John Sheppard

1 The court takes judicial notice of the last three cases as to which the dockets are
electronically available. 	Fed.R.Evid. 201, incorporated in these proceedings by Fed.R.Bankr.P.
9017. See Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991);
Levine v. Egidi, 1993 WL 69146, at *2 (N.D. Ill. 1993); In re Paolino, 1991 WL 284107,
at *12 n. 19 (Bankr. E.D. Pa. 1991); see generally In re Indian Palms Associates, Ltd., 61 F.3d 197
(3d Cir. 1995). Case no. 99-15003 was filed on April 15, 1999 and dismissed on January 20, 2000.
GMAC filed a motion for relief which was settled by stipulation. Case no. 02-1567 was filed on
April 17, 2002 and dismissed on October 30, 2003. Relief from stay was sought by GMAC and a
settlement was reached. Debtor litigated GMAC’s claim by adversary proceeding, and summary
judgment was granted against him.
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 13
:
JOHN SHEPPARD, 	: 	Bankruptcy No. 05-12070DWS
:
Debtor. 	:
ORDER
AND NOW, this 28th day of October 2005, upon consideration of (1) the Debtor’s
request for confirmation of his Amended Chapter 13 filed on September 29, 2005 and (2) the
Trustee’s Motion to Dismiss;
And GMAC Mortgage Corp. (“GMAC”) and the Chapter 13 trustee objecting to
confirmation of the Amended Plan and seeking dismissal of this Chapter 13 case, the Debtor’s fourth
filing; 1
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2 GMAC had filed a motion to dismiss this case based on Debtor’s seriel bankruptcy filings
which it settled by a Consent Order with the Debtor dated July 14, 2005. Exhibit M-1. The Consent
Order required Debtor to sell the mortgaged property (the “Residence”) in accordance with the
Debtor’s proposed plan by September 1, 2005. 	If same was not accomplished as of that date,
GMAC could certify default and the stay would be lifted and an order prohibiting refiling for
180 days would be entered. In consideration of the commitment to sell, Debtor was allowed to
reduce his monthly mortgage payment from $2,340.34 to $750. Id. The Debtor’s original plan
committed to pay $40 monthly to the Chapter 13 trustee and to sell the Residence by September 1,
2005 to pay GMAC. The Residence was listed with a broker in June or July 2005 with a selling
price of $465,000. However, as of September 1, the drop dead date, no offers had been received for
the Residence. 	On September 29, 2005 (the same date as confirmation and the Trustee’s motion
to dismiss), the Debtor filed the Amended Plan moving the date by which he would have a signed
agreement (versus an actual sale) to December 31, 2005. GMAC’s objection is that the Amended
Plan is in derogation of the Consent Order which grants it relief if a sale is not effected by
September 1, 2005. Contemporaneously with the Amended Plan being filed, the Debtor told the
broker to reduce the sale price to $450,000. There are no offers at that price either, and the Debtor
is reluctant to meaningfully lower the price (and diminish his potential recovery of equity) to effect
a quick sale. Debtor was unable to identify any reason for his inability to sell the house. He made
the necessary repairs the first month but stated that the market went down when school opened,
people preferring to move in anticipation of the school year. He also noted that the market slows
at the holidays, the precise deadline he has fixed for securing a sale. 	I find no unforeseen
circumstances that impacted Debtor’s ability to timely perform his commitment to sell. He has now
instructed the broker to reduce the price another $10,000 or $15,000 if no offer is received in three
weeks. The likelihood of a sale by the new proposed date is totally speculative. In short, I find that
Debtor’s responsibility to sell the Residence by September 1 was subordinated to his desire to
maximize his retained equity, and that fact has not materially changed to date.
3 It is 	well settled that stipulations between the parties and settlement of litigation are
favored by the law and should not be lightly set aside, Waldorf v. Shuta, 142 F.3d 601, 616 (3rd
Cir.1998); Martin v. North Penn Savings & Loan, 253 B.R. 346, 350 (M.D. Pa. 2000). Enforcing
a stipulated agreement also is supported by policy considerations such as the avoidance of costly and
time-consuming litigation, In re Buzzworm, Inc., 178 B.R. 503, 512 (Bankr. D. Co. 1994). Indeed
refusing to enforce a stipulated agreement undermining the willingness of parties to enter into future
agreements which promote the prompt and efficient administration of bankruptcy cases. Therefore,
(continued...)
-2-
And based on the facts as stated on the record,2 the Court finding that the Amended
Plan contains a provision contrary to the Consent Order by which the Debtor agreed that if
he did not sell the Residence by September 1, 2005, relief from stay would be granted upon
certification of default;3
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In re John Sheppard - Bankruptcy No. 05-12070DWS
(...continued)
unless a stipulation has not been entered into voluntarily, or its terms violate public policy, or other
extenuating circumstances exist, a court will enforce the clear terms of a stipulation of the parties
previously approved by the court at the request of the parties. 	Sellersville Savings and Loan
Association v. Kelly, 29 B.R. 1016,1018 (E.D. Pa. 1983). Nothing in this record supports a finding
of extenuating circumstances. Rather debtor secured the benefit of the bargain, i.e., a reduction in
his mortgage payment and time to find a buyer rather than suffer a sheriff’s sale, and now seeks
relief from performing his promise, i.e., that there would be a date certain that the debt would be
paid
4 Notably I am advised that a sheriff’s sale listed now will be scheduled at about the same
time as the proposed December 31, 2005 deadline for sale of the Residence. Thus, the relief granted
herein does not allow anything more than what the Debtor has proposed, i.e., additional time to
sell the Residence. It only ensures that if Debtor does not sell the Residence by December 31, 2005
(and nothing in his testimony led me to believe he would), the creditor would not have to first list
the sale and wait another 90 days to foreclose at a sheriff’s sale.
-3-
And contrary to the stipulated Order, the Amended Plan providing that the secured
claim would be paid out of a sale of the Residence by December 31, 2005 or the case will
be dismissed on motion of any interested party;
And the Trustee filing a motion to dismiss based on lack of plan feasibility;
And as GMAC’s secured claim cannot be paid through the sale as provided in the
Amended Plan, such Plan is infeasible; 4
And Debtor has committed only $40 per month to the Amended Plan, the Plan is
not feasible without a sale;
And Debtor having moreover acknowledged that he does not have the income to
make current mortgage payments to GMAC;
It is hereby ORDERED that confirmation of the Amended Plan is DENIED;
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In re John Sheppard - Bankruptcy No. 05-12070DWS
-4-
And 	it 	is 	further 	ORDERED 	that 	the 	Chapter 	13 	case 	is 	DISMISSED,
with prejudice per the Consent Order.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
Copies to:
David A. Scholl, Esquire
Regional Bankruptcy Center
Law Office of David A. Scholl
#6 St. Albans Avenue
Newtown, PA 19073
William C. Miller, Esquire
Standing Chapter 13 Trustee
P. O. Box 40119
Philadelphia, PA 19106-0119
Peter J. Mulcahy, Esquire
PHELAN HALLINAN & SCHMIEG, LLP
1617 JFK Boulevard
Suite 1400
Philadelphia, PA 19107
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