Weller et al v. JP Morgan Chase Bank, National Association

Filing 153

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 86 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Chief Judge Gina M. Groh on 8/18/2017. (cmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
KIMBERLY D. WELLER;
KIMBERLY D. WELLER, as Executor
for the Estate of Richard B. Weller;
and RICHARD BRADLEY WELLER,
Plaintiffs,
v.

CIVIL ACTION NO.: 3:16-CV-110
(GROH)

JP MORGAN CHASE BANK, NATIONAL
ASSOCIATION,
Defendant.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Currently pending before the Court is the Defendant’s Motion for Summary
Judgment [ECF No. 86]. On July 21, 2017, this matter became ripe for consideration.
Based upon the reasons that follow, the motion is GRANTED IN PART and DENIED IN
PART.
I. Background
On September 6, 2005, Richard Weller obtained a loan in the amount of $135,000
from Accredited Home Lenders, Inc. (“AHL”). ECF Nos. 86-2; 92-2. The loan note
designated a principal balance of $135,000, an interest rate of 6.999% and a monthly
payment of $898.07 plus interest. ECF Nos. 86-2 at 1; 92-2 at 1. As security for the loan,
Richard and his wife Kimberly executed a deed of trust with AHL, granting it an interest
in their home, located at 4460 Shepherdstown Road, Martinsburg, West Virginia 25401.

ECF Nos. 86-3; 92-5. Both Kimberly and Richard signed the deed of trust, but only
Richard signed the loan note. At some point, the loan was transferred to the Defendant,
JP Morgan Chase Bank (“Chase”).
In 2009, Kimberly’s husband passed away and she began having trouble making
loan payments. See ECF Nos. 53 at 3; 92-1 at 5, 34; 92-3 at 9, 11-12. By the spring of
2010, the loan was in default and the home was scheduled for foreclosure. See ECF
Nos. 53 at 4; 86-16 at 2; 92-1 at 27, 33-34, 99. In 2010, Kimberly, with the help of her
son, Brad, began a loan modification process. See ECF Nos. 53 at 3; 92-1 at 30, 38, 59;
92-3 at 6. Brad and Kimberly found the process confusing. ECF No. 92-1 at 23, 35, 67.
In 2011, Chase initially denied assistance. ECF No. 92-1 at 59. In June of 2013, Chase
sent Kimberly a letter indicating that she would be approved for a loan assumption and
modification if she accepted specific terms and conditions.1 ECF Nos. 86-19 at 1; 92-10
at 1. It is unclear whether these terms and conditions were accepted, whether the proper
information was received by Chase and whether the parties actually entered into the 2013
assumption and modification.
At various points in time between 2010 and 2016, after the loan was in default,
Brad and Kimberly attempted to make payments. See ECF Nos. 92-1 at 13-17, 26, 34;
92-3 at 18-19. Specifically, payments were made and received by Chase in April of 2010
and September of 2013. See ECF Nos. 86-26; 86-27; 92-1 at 13, 84; 92-3 at 20-21.

1

Specifically, the June 24, 2013 letter stated:
We have received your application to be considered for a loan assumption and
modification. Chase has reviewed the financial information you have provided and your
application to assume the mortgage and receive a modification is approved if you accept
the conditions outlined below.

ECF Nos. 86-19 at 1; 92-10 at 1 (emphasis added).

2

Kimberly and Brad claim that they would have made other payments, but Chase refused
them. See ECF Nos. 53 at 9; 92-1 at 30-31, 80-84; 92-3 at 19-21, 27. In February of
2016, Chase sent Kimberly another letter regarding loan assumption and modification.
ECF Nos. 86-9 at 1; 86-20 at 1. Similar to the June 2013 letter, it contained language
indicating that she would be approved for a loan assumption and modification if certain
conditions were met. The 2016 assumption and modification offer designated a principal
balance of $202,084.33, an interest rate of 4.00% and monthly payments in the amount
of $844.59 plus interest. ECF No. 92-23 at 1.
On June 13, 2016, the Plaintiffs filed this case in the Circuit Court of Berkeley
County, West Virginia. ECF No. 1-1 at 4. On July 21, 2016, the case was removed to
this Court based upon diversity jurisdiction. ECF No. 1. In June of the following year,
Chase filed the instant motion for summary judgment, contending that this case presents
no material issues of fact. In addition, Chase argues that the Plaintiffs’ claims must be
dismissed based upon a myriad of legal grounds.
II. Standard of Review
Summary judgment is appropriate when “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 also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words,
the court must make the preliminary determination of whether there is a need for trial. Id.
at 249-51. In conducting its review, the court must view the evidence and inferences in
the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

