Dan-Harry v. PNC Bank, National Association

Filing 41

REPORT AND RECOMMENDATIONS re 28 MOTION for Summary Judgment filed by PNC Bank, National Association. I recommend that PNCs Motion for Summary Judgment 28 be granted. Objections to R&R due by 10/31/2018. So Ordered by Magistrate Judge Patricia A. Sullivan on 10/17/2018. (Saucier, Martha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
DAWARI DAN-HARRY, on behalf of
himself and all others so similarly
situated,
Plaintiff,
v.
PNC BANK, N.A.,
Defendant.

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C.A. No. 17-136WES

REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
This putative class action now rests on Plaintiff Dawari Dan-Harry’s only remaining
claim1 – that Defendant PNC Bank, National Association, (“PNC”) breached the mortgage
contract between Plaintiff and PNC by failing to comply with a regulation, 24 C.F.R. § 203.604,
which requires that a mortgagee must arrange a face-to-face meeting with the mortgagor within
three months after default, or, as relevant in this case, make a “reasonable effort” to arrange such
a meeting. 24 C.F.R. § 203.604(b, d). The regulation was promulgated by the United States
Department of Housing and Urban Development (“HUD”) and was incorporated into Plaintiff’s
contractual relationship with PNC because the mortgage was insured by the Federal Housing
Authority (“FHA”).
PNC has moved for summary judgment, arguing that Plaintiff’s proffer fails to establish
any material issue of disputed fact to overcome PNC’s evidence that it made the requisite
“reasonable effort” to arrange a face-to-face meeting by mailing a certified letter inviting
Plaintiff to a face-to-face meeting and by setting up one trip to see Plaintiff at the mortgaged

Plaintiff’s other claims were dismissed at the Fed. R. Civ. P. 12(b)(6) phase. Dan-Harry v. PNC Bank, N.A., No.
CV 17-136 WES, 2018 WL 1083581 (D.R.I. Feb. 27, 2018).
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property. ECF No. 28. PNC also contends that the undisputed facts – Plaintiff’s admitted lack
of equity in the mortgaged property and inability to make payments at the time of default,
combined with five years of default before foreclosure and six years of living in the mortgaged
property without paying the mortgage or anything for use and occupancy – support judgment as
a matter of law because Plaintiff has failed to show that the lack of a face-to-face meeting caused
his claimed damages.
The motion has been referred to me for report and recommendation. 28 U.S.C. §
636(b)(1)(B). For the reasons that follow, I recommend that the motion be granted based on the
absence of a trial-worthy factual dispute affecting PNC’s evidence, which establishes full
compliance with the “reasonable effort” requirement in 24 C.F.R. § 203.604(d). I also
recommend that the motion be granted because Plaintiff has failed to present evidence sufficient
to establish that PNC’s alleged breach caused his claimed damages.
I.

BACKGROUND2
On December 5, 2005, Plaintiff obtained a mortgage loan from PNC’s predecessor,

National City Bank of Indiana, to purchase a home at 84 Corinth Street in Providence (“the
mortgaged property”). PNC SUF ¶ 1. In conjunction with that loan, Plaintiff executed a
mortgage agreement and promissory note in the amount of $203,000. PNC SUF ¶ 2. Paragraph
9(d) of the mortgage incorporated by reference certain HUD regulations; it states as follows:
Regulations of HUD Secretary. In many circumstances regulations issued by
the Secretary will limit Lender’s rights, in the case of payment defaults, to require
immediate payment in full and foreclose if not paid. This Security Instrument
does not authorize acceleration or foreclosure if not permitted by regulations of
the Secretary.

