ORDER AND OPINION GRANTING TRUSTEE'S MOTION TO ENFORCE SETTLEMENT BUT DENYING RELIEF REQUESTED

BEN BARRY, Bankruptcy Judge.

On April 3, 2013, Richard L. Cox, the chapter 11 trustee appointed in this case, filed his Motion to Enforce Settlement Agreement and Compel Arvest Bank's Delivery of Documents [Motion to Enforce], seeking the enforcement of a settlement agreement between Arvest Bank [Arvest]; Robert and Julia Griffin [Griffin]; and four of Griffin's companies: Stinson, Inc. [Stinson], The Plantation, LLC [Plantation], Sabram Estates West, LLC [Sabram Estates West], and Silver Leaf East, LLC [Silver Leaf East] [collectively with Griffin referenced as the debtors].1 On May 10, 2013, Arvest filed a response that incorporated by reference an objection that it had filed previously in response to the debtors' January 27, 2012 motion to enforce. Both the trustee and Arvest requested attorneys fees and costs in relation to the Motion to Enforce. The Court held a hearing on the Motion to Enforce that began on November 6, 2013, and concluded on December 9, 2013. On both dates, Thomas S. Streetman appeared on behalf of the trustee, and Jackie L. Hill, Jr. and Ruston C. Welch appeared on behalf of Arvest. At the conclusion of the hearing on December 9, 2013, the Court instructed the parties to file post-trial briefs in lieu of closing arguments and took the matter under advisement. For the reasons stated below, the Court grants the trustee's Motion to Enforce the parties' settlement agreement, but denies the relief requested by the trustee.

Background

On July 6, 2010, Griffin filed this chapter 11 bankruptcy case. Approximately two months later (on various dates in September 2010), Plantation, Stinson, Sabram Estates West, and Silver Leaf East [the LLC debtors] (along with ten other companies also owned by Griffin), filed chapter 11 bankruptcy cases. Prior to the debtors filing their respective chapter 11 cases, Arvest had obtained state court judgments against Plantation, Stinson, and Sabram Estates West. On October 29, 2010, the Court modified the automatic stay in the LLC debtors' cases to require the LLC debtors to make monthly payments to Arvest by the 7th day of each month [the For Cause payments] because the debtors had frustrated Arvest's collection efforts.2 The Court ordered the For Cause payments to commence on December 7, 2010, and continue until plans of reorganization were confirmed. The Court specified that if the debtors failed to timely make any of the For Cause payments, Arvest would be entitled to again file motions for relief that, barring unusual circumstances, the Court would grant.

None of the debtors ever filed plans of reorganization. On August 4, 2011, Griffin, the LLC debtors, and Arvest entered into a two-page settlement agreement [Settlement Agreement].3 The Settlement Agreement, reproduced in its entirety below with the exception of the parties' signatures, provided as follows (emphasis added by the Court):

Arvest Ex. 25 at R. 823-26.5 On August 16, 2011, Arvest filed Second Motion[s] for Relief from the Automatic Stay and for Abandonment of Real Property and Brief[s] in Support [Second Motions for Relief] in each of the LLC debtors' cases because the LLC debtors had failed to make their August 7, 2011 For Cause payment as ordered by the Court on October 29, 2010. Also on August 16, 2011, Arvest filed a motion seeking the Court's approval of the settlement between Arvest and the debtors [Motion to Approve Compromise], thereby effectuating paragraph 9 of the Settlement Agreement (stating that the agreement was binding on all parties subject to Court approval "pursuant to a Compromise Motion, in form acceptable to all parties hereto").6 In its Motion to Approve Compromise, Arvest specified that the debtors would execute warranty deeds (rather than the quitclaim deeds that were referenced one time in the Settlement Agreement at paragraph 4), added language to relieve the debtors of responsibility for ad valorem real estate taxes, and clarified and summarized the terms of the Settlement Agreement as follows:

R. 831-35. In addition to seeking the Court's approval of the Settlement Agreement in the Motion to Approve Compromise, Arvest moved the Court to enforce the settlement and prior orders, to modify the automatic stay, and to allow the debtors to transfer the properties specified in the Settlement Agreement to Arvest free and clear of any liens or encumbrances (excluding ad valorem tax liens) under 11 U.S.C. § 363(b) and (f). On October 13, 2011, Welch (co-counsel with Hill for Arvest) emailed to Derrick Davidson (counsel for Griffin and former counsel for the LLC debtors) a proposed order approving the Motion to Approve Compromise for his review and comments. R. 1071. By separate email on the same day, Welch told Davidson,

R. 1074. On October 14, 2011, Davidson responded to Welch by email and stated that

R. 1080. The same afternoon, Welch responded to Davidson's concerns through two emails, the first sent approximately fifteen minutes after Davidson expressed the above reservations about the proposed order. Welch's first email to Davidson, stated, in part:

R. 1079. Welch's second email to Davidson, sent approximately one hour after his first, stated:

R. 1078. Arvest subsequently submitted to the Court a proposed order approving the Motion to Approve Compromise that was signed by counsel for all parties to the Settlement Agreement. On October 17, 2011, the Court entered an order approving the Motion to Approve Compromise [the Agreed Order Approving Compromise]. R. 1046. The Agreed Order Approving Compromise granted the Motion to Approve Compromise "in all respects," and approved the Settlement Agreement "it its entirety," thereby incorporating into the parties' settlement the terms contained in both the August 4, 2011 Settlement Agreement and the Motion to Approve Compromise.

The Agreed Order Approving Compromise "authorized and directed" Plantation, Silver Leaf East, Sabram Estates West, and Stinson to execute and deliver warranty deeds conveying property specified in the Settlement Agreement to Arvest [the subject properties]. The Agreed Order Approving Compromise also "authorized and directed" Griffin to cause East Hills (a non-debtor company owned by Griffin) to execute a warranty deed conveying the Fawn Trail property to Arvest and deliver the deed into escrow as dictated by the Settlement Agreement. The Agreed Order Approving Compromise specified that:

R. 1046 (emphasis added). The Agreed Order Approving Compromise stated that the transfers of real and personal property authorized by the order "shall be free and clear of any and all liens, claims and encumbrances of any third parties pursuant to 11 U.S.C. §§ 363(b) and (f)." The Agreed Order Approving Compromise provided:

R. 1049-50 (emphasis added). On October 21, 2011, Welch emailed Davidson that:

R. 1091. On October 24, 2011, Welch again emailed Davidson requesting a date for closing and the legal description for the 5 acre carve out promised by Griffin. On October 25, 2011, Davidson responded that he had not yet received the information from Griffin. On October 31, 2011, Welch sent Davidson a detailed letter by email, attaching the five warranty deeds, the releases, and the consent judgments that Arvest had prepared to close the settlement agreement. R. 1096. The October 31 letter stated, in part:

R. 1096-97.9 On November 3, 2011, Welch again emailed Davidson, summarizing his letter of October 31, 2011, and stating, in part, that:

R. 1100. Late in the day on November 3, Davidson emailed Welch to convey that he had been out of town and to assure Welch that he would get to the Griffin matter the next day. R. 1104. Welch responded within fifteen minutes, stating:

