United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT [ECF NO. 24]
V. PARKER, U.S. DISTRICT JUDGE.
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.)
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
Summary Judgment Standard
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).
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.
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).
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 the...party relies[.]” InterRoyal
Corp., 889 F.2d at 111.
Factual and Procedural Background
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.)
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.)
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.
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.)
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.)
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 ...