Rocha v. Bank of America
Filing
46
ORDER granting 35 Motion for Summary Judgment (Written Opinion). Signed by Senior Judge David S. Doty on 11/6/2012. (PJM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 11-551(DSD/JSM)
Joanne Lee Rocha,
Plaintiff,
ORDER
v.
Bank of America,
Defendant.
Joanne Lee Rocha, 1483 West Larpenteur Avenue, #2, Falcon
Heights, MN 55113, pro se.
Sparrowleaf Dilts McGregor, Esq. and Fulbright &
Jaworski, LLP, 80 South Eighth Street, Suite 2100,
Minneapolis, MN 55402, counsel for defendant.
This matter is before the court upon the motion for summary
judgment by defendant Bank of America.
Based on a review of the
file, record and proceedings herein, and for the following reasons,
the court grants the motion.
BACKGROUND
This mortgage dispute arises out of the attempt by pro se
plaintiff Joanne Lee Rocha to modify a loan for property located at
1483 Larpenteur Avenue West, Falcon Heights, Minnesota 55113.
On
October 2, 2006, Rocha borrowed $245,000 from Countrywide Bank,
N.A. (Countrywide) and signed an Adjustable Rate Note (ARN).
Goforth Aff. ¶ 4.
The loan was secured by a mortgage on the
Larpenteur Avenue property.
Rocha Dep. 15:4-5.
Bank of America
acquired the mortgage following its merger with Countrywide.
Id.
at 16:17-20.
In fall 2009, Rocha applied for a loan modification.
Id. at
27:8-10. Upon approval, the loan modification would have converted
the ARN to a step-rate loan.
Goforth Aff. Ex. C, at 3.
On
December 28, 2009, Bank of America mailed Rocha several documents
related to her application, including a Proposed Loan Modification
Letter (Proposal Letter) and a Loan Modification Agreement.
See
id.
The Proposal Letter provided:
This modification agreement will not be
binding or effective unless and until it has
been signed by both you and [Bank of America].
Further, in order for the loan modification to
become effective, you must complete the
actions in the “To Accept the Proposed
Modification” section of this letter by no
later than January 27, 2010.
Id. at 1.
This section instructed Rocha to sign and date the Loan
Modification Agreement, have the agreement notarized, remit the
first payment of $1,542.73 and return certain documents in a
prepaid envelope.
Id. at 2.
The Proposal Letter also included a
“Did You Remember?” section that re-listed these requirements. Id.
On January 22, 2010, Rocha signed the Loan Modification
Agreement, had it notarized and mailed the contents in the prepaid
envelope provided by Bank of America.
Rocha did not include her first payment.
2
Rocha Dep. 32:20-33:1.
Id. at 33:2-17.
Bank of
America
received
Modification
the
Agreement.
package1
On
but
March
did
10,
not
2010,
sign
Bank
the
of
Loan
America
notified Rocha that her loan modification application was denied.
Id. at 33:21-25.
On March 3, 2011, Rocha filed this action, alleging breach of
contract and detrimental reliance.
Compl. ¶ 7.
Bank of America
moved for summary judgment, and a hearing was scheduled for August
24, 2012.
Rocha did not submit an opposition memorandum or attend
oral argument.
In response, the court stayed consideration of the
case for two weeks.
Rocha was provided an additional week to file
an opposition memorandum and Bank of America was given one week to
reply.
DISCUSSION
I.
Standard of Review
“The court shall grant summary judgment if the movant shows
that 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. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
1
The package was delayed by inclement weather and did not
arrive by the January 27, 2010, deadline. Compl. ¶ 10.
3
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
See id. at 255.
The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial.
Celotex, 477 U.S. at 324.
See
A party asserting that a genuine dispute
exists — or cannot exist — about a material fact must cite
“particular parts of materials in the record.”
56(c)(1)(A).
Fed. R. Civ. P.
If a plaintiff cannot support each essential element
of a claim, the court must grant summary judgment because a
complete
failure
of
proof
regarding
an
essential
necessarily renders all other facts immaterial.
element
Celotex, 477 U.S.
at 322-23.
