MCDEVITT v. WELLS FARGO BANK, N.A., No. 1:2012cv01297 - Document 33 (D.D.C. 2013)
Court Description: MEMORANDUM OPINION to the Order granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment. Signed by Judge Gladys Kessler on 5/29/13. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROBERT M. MCDEVITT, Plaintiff, v. Civil Action No. 12-1297 (GK) WELLS FARGO BANK, N.A., Defendant. MEMORANDUM OPINION Plaintiff brings this Robert M. diversity McDevitt action ("Wells Fargo" or "Defendant") ("McDevitt" against Wells or "Plaintiff") Fargo Bank, for wrongful foreclosure, N.A. breach of contract, and negligent infliction of emotional distress. This matter Defendant's is Motion before for the Court Summary for Judgment reconsideration [Dkt. No. 19] of and Plaintiff's Motion for Summary Judgment on Liability and Partial Summary Judgment on Damages of the [Dkt. parties' No. Replies, 31] and stated below, Amended [Dkt. Joint No. 20]. Statement Upon consideration of Stipulated Facts and reconsideration of the Motions, Oppositions, the the entire record herein, and for reasons the Court grants Wells Fargo's Motion and denies Plaintiff's Motion. I . BACKGROUND A. Factual Background1 1. The Note and Deed of Trust On July 18, 2003, McDevitt executed a 30-year Adjustable Rate Mortgage Note ("Note") and Deed of Trust with World Savings Bank for a $520,000 loan to purchase a private residence at 211 C St. NE in Washington D.C. (the "Property") . The loan had an indexed interest rate that changed monthly and a monthly payment that changed annually on September 1 of each year. See Affidavit of Robert M. McDevitt, Ex. A (Note) ~ 2 [Dkt. No. 1-2]. At Paragraph 3 of the Note, McDevitt agreed that: I will pay Principal and interest by making payments every month. I will make my monthly payments on the 1st day of each month beginning on September 01, 2003. I will make these payments every month until I have paid (i) all the Principal and interest, and (ii) any other charges described below that I may owe under this Note, and (iii) any charges that may be due under the Security Instrument [.] The Note provided that McDevitt would be obligated to pay a late charge if he did not pay his monthly payment within 15 calendar days of the date it was due, and also that any failure to pay 1 Unless otherwise noted, the facts set forth herein are undi"sputed and drawn from the parties' Amended Joint Statement of Stipulated Facts [Dkt. No. 31]. -2- the monthly payment on the due date constituted Note~ permitting the lender to accelerate the loan. McDevitt mortgage, had the right to make advance subject to certain restrictions. a default, 7(A)-(C). payments on his Paragraph 5 of the Note stated: I HAVE THE RIGHT TO MAKE PAYMENTS OF PRINCIPAL AT ANY TIME BEFORE THEY ARE DUE. A PAYMENT OF PRINCIPAL BEFORE IT IS DUE IS CALLED A "PREPAYMENT." WHEN I MAKE A PREPAYMENT, I WILL TELL THE LENDER IN WRITING THAT I AM DOING SO. THE LENDER MAY REQUIRE THAT ANY PARTIAL PREPAYMENT BE MADE ON THE SAME DATE THAT A PAYMENT IS DUE. IF I MAKE A PARTIAL PREPAYMENT, THERE WILL BE NO CHANGES IN THE DUE DATES OR AMOUNTS OF MY PAYMENTS UNLESS THE LENDER AGREES IN WRITING TO THOSE CHANGES [ . ] ~ 5 Note (emphasis in original). 2. World The April 14, 2008 Payment at Wachovia Bank Savings Bank (the holder of McDevitt's Note) was subsequently acquired by Wachovia Corporation and, in late 2007, changed its Mortgage") . name to Wachovia Mortgage, FSB ( "Wachovia Wachovia Corporation also owned Wachovia Bank, N.A ( "Wachovia Bank" ) . separate legal Wachovia entities, Bank and Wachovia Mortgage but had a servicing agreement, were which enabled a Wachovia Mortgage customer to submit mortgage payments at Wachovia Bank. On April 14, 2008, McDevitt went to a Wachovia Bank branch on Pennsylvania Avenue in Washington D.C. -3- to make two mortgage payments: one in the amount of $4,400i the other in the amount of $25,000. wrote check, On the subject line of his $4,400 check, McDevitt "4/01/08 payment." McDevitt principal wrote On the "Deferred payments." McDevitt subject line of his interest pay off + $25, 000 one year orally instructed employees at Wachovia Bank that he wanted the $25,000 check to be applied to future monthly payments as they would come due. 2 Along with the two checks, McDevitt also submitted a payment coupon of the kind he normally used to mail his payments to Wachovia Mortgage. The payment coupon contained preprinted text reciting four payment options: $2,647i (2) "Sched. coupon) "Interest Only" a "Minimum Payment" of payment of $3807.61i Principal and Interest" payment of $4317.33 i "15-Year Robert an (1) Pmt. M. Plan" McDevitt, payment of Ex. (photocopy C $6,499.93. of See checks (3) and (4) Affidavit and a a of payment [Dkt. No. 1-2]. 