In Re: CWS Enterprises, Inc.

Filing 52

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 11/09/17 ORDERING that the Blocked Account Order is AMENDED to allow disbursement by Hank M. Spacone, Plan Administrator, on behalf of CWS of the $3 million being held in the Blocked Account, plus interest if any, into the Escrow Account to facilitate payment of amounts due to Spiller McProud. Hank M. Spacone, Plan Administrator, shall thereafter close the Blocked Account. (Benson, A.)

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BENBROOK LAW GROUP
BRADLEY A. BENBROOK (SBN 177786)
400 Capitol Mall, Suite 2530
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]

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DLA PIPER LLP (US)
DAVID A. CHEIT (SBN 121379)
400 Capitol Mall, Suite 2400
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
Special Counsel for Appellee and
Cross-Appellant David Flemmer,
Chapter 11 Trustee

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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In Re CWS Enterprises, Inc., a California
Corporation,

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Case No.: CIV S-12-0142 KJM
Bankr. Court Case No. 09-26849-C-11

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Debtor,
______________________________________

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Spiller McProud,

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Adv. Proc. Case No. 10-02226-C
STIPULATION AND ORDER FOR
DISBURSEMENT FROM AND CLOSING
OF BLOCKED ACCOUNT

Appellant,
v.

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CWS Enterprises, Inc., a California
Corporation, David D. Flemmer, Chapter 11
Trustee, and Charles W. Siller,

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Appellees.
______________________________________

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And consolidated appeals and cross-appeals

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Hank M. Spacone, Plan Administrator (“Spacone”) as successor to David D. Flemmer

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(“Flemmer”), and Spiller McProud, Attorneys at Law (“Spiller McProud”), by and between

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their respective attorneys, stipulate and agree as follows:

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///

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1727314.2

STIPULATION AND ORDER FOR PAYMENT FROM BLOCKED ACCOUNT
Case No. CIV S-12-0142 KJM

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RECITALS

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1.

This Court entered an order on September 17, 2014, and a judgment on September

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30, 2014 (the “Order and Judgment”), in the above-referenced appeal from the bankruptcy court

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(the “Bankruptcy Case”). Flemmer, as Chapter 11 Trustee initially and subsequently as Plan

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Administrator, appealed on behalf of CWS Enterprises, Inc. (“CWS”) the Order and Judgment to

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the Ninth Circuit Court of Appeals.

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2.

As authorized by the parties’ stipulation and an order entered by this Court on

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December 19, 2014 [Docket Item No. 48], Flemmer on behalf of CWS ultimately established a

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blocked account holding $3 million as security (the “Blocked Account”) in lieu of posting a

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supersedeas bond pending the appeal (the “Blocked Account Order”).

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3.

On September 13, 2017, the Ninth Circuit Court of Appeals affirmed the Order and

Judgment. The mandate issued on October 6, 2017.

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4.

Spacone and Spiller McProud now desire to access the $3 million in the Blocked

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Account for payment by Spacone on behalf of CWS to Spiller McProud toward the total amount

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due to Spiller McProud under the Third Amended Plan of Reorganization (the “Plan”) confirmed

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in the Bankruptcy Case.

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5.

Spiller McProud is establishing an escrow account at First American Title to

accommodate payment of the amount due to it (the “Escrow Account”).

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6.

The parties have agreed to stipulate as set forth below.

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STIPULATION

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The Blocked Account Order should be amended to allow disbursement by Spacone, on

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behalf of CWS, of the $3 million being held in the Blocked Account, plus interest if any, into the

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Escrow Account to facilitate payment of amounts due to Spiller McProud, and Spacone shall

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thereafter close the Blocked Account.

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1727314.2
-1STIPULATION AND ORDER FOR PAYMENT FROM BLOCKED ACCOUNT
Case No. CIV S-12-0142 KJM

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Dated: November 9, 2017

BENBROOK LAW GROUP, PC

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By /s/ Bradley A. Benbrook
BRADLEY A. BENBROOK
[e-mail]
Attorney for Hank M. Spacone, Plan
Administrator

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Dated: November 9, 2017

DAHL LAW, ATTORNEYS AT LAW

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By /s/ Walter R. Dahl
WALTER R. DAHL
[e-mail]
Attorneys for Spiller McProud, Attorneys At
Law

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ORDER

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1.

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The Blocked Account Order is hereby amended to allow disbursement by Hank M.

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Spacone, Plan Administrator, on behalf of CWS of the $3 million being held in the Blocked

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Account, plus interest if any, into the Escrow Account to facilitate payment of amounts due to

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Spiller McProud.

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2.

Hank M. Spacone, Plan Administrator, shall thereafter close the Blocked Account.

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DATED: November 9, 2017.

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UNITED STATES DISTRICT JUDGE

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1727314.2
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STIPULATION AND ORDER FOR PAYMENT FROM BLOCKED ACCOUNT
Case No. CIV S-12-0142 KJM