Constantino vs. U.S. Bank, N.A.
Filing
81
ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS 74 . Signed by JUDGE DAVID ALAN EZRA on 9/23/2011. [Order Adopts the Amended Findings and Recommendations to Grant in Part and Deny in Part Plaintiffs' Motion to Enforce Settlement and/or for Damages for Breach of Settlement Agreement and for Attorneys Fees (doc 74)] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GIL YORO CONSTANTINO AND )
GEMMA GUILLERMO
)
CONSTANTINO,
)
)
Plaintiffs,
)
vs.
)
)
U.S. BANK, N.A., Trustee and
)
MERIDIAN FINANCIAL
)
NETWORK, INC.,
)
)
Defendants.
)
_____________________________ )
CV. NO. 09-00066 DAE-RLP
ORDER ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing the objections and the supporting
and opposing memoranda, the Court ADOPTS the Magistrate Judge’s Findings
and Recommendations. (Doc. # 74.)
BACKGROUND
The instant action arises out of a note and mortgage that Plaintiffs Gil
and Gemma Constantino (“Plaintiffs”) executed in connection with the purchase of
a home in 2006. (“FR,” Doc. # 74, at 2.) Meridian Financial Network, Inc.
(“Meridian”) assigned the note and Mortgage to U.S. Bank, National Association
as Trustee for the Structured Asset Investment Loan Trust (“U.S. Bank”). (Id.)
Wells Fargo Bank, N.A., doing business as America’s Servicing Company
(“ASC”), became the servicing agent for U.S. Bank. (Id.) On or around January
21, 2009, ASC initiated non-judicial foreclosure proceedings against Plaintiffs.
(Id.) On February 17, 2009, Plaintiffs filed their Complaint for Damages and
Injunctive Relief, alleging, inter alia, Truth in Lending Act violations by Meridian.
(Id. at 2–3; see also “Compl.,” Doc. # 1.) On April 15, 2009, U.S. Bank filed a
Counterclaim against Plaintiffs for foreclosure. (FR at 3; see also Doc. # 6.)
On December 16, 2009, ASC directly sent Plaintiffs a proposed loan
modification agreement. (“Dec. 16 letter,” Doc. # 65-3.) The loan modification
agreement required a payment of $5,232.62 up front, which would “be applied
toward the accrued delinquency and other fees and costs that cannot be included in
the modification.” (Id. at 1.) Per the modification, Plaintiffs’ first principal and
interest payment of $3,537.11 was due on March 1, 2010 at an interest rate of
4.750%. (Id.)
U.S. Bank claims that the terms set forth in the December 16, 2009
letter were offered by U.S. Bank, subject to final documentation and U.S. Bank
approval, in a January 4, 2010 settlement conference in front of then-United States
2
Magistrate Judge Leslie E. Kobayashi. (FR at 3.) Plaintiffs’ counsel has stated
that it does not recall whether the $5,232.62 up front payment was mentioned at the
settlement conference. (Id. at 4.) Judge Kobayashi instructed U.S. Bank to convey
its authorized settlement offer to Plaintiffs’ counsel by January 11, 2010. (Id.)
In compliance with Judge Kobayashi’s directive, on January 8, 2010,
U.S. Bank’s counsel sent an email to Plaintiffs’ counsel which had attached a loan
modification form. The email provided as follows:
[A]ttached is a form of loan modification agreement we’ve been
authorized to offer to your clients. I believe it conforms to the loan
modification terms I stated at the settlement conference and reflects
the full extent of our settlement authority. Let us know if you have
any questions or comments.
(Doc. # 65-4.) The agreement was substantively the same as the loan modification
agreement sent directly to Plaintiffs by ASC on December 16, 2009, except that it
excluded the $5,232.62 up front payment. (FR at 4.) Plaintiffs did not accept that
offer and there was no settlement at that time. (“Opp’n,” Doc. # 80 at 3.)
On April 30, 2010, counsel for U.S. Bank sent an email to Plaintiffs’
counsel as follows:
Wells Fargo hereby offers to settle the Constantino matter by entering
into a loan modification on the terms set forth in the attachment (with
performance dates appropriately updated). Please note that this
proposed loan modification is on the same terms as proposed in my
email to you of 1/8/10. In other words, it has not been increased to
3
reflect your client’s use of the funds/non payment over the last 15+
weeks. In addition, Wells Fargo is willing to pay $2,500 as and for
your client’s attorney fees.
