Doc1029 settlement $550_k_buckno lisicky buczek

Jeffrey M. Tillotson, P.C. ([email protected]) Texas Bar No. 20039200 Eric W. Pinker, P.C. ([email protected]) Texas Bar No. 16016550 John Volney ([email protected]) 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

Peter Franklin ([email protected]) Texas Bar No. 07378000 Michael P. Parmerlee ([email protected]) Texas Bar No. 2406923 FRANKLIN HAYWARD, LLP 10501 N. Central Expressway, Suite 106 Dallas, Texas 75231 (972) 755-7100 Telephone (972) 755-7110 Facsimile

Doug Skierski ([email protected]) Texas Bar No. 24008046 SKIERSKI LAW PLLC 10501 N. Central Expressway, Suite 106 Dallas, Texas 75231 (214) 295-9295 Telephone

Counsel for Matthew D. Orwig, Chapter 11 Trustee and Liquidating Trustee

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re: §

FIRSTPLUS FINANCIAL GROUP, INC., §§ Case No. 09-33918-hdh-11

Debtor, § Chapter 11

MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT BETWEEN THE TRUSTEE AND

BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK

NO HEARING WILL BE CONDUCTED ON THIS MOTION UNLESS A WRITTEN OBJECTION IS FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AT 1100 COMMERCE STREET, ROOM 1254, DALLAS, TEXAS 75242-1496 BEFORE CLOSE OF BUSINESS ON JUNE 1, 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.

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Case 09-33918-hdh11 Doc 1029 Filed 05/06/15 Entered 05/06/15 12:02:39 of 33

mailto:[email protected]






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.

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 Buckno Lisicky & Company, P.C. (“Buckno”) and Anthony Buczek (“Buczek”)

(collectively, the “Parties”). In support of this motion, which is made pursuant to Bankruptcy

Rule 9019, the Trustee would show the Court the following:

JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this Motion pursuant to

28 U.S.C. § 1334(b) and the standing order of reference of the District Court. This matter is a

core proceeding. 28 U.S.C. § 157(b)(1), (b)(2)(O).

2. Venue in this Court is proper under 28 U.S.C. §1408 and 1409.

BACKGROUND FACTS

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. As alleged in the Trustee’s First Amended Complaint in the adversary proceeding

styled Orwig v. Freeman, et al., Adversary No. 11-03397-hdh, pending in this Court (the

“Adversary Proceeding”), the Trustee sued Buckno and Buczek for alleged accounting

2 #4820-1031-7603


malpractice, aiding and abetting, breach of fiduciary duty, and civil conspiracy in connection

with certain legal services performed by Buckno and Buczek.

6. The Trustee and Buckno and Buczek have agreed upon terms for settlement of the

Adversary Proceeding. A copy of the Compromise and Settlement Agreement (the “Agreement”)

is attached to this motion as Exhibit A, and is incorporated herein by reference. The Agreement

provides that Buckno and Buczek will pay the FPFG Liquidating Trustee FIVE HUNDRED

FIFTY THOUSAND DOLLARS ($550,000) to settle the controversies between Trustee and

Buckno and Buczek. The Agreement provides for a full release of any and all pre- and post-

petition claims and causes of action between the Parties (and Buckno and Buczek deny all

liability in connection with the settlement).

7. 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, which provides substantial

consideration to the Liquidating Trust. The Trustee requests approval to enter into the

Agreement as follows.

BASIS FOR RELIEF REQUESTED

8. In deciding whether to approve a proposed settlement agreement or compromise

of controversy, a bankruptcy court should consider the following factors:

a. the probability of success on the merits and the resolution of the dispute;

b. the complexity of the litigation being settled;

c. the expense, inconvenience and delay associated with litigating the dispute; and

d. the paramount interests of creditors.

3 #4820-1031-7603


Texas Extrusion Corp. v. Lockheed Corp. (In re Texas Extrusion Corp.), 844 F.2d 1142, 1158-59

(5th Cir. 1988), cert denied, 105 S. Ct. 31 (1989); United States v. Aweco, Inc. (In re Aweco,

Inc.), 752 F.2d 293, 298 (5th Cir. 1984), cert. denied, 469 U.S. 880 (1984).

9. While it is necessary for the proponent of a compromise to set forth the factual

and legal basis for the compromise so the court can make an intelligent and informed evaluation

of the proposed settlement, it is not incumbent upon the proponent to present a mini-trial or a full

evidentiary hearing. Texas Extrusion, 844 F.2d at 1158-59; Aweco, 725 F.2d at 298.

