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ORDERED in the Southern District of Florida on December 9, 2014.

Paul G. Hyman, Jr.

Chief United States Bankruptcy Judge

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_____________________________________________________________________________
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
(WEST PALM BEACH DIVISION)
www.flsb.uscourts.gov
In re:

Case No. 11-33802-BKC-PGH

THOMAS G. HINNERS,
Debtor.

Chapter 7

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ORDER PURSUANT TO BANKRUPTCY RULE 9019 APPROVING COMPROMISE

AND SETTLEMENT OF CONTROVERSY BETWEEN CHAPTER 7 TRUSTEE,
DEBTOR, BRIAN HINNERS, CERTAIN OTHER ADVERSARY DEFENDANTS,
AND JEROME MANSKE, PATRICK MANSKE AND ARGENT CORPORATION
THIS CAUSE having come before the Court for hearing on December 8, 2014 at 1:00 p.m.
pursuant to Federal Rule of Bankruptcy Procedure 9019 upon the Chapter 7 Trustees Amended
Motion to Approve Compromise and Settlement of Controversies Between the Chapter 7 Trustee,
the Debtor, Brian Hinners and certain other Adversary Defendants,1 Jerome Manske, Patrick
Manske and Argent Corporation (the Motion) [ECF No. 719]; that due and proper notice of the
Motion having been given by the Trustee in accordance with the applicable provisions of the

1
Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the
Motion.

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Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, and that no further notice of the
Motion is necessary; and it appearing that the Trustee, the Debtor, Brian Hinners and certain other
Adversary Defendants, Jerome Manske, Patrick Manske and Argent Corporation through their
respective counsel, have conferred and reached an agreement as to the issues raised in the
Adversary Proceedings, the Amended Objection and Motion and all other matters between the
parties; and the Court having reviewed the Motion, the terms of the Settlement Agreement and
having heard the arguments and representations of counsel for the parties; having considered the

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Limited Objection to Trustees Amended Motion to Approve Compromise and Settlement of

Controversies Between Chapter 7 Trustee, Debtor, Brian Hinners, and Certain Other Adversary
Defendants, Jerome Manske, Patrick Manske, and Argent Corporation [ECF No. 742]; and, upon
consideration of the factors set forth in Wallis v. Justice Oaks II, Ltd. (In re Justice Oaks II, Ltd.),
898 F.2d 1544 (11th Cir. 1990), the Court finding that the proposed Settlement is fair, reasonable,
and in the best interests of the estate; and being otherwise duly advised in the premises, it is hereby:
ORDERED THAT:

The Motion is GRANTED as set forth herein.

2.

The terms of the Settlement Agreement attached hereto as Exhibit A are approved

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1.

and incorporated herein in their entirety.

3.

Brian Hinners confirms and represents to the Court that the Settlement Proceeds

will not be paid with funds from Groves of Delray II Ltd., other than from allowed distributions in
accordance with Paragraph 4.2 of the Amended and Restated Agreement of Limited Partnership
of Groves of Delray II, Ltd. dated December 8, 2011. In the event that this representation is
breached, after notice and a hearing, Brian Hinners will be required to indemnify the estate for any
damages it sustains. Any prevailing party moving under this paragraph shall be entitled to its
reasonable attorneys fees and costs.

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4.

Any and all claims relating to the real property with a location address of 10625 El

Paraiso Place, Delray Beach, Florida 33446 (Parcel Control Number: 00-42-43-27-05-067-0372)
(the Subject Property) filed by or relating to Jerome J. Manske, Patrick H. Manske and/or Argent
Corporation shall be deemed released, satisfied, and or discharged from the foregoing real
property. As such, if needed, Jerome J. Manske, Patrick H. Manske and/or Argent Corporation
shall assist and cooperate with providing any documents reasonably needed to the closing agent
including:

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a. Satisfaction of or Release of the Subject Property from Judgment against Thomas

G. Hinners in favor of Jerome J. Manske and Patrick H. Manske recorded in O.R.
Book 23965, Page 1649, and Affidavit of Creditor recorded in O.R. Book 23965,
Page 1647, Public Records of Palm Beach County, Florida.
b. Satisfaction of or release of the Subject Property from Judgment against Thomas
G. Hinners in favor of Jerome J. Manske and Patrick H. Manske recorded in O.R.
Book 24387, Page 1630, and Affidavit recorded in O.R. Book 24387, Page 1628,
together with Discharge of Lis Pendens, as to subject property, recorded April 5,
2011 in O.R. Book 24442, Page 435, and release of Subject Property from that
certain Case No. 502011CA004893XXXXMB in the Circuit Court of Palm Beach
County, Florida.