2 Although Wachovia Bank could accept a payment on behalf of Wachovia Mortgage, it did not have access to the customer's mortgage account and could not make any decisions as to how a mortgage payment would be applied. However, McDevitt was not aware of the distinction between Wachovia Mortgage and Wachovia Bank. He believed that the "Wachovia" Bank branch that accepted his payments was the same "Wachovia" entity holding his mortgage, and was not told otherwise by the Wachovia Bank personnel with whom he dealt on April 14, 2008. -4- Next to these four options, lines for McDevitt to specify: any ( 2) the payment coupon (1) the amount of his payment, to go Principal/Deferred "Additional Amount and Interest," "Total Amount Enclosed." ( 3) the included to On the first line, McDevitt wrote "4,400" to indicate his payment amount. the second Interest," words line, McDevitt left unchanged the word "one year payments," most favorable to McDevitt) go to line, crossed the words "Principal," such that (construed "Deferred and added the in the light the text read "Additional Amount to Principal/ one year payments: he entered out On On the $25, 000" third [$]29,400 for the total payment enclosed with his payment coupon. McDevitt dealt for a asked the Wachovia Bank personnel receipt of his payment, with whom he and he received a single page photocopy of the two checks along with his payment coupon. The photocopy was date-stamped by Wachovia Bank and initialed by the branch manager. 3. Wachovia's Application of the April 14 Payment Wachovia Mortgage subsequently applied the $4,400 check to McDevitt's reduce his regular monthly principal monthly mortgage payment balance. statement and When in June the $25,000 McDevitt 2 008, he check to received his learned that his $2 5, 0 0 0 payment had not been held for future monthly payments, -5- as he requested, but applied to reduce his principal balance. He then contacted Wachovia Mortgage to correct the application of his payment, and was advised to until we've resolved this." "continue making payments There is no evidence that McDevitt made a record of the date on which this conversation took place or the name of the individual with whom he spoke. McDevitt throughout time, continued to make all of McDevitt Mortgage 2008, made and Wells 2009, monthly mortgage and January 2010. multiple Fargo 3 his telephone and was During this calls given the payments to same Wachovia advice each time: continue making his monthly payments until the application of his $25,000 payment was resolved. Again, McDevitt did not present evidence of the dates on which these conversations took place, the names of the individuals with whom he spoke, or whether such indi victuals worked for Wachovia Mortgage or Wells Fargo. In or around January 2010, McDevitt spoke by telephone with a customer service representative who told him "Don't worry, handled" and implied that " [his] problem had been its resolved." This conversation left McDevitt with the impression that he was not required to make any more loan payments for approximately 12 3 In late 2009, Wachovia Mortgage was merged into Wells Fargo Bank but continued to trade under the name Wachovia Mortgage. -6- months starting in early 2010, although Wells Fargo Bank did not send him anything in writing scheduled had been modified. to confirm that his payment As with the other telephone calls, McDevitt does not appear to have made any record of the date on which this conversation took place or the name of the individual with whom he spoke. In February 2010, McDevitt stopped making his monthly mortgage payments. 