3

Even still, it cannot create a genuine issue of material fact where none exists. Albertson
v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984).
It is the burden of the opposing party to show that there is indeed a genuine issue
for trial, which must be demonstrated by furnishing affidavits, depositions or other
evidence. See Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 247-49. A “scintilla of
evidence” is insufficient. Anderson, 477 U.S. at 252. In reviewing motions for summary
judgment, the court may consider all of the materials in the record, but need consider only
those cited. Fed. R. Civ. P. 56(c)(3); Beverly v. Sugar Mountain Resort, Inc., 1:14cv321,
2016 WL 815299, at *1 (W.D.N.C. Feb. 29, 2016); Bevins v. Apogee Coal Co., Civil Action
No. 2:13-cv-24264, 2014 WL 7236415, at *4 (Dec. 17, 2014).
III. Discussion
A.

Counts I, II, III and VI (Violations of WVCCPA)

In its motion for summary judgment, Chase argues that Counts I, II, III and VI must
be dismissed because the Plaintiffs are not consumers and therefore do not have
standing to bring claims under the West Virginia Consumer Credit and Protection Act, W.
Va. Code §§ 46A-1-101 through 46A-8-102 (“WVCCPA”). In response, Kimberly avers
that she is “obligated” or “allegedly obligated” on the debt and therefore a consumer under
the terms of both §§ 46A-2-122 and 46A-1-102(12).2 Notably, the Plaintiffs concede that
Brad does not seek relief under the WVCCPA and, furthermore, fail to indicate the
Estate’s position regarding those claims. In fact, as pointed out by Chase in its reply, the
Plaintiffs do not respond to any arguments raised by Chase in regard to the Estate. Thus,

Counts I, II and VI allege violations of §§ 46A-2-127, -128 and -128(e). The definition of “consumer”
applicable to these Counts is found in § 46A-2-122. Count III alleges refusal to apply payments in violation
of § 46A-2-115. The definition of “consumer” applicable to this Count is found in § 46A-1-102.

2

4

because the Plaintiffs fail to address any of Chase’s arguments regarding the Estate and
acknowledge that Brad does not seek relief under the WVCCPA, any and all WVCCPA
claims alleged by them are hereby DISMISSED. See Uribe v. Aaron’s, Inc., No. GJH-140022, 2015 WL 72292, at *2 (D. Md. Jan. 5, 2015) (finding plaintiffs abandoned their
claims when they did not respond to an order to show cause or the defendant’s motion
for summary judgment); Bronitsky v. Bladen Healthcare, LLC, No. 7:12-CV-147-BO, 2013
WL 5327447, at *1 (E.D.N.C. Sept. 20, 2013) (“Plaintiff’s failure to oppose defendants’
arguments made in support of their motion for summary judgment is fatal to plaintiff’s
claim.”); Crouch v. City of Hyattsville, Civil Action No. DKC 09-2544, 2012 WL 6019296,
at *8 (D. Md. Nov. 30, 2012) (granting summary judgment where plaintiff abandoned his
argument by failing to respond to defendant’s motion); Jones v. Danek Med., Inc., No.
Civ. A. 4:96-3323-12, 1999 WL 1133272, at *3 (D.S.C. Oct. 12, 1999) (“The failure of a
party to address an issue raised in summary judgment may be considered a waiver or
abandonment of the relevant cause of action.”).
A plaintiff must be a “consumer” to bring a cause of action under the WVCCPA.
Ballard v. Bank of Am., N.A., Civil Action No. 2:12-2496, 2013 WL 5963068, at *9 (S.D.
W. Va. Nov. 7, 2013). Section 46A-2-122(a), relevant to Counts I, II and VI, defines a
consumer as “any natural person obligated or allegedly obligated to pay any debt.” A
person is “‘allegedly obligated’ to pay a debt when the creditor has ‘represented to [her]
that [she is] personally liable on the debt.’” McNeely v. Wells Fargo Bank, N.A., 115 F.
Supp. 3d 779, 785 (S.D. W. Va. 2015) (quoting Fabian v. Home Loan Ctr., Inc., No. 5:14cv-42, 2014 WL 1648289, at *6 (N.D. W. Va. Apr. 24, 2014)); see also Croye v.
GreenPoint Mortg. Funding, Inc., 740 F. Supp. 2d 788, 797-98 (S.D. W. Va. 2010). For