These facts are drawn from the parties’ statements of facts and supporting affidavits and declarations. Except
where otherwise indicated, they are undisputed.
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PNC SUF ¶ 5. On December 31, 2008, PNC acquired National City Bank of Indiana and
became the mortgagee. PNC SUF ¶ 3.
Plaintiff failed to make a payment on the note when due in January 2012 and again in
February 2012, resulting in his being in default under the mortgage. PNC SUF ¶ 4. In that
circumstance, the applicable HUD regulation requires that, within three months, the mortgagee
must either have a face-to-face meeting with the mortgagor or make a reasonable effort to
arrange one. The regulation states in relevant part as follows:
(b) The mortgagee must have a face-to-face interview with the mortgagor, or
make a reasonable effort to arrange such a meeting, before three full monthly
installments due on the mortgage are unpaid.
...
(d) A reasonable effort to arrange a face-to-face meeting with the mortgagor shall
consist at a minimum of one letter sent to the mortgagor certified by the Postal
Service as having been dispatched. Such a reasonable effort to arrange a face-toface meeting shall also include at least one trip to see the mortgagor at the
mortgaged property[.]
24 C.F.R. § 203.604 (emphasis added). PNC has proffered two declarations signed by
individuals familiar with the relevant procedures setting out its “regularly conducted business
activity” of timely sending a certified letter and of using an experienced entity, J.M. Adjustment
Services (“J.M.”), to make a timely trip to the mortgaged property, both as efforts to arrange the
face-to-face meeting; these declarations aver that both requirements were accomplished in this
case. Sexton Decl. ¶¶ 5, 8, 11, 12; Kojadulian Decl. ¶¶ 7, 8, 10, 14, 16, 17.
Authenticated as a business record by the declaration of PNC’s Vice President Jean
Sexton, PNC’s Loan Activity Archive for the relevant period reflects that on February 27, 2012,
a certified letter was sent to Plaintiff via the United States Postal Service (“USPS”). PNC SUF ¶

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7; Sexton Decl. ¶¶ 7-12 & Ex. 2.3 A copy of the letter with the USPS certification tracking
number and bar code is appended to the Sexton declaration, which authenticates it as a business
record and avers that PNC’s records reflect that it was sent. Sexton Decl. ¶¶ 9-12 & Ex. 1. The
letter invites Plaintiff to participate in a face-to-face meeting to discuss his mortgage and advises
him that a representative from J.M. “will be coming to your home . . . in order to discuss
solutions that may be available to you to bring your account current.”4 Sexton Decl. ¶ 10 & Ex.
1. PNC’s business records also reflect that this attempt to reach Plaintiff was not made in
isolation. Rather, between July 12, 2011, and March 30, 2012, PNC made repeated attempts to
reach Plaintiff by telephone and its representatives actually spoke to “borrower” from time to
time, both before and after the certified letter was sent. Sexton Decl. ¶ 7 & Ex. 2. During the
window for the face-to-face meeting (January through March 2012), PNC’s Loan Activity
Archive reflects at least twenty attempts to reach Plaintiff by phone. Id.
Plaintiff meets PNC’s proffer that a letter was sent certified by USPS advising Plaintiff of
the face-to-face meeting with his sworn denial that he received the letter or that he was ever told
of his right to have a face-to-face meeting. Dan-Harry Aff. ¶¶ 8, 10-11. He also relies on the
declaration of his attorney, to which is appended a document represented to be a copy of the
“tracking search results” that appeared when the USPS tracking number on the face-to-face

In what appears to be a scrivener’s error in paragraphs 7 and 10 of the Sexton declaration, the exhibit numbers are
switched, in that these paragraphs refer to Exhibit 1 as 2 and Exhibit 2 as 1. To be clear, I refer to the copy of the
letter as Exhibit 1 and the copy of PNC’s Loan Activity Archive as Exhibit 2.
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In relevant part, the balance of the letter states:
PNC Mortgage has contracted with J.M. Adjustment Services, LLC to coordinate with you and
offer you the option to schedule a free face-to-face meeting with a J.M. Adjustment Services, LLC
representative at your home to discuss solutions that may be available to bring your account back
to a current status. The purpose of this meeting would be to discuss ways to cure the delinquency
or qualify you for an option to bring your account current over a period of time.

