USA v. Simmons

Filing 7

SETTLEMENT AGREEMENT; AND ORDER APPROVING SETTLEMENT signed by District Judge Troy L. Nunley on 7/12/2017 APPROVING the terms of the Agreement. The stipulated entry of judgment as provided in the Agreement shall be entered as a separate judgment. (Washington, S)

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1 PHILLIP A. TALBERT United States Attorney 2 KURT A. DIDIER Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 5 6 Attorneys for Plaintiff United States of America 7 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Plaintiff, 12 SETTLEMENT AGREEMENT; AND ORDER APPROVING SETTLEMENT v. 13 14 CASE NO. 2:17-CV-01374-TLN-DB PATRICIA A. SIMMONS, ESQ., Defendant. 15 16 17 18 19 20 21 I. PARTIES 1. The parties, by their authorized representatives, hereby agree to resolve the allegations contained in the United States’ complaint for student loan default (ECF No. 1) against defendant Patricia A. Simmons, Esq., as set forth below. The Parties submit this settlement agreement for the Court’s review and approval. 22 II. BACKGROUND/ALLEGATIONS 23 24 2. Defendant resides in and maintains a law practice within this district. 25 3. On August 6, 2003, Defendant executed a Promissory Note to secure a Federal 26 Direct Consolidation loan from the U.S. Department of Education (the ED). Defendant’s total 27 loan amount was $106,423.65 at 8.25% interest per annum. The ED disbursed the loan proceeds 28 30 SETTLEMENT AGREEMENT AND ORDER 1 1 for Defendant’s benefit on August 29, 2003. 2 4. Defendant defaulted on the loan on November 25, 2010. Pursuant to 34 C.F.R. § 3 685.202(b), a total of $56,389.84 in unpaid interest was capitalized and added to the principal 4 balance. 5 5. Although the United States demanded payment for the unpaid loan, Defendant 6 failed to repay the defaulted loan amount when and as due. The ED has credited Defendant a 7 total of $7,302.92 in payments from all sources, including Treasury Department offsets, towards 8 her loan balance. As of June 15, 2017, Defendant owes the United States $256,850.10, 9 representing $162,164.23 in unpaid principal and $94,685.87 in interest. Interest continues to 10 accrue on the principal sum at a daily rate of $36.63. 11 6. Pursuant to the Promissory Note, the United States is entitled to recover attorney 12 fees and costs to compensate it for its litigation fees and expenses. 13 7. Defendant admits the complaint’s allegations. III. TERMS AND CONDITIONS 14 15 8. In consideration of their mutual promises and covenants, and the Defendant’s 16 admission as stated in paragraph 7, above, the Parties agree to resolve the complaint upon the 17 following terms (the Agreement): 18 A. Entry of Judgment. Defendant consents to entry of judgment in favor of 19 the United States in the amount of $256,850.10 plus 2% interest per annum, compounded 20 annually (the Judgment Amount). Defendant has reviewed and “approved as to form and 21 content” the judgment lodged with the Court and shall satisfy the Judgment Amount via the 22 payment plan set forth below. 23 B. Judgment Enforcement and Satisfaction. The United States will record 24 abstracts of judgment in the counties where Defendant has, or may have interests in real 25 property. Other than recording abstracts of judgment, the United States agrees that it will not 26 seek to enforce its judgment except as stated herein provided Defendant complies with this 27 28 30 SETTLEMENT AGREEMENT AND ORDER 2 1 Agreement’s terms. Upon Defendant’s fulfillment of the Agreement, the United States will file a 2 satisfaction of judgment with the Court. 3 C. Payment schedule. Defendants shall pay the Judgment Amount to the 4 United States on the dates, in the amounts, and in the manner as follows: 5 i. July 15, 2017, $500. 6 ii. August 15, 2017, and continuing on the fifteenth day of each consecutive month thereafter, until the judgment is satisfied, $250. 7 iii. 8 By July 1, 2017, the Defendant shall list and market for sale her real property located at 308 McNabe Court, Suisun City, CA 9 10 94585 (the Suisun City Property), and pay the net sales proceeds 11 through escrow. 12 D. Payment procedure. Defendant shall make her payments to the United 13 States using one of the secure methods the United States Treasury Department provides at its 14 URL: There is no prepayment penalty and Defendant is encouraged to 15 accelerate her payments as her financial situation allows. She will receive dollar-for-dollar credit 16 for all accelerated payments she makes. 