(Opp’n, Ex. B., at 1.) Counsel for both parties subsequently clarified that the
“offer is the same except that payment would begin at sometime in June or July.”
(Opp’n, Exs. C, D.) Once more, the $5,232.62 up front payment was not
discussed. On May 10, 2010, Plaintiffs’ counsel accepted the April 30, 2010
settlement offer as set forth in counsel’s email correspondence. (Opp’n, Ex. E.)
On June 2, 2010, Plaintiffs’ counsel wrote to U.S. Bank’s counsel and
stated that he was “still waiting to hear how you want to handle the mechanics of
settlement. . . . As we discussed, the dates were incorrect on the most recent loan
modification form.” (Opp’n, Ex. G.)
By letter dated June 14, 2010, ACS sent a letter directly to Plaintiffs,
which “confirmed our conversation where we agreed to modification of your
mortgage loan” and enclosed a new loan modification agreement. (Opp’n, Ex. J.)
By email dated June 18, 2010, counsel for U.S. Bank forwarded the loan
modification agreement to counsel for Plaintiffs. (Doc. # 65-5.) The proposed
modification required an up front payment of $5,066.67 (not $5,232.62 as stated in
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the December 16, 2009 letter) and decreased Plaintiffs’ principal and interest
payments to $3,531.47 at an interest rate of 4.375%. (Id. at 2.)
On July 9, 2010, Plaintiffs reached out to counsel for U.S. Bank and
stated as follows:
I have tried to reach you . . . by telephone without success. I am
following up on my conversation with Bruce and my email to him of
July 1 [sic], 2010. Have you heard yet about the discrepancies we
discussed? What is the next step in going forward with the
settlement? My clients have been and are ready to proceed as we have
agreed.
(Opp’n, Ex. H.) Later that day Counsel for U.S. Bank responded stating that the
“ball is in my court to follow up with client.” (Opp’n, Ex. I.) On July 30, 2010,
Plaintiffs’ counsel reached out for further clarification on the proposed terms of the
settlement. (Opp’n, Ex. K.)
On August 3, 2010, the parties attended a final pretrial conference in
front of Judge Kobayashi. The settlement terms of the April 30, 2010 offer were
tentatively placed on the record. (FR at 6.) Plaintiffs contend that when U.S.
Bank’s counsel stated the settlement terms before the Court, there was no mention
of an up front payment. (Id.; Opp’n at 7.) U.S. Bank does not dispute that the up
front payment was not discussed at the final pretrial conference. (FR at 6.)
5
On August 11, 2010, counsel for U.S. Bank stated in an email to
counsel for Plaintiffs as follows:
[A]s we discussed, my client always intended that the settlement
include the initial $5K contribution, as reflected by the loan
modification cover letter to the Constantinos and corroborated by the
alternative settlement it proposed in June with the same contribution.
My client contends that your client understood this as well from
having received the cover letter and that our agreement not including
this term is a result of mutual mistake.
(Opp’n, Ex. L.) Counsel for Plaintiffs responded stating that U.S. Bank’s position
is simply not correct. You made an offer and we accepted, and finally
(after much delay) we placed the settlement on the record with no
mention of any $5000 ‘contribution’. Neither I nor my clients were
aware of any additional $5000 payment when we accepted your offer.
In addition, the $2500.00 in attorneys fees was based on a prompt and
normal completion of the settlement which has not occurred due to
unreasonable delay by your client.
(Opp’n, Ex. M.)
On April 4, 2011, after nearly eight months and at least five settlement
conferences, Plaintiffs filed a Motion to Enforce Settlement and/or for Damages
for Breach of Settlement Agreement and for Attorneys Fees (“Plaintiffs’ Motion”).
(Doc. # 62.) On August 1, 2011, United States Magistrate Judge Richard L.
Puglisi issued the instant Findings and Recommendations, which recommended
this Court grant, in part, the relief Plaintiffs requested. (Doc. # 74.) On August 15,
2011, U.S. Bank filed their Objections to Judge Puglisi’s Findings and
6
Recommendations. (“Obj,” Doc. # 78.) On August 26, 2011, Plaintiffs filed their
Opposition. (Doc. # 80.)
STANDARD OF REVIEW
Any party may serve and file written objections to proposed findings
and recommendations. See 28 U.S.C. § 636(b). Pursuant to Local Rule 74.2,
when a party objects to a magistrate judge’s dispositive order, findings, or
recommendations, the district court must make a de novo determination. A de
novo review means “the court must consider the matter anew, the same as if it had
not been heard before and as if no decision previously had been rendered.” U.S.
