United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
ENFORCE SETTLEMENT AND PLAINTIFF'S MOTION TO VACATE
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
reasons set forth below, the Court DENIES
Plaintiff's motion to vacate the settlement agreement
[ECF No. 26] and ALLOWS Defendant's motion to
enforce the settlement agreement [ECF No. 27].
Mary Kay Keumurian (“Plaintiff”) brought this
action under the Fair Credit Reporting Act, 15 U.S.C. §
1681, et seq., alleging that Defendant Equifax
(“Defendant”) falsely reported a judgment on her
credit report. [ECF No. 1 at 1]. Plaintiff's complaint
states that Target National Bank filed a collection action
against her in 2009. Id. at 2. Shortly thereafter,
Plaintiff filed for bankruptcy, listing Target as one of her
creditors. Id. Although Target's collection
action was automatically stayed due to Plaintiff's
bankruptcy petition, the court in the collection action
nonetheless proceeded to enter judgment. Id.
Plaintiff was unaware of the judgment until she had a
mortgage application denied more than four years later.
Id. at 3. After successfully petitioning to vacate
the Target judgment, Plaintiff notified Defendant, who
initially refused to remove the Target judgment from
Plaintiff's credit report. Id. After some back
and forth, Defendant ultimately removed the judgment from
Plaintiff's credit report. Id. at 3-4. Plaintiff
nonetheless alleges that she suffered damage as a result of
Defendant's initial refusal to remove the information
from the report. Id. at 4.
8, 2015, Plaintiff filed a notice of settlement in this
action, reporting that the matter had been resolved and that
“the parties are finalizing settlement, ” and
requested a 30-day settlement order. [ECF No. 17]. In August
and September 2015, the parties filed two joint motions to
extend time to finalize the settlement, reporting that they
were continuing to discuss the details of the settlement.
[ECF Nos. 19, 21]. On September 30, 2015, Plaintiff's
counsel, Josef Culik, moved to withdraw. [ECF No. 23].
February 2, 2016, Plaintiff filed a motion to vacate the
settlement agreement, and Defendant filed a motion to
enforce. [ECF Nos. 26, 27]. Plaintiff claims she did not
authorize her predecessor counsel, Mr. Culik, to settle the
lawsuit on her behalf. [ECF No. 26]. Defendant argues that
the parties entered into a binding settlement agreement, and
requests that the agreement be enforced. [ECF No. 28 at 1].
The Court held an evidentiary hearing on October 18, 2016.
Plaintiff testified at the hearing, and Defendant introduced
a declaration and exhibits from Mr. Culik, including a series
FINDINGS OF FACT
on the evidence submitted by the parties, as well as
Plaintiff's testimony at the evidentiary hearing, the
Court makes the following findings of fact.
engaged Mr. Culik as counsel in 2014. On October 21, 2014,
they signed a contingency retainer agreement. The retainer
includes a clause titled “Possible Difference Between
My Recovery and the Attorney's Fee, ” which states
that the value of the client's damages may be less than
the value of the attorney's work, that “I
understand that my recovery may be less than what the
Attorney receives, ” and then authorizes the attorney
to negotiate a reasonable fee. Plaintiff initialed this
paragraph in addition to signing the retainer agreement.
December 29, 2014, after Defendant had removed the Target
judgment from Plaintiff's credit report, Mr. Culik sent
an email to Plaintiff advising her that “it is possible
that we could bring a case for statutory damages ($100 to $1,
000), but it is not something that is likely to obtain the
damages you are seeking.” Plaintiff responded on
January 31, 2015, stating that she wanted to proceed with the
Culik engaged in settlement negotiations with Defendant's
counsel via email in May and June 2015. On May 13, 2015, Mr.
Culik wrote in an email to Defendant's counsel that
Plaintiff had authorized him to make a settlement offer of
$12, 290.40. Defendant responded on June 15, 2015 with a
counteroffer of $2, 000. On June 16, 2015, Mr. Culik wrote
that Plaintiff had authorized him to make a counteroffer of
$7, 790.40. On June 18, 2015, Defendant responded with a
counteroffer of $4, 000. On June 21, 2015, Mr. Culik wrote to
Defendant that Plaintiff had authorized him to make a
counteroffer of a lump sum of $6, 500. On June 22, Defendant
made a counteroffer of $5, 000. On June 23, Mr. Culik wrote
that Plaintiff had authorized him to accept Defendant's
offer of $5, 000, and added, “I am glad we were able to
resolve this.” The same day, Defendant's counsel
responded: “Glad we were able to settle.”
Culik consistently communicated with Plaintiff to keep her
informed about the negotiations and to obtain her approval
regarding the various settlement offers. On May 8, 2015, Mr.
Culik sent an email to Plaintiff stating that cases like hers
“usually settle fairly quickly, ” and asking her
to email back to “confirm that, if they accept, we can
settle for the maximum $1, 000 in statutory damages, plus
attorney fees and costs?” On the same day, Plaintiff
wrote back: “Yes, I confirm that we can settle for the
maximum $1, 000 in statutory damages, plus attorney fees and
18, 2015, Mr. Culik sent an email to Plaintiff to inform her
that Defendant “has made an offer that would pay the
required $1, 000 in statutory damages, plus the
attorney's fees that have been incurred (about $3, 000 to
date). I would like to see if I can get them to come up a
little, but would you kindly email me to confirm acceptance
of these terms if we can't get them to come up
more?” On June 20, 2015, Plaintiff responded:
“Yes that is fine.”
23, 2015, Mr. Culik sent an email to Plaintiff stating that
the case had settled. He reported that Defendant would
“pay the max $1, 000 statutory damages, plus the $400
in filing fees, as well as attorney fees. They will be
sending me a draft settlement agreement, which I will review
and send to you for execution. This usually takes a few
weeks. They will also include a current credit report which
they will want you to agree is ...