II.
Breach of Contract
Rocha
argues
that
Modification Agreement.
Bank
of
America
breached
the
Loan
“In order to state a claim for breach of
contract, the plaintiff must show (1) formation of a contract,
(2) performance by plaintiff of any conditions precedent to h[er]
right to demand performance by the defendant, and (3) breach of the
contract by defendant.” Park Nicollet Clinic v. Hamann, 808 N.W.2d
828, 833 (Minn. 2011) (citation omitted).
4
Bank of America argues that remittance of the first payment
was an unfulfilled condition precedent.
A condition precedent ... is one which is to
be performed before the agreement of the
parties becomes operative.
A condition
precedent calls for the performance of some
act or the happening of some event after the
contract is entered into, and upon the
performance
or
happening
of
which
its
obligation is made to depend.
Crossroads Church of Prior Lake, Minn. v. Cnty. of Dakota, 800
N.W.2d 608, 615 (Minn. 2011) (citations omitted).
The Proposal
Letter explicitly informed Rocha that “in order for the loan
modification to become effective, you must complete the actions in
the ‘To Accept the Proposed Modification’ section.”
Ex. C., at 1.
Rocha did not submit the first payment with the Loan
Modification Agreement.
operative.
Goforth Aff.
Thus, the proposed agreement never became
See Crossroads Church, 800 N.W.2d at 615 (“Unfulfilled
conditions prevent the enforcement of a contract.”).
Rocha responds that only the Proposal Letter - and not the
Loan Modification Agreement - included the payment requirement.
condition
precedent,
agreement itself.
however,
need
not
be
expressed
in
A
the
See Craigmile v. Sorenson, 58 N.W.2d 865, 871
(Minn. 1953) (“[A] written document, unconditional on its face and
fully executed, can be shown by parol testimony to have been
subject
to
a
condition
precedent.”).
As
such,
the
payment
requirement in the Proposal Letter establishes that submission of
the first payment was a condition precedent.
5
Rocha
next
requirement.
argues
that
she
was
unaware
of
the
payment
This requirement, however, was unambiguous, and
Rocha’s confusion is irrelevant.
“Extrinsic evidence of the
parties’ subjective intent cannot be used to create contractual
ambiguity where none exists on the face of the agreement.”
M.M.
Silta, Inc. v. Cleveland Cliffs, Inc., 616 F.3d 872, 877 (8th Cir.
2010)
(citations
and
internal
(interpreting Minnesota law).
modification
does
not
quotation
marks
omitted)
Thus, any confusion over the loan
excuse
the
failure
to
remit
payment.
Therefore, summary judgment is warranted as to the claim for breach
of contract.2
III.
Promissory Estoppel
Rocha next argues that she detrimentally relied on the offer
to refinance her mortgage.
Given her pro se status, the court
construes this as an argument for promissory estoppel.
See Smith
v. Hundley, 190 F.3d 852, 855 n.7 (8th Cir. 1999) (explaining that
pro se pleadings are liberally construed).
“To state a claim for
promissory estoppel, the plaintiff must show that (1) there was a
clear and definite promise, (2) the promisor intended to induce
reliance and such reliance occurred, and (3) the promise must be
enforced to prevent injustice.”
Park Nicollet Clinic v. Hamann,
2
As Rocha failed to perform a condition precedent, the court
does not address Bank of America’s argument that the contract was
unenforceable under Minnesota Statutes § 513.33, subdivision 2,
because it was not signed by both parties.
6
808 N.W.2d 828, 834 (Minn. 2011) (citation omitted).
Apart from a
conclusory assertion in her complaint that the “suit is being
brought on the basis of ... detrimental reliance,” Rocha has not
set forth any evidence in support of the promissory estoppel claim.
Specifically, Rocha neither alleges nor presents any evidence of
detrimental reliance.
Therefore, summary judgment is warranted as
to the claim for detrimental reliance.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
Bank of America’s motion for summary judgment [ECF No. 35] is
granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:
November 6, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court
7
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