Fannon, et al. v. U.S. Bank, N.A., Trustee
This text of 2017 DNH 234 (Fannon, et al. v. U.S. Bank, N.A., Trustee) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
William and Catherine Fannon
v. Civil No. 16-cv-141-JD Opinion No. 2017 DNH 234 U.S. Bank, N.A., Trustee
O R D E R
William and Catherine Fannon brought suit against U.S. Bank
as trustee of the MASTER Asset Backed Securities Trust 2006-NC1,
Mortgage Pass-Through Certificates Series 2006-NC1, alleging
claims arising out of the foreclosure sale of their home. After
the parties notified the court that the case had settled, U.S.
Bank moved to enforce the settlement. The Fannons, who are now
proceeding pro se, did not respond. The magistrate judge issued
a report and recommendation that U.S. Bank’s motion be granted.
The Fannons did not respond to the report and recommendation.
Background
The Fannons, while represented by counsel, brought suit in
state court against U.S. Bank, N.A., to enjoin the imminent
foreclosure sale of their home.1 In support, they alleged that
1 The Fannons brought a prior case in state court to enjoin a previously scheduled foreclosure. They dismissed their claims when U.S. Bank moved to dismiss, and the case was terminated. U.S. Bank lacked the power to foreclose, that U.S. Bank had
breached the implied duty of good faith and fair dealing, that
they had not defaulted under the note, that there was not an
enforceable mortgage contract with U.S. Bank, and that they had
rescinded the note and mortgage. U.S. Bank removed the case to
this court, and the foreclosure sale was held two weeks later on
April 29, 2016.
The Fannons filed an amended complaint alleging that U.S.
Bank lacked the power to foreclose, breach of the implied
covenant of good faith and fair dealing, rescission, and
wrongful foreclosure. U.S. Bank moved to dismiss the claims in
the amended complaint.2 The Fannons objected and moved to
certify a question about consummation of a mortgage to the New
Hampshire Supreme Court. The court denied the motion for
certification. See Order, Sept. 20, 2016, doc. no. 33.
The court granted U.S. Bank’s motion to dismiss Counts II,
III, and IV, but denied the motion as to Count I, which alleged
that U.S. Bank lacked the power to foreclose, and Count V, which
2 Before addressing the motion to dismiss, the court directed counsel to meet in an effort to resolve the issue raised by the Fannons about the validity of the note held by U.S. Bank. See Procedural Order, Aug. 24, 2016, doc. no. 24. Despite the meeting, the Fannons continued to dispute that U.S. Bank held the original note. See Order, Sept. 20, 2016, doc. no. 35.
2 alleged a claim for wrongful foreclosure. See Order, Sept. 20,
2016, doc. no. 34. The Fannons moved for reconsideration, which
was denied. See Order, Oct. 25, 2016, doc. no. 40. The
parties’ discovery plan was approved on November 16, 2016.
In March of 2017, the Fannons’ counsel moved to withdraw
due to an irremediable breakdown of the lawyer-client
relationship. The motion was granted, and the Fannons were
directed to enter an appearance by counsel or appearances pro se
by April 18, 2017. When no appearance was entered by that
deadline, the magistrate judge ordered the Fannons to enter pro
se appearances or have counsel enter an appearance on their
behalf by April 25, failing which the discovery status
conference scheduled for that date would be cancelled and a show
cause hearing would be held in its place.
The Fannons filed pro se appearances and attended the
discovery status conference on April 25, 2017. At the
conference, the parties represented that the case had settled.
See Transcript, April 27, 2017. The magistrate judge gave the
parties sixty days to file an agreement for the entry of
judgment or a stipulation of dismissal.
On June 2, 2017, U.S. Bank moved to enforce the settlement.
The Fannons did not respond to the motion. The court referred
the motion to the magistrate judge, who issued a report and
3 recommendation that the motion be granted. See R & R, Oct. 4,
2017. The Fannons did not respond to the report and
recommendation.
Standard of Review
The district court may refer a pending motion for
dispositive relief to a magistrate judge for a report and
recommendation. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b)(1). Once it is issued, a party may file an objection to
the report and recommendation within fourteen days. § 636(b);
Fed. R. Civ. P. 72(b)(2). “The district court judge must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(2).
When a party fails to object, however, the court may adopt the
report and recommendation, and the party waives the right to
appeal that decision. M. v. Falmouth Sch. Dep’t, 847 F.3d 19,
25 (1st Cir. 2017); Santos-Santos v. Tores-Centeno, 842 F.3d
163, 168 (1st Cir. 2016).
Discussion
In the Report and Recommendation, the magistrate judge
found that U.S. Bank’s representations about the terms of the
parties’ settlement agreement were consistent with the
transcript of the April 25th hearing and the magistrate’s
observations and recollections. The magistrate judge
4 recommended that the court order the Fannons to vacate the
property and direct the parties to file an entry of judgment or
stipulation of dismissal within forty-five days of approval of
the report and recommendation. There being no objection to the
magistrate’s findings and recommendations, the findings and
recommendations are approved and adopted as follows.
The Fannons and U.S. Bank entered into an enforceable
settlement agreement as of April 25, 2017. Under the terms of
the settlement, the Fannons agreed to vacate the property
located at 537 Turnpike Road, New Ipswich, New Hampshire, within
sixty days of April 25, 2017. The Fannons also agreed to
dismiss their claims against U.S. Bank with prejudice. In
exchange, U.S. Bank promised not to evict the Fannons from the
property during that time and to waive any deficiency on the
note that resulted from the foreclosure sale. The deadline for
the Fannons to vacate the property was June 24, 2017.
Counsel for U.S. Bank represented in the motion to enforce
the settlement agreement and supporting memorandum that as of
June 2, 2017, the Fannons were refusing to sign the written
settlement agreement, would not abide by the agreement, and had
repudiated the agreement. The Fannons have not responded and,
therefore, do not dispute that representation.
5 Conclusion
For the foregoing reasons, the court approves and adopts
the magistrate judge’s report and recommendation (document no.
58), granting U.S. Bank’s motion to enforce settlement (document
no. 56).
If they have not already done so, William and Catherine
Fannon shall vacate the property located at 537 Turnpike Road,
New Ipswich, New Hampshire, as they agreed to do in the
settlement, on or before December 4, 2017. If William and
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2017 DNH 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fannon-et-al-v-us-bank-na-trustee-nhd-2017.