10. The Agreement is in the best interests of the Debtor’s bankruptcy estate and

should be approved. The Settlement provides for substantial consideration of FIVE HUNDRED

FIFTY THOUSAND DOLLARS ($550,000) to be paid to the FPFG Liquidating Trust by

Buckno and Buczek. While the Trustee believes that he has strong tort claims against Buckno

and Buczek, those claims would be complicated, time-consuming, and expensive to resolve in a

contested proceeding. For their part, Buckno and Buczek contend that they have strong factual

and legal defenses to the Trustee’s claims, which would further add to the cost of prosecuting the

Trustee’s claims. Accordingly, the Trustee requests that the Court grant this motion and approve

the Agreement.

WHEREFORE, 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 Buckno

Lisicky & Company, P.C. and Anthony Buczek.

4 #4820-1031-7603


Date: May 6, 2015 Respectfully submitted,

/s/ John Volney Jeffrey M. Tillotson, P.C. ([email protected]) Texas Bar No. 20039200 Eric W. Pinker, P.C. ([email protected]) Texas Bar No. 16016550 John Volney ([email protected]) 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



COUNSEL FOR MATTHEW D. ORWIG, CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE

5 #4820-1031-7603


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 and via U.S. Mail on the attached service list on May 6, 2015.

/s/ John Volney John Volney

6 #4820-1031-7603


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


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.



DALLAS DIVISION

In re: § Chapter 11 §

FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH §

Debtor. § ___________________________________ § ___________________________________

§ MATTHEW D. ORWIG, § AS CHAPTER 11 TRUSTEE OF § FIRSTPLUS FINANCIAL GROUP, INC., §

§ Plaintiff, §

§ v. § Adversary No. 11-03397-hdh

§§

ROBERT FREEMAN; JAMES ROUNDTREE; § DANIEL PHILLIPS; DAVID WARD; § JOHN FITZGERALD; JOHN MAXWELL; § WILLIAM HANDLEY; DR. ROBERT O’NEAL; § JACK ROUBINEK; GARY D. ALEXANDER; § ROGER S. MEEK; DAVID ROBERTS; § JOSEPH P. STEWARD; WILLIAM HICKMAN; § PAUL BALLARD; OLSHAN GRUNDMAN § FROME ROSENZWEIG & WOLOSKY LLP; § DAVID ADLER, ESQ.; § EIZEN FINEBURG & McCARTHY P.C.; § GARY J. McCARTHY, ESQ.; § WILLIAM T. MAXWELL, ESQ.; § WILLIAM MAXWELL PLLC; § WILLIAM T. MAXWELL, P.C.; § BUCKNO LISICKY & COMPANY, P.C.; § ANTHONY BUCZEK, CPA; § SIEGAL & DROSSNER, P.C.; § HOWARD DROSSNER, CPA; § KENSINGTON COMPANY & AFFILIATES, § INC.; KEN STEIN; SALVATORE PELULLO; § SEVEN HILLS MANAGEMENT, LLC; § LEARNED ASSOCIATES OF § NORTH AMERICA, LLC; and § NICODEMO S. SCARFO, JR., §

§Defendants. §

COMPROMISE SETTLEMENT AGREEMENT AND RELEASE PAGE 1 #4844-5330-2563

EXHIBIT ACase 09-33918-hdh11 Doc 1029 Filed 05/06/15 Entered 05/06/15 12:02:39 of 33

COMPROMISE SETTLEMENT AGREEMENT AND RELEASE

The above-numbered and styled cause of action having been compromised and settled, as

between Matthew D. Orwig as Chapter 11 Trustee and Liquidating Trustee for First Plus

Financial Group, Inc. (the “Trustee”) and the Settling Defendants (as defined below), the Settling

Parties (as defined below) now enter into the following Compromise Settlement Agreement and

Release (the “Agreement”), with the Trustee acting on behalf of FirstPlus Financial Group, Inc.

(“First Plus”), FirstPlus’ Chapter 11 estate (the “Estate”), the FPFG Liquidating Trust (the

“Liquidating Trust”) and the other Releasors (as defined below):

I. Definitions

As used in this Agreement, the following terms will have the following meanings:

1. “Releasors” shall include the Trustee, the Estate, The Liquidating Trust and

FirstPlus and each of the foregoing’s respective predecessors and successors in interest, agents,

servants, legal representatives, attorneys, insurers, partners, spouses, heirs, executors,

administrators, estates, employees, associates, successors, assigns, affiliates, subsidiaries,

shareholders and/or any other person or entity claiming or that could claim by, through or under

any of them. In addition, the “Releasors” also includes any predecessor or successor bankruptcy

trustees of FirstPlus (including any hereafter appointed Chapter 7 trustee) and their respective

agents, partners, employees, associates, successors, assigns and any other person or entity

claiming or that could claim by, through or under them.

2. “Settling Defendants” shall include Defendants Buckno Lisicky & Company, P.C.

and Anthony Buczek and each of their respective predecessor or successor entities, affiliates,

subsidiaries and parent corporations, and their respective past, present or future officers,

directors, agents, stockholders, partners, predecessors and successors in interest, servants, legal



representatives, employees, attorneys, heirs and assigns, including but not limited to Gregg S.