5

example, in Croye, the court found a plaintiff allegedly obligated to pay on a debt under
§ 46A-2-122(a) where the creditor made calls to him demanding payment. 740 F. Supp.
2d at 798. Here, although Kimberly is not a signatory to the note, there is evidence, in
the form of deposition testimony and a letter from Chase, demonstrating that Chase
demanded payment from her on the loan. See ECF Nos. 92-1 at 98; 92-3 at 32-34; 9227. While evidence of Chase’s attempt to collect from Kimberly is not plentiful, it is enough
to qualify her as a consumer “allegedly obligated” to pay on the loan. See Croye, 740 F.
Supp. 2d at 798. Therefore, Chase’s motion for summary judgment as to Counts I, II and
VI is DENIED insofar as Kimberly has standing to bring claims under these sections of
the WVCCPA.
In regard to Count III, § 46A-1-102(12) defines a consumer as “a natural person
who incurs debt pursuant to a consumer credit sale or a consumer loan, or debt or other
obligations pursuant to a consumer lease.” Chase maintains that Kimberly is not a
consumer under this subsection because she did not sign the 2005 loan note and thus
did not incur a debt pursuant to the original loan. In addition, Chase avers that Kimberly
is not a consumer for the purpose of the 2013 loan assumption and modification because
that contract was not properly formed. Kimberly’s failure to sign the 2005 loan note is
fatal to this claim insofar as it relates to payments made on the original loan. See Bishop
v. Quicken Loans, Inc., Civil Action No. 2:09-1076, 2011 WL 1321360, at *11 (S.D. W.
Va. Apr. 4, 2011) (distinguishing the obligations under a deed of trust versus a promissory
note). Specifically, because Kimberly did not sign the note, she did not incur a debt
pursuant to a consumer loan. See id. (“[A] promissory note is not enforceable against [a]
party who signed [the] deed of trust but did not sign [the] promissory note inasmuch as

6

promissory notes and deeds of trust are separate legal documents with unique purposes.”
(citing Arnold v. Palmer, 686 S.E.2d 725, 733 (W. Va. 2009)). Thus, Kimberly does not
have standing to raise her § 46A-2-115 claim in relation to payments made on the original
loan. In other words, she does not have standing to raise this claim as to payments made
prior to the alleged 2013 assumption and modification. Therefore, Chase’s motion for
summary judgment as to Count III is GRANTED insofar as it relates to payments made
on the original loan.
However, there is a genuine dispute of material fact regarding whether the 2013
loan assumption and modification was actually entered into between the parties. 3
Kimberly submits evidence indicating that Chase approved the assumption and
modification agreement. See ECF Nos. 92-1 at 106; 92-3 at 18; 92-7; 92-10. In contrast,
Chase offers evidence demonstrating that the 2013 agreement was not executed. See
ECF No. 71-1 at 2.4 Chase also notes the lack of evidence provided by Kimberly

3

In its January 30, 2017 Order, the Court granted the Plaintiffs leave to amend their original complaint.
ECF No. 36 at 9. On May 10, 2017, the Plaintiffs moved the Court to grant them leave to file a second
amended complaint, raising an additional breach of contract claim that they alleged was “recently revealed
through discovery.” ECF No. 66 at 1. The supplemental claim alleged Chase’s breach of a 2013 loan
assumption and modification agreement. ECF Nos. 66-1 at 18-19; 66 at 3-5. However, upon review, the
Court denied the motion, finding the request to be grounded in misrepresentation of fact, untimely and
prejudicial. ECF No. 79 at 2-4. Thus, the Plaintiffs’ breach of contract claim based upon the 2013
assumption and modification agreement is not before this Court. As such, even if the modification
agreement is found to be enforceable and Chase is found to have breached that agreement, the Plaintiffs
cannot recover damages for that breach. However, it is necessary for the Court, in determining whether
the Plaintiffs are consumers under the WVCCPA, to consider the events surrounding the assumption and
modification agreement and, in particular, whether the parties did in fact enter into such an agreement.
During the deposition of Chase’s corporate representative, Rosemary Martin, the following exchange took
place:
4

