Crayton v. JPMorgan Chase Bank, N.A. et al
OPINION AND ORDER GRANTING 31 Motion for Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 11/3/17. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CIVIL ACTION FILE
JPMORGAN CHASE BANK, N.A., et
OPINION AND ORDER
This is a civil case arising from the pending foreclosure sale of the Plaintiff’s
home. It is before the Court on the Defendant JPMorgan Chase Bank, N.A.’s Motion
for Summary Judgment [Doc. 31]. For the reasons set forth below, the Defendant
JPMorgan Chase Bank, N.A.’s Motion for Summary Judgment [Doc. 31] is
The Plaintiff, Vernon Crayton, resides at 2556 Lancaster Drive, East Point,
Georgia 30344 (“the Property”).1 On January 7, 1994, the Plaintiff obtained a
Def.’s Statement of Material Facts in Supp. of Mot. for Summ. J. ¶ 4.
mortgage on the Property from Source One Mortgage Services Corporation in the
amount of $63,826.00.2 The security deed was eventually assigned to the Defendant
The security deed provides that the Plaintiff must pay $490.77 toward principal
and interest each month.4 The security deed also provides that Chase would apply the
monthly payments first to the mortgage insurance premium, second to taxes, third to
interest due on the note, fourth to the principal of the note, and finally to late charges
due.5 It also provides that failure to pay any monthly payment in full constitutes
default under the note.6
On September 2, 2004, the Plaintiff filed for Chapter 13 bankruptcy, and Chase
filed a Proof of Claim not long after.7 Prior to filing for bankruptcy, the Plaintiff failed
to make the scheduled payments of principal and interest on the mortgage from
December 2002 through September 2004.8 In the Proof of Claim, Chase claimed a
Id. ¶ 1.
Id. ¶¶ 11-12.
Id. ¶ 5.
Id. ¶ 9.
Id. ¶ 10.
Id. ¶¶ 14-15.
Id. ¶ 13.
total pre-petition arrearage of $19,061.85 plus an 8.50% interest rate as of September
2, 2004.9 This pre-petition arrearage included: $14,828 for twenty-two missed
“Regular Monthly Installments of $674.00” from December 2002 through September
2004; $1,059.40 in late charges; $1,065.17 for pre-petition escrow shortage; $1,909.28
in pre-petition attorneys’ fees and costs; and $200 for post-petition, pre-confirmation
fees.10 The Plaintiff did not dispute this arrearage amount in the bankruptcy case.11
The Plaintiff’s Chapter 13 Plan provided that the pre-petition arrearage claimed
by Chase would be paid “within a reasonable time on a pro rata basis . . . or in such
monthly amounts as are determined at the 341 meeting, the confirmation hearing or
by other Court order.”12 On the other hand, future mortgage payments would be paid
directly to Chase.13 The Bankruptcy Court confirmed the Chapter 13 Plan on
December 21, 2004.14
Id. ¶ 16.
Id. ¶ 15.
Id. ¶ 17.
Id. ¶ 19.
Id. ¶ 20.
On December 30, 2009, the Bankruptcy Court discharged the Plaintiff after
completion of the Chapter 13 Plan, noting that the Plaintiff cured all pre-petition
arrearage.15 The bankruptcy trustee paid $19,061.85 toward Chase’s principal claim,
and $5,242.77 toward interest on this claim.16 Chase applied these bankruptcy
payments toward principal, interest, escrow, and other charges.17 However, during the
pendency of the bankruptcy case, the Plaintiff defaulted on his post-petition monthly
mortgage payments on several occasions.18 On the date of discharge, the Plaintiff was
not current on his post-petition mortgage payments.19 Thereafter, the Plaintiff never
became current on his mortgage payments.20 On September 24, 2010, Chase sent the
Plaintiff an “Acceleration Warning (Notice of Intent to Foreclose),” which stated that
the Plaintiff had failed to make several monthly payments, and that the amount past
due totaled $12,747.96.21 This same Acceleration Warning was also sent to the
Id. ¶¶ 24-25.
