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Parker v. Pnc Bank, N.A.&Nbsp;

United States District Court, W.D. North Carolina, Charlotte Division

April 15, 2014

JAMES V. PARKER, JR., Plaintiff,
v.
PNC BANK, NATIONAL ASSOCIATION, Defendant.

ORDER

GARHAM C. MULLEN, District Judge.

THIS MATTER is before the Court on Defendant's Motion for Summary Judgment (Doc. No. 9) and Memorandum in Support (Doc. No. 11). Plaintiff has not filed a response, and the allotted time in which to do so has passed. For the reasons set forth below, Defendant's Motion is GRANTED.

I. BACKGROUND

In August 2006, Plaintiff James V. Parker and United Community Mortgage Services, Inc. entered into a construction loan agreement in which Parker was loaned the costs of constructing a home in Hayesville, North Carolina. The agreement was subsequently amended and supplemented for the purpose of making the loan a permanent loan and was recorded with the Clay County Register of Deeds on July 10, 2007. (Doc. No. 11 Ex. A). In order to secure the loan, Parker executed a Note in favor of United Community Mortgage Services in the principal amount of $271, 800.00. (Doc. No. 11 Ex. B). Parker also executed a Deed of Trust on real property located at 131 Jarrett Oaks Drive, Hayesville, North Carolina. Thereafter, the Note and Deed were assigned to National City Mortgage Company, which later merged with Defendant PNC Bank, making Defendant the current holder in due course of the loan, Note, and Deed. (Affidavit of Brian Arthur ¶ 6, Doc. No. 10).

Parker filed his Complaint in North Carolina Superior Court, Clay County, on April 19, 2013, asserting claims against Defendant for negligence, breach of contract, specific performance, trespass to chattels, and unfair and deceptive trade practices. (Doc. No. 1 Ex. A). The allegations in the Complaint stemmed from a purported oral agreement between the two parties that Defendant would refinance Parker's mortgage at a reduced interest rate, and asserted that Defendant had breached that agreement by failing to conduct a proper appraisal of Parker's property. On May 17, 2013, Defendant removed the case to the Western District of North Carolina (Doc. No. 1). On May 24, 2013, Defendant filed its Answer and Counterclaim against Parker (Doc. No. 3), alleging that Parker had defaulted on the Note by failing to make payments required by the Note, and that Defendant was entitled to a judgment against Parker for the principal amount of the loan, together with accrued interest, late fees, and other charges. On June 10, 2013, Parker filed an Answer to the Counterclaim denying the substantive allegations in the Counterclaim, but presenting no defenses (Doc. No. 4).

On September 17, 2013, Defendant filed a Motion to Dismiss Parker's claims for failure to state a claim (Doc. No. 7). Parker failed to respond, and the Court subsequently granted the Motion, dismissing all claims against Defendant. (Doc. No. 8). On January 30, 2014, Defendant filed this Motion for Summary Judgment. Parker has once again failed to respond.

II. LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that 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). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 47 U.S. 242, 248 (1986). The mere existence of a scintilla of evidence in support of the non-movant's position is not sufficient to establish a genuine dispute. Id. at 252. A material fact affects the outcome of the suit under the applicable substantive law. See id. at 248. When determining whether a dispute is genuine or a fact is material, courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. Scott v. Harris, 550 U.S. 372, 378 (2007).

III. DISCUSSION

In support of its Motion for Summary Judgment, Defendant proposes that the following facts are undisputed:

1. Parker executed the Note. ( See Parker's Response to Defendant's Request for Admission No. 1, Doc. No. 9 Ex. A).

2. The Note provides that Parker's failure to pay the full amount of each monthly payment on the due date constitutes default. ( See Note ¶ 6.B., Doc. No. 11 Ex. B).

3. Parker executed the Loan Agreement. ( See Parker's Response to Defendant's Request for Admission No. 2, Doc. No. 9 Ex. A).

4. Pursuant to the terms of the Loan Agreement, Parker agreed to make monthly payments of principal and interest of $1, 695.68, beginning on September 1, 2007 and continuing thereafter until the loan was paid ...


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