Weinberg, Rick V. Anderson, and ROBERTS MARKEL WEINBERG BUTLER HAILEY PC, and any of

its attorneys, employees, agents or representatives. “Settling Defendants” also includes Buckno

Lisicky & Company, P.C.’s and Anthony Buczek’s insurers, including but not limited to CNA

Global Specialty Lines, and any of their past present or future employees, agents,

representatives, predecessor or successor entities, affiliates, subsidiaries and parent corporations,

officers, directors, stockholders, partners, predecessors and successors in interest, servants, legal

representatives, attorneys, heirs and assigns, and all other persons, firms or corporations with

whom any of the former have been, are now, or may hereafter be affiliated. “Settling

Defendants” does not include any defendant named in the caption of the First Amended

Complaint other than Buckno Lisicky & Company, P.C. and Anthony Buczek.

3. “Incident” shall mean any and all facts and circumstances relating to or arising

out of the alleged losses or damages to Releasors caused by the alleged actions or omissions of

any of the Settling Defendants including, but not limited to, a) the allegations contained in the

Complaint, including any amendments thereof or supplements thereto, filed in Adversary

No. 11-03397, styled Matthew D. Orwig, As Chapter 11 Trustee of FirstPlus Financial Group,

Inc. v. Robert Freeman et al., in the United States District Court for the Northern District of

Texas, Dallas Division (the “Adversary Proceeding”), b) the allegations contained in the

Indictment, including any amendments thereof or supplements thereto, filed in Criminal Cause

No. 11-740 (RBK), styled United States of America v. Nicodemo S. Scarfo et al., in the United

States District Court for the District of New Jersey (the “Criminal Case”), c) any matters relating

in any way to the Chapter 11 Case No. 09-33918-hdh11, styled In re: FirstPlus Financial Group,

Inc., in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division,



including any conversion thereof (the “Bankruptcy Case”), and d) any other allegations or claims

related to or involving the same or similar facts and circumstances alleged in the Adversary

Proceeding and/or the Criminal Case.

4. “Settling Parties” shall mean Releasors and Settling Defendants and a reference to

a “Party” shall refer to the Releasors or the Settling Defendants as the circumstances warrant.

5. “Lawsuits” shall mean the Adversary Proceeding, the Criminal Case and the

Bankruptcy Case as defined under Paragraph 3 of this Section.

6. “Claims” shall include any and all past, present and future claims, debts,

demands, actions, causes of action, suits, sums of money, contracts, agreements, judgments,

obligations, wrongful death claims, rights, damages, costs, losses of services, expenses,

compensations and liabilities of any nature whatsoever, both in law and in equity, whether based

on a tort, fraud, contract, violations of federal or state laws (or other laws), including but not

limited to violations of Texas or Pennsylvania laws, claims that could be asserted under the

Bankruptcy Code (including, without limitation, causes of action under Chapter 5 of the

Bankruptcy Code), or any other theory of recovery, which any of the Releasors now have, or

which may hereafter accrue or otherwise be acquired, including but not limited to those on

account of, or may in any way grow out of, or which are the subject of the Lawsuits, including

any and all known or unknown claims for lost value of FirstPlus, takeover of FirstPlus, insider

transactions, concealment of insider transactions and suspicious transactions, suspicious cash

management practices, improper accounting, improper loans, breach of fiduciary duty, legal

malpractice, professional negligence, fraud, negligent misrepresentation, aiding and abetting,

civil conspiracy, fraudulent transfers, equitable subordination, avoidance of preferential

transfers, disallowance of claims, objections to proofs of claim, recharacterization of loans,



fraudulent concealment, damages for breach of fiduciary duty, damages for fraud, damages for

any type of negligence, exemplary and punitive damages, restitution, pre-and post-judgment

interest, costs, attorney fees, or any future claim of the same, which have resulted or may have

resulted from the alleged acts or omissions of the Settling Defendants. “Claims” shall also

include, without limitation, any claims which were brought or could have been brought relating

to the Incident or in the Lawsuits under any theory including but not limited to claims for breach

of implied warranty, gross negligence, Texas Deceptive Trade Practice-Consumer Protection

Act, products liability, negligence, professional negligence, contribution, express warranty,

breach of contract, indemnity, fraudulent misrepresentation, negligent misrepresentation,

vicarious liability, Res Ipsa Loquitur, exemplary damages, breach of fiduciary duty, theories of

aiding and abetting or conspiracy to commit any of the Claims, and damages for lost profits, lost

income, lost value, loss of credit reputation, loss of benefit of the bargain, loss of amounts paid

as guarantor, mental anguish in the past, present and/or future, pain and suffering in the past,

present and/or future, personal injuries of any kind, past, present and/or future, attorney’s fees,

interest of any kind, including prejudgment interest and post-judgment interest, costs of suit, loss

of inheritance, loss of consortium, loss of support, pecuniary loss, loss of society, penalties of

any kind, punitive damages, exemplary damages or any other damage or claim of any kind or

character whatsoever sustained, directly or indirectly, which in any way relates to, arises out of,

or is in any way connected with the Incident or the Lawsuits. Claims shall not include any

claims, both in law and equity, which may be brought arising out of the Settling Parties’ breach

of this Agreement.