Id. ¶ 28.
Id. ¶ 30.
Id. ¶¶ 21-23.
Id. ¶ 26.
Id. ¶ 31.
Id. ¶ 32.
Plaintiff on January 19, 2012, February 7, 2013, and December 11, 2015.22 Chase, in
response to the Plaintiff’s requests, also sent him detailed payment histories.23 The
Plaintiff currently owes Chase the principal sum of $42,375.25, along with interest
and other charges.24
On February 24, 2016, the Plaintiff filed this lawsuit, seeking a temporary
restraining order and injunction, and also asserting claims for breach of contract,
violation of the U.S. Bankruptcy Code, violation of the Fair Debt Collection Practices
Act, and violation of the Fair Credit Reporting Act. This Court dismissed Counts IIIVI of the Complaint, leaving only the Plaintiff’s claims for breach of contract and
violation of the bankruptcy code. Chase now moves for summary judgment on the
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and
that the movant is entitled to judgment as a matter of law.25 The court should view the
Id. ¶ 33; Chase Decl., Ex. 7; Ex. 8; Ex. 9.
Def.’s Statement of Material Facts in Supp. of Mot. for Summ. J. ¶ 4.
Id. ¶ 35.
FED. R. CIV. P. 56(a).
evidence and any inferences that may be drawn in the light most favorable to the nonmovant.26 The party seeking summary judgment must first identify grounds to show
the absence of a genuine issue of material fact.27 The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show
that a genuine issue of material fact exists.28 “A mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be a sufficient showing that
the jury could reasonably find for that party.”29
A. Compliance with Local Rules
First, Chase asserts that the Plaintiff’s response to Chase’s statement of material
facts fails to comply with the requirements of the Local Rules.30 The Court agrees.
Most of the Plaintiff’s responses do not comply with Local Rule 56.1(B)(2)(a)(2),
which requires the non-movant to directly refute the movant’s facts with either
concise responses supported by specific citations to evidence, valid objections to their
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
Reply Br. in Supp. of Def.’s Mot. for Summ. J., at 1-2.
admissibility, or arguments that the citation does not support the statement.31 Local
Rule 56.1 is the “only permissible way . . . to establish a genuine issue of material
fact.”32 A district court should “disregard or ignore evidence relied on by the
respondent – but not cited in its response to the movant’s statement of undisputed
facts – that yields facts contrary to those listed in the movant’s statement.”33 Here, the
Plaintiff’s objections are not supported by specific citations to the evidence and do not
directly refute the stated facts. Instead, the Plaintiff simply states “denied” without a
citation to specific evidence that refutes the fact.34 As a result, those facts are deemed
admitted “to the extent that they are supported by the record.”35
See N.D. Ga. Local R. 56.1(B)(2)(a)(2) (“This Court will deem each of
the movant’s facts admitted unless the respondent: (i) directly refutes the movant’s
fact with concise responses supported by specific citations to evidence (including page
or paragraph number); (ii) states a valid objection to the admissibility of the movant’s
fact; or (iii) points out that the movant’s citation does not support the movant’s fact
or that the movant’s fact is not material or otherwise has failed to comply with the
provisions set out in LR 56.1 B.(1).”).
Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008).
Id. at 1268.
See Pl.’s Resp. to Def.’s Statement of Material Facts ¶¶ 27, 30-31, 34-35,
38 (stating only “Denied”); Id. ¶¶ 21, 23, 26, 32-33 (stating only “Cannot admit or
N.D. Ga. Local R. 56.1(B)(2)(a)(1); Manigault v. Colvin, No. 1:11-CV0793-MHS-JFK, 2013 WL 12157943, at *3 (N.D. Ga. Dec. 13, 2013).
