MCDEVITT v. WELLS FARGO BANK, N.A.
Filing
33
MEMORANDUM OPINION to the Order granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment. Signed by Judge Gladys Kessler on 5/29/13. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROBERT M. MCDEVITT,
Plaintiff,
v.
Civil Action No. 12-1297 (GK)
WELLS FARGO BANK, N.A.,
Defendant.
MEMORANDUM OPINION
Plaintiff
brings
this
Robert
M.
diversity
McDevitt
action
("Wells Fargo" or "Defendant")
("McDevitt"
against
Wells
or
"Plaintiff")
Fargo
Bank,
for wrongful foreclosure,
N.A.
breach
of contract, and negligent infliction of emotional distress.
This
matter
Defendant's
is
Motion
before
for
the
Court
Summary
for
Judgment
reconsideration
[Dkt.
No.
19]
of
and
Plaintiff's Motion for Summary Judgment on Liability and Partial
Summary Judgment on Damages
of
the
[Dkt.
parties'
No.
Replies,
31]
and
stated below,
Amended
[Dkt.
Joint
No.
20].
Statement
Upon consideration
of
Stipulated
Facts
and reconsideration of the Motions,
Oppositions,
the
the
entire
record
herein,
and
for
reasons
the Court grants Wells Fargo's Motion and denies
Plaintiff's Motion.
I .
BACKGROUND
A.
Factual Background1
1.
The Note and Deed of Trust
On July 18,
2003,
McDevitt
executed a
30-year Adjustable
Rate Mortgage Note ("Note") and Deed of Trust with World Savings
Bank for a $520,000 loan to purchase a private residence at 211
C St. NE in Washington D.C.
(the "Property") .
The loan had an
indexed interest rate that changed monthly and a monthly payment
that changed annually on September 1 of each year. See Affidavit
of Robert M. McDevitt, Ex. A (Note)
~
2 [Dkt. No. 1-2].
At Paragraph 3 of the Note, McDevitt agreed that:
I will pay Principal and interest by making payments
every month.
I will make my monthly payments on the 1st day of each
month beginning on September 01, 2003.
I will make
these payments every month until I have paid (i) all
the Principal and interest, and (ii) any other charges
described below that I may owe under this Note, and
(iii) any charges that may be due under the Security
Instrument [.]
The Note provided that McDevitt would be obligated to pay a late
charge if he did not pay his monthly payment within 15 calendar
days of the date it was due,
and also that any failure to pay
1
Unless otherwise noted,
the facts set forth herein are
undi"sputed and drawn from the parties' Amended Joint Statement
of Stipulated Facts [Dkt. No. 31].
-2-
the
monthly
payment
on
the
due
date
constituted
Note~
permitting the lender to accelerate the loan.
McDevitt
mortgage,
had
the
right
to
make
advance
subject to certain restrictions.
a
default,
7(A)-(C).
payments
on his
Paragraph 5 of the
Note stated:
I HAVE THE RIGHT TO MAKE PAYMENTS OF PRINCIPAL AT ANY
TIME BEFORE THEY ARE DUE.
A PAYMENT OF PRINCIPAL
BEFORE IT IS DUE IS CALLED A "PREPAYMENT."
WHEN I
MAKE A PREPAYMENT, I WILL TELL THE LENDER IN WRITING
THAT I AM DOING SO.
THE LENDER MAY REQUIRE THAT ANY
PARTIAL PREPAYMENT BE MADE ON THE SAME DATE THAT A
PAYMENT IS DUE.
IF I MAKE A PARTIAL PREPAYMENT,
THERE WILL BE NO CHANGES IN THE DUE DATES OR AMOUNTS
OF MY PAYMENTS UNLESS THE LENDER AGREES IN WRITING TO
THOSE CHANGES [ . ]
~ 5
Note
(emphasis in original).
2.
World
The April 14, 2008 Payment at Wachovia Bank
Savings
Bank
(the
holder
of
McDevitt's
Note)
was
subsequently acquired by Wachovia Corporation and, in late 2007,
changed
its
Mortgage") .
name
to
Wachovia
Mortgage,
FSB
( "Wachovia
Wachovia Corporation also owned Wachovia Bank, N.A
( "Wachovia Bank" ) .
separate legal
Wachovia
entities,
Bank and Wachovia Mortgage
but had a
servicing agreement,
were
which
enabled a Wachovia Mortgage customer to submit mortgage payments
at Wachovia Bank.
On April 14, 2008, McDevitt went to a Wachovia Bank branch
on Pennsylvania Avenue in Washington D.C.
-3-
to make two mortgage
payments: one in the amount of $4,400i the other in the amount
of $25,000.
wrote
check,
On the subject line of his $4,400 check, McDevitt
"4/01/08 payment."
