Covington v. JP Morgan Chase , 62 F. Supp. 3d 47 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
JAMES T. COVINGTON, )
)
Plaintiff, )
)
and )
)
ALFREDA TURNBOW, )
) Civil Action No. 9-30 (EGS)
Intervenor- )
Plaintiff, )
)
v. )
)
JP MORGAN CHASE, et al., )
)
Defendants. )
_______________________________)
MEMORANDUM OPINION
Plaintiff James Covington and intervenor-plaintiff Alfreda
Turnbow bring a number of claims against the defendants, JP
Morgan Chase and Deutsche Bank, related to a home mortgage loan.
Pending before the Court is defendants’ motion for summary
judgment and for judgment on the pleadings. Upon consideration
of the motion, the response and reply thereto, the applicable
law, and the entire record, the Court GRANTS defendants’ motion.
I. BACKGROUND
A. Factual Background
On June 26, 2006, James Covington and Alfreda Turnbow obtained
a $475,000 home mortgage loan (“the Loan”) from Long Beach
Mortgage Company. See Mortgage Note, ECF No. 62-2 at 1. The
mortgage was secured by a deed of trust on the property, which
is located at 7247 15th Place, NW in Washington, D.C (“the
Property”). See Deed of Trust, ECF No. 62-3. On July 1, 2006,
Long Beach Mortgage Company was merged into Washington Mutual
Bank (“WaMu”). See Prospectus, ECF No. 74-2 at 7.
On August 1, 2006, WaMu and Deutsche Bank entered into a
Pooling and Servicing Agreement regarding a number of mortgage
loans. See Pooling & Servicing Agreement, ECF Nos. 74-6, 74-7,
74-8. That agreement provided that the Long Beach Mortgage Loan
Trust 2006-7 (“the Trust”) would become the owner of the Loan,
that Deutsche Bank would be trustee, and that WaMu would remain
the Loan’s servicer. See Pooling & Servicing Agreement, ECF No.
74-6 at 35, 69, 74, 81. The Agreement also prohibited the Trust
from “guarantee[ing] or otherwise assum[ing] liability for the
debts of any other party.” Id. at 97. Plaintiffs’ Loan was sold
to the Trust on August 24, 2006.1
On July 9, 2008, James Covington and Ronald Anderson—an
individual who was not party to the original mortgage—executed a
loan modification with WaMu. See Modification, ECF No. 62-4. In
1
To the extent there was ever doubt that plaintiff’s particular
loan was sold to the Trust, the unrebutted record dispels it.
The Mortgage Loan Purchase Agreement provides that the loans to
be sold are listed on the “Closing Schedule,” which “shall be
the Mortgage Loan Schedule under the Pooling and Servicing
Agreement.” See Mortgage Loan Purchase Agreement, ECF No. 74-9
at 2. Defendants submitted an excerpt of the Mortgage Loan
Schedule, which lists plaintiffs’ Loan as one of those that was
sold to the Trust. See Mortg. Loan Schedule, ECF No. 74-10 at 2.
2
signing the modification, Covington and Anderson affirmed that
they were “the current owner[s] of record of the Subject
Property,” and that “[n]o other persons or business entities
have ownership, management, or control of the Subject Property.”
Id. at 3. Nonetheless, Alfreda Turnbow—who was a party to the
mortgage—was not a party to the modification. See id. at 2.
During August 2008, Alfreda Turnbow repeatedly contacted WaMu
to notify it that the Loan had been modified without her
involvement or consent. See Declaration of Kendall Foster
(“Foster Decl.”), ECF No. 98-1 ¶¶ 3.A–F; Exs. A–F to Foster
Decl. On August 15, 2008, she submitted to WaMu an identity-
theft affidavit, which stated that James Covington, Ronald
Anderson, and Ronald Anderson’s wife, Aquanetta Anderson, had
stolen her identity to obtain the loan modification. See
Identity Theft Aff., ECF No. 98-1 at 13–14. Ms. Turnbow
contacted WaMu once more on September 23, 2008, and was informed
that the modification had been rescinded. See Foster Decl. ¶
3.F; Ex F. to Foster Decl.
Meanwhile, WaMu entered into receivership and the Federal
Deposit Insurance Corporation (“FDIC”) took over as receiver.
