McDevitt v. Wells Fargo Bank, N.A.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROBERT M. MCDEVITT,

Plaintiff,

v. Civil Action No. 12-1297 (GK)

WELLS FARGO BANK, N.A.,

Defendant.

MEMORANDUM OPINION

Plaintiff Robert M. McDevitt ("McDevitt" or "Plaintiff")

brings this diversity action against Wells Fargo Bank, N.A.

("Wells Fargo" or "Defendant") for wrongful foreclosure, breach

of contract, and negligent infliction of emotional distress.

This matter is before the Court for reconsideration of

Defendant's Motion for Summary Judgment [Dkt. No. 19] and

Plaintiff's Motion for Summary Judgment on Liability and Partial

Summary Judgment on Damages [Dkt. No. 20]. Upon consideration

of the parties' Amended Joint Statement of Stipulated Facts

[Dkt. No. 31] and reconsideration of the Motions, Oppositions,

Replies, and the entire record herein, and for the reasons

stated below, the Court grants Wells Fargo's Motion and denies

Plaintiff's Motion.
I . BACKGROUND

A. Factual Background1

1. The Note and Deed of Trust

On July 18, 2003, McDevitt executed a 30-year Adjustable

Rate Mortgage Note ("Note") and Deed of Trust with World Savings

Bank for a $520,000 loan to purchase a private residence at 211

C St. NE in Washington D.C. (the "Property") . The loan had an

indexed interest rate that changed monthly and a monthly payment

that changed annually on September 1 of each year. See Affidavit

of Robert M. McDevitt, Ex. A (Note) ~ 2 [Dkt. No. 1-2].

At Paragraph 3 of the Note, McDevitt agreed that:

I will pay Principal and interest by making payments
every month.

I will make my monthly payments on the 1st day of each
month beginning on September 01, 2003. I will make
these payments every month until I have paid (i) all
the Principal and interest, and (ii) any other charges
described below that I may owe under this Note, and
(iii) any charges that may be due under the Security
Instrument [.]

The Note provided that McDevitt would be obligated to pay a late

charge if he did not pay his monthly payment within 15 calendar

days of the date it was due, and also that any failure to pay

1
Unless otherwise noted, the facts set forth herein are
undi"sputed and drawn from the parties' Amended Joint Statement
of Stipulated Facts [Dkt. No. 31].
-2-
the monthly payment on the due date constituted a default,

permitting the lender to accelerate the loan. Note~ 7(A)-(C).

McDevitt had the right to make advance payments on his

mortgage, subject to certain restrictions. Paragraph 5 of the

Note stated:

I HAVE THE RIGHT TO MAKE PAYMENTS OF PRINCIPAL AT ANY
TIME BEFORE THEY ARE DUE. A PAYMENT OF PRINCIPAL
BEFORE IT IS DUE IS CALLED A "PREPAYMENT." WHEN I
MAKE A PREPAYMENT, I WILL TELL THE LENDER IN WRITING
THAT I AM DOING SO. THE LENDER MAY REQUIRE THAT ANY
PARTIAL PREPAYMENT BE MADE ON THE SAME DATE THAT A
PAYMENT IS DUE. IF I MAKE A PARTIAL PREPAYMENT,
THERE WILL BE NO CHANGES IN THE DUE DATES OR AMOUNTS
OF MY PAYMENTS UNLESS THE LENDER AGREES IN WRITING TO
THOSE CHANGES [ . ]

Note ~ 5 (emphasis in original).

2. The April 14, 2008 Payment at Wachovia Bank

World Savings Bank (the holder of McDevitt's Note) was

subsequently acquired by Wachovia Corporation and, in late 2007,

changed its name to Wachovia Mortgage, FSB ( "Wachovia

Mortgage") . Wachovia Corporation also owned Wachovia Bank, N.A

( "Wachovia Bank" ) . Wachovia Bank and Wachovia Mortgage were

separate legal entities, but had a servicing agreement, which

enabled a Wachovia Mortgage customer to submit mortgage payments

at Wachovia Bank.

