Willis Carto archive

Carto Bankruptcy — Agreement I (August 1999)

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Forbearance and Settlement Agreement and Mutual General Release

This forbearance and settlement agreement and mutual general release is entered into this day, by and between LEGION FOR THE SURVIVAL OF FREEDOM, INC. (hereinafter Plaintiff) and WILLIS CARTO and ELISABETH CARTO, LEWIS FURR and LAVONNE FURR, and LIBERTY LOBBY (hereinafter Defendants).

Whereas, Plaintiff filed a complaint and obtained a judgment in the Superior Court of California, County of San Diego, North County Branch, Case Number N64584 against Defendants on November 21, 1996, and whereas Defendants had filed Bankruptcy actions listing all of their assets and liabilities in the United States Bankruptcy Court, and whereas Plaintiff and Defendants then commenced litigation on the dischargeability of Plaintiff’s claims (hereinafter Subject Lawsuits);

Whereas, the parties hereto have reached a complete and final forbearance and settlement, and now wish to compromise all their rights and claims, including complaints and potential cross-complaints, and to sever, release, discharge and terminate any and all rights, liabilities and relationships, known or unknown, asserted or un-asserted, between them that arise out of the above lawsuit;

Now, therefore, the parties hereto agree as follows:

This agreement is executed in consideration of the following:

1. Defendants agree to pay plaintiff the total sum of $1,200,000, from all sources, i.e. the Cartos, Furrs or Liberty Lobby, as follows:
   1. $200,000 upon execution of this agreement;
   2. $5,000/month starting October 1, 1999, and continuing until the balance is paid in full; and
   3. The outstanding balance, if any, shall be paid in full by no later than December 31, 2003.
2. Defendants further represent that Liberty Lobby has the right to receive monies from the estate of William G. Kefer and hereby further agree to assign all rights therein to plaintiff, and to assist plaintiff as necessary, to collect monies from the William G. Kefer estate which will be applied toward satisfaction of this obligation, up to the full amount of the stipulation, with any excess to be returned to Liberty Lobby.
3. Defendants further hereby agree that they will pay an additional $100,000 on January 1 and July 1 of each year starting on July 1, 2000, until the balance is paid in full, which additional amounts shall not be deducted from the settlement amount of $1,200,000.
4. Defendant further agrees that the above payments shall include 8% interest per annum pursuant to the above payment plan. Payments are due on the first of each month and late if not received by the 5th of each month. In the event a payment is not made on time, then this forbearance agreement is in default. If the forbearance agreement remains in default for more than ten days, i.e. by the 15th of the month, then the full balance of the original judgment, plus interest, is then due and owing at the option of plaintiff. The outstanding balance may be prepaid at any time, without penalty. Checks will be endorsed to SAMPSON & ASSOCIATES, Client Trust Account and forwarded to:
   
   SAMPSON & ASSOCIATES
   Attn: Bryan D. Sampson, Esq.
   San Diego, CA 92101
   
   Further, this debt is assignable by plaintiff, and defendants agree to accept all notices at:
   
