Firstplus - proposed settlement with oneil-ballard-hickman - more Shareholder money leaving the nest

1. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 1 OF 6
4829-3998-8518
Jeffrey M. Tillotson, P.C. (jmt@lynnllp.com)
Texas Bar No. 20039200
Eric W. Pinker, P.C. (epinker@lynnllp.com)
Texas Bar No. 16016550
John Volney (jvolney@lynnllp.com)
Texas Bar No. 24003118
LYNN TILLOTSON PINKER &COX, L.L.P.
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: § CASE NO. 09-33918-HDH
FIRSTPLUS FINANCIAL GROUP, INC. § Chapter 11
§
Debtor. §
§
______________________________________________________________________________
TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT
WITH DEFENDANTS ROBERT O’NEAL, PAUL BALLARD AND TODD HICKMAN
IN ADVERSARY NO. 11-03397-HDH
______________________________________________________________________________
NO HEARING WILL BE CONDUCTED HEREON UNLESS A WRITTEN RESPONSE
IS FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AT
1100 COMMERCE STREET, ROOM 1254, DALLAS, TEXAS 75242 BEFORE CLOSE
OF BUSINESS ON SEPTEMBER 8, 2015, WHICH IS AT LEAST 24 DAYS FROM THE
DATE OF SERVICE HEREOF.
ANY RESPONSE SHALL BE IN WRITING AND FILED WITH THE CLERK, AND A
COPY SHALL BE SERVED UPON COUNSEL FOR THE MOVING PARTY PRIOR TO
THE DATE AND TIME SET FORTH HEREIN. IF A RESPONSE IS FILED A
HEARING MAY BE HELD WITH NOTICE ONLY TO THE OBJECTING PARTY.
IF NO HEARING ON SUCH NOTICE OR 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 THE NOTICED
ACTION MAY BE TAKEN.
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2. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 2 OF 6
4829-3998-8518
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 Robert O’Neal (“O’Neal”), Paul Ballard (“Ballard”) and Todd Hickman
(“Hickman”) (collectively referred to as the “Defendants”) and in support of settlement, the
Trustee respectfully states as follows:
JURISDICTION AND VENUE
1. This Court has jurisdiction over the Motion pursuant to 28 U.S.C. §§ 157 and
1334. This matter is core proceeding under 28 U.S.C. § 157(b)(2). Venue is proper before this
Court pursuant to 28 U.S.C. §§ 1408 and 1409.
2. Venue is proper under 28 U.S.C. §1408 and 1409.
FACTUAL AND PROCEDURAL BACKGROUND1
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. The Trustee commenced an adversary proceeding against a number of defendants
including O’Neal, Ballard and Hickman styled, Orwig v. Freeman, et al., Adversary No. 11-
03397-hdh, pending in this Court (the “Adversary”).
6. The Trustee subsequently filed a First Amended Complaint. In the First
Amended Complaint, as to O’Neal, the Trustee sought to: (a) equitably subordinate his claims
against the Debtor under Count XVIII; (b) avoid and recover preferential transfers under 11
1
The statements in this Motion are made pursuant to Federal Rule of Evidence 408 and in the event the settlement
proposed is not approved, the statements shall not be deemed admissions of fact by the Parties.
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3. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 3 OF 6
4829-3998-8518
U.S.C. §§547 and 550 under Count XIX; (c) disallow his claim under 11 U.S.C. §502(d) under
Count XX; (d) disallow his proof of claim in the amount of $117,140.00 (“Claim No. 62”) under
Count XXI; and (e) re-characterize his loans under Count XXXII.
7. In the First Amended Complaint, as to Ballard, the Trustee sought to: (a)
equitably subordinate his claims against the Debtor under Count XVIII; and (b) disallow his
claim under his proof of claim in the amount of $63,470.00 (“Claim No. 92”) under Count XXI.
8. In the First Amended Complaint, as to Hickman, the Trustee sought to: (a)
equitably subordinate his claims against the Debtor under Count XVIII; and (b) disallow his
claim under his proof of claim in the amount of $184,070.00 (“Claim Nos. 33 and 45”) under
Count XXI.