On April 14, 2008, McDevitt went to a Wachovia Bank branch

on Pennsylvania Avenue in Washington D.C. to make two mortgage

-3-
payments: one in the amount of $4,400i the other in the amount

of $25,000. On the subject line of his $4,400 check, McDevitt

wrote "4/01/08 payment." On the subject line of his $25, 000

check, McDevitt wrote "Deferred interest + pay off one year

principal payments." McDevitt orally instructed employees at

Wachovia Bank that he wanted the $25,000 check to be applied to

future monthly payments as they would come due. 2

Along with the two checks, McDevitt also submitted a

payment coupon of the kind he normally used to mail his payments

to Wachovia Mortgage. The payment coupon contained preprinted

text reciting four payment options: (1) a "Minimum Payment" of

$2,647i (2) an "Interest Only" payment of $3807.61i (3) a

"Sched. Principal and Interest" payment of $4317.33 i and (4) a

"15-Year Pmt. Plan" payment of $6,499.93. See Affidavit of

Robert M. McDevitt, Ex. C (photocopy of checks and payment

coupon) [Dkt. No. 1-2].

2
Although Wachovia Bank could accept a payment on behalf of
Wachovia Mortgage, it did not have access to the customer's
mortgage account and could not make any decisions as to how a
mortgage payment would be applied. However, McDevitt was not
aware of the distinction between Wachovia Mortgage and Wachovia
Bank. He believed that the "Wachovia" Bank branch that accepted
his payments was the same "Wachovia" entity holding his
mortgage, and was not told otherwise by the Wachovia Bank
personnel with whom he dealt on April 14, 2008.

-4-
 Next to these four options, the payment coupon included

lines for McDevitt to specify: (1) the amount of his payment,

( 2) any "Additional Amount to go to Principal/Deferred

Interest," and ( 3) the "Total Amount Enclosed." On the first

line, McDevitt wrote "4,400" to indicate his payment amount. On

the second line, McDevitt crossed out the words "Deferred

Interest," left unchanged the word "Principal," and added the

words "one year payments," such that (construed in the light

most favorable to McDevitt) the text read "Additional Amount to

go to Principal/ one year payments: $25, 000" On the third

line, he entered [$]29,400 for the total payment enclosed with

his payment coupon.

McDevitt asked the Wachovia Bank personnel with whom he

dealt for a receipt of his payment, and he received a single

page photocopy of the two checks along with his payment coupon.

The photocopy was date-stamped by Wachovia Bank and initialed by

the branch manager.

3. Wachovia's Application of the April 14 Payment

Wachovia Mortgage subsequently applied the $4,400 check to

McDevitt's regular monthly payment and the $25,000 check to

reduce his principal balance. When McDevitt received his

monthly mortgage statement in June 2 008, he learned that his

$2 5, 0 0 0 payment had not been held for future monthly payments,
-5-
as he requested, but applied to reduce his principal balance.

He then contacted Wachovia Mortgage to correct the application

of his payment, and was advised to "continue making payments

until we've resolved this." There is no evidence that McDevitt

made a record of the date on which this conversation took place

or the name of the individual with whom he spoke.

McDevitt continued to make his monthly mortgage payments

throughout all of 2008, 2009, and January 2010. During this

time, McDevitt made multiple telephone calls to Wachovia

Mortgage and Wells Fargo 3 and was given the same advice each

time: continue making his monthly payments until the application

of his $25,000 payment was resolved. Again, McDevitt did not

present evidence of the dates on which these conversations took

place, the names of the individuals with whom he spoke, or

whether such indi victuals worked for Wachovia Mortgage or Wells

Fargo.

In or around January 2010, McDevitt spoke by telephone with

a customer service representative who told him "Don't worry, its

handled" and implied that " [his] problem had been resolved."

This conversation left McDevitt with the impression that he was

not required to make any more loan payments for approximately 12

3
In late 2009, Wachovia Mortgage was merged into Wells Fargo
Bank but continued to trade under the name Wachovia Mortgage.

-6-
months starting in early 2010, although Wells Fargo Bank did not

send him anything in writing to confirm that his payment

scheduled had been modified. As with the other telephone calls,

McDevitt does not appear to have made any record of the date on

which this conversation took place or the name of the individual

with whom he spoke.