McDevitt
principal
wrote
On the
"Deferred
payments."
McDevitt
subject line of his
interest
pay off
+
$25, 000
one
year
orally instructed employees at
Wachovia Bank that he wanted the $25,000 check to be applied to
future monthly payments as they would come due. 2
Along
with
the
two
checks,
McDevitt
also
submitted
a
payment coupon of the kind he normally used to mail his payments
to Wachovia Mortgage.
The payment coupon contained preprinted
text reciting four payment options:
$2,647i
(2)
"Sched.
coupon)
"Interest
Only"
a "Minimum Payment" of
payment
of
$3807.61i
Principal and Interest" payment of $4317.33 i
"15-Year
Robert
an
(1)
Pmt.
M.
Plan"
McDevitt,
payment
of
Ex.
(photocopy
C
$6,499.93.
of
See
checks
(3)
and
(4)
Affidavit
and
a
a
of
payment
[Dkt. No. 1-2].
2
Although Wachovia Bank could accept a payment on behalf of
Wachovia Mortgage, it did not have access to the customer's
mortgage account and could not make any decisions as to how a
mortgage payment would be applied.
However, McDevitt was not
aware of the distinction between Wachovia Mortgage and Wachovia
Bank.
He believed that the "Wachovia" Bank branch that accepted
his payments was the same "Wachovia"
entity holding his
mortgage, and was not told otherwise by the Wachovia Bank
personnel with whom he dealt on April 14, 2008.
-4-
Next
to
these
four
options,
lines for McDevitt to specify:
any
( 2)
the
payment
coupon
(1)
the amount of his payment,
to
go
Principal/Deferred
"Additional
Amount
and
Interest,"
"Total Amount Enclosed."
( 3)
the
included
to
On the first
line, McDevitt wrote "4,400" to indicate his payment amount.
the
second
Interest,"
words
line,
McDevitt
left unchanged the word
"one year payments,"
most favorable to McDevitt)
go
to
line,
crossed
the
words
"Principal,"
such that
(construed
"Deferred
and added the
in the
light
the text read "Additional Amount to
Principal/ one year payments:
he entered
out
On
On the
$25, 000"
third
[$]29,400 for the total payment enclosed with
his payment coupon.
McDevitt
dealt
for a
asked
the
Wachovia
Bank personnel
receipt of his payment,
with whom he
and he received a
single
page photocopy of the two checks along with his payment coupon.
The photocopy was date-stamped by Wachovia Bank and initialed by
the branch manager.
3.
Wachovia's Application of the April 14 Payment
Wachovia Mortgage subsequently applied the $4,400 check to
McDevitt's
reduce
his
regular
monthly
principal
monthly mortgage
payment
balance.
statement
and
When
in June
the
$25,000
McDevitt
2 008,
he
check
to
received
his
learned that
his
$2 5, 0 0 0 payment had not been held for future monthly payments,
-5-
as he requested,
but applied to reduce his principal balance.
He then contacted Wachovia Mortgage to correct the application
of
his payment,
and was
advised to
until we've resolved this."
"continue making payments
There is no evidence that McDevitt
made a record of the date on which this conversation took place
or the name of the individual with whom he spoke.
McDevitt
throughout
time,
continued to make
all
of
McDevitt
Mortgage
2008,
made
and Wells
2009,
monthly mortgage
and January 2010.
multiple
Fargo 3
his
telephone
and was
During this
calls
given the
payments
to
same
Wachovia
advice
each
time: continue making his monthly payments until the application
of his $25,000 payment was resolved.
Again,
McDevitt did not
present evidence of the dates on which these conversations took
place,
the
names
of
the
individuals
with
whom
he
spoke,
or
whether such indi victuals worked for Wachovia Mortgage or Wells
Fargo.
In or around January 2010, McDevitt spoke by telephone with
a customer service representative who told him "Don't worry,
handled"
and
implied
that
" [his]
problem had
been
its
resolved."
This conversation left McDevitt with the impression that he was
not required to make any more loan payments for approximately 12
3
In late 2009, Wachovia Mortgage was merged into Wells Fargo
Bank but continued to trade under the name Wachovia Mortgage.
-6-
months starting in early 2010, although Wells Fargo Bank did not
send
him
anything
in
writing
scheduled had been modified.
to
confirm
that
his
payment
As with the other telephone calls,
McDevitt does not appear to have made any record of the date on
which this conversation took place or the name of the individual
with whom he spoke.
In
February
2010,
McDevitt
stopped
making
his
monthly
mortgage payments.
4.
The Notice of Default
On February 22,
2010,
Wachovia Mortgage wrote to McDevitt
to advise him that his mortgage payment due February 1, 2010 had
not been received.