TERMS OF SETTLEMENT AGREEMENT
9. Rather than further litigating the matter, the Trustee and the Defendants have
reached a compromise and settlement of any and all issues surrounding the claims asserted in the
Adversary. The terms of the settlement are set forth in detail in the settlement agreement, a copy
of which is attached to this Motion in Exhibit “A” (the “Settlement Agreement”). The terms of
the Settlement Agreement may be summarized as follows2
and will be deemed effective within
ten (10) days from entry of the order approving the Settlement Agreement:
a. Seventy-Five (75%) percent of O’Neal’s proof of claim, Claim No. 205, in the
amount of $167,715.00 shall be allowed so that O’Neal shall be entitled to an
allowed claim of $125,786.25.
b. Sixty (60%) percent of Ballard’s claim of $63,470.00, Claim No. 92, shall be
allowed so that Ballard shall be entitled to an allowed claim of $38,082.00.
c. Sixty (60%) percent of Hickman’s claim of $88,070, Claim No. 33, shall be
allowed so that Hickman shall be entitled to an allowed claim of $52,842.00.
2
The following is a summary of the Settlement Agreement and reference should be made to the entire Settlement
Agreement for a complete description of the terms. To the extent this summary conflicts with the terms of the
Settlement Agreement, the provisions in the Settlement Agreement shall govern.
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4. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 4 OF 6
4829-3998-8518
d. The trustee shall file pleadings as may be necessary to obtain an order of
dismissal of all claims against Hickman, Ballard, and O’Neal within 14 days from
the entry of the Order by the Bankruptcy Court approving the settlement.
e. The Trustee Related Persons and the Defendant Related Persons shall mutually
release all claims against the other Parties.
10. 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. In this regard, the Trustee
believes this settlement and compromise is in the best interest of the estate taking into account
the delay, cost and uncertainty of litigating the claims.
RELIEF REQUESTED
11. The Trustee requests that the Court approve the Settlement with the Defendants
concerning the claims the estate may have against the Defendants and the claims that the
Defendants may have against the estate, pursuant to Bankruptcy Rule 9019.
12. A trustee may compromise and settle matters with court approval pursuant to Rule
9019 of the Federal Rules of Bankruptcy Procedure, which in pertinent part provides that “(o)n
motion by the trustee and after notice and a hearing, the court may approve a compromise and
settlement.” Fed. R. Bankr. P. 9019(a).
13. A court should determine that the proposed settlement is in the best interests of
the bankruptcy estate. Connecticut Gen. Life Ins. Co. v. United Cos. Fin. Corp. (In re Foster
Mortgage Corp.), 68 F.3d 914, 917 (5th
Cir. 1994). In this regard, the Fifth Circuit has
enunciated the standards applicable to a court’s evaluation of proposed settlements. The court
should compare the relative strengths and weaknesses of each party’s claims and the probability
of success for each of the parties should the claims and disputes be litigated. The court should
further evaluate (i) the complexity, expenses and likely duration of litigation, (ii) the potential
harm to the bankruptcy estate caused by the delay and cost of litigation, (iii) the possible
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5. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 5 OF 6
4829-3998-8518
difficulties associated with collection of any judgment which the estate may obtain, and (iv)
whether the settlement is fair and equitable to the relative benefits being obtained by the estate,
the creditors and parties in interest. Id. at 917; In re Jackson Brewing Co., 624 F.2d 599, 609 (5th
Cir. 1980); United States v. AWECO, Inc. (In re AWECO, Inc.), 725 F.2d 293 (5th
Cir. 1984).
14. When these standards are applied to the proposed Settlement, it is clearly apparent
that the settlement is in the best interest of the bankruptcy estate, its creditors, and all parties in
interest. The Settlement certainly eliminates the uncertainty surrounding the estate’s probability
of success in litigating the Adversary against the Defendants. While the Trustee might prevail if
the Adversary litigation were to continue, such litigation would be vigorously contested, costly
to the estate, and time-consuming. In that regard, this Settlement resolves complex and disputed
factual and legal issues that would arise is such litigation. The Settlement further eliminates the
estate’s need to incur costs in litigating these issues and resolves this matter which is necessary
for complete administration of the state.
15. Based upon the Trustee’s evaluation of the claims and issues involved in this
matter, the disputes and likely further costs of litigating these issues, it is his business judgment
that the Settlement is in the estate’s best interest. Accordingly, the Trustee requests that the
Court approve the Settlement on the terms and conditions set forth above.