R. 1103. On November 4, 2011, Davidson emailed Welch to preliminarily address his concerns that

R. 1109. On November 7, 2011, Welch emailed Davidson that he would

R. 1108. The same day, Davidson responded that he and Griffin continued to work on a more detailed response to Arvest's proposed settlement documents. R. 1107. On November 8, 2011, Welch emailed Davidson, stating:

R. 1114. The next day, on November 9, 2011, Davidson emailed Welch and Hill with a litany of perceived issues with the closing documents. R. 1117-20. Welch responded on November 14, 2011, first restating and then addressing each issue raised by Davidson, as follows, in relevant part:

R. 1125-29. At the end of Davidson's November 9 email, he proposed the following "alternative to trying to work through the issues related to the documentation you sent":

R. 1119. Welch responded to Davidson's "alternative" proposal at the end of his November 14 email to Davidson, stating:

R. 1130. After addressing each of Davidson's concerns regarding the closing documents, and rejecting Davidson's alternative proposal, Welch stated that he had attached "the FINAL version of the closing documents," and reiterated that Griffin was to execute and deliver all of the documents with the first cash payment of $404,701.83 before 5:00 p.m. on Wednesday, November 16, 2011.10 R. 1131.

On November 15, 2011, Davidson emailed Welch and Hill and (in inexplicable disregard for Arvest's detailed response stating that it would not agree to Davidson's alternate settlement terms) declared that:

R. 1133. After the parties engaged in two conference calls that failed to resolve the remaining issues, Welch sent an email to Davidson stating:

R. 1148. Welch sent another letter to Davidson on November 17, 2011, again explaining that Arvest had negotiated for warranty deeds under the Court-approved settlement agreement. Welch explained to Davidson that Arvest was not interested in further litigation with Griffin in the form of foreclosure actions if the debtors had created or permitted encumbrances or other title defects on the properties to be conveyed under the settlement agreement since the debtors had filed their respective bankruptcies. Welch stated:

R. 1152. Welch ended the letter by advising Davidson that if the documents were not timely delivered on Friday, November 18, Arvest would file a motion to compel that same day. Davidson called Welch after 2:30 p.m. on November 18 to advise that he could not reach Griffin. Welch conveyed to Davidson that Arvest was going forward with the motion to compel, but because "Arvest wants this matter done and behind us all," Arvest was willing to provide its title reports and commitments to Davidson and would allow Griffin five business days to remove any non-excluded encumbrances on the subject properties. Arvest made its offer to provide its title reports and commitments to Davidson contingent upon Griffin agreeing to close by noon on Tuesday, November 22, 2011, deliver a Phase I environmental affidavit, and pay Arvest $15,000.00 in settlement of the attorneys fees that the Court had ordered the LLC debtors to pay Arvest in relation to Arvest's Second Motions for Relief. Welch reminded Davidson that Arvest had offered Griffin a $56,000.00 reduction of the amount that the debtors owed under settlement agreement (by crediting the debtors' For Cause payments against the cash component of the settlement agreement) and reminded Davidson that Arvest "wants all matters resolved for good." R. 1154.

On November 18, 2011, Arvest filed its Motion to Compel Delivery of Documents and Enforcement of Settlement Agreement [Arvest's motion to compel]. R. 1529. In its motion to compel, Arvest stated that the debtors were in default under the terms of the settlement agreement because they had failed to execute the warranty deeds, consent judgments, and releases required by the agreement. Arvest asked the Court to compel the debtors to execute and deliver to Arvest the bargained-for documents. Arvest also argued in its motion to compel that it was entitled to consent judgments under the settlement agreement because the consent judgments were to be enforceable against Griffin in the event that Griffin "[does] not fully perform ALL terms of the Settlement Agreement." Arvest argued that "the consent judgments give Arvest further relief against Mr. Griffin if he fails and refuses to close under the Settlement Agreement and attempts, as he is now doing, to renegotiate the terms." R. 1536 (emphasis added).

On November 23, 2011, Davidson filed the debtors' response to Arvest's motion to compel, and urged the Court to "intervene on Debtors' behalf" to require

R. 1573-74. On December 7, 2011, the Court held a hearing on Arvest's motion to compel. During the December 7 hearing, the Court told the parties that the settlement needed to be done based upon the parties' agreement. R. 1655. The Court further stated that "I can understand the frustration of the bank, thinking they have a deal, and for whatever reason, it gets delayed." R. 1655. In response to the debtors' assertion that the consent judgments were no longer necessary, the Court stated that "the consent judgment goes to everything" and that "it was to be provided for all matters, not just payment of money. It was to be for the performance of the whole agreement." R. 1656. In relation to Davidson's argument that Arvest was harassing Griffin despite his recent heart procedures and hospitalization, the Court stated that "I realize Mr. Griffin has been ill and that's some part of the problem, but the way I see the other part of the problem is not agreeing to the form of the documents. And that is something not as a result of Mr. Griffin's illness." R. 1629. Before taking the matter under advisement, the Court rhetorically inquired of the parties

R. 1657. The Court also reminded the debtors that they had made this deal with Arvest, Arvest was now wanting the deal enforced, and that it seemed to the Court as if the debtors were attempting to negotiate with the Court regarding what they were and were not willing to do under the previously approved settlement agreement. R. 1658. In response to Davidson's question to the Court asking why Arvest needed consent judgments if the settlement agreement was fully performed, the Court stated that Arvest was entitled to the consent judgments because they were part of the agreement that Arvest had bargained for. R. 1658.

In an oral ruling on December 12, 2011, the Court granted Arvest's motion to compel. In its December 12 ruling, the Court ordered Griffin to execute and deliver to Arvest the warranty deeds, consent judgments, and releases required by the settlement agreement by noon on December 16.12 The Court stated that "these were all required by the Court's order of October 17th, which was approved by debtors' counsel." R. 1668. The Court reiterated that "these are things that really should have been executed before now and should not have required Court intervention." R. 1668. The Court acknowledged that the case was complicated and that some delays in closing could be attributed to Griffin's illness, but stated that "there was some other delay, as well, and I think to a large degree it was as a result of Mr. Davidson trying to tweak the documents or renegotiate aspects of the deal. Maybe it was Mr. Griffin, as well." R. 1669-70.

In declining to award Arvest the attorney fees associated with filing its motion to compel, the Court acknowledged Davidson's argument that he was confused by references to both warranty and quitclaim deeds in the August 4, 2011 Settlement Agreement, but pointed out that "that was really resolved by and trumped by the Court's order which required the warranty deeds." R. 1670. The Court stated that to the extent Griffin was concerned that he could not warrant title free of claims and encumbrances, he had already been afforded sufficient time to perform the necessary title work. The Court then instructed Griffin to obtain any title work he deemed necessary before the December 16 deadline imposed by the Court for the debtors' delivery of documents. The Court explained to Griffin that he was required to provide consent judgments to Arvest because "that was the agreement." R. 1671. The Court also stated that the settlement agreement "appears to be a good deal for all involved. So, it needs to be enforced and everyone needs to go on down the road." R. 1671.

