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Pearson v. Pnc Bank National Association

United States District Court, N.D. Ohio, Eastern Division

March 31, 2017

THOMAS M. PEARSON,, Plaintiffs,
v.
PNC BANK, NATIONAL ASSOCIATION,, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN R. ADAMS UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motions for summary judgment of (1) PNC Bank, National Association (“PNC”) and Deutsche Bank Trust Company Americas (“Deutsche Bank”) (collectively, the “Banks”) (Doc. #69), and (2) Safeguard Properties, LLC (“Safeguard”) (collectively, “Defendants”) (Doc. #70). Defendants move for summary judgment on the Amended Complaint of Plaintiffs Thomas M. Pearson and Claudia Pearson (“Plaintiffs”). Plaintiffs have opposed the motions for summary judgment, and Defendants have replied. For the reasons that follow, Defendants' respective motions for summary judgment are GRANTED.

         I. FACTS

         This case involves claims for property damage which allegedly occurred during the property preservation efforts at a residential dwelling. Thomas Pearson purchased the residence in Canfield, Ohio in 2006 for $95, 000.00. He financed the purchase in major part through a mortgage loan from National City Bank for $90, 000.00. National City Bank subsequently merged with and into PNC. Deutsche Bank has an interest in the loan pursuant to a servicing agreement with PNC.

         Plaintiffs did not visit the home after acquiring it until September of 2011. Mr. Pearson's relative lived in the home until Mr. Pearson evicted her in 2010. While Mr. Pearson's relative lived in the property, Plaintiffs did not retain any person or company to work on their behalf to check on the property and ensure it was being maintained. Plaintiffs did not make any effort to secure the property after the eviction, and were unaware of the condition of the property at that time.

         Mr. Pearson inspected the house for the first time after its purchase in September of 2011. He observed several items of damage or neglect throughout the property. For instance, Mr. Pearson observed and repaired structural damage to the garage wall and damage to the garage door. He also observed and repaired damage to windows, doors, and the bathroom, among other items.

         Mr. Pearson does not know whether any of the damage he noted in September of 2011 was caused by Defendants. He conceded that all of the conditions could have existed when his relative was evicted from the property, or could have been caused by vandalism. (Doc. #74, Pearson Dep. p. 57-69.)

         Mr. Pearson has not returned to the property since approximately October of 2011. He has not personally done anything to maintain the property. He did not hire anyone to go into the property and maintain it. (Id. at 39.) Mr. Pearson admitted that, as the property owner, he was responsible for maintaining the property. (Id. at 36, 38-39, and 43.)

         In the event of Plaintiffs' failure to maintain the premises and default on the mortgage, the express terms of the mortgage contract gave the Banks the right to undertake any “reasonable and appropriate” efforts to protect and preserve the real estate. (Doc. # 17, Ex. C.) However, the Banks were not obligated under the mortgage contract to undertake any preservation efforts, and expressly disclaimed liability for declining to undertake such efforts. (Id.)

         In 2009, PNC requested that Safeguard provide inspection and preservation services for the property. Safeguard uses independent subcontractors for all work and inspections. The independent subcontractors are paid on a per visit basis, and are not paid an hourly rate. Prior to any work being completed at the property, Safeguard sent a bid to PNC. PNC either approved or denied the bids. Any work completed at the property was at the request of PNC, but was completed by independent subcontractors of Safeguard. (Doc. # 75, Meyer Dep. p. 32, 34-35, and 71-72.)

         In 2013, Safeguard submitted a bid to PNC to remediate mold in the interior of the house. PNC approved the bid to clean the mold with bleach and then seal with a white, mold-inhibiting “Kilz” brand product in multiple areas of the house. An independent contractor of Safeguard used the white product to seal the areas it treated for mold in April 2013. (Id. p. 97-98, 102-104.) Plaintiffs became aware of the mold treatment in 2013 when a realtor retained by Plaintiffs to periodically check on the status of the house noticed it and advised Mr. Pearson. (Doc. #74, Pearson Dep. p. 30.) Plaintiffs have never had the house inspected for the presence of mold. (Id. at 43.) Plaintiffs have no evidence to explain how the mold came to be in the house. (Id. at 56.) Plaintiffs do not dispute that mold was in the house in 2013. (Id.)

         In 2011, Plaintiffs filed a bankruptcy proceeding in California. (Id. at 11.) As part of the bankruptcy plan, Plaintiffs entered into an agreed payment schedule with the Banks. (Id. at 21.) The personal bankruptcy proceeding was dismissed in 2013 because Plaintiffs failed to make the required payments under the court-approved plan. (Id. at 11.) Plaintiffs have not made payments on the mortgage following the dismissal of the bankruptcy proceedings. (Id. at 22.) At no point during the bankruptcy proceedings did Plaintiffs assert that there had been damage to the property in connection with property preservation efforts. (Id. at 104-107.)

         Now, Plaintiffs allege breach of fiduciary duty against the Banks and negligence against all Defendants. In their opposition to summary judgment, Plaintiffs also attempt to raise a breach of contract claim not pled in the complaint. The Banks and Safeguard have separately moved for summary judgment. For the reasons explained herein, the Court finds that no issue of material fact remains for a jury to decide on any of Plaintiffs' claims. Consequently, Defendants are entitled to summary judgment on all of Plaintiffs' claims.

         II. LEGAL STANDARD

         Rule 56(c) of the Federal Rules of Civil Procedure governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith 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 that the moving party is entitled to a judgment as a matter of law * * *.

         In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-944 (6th Cir.1990).

         A fact is “material” only if its resolution will affect the outcome of the lawsuit. Andersonv. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, “the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-1480 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established which create a genuine issue of material fact. Fulson v. City of ...


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