4. The Notice of Default On February 22, 2010, Wachovia Mortgage wrote to McDevitt to advise him that his mortgage payment due February 1, 2010 had not been received. On March 18, 2010, Wachovia Mortgage again wrote to McDevitt, expressing concern that his loan was then two months in arrears, and proposing solutions to avoid foreclosure. On April "Your 5, loan 2010, has Wachovia Mortgage sent McDevitt notice that been approved for commencement of foreclosure action which may cause you to lose your property and any owner's equity." On June 4, 2010, Wachovia Mortgage sent McDevitt another letter advising him of his loan's delinquent status and providing information about the Affordable Modification Program. Wachovia Mortgage, federal government's Wells Fargo, then retained the law firm as successor to of Rosenberg Associates ("Rosenberg") to commence foreclosure proceedings. -7- Home & 5. The Foreclosure Proceedings Rosenberg's first contact with been through a "fair debt letter." McDevitt the individual Rosenberg, in charge of to have The parties do not agree on when the fair debt letter was mailed, letter was dated July 26, 2010, appears but stipulated that the and that Michael Amos McDevitt's foreclosure ("Amos"), file at testified that the letter was drafted and mailed on July 26, 2010. The parties further stipulated that McDevitt did not receive the fair debt letter until September 2 or 3, 2010, only a few days before the foreclosure sale, which was scheduled for September 7. 4 The fair debt the amount then "within thirty letter advised McDevitt of his default and due (30) on the Note. It also stated days of receipt of this letter," disputed all or a portion of the debt in writing, the name 'and address of the original creditor, that if, McDevitt or requested Rosenberg would cease collection of the debt until it obtained verification of the debt and ascertained the name and address of the original creditor. On August certified mail, 4, 2010, Rosenberg also sent McDevitt, a Notice of Foreclosure Sale of Real 4 by Property The parties proffer different theories as to why McDevitt did not receive the fair debt letter until September, but these theories are not material to the Court's analysis. -8- ("foreclosure notice") . such notices, addressed one to In fact, addressed "Robert M. advised McDevitt that, Rosenberg sent McDevitt to and "Occupant" McDevitt." The the foreclosure two other notice to satisfy his debt to Wells Fargo, his Property was to be sold at a foreclosure sale on September 7, 2010 at 10:13 either See Ex. C [Dkt. Notice) a.m. No. 20-4]. However, McDevitt notices, and of the "unclaimed" foreclosure by the U.S. to McDevitt's Mot. Postal both never received were returned No Service. (Foreclosure definitive explanation was offered by either party as to why the notices were "unclaimed." At 9:27 September 7, a.m. 2010, on the morning of the foreclosure sale, McDevitt emailed Rosenberg that he disputed the debt and requested the name of the creditor to whom the debt was owed. However, the foreclosure sale went forward, and later that day, McDevitt's Property was sold at foreclosure to a third party for $510,000. The next day, Amos responded to McDevitt's email, and sent him verification of the debt and the name of the creditor. After the foreclosure, McDevitt Property pending various legal evicted in March 2012. He had continued to live at challenges, Property. -9- $142,876.56 but of the ultimately was equity in the B. Procedural Background On August claims for negligent 3, McDevitt 2012, wrongful foreclosure, infliction of emotional filed his Complaint alleging breach contract, distress. and [Dkt . of 1] . No. Wells Fargo moved to dismiss the Complaint pursuant to Fed. Civ. [Dkt . P. 12 (b) (6), No. On February 28, 12] . Fargo filed a which the Court denied on September 25, Motion for 2013, after discovery, Summary Judgment [Dkt. No. R. 2012 Wells 19] , and McDevitt filed a cross Motion for Summary Judgment on Liability and Partial Summary Judgment on Damages 14, 2013, On March the parties each filed Oppositions [Dkt. Nos. 21, 22], and on March 28, 24] . [Dkt. No. 20]. 