United States District Court, N.D. Ohio, Eastern Division
THOMAS M. PEARSON,, Plaintiffs,
PNC BANK, NATIONAL ASSOCIATION,, Defendants.
MEMORANDUM OPINION AND ORDER
R. ADAMS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.)
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
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.
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.)
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.)
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.)
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.
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 * * *.
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).
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