Sexton Decl. ¶ 10 & Ex. 1.

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meeting letter was entered by an unknown person5 on an undisclosed date into a USPS website
portal; this document states “Label Created, not yet in system.” Dion Decl. ¶ 3 & Ex. 1. The
Dion declaration does not describe USPS procedures with respect to tracking of an item mailed
over six years ago or what this “tracking search result” might mean. PNC’s attorney counters the
declaration of Plaintiff’s attorney with his own representation that accessing the same USPS
website portal to view the “FAQ” that are referenced on the face of the USPS document relied on
by Plaintiff establishes that “letters can only be currently tracked with the program for 120 days.”
ECF No. 40 at 3 n.1. Notwithstanding so many ambiguities, Plaintiff argues that his denial that
he received the February 27, 2012, face-to-face meeting letter, coupled with this document
downloaded from the USPS website, are enough to give rise to a trial-worthy inference that the
certified letter was never sent.
With respect to the mortgagee’s obligation to make a trip to the mortgaged property, PNC
relies on the declaration of Ryan Kojadulian, the Compliance Manager of J.M., who avers that
J.M. was engaged by PNC to provide borrower outreach services. Kojadulian Decl. ¶ 4. The
declaration authenticates J.M.’s business record establishing that its employee, Jayson Williams
(who worked at J.M. from 2011 until 2015) visited the mortgaged property on March 4, 2012,
but found no one at home. Kojadulian Decl. ¶¶ 10-14. According to Williams’
contemporaneously prepared “Field Visit Results,” he spoke to a neighbor, who declined to
provide any information, and left taped to the door a letter to Plaintiff in a sealed confidential
envelope labeled with Plaintiff’s name. Kojadulian Decl. ¶ 10 & Ex. 1. The letter advised
Plaintiff that it was important that he contact PNC immediately but it does not mention the faceto-face meeting. Id. Ex. 2. Plaintiff avers only that he never received a letter advising him of a

The declaration simply states that the attached document is the “tracking search results from the USPS website
tracking tool[.]” Dion Decl. ¶ 3.
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face-to-face meeting. PNC SUF ¶ 8; see Dan-Harry SDF ¶ 8 (disputing only to extent that J.M.’s
trip did not cause Plaintiff to become aware of face-to-face meeting). Plaintiff does not deny that
J.M.’s employee made a trip to the mortgaged property on March 4, 2012, as described in the
Kojadulian declaration.
While Plaintiff denies that he was made aware of the availability of a face-to-face
meeting, he does not dispute PNC’s repeated attempts to reach him by phone during the threemonth period. Rather, he avers that, if he had known of his eligibility for a face-to-face meeting
and if he had been “given instructions on what to do or an agreement could have been met”
within the three-month period, he could have “displayed his financial information” and asked for
a loss litigation option or loan modification to bring his mortgage into good standing, which
would have been easier soon after the mortgage first went unpaid. Dan-Harry Aff. ¶¶ 12-13.
Later, as the unpaid balance grew, these options became “more difficult.” Id. Nevertheless,
Plaintiff also admits that, as of March 1, 2012, he believed he owed more than what the
mortgaged property was then worth, a belief that is confirmed in a letter he admits he wrote on
August 12, 2012. Radke Decl. ¶ 5 & Ex. 2 (RFA ¶¶ 12, 22). Nor does he dispute that he had no
equity in the mortgaged property at the time he defaulted. PNC SUF ¶ 12.6 Plaintiff also
provides no evidence permitting the inference that, during the three-month period (or at any time
after he first defaulted in January 2012), he had the willingness and ability to bring the mortgage
current; nor does he dispute that he lacked the funds to make mortgage payments at the time of
default. Id.