Q. And this modification and assumption, Ms. Weller did sign it and mail it back by the
date—I understand there was [sic] some extensions, but the by date [sic] that was final
required by Chase, is that correct?
A. No, that’s not correct. The modification was but this is part of a packet.
Q. So let me just back up. This particular contract, not the entire packet, but I’m asking

7

signifying an actual offer and acceptance, which calls into question the modification’s
existence. Thus, because there is a genuine dispute as to whether the 2013 loan
assumption and modification agreement was entered into between the parties, a question
of fact in respect to Count III remains for the jury. Specifically, if the jury finds that the
2013 modification is a valid and enforceable agreement, then Kimberly incurred a debt
pursuant to the modification and would thus be considered a consumer under § 46A-1102(12). As a result, she would have standing to bring her claim under § 46A-2-115

about this particular document that has the terms in it starting on page 5664. I’m sorry, yes,
5664, titled, “Assumption Modification Agreement,” that was returned by August 8th,
correct?
A. I’m not sure. It was returned in August. I’m not sure what the exact date was because
there was a date of 7/19 of ’13 it was signed on but it was received significantly after that.
Q. Okay. But it was received by the deadline that was given? You said that this document
was received by the deadline, is that correct?
A. That’s one portion of it, yes, this document was, yes.
...
Q. Okay. You stated that not all the documents were turned [in] on time, correct?
A. That’s correct.
Q. And am I correct that the outstanding documents as of August 8th were—Well, why
don’t you tell me what they were.
A. As of August 8th, we were still missing the identification letter, and again, I don’t know
the specific document. There was an identification letter and then there was a debt class
that they were supposed to attend and a HUD with the signatures that was corrected. They
were given an extension to the 23rd and multiple phone calls Mr. Weller had made and
had promised that he would be faxing over documentation. We ultimately received the last
of the documentation on the 28th of August and then the debt class and the HUD, I believe,
on the 30th, which was after the second extension of the 23rd that was given.
Q. Okay. So you did receive all of the documentation by the end of August?
A. August 30th.
Q. Okay. But you declined the mod[ification] at that point?
A. That is correct.
ECF Nos. 66-2 at 2-5; 71-1 at 2.

8

(Count III) and the jury would be free to determine whether or not Chase refused to
properly apply loan payments pursuant to the modification. Accordingly, Chase’s motion
for summary judgment as to Count III is DENIED insofar as it relates to payments made
under the alleged 2013 loan assumption and modification agreement.5
B.

Count IV (Fraud)

Chase argues that the Plaintiffs’ fraud claim is barred by the applicable statute of
limitations and, furthermore, fails to allege the necessary elements of material
misrepresentation and reasonable reliance. In response, the Plaintiffs state that genuine
issues of material fact preclude summary judgment as to this claim. Because the Court
finds that the evidence presented by the Plaintiffs does not establish a claim for fraud
capable of withstanding summary judgment, the statute of limitations issue will not be
addressed.
In West Virginia, to prove a claim of fraud, the plaintiff must demonstrate
(1) that the act claimed to be fraudulent was the act of the defendant or
induced by him; (2) that it was material and false; that plaintiff relied upon it
and was justified under the circumstances in relying upon it; and (3) that he
was damaged because he relied upon it.
Syl. Pt. 1, Lengyel v. Lint, 280 S.E.2d 66 (W. Va. 1981). The existence of fraud is
generally a question of fact left to the jury, “but that does not automatically immunize the
case from summary judgment.” Croye, 740 F. Supp. 2d at 795 (internal quotation omitted)
(quoting Highmark W. Va., Inc. v. Jamie, 655 S.E.2d 509, 515 (W. Va. 2007)).

