Goldman v. Gerard (In re Gerard)

Goldman v. Gerard (In re Gerard), BAP No. CC-14-1028 (BAP 9th Cir. Dec. 08, 2014)
In the unpublished decisions, the Ninth Circuity Bankruptcy Appellate Panel dismissed Creditor Diane Goldman ("Goldman") appeal of an order granting Debtor to reopen an adversary proceeding and determining that Debtor did not breach a settlement agreement related to a non-dischargeability judgment entered previously in Goldman's favor. Two other issues raised in Debtor's motion were not (and still have not been) decided. Since the Order entered by the bankruptcy Court was not a final order the appeal was dismissed for lack of jurisdiction.
Procedural context:
The Debtor filed an ex parte motion to (a) reopen adversary proceeding to interpret court's judgment and settlement agreement incorporated therein, (b) to rescind unauthorized issuance of abstract of judgment, and (c) to hold Goldman in contempt of court. The bankruptcy court expressed that its concern was the closing of escrow regarding the expedited hearing; however, the parties requested that the court rule on all three issues presented at the hearing. The bankruptcy court granted relief to reopen the adversary proceeding and to interpret the settlement and judgment. The court found that the type of borrowing that occurred against the insurance policy was not the type of borrowing contemplated by the settlement agreement, so Debtor's loans to pay premiums were not a violation. The bankruptcy court rules that the Debtor did not breached the agreement and Goldman is entitled to $85,000 to be paid out of the escrow. If the money was not paid from the escrow, then Goldman is awarded the abstract judgment previously recorded. Goldman timely appealed and file a motion for stay pending appeal. Prior to the hearing on Goldman's motion and the Debtor's motions, the parties stipulated that (1) Goldman would receive the $85,000 cash from escrow; (2) Goldman would remove the new abstract of judgment for $215,000 on Debtor's home to be sold; and (3) Goldman could then file a new abstract of judgment for $130,000 on Debtor's new home once the sale closed.
Goldman and Debtor were prior partners of a law firm. Upon termination of the relationship, Goldman filed suit against the Debtor in state court on the basis of including but not limited to breach of fiduciary duty. Goldman was successful in State Court and was awarded a judgment plus attorney fees and costs. Goldman timely filed an adversary seeking the non-dischargeability of the judgment awarded pre-Petition. After mediation, Goldman and the Debtor entered into a settlement that was approved by the bankruptcy court. It was noted that the Debtor had stage IV cancer. The settlement provided for monetary payments, retention of jurisdiction by the bankruptcy court, and if a default occurred; the obligations due to Goldman were non-dischargeable. The monetary portion of the settlement included an option wherein the Debtor assigned $125,00 of her $500,000 life insurance policy benefit to Goldman. The Debtor remitted the initial payment according to the settlement. The administrative Chapter 7 proceeding and the adversary proceeding were both closed. Debtor missed payments on her life insurance premiums and the insurance carrier applied an automatic loan provision that borrowed money against the cash value of the policy to pay the premiums. Goldman sent notices of the default to Debtor and Debtor's counsel; however, whether the Debtor receive these notices was questioned. Goldman's counsel having not received a response recorded a writ of execution and abstract judgment denying the discharge of the Debtor in the full amount due to Goldman less the initial payment made after the settlement. The Debtor was attempting to sell her house and the recorded judgment was preventing the sale.
Kirscher, Taylor, Dunn

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