United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge.
MATTER comes before the Court on Plaintiffs Motion
for Summary Judgment, (Doc. No. 53) (the "Motion");
Defendant's Opposition to Plaintiff s Motion, (Doc. No.
56); Plaintiffs Reply in Support of its Motion, (Doc. No.
57); and all the associated exhibits. The Motion has been
briefed fully and is ripe for adjudication.
Mortgage Servicing Corporation ("Plaintiff or
"RoundPoint") and Five Brothers Mortgage Co.
Services & Securing, Inc. ("Defendant" or
"Five Brothers") dispute which party should pay for
which legal fees pursuant to a contract between the two of
them and the indemnification clause therein. RoundPoint
provides mortgage loan services and had a contract, called
the Tri-Party Field Services Agreement (the
"Contract"), (Doc. No. 1-1), with Five Brothers to
perform inspections and property preservation on properties
for which it provided loan services. Litigation arose
regarding one of those properties in 2013 when the property
owner filed a lawsuit against several parties including
RoundPoint and Five Brothers. Both RoundPoint and Five
Brothers (collectively, the "Parties") bore their
own legal fees and settlement costs. Now RoundPoint seeks
indemnification from Five Brothers for RoundPoint's costs
incurred defending that lawsuit.
December 2, 2011, RoundPoint entered into the Contract, which
provided, among other things, that Five Brothers would
perform inspection and property preservation services on
properties securing mortgage loans that RoundPoint services.
The Contract includes an indemnification provision that
states the following:
Five Brothers shall indemnify and hold harmless 24 Asset and
RoundPoint from any and all liabilities, expenses, demands,
suits, judgments, losses, claims, injuries, damages,
penalties, fines, forfeitures, attorney's fees and costs,
of any kind whatsoever (each a "Loss" and
collectively "Losses"), arising from or in any way
connected with Five Brothers:
i) Violation of any law or regulation;
ii) Non-compliance with the terms of this Agreement or the
breach of any warranty or representation set forth in this
Agreement, including all exhibits and any other agreements
incorporated in this Agreement by reference;
iii) Any claims or actions whatsoever brought by any
subcontractor hired by Five Brothers;
iv) Negligent, wrongful acts or misconduct by Five Brothers,
its employees, officers, directors, agents, contractors or
v) Any claims or actions brought by a third party alleging
death or injury to any person or damage to or destruction of
(whether fully or partially) property arising out of an act,
error, or omission by Five Brothers; or
vi) Any mistakes by Five Brothers relating to the performance
of the Services herein.
No. 1-1 at 4-5). Furthermore, the Contract includes the
It is expressly understood that this indemnity shall extend
to any and all alleged acts, errors, or omissions (whether
willful, intentional, negligent, or grossly negligent)
committed by Five Brothers, its agents, employees,
subcontractors, or independent contractors, while performing
any services for RoundPoint. Five Brothers shall assume full
responsibility for payment of the cost, defense and
settlement of such claim action or proceeding.
(Id. at 5).
Facts Leading to the Underlying Lawsuit
January 2010, RoundPoint informed one of its clients, Annette
Hayes ("Hayes")-who owned a condominium in Wilson,
NC- that her loan was in default. (Doc. No. 54-1 at 82-83).
According to Ms. Hayes' complaint, she negotiated a
repayment plan with RoundPoint and honored the repayment
plan, but nonetheless RoundPoint instituted a foreclosure
action, obtained a foreclosure on July 15, 2010, and
proceeded with plans to sell Ms. Hayes' condo.
(Id. at 49-50). Ms. Hayes alleged that she continued
to make mortgage payments as scheduled but endured
"incomprehensible errors by Defendant RoundPoint in
properly crediting her mortgage payments and in continuing to
pursue foreclosure proceedings that [Ms. Hayes] had been
assured were abated as a result of her compliance with the
repayment plan . . . ." (Id. at 50). Ms.
Hayes' condo was eventually sold at public auction to the
sole bidder Self-Help Services Corporation d/b/a/ Self-Help
Credit Union ("SHCU'), who also provided the loan to
Ms. Hayes for her purchase of the ...