On March 18,
2010,
Wachovia Mortgage again
wrote to McDevitt, expressing concern that his loan was then two
months in arrears, and proposing solutions to avoid foreclosure.
On April
"Your
5,
loan
2010,
has
Wachovia Mortgage sent McDevitt notice that
been
approved
for
commencement
of
foreclosure
action which may cause you to lose your property and any owner's
equity."
On
June
4,
2010,
Wachovia
Mortgage
sent
McDevitt
another letter advising him of his loan's delinquent status and
providing
information
about
the
Affordable Modification Program.
Wachovia Mortgage,
federal
government's
Wells Fargo,
then retained the
law firm
as successor to
of
Rosenberg
Associates ("Rosenberg") to commence foreclosure proceedings.
-7-
Home
&
5.
The Foreclosure Proceedings
Rosenberg's
first
contact
with
been through a "fair debt letter."
McDevitt
the
individual
Rosenberg,
in
charge
of
to
have
The parties do not agree on
when the fair debt letter was mailed,
letter was dated July 26, 2010,
appears
but stipulated that the
and that Michael Amos
McDevitt's
foreclosure
("Amos"),
file
at
testified that the letter was drafted and mailed on
July 26, 2010.
The parties further stipulated that McDevitt did
not receive the fair debt letter until September 2 or 3,
2010,
only a few days before the foreclosure sale, which was scheduled
for September 7. 4
The fair debt
the
amount
then
"within thirty
letter advised McDevitt of his default and
due
(30)
on
the
Note.
It
also
stated
days of receipt of this letter,"
disputed all or a portion of the debt in writing,
the name 'and address of the original creditor,
that
if,
McDevitt
or requested
Rosenberg would
cease collection of the debt until it obtained verification of
the debt and ascertained the name and address of the original
creditor.
On
August
certified mail,
4,
2010,
Rosenberg
also
sent
McDevitt,
a Notice of Foreclosure Sale of Real
4
by
Property
The parties proffer different theories as to why McDevitt did
not receive the fair debt letter until September, but these
theories are not material to the Court's analysis.
-8-
("foreclosure notice") .
such
notices,
addressed
one
to
In fact,
addressed
"Robert
M.
advised McDevitt that,
Rosenberg sent McDevitt
to
and
"Occupant"
McDevitt."
The
the
foreclosure
two
other
notice
to satisfy his debt to Wells Fargo,
his
Property was to be sold at a foreclosure sale on September 7,
2010
at
10:13
either
See Ex.
C
[Dkt.
Notice)
a.m.
No.
20-4].
However,
McDevitt
notices,
and
of
the
"unclaimed"
foreclosure
by
the
U.S.
to McDevitt's Mot.
Postal
both
never
received
were
returned
No
Service.
(Foreclosure
definitive
explanation was offered by either party as to why the notices
were "unclaimed."
At
9:27
September 7,
a.m.
2010,
on
the
morning
of
the
foreclosure
sale,
McDevitt emailed Rosenberg that he disputed
the debt and requested the name of the creditor to whom the debt
was owed.
However, the foreclosure sale went forward, and later
that day, McDevitt's Property was sold at foreclosure to a third
party for $510,000.
The next day, Amos responded to McDevitt's
email, and sent him verification of the debt and the name of the
creditor.
After the
foreclosure,
McDevitt
Property pending various
legal
evicted in March 2012.
He had
continued to live at
challenges,
Property.
-9-
$142,876.56
but
of
the
ultimately was
equity in the
B.
Procedural Background
On August
claims
for
negligent
3,
McDevitt
2012,
wrongful
foreclosure,
infliction
of
emotional
filed his
Complaint alleging
breach
contract,
distress.
and
[Dkt .
of
1] .
No.
Wells Fargo moved to dismiss the Complaint pursuant to Fed.
Civ.
[Dkt .
P.
12 (b) (6),
No.
On February 28,
12] .
Fargo filed
a
which the Court denied on September 25,
Motion for
2013,
after discovery,
Summary Judgment
[Dkt.
No.
R.
2012
Wells
19] ,
and
McDevitt filed a cross Motion for Summary Judgment on Liability
and Partial Summary Judgment on Damages
14, 2013,
On March
the parties each filed Oppositions [Dkt. Nos. 21, 22],
and on March 28,
24] .
[Dkt. No. 20].
2013,
they filed their Replies
[Dkt. Nos.
23,
On March 29, 2013, the Court denied the Motions in a one-
page Order,
settlement.
and referred the parties to a Magistrate Judge for
[Dkt. No. 25].
On May 8,
2013,
after unsuccessful settlement negotiations,
the Court held a status conference and agreed to reconsider the
parties'
Motions for Summary Judgment.
The parties then filed
an Amended Joint Statement of Stipulated Facts
[Dkt. No.
31]
to
aid the Court in its reconsideration of the Motions. 5
5
The parties have stipulated to these facts
summary judgment only.
-10-
for purposes of
II.
STANDARD OF REVIEW
Summary
judgment
may
be
granted
if
the
discovery and disclosure materials on file,
pleadings,
the
and any affidavits
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law.
See Fed. R. Civ. P. 56(c); Arrington v. United States, 473
F.3d 329,
the
333
moving
(D.C.
party
factual
~genuine"
to
~material"
the
Cir.
must
2006).
To prevail on such a motion,
demonstrate
dispute,
or
case.
either
that
dispute
~A
any
that
there
such dispute
over a
material
is
no
is
not
fact
is
'genuine'
if 'the evidence is such that a reasonable jury could
return a
verdict
F.3d at 333
242,
247
outcome
the
non-moving party. '"
(quoting Anderson v.
(1986)).
of
for
the
A fact is
case
Liberty Lobby,
~material"
under
the
Arrington,
Inc.,
473
477 U.S.
if it might affect the
substantive
governing
law.
Liberty Lobby, 477 U.S. at 248.
As the Supreme Court stated in Celotex Corp.
~the
v.
Catrett,
plain language of Rule 56(c) mandates the entry of summary
judgment,
against
after
a
party
adequate
who
time
fails
to
for
discovery and upon motion,
make
a
showing
sufficient
to
establish the existence of an element essential to that party's
case,
and on which that party will bear the burden of proof at
-11-
trial."
u.s.
477
317/
322
The
(1986).
Supreme
Court
has
further explained/
When the moving party has carried its burden under
Rule 56(c)
its opponent must do more than simply show
that there is some metaphysical doubt as to the
material facts.
Where the record taken as a
whole could not lead a rational trier of fact to find
for the non-moving party 1 there is no "genuine issue
for trial.
1
11
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
586-87 (1986)
In
1
475 U.S. 574 1
(footnote and citations omitted) .
other
words
"'
1
[t] he
mere
existence
of
some
alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.
Harris
1
550
U.S.
U.S. at 247-48)
372 1
380
(2007)
1
Scott v.
"
(quoting Liberty Lobby
I
477
(emphasis in original).
At the same time 1
the Supreme Court has also consistently
emphasized that
the
judge 1 s
function
on a
motion
for
summary
judgment is not
"to weigh the evidence and determine the truth
of the matter but to determine whether there is a genuine issue
for
trial.
11
Liberty
Lobby 1
477
U.S.
at
249.
"Credibility
determinations/ the weighing of the evidence/ and the drawing of
legitimate
inferences
from
the
facts
are
jury
functions
I
not
those of a judge" deciding a motion for summary judgment.
Id.
at 255; see also Reeves v. Sanderson Plumbing Prods.
530
-12-
1
Inc./
u.s.
133,
150
(2000).
Therefore,
appropriate if the non-movant
which
the
jury
could
summary
fails
reasonably
judgment
is
only
to offer any "evidence on
find
for
the
[non-movant] . "
Liberty Lobby, 477 U.S. at 252.
In deciding a motion for summary judgment,
"the court must
draw all reasonable inferences in favor of the nonmoving party,
and
it
may
not
make
credibility determinations
evidence."
Reeves, 530 U.S. at 150.
determine
"whether
the
or
weigh
the
Ultimately, the court must
evidence
presents
sufficient
a
disagreement to require submission to a jury or whether it is so
one-sided
that
one
party must
prevail
as
a
matter
of
law."
Liberty Lobby, 477 U.S. at 251-52.
III. ANALYSIS
A.
Wrongful Foreclosure
In Count I of the Complaint, McDevitt asserts a claim for
wrongful
foreclosure.
Under
District
of
Columbia
law,
"an
action for wrongful or improper foreclosure may lie where the
property
owner
sustains
damages
by
reason
executed in a manner contrary to law."
Condo.
IV Unit
Owners
(citation omitted).
Wells
Fargo
was
Ass'n,
641
liable
for
wrongful
a
foreclosure
Johnson v. Fairfax Vill.
A.2d
In his Complaint,
of
495,
505
(D.C.
1994)
McDevitt asserted that
foreclosure
because
the
Rosenberg firm did not send him written notice of foreclosure as
-13-
required under District of Columbia law.
D.C. Code
§§
42-815; 42-815.01).
Compl.
~
34
(citing
However, McDevitt now concedes
that Rosenberg did comply with the District of Columbia notice
provisions by sending him the foreclosure notice in August, even
if
he
never
Consequently,
received
the
it.
Pl.'s
disagreement
Opp'n at
between
the
20
[Dkt.
parties
No.
as
22].
to
the
date of mailing the notice of foreclosure is no longer material.
