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Richards v. Option One Mortgage Corp.

February 4, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This action arose from an allegedly wrongful foreclosure by defendant Option One Mortgage Corporation ("Option One") on plaintiff Mary Richards's home and defendant Alvin Gross's subsequent purchase of the property at a foreclosure sale. This matter is before the Court on separate motions for summary judgment filed by Option One and by Mr. Gross.

After hearing oral argument on defendant Gross's motion for judgment on the pleadings or, in the alternative, for summary judgment, the Court granted Gross's motion on all counts of plaintiff's complaint against Mr. Gross except Count One - plaintiff's claim for a declaratory judgment to set aside the transfer of title. See Order at 1, Dkt. No. 37 (July 23, 2009). It requested additional briefing on "the issues relating to available remedies for wrongful foreclosure and on when one becomes a bona fide purchaser for value" to assist in the resolution of defendant Gross's motion as to Count One. See id. On August 25, 2009, the Court heard oral argument on Gross's motion for summary judgment on the remaining count against him as well as on Option One's motion for summary judgment on all counts against it. The parties thereafter engaged in limited additional discovery with the Court's permission. See Richards v. Option One, Civil Action No. 08-0007, 2009 U.S. Dist. LEXIS 77958 at *6 (D.D.C. Aug. 28, 2009). After careful consideration of the parties' papers and attached exhibits, the relevant case law and statutes, and the oral arguments presented by counsel, the Court now grants both motions for summary judgment.*fn1


Plaintiff Mary Richards was the fee simple owner of her home, located at 630 Emerson Street, Northwest, Washington, District of Columbia (the "property" or "the Emerson Street Address"). See Opt. One Mot., Statement of Undisputed Material Facts ("Opt. One Facts") ¶ 1; Opp. to Opt. One, Plaintiff's Counter-Statement of Disputed Material Facts ("Pl. Facts") ¶ 1. She is a homebound senior citizen. See Pl. Facts ¶ 7. At some point prior to October 11, 2006, Richards and Kenya Raymond, Ms. Richards's granddaughter and "attorney in fact," began discussions with Daniel Botts, a mortgage broker for Premier Mortgage Capital, about refinancing Richards's property. See Mot, Ex. A, Deposition of Daniel R. Botts, Jr. ("Botts Dep.") at 28; Opt. One Facts ¶¶ 2, 3; Pl. Facts ¶ 3.*fn2 Thereafter, Botts visited the property and met with plaintiff, Mary Richards, Kenya Raymond, and Denise Richards, plaintiff's daughter and Raymond's mother, to discuss a loan on the property and to have plaintiff review and sign various loan documents. See Opt. One Facts ¶ 4; Pl. Facts ¶ 4. Botts testified that he spoke with plaintiff and that she appeared to understand what he was saying. See Botts Dep. at 43.

On October 11, 2006, plaintiff submitted a Uniform Residential Loan Application to Premier Mortgage Capital, see Opt. One Mot., Ex. B, and a Credit Authorization to Premier Mortgage Capital. See Opt. One Mot., Ex. C; Botts Dep. at 53. The loan was shopped out to a number of lenders, including Option One. See Opt. One Facts ¶ 5; Botts Dep. at 47. On October 26, 2006, Botts returned to the property and presented numerous loan disclosure documents to Richards for her review and/or signature. See Opt. One Facts ¶ 7; Botts Dep. at 51-63.*fn3 After the loan closed with Option One, Botts met with Richards and Raymond at the property; he confirmed that they were satisfied with the loan and learned that the proceeds from the cashout payment - approximately $38,000 - had been received. See Opt. One Facts ¶ 9, Botts Dep. at 74-75. The monthly loan payments required were $1,747.86, even though plaintiff's monthly income was only approximately $974. See Pl. Facts ¶ 32.*fn4

