United States District Court, D. New Jersey
CECILIA J. FOGARTY, Plaintiff,
HOUSEHOLD FINANCE CORPORATION III, et al., Defendants.
REPORT AND RECOMMENDATION REGARDING DEFENDANT
HOUSEHOLD FINANCE CORPORATION'S MOTION TO ENFORCE
SCHNEIDER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the “Motion to Enforce
Settlement” filed by Defendant Household Finance
Corporation (“HFC”). [Doc. No. 191]. The Court
received plaintiff's opposition [Doc. No. 195], HFC's
reply [Doc. No. 196], and exercises its discretion to issue
this Report and Recommendation without oral argument.
Fed.R.Civ.P. 78; L. Civ. R. 78.1. This Report and
Recommendation is issued pursuant to 28 U.S.C.
reasons to be discussed, the Court recommends HFC's
motion be granted and that the first proposed Order included
with HFC's motion [Doc. No. 191-2] be
complaint was removed to federal court on July 17, 2014.
[Doc. No. 1]. Plaintiff's amended complaint was filed on
August 7, 2014 [Doc. No. 5] and her second amended complaint
was filed on January 15, 2016. [Doc. No. 66]. This lawsuit
concerns real property located at 12 Lancaster Court,
Westampton, New Jersey (hereinafter the
“property”) that plaintiff and her then husband,
John Fogarty, purchased in 1979. Plaintiff and Fogarty were
divorced in mid-2015. Plaintiff generally alleges that her
signatures on three mortgages encumbering the property were
forged by defendants Fogarty and Dora Cullen. The third
mortgage remains of record and is held by HFC. See
HFC's Brief at 3, Doc. No. 191-1. Plaintiff's second
amended complaint asserts three claims against HFC. In Count
I, plaintiff alleges violations under RESPA. In Count IV,
plaintiff alleges violations under FCRA. In Count V,
plaintiff asserts a quiet title claim seeking to declare the
subject mortgage void and enforceable based on forgery.
motion seeks to enforce a purported settlement agreement
between plaintiff and HFC. HFC alleges plaintiff's
counsel agreed to settle plaintiff's claims against HFC
on August 25, 2017, when plaintiff's counsel stated as
follows in an email that date to defense counsel:
My client has responded as follows in acceptance HFC's
“I confirm that I agree to accept the confidential
settlement offer from HFC which includes the dismissing of
their claims against me with prejudice, satisfying the
mortgage and removing it from land records, fully deleting
the trade lien (credit history) on my credit so that the
mortgage does not show and the history of it does not show,
and in return that I will dismiss my claims against them with
I appreciate that we have brought this matter to a close.
We can work on the paper work when you wish to in the very
Please confirm receipt of this e-mail when you can.
Motion, Exhibit 4. Notably, the email does not state the
payment of plaintiff's attorney's fees is part of the
settlement or a condition to settling. A few minutes after
plaintiff's email was sent defense counsel confirmed that
plaintiff confirmed the settlement:
Thanks for confirming our deal. We're glad that HFC and
Ms. Fogarty were able to reach a resolution. We'll take a
first crack at the settlement papers, and will try to get
something over to you next week.
Have a good weekend.
Id. In a letter to the Court on August 31, 2017,
plaintiff's counsel again confirmed plaintiff settled
Dear Judge Schneider:
I represent Cecilia Fogarty, the Plaintiff in the
above-referenced action. As you are aware from the letter of
August 28, 2017 from Household Finance Corporation's
(“HFC”) attorney, Philip A. Magen, Esq., John
Fogarty and HFC have come to a settlement agreement. In
addition, HFC and my client have come to a settlement
Exhibit 6. Again, plaintiff did not mention that the payment
of plaintiff's attorney's fees was included as part
of the settlement. Nor did plaintiff state settlement was
contingent on the payment of plaintiff's fees.
September 22, 2017, HFC sent a draft Settlement Agreement to
plaintiff's counsel. Exhibit 7. When plaintiff's
counsel sent HFC her lengthy comments on October 10, 2017
(Exhibit 8), she did not comment on ¶17 of the proposed
Settlement Agreement that provided, “each of the
parties shall bear their own attorney's fees and costs in
connection with the litigation.” Exhibit 7. HFC
circulated another draft Settlement Agreement on October 12,
2017 (Exhibit 9) that also did not provide for HFC's
payment of plaintiff's attorney's fees.
counsel confirmed in her October 19, 2017 email that
HFC's payment of plaintiff's legal fees was not part
of the settlement. (“I … have explained to
[plaintiff] why HFC has agreed to the settlement but does not
agree to pay her legal fees. I have told everyone in this
matter that I have presented to Mrs. Fogarty what the content
of the settlement is and why HFC does not agree to pay her
legal fees.” Exhibit 11.) On November 15, 2017,
plaintiff's counsel advised HFC that plaintiff would not
sign the settlement agreement unless HFC paid her legal fees.
Exhibit 13. HFC's motion seeks to enforce its settlement
agreement with plaintiff.
discussed herein, plaintiff's counsel acknowledged in her
opposition papers that the parties settled. In view of this
admission, plaintiff's defense to HFC's motion is
hard to decipher. The crux of plaintiff's argument
appears to be as follows:
It is true that HFC counsel never suggested any willingness
to pay Plaintiff's costs and legal fees. However,
Plaintiff was and is firm in her belief that in return for
dismissing her RESPA and FCRA claims, which may have entitled
her to damages, legal fees and costs. Plaintiff's counsel
communicated this to HFC at all times throughout the
negotiations. This was an open issue. Plaintiff's
rejection of the settlement without receiving attorney ...