McDevitt now argues,
however,
that Rosenberg violated the
federal Fair Debt Collection Practices Act
( "FDCPA")
in failing
to halt the foreclosure sale on his Property after he disputed
the
debt.
Id.
at
21-23.
He
further
contends
that
this
violation may serve as the predicate for a wrongful foreclosure
claim under District of Columbia law because it resulted in his
foreclosure being "executed in a manner contrary to law."
Id.
at 23-27.
1.
The
with
the
Relevant Provisions of the FDCPA
FDCPA provides,
collection of
in relevant part,
any debt,
a
debt
that
in connection
collector must
send
written notice to the debtor specifying the amount of debt,
name of the creditor to whom it is owed,
and a statement that,
within 30 days of receipt of the written notice,
request
1692g (a)
certain
information
relating
Further,
-14-
to
the
debt.
the debtor may
15
u.s.c.
§
[i] f the consumer notifies the debt collector in writing
within [30 days of receipt of the notice] that the debt, or
any portion thereof, is disputed, or that the consumer
requests the name and address of the original creditor, the
debt collector shall cease collection of the debt
until the debt collector obtains verification of the debt .
. or the name and address of the original creditor, and a
copy of such [information] is mailed to the consumer by the
debt collector.
15 U.S.C.A.
McDevitt
1692g (b)
§
contends
1692g(b).
that
the
Rosenberg
firm
violated
section
of the FDCPA when it did not postpone the foreclosure
sale after being notified that the debt was disputed,
nor send
him the requested information until the following day.
McDevitt does not cite,
case
in
which
a
plaintiff
and the Court has not found,
was
violation as a predicate for a
under District of Columbia law. 6
permitted
to
use
claim for wrongful
an
any
FDCPA
foreclosure
Even assuming, however, that a
wrongful foreclosure claim may be based on a violation of the
6
As McDevitt concedes, Pl.'s Opp'n at 25, courts considering
claims for wrongful foreclosure have generally assumed that
foreclosure is not wrongful where it complies with the District
of Columbia notice provisions.
See, e.g., Kibunja v. Alturas,
LLC, 856 A.2d 1120, 1123, 1129 (D.C. 2004) (assuming that law
applicable to claim for wrongful foreclosure was District of
Columbia notice statute where "main thrust of [plaintiff's case]
was that they were not given adequate notice" of foreclosure
sale) (citing Johnson, 641 A.2d at 504); Young v. 1st Am. Fin.
Servs., 992 F. Supp. 440, 445 (D.D.C. 1998)
(reasoning that
where "defendants did not violate [D.C. notice statute]
any foreclosure that occurred was not wrongful").
-15-
FDCPA, an issue the Court need not reach, McDevitt's claim fail·s
because Wells Fargo is not a proper defendant under the FDCPA.
2.
The FDCPA Only Applies to "Debt Collectors"
With one exception, not applicable here,
only to
"debt
collectors,"
the FDCPA applies
defined as persons whose principal
business is the collection of debt or who "regularly collect[]
debts owed or due or asserted to be owed or due another."
15
U.S.C.
contrast,
FDCPA
1692a(6).
§
is not
unless
it
a
A creditor,
debt
such as
collector and is
acquires
a
debt
in
Wells
not
subject
default
1692a (4),
acquired
(6) .
McDevitt's
Wachovia Mortgage,
at
that
Because the parties agree
time,
debt
in
2009
as
part
by
to the
solely
for
the
See 15 U.S.C.
purpose of facilitating collection of such debt.
§
Fargo,
that Wells Fargo
of
a
merger
with
and that McDevitt's loan was not in default
Wells
Fargo
indisputably
is
a
creditor,
not
a
"debt collector."
McDevitt
whether
the
Rosenberg's
devotes
much
Rosenberg
firm
status
a
as
of
is
debt
his
a
papers
"debt
collector
to
the
question of
collector."
is
However,
immaterial
unless
Wells Fargo may be held vicariously liable for the firm's debt
collection activities.
Wells
Fargo
foreclosure
had
McDevitt presents no evidence suggesting
the
right
activities,
which
to
is
-16-
control
Rosenberg
an essential
in
its
prerequisite to
any claim based on vicarious liability.
Dist.
of Columbia,
747 A.2d 138,
146
See, e.g., Moorehead v.
(D.C.
2000)
(relationship
based on control "is the decisive factor in vicarious liability
analysis") . 7
Therefore,
McDevitt
cannot
bring
such
an
FDCPA
claim
against Wells Fargo because, as a matter of law, the FDCPA does
not
apply
to
Wells
Fargo
in
its
capacity
as
a
creditor. 8
Accordingly, summary judgment shall be granted in favor of Wells
Fargo on Count I.