Plaintiff’s response to this pivotal fact disputes only the assertion that his non-monetary damages are limited to
“stress” in that he considers the loss of his home to be part of his claimed damages. Dan-Harry SDF ¶ 12.
Otherwise, ¶ 12 is undisputed.
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After the mandatory three-month window for the face-to-face meeting closed, it is
undisputed that Plaintiff requested a loan modification based on the property’s decreased value
and his income but the parties failed to agree on a modification for the mortgage or on a short
sale. PNC SUF ¶ 9. In his affidavit, Plaintiff avers that the delay has caused him to lose his
home in that he believes that he “would have worked out something to sell my house.” DanHarry Aff. ¶ 14. The delay also caused him to incur late charges, interest, fees and penalties and
resulted in an increase in the escrow balance. Id. Plaintiff made his last payment in December
2011 and has occupied the residence from then until now without paying the mortgage or
anything for use and occupancy, at the same time that PNC has paid the taxes and insurance.
Sexton Decl. ¶ 14. PNC did not complete the foreclosure and sale of the mortgaged property
until January 23, 2017. PNC SUF ¶ 11. Throughout, Plaintiff has continued to occupy the
property as his primary residence. ECF No. 1-1 at ¶ 41.
II.

STANDARD OF REVIEW
Under Fed. R. Civ. P. 56, summary judgment is appropriate if the pleadings, the

discovery, disclosure materials and declarations show that there is “no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Taylor v. Am.
Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009); Commercial Union Ins. Co. v. Pesante, 459
F.3d 34, 37 (1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). A fact is material only if it possesses
the capacity to sway the outcome of the litigation; a dispute is genuine if the evidence about the
fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.
Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010); Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227
(1st Cir. 1996)). The evidence must be in a form that permits the court to conclude that it will be

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admissible at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In ruling on a
motion for summary judgment, the court must examine the record evidence “in the light most
favorable to, and drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano
de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000) (citing
Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996)). There are no trial-worthy
issues unless there is competent evidence to enable a finding favorable to the nonmoving party.
Goldman v. First Nat’l Bank of Bos., 985 F.2d 1113, 1116 (1st Cir. 1993). That is, the
nonmoving party cannot rest on its pleadings, but must “set forth specific facts demonstrating
that there is a genuine issue for trial” as to the claim that is the subject of the summary judgment
motion. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
III.

LAW AND ANALYSIS
A.

Reasonable Effort to Arrange Face-to-Face Meeting

Section 203.604 requires a mortgagee either to have a face-to-face meeting with the
mortgagor, or make a reasonable effort to arrange such a meeting prior to proceeding with
foreclosure. 24 C.F.R. § 203.604(b). A face-to-face meeting is not required if a reasonable
effort to arrange the meeting is unsuccessful. 24 C.F.R. § 203.604(c)(5). A reasonable effort to
arrange such a meeting “shall consist at the minimum of one letter sent to the mortgagor certified
by the Postal Service as having been dispatched,” as well as “at least one trip to see the
mortgagor at the mortgaged property” unless certain exceptions not applicable here exist. 24
C.F.R. § 203.604(d); see generally Grimaldi v. US Bank Nat’l Ass’n for LSF9 Master
Participation Tr., C.A. No. 16-519 WES, 2018 WL 1997277, at *3 (D.R.I. Apr. 27, 2018);
Countrywide Home Loans, Inc. v. Wilkerson, No. 03 C 50391, 2004 WL 539983, at *1 (N.D. Ill.
Mar. 12, 2004).