5.

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c. Record satisfaction of or release of the Subject Property from that certain Final
Judgment recorded in O.R. Book 7728, Page 987, and Affidavit of Judgment
Creditor in O.R. Book 7728, Page 985, Public Records of Palm Beach County,
Florida.
The Court reserves jurisdiction to interpret and enforce the terms of the Settlement

Agreement and of this Order, and further reserves jurisdiction to enforce the terms of the
Settlement Agreement.
###
Submitted by:
Nicole Testa Mehdipour, Esquire
Law Office of Nicole Testa Mehdipour, PA
200 East Broward Blvd. Suite 1110
Fort Lauderdale, FL 33301
(Attorney Mehdipour shall serve a copy of the signed Order on all interested parties and file with the
Court a certificate of service conforming with Local Rule 2002-1(F)).

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EXHIBIT A
SETTLEMENT AGREEMENT

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 1133802-PGH
CHAPTER?

TIIOMAS G. HINNERS,
Debtor.

I
SEJTLEMENT AGREEMENT

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This Agreement is entered into as the result of mediation held on Friday, September 4, 2014
among Nicole Testa Mehdipour, Trustee ("Trustee"), Tom Hinners ("T. Hinners" and/or "Debtor"),
Auburn Development, LLC ("Auburn Development"), Auburn Management, Inc. ("Auburn Mgmt''),
Auburn Trace, Ltd. ("Auburn Trace"), Brian Hinners ("B. Hinners"), Groves of Delray, Ltd.
("Groves"), Village of Delray Ltd. ("Village") and Walden Pond, Ltd. ("Walden'') (collectively the
"Adversary Defendants") AND Jerome Manske and Patrick H Manske (hereinafter "Manskes") and
Argent Corporation ("Argent").

On September 24, 1987, Manskes obtained a judgment against T. Hinners in the state

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PROCEDURE AND FACTUAL HISTORY

of Wisconsin, Case Number, 652-696.

2.

Subsequent thereto, the Manskes attempted to domesticate that judgment in the state

of Florida under Case Number: 93-7358-AH, in the Circuit Court in and for Palm Beach County,
Florida (the "Florida Action").
3.

The Florida Action resulted in an order on October 13, 1994 ruling that the Wisconsin

judgment was unenforceable in florida, on statute of limitations grounds.

4.

On or about May 17, 1995, Manskes filed a motion with the Wisconsin e-0urt seeking

to renew the judgment under Wisconsin law. On or about February 11, 1997, the Wisconsin court

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entered a renewed judgment in favor of the Manskes and against T. Hinners in the. amount of
$239,354.10, plus interest at 12% per annum, from June 18, 1987.
5.

In or about May of2010, the Manskes conveyed to Argent the right to collect on the

subject judgment.

6.

In or about September, 2010, Argent filed a motion with the Wisconsin court to renew

the judgment under Wisconsin law. On or about January 24, 2011, the Wisconsin court renewed the

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judgment against T. Hinners in favor of Manskes/Argent for collective damages in the amount of
$878,463.25. On or about March 3, 2011, Manskes/Argent recorded the 2011 judgment in the state
of Florida.
7.

On or about April 1, 2011 T. Hinners filed a Notice of Lis Pendens and Complaint to

Stay Foreign Judgment in the 15'" circuit court in and for Palm Beach County, Case Number:
50201 ICA004893XXXXMB.

8.

On or about August 26, 2011 Argent filed an involuntary bankruptcy petition against

T. Hinners which is the case at bar. T. Hinners initially contested the involuntary petition until March

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2, 2012 at which time T. Hinners filed a motion to convert the case to a case under Chapter 11. The

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order for relief was granted on March 5, 2012 (ECF 59).

Extensive litigation and motion practice continued during the Chapter i l between

Argent, the Manskes and the Debtor, which included two appeals to the District Court (Case

Numbers: 9:12-CV-80684-KMW and 9:12-CV-80930-KAM).

10.