2013, they filed their Replies [Dkt. Nos. 23, On March 29, 2013, the Court denied the Motions in a one- page Order, settlement. and referred the parties to a Magistrate Judge for [Dkt. No. 25]. On May 8, 2013, after unsuccessful settlement negotiations, the Court held a status conference and agreed to reconsider the parties' Motions for Summary Judgment. The parties then filed an Amended Joint Statement of Stipulated Facts [Dkt. No. 31] to aid the Court in its reconsideration of the Motions. 5 5 The parties have stipulated to these facts summary judgment only. -10- for purposes of II. STANDARD OF REVIEW Summary judgment may be granted if the discovery and disclosure materials on file, pleadings, the and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Arrington v. United States, 473 F.3d 329, the 333 moving (D.C. party factual ~genuine" to ~material" the Cir. must 2006). To prevail on such a motion, demonstrate dispute, or case. either that dispute ~A any that there such dispute over a material is no is not fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict F.3d at 333 242, 247 outcome the non-moving party. '" (quoting Anderson v. (1986)). of for the A fact is case Liberty Lobby, ~material" under the Arrington, Inc., 473 477 U.S. if it might affect the substantive governing law. Liberty Lobby, 477 U.S. at 248. As the Supreme Court stated in Celotex Corp. ~the v. Catrett, plain language of Rule 56(c) mandates the entry of summary judgment, against after a party adequate who time fails to for discovery and upon motion, make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at -11- trial." u.s. 477 317/ 322 The (1986). Supreme Court has further explained/ When the moving party has carried its burden under Rule 56(c) its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party 1 there is no "genuine issue for trial. 1 11 Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 586-87 (1986) In 1 475 U.S. 574 1 (footnote and citations omitted) . other words "' 1 [t] he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Harris 1 550 U.S. U.S. at 247-48) 372 1 380 (2007) 1 Scott v. " (quoting Liberty Lobby I 477 (emphasis in original). At the same time 1 the Supreme Court has also consistently emphasized that the judge 1 s function on a motion for summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. 11 Liberty Lobby 1 477 U.S. at 249. "Credibility determinations/ the weighing of the evidence/ and the drawing of legitimate inferences from the facts are jury functions I not those of a judge" deciding a motion for summary judgment. Id. at 255; see also Reeves v. Sanderson Plumbing Prods. 530 -12- 1 Inc./ u.s. 133, 150 (2000). Therefore, appropriate if the non-movant which the jury could summary fails reasonably judgment is only to offer any "evidence on find for the [non-movant] . " Liberty Lobby, 477 U.S. at 252. In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations evidence." Reeves, 530 U.S. at 150. determine "whether the or weigh the Ultimately, the court must evidence presents sufficient a disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. III. ANALYSIS A. Wrongful Foreclosure In Count I of the Complaint, McDevitt asserts a claim for wrongful foreclosure. Under District of Columbia law, "an action for wrongful or improper foreclosure may lie where the property owner sustains damages by reason executed in a manner contrary to law." Condo. IV Unit Owners (citation omitted). Wells Fargo was Ass'n, 641 liable for wrongful a foreclosure Johnson v. Fairfax Vill. A.2d In his Complaint, of 495, 505 (D.C. 1994) McDevitt asserted that foreclosure because the Rosenberg firm did not send him written notice of foreclosure as -13- required under District of Columbia law. D.C. Code §§ 42-815; 42-815.01). Compl. ~ 34 (citing However, McDevitt now concedes that Rosenberg did comply with the District of Columbia notice provisions by sending him the foreclosure notice in August, even if he never Consequently, received the it. Pl.'s disagreement Opp'n at between the 20 [Dkt. parties No. as 22]. to the date of mailing the notice of foreclosure is no longer material. McDevitt now argues, however, that Rosenberg violated the federal Fair Debt Collection Practices Act ( "FDCPA") in failing to halt the foreclosure sale on his Property after he disputed the debt. Id. at 21-23. He further contends that this violation may serve as the predicate for a wrongful foreclosure claim under District of Columbia law because it resulted in his foreclosure being "executed in a manner contrary to law." Id. at 23-27. 