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Kagan v. CitiMortgage, Inc.

Superior Court of Massachusetts, Middlesex

October 21, 2015

DAVID L. KAGAN and CAROL R. KAGAN
v.
CITIMORTGAGE, INC

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO ENFORCE SETTLEMENT AGREEMENT

Rosalind H. Miller, Justice of the Superior Court.

This is an action for breach of contract and other claims arising out of Plaintiffs' David L. Kagan and Carol R. Kagan (the " Plaintiffs") mortgage with the defendant, CitiMortgage, Inc. (the " Defendant")

Currently the matter is before the court on CitiMortgage's Motion to Enforce Settlement Agreement (" Motion").

FINDINGS

After a hearing on October 9, 2015, and upon consideration of the various submissions and oral arguments of the parties, the court makes the following findings by preponderance of the evidence.

Plaintiffs filed this action against the Defendant on October 7, 2013. On April 23, 2015, the Court (Tochka, J.) heard, and took under advisement the Defendant's Motion for Summary Judgment. Shortly after that hearing, counsel for the Plaintiff and the Defendant entered into settlement negotiations. At the time, Plaintiffs were represented by an attorney.

On May 12, 2015, the parties agreed to compromise and settle their dispute on the following terms:

(1) The Kagan's will accept a no document, no application, streamlined loan modification on their first mortgage loan currently serviced by CMI, which will result in a monthly payment of $2402.40 for 480 months/40 years. This amount includes escrow, with the monthly breakdown as follows: Principal and interest: $1797.01; Taxes and Insurance: $605.39. A formal, final loan modification agreement will include these and all other typical modification -- related terms and will be recorded in the land evidence records once fully signed.
(2) The first modified payment is due on June 1 as part of an initial three month TPP (Trial Period Plan payment), which must proceed as a formality the formal, final loan modification agreement. Once those three TPP payments are made, a permanent, final loan modification agreement would be generated for the parties execute. There is no balloon payment in connection with either the TPP or the formal, final loan modification agreement.
(3) In order to achieve this monthly payment, consistent with your request below, a down payment (i.e., cash payment into the account, ) is required As part of the settlement agreement, CMI agrees to make down payment IN FULL on behalf of the Kagan's, so that no down payment is required from them. This is not a loan, nor is it a paper-based write-down. Instead, CMI will pay in cash into the mortgage account in order for the modification to result in a monthly payment of Principal and Interest of $1797.01
(4) CMI will pay the Kagans by way of a check to be paid within a specified amount of time (likely 30 days) after a formal settlement agreement is fully executed, dismissal stipulation has been filed, and their June 1 TPP payment has been made.
(5) In exchange for the above, Kagans will dismiss CMI, with prejudice, with no right of appeal, all parties to bear their own costs, and sign a full and complete, and confidential, settlement agreement, which sets out the above and other customary terms, including a full release of CMI, strict confidentiality provision that prohibits discussion of the settlement with any third party, etc.
(6) Kagans will immediately send a letter to CMI withdrawing their recent QWR requests, so that no response ...

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