United States District Court West Virginia - In Count III, Kesling said that Countrywide refused to receive the exercise of its rights to repayment of the loan by alternative means, like loan modification, and instead tries to right its on home to foreclose. Count III according to the requests equitable relief. caused Countrywide moved for Summary Judgement as Count III to assert that the concept that justice abhors forfeiture "is not a free-standing. - Courts
GILBERT Kesling, applicant,
v.
COUNTRYWIDE Home Loan, Inc. and Bank of America, NA, Defendants.
Civil Action No. 2:09-588.
24. January 2011.
MEMORANDUM OPINION AND ORDER
John T. Copenhaver Jr., District Judge
To the motion filed for summary Judgement of the defendant Countrywide Home Loans, Inc. ("Countrywide"), 3 September 2010.
I. Background
In this action, plaintiff Gilbert Kesling (Kesling) that Countrywide excluded in abusive lending practices, maintenance and wrong on his property. Kesling is a resident of West Virginia. Countrywide is a New York corporation with its headquarters in California. Defendant Bank of America is a corporation North Carolina and the parent company of Countrywide.1
In the summer of 2005, Gilbert bought Kesling and his former wife Shawna Kesling House in Gassaway, West Virginia, are placed together with a mobile home on the property. The Kesling approached Countrywide to secure financing for the purchase. (Def. 's Mot. Summ. J., Ex 1, Kesling. Dep. 33) .2 After Countrywide approved the Kesling' request, a loan of $ 102,192 on 29 July 2005 closed. (Id., Ex 2, 205-45).
In the spring of 2007 began the Kesling fall on their loan payments. (Id., Ex 3, payment history, 686-99). You have no payments since 12 Made in October 2007. (Id.). Their difficulties in paying the loan down coincided with her divorce. The court granting the divorce Kesling transferred the responsibility for the guilt of Mr. Kesling. (Def. 's MEM. Supp. Mot. Summ. J. 2).
On 1 May 2007, with delinquent payments on the loan 2 months, Countrywide had the house inspected to ensure that it was busy. (Id.). A second inspection occurred was March 2008, submitted to the credit of the foreclosure, and monthly inspections have been conducted since July 2008. (Def. 's Mot. Summ. J., Ex 4, Abbatecola Dep. 15-20). The fees range from $ 12.50 to $ 15.75 were charged to the loan for any inspection. (Def. 's MEM. Supp. Mot. Summ. J. 2).
After the trustee appointments of a forced sale initiated this action in the Kesling Circuit Court of Kanawha County on 29 April 2009. Defendant to 28 May 2009 removed the call of the court diversity jurisdiction. Kesling later amended his complaint to 17 February 2010. The amended motion alleged four counts against defendants: Count I entitled to claim restitution of illegal payments, Count II for breach of fiduciary duty and fairness; Count III asserts that equity abhors forfeiture, and Count IV is a claim of illegal fees. (Normally the lake. Compl.).
Countrywide for summary Judgement to 9 September 2010 shifted the claim that (1) Kesling claim for illegal return of the payments are not substantiated by facts, (2) Kesling breach the contract, not Countrywide, (3) Equity not to require Countrywide, they forfeit their contractual rights and (4 ) Countrywide no illegal fees imposed on Kesling. (See generally Def 'S MEM. Supp. Mot. Summ. J.).
On 6 October 2010, moved to withdraw as plaintiff's counsel or advisor Kesling. The court held a hearing on the request to 18 October 2010, the Kesling has not participated, and later, the request by order of 19 October 2010 to withdraw. The court stated in the order, Countrywide moved for summary judgment, and that plaintiff had not yet responded to the motion. In the interest of facilitating the applicant's efforts to keep new consultants, and the additional time to allow for the prosecution of this action, the Court left plaintiff to 6 December 2010, to retain a new consultant and have the lawyer noted his appearance in this case. The court ruled that plaintiffs would be represented in this action as if he new law of 6 December 2010 failed to keep. In addition, the Court 6th to react in January 2011 as the deadline for the plaintiff or his newly retained attorney in his name to Countrywide the request for a Summary Judgement. The court stated that they consider the applicant not to the deadline set to respond as a representation of his hand that he can not to the requests of the task by Countrywide and the Judgement entered against him accordingly.
On 18 November 2010 the Court received a mail with return receipt signed by the plaintiff and the certification of its receipt of the Court's 19th to designate October 2010. (Doc. No. 50). Applicant does not retain new counsel for sixth December 2010 were as at present and therefore this action at this time. Applicants do not respond to Countrywide Summary Judgement motion by 6th January 2011.
Second Motion for Summary Judgement
A. Governing Standard
A party is entitled to summary ruling: "If the pleadings, discovery and disclosure materials on file, and all statements that there is no genuine issue of any material fact and that the movant is a Judgement as a matter of law." Fed. R. Civ. P. 56 (c). Material facts are those necessary to establish the elements of a party cause of action. Anderson v. Liberty Lobby, Inc., USA 477 242, 248 (1986).