In February 2010, McDevitt stopped making his monthly

mortgage payments.

4. The Notice of Default

On February 22, 2010, Wachovia Mortgage wrote to McDevitt

to advise him that his mortgage payment due February 1, 2010 had

not been received. On March 18, 2010, Wachovia Mortgage again

wrote to McDevitt, expressing concern that his loan was then two

months in arrears, and proposing solutions to avoid foreclosure.

On April 5, 2010, Wachovia Mortgage sent McDevitt notice that

"Your loan has been approved for commencement of foreclosure

action which may cause you to lose your property and any owner's

equity." On June 4, 2010, Wachovia Mortgage sent McDevitt

another letter advising him of his loan's delinquent status and

providing information about the federal government's Home

Affordable Modification Program. Wells Fargo, as successor to

Wachovia Mortgage, then retained the law firm of Rosenberg &

Associates ("Rosenberg") to commence foreclosure proceedings.
-7-
 5. The Foreclosure Proceedings

Rosenberg's first contact with McDevitt appears to have

been through a "fair debt letter." The parties do not agree on

when the fair debt letter was mailed, but stipulated that the

letter was dated July 26, 2010, and that Michael Amos ("Amos"),

the individual in charge of McDevitt's foreclosure file at

Rosenberg, testified that the letter was drafted and mailed on

July 26, 2010. The parties further stipulated that McDevitt did

not receive the fair debt letter until September 2 or 3, 2010,

only a few days before the foreclosure sale, which was scheduled

for September 7. 4

The fair debt letter advised McDevitt of his default and

the amount then due on the Note. It also stated that if,

"within thirty (30) days of receipt of this letter," McDevitt

disputed all or a portion of the debt in writing, or requested

the name 'and address of the original creditor, Rosenberg would

cease collection of the debt until it obtained verification of

the debt and ascertained the name and address of the original

creditor.

On August 4, 2010, Rosenberg also sent McDevitt, by

certified mail, a Notice of Foreclosure Sale of Real Property

4
The parties proffer different theories as to why McDevitt did
not receive the fair debt letter until September, but these
theories are not material to the Court's analysis.
-8-
("foreclosure notice") . In fact, Rosenberg sent McDevitt two

such notices, one addressed to "Occupant" and the other

addressed to "Robert M. McDevitt." The foreclosure notice

advised McDevitt that, to satisfy his debt to Wells Fargo, his

Property was to be sold at a foreclosure sale on September 7,

2010 at 10:13 a.m. See Ex. C to McDevitt's Mot. (Foreclosure

Notice) [Dkt. No. 20-4]. However, McDevitt never received

either of the foreclosure notices, and both were returned

"unclaimed" by the U.S. Postal Service. No definitive

explanation was offered by either party as to why the notices

were "unclaimed."

At 9:27 a.m. on the morning of the foreclosure sale,

September 7, 2010, McDevitt emailed Rosenberg that he disputed

the debt and requested the name of the creditor to whom the debt

was owed. However, the foreclosure sale went forward, and later

that day, McDevitt's Property was sold at foreclosure to a third

party for $510,000. The next day, Amos responded to McDevitt's

email, and sent him verification of the debt and the name of the

creditor.

After the foreclosure, McDevitt continued to live at the

Property pending various legal challenges, but ultimately was

evicted in March 2012. He had $142,876.56 of equity in the

Property.
-9-
 B. Procedural Background

On August 3, 2012, McDevitt filed his Complaint alleging

claims for wrongful foreclosure, breach of contract, and

negligent infliction of emotional distress. [Dkt . No. 1] .

Wells Fargo moved to dismiss the Complaint pursuant to Fed. R.

Civ. P. 12 (b) (6), which the Court denied on September 25, 2012

[Dkt . No. 12] . On February 28, 2013, after discovery, Wells

Fargo filed a Motion for Summary Judgment [Dkt. No. 19] , and

McDevitt filed a cross Motion for Summary Judgment on Liability

and Partial Summary Judgment on Damages [Dkt. No. 20]. On March

14, 2013, the parties each filed Oppositions [Dkt. Nos. 21, 22],

and on March 28, 2013, they filed their Replies [Dkt. Nos. 23,

24] . On March 29, 2013, the Court denied the Motions in a one-

page Order, and referred the parties to a Magistrate Judge for

settlement. [Dkt. No. 25].

