Whittier et al v. Ocwen Loan Servicing, LLC et al

Filing 88

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 75 Memorandum and Recommendations. (Signed by Judge Charles Eskridge) Parties notified. (jmg4)

United States District Court
Southern District of Texas

ENTERED
May 10, 2024
Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHARLES A.
WHITTIER and
YVETTE E. WHITTIER,
Plaintiffs,

§ CIVIL ACTION NO
§ 4:18-cv-00747
§
§
§
§
vs.
§ JUDGE CHARLES ESKRIDGE
§
§
OCWEN LOAN
§
SERVICING LLC, et al, §
Defendants. §
ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION
Plaintiffs Charles A. Whittier and Yvette E. Whittier
initiated this case in February 2018 to enjoin foreclosure
on their home. Dkt 1. The parties settled their dispute in
July 2019, and the Court (per Judge Gray Miller) entered
a final order of dismissal. Dkt 36. The case returned in
October 2019 when Plaintiffs filed a motion to enforce the
settlement agreement, but the case wasn’t reopened at that
time. Dkt 37.
Defendants later moved to reopen the case on
November 11, 2022. Dkt 59. The action was transferred to
this Court on November 14, 2022. The motion to reopen
was then granted on April 27, 2023. Dkt 64.
Defendants filed a motion to dissolve the injunction
issued in April 2020 during the pendency of Plaintiffs’
motion to enforce the settlement agreement. Dkt. 64. The
matter was referred for disposition to Magistrate Judge
Christina A. Bryan. Dkt 73. She issued a memorandum
and recommendation dated February 20, 2024. Dkt 75. She

recommends that the injunction entered on April 8, 2020,
be dissolved because (i) the court didn’t retain jurisdiction
to enforce the settlement agreement when it entered the
July 2019 final dismissal order, thus requiring
enforcement of the settlement agreement to be brought by
way of separate action for breach of contract, id at 6–8, and,
(ii) alternatively, Plaintiffs have continued to fail to make
loan payments, id at 8–12.
Pending are objections by Plaintiffs to the memorandum and recommendation. Dkt 80. Defendants responded.
Dkt 87.
The district court reviews de novo those conclusions of
a magistrate judge to which a party has specifically
objected. See FRCP 72(b)(3) & 28 USC § 636(b)(1)(C); see
also United States v Wilson, 864 F2d 1219, 1221 (5th Cir
1989, per curiam). The district court may accept any other
portions to which there’s no objection if satisfied that no
clear error appears on the face of the record. See Guillory v
PPG Industries Inc, 434 F3d 303, 308 (5th Cir 2005), citing
Douglass v United Services Automobile Association, 79 F3d
1415, 1430 (5th Cir 1996, en banc); see also FRCP 72(b)
advisory committee note (1983).
Upon de novo review and determination, Plaintiff’s
objections
lack
merit.
The
memorandum
and
recommendation clearly details the pertinent facts and
correctly applies controlling law regarding the court’s lack
of continuing jurisdiction to enforce the settlement
agreement. See also Dkt 87 at 3.
No clear error otherwise appears upon review and
consideration of the memorandum and recommendation,
the record, and the applicable law.
The objections by Plaintiffs to the memorandum and
recommendation of the Magistrate Judge are OVERRULED.
Dkt 80.
The memorandum and recommendation is thus
ADOPTED as the memorandum and order of this Court.
Dkt 75.

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The injunction entered on April 8, 2020, is DISSOLVED.
Dkt 48.
This case is DISMISSED WITH PREJUDICE.
For the avoidance of doubt, jurisdiction isn’t retained
to enforce the 2019 settlement agreement. This means, as
noted in the memorandum and recommendation, that a
separate action for breach of contract may be brought to
enforce that agreement. Dkt 75 at 8. Such action would also
be able to consider the putative failure of Plaintiffs to make
payments for over the past three years—along with all
other available defenses. Id at 8–9.
SO ORDERED.
Signed on May 8, 2024, at Houston, Texas.
___________________________
Hon. Charles Eskridge
United States District Judge

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