United States District Court, District of Columbia
D.BATES United States District Judge.
Settlement Services, LLC, ("Independent") alleges
that Jimmy Lewis failed to make payments required under a
promissory note that he executed when he refinanced a
property in Washington, D.C. Independent has moved for
summary judgment on the only remaining claim in this action,
i.e., the breach of contract claim against Lewis. Because
there is no genuine dispute as to any material fact and
Independent has shown that it is entitled to judgment as a
matter of law, the Court will grant the motion.
November 2007, Lewis decided to refinance a property that he
owned in Washington, D.C. He received a $262, 500 loan (the
"Subject Loan") from lender Taylor, Bean &
Whitaker Mortgage Corp. ("TBW"). In return, he
executed a promissory note (the "Subject Note")
that memorialized the terms of the loan and a deed of trust
(the "Subject DOT") to secure repayment of the
Subject Note with a lien against the property. See
Subject Note, Ex. 2 to PL's Mot. for Summ. J. [ECF No.
25-3]; Subject DOT, Ex. 3 to PL's Mot. for Summ. J. [ECF
No. 25-4]. Independent conducted the closing and issued a
title insurance commitment to TBW, which committed Stewart
Title Guaranty Company ("Stewart") to insure the
Subject DOT as a lien against the property. See Am.
Compl. [ECF No 10] ¶ 11; Independent's Answer to Am.
Compl. [ECF No. 18] ¶ 11. Although Independent received
funds for the payment of recording fees and taxes, see Am.
Compl. ¶ 13; Independent's Answer to Am. Compl.
¶ 13, the Subject DOT was not recorded in the District
of Columbia land records, see 1st Aff of J. Thurbee, Ex. 4 to
PL's Mot. for Summ. J. [ECF No. 25-5] ¶ 8.
around May 2013, Lewis sold the property to Elston Johnson.
1st Aff. of J. Thurbee ¶ 10. Lewis continued to make
monthly payments on the Subject Loan through July 2013, at
which point his outstanding balance was $243, 785.36. 2nd
Aff. of J. Thurbee, Ex. 1 to PL's Reply [ECF No. 28-1]
¶ 4. Thereafter, he made no further payments and,
according to Stewart's calculations, he now owes more
than $300, 000, including unpaid principal, interest, and
late fees. Id. ¶¶ 7-8.
November 2013, Cenlar (then the holder of the Subject Note)
submitted a claim for coverage under the title insurance
commitment when it discovered that the Subject DOT had not
been recorded. 1st Aff. of J. Thurbee ¶ 9; see Notice of
Title Claim, Ex. 5 to PL's Mot. for Summ. J. [ECF No.
25-6].After Stewart confirmed that the Subject
DOT was not recorded, see 1st Aff. of J. Thurbee ¶ 10,
it contacted Independent to inquire whether there was any
factual or legal reason that it should not settle the claim.
Independent advised that there was no factual or legal
defense, see Ex. 6 to PL's Mot. for Summ. J. [ECF No.
25-7]; consequently, Stewart settled the claim by paying
Nationstar $262, 500 in exchange for an assignment of the
Subject Note. Nationstar executed an allonge transferring the
Subject Note to Stewart, and delivered the original copy of
the Subject Note to Stewart. 1st Aff. of J. Thurbee
¶¶ 12-14; Sale & Assignment Agreement, Ex. 7 to
PL's Mot. for Summ. J. [ECF No. 25-8].
2016, Stewart filed this lawsuit against Independent and
Lewis. Stewart asserted claims for breach of contract and
negligence against Independent based on Independent's
alleged failure to record the Subject DOT. See Am.
Compl. ¶¶ 32-45. Stewart asserted a claim for
breach of contract against Lewis based on his alleged failure
to make required payments under the terms of the Subject
Note. Id. ¶¶ 46-51. Stewart moved for
summary judgment on its claims, see PL's Mot. for Summ.
J. [ECF No. 25], and Independent and Lewis separately opposed
the summary judgment briefing was completed, Stewart and
Independent entered a settlement agreement and Stewart
voluntarily dismissed with prejudice all claims against
Independent. See Stip. of Dismissal with Prejudice
[ECF No. 31]. Pursuant to the settlement, Stewart transferred
its interest in the breach of contract claim against Lewis to
Independent. See Feb. 16, 2018 Order [ECF No. 37] at
2. Independent filed a motion to substitute "in the
place and stead of Stewart" as plaintiff in this action,
see Consent Mot. to Substitute [ECF No. 32], and the Court
granted that motion, see Feb. 16, 2018 Order at 3. The Court
ordered that all pleadings and dispositive motions filed by
Stewart, as they relate to the breach of contract claim
against Lewis, be deemed adopted by Independent. Feb. 16,
2018 Order at 3. The sole issue, then, is whether Independent
is entitled to summary judgment on the breach of contract
claim against Lewis.
judgment is appropriate where "the movant shows there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). "The mere existence of some factual dispute is
insufficient on its own to bar summary judgment; the dispute
must pertain to a 'material' fact." Etokie
v. Duncan, 202 F.Supp.3d 139, 145 (D.D.C. 2016)
(citation omitted). Hence, "[o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Summary judgment may not "be
avoided based on just any disagreement as to the relevant
facts; the dispute must be 'genuine, ' meaning that
there must be sufficient admissible evidence for a reasonable
trier of fact to find for the non-movant."
Etokie, 202 F.Supp.3d at 146 (quoting
Anderson, 477 U.S. at 248).
party asserting that a fact cannot be or is genuinely
disputed must support that assertion by" either
"citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits, ... or other materials" or
"showing that the materials cited do not establish the
absence or presence of a genuine dispute . .. ."
Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without
any factual basis in the record cannot create a genuine
dispute. See Ass'n of Flight Attendants-CWA v. U.S.
Dep't of Transp, 564 F.3d 462, 465-66 (D.C. Cir.
2009). "If a party . . . fails to properly address
another party's assertion of fact... the court may . . .
consider the fact undisputed for purposes of the
motion." Fed.R.Civ.P. 56(e); see Winston &
Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir.
deciding a motion for summary judgment, a court must regard
the non-movant's statements as true and accept all
evidence and make all inferences in the non-movant's
favor. See Anderson, 477 U.S. at255. Moreover, a
court may not "make credibility determinations or weigh
the evidence." Lopez v. Council on American-Islamic
Relations Action Network, Inc., 826 F.3d 492, 496 (D.C.
Cir. 2016) (citation omitted). Ultimately, a 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." Anderson, 477 U.S. at 251-52. Thus, a
non-moving party must "do more than simply show that
there is some metaphysical doubt as to the material facts,
" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio