Ekundayo v. PNC Bank, National Assoc. et al
Filing
24
ORDER GRANTING 22 Motion for Summary Judgment. Signed by Judge Sam Sparks. (kkc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
2014
OCT -9
AM 10:26
flURT
DTCCF'XS
)F'LT
TANIMOLA AJAY EKUNDAYO,
Plaintiff,
Case No. A-14-CA-142-SS
-vs-
PNC BANK, NATIONAL ASSOC. and DON W.
LEDBETTER, L.C.,
Defendants.
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above.styled cause, and
specifically Defendant PNC Bank, N.A. (PNC)'s Motion for Summary Judgment [#22], to which
Plaintiff Tanimola Ajay Ekundayo has failed to respond. Having reviewed the documents, the
governing law, and the file as a whole, the Court now enters the following opinion and orders
GRANTING the summary judgment motion.
Background
This is the second of two lawsuits filed by Ekundayo challenging PNC's foreclosure on the
property located at 2402 Brooke Cove, Brenham, Texas 77833. Ekundayo purchased the property
in 2006, executing a Note and Deed of Trust in favor of National City Mortgage, predecessor-ininterest ofPNC. In late 2011, Ekundayo defaulted on the mortgage, and PNC scheduled the property
for foreclosure to take place on May 7, 2013
Ekundayo's complaint asserts claims for "breach of contract, negligence, Cloud of title [sic],
Intentional infliction of Emotional distress [sic], conspiracy," and, so far as the Court can discern,
vi
violation of the Real Estate Settlement Procedures Act (RESPA).1 Most ofthe claims appear to stem
from PNC's allegedly "dilatory tactics
servicing issues.
. .
.
. .
in [Ekundayo's] inquiries concerning his loan and
as it related to an usually [sic] high escalation in his escrow account." Compl.
[#1-1] at ¶ 5.7. Specifically, Ekundayo complains PNC failed to respond to his inquiries about the
perceived escrow irregularity, including a RESPA written request, and "g[ave] him the run around"
when he attempted to negotiate a loan modification.
On May 3, 2013, Ekundayo filed his first lawsuit against PNC in state court, which was
removed to this Court on May 24, 2013 and thereafter dismissed for want of prosecution on August
1,
2013.
See Ekundayo
v.
PNCBank, NA., No.
1: 13-C V-433-SS
(W.D. Tex. Aug. 1, 2013).2 While
that suit was pending, PNC notified Ekundayo he had been approved for a loan modification;
Ekundayo never responded to the notice of modification, and PNC ultimately terminated it.
PNC thereafter rescheduled foreclosure on the property to take place on February 4, 2014.
Ekundayo once again filed suit in state court the day the sale was to take place. PNC again removed
the suit to this Court on May 14, 2014, invoking this Court's diversity jurisdiction.
1Ekdayo 's complaint also mentions "retaliation," "contravention of [the] notice provisions ofTexas Property
Code § 51.002," and "the TEXAS FAIR DEBT COLLECTIONS PRACTICE ACT." With respect to "retaliation," it
is not clear to the Court what cause of action Ekundayo is attempting to plead. Concerning the notice provisions of Texas
Property Code § 51.002, the claim Ekundayo received no notice of acceleration of the loan strikes the Court as
nonsensical, given that much of Ekundayo's complaint is premised on allegations PNC and Ekundayo participated in
claim
a long "back and forth" about potential modification of the loan agreement. PNC does not address the § 51.002
note in a sworn affidavit that Ekundayo was notified of his default. See
in its motion for summary judgment, but does
Holstein Aff. [#22-1], Ex. A, at ¶ 6. This sworn testimony meets PNC's burden, and Ekundayo has (obviously) failed
to respond with evidence showing a genuine issue of material fact. Finally, concerning the "TEXAS FAIR DEBT
COLLECTIONS PRACTICE ACT" allegation, as Ekundayo provides no citations in support, it is not clear to the Court
whether Ekundayo is attempting to plead a cause of action under the federal Fair Debt Collection Practices Act, 15
U.S.C. § 1692 et seq., or under the Texas Debt Collection Act, TEX. FIN. CODE § 392.001 et seq. In any event, the
vague allegation fails to state a claim.
dismissing the case, this Court sanctioned Ekundayo '5 counsel, Sonya M. Chandler-Anderson, in the amount
of $25.00 for "violation of this Court's order and the rules of this Court, and her dereliction of her duty to represent her
client." Ekundayo v. PNC Bank, NA., No. 1:13-CV-433-SS (W.D. Tex. Aug. 1,2013).