1. The with the Relevant Provisions of the FDCPA FDCPA provides, collection of in relevant part, any debt, a debt that in connection collector must send written notice to the debtor specifying the amount of debt, name of the creditor to whom it is owed, and a statement that, within 30 days of receipt of the written notice, request 1692g (a) certain information relating Further, -14- to the debt. the debtor may 15 u.s.c. § [i] f the consumer notifies the debt collector in writing within [30 days of receipt of the notice] that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt until the debt collector obtains verification of the debt . . or the name and address of the original creditor, and a copy of such [information] is mailed to the consumer by the debt collector. 15 U.S.C.A. McDevitt 1692g (b) § contends 1692g(b). that the Rosenberg firm violated section of the FDCPA when it did not postpone the foreclosure sale after being notified that the debt was disputed, nor send him the requested information until the following day. McDevitt does not cite, case in which a plaintiff and the Court has not found, was violation as a predicate for a under District of Columbia law. 6 permitted to use claim for wrongful an any FDCPA foreclosure Even assuming, however, that a wrongful foreclosure claim may be based on a violation of the 6 As McDevitt concedes, Pl.'s Opp'n at 25, courts considering claims for wrongful foreclosure have generally assumed that foreclosure is not wrongful where it complies with the District of Columbia notice provisions. See, e.g., Kibunja v. Alturas, LLC, 856 A.2d 1120, 1123, 1129 (D.C. 2004) (assuming that law applicable to claim for wrongful foreclosure was District of Columbia notice statute where "main thrust of [plaintiff's case] was that they were not given adequate notice" of foreclosure sale) (citing Johnson, 641 A.2d at 504); Young v. 1st Am. Fin. Servs., 992 F. Supp. 440, 445 (D.D.C. 1998) (reasoning that where "defendants did not violate [D.C. notice statute] any foreclosure that occurred was not wrongful"). -15- FDCPA, an issue the Court need not reach, McDevitt's claim fail·s because Wells Fargo is not a proper defendant under the FDCPA. 2. The FDCPA Only Applies to "Debt Collectors" With one exception, not applicable here, only to "debt collectors," the FDCPA applies defined as persons whose principal business is the collection of debt or who "regularly collect[] debts owed or due or asserted to be owed or due another." 15 U.S.C. contrast, FDCPA 1692a(6). § is not unless it a A creditor, debt such as collector and is acquires a debt in Wells not subject default 1692a (4), acquired (6) . McDevitt's Wachovia Mortgage, at that Because the parties agree time, debt in 2009 as part by to the solely for the See 15 U.S.C. purpose of facilitating collection of such debt. § Fargo, that Wells Fargo of a merger with and that McDevitt's loan was not in default Wells Fargo indisputably is a creditor, not a "debt collector." McDevitt whether the Rosenberg's devotes much Rosenberg firm status a as of is debt his a papers "debt collector to the question of collector." is However, immaterial unless Wells Fargo may be held vicariously liable for the firm's debt collection activities. Wells Fargo foreclosure had McDevitt presents no evidence suggesting the right activities, which to is -16- control Rosenberg an essential in its prerequisite to any claim based on vicarious liability. Dist. of Columbia, 747 A.2d 138, 146 See, e.g., Moorehead v. (D.C. 2000) (relationship based on control "is the decisive factor in vicarious liability analysis") . 7 Therefore, McDevitt cannot bring such an FDCPA claim against Wells Fargo because, as a matter of law, the FDCPA does not apply to Wells Fargo in its capacity as a creditor. 