865 F.2d 375 (D.C. Cir. 1989), 87-7220, Gaines v. Continental Mortg. and Inv. Corp.

Docket Nº:87-7220.
Citation:865 F.2d 375
Case Date:January 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 375

865 F.2d 375 (D.C. Cir. 1989)

Henry W. GAINES, et al., Appellants,



No. 87-7220.

United States Court of Appeals, District of Columbia Circuit.

January 13, 1989

Argued Sept. 23, 1988.

Page 376

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-02172).

Paul J. Riley, Washington, D.C., for appellants.

Robert E. Deso, with whom Carlos M. Recio, Washington, D.C., was on the brief, for appellee Continental Mortg. and Inv. Corp. Bradshaw Rost, Washington, D.C., also entered an appearance for respondent Continental Mortg. and Inv. Corp.

Jerome P. Friedlander, II, for appellees Tamco Retirement Fund and Arthur L. Walters, Trustee.

James E. Mitchell entered an appearance Pro Se.

Before WALD, Chief Judge, MIKVA and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge MIKVA.

D.H. GINSBURG, Circuit Judge:

Plaintiff-appellants Henry W. Gaines and Joann Gaines sued, and then settled their case against, Continental Mortgage and Investment Corporation, Tamco Retirement Fund, and various individuals. Plaintiffs now challenge a ruling by the district court denying their motion to enforce or, alternatively, to rescind the Settlement Agreement. We affirm.


    As of September 1985, the plaintiffs owned a home in northwest Washington, D.C. They were then in arrears on their purchase money mortgage, the balance of which was slightly less than $15,000, and on their taxes on the property. Defendant George E. Granse arranged for defendant Continental to make a loan to the plaintiffs which would allow them to satisfy these obligations and to receive about $10,000 in cash to pay off other debts. Plaintiffs therefore executed a promissory note (the "1985 Note") in the amount of $35,000, secured by a trust deed on their home. Defendants James E. Mitchell III and Arthur L. Walters were named as trustees under the security instrument. Subsequently, Continental assigned the note to defendant Tamco.

    In August 1986, plaintiffs filed a civil action against the above-named defendants and others, seeking to rescind the 1985 Note and the corresponding trust deed as illegal and unconscionable contracts, to enjoin exercise of the power of sale contained in the trust deed, and to receive penalties under the Federal Truth in Lending Act, 15 U.S.C. Sec. 1601 et seq. The complaint also alleged damages (1) against all defendants for violation of the District of Columbia

    Page 377

    Consumer Protection Procedures Act, D.C.Code 28-3905(k)(1) (1981); (2) against Mitchell for "breach of duty as a settlement agent"; and (3) against Granse for fraudulent misrepresentation in arranging the loan. Continental cross claimed against Mitchell and Granse, and Mitchell cross claimed against Granse, for indemnification.

    After some negotiation, the parties advised the district court that settlement appeared probable. On May 12, 1987, the court, therefore, dismissed the action without prejudice for thirty days. Dismissal without prejudice was renewed twice thereafter. The final order of the district court, entered on June 30, provided that the action would stand dismissed without prejudice until July 20, after which, if settlement were not consummated, the parties could move to reopen the action. Timely settlement not having been effected, the plaintiffs moved to reopen the case, and the district court ordered the parties to appear at a "status/settlement conference" on July 29.

    On that date, the parties entered into a "Settlement Agreement" constituting "a complete and final settlement of their claims and cross claims." Continental agreed to make a new loan of $35,000 to plaintiffs, who would, in turn, use that sum and an additional $4,371 to pay Tamco the principal and interest, respectively, due on the 1985 Note. Granse and Mitchell were to share equal responsibility for any "fees, points, lender's title insurance, or charges of any kind normally associated with a real estate settlement transaction and release" of the 1985 Note. The agreement expressly provided, however, that "Granse and Mitchell shall not be responsible for any encumbrance of record or unpaid taxes." Mitchell was to conduct the settlement without charge. Tamco waived certain late fees, penalties, and attorneys fees due to it under the 1985 Note. Finally, plaintiffs were to assign to Continental the lease they had apparently made of their property.

    In addition to all of the foregoing, the Settlement Agreement specified that Mitchell would pay plaintiffs $2,000 and Granse would pay them $1,000 "on or before the date of settlement," which was to be "as soon as possible, by August 15, 1987." Granse would pay an additional $5,000 later pursuant to a "Final Judgment (Consent)" which he obligated himself to sign. The $1,000 and $2,000 payments from Granse and Mitchell, respectively, were designed to reduce (to $1,371) the amount that plaintiffs would have to bring to the closing in order to pay off the 1985 Note. On July 30 the district court entered a "Final Judgment (Consent)" ordering Granse to pay plaintiffs $5,000 in satisfaction of their claims directly against him, without Granse admitting liability or fault.

    Before the August 15 deadline for closing, a title search revealed a water and sewer lien on plaintiffs' property. Because plaintiffs did not remove the lien by August 15, the scheduled closing never took place. When the time for closing had passed, Tamco began foreclosure proceedings on the 1985 Note; and plaintiffs, by...

To continue reading