                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

ROBERT M. MCDEVITT,

               Plaintiff,

        v.                                          Civil Action No. 12-1297 (GK)

WELLS FARGO BANK, N.A.,

               Defendant.


                                   MEMORANDUM OPINION

        Plaintiff       Robert     M.    McDevitt     ("McDevitt"           or    "Plaintiff")

brings       this     diversity        action    against    Wells         Fargo    Bank,      N.A.

("Wells Fargo" or "Defendant")                   for wrongful foreclosure,                 breach

of contract, and negligent infliction of emotional distress.

        This    matter      is    before    the     Court     for        reconsideration         of

Defendant's          Motion      for    Summary     Judgment         [Dkt.       No.    19]     and

Plaintiff's Motion for Summary Judgment on Liability and Partial

Summary Judgment on Damages                 [Dkt.   No.     20].         Upon consideration

of   the     parties'       Amended      Joint    Statement         of    Stipulated          Facts

[Dkt.    No.    31]    and reconsideration of the Motions,                        Oppositions,

Replies,       and    the     entire     record     herein,        and     for    the    reasons

stated below,          the Court grants Wells Fargo's Motion and denies

Plaintiff's Motion.
I .   BACKGROUND

      A.   Factual Background1

           1.      The Note and Deed of Trust

      On July 18,     2003,   McDevitt    executed a    30-year Adjustable

Rate Mortgage Note ("Note") and Deed of Trust with World Savings

Bank for a $520,000 loan to purchase a private residence at 211

C St. NE in Washington D.C.        (the "Property") .     The loan had an

indexed interest rate that changed monthly and a monthly payment

that changed annually on September 1 of each year. See Affidavit

of Robert M. McDevitt, Ex. A (Note)        ~   2 [Dkt. No. 1-2].

      At Paragraph 3 of the Note, McDevitt agreed that:

      I will pay Principal and interest by making payments
      every month.

      I will make my monthly payments on the 1st day of each
      month beginning on September 01, 2003.     I will make
      these payments every month until I have paid (i) all
      the Principal and interest, and (ii) any other charges
      described below that I may owe under this Note, and
      (iii) any charges that may be due under the Security
      Instrument [.]

The Note provided that McDevitt would be obligated to pay a late

charge if he did not pay his monthly payment within 15 calendar

days of the date it was due,        and also that any failure to pay




1
   Unless otherwise noted,    the facts set forth herein are
undi"sputed and drawn from the parties' Amended Joint Statement
of Stipulated Facts [Dkt. No. 31].
                                    -2-
the   monthly       payment        on   the    due    date    constituted      a    default,

permitting the lender to accelerate the loan.                          Note~   7(A)-(C).

      McDevitt        had    the    right      to    make    advance    payments      on his

mortgage,     subject to certain restrictions.                      Paragraph 5 of the

Note stated:

      I HAVE THE RIGHT TO MAKE PAYMENTS OF PRINCIPAL AT ANY
      TIME BEFORE THEY ARE DUE.     A PAYMENT OF PRINCIPAL
      BEFORE IT IS DUE IS CALLED A "PREPAYMENT."      WHEN I
      MAKE A PREPAYMENT, I WILL TELL THE LENDER IN WRITING
      THAT I AM DOING SO.   THE LENDER MAY REQUIRE THAT ANY
      PARTIAL PREPAYMENT BE MADE ON THE SAME DATE THAT A
      PAYMENT IS DUE.        IF I MAKE A PARTIAL PREPAYMENT,
      THERE WILL BE NO CHANGES IN THE DUE DATES OR AMOUNTS
      OF MY PAYMENTS UNLESS THE LENDER AGREES IN WRITING TO
      THOSE CHANGES [ . ]

      Note    ~ 5    (emphasis in original).

              2.      The April 14, 2008 Payment at Wachovia Bank

      World        Savings    Bank      (the    holder       of   McDevitt's       Note)     was

subsequently acquired by Wachovia Corporation and, in late 2007,

changed      its      name     to       Wachovia        Mortgage,        FSB       ( "Wachovia

Mortgage") .        Wachovia Corporation also owned Wachovia Bank, N.A

( "Wachovia Bank" ) .          Wachovia        Bank and Wachovia Mortgage                   were

separate legal         entities,        but had a        servicing agreement,              which

enabled a Wachovia Mortgage customer to submit mortgage payments

at Wachovia Bank.