On May 8, 2013, after unsuccessful settlement negotiations,

the Court held a status conference and agreed to reconsider the

parties' Motions for Summary Judgment. The parties then filed

an Amended Joint Statement of Stipulated Facts [Dkt. No. 31] to

aid the Court in its reconsideration of the Motions. 5

5
The parties have stipulated to these facts for purposes of
summary judgment only.
-10-
II. STANDARD OF REVIEW

Summary judgment may be granted if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56(c); Arrington v. United States, 473

F.3d 329, 333 (D.C. Cir. 2006). To prevail on such a motion,

the moving party must demonstrate either that there is no

~genuine" factual dispute, or that any such dispute is not

~material" to the case. ~A dispute over a material fact is

'genuine' if 'the evidence is such that a reasonable jury could

return a verdict for the non-moving party. '" Arrington, 473

F.3d at 333 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247 (1986)). A fact is ~material" if it might affect the

outcome of the case under the substantive governing law.

Liberty Lobby, 477 U.S. at 248.

As the Supreme Court stated in Celotex Corp. v. Catrett,

~the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

-11-
trial." 477 u.s. 317/ 322 (1986). The Supreme Court has

further explained/

When the moving party has carried its burden under
Rule 56(c) its opponent must do more than simply show
1

that there is some metaphysical doubt as to the
material facts. Where the record taken as a
whole could not lead a rational trier of fact to find
for the non-moving party 1 there is no "genuine issue
for trial. 11

Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 1 475 U.S. 574 1

586-87 (1986) (footnote and citations omitted) .

In other words 1 "' [t] he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact. 1
" Scott v.

Harris 1 550 U.S. 372 1 380 (2007) (quoting Liberty Lobby I 477

U.S. at 247-48) (emphasis in original).

At the same time 1 the Supreme Court has also consistently

emphasized that the judge 1 s function on a motion for summary

judgment is not "to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue

for trial. 11
Liberty Lobby 1 477 U.S. at 249. "Credibility

determinations/ the weighing of the evidence/ and the drawing of

legitimate inferences from the facts are jury functions I not

those of a judge" deciding a motion for summary judgment. Id.

at 255; see also Reeves v. Sanderson Plumbing Prods. 1 Inc./ 530
-12-
u.s. 133, 150 (2000). Therefore, summary judgment is only

appropriate if the non-movant fails to offer any "evidence on

which the jury could reasonably find for the [non-movant] . "

Liberty Lobby, 477 U.S. at 252.

In deciding a motion for summary judgment, "the court must

draw all reasonable inferences in favor of the nonmoving party,

and it may not make credibility determinations or weigh the

evidence." Reeves, 530 U.S. at 150. Ultimately, the court must

determine "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."

Liberty Lobby, 477 U.S. at 251-52.

III. ANALYSIS

A. Wrongful Foreclosure

In Count I of the Complaint, McDevitt asserts a claim for

wrongful foreclosure. Under District of Columbia law, "an

action for wrongful or improper foreclosure may lie where the

property owner sustains damages by reason of a foreclosure

executed in a manner contrary to law." Johnson v. Fairfax Vill.

Condo. IV Unit Owners Ass'n, 641 A.2d 495, 505 (D.C. 1994)

(citation omitted). In his Complaint, McDevitt asserted that

Wells Fargo was liable for wrongful foreclosure because the

Rosenberg firm did not send him written notice of foreclosure as
-13-
required under District of Columbia law. Compl. ~ 34 (citing

D.C. Code §§ 42-815; 42-815.01). However, McDevitt now concedes

that Rosenberg did comply with the District of Columbia notice

provisions by sending him the foreclosure notice in August, even

if he never received it. Pl.'s Opp'n at 20 [Dkt. No. 22].

Consequently, the disagreement between the parties as to the

date of mailing the notice of foreclosure is no longer material.

