Dan-Harry v. PNC Bank, National Association
Filing
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MEMORANDUM AND ORDER granting 28 Motion for Summary Judgment; adopting 41 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 3/18/2019. (Jackson, Ryan)
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.
)
)
C.A. No. 17-136 WES
MEMORANDUM AND ORDER
William E. Smith, Chief Judge.
On October 17, 2018, Magistrate Judge Patricia A. Sullivan
filed a Report and Recommendation (“R. & R.”) in this action recommending that the Court grant summary judgment in favor of the
Defendant on Plaintiff’s remaining claim for breach of contract.
See generally R. & R., ECF No.
objection on November 2, 2018.
41.
Plaintiff filed a timely
See Pl.’s Obj. to R. & R. on Def.’s
Mot. for Summ. J. (“Pl.’s Obj.”), ECF No. 43.
For the reasons
stated herein, the Plaintiff’s objections are OVERRULED. The Court
ACCEPTS Magistrate Sullivan’s R. & R., ADOPTS its recommendations
and reasoning, and GRANTS the Defendant’s Motion for Summary Judgment, ECF No. 28.
I.
Discussion
When a party timely objects to a magistrate judge’s report
and recommendation, the Court reviews the challenged rulings de
novo.
28 U.S.C. § 636(b)(1)(C); United States v. Raddatz, 447
U.S. 667, 673-76 (1980).
This standard does not, however, entitle
an objecting party to “shift gears” before the district judge by
interposing arguments that the party failed to raise before the
magistrate judge.
Paterson-Leitch Co. v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (“We hold categorically that an unsuccessful party is not entitled as of right
to de novo review by the judge of an argument never seasonably
raised before the magistrate.”).
waived.
Any such arguments have been
See id.
Here, the Plaintiff objects on the grounds that (1) genuine
disputes of material fact remain concerning whether the Defendant
satisfied the “certified letter” and the “trip to the property”
requirements of 24 C.F.R. § 203.604, and (2) the R. & R.’s finding
that the Plaintiff has failed to demonstrate damages is erroneous.
All these arguments are without merit.
Plaintiff’s first set of objections concern the Defendant’s
proof of compliance with § 203.604, which establishes certain conditions precedent that a mortgagee must satisfy prior to a foreclosure.
See 24 C.F.R. § 203.604.
Section 203.604(b) provides
“[t]he mortgagee must have a face-to-face interview with the
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mortgagor, or make a reasonable effort to arrange such a meeting,
before three full monthly installments due on the mortgage are
unpaid.”
The regulation also states:
“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-to-face meeting shall also
include at least one trip to see the mortgagor
at the mortgaged property . . . .”
Id. at § 203.604(d)(emphasis added).
The Plaintiff first argues that the phrase “certified by the
Postal Service as having been dispatched” means that any proof of
mailing must come from the Postal Service.
See Pl.’s Obj. 2-3.
The record contains no indication that the Plaintiff raised this
specific argument before Magistrate Judge Sullivan. 1
Instead, the
Plaintiff argued that the tracking data information his counsel
received from the Postal Service website — evidence Magistrate
Judge Sullivan correctly concluded was irrelevant and inadmissible
— did not conclusively show delivery.
The Plaintiffs thus waived
any argument based on interpreting the language of the regulation.
See Paterson-Leitch Co., 840 F.2d at 990–91.
1
The docket does not include a transcript of the hearing on
the Defendant’s motion, but the Plaintiff cites nothing to support
his contention that this issue was mentioned during oral argument.
3
Regardless, the Court is not persuaded to adopt the Plaintiff’s creative construction of 24 C.F.R. 203.604(d).
The plain
language of subsection (d) does not restrict the proof the Defendant may rely on to show that it complied with the regulation.
Moreover, the Plaintiff’s interpretation of the regulation is, if
not unique, contrary to the overwhelming weight of authority. See,
e.g., Aazami v. Wells Fargo Bank, N.A., No. 3:17-cv-01564-BR, 2019
WL 281286, *8 (D. Or. Jan. 22, 2019) (describing compliance with
§ 203.604’s “certified-letter provision”); Campbell v. Wells Fargo
Bank, N.A., No. 1:14-cv-03341-TWT-JFK, 2016 WL 6496458, at *8 (N.D.
Ga. Oct. 6, 2016), adopted by, No. 1:14-CV-3341-TWT, 2016 WL
6462070 (N.D. Ga. Nov. 1, 2016); Countrywide Home Loans, Inc. v.