II. Choice of Law

7. The Settling Parties represent and agree that the terms of this Agreement are to be

governed by and construed in accordance with the laws of the State of Texas in all respects,

including matters of construction, interpretation, enforcement and validity. Venue of any

litigation concerning this Agreement shall be in Dallas County, Texas.

8. As further consideration for this Agreement, in the event this Agreement is not

ultimately fully executed by the Settling Parties and/ or approved by the Court in the Adversary

Proceeding, the Settling Defendants expressly reserve the right to assert that Pennsylvania Law is

applicable to the claims against them in the Adversary Proceeding and the Releasors agree that

this Agreement will not be used to argue for the application of Texas law to any claims against

any of the Settling Defendants, nor will it be construed to mean that the Settling Defendants have

waived any arguments for the application of Pennsylvania law in the Adversary Proceeding, or

any other proceeding.

III. Payment, Release, and Contribution

9. For and in consideration of FIVE HUNDRED FIFTY THOUSAND DOLLARS

($550,000.00), the mutual covenants contained herein, and other good and valuable

consideration, Releasors do hereby fully and completely compromise, settle, remise, release and

forever discharge each and all of the Settling Defendants of and from all Claims which they now

have or may hereafter have against Settling Defendants, for or by reason of any matter, cause or

thing whatsoever, whether known or unknown, suspected or unsuspected, liquidated or

unliquidated, matured or unmatured, foreseen or unforeseen, now existing or hereafter arising, in

law, equity or otherwise that are based in whole or part on any act, omission, transaction, event



or other occurrence taking place from the beginning of the world through the Approval Date (as

defined below).

10. For and in consideration of the releases and mutual covenants contained herein,

and other good and valuable consideration, the Settling Defendants do hereby fully and

completely compromise, settle, and forever discharge each and all Releasors of and from all

Claims which they now have or may hereafter have against the Releasors, for or by reason of any

matter, cause or thing whatsoever, whether known or unknown, suspected or unsuspected,

liquidated or unliquidated, matured or unmatured, foreseen or unforeseen, now existing or

hereafter arising, in law, equity or otherwise that are based in whole or part on any act, omission,

transaction, event or other occurrence taking place from the beginning of the world through the

Approval Date (as defined below).

11. The FIVE HUNDRED FIFTY THOUSAND DOLLARS ($550,000.00) will be

paid by Settling Defendants’ carrier to Releasors by check made payable to “FPFG Liquidating

Trust”, in accordance with instructions from Releasors, and within thirty (30) days after the

Approval Date (as defined below).

12. The release described in Paragraph No. 9 in this Section III and this Agreement

does not, nor is it intended to, release any other defendant(s), not specifically defined herein as a

Settling Defendant, from any Claims. Releasors reserve the right to continue to assert and pursue

claims against any other person or entity which may be responsible for the injuries and damages

allegedly sustained by Releasors, together with the right to make the claim that such other

persons and entities, and not the Settling Defendants, are solely liable to Releasors for any

injuries, losses and damages.



13. It is intended by the choice of Texas law by the Settling Parties in Section II that

Tex. Civ. Prac. & Rem. Code § 33.015(d) will be applicable to the Settling Parties and any

claims for contribution against any of the Settling Parties. More specifically, the Settling Parties

acknowledge and agree that upon execution of this Agreement, under Tex. Civ. Prac. & Rem.

Code § 33.015(d), no defendant has a right of contribution against any of the Settling

Defendants.

14. However, acknowledging that choice of law has been at issue between the

Settling Parties and in the Adversary Proceeding, should it later be determined that Pennsylvania

law or some other law other than Texas law is applicable to any claims for contribution against

the Settling Parties, it is further agreed that, pursuant to the Uniform Contribution Among Joint

Tortfeasor’s Act of Pennsylvania (42 Pa. C.S.A. § 8321, et seq.), in the event that any of the

Settling Defendants are found by judicial determination to be joint tortfeasors or otherwise

jointly or severally liable with any person or entity in causing injury or damage to any of the