On or about August 30, 2012, T. Hinners filed a complaint against Argent and the

Manskes, Adversary Case Number: 12-1872.

11.
Chapter?.

On or about October 24, 2012, T. Hinners filed a motion to reconvert the case to

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12.

On or about October 30, 2012, the bankruptcy court entered an order re-converting

the case (ECF No. 399). On October 31, 2012, Nicole TestaMehdipour was appointed as the Chapter
7 Trustee (ECFNo. 401), and became the pennanent Trustee in the case after the 341 Meeting was
held and concluded.
13.

On or about Janumy 28, 2013, Argent filed an adversary proceeding against T.

Hinners (Case Number: 13-1077).

The rwo adversary proceedings - Hinners vs. Argent and Argent vs. Hinners -were

consolidated for trial.

15.

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14.

On or about July 31, 2013 the court granted partial summary judgment on the counts

under 11 U.S.C. 523 detennining the debts were non-dischargeable. The court deferred ruling on
whether the judgment was enforceable based upon the 1994 circuit court action and referred the matter
back to the state court for determination, which matter is still pending.
16.

An appeal was taken to the U.S. District Court, Case Numbers: 13-80900, and 13-

80901. These appeals were consolidated into Case Number: 9:13-CB-81297-KAM.. An order

An appeal was taken to the 11th Circuit Court of Appeals, Case Number: 14-12693,

17.

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affinning the bankruptcy court's judgment was entered on May 19, 2014.

which matter is still pending.

18.

On or about February 3, 2014, the Trustee filed an Objection to Debtor's Claimed

Exemptions and Scheduled Valuation of Property and Motion for Turnover of Estate Property (ECF
No. 609), and subseqnently filed an Amended Objection to Debtor's Claimed Exemptions and
Scheduled Valuation of Property and Motion for Turnover of Estate Property (ECF No. 616) (the
"Amended Objection/Motion").
19.

On or about February 20, 2014, and March 5, 2014, the Trustee filed multiple

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adversary proceedings against insiders of T. Hinners (the "Adversary Defendants").

These

adversaries include: Trustee v. B. Hinners (14-1207); Trustee v Walden (14-1261); Trustee v Groves
(14-1262); Trustee v Auburn Trace (14-1273); Trustee v Auburn Development (14-1264); Trustee v
Auburn Mgmt (14-1265); Trustee v Village (14-1270) (collectively, with the. Amended
Objection/Motion, the "Trustee Contested Matters").
All of the Trustee Contested Matters remain pending.

21.

During the Chapter 11 case, a mediation was held between T. Hinners and Argent,

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20.

which proved unsuccessful.

22.

On or about July 18, 2014, a mediation was held between the Trustee and all of the

parties to this agreement, other than Argent, and the Manskes, which resulted in an initial settlement
being reached (ECF No. 688). A motion to approve that settlement was initially filed before the
bankruptcy court and objections were filed by Argent and the Manskes (ECF No. 696).
23.

There are CtJrrently still multiple motions requiring evidentiary hearings before the

court betwet.'ll all parties to this agreement.

In an effort to globally resolve all _pending actions, contested motions and litigation

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24.

before this court and all other courts, the parties held a global mediation on September 4, 2014. This
mediation lasted over eight hours. Coupled with the preccdiug mediations, the Agreement that was
reached on September 4th is a culmination of over 20 honrs of mediated time.

SETI'LEMENT TERMS
25.

In consideration of the promises and mutual covenants and WJdertakings contained

herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
aclrnowledged by the parties, the parties agree to the following terms a11d conditions as full and

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complete settlement of all actions between all of the parties wherever located as set forth in
more detail below:

a.

B. Hinners shall pay to the Trustee the total sum of Seven HW1dred

Thousand Dollars ($700,000.00) in complete and total settlement of all claims asserted or that could
have been asserted in all Trustee Contested Matters set forth above ("Settlement Proceeds'').
b.

The Settlement Proceeds shall be paid as follows: 1) 1bree Hundred

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Thousand Dollars ($300,000.00) upon approval of the Settlement Agreement by the bankruptcy
court; 2) Fifty-Thousand Dollars ($50,000.00) on or before January 1, 2015; 3) Three Hundred
Fifty-Thousand Dollars ($350,000.00) on or before March 1, 2015.
c.