17 E. Treasury Offset Program (TOP). The United States will enter Defendant 18 into the TOP until the Judgment Amount is paid in full or Defendant complies with paragraph 19 20 8F, below, whichever occurs first. She will receive dollar-for-dollar credit for the monies the United States withholds pursuant to the TOP. 21 22 23 F. Sale of real property. Defendant shall list the Suisun City Property for sale by July 1, 2017. All occupants must have vacated the property by August 21, 2017. By July 24 1, 2017, Defendant shall deliver to the United States—in accordance with paragraph 8H of this 25 Agreement—copies of the documents associated with the sale including, but not limited to: the 26 listing agreement with a California licensed broker; all pertinent information about the home; 27 comparable sales; and a fair market value list price. The sales commission may not exceed six 28 30 SETTLEMENT AGREEMENT AND ORDER 3 1 percent (6%) of the sales price and the listing agent must list the home for sale on the Multiple 2 Listings Service and exercise reasonable diligence in marketing and showing the property for 3 4 sale. Defendant shall deliver to the United States all purchase offers and all amendments and counter-offers related thereto. She may not reject reasonable purchase offers. Once the Property 5 6 7 is in escrow, the United States shall be entitled to a copy of the: buyer’s pre-approval letter; an appraisal report; preliminary title report; settlement statement; and any other documents 8 deposited into escrow. All sales proceeds remaining after payment of (if applicable) bona fide 9 transaction costs and commissions, the lender’s deed of trust, and liens senior to the United 10 States’ abstract of judgment from this case, shall be paid as stated in paragraph 8D, above, or as 11 the United States otherwise directs. 12 G. Satisfaction of Judgment. The United States will file a satisfaction of 13 14 judgment in this case once the Defendant pays the Judgment Amount in full or complies with 15 paragraph 8F, above, whichever occurs first. 16 H. Default. Defendant shall be in default if she fails to make a timely 17 payment or comply with the Sale of Real Property related paragraphs above, and thereafter fails 18 to cure the default within twenty (20) days from the date the United States mails written notice of 19 the deficiency to Defendant at the address stated in paragraph 8I, below. If Defendant fails to 20 cure her default, the United States may declare any unpaid balance immediately due and owing 21 22 and proceed with collections efforts against her. No further notice is required. If the United 23 States is required to enforce the judgment, Defendant agrees to a litigation surcharge of ten (10) 24 percent of the balance owing to compensate the United States for its collections costs as 25 authorized by 28 U.S.C. § 3011(a) of the Federal Debt Collection Procedures Act. 26 I. Written Notice. Except as provided elsewhere in this Agreement, 27 28 30 SETTLEMENT AGREEMENT AND ORDER 4 1 whenever written notice is required, the notice shall be addressed and mailed, via certified mail, 2 to the individuals identified below, unless those individuals or their successors give notice of a 3 change of address to the other party in writing. As to the United States: 4 Kurt A. Didier Assistant United States Attorney United States Attorney’s Office 501 I Street, Suite 10-100 Sacramento, CA 95814 Phone: 916-554-2700 Facsimile: 916-554-2900 5 6 7 8 9 As to Defendant: 10 William J. Campbell, Jr., Esq. Fitzgerald & Campbell 400 N Tustin Ave., Ste., 375 Santa Ana, CA 92705-3830 Phone: 855-709-5788 Facsimile: 855-672-5058 11 12 13 14 15 The 20 day cure period provided by the default notices referenced in paragraph 8H, above, 16 commences from the date the United States mails a default notice to Defendant. All other 17 notices shall be considered effective upon receipt. 18 9. In consideration of Defendant’s undertakings, and subject to the exceptions stated 19 below, the United States fully and finally releases Defendant and agrees to settle and relinquish 20 all claims it may have against her arising from the subject matter of this action. 