Griffin delivered the warranty deeds, consent judgments, and releases to Arvest by December 16 in compliance with the Court's order. On December 18, 2011, Davidson emailed Hill and Welch to ask when Arvest would be withdrawing its claims in the bankruptcy cases, filing satisfactions of the consent judgments, and returning the deed to the Fawn Trail property "as all terms of the settlement agreement have now been performed by Mr. and Mrs. Griffin, Silver Leaf East, LLC, Sabram Estates West, LLC and The Plantation, LLC." R. 1678. On December 19, 2011, Hill responded by email that Arvest did not yet acknowledge full performance by the debtors and stated, specifically, that Griffin had not paid the full cash amount due under the settlement agreement. Because the debtors had not performed by any of the closing dates that Arvest had proposed in November, resulting in Arvest being required to seek an order from the Court to procure the documents to which it was entitled, Arvest declined to extend to the debtors the previously-offered credit for the For Cause payments against the cash component owed under the settlement agreement. However, Griffin had deducted the $70,524.50 credit from the cash amount due under the settlement agreement.

Hill told Davidson that Griffin had to make the full cash payment under the settlement agreement by January 17, 2012. On December 19, 2011, Davidson emailed Hill and Welch asking them to "confirm to me by the end of business tomorrow, December 20, 2011, that Arvest agrees that the Debtor parties to the Settlement Agreement have satisfied the terms of the Settlement Agreement and provide satisfactions of the Consent Judgment and return the Fawn Trail deed; otherwise, I will be filing a Motion to Compel Arvest to comply with the terms of the Settlement Agreement." R. 1687. Arvest responded through an email from Hill to Davidson, stating that Arvest did not believe the debtors had grounds to go back to the Court and it was Arvest's preference not to do so. Arvest told Davidson that "Arvest is giving the Debtors the full time they have to perform (Jan. 17, 2012). Then we will proceed under the Settlement Agreement contract, and prior express orders. It is that simple." R. 1689.

The debtors filed their Motion to Compel Arvest Bank's Delivery of Documents and Enforcement of Settlement Agreement on December 20, 2011. In the debtors' motion to compel, they asked the Court to enter an order requiring Arvest to:

R. 1729. On January 9, 2012, Arvest responded to the debtors' motion to compel. Arvest argued in its response that "the Debtors seek enforcement of extraneous terms attempted to be negotiated but not contained in the Settlement Agreement or Court's Order approving the Settlement Agreement. The Debtors have repeatedly attempted to re-negotiate the Settlement Agreement...." R. 1742. On January 13, 2012, the Court issued an oral ruling denying Griffin's motion to compel. The Court found that Arvest had made a conditional offer to give the debtors credit under the settlement agreement for the For Cause payments that had become due after the execution of the August 4, 2011 Settlement Agreement. The Court found that Arvest had extended the conditional offer in an effort to motivate the debtors to finalize the settlement, but that Arvest was not required to make such a gift and was not bound by its offer because the debtors had not met the conditions that Arvest had placed on receiving the credit.13 The Court again instructed the parties to abide by the terms and conditions of the total settlement agreement. R. 1866.

On January 13, 2012, Davidson emailed Hill and Welch to advise them that Griffin would pay the remaining $70,524.50 due under the settlement agreement to Bill Staed by Tuesday, January 17, 2012, and asked that Hill and Welch "direct Mr. Staed to deliver the deed to the Fawn Trail property to Mr. Griffin at the time Mr. Griffin delivers the subject cashier's check to Mr. Staed."14 R. 1869. Davidson also directed Hill and Welch to proceed with releasing Arvest's claims in the bankruptcy cases and filing satisfactions of the consent judgments. On January 16, 2012, Hill sent a letter by email to Davidson, stating, in part, that Arvest was not in agreement that Griffin had fully performed and

R. 1871-72. Arvest gave the debtors until 2:00 p.m. on January 17, 2012, to accept the offer. On January 16, Davidson emailed Hill to express his opinion that the debtors had fully complied with the settlement agreement and to ask what Arvest believed the debtors had failed to do under the agreement. Hill emailed Davidson at 10:58 a.m. on January 17 to advise him that

R. 1887. The debtors did not take advantage of the offer outlined in Hill's January 16 letter. Hill emailed Davidson the next day to reiterate that "Arvest does not acknowledge timely and full performance of the Settlement Agreement by the Debtors and other Griffin entities who were parties thereto."

On January 27, 2012, Davidson filed the debtors' Second Motion to Compel Delivery of Documents and Enforcement of Settlement Agreement, asking the Court to force Arvest to state specifically its basis for disagreeing with Davidson's assertion that the debtors had fully and timely complied with the settlement agreement and further requesting that the Court order Arvest to release its claims in the bankruptcy cases, file satisfactions of the consent judgments, and return to Griffin the deed to the Fawn Trail property. R. 1874-79. Arvest responded to the debtors' second motion to compel by alleging the ways in which it believed that the debtors had failed to fully and timely perform under the settlement agreement, resulting, in Arvest's view, to its entitlement to the remedies provided in the agreement.

Specifically, Arvest alleged that the debtors had breached the requirement to "fully and timely" perform because the debtors failed to deliver the documents and the entire cash sum required by the settlement agreement of their own volition. Rather, Arvest argued, the debtors performed belatedly, partially, and only "under coercion of further orders of the Court" despite the language in the Agreed Order Approving Compromise that stated:

R. 1895 (emphasis Arvest's). Arvest also alleged that the properties that Griffin had conveyed on behalf of the LLC debtors by warranty deed were subject to numerous title defects despite the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, the Agreed Order Approving Compromise, and the warranty deeds themselves requiring the debtors to convey clear title to Arvest. R. 1897.15 Arvest alleged defective titles based upon the existence of: (1) "weed liens" on the Silver Leaf East property incurred in November 2011; (2) a mortgage held by Stinson on the Sabram Estates West property; and (3) clouds on the title to the Plantation property created by a defective acknowledgment and a missing release of dower clause on a warranty deed executed by Shirley and Kurt Berliner [the Berliner deed]. On February 15, 2012 (at a hearing on Arvest's and Bancorp South's respective objections to the debtors' proposed settlement with First American Bank), the Court directed the parties to try to resolve the outstanding issues impeding the finalization of the settlement agreement and report to the Court within 21 days the status of settlement efforts. On March 8, 2012, the parties filed separate reports indicating that little, if any, progress had been made toward resolving the outstanding issues under the settlement agreement.

On March 13, 2012, the Court issued an order to show cause why the Court should not order the appointment of chapter 11 trustees in these cases (and continuing the hearing on the debtors' second motion to compel). On April 12, 2012, Arvest filed a response to the Court's order to show cause and independently moved to appoint chapter 11 trustees. The Court commenced the show-cause hearing on April 12, 2012, and at Davidson's request, continued and concluded the hearing on June 6, 2012. On June 8, 2012, the Court orally ruled that the appointment of trustees was warranted but that the debtors could avoid the appointment of trustees if they strictly complied with conditions imposed by the Court within 30 days. As part of its June 8 oral ruling, the Court ordered Arvest to inform Griffin within 7 days what Arvest believed the debtors were required to do in order to consummate the settlement agreement and resolve any additional outstanding matters between the parties. The Court ordered Arvest and Griffin to negotiate in good faith toward a final and permanent resolution of all matters still in controversy. Once again, negotiations foundered. On July 11, 2012, the Court entered an order appointing trustees.