A real issue of material fact exists, when in the shooting and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable FACT-Finder return a verdict for the non-movant. Id The moving party has the burden of proof for the - "that is, pointing out to the court - that support a lack of evidence to the immovable party case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant meets this burden, the non-movant must set forth specific facts would be admissible as evidence showing the existence of a genuine issue of fact in court. Fed. R. Civ. P. 56 (c), id. at 322-23. A party is entitled to summary ruling, if not the record as a whole do not lead a rational trier of fact in favor of publicly-movant. Williams v. Griffin, 952 820 F.2d, 823 (4th Cir. 1991).
In this case, Kesling has not responded to the Countrywide application for a Summary Judgement. However, this does not automatically entitle you to Countrywide to summary ruling in their favor. "While responding to the failure of a party to a Summary Judgement motion can be left unchallenged by the movement of these facts, the moving party must still show that the undisputed facts, the right of the party," a verdict as a matter of law. "Custer v. Pan Am. Life Ins. Co., 12 410 F.3d, 416 (4th Cir. 1993). Accordingly, a district court" to consider a request for a Summary Judgement [] the motion, even if no objection is raised and determine what it has before, that the moving party to summary judgment as a matter of law. "Id
B. Count I: claim for illegal payment of the credit
Kesling said that on at least one occasion he tried to make a partial payment on the loan, but that Countrywide refused to accept the payment and insisted that he pay the arrearage all at once. Count I alleges that Countrywide's refusal to accept payment instructions Kesling West Virginia Code § 46A-2 to 115, a provision of the West Virginia Consumer Credit Directive and Protection Act ("WVCCPA") violated, West Virginia. Code § 46A-1 to 101, et seq Countrywide moved for Summary Judgement as to Count I, claim that it returned lawfully paid twice for insufficient funds, and another time because of a coding error (corrected later), and that partial payments on at least two other times accepted. Countrywide also points out that the WVCCPA allows a secured creditor to refuse partial payments, the foreclosure process has begun.
§ 46A-2-115 of the West Virginia Code provides in pertinent part as follows:
(C) All payments to the holders of all consumer credit sales or consumer loans will be credited after receipt of payments will be credited: Provided, dass. . Installments during the restoration period was set out in subsection (b) of this section do not automatically required, and again can be returned by the creditor.
W. Va. Code. § 46A-2 to 115 (c). The "reinstatement period" covers "period starting with the Trustee notice of foreclosure and ends before the foreclosure sale." Id § 46A-2 to 115 (b). Shall require § 46A-2-115 lenders receive a consumer loan to a full or partial payments from the borrower, subject to the exception that a lender can refuse partial payments received after the foreclosure process has begun credit.
Countrywide admits that there are two partial payments returned Kesling, one on 4th January 2007 and a further 31 May 2007, but claimed that it was so because of insufficient funds. (Def. 's MEM. Supp. Mot. Summ. J. 4). In support of this assertion, Countrywide is based on a spreadsheet attached as an exhibit to its summary judgment motion. (See Def. 's Mot. Summ. J., account classification, 0000012-13 CTW) .3 This table is only a compilation of data and code, the court has no means of deciphering and Countrywide makes no attempt to interpret. While it shows that there are two "Redemption Fees," it does not clarify the reasons for the back payments, and thus provides no support for Countrywide claim that the payments Kesling back for insufficient funds. And because these payments were on 4 January and 31 May 2007 Back, appeared before the onset of menstruation, may in the restoration of 2008.4 Countrywide not to rely on the reinstatement period, except in West Virginia. Code. § 46A-2 to 115 (c).
Kesling also deposition testimony - viewed in the light most favorable to him - shows that it is issues of material fact on Count I. This contest proved by the following exchange on Countrywide's refusal Kesling credit payments:
Q. Was it possible that there are insufficient resources and not enough money in the account as it attempts to load?
A. It was the money in the account all the time. They just stopped it out. . . Once they stopped taking it out of my account I'm sending money orders. I sent money orders and they sent it right back to me.
(Def. Mot. Summ. J., Kesling Dep. 50). This testimony contradicts Countrywide claim that it rejected Kesling payments due to insufficient funds. Since there are questions of material fact, not to Countrywide Summary Judgement with respect to Kesling claim for return of illegal payments are justified.
C. Count II: Breach of duty of good faith and fair dealing
Count II alleges that defendants violated their duty of good faith and fair dealing by refusing to modify Kesling his credit and stop foreclosure work. Countrywide moved for Summary Judgement on the grounds that the law recognizes no such obligation, and that an implied obligation not to conflict with the express provisions of the contract.
West Virginia law "implied covenant of good faith and fair dealing in every contract, the evaluation of a party, performance of this contract." Stand Energy Corp. v. Columbia Gas Transmission, 373 F.Supp.2d 631, 644 (SDW Va. 2005) (cited Hoffmaster v. Guiffrida, 630 F. Supp. 1289, 1291 (SDW Va. 1986)). However, the West Virginia Supreme Court of Appeals refused to recognize an independent claim for breach of the common law duty of good faith "and decided instead that such a claim sounds in breach of contract. Doyle v. Fleetwood Homes of Virginia, 650 F.Supp.2d 535, 541 (SDW Va. 2009) (cited Highmark West Virginia, Inc. v. Jamie, 655 SE2d 509, 514 (West Virginia. 2007) ("It was held that an implied covenant of good faith and fair dealing does not provide a cause of action except for a breach of contract claim .")). Because such a claim be predicated on a breach of contract must, it follows that "provide [d] he implied covenant of good faith and fair dealing can not Parties rights, defined in opposition to the contract. If" Barn- Fuchs Inc. v. CFM Corp. Dev, SE2d 457 502, 509 (West Virginia. 1995).