In addition to the above, B. Hinners and/or T. Hinners shall make payments

directly to Argent/Manskes ("Manske Payments''), c/o of their attorney, Allison Friedman, totaling
One Hundred Thousand Dollars ($100,000.00) on the following schedule: 1) Twenty-Five
Thousand Dollars ($25,000.00) upon approval of the Agreement by the bankruptcy court; 2)
Twenty-Five Thousand Dollars ($25,000.00) on or before March 1, 2015; 3) Twenty-Five

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Thousand Dollars ($25,000.00) on or before December 31, 2015; 4) Twenty-Five Thousand Dollars

($25,000.00) on or before the later of June l, 2016 or upon distribution by the bankruptcy Trustee of
the proceeds of the estate, pursuant to a Trustee's Final Report ("TFR") (it is contemplated in this
Agreement that this payment may come from a partial assignment of a Chapter 11 administrative
claim, as will be described herein).
d.

Upon payment of the initial installment of the Settlement Proceeds, the

Trustee shall dismiss all of the adversary proceedings against the Adversary Defendants, with
prejudice, each party bearing its own attorney's fees and costs associated with the adversary
proceedings and exchange general releases of any and all claims between the Trustee and the

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Adversary Defendants. The general release in favor ofB. Hinners will exclude only the obligations
hereunder. The Trustee shall also request that the Court reserve and retain jurisdiction in the B.
Hinners adversary proceeding to enforce the tenns of this settlement Agreement as provided for
herein.
e.

Upon payment of the initial installment of the Settlement Proceeds, and the

initial payment of the Manske Payments, Argent/Manskes will issue a satisfaction/release of the

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judgments obtained in adversaries 12-1872 and 13-1077. Argcnt/Manskes shall also issue
satisfactions of all judgments issued by the Wisconsin court, including the judgment sought to be
domesticated in Florida through the State Court. Thereafter, the parties shall submit a stipulation for
entry of an order dismissing the state court action with prejudice, each party to bear its own fees and
costs and exchange general releases of any and all claims between Argent/Manskes and T. Hinners.
The general releases will exclude only the obligations hereunder.
f.

In addition to the above, upon payment of the initial installment payment and

settlement proceeds to Argent, T. Hinners shall dismiss the appeal to the 11th Circuit, Case Number

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14-2693, and the parties shall work together to have the case currently pending before the Circuit

court of Palm Beach County, Florida, Case Number 502011 CA004893XXXXMB, dismissed with
prejudice, each party to bear its owns fees and costs and the judgment entered by the Wisconsin
court and recorded in Florida satisfied and released.
g.

In addition to the above, mutual general releases will be issued between the

Manskes/Argent and the Adversary Defendants.

h.

Argent's claim, 11-1, will be allowed in full.

i.

Argent's claim, 4-1, is a duplicate and is disallowed.

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The Adversary Defendants' proofs of claim numbered 18, 19, 20, and 21

are disallowed.
k.

The parties agree to a One HlUldred Thousand Dollar ($100,000.00) carve-

out from the estate for payment to Argent. Argent shall otherwise participate with the other general
unsecured creditors in distributions by the estate.
l.

Upon payment of the initial instalhnent of the Settlement Proceeds, T.

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Hinners shall receive his discharge. The Trustee may seek to revoke the discharge if there is any
default in making the remaining installments of the Settlement Proceeds.
m.

Upon payment of the full Settlement Proceeds, all assets listed on T.

Hinners' bankruptcy schedules (excluding those assets which were previously turned over to the
Trustee and liquidated) shall be adjudicated exempt and any non-exempt assets may be transferred
to B. Hinners.
n.

Upon payment of the initial installment of the Settlement Proceeds, the

Trustee shall submit a proposed Agreed Order resolving the Amended Objectioll/Motion and

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requesting that the Court reserve and retain jurisdiction to enforce the terms of this settlement

Agreement as provided for herein.

o.

All parties to this agreement stipulate that they have reviewed any filed

administrative claims and are aware of the amounts of the un-filed administrative claims and will
not file objections to any administrative claims herein; provided, however, the Trustee may, in her
discretion, object to/seek to modify the amount offees sought by the professiOllals she engaged.
p.

Any and all pending motions between the parties not otherwise specifically

delineated herein shall be either withdrawn or denied.