Summary of Trustee's Argument and Arvest's Response

On April 3, 2013, the trustee appointed in this case filed the Motion to Enforce the debtors' settlement with Arvest that is now before the Court. The trustee argues that the debtors timely and fully performed their obligations under the settlement agreement, or, in the alternative, that the debtors substantially performed their obligations under the settlement agreement and that substantial performance is sufficient to obligate Arvest to release the Fawn Trail deed back to Griffin, withdraw its proofs of claim in the bankruptcy cases, and file satisfactions of the consent judgments in the state court foreclosure actions. Arvest contends in response that the debtors performed their obligations under the settlement agreement belatedly, partially, and only after the Court entered additional orders compelling them to do what they should have already done voluntarily under the settlement agreement, namely — deliver the documents and pay the entire amount of cash specified under the agreement. Arvest also argues as a basis for the debtors' default that some of the properties that the debtors transferred to Arvest were not free and clear of liens and encumbrances as required by the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, the Agreed Order Approving Compromise, and the warranty deeds themselves. Arvest contends that the doctrine of substantial compliance advanced by the trustee is applicable only in construction cases and is inapposite to the situation before the Court.16

Findings of Fact and Conclusions of Law

"`Settlement agreements are generally construed according to the principles of contract law.'" Fanning v. Potter, 614 F.3d 845, 848 n. 2 (8th Cir.2010) (quoting Myers v. Richland Cty., 429 F.3d 740, 749 (8th Cir.2005)). Contracts are ordinarily interpreted according to state law. Id. Unless a party raises a choice-of-law claim, the law of the forum state (in this case, Arkansas) applies. Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir.2010).

To resolve the trustee's Motion to Enforce the debtors' settlement agreement with Arvest, the Court must first determine whether the debtors complied with a recurrent provision in the parties' settlement agreement that specifically required the debtors to both timely and fully perform in order to be entitled to Arvest's performance.17 If the Court finds in its initial inquiry that the debtors did not timely and fully comply with the terms of the settlement, the Court must then determine whether the application of the doctrine of substantial compliance is appropriate in this case. If the Court finds that the debtors failed to perform their obligations (either timely and fully, or — if the doctrine applies — substantially), the Court, finally, must determine whether it may equitably annul Arvest's contractual remedies under the settlement agreement.

As a preliminary matter, the Court finds that the settlement agreement reached by the debtors and Arvest encompasses the terms contained in three documents that refer to and incorporate one another: the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, and the Agreed Order Approving Compromise. See Ingersoll-Rand Co. v. El Dorado Chem. Co., 373 Ark. 226, 283 S.W.3d 191, 196 (2008) ("When a contract refers to another writing and makes the terms of that writing a part of the contract, the two documents become a single agreement between the parties and must be construed together.") Paragraph 9 of the August 4, 2011 Settlement Agreement stated that the agreement was binding on the parties to the agreement subject only to Court approval "pursuant to a Compromise Motion, in form acceptable to all parties hereto." The Motion to Approve Compromise incorporated the August 4, 2011 Settlement Agreement by reference, added and clarified terms, and provided that, in the event of a conflict between a term in the Motion to Approve Settlement and a term in the August 4, 2011 Settlement Agreement, the August 4, 2011 Settlement Agreement controlled. The Court's entry of the Agreed Order Approving Compromise (signed by the parties' respective counsel) made the parties' settlement (as contained in both the August 4, 2011 Settlement Agreement and the Motion to Approve Compromise) enforceable pursuant to Federal Rule of Bankruptcy Procedure 9019(a). Am. Prairie Constr. Co. v. Hoich, 594 F.3d 1015, 1024 (8th Cir.2010) (in the context of a chapter 11 case, a settlement is not enforceable until the court approves it).

I. Timely and full performance under the Settlement Agreement

When interpreting a contract under Arkansas law, a court is to give the language employed by the parties the meaning that the parties intended. Singletary v. Singletary, No. CV-13-587, ___ S.W.3d ___, ___, 2013 WL 6504746, 2013 Ark. Lexis 608, at *10 (Ark. Dec. 12, 2013) (citing Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424, 429 (2007)). A court is to "consider the sense and meaning of the words used by the parties as they are taken and understood in their plain and ordinary meaning" and gather the intention of the parties "from the whole context of the agreement." Id. In determining the parties' intent regarding the meaning of their contract, courts may afford considerable weight to the "subsequent statements, acts, and conduct" of the parties themselves. Id. (citing Rockefeller v. Rockefeller, 335 Ark. 145, 980 S.W.2d 255 (1998)). Therefore, the Court will give the language of the settlement agreement the meaning that the parties' intended by examining the plain and ordinary meaning of the words that they chose to designate the debtors' "timely" and "full" performance within the full context of their agreement. In evaluating what the parties intended for the words of their agreement to mean, the Court may also be guided by the parties' statements, acts, and conduct after entering into the agreement.

The settlement agreement was executed by Arvest and the debtors in the context of an increasingly adversarial relationship that had evolved over many years spent opposing one another in expensive and futile litigation as Arvest endeavored (both before and after the debtors filed their respective bankruptcies) to collect millions of dollars that Griffin and the LLC debtors owed to it, while Griffin, in turn, executed largely successful strategies designed to forestall Arvest's collection efforts.18 Bill Staed testified that Arvest reached the settlement with the debtors in order to quickly and finally disentangle Arvest from Griffin while recouping a portion of the money that Arvest had been unable to collect since prior to the debtors filing their bankruptcies. Mot. To Enforce Hr'g Tr. vol. I, 161, Nov. 6, 2013. Staed testified that extricating Arvest from Griffin was a major component of the settlement agreement from Arvest's perspective. Staed further testified that "the bank wanted to be done. I've said that before, I'll say it again. We wanted to be finished. We wanted out. Enough. That's all we wanted." Mot. To Enforce Hr'g Tr. vol. II, 247-48, Dec. 9, 2013. Staed also testified that Arvest desperately wanted the litigation expenses associated with Griffin to come to a conclusion, and that Arvest was willing to walk away from more than three million dollars to accomplish that goal. Mot. To Enforce Hr'g Tr. vol. II, 247-48, Dec. 9, 2013.

In order to effectuate Arvest's goal of promptly and permanently parting ways with the debtors, the parties' two-page August 4, 2011 Settlement Agreement contained no fewer than five reiterations of the single prerequisite that the debtors had to fulfill in order to trigger Arvest's obligations under the agreement to deem satisfied any remaining deficiencies, withdraw its claims, and release the Fawn Trail property back to Griffin: the debtors had to timely and fully perform their end of the bargain first. Conversely, the Settlement Agreement provided that, if the debtors did not meet this prerequisite, Arvest would be entitled to pursue its proofs of claims, collect any remaining deficiencies, and retain the Fawn Trail property. The debtors' obligation to fully and timely perform the terms of the settlement in order to reap the benefit offered by Arvest (while simultaneously precluding Arvest's entitlement to the agreed-upon remedies) was repeated in the Motion to Approve Compromise and in the Agreed Order Approving Compromise that referenced Arvest's ability to "exercise all remedies as set forth in the Settlement Agreement if the Debtors do not timely and fully consummate the Settlement Agreement."

