Lawyers, can you answer some questions regarding settling a lawsuit?

Yes, I know you’re not my lawyer and your are not responsible for me taking any ideas presented here and destroying my life with them, and you are welcome to add any additional disclaimers you wish.

I am nearly at the end of getting out from under a foreclosure and having the case dismissed. I have made a series of payments to the mortgage holder on an agreed upon schedule, and even the judge said at the last court session that should I complete the payments as scheduled, she expects to dismiss the case at the next hearing (or whatever one would call the particular courtroom session.) This next and perhaps final session is next Tuesday, and I have completed my payments as scheduled.

Over the course of the last year I’ve received communications from at least 3 different offices within Citimortgage, the mega-evil corporate monstrosity that owns the mortgage. There’s a lot of evidence that none of them know that the other branches are also communicating with me – often the instructions or communications from them are in conflict with or contradict one another.

The settlement offer that was put before the court came from one of these, and it’s very specific. Once I have made the payments they will send me a new mortgage to sign, and they even specified the APR and mortgage term.

My concern is that should the case simply be “dismissed” I will continue to receive conflicting and contradictory instructions about resuming my mortgage payments. I do not yet have a new mortgage in hand to sign, and I have no idea whether I’ll get one before next week. For all I know one of their offices will send me a mortgage or make some kind of demand that completely ignores the agreement before the court.

What I want to accomplish is for the terms of the agreement that I’ve been basing these payments on, to be officially recorded as the settlement terms of the case’s dismissal. My non-lawyer self imagines that the case could be dismissed without this, with simply a note that says the case is dismissed by the agreement of both parties. If that’s the case, and Citi then decides to make some other offer that I can’t afford, they could start foreclosure proceedings again next month, and I would either have to repeat the same drawn out ugly process, or sue them for breaching the repayment agreement we had, or both.

OTOH, if the settlement specifics are recorded, I’m imagining I could return to this very judge and get some form of redress as some kind of violation of the terms of the settlement.

Can I do this? How do I do this? Is it done automatically? Is it something I have to specifically request?

How realistic are my concerns?

Oh, and one more thing. We will be ten days away from the 1st of June, and I may not know how much I’m supposed to pay or even where to send the money.

This is a little too important (and complicated) to be discussing on a message board. You need a lawyer licensed in your jurisdiction to advise you.

Seconded. Even if I was your lawyer , I would ask for more information and to see documents before I could answer. Too many variables in facts and thats even before looking into the quirks of the law of the jurisdiction concerned.

Let me restate the issue in a more general way.

Two parties to a lawsuit agree to a settlement and both agree the case can be dismissed. At least one of them doesn’t trust the other to follow the terms of the settlement, nevertheless it’s acceptable on its face.

Do the terms of the settlement (which has already been discussed before the judge) automatically become a part of the court record in any meaningful way? Meaningful in that if they are violated the judge can order some kind of enforcement action.

Or is there some separate (process? motion? request?) required to make it enforceable?

Depends on the jurisdiction, but generally

i) You can ask the Court to add the settlement as part of the judgement of the Court disposing the matter, this is known as a consent decree. The advantages of this are that if the other party violates the agreement, you can bring them up fro contempt of court, which tends to be persuasive.

ii) The very existence of an agreement and its breach creates a seperate and distinct cause of action and you can (even in the absence of a consent decree) file an application for injuctive relief restraining the other party from violating the terms of the agreement.

Which is the best route for you, can only be told to you by your duly engaged Counsel.

Normally before a judge will agree to a dismissal, the settlement agreement should be drawn up and both parties execute it.

Perhaps it’s different because it’s a foreclosure, but the judge did not ask either of to prepare any documents for signature at this hearing.

My assumption, which is perhaps wrong, is that this consent decree will essentially be a form of shortcut to my filing some other kind of action. Is “an application for injunctive relief”, the same thing as filing a lawsuit against the other party for what in laymen’s terms would be called “breach of contract?”

You might simply ask to state the terms of the agreement into the record. Assuming the judge is aware that such an agreement is in place, I’d expect him to ask counsel to do that anyway, but if for whatever reason that doesn’t fit your situation, I can’t think of any reason that wouldn’t be an option.

In other words, the case is called, the judge says “I understand we have an agreement on this matter, is that correct?” and you or the other attorney says that the parties have agreed to have the case dismissed, pursuant to an agreement whereby you will do X, Y and Z. Of course, since it’s their action, not yours, ordinarily I’d expect that they would be more concerned about having those terms enforceable than you would, but I understand this has been a very frustrating case for you.

Perhaps it’s odd, but the only requirement to this agreement is that I made 3 “trial payments” of an amount and on a schedule they specified. My part is already done. Their part remains – providing me with a modified mortgage containing the terms they specified in the agreement.

I suppose I do have remaining obligations - to sign and return the mortgage modification papers, and to meet the revised payment schedule.

No legal knowledge here but I popped in to say

  1. I’m so happy you were able to get things back on track; I know the past few years have been wretched job/finance-wise and it’s got to be beyond good to be getting things under control again, and
  2. While the recent foreclosure proceedings and everything else mean you do not, most likely, have the best credit score right now, it WILL be improving. Use that and get far, far away from Shitibank as soon as you can.