Pac. Builders v. Mitsui Trust & Banking Co., 57 F. Supp. 2d 1018, 1024 (D. Haw.
1999) (citation omitted).
“The court may ‘accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.’ The court also may receive
further evidence or recommit the matter to the magistrate with instructions.”
McDonnell Douglas Corp. v. Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981) (citation omitted); Local Rule 74.2.
DISCUSSION
U.S. Bank has three principle objections Judge Puglisi’s Findings and
Recommendations. First, U.S. Bank “generally objects to the Recommendation on
7
the grounds set forth in its opposition to [Plaintiffs’] Motion.” (Obj. at 1–2.) U.S.
Bank spends the rest of its Objections placing “particular emphasis . . . upon two
particular concerns.” (Id. at 2.) First, U.S. Bank objects that “the
Recommendation could be construed to as allowing Plaintiffs to skip 14 monthly
payments due under the contract the Recommendation would enforce.” (Id.)
Second, U.S. Bank “objects to the Recommendation as inviting consideration of a
motion from Plaintiffs to determine their entitlement to attorney fees where it is
undisputed Plaintiffs skipped 14 monthly payments and are therefore are in
substantial and material breach of the settlement agreement if it were to be
enforced.” (Id.)
I.
The Settlement Agreement
The Court agrees with Judge Puglisi that the “settlement agreement
that was offered by U.S. Bank on April 30, 2010, accepted by Plaintiffs on May 10,
2010, and tentatively placed on the record on August 3, 2010” is enforceable. (FR
at 17.)
It is well settled that a district court has inherent authority to enforce
agreements that settle litigation before it. See In re City Equities Anaheim, Ltd.,
22 F.3d 954, 957 (9th Cir. 1994) (“This circuit also recognizes a trial court’s
inherent enforcement power.”); Calli v. Near, 829 F.2d 888, 890 (9th Cir. 1987)
8
(“It is well settled that a district court has the equitable power to enforce summarily
an agreement to settle a case pending before it.”). Upon breach of a settlement
agreement, the court may award damages or specific performance as appropriate.
TNT Marketing, Inc. v. Agresti, 796 F.2d 276, 278 (9th Cir. 1986) (citing Village
of Kaktovik v. Watt, 689 F.2d 222, 230 (D.C. Cir. 1982)). A district court,
however, may only summarily enforce complete settlement agreements. Callie,
829 F.2d at 890. Where material facts concerning the existence or terms of a
mutual, valid, and enforceable settlement agreement are in dispute, the parties must
be allowed an evidentiary hearing. Id.; see also Moran v. Guerreiro, 37 P.3d 603,
620 (Haw. App. 2001).
“Typically, ‘[t]he construction and enforcement of settlement
agreements are governed by principles of local law which apply to interpretation of
contracts generally.’” O’Neil v. Bunge Corp., 365 F.3d 820, 822 (9th Cir. 2004).
As with other contracts, Hawaii law “requires that there be mutual assent or a
meeting of the minds on all essential elements or terms in order to form a binding”
settlement agreement. Boskoff v. Yano, 217 F. Supp. 2d 1077, 1088 (D. Haw.
2001). The existence of mutual assent is determined by an objective standard,
whereby a “party’s words or acts are judged under a standard of reasonableness in
determining whether he or she has manifested an objective intention to agree.”
9
Standard Mgt., Inc. v. Kekona, 53 P.3d 264, 273 (Haw. App. 2001) (citation
omitted); see also Buskoff, 217 F. Supp. 2d at 1088 (“To determine whether there
was a ‘meeting of the minds’ the Court will consider the parties’ correspondence
leading up to the settlement agreement.”).
“Where the evidence in the record shows that all the essential
elements of a contract are present, a compromise agreement among the parties in
litigation may be approved by the court and cannot be set aside except on grounds
that would justify rescission.” Miller v. Manuel, 828 P.2d 286, 292 (Haw. App.
1991). “Generally, in the absence of bad faith or fraud, when parties enter into an
agreement settling and adjusting a dispute, neither party is permitted to repudiate
it.” Id.; see also Amantiad v. Odum, 977 P.2d 160, 169 (Haw. 1999) (noting the
well-settled rule that the law favors the resolution of controversies through
compromise or settlement rather than by litigation”).