PRAYER
WHEREFORE, the Matthew Orwig, the Trustee, respectfully requests that this Court find
that service on the attached service list is proper and that the Agreement incorporated as Exhibit
A is in the best interest of the Debtor’s estate and approve of the Agreement between the Trustee
and Robert O’Neal, Paul Ballard and Todd Hickman and for such other and further relief to
which he may be justly entitled.
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6. TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 6 OF 6
4829-3998-8518
Date: August 14, 2015 Respectfully submitted,
/s/ John Volney
Jeffrey M. Tillotson, P.C. (jmt@lynnllp.com)
State Bar No. 20039200
Eric W. Pinker, P.C. (epinker@lynnllp.com)
State Bar No. 16016550
John Volney (jvolney@lynnllp.com
State Bar No. 24003118
LYNN TILLOTSON PINKER &COX, L.L.P.
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: (214) 981-3800
Facsimile: (214) 981-3839
COUNSEL FOR MATTHEW D. ORWIG,
CHAPTER 11 TRUSTEE AND
LIQUIDATING TRUSTEE
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served via ECF on counsel of record on August 14, 2015, and via United
States Mail to those not served via ECF.
/s/ John Volney
John Volney
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7. James L. Schutza
7920 Belt Line Road, Suite 650
Dallas, Texas 75254
Prober & Raphael, A Law
Corporation
P. O. Box 4365
Woodland Hills, CA 91365-4365
FirstPlus Financial Group, Inc.
PO Box 142979
Irving, TX 75014
Aaron Michael Kaufman
George H. Tarpley
Cox Smith Matthews , Inc.
1201 Elm St., Ste. 3300
Dallas, TX 75270
Scott F. Mascianica
Sonnenschein Nath & Rosenthal
2000 McKinney Ave., Ste 1900
Dallas, TX 75201
Jo Christine Reed
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020
Erin Marie Schmidt
United States Trustee
1100 Commerce Street,
Room 976
Dallas, TX 75242
William Topp Maxwell
#71944-279
Federal Detention Center
P.O. Box 562
Philadelphia, PA 19106
Internal Revenue Service
Spec. Procedures – Insolvency
P.O. Box 21126
Philadelphia, PA 19114
Hulse & Stucki
Attn: Jay R. Stucki
2912 West Story Road
Irving, TX 75038
James W. Puzey
Law Offices Of James W. Puzey
P.O. Box 70172
Reno, NV 89570
John Clarson
4200 Ranier Court
Fort Worth, TX 76109
Patrick John Hethcoat
1365 Wayne Way
San Mateo, CA 94403-1565
George H. Tarpley
Cox Smith Matthews Inc.
1201 Elm St., # 3300
Dallas, TX 75270
Eric A. Liepins
Eric A. Liepins, P.C.
12770 Coit Road, Suite 950
Dallas, TX 75251
Jerry C. Carter
Jenkins & Carter
501 Hammill Lane
Reno, NV 89511
Securities & Exchange
Commission
c/o Rose L. Romero, Reg. Dir.
Burnett Plaza, Suite 1900
801 Cherry Street, Unit 18
Fort Worth, TX 76102
Arkadiy Grinshpun
7909 Bustleton Avenue
Philadelphia, PA 19152
Firstline Mortgage v. Rutgers
c/o Robert Johnson Law Corp
34197 Pacific Coast Hwy,
Ste 100
Dana Point, CA 92629
Buckno Lisicky & Company
Attn: Tony Buckno
1524 Linden Street
Allentown, PA 18102-4251
Robert O’Neal
324 N . 23rd Street
Beaumont, TX 77707
Laurie Spindler
Huffman Linebarger, et al.
2323 Bryan Street, Suite 1600
Dallas , TX 75201
Michael A. McConnell
Kelly Hart & Hallman PC
201 Main Street, Suite 2500
Fort Worth, Texas 76102
Nathan Jenkins
Jenkins & Carter
501 Hammill Lane
Reno, NV 89511
Gary B. Freedman
7909 Bustleton Avenue
Philadelphia, PA 19152
Patton Boggs
Attn: Cass Weiland, Esq.
2000 Mckinney Ave, Suite 1700
Dallas , TX 75201
Downey Brand LLP
427 West Plumb Lane
Reno, NV 89509
Secore &Waller, LLP
Attn: Wayne M. Secore
12222 Merit Dr., # 1350
Dallas, TX 75251
Rutgers Investment
3965 Phelan Blvd, # 209
Beaumont, TX 77707-2232
Angela Dodd
Securities And Exchange Comm.