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To prove compliance with § 203.604(d), the mortgagee may rely on “proof of a business
system of preparing and mailing letters, and compliance with such a custom in the particular
instance,” coupled with a copy of the business letter coded with internal identification numbers,
names, and descriptions. Underwood v. Wells Fargo Home Mortg., Inc., No. 16-10226, 2016
WL 3182022, at *3 (E.D. Mich. June 8, 2016) (quoting Simpson v. Jefferson Standard Life Ins.
Co., 465 F.2d 1320, 1324 (6th Cir. 1972)). Sworn testimony describing the ordinary practice of
utilizing certified mail when sending the face-to-face meeting letters and “indicating that a
certified letter was, in fact, sent” is enough for summary judgment in favor of the mortgagee.
Campbell v. Wells Fargo Bank, N.A., No. 1:14-cv-03341TWTJFK, 2016 WL 6496458, at *8
(N.D. Ga. Oct. 6, 2016), adopted, No. 1:14-CV-3341-TWT, 2016 WL 6462070 (N.D. Ga. Nov.
1, 2016). Application of these principles to the facts here compels the conclusion that PNC has
presented competent evidence to prove that it both sent a timely certified letter and deputized a
representative to make one trip to the mortgaged property. PNC’s declarations from its Vice
President and J.M. establish its business practice of complying with § 203.604(d), as well as that
it complied with it usual practices in this instance. Such evidence is sufficient to sustain PNC’s
burden.7 See RBS Citizens NA v. Sharp, No. 17 MA 0059, 2018 WL 3147976, at * 4 (Ohio Ct.
App. June 22, 2018) (mortgagee’s proffer of copy of timely letter with “evidence that said letter
was sent via certified mail,” coupled with evidence that representative was sent to mortgagor’s
home, enough for summary judgment in mortgagee’s favor).

No case supports Plaintiff’s contention that business practice evidence is insufficient and summary judgment is
improper unless the mortgagee can present sworn testimony from persons with first-hand knowledge able to
remember that a particular certified letter was actually placed in the mail and able to describe the trip to the
mortgaged property. As a practical matter, if such a requirement were adopted, virtually all § 203.604(d) cases
would go to trial. I decline to adopt such an approach.
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Offered to rebut this evidence, Plaintiff’s denial that he got the certified letter is legally
insufficient. A mortgagor’s denial of having received the letter does not give rise to a factual
dispute regarding the mortgagee’s compliance with the requirement to send it. Campbell, 2016
WL 6496458, at *8 (granting summary judgment despite plaintiff’s averment that she never
received certified letter; “there is no express requirement under the regulation that Defendant
guarantee a mortgagor’s receipt”) (emphasis in original). Similarly, the proffer in Plaintiff’s
attorney declaration of August 8, 2018, of an unexplained document from the USPS website
proves nothing. Without some cognizable evidence to authenticate the document and explain the
meaning of “Label created, not yet in system,” particularly where the time when the inquiry was
made and the person who made it are both unknown, this document does not amount to
admissible evidence permitting the inference that PNC’s certified letter was not sent on February
28, 2012.8 Cf. Whitfield v. Walker, No. 04-3136, 2006 WL 2644939, at *10 (C.D. Ill. Sept. 14,
2006) (unexplained proffer of USPS Postal Tracking record that shows two unidentified items
not found does not amount to proof that anyone stole or tampered with mail).
Plaintiff attacks the adequacy of J.M.’s undisputed trip to the mortgaged property by
arguing that it fails to meet the trip requirement in § 203.604(d) because there is no evidence that
Mr. Williams had the authority actually to conduct a face-to-face meeting on the spot and
because the letter he left did not mention a face-to-face meeting. This argument is also
unavailing. Section 203.604(d) requires only that the mortgagee must “include at least one trip
to see the mortgagor at the mortgaged property” as part of its “reasonable effort to arrange a