A. Timely performance

In an anomalous display of accord, the trustee and Arvest agree on two foundational issues: first, that the settlement agreement provided two specific time frames within which the debtors had to make cash payments to Arvest (and that the debtors timely made those payments); second, that the settlement agreement did not similarly specify the time frame within which the debtors were required to deliver to Arvest the warranty deeds, consent judgments, and release [collectively, the documents]. The trustee argues that because the settlement agreement was devoid of a specific time frame for the debtors to deliver the documents to Arvest, the debtors delivered them timely on December 16, 2011, in compliance with the Court's December 12, 2011 order granting Arvest's motion to compel. Arvest, obviously, disagrees.

1. Transfers of property

Although the settlement agreement did not provide a specific date by which the debtors were required to transfer the subject properties to Arvest, paragraphs 10.1 through 10.5 of the Motion to Approve Compromise stated that "upon approval" each LLC debtor (and one non-debtor company owned by Griffin) will "transfer by warranty deed" certain property to Arvest "free and clear of any liens, claims and encumbrances of any third parties pursuant to 11 U.S.C. § 363(b) and (f), excepting only for: (i) ad valorem real estate taxes."19 R. 812-13. Merriam-Webster defines "upon" (by reference to the definition for "on") as "during or at the time of." Merriam-Webster's Collegiate Dictionary (11th ed. 2012). The Oxford American Dictionary defines "upon" as "exactly at, during." Oxford American Dictionary (1980). Because Arvest does not contend that the debtors were required to instantaneously transfer the properties to Arvest at the precise moment of the Court's approval of the settlement agreement (nor does the Court imagine such a feat would have been possible), the Court will examine what the parties intended for "upon" to mean within the context of their entire agreement. Specifically, the Court will look to the four corners of the parties' agreement (as memorialized in the August 4, 2011 Settlement Agreement, Motion to Approve Compromise, and Agreed Order Approving Compromise) to ascertain whether the parties intended for the debtors to transfer the properties to Arvest before, after, or concurrently with the performance of the debtors' other obligations under the agreement (particularly those upon which the parties did impose explicit deadlines).

The parties agree that the debtors had to make the first cash payment to Arvest within 30 days of the Court's October 17, 2011 approval of the settlement and the second within 90 days of the Court's approval (unless Griffin could not come up with the funds for the second payment, in which case the parties had agreed that Arvest would retain the Fawn Trail property in lieu of the last payment). As noted above, the Motion to Approve Compromise provided that "upon" Court approval, the debtors "will transfer" the subject properties by warranty deed. In contrast to the "upon approval" language governing the debtors' transfers of property to Arvest in paragraphs 10.1 through 10.5 of the Motion to Approve Compromise, paragraph 10.6 of the Motion to Approve Compromise (addressing cash payments) states that "following approval" Griffin will make the cash payments according to the timing schedule set forth in the Settlement Agreement." The word "following" is defined as "that comes after or next in order of time." Id. Based upon the plain meaning of the language chosen by the parties and viewed within the context of the entire agreement, the Court finds that the parties intended for the debtors to transfer the subject properties as near to the Court's October 17, 2011 approval of the settlement as practicable, but, in any event, before the expiration of the 30 day clock that the parties had imposed upon the delivery of the first cash payment to Arvest that commenced running on October 17, 2011, and ended on November 16, 2011. Therefore, the Court finds that the debtors were required to execute and deliver the warranty deeds to Arvest by November 16, 2011, in order to timely transfer the subject properties to Arvest under their agreement.

The Court's interpretation of the parties' intended sequence of events under the settlement agreement is reinforced by the parties' communications regarding the debtors' delay in transferring the properties to Arvest after the Court entered the Agreed Order Approving Compromise on October 17, 2011. Although the settlement agreement did not state which party was responsible for drafting the deeds transferring the subject properties to Arvest, evidently the parties agreed that Arvest would do so with Griffin's assistance in providing certain legal descriptions. On October 31, 2011, Welch first sent Davidson a proposed set of warranty deeds (without the benefit of the legal descriptions that Griffin was supposed to provide to Arvest). Welch received no response from Davidson regarding the proposed deeds until after Welch emailed Davidson on November 3, 2011, to express Arvest's disappointment in the debtors' lack of response to the proposed documents, and to seek confirmation from Davidson that the debtors "were not willing to timely perform under the Settlement Agreement, now 16 days after the entry of the Order." R. 1100. Welch warned Davidson that if the debtors failed to transfer the properties by November 7 (a date that was more than a week prior to the deadline for the first cash payment), Arvest would declare the debtors to be in breach of the settlement agreement. Davidson responded the next day, and, notably, did not argue that it was too early for Arvest to properly declare a breach based upon the debtors' failure to have transferred the properties by that point in time. Rather, he asked Arvest to be patient. R. 1104. The next day, November 4, 2011, Davidson requested minor corrections to the warranty deeds (that Welch immediately agreed to make), and asked Arvest to "bear with him." R. 1109.

Apparently, a few days later the debtors experienced a change of heart regarding their agreement to execute warranty (rather than quitclaim) deeds, further delaying the debtors' transfer of the properties to Arvest. On November 8, 2011, Welch questioned Davidson regarding why Griffin had contacted Staed directly and stressed to Davidson that "there is nothing further for the parties to discuss in this matter and we need to complete the documentation, execute and deliver the documents. We are waiting on you." R. 1114. On November 9, 2011, Davidson informed Arvest that Griffin would not agree to execute warranty deeds (as specified in paragraphs 1, 2, and 3 of the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, and the Agreed Order Approving Compromise — signed and approved by Davidson) because paragraph 4 of the August 4, 2011 Settlement Agreement made a single reference to quitclaim deeds. Davidson also argued to Welch on November 9 that quitclaim rather than warranty deeds were necessary "[b]ecause certain lots and tracts of the subject subdivisions have been transferred through the years, Mr. Griffin simply cannot warrant good title to the subject properties without having to get extensive title work and insurance to verify what remains that he would be warranting title to."20 At the conclusion of Davidson's November 9 email, he attempted to substantially renegotiate the settlement agreement with Arvest to obtain terms more favorable to the debtors. Welch responded to Davidson on November 14, patently rejecting the debtors' attempts to renegotiate the deal, and attaching the "FINAL" version of the closing documents. Welch conveyed to Davidson that the debtors were to deliver all documents (including the warranty deeds) with the first cash payment no later than 5:00 p.m. on November 16, 2011-the 30th day after the Court approved the settlement. When the debtors missed the November 16 deadline, Arvest offered the debtors a brief extension (to November 18, 2011, at 2:30 p.m.) to timely deliver the documents.21 To their detriment, the debtors chose not to take advantage of the reprieve offered by Arvest, and Arvest proceeded with its motion to compel.

