United States District Court, W.D. North Carolina, Charlotte Division
MICHAEL L. SEALY & SHELLY N. SEALY, Plaintiffs,
FAY SERVICING, LLC; ET AL., Defendants.
Cogburn Jr. United States District Judge
MATTER is before the court on defendants'
Motions for Summary Judgment (#26 and #30). The deadline for
plaintiffs to respond has passed with no response and the
matter is ripe for review. Plaintiffs are represented by
counsel. Having considered defendants' motion and
reviewed the pleadings, the court enters the following Order.
case centers on a purported loan modification agreement. In
April 2008, plaintiffs obtained a mortgage loan from
Countrywide or its affiliate entity for their personal
residence at 3901 Blythe Road, Waxhaw, North Carolina. Years
later, plaintiffs contacted the loss mitigation department at
defendant Ocwen Loan Servicing and made a written request for
a loan modification. On July 2, 2012, Ocwen approved the loan
modification, subject to certain terms and conditions. On
November 2012, after making Trial Period Plan
(“TPP”) payments in a timely fashion, Ocwen
approved the loan modification for the plaintiffs. (#1-1) at
then contend that, despite complying with all the requisite
terms and conditions and making every necessary payment,
defendant Ocwen (and later, defendants Fay Servicing and
Christiana Trust) failed to make the loan modification
permanent and attempted to void it, in order to proceed with
a foreclosure. (#1-1) at 11-12. Plaintiffs allege that in
doing so, defendants are liable under theories of breach of
contract, breach of the implied covenant of good faith and
fair dealing, promissory estoppel, and unfair and deceptive
trade practices. Plaintiffs also claim a declaratory judgment
should be made to enforce the modification. (#1-1) at 10-16.
contend that they did not fail to make the loan modification
permanent, but rather plaintiffs failed to do so by
neglecting to accept the offer of permanent loan modification
and failing to make the necessary payments at the proper
time. (#27) at 1-2; (#31) at 1. In doing so, defendants
contend there never was a contract to begin with, and
plaintiffs' arguments are thus null and void.
Standard of Review
judgment shall be granted “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 factual 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., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id. The movant has the
“initial responsibility of informing the district court
of the basis for its motion, and identifying those portions
of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Once
this initial burden is met, the burden shifts to the
nonmoving party. That party “must set forth specific
facts showing that there is a genuine issue for trial.”
Id. at 322 n.3. The nonmoving party may not rely
upon mere allegations or denials of allegations in his
pleadings to defeat a motion for summary judgment.
Id. at 324. Instead, that party must present
sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for
trial.'” Ricci v. DeStefano, 557 U.S. 557,
586 (2009) (quoting Matsushita v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). In the end, the
question posed by a summary judgment motion is whether the
evidence “is so one-sided that one party must prevail
as a matter of law.” Anderson, 477 U.S. at
make arguments on five grounds: breach of contract, breach of
the implied covenant of good faith and fair dealing,
promissory estoppel, declaratory judgment, and unfair and
deceptive trade practices. The court shall address each
Breach of contract
plaintiffs assert that defendants breached their contract
with plaintiffs by failing to honor the terms of the
purported permanent loan agreement. For a breach of contract
claim to succeed, there must be both the existence of a valid
contract and a breach of the terms of that contract.
Branch v. High Rock Lake Realty, Inc., 151 N.C.App.
244, 250 (2002); Jackson v. California Hardwood Co.,
120 N.C.App. 870, 871 (1995). Here, it is undisputed that
plaintiffs requested a permanent loan modification and
successfully met all requirements in the months that
followed. Plaintiffs then allege that defendants repeatedly
failed to provide the necessary final paperwork, which has
ultimately led to plaintiffs' filing suit. However,
defendants have offered evidence that plaintiffs failed to
agree to the permanent loan modification offer after
defendants sent the proper paperwork. Specifically, the
record contains multiple phone calls where plaintiffs stated
they received the final paperwork but had not yet accepted
it. See Exhibit A, Lucas Affidavit, ¶ 18;
Exhibit A-6, Transcript of Dec. 20, 2012 Call, pp.
2:13-21; Exhibit A-7, Transcript of Feb. 1, 2013
Call, pp. 2:11-14. Then, in one phone call, plaintiff Michael
Sealy appeared to refuse the offered final modification
agreement, saying that plaintiffs would be “unable to
start the payments at the timeline that they set” and
that “I can't afford the mod for another 60
days.” Id. Essentially, plaintiffs received a
final offer from defendants but refused it, failing to return
the agreement and failing to make payments in accordance with
the agreement. Plaintiffs have offered nothing that
contradicts this persuasive evidence, and the court must find
that the final loan modification agreement was not binding
between the plaintiffs and any defendant. Plaintiffs'
breach of contract claim thus fails.
Breach of implied covenant of good faith ...