B.
Breach of Contract
In Count II of the Complaint, McDevitt asserts a claim for
breach of
contract.
The
interpretation
of
a
facially
clear
7
It also is questionable whether a creditor that is not also a
debt collector may ever be held vicariously liable under the
FDCPA.
See, e.g. , Wadlington v. Credit Acceptance Corp. ,
76
F.3d 103, 108 (6th Cir. 1996) ("We do not think it would accord
with the intent of Congress .
for a company that is not a
debt collector to be held vicariously liable for a collection
suit filing that violates the Act only because the filing
attorney is a 'debt collector.'"); Townsend v. Fed. Nat. Mortg.
Ass'n, No. 3:12-cv-00045, 2013 WL 549263, at *10 (W.D. Va. Feb.
12, 2013) (" [C]reditors [may not] be held vicariously liable for
FDCPA violations by independent debt collectors acting on their
behalf.") (citation omitted).
The Court of Appeals in this
Circuit has not yet addressed this issue.
8
Further, as Wells Fargo points out, McDevitt most probably is
time-barred from bringing any claim under the FDCPA itself
because the FDCPA has a one-year statute of limitations for
civil actions.
See 15 U.S.C. § 1692k(d).
However, it is not
necessary to reach this issue in light of the Court's ruling
above.
-17-
contract is a question of law to be resolved by the court.
See,
e.g.,
Cir.
NRM Corp. v. Hercules,
1985).
is
Thus,
the
"'since,
absent
such
v.
without
the
Gochnauer,
772
omitted).
question
A
are
contract
A.2d 456, 461 n.7
A.2d
is
reasonably
or interpretations."
necessity
of
830,
susceptible
a
itself
extrinsic
(D.C.
when
of
(D.C.
summary judgment
for
834
ambiguous
682
ambiguity,
duly signed and executed speaks
parties
Angulo
758 F.2d 676,
where a contract is unambiguous,
appropriate,
contract
Inc.,
written
and binds
evidence.'"
2001)
"the
(citation
provisions
different
in
constructions
1901 Wyoming Ave. Co-op. Ass'n v. Lee,
345
(D.C. 1975).
McDevitt argues that Wells Fargo's Motion should be denied
because the parties dispute:
be
made
under
alterations,"
properly.
below,
the
and
P1 . ' s
contract,
(3)
Opp' n
(1)
how often a payment needed to
(2)
whether his
at
15 ,
16 ,
"the
$25,000
18 . 9
and
further
required
that
payment schedule be made in writing.
9
for
payment
However,
contract
was
as
applied
discussed
the Note unambiguously required McDevitt to make monthly
payments,
resolve
mechanism
the
first
two
disputes
as
any
modifications
to
his
Therefore,
a
the Court may
matter
law.
of
Because
McDevitt also argues that the parties dispute why he stopped
making his mortgage payments, Pl.'s Opp'n at 19, but McDevitt's
motivation for not paying his mortgage is immaterial to the
legal issues presented in the Motions.
-18-
there
is
no
genuine
dispute
McDevitt
obtaining
without
that
the
stopped
his
agreement
Bank's
making
in
monthly
payments
writing,
the third issue is not relevant to disposition of the
claim.
1.
The Note Required McDevitt to Make Payments
Every Month
McDevitt
payments
default
first
argues
that
although
he
failed
in February through September of 2010,
because
his
advance
satisfied the payments
payment
otherwise due
of
for
make
he was not
$25,000
that
to
in April
period of
in
2008
time.
McDevitt contends that his action was consistent with Paragraph
3
of
the Note,
borrower .
which he
construes to mean that
so
"long as a
. submitted a payment for each month," the borrower
was not literally required to make a payment each month.
Opp'n at 15.
(emphasis in Pl.'s Opp'n)
However,
month.
It
Pl.'s
the
Note
does
clearly states
not
that
require
McDevitt
payments
was
"for"
required
every
to
"pay
Principal and interest by making payments every month [,]
on
the
until
~
3
1st
day
[he had]
(emphasis
of
each
month,"
and
"every month
[thereafter]
paid [ ] all the Principal and interest[.]"
added) .
This
language does
-19-
not
merely set
Note
the
total dollar amount which McDevitt was to have paid off, it also
dictates the precise frequency and timing of each payment. 10
Moreover,
payment
Paragraph 5 addressed how,
schedule
advance payment.
would
be
affected
in
if at all, McDevitt,s
the
event
he
made
an
It states:
IF I MAKE A PARTIAL PREPAYMENT, THERE WILL BE NO
CHANGES IN THE DUE DATES OR AMOUNTS OF MY PAYMENTS
UNLESS THE LENDER AGREES IN WRITING TO THOSE CHANGES.
