Alexander et al v. DLJ Mortgage Capital, Inc. et al

Filing 106

ORDER adopting 98 Report and Recommendations; overruling plaintiff's objections to 98 Report and Recommendations; denying as moot 65 Motion for Summary Judgment; denying 81 Motion for relief from verbal settlement agreement; granting 88 Motion for Settlement Agreement Enforcement; denying 104 Motion for Sanctions. Defendants are ordered by 10/2/17 to forward plaintiff for his signature the settlement agreement and release of claims, stipulation of dismissal with prejudice and Deed in Lieu of Foreclosure. Plaintiff is ordered to execute and return all of these documents to defendants for filing by Wednesday, October 11, 2017. Signed by District Judge Tom S. Lee on 9/28/17 (copy of NEF and order mailed to plaintiff at 108 Ingleside East Drive, Madison, MS 39110) (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ESTATE OF REDDIE ALEXANDER
VS.

PLAINTIFF
CIVIL ACTION NO. 3:15CV293TSL-RHW

DLJ MORTGAGE CAPITAL, INC.,
SELENE FINANCE INC., AND OTHER
ENTITIES KNOWN OR UNKNOWN

DEFENDANTS
ORDER

This cause is before the court on objections by plaintiff
Estate of Reddie Alexander to the August 28, 2017 report and
recommendation of the magistrate judge recommending that
plaintiff’s Motion for Relief from Verbal Settlement Agreement be
denied, that defendants’ Motion to Enforce Settlement Agreement be
granted, and that defendants’ request for sanctions be denied.

In

addition to his objections to the magistrate judge’s report and
recommendation, plaintiff has filed a motion requesting that
defendants be required to pay to him monetary sanctions of $12,500
for having presented to him for execution a Settlement Agreement
and Release of Claims that includes terms which he contends were
not part of the agreed settlement terms.
Plaintiff vaguely objects that the magistrate judge “did not
properly consider [his] Motion for Relief from Verbal Settlement
Agreement,” and that defendants withheld certain information/
documents from him which, if properly disclosed, would have
affected his decision to settle and/or the terms of any

settlement.

However, it is clear that plaintiff is not entitled

to relief from the settlement agreement and that defendants are
entitled to enforce the settlement agreement in accordance with
the terms reflected in the official transcript of the parties’
verbal settlement agreement.

The magistrate judge’s report and

recommendation is consistent with the terms identified in that
transcript.

Accordingly, plaintiff’s objections to the report and

recommendation are overruled.
In his motion for sanctions, plaintiff argues that the
Settlement Agreement and Release of Claims that defendants have
prepared and presented for his signature does not reflect the
terms of the parties’ verbal agreement.

In particular, he objects

that the proposed Settlement Agreement and Release of Claims
(1) inaccurately refers to him as “Borrower” when he was not a
borrower on the subject mortgage; and (2) requires him to pay
defendants $6,250 as a penalty in the event he fails to timely
vacate the property or in the event he or anyone else claiming an
interest in the property objects to foreclosure or seeks to have
the foreclosure set aside since there was nothing in the verbal
settlement agreement requiring him to repay defendants $6,250
under any circumstances.

Plaintiff submits that defendants’ bad

faith inclusion of these terms warrants the imposition of
sanctions.

The court finds otherwise.

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The fact that the settlement papers presented to Mr.
Alexander for his signature collectively refer to him and the
Estate of Reddie Alexander as “Borrowers” has no legal
significance.

This is merely a label employed for the purpose of

identifying and referring to the parties to the settlement and its
use was not improper, much less in bad faith.
The court is not persuaded that defendants acted in bad faith
by including language in the Settlement Agreement and Release of
Claims requiring plaintiff to return defendants’ initial $6,250
payment in the event plaintiff fails to timely vacate the property
or in the event that he “or anyone else claiming an interest in
the property” objects to the foreclosure or seeks to have the
foreclosure set aside.

However, this term is not reflected in, or

necessarily implied by the terms of the parties’ settlement
agreement, as set forth in the transcript of that agreement.
Accordingly, paragraph 3 of the Settlement Agreement and Release
of Claims should read as follows:
3. Payment by Selene. Selene shall pay any one of the
Borrowers the sum of $6,250.00 by check upon Borrowers
providing Lenders’ counsel, Sheldon G. Alston of
Brunini, Grantham, Grower & Hewes, PLLC, with an
executed original of this Agreement, an executed
stipulation of dismissal with prejudice in the form
attached as Exhibit A, and an executed and acknowledged
Deed in Lieu of Foreclosure in the form attached as
Exhibit B, which Lenders shall accept subject to the
condition that no other liens remain on the Property and
a foreclosure sale is not necessary to eliminate those
liens. Borrowers shall vacate the property by November
30, 2017 and deliver the keys to the Property to Sheldon
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G. Alston. Borrowers shall leave the Property in broom
swept condition. All fixtures and appliances (with the
exception of the washer, dryer, refrigerator) shall
remain in the Property. Within ten (10) business days
of confirmation by Selene that Borrowers have vacated
the Property, turned over the keys, left the Property in
broom swept condition, and that all fixtures and
appliances (with the exception of the washer, dryer, and
refrigerator) remain, Selene shall pay any one of the
Borrowers the sum of $6,250.00. Borrowers recognize
that Lenders will be foreclosing on the Property, and
Borrowers will not object to the foreclosure sale or
seek to have the sale set aside. In the event that
Borrowers fail to vacate the Property by November 30,
2017, or some other date mutually agreed to by the
Parties in writing, or if fixtures and/or appliances
(with the exception of the washer, dryer, and
refrigerator) have been removed, or in the event that a
Borrower objects to the foreclosure of the Property or
seeks to have the foreclosure sale set aside, Lender
shall be entitled to injunctive relief compelling
Borrowers’ compliance with the terms of this Agreement
and all court costs and attorneys’ fees incurred by
Lenders in seeking such relief. If Borrowers fail to
completely comply with the terms of this Agreement,
Lenders may, in their sole discretion, declare this
Agreement null and void and return any deed executed by
Borrower(s).
Based on the foregoing, it is ordered that plaintiff’s
objections to the magistrate judge’s report and recommendation are
overruled, and it is ordered that plaintiff’s motion for sanctions
is denied.

It is further ordered that on or before Monday,

October 2, 2017, defendants shall forward to plaintiff for his
signature the Settlement Agreement and Release of Claims (with the
modified paragraph 3 set forth above), and the accompanying
stipulation of dismissal with prejudice and Deed in Lieu of
Foreclosure, which are attached as exhibits to defendants’

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response to plaintiff’s motion for sanctions.

Plaintiff shall

execute and return all of these documents to defendants for filing
on or before Wednesday, October 11, 2017.
SO ORDERED this 28th day of September, 2017.

/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE

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