Releasors, Releasors hereby release that pro-rata portion or share of the cause of action which

any of the Releasors have against the Settling Defendants and discharge any and all damages

attributable to the Settling Defendants in such causes of action, without in any way discharging

or releasing the portion of the cause of action attributable to any other party who has caused

injury to any of the Releasors herein. The Releasors do hereby credit and satisfy that portion of

the total amount of damages to the Releasors that has been caused by the negligence, intentional

torts and/or other fault, if any, of the Settling Defendants as hereinafter may be judicially

determined in the future trial, and Releasors do hereby release and discharge that fraction,

portion and percentage of their total causes of action and claims for damages against the Settling

Defendants which shall hereinafter, by future trial be judicially determined to be the sum of that



portion, fraction or percentage of causal negligence and/or fault as determined pursuant to the

Comparative Negligence Act of Pennsylvania (42 Pa. C.S.A. § 7102, et seq.) or other applicable

law, for which the Settling Defendants are found to be liable.

IV. Dismissal of Case with Prejudice Against Settling Defendants and Approval of the

Settlement by the Court

15. For the aforesaid consideration, Releasors, joined by their attorney, hereby agree

on behalf of themselves and their respective assigns, never again to bring suit in any court

against the Settling Defendants with respect to any Claim, including a Claim with respect to the

subject matter or the allegations which were asserted, or could have been asserted, in or relating

to the Incident and/or the Lawsuits. The Releasors agree that the Settling Defendants shall be

dismissed with prejudice from the Adversary Proceeding and the form of the Agreed Motion to

Dismiss will be in the form attached hereto as Exhibit B (the “Motion to Dismiss”). The

Releasors agree to file the Motion to Dismiss within three (3) business days from the receipts of

the settlement funds by the Releasors.

16. The Settling Parties further agree that to be effective, this settlement must be

approved by the Court in the Adversary Proceeding in accordance with Rule 9019 of the Federal

Rules of Bankruptcy Procedure (the date on which the same occurs shall be referred to herein as

the “Approval Date”). The form of the Motion to Approve Compromise and Proposed Order will

be in the form attached as Exhibit A (the “Motion”). Within three (3) days after this Agreement

is fully executed by the Settling Parties, the Trustee will file the Motion seeking Bankruptcy

Court approval of this Agreement.



V. Denial of Liability

17. The Releasors acknowledge that the Settling Defendants have denied and

continue to deny all allegations made in connection with the Lawsuits, and that the settlement of

the Adversary Proceeding as to the Settling Defendants, the payment of the above described

sums, and any other actions taken by the Settling Defendants in connection therewith shall not be

deemed to be, or construed as, an admission of liability of the Settling Defendants or an

admission of the truthfulness of any of the allegations made by any party to the Lawsuits or

otherwise in connection with the Incident or any matter whatsoever. Rather, the Releasors

acknowledge that said actions have been taken in order to avoid the expense and inconvenience

of further prosecution of the Adversary Proceeding and acknowledge that this settlement and

compromise is of a doubtful and disputed claim, and that the payment of the above-described

sums is not to be construed as an admission of liability on the part of the Settling Defendants, by

whom liability is expressly denied. The Settling Parties expressly agree that this Agreement was

contemplated and executed as a compromise of disputed claims within the meaning of Federal

Rule of Evidence 408. As such, it is not admissible in any proceeding either to prove or disprove

the validity or amount of a disputed claim, or to impeach by a prior inconsistent statement or a

contradiction.

VI. Representations and Warranties

18. Releasors warrant that they are not aware of any claim by or on behalf of the

Releasors against the Settling Defendants that is not being released and/or indemnified by this

Agreement.



19. Releasors represent that they are the sole owner of the Claims being released

herein, and that they have not transferred, assigned, subrogated or otherwise incumbered said

Claims or any part thereof.

20. Releasors represent and warrant that they have made a full and complete

investigation, aided by their attorneys, of the circumstances surrounding the Incident, the

Lawsuits and this Agreement.

21. Releasors further expressly release and waive any and all Claims for damages

which exist as of the Approval Date against the Settling Defendants but of which any of the

Releasors do not know or suspect to exist, whether through ignorance, oversight, error, fraud,

misrepresentation or negligence, which, if known, would materially affect their decision to enter

into this Agreement. Releasors further agree that they will accept the consideration specified

herein as a complete compromise of matters relating to the Settling Defendants which involve

disputed issues of law and fact and fully assume the risk that the facts or law applicable to this

case may be otherwise than they believe or may materially change at some point in the future. It

is the intent of the Releasors to release all Claims against the Settling Defendants associated with

the Incident and the Lawsuits or otherwise, whether those Claims are known at the present time

or not.

22. Releasors further state that they understand this to be a full, final and complete

settlement with the Settling Defendants and one that cannot be reopened at any time in the future

regardless of what might take place or later occur.

23. In making this Agreement, Releasors warrant that they have not relied upon any

statements or representations pertaining to this matter made by the Settling Defendants or by any

person or persons representing them, other than as set forth in this Agreement.