See Purchase & Assumption Agreement, ECF No. 62-5 at 6. JP
Morgan Chase then agreed to purchase WaMu and, on September 25,
2008, entered into a Purchase and Assumption Agreement with the
FDIC. See id. The Agreement provides that JP Morgan Chase
3
“specifically assume[d] all mortgage servicing rights and
obligations of [WaMu].” Id. at 13. JP Morgan Chase also agreed,
“[s]ubject to Section[] 2.5,” to assume “all of the liabilities
of [WaMu] which are reflected on the Books and Records of
[WaMu].” Id. Section 2.5 limited JP Morgan Chase’s assumption of
liability with respect to “Borrower Claims”:
[A]ny liability associated with borrower claims for
payment of or liability to any borrower for monetary
relief, or that provide for any other form of relief
to any borrower, whether or not such liability is
reduced to judgment, liquidated or unliquidated, fixed
or contingent, matured or unmatured, disputed or
undisputed, legal or equitable, judicial or extra-
judicial, secured or unsecured, whether asserted
affirmatively or defensively, related in any way to
any loan or commitment to lend made by [WaMu] prior to
failure, or to any loan made by a third party in
connection with any loan which is or was held by
[WaMu], or otherwise arising in connection with
[WaMu’s] lending or loan purchase activities are
specifically not assumed by [JP Morgan Chase].
Id. at 14.
B. Procedural History
In 2007, Alfreda Turnbow sued Ronald and Aquanetta Anderson in
the Superior Court of the District of Columbia. James Covington
was joined as a necessary party because the suit sought to
adjudicate “the status of title to” the Property. Turnbow v.
Anderson, No. 2007-CA-5895, slip op. at 1 (D.C. Super. Ct. July
20, 2009). The crux of the dispute was whether the Andersons had
been granted an interest in the Property, even though they were
not party to the mortgage. On January 8, 2009, while that
4
lawsuit was pending, James Covington, Ronald Anderson, and
Aquanetta Anderson filed this lawsuit against JP Morgan Chase
and Deutsche Bank regarding the origination and servicing of the
Loan, and the execution of the modification.
On July 20, 2009, the Superior Court issued a final decision
in Alfreda Turnbow’s lawsuit, finding that “Aquanetta Anderson
and Ronald Anderson do not hold any legal title to the subject
property” and “have no equitable interest in the property.” Id.
at 19–20. The Court rejected the Andersons’s claim that Alfreda
Turnbow had granted them a quitclaim deed because the document
they relied on was “a transparent and amateurish fraud.” Id. at
12. In any event, the Court held, such a deed would be “an
illegal conveyance” because WaMu retained an interest in the
Property under the deed of trust, giving Ms. Turnbow “no right
to transfer her interest in the property to anyone.” Id. at 14.
The day after the Superior Court’s decision, the plaintiffs in
this case—the Andersons and Mr. Covington—moved for partial
summary judgment. Pls.’ Mot. for Summ. J., ECF No. 10. The
defendants responded with a motion for summary judgment on
September 4, 2009, claiming that judgment should be entered
against the Andersons due to their lack of a legal interest in
the property, and also arguing that Alfreda Turnbow was a
necessary party under Federal Rule of Civil Procedure 19. See
Defs.’ First Mot. for Summ. J., ECF No. 16 at 9–10, 12–14.
5
Proceedings before this Court were subsequently stayed pending
an appeal of the Superior Court’s decision. On July 11, 2011,
the D.C. Court of Appeals affirmed the Superior Court’s ruling
that Ronald and Aquanetta Anderson “have neither a legal nor
equitable interest in the property located at 7247 15th Place,
N.W.” and “that the alleged quitclaim deed was fraudulent.”
Anderson v. Turnbow, No. 9-CV-905, slip op. at 1, 5 (D.C. July
11, 2011).
Accordingly, on September 14, 2011, this Court entered summary
judgment against the Andersons on all of their claims, holding
that they were precluded by “the doctrine of collateral
estoppel.” See Minute Order of September 14, 2011. The Court
also dismissed Mr. Covington’s claims, subject to the filing of
an amended complaint joining Alfreda Turnbow. See id.
On October 13, 2011, Mr. Covington filed an amended complaint.
See Second Am. Compl., ECF No. 27.2 The Second Amended Complaint
alleges seven “counts,” which raise overlapping legal claims.
See id. ¶¶ 19-65. The legal claims challenge alleged wrongdoing
in connection with: (1) the origination and servicing of the
Loan (including allegations that the defendants did not make
required disclosures, included illegal terms in the Loan,
2
Plaintiff refers to this as his Third Amended Complaint, while
defendants note that it is the third complaint that he has
filed, making it the Second Amended Complaint. The parties are
referring to the same document, which the Court calls the Second
Amended Complaint.
