Crestmark v. Simon Automotive, LLC et al

Filing 41

STIPULATION AND ORDER STAYING Litigation pursuant to settlement agreement Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CRESTMARK, a Division of
MetaBank, National Association,

Case No. 20-cv-11396
Hon. Robert H. Cleland

Plaintiff,
v.

SIMON AUTOMOTIVE, LLC,
a Michigan limited liability company,
SIMONXPRESS PIZZA, LLC,
an Arizona limited liability company,
SIMON STORES CORPORATION,
a Michigan corporation,
SE CORPORATION OF MICHIGAN,
a Michigan corporation,
SIMON’S ENTERPRISE INC.,
a Michigan corporation,
643 TELEGRAPH, LLC,
a Michigan limited liability company,
PINKNEY PETROLEUM, LLC,
a Michigan limited liability company,
CACTUS SHELL LLC,
an Arizona limited liability company,
SIMON LAND DEVELOPMENT GROUP, LLC,
a Michigan limited liability company, and
FAWZI SIMON,
an individual,
Defendants.
_________________________________________________________________
STIPULATION AND ORDER STAYING LITIGATION PURSUANT TO
SETTLEMENT AGREEMENT
__________________________________________________________________

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COMES NOW, Intervenor First Western Trust Bank (“FWTB”) and
Defendants Fawzi Simon (“F. Simon”), Simonxpress Pizza, LLC, an Arizona
limited liability company (“S. Pizza”), and Simon Enterprises, Inc., a Michigan
corporation (“SEI” along with F. Simon and S. Pizza are, collectively, the
“Simon Parties”), by and through their respective undersigned counsel, for
their Stipulation and Order Staying Litigation Pursuant to Settlement
Agreement (the “Stipulation”). In support of the Stipulation, FWTB and the
Simon Parties (collectively, the “Parties”) stipulate as follows:
WHEREAS, on December 21, 2020, FWTB filed its Intervenor’s Complaint
(the “Complaint”) to, inter alia, obtain a money judgment against the Simon Parties
on account of two separate loan obligations each evidenced by separate loan,
guaranty and collateral documents.
WHEREAS, on January 15, 2021, the Simon Parties filed their Answer to the
Complaint.
WHEREAS, on February 18, 2021, FWTB’s Motion for Summary Judgment
on Claims I-III of the Complaint (the “MSJ”) was fully briefed.
WHEREAS, on March 24, 2021, the Court vacated a previously set hearing
on the MSJ.
WHEREAS, on April 9, 2021, the Parties entered into a Settlement
Agreement that is effective as of that day (the “Settlement Agreement”).
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WHEREAS, the Settlement Agreement requires that: (i) this case be stayed
for ninety (90) days, i.e., through July 8, 2021 (the “First 90 Day Stay”), so that the
Simon Parties could, inter alia, sell certain of FWTB’s collateral; and (ii) provided
that the Simon Parties performed their contractual duties during the First 90 Day
Stay, that this case would be stayed an additional ninety (90) days, i.e., through
October 6, 2021 (the “Second 90 Day Stay”), so that the Simon Parties could, inter
alia, make existing note payments to FWTB and refinance all outstanding
obligations due and owing to FWTB.
WHEREAS, the Settlement Agreement provides a mechanism that if there is
ever a default thereunder that FWTB may request the Court enter the Confession of
Judgment in its favor against the Simon Parties. Alternatively, if there is never any
default under the Settlement Agreement and the Simon Parties perform thereunder
then the obligations to FWTB will satisfied and this action will be dismissed with
prejudice in accordance with the terms of the Settlement Agreement. Thus, at most,
the Settlement Agreement requires that this action be stayed through October 6,
2021, so that FWTB may request entry of a judgment or that the Simon Parties can
perform thereunder. Accordingly, the Settlement Agreement paves the way for the
resolution of all issues in this case without the need for further discovery, a hearing
on the MSJ or a trial.
NOW THEREFORE, the Parties stipulate and agree as follows:
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1.

Stay of Litigation. Pursuant to the terms of the Settlement Agreement,

the Parties request that the Court enter an order staying this action and all deadlines
arising herein through July 8, 2021.
Dated April 15, 2021
By: /s/ Ezra Goldman
Ezra Goldman
26999 Central Park Blvd.
Suite 225
Southfield, MI 48076
Tel: [phone]
[e-mail]
Lead Counsel for Defendants

By: /s/ Timothy M. Swanson
Timothy M. Swanson
Tanya A. Sevy
MOYE WHITE LLP
1400 16th St, Ste. 600
Denver, Colorado 80202-1486
Tel: [phone]
Fax: [phone]
[e-mail]
Lead Counsel for First Western Trust
Bank
--and-Stephen P. Stella (P33351)
SIMON, STELLA & ZINGAS, P.C.
645 Griswold, Ste. 3466
Detroit, MI 48226
Telephone: [phone]
Email: [e-mail]
Local Counsel for First Western
Trust Bank

APPROVED:
s/Robert H. Cleland
Honorable Judge Robert H. Cleland
Dated: April 29, 2021

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