8 Accordingly, summary judgment shall be granted in favor of Wells Fargo on Count I. B. Breach of Contract In Count II of the Complaint, McDevitt asserts a claim for breach of contract. The interpretation of a facially clear 7 It also is questionable whether a creditor that is not also a debt collector may ever be held vicariously liable under the FDCPA. See, e.g. , Wadlington v. Credit Acceptance Corp. , 76 F.3d 103, 108 (6th Cir. 1996) ("We do not think it would accord with the intent of Congress . for a company that is not a debt collector to be held vicariously liable for a collection suit filing that violates the Act only because the filing attorney is a 'debt collector.'"); Townsend v. Fed. Nat. Mortg. Ass'n, No. 3:12-cv-00045, 2013 WL 549263, at *10 (W.D. Va. Feb. 12, 2013) (" [C]reditors [may not] be held vicariously liable for FDCPA violations by independent debt collectors acting on their behalf.") (citation omitted). The Court of Appeals in this Circuit has not yet addressed this issue. 8 Further, as Wells Fargo points out, McDevitt most probably is time-barred from bringing any claim under the FDCPA itself because the FDCPA has a one-year statute of limitations for civil actions. See 15 U.S.C. § 1692k(d). However, it is not necessary to reach this issue in light of the Court's ruling above. -17- contract is a question of law to be resolved by the court. See, e.g., Cir. NRM Corp. v. Hercules, 1985). is Thus, the "'since, absent such v. without the Gochnauer, 772 omitted). question A are contract A.2d 456, 461 n.7 A.2d is reasonably or interpretations." necessity of 830, susceptible a itself extrinsic (D.C. when of (D.C. summary judgment for 834 ambiguous 682 ambiguity, duly signed and executed speaks parties Angulo 758 F.2d 676, where a contract is unambiguous, appropriate, contract Inc., written and binds evidence.'" 2001) "the (citation provisions different in constructions 1901 Wyoming Ave. Co-op. Ass'n v. Lee, 345 (D.C. 1975). McDevitt argues that Wells Fargo's Motion should be denied because the parties dispute: be made under alterations," properly. below, the and P1 . ' s contract, (3) Opp' n (1) how often a payment needed to (2) whether his at 15 , 16 , "the $25,000 18 . 9 and further required that payment schedule be made in writing. 9 for payment However, contract was as applied discussed the Note unambiguously required McDevitt to make monthly payments, resolve mechanism the first two disputes as any modifications to his Therefore, a the Court may matter law. of Because McDevitt also argues that the parties dispute why he stopped making his mortgage payments, Pl.'s Opp'n at 19, but McDevitt's motivation for not paying his mortgage is immaterial to the legal issues presented in the Motions. -18- there is no genuine dispute McDevitt obtaining without that the stopped his agreement Bank's making in monthly payments writing, the third issue is not relevant to disposition of the claim. 1. The Note Required McDevitt to Make Payments Every Month McDevitt payments default first argues that although he failed in February through September of 2010, because his advance satisfied the payments payment otherwise due of for make he was not $25,000 that to in April period of in 2008 time. McDevitt contends that his action was consistent with Paragraph 3 of the Note, borrower . which he construes to mean that so "long as a . submitted a payment for each month," the borrower was not literally required to make a payment each month. Opp'n at 15. (emphasis in Pl.'s Opp'n) However, month. It Pl.'s the Note does clearly states not that require McDevitt payments was "for" required every to "pay Principal and interest by making payments every month [,] on the until ~ 3 1st day [he had] (emphasis of each month," and "every month [thereafter] paid [ ] all the Principal and interest[.]" added) . This language does -19- not merely set Note the total dollar amount which McDevitt was to have paid off, it also dictates the precise frequency and timing of each payment. 10 Moreover, payment Paragraph 5 addressed how, schedule advance payment. would be affected in if at all, McDevitt,s the event he made an It states: IF I MAKE A PARTIAL PREPAYMENT, THERE WILL BE NO CHANGES IN THE DUE DATES OR AMOUNTS OF MY PAYMENTS UNLESS THE LENDER AGREES IN WRITING TO THOSE CHANGES. Therefore, McDevitt,s argument that his advance payment relieved him of the obligation to make future monthly payments is inconsistent literally life of with the plain required payments the loan, language "each,, regardless of and of "every the 11 Note, month any prepayments, which for the unless the lender agreed otherwise in writing. 