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House v. Pasquale Erminio Guadagno

March 9, 2010

HAROLD D. HOUSE, PLAINTIFF,
v.
PASQUALE ERMINIO GUADAGNO, FMI, INC., DAVID PARSONS, DUPONT SECURITIES, SANDY WEISS, RANDY STRAUSBERG, JON BLOOMBERG, SHOSHANA KAIMANN, MARC GREENSPAN, GEORGE WARDE, JERRY SENDROW, SILVIO REALI, CHARLES ROESKE, AND BOB GIGLIOTTI, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

On December 9, 2005, the Court "so ordered" a proposed stipulation dismissing the above-captioned action with prejudice ("December 2005 Order"). On January 9, 2006, pro se Plaintiff Harold D. House ("Plaintiff" or "House") filed a proposed order to show cause requesting that the Court vacate the December 2005 Order. Plaintiff contends that he only intended to dismiss his claims against certain of the named Defendants and had no intention to dismiss the action in its entirety.

Subsequent to a conference held in February 2006, the Court received submissions from the Parties concerning the circumstances of the settlement that led to the filing of the stipulation of dismissal. In the Court's Order dated April 20, 2006 ("April 2006 Order"), the Court granted the Parties permission to submit any additional evidence that they wished the Court to consider, but warned that any additional evidence must be submitted "no later than Wednesday, May 10, 2006." Finally, the Court directed that "[b]y May 10, 2006, the Parties should also submit memoranda of law explaining why Plaintiff is (or is not) entitled to have his stipulation of dismissal vacated." (April 2006 Order 2.) Both parties complied with the Court's April 2006 Order, and over the following year, submitted additional letters to the Court. Due to a clerical error, Plaintiff's motion was never docketed as a motion, and therefore never came to the Court's attention. Nearly three years later, with the case still appearing as closed, House submitted his most recent letter to the Court seeking to clarify earlier-filed submissions by the Defendants and to ask the Court to decide his motion. The Court, as a result of the aforementioned clerical error, erroneously rejected House's most recent letter submission. Accordingly, the Court's Notice, dated December 4, 2009 should be disregarded.

Pending before the Court is Plaintiff's motion to vacate the stipulation of dismissal with prejudice, dated November 29, 2005. For the reasons discussed below, Plaintiff's motion is DENIED.

BACKGROUND

Due to his default on his mortgage, House was named as a defendant in a foreclosure action in the Supreme Court of New York. Thereafter, House brought an emergency Order to Show to stay the foreclosure sale, which was scheduled for November 2, 2005. The Court granted the application and set the matter down for a hearing on November 2, 2005 just prior to the scheduled sale. House, Richard Bartel, Esq. ("Bartel"), who held a second mortgage on the house, Samit Patel, Esq., the attorney for Wells Fargo, James Felix, the attorney for the named corporate defendant, Franchise Management International, Inc., which held a third mortgage on the property, and William F. Andes, II., Esq., the court appointed referee, were all present at the hearing. The parties entered into a stipulation which, in essence, stated that House would pay $50,000.00 to Franchise in satisfaction of its third mortgage within twenty-eight days of the hearing date. In return for the payment, Franchise was to provide House with a satisfaction of the mortgage. The house was to be sold to Bartel within the time period noted. Additionally, House, Franchise, Felix, Weiss, Guadagno, Reali, Roeske, and Gigliotti, not all of whom were named defendants in the foreclosure action, were to exchange general release. The stipulation also stated that House would execute a stipulation of discontinuance with prejudice as against parties not named in the stipulation and unnamed in this Federal Court action.

At the hearing, House, appearing pro se, was sworn in at Justice Whelan's direction, and specifically questioned regarding:

(1) his understanding of the stipulation and its ramifications; (2) whether he was entering into the stipulation of his own free will and that no one forced him to enter into the stipulation; and (3) whether it was in his best interests. House answered in the affirmative to the questions asked of him by the Court. The property was then transferred to Bartel, and the first and third mortgages were satisfied.

Thereafter, House made two separate applications to set aside stipulations between the parties: one in the New York State Supreme Court, and one in this Court. In determining that it was improper to set aside the stipulation in the State court proceedings, Judge Whelan stated:

In ascertaining the intent of the parties in a stipulation where the intent of the parties is clear and unambiguous, the court's inquiry is ended (see Brennan v. Brennan, 300 A.D.2d 524, 655 N.Y.S.2d 670 [3d Dept. 1997]). Here, the Court finds House's assertions contained in his affidavit to set aside the stipulation to be an ill-disguised attempt to raise feigned issues designed to avoid the consequences of the stipulation settling the foreclosure action agreed to in open court (see[,] e.g.[,] Semple v. Sterling Estates, LLC, 300 A.D.2d 297, 751 N.Y.S.2d 306 [2d Dept. 2003]).

Wells Fargo Bank v. House, No. 04-CV-1604 (Apr. 24, 2006).

DISCUSSION

I. Standard For Vacating Final Judgment

Rule 60(b) of the Federal Rules of Civil Procedure permits a court to vacate a final order or determination for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that ...


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