will substantially simplify the remainder of the Paoloni v. Goldstein matter. 6. Each of the Hyman Lippitt Defendants and Givens has no objection to this

Motion and, in accordance with the Settlement Agreement, joins in the Motion. WHEREFORE, for the reasons set forth herein, Plaintiffs hereby move for the entry of orders as follows: 1. 2. Approving the Settlement Agreement as fair, reasonable and adequate. Directing each of the settling parties and their counsel to comply with and

consummate the terms of the Settlement Agreement. 3. Upon the Effective Date, as defined within the Settlement Agreement, all claims

against Hyman Lippitt, P.C., J. Leonard Hyman, Norman L. Lippitt, Douglas A. Hyman, Brian D. O'Keefe, Nazli G. Sater, H. Joel Newman, Kenneth F. Neuman, and Terry S. Givens in the matters of Dominick Paoloni, et al. v. Donald I. Goldstein, et al. and Viatical Liquidity, LLC v.

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Mark Wolok, et al. shall be dismissed with prejudice, with each party to bear their own fees and costs, except as expressly set forth in the Settlement Agreement. 4. Each of the Releasees, as defined in the Settlement Agreement, is forever

discharged from any of the Release Claims, as defined in the Settlement Agreement. 5. That this Court shall retain jurisdiction over the administration and enforcement

of this Settlement Agreement. 6. For any other relief deemed just and proper under the circumstances. DILL DILL CARR STONBRAKER & HUTCHINGS, P.C.

/s/ John A. Hutchings John A. Hutchings Robert A. Dill 455 Sherman Street, Suite 300 Denver, Colorado 80203 Telephone: (303) 777-3737 Facsimile: (303) 777-3823 E-mail: [email protected] [email protected] ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on October 17, 2005 I electronically filed the foregoing MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT with the Clerk of Court using CM/ECF System, which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

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and I hereby certify that I have mailed the MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT to the following non-CM/ECF participants by depositing same in the United States mail, postage prepaid, addressed to the following on October 17, 2005: Bruce I. Kravitz, Esq. 1870 Forest Hill Boulevard Suite 211 West Palm Beach, Florida 33406 Lee Twyford 1471 SW 14th Street Boca Raton, Florida 33486 Larry K. Griffis, Esq. Jaffe, Raitt, Heuer & Weiss, P.C. 27777 Franklin Road, Suite 2500 Southfield, Michigan 48034-8214 John P. Barbee, Trustee 1555 Indian River Boulevard, Suite 111 Vero Beach, Florida 32960 Michael Goldberg, Esq. Akerman Senterfitt 350 East Las Olas Boulevard Suite 1600 Ft. Lauderdale, Florida 33301 /s/ Charlene Huffman Robert S. Harrison, Esq. Matthew D. Klakulak, Esq. Robert Harrison & Associates, PLC 240 East Merrill Street Birmingham, Michigan 48009 Gary Hoskie Professional Consultants & Managers, Inc. 1706 Surfside Drive Hutchinson Island, Florida 34949

Mr. Isadore Cohen 1920 East Hallandale Boulevard Suite 626 Hallandale, Florida 33009

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