6
accepted kickbacks, and fraudulently induced Mr. Covington to
enter the Loan); (2) the modification agreement (including
allegations that the defendants breached that agreement, failed
to make required disclosures, and fraudulently induced Mr.
Covington to enter the agreement); and (3) a foreclosure action.
See id. In addition, Mr. Covington appears to request a
declaratory judgment that the modification is valid and that
defendants do not have the right to enforce the Loan. See id. ¶¶
46–53. Ms. Turnbow filed a complaint on February 21, 2012, which
consists largely of statements indicating her agreement with the
Second Amended Complaint. See Turnbow Compl., ECF No. 32.
On August 8, 2012, the defendants filed the pending motion for
summary judgment and judgment on the pleadings. See Mem. in
Supp. of Mot. for Summ. J. (“Mem.”), ECF No. 62-1. Ms. Turnbow
and Mr. Covington subsequently filed separate, nearly identical,
motions seeking permission to conduct discovery on a wide array
of topics. See Turnbow Mot. for Discovery, ECF No. 65; Covington
Mot. for Discovery, ECF No. 66. The Court granted these motions
in part and ordered the production of certain documents related
to the assumption of plaintiff’s specific loan and subsequent
communications related to the Loan. See Order, ECF No. 71 at 1–
2. The Court also stayed defendants’ motion for summary judgment
pending mediation. See id. at 2.
7
While mediation was ongoing, Mr. Covington and Ms. Turnbow
filed similar motions seeking leave to take depositions of “a
J.P. Morgan Chase custodia[n] of records and an Executive member
who are familiar with the purchase of the Washington Mutual Bank
and the Purchase and Assumption Agreement.” Covington Mot., ECF
No. 78 at 1; Turnbow Mot., ECF No. 79 at 1. On August 26, 2013,
after mediation had concluded, the Court denied the motions and
ordered the parties to complete briefing of defendants’ motion
for summary judgment. See Order, ECF No. 96 at 2. Mr. Covington
filed his opposition brief on October 15, 2013. See Opp. to Mot.
for Summ. J. (“Opp.”), ECF No. 97.3 The defendants filed their
reply brief on October 31, 2013. See Reply in Supp. of Mot. for
Summ. J. (“Reply”), ECF No. 98.
II. STANDARD OF REVIEW4
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only if the moving party has shown
that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56;
3
Ms. Turnbow did not file an opposition. Although Mr.
Covington’s filing purported also to be on her behalf, Mr.
Covington is not an attorney. Accordingly, the motion is GRANTED
AS CONCEDED as to Ms. Turnbow. In any event, her claims fail for
the same reasons that Mr. Covington’s claims fail.
4
The defendants move for summary judgment and for judgment on
the pleadings. In light of the introduction of evidence by all
parties, the Court considers the entire record and treats the
motion as one for summary judgment.
8
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material
fact is one that is capable of affecting the outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue exists where the “evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. A court considering a motion for summary judgment
must draw all “justifiable inferences” from the evidence in
favor of the nonmovant. Id. at 255. To survive a motion for
summary judgment, however, the requester “must do more than
simply show that there is some metaphysical doubt as to the
material facts”; instead, the nonmoving party must come forward
with “‘specific facts showing that there is a genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986) (quoting Fed. R. Civ. P. 56(e)).
III. DISCUSSION
The vague and overlapping nature of Mr. Covington’s claims
render them unsuitable to a count-by-count analysis. Instead,
the Court addresses them in groups: (1) plaintiff’s claims that
predate the purchase of WaMu by JP Morgan Chase; (2) plaintiff’s
claims regarding an alleged breach of the modification
agreement; (3) plaintiff’s foreclosure-related claims; and (4)
plaintiff’s apparent request for a declaratory judgment.5
5
In his opposition, plaintiff raised new legal claims that were
not part of his Second Amended Complaint. See Opp. at 25–34;
9
A. Plaintiff’s Pre-September 25, 2008 Claims.
Plaintiff seeks to hold the defendants responsible for
wrongdoing in connection with the origination of the Loan, the
subsequent servicing of the Loan, and the execution of the
modification. See Second Am. Compl., ECF No. 27 ¶¶ 22, 25, 31–32
(p. 12), 33 (pp. 13–14), 34–36, 42–45, 48, 55–65. Judgment must
be granted to defendants on these claims because plaintiff
provided nothing to link Deutsche Bank to the relevant actions,
and the Purchase and Assumption Agreement bars the claims
against JP Morgan Chase.