Further, courts may not “draw inferences from a contract regarding
the parties’ intent when the contract is definite and unambiguous.” State Farm Fire
& Cas. Co. v. Pac. Rent-All, Inc., 978 P.2d 753, 762 (Haw. 1999). Indeed, if the
language of a settlement agreement is unambiguous, the interpretation of that
agreement presents a question of law to be decided by the court. Wittig v. Allianz,
A.G., 145 P.3d 738, 544 (Haw. App. 2006). In interpreting a settlement
10
agreement, the court is bound by the four corners of the document to determine
whether an ambiguity exists. State Farm, 978 P.2d at 762. Consequently, the
parties’ disagreement over the meaning of a settlement agreement’s terms does not
render clear language ambiguous. Id.
U.S. Bank opposed Plaintiffs’ Motion on three principle grounds:
•
Plaintiffs knew or had reason to know from the December 19,
2009 letter as reiterated at the January 4, 2010 settlement
conference that the loan modification would require in addition
and separately a payment of $5,232.62. By failing to include
this term in the offer, there was no meeting of the minds on this
term or there was a mutual mistake as to whether it was a part
of the contract.
•
There was never an agreement on the material term of when the
monthly payments would begin.
•
In any event, Plaintiffs failed to perform or tender performance
according to the terms as alleged because they have not made a
monthly payment on the contract.
(Obj, Ex. B at 7–8.) None of these arguments are persuasive.
11
As a preliminary matter and as Judge Puglisi found, U.S. Bank does
not contest that it validly offered Plaintiffs a settlement that did not include the up
front payment term on April 30, 2010. (FR at 9.) Nor does U.S. Bank contest that
Plaintiffs validly accepted that offer on May 10, 2010. (Id.) The Court therefore
finds there was a valid offer and acceptance of a settlement agreement that did not
include an up front payment of over $5,000.
Turning to U.S. Bank’s first argument, while Plaintiffs knew or had
reason to know that U.S. Bank had considered requesting an up front payment of
over $5,000 dollars, they had no reason to believe that this term was a part of U.S.
Bank’s April 30, 2010 offer. U.S. Bank initially proposed a settlement to Plaintiffs
which included the up front payment of $5,232.62 subject to U.S. Bank approval at
the January 4, 2010 settlement conference. Judge Kobayashi then instructed U.S.
Bank to convey its authorized settlement offer to Plaintiffs’ counsel by January 11,
2010. U.S. Bank made their offer on January 8, 2010 without any mention of an
up front payment and represented that it was “the full extent of [U.S. Bank’s]
settlement authority.” U.S. Bank made the same offer again in April, which
Plaintiffs accepted.
There was no mention of the up front payment in either the January 8,
2010 offer nor the April 30, 2010 offer. Plaintiffs had no reason to suspect that it
12
was a part of the agreement, especially in light of the fact that U.S. Bank
represented that the offer represented the “full extent” of their settlement authority.
It may be that U.S. Bank intended to include the term in both offers, but this is
immaterial. See Std. Mgmt., Inc. v. Kekona, 53 P.3d 264, 273 (Haw. App. 2001)
(holding that “the purely subjective, or secret, intent of a party in assenting is
irrelevant in an inquiry into the contractual intent of the parties”). The terms of the
offer were plain, clear, unambiguous, and did not include any mention of an up
front payment. The Court in these circumstances will not draw inferences
regarding the parties’ intent. See State Farm, 978 P.2d at 762. The settlement
agreement speaks for itself.
Moreover, there was no mutual mistake. As discussed, Plaintiffs had
no reason to assume that the up front payment term would be a part of the contract.
Even if there had been a mistake, as Judge Puglisi found, U.S. Bank bore the risk
of mistake. A party bears the risk of mistake when “the risk is allocated to him or
her by the court on the ground that it is reasonable in the circumstances to do so.”
AIG Haw. Ins. Co., Inc. v. Bateman, 923 P.2d 395, 399 (Haw. 1996). Here, U.S.
Bank was a sophisticated offeror and represented by competent legal counsel. The
fault can be said to fall squarely on U.S. Bank for failing to include the up front
payment term in both of its offers. This is especially so given that Plaintiffs had no
13
reason to believe the term should have been included and U.S. Bank represented
that the offer was “the full extent of [U.S. Bank’s] settlement authority.” Under
these circumstances, the Court concludes, as Judge Puglisi did, that it is reasonable
to allocate the risk of mistake to U.S. Bank.
Nor is the Court persuaded by U.S. Bank’s second argument that an
essential term was omitted such that a contract was not formed. “To be
enforceable, a contract must be certain and definite as to its essential terms.”