5

Kimberly points to three particular payments: April 2010, August 2013 and September 2013. The April
2010 payment is precluded because it was made on the original loan to which Kimberly was not a party.
As such, she does not have standing to assert that it was improperly applied in violation of § 46A-2-115.
However, if the jury determines that there was in fact an assumption and modification in 2013, it could also
find that the August 2013 and September 2013 payments were improperly applied under that modification.
Accordingly, Count III remains as it relates to payments made under the modification.

9

Here, Kimberly and Brad6 allege that Chase misrepresented that it was timely and
appropriately reviewing their application for assistance and that it would ultimately be
approved. However, the evidence cited by the Plaintiffs does not demonstrate these
material misrepresentations were made. Indeed, none of the depositions or documents
before the Court reveal that Chase ever guaranteed approval of an assumption and
modification, that such approval would be completed within a certain period, or that the
modification’s terms, if approved, would be subjectively reasonable. Brad, during his April
18, 2017 deposition, admitted as much:
Q. Did they ever tell you or your mom that you were guaranteed an
assumption?
A. No
...
Q. And to be clear, they never promised you that they would help you but
that they needed these documents to evaluate if they could help you, right?
...
[A.] The program is called Help for Homeowners; they did say they could
help us. They did say that this is how they help people stay in their homes.
They did state their goal was to help especially the Chase Military Finance.
Their goal is to help military members stay in their home. The promotional
information when they put you on hold is we’ve been helping military
members since whenever they [en]list. So while they may not promise to do
it, they make enough promotion off of doing it that it makes it sound like a
guarantee.
See ECF No. 92-1 at 78, 87-88. Both Kimberly and Brad refer to Chase’s promise to help
them with their loan payments, but how exactly Chase was required to help, or what end
result was allegedly guaranteed, is not elucidated by the evidence. See ECF Nos. 92-1

6

As previously discussed in regard to Counts I, II, III and VI, because the Plaintiffs fail to address any of
Chase’s summary judgment arguments regarding the Estate, those claims have been abandoned and are
therefore dismissed. See, e.g., Bronitsky, 2013 WL 5327447, at *1; Crouch, 2012 WL 6019296, at *8.

10

at 81, 87-90, 102-04, 108-09; 92-3 at 45.

Furthermore, their reliance on Chase’s

representation that it would consider their application for loan modification is not justifiable
because such a representation is too vague and indefinite. See Addicks Servs., Inc v.
GGP-Bridgeland, LP, 596 F.3d 286, at 301-02 (5th Cir. 2010) (interpreting promissory
estoppel, which requires element of reasonable and justified reliance, and finding that
plaintiff’s reliance on vague and indefinite promises unreasonable); Dierker v. Eagle Nat’l
Bank, 888 F. Supp. 2d 645, 654 (D. Md. 2012) (“A statement is not actionable in fraud if
it is vague and indefinite, because such statements are deemed to put the party to whom
they are made on inquiry notice to investigate further.” (internal quotation and citation
omitted)); cf. Adams v. JPMorgan Chase Bank, Civil Action No. 1:10-CV-04226-RWS,
2011 WL 2532925, at *6 (N.D. Ga. June 24, 2011) (finding no false representation where
lender made vague promise akin to an obligation “to make a good faith effort to at least
consider [plaintiff’s] application for assistance” (emphasis in original)).
The Plaintiffs point to this Court’s January 30, 2017 Order in which it denied
Chase’s motion to dismiss their fraud claim. ECF No. 36 at 5-6. However, at this stage
in the proceedings, the Plaintiffs bear a greater burden. They cannot survive summary
judgment by resting on mere allegations; there must be more.7 See Fed. R. Civ. P. 56(c);
Anderson, 477 U.S. at 247-48, 252, 256. Accordingly, because the Plaintiffs fail to
present evidence demonstrating a genuine dispute of material fact in relation to their fraud

The Plaintiffs claim that “[t]he record is replete with misrepresentations from [Chase] that it would provide
timely and appropriate assistance,” but offer no citations to the record in support. ECF No. 92 at 16. This
is problematic, as the Court is required to consider only cited materials in regard to summary judgment.
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other
materials in the record.”); see also Fed. R. Civ. P. 56(c)(1)(A) advisory committee’s note to 2010
amendment (stating that the party asserting that a fact cannot be or is genuinely disputed is required to
“cite the particular parts of the materials that support its fact positions”). However, here, even a review of
the entire record does not give credence to this assertion.
7

11

claim, Chase’s motion for summary judgment as to Count IV is GRANTED.
C.