McDevitt now argues, however, that Rosenberg violated the

federal Fair Debt Collection Practices Act ( "FDCPA") in failing

to halt the foreclosure sale on his Property after he disputed

the debt. Id. at 21-23. He further contends that this

violation may serve as the predicate for a wrongful foreclosure

claim under District of Columbia law because it resulted in his

foreclosure being "executed in a manner contrary to law." Id.

at 23-27.

1. Relevant Provisions of the FDCPA

The FDCPA provides, in relevant part, that in connection

with the collection of any debt, a debt collector must send

written notice to the debtor specifying the amount of debt, the

name of the creditor to whom it is owed, and a statement that,

within 30 days of receipt of the written notice, the debtor may

request certain information relating to debt. 15 u.s.c. §

1692g (a) Further,
-14-
 [i] f the consumer notifies the debt collector in writing
within [30 days of receipt of the notice] that the debt, or
any portion thereof, is disputed, or that the consumer
requests the name and address of the original creditor, the
debt collector shall cease collection of the debt
until the debt collector obtains verification of the debt .
. or the name and address of the original creditor, and a
copy of such [information] is mailed to the consumer by the
debt collector.

15 U.S.C.A. § 1692g(b).

McDevitt contends that the Rosenberg firm violated section

1692g (b) of the FDCPA when it did not postpone the foreclosure

sale after being notified that the debt was disputed, nor send

him the requested information until the following day.

McDevitt does not cite, and the Court has not found, any

case in which a plaintiff was permitted to use an FDCPA

violation as a predicate for a claim for wrongful foreclosure

under District of Columbia law. 6 Even assuming, however, that a

wrongful foreclosure claim may be based on a violation of the

6
As McDevitt concedes, Pl.'s Opp'n at 25, courts considering
claims for wrongful foreclosure have generally assumed that
foreclosure is not wrongful where it complies with the District
of Columbia notice provisions. See, e.g., Kibunja v. Alturas,
LLC, 856 A.2d 1120, 1123, 1129 (D.C. 2004) (assuming that law
applicable to claim for wrongful foreclosure was District of
Columbia notice statute where "main thrust of [plaintiff's case]
was that they were not given adequate notice" of foreclosure
sale) (citing Johnson, 641 A.2d at 504); Young v. 1st Am. Fin.
Servs., 992 F. Supp. 440, 445 (D.D.C. 1998) (reasoning that
where "defendants did not violate [D.C. notice statute]
any foreclosure that occurred was not wrongful").
-15-
FDCPA, an issue the Court need not reach, McDevitt's claim fail·s

because Wells Fargo is not a proper defendant under the FDCPA.

2. The FDCPA Only Applies to "Debt Collectors"

With one exception, not applicable here, the FDCPA applies

only to "debt collectors," defined as persons whose principal

business is the collection of debt or who "regularly collect[]

debts owed or due or asserted to be owed or due another."

15 U.S.C. § 1692a(6). A creditor, such as Wells Fargo, by

contrast, is not a debt collector and is not subject to the

FDCPA unless it acquires a debt in default solely for the

purpose of facilitating collection of such debt. See 15 U.S.C.

§ 1692a (4), (6) . Because the parties agree that Wells Fargo

acquired McDevitt's debt in 2009 as part of a merger with

Wachovia Mortgage, and that McDevitt's loan was not in default

at that time, Wells Fargo indisputably is a creditor, not a

"debt collector."

McDevitt devotes much of his papers to the question of

whether the Rosenberg firm is a "debt collector." However,

Rosenberg's status as a debt collector is immaterial unless

Wells Fargo may be held vicariously liable for the firm's debt

collection activities. McDevitt presents no evidence suggesting

Wells Fargo had the right to control Rosenberg in its

foreclosure activities, which is an essential prerequisite to
-16-
any claim based on vicarious liability. See, e.g., Moorehead v.

Dist. of Columbia, 747 A.2d 138, 146 (D.C. 2000) (relationship

based on control "is the decisive factor in vicarious liability

analysis") . 7

Therefore, McDevitt cannot bring such an FDCPA claim

against Wells Fargo because, as a matter of law, the FDCPA does

not apply to Wells Fargo in its capacity as a creditor. 8

Accordingly, summary judgment shall be granted in favor of Wells

Fargo on Count I.