   J. Brian Urtnowski, Esq.
   4695 MacArthur Court, Suite 590
   Newport Beach, CA 92660
   (949) 752-5370
   
   Principal and interest are payable in lawful money of the United States. Further, should interest not be paid as agreed upon, it shall thereafter be added to the principal.
5. Defendants further agree to enter into a stipulated judgment in the full amount of the underlying judgment and allow liens to be recorded against them. The form of the stipulated judgment is set forth in Exhibit A and the voluntary liens are set forth at Exhibit B all of which are attached hereto and incorporated herein by reference.
6. Defendants further confirm that they have provided true, correct and complete financial statements to plaintiff in the form of their Schedules filed with the bankruptcy court and understand that plaintiff has reviewed and relied solely upon defendants’ Schedules in entering into this settlement and that defendants failure to fully and completely disclose all assets in their possession or control may result in plaintiff’s moving to set aside the settlement, to pursue recovery against the undisclosed assets and to concurrently enforce the full amount of the stipulated judgment and that plaintiff may also conduct discovery for 1 year following entry of this agreement in the form of one deposition for each Defendant, with Defendant’s full cooperation, to confirm the veracity of Defendants representations and/or to locate possible hidden assets.
7. Defendants further agree and promise to obtain and file with the proper courts, and to deliver to the office of Bryan D. Sampson, whose address is listed above, conformed and file stamped dismissals, with prejudice, within 30 days of bankruptcy court approval of this settlement, of all appeals and all lawsuits against Plaintiff, Plaintiff’s officers, directors, employees, members, heirs, executors, administrators, attorneys and agents, including but not limited to the lawsuits and appeals listed on Exhibit C attached hereto and incorporated herein by reference, except the appeal from the judgment issued in San Diego Superior Court case Number N64584 (Appeal Number D0 27959), and to pay all Plaintiff’s attorney fees and costs of up to $5,000 should they lose on appeal. It is further hereby stipulated to and agreed that the failure to perform the necessary paperwork, to file or deliver the foregoing dismissals will cause Plaintiff to incur additional expenses, attorneys’ fees, damage to its business and the functioning of the corporation, as well as other costs. Therefore, Defendants further agree that in the event they breach any of the terms of this paragraph, Plaintiff is entitled to immediately recover additional monetary damages, which the parties hereto stipulate shall be set at $25,000 as of October 1, 1999, plus an additional $5,000 per month, starting August 1999, for each month Defendants fail to dismiss their legal actions as set forth above;
8. Defendants’ further agree to forever cease and desist from using plaintiff’s names (including but not limited to Legion for the Survival of Freedom, Institute for Historical Review, Noontide Press, Independent Publishers, NECA and American Mercury), and from using the names Incorporators for the Legion for Survival of Freedom, International Legion for the Survival of Freedom, and from holding themselves out as representing any of the above entities as incorporators, members, directors, officers, agents, employees, etc. Defendants further agree to return all corporate documents and seals, to the extent they exist, to Plaintiff relating to the above entities by June 1, 1999 or upon bankruptcy court approval, whichever is later. Defendants further agree that in the event they breach any of the terms of this paragraph, Plaintiff is entitled to immediately recover additional monetary damages, which the parties hereto stipulate shall be set at $30,000, plus an additional $5,000 per month starting October 1999 for each month the Defendants continue to be in default.
9. The parties hereto further agree and understand that this agreement is subject to bankruptcy court approval and contingent upon concurrent completion of Forbearance and Settlement and Mutual General Releases with Mr. & Mrs. Carto and Liberty Lobby.
10. Plaintiff, on the other hand, agrees to the above terms, and agrees to forbear from enforcement of the Stipulated Judgment for as long as Defendants are current on their payments. Plaintiff further agrees to notify the Swiss authorities of this settlement within thirty days of final bankruptcy court approval of this agreement.
11. Plaintiff and Defendants further agree to dismiss the Subject Lawsuits, with prejudice, once defendant makes all required payments, as set forth in attached Exhibit C.

Upon completion of the settlement terms, the parties, for themselves, their officers, directors, employees, members, heirs, executors, administrators and assigns, fully and forever release, acquit and discharge, with prejudice, each other, their employees, agents, attorneys, successors and assigns, and each of them, of and from any and all claims, demands, actions or causes of action which the parties, or any of them, may or might have by reason of any damages, general or special, or any injury or injuries whatsoever, sustained by the parties, or any of them, and occasioned directly or indirectly by the acts alleged in the Subject Lawsuits. Plaintiff further agrees to cancel the pending sale, but not release liens, on Defendants property upon completion of the above.