21fl
-2-
On April 11, 2014, PNC attempted to contact Ekundayo to schedule the parties' Rule 26(f)
conference; Ekundayo did not respond. See Def.'s Proposed Discovery Plan [#11], at ¶ 1. PNC
thereafter submitted its Proposed Discovery Plan [#11] and Proposed Scheduling Order [#10]
without input from Ekundayo. At some point thereafter, Ekundayo and PNC engaged in settlement
negotiations and, on June 13, 2014, filed their Joint ADR Report [#19]. Since that date, no further
activity has taken place on the docket save PNC's August 22, 2014 filings of a notice of appearance
and a notice of service of Rule 26(a) disclosures, and PNC's August 25, 2014 filing of the instant
motion for summary judgment.
Though his response to the motion for summary judgment was due on or before September
8,2014, Ekundayo has failed to respond in any way. Accordingly, the Court GRANTS the motion
as unopposed. See Local Rule CV-7(e)(2). Alternatively, the Court addresses the merits
of the
motion.
Analysis
I.
Motion for Summary JudgmentLegal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(a); Celotex Corp.
v.
Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508(5th Cir. 2007).
A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could
return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences
drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
-3-
Indus. Co.
v.
Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court
"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary
judgment. Reeves
v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party's case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
not competent summaryjudgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence
supports his claim. Adams
v.
Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).
Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to
support the nomnovant's opposition to the motion for summary judgment. Id. "Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summaly judgment." Anderson, 477 U.S. at 248. Disputed fact issues that are "irrelevant
and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If
the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.
III.
Jurisdiction
Two defendants are named in this action: PNC and Don W. Ledbetter, L.C. As previously
noted, Ledbetter is the Trustee under the parties' Deed of Trust. Deed of Trust [#22-3], Ex. A-2, at
2. Ledbetter is a citizen
of Texas,
see
Notice of Removal [#1] at ¶ 12; accordingly,
if he was
properly joined to this suit, there is no diversity of citizenship, and removal was improper.
At the outset, however, the Court notes Ledbetter has never been made a party to this action,
as nothing in the record indicates Ekundayo ever served Ledbetter with process. Under Federal Rule
of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed,
the courton motion or on its own after notice to the plaintiffmust dismiss the action without
prejudice against that defendant or order that service be made within a specified time." A plaintiff
may avoid dismissal upon a showing of good cause for failure to effect service. FED. R. Civ. P.4(m).
Since this case was removed on February 14, 2014, Ekundayo had until June 16, 2014 to serve
Ledbetter with process, see Hickman v. U G. Lively, 897 F. Supp. 955, 959 (S .D. Tex. 1995) (where
case is removed, 120-day clock runs from date of removal); he has apparently failed to do so, and
the Court suspects he lacks good cause for that failure.
But even had Ekundayo properly served Ledbetter, the Court agrees with PNC that
Ledbetter's joinder would be improper. To prove improper joinder, a removing party must show
the plaintiff is unable to establish a cause of action against the non-diverse defendant under state
law.3
Cantor v. Wachovia Mortg., FSB, 641 F. Supp. 2d 602, 606 (N.D. Tex. 2009). In conducting
an improper joinder analysis,
The removing party may also show actual fraud in pleading the jurisdictional facts, Cantor, 641 F. Supp. 2d
at 606, a theory PNC does not raise. The Court notes, however, that Ledbetter was not joined in Ekundayo's first bite
at this apple. See Ekundayo v. PAIC Bank, NA., No. l:13-CV-433-SS.
-5-
the court determines whether that party has any possibility of recovery against the
party whose joinder is questioned. If there is arguably a reasonable basis for
predicting that the state law might impose liability on the facts involved, then there
is no fraudulent joinder. This possibility, however, must be reasonable, not merely
theoretical.
Id. at 611 (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312
(5th
Cir. 2002)).
As PNC points out, Ekundayo 'S complaint names Ledbetter solely in connection with alleged
"negligen[ce] in executing. . . premature foreclosure on [Ekundayo' s] property.
.
.
." Compl. [#1-1]
at ¶ 6.1. A viable negligence claim depends upon the existence of a duty flowing from Ledbetter to
Ekundayo; trustees under a deed of trust owe the mortgagor "a duty to act with absolute impartiality
and fairness.
. .
in performing the powers vested in him by the deed of trust." Marsh v. Wells Fargo
Bank, NA., 760 F. Supp. 2d 701, 708 (N.D. Tex. 2011); see also Boyce v. CitiMortgage, Inc., 992
F. Supp. 2d 709, 7 17-18 (W.D. Tex. 2014) (stating negligence claim against trustee is grounded in
duty to act with absolute impartiality and fairness). But because breach of that duty "may be stated
under Texas law as a claim for wrongful foreclosure," a claim that a trustee has breached a duty
owed to the mortgagor "requires that the property in question be sold at a foreclosure sale." Id.
