Ihebereme v. Capital One, N.A.

• Decision Date: 28 March 2013
• Docket Number: Civil Action No. 10–1106 (ABJ).
• Citation: 933 F.Supp.2d 86
• Parties: Christopher IHEBEREME, et al., Plaintiffs, v. CAPITAL ONE, N.A., as Successor by Merger to Chevy Chase Bank, F.S.B., et al., Defendants.
• Court: U.S. District Court — District of Columbia

933 F.Supp.2d 86

Christopher IHEBEREME, et al., Plaintiffs,

v.CAPITAL ONE, N.A., as Successor by Merger to Chevy Chase Bank, F.S.B., et al., Defendants.

Civil Action No. 10–1106 (ABJ).

United States District Court,

District of Columbia.

March 28, 2013.

Cheryl A. Calloway, Calloway LLC, Washington, DC, for Plaintiffs.

Amy Miller, Phillip C. Chang, McGuireWoods LLP, Washington, DC, Christopher C. Fogleman, Gleason, Flynn, Emig & Fogleman,Chartered, Rockville, MD, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiffs Christopher Ihebereme and Chidozie Ihebereme sue defendants Chevy Chase Bank and its successor in interest, Capital One, N.A., for actions related to Christopher Ihebereme's mortgage. This matter is before the Court on defendants' motion for summary judgment and alternative motion for judgment on the pleadings. For the reasons discussed below, the Court will grant defendants' motion.

BACKGROUND

I. The Mortgage and Plaintiffs' Payment History

On March 28, 2007, plaintiff Christopher Ihebereme purchased a house in the District of Columbia and signed a thirty-year promissory note for $280,000. See Note, Ex. A to Defs.' Mot. for Summ. J and Altern. Mot. for J. on the Pldgs. [Dkt. # 34] (“Defs.' Mot.”).¹ His nephew plaintiff Chidozie Ihebereme co-signed the mortgage. Note at 3. The Note, which had an interest rate of 6.750%, required Christopher Ihebereme to pay $1,816.08 on the first day of every month until the mortgage was paid off. Id. ¶ 3. The Note also provided a grace period of fifteen days from the date a payment was due until the payment would be considered late. See id. ¶ 6. It required plaintiffs to make monthly payments to “P.O. Box 17000, Baltimore, MD 21203 or at a different place if required by the Note Holder.” Id. ¶ 3. Finally, it required the co-signer, Chidozie Ihebereme, to satisfy the obligations under the Note if Christopher Ihebereme failed to do so. Id. ¶ 8. Plaintiffs do not dispute these obligations under the Note. See Second Amended Complaint [Dkt. # 24] (“2d Am. Compl.”) ¶¶ 13–19.

In connection with the mortgage, Christopher Ihebereme also signed a Deed of Trust, which required him to pay principal, interest, and funds into escrow every month. See Deed of Trust, Ex. C to Defs.' Mot. Escrow included $406.00 per month toward private mortgage insurance (“PMI”). Commitment/Certificate, Ex. D to Defs.' Mot.; Initial Escrow Account Discl. Stmt., Ex. E to Defs.' Mot. According to an addendum to the loan application, which Christopher Ihebereme and Chidozie Ihebereme also signed, the PMI requirement would only be discontinued when the “loan balance amortizes or is paid down to 78% of the original value and you are current on your monthly payments.” Addendum to Loan Application, Ex. G to Defs.' Mot. ¶ 11 (emphasis in original).

According to defendants, Christopher Ihebereme's monthly payments were paid within the fifteen day grace period and therefore timely from the beginning of the loan in May 2007 through February 2008. Defs.' Mot. at 4, citing Loan History, Ex. F to Defs.' Mot. (“Defs.' Loan History”).²Plaintiffs dispute this, contending that Christopher Ihebereme was timely on his mortgage payments through November 2008. Pls.' Opp. to Defs.' Mot. for Summ. J and Altern. Mot. for J. on the Pldgs. [Dkt. # 35] (“Pls.' Opp.”) at 3. Whether timely or late, it is undisputed that plaintiffs made monthly payments from May 2007 through March 2009 and that they were credited to the account on the following schedule.

The last payment plaintiffs made on the mortgage was on April 28, 2009 for the March 2009 payment. See Defs.' Loan History; March 2009 Payment Receipt, Ex. 55 to Pls.' Opp.³

II. Facts Giving Rise to Plaintiffs' Claims

Plaintiffs' nine count complaint revolves around four core issues that plaintiffs characterize as: defendants' refusal to permit Christopher Ihebereme to make his monthly mortgage payments online, their alleged failure to properly credit three payments in a timely manner, their alleged improper calculation and maintenance of the PMI requirement on the mortgage, and allegedly false statements they made about the loan to credit bureaus and to Christopher Ihebereme's family and failed to correct. See generally 2d Am. Compl.

A. How Plaintiff Christopher Ihebereme Paid His Mortgage

Christopher Ihebereme made his first several monthly payments for the mortgage online. Pls.' Opp. at 4. Because he was paid on the 15th of every month and because he had a fifteen day grace period from the first of each month when his mortgage was due, he would transfer his monthly payment online just after he was paid, and the payment would still be timely. Id., citing Christopher Ihebereme Dep., Ex. 20–25 to Pls.' Opp. Plaintiffs claim that the mortgage payments began to be paid late only after Chevy Chase stopped “allowing” Christopher to make payments online. 2d Am. Compl. ¶ 26; Pls. Opp. at 4.