24. Releasors further state that they have carefully read this Agreement, completely

understand the contents thereof, that they conferred fully with their attorneys concerning the

contents and legal consequences of this Agreement, and they executed this Agreement of their

own free will. The Releasors have relied upon the advice of their attorneys, who are attorneys of

their own choice, concerning the legal and income tax consequences of this Agreement; that the

terms of this Agreement have been completely read and explained to the Releasors by their

attorneys; the terms of this Agreement are fully understood and voluntarily accepted by the

Releasors; and that the Releasors rely completely on the Releasors’ own due diligence in the

execution of this Agreement.

25. This Agreement contains the entire agreement between the Settling Parties with

regard to the matters set forth herein and shall be binding upon and inure to the benefit of the

executors, administrators, personal representatives, heirs, successors and assigns of each.

VII. Assignment of Outstanding Claims

26. Any and all claims against the Settling Defendants not specifically released

herein, if any, which are related to or arise out of the Incident, are hereby assigned in full to the

Settling Defendants.

VIII. Severability

27. If any portion of this Agreement should be held by any court of competent

jurisdiction to be invalid or unenforceable for any reason, the balance of this Agreement shall

remain in full force and effect.



IX. Authority

28. The Settling Parties represent and warrant that each individual signing this

agreement on their behalf have complete and full authority to act upon their behalf and have the

authority to bind the Settling Parties (the Releasors with respect to the Trustee and the Settling

Defendants with respect to Buckno Lisicky & Company, P.C. and Anthony Buczek) regarding

all of the provisions of this Agreement.

29. This Agreement contains the entire agreement between the parties hereto, and the

terms of this Agreement are contractual and not mere recitals.

X. Confidentiality

30. The Settling Parties hereby agree that this Agreement, including all of the terms

and conditions thereof and this settlement will be disclosed in connection with the approval of

this settlement by the Court under Rule 9019 of the Federal Rules of Bankruptcy Procedure and

the Releasors shall have no liability to the Settling Defendants for disclosure of this settlement in

connection with the Court approval procedure. However, this Agreement, including all of the

terms and conditions thereof and this settlement shall otherwise be held confidential and shall not

be divulged or disseminated to anyone who is not a Party to this Agreement such that each Party

may only represent to third-parties not involved in the Bankruptcy Court approval process that

“the Lawsuit has been mutually resolved,” other than is mutually agreed to in writing, or except

to the extent provided otherwise in this Agreement or to the extent disclosure is required by law,

rule or court order or in response to discovery or other legal process.



XI. Supplementary Documents

31. The Settling Parties do further agree to execute any and all documents that may be

required to effectuate all terms, covenants and conditions contained herein contemporaneously

with such Party's execution of this Agreement or at a later date if necessary.

XII. No Third-Party Beneficiary

32. This Agreement has been executed for the sole benefit of the Settling Parties

hereto and is not intended for the benefit of any third-party. No third-party shall have any rights

hereunder, nor shall be entitled to assume that the Settling Parties hereto will insist upon strict

performance of the mutual obligations arising under this Agreement for the benefit of such other

parties or otherwise. The Settling Parties to this Agreement further agree that they will not

institute, maintain, assist in, or otherwise encourage any suit, action, or other proceeding, at law,

in equity or otherwise against the other Party nor aid any third-party in any way in any such

proceeding.

XIII. Discovery of Additional Facts

33. In connection with this Agreement, the Settling Parties each acknowledge that

additional facts might be discovered later, but that it is the intention of each Party to fully, finally

and forever settle and release all matters of the Lawsuits between the Settling Parties, known or

unknown, suspected or unsuspected, which now exist, or formerly have existed between the

Settling Parties, except as is expressly provided in this Agreement. The Settling Parties

acknowledge that this Agreement shall be and will remain in effect as a full and complete

general release of the Adversary Proceeding against the Settling Defendants, notwithstanding the



discovery or existence of any additional or different facts, except as is expressly provided in this

Agreement.

XIV. Additional Terms

34. This Agreement shall become effective upon approval by the Court in accordance

with Rule 9019 of the Federal Rules of Bankruptcy Procedure.



WITNESS MY HAND this _____ day of _______________, 2015.

__________________________________________ MATTHEW D. ORWIG, AS CHAPTER 11 LIQUIDATING TRUSTEE OF FIRSTPLUS FINANCIAL GROUP, INC.

