United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge
and Catherine Fannon brought suit against U.S. Bank as
trustee of the MASTER Asset Backed Securities Trust 2006-NC1,
Mortgage Pass-Through Certificates Series 2006-NC1, alleging
claims arising out of the foreclosure sale of their home.
After the parties notified the court that the case had
settled, U.S. Bank moved to enforce the settlement. The
Fannons, who are now proceeding pro se, did not respond. The
magistrate judge issued a report and recommendation that U.S.
Bank's motion be granted. The Fannons did not respond to
the report and recommendation.
Fannons, while represented by counsel, brought suit in state
court against U.S. Bank, N.A., to enjoin the imminent
foreclosure sale of their home. In support, they alleged that
U.S. Bank lacked the power to foreclose, that U.S. Bank had
breached the implied duty of good faith and fair dealing,
that they had not defaulted under the note, that there was
not an enforceable mortgage contract with U.S. Bank, and that
they had rescinded the note and mortgage. U.S. Bank removed
the case to this court, and the foreclosure sale was held two
weeks later on April 29, 2016.
Fannons filed an amended complaint alleging that U.S. Bank
lacked the power to foreclose, breach of the implied covenant
of good faith and fair dealing, rescission, and wrongful
foreclosure. U.S. Bank moved to dismiss the claims in the
amended complaint. The Fannons objected and moved to certify
a question about consummation of a mortgage to the New
Hampshire Supreme Court. The court denied the motion for
certification. See Order, Sept. 20, 2016, doc. no.
court granted U.S. Bank's motion to dismiss Counts II,
III, and IV, but denied the motion as to Count I, which
alleged that U.S. Bank lacked the power to foreclose, and
Count V, which alleged a claim for wrongful foreclosure. See
Order, Sept. 20, 2016, doc. no. 34. The Fannons
moved for reconsideration, which was denied. See Order, Oct.
25, 2016, doc. no. 40. The parties' discovery
plan was approved on November 16, 2016.
March of 2017, the Fannons' counsel moved to withdraw due
to an irremediable breakdown of the lawyer-client
relationship. The motion was granted, and the Fannons were
directed to enter an appearance by counsel or appearances pro
se by April 18, 2017. When no appearance was entered by that
deadline, the magistrate judge ordered the Fannons to enter
pro se appearances or have counsel enter an appearance on
their behalf by April 25, failing which the discovery status
conference scheduled for that date would be cancelled and a
show cause hearing would be held in its place.
Fannons filed pro se appearances and attended the discovery
status conference on April 25, 2017. At the conference, the
parties represented that the case had settled. See
Transcript, April 27, 2017. The magistrate judge gave the
parties sixty days to file an agreement for the entry of
judgment or a stipulation of dismissal.
2, 2017, U.S. Bank moved to enforce the settlement. The
Fannons did not respond to the motion. The court referred the
motion to the magistrate judge, who issued a report and
recommendation that the motion be granted. See R & R,
Oct. 4, 2017. The Fannons did not respond to the report and
district court may refer a pending motion for dispositive
relief to a magistrate judge for a report and recommendation.
28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). Once it
is issued, a party may file an objection to the report and
recommendation within fourteen days. § 636(b);
Fed.R.Civ.P. 72(b)(2). “The district court judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(2). When a party fails to object, however,
the court may adopt the report and recommendation, and the
party waives the right to appeal that decision. M. v.
Falmouth Sch. Dep't, 847 F.3d 19, 25 (1st Cir.
2017); Santos-Santos v. Tores-Centeno, 842 F.3d 163,
168 (1st Cir. 2016).
Report and Recommendation, the magistrate judge found that
U.S. Bank's representations about the terms of the
parties' settlement agreement were consistent with the
transcript of the April 25th hearing and the magistrate's
observations and recollections. The magistrate judge
recommended that the court order the Fannons to vacate the
property and direct the parties to file an entry of judgment
or stipulation of dismissal within forty-five days of
approval of the report and recommendation. There being no
objection to the magistrate's findings and
recommendations, the findings and recommendations are
approved and adopted as follows.
Fannons and U.S. Bank entered into an enforceable settlement
agreement as of April 25, 2017. Under the terms of the
settlement, the Fannons agreed to vacate the property located
at 537 Turnpike Road, New Ipswich, New Hampshire, within
sixty days of April 25, 2017. The Fannons also agreed to
dismiss their claims against U.S. Bank with prejudice. In
exchange, U.S. Bank promised not to evict the Fannons from
the property during that time and to waive any deficiency ...