B. Breach of Contract

In Count II of the Complaint, McDevitt asserts a claim for

breach of contract. The interpretation of a facially clear

7
It also is questionable whether a creditor that is not also a
debt collector may ever be held vicariously liable under the
FDCPA. See, e.g. , Wadlington v. Credit Acceptance Corp. , 76
F.3d 103, 108 (6th Cir. 1996) ("We do not think it would accord
with the intent of Congress . for a company that is not a
debt collector to be held vicariously liable for a collection
suit filing that violates the Act only because the filing
attorney is a 'debt collector.'"); Townsend v. Fed. Nat. Mortg.
Ass'n, No. 3:12-cv-00045, 2013 WL 549263, at *10 (W.D. Va. Feb.
12, 2013) (" [C]reditors [may not] be held vicariously liable for
FDCPA violations by independent debt collectors acting on their
behalf.") (citation omitted). The Court of Appeals in this
Circuit has not yet addressed this issue.
8
Further, as Wells Fargo points out, McDevitt most probably is
time-barred from bringing any claim under the FDCPA itself
because the FDCPA has a one-year statute of limitations for
civil actions. See 15 U.S.C. § 1692k(d). However, it is not
necessary to reach this issue in light of the Court's ruling
above.

-17-
contract is a question of law to be resolved by the court. See,

e.g., NRM Corp. v. Hercules, Inc., 758 F.2d 676, 682 (D.C. Cir.

1985). Thus, where a contract is unambiguous, summary judgment

is appropriate, "'since, absent such ambiguity, a written

contract duly signed and executed speaks for itself and binds

the parties without the necessity of extrinsic evidence.'"

Angulo v. Gochnauer, 772 A.2d 830, 834 (D.C. 2001) (citation

omitted). A contract is ambiguous when "the provisions in

question are reasonably susceptible of different constructions

or interpretations." 1901 Wyoming Ave. Co-op. Ass'n v. Lee, 345

A.2d 456, 461 n.7 (D.C. 1975).

McDevitt argues that Wells Fargo's Motion should be denied

because the parties dispute: (1) how often a payment needed to

be made under the contract, (2) "the mechanism for contract

alterations," and (3) whether his $25,000 payment was applied

properly. P1 . ' s Opp' n at 15 , 16 , 18 . 9 However, as discussed

below, the Note unambiguously required McDevitt to make monthly

payments, and further required that any modifications to his

payment schedule be made in writing. Therefore, the Court may

resolve the first two disputes as a matter of law. Because

9
McDevitt also argues that the parties dispute why he stopped
making his mortgage payments, Pl.'s Opp'n at 19, but McDevitt's
motivation for not paying his mortgage is immaterial to the
legal issues presented in the Motions.
-18-
there is no genuine dispute that McDevitt stopped making his

monthly payments without obtaining the Bank's agreement in

writing, the third issue is not relevant to disposition of the

claim.

1. The Note Required McDevitt to Make Payments
Every Month

McDevitt first argues that although he failed to make

payments in February through September of 2010, he was not in

default because his advance payment of $25,000 in April 2008

satisfied the payments otherwise due for that period of time.

McDevitt contends that his action was consistent with Paragraph

3 of the Note, which he construes to mean that so "long as a

borrower . . submitted a payment for each month," the borrower

was not literally required to make a payment each month. Pl.'s

Opp'n at 15. (emphasis in Pl.'s Opp'n)

However, the Note does not require payments "for" every

month. It clearly states that McDevitt was required to "pay

Principal and interest by making payments every month [,]

on the 1st day of each month," and "every month [thereafter]

until [he had] paid [ ] all the Principal and interest[.]" Note

~ 3 (emphasis added) . This language does not merely set the

-19-
total dollar amount which McDevitt was to have paid off, it also

dictates the precise frequency and timing of each payment. 10

Moreover, Paragraph 5 addressed how, if at all, McDevitt,s

payment schedule would be affected in the event he made an

advance payment. It states:

IF I MAKE A PARTIAL PREPAYMENT, THERE WILL BE NO
CHANGES IN THE DUE DATES OR AMOUNTS OF MY PAYMENTS
UNLESS THE LENDER AGREES IN WRITING TO THOSE CHANGES.

