[00:00:00] Speaker 01:
All right, so let's call the next matter.

[00:00:02] Speaker 00:
Madam Clerk, please.

[00:00:05] Speaker 00:
In Re Nicole.

[00:00:07] Speaker 00:
Sylvia Nicole, the appellant, did not respond to calls or letters regarding oral argument and is not on the Zoom, unfortunately.

[00:00:18] Speaker 00:
But appearing as counsel for Appellee is Corey B. Chartrand, counsel for Appellee T2M Investments.

[00:00:30] Speaker 01:
All right, Mr. Schertra, and even though Ms.

[00:00:34] Speaker 01:
Nicole is not here, you still have your 15 minutes if you would like to use it.

[00:00:39] Speaker 01:
You may say what you would like or submit on your briefs.

[00:00:43] Speaker 01:
It's totally up to you.

[00:00:44] Speaker 05:
Thank you, Your Honor.

[00:00:46] Speaker 05:
Unless the panel has any questions, I will submit on the brief, but I am happy to field any questions.

[00:00:55] Speaker 01:
Any questions from the panel?

[00:00:58] Speaker 03:
Mr. Chartrand, this is Judge Gann.

[00:01:01] Speaker 03:
It appears that there was an agreement of sorts that Ms.

[00:01:09] Speaker 03:
Nicole had promoted.

[00:01:12] Speaker 03:
Your understanding, or T2M's understanding, at least at trial, was that that would convey to T2M title to a residence, but it would be marketable title, and she'd be available if you needed to contact her.

[00:01:28] Speaker 03:
Right?

[00:01:29] Speaker 03:
And ultimately you drafted or somebody on behalf of Mr. Altman on behalf of T2M drafted an agreement, got it to her, she signed it.

[00:01:40] Speaker 03:
He signed it or someone from T2M signed it, backdated it, but effectively agreed.

[00:01:47] Speaker 03:
And then they didn't release the lien right away because they believed that when the property sold that they were paid that then they released the lien.

[00:01:55] Speaker 03:
But in the meantime, she wasn't making payments.

[00:01:58] Speaker 03:
You couldn't market the property.

[00:02:00] Speaker 03:
You couldn't locate her.

[00:02:02] Speaker 03:
So you ultimately commenced a lawsuit in the state court, couldn't find her, so then published, got a default judgment against her.

[00:02:11] Speaker 03:
She moves to set it aside.

[00:02:12] Speaker 03:
I'm sorry, did I misstate that then?

[00:02:16] Speaker 05:
Well, yeah.

[00:02:17] Speaker 05:
I mean, her brief says there was never a state court default judgment.

[00:02:23] Speaker 05:
We have a default hearing.

[00:02:28] Speaker 05:
She showed up and said, I've declared bankruptcy again.

[00:02:31] Speaker 03:
Gotcha.

[00:02:32] Speaker 03:
Okay.

[00:02:32] Speaker 03:
So at that point, the state court litigation stops and she brings an adversary complaint and you end up in front of the bankruptcy judge and you try these issues with witnesses.

[00:02:43] Speaker 03:
She testifies, somebody on behalf of T2M testifies.

[00:02:47] Speaker 03:
I remember if you testified, some of the other lawyers may have testified.

[00:02:51] Speaker 03:
Some people got dismissed from the outset, and then the court came to a conclusion.

[00:02:57] Speaker 03:
Ultimately, the court did what the agreement seemingly was supposed to do, which was provide you with marketable title to the residents, and she got the lot freeing Flair.

[00:03:09] Speaker 03:
And that's what the judge ruled, and that's what you're asking us to affirm, essentially, at this point.

[00:03:16] Speaker 05:
Yes, I think you've summarized it well.

[00:03:21] Speaker 01:
But the agreement said grant deed, and you got a grant deed, right?

[00:03:27] Speaker 01:
And that later turned out to be ineffective.

[00:03:30] Speaker 01:
But is there any argument that you got what you bargained for?

[00:03:37] Speaker 05:
Well, on her part, no.

[00:03:39] Speaker 05:
Ms.

[00:03:40] Speaker 05:
Nicole, the appellant, has completely repudiated

[00:03:45] Speaker 05:
the settlement agreement.