However, this does not automatically entitle Chase to summary judgment. It is
not “absolve[d] . . . of the burden of showing that it is entitled to judgment as a matter
of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual
assertions that are otherwise unsupported in the record.”36 Chase still bears the initial
burden of production in showing the absence of a genuine dispute of material fact.37
In such a situation, a district court must still consider the merits of the motion to
determine whether the movant is entitled to judgment as a matter of law.38 Therefore,
the Court will now address each of Chase’s arguments for summary judgment.
B. Bankruptcy Code Claim
Chase first moves for summary judgment on the Plaintiff’s bankruptcy code
claim. The Plaintiff claims that Chase violated 11 U.S.C. § 524(i) by not properly
crediting bankruptcy payments made to his mortgage loan balance. Specifically, the
Plaintiff argues that the Bankruptcy Trustee paid $19,061.85 to Chase to satisfy
Chase’s claim for pre-petition arrearage, but Chase did not credit this to the principal
Reese, 527 F.3d at 1268-69 (quoting Holtz v. Rockefeller & Co., 258 F.3d
62, 74 (2d Cir. 2001)).
Id. at 1269.
remaining on the mortgage loan.39 The Plaintiff also claims that Chase violated §
524(i) by failing to provide a final accounting.40 The Court finds that Chase is entitled
to summary judgment on this claim.
First, the Plaintiff has failed to produce any evidence that Chase improperly
credited bankruptcy payments. Second, § 524(i) of the bankruptcy code does not apply
to the Plaintiff’s bankruptcy case. Section 524(i) provides that:
The willful failure of a creditor to credit payments received under a plan
confirmed under this title, unless the order confirming the plan is
revoked, the plan is in default, or the creditor has not received payments
required to be made under the plan in the manner required by the plan
(including crediting the amounts required under the plan), shall
constitute a violation of an injunction under subsection (a)(2) if the act
of the creditor to collect and failure to credit payments in the manner
required by the plan caused material injury to the debtor.41
First, Chase is entitled to summary judgment because no genuine dispute of material
fact exists as to whether Chase properly credited the Plaintiff’s mortgage account.
Pursuant to Local Rule 56.1, the Plaintiff is deemed to have admitted all of the facts
Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 6-10.
The Plaintiff does not address this argument in his Response to
Defendant’s Motion for Summary Judgment. Therefore, the Court deems it
abandoned. However, even if the Plaintiff did not abandon this argument, the
Plaintiff’s claim under § 524(i) fails as a matter of law, as discussed below, because
that statute does not apply to this bankruptcy proceeding.
11 U.S.C. § 524(i).
in the Defendant’s statement of material facts. This includes the Defendant’s statement
that “[a]ll payments received by Chase during the Bankruptcy Case from the Trustee
or Crayton were applied to principal, interest, escrow, and other charges, according
to the terms of Note and Security Deed and Chase’s Proof of Claim.”42 This statement
is supported by evidence produced by Chase, including Chase’s records documenting
the application of payments made by the Plaintiff to his account.43 Furthermore, the
Plaintiff has conceded, through his failure to respond to Chase’s Requests for
Admissions, that “Chase properly credited all Loan payments.”44 Consequently, the
Plaintiff’s claim under § 524(i) fails because it is undisputed that Chase did not
misapply the bankruptcy payments.45 Therefore, since the Plaintiff has failed to
Def.’s Statement of Material Facts in Supp. of Mot. for Summ. J. ¶ 30.
See Rundquist Decl. ¶ 10; Rundquist Decl., Ex. 4 at 2-5.
See Hansen Decl. ¶ 15; Hansen Decl., Ex. 11 (Request for Admission
No. 8). The Plaintiff failed to timely respond to Chase’s Requests for Admissions.
Pursuant to Rule 36 of the Federal Rules of Civil Procedure, the Plaintiff admits this
fact. See FED. R. CIV. P. 36(a)(3) (“A matter is admitted unless, within 30 days after
being served, the party to whom the request is directed serves on the requesting party
a written answer or objection addressed to the matter and signed by the party or its
attorney.”). The Plaintiff filed a Motion to Amend and Withdraw Deemed
Admissions, or in the alternative, a Motion for Extension of Time to Respond to
Requests for Admissions [Doc. 34], which this Court denied [Doc. 38]. Thus, the
Requests for Admissions are deemed admitted by the Plaintiff.