STATE OF TEXAS § §

COUNTY OF DALLAS §

BEFORE ME, the undersigned authority, on this day personally appeared MATTHEW

D. ORWIG, known to me to be the person whose name is subscribed to the foregoing instrument

and acknowledged to me that he is authorized to execute this document as CHAPTER 11 AND

LIQUIDATING TRUSTEE OF FIRSTPLUS FINANCIAL GROUP, INC. and has read the

foregoing and fully understands it to be a complete release of all claims as described therein, and

an agreement of indemnity as described therein and that he executed same for the purposes and

consideration expressed therein.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____ day of

_______________, 2015.

__________________________________________ Notary Public in and for the State of Texas

My Commission Expires: ____________________ SEAL:




__________________________________________ BUCKNO LISICKY & COMPANY, P.C.

By: Randal R. Dietz, Authorized Representative

THE STATE OF PENNSYLVANIA § §

COUNTY OF _____________ §

BEFORE ME, the undersigned authority, on this day personally appeared Authorized

Representative, known to me to be the person whose name is subscribed to the foregoing

instrument and acknowledged to me that he has read the foregoing and fully understands it to be

a complete release of all claims as described therein, and an agreement of indemnity as described

therein and that he executed same for the purposes and consideration expressed therein.


_______________, 2015.

__________________________________________ Notary Public in and for the State of Pennsylvania





__________________________________________ ANTHONY BUCZEK

THE STATE OF PENNSYLVANIA § §

COUNTY OF _____________ §

BEFORE ME, the undersigned authority, on this day personally appeared Anthony

Buczek, known to me to be the person whose name is subscribed to the foregoing instrument and

acknowledged to me that he has read the foregoing and fully understands it to be a complete

release of all claims as described therein, and an agreement of indemnity as described therein and

that he executed same for the purposes and consideration expressed therein.


_______________, 2015.

__________________________________________ Notary Public in and for the State of Pennsylvania




AGREED TO FORM AND SUBSTANCE:

By: ______________________________ Jeffrey M. Tillotson Texas Bar No. 20039200 Eric W. Pinker Texas Bar No. 16016550 John Volney State 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

COUNSEL FOR PLAINTIFF MATTHEW D. ORWIG, AS CHAPTER 11 LIQUIDATING TRUSTEE TO FIRSTPLUS FINANCIAL GROUP, INC.

By: ______________________________ Gregg S. Weinberg Texas State Bar No. 21084150 Rick V. Anderson Texas State Bar No. 24059047 ROBERTS MARKEL WEINBERG BUTLER HAILEY PC 2800 Post Oak Blvd, 57th Floor Houston, Texas 77056 713-840-1666 Telephone 713-840-9404 Facsimile

COUNSEL FOR SETTLING DEFENDANTS BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK




Counsel for Matthew D. Orwig, Chapter 11 Trustee and Liquidating Trustee


DALLAS DIVISION

In re: § §

Chapter 11

FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH

Debtor. §§§ §

MATTHEW D. ORWIG, AS CHAPTER 11 TRUSTEE OF

§§

FIRSTPLUS FINANCIAL GROUP, INC., § §

Plaintiff, § §

v. § §

Adversary No. 11-03397-hdh

ROBERT FREEMAN; et al., § §

Defendants. §

AGREED MOTION TO DISMISS BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK AS PARTIES PURSUANT TO SETTLEMENT AGREEMENT

NO HEARING WILL BE CONDUCTED ON THIS MOTION UNLESS A WRITTEN OBJECTION IS FILED WITH THE CLERK OF THE UNITED STATES BANKRUPTCY COURT AT 1100 COMMERCE STREET, ROOM 1254, DALLAS, TEXAS 75242-1496 BEFORE CLOSE OF BUSINESS ON _______________, 2015, WHICH IS AT LEAST 24 DAYS FROM THE DATE OF SERVICE HEREOF.

1 #4819-4320-8739

Exhibit B to Settlement AgreementCase 09-33918-hdh11 Doc 1029 Filed 05/06/15 Entered 05/06/15 12:02:39 of 33




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.

Matthew D. Orwig, the duly-appointed Chapter 11 Trustee and Liquidating Trustee of the

FirstPlus Financial Group, Inc. bankruptcy estate (the “Trustee”), and Buckno Lisicky &

Company, P.C. and Anthony Buczek, hereby file this Agreed Motion To Dismiss Buckno

Lisicky & Company, P.C. and Anthony Buczek As Parties Pursuant To Settlement Agreement

(the “Motion”) pursuant to Federal Bankruptcy Rule 7041 and Federal Rule of Civil

Procedure 41(a)(2) and would respectfully show the Court as follows:

1. The Trustee filed his Original Complaint against the defendants in the above-

captioned adversary on June 21, 2011 [Adversary Docket No. 1].

2. On June 19, 2012, the Trustee filed his Motion for Order Approving Compromise

and Settlement Agreement between the Trustee and Buckno Lisicky & Company, P.C. and

Anthony Buczek [Docket No. ] (the “Settlement Motion”), attaching as Exhibit A thereto the

Compromise and Settlement Agreement between the Trustee and Buckno Lisicky & Company,

P.C. and Anthony Buczek (the “Settlement Agreement”).