For the above-stated reasons, the Court finds that, although the debtors eventually transferred the subject properties to Arvest by warranty deeds on December 16, 2011 — one month after the November 16 deadline and pursuant to the Court's December 12, 2011 order compelling them to do so — they did not timely perform their obligation under the settlement agreement to timely do so.22

2. Delivery of releases

Paragraph 10.7 of the Motion to Approve Compromise governs the debtors' duty to release Arvest "as specified in the Settlement Agreement." Paragraph 8 of the August 4, 2011 Settlement Agreement provides that "[e]ffective on Bankruptcy Court [a]pproval," the debtors shall unconditionally release Arvest from any and all claims of any kind. "On" (synonymous with the word "upon" used in paragraphs 10.1 through 10.5 of the Motion to Approve Compromise), means "at the time of." Merriam-Webster's Collegiate Dictionary (11th ed. 2012). Therefore, the Court finds that the parties' use of the phrase "[e]ffective on Bankruptcy Court [a]pproval" signifies that the debtors were to provide the releases to Arvest as near to "at the time" of Court approval as possible. Arvest provided Davidson with drafts of the releases on October 31, 2011. Although Davidson never voiced any issues or problems with the language of the releases, the debtors did not deliver them to Arvest until December 16, 2011, and then only after the Court ordered them to do so on December 12, 2011. Therefore, the Court finds that the debtors did not timely deliver the releases.

3. Delivery of consent judgments

Paragraph 10.9 of the Motion to Approve Compromise governs the debtors' obligation to provide consent judgments to Arvest by incorporating the "various other terms and conditions of the compromise" as contained in the August 4, 2011 Settlement Agreement. Paragraph 5 of the August 4, 2011 Settlement Agreement addressed the consent judgments, stating that "if Griffin does not timely perform according to this agreement and satisfy any payments required herein, Arvest shall be entitled to immediately present confessed judgments for entry in the State Court Actions...." As the Court stated on December 7, 2011, during the hearing on Arvest's motion to compel, "the consent judgments [go] to everything" and were to "be provided for all matters, not just payment of money. [They were] to be for the performance of the whole agreement." R. 1656. Because the debtors' obligations under the settlement agreement became enforceable upon the Court's approval of the agreement, the Court finds that Arvest was entitled to receive the consent judgments on (or as soon as practicable after) the Court's October 17, 2011 approval of the settlement agreement, but no later than November 16, 2011 (the deadline for debtors' delivery of the first cash payment under the agreement, that, if missed, entitled Arvest to file the consent judgments).

The Court's interpretation of the parties' agreement regarding when the debtors were required to deliver the consent judgments is supported by Davidson's November 9, 2011 email to Welch, in which Davidson stated that Griffin's "failure to, for example, to pay the $450,000 (less credit for the adequate protection payments) by November 16, 2011 would trigger a default. In that event, Arvest would be entitled under the Settlement Agreement to file [judgments] in the State Court actions...." R. 1118. By acknowledging to Welch that Arvest could properly file the consent judgments on November 16, 2011, Davidson's illustration of a breach demonstrates that the debtors were aware that Arvest was entitled to the delivery of the consent judgments by (or before) that date.

The debtors again exhibited a clear understanding of the agreed-upon timing for the delivery of the consent judgments in response to Arvest's motion to compel. To support their objection to Arvest's motion to compel the debtors to deliver the consent judgments, Fawn Trail deed, and releases, the debtors argued that once they had transferred the subject properties and paid the cash amounts due under the settlement agreement, the remaining documents that Arvest was seeking (specifically, the consent judgments and the Fawn Trail deed) were no longer necessary. In making this argument, the debtors expressly admitted their understanding that the consent judgments and the Fawn Trail deed were intended by the parties to secure the debtors' future performance under the settlement agreement. Although the debtors eventually provided the consent judgments to Arvest on December 16, 2011-two months after the Court entered the Agreed Order Approving Compromise and four days after the Court's order compelling the debtors to deliver them — the Court finds that the debtors' delivery of the consent judgments was not timely.

For the above-stated reasons, the Court finds that the debtors failed to timely perform their obligations as required by the settlement agreement.23 The Court next addresses whether the debtors fully performed their obligations under the settlement agreement.

B. Full Performance

Arvest argues that the debtors failed to fully perform their obligations under the settlement agreement because: (1) they did not timely perform; and (2) they failed to transfer clear title to Arvest as mandated by the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, and the Agreed Order Approving Compromise. The debtors' failure to perform timely is discussed in section I.A.; the Court, therefore, will move directly to the second problem with the debtors' collective performance: three of the LLC debtors' failure to transfer clear title to Arvest.

On November 17, 2011, Welch stressed to Davidson that Arvest had not bargained for further litigation with Griffin in the form of foreclosure or quiet title actions in the event that the debtors had created encumbrances or other title defects on the subject properties since filing their respective bankruptcies. Arvest's concern that the debtors might have created post-petition title problems was justified. Two of the LLC debtors (Silver Leaf East and Stinson) had, in fact, created or permitted post-petition encumbrances on the subject properties, and a third LLC debtor's (Plantation's) chain of title was, at least on its face, defective. Each of the title defects will be discussed in turn below.

Silver Leaf East had accrued thousands of dollars of "weed liens" on its Oklahoma property as a result of not mowing the property in 2010 [the 2010 weed liens]. As stated in footnote 5 above, Oklahoma municipalities (in this case, the City of Oklahoma City) may remove trash and weeds from property within its municipal limits at the property owner's expense. 11 Okl. St. § 22-111. If the property owner does not pay the amount billed by the municipality for mowing the property, a lien "superior to all other titles and liens against the property" attaches to the property. 11 Okl. St. § 22-111(6). On October 31, 2011, Arvest alerted the debtors that the City of Oklahoma City had placed the 2010 weed liens on the Silver Leaf East property. On November 15, 2011, Davidson conveyed to Welch that Griffin would pay the 2010 weed liens the following day, on November 16, 2011. Arvest acknowledges that Griffin paid the 2010 weed liens.

However, on November 10, 2011, November 15, 2011, and November 16, 2011, the City of Oklahoma City served additional notices to Silver Leaf East that it was in violation of ordinances prohibiting tall grass and weeds from growing on the property. The notices stated that if Silver Leaf East did not abate the nuisances within ten days, the City of Oklahoma City would (as it had done before) mow the property and bill Silver Leaf East for doing so. R. 1918-40. Silver Leaf East did not abate the nuisances by mowing the property within the time specified on the notices and the City of Oklahoma City subsequently billed Silver Leaf East for mowing the property. Silver Leaf East did not pay the bills, and additional weed liens [the 2011 weed liens] subsequently attached to the property. Although Arvest was aware only of the 2010 weed liens at the time, Arvest specifically told the debtors on November 17, 2011, that the debtors had to make "full payment of the weed liens" to comply with the settlement agreement.24

A transfer of property under a settlement agreement must comply with 11 U.S.C. § 363. Peltz v. Gulfcoast Workstation Group (In re Bridge Info. Sys.), 293 B.R. 479, 485 (Bank.E.D.Mo.2003). Accordingly, the Motion to Approve Compromise and the Agreed Order Approving Compromise specified that the debtors would transfer the subject properties to Arvest "free and clear of any and all liens, claims and encumbrances of any third parties pursuant to 11 U.S.C. §§ 363(b) and (f), excepting only for: (i) ad valorem real estate taxes...." The trustee argues that, because the Agreed Order Approving Compromise stated that the property transferred by the debtors would be free and clear of any and all liens, claims, and encumbrances, "Arvest received the most perfect title anyone can have to a piece of property." Trustee's Post-Trial Br. p. 7.