Therefore,
McDevitt,s
argument
that
his
advance
payment
relieved him of the obligation to make future monthly payments
is
inconsistent
literally
life
of
with
the
plain
required payments
the
loan,
language
"each,,
regardless
of
and
of
"every
the
11
Note,
month
any prepayments,
which
for
the
unless
the
lender agreed otherwise in writing.
2.
The Writing Requirement Was Not Modified by the
Bank's Conduct
McDevitt
agreements
alter
also
said[,]
argues
the
[the contract, s]
that
Bank,s
"despite
actual
whatever
practice
was
the
to
loan
simply
terms verbally at McDevitt, s request [.]
11
Pl. , s Opp, n at 17.
McDevitt points to instances in which the
Bank
to
orally
agreed
waive
his
10
late
fees.
From
these
McDevitt appears to have had a limited right to pay less than
the full amount of interest due each month, with the result that
any deficiency would be added to his principal balance as
deferred interest.
See Note ~ 3 (E) - (F)
This feature of the
Note is not at issue.
-20-
occasions, he reasons that "a reasonable juror could infer that
[his payment
schedule had been verbally modified because]
Bank granted
special
matter of course."
However,
accommodations
verbally and
the
as
a
Id.
McDevitt does not articulate any legal theory by
which the Bank's verbal waiver of late fees on a case-by-case
basis
affected
its
future
right
to
that
require
any
McDevitt
modifications to his payment schedule be in writing.
suggests that the Bank's waiver of late fees is relevant because
"the contract between the parties left out important details and
policies,
they
leaving them to be determined outside the contract as
arose. "
Id.
This
argument
relates to his payment schedule.
did
not
"le[ave]
out
important
is
simply
incorrect
As discussed above,
details"
regarding
as
it
the Note
McDevitt's
payment schedule or the manner in which it would be modified.
Therefore, McDevitt may not use extrinsic evidence in an attempt
to contradict the Note's plain and unambiguous terms.
To the extent McDevitt is arguing that the Bank's conduct
over
the
requirement
course
in
its
of
the
loan
entirety,
he
somehow
waived
is
incorrect.
also
party may waive its rights under a contract,
infer
waiver
from
the
party's
conduct
the
writing
While
a
a court will not
absent
a
"'clear,
unequivocal and decisive act of the party who is claimed to have
-21-
waived its rights, so consistent with an intention to waive that
no
other
reasonable
explanation
is
Washington Metro. Area Transit Auth.,
(D.D.C. 2008)
27
(4th ed.
this
2d 181,
196
39:28 at 626-
§
and certainly is not clear,
and decisive evidence in
Supp.
v.
The Bank's occasional oral waiver of late
fees is not evidence -
issue
533 F.
(quoting 13 Williston on Contracts
2000)).
Kersey
possible.'"
case,
that
namely
unequivocal
the Bank abandoned the right
that
McDevitt's
monthly
at
payment
schedule could not be changed unless the Bank agreed in writing
to any such change.
McDevitt
existed
concedes
altering
Therefore,
the
that
"no
contract's
writing
now
or
has
Pl.'s
terms."
exists
Opp'n
at
17.
for all the foregoing reasons, the Court shall, as a
matter of law, grant summary judgment in favor of Wells Fargo on
Count II.
C.
Negligent Infliction of Emotional Distress
Finally,
in
Count
III,
McDevitt
asserts
negligent infliction of emotional distress.
a
claim
Under District of
Columbia law,
[A] plaintiff may recover for negligent infliction of
emotional distress if the plaintiff can show that (1)
the defendant has a relationship with the plaintiff,
or had undertaken an obligation to the plaintiff, of a
-22-
for
nature that necessarily implicates the plaintiff's
emotional well-being,
(2)
there is an especially
likely risk that the defendant's negligence would
cause serious emotional distress to the plaintiff, and
(3) negligent actions or omissions of the defendant in
breach of that obligation have,
in fact,
caused
serious emotional distress to the plaintiff.
Hedgepeth v.
Whitman Walker
Clinic,
22
A.3d
789,
810-11
(D.C. 2011).
The
parties
question
of
devote
most
whether Wells
of
Fargo
interest undertook any special
that
satisfies the
Hedgepeth.
infliction
of
its
contractual.
it
notes
negligent
and
its
papers
to
predecessors
the
in
relationship with McDevitt
prong of
the test
set
forth
in
Wells Fargo argues that it had no duty to avoid
negligent
nature
first
their
of
emotional
relationship
Def. 's Mem.
Hedgepeth's
P
distress
with
McDevitt
A at 19-22.
