STEWART TITLE GUARANTY COMPANY v. Lewis et al
Filing
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MEMORANDUM AND OPINION. Signed by Judge John D. Bates on 2/16/2018. (lcjdb3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INDEPENDENT SETTLEMENT
SERVICES, LLC,
Plaintiff,
v.
Civil Action No. 16-1372 (JDB)
JIMMY LEWIS,
Defendant.
MEMORANDUM OPINION
Independent Settlement Services, LLC, (“Independent”) alleges that Jimmy Lewis failed
to make payments required under a promissory note that he executed when he refinanced a
property in Washington, D.C. Independent has moved for summary judgment on the only
remaining claim in this action, i.e., the breach of contract claim against Lewis. Because there is
no genuine dispute as to any material fact and Independent has shown that it is entitled to judgment
as a matter of law, the Court will grant the motion.
BACKGROUND
I.
FACTUAL B ACKGROUND
In November 2007, Lewis decided to refinance a property that he owned in Washington,
D.C. He received a $262,500 loan (the “Subject Loan”) from lender Taylor, Bean & Whitaker
Mortgage Corp. (“TBW”). In return, he executed a promissory note (the “Subject Note”) that
memorialized the terms of the loan and a deed of trust (the “Subject DOT”) to secure repayment
of the Subject Note with a lien against the property. See Subject Note, Ex. 2 to Pl.’s Mot. for
Summ. J. [ECF No. 25-3]; Subject DOT, Ex. 3 to Pl.’s Mot. for Summ. J. [ECF No. 25-4].
Independent conducted the closing and issued a title insurance commitment to TBW, which
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committed Stewart Title Guaranty Company (“Stewart”) to insure the Subject DOT as a lien
against the property. See Am. Compl. [ECF No 10] ¶ 11; Independent’s Answer to Am. Compl.
[ECF No. 18] ¶ 11. Although Independent received funds for the payment of recording fees and
taxes, see Am. Compl. ¶ 13; Independent’s Answer to Am. Compl. ¶ 13, the Subject DOT was not
recorded in the District of Columbia land records, see 1st Aff. of J. Thurbee, Ex. 4 to Pl.’s Mot.
for Summ. J. [ECF No. 25-5] ¶ 8.
In or around May 2013, Lewis sold the property to Elston Johnson. 1st Aff. of J. Thurbee
¶ 10. Lewis continued to make monthly payments on the Subject Loan through July 2013, at which
point his outstanding balance was $243,785.36. 2nd Aff. of J. Thurbee, Ex. 1 to Pl.’s Reply [ECF
No. 28-1] ¶ 4. Thereafter, he made no further payments and, according to Stewart’s calculations,
he now owes more than $300,000, including unpaid principal, interest, and late fees. Id. ¶¶ 7–8.
In November 2013, Cenlar (then the holder of the Subject Note) submitted a claim for
coverage under the title insurance commitment when it discovered that the Subject DOT had not
been recorded. 1st Aff. of J. Thurbee ¶ 9; see Notice of Title Claim, Ex. 5 to Pl.’s Mot. for Summ.
J. [ECF No. 25-6]. 1 After Stewart confirmed that the Subject DOT was not recorded, see 1st Aff.
of J. Thurbee ¶ 10, it contacted Independent to inquire whether there was any factual or legal
reason that it should not settle the claim. Independent advised that there was no factual or legal
defense, see Ex. 6 to Pl.’s Mot. for Summ. J. [ECF No. 25-7]; consequently, Stewart settled the
claim by paying Nationstar $262,500 in exchange for an assignment of the Subject Note.
Nationstar executed an allonge transferring the Subject Note to Stewart, and delivered the original
copy of the Subject Note to Stewart. 1st Aff. of J. Thurbee ¶¶ 12–14; Sale & Assignment
Agreement, Ex. 7 to Pl.’s Mot. for Summ. J. [ECF No. 25-8].
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Cenlar subsequently transferred the Subject Note to Nationstar Mortgage LLC (“Nationstar”). See Ex. 2 to
Independent’s Opp’n to Mot. for Summ. J. [ECF No. 26-2].
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II.