This settlement is intended as a full and complete release and discharge of any and all claims that the parties, or any of them, may or might have or had against each other by reason of the happening of such incidents. In accepting the sums and considerations set forth above, the parties do so in full settlement, release and discharge of any and all such claims and intend to and do hereby release and discharge all said persons, firms, associations, corporations or employees or agents of the same, of and from any and all liability of any nature whatsoever for all damages, general or special, or injury to the parties, or any of them, specifically including, but not limited to, all expenses to which the parties, or any of them, may have been put, any and all personal injuries, financial injuries, emotional distress and attorney’s fees, and all consequential damage to the parties, or any of them, on account of said conduct, as well as for all consequences, effects and results of such conduct and resulting damages, general or special, for injury to the parties, or any of them, whether the same or any circumstances pertaining thereto are now known or unknown to the parties, or any of them, or to anyone else, expected or unexpected by the parties, or any of them, or anyone else, have already appeared or developed or may now be latent or may in the future appear or develop or become known to the parties, or any of them, or to anyone else.

This mutual release does not apply to the parties ability to enforce the terms of this Forbearance and Settlement Agreement and Mutual General Release and Stipulated Judgment against a breaching party, nor does it apply to recovery of the Jack Graham Trust monies, the pending sanction motion against Mr. Joe A. Izen, Jr., Plaintiff’s claims against Judgment Debtor Henry Fischer, Plaintiff’s claims against Patrick Foetisch, or to future business dealings between the parties hereto, if any.

The parties hereto understand and agree that this Mutual General Release extends to all claims of every nature and kind whatsoever arising from the aforementioned action and facts, unless expressly excluded, and, in that regard, acknowledge that they have considered the provisions of Section 1542 of the California Civil Code which reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

The parties hereto hereby knowingly and voluntarily waive any and all rights they may have under Section 1542. The parties hereto fully understand that neither they nor any of their successors or assigns can hereinafter make any further claim or seek any further recovery from the parties or persons being released herein by reason of the facts and circumstances giving rise to the claims alleged in the aforementioned lawsuit.

The parties hereto agree forever to refrain and forbear from commencing, instituting or participating, either as a named or unnamed party, in any lawsuit, action or other proceeding against each other, whether brought by a party hereto, or by others on their behalf, based on or arising out of the above matters.

For the purpose of assuring each of the parties to this agreement that they shall not suffer or incur any losses, expenses, costs, liabilities or damages arising out of the assertion of any claims by any third person who claims by, through or under any such party to this agreement, or any claims, demands, causes of action, controversies, obligations or liabilities, intended to be released and forever discharged herein, the parties hereto represent and warrant that he, they or it is presently the sole and exclusive owner thereof, that no other party has any right, title or interest whatsoever in said causes of action or lien related to said causes of action, and other matters referred to herein, and that other than specifically set forth herein, there has been no equitable, implied or contractual assignment, transfer, conveyance or other disposition by him, them, or it of any said causes of action and other matters referred to herein. Each party to this agreement acknowledges that every other party to this agreement has relied and is relying on such representations and warranties by each and every party in entering into this agreement. Each party to this agreement agrees to defend and save, hold harmless and fully indemnify any other party from and against loss, lien, expense, cost, liability or damage incurred by any reason of the assertion by anyone claiming by, through or under such party of such claim, demand or cause of action which was, or could have been, alleged by such party in this action, or separate action, or which is released pursuant to the provisions herein contained.

The parties hereto hereby agree to execute such other documents and to take such other action as may reasonably be necessary to further the purposes of this agreement, including, if necessary, preparing and filing trust deeds, preparing and filing documents to confirm or enforce this agreement in any dissolution, probate or other legal proceedings, including any necessary declarations for determination of good faith settlements.

This agreement shall be governed by, construed and enforced in accordance with the laws of the State of California.

The parties hereto agree that this release is binding upon their heirs, successors, assigns, and legal representatives and that it inures to the benefit of the assigns, successors and legal representatives of each of the parties released herein.