Kesling does not allege any breach of contract. Instead, Count II asserts clearly an independent claim for breach of the tacit pact of good faith and fair dealing. Because West Virginia law recognizes no such claim, Count II proposes as a matter of law. Although Graf has claimed II violation of an underlying contract, show the undisputed facts Countrywide had no contractual obligation to Kesling's loan, which was Kesling who violates its contractual obligations under the Note by defaulting to change on his loan payments, and that Countrywide was free to prevent damages in case of failure. (See Def's Mot Summ J., Ex 7, note, § § 4, 7 (B );...... Id Ex 6, 0000007). The implied covenant, as mentioned above, there can not be Kesling rights that are inconsistent with the express provisions of the contract. Consequently, Countrywide is the summary verdict on Count II, entitled.
D. Count III: Equity abhors forfeiture
In Count III, Kesling said that Countrywide has refused to obtain the exercise of its rights to repayment of the loan by alternative means, such as loan modification, and tries instead to exclude incorrectly to his home. Count III according to the requests equitable relief. caused Countrywide moved for Summary Judgement as Count III to assert that the concept that justice abhors forfeiture "is not a free-standing.
Countrywide is the right to assert an independent claim does not count III. It is rather a request for equitable relief. Equitable relief, the success of the primary Kesling's claims and the court may grant such exemption if Kesling succeed on these claims. The court therefore rejects Summary Judgement on Count III.
E. Count IV: Eligibility for illegal charges
Count IV assured that Countrywide Kesling charges on that were not authorized by law or agreement in violation of West Virginia Code § § Rated 46A-2 to 127 (g) and -128 (c). In particular, alleges that Countrywide improperly Kesling inspection fees assessed to their account at least 17 occasions. Countrywide moved for Summary Judgement as Count IV on the grounds that she was legally entitled to charge Kesling controls.
As it relates to Count IV, § 46A-2-127 provides in relevant part as follows:
No debt collector any fraudulent, deceptive or misleading representation or means to collect or attempt is to collect the claims or to obtain information about consumers. Without limiting the general application of the above, the following behavior is hurting as this section:
(G) Any representation that an existing obligation of the consumer through the addition of attorney's fees, investigation fees, service fees or other fees or charges may be increased, when in fact such fees or charges may> not be legally added to the existing obligation ;
Id § 46A-2 to 127 (g). § 46A-2 to 128 (c) prohibits a debt collector from using "unfair or unconscionable means" in the "collection or the attempt from the consumer all or part of the debt collector's fee or for services rendered. Collecting "W. Va. Code § 46A-2 to 128 (c).
Countrywide said that the Deed of Trust he power to impose inspection fees on Kesling in the event of default. (See Def. 's Mot. Summ. J., of the trust agreement, CTW 0000211 ¶ 7 (provided that if a borrower fails to credit payments by the words "Lender can pay and do whatever necessary to protect the value It is necessary to make the property and the rights of creditors in the property "and that" Lender [a] ny amounts paid under this paragraph is an additional debt of the borrower and ensure that safety has become an instrument to be attached .")). The court agrees that this language in the Deed of Trust are authorized Countrywide Kesling reasonable fees for inspections of the property to ensure that it remained occupied and in acceptable condition. Further, unlike Kesling allegations, it seems not that § 46A-2 to 127 (g) Countrywide from the assessment of adequate control fees under the Deed of Trust, as it has not, the court finding that such fees prohibited presents could as defined in § 46A-2 to 127 (g) "are not legally incorporated to the existing obligation." On the contrary, § 46A-2 to 115 (a), any other provision of WVCCPA expressly permitted consumer loan contracts for the recovery of "reasonable costs" as a result of the "realization of a security interest." Id is created. § 46A-2 to 115 (a). This provision appears to Countrywide's legal authority to impose reasonable fees inspection. The Court is based, no basis for concluding on the undisputed facts that Countrywide, the inspection fees assessed in an "unfair or unconscionable" manner in violation of § 46A-2 to 128 (c). Since it appears that Countrywide was legally authorized to collect the inspection fees, it is entitled to summary ruling on Count IV.
IV Conclusion
For the foregoing reasons, the court orders as follows:
1. The Countrywide to apply for a Summary Judgement with respect to Counts I and III of the plaintiff amended its complaint and it is here denied.
2. The Countrywide to apply for a Summary Judgement with respect to Counts II and IV of the plaintiff amended its complaint and it is hereby granted, and Counts II and IV are dismissed with prejudice.
The office is directed to record copies of all the defenders and to provide to the applicant by registered letter with return receipt, at 43 and 1 / 2, Grass Lick Rd, Gassaway, West Virginia 26624th