175 W Jackson Blvd, Ste 900
Chicago, IL 60604
James P. Hanson
5824 Cold Water Drive
Castro Valley, CA 94552-1807
Ronald J. Miller
772 Westray Dr.
Westerville, OH 43081
Daniel J. Sherman
Sherman & Yaquinto, LLP
509 N. Montclair Avenue
Dallas, TX 75208
Lepercq Corporate Income Fund
David Staber/Clayton Ketter
Akin Gump, et al., LLP
1700 Pacific Ave., #4100
Dallas, TX 7520 1
SERVICE LIST
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8. Daniel P. Elms/Heather Bell
Nunnally & Martin LLP
1400 One McKinney Plaza
3232 McKinney Avenue
Dallas, TX 75204-2429
Bowne of Dallas, L.P.
c/o Gail B. Price, Bronwen Price
2600 Mission St., # 206
San Marino, CA 91108
Justin L. Payne, Attorney
6777 Camp Bowie Blvd.
Suite 215
Fort Worth, TX 76116
James Hanson
Sherman & Yaquinto, L.L.P.
509 N. Montclair Avenue
Dallas, TX 75208-5498
Derrel Luce
Law Office of Derrel Luce
4600 Bosque, Suite 2B
Waco, Texas 76710
All other parties on the electronic service list.
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9. SETTLEMENT AND RELEASE AGREEMENT PAGE 1
1509541.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the “Agreement”) is made by and between: (1)
Matthew D. Orwig, in his capacity as the duly-appointed Chapter 11 Trustee for the FirstPlus
Financial Group, Inc. bankruptcy estate (the “Estate”) of FirstPlus Financial Group, Inc. (the
“Debtor”) and as the Trustee of the FPFG Liquidating Trust (the “Trust”)(collectively, the
“Trustee”); and (2) Defendants Robert O’Neal (“O’Neal”), Paul Ballard (“Ballard”) and William
Hickman (“Hickman”) (collectively referred to as “Defendants”). The Trustee and the Defendants
shall be collectively referred to in this Agreement as the “Parties”.
RECITALS
WHEREAS:
1. On June 23, 2009, the Debtor filed for Chapter 11 Bankruptcy Protection in the
United States Bankruptcy Court for the Northern District of Texas, Case No. 09-33918-HDH (the
“Case”). Soon after the filing of the bankruptcy, the Bankruptcy Court appointed the Trustee as
Chapter 11 Trustee for the FirstPlus Financial Group, Inc. estate (the “Estate”).
2. An adversary proceeding was filed in the Bankruptcy Court on June 21, 2011,
Adversary No. 11-03397-HDH. (the “Adversary”), against a number of defendants including the
Defendants. After considering a number of motions to dismiss the Adversary Proceeding, the
Trustee filed a First Amended Complaint (“First Amended Complaint”) on April 23, 2012.
3. In the First Amended Complaint, as to O’Neal, the Trustee sought to: (a) equitably
subordinate his claims against the Debtor under Count XVIII; (b) avoid and recover preferential
transfers under 11 U.S.C. §§547 and 550 under Count XIX; (c) disallow his claim under 11 U.S.C.
§502(d) under Count XX; (d) disallow his proof of claim in the amount of $117,140.00 (“Claim No.
62”) under Count XXI; and (e) re-characterize his loans under Count XXXII.
EXHIBIT A
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10. SETTLEMENT AND RELEASE AGREEMENT PAGE 2
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4. In the First Amended Complaint, as to Ballard, the Trustee sought to: (a) equitably
subordinate his claims against the Debtor under Count XVIII; and (b) disallow his claim under his
proof of claim in the amount of $63,470.00 (“Claim No. 92”) under Count XXI.
5. In the First Amended Complaint, as to Hickman, the Trustee sought to: (a) equitably
subordinate his claims against the Debtor under Count XVIII; and (b) disallow his claim under his
proof of claim in the amount of $184,070 (“Claim Nos. 33 and 45”) under Count XXI.
6. The Parties to this Agreement desire to avoid the expense and uncertaintyinvolved in
a protracted trial and desire to compromise, settle, and dispose of all possible claims that were
asserted or which could have been asserted in this matter.