Count V (Breach of Contract)

To assert a breach of contract claim, there must be a valid, enforceable contract
between the parties. Exec. Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 681 F.
Supp. 2d 694, 714 (S.D. W. Va. 2009); see also E.E.O.C. v. Waffle House, Inc., 534 U.S.
279, 294 (2002) (“It goes without saying that a contract cannot bind a nonparty.”). Here,
because Brad did not sign the note or deed of trust, he does not have standing to raise a
breach of contract claim against Chase. The Estate also has no cognizable breach of
contract claim because it has abandoned its arguments.8 Furthermore, Kimberly’s breach
of contract claim pertains only to the deed of trust because she did not sign the note and
thus is not a party to that contract. Therefore, the only breach of contract claim before
the Court is that brought by Kimberly in relation to the deed of trust.
Chase presents four arguments in opposition to Kimberly’s breach of contract
claim. First, it argues that because Kimberly committed the first material breach by falling
behind on mortgage payments, she is precluded from bringing her breach of contract
claim. “West Virginia law prevents a party who first breaches a mutual and dependent
contract from recovering damages attributable to a subsequent breach by the other party.”
Milner Hotels, Inc. v. Norfolk and W. Ry. Co., 19 F.3d 1429, at *2 (4th Cir. 1994) (per
curiam) (unpublished table decision) (citing Teller v. McCoy, 253 S.E.2d 114, 126 (W. Va.
1978)). For this rule to apply, the breach must be material. See id. Kimberly contends
that Chase’s reference to the first breach rule is misplaced because her delinquency is
not material. Deeds of trust, by their very nature, “contemplate the possibility of non-

All of the Estate’s claims have been abandoned because it did not address any of Chase’s arguments in
its motion for summary judgment.
8

12

payment.” Mathews v. PHH Mortg. Corp., 724 S.E.2d 196, 200 (Va. 2012). “Because a
deed of trust permits the trustee to sell the parcel to protect the interest of the lenderbeneficiary upon the borrower’s breach by non-payment, the fact of non-payment of the
note does not defeat an essential purpose of the contract.” Id. (internal quotation, citation
and alteration omitted).

Thus, Kimberly did not commit a material breach and,

accordingly, the first breach rule does not apply.
Next, Chase contends that Kimberly did not comply with a condition precedent in
the deed of trust, which requires written notice prior to filing suit. The relevant section in
the agreement provides:
Neither Borrower nor Lender may commence, join, or be joined to any
judicial action . . . that arises from the other party’s actions pursuant to this
Security Instrument or that alleges that the other party has breached any
provision of, or any duty owed by reason of, this Security Instrument, until
such Borrower or Lender has notified the other party (with such notice given
in compliance with the requirements of Section 15) of such alleged breach
and afforded the other party hereto a reasonable period after the giving of
such notice to take corrective action.
ECF Nos. 86-3 at 12; 92-5 at 12. Section 15 of the deed of trust mandates, among other
things, that all notices be provided in writing. ECF Nos. 86-3 at 11; 92-5 at 11. The
parties do not dispute that pre-suit notice was required, and rightfully so. See, e.g.,
Holtzapfel v. Wells Fargo Bank, NA, Civil Action No. 2:12-00937, 2013 WL 1337283, at
*3 (S.D. W. Va. Mar. 29, 2013) (analyzing deed of trust provision requiring pre-suit notice);
Johnson v. Countrywide Home Loans, Inc., No. 1:10cv1018, 2010 WL 5138392 at *2
(E.D. Va. Dec. 10, 2010) (finding pre-suit notice required where all of plaintiff’s allegations
arose from actions taken pursuant to the deed of trust and deed of trust required pre-suit
notice). Rather, the only contentions are whether the written notice was adequate and
whether Chase was provided with sufficient time to cure. Prior to filing this lawsuit,