PROCEDURAL B ACKGROUND
In June 2016, Stewart filed this lawsuit against Independent and Lewis. Stewart asserted
claims for breach of contract and negligence against Independent based on Independent’s alleged
failure to record the Subject DOT. See Am. Compl. ¶¶ 32–45. Stewart asserted a claim for breach
of contract against Lewis based on his alleged failure to make required payments under the terms
of the Subject Note. Id. ¶¶ 46–51. Stewart moved for summary judgment on its claims, see Pl.’s
Mot. for Summ. J. [ECF No. 25], and Independent and Lewis separately opposed the motion. 2
After the summary judgment briefing was completed, Stewart and Independent entered a
settlement agreement and Stewart voluntarily dismissed with prejudice all claims against
Independent. See Stip. of Dismissal with Prejudice [ECF No. 31]. Pursuant to the settlement,
Stewart transferred its interest in the breach of contract claim against Lewis to Independent. See
Feb. 16, 2018 Order [ECF No. 37] at 2. Independent filed a motion to substitute “in the place and
stead of Stewart” as plaintiff in this action, see Consent Mot. to Substitute [ECF No. 32], and the
Court granted that motion, see Feb. 16, 2018 Order at 3. The Court ordered that all pleadings and
dispositive motions filed by Stewart, as they relate to the breach of contract claim against Lewis,
be deemed adopted by Independent. Feb. 16, 2018 Order at 3. The sole issue, then, is whether
Independent is entitled to summary judgment on the breach of contract claim against Lewis.
LEGAL STANDARD
Summary judgment is appropriate where “the movant shows there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
2
Lewis’ first opposition merely stated that he disputed the entirety of plaintiff’s statement of undisputed
material facts, and that he “has complied with all federal law[] relating to this matter.” Lewis’ Opp’n to Pl.’s Mot. for
Summ. J. [ECF No. 29]. After reviewing that filing, the Court issued a Fox/Neal order that advised Lewis of the
consequences of failing to properly respond to a motion for summary judgment, and provided him with an opportunity
to file an amended opposition. See Fox/Neal Order [ECF No. 33]. Lewis filed an amended opposition on November
1, 2017. See Lewis’ Am. Opp’n to Pl.’s Mot. for Summ. J. [ECF No. 35].
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56(a). “The mere existence of some factual dispute is insufficient on its own to bar summary
judgment; the dispute must pertain to a ‘material’ fact.” Etokie v. Duncan, 202 F. Supp. 3d 139,
145 (D.D.C. 2016) (citation omitted). Hence, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment may
not “be avoided based on just any disagreement as to the relevant facts; the dispute must be
‘genuine,’ meaning that there must be sufficient admissible evidence for a reasonable trier of fact
to find for the non-movant.” Etokie, 202 F. Supp. 3d at 146 (quoting Anderson, 477 U.S. at 248).
“A party asserting that a fact cannot be or is genuinely disputed must support that assertion
by” either “citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits, . . . or other materials” or “showing that the materials
cited do not establish the absence or presence of a genuine dispute . . . .” Fed. R. Civ. P. 56(c)(1).
Conclusory assertions offered without any factual basis in the record cannot create a genuine
dispute. See Ass’n of Flight Attendants–CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66
(D.C. Cir. 2009). “If a party . . . fails to properly address another party’s assertion of fact . . . the
court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e); see
Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 2016).
When deciding a motion for summary judgment, a court must regard the non-movant’s
statements as true and accept all evidence and make all inferences in the non-movant’s favor. See
Anderson, 477 U.S. at 255. Moreover, a court may not “make credibility determinations or weigh
the evidence.” Lopez v. Council on American–Islamic Relations Action Network, Inc., 826 F.3d
492, 496 (D.C. Cir. 2016) (citation omitted). Ultimately, a court must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-
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sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52. Thus, a nonmoving party must “do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted,” Anderson, 477 U.S. at 249–50 (citations omitted).
DISCUSSION
Independent contends that it is entitled to summary judgment on the breach of contract
claim against Lewis. See Pl.’s Mot. for Summ. J. at 11. To prevail on a claim for breach of
contract under District of Columbia law, a plaintiff must establish: (1) a valid contract between the
parties, (2) an obligation or duty arising out of the contract, (3) breach of that obligation or duty,
and (4) damages caused by that breach. See Brown v. Sessoms, 774 F.3d 1016, 1024 (D.C. Cir.
2014) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009)).
