United States District Court, D. Rhode Island
DAWARI DAN-HARRY, on behalf of himself and all others so similarly situated, Plaintiff,
PNC BANK, N.A., Defendant.
MEMORANDUM AND ORDER
William E. Smith, Chief Judge.
October 17, 2018, Magistrate Judge Patricia A. Sullivan filed
a Report and Recommendation (“R. & R.”) in
this action recommending that the Court grant summary
judgment in favor of the Defendant on Plaintiff's
remaining claim for breach of contract. See
generally R. & R., ECF No. 41. Plaintiff filed a
timely objection on November 2, 2018. See Pl.'s
Obj. to R. & R. on Def.'s Mot. for Summ. J.
(“Pl.'s Obj.”), ECF No. 43. For the reasons
stated herein, the Plaintiff's objections are OVERRULED.
The Court ACCEPTS Magistrate Sullivan's R. & R.,
ADOPTS its recommendations and reasoning, and GRANTS the
Defendant's Motion for Summary Judgment, ECF No. 28.
party timely objects to a magistrate judge's report and
recommendation, the Court reviews the challenged rulings
de novo. 28 U.S.C. § 636(b)(1)(C); United
States v. Raddatz, 447 U.S. 667, 673-76 (1980). This
standard does not, however, entitle an objecting party to
“shift gears” before the district judge by
interposing arguments that the party failed to raise before
the magistrate judge. Paterson-Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.
1988) (“We hold categorically that an unsuccessful
party is not entitled as of right to de novo review by the
judge of an argument never seasonably raised before the
magistrate.”). Any such arguments have been waived.
the Plaintiff objects on the grounds that (1) genuine
disputes of material fact remain concerning whether the
Defendant satisfied the “certified letter” and
the “trip to the property” requirements of 24
C.F.R. § 203.604, and (2) the R. & R.'s finding
that the Plaintiff has failed to demonstrate damages is
erroneous. All these arguments are without merit.
first set of objections concern the Defendant's proof of
compliance with § 203.604, which establishes certain
conditions precedent that a mortgagee must satisfy prior to a
foreclosure. See 24 C.F.R. § 203.604. Section
203.604(b) provides “[t]he mortgagee must have a
face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three
full monthly installments due on the mortgage are
unpaid.” The regulation also states:
reasonable effort to arrange a face-to-face meeting with the
mortgagor shall consist at a minimum of one letter sent to
the mortgagor certified by the Postal Service as having
been dispatched. Such a reasonable effort to arrange a
face-to-face meeting shall also include at least one trip
to see the mortgagor at the mortgaged property . . .
.” Id. at § 203.604(d)(emphasis added).
Plaintiff first argues that the phrase “certified by
the Postal Service as having been dispatched” means
that any proof of mailing must come from the Postal
Service. See Pl.'s Obj. 2-3.
The record contains no indication that the Plaintiff raised
this specific argument before Magistrate Judge
Sullivan. Instead, the Plaintiff argued that the
tracking data information his counsel received from the
Postal Service website - evidence Magistrate Judge Sullivan
correctly concluded was irrelevant and inadmissible - did not
conclusively show delivery. The Plaintiffs thus waived any
argument based on interpreting the language of the
See Paterson-Leitch Co., 840 F.2d at 990-91.
the Court is not persuaded to adopt the Plaintiff's
creative construction of 24 C.F.R. 203.604(d). The plain
language of subsection (d) does not restrict the proof the
Defendant may rely on to show that it complied with the
regulation. Moreover, the Plaintiff's interpretation of
the regulation is, if not unique, contrary to the
overwhelming weight of authority. See, e.g.,
Aazami v. Wells Fargo Bank, N.A., No.
3:17-cv-01564-BR, 2019 WL 281286, *8 (D. Or. Jan. 22, 2019)
(describing compliance with § 203.604's
“certified-letter provision”); Campbell v.