7. For and in consideration of the recitals, terms, conditions, full mutual releases, and
agreements stated in this Agreement, and in order to compromise and settle all disputes and claims in
this matter between the Parties to this Agreement and any other persons or entities named or
described herein, the Parties hereby enter into this Agreement and agree as set forth below.
AGREEMENTS
7. Seventy-Five (75%) percent of O’Neal’s proof of claim, Claim No. 205, in the
amount of $167,715.00 shall be allowed so that O’Neal shall be entitled to an allowed claim of
$125,786.25. Sixty (60%) percent of Ballard’s claim of $63,470.00, Claim No. 92, shall be allowed
so that Ballard shall be entitled to an allowed claim of $38,082.00. Sixty (60%) percent of
Hickman’s claim of $88,070, Claim No. 33, shall be allowed so that Hickman shall be entitled to an
allowed claim $52,842.00.
8. After all Parties execute this Agreement, the Parties will file with the Bankruptcy
Court for the Northern District of Texas, Dallas Division, a Motion for Approval of the Settlement
Agreement.
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11. SETTLEMENT AND RELEASE AGREEMENT PAGE 3
1509541.1
9. Upon court approval of this Settlement Agreement, with the exception of (i) the
allowance of claims asserted by Defendants described in Paragraph 7 above, and (ii) any claims,
causes of action, demands, or liabilities arising out of this Agreement, the Trustee, on behalf of the
Debtor, the Estate, and the Liquidating Trust and their respective agents, servants, employees,
attorneys, representatives, insurers, predecessors, successors, heirs, assigns, and anyother persons or
entities which might have claims by and through the Debtor, Estate or Trust (jointly and severally
referred to herein as the “Trustee Related Persons”), hereby fully and irrevocably releases, acquits,
relinquishes, and discharges Defendants, and each of their respective agents, servants, employees,
attorneys, representatives, insurers, predecessors, successors, heirs, assigns, and anyother persons or
entities controlled directly or indirectlyby Defendants (jointlyand severallythe “Defendants Related
Persons”) of and from any and all liabilities, claims, causes of action, demands for payment, debts,
damages, obligations, costs (including costs of suit and attorneys' fees and expenses), or demands of
whatever nature, character, type, or description, whether known or unknown, direct, indirect, or
derivative, fixed or contingent, secured or unsecured, existing or potential, suspected or unsuspected,
which the Trustee Related Persons have or have asserted or may hereafter have or assert against the
Defendants Related Persons by reason of any matter or thing whatsoever arising out of or in anyway
connected with, directly or indirectly, any act or omission whatsoever arising out of or in any way
connected, directly or indirectly, with the Case, the Estate or the Adversary, any act or omission on
the part of the Defendants Related Persons. The Trustee Related Persons acknowledge that theymay
hereafter discover facts different from, or in addition to, those which they now know or believe to be
true with respect to the Released Claims and agree that the release provided by this Paragraph shall
be and remain effective in all respects notwithstanding such different or additional facts or the
discovery thereof. The Trustee Related Persons specifically recognize and acknowledge that upon
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12. SETTLEMENT AND RELEASE AGREEMENT PAGE 4
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the execution of this Release, the Defendants Related Persons shall have no further obligation to the
Trustee Related Persons with respect to the Case, the Estate, and/or the Adversary, except as maybe
necessary to facilitate payment of any allowed claims, so that henceforth the Trustee Related Persons
shall have no claim whatsoever against the Defendants Related Parties. The release described in this
paragraph is not intended to release and does not release any other defendant(s) named in the
Adversary from any claim; and the Trustee reserves the right to continue to assert and pursue claims
against any other person or entity which may be responsible for the injuries and damages suffered by
the Trustee Related Persons, together with the right to make the claim that such other persons and
entities, and not the Defendants specifically identified in this Settlement Agreement, are solelyliable
for any injuries, losses and damages.