3. On _______________, 2015, the Court entered an Order [Docket No. _____]

(the “Settlement Order”) granting the Settlement Motion which, inter alia, authorized the

Trustee to enter into the Settlement Agreement with Buckno Lisicky & Company, P.C.

and Anthony Buczek effective as of the date of the Settlement Order.

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4. As a part of the Settlement Agreement, the Trustee agreed to dismiss with

prejudice Buckno Lisicky & Company, P.C. and Anthony Buczek as parties in the above-

captioned adversary.

5. This Motion is not intended to and does not affect any of the claims asserted

against any other party to this Adversary Proceeding.

WHEREFORE, pursuant to the Settlement Agreement, the Trustee moves the Court

pursuant to the foregoing rules to dismiss with prejudice Buckno Lisicky & Company, P.C. and

Anthony Buczek as parties in the above-captioned adversary proceeding.

DATE: April 9, 2015 Respectfully submitted,

/s/ John Volney Jeffrey M. Tillotson, P.C. ([email protected]) Texas Bar No. 20039200 Eric W. Pinker, P.C. ([email protected]) Texas Bar No. 16016550 John Volney ([email protected]) 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 COUNSEL FOR MATTHEW D. ORWIG, CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE

3 #4819-4320-8739





and /s/ Rick V. Anderson Gregg S. Weinberg ([email protected]) Attorney in Charge Texas Bar No. 21084150 Rick V. Anderson ([email protected]) Texas Bar No. 24059047 ROBERTS MARKEL WEINBERG BUTLER HAILEY P.C. 2800 Post Oak Blvd, 57th Floor Houston, Texas 77056 (713) 840-1666 Telephone (713) 840-9404 Facsimile ATTORNEYS FOR DEFENDANTS BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK

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 _______________, 2015.

/s/ John Volney John Volney

4 #4819-4320-8739


1 #4840-8152-5282


DALLAS DIVISION In re: § Chapter 11 § FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH § Debtor. § ___________________________________ § ___________________________________ § MATTHEW D. ORWIG, § AS CHAPTER 11 TRUSTEE OF § FIRSTPLUS FINANCIAL GROUP, INC., § § Plaintiff, § § v. § Adversary No. 11-03397-hdh § § ROBERT FREEMAN, et al., § § Defendants. §

ORDER GRANTING MOTION TO DISMISS BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK

Before the Court is the Agreed Motion To Dismiss Buckno Lisicky & Company, P.C.

and Anthony Buczek As Parties Pursuant To Settlement Agreement. After considering the


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Motion and the Responses, the Court is of the opinion that the Motion should be granted. It is

therefore,

ORDERED that pursuant to Federal Bankruptcy Rule 7041 and Federal Rule of Civil

Procedure 41(a)(2), the Court hereby dismisses Buckno Lisicky & Company, P.C. and Anthony

Buczek as parties in the above-captioned adversary proceeding with prejudice.

***END OF ORDER***



DALLAS DIVISION

In re: § Chapter 11 § FIRSTPLUS FINANCIAL GROUP, INC., § Case No. 09-33918-HDH

§ Debtor. §

ORDER GRANTING MOTION FOR ORDER APPROVING COMPROMISE AND SETTLEMENT AGREEMENT BETWEEN THE TRUSTEE AND

BUCKNO LISICKY & COMPANY, P.C. AND ANTHONY BUCZEK

Came on for consideration the Motion (the “Motion”) of Matthew D. Orwig, the

Liquidating Trustee (the “Trustee”), seeking this Court’s approval for the settlement and

compromise of controversies (the “Agreement”) between the Trustee and Buckno Lisicky &

Company, P.C. and Anthony Buczek, who are defendants in the adversary proceeding styled

Matthew D. Orwig, as Chapter 11 Trustee of FirstPlus Financial Group, Inc. v. Robert Freeman,

et al.; Adversary No. 11-03397-HJH in the USBC Northern District of Texas, Dallas Division.

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The Court, having considered the Motion, the Agreement, proper service thereof, and the

evidence and arguments presented in support of and in opposition to the Motion and Agreement

finds that the Agreement is in the best interest of the Debtor’s estate. The Motion is therefore

well-taken and shall be, and hereby is, GRANTED as follows. It is therefore,

ORDERED that the Agreement between the Trustee and Buckno Lisicky & Company, P.C. and Anthony Buczek is approved in the form described in and attached to the Motion; it is

further

ORDERED that the Trustee is authorized to enter into and take any steps necessary to

effectuate and comply with the Agreement.

### END OF ORDER###

Submitted by:




COUNSEL FOR MATTHEW D. ORWIG, CHAPTER 11 TRUSTEE AND LIQUIDATING TRUSTEE

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