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Dehart v. HomEq Servicing Corp.

United States District Court, E.D. Pennsylvania

September 22, 2014

JAMES S. DEHART, et al., Plaintiff,
v.
HOMEQ SERVICING CORPORATION, et al., Defendants

Page 247

For JAMES S. DEHART, JUDY DEHART, Plaintiffs: DANIEL J. MAZAHERI, LEAD ATTORNEY, LAMPETER, PA.

For HOMEQ SERVICING CORPORATION, formerly known as TMS MORTGAGE INC., doing business as THE MONEY STORE, WACHOVIA BANK OF DELAWARE, NATIONAL ASSOCIATION, D/B/A AND/OR F/K/A HOMEQ SERVICING CORPORATION, Defendants: DONALD E. WIEAND, JR., LEAD ATTORNEY, STEVENS & LEE, BETHLEHEM, PA.

For MILSTEAD & ASSOCIATES, LLC., MICHAEL J. MILSTEAD, GREG WILKINS, also known as GREG WILKINSON, Defendants: JAMES BUCCI, GENOVA BURNS, PHILADELPHIA, PA; DONALD E. WIEAND, JR., STEVENS & LEE, BETHLEHEM, PA; NICHOLAS J. REPICI, GENOVA BURNS & GIANTOMASI, PHILADELPHIA, PA.

For WELL FARGO BANK, NA, aka WELLS FARGO HOME MORTGAGE aka WELLS FARGO, Defendant, ThirdParty Plaintiff: DONALD E. WIEAND, JR., LEAD ATTORNEY, STEVENS & LEE, BETHLEHEM, PA.

For BARCLAYS BANK PLC., ThirdParty Defendant: JEFFREY P. MACHARG, LEAD ATTORNEY, SMITH MOORE LEATHERWOOD LLP, CHARLOTTE, NC.

Page 248

Memorandum Opinion

MITCHELL S. GOLDBERG, J.

On November 9, 2007, Plaintiffs' home was improperly sold at a sheriff's sale, on the mistaken understanding that Plaintiffs' mortgage obligations were in substantial arrears, and that an appropriate foreclosure judgment had been entered several years prior. On December 14, 2007, with the consent of the mortgage company, the sale of the home was set aside, and Plaintiffs were never removed from their home. This lawsuit contends that the Defendants[1], who are persons and entities involved in the servicing, lending, and foreclosure at issue, committed several torts and breached the mortgage agreement.

Currently before me is Defendants' motion for summary judgment. Despite having engaged in substantial discovery, Plaintiffs have failed to provide sufficient evidence that they were the victims of any torts, or that they suffered any damages from the breach of contract apart from any costs and fees associated with having the sheriff's sale set aside. Accordingly, and for reasons set forth below, I will grant Defendants' motion.

I. Factual Background

The following facts are undisputed unless otherwise indicated:

On February 23, 1996, Plaintiffs James and Judy DeHart obtained a fixed-rate fifteen-year home loan at 10.25% interest in the amount of $126,400, secured by a mortgage on their property. (Wells Fargo MSJ, Ex. 1-2.) The note listed the monthly payment of principal and interest as $1,132.68. (Wells Fargo MSJ, Ex. 2.) The mortgage contained a paragraph requiring additional payments for, among other things, taxes and insurance:

2. Funds for Taxes and Insurance.

Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the note, until the Note is paid in full, a sum (" Funds" ) for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; . . . (c) yearly hazard or property insurance premiums . . . .

( Wells Fargo MSJ, Ex. 1 (emphasis added).) An additional term of the mortgage provided that the mortgage servicer would apply payments to taxes and insurance owed before any application to interest and principal. (Wells Fargo MSJ, Ex. 1.) Further, the mortgage required Plaintiffs to maintain property insurance, and indicated that if they did not, the Lender had the right to obtain insurance on its own, and that any premiums paid by the Lender in that manner would " become additional debt of Borrower secured by this Security Instrument" (Wells Fargo MSJ, Ex. 1, ¶ 7.):

5. Hazard or Property Insurance.

Borrower shall keep the Improvements now existing and hereafter erected on the Property insured against loss by fire, [certain defined hazards], and any other hazards . . . for which Lender requires insurance. . . . If Borrower fails to maintain the coverage described above, Lender may, at the ...


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