Wilkerson, No. 03 C 50391, 2004 WL 539983, at *1 (N.D. Ill. Mar.
12, 2004) (“The court interprets this straightforward language to
require both the sending of a certified
letter and a personal
visit to constitute a reasonable effort at arranging a face-toface meeting.”); Wash. Mut. Bank v. Mahaffey, 796 N.E. 2d 39, 44
(Ohio Ct. App. 2003) (“Section 203.604(d) clearly prescribes a
certified letter as the minimum requirement for a reasonable effort
to arrange a face-to-face meeting.”).
As for the “trip to the property” requirement, the Plaintiff
does not dispute that a trip occurred, but rather objects on the
grounds that the trip was untimely as it occurred on March 4, 2012,
rather than March 1, 2012.
See Pl.’s Obj. 5-6.
4
The Court again
disagrees with the Plaintiff’s proposed construction of the regulation.
It is incumbent on the mortgagee to make a “reasonable
effort” to arrange a face-to-face meeting “before three full
monthly installments due on the mortgage are unpaid.”
§ 203.604(b) (emphasis added). 2
24 C.F.R.
The regulation is silent concern-
ing whether the mortgagee’s efforts must be completed within the
three-month timeframe.
Here, the Defendant’s attempt to arrange
a face-to-face meeting with the Plaintiff began on February 27,
2012 with its mailing of a certified letter.
12, Ex. 1, ECF No. 32.
sonableness.”
Sexton Decl. ¶¶ 9-
The touchstone of § 203.604(b) is “rea-
In the absence of any guidance to the contrary, the
Court agrees with the Defendants that it would be unreasonable to
interpret § 203.604(b)’s terms to nullify an effort to arrange a
meeting that began three days before a third installment became
overdue but concluded three days after it lapsed into unpaid status.
Indeed, the Plaintiff has highlighted that other courts have
found § 203.604’s deadlines to be “aspirational” rather than compulsory.
Pl.’s Obj. 8-9; see also PNC Mtge. v. Garland, 12 MA
222, 2014 WL 1325908, *6 (Oh. App. Ct. Nov. 10, 2016).
Thus, the
Court concurs with the R. & R.’s finding that the Defendant
2
The Defendant argues that “unpaid” should be interpreted
to mean “in default” under the terms of the Plaintiff’s note, which
would make March 15, 2012 the relevant date. Def.’s Resp. to Pl.’s
Obj. 8, ECF No. 45. Plaintiff’s promissory note, however, is not
included in the summary judgment record.
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“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.”
R. & R. at 11.
The Plaintiff’s last objection faults the R. & R.’s finding
that Plaintiff failed to demonstrate damages, which would comprise
an independent ground for granting judgment in the Defendant’s
favor as a matter of law.
The objection is untenable.
of the Complaint alleges breach of contract.
1-1.
Count III
Compl. 16, ECF No.
Damages are a fundamental element of this claim.
See
Petrarca v. Fidelity & Casualty Ins. Co., 884 A.2d 406, 410 (R.I.
2005).
The Plaintiff had no equity in the property and lacked
funds to make any mortgage payments at the time of his default.
Def.’s Statement of Undisputed Facts ¶ 12, ECF No. 30.
In the
absence of other evidence, his assertions that a face-to-face
meeting would have allowed him to “work out an arrangement” to
avoid foreclosure are mere wishful-thinking.
12-14, ECF No. 38.
Dan-Harry Aff. ¶¶
The Plaintiff has accordingly failed to offer
proof of damages caused by the Defendant’s alleged breach of contract.
See Rourk v. Bank of America Nat. Ass’n, 2013 WL 5595964,
*6 (Oct. 11, 2013), aff’d, 587 Fed. Appx. 597 (11th Cir.2014)
(“[I]t was Plaintiff’s failure to tender a single payment for
nearly two years that caused her default status and the foreclosure
. . . . even if Plaintiff had demonstrated that Defendant failed
to make a reasonable effort to arrange a face-to-face meeting with
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her, she has not established that such a failure caused her any
damages.”)
II.
Conclusion
For the foregoing reasons, Plaintiff’s Objection to the
Report & Recommendation on Defendant’s Motion for Summary Judgment
(ECF No. 43) is OVERRULED. The Court ACCEPTS Magistrate Sullivan’s
Report and Recommendation (ECF No. 41) and ADOPTS its recommendations and reasoning.
Consequently, the Defendant’s Motion for
Summary Judgment (ECF No. 28) is GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 18, 2019
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