However, a review of the Court's docket reflects that the City of Oklahoma City was never served with the Motion to Approve Compromise stating that Silver Leaf East was seeking to transfer its property free and clear of liens and encumbrances. If proper notice under § 363 is not given to an affected lienholder, a transferee takes the property subject to the lien of that unnoticed party. Walker v. Lee (In re Rounds), 229 B.R. 758, 763-64 (Bankr.W.D.Ark.1999). The burden of furnishing notice of the proposed transfer to all entities holding claims, as well as to any parties whose pecuniary interests might be directly and adversely affected by the transfer, is on the trustee or debtor in possession. Id. (citing Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indust., Inc.), 43 F.3d 714, 720-21 (1st Cir.1994)). Because Silver Leaf East did not serve the City of the Oklahoma City with notice of the proposed transfer under § 363, Griffin transferred the Silver Leaf East property to Arvest encumbered by the 2011 weed liens — liens that are superior to all other secured liens under Oklahoma law by statute. Therefore, the Court finds that Silver Leaf East did not comply with the terms of the settlement agreement that required the debtors to transfer their respective properties to Arvest free and clear of all liens and encumbrances except those specifically excluded by agreement of the parties.25 The Court also finds that the trustee's payment of the 2011 weed liens in May 2013 is not tantamount to performance by the debtors. Riesett v. W.B. Doner & Co., 293 F.3d 164, 172-73 (4th Cir.2002) (curing a breach is insufficient to establish performance).

Additionally, Griffin transferred the Stinson property to Arvest encumbered by a mortgage held by debtor Sabram Estates West and transferred the Plantation title subject to defects in the chain of title arising from the Berliner deed. The trustee argues — and Arvest does not dispute — that Arkansas law provides remedies for breaching the warranty provided in a warranty deed. The trustee argues that the defects are easily cured (or easily defended) under state law. Had the settlement agreement not specifically required the debtors to transfer the subject properties free and clear of any and all liens and encumbrances, Arvest's recourse might lie solely in the pursuit of state court remedies for breach of warranty. However, that is not the situation before the Court. The August 4, 2011 Settlement Agreement, Motion to Approve Compromise, and Agreed Order Approving Compromise required the debtors to transfer the subject property free and clear of any and all liens and encumbrances. The potential availability of state-law curative measures for clouds on title, remedies for breach of warranty, or the existence of viable defenses (should Arvest encounter a lawsuit based upon chain of title issues) does not ameliorate the fact that Griffin transferred the Stinson and Plantation properties to Arvest with clouds on the titles, thereby making some further action on Arvest's part — no matter how trivial in the trustee's eyes — necessary for Arvest to obtain what it had bargained for: clear title. Therefore, the Court finds that Stinson and Plantation failed to fully comply with the settlement agreement. For the reasons enumerated in section I., the Court finds that the debtors failed to timely and fully perform their obligations under the settlement agreement.

II. Applicability of Substantial Performance

The trustee argues that, in the event that the Court finds that the debtors did not fully perform their obligations under the settlement agreement, they substantially performed their obligations by eventually paying Arvest the entire cash component agreed upon in the settlement agreement, and transferring to Arvest the subject properties (despite the title defects discussed above). The trustee argues that in the light of the debtors' substantial performance, the Court must compel Arvest to return the Fawn Trail deed to Griffin, withdraw its proofs of claim, and file satisfactions of the consent judgments. Arvest contends in response that the doctrine of substantial performance applies only to construction contracts and is inappropriate in this case. In the alternative, Arvest argues that if the Court finds that the application of the doctrine of substantial performance is appropriate, the debtors did not substantially perform.

As previously stated, Arkansas law (as the forum state in the absence of a choice-of-law dispute) applies to the construction of the settlement agreement. See McDonough, 608 F.3d at 390. The doctrine of substantial performance is applied by Arkansas courts to allow a party to recover under a contract despite the fact that it has breached the contract in some immaterial manner. Prudential Ins. Co. v. Stratton, 14 Ark.App. 145, 685 S.W.2d 818, 821 (1985). Substantial performance is "designed to avoid forfeiture of a contract when a minor breach occurs." Bath & Beyond v. Bed Bath & Beyond, No. C-91-1097-VRW (JPV), 1996 U.S. Dist. Lexis 21078, at *7 (N.D.Cal.1996). Although courts generally apply the doctrine of substantial performance to construction contracts, it could potentially apply to any type of contract. Stratton, 685 S.W.2d at 821.

The doctrine's potential applicability to any type of contract does not mean, however, that the doctrine is properly applied to every contract. The doctrine of substantial performance does "not extend to cases ... where [a party] insisted upon strict compliance with its conditions and has never waived them."26 Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 636 (7th Cir.1992) (citing Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921)). As discussed at length in section I., Arvest bargained for the debtors' timely and full performance, or, stated differently, their strict performance. There is no evidence before the Court that Arvest waived the contractual provisions mandating the debtors' timely and full performance as a prerequisite to its own performance. In fact, Arvest consistently and frequently reminded the debtors that Arvest would not be obligated to perform under the agreement (by releasing the Fawn Trail property, forgiving the deficiencies, and deeming the consent judgments satisfied) if the debtors did not first timely and fully perform.

"The flexible concept of substantial compliance `stands in sharp contrast to the requirement of strict compliance that protects a party that has taken the precaution of making its duty expressly conditional.'" Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 636 N.Y.S.2d 734, 660 N.E.2d 415, 419 (1995) (citation omitted). Arvest's performance under the agreement was expressly conditioned upon the debtors first timely and fully performing their obligations. Arvest's obligations under the settlement agreement (in the event that the debtors timely and fully performed) and Arvest's remedies under the settlement agreement (in the event that the debtors did not timely and fully perform) are two sides of the same coin. If the debtors fully and timely performed, Arvest became obligated to reciprocate performance by releasing the Fawn Trail deed, deeming the deficiencies satisfied, and filing satisfactions of the consent judgments. If the debtors failed to fully and timely perform, Arvest became entitled to its remedies under the settlement agreement consisting of not releasing the Fawn Trail deed, not deeming the deficiencies satisfied, and not filing satisfactions of the consent judgments.27

The trustee argues that Arvest received what it bargained for in all material respects once the debtors made the cash payments and the Court compelled the debtors to deliver the deeds that effectuated the transfers of the subject properties to Arvest. However, "the fact that [the breaching party] has gone to a great deal of trouble otherwise to comply with the agreement does not ... make [the breach of a different provision] of the agreement a minor one." Bath & Beyond, 1996 U.S. Dist. Lexis 21078, at *7 (emphasis added). The doctrine of substantial performance "is not properly used to redefine what constitutes a breach" of a settlement agreement. Id. The Court finds that Arvest took the precaution of making its performance expressly conditional upon the debtors' full and timely performance, and, as a result, the doctrine of substantial performance does not apply to the Settlement Agreement. As discussed below in section III., the debtors cannot escape the agreed-upon contractual remedies for their default by invoking the doctrine of substantial performance.28 Riesett, 293 F.3d at 173.