1. The Record Contains No Facts Linking Deutsche Bank to
the Alleged Wrongdoing.
The allegations related to the origination of the Loan predate
Deutsche Bank’s involvement, which began when the Loan was sold
to the Trust. See Pooling & Servicing Agreement, ECF Nos. 74-6,
74-7, 74-8. Moreover, the Pooling and Servicing Agreement
disclaimed the assumption of any liabilities by the Trust. See
Pooling & Servicing Agreement, ECF No. 74-6 at 97. Plaintiff has
offered neither evidence nor argument to show that Deutsche Bank
is legally responsible for prior wrongdoing by other parties.
Plaintiff’s allegations regarding the servicing of the Loan
and the execution of the modification agreement concern events
Reply at 15–17. “To the extent that plaintiff seeks to add
[legal] claims . . . by raising them for the first time in his
opposition . . . the attempt must be rejected.” Banks v. York,
515 F. Supp. 2d 89, 97 n.2 (D.D.C. 2007)).
10
that occurred after Deutsche Bank became trustee, but the record
is devoid of evidence linking Deutsche Bank to the servicing of
the Loan or the execution of the modification, much less the
specific actions plaintiff challenges. The Court therefore
GRANTS summary judgment to Deutsche Bank on these claims.6
2. The Purchase and Assumption Agreement Bars Claims
Against JP Morgan Chase for WaMu’s Conduct.
JP Morgan Chase could conceivably be liable for these claims
because although it did not become the servicer of the Loan
until September 25, 2008, it assumed some of WaMu’s liabilities.
See Purchase & Assumption Agreement, ECF No. 62-5 at 6. The
Purchase and Assumption Agreement, however, indicated that JP
Morgan Chase would not assume:
[A]ny liability associated with borrower claims for
payment of or liability to any borrower for monetary
relief, or that provide for any other form of relief
to any borrower . . . related in any way to any loan
or commitment to lend made by [WaMu] prior to failure,
or to any loan made by a third party in connection
with a loan which is or was held by [WaMu], or
otherwise arising in connection with [WaMu’s] lending
or loan purchase activities are specifically not
assumed by [JP Morgan Chase].
Id. at 14. The Agreement thus “leaves the FDIC as the
responsible party with respect to [borrower] claims.” Hilton v.
6
Deutsche Bank argues that none of plaintiff’s claims against it
may stand for the same reason. See Mem. at 11. Deutsche Bank is
correct that plaintiff has not introduced facts to link it to
the alleged foreclosure and breach of the modification
agreement. In any event, judgment must be granted for Deutsche
Bank on these claims for the reasons discussed in Parts III.B–C.
11
Wash. Mut. Bank, No. 09-1191, 2009 WL 3485953, at *3 (N.D. Cal.
Oct. 28, 2009) (quotation marks omitted); see also Yeomalakis v.
FDIC, 562 F.3d 56, 60 (1st Cir. 2009) (“[w]hen Washington Mutual
failed, Chase . . . acquired many assets but its agreement with
the FDIC retains for the FDIC any liability associated with
borrower claims”) (quotation marks omitted); Dubois v. Wash.
Mut. Bank, No. 09-2176, 2010 WL 3463368, at *3 (D.D.C. Sept. 3,
2010). Accordingly, all of plaintiff’s claims regarding WaMu’s
conduct are barred against JP Morgan Chase.7 The Court therefore
GRANTS summary judgment to JP Morgan Chase with respect to those
legal claims.
JP Morgan Chase is incorrect, however, to argue that the
Purchase and Assumption Agreement bars all of plaintiff’s
claims. See Mem. at 7–10. Plaintiff’s allegations regarding
breaches of the modification agreement, Second Am. Compl., ECF
No. 27 ¶¶ 23, 25(d), 27, 33 (p. 12), and his foreclosure-related
allegations, id. ¶¶ 20, 23, 25(d), 28, 47, 50–51, appear to
address events after September 25, 2008, and his request for
declaratory relief is prospective. Id. ¶¶ 21, 27–28, 46–53.
7
Plaintiff’s sole argument on this point relies on a brief filed
by Deutsche Bank addressing a distinct issue in another case.
See Opp. at 7 (citing Pl.’s Opp. to Mot. to Dismiss, Deutsche
Bank v. FDIC, No. 9-cv-1656-RMC (D.D.C. Jan. 14, 2011), ECF No.
56). That brief addressed a dispute over the liability assumed
by JP Morgan Chase, but did not relate to liability for borrower
claims, which are specifically excluded by Section 2.5 of the
Agreement. Accordingly, the brief is irrelevant.