Here, there has been no foreclosure sale. Consequently, Ekundayo has no cause of action against
Ledbetter under Texas law.4 See Marsh, 760 F. Supp. 2d at 708-09.
'
The only allegation Ekundayo pleads in support of his negligence claim against Ledbetter, moreover, is that
Ledbetter "kn[ew] that the condition pre-subsequent [sic] to foreclosure has [sic] not taken place," presumably when
Ledbetter scheduled the foreclosure sale. Compl. [#1-1] at ¶ 6.1. This is nothing but an unsubstantiated allegation that
does not establish a reasonable, non-theoretical possibility that relief may be granted on Ekundayo's negligence claim
against Ledbetter. See Cantor, 641 F. Supp. 2d at 611 (concluding allegation that defendant trustee "misrepresented her
promise to perform her duties as substitute trustee[] by attempting to foreclose when that remedy is not properly
available" failed to state a claim and did not support reasonable basis for recovery).
Accordingly, the Court finds Ekundayo has failed to make Ledbetter a party to this action,
but that even had he done so, his joinder would be improper, as no reasonable basis exists for
Ekundayo to recover against Ledbetter under Texas law. Consequently, the Court concludes it has
subject matter jurisdiction over this action.
III.
Application
As previously noted, Ekundayo lists a flurry of causes of action in his complaint, including
breach of contract, cloud on title (quiet title), negligence, intentional infliction of emotional distress,
and civil conspiracy. Further, some of Ekundayo' s allegations suggest a claim under the Real Estate
Settlement Procedures Act (RESPA), 12 U.S.C.
§
2601 et seq. All of Ekundayo's claims are
meritless.
A.
Breach of Contract
The elements of a breach of contract claim are: (1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach by the defendant; and (4) damages
sustained by the plaintiff as a result of the breach. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d
135, 140 (Tex.
App.Corpus Christi 2008, no pet.). Here, Ekundayo's breach of contract claim
founders at the second element, as he has failed to perform his own contractual obligations;
Ekundayo has paid nothing toward his mortgage loan since December2011. Holstein Dep. {#22- 1],
Ex. A, at ¶ 6.
"It is a well-established rule that a party to a contract who is himself in default cannot
maintain a suit for its breach." Von Scheele
v.
Wells
Fargo Bank, NA., No. SA-12-CV-00690-
DAB, 2013 WL 5346710, at *5 (W.D. Tex. Sep.23, 2013) (quotingDobbins v. Redden, 785 S.W.2d
377, 378 (Tex. 1990)) (holding mortgagor's breach of contract claim failed as a matter of law
because he remained in default on his mortgage loan).
-7-
B.
Quiet Title
Ekundayo' s claim to quiet title similarly fails. To prevail in a suit to quiet title, a Texas
plaintiff must prove (1) his right, title, or ownership in real property; (2) that the defendant has
asserted a "cloud" on his property, meaning an outstanding encumbrance that, if it were valid, would
affect or impair the plaintiffs title; and (3) that the defendant's encumbrance is invalid. Warren v.
Bank ofAm., NA., 566 Fed. Appx. 379, 382 (5th Cir. 2014) (citing Gordon v.
W.
Hous. Trees, Ltd.,
352 S.W.3d 32,42 (Tex. App.Houston [1st Dist.] 2011, no pet.)). As previouslynoted, Ekundayo
has been in default on his mortgage payments since late 2001 and has thus failed to establish "his
own superior right to the property,
C.
. . .
render[ing] his quiet title claim defective." Id. at 383.
Negligence
Ekundayo's negligence claim fails because he does not allege PNC breached a duty which
constitutes an independent tort, rather than arises directly from its contractual obligations. The only
duty Texas courts have imposed between a creditor and a debtor is the duty to discharge its
contractual obligations properly, and a debtor may only recover for breach of that duty if the breach
constitutes a tort independent from the existence of the contract. UMLIC VP LLC v. T&M Sales &
Envt'l Sys., Inc., 176 S.W.3d 595, 613 (Tex. App.Corpus Christi 2005, pet. denied). Here,
Ekundayo' s allegations stem entirely from PNC' s alleged breaches of the Note and Deed of Trust.
See Compl. [#1-1] at ¶J 6.1-6.4 (e.g., PNC "fail[ed] to follow the specific covenants of the Note
result[ing] in a breach of contract" and did not "adher[e] to the terms of their contract to stop all debt
collection efforts including foreclosure"). Thus, his allegations sound in contract, not in tort, and
cannot support a negligence claim.
D.