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Any and all payments to Argent/Manskes under this agreement, including

distributions as a general unsecured creditor, shall not exceed Four Hundred Thousand Dollars
($400,000.00) collectively.
In the event that Argent receives or will receive in excess of Four Hundred

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Thousand Dollars ($400,000.00), the first Twenty-Five Thousand Dollars ($25,000.00) of any
amount in excess of Pour Hundred Thousand Dollars ($400,000.00) shall be offset against the final

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payment owed by T. Hinners to Argent. The next Twenty-Five Thousand Dollars ($25,000.00) of
any excess to be received by Argent will be credited to the estate. Any arnoWlts thereafter shall be
oftSet again:>'! the obligations of the estate and Hinners on a pro-rata basis.
s.

In the event that Argent receives in excess of Four HWldred Thousand

Dollars ($400,000.00) owing to the timing of the payments, it shall remit any such excess to the
parties Wlder the fonnula set forth above.

In the event that Argent does not receive a combined Four Hundred

t.

Thousand Dollars ($400,000.00) from payments under this agreement, Les Osborne and the firm of

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Rappaport Osborne & Rappaport, P.L. agree to assign up to $25,000.00 of their Chapter 11

administrative claim as payment directly to Argent on the TFR. In the event this payment is made,
the final payment due from T. Hinners directly to Argent, on or before June 1, 2016, will be deemed
satisfied.

u.

In the event of any defaults on any of the payments of the Settlement

Proceeds or Manske Payments as provided herein, the Trustee and/or Argent/Manskes shall provide
notice to Les Osborne at les@rorlawfinn.com and stacy@rorlawfirm.com and Brad Shraiberg al
bshraiberg@s-fl-pa.com AND by calling Les Osborne at 561-368-2200 and Brad Shraiberg al 561443-0800.

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T. Hinners, B. Hinners and/or any Adversary Defendant sh!lll have five (5)

business days from receipt of notice to cure any default. In the event the default is not cured,
judgment sh!lll be entered against B. Hinners and T. Hinners, jointly and severally, in the amolUlt of
One Million Dollars ($1,000,000.00), less credit for any payments made out of the settlement, in
favor of the Trustee.

w.

In addition to the above, Argent/ Manskes shall be entitled to a non-

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dischargeable judgment against T. Hinners for the amolUlt set forth in their claim, 11-1, less any
payments made under the Settlement.

This agreement is subject to approval by the bankruptcy court In the event

x.

the bankruptcy court does not approve this Settlement, nothing contained herein shall be deemed a

representation or admission by any party.

y.
26.

The court shall reserve jurisdiction to enforce the tenns of this Settlement.

This agreement was prepared and approved by counsel for all parties herein and

there will be no presumptions against the drafter.

It ls the h1tent of this agreementto settle all issues between all parties het'llin and in

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27.

the event any specific action or proceeding has not been specifically set forth, the parties shall acl to
resolve that action or proceeding to the intent of this agreement.

28.

This Agreement may be signed in cotmter-parts.

~--------;-~ ------T. Hinners

_/,..,

"""
/Les Osborne
./

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'

B. Hinners (mdividually and as authorized agent of Adversary Defendants)

~

Jerome Manske

Patrick H Mansk~

Argent

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Allison Friedman

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Nicole TestaMehd!pour, Trustee

Michael Foster

RlckReyes

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B. Hi!Ulers (individually and as authorized agent of Adversary Defendants)

.'crome Manske

Argent

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Brad Shraiberg

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Allison Friedman

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_t;;J~
Nicole Testa Mehdipour, Trustee

Michael Foster

Rick Reyes

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B. Hinners (individually and as authorized agent of Adversary Defondants)

Jerome Manske

Patrick H Manske

Argent

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Allison Friedman

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Brad Sb.raiberg

Nicole Testa Mehdipour, Trustee

Michael Foster

Rick Reyes

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B. Hirmers (individually and as authorized agent of Adversary Defendants)

Jerome Manske

Patrick H Manske

Argent

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Allison Friedman

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Brad Shraiberg

Nicole Testa Mehdipour, Trustee

Michael Foster

Rick Reyes

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B. Hinners (individmuly and as authorized agent of Adversary Defendants)

Jerome Manske

Patrick H Manske

Argent

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Allison Friedman

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Brad Slm1iberg

Rick Reyes