Weller v. JP Morgan Chase Bank, National Association

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).

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 non-

moving 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).

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,

2 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.

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-14-

0022, 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. 5:14-

cv-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

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; 92-

27. 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

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.

4 During the deposition of Chase’s corporate representative, Rosemary Martin, the following exchange took

place:

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

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-1-

102(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.

(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.

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.

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

7 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.

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-

8 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.

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 lender-

beneficiary 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,

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

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, 33-

34, 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-00251-

JRN, 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

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.

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.

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 |, Il 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 Ill 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

Aho LEGA

GINA M. ROH

CHIEF UNITED STATES DISTRICT JUDGE

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