Plaintiff defaulted on the mortgage and Option One employed Bierman, Geesing & Ward, LLC ("BG & W") to take legal action. See Opt. One Facts ¶ 12. On July 30, 2007, BG & W sent a letter by first-class mail to Ms. Richards at the Emerson Street address advising that a foreclosure sale might be scheduled. See Opt. One Mot., Ex. G, Affidavit of Jacob Geesing ("Geesing Aff.") ¶ 4.*fn5 BG & W also sent a document entitled "Important Notice Regarding Alternatives to Foreclosure" to the Emerson Street address by first class mail and certified mail on July 30, 2007. See id. ¶ 6. Neither of these was returned as not having been delivered. See id. ¶¶ 5, 7. On August 3, 2007, the auctioneer sent a Notice of Foreclosure Sale to Richards and to "Occupant" at the Emerson Street address by first class regular mail and certified return receipt requested mail. See Opt. One Mot., Ex. H, Affidavit of Jody Krieger ¶ 5. The return receipt cards were returned to the auctioneer by the United States Postal Service showing that the Notice of Foreclosure Sale had been received and signed for by Kenya D. Raymond. See id. ¶ 7. On August 17, 2007, BG & W sent letters by first class mail and certified mail to Ms. Richards and to "Occupant" at the Emerson Street address advising that a foreclosure sale had been scheduled for September 6, 2007. See Geesing Aff. ¶ 9. The August 17, 2007 certified letters were signed for by "Timothy Richards" and none of the letters sent by regular mail were returned to BG & W. See id. ¶¶ 5, 7, 11. The notice of foreclosure sale was recorded among the Land Records of the Recorder of Deeds of the District of Columbia on August 3, 2007 and also was advertised in the Washington Times on August 27, 29, 31 and September 1 and 5, 2007. See Opt. One Facts. ¶ 19.

During the summer of 2007, plaintiff attempted to obtain a reverse mortgage from Countrywide Bank, FSB ("Countrywide"). See Pl. Facts ¶ 36; Praecipe, Dkt. No. 55, Deposition of Douglas Helvig ("Helvig Dep.") at 20, 22-25. She received a loan commitment letter from Countrywide for an amount that would have paid off the balance of the loan from Option One. See Pl. Facts ¶¶ 36-38; see also Opp. to Opt. One, Ex. A, Letter from Countrywide to Ms. Richards dated July 27, 2007 ("Loan Commitment Letter"). Although plaintiff originally made representations to the contrary, it is now clear that she and Countrywide never closed on this loan. Countrywide's records for the loan classify the loan as "cancelled." See Joint Supp., Ex. 1 at 8, Comments re loan to Mary Richards ("Countrywide Loan Comments"). The final entry in Countrywide's records for the loan states: "Cancellation: Due to borrower's numbers disconnected, could not contact borrower to set up closing to avoid foreclosure. Borrowers eventually called us day of foreclosure, but home sold in morning. In Wash DC, not redemption eligible." Id.; see also Opt. One Rep., Ex. E, Deposition of Kendra Raymond ("Raymond Dep.") at 350-51 (agreeing that she had no knowledge that Ms. Richards ever closed on the reverse mortgage loan). Although plaintiff previously alleged that with the assistance of Francisco Enriquez, a Countrywide loan agent, she attempted to pay off the debt to Option One on the day of the foreclosure sale, see Compl. ¶¶ 28-31, the records from Countrywide show that any attempt by her to do so was too late and certainly would not have been successful. She never closed on the reverse mortgage and therefore she did not have the funds necessary to pay off the original mortgage.*fn6 On September 6, 2007, the foreclosure sale occurred and the property was purchased by Mr. Gross. See Opt. One Facts ¶ 24.


Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895.

When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).


Plaintiff makes three claims against Option One: Count One is for a declaratory judgment to set aside deeds and to quiet title to the property; Count Two is for violations of the District of Columbia Right to Cure Residential Mortgage Foreclosure Default Act; and Count Three is for breach of contract against Option One for violations of its duties of good faith and fair dealing with Richards in its loan administration and collection activities - including a duty to deal honestly with her concerning the nature and extent of her obligations under the mortgage.*fn7

Because Count One - which is also the only count remaining against defendant Gross - incorporates many of the substantive arguments made in Counts Two and ...

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