12
B. The Alleged Breach of the Modification Agreement.
The second group of claims relate to allegations that the
defendants breached the modification agreement. See Second Am.
Compl., ECF No. 27 ¶¶ 22–23, 25(d), 27, 33 (p. 12). Defendants
argue that they are entitled to summary judgment on these claims
because the failure to obtain Alfreda Turnbow’s consent renders
the modification agreement void. See Mem. at 12–17. The Court
agrees.
“The parties to a contract are free to modify that contract by
mutual consent.” Hershon v. Hellman Co., 565 A.2d 282, 283 (D.C.
1989) (emphasis added); see also Duvall v. Bumbray, 423 B.R.
383, 389 (D.D.C. 2010) (“Contracting parties are free to modify
their original contract, but such modification requires mutual
consent”). Moreover, “[t]he burden is on the party arguing that
the contract has been modified to establish the elements of
contract formation.” St. Paul Mercury Ins. Co. v. Capitol
Sprinkler Inspection, Inc., 573 F. Supp. 2d 152, 173 (D.D.C.
2008). Plaintiff fails to shoulder this burden.
It is undisputed that James Covington and Alfreda Turnbow were
party to the original mortgage documents. See Mortgage Note, ECF
No. 62-2 at 4; Deed of Trust, ECF No. 62-3 at 2, 15; Turnbow v.
Anderson, No. 2007-CA-5895, slip op. at 19–20 (D.C. Super. Ct.
July 20, 2009). It is equally undisputed that Alfreda Turnbow
was not party to the modification. See Modification, ECF No. 62-
13
4 at 1, 7. Nor is there evidence that Alfreda Turnbow’s rights
and obligations were ever assigned to Ronald Anderson, who was
party to the modification. See Anderson v. Turnbow, No. 9-CV-
905, slip op. at 1 (D.C. July 11, 2011).8
Accordingly, the loan modification was executed without the
consent of an individual who was party to the underlying
contract. This renders the modification invalid because “[t]erms
added to a written contract after its execution without the
assent of all the parties do not become part of the contract.”
Craig v. Kessing, 253 S.E.2d 264, 266 (N.C. 1979); see also
Duvall, 423 B.R. at 389; Hershon, 565 A.2d at 283. Accordingly,
the Court GRANTS summary judgment to the defendants on all
claims alleging a breach of the modification agreement.
C. Plaintiff’s Foreclosure-Related Claims.
The third group of claims are those that allege that
defendants have violated various laws by bringing a foreclosure
action. See Second Am. Compl., ECF No. 27 ¶¶ 20, 23, 25(d), 28,
8
Despite the D.C. Court of Appeals’s affirmance of the Superior
Court’s ruling that the alleged transfer of rights pursuant to a
quitclaim deed was based on a fraud, Mr. Covington persists in
relying on misguided quitclaim deeds. He attached to his
opposition brief a deed that purports to convey “by first party
Aquanetta Anderson to Ronald Anderson the second party, all of
my interest which was granted to me by Alfreda Turnbow on June
23, 2006 in real property with address known as 7247 15th Place
N.W.” Pl.’s Ex. A, ECF No. 97-1 at 1. Even if the deed is
authentic, it is irrelevant because Aquanetta Anderson had
nothing to convey. See Anderson v. Turnbow, No. 9-CV-905, slip
op. at 1 (D.C. July 11, 2011).
14
47, 50–51. Plaintiff has provided no evidence that a foreclosure
has taken place, and has failed to rebut defendants’ argument
that no foreclosure is pending. See Mem. at 14–15.9 In the
absence of a foreclosure proceeding, plaintiff’s foreclosure-
related legal claims cannot stand. Cf. Smith v. Midland Mortg.,
No. 13-706, 2014 WL 2767382, at *3 (D.D.C. June 19, 2014)
(dismissing claim for wrongful foreclosure due to the absence of
any past or pending foreclosure). Accordingly, the Court GRANTS
summary judgment to the defendants on all foreclosure-related
claims.
D. Plaintiff’s Request for Declaratory Relief.
The final legal claim that can be discerned from the Second
Amended Complaint appears to request a declaratory judgment that
the modification is enforceable and that defendants cannot
enforce any of the loan documents. See Second Am. Compl., ECF
No. 27 ¶¶ 21, 27–28, 46–53. Plaintiff states that “[a]n actual
controversy has arisen and now exists between Plaintiffs and
Defendants, regarding their respective rights, duties and
obligations under the . . . Loan Modification, Promissory Note,
Deed of Trust, and related loan documentation.” Id. ¶ 47.