Therefore, McDevitt,s argument that his advance payment

relieved him of the obligation to make future monthly payments

is inconsistent with the plain language of the Note, which

literally required payments "each,, and "every 11
month for the

life of the loan, regardless of any prepayments, unless the

lender agreed otherwise in writing.

2. The Writing Requirement Was Not Modified by the
Bank's Conduct

McDevitt also argues that "despite whatever the loan

agreements said[,] the Bank,s actual practice was to simply

alter [the contract, s] terms verbally at McDevitt, s request [.] 11

Pl. , s Opp, n at 17. McDevitt points to instances in which the

Bank orally agreed to waive his late fees. From these

10
McDevitt appears to have had a limited right to pay less than
the full amount of interest due each month, with the result that
any deficiency would be added to his principal balance as
deferred interest. See Note ~ 3 (E) - (F) This feature of the
Note is not at issue.
-20-
occasions, he reasons that "a reasonable juror could infer that

[his payment schedule had been verbally modified because] the

Bank granted special accommodations verbally and as a

matter of course." Id.

However, McDevitt does not articulate any legal theory by

which the Bank's verbal waiver of late fees on a case-by-case

basis affected its future right to require that any

modifications to his payment schedule be in writing. McDevitt

suggests that the Bank's waiver of late fees is relevant because

"the contract between the parties left out important details and

policies, leaving them to be determined outside the contract as

they arose. " Id. This argument is simply incorrect as it

relates to his payment schedule. As discussed above, the Note

did not "le[ave] out important details" regarding McDevitt's

payment schedule or the manner in which it would be modified.

Therefore, McDevitt may not use extrinsic evidence in an attempt

to contradict the Note's plain and unambiguous terms.

To the extent McDevitt is arguing that the Bank's conduct

over the course of the loan somehow waived the writing

requirement in its entirety, he is also incorrect. While a

party may waive its rights under a contract, a court will not

infer waiver from the party's conduct absent a "'clear,

unequivocal and decisive act of the party who is claimed to have
-21-
waived its rights, so consistent with an intention to waive that

no other reasonable explanation is possible.'" Kersey v.

Washington Metro. Area Transit Auth., 533 F. Supp. 2d 181, 196

(D.D.C. 2008) (quoting 13 Williston on Contracts § 39:28 at 626-

27 (4th ed. 2000)). The Bank's occasional oral waiver of late

fees is not evidence - and certainly is not clear, unequivocal

and decisive evidence - that the Bank abandoned the right at

issue in this case, namely that McDevitt's monthly payment

schedule could not be changed unless the Bank agreed in writing

to any such change.

McDevitt concedes that "no writing exists now or has

existed altering the contract's terms." Pl.'s Opp'n at 17.

Therefore, for all the foregoing reasons, the Court shall, as a

matter of law, grant summary judgment in favor of Wells Fargo on

Count II.

C. Negligent Infliction of Emotional Distress

Finally, in Count III, McDevitt asserts a claim for

negligent infliction of emotional distress. Under District of

Columbia law,

[A] plaintiff may recover for negligent infliction of
emotional distress if the plaintiff can show that (1)
the defendant has a relationship with the plaintiff,
or had undertaken an obligation to the plaintiff, of a

-22-
 nature that necessarily implicates the plaintiff's
emotional well-being, (2) there is an especially
likely risk that the defendant's negligence would
cause serious emotional distress to the plaintiff, and
(3) negligent actions or omissions of the defendant in
breach of that obligation have, in fact, caused
serious emotional distress to the plaintiff.

Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810-11

(D.C. 2011).

The parties devote most of their papers to the

question of whether Wells Fargo and its predecessors in

interest undertook any special relationship with McDevitt

that satisfies the first prong of the test set forth in

Hedgepeth. Wells Fargo argues that it had no duty to avoid

negligent infliction of emotional distress because the

nature of its relationship with McDevitt was purely

contractual. Def. 's Mem. P & A at 19-22. In particular,

it notes Hedgepeth's statement that a duty to avoid the

negligent infliction of emotional distress generally does

not arise where the purpose of a particular relationship or

undertaking is not "to care for the plaintiff's emotional

well-being [but] to obtain a financial, commercial or legal

objective, even if its non-attainment due to [the

defendant's] negligence is emotionally distressing to the

[plaintiff] . " Hedgepeth, 22 A.3d at 815 (citations

-23-
omitted) . This language squarely covers the facts of this

case.