10. Upon court approval of this Settlement Agreement, with the exception of (i)the
allowance of claims asserted by Defendants described in Paragraph 7 above, (ii) any rights and
claims O’Neal, Ballard and Hickman may have regarding the “Shareholder Class” described in
Section 4.3(iii) in the Trustee’s First Amended Plan of Liquidation For FirstPlus Financial Group,
Inc. [Dkt, No. 601] (the “Plan”), and (iii) any claims, causes of action, demands, or liabilities arising
out of this Agreement, Defendants Related Persons hereby fully and irrevocably release, acquit,
relinquish, and discharge the Trustee Related Persons of and from any and all liabilities, claims,
causes of action, demands for payment, debts, damages, obligations, costs (including costs of suit
and attorneys’ fees and expenses), or demands of whatever nature, character, type, or description,
whether known or unknown, direct, indirect, or derivative, fixed or contingent, secured or unsecured,
existing or potential, suspected or unsuspected, which the Defendants Related Persons have or have
asserted or may hereafter have or assert against the Trustee Related Persons by reason of any matter
or thing whatsoever arising out of or in any way connected, directly or indirectly, with the Case, the
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13. SETTLEMENT AND RELEASE AGREEMENT PAGE 5
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Estate or the Adversary, any act or omission on the part of the Trustee Related Persons. The
Defendants Related Parties acknowledge that they may hereafter discover facts different from, or in
addition to, those which they now know or believe to be true with respect to the Released Claims and
agree that the release provided by this Paragraph shall be and remain effective in all respects
notwithstanding such different or additional facts or the discovery thereof. The Defendants Related
Persons specifically recognize and acknowledge that upon the execution of this Release, the Trustee
Related Persons shall have no further obligation to the Defendants Related Persons with respect to
the Case, the Estate, and/or the Adversary, other than with respect to payment of allowed claims held
by one or more of the Defendants pursuant to the terms of the Plan, so that henceforth the Defendants
Related Persons shall have no claim whatsoever against the Trustee Related Persons.
11. The Parties each represent that none of the matters released or to be released herein
have been assigned, in whole or in part, to any other person or entity and that the Parties hold all
right, title, and interest in and to the claims they are releasing. The Parties each represent that he is
legally competent to execute and enter into this Agreement and that no signature, agreement, or
authority is necessary on behalf of the Parties in order to make this Agreement binding, save and
except for the signature and authority of the individual who executes this Agreement.
12. The Parties understand and agree that this Agreement is in full satisfaction of all
damages or claims as between the Parties. The Parties understand and agree that they will not
receive any further sums of money from the Parties in connection with such claims, except as
provided in Paragraph 7.
13. This Agreement shall be governed by, construed, and interpreted, and the rights of
the parties hereto determined, in accordance with the laws of the State of Texas.
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14. It is expressly understood and agreed that (a) this Agreement does not constitute an
admission of liability on behalf of any of the Parties but, to the contrary, liability is expresslydenied;
and (b) this Agreement is entered into solely to avoid the expense and uncertaintyof litigation and as
a compromise of the disputed matters and shall not be taken in any proceeding of any kind as an
admission by any of the Parties.
15. This Agreement and each provision hereof is binding upon the heirs, executors,
administrators, assigns, successors, officers, directors, agents, attorneys, insurers, employees,
affiliates, partners, parents or subsidiary entities, shareholders, principals of anyof the Parties hereto.
16. The Parties hereto represent that they are executing this Agreement wholly upon
their own volition and individual judgment, belief, and knowledge and that this Agreement is made
without reliance upon any statement or representation of anyof the Parties or anyperson which is not
contained in this Agreement. The Parties declare and represent that no promise, inducement, or
agreement has been made to them other than the specific promises and agreements made in this
Agreement and that this Agreement contains all agreements and all representations by and between
the Parties. The terms of this Agreement are contractual and are not mere recitals.
17. The Parties represent that they have had this Agreement reviewed by attorneys of
their choice.
18. This Agreement may be executed in multiple counterparts, each of which shall
constitute an original of the Agreement. This Agreement is effective as of the last date of execution.
19. This Agreement maynot be modified, amended, revised, extended, supplemented, or
terminated except in a writing executed by all Parties hereto.
20. This Agreement is not intended to and shall not constitute a third-party beneficiary
contract; and no person or entity that is not a signatory hereto or is not one of the related persons or
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15. SETTLEMENT AND RELEASE AGREEMENT PAGE 7
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entities released herein or described herein shall have any direct, indirect, or other right of action
hereon, except as expressly provided herein.
21. The Trustee shall file the necessary pleadings dismissing O’Neal, Ballard and
Hickman from the Adversary Proceeding with prejudice to the refiling of same within 14 days from
the entry of the Order by the Bankruptcy Court approving this Settlement Agreement.
