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Lambert v. PNC Bank, N.A.

United States District Court, E.D. Michigan, Southern Division

September 26, 2017

PNC BANK, N.A. and PNC MORTGAGE, Defendants.



         On April 6, 2015, Plaintiff Larry Lambert, II filed this lawsuit in Michigan state court against Defendants PNC Bank, N.A. (“PNC Bank”) and PNC Mortgage (collectively, “Defendants” or “PNC”). (ECF No. 1-2 at Pg ID 21.) PNC Bank removed this matter to federal court on the basis of diversity jurisdiction on June 30, 2015. (ECF No. 1 at Pg ID 1.)

         Presently before the Court is Defendants' motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 on January 5, 2017. (ECF No. 24.) The motion has been fully briefed. Therefore, the Court is dispensing with oral argument with respect to the motions pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the following reasons, the Court grants PNC's motion for summary judgment.

         I. Summary Judgment Standard

         Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “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). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252.

         “A party asserting that a fact cannot be or is genuinely disputed” must designate specifically the materials in the record supporting the assertion, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). Rule 56 provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify to the matters stated.” Fed.R.Civ.P. 56(c)(4). “In order to survive a motion for summary judgment, the non-moving party must be able to show sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy.” Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir. 2004) (internal quotations and brackets omitted).

         Notably, the trial court is not required to construct a party's argument from the record or search out facts from the record supporting those arguments. See, e.g., Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (“the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact”) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)); see also InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990) (“A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim.”). The parties are required to designate with specificity the portions of the record such that the court can “readily identify the facts upon which relies[.]” InterRoyal Corp., 889 F.2d at 111.

         II. Factual and Procedural Background

         On October 31, 2005, Plaintiff obtained a mortgage for his property located at 325 Samburu Street, Pontiac, Michigan 48342 (the “Property”). (ECF Nos. 24 at Pg ID 228; 24-2 at Pg ID 252.) The mortgage was provided by National City Mortgage, a division of National City Bank of Indiana, to secure repayment of a loan in the amount of $257, 590.00. (Id.) National City Bank of Indiana was later acquired by PNC and through the acquisition, PNC obtained the subject mortgage. (ECF No. 24 at Pg ID 229.)

         Pursuant to the mortgage note, Plaintiff was required to make monthly payments in the amount of $1, 363.19. (Id.; ECF No. 24-2 at Pg ID 252.) Plaintiff defaulted on his monthly payments in 2006 and a sheriff's sale took place on February 27, 2007. (ECF Nos. 24-5 at Pg ID 310; 24-8 at Pg ID 354.) PNC purchased the property at the sheriff's sale for $262, 391.41. (ECF No. 24-8 at Pg ID 357.)

         On February 28, 2008, Plaintiff and PNC entered into a stipulated agreement, where Plaintiff would be able to avoid foreclosure. (ECF No. 24-9 at Pg ID 360.) Per the stipulated agreement, Plaintiff placed an initial down payment of $15, 000 and agreed to subsequent monthly payments amounting in $3, 322.38 until January 31, 2010. (Id.) These payments required under the stipulated agreement were in addition to his monthly payments under the original note. (Id.) Beginning February 1, 2010, Plaintiff was only required to make his monthly payments under the original note. (Id.) Plaintiff made the $15, 000 down payment and the monthly payments required under the stipulated agreement through October 2008. (ECF No. 24 at Pg ID 230.) Plaintiff testified at his deposition that he may have made one more payment pursuant to the Stipulated Agreement in November 2008, but no further payments because he soon requested a loan modification form. (Lambert Dep. 12/6/16 Tr. 21:2-26:25.)

         Approximately a year prior to the stipulated agreement, PNC mistakenly discharged Plaintiff's mortgage and recorded it on June 19, 2007. (ECF No. 24-10 at Pg ID 364-65.) To correct this error, PNC initiated a state court action in Oakland County Court to reinstate the mortgage. (ECF No. 24-5.) PNC prevailed both at the trial and appellate level, and the mortgage was revived. (ECF Nos. 24-13, 24-14.)

         In December 2013 or January 2014, Plaintiff submitted a loan modification application package to PNC pursuant to the Making Home Affordable Program (“MHAP”). (ECF No. 24-15.) PNC noticed the application was incomplete because Plaintiff was missing the following: an executed IRS form 4506-T; copies of his two most recent paystubs; a copy of his most recent quarterly or year-to-date profit/loss statement; copies of his two most recent bank statements; or a copy of his most recently filed federal tax return, and statements for Plaintiff's pension, checking and savings account, and certificate of deposit. (ECF No. 24-16.) On January 17, 2014, PNC sent a letter to Plaintiff notifying him that his loan application was incomplete. (ECF No. 24-16.) The letter listed the documents PNC required to evaluate his request and stated the documents must be returned by February 16, 2014. (Id. at Pg ID 481.)

         Plaintiff resubmitted an incomplete loan modification application on January 20, 2014. (ECF No. 24-17.) It did not contain the documents that PNC requested in their January 17th letter. On February 24, 2014 and May 12, 2014, PNC sent two more letters to Plaintiff explaining that it could not proceed with his request because required documents were missing. (ECF Nos. 24-18, 24-19.) However, Plaintiff ...

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