In the event that any condition or covenant herein contained is deemed to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this agreement and shall in no way affect any other covenant or condition herein contained. If such a condition, covenant or other provision shall be deemed invalid due to scope or breadth, then such provisions shall be invalid to the extent and scope permitted by law.

No breach of any provision herein can be waived unless in writing. Waiver of any one breach shall not be deemed to be a waiver of any other breach of the same or any other provision hereof. This agreement may be amended only by another written agreement executed by the parties in interest at the time of the modification.

Any individual signing this agreement on behalf of another individual, a corporation or partnership, represents or warrants that he or she has full authority to do so.

Whenever required by the content hereof, the singular shall be deemed to include the plural and the plural shall be deemed to include the singular, and the masculine, feminine and neutral genders shall be deemed to include the others.

This agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and fully supersedes any and all prior understandings, representations, warranties and agreements between the parties hereto, or any of them, pertaining to the subject matter hereof, and may be modified only by a written agreement signed by all of the parties hereto.

The parties hereto, and each of them, represent and declare that in executing this agreement, they rely solely upon their own judgment, belief and knowledge, and the advice and recommendations of their own independently-selected counsel. Further, the parties hereto, and each of them, represent that they have had sufficient opportunity to consult with independent counsel about the terms and conditions of this agreement prior to executing this agreement.

The parties hereto, and each of them, further represent and declare that they have carefully read this agreement and know the contents thereof and that they signed the same freely and voluntarily.

This agreement may be executed in counterparts, each of which shall be an original but all of which shall constitute one and the same instrument.

If, for any reason, the defendant files for bankruptcy protection and if any of the settlement monies are required to be returned or the settlement terms are not yet completed, including but not limited to returning any portion of the settlement monies as a preference, fraudulent conveyance or as an other recoverable transfer under Title 11 of the United States Code (11 U.S.C. §§101-1330 of The Bankruptcy Code), all provisions of this settlement agreement providing that the amount specified in the agreement shall be accepted as full satisfaction, shall be deemed null and void, and the plaintiff shall be entitled to assert all of its claims against the debtor and the debtor’s estate for all damages and claims, including but not limited to any non-dischargeable claims in the bankruptcy, in the full amount sought with interest, costs and attorney fees, as provided by law, from the date of the agreement.

The parties, and each of them, agree that, as between the parties, each of them shall be responsible for paying his, her or its own costs and attorney’s fees. In addition, the parties, and each of them, agree that if they, or any of them, hereafter file a lawsuit or assert a defense, claim, counter-claim or cross-claim, arising out of, based upon, or relating to the matters covered by this release or any provision, term or covenant contained in this release, the prevailing party in such suit or action shall be entitled to receive, in addition to compensation for any other damages sustained, any and all reasonable attorney’s fees and costs incurred by that party in litigating, defending or otherwise responding to such suit or action.

San Diego County shall be the proper venue to enforce the provisions of this settlement agreement, the provisions of the stipulation concerning the payment of funds, and the stipulation concerning the enforceability of this agreement.

AGREED TO BY:

Legion for the Survival of Freedom
DATED: 8/2/99 By: Greg Raven, President

DATED: 7/17/99 By:Willis Carto, an Individual

DATED: 7/21/99 By: Elisabeth Carto, an Individual

DATED: 7/26/99 By: Lewis Furr, an Individual

DATED: 7/26/99 By: Lavonne Furr, an Individual

Liberty Lobby
DATED: 7/29/99 By: Vince Ryan, Chairman

APPROVED AS TO FORM:

SAMPSON & ASSOCIATES
DATED: 8/2/99 By: Bryan D. Sampson, Esq., Attorney for Plaintiff

J. BRIAN URTNOWSKI & ASSOCIATES
DATED: 7/20/99, 7/27/99, 7/28/99 By: J. Brian Urtnowski, Esq., Attorney for Defendants