Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Ass'n

• Decision Date: 08 July 2009
• Docket Number: Case No. 3:07-cv-449.
• Citation: 643 F.Supp.2d 1014
• Parties: WELLS FARGO BANK, N.A., etc., Plaintiff, v. LaSALLE BANK NATIONAL ASSOCIATION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

643 F.Supp.2d 1014

WELLS FARGO BANK, N.A., etc., Plaintiff, v. LaSALLE BANK NATIONAL ASSOCIATION, Defendant.

Case No. 3:07-cv-449.

United States District Court, S.D. Ohio, Western Division at Dayton.

July 8, 2009.

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Dianne Frances Marx, Katherine Lee Early, Sebaly, Shillito & Dyer, Dayton, OH, Paul D. Snyder, Snyder Law Firm LLC, Leawood, KS, for Plaintiffs.

Stephanie P. Union, Loriann E. Fuhrer, Kegler Brown Hill & Ritter, Columbus, OH, Dianne Frances Marx, Katherine Lee Early, Sebaly, Shillito & Dyer, Dayton, OH, Gregory A. Markel, Jason Michael Halper, Lauren Un Yung Lee, Cadwalader, Wickersham & Taft LLP, New York, NY, for Defendant.

DECISION AND ORDER ON SUMMARY JUDGMENT MOTIONS

MICHAEL R. MERZ, United States Magistrate Judge.

This case is before the Court on Wells Fargo's Motion for Partial Summary Judgment (Doc. No. 110) and LaSalle's Motion for Summary Judgment (Doc. No. 111), both of which were filed on the deadline for motions of this character and after the discovery cut-off.

The parties unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) in their Fed. R.Civ.P. 26(f) Report (Doc. No. 14) and the case has been referred on that basis (Doc. No. 15).

Although both parties have moved for summary judgment, these are not true cross-motions. See 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2720 (1998), on the situation where parties make cross-motions for summary judgment, but do not concede the facts are truly undisputed from the opposing party's perspective as well as their own.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Nevertheless, "the 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F.3d 795 (6th Cir.1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S.Ct. at 2510.

The moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (citation omitted). If the moving party meets this burden, the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; Martin v. Ohio Turnpike Comm'n., 968 F.2d 606 (6th Cir. 1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993).

In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.

Applicable Law

This Court has subject matter jurisdiction of this case under 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $75,000, exclusive of interest and costs. (Complaint, Doc. No. 1, ¶ 15.) The Court's subject matter jurisdiction is not contested.

State substantive law governs the case. 28 U.S.C. § 1652; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In a diversity action, the district court is obliged to apply the choice of law rules of the State in which it sits. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 491, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Boyd v. LaMaster, 927 F.2d 237 (6th Cir.1991); Macurdy v. Sikov & Love, P.A., 894 F.2d 818 (6th Cir.1990). Ohio recognizes the validity of contractual choice of law clauses. Crystal Clear Imaging, Ltd. v. Siemens Medical Solutions, Inc., 2008 WL 2114867 at *4 (S.D.Ohio May 19, 2008), citing Boyle v. Jacor Communications, Inc., 799 F.Supp. 811, 813 (S.D.Ohio 1992), citing Nationwide Mut. Ins. Co. v. Ferrin, 21 Ohio St.3d 43, 487 N.E.2d 568 (1986).

Section 11 of the Mortgage Loan Purchase Agreement (the "MLPA") provides:

Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York without regard to conflicts of laws principles and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.

Section 11.04 of the Pooling and Service Agreement (the "PSA") provides:

Governing Law. This Agreement and the Certificates shall be construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed in said State, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.

Therefore New York law governs the contractual issues in this case as the parties agree. Under New York law, Wells Fargo bears the burden of proving its breach of contract claim by a preponderance of the evidence. Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 542 (2nd Cir.1989); Wechsler v. Hunt Health Systems, Ltd., 330 F.Supp.2d 383, 403 (S.D.N.Y.2004).

A contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed. Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 634 N.Y.S.2d 669, 658 N.E.2d 715 (1995), aff'g, Wallace v. 600 Partners Co., 205 A.D.2d 202, 618 N.Y.S.2d 298 (1st Dep't.1994) (citation omitted). When the meaning of a contract is plain and clear, it is entitled to be enforced according to its terms. Uribe v. Merchants Bank of New York, 91 N.Y.2d 336, 340, 670 N.Y.S.2d 393, 693 N.E.2d 740 (1998) (citation omitted). In other words, it is incumbent on the court, when interpreting a contract, to give the words and phrases contained therein their ordinary, plain meaning. Wallace, 618 N.Y.S.2d at 302.

Extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face. W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 (1990) (citations omitted). In other words, evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing. R/S Associates v. New York Job Development Auth., 98 N.Y.2d 29, 32, 744 N.Y.S.2d 358, 771...