2. The Writing Requirement Was Not Modified by the Bank's Conduct McDevitt agreements alter also said[,] argues the [the contract, s] that Bank,s "despite actual whatever practice was the to loan simply terms verbally at McDevitt, s request [.] 11 Pl. , s Opp, n at 17. McDevitt points to instances in which the Bank to orally agreed waive his 10 late fees. From these McDevitt appears to have had a limited right to pay less than the full amount of interest due each month, with the result that any deficiency would be added to his principal balance as deferred interest. See Note ~ 3 (E) - (F) This feature of the Note is not at issue. -20- occasions, he reasons that "a reasonable juror could infer that [his payment schedule had been verbally modified because] Bank granted special matter of course." However, accommodations verbally and the as a Id. McDevitt does not articulate any legal theory by which the Bank's verbal waiver of late fees on a case-by-case basis affected its future right to that require any McDevitt modifications to his payment schedule be in writing. suggests that the Bank's waiver of late fees is relevant because "the contract between the parties left out important details and policies, they leaving them to be determined outside the contract as arose. " Id. This argument relates to his payment schedule. did not "le[ave] out important is simply incorrect As discussed above, details" regarding as it the Note McDevitt's payment schedule or the manner in which it would be modified. Therefore, McDevitt may not use extrinsic evidence in an attempt to contradict the Note's plain and unambiguous terms. To the extent McDevitt is arguing that the Bank's conduct over the requirement course in its of the loan entirety, he somehow waived is incorrect. also party may waive its rights under a contract, infer waiver from the party's conduct the writing While a a court will not absent a "'clear, unequivocal and decisive act of the party who is claimed to have -21- waived its rights, so consistent with an intention to waive that no other reasonable explanation is Washington Metro. Area Transit Auth., (D.D.C. 2008) 27 (4th ed. this 2d 181, 196 39:28 at 626- § and certainly is not clear, and decisive evidence in Supp. v. The Bank's occasional oral waiver of late fees is not evidence - issue 533 F. (quoting 13 Williston on Contracts 2000)). Kersey possible.'" case, that namely unequivocal the Bank abandoned the right that McDevitt's monthly at payment schedule could not be changed unless the Bank agreed in writing to any such change. McDevitt existed concedes altering Therefore, the that "no contract's writing now or has Pl.'s terms." exists Opp'n at 17. for all the foregoing reasons, the Court shall, as a matter of law, grant summary judgment in favor of Wells Fargo on Count II. C. Negligent Infliction of Emotional Distress Finally, in Count III, McDevitt asserts negligent infliction of emotional distress. a claim Under District of Columbia law, [A] plaintiff may recover for negligent infliction of emotional distress if the plaintiff can show that (1) the defendant has a relationship with the plaintiff, or had undertaken an obligation to the plaintiff, of a -22- for nature that necessarily implicates the plaintiff's emotional well-being, (2) there is an especially likely risk that the defendant's negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff. Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810-11 (D.C. 2011). The parties question of devote most whether Wells of Fargo interest undertook any special that satisfies the Hedgepeth. infliction of its contractual. it notes negligent and its papers to predecessors the in relationship with McDevitt prong of the test set forth in Wells Fargo argues that it had no duty to avoid negligent nature first their of emotional relationship Def. 