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Fresquez v. Nationstar Mortgage, LLC

United States District Court, D. Nevada

July 5, 2017

ERNEST FRESQUEZ, JR., Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC; U.S. BANK, N.A.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; and DOES 1-10, inclusive, Defendants.

          ORDER

          Kent J. Dawson United States District Judge

         Presently before the Court is Defendants Nationstar Mortgage, LLC (“Nationstar”) and U.S. Bank, National Association as Trustee for Harborview Mortgage Loan Trust 2005-16 (“US Bank”) (hereinafter “Defendants”) Motion to Enforce Settlement, or in the Alternative, to Dismiss for Failure to Prosecute (#41/43). Plaintiff Ernest Fresquez, Jr. filed a response in opposition (#45) to which Defendants replied (#47).

         I. Background

         Plaintiff brought the present case in the Eighth Judicial District Court of Nevada on May 12, 2016. (#1-2). The case was removed on June 8, 2016. (#1). The action concerns real property located at 9200 Eagle Ridge Drive, Las Vegas, Nevada 89134 (“the property”). Plaintiff has failed to submit a mortgage payment in 66 months (totaling over $222, 500). (#43-I). Plaintiff's complaint (#1-2) alleged that Defendants and then co-defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) had violated sections of the Nevada Homeowner's Bill in attempting to foreclose on the property for delinquent payments. An order (#29) was granted staying discovery for, and only for, MERS on August 12, 2016. Claims against MERS were subsequently dismissed (#36) by the Court on March 29, 2017.

         A. Settlement Agreement

         On January 19, 2017, Defendants emailed (#43-B) a settlement offer to Plaintiff. The settlement offer was for $5, 000 in exchange for full release of all claims against Nationstar and U.S. Bank, contingent upon Plaintiff vacating the property within 30 days of receipt of the settlement check and agreeing to an uncontested foreclosure. The offer was to remain open until February 3, 2017, but at the request of the Plaintiff on February 02, 2017, the offer was extended until February 10, 2017. (#43-B, F, H). Defendants spoke to Plaintiff on the phone, and confirmed by email on February 10, 2017, about Plaintiff's acceptance of the offer contingent upon a waiver of deficiency judgment. (#43-J). The contents of the email state:

Thank you for your phone call. Please allow this email to confirm our conversation at which time you conveyed your client's acceptance of Nationstar's offer to settle this case as follows:
Nationstar will pay Mr. Fresquez $5, 000 in exchange for a full release of all claims against Nationstar and U.S. Bank. Mr. Fresquez will vacate the property within 30 days of receipt of the settlement check and agrees to an uncontested foreclosure.
However, you noted your client's acceptance is contingent on receiving a waiver of deficiency judgment. Technically, this may be a rejection and counter-offer[.]

         Plaintiff acknowledged this confirmation email in his reply, “Yes...thanks...let me know ..... I want to try and get this done as well ...... ” (#43-K).

         On February 15, 2017, Defendants accepted Plaintiff's counteroffer by phone and then emailed to confirm their conversation:

Please allow this email to serve as confirmation of our earlier conversation. This afternoon I advised you of Nationstar's acceptance of Fresquez's counter-offer to resolve the above-reference matter, to wit, Nationstar will pay Fresquez $5, 000 in exchange for a full release of all claims against Nationstar and U.S. Bank. Fresquez will vacate the property within 30 days of receipt of the settlement check and agrees to an uncontested foreclosure. Nationstar will waive any deficiency of judgement.
It is imperative that this matter concludes in a timely fashion. We will begin drafting settlement documents and forward the same to you immediately. Given the extremely delinquent status of Fresquez's loan, please let me know by Monday [February 20, 2017] at 5:00 p.m. if you have any reason to believe your client will not follow through as we will be forced to seek immediate court intervention, and will request fees and cost in doing so.

         Plaintiff's counsel's reply stated he had received Defendants email and had detailed discussions surrounding the offer with his client. (#43-M). Plaintiff further stated that he appreciated an ...


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