Boteilho v. Boteilho, 564 P.2d 144 (Haw. 1977) (citation omitted). However, “[a]
settlement agreement is not invalid because certain details are not worked out,
where such details are not essential to the proposal and do not change its terms or
purpose.” Assocs. Fin. Servs. Co. of Haw. v. Mijo, 950 P.2d 1219, 1232 (Haw.
1998). Indeed, “[a]n ‘essential term’ . . . is not merely a term that one of the parties
views as ‘essential to inducing his or her assent, . . . but rather a term integral to the
contract itself, such as a price term specifying the monthly rent or a term indicating
how rent should be calculated[.]” Boskoff, 217 F. Supp. 2d at 1088.
The Court finds that all essential terms to the settlement agreement
were present in the April 30, 2010 offer, such as the monthly principal, interest
payments, and interest rates. That the specific mechanics of the settlement
14
agreement, such as the first date of payment, had not been worked out is
immaterial.
In sum, the Court finds the settlement agreement was plain, clear and
unambiguous as to its essential terms. It did not include an up front payment term
nor a specific date when payments were due to start.
II.
Repudiation and Attorney’s Fees
The final argument U.S. Bank raised in opposition to Plaintiffs’
Motion, the extent to which Plaintiffs’ failure to pay in accordance with the terms
of the settlement agreement affects Plaintiffs’ Motion, is the primary focus of its
Objections before this Court.1 Judge Puglisi resolved this issue by concluding that
U.S. Bank’s repudiation excused Plaintiffs’ failure to perform under the settlement
agreement. (FR at 15–16.) Judge Puglisi recommended to this Court that the
settlement agreement should be enforced beginning September 1, 2011.
“An anticipatory repudiation refers to a breach of contract ‘committed
before the time specified for performance . . . has arrived.’” Kersh v. Manulife
Financial Corp, --- F. Supp. 2d ---, 2011 WL 2135359, at *5 (D. Haw. May 31,
1
As discussed, U.S. Bank’s arguments discussed supra were raised in the
Objections only to the extent that U.S. Bank states that it “generally objects to the
Recommendation on the grounds set forth in its opposition to [Plaintiffs’] Motion.”
(Obj. at 1–2.)
15
2011) (quoting 17A Am. Jur. 2d § 716); see also Restatement (Second) of
Contracts § 250 (1979) (“A repudiation is . . . a statement by the obligor to the
obligee indicating that the obligor will commit a breach that would of itself give
the obligee a claim for damages for total breach .”). When the doctrine applies,
“the injured party has the option to sue either when the anticipatory repudiation
occurs or at the later time for performance under the contract.” Kersh, 2011 WL
2135359, at *5. Moreover, “[w]here performances are to be exchanged under an
exchange of promises, one party’s repudiation of a duty to render performance
discharges the other party’s remaining duties to render performance.” Restatement
(Second) of Contracts § 253(2).
The application of this doctrine here is straight forward. U.S. Bank
repudiated the settlement agreement when it refused to settle the case as agreed.
Once that occurred, Plaintiffs were under no obligation to uphold their end of the
agreement, specifically, to make monthly payments in compliance with the loan
modification agreement. See id.
U.S. Bank contends that
the Recommendation explains both too much and too little. Too
much, because if Plaintiffs are discharged from their obligations under
the settlement agreement, why then must they start making payments
on September 1, 2011 or indeed at any time? Too little, because if
Plaintiffs are discharged, the Recommendation gives no explanation
16
for enforcing an agreement from which the Plaintiffs are to be
discharged.
(Obj. at 4.) In making this argument, U.S. Bank overlooks the basic fundaments of
contract law. In requesting the Court to enforce the settlement agreement,
Plaintiffs are not merely seeking a discharge of their obligations under the
settlement agreement,2 but also seek to recover the benefit of their bargain. Indeed,
“[j]udicial remedies [in contract law] . . . serve to protect [a party’s] ‘expectation
interest,’ which is his interest in having the benefit of his bargain by being put in as
good a position as he would have been in had the contract been performed.”
Restatement (Second) Contracts § 344 (emphasis added). Relieving Plaintiffs of
their obligations under the settlement agreement hardly places Plaintiffs in as good
a position they would have been otherwise had U.S. Bank adhered to the terms of
the settlement agreement; Plaintiffs would still have to litigate a federal lawsuit.