Intentional Infliction of Emotional Distress and Civil Conspiracy
Ekundayo's claims for lIED and civil conspiracy may be disposed of outright, as even
affording his complaint a generous construction, Ekundayo utterly fails to plead the elements of
either cause of action. Ekundayo has not alleged he experienced severe emotional distress or that
PNC engaged in any extreme and outrageous conduct.5 Even had he done so, "[t]he actions of a
financial institution attempting to enforce its contractual right to foreclose on a deed of trust under
which the homeowner has defaulted, without more, do not meet the high bar of 'outrageous'
behavior." Auriti v. Wells Fargo Bank, NA.,No. 3:1 2-CV-334, 2013 WL 2417832, at *8 (S.D. Tex.
June 3,2013).
Concerning civil conspiracy, Ekundayo has failed to identif' any conspirators, any meeting
of the minds, or any unlawful act said unknown conspirators set out to
accomplish,6
and has
therefore fallen well short of federal pleading standards. Moreover, to the extent he argues PNC is
not entitled to foreclose on the property, "the evidence of record shows that [PNC] had physical
possession of the Note and Deed of Trust, which entitles it to collect the debt and.
. .
foreclose on
the associated security interest." See Kiggundu v. Mortg. Elec. Registration Sys., Inc., No. 4:111068, 2011 WL 2606359, at *6 (S.D. Tex. June 30, 2011) (rejecting plaintiff's civil conspiracy
claim), PNC is therefore entitled to judgment on both the lIED and conspiracy claims.
5An lIED plaintiff in Texas must show: "(1) the defendant acted intentionally or recklessly; (2) the conduct was
extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting
emotional distress was severe." GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999).
The elements of civil conspiracy in Texas are: "( I) two or more persons; (2) an object to be accomplished;
(3) a meeting of the minds of the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as
a proximate result." Wacicman v. Rubsamen, 602 F.3d 291, 408 (5th Cir. 2010) (quoting Tn v. J. T. T., 162 S.W.3d 552,
556 (Tex. 2005)).
6
E.
RESPA
Finally, to the extent Ekundayo attempts to make out a claim under RESPA, PNC is also
entitled to judgment on that claim. RESPA requires the servicer of a federally related mortgage loan
to provide a timely written response to a "qualified written request" (QWR) from a borrower. See
12 U.S.C. § 2605(e)(1)(B),
A servicer must respond to a QWR if it requests or challenges
information relating to the servicing of such a loan. Id. at § 2605(e)(1)A), (e)(2). Ifthe servicer fails
to respond, the borrower may recover any actual damages. Id. at
§
2605(f).
As far as the Court can discern, Ekundayo claims PNC violated RESPA by failing to
"complete[ly]" respond to his alleged RESPA qualified written request (QWR). See Compl. [#1-1]
at ¶ 5.12. PNC responds the purported QWR was not a QWR within the meaning of RESPA, and
the Court agrees with PNC. Ekundayo's correspondence is not a QWR, but a "rambling, repetitive,"
eleven-page letter posing "discovery-style document demands and interrogatories," Hopson v. Chase
Home Fin. LLC,
F. Supp. 2d, No. 3: 12CV5O5TSL-JMR, 2014 WL 1411811, at *7 (S.D. Miss.
Apr. 11, 2014) (quoting Watts
v.
Fed. Home Loan Mortg. Corp., No. 12-692, 2012 WL 6928124,
at *5 (D. Minn. Oct. 30,2012)), which are purportedly necessary to facilitate conducting "a complete
exam, audit, review, and accounting of [his] mortgage loan from its inception until the present date."
Plf.'s Alleged QWR [#22-6], Ex. A-5, at
1.
Even if somewhere in Ekundayo's eleven pages of
interrogatories are requests for information about the servicing of his loan, the Court finds that on
*7
the whole, the letter cannot fairly be described as a QWR. See Hopson, 2014 WL 1411811 at
(concluding 191-question correspondence principally demanding information to facilitate an "audit"
of plaintiffs' account was not a QWR, even if "one or more of [plaintiffs'] requests for information
may have touched on.
. .
servicing practices").
-10-
Conclusion
Ekundayo has failed to make Ledbetter a party to this action; failed to state a claim against
Ledbetter even had he been properly served; failed adequately to plead the majority of his claims;
and, by failing to respond to PNC's motion for summary judgment, failed to show the existence of
a genuine dispute as to any material fact to any claims properly pled. PNC is therefore entitled to
judgment.
Accordingly,
IT IS ORDERED that Defendant PNC Bank, N.A.'s Motion for Summary Judgment
[#22] is GRANTED.
SIGNED this the
day of October 2014.
U
SAM SPARKS
UNITED STATES DISTRICT JUDGE
l42rnsjordba.frm
-11-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?