      On April 14, 2008, McDevitt went to a Wachovia Bank branch

on Pennsylvania Avenue in Washington D.C.                         to make two mortgage

                                               -3-
payments: one in the amount of $4,400i the other in the amount

of $25,000.           On the subject line of his $4,400 check, McDevitt

wrote     "4/01/08 payment."             On the        subject line of his               $25, 000

check,    McDevitt         wrote     "Deferred        interest       +    pay off       one     year

principal       payments."          McDevitt         orally instructed employees at

Wachovia Bank that he wanted the $25,000 check to be applied to

future monthly payments as they would come due. 2

     Along        with     the     two   checks,        McDevitt          also    submitted          a

payment coupon of the kind he normally used to mail his payments

to Wachovia Mortgage.                The payment coupon contained preprinted

text reciting four payment options:                       (1)    a "Minimum Payment" of

$2,647i     (2)       an   "Interest         Only"     payment       of    $3807.61i          (3)    a

"Sched.    Principal and Interest" payment of $4317.33 i                             and      (4)    a

"15-Year       Pmt.    Plan"     payment       of     $6,499.93.           See    Affidavit         of

Robert    M.      McDevitt,        Ex.   C    (photocopy        of       checks   and    payment

coupon)    [Dkt. No. 1-2].



2
    Although Wachovia Bank could accept a payment on behalf of
Wachovia Mortgage, it did not have access to the customer's
mortgage account and could not make any decisions as to how a
mortgage payment would be applied.     However, McDevitt was not
aware of the distinction between Wachovia Mortgage and Wachovia
Bank.   He believed that the "Wachovia" Bank branch that accepted
his payments was the same "Wachovia"         entity holding his
mortgage, and was not told otherwise by the Wachovia Bank
personnel with whom he dealt on April 14, 2008.


                                               -4-
        Next        to    these      four    options,       the    payment      coupon   included

lines for McDevitt to specify:                        (1)    the amount of his payment,

( 2)        any     "Additional            Amount     to     go       to      Principal/Deferred

Interest,"          and     ( 3)    the     "Total Amount Enclosed."               On the first

line, McDevitt wrote "4,400" to indicate his payment amount.                                     On

the     second           line,      McDevitt     crossed       out     the     words     "Deferred

Interest,"             left unchanged the word               "Principal,"        and added the

words        "one year payments,"               such that          (construed     in the      light

most favorable to McDevitt)                     the text read "Additional Amount to

go     to    Principal/ one year payments:                        $25, 000"       On the      third

line,       he entered             [$]29,400 for the total payment enclosed with

his payment coupon.

        McDevitt          asked      the    Wachovia       Bank personnel         with whom he

dealt       for a        receipt of his payment,                  and he received a        single

page photocopy of the two checks along with his payment coupon.

The photocopy was date-stamped by Wachovia Bank and initialed by

the branch manager.

                  3.       Wachovia's Application of the April 14 Payment

        Wachovia Mortgage subsequently applied the $4,400 check to

McDevitt's             regular      monthly     payment       and     the     $25,000    check    to

reduce        his        principal        balance.          When     McDevitt      received      his

monthly mortgage                 statement     in June       2 008,    he     learned that       his

$2 5, 0 0 0 payment had not been held for future monthly payments,
                                                    -5-
as he requested,             but applied to reduce his principal balance.

He then contacted Wachovia Mortgage to correct the application

of   his payment,        and was         advised to         "continue making payments

until we've resolved this."                 There is no evidence that McDevitt

made a record of the date on which this conversation took place

or the name of the individual with whom he spoke.

        McDevitt       continued to make              his   monthly mortgage        payments

throughout       all    of    2008,     2009,    and January 2010.               During this

time,     McDevitt       made      multiple           telephone     calls    to     Wachovia

Mortgage     and Wells         Fargo 3   and was        given the     same       advice    each

time: continue making his monthly payments until the application

of his $25,000 payment was resolved.                         Again,   McDevitt did not

present evidence of the dates on which these conversations took

place,     the   names       of   the    individuals         with   whom    he    spoke,     or

whether such indi victuals worked for Wachovia Mortgage or Wells

Fargo.