While plaintiffs complain that there came a time when Christopher Ihebereme was consistently unable to successfully accomplish online payments, the record contains no evidence explaining why he was no longer able to do so. See Pls.' Opp. at 4 n. 4 (stating that defendants “repeatedly failed and refused to provide information about their computer systems, or troubleshooting or other activities undertaken to address Plaintiff Christopher's[ ] issues”). Nor is there any evidence that this permission to do so was in fact revoked. It is undisputed that the Note required plaintiffs to make monthly payments to “P.O. Box 17000, Baltimore, MD 21203 or at a different place if required by the Note Holder.” Note ¶ 3. It is also undisputed that plaintiffs had alternative ways to pay their mortgage, aside from paying online. See Christopher Ihebereme Dep., Ex. U to Defs.' Mot. at 146:13–147:5 (testifying that plaintiffs could have made their monthly payments by mail or phone or at the branch); id. at 153:4–:6, 155:9–:13 155:17–:21 (testifying that Christopher Ihebereme made the April 2008, May 2008, and June 2008 payments at a bank branch).⁴

B. Crediting of Mortgage Payments

Plaintiffs complain that defendants failed to credit Christopher Ihebereme's payments for December 2008, January 2009, and February 2009 in a timely manner. 2d Am. Compl. ¶ 22. There is no evidence showing when plaintiffs made the December 2008 and January 2009 payments, but the evidence does show that the December payment was applied to the account on December 31, 2008, and the January payment was applied on January 26, 2009. Full Loan History, Ex. 32–33 to Pls.' Opp. The evidence also shows that the February 2009 payment was credited to the account on March 19, 2009 despite being paid on February 25, 2009. Id.; February 2009 Payment Receipt, Ex. J to Defs.' Mot. Defendants acknowledge this delay was an error on their part and state that they corrected it. Brunson–Matthews Decl. ¶ 23; Letter from Robin Key, Credit Analyst, Chevy Chase Bank to Christopher Ihebereme (March 30, 2009), Ex. 11 to Pls.' Opp. and Ex. N to Defs.' Mot. (“Correcting Letter”) (stating “the late payment reporting for the payment due February 1, 2009 will be removed from your credit report”).

C. Reports to Credit Agencies and Letters to Christopher Ihebereme

Plaintiffs complain that defendants made incorrect reports to credit reporting agencies about the status of the mortgage. 2d Am. Compl. ¶ 30. Defendants do not dispute that Chevy Chase mistakenly delayed crediting the February 2009 payment, which resulted in an incorrect report of the loan's status to credit reporting agencies. Defs.' Mot. at 19; Brunson–Matthews Decl. ¶ 23. But the bank corrected the February error internally and with the credit reporting agencies. Defs.' Mot. at 19; see also Correcting Letter; Credit Report, Ex. O to Defs.' Mot. (showing only the March 2009, and not the February 2009, payment as late after Chevy Chase's correction). Further, defendants show that the reports to the credit agencies about plaintiffs' other late payments are accurate. Defs.' Loan History at 2 (showing March 2009 payment was applied on April 30, 2009); March 2009 Payment Receipt (showing March 2009 payment was made on April 28, 2009). A credit report for Christopher Ihebereme dated March 31, 2009 shows a 30–59 day delinquency for the “3/09” payment of $2469. Credit Report at 1.

Plaintiffs also complain about letters that defendant allegedly sent to Christopher Ihebereme's household, which were addressed to “Occupant” and stated that the mortgage was in default when it was not. 2d Am. Compl. ¶ 93. They assert that because of these letters, Christopher Ihebereme became estranged from his family. Id. ¶¶ 94–96. Plaintiffs provide the Court with no letters addressed to “Occupant,” however. The letters they do provide are specifically addressed to the mortgagees, Christopher Ihebereme and Chidozie Ihebereme. See Mortgage Letters, Ex. 5–8 to Pls.' Opp.; Letter from Karen Neugebauer to Christopher Ihebereme (April 10, 2009), Ex. H to Defs.' Mot. at 1 and Ex. 9 to Pls.' Opp. (“PMI Denial Letter”); Correcting Letter; Letter from David Prensky, Chasen & Chasen (April 13, 2010), Ex. 15 to Pls.' Opp.

D. Issues with PMI Requirement

In March 2009, Christopher Ihebereme asked Chevy Chase Bank to remove the requirement for PMI on his loan. Pls.' Opp. at 4. According to an addendum to the loan application, the PMI requirement would only be discontinued when the loan balance amortized or was paid down to 78% of the original value and if the loan's monthly payments were current. Addendum to Loan Application ¶ 11. As of March 2009, only $5,629.08 or approximately 2% had been paid on the loan. See Defs.' Loan History; Full Loan History, Ex. 29 to Pls.' Opp. (showing principal balance on April 16, 2009 of $274,370.92 on a loan of $280,000).

Plaintiffs do not dispute the written terms of the Addendum. Instead, Christopher Ihebereme testified in deposition that he understood the terms for removal of...