's Mem. Hedgepeth's P distress with McDevitt A at 19-22. & statement that infliction of emotional a because was the purely In particular, duty to avoid the distress generally does not arise where the purpose of a particular relationship or undertaking is not well-being [but] objective, even defendant's] [plaintiff] . " "to care for the plaintiff's emotional to obtain a financial, commercial or legal if its non-attainment due to [the negligence is emotionally distressing to the Hedgepeth, 22 A.3d -23- at 815 (citations omitted) . This language squarely covers the facts of this case. Even assuming the Bank did owe McDevitt a duty avoid negligent infliction of emotional distress, to McDevitt has not put forth any evidence that the Bank ever breached it. to McDevitt suggests only two theories by which he seeks hold the Bank liable for negligent infliction of negligent in emotional distress. First, failing to directed. he contends apply his the $25,000 ~ See Compl. that 46. his breach of contract claim, payment Co., was in the manner he This theory merely restates and does not give rise to a separate claim for negligence. Fire and Cas. Bank Cf. Choharis v. State Farm 961 A.2d 1080, 1089 n.12 (D.C. 2008) (allegation of negligent performance of insurance contract "does not mean that sounding in [plaintiff] contract tort there for is a separate cause of negligence, but rather action that the may recover damages therefor under a breach of theory") (citing Myers v. Firemen's Ins. Co. of Opposition to Washington, D.C., 274 F.2d 84, 86 (D.C. Cir. 1959)). Second, McDevitt suggested in his Defendant's Motion for Summary Judgment that the Rosenberg firm was negligent for failing to send him proper notice of -24- the foreclosure [his] home." However, notice sale or for "wrongfully foreclosing ~~ Pl.'s Opp'n at 31; see also Compl. on 45-47. McDevitt now concedes that the firm did send him of foreclosure more than a month before the foreclosure sale; he just didn't receive it. Even assuming McDevitt has raised a genuine issue of fact that Rosenberg was negligent in failing to mail the fair housing letter in a timely fashion, he still has not set out any basis on which a jury could find Wells Fargo liable for recites the the principles, firm's general [a] purported negligence. rule that "[u]nder Although he standard agency principal is liable for the negligence of its agent," he does not cite any case in which a client was held vicariously liable for the negligence of its attorney. Pl.'s Opp'n at 30. Further, client the generally weight is of not authority vicariously provides liable that for a its attorney's torts, absent evidence that the client directed, controlled, authorized, allegedly tortious Root, Ill.2d 1, act 212 pursuant judgment to or ratified conduct. the 12-14 See (Ill. they are Horwitz 2004) exercise of the v. attorney's Holabird & ("[W]hen attorneys independent professional presumptively independent -25- contractors for purposes of imposing vicarious liability.") (citing cases); McElwaney, 75 client is Givens S.W.3d Mullikin 383, 398 ex (Tenn. rel. of ("'Unless 2002) Estate a implicated in some way other than merely being represented by the liable v. for the attorney attorney's the cannot be (quoting conduct.'") client Bradt v. West, 892 S.W.2d 56, 76-77 (Tex. App. 1994)). As discussed earlier, McDevitt points to no evidence suggesting that Wells Fargo had any input into, or control over, the manner in which the Rosenberg firm conducted the foreclosure suggest proceedings: any negligent way in in which selecting McDevitt Further, Wells Fargo Rosenberg may its as does have not been foreclosure counsel. Accordingly, even assuming Wells Fargo did have a duty McDevitt to to avoid the negligent infliction of emotional distress, there is no basis on which a reasonable jury could find by a preponderance of the evidence that Wells Fargo breached its duty, or is vicariously liable for any purported negligence of Rosenberg. As the Supreme Court said in Liberty Lobby, summary judgment should be granted where there is no "evidence on which the jury could reasonably find -26- for the plaintiff." 477 U.S. at 252. Therefore, the Court shall grant summary judgment in favor of Wells Fargo on Count III. IV. CONCLUSION For the foregoing reasons, Wells Fargo's Motion is granted, and McDevitt's Motion is denied. An Order shall accompany this Memorandum Opinion. Glf!ss&t ~~ May 29, 2013 United States District Judge Copies to: attorneys on record via ECF -27-
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