        In or around January 2010, McDevitt spoke by telephone with

a customer service representative who told him "Don't worry,                                its

handled"    and    implied        that    " [his]      problem had      been      resolved."

This conversation left McDevitt with the impression that he was

not required to make any more loan payments for approximately 12

3
  In late 2009, Wachovia Mortgage was merged into Wells Fargo
Bank but continued to trade under the name Wachovia Mortgage.

                                                -6-
months starting in early 2010, although Wells Fargo Bank did not

send     him    anything          in   writing       to     confirm    that     his   payment

scheduled had been modified.                   As with the other telephone calls,

McDevitt does not appear to have made any record of the date on

which this conversation took place or the name of the individual

with whom he spoke.

        In   February         2010,     McDevitt          stopped    making     his   monthly

mortgage payments.

                4.        The Notice of Default

        On February 22,            2010,   Wachovia Mortgage wrote to McDevitt

to advise him that his mortgage payment due February 1, 2010 had

not been received.                On March 18,         2010,    Wachovia Mortgage again

wrote to McDevitt, expressing concern that his loan was then two

months in arrears, and proposing solutions to avoid foreclosure.

On April       5,    2010,       Wachovia Mortgage sent McDevitt notice that

"Your    loan       has    been    approved      for      commencement     of    foreclosure

action which may cause you to lose your property and any owner's

equity."            On    June    4,   2010,    Wachovia        Mortgage      sent    McDevitt

another letter advising him of his loan's delinquent status and

providing       information            about     the       federal    government's        Home

Affordable Modification Program.                       Wells Fargo,       as successor to

Wachovia Mortgage,               then retained the             law firm    of   Rosenberg    &


Associates ("Rosenberg") to commence foreclosure proceedings.
                                               -7-
             5.      The Foreclosure Proceedings

      Rosenberg's          first    contact       with    McDevitt     appears   to     have

been through a "fair debt letter."                       The parties do not agree on

when the fair debt letter was mailed,                       but stipulated that the

letter was dated July 26, 2010,                   and that Michael Amos          ("Amos"),

the   individual         in     charge     of    McDevitt's       foreclosure    file     at

Rosenberg,     testified that the letter was drafted and mailed on

July 26, 2010.           The parties further stipulated that McDevitt did

not receive the fair debt letter until September 2 or 3,                              2010,

only a few days before the foreclosure sale, which was scheduled

for September 7. 4

      The fair debt             letter advised McDevitt of his default and

the   amount      then     due     on    the    Note.      It   also   stated    that    if,

"within thirty           (30)    days of receipt of this letter,"                McDevitt

disputed all or a portion of the debt in writing,                           or requested

the name 'and address of the original creditor,                           Rosenberg would

cease collection of the debt until it obtained verification of

the debt and ascertained the name and address of the original

creditor.

      On    August        4,     2010,     Rosenberg       also    sent     McDevitt,     by

certified mail,          a Notice of Foreclosure Sale of Real                    Property

4
  The parties proffer different theories as to why McDevitt did
not receive the fair debt letter until September, but these
theories are not material to the Court's analysis.
                                                -8-
("foreclosure notice") .                     In fact,     Rosenberg sent McDevitt              two

such     notices,           one     addressed        to     "Occupant"         and    the    other

addressed        to     "Robert         M.     McDevitt."         The    foreclosure        notice

advised McDevitt that,                   to satisfy his debt to Wells Fargo,                   his

Property was to be sold at a foreclosure sale on September 7,

2010   at    10:13         a.m.    See Ex.       C   to McDevitt's Mot.              (Foreclosure

Notice)      [Dkt.         No.     20-4].        However,        McDevitt      never     received

either      of    the       foreclosure          notices,     and       both    were     returned

"unclaimed"           by     the        U.S.     Postal     Service.            No     definitive

explanation was offered by either party as to why the notices

were "unclaimed."

       At   9:27       a.m.        on    the    morning     of     the    foreclosure        sale,

September 7,          2010,       McDevitt emailed Rosenberg that he disputed

the debt and requested the name of the creditor to whom the debt

was owed.        However, the foreclosure sale went forward, and later

that day, McDevitt's Property was sold at foreclosure to a third

party for $510,000.                 The next day, Amos responded to McDevitt's

email, and sent him verification of the debt and the name of the

creditor.