13

Kimberly sent written notice to Chase indicating her belief that it “may have breached the
contract in servicing [her] mortgage loan.” ECF No. 92-25 at 1. She went on to state that
she was “specifically concerned that the past due amount” that Chase was trying to collect
was “incorrect and/or caused by [its] improper servicing of the loan.” ECF No. 92-25 at
1. The notice was mailed on April 19, 2016, and the case was filed in state court
approximately two months later on June 13, 2016. ECF Nos. 1-1 at 4; 92-25 at 1. Chase’s
argument on this issue is conclusory and is not supported by any case law. Accordingly,
because the Court finds that Kimberly adequately complied with the deed of trust’s notice
requirement, Chase’s argument on this issue is overruled.
Chase’s third contention is that Kimberly’s breach of contract claim cannot
withstand summary judgment because it is not supported by sufficient evidence. In
particular, Chase claims that her allegations of improper application of payments,
imposition of unauthorized fees and failure to comply with applicable law are
unsubstantiated. In response, Kimberly avers that Chase (1) refused her payment in early
2010; (2) did not apply her April 2010 payment and instead held it in suspense until
December of the same year; (3) returned a check sent in August of 2013 and (4) failed to
note the entirety of her September 2013 payment, which was not applied to her account
until July of 2014 and incorrectly designated to principal. ECF No. 92 at 19. The deed of
trust details if, when, how and under what circumstances payments must be applied to
the mortgage loan. ECF Nos. 86-3 at 4; 92-5 at 4. Notably, if the loan is not current,
Lender may return any payment or partial payment if the payment or partial
payments are insufficient to bring the Loan current. Lender may accept any
payment or partial payment insufficient to bring the Loan current, without
waiver of any rights hereunder or prejudice to its rights to refuse such
payment or partial payments in the future, but Lender is not obligated to
apply such payments at the time such payments are accepted. If each

14

Periodic Payment is applied as of its scheduled due date, then Lender need
not pay interest on unapplied funds. Lender may hold such unapplied funds
until Borrower makes payment to bring the Loan current. If Borrower does
not do so within a reasonable period of time, Lender shall either apply such
funds or return them to Borrower. If not applied earlier, such funds will be
applied to the outstanding principal balance under the Note immediately
prior to foreclosure.
ECF Nos. 86-3 at 4; 92-5 at 4.
After her husband’s death, Kimberly began to struggle with loan payments. See
ECF Nos. 53 at 3; 92-1 at 25; 92-3 at 19. By the spring of 2010, the loan was in default
and the home was scheduled for foreclosure. See ECF Nos. 86-16 at 2; 92-1 at 27, 3334, 99. As indicated by the language within the deed of trust, because the loan was not
current in 2010, Chase was under no obligation to accept payments. See, e.g., Murillo v.
Wash. Mut. Bank, F.A., 483 F. App’x 229, 231-32 (6th Cir. 2012) (“[B]ecause none of [the
plaintiff’s] payments were sufficient to bring her loan current, [the lender] retained the
discretion to apply the payments, hold the payments, or return them just as it did.”). In
addition, Chase was permitted to return any full or partial payment if insufficient to bring
the loan current. See, e.g., Lopez v. GMAC Mortg., LLC, Civil Action No 5:12-CV-00251JRN, 2014 WL 12540470, at *3 (W.D. Tex. Feb. 18, 2014) (“Given that Plaintiff freely
admits that he ‘fell behind on his house payment’ before his payments were refused,
Defendant was clearly within its rights when it rejected Plaintiff’s payment.”). Moreover,
Chase was under no obligation to apply payments upon receipt. See, e.g., Keith v. Sun
Trust Mortg., Inc., Civil Action No. 1:12-CV-0714-CC, 2014 WL 12570233, at *4 (N.D. Ga.
Sept. 24, 2014) (interpreting an identical provision in a deed of trust and finding that it
allowed the lender “to hold partial payments in suspense”). A review of the evidence cited
by the Plaintiffs reveals that Kimberly’s breach of contract claim, as it relates to the