Instead, Plaintiffs, by filing their Motion to Enforce, are effectively seeking a
decree of specific performance from this Court. This is an appropriate remedy
under these circumstances. Id. § 253 cmt. b (“Of course, in appropriate
circumstances, the injured party can, after a breach by repudiation alone, pursue
alternative relief by seeking, for example, a decree of specific performance or an
2
Though to be certain, they seek a discharge of their obligations from the
time of the repudiation until present.
17
injunction.”); see also TNT Marketing, 796 F.2d at 278 (noting that upon breach of
a settlement agreement, the court may award damages or specific performance as
appropriate). U.S. Bank’s argument here misses this larger point—Plaintiffs are
entitled to the benefit of the bargain to which they agreed. Moreover, it is
appropriate under these circumstances to excuse Plaintiffs’ performance due to
U.S. Bank’s repudiation of the settlement agreement pending judicial enforcement
of the settlement agreement.
U.S. Bank also relies upon Golf Carts, Inc. v. Mid-Pacific Country
Club, 493 P.2d 1338 (Haw. 1972), to argue that it never repudiated the settlement
agreement. There the parties disagreed as to the duration of a 70%–30% division
of golf cart rental proceeds. Id. at 1139. The party who was actually collecting the
rental proceeds continued to retain 70% of the proceeds after the other party
thought the contract called for only 50% of the proceeds to be obtained and sought
rescission on the grounds of repudiation. Id.
The Hawaii Supreme Court refused to find repudiation, instead stating
that “the disagreement was nothing more nor less than an attempt on the part of
each party to insist on performance according to his own interpretation of the
contract terms.” Id. at 1340. The Court went on to hold:
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A repudiation which may be treated as a breach justifying nonperformance by the other party must be distinct, unequivocal and
absolute refusal to perform according to the terms of the
agreement. . . .
As we interpret the authorities, appellant’s remedy was to tender
performance according to his own interpretation of the agreement, or
according to appellee’s interpretation reserving his rights as to the
proper interpretation of the contract and then the parties could seek
relief in the courts for construction of its terms.
Id. U.S. Bank contends this authority stands for the proposition that
a) there can be no repudiation with respect to a dispute over a term of
the agreement, b) there must be ab absolute refusal to perform
according to the terms of the agreement and c) where there is
disagreement as to a term, a party should tender performance . . . and
seek judicial resolution, not be discharged from performing.
(Obj. at 6.)
The Court agrees with U.S. Bank’s interpretation of Golf Carts, but
concludes that it is not applicable here. As discussed, there was not a dispute with
respect to a term of the contract; there simply was no term in the contract.
Moreover, U.S. Bank here has plainly refused to perform according to the terms of
the agreement. Specifically, U.S. Bank refused to settle the case as the parties
agreed. Finally, Plaintiffs immediately sought judicial resolution of the
controversy. The docket reflects no fewer than five settlement conferences were
held after the terms of the settlement agreement were tentatively placed on the
record before Judge Kobayashi in August 2010. Ultimately, Plaintiffs were forced
19
to file their Motion to Enforce Settlement. It is hard to conceive of what more
Plaintiffs had to do to seek judicial resolution of the controversy. Defendants’
reliance on Golf Carts is not persuasive.
In sum, U.S. Bank plainly repudiated the settlement agreement.
Plaintiffs appropriately withheld performance pending judicial resolution of the
repudiation and were entitled to seek specific performance per the terms of the
settlement agreement via their motion. U.S. Bank’s arguments to the contrary are
without merit. In granting Plaintiffs the relief they seek, Judge Puglisi did not err
in establishing September 1, 2011 as the first payment date per the terms of the
settlement agreement.
In light of these conclusions, U.S. Bank’s final contention, that Judge
Puglisi erred in inviting Plaintiffs to seek attorney’s fees, is also without merit.
U.S. Bank contends that because Plaintiffs breached by failing to pay per the terms
of the settlement agreement, they should not be entitled to attorney’s fees. As the
Court found supra, however, Plaintiffs did not breach; they were excused from
making payments until resolution of this matter before the Court. Accordingly,
Judge Puglisi did not err by inviting Plaintiffs to file a Motion for attorney’s fees.
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CONCLUSION
For these reasons, the Court ADOPTS the Magistrate Judge’s
Findings and Recommendations. (Doc. # 74.)
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 23, 2011.
_____________________________
David Alan Ezra
United States District Judge
Constantino v. U.S. Bank, N.A., et al., CV 09-00066 DAE-RLP; ORDER
ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS
21
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