See 11 U.S.C. § 524(i) (requiring “[t]he willful failure of a creditor to
credit payments received under a plan confirmed under this title”).
produce evidence showing that an issue of material fact exists, Chase is entitled to
Furthermore, the Plaintiff’s argument rests upon a misunderstanding of the
nature of the bankruptcy payments. The bankruptcy trustee paid $19,061.85 toward
Chase’s arrearage claim in the bankruptcy case, along with $5,242.77 paid toward
interest on the arrearage.47 This claim for $19,061.85 was derived from missed
monthly mortgage payments (comprised of principal, interest, insurance, and taxes),
late charges, pre-petition escrow shortages, and pre-petition attorneys’ fees and
costs.48 The Plaintiff, however, suggests that the entire $19,061.85 paid to Chase
should have been applied to the principal owed on the mortgage loan. That is
inconsistent with the nature of the claim. The Plaintiff seems to conflate the principal
on Chase’s bankruptcy claim with the principal owed on the mortgage loan. It would
make no sense for Chase to credit the entire $19,061.85 toward the principal on the
mortgage loan when that amount was derived from multiple other sources of arrears.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Def.’s Statement of Facts in Supp. of Mot. for Summ. J. ¶ 28.
Id. ¶ 15.
Finally, Chase argues that § 524(i) does not apply because it was enacted and
became effective after the Plaintiff’s bankruptcy case was already filed.49 The Court
agrees. Section 524(i) was enacted on April 20, 2005, and became effective on
October 17, 2005.50 It only applies to bankruptcy cases filed after October 17, 2005.51
The Plaintiff filed for bankruptcy on September 2, 2004, meaning that § 524(i) does
not apply to his bankruptcy case.52 Therefore, the Plaintiff’s claim under § 524(i)
fails as a matter of law.
The Plaintiff’s only response to this argument is that “[e]ven if Section 524(i)
was enacted after Plaintiff filed his bankruptcy, Chase was not entitled to be paid more
than its claim under the Chapter 13 Bankruptcy Plan.”53 However, the Plaintiff has not
Def.’s Mot. for Summ. J., at 15.
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,
Pub. L. No. 109-8, § 1501, 119 Stat. 23 (2005).
See id. (“[T]he amendments made by this Act shall not apply with respect
to cases commenced under title 11, United States Code, before the effective date of
this Act.”); In re Protos, 322 F. App’x 930, 931 n.1 (11th Cir. 2009) (“Protos filed his
bankruptcy petition before the enactment and effective date of The Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 (‘BAPCPA’). Neither party asserts
that BAPCPA applies here.”); In re Anderson, 382 B.R. 496, 500 n.7 (Bankr. D. Or.
2008) (“Most of BAPCPA's provisions, including § 524(i) were effective for cases
filed on or after October 17, 2005.”).
Def.’s Statement of Facts in Supp. of Mot. for Summ. J. ¶ 14.
Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 10.
argued, nor provided any evidence at all, that Chase was paid more by the bankruptcy
trustee than it was entitled. Chase filed a Proof of Claim for pre-petition arrearage in
the amount of $19,061.85, which the Plaintiff never contested.54 This was the amount
that the bankruptcy trustee paid to Chase, meaning Chase was not paid more than its
claim.55 Furthermore, this argument is not responsive to Chase’s contention that the
Plaintiff’s bankruptcy claim arises under a statute that does not apply to this case.
Therefore, Chase is entitled to summary judgment on the Plaintiff’s bankruptcy code
claim because the Plaintiff has failed to offer any evidence to support his claims, and
because the Plaintiff has asserted claims under a statutory provision that does not
apply to the case at hand.