15

application of payments, imposition of unauthorized fees, and failure to comply with
applicable law, is unsupported.
Likewise, the remaining breach of contract allegations contained within the
amended complaint are not corroborated by the cited materials. In particular, Kimberly
points to no evidence of unauthorized fees or noncompliance with applicable law. Rather,
only baseless allegations are presented. For example, she claims that Chase threatened
to asses default fees in violation of the deed of trust, but there is no dispute that the loan
was in fact in default. Furthermore, there is nothing in the deed of trust that prohibits
assessment of default fees. In fact, the deed of trust specifically permits Chase to charge
“fees for services performed in connection with Borrower’s default.” ECF Nos. 86-3 at 10;
92-5 at 10. Moreover, the document makes clear that “the absence of express authority
in this Security Instrument to charge a specific fee to Borrower shall not be construed as
a prohibition on the charging of such fee.” ECF Nos. 86-3 at 10; 92-5 at 10. In sum,
because the deed of trust authorizes the imposition of reasonable fees in relation to
default, any such charges by Chase are lawful.9 See, e.g., Farmer v. Bank of Am., Case
No. 4:13-cv-472, 2014 WL 12575849, at *10 (E.D. Tex. July 15, 2014) (“Plaintiff has
offered no evidence that Defendants charged Plaintiff any improper or excessive fees
under the Deed of Trust given his serious default on the loan.”); James v. Litton Loan
Serv., LP, No. C 10-05407 CRB, 2011 WL 724969, at *3 (N.D. Cal. Feb. 22, 2011)
(“Though the Court might find it unseemly to require cash-strapped borrowers to pay the
lender’s attorneys’ fees in connection with default, the papers here say that Defendants
can do so.”). Accordingly, Kimberly’s breach of contract claim regarding the deed of trust

9

The Plaintiffs do not indicate how any fees were unreasonable but only that they should not have been
applied to the account in the first place.

16

cannot survive summary judgment.
Furthermore, although there is a genuine dispute of material fact as to the 2013
loan assumption and modification agreement, it does not preclude summary judgment on
the breach of contract claim. In its June 8, 2017 Order, this Court denied the Plaintiffs’
motion for leave to file a second amended complaint, in which they attempted to allege
an additional breach of contract claim as to the 2013 assumption and modification. ECF
No. 79.

Their justification for amendment was that the information regarding the

assumption and modification had “consistently been within [Chase’s] knowledge,
possession, and control” and was uncovered during a deposition on April 27, 2017. ECF
No. 66 at 4. The Court disagreed with the Plaintiffs’ reasoning, finding that the information
regarding the assumption and modification necessarily would have been known to
Kimberly in 2013 as a party to the alleged agreement. See ECF No. 79 at 4. Therefore,
the Court denied the motion to amend and thus the breach of contract claim relating to
the 2013 loan assumption and modification is not presently before it.
Finally, Chase avers that there is no independent cause of action for a breach of
good faith and fair dealing. Here, because the Court has found that the breach of contract
claim fails in its entirety, any standalone claim for a breach of the duty of good faith and
fair dealing must also fail. See Stand Energy Corp. v. Columbia Gas Transmission Corp.,
373 F. Supp. 2d 631, 644 (S.D. W. Va. 2005) (finding that claim for violation of good faith
and fair dealing does not exist separate from breach of contract). Accordingly, because
all of the bases in support of Kimberly’s breach of contract claim fail, Chase’s motion for
summary judgment as to Count V is GRANTED.

17

IV. Conclusion
Based upon the foregoing, the Court ORDERS Defendant Chase’s Motion for
Summary Judgment GRANTED IN PART and DENIED IN PART. Specifically, Chase’s
motion is
1. GRANTED as to all counts alleged by the Estate;
2. GRANTED as to all counts alleged by Richard Bradley Weller;
3. DENIED as to Counts I, II and VI as alleged by Kimberly Weller;
4. GRANTED as to Count III as alleged by Kimberly Weller insofar as the claim
relates to the original loan;
5. DENIED as to Count III as alleged by Kimberly Weller insofar as the claim
relates to the 2013 loan assumption and modification agreement;
6. GRANTED as to Count IV; and
7. GRANTED as to Count V.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
herein.
DATED: August 18, 2017

18