Hanzl v. Collier et al

Filing 85

ORDER Adopting 84 Report and Recommendations; granting 82 Motion for Final Deficiency Judgment in the amount of $25,266.42 filed by Plaintiff Marianne Hanzl. Signed by Senior Judge Donald E OBrien on 8/18/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARIANNE HANZL,
Plaintiff,
vs.
ROBERT L. COLLIER AND
GERTRUD M. COLLIER,

No. 10-CV-4122-DEO
ORDER ON REPORT AND
RECOMMENDATION

Defendants.
____________________
Before the Court and on file at Docket No. 84 is the
Report and Recommendation (“R&R”) issued by Magistrate Judge
Leonard T. Strand concerning entry of final judgment in the
above captioned case.
I.

BACKGROUND
The Court has previously detailed the facts of this case

in the Magistrate's prior R&R, Docket No. 42, the Court's
prior Order Accepting the Magistrate's R&R, Docket No. 52, and
another prior R&R, Docket No. 74.

In short, Ms. Hanzl, a

German national, made the ill fated decision to befriend the
Colliers.

Ms. Hanzl, residing in Germany, used the Colliers

as her agents to sell a property she owned in Arizona.

The

Colliers sold Ms. Hanzl's property but did not remit the money
to Ms. Hanzl.

Ms. Hanzl eventually brought the present suit

against the Colliers to recover the value of the property. In
2012, the parties held a settlement conference with then
Magistrate Zoss.

The parties reached a tentative agreement

after the settlement conference, and the Court stayed any
further proceedings.
However, several months later, the Colliers had not acted
on the agreement and Ms. Hanzl was forced to file a Motion to
Enforce Settlement.

Magistrate Strand initially considered

that Motion and concluded that Ms. Hanzl was entitled to
$262,500.

Because the Colliers had not paid that amount, the

Magistrate concluded Ms. Hanzl was entitled to sell a property
in Sioux City that the Colliers had used as security for the
prior agreement.

All told, the Magistrate found that Ms.

Hanzl was entitled to $262,500. However, the Magistrate found
that Ms. Hanzl was not entitled to an award of attorneys fees
under Iowa law.

Finally, the Magistrate found that:

If the net sale proceeds [of the Colliers'
property] are less than $262,500, judgment
will be entered against both defendants,
jointly and severally, for the amount of
the deficiency, unless the court adjusts
the amount of the deficiency based on any
objections the Colliers file with regard to
the sale of the property.
Docket No. 52, p. 12-13.

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Ms. Hanzl subsequently sold the Colliers' property for a
gross sum of $275,000.
had

to

pay

sale

However, Ms. Hanzl reported that she

related

expenses

totaling

$51,431.62.

Accordingly, after expenses, she recovered a net total of
$223,568.38

from

the

sale

of

the

Colliers'

property.

Accordingly, Ms. Hanzl concluded that she was entitled to a
deficiency judgment of $38,931.62 against the Colliers.

In a

prior Report and Recommendation, dated January 31, 2014,
Magistrate recommended entering:
an order granting plaintiff’s motion (Doc.
No. 58) for entry of a preliminary
deficiency judgment by (a) finding that the
defendants owe $23,291.42 to the plaintiff
pursuant to his prior order (Doc. No. 52)
enforcing
the
parties’
settlement
agreement, but (b) deferring the entry of
final judgment until a determination is
made as to whether that amount should be
adjusted
to
reflect
any
income
tax
liability that may accrue to plaintiff due
to her sale of the West Street Property.
Docket No. 74, p. 15-16.
No. 75.

The Court adopted that R&R in Docket

As stated above, the Magistrate’s prior R&R did not

reflect adjustments based on potential income tax liability.
On June 16, 2014, the Plaintiff filed a Motion for Final
Deficiency Judgment.

Docket No. 82.

On July 24, 2014,

Magistrate Strand entered a new R&R regarding Docket No. 82.

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In that R&R Magistrate Strand stated:
[in the prior R&R I made] a preliminary
finding was made that Hanzl was entitled to
judgment against the Colliers in the amount
of $23,291.42. However, the entry of final
judgment was deferred pending possible
adjustments based on an income tax issue.
Doc. No. 75 at 8.
Now, based on the
additional information provided by Hanzl
and the lack of any objection by the
Colliers, I find that Hanzl’s request
reflects the appropriate final resolution
of this case.
As such, I RESPECTFULLY
RECOMMEND that Judge O’Brien enter an order
directing the Clerk to enter final judgment
in favor of Hanzl, and against the
Colliers, in the amount of $25,266.42.
Docket No. 84, p. 1.

Neither party has object to Magistrate

Strand’s current R&R.
II.

STANDARD
Pursuant to statue, this Court’s standard of review for

a magistrate judge’s Report and Recommendation is as follows:
A judge of the court shall make a de novo
determination of those portions of the
report or specified proposed findings or
recommendations to which objection is made.
A judge of the court may accept, reject,
or modify, in whole or in part, the
findings or recommendations made by the
magistrate [judge].
28 U.S.C. § 636(b)(1).
Similarly, Federal Rule of Civil Procedure 72(b) provides
for review of a magistrate judge’s Report and Recommendation
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on

dispositive

motions

and

prisoner

petitions,

where

objections are made as follows:
The district judge to whom the case is
assigned shall make a de novo determination
upon the record, or after additional
evidence, of any portion of the magistrate
judge’s disposition to which specific
written
objection
has
been
made
in
accordance with this rule.
The district
judge may accept, reject, or modify the
recommendation decision, receive further
evidence, or recommit the matter to the
magistrate judge with instructions.
FED. R. CIV. P. 72(b).
Additionally,

failure

to

object

to

the

Report

and

Recommendation waives the right to de novo review by the
district court of any portion of the Report and Recommendation
as well as the right to appeal from the findings of fact
contained therein.

United States v. Wise, 588 F.3d 531, 537

n.5 (8th Cir. 2009).
III.

ANALYSIS
The Court has reviewed the Report and Recommendation,

along with the entire file, and finds Judge Strand’s analysis
and recommendations are appropriate and correct.

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1

For the

Although this Court will not set out the Magistrate’s
entire Report and Recommendation, it is incorporated in its
entirety by reference.
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reasons set out in Docket No. 75, the Court is persuaded that
Magistrate Strand has correctly considered which expenses
should

be

attributable

to

the

Colliers.

Because

the

information provided by the Plaintiff in Docket No. 82 sets
out an additional tax liability of $1,975, the Court will
adopt Magistrate Strand’s Report and Recommendation that final
judgment be entered in the amount of $25,266.42.
IV.

CONCLUSION
For

the

reason’s

set

out

above,

the

Court

adopts

Magistrate Strand’s Report and Recommendation and Orders that
Ms. Hanzl is entitled to a final deficiency award in the
amount of $25,266.42 from the Colliers.

Accordingly, the

Plaintiff’s Motion for a Final Deficiency Judgment, Docket No.
82, is GRANTED.
IT IS SO ORDERED this 18th day of August, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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