Wells Fargo Bank, N.A., No. 1:14-cv-03341-TWT-JFK, 2016
WL 6496458, at *8 (N.D.Ga. Oct. 6, 2016), adopted by, No.
1:14-CV-3341-TWT, 2016 WL 6462070 (N.D.Ga. Nov. 1, 2016);
Countrywide Home Loans, Inc. v. Wilkerson, No. 03 C
50391, 2004 WL 539983, at *1 (N.D. Ill. Mar. 12, 2004)
(“The court interprets this straightforward language to
require both the sending of a certified letter and a personal
visit to constitute a reasonable effort at arranging a
face-to-face meeting.”); Wash. Mut. Bank v.
Mahaffey, 796 N.E.2d 39, 44 (Ohio Ct. App. 2003)
(“Section 203.604(d) clearly prescribes a certified
letter as the minimum requirement for a reasonable effort to
arrange a face-to-face meeting.”).
the “trip to the property” requirement, the
Plaintiff does not dispute that a trip occurred, but rather
objects on the grounds that the trip was untimely as it
occurred on March 4, 2012, rather than March 1, 2012.
See Pl.'s Obj. 5-6. The Court
again disagrees with the Plaintiff's proposed
construction of the regulation. It is incumbent on the
mortgagee to make a “reasonable effort” to
arrange a face-to-face meeting “before three full
monthly installments due on the mortgage are unpaid.”
24 C.F.R. § 203.604(b) (emphasis added). The regulation is
silent concerning whether the mortgagee's efforts must be
completed within the three-month timeframe. Here,
the Defendant's attempt to arrange a face-to-face meeting
with the Plaintiff began on February 27, 2012 with its
mailing of a certified letter. Sexton Decl. ¶¶
9-12, Ex. 1, ECF No. 32. The touchstone of § 203.604(b)
is “reasonableness.” In the absence of any
guidance to the contrary, the Court agrees with the
Defendants that it would be unreasonable to interpret §
203.604(b)'s terms to nullify an effort to arrange a
meeting that began three days before a third installment
became overdue but concluded three days after it lapsed into
unpaid status. Indeed, the Plaintiff has highlighted that
other courts have found § 203.604's deadlines to be
“aspirational” rather than compulsory. Pl.'s
Obj. 8-9; see also PNC Mtge. v. Garland, 12 MA 222,
2014 WL 1325908, *6 (Oh. App. Ct. Nov. 10, 2016). Thus, the
Court concurs with the R. & R.'s finding that the
Defendant “complied fully with the § 203.604(d)
‘reasonable effort' requirement and that there was
no breach of its contractual duty to Plaintiff to do
so.” R. & R. at 11.
Plaintiff's last objection faults the R. & R.'s
finding that Plaintiff failed to demonstrate damages, which
would comprise an independent ground for granting judgment in
the Defendant's favor as a matter of law. The objection
is untenable. Count III of the Complaint alleges breach of
contract. Compl. 16, ECF No. 1-1. Damages are a fundamental
element of this claim. See Petrarca v. Fidelity &
Casualty Ins. Co., 884 A.2d 406, 410 (R.I. 2005). The
Plaintiff had no equity in the property and lacked funds to
make any mortgage payments at the time of his default.
Def.'s Statement of Undisputed Facts ¶ 12, ECF No.
30. In the absence of other evidence, his assertions that a
face-to-face meeting would have allowed him to “work
out an arrangement” to avoid foreclosure are mere
wishful-thinking. Dan-Harry Aff. ¶¶ 12-14, ECF No.
38. The Plaintiff has accordingly failed to offer proof of
damages caused by the Defendant's alleged breach of
contract. See Rourk v. Bank of America Nat.
Ass'n, 2013 WL 5595964, *6 (Oct. 11, 2013),
aff'd, 587 Fed.Appx. 597 (11th Cir.2014)
(“[I]t was Plaintiff's failure to tender a ...