III. Arvest's entitlement to remedies under the Settlement Agreement

Both the trustee and Arvest seek the enforcement of the settlement agreement. The parties merely disagree regarding what enforcement of the settlement agreement means in this case. The trustee argues, in effect, that enforcement of the settlement agreement necessitates the Court's selective abrogation of certain terms that seem unreasonable or unfair to the debtors in retrospect because the debtors failed to comply with them. Arvest argues that the Court must enforce the settlement agreement as it is written, including the remedies provided in the agreement that were ostensibly included in contemplation of the precise situation that is now before the Court — the debtors' failure to fully and timely perform all terms of the agreement.

Although courts have the equitable power to set aside a contractual provision when its enforcement would be unconscionable due to circumstances such as the parties' disparate sophistication, the existence of fraud, or the execution of the agreement under duress, "[t]he unconscionability doctrine has no application to contracts, such as the Settlement Agreement in this case, which were entered into by sophisticated parties who bargained at arms' length and were represented by counsel throughout the negotiations." Riesett, 293 F.3d at 173. Courts are not required to "`revise a contract and give a litigant a better bargain than he himself made.'" Elda Arnhold & Byzantio, LLC v. Ocean Atl. Woodland Corp., 284 F.3d 693, 708 (7th Cir.2002) (quoting Maywood Proviso St. Bank v. York St. Bank & Trust Co., 252 Ill.App.3d 164, 192 Ill.Dec. 123, 625 N.E.2d 83 (1993)). Likewise, a court "cannot make a contract for the parties, but can only construe and enforce the contract that they have made." Hyundai Motor Fin. Co. v. McKay (In re McKay), 443 B.R. 511, 519 (Bank.E.D.Ark.2010) (citing Alltel Corp. v. Sumner, 360 Ark. 573, 203 S.W.3d 77 (2005)). By carrying out its duty to enforce the contract that the parties have made, "courts avoid substituting their judgment for those of sophisticated parties and concomitantly extinguishing the parties' legitimate expectations in freedom of contract." Arnhold, 284 F.3d at 709. Therefore, "[c]ourts will enforce contracts of settlement if they are not in contravention of law." In re McKay, 443 B.R. at 519 (citing McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978)). By entering the Agreed Order Approving Compromise, the Court found on October 17, 2011, that the settlement reached between Arvest and the debtors did not contravene the law and the Court finds no reason to alter that finding today, some two and a half years later. It is the Court's duty, therefore, to enforce the terms of the settlement pursuant to the parties' agreement.

To facilitate a quick and permanent finale to the parties' enervating history, the parties agreed that Arvest would forgive approximately three million dollars of debt on the condition that the debtors first "timely and fully" performed their obligations under the settlement agreement by: executing consent judgments in favor of Arvest in the state-court foreclosure actions (to be filed by Arvest only if the debtors failed to timely and fully perform their other obligations under the agreement); transferring the subject properties to Arvest free and clear of any liens or encumbrances; making a cash payment to Arvest within 30 days of the Court's approval of the agreement; and making a second cash payment to Arvest 90 days after the Court's approval of the agreement if Griffin could come up with the funds for the second payment. The parties agreed that in the event Griffin had timely and fully performed all terms of the agreement other than the final cash payment, Arvest would retain the deed to the Fawn Trail property in lieu of the final payment without declaring a default. Designed to effectuate one of Arvest's primary objectives under the agreement — to be free of Griffin in short order and for good — the parties agreed that if the debtors did not timely and fully perform, Arvest would be entitled to retain the Fawn Trail property, its deficiency judgments, and the consent judgments. Arvest did not impose this deal upon the debtors unilaterally. The debtors voluntarily agreed to the conditions and terms contained in the agreement.

Apparently, the debtors later regretted having granted Arvest its remedies under the settlement, but neither the debtors nor the trustee have alleged that Arvest's contractual remedies are invalid (only that the Court should not enforce them). In fact, on November 9, 2011, Davidson specifically acknowledged the validity of Arvest's contractual remedies in an email to Welch wherein Davidson unsuccessfully attempted to obtain Arvest's agreement to limit the application of the remedies. When that approach failed, the debtors continued to tempt fate by simply withholding the documents necessary for Arvest to enforce its contractual remedies. The debtors traveled further down their risk-laden path when they moved the Court to intervene on the debtors' behalf to require Arvest to accept different consideration that what it bargained for in the form of quitclaim (rather than warranty) deeds, "only the money paid," and "not the Consent Judgments and deed to the Fawn Trail property."

The Court made clear to the debtors in its December 7, 2011 ruling on Arvest's motion to compel that it would not endorse the debtors' attempt to renegotiate the agreement with Arvest. The Court ordered the debtors to comply with the settlement agreement for the fundamental reason that "that was the agreement." The Court declined to rewrite the settlement agreement for the parties on December 7, 2011, and declines to do so now. The debtors doggedly attempted a number of times to renegotiate the settlement agreement with Arvest after it was executed. Arvest, understandably, declined to accept the proposed "alternative" terms that were more favorable to the debtors and less favorable to Arvest. "If [the debtors] had truly focused all of [their] legal resources on completing the deal, instead of trying to rewrite it, then perhaps we would not be here today." Arnhold, 284 F.3d at 708. The Court finds no reason to "`relieve [the debtors] of the consequences of their bargain. If they are dissatisfied with the consequences of their agreement, the time to say so [was] at the bargaining table.'" Oppenheimer & Co., 636 N.Y.S.2d 734, 660 N.E.2d at 421 (quoting Maxton Bldrs. v. Lo Galbo, 68 N.Y.2d 373, 509 N.Y.S.2d 507, 502 N.E.2d 184 (1986)).

Conclusion

For the above-stated reasons, the Court grants the trustee's Motion to Enforce Settlement Agreement and Compel Arvest Bank's Delivery of Documents but declines the relief requested. Instead, the Court specifically authorizes Arvest to pursue its contractual remedies pursuant to the August 4, 2011 Settlement Agreement, the Motion to Approve Compromise, and the Agreed Order Approving Compromise entered on October 17, 2011. Pursuant to Ark.Code Ann. § 16-22-308, the Court awards Arvest its attorneys fees and costs in this matter from the date of the debtors' breach of the settlement agreement on November 16, 2011, to the date of the entry of this order. Arvest shall file with the Court and serve upon the trustee and other parties in interest its application for attorneys fees and costs within 21 days of the entry of this order. If so inclined, the trustee and other parties in interest may file objections to Arvest's application within 21 days of Arvest's filing of its application. Each objection must state with specificity its legal and factual basis. If objections are timely filed, the Court will set a hearing by subsequent notice.

IT IS SO ORDERED.