       After the           foreclosure,         McDevitt     continued to live at              the

Property pending various                     legal    challenges,        but   ultimately was

evicted in March 2012.                       He had     $142,876.56       of    equity in the

Property.
                                                  -9-
             B.     Procedural Background

             On August       3,    2012,       McDevitt    filed his     Complaint alleging

claims            for    wrongful          foreclosure,      breach      of     contract,         and

negligent            infliction           of   emotional     distress.          [Dkt .   No.      1] .

Wells Fargo moved to dismiss the Complaint pursuant to Fed.                                        R.

Civ.         P.   12 (b) (6),     which the Court denied on September 25,                        2012

    [Dkt .    No.    12] .        On February 28,          2013,    after discovery,           Wells

Fargo filed             a    Motion for         Summary Judgment        [Dkt.    No.     19] ,    and

McDevitt filed a cross Motion for Summary Judgment on Liability

and Partial Summary Judgment on Damages                            [Dkt. No. 20].        On March

14, 2013,            the parties each filed Oppositions [Dkt. Nos. 21, 22],

and on March 28,                  2013,    they filed their Replies             [Dkt. Nos.        23,

24] .         On March 29, 2013, the Court denied the Motions in a one-

page Order,             and referred the parties to a Magistrate Judge for

settlement.             [Dkt. No. 25].

             On May 8,       2013,   after unsuccessful settlement negotiations,

the Court held a status conference and agreed to reconsider the

parties'            Motions for Summary Judgment.                   The parties then filed

an Amended Joint Statement of Stipulated Facts                                [Dkt. No.     31]    to

aid the Court in its reconsideration of the Motions. 5




5
   The parties have stipulated to these facts                                 for purposes of
summary judgment only.
                                                   -10-
II.     STANDARD OF REVIEW

        Summary          judgment        may    be        granted       if    the   pleadings,         the

discovery and disclosure materials on file,                                    and any affidavits

show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of

law.     See Fed. R. Civ. P. 56(c); Arrington v. United States, 473

F.3d 329,          333    (D.C.       Cir.    2006).            To prevail on such a motion,

the     moving       party        must       demonstrate           either      that     there    is     no

~genuine"         factual       dispute,         or        that     any      such dispute        is    not

~material"         to     the     case.         ~A    dispute       over a      material        fact    is

'genuine'         if 'the evidence is such that a reasonable jury could

return a          verdict       for     the    non-moving party. '"                   Arrington,       473

F.3d at 333          (quoting Anderson v.                   Liberty Lobby,            Inc.,   477 U.S.

242,    247       (1986)).        A fact is           ~material"        if it might affect the

outcome       of     the        case      under       the        substantive        governing         law.

Liberty Lobby, 477 U.S. at 248.

        As the Supreme Court stated in Celotex Corp.                                     v.   Catrett,

~the    plain language of Rule 56(c) mandates the entry of summary

judgment,         after      adequate          time       for    discovery and upon motion,

against       a    party        who    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



                                                     -11-
trial."        477     u.s.       317/        322       (1986).        The    Supreme                 Court   has

further explained/

      When the moving party has carried its burden under
      Rule 56(c)  its opponent must do more than simply show
                       1

      that there is some metaphysical doubt as to the
      material facts.          Where the record taken as a
      whole could not lead a rational trier of fact to find
      for the non-moving party 1 there is no "genuine issue
      for trial.       11




Matsushita Elec. Indus. Co. v. Zenith Radio Corp.                                   1   475 U.S. 574 1

586-87 (1986)         (footnote and citations omitted) .

      In     other      words     1     "'   [t] he     mere    existence       of       some           alleged

factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.                                       1
                                                                                              "        Scott v.

Harris   1   550     U.S.     372 1      380      (2007)       (quoting Liberty Lobby                     I   477

U.S. at 247-48)             (emphasis in original).