Equally inadmissible is PNC’s attorney’s counter to Plaintiff’s attorney, which points out that the page attached to
the Dion declaration comes from a tracking portal that retains delivery status information only for four months. If
the Court were drawn into considering these dueling representations of counsel, an invitation which I have declined,
it must conclude that the proffered “tracking search results” are meaningless unless they were generated in the
period between February 27, 2012, and April 26, 2012. And there is nothing in the Dion declaration permitting the
inference that they were.
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face-to-face meeting.” Id. (emphasis added). The regulation does not require that the person
who makes the trip must be in possession of all of the information and authority necessary to be
fully prepared to conduct a complete face-to-face meeting. Nor does it mandate that a letter
discussing the face-to-face meeting must be left if the mortgagor is not home. Plaintiff’s
argument to the contrary misses the mark because he relies on cases that do not address the
sufficiency of a timely reasonable effort to arrange the meeting by making a trip to the property.
For example, Plaintiff points to Freedom Mortgage Corp. v. Newsome, Docket No. 12SP-2461, slip op. (Mass. Housing Ct. Dept. Sept. 1, 2017),9 in which the mortgagee neither sent
a timely certified letter nor made a timely trip to mortgaged property for arranging a face-to-face
meeting. Rejecting the mortgagee’s argument that its failures should be overlooked because
there were other trips to the borrower’s home, the Massachusetts housing court held that an
untimely visit by a representative who lacked the authority to propose or accept a payment plan
was not an adequate substitute for compliance. Id. at 2 ¶ 7, 6 ¶¶ 20-21. Freedom Mortgage does
not stand for the proposition that compliance with the timely trip requirement of § 203.604(d)
requires that the representative who makes the trip must be prepared to conduct the face-to-face
meeting on the spot. And if Freedom Mortgage somehow may fairly be read as supporting such
a proposition, that holding would be error as it ignores the clear language of § 203.604(d), which
states that the trip is “to arrange” the meeting, not to conduct it in the moment.
Plaintiff’s reliance on Wells Fargo Bank, N.A. v. Cook, 31 N.E.3d 1125 (Mass. App. Ct.
2015), is equally misplaced. Like Freedom Mortgage, Cook does not consider the adequacy of a
timely trip to the mortgage property. Rather, it holds that a mortgagee cannot avoid the
consequences of its failure to comply with § 203.604(d) by claiming that it did conduct a face-to-

9

This unpublished opinion is in the record at ECF No. 39-2.

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face meeting by setting up a mass event with defaulted borrowers at Gillette Stadium that was
untimely and at which no “personalized consideration” of the mortgagors took place. Id. at
1129-31. Further, to the extent that Cook has been considered by other courts (albeit not in the
context of evaluating the sufficiency of a trip to the mortgaged property), its holding has been
limited to its unique facts. Ruzicka v. JPMorgan Chase Bank, N.A., No. CV 15-2432 (JSM),
2016 WL 10637081, at *7-8 (D. Minn. Dec. 7, 2016), aff’d, 705 F. App’x 473 (8th Cir. 2017)
(granting summary judgment because brief, but timely, meeting with bank representative with
disputed authority to propose or accept repayment plan is sufficient to constitute face-to-face
meeting).
Based on the foregoing, I find that the material undisputed facts establish that PNC
complied fully with the § 203.604(d) “reasonable effort” requirement and that there was no
breach of its contractual duty to Plaintiff to do so. In reliance on that finding, I recommend that
the Court grant summary judgment in favor of PNC.
B.

Sufficiency of Plaintiff’s Proof of Damages

While the analysis could end with Plaintiff’s failure to present trial-worthy evidence to
combat PNC’s proof of compliance with § 203.604(d), I also find that Plaintiff’s claim must fail
because he has no proof permitting the inference that his damages – the fees, interest and
penalties that accumulated as the mortgage remained unpaid, as well as the loss of his home to
foreclosure after five years in default – were caused by an alleged breach of the face-to-face
meeting requirement.
The starting point for the analysis is the foundational principle that a plaintiff must not
only prove the existence and breach of a contract, but also must prove that the breach caused him
damage. Petrarca v. Fidelity and Casualty Ins. Co., 884 A.2d 406, 410 (R.I. 2005). In the