21 10. Defendant fully and finally releases the United States, its agencies, employees, 22 servants, and agents from any claims (including attorney=s fees, costs, and expenses of every 23 24 kind and however denominated) which Defendant asserted, could have asserted, or may assert in the future against the United States, its agencies, employees, servants, and agents, related to the 25 26 prosecution and settlement of this case. 27 28 30 SETTLEMENT AGREEMENT AND ORDER 5 1 11. Defendant warrants that she: has reviewed her financial situation; currently is 2 solvent within the meaning of 11 U.S.C. '' 547(b)(3) and 548(a)(1)(B)(ii)(I); and shall remain 3 solvent following her payments to the United States as set forth in paragraph 8C (Payment 4 schedule), above. Defendant warrants further that this Agreement does not presently impose an 5 undue hardship upon her or her dependents within the meaning of 11 U.S.C. ' 523(a)(8) and 6 applicable case law. More specifically, that: Defendant can make the Payment schedule 7 payments and maintain, based on her current income and expenses, a minimal standard of living 8 for herself and her dependents; no additional circumstances exist indicating that she cannot make 9 the settlement payments while maintaining a minimal standard for herself; and without a change 10 in circumstances, a default on the settlement payments would demonstrate a lack of a good faith 11 effort to repay this student loan debt. 12 12. This Agreement is for the Parties’ benefit only. 13 13. The Parties agree to execute and deliver such other and further documents as may 14 be required to carry out this Agreement’s terms. 15 14. Each Party and signatory to this Agreement represents that he or she has 16 completely read, fully understands, and voluntarily accepts the Agreement’s terms following an 17 opportunity for review by legal counsel of his or her choice. 18 15. Each party further warrants and represents that no party or its representative has 19 made any promise, representation or warranty, express or implied, except as set forth in this 20 Agreement and that each party has not relied on any inducements, promises or representations 21 made by any party to this Agreement, or its representatives, or to any other person, except as 22 expressly set forth herein. 23 16. The Parties negotiated this Agreement, each of whom had the opportunity to 24 participate in its drafting. It is therefore the Parties’ intent that the words of this Agreement shall 25 be construed as a whole so as to effect their fair meaning and not for, or against any party in any 26 subsequent dispute, the Parties having waived the benefit of California Civil Code § 1654 and 27 similar laws. 28 30 SETTLEMENT AGREEMENT AND ORDER 6 1 17. Each party to this Agreement represents and warrants that each person whose 2 signature appears in this Agreement has the full authority to execute this Agreement on behalf of 3 the person, persons or entity who is a party to this Agreement. 4 18. This Agreement is governed by the laws of the United States; and, to the extent 5 state law applies, by California law. 6 19. This Agreement constitutes the complete agreement between the Parties. It may 7 not be amended except by the Parties’ written consent. 8 20. If any term, provision, covenant or condition of this Agreement is held by a court 9 of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions 10 shall remain in full force and effect. 11 21. Except as stated otherwise in this Agreement, each Party shall bear its own legal 12 and other costs incurred in connection with this action, including the preparation and 13 performance of this Agreement. 14 22. This Agreement may be executed in counterparts and circulated for signature by 15 facsimile or electronic transmission. All such counterparts, together, shall be deemed one 16 document. The Agreement is effective as of the date it is signed. 17 23. The Parties understand that as of the effective date, this Agreement will be a 18 matter of public record. 19 20 FOR THE UNITED STATES OF AMERICA: PHILLIP A. TALBERT United States Attorney 21 22 23 Dated: July 6, 2017 By: 24 25 26 27 28 30 SETTLEMENT AGREEMENT AND ORDER 7 __/s/___________________ __________ KURT A. DIDIER Assistant United States Attorney Attorneys for the United States of America 1 FOR DEFENDANT PATRICIA A. SIMMONS: 2 3 Dated: June 26, 2017 By: 4 __/s/_______________________________ PATRICIA A. SIMMONS An individual 5 APPROVED AS TO FORM AND CONTENT: 6 7 Dated: June 27, 2017 By: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 SETTLEMENT AGREEMENT AND ORDER 8 __/s/____________________________ WILLIAM J. CAMPBELL, JR., ESQ. Attorney for Defendant 1 ORDER 2 The Court, having reviewed the court files and parties’ settlement agreement (the 3 Agreement), and finding good cause therefrom, hereby APPROVES the terms of the Agreement. 4 The stipulated entry of judgment as provided in the Agreement shall be entered as a separate 5 judgment. 6 IT IS SO ORDERED. 7 Dated: July 12, 2017 8 9 Troy L. Nunley United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 SETTLEMENT AGREEMENT AND ORDER 9

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