C. Breach of Contract Claim
Next, Chase moves for summary judgment on the Plaintiff’s breach of contract
claim. The Plaintiff alleges that “Chase is in breach of the Note and Security Deed by
failing to properly apply Plaintiff’s payments and make a final accounting of the
actual balance owed, if any, on the mortgage.”56 Chase argues that it is entitled to
Def.’s Statement of Facts in Supp. of Mot. for Summ. J. ¶ 16.
Id. ¶ 28.
Compl. ¶ 22.
summary judgment for multiple reasons.57 The Court agrees that Chase is entitled to
summary judgment on this claim.
First, as discussed above, the Plaintiff has failed to dispute Chase’s showing
that it properly credited the bankruptcy payments made to the Plaintiff’s account.
Thus, since this alleged misapplication of payments is the crux of the Plaintiff’s
breach of contract claim, and since it is undisputed that Chase properly credited these
payments, Chase is entitled to summary judgment on this claim.
Second, the Plaintiff’s breach of contract claim also fails as a matter of law
because the Plaintiff has failed to identify a specific contractual provision that Chase
breached. To succeed on a breach of contract claim in Georgia, a plaintiff must allege
a particular contractual provision that the defendant violated.58 Instead, the Plaintiff
simply argues in vague terms that Chase’s alleged failure to “properly credit the
account” and alleged failure to provide a “final accounting” is a “violation of . . . the
Note and Security Deed.”59 These types of vague allegations fail to state a claim for
Def.’s Mot. for Summ. J., at 21-24.
See American Casual Dining, L.P. v. Moe’s Sw. Grill, LLC, 426 F. Supp.
2d 1356, 1369 (N.D. Ga. 2006) (“Because [the plaintiff] cannot point to any
contractual provision that [the defendant] breached ... [the plaintiff] cannot state a
claim for breach of contract based on these allegations.”).
Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 11-12; see also Compl.
¶ 22 (“Chase is in breach of the Note and Security Deed by failing to properly apply
breach of contract under Georgia law.60 Furthermore, nothing in the security deed or
note indicates that Chase must apply payments to the principal amount, or that it must
provide the Plaintiff with a “final accounting.”61 Therefore, the Plaintiff’s claim fails
as a matter of law, and Chase is entitled to summary judgment.62
D. Punitive Damages and Attorneys’ Fees
Finally, Chase moves for summary judgment on the Plaintiff’s claim for
punitive damages and attorneys’ fees. The Plaintiff claims that he is entitled to
punitive damages because Chase’s actions were “intentional, willful, and with an
entire want of care demonstrating a conscious indifference to the consequences.”63 In
support of this argument, the Plaintiff cites cases in which creditors were sanctioned
Plaintiff’s payments and make a final accounting of the actual balance owed, if any,
on the mortgage.”).
See American Casual Dining, L.P., 426 F. Supp. 2d at 1369; see also
Brooks v. Branch Banking & Tr. Co., 107 F. Supp. 3d 1290, 1296 (N.D. Ga. 2015)
(concluding that the plaintiff’s breach of contract claim fails to state a claim for relief
because it failed to “mention a specific contractual provision Defendant breached”).
See Rundquist Decl., Ex. 1; id., Ex. 2.
Since the Plaintiff has failed to establish that a genuine issue of material
fact exists as to whether a breach occurred, the Court finds it unnecessary to address
the issue of damages.
Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 12; Compl. ¶ 75.
for violating discharge injunctions in bankruptcy proceedings.64 The Court holds that
Chase is entitled to summary judgment. The Plaintiff has failed to provide evidence
that Chase misapplied the bankruptcy payments at all, let alone that it did so
intentionally, willfully, or with conscious indifference to the consequences. Therefore,
Chase is entitled to summary judgment on the Plaintiff’s claims for punitive damages
and attorneys’ fees.
For the reasons stated above, the Defendant JPMorgan Chase Bank, N.A.’s
Motion for Summary Judgment [Doc. 31] is GRANTED.
SO ORDERED, this 3rd day of November, 2017.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 13.
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