Here, Independent has shown a valid contract between the parties, in the form of the
Subject Note which Lewis executed in November 2007,3 and Independent acquired on August 22,
2017. 4 See Subject Note at 1; see also Chase Plaza Condo. Ass’n, Inc. v. JPMorgan Chase Bank,
N.A., 98 A.3d 166, 169 (D.C. 2014) (holder of promissory note is normally entitled to enforce that
instrument (citing D.C. Code Ann. § 28:3-301)); Yasuna v. Miller, 399 A.2d 68, 72 (D.C. 1979)
(stating that a promissory note and a trust deed are different parts of a single contract). Under the
contract, Lewis had a duty to make monthly payments of principal and interest on the Subject Loan
until he paid in full the principal, interest, and any other charges incurred under the terms of the
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In so executing, Lewis agreed that the Subject Note may be transferred and that such transfer does not
relieve Lewis of his duty to make required payments. See Subject Note ¶ 1 (“I understand that the Lender may transfer
this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this
Note is called the ‘Note Holder.’”).
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As explained in the Court’s Feb. 16, 2018 Order, see id. at 2, Stewart transferred the Subject Note to
Independent’s professional liability insurer, who is authorized to bring claims in the name of Independent. For that
reason, the Court simply states that Independent acquired the Subject Note on August 22, 2017.
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Subject Note. See Subject Note ¶ 3. Independent has shown that Lewis breached his duty by
failing to make any payments on the Subject Loan after July 2013, notwithstanding that there was
an outstanding balance of $243,785.36 as of that date. 2nd Aff. of J. Thurbee ¶ 4; see Subject Note
¶ 6(B) (“If I do not pay the full amount of each monthly payment on the date it is due, I will be in
default.”). Independent has sustained damages as a result of that breach, in the form of being
denied payments to which it is entitled under the contract it has acquired. 2d Aff. of J. Thurbee
¶ 8; see Aspire Channel, LLC v. Penngood, LLC, 139 F. Supp. 3d 382, 388 (D.D.C. 2015) (denial
of compensation due under contract constitutes damages); Chatman Elec., Inc. v. Interior Sys.,
Inc., 433 F. Supp. 2d 91, 97–98 (D.D.C. 2006) (same).
Lewis has failed to provide any basis to deny summary judgment. His statements that he
has “complied with all Federal, State, and Local laws with respect to this matter,” and that the
“[l]egal records reveal nothing whatsoever on [his] behalf to precipitate this predicament,” Lewis’
Am. Opp’n to Pl.’s Mot. for Summ. J. at 1, are conclusory assertions offered without any factual
basis in the record—thus, they do not create a genuine dispute of material fact, Ass’n of Flight
Attendants–CWA, 564 F.3d at 465–66; Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006)
(conclusory allegations contained in a party’s own affidavit do not create a genuine issue of
material fact). His bare assertion that all of Independent’s stated material facts are “disputed,” see
Lewis’ Opp’n to Mot. for Summ. J. at 1, does not cite any record evidence that shows a genuine
dispute of fact. A party cannot render a fact “‘disputed’ by merely labeling it so.” Louis v. District
of Columbia, 59 F. Supp. 3d 135, 143 n.4 (D.D.C. 2014). Moreover, “[u]nless the opposing party
points to affirmative evidence showing disputed material facts, the court shall enter summary
judgment, if appropriate, against the adverse party.” Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (citation omitted); see also Buruca v.
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District of Columbia, 902 F. Supp. 2d 75, 82 (D.D.C. 2012) (“The plaintiff can defeat the District’s
motion only if it points to ‘particular facts’ supported by ‘materials in the record’ to dispute the
District’s version of the story.” (quoting Fed. R. Civ. P. 56(c)(1)(A)). Finally, Lewis’ assertion
that he purchased title insurance on the property is wholly irrelevant to whether he breached the
terms of the Subject Note. In the end, he does not even assert that he made such payments, much
less identify any evidence that would support such an assertion. Hence, the Court concludes that
Independent is entitled to summary judgment on the breach of contract claim.
CONCLUSION
For the reasons explained above, Independent’s motion for summary judgment on the
breach of contract claim against Lewis will be granted. A separate order has been issued on this
date.
/s/
JOHN D. BATES
United States District Judge
Dated: February 16, 2018
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