&
statement
that
infliction of emotional
a
because
was
the
purely
In particular,
duty to avoid the
distress generally does
not arise where the purpose of a particular relationship or
undertaking is not
well-being [but]
objective,
even
defendant's]
[plaintiff] . "
"to care for the plaintiff's emotional
to obtain a financial, commercial or legal
if
its
non-attainment
due
to
[the
negligence is emotionally distressing to the
Hedgepeth,
22
A.3d
-23-
at
815
(citations
omitted) .
This language squarely covers the facts of this
case.
Even
assuming
the
Bank did
owe
McDevitt
a
duty
avoid negligent infliction of emotional distress,
to
McDevitt
has not put forth any evidence that the Bank ever breached
it.
to
McDevitt suggests only two theories by which he seeks
hold
the
Bank
liable
for
negligent
infliction
of
negligent
in
emotional distress.
First,
failing
to
directed.
he
contends
apply
his
the
$25,000
~
See Compl.
that
46.
his breach of contract claim,
payment
Co.,
was
in
the
manner
he
This theory merely restates
and does not give rise to a
separate claim for negligence.
Fire and Cas.
Bank
Cf. Choharis v. State Farm
961 A.2d 1080,
1089 n.12
(D.C.
2008)
(allegation of negligent performance of insurance contract
"does not mean that
sounding
in
[plaintiff]
contract
tort
there
for
is
a
separate cause of
negligence,
but
rather
action
that
the
may recover damages therefor under a breach of
theory")
(citing Myers v.
Firemen's
Ins.
Co.
of
Opposition
to
Washington, D.C., 274 F.2d 84, 86 (D.C. Cir. 1959)).
Second,
McDevitt
suggested
in
his
Defendant's Motion for Summary Judgment that the Rosenberg
firm was negligent for failing to send him proper notice of
-24-
the
foreclosure
[his] home."
However,
notice
sale
or
for
"wrongfully
foreclosing
~~
Pl.'s Opp'n at 31; see also Compl.
on
45-47.
McDevitt now concedes that the firm did send him
of
foreclosure
more
than
a
month
before
the
foreclosure sale; he just didn't receive it.
Even assuming McDevitt has raised a genuine issue of
fact
that Rosenberg was negligent
in failing to mail the
fair housing letter in a timely fashion,
he still has not
set out any basis on which a jury could find Wells Fargo
liable
for
recites
the
the
principles,
firm's
general
[a]
purported negligence.
rule
that
"[u]nder
Although he
standard
agency
principal is liable for the negligence of
its agent," he does not cite any case in which a client was
held vicariously liable for the negligence of its attorney.
Pl.'s Opp'n at 30.
Further,
client
the
generally
weight
is
of
not
authority
vicariously
provides
liable
that
for
a
its
attorney's torts, absent evidence that the client directed,
controlled,
authorized,
allegedly
tortious
Root,
Ill.2d 1,
act
212
pursuant
judgment
to
or
ratified
conduct.
the
12-14
See
(Ill.
they
are
Horwitz
2004)
exercise of
the
v.
attorney's
Holabird
&
("[W]hen attorneys
independent
professional
presumptively
independent
-25-
contractors for purposes of imposing vicarious liability.")
(citing
cases);
McElwaney,
75
client is
Givens
S.W.3d
Mullikin
383,
398
ex
(Tenn.
rel.
of
("'Unless
2002)
Estate
a
implicated in some way other than merely being
represented by the
liable
v.
for
the
attorney
attorney's
the
cannot
be
(quoting
conduct.'")
client
Bradt
v.
West, 892 S.W.2d 56, 76-77 (Tex. App. 1994)).
As discussed earlier,
McDevitt points to no evidence
suggesting that Wells Fargo had any input into, or control
over,
the manner in which the Rosenberg firm conducted the
foreclosure
suggest
proceedings:
any
negligent
way
in
in
which
selecting
McDevitt
Further,
Wells
Fargo
Rosenberg
may
its
as
does
have
not
been
foreclosure
counsel.
Accordingly, even assuming Wells Fargo did have a
duty
McDevitt
to
to
avoid
the
negligent
infliction
of
emotional distress, there is no basis on which a reasonable
jury could find
by a
preponderance of
the
evidence
that
Wells Fargo breached its duty, or is vicariously liable for
any purported negligence of Rosenberg.
As
the
Supreme Court
said in Liberty Lobby,
summary
judgment should be granted where there is no "evidence on
which the
jury could reasonably find
-26-
for
the plaintiff."
477 U.S.
at 252.
Therefore,
the Court shall grant summary
judgment in favor of Wells Fargo on Count III.
IV.
CONCLUSION
For the foregoing reasons, Wells Fargo's Motion is granted,
and McDevitt's Motion is denied.
An Order shall accompany this
Memorandum Opinion.
Glf!ss&t ~~
May 29, 2013
United States District Judge
Copies to: attorneys on record via ECF
-27-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?