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context of face-to-face meeting breach-of-contract cases, unless there is proof of equity in the
property and the ability to bring the mortgage current during the pertinent time period, courts
deploy this principle to hold that “the foreclosure was due to [the plaintiff’s] default in [his] . . .
mortgage loan,” and reject as “completely speculative and frankly irrelevant,” the assertion that
“the plaintiff would have received a loan modification and avoided foreclosure if a face-to-face
meeting had occurred. Aazami v. Wells Fargo Bank, N.A., 3:17-CV-01564-BR, 2018 WL
738930, at *6 (D. Or. Feb. 6, 2018) (“[c]ourts in similar circumstances have held that plaintiffs
failed to support their breach-of-contract claims”) (citing Wright v. Wells Fargo Bank, N.A., No.
1:15-cv-02416-AT-JCF, 2015 WL 12159206, *5 (N.D. Ga. Oct. 8, 2015); Njema v. Wells Fargo
Bank, N.A., 124 F. Supp. 3d 852, 684 (D. Minn. 2015)). The point is well illustrated by
Covarrubias v. CitiMortgage, Inc., 623 F. App’x 592 (4th Cir. 2015) (per curiam), in which the
grant of summary judgment was vacated based on concrete evidence of the plaintiff’s
“willingness and ability to bring the mortgage current had [the mortgagee] arranged a face-toface meeting, and . . . a loss of equity as a direct result of foreclosure.” Id. at 593-94; see Squire
v. Va. Hous. Dev. Auth., 758 S.E.2d 55, 60-61 (Va. 2014) (loss of equity establishes that damage
was caused by mortgagee’s failure to send notice that was condition precedent to right to
accelerate).
In this case, Plaintiff has admitted that, at the time he defaulted, he had no equity in the
property and lacked the funds to make any mortgage payments. PNC SUF ¶ 12. He relies only
on his own speculation for the proposition that a face-to-face meeting might have altered the
course of events. See Dan-Harry Aff. ¶¶ 12-14. Thus, it is clear that this is a case in which
Plaintiff’s damages were caused by his failure to “tender a single payment for [five] years that
caused [his] default status and the foreclosure[,]” and not by the lack of a face-to-face meeting.

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Rourk v. Bank of Am. Nat’l Ass’n, No. 4:12-CV-42 (CDL), 2013 WL 5595964, at *6 (M.D. Ga.
Oct. 11, 2013) (summary judgment granted because plaintiff “has not established that such a
failure [of face-to-face meeting] caused her any damages.”); see Ruzicka, 2016 WL 10637081, at
*9 (any damages arising from foreclosure resulted from plaintiff’s default, not from action by
mortgagee). Plaintiff’s push-back rests on an unpublished Massachusetts state court decision
holding simply that a failure of a condition precedent renders a foreclosure void ab initio. See
EverBank v. Chacon, 87 N.E.3d 116, 2017 WL 3198222, at *1 (Mass. App. Ct. 2017).
However, EverBank arose in the context of foreclosure proceedings; it is not applicable to a
breach of contract claim brought by a plaintiff who has no evidence of the essential element that
the breach must result in damage. See Petrarca, 884 A.2d at 410.
Based on the foregoing, I recommend that summary judgment is appropriate based on
Plaintiff’s lack of proof of damages caused by the alleged breach.
IV.

CONCLUSION
For the reasons set forth above, I recommend that PNC’s Motion for Summary Judgment

(ECF No. 28) be granted.
Any objection to this report and recommendation must be specific and must be served
and filed with the Clerk of the Court within fourteen (14) days after its service on the objecting
party. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure to file specific objections in a
timely manner constitutes waiver of the right to review by the district judge and the right to
appeal the Court’s decision. See United States v. Diaz-Rosado, 857 F.3d 89, 94 (1st Cir. 2017);
Davet v. Maccarone, 973 F.2d 22, 31 (1st Cir. 1992).
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
October 17, 2018
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