IN WITNESS WHEREOF AND AGREEMENT HERETO, the Parties have executed
this Agreement on the date set forth under their respective signatures below.
(Signature pages to follow)
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16. SETTLEMENT AND RELEASE AGREEMENT PAGE 8
#4816-5582-1862
AGREED:
_______________________________
MATTHEW D. ORWIG, Trustee
Dated: _________________________
AGREED AS TO FORM:
LYNN TILLOTSON PINKER & COX, L.L.P.
By: _______________________________
John Volney
Attorney for Matthew D. Orwig, Trustee
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17. SETTLEMENT AND RELEASE AGREEMENT PAGE 9
#4816-5582-1862
AGREED:
________________________________
ROBERT O’NEAL
Dated: _________________________
AGREED AS TO FORM:
COWLES & THOMPSON, P.C.
By: ______________________________________
William L. Siegel, Attorneys for Robert O’Neal
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18. SETTLEMENT AND RELEASE AGREEMENT PAGE 10
#4816-5582-1862
AGREED:
________________________________
PAUL BALLARD
Dated: _________________________
AGREED AS TO FORM:
COWLES & THOMPSON, P.C.
By: ______________________________________
William L. Siegel, Attorneys for Paul Ballard
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19. SETTLEMENT AND RELEASE AGREEMENT PAGE 11
#4816-5582-1862
AGREED:
________________________________
TODD HICKMAN
Dated: _________________________
AGREED AS TO FORM:
COWLES & THOMPSON, P.C.
By: ______________________________________
William L. Siegel, Attorneys for Todd Hickman
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20. ORDER GRANTING TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 1 OF 2
4830-0709-7382
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE: § CASE NO. 09-33918-HDH
FIRSTPLUS FINANCIAL GROUP, INC. § Chapter 11
§
Debtor. §
§
ORDER GRANTING TRUSTEE’S MOTION TO APPROVE COMPROMISE AND
SETTLEMENT WITH DEFENDANTS ROBERT O’NEAL, PAUL BALLARD AND
TODD HICKMAN IN ADVERSARY CASE NO. 11-03397-HDH
ON THIS DAY, came on for consideration the Motion to Approve Compromise and
Settlement with Defendants in Adversary Case No. 11-03397-HDH (the “Motion”) filed by
Matthew D. Orwig, the duly-appointed Chapter 11 Trustee and Liquidating Trustee of the
FirstPlus Financial Group, Inc. bankruptcy estate (the “Trustee”), pursuant to Rule 9019 of the
Federal Rules of Bankruptcy Procedure, seeking approval of a settlement and compromise of
certain disputes between the estate and the defendants, Robert O’Neal, Paul Ballard and Todd
Hickman (collectively referred as “Defendants”) in Adversary No. 11-03397-hdh. All interested
parties having been afforded adequate notice of the Motion and an opportunity to be heard, and
no objection having been filed to the Motion; and it appearing that the Court has jurisdiction over
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21. ORDER GRANTING TRUSTEE’S MOTION TO APPROVE COMPROMISE AND SETTLEMENT PAGE 2 OF 2
4830-0709-7382
this matter; the Court having reviewed and considered (i) the Motion and the various notices and
certificates of service of record herein, of which the Court takes judicial notice and (ii) the
arguments of counsel made and the evidence presented, proffered or adduced at the hearing; it
appearing that the relief requested in the Motion is in the best interests of the bankruptcy estate,
its creditors and other parties in interest; and after due deliberation thereon; the Court finds that
this Court has jurisdiction over this matter, notice has been duly provided and the Trustee has
established a good business justification and good cause for approval of the proposed settlement
and compromise; accordingly, it is
ORDERED that the Motion shall be and is hereby granted as provided herein; it is further
ORDERED that the Settlement Agreement attached hereto as Exhibit “A” between the
Trustee and defendants Robert O’Neal, Paul Ballard and Todd Hickman shall be and is hereby
approved; it is further
ORDERED that the Trustee shall be and is hereby authorized to take any and all actions
necessary and appropriate to consummate the settlement, including, without limitation, executing
the Settlement Agreement and any other papers as deemed necessary and appropriate to
effectuate the settlement.
IT IS SO ORDERED.
### END OF ORDER###
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