9
Plaintiff appears to concede that the possibility of
foreclosure remains hypothetical. See Opp. at 19 (“The plaintiff
. . . disagrees with the defendants[’] argument . . . that there
is no pending foreclosure on the said property. As a matter of
fact, defendants are seeking to exercise their rights under the
Deed of Trust and Note[,] which includes foreclosure.”).
15
The Court is empowered to issue a declaratory judgment “[i]n a
case of actual controversy within its jurisdiction.” 28 U.S.C. §
2201(a). “To establish that a matter is a ‘controversy’ rather
than an abstract question, a party seeking declaratory relief
must ‘show that there is a substantial controversy, between
parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.’”
Hoffman v. District of Columbia, 643 F. Supp. 2d 132, 140
(D.D.C. 2009) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941)).
Defendants argue that “[w]hile Covington claims that a
controversy exists as to whether the Lenders have a right to
enforce . . . the Deed of Trust or Note, Covington does not
clarify why he believes there currently exists an ‘actual
controversy.’” Mem. at 21. Plaintiff, however inartfully,
connected his request for a declaration to his belief that the
defendants cannot enforce the terms of the Loan because, he
claims, they do not possess the note. See Second Am. Compl., ECF
No. 27 ¶¶ 47, 49–51, 53.
Nonetheless, plaintiff is not entitled to the declaration he
seeks. The Court has already found the modification agreement to
be a legal nullity. See supra Part III.B. Furthermore, plaintiff
failed to show that the defendants cannot enforce the terms of
the original mortgage. He argues that they “rel[y] exclusively
16
on the pooling and servicing agreement to show that [they] were
the holder of the [mortgage] note,” Opp. at 11, but that is not
true. Defendants have supplied ample proof that Deutsche Bank
owns the loan in its capacity as trustee for the Trust. See
supra at 2 & n.1. No evidence has been introduced to indicate
that Deutsche Bank ever transferred ownership. JP Morgan Chase,
moreover, has not only introduced evidence that it inherited
WaMu’s servicing rights, Purchase & Assumption Agreement, ECF
No. 62-5 at 13, but also of its possession of the original note,
endorsed in blank. Indeed, plaintiff concedes that he viewed the
note in person, but persists in arguing that defendants cannot
enforce it. See Opp. at 11.10 This is misguided because
“[t]ransfer of an instrument, whether or not the transfer is a
negotiation, vests in the transferee any right of the transferor
to enforce the instrument.” D.C. Code § 28:3–203(b).11
10
Plaintiff appears to understand the error of his argument. His
opposition brief includes what appears to be an editor’s
comment, which states “there is evidence that they have the
original note, as displayed in Annapolis. Maybe you can contend
that there is no evidence that it was not stolen?” Opp. at 11. A
similar comment appears mid-sentence later on: “the original
promissory note (but it has, in Annapolis . . .) has not been
produced, but a copy of the note.” Id. at 20.
11
The Court need not address plaintiff’s allegations regarding
infirmities in documents related to the Pooling and Servicing
Agreement, Opp. at 8–10, because possession of the note is
sufficient to show that defendants can enforce the terms of the
loan. Cf. Conant v. Wells Fargo Bank, NA, No. 13-572, 2014 WL
369644, at *6 (D.D.C. July 25, 2014) (applying California law
and holding that “the Court need not address the question of
17
Accordingly, defendants’ rightful possession of the note
endorsed in blank makes them “the rightful Note holder and a
party that [can] properly enforce its provisions.” Leake v.
Prensky, 798 F. Supp. 2d 254, 257 (D.D.C. 2011).12 Plaintiff
therefore is not entitled to the declaration he seeks and the
Court GRANTS summary judgment to defendants on this claim.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion
for summary judgment. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
July 30, 2014
whether Plaintiff’s loan was securitized—a fact disputed by the
parties—because even if it was, ‘the securitization of
plaintiff’s promissory note did not deprive defendants of the
power to foreclose on the property.’”).
12
Plaintiff argues that that Loan cannot be enforced because its
assignment was not properly recorded. See Opp. at 19. This
dispute is immaterial because “District of Columbia law does not
require an assignment of a note or deed of trust to be recorded
in order for the transfer to be valid.” Robinson v. Deutsche
Bank Nat’l Trust Co., 932 F. Supp. 2d 95, 104 (D.D.C. 2013).
18