Even assuming the Bank did owe McDevitt a duty to

avoid negligent infliction of emotional distress, McDevitt

has not put forth any evidence that the Bank ever breached

it. McDevitt suggests only two theories by which he seeks

to hold the Bank liable for negligent infliction of

emotional distress.

First, he contends that the Bank was negligent in

failing to apply his $25,000 payment in the manner he

directed. See Compl. ~ 46. This theory merely restates

his breach of contract claim, and does not give rise to a

separate claim for negligence. Cf. Choharis v. State Farm

Fire and Cas. Co., 961 A.2d 1080, 1089 n.12 (D.C. 2008)

(allegation of negligent performance of insurance contract

"does not mean that there is a separate cause of action

sounding in tort for negligence, but rather that the

[plaintiff] may recover damages therefor under a breach of

contract theory") (citing Myers v. Firemen's Ins. Co. of

Washington, D.C., 274 F.2d 84, 86 (D.C. Cir. 1959)).

Second, McDevitt suggested in his Opposition to

Defendant's Motion for Summary Judgment that the Rosenberg

firm was negligent for failing to send him proper notice of
-24-
the foreclosure sale or for "wrongfully foreclosing on

[his] home." Pl.'s Opp'n at 31; see also Compl. ~~ 45-47.

However, McDevitt now concedes that the firm did send him

notice of foreclosure more than a month before the

foreclosure sale; he just didn't receive it.

Even assuming McDevitt has raised a genuine issue of

fact that Rosenberg was negligent in failing to mail the

fair housing letter in a timely fashion, he still has not

set out any basis on which a jury could find Wells Fargo

liable for the firm's purported negligence. Although he

recites the general rule that "[u]nder standard agency

principles, [a] principal is liable for the negligence of

its agent," he does not cite any case in which a client was

held vicariously liable for the negligence of its attorney.

Pl.'s Opp'n at 30.

Further, the weight of authority provides that a

client generally is not vicariously liable for its

attorney's torts, absent evidence that the client directed,

controlled, authorized, or ratified the attorney's

allegedly tortious conduct. See Horwitz v. Holabird &

Root, 212 Ill.2d 1, 12-14 (Ill. 2004) ("[W]hen attorneys

act pursuant to the exercise of independent professional

judgment they are presumptively independent
-25-
contractors for purposes of imposing vicarious liability.")

(citing cases); Givens v. Mullikin ex rel. Estate of

McElwaney, 75 S.W.3d 383, 398 (Tenn. 2002) ("'Unless a

client is implicated in some way other than merely being

represented by the attorney the client cannot be

liable for the attorney's conduct.'") (quoting Bradt v.

West, 892 S.W.2d 56, 76-77 (Tex. App. 1994)).

As discussed earlier, McDevitt points to no evidence

suggesting that Wells Fargo had any input into, or control

over, the manner in which the Rosenberg firm conducted the

foreclosure proceedings: Further, McDevitt does not

suggest any way in which Wells Fargo may have been

negligent in selecting Rosenberg as its foreclosure

counsel. Accordingly, even assuming Wells Fargo did have a

duty to McDevitt to avoid the negligent infliction of

emotional distress, there is no basis on which a reasonable

jury could find by a preponderance of the evidence that

Wells Fargo breached its duty, or is vicariously liable for

any purported negligence of Rosenberg.

As the Supreme Court said in Liberty Lobby, summary

judgment should be granted where there is no "evidence on

which the jury could reasonably find for the plaintiff."

-26-
477 U.S. at 252. Therefore, the Court shall grant summary

judgment in favor of Wells Fargo on Count III.

IV. CONCLUSION

For the foregoing reasons, Wells Fargo's Motion is granted,

and McDevitt's Motion is denied. An Order shall accompany this

Memorandum Opinion.

May 29, 2013 Glf!ss&t ~~
United States District Judge

Copies to: attorneys on record via ECF

-27-