[00:03:48] Speaker 05:
In fact, at trial, she was adamant about that.

[00:03:51] Speaker 05:
And the judge kept pressing her, really?

[00:03:55] Speaker 05:
You're repudiating this whole agreement?

[00:03:57] Speaker 05:
And yes, there's no agreement.

[00:03:59] Speaker 05:
And that was her position, which is why I moved for a non-suit.

[00:04:03] Speaker 05:
I said, well, you can't sue for breach of contract on an agreement you're repudiating.

[00:04:11] Speaker 04:
Let me see if I understand this.

[00:04:15] Speaker 04:
the improved lot and we've got the property, the vacant lot.

[00:04:19] Speaker 05:
Right.

[00:04:20] Speaker 04:
And in the simplest sense, the agreement was you're going to get the, your client's going to get the improved lot and she's going to get the other lot.

[00:04:29] Speaker 05:
Yes.

[00:04:29] Speaker 04:
Now there's some question of whether or not, you know, the title insurance company is saying, Hey, your deed isn't quite good enough.

[00:04:37] Speaker 04:
But the end of the day, with the help of the bankruptcy court and she got,

[00:04:44] Speaker 05:
the vacant lot and you got or your client got the improved lot and that was the essence of the deal and that's what was completed everyone got what they bargained for uh is is at the end of the day and coming back to judge brand's question i understand you're saying well the the settlement agreement said grant deed you got what you bargained for well it's clear if you read the whole agreement we were to get

[00:05:10] Speaker 05:
Marketable, you know clean title.

[00:05:12] Speaker 04:
I mean, that's why let me interrupt you just for saying it probably I'm saying it really doesn't matter Okay, because at the end of the day on her side of it She got what she bargained for absolutely and and you maybe You know you wanted a deed wanted a deed that you can use you eventually got that yes, and then it really mattered to her whether it was a

[00:05:40] Speaker 04:
you know, what type of deed it was, eventually the agreement was that your client would get that property and your client got it.

[00:05:48] Speaker 04:
So, where's the beef?

[00:05:52] Speaker 03:
The only other point is Joanna repeated the agreement, but she borrowed money to buy both, secured it with the loan with both, was supposed to make interest only payments, was in default, didn't have insurance in place to protect your clients,

[00:06:09] Speaker 03:
interest, security interest, was in default.

[00:06:11] Speaker 03:
You didn't extend the loan.

[00:06:13] Speaker 03:
You commenced legal proceedings because ultimately that's the only way you could take title of the property and then settled it with her.

[00:06:21] Speaker 03:
She got what she wanted.

[00:06:22] Speaker 03:
And at the end of the day, she's paid nothing more than whatever she paid at that point.

[00:06:26] Speaker 03:
But she walks away with a lot free and clear at this point.

[00:06:30] Speaker 03:
And that's what the bankruptcy court thought was fair.

[00:06:34] Speaker 03:
And your client was willing to accept that.

[00:06:37] Speaker 03:
Right.

[00:06:39] Speaker 05:
You know, to beat a dead horse, I guess.

[00:06:42] Speaker 05:
This is after seven years litigation over this property.

[00:06:46] Speaker 05:
This is after four bankruptcies, at least two adversary proceedings, a trial.

[00:06:54] Speaker 05:
I guess all I can ask for at this point, Your Honors, is that it end here.

[00:07:01] Speaker 02:
Well, we can't guarantee that.

[00:07:04] Speaker 02:
We can't affirm, but we can't guarantee the ultimate.

[00:07:10] Speaker 01:
All right.

[00:07:12] Speaker 01:
Any other questions?

[00:07:14] Speaker 01:
No?

[00:07:14] Speaker 01:
Thank you.

[00:07:15] Speaker 01:
Thank you, Mr. Chartrand.

[00:07:18] Speaker 01:
This matter is submitted.

[00:07:20] Speaker 01:
All right.

[00:07:21] Speaker 01:
That is the last item on our calendar.

[00:07:23] Speaker 01:
So, Madam Clerk, if you'd like to adjourn court, we will be done.

[00:07:29] Speaker 01:
This session of the Bankruptcy Appellate Panel is now adjourned.