      At the same time 1                 the Supreme Court has also consistently

emphasized that             the       judge 1 s       function    on a       motion           for       summary

judgment is not             "to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue

for   trial.   11
                       Liberty          Lobby 1        477     U.S.    at    249.             "Credibility

determinations/ the weighing of the evidence/ and the drawing of

legitimate          inferences          from      the    facts        are    jury       functions         I   not

those of a judge" deciding a motion for summary judgment.                                                     Id.

at 255; see also Reeves v. Sanderson Plumbing Prods.                                              1   Inc./   530
                                                      -12-
u.s.     133,        150    (2000).          Therefore,         summary       judgment        is   only

appropriate if the non-movant                       fails       to offer any "evidence on

which        the     jury    could     reasonably          find     for   the       [non-movant] . "

Liberty Lobby, 477 U.S. at 252.

        In deciding a motion for summary judgment,                                 "the court must

draw all reasonable inferences in favor of the nonmoving party,

and     it    may     not    make     credibility determinations                     or    weigh     the

evidence."           Reeves, 530 U.S. at 150.                   Ultimately, the 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."

Liberty Lobby, 477 U.S. at 251-52.

III. ANALYSIS

        A.         Wrongful Foreclosure

        In Count I of the Complaint, McDevitt asserts a claim for

wrongful           foreclosure.         Under        District       of    Columbia          law,     "an

action for wrongful or improper foreclosure may lie where the

property           owner    sustains        damages        by    reason       of    a     foreclosure

executed in a manner contrary to law."                            Johnson v. Fairfax Vill.

Condo.        IV Unit       Owners     Ass'n,        641     A.2d    495,      505        (D.C.    1994)

(citation omitted).                  In his Complaint,              McDevitt asserted that

Wells        Fargo    was    liable         for    wrongful       foreclosure           because      the

Rosenberg firm did not send him written notice of foreclosure as
                                                   -13-
required under District of Columbia law.                      Compl.    ~     34   (citing

D.C. Code      §§   42-815; 42-815.01).          However, McDevitt now concedes

that Rosenberg did comply with the District of Columbia notice

provisions by sending him the foreclosure notice in August, even

if    he   never    received    it.      Pl.'s    Opp'n at      20    [Dkt.    No.      22].

Consequently,        the   disagreement     between     the    parties        as   to    the

date of mailing the notice of foreclosure is no longer material.

       McDevitt now argues,           however,     that Rosenberg violated the

federal Fair Debt Collection Practices Act                    ( "FDCPA")      in failing

to halt the foreclosure sale on his Property after he disputed

the    debt.        Id.    at   21-23.     He     further      contends       that      this

violation may serve as the predicate for a wrongful foreclosure

claim under District of Columbia law because it resulted in his

foreclosure being "executed in a manner contrary to law."                                Id.

at 23-27.

               1.    Relevant Provisions of the FDCPA

       The   FDCPA provides,          in relevant part,        that    in connection

with   the     collection of      any debt,       a   debt    collector must            send

written notice to the debtor specifying the amount of debt,                              the

name of the creditor to whom it is owed,                     and a statement that,

within 30 days of receipt of the written notice,                       the debtor may

request      certain      information    relating     to     debt.      15     u.s.c.      §


1692g (a)       Further,
                                         -14-
       [i] f the consumer notifies the debt collector in writing
       within [30 days of receipt of the notice] that the debt, or
       any portion thereof, is disputed, or that the consumer
       requests the name and address of the original creditor, the
       debt collector shall cease collection of the debt
       until the debt collector obtains verification of the debt .
          . or the name and address of the original creditor, and a
       copy of such [information] is mailed to the consumer by the
       debt collector.

       15 U.S.C.A.   §   1692g(b).

McDevitt     contends     that   the   Rosenberg    firm   violated          section

1692g (b)    of the FDCPA when it did not postpone the foreclosure

sale after being notified that the debt was disputed,                   nor send

him the requested information until the following day.

       McDevitt does not cite,         and the Court has not found,              any

case    in   which   a   plaintiff     was    permitted    to   use     an     FDCPA

violation as a predicate for a           claim for wrongful           foreclosure

under District of Columbia law. 6            Even assuming, however, that a

wrongful foreclosure claim may be based on a violation of the




6
  As McDevitt concedes, Pl.'s Opp'n at 25, courts considering
claims for wrongful foreclosure have generally assumed that
foreclosure is not wrongful where it complies with the District
of Columbia notice provisions.     See, e.g., Kibunja v. Alturas,
LLC, 856 A.2d 1120, 1123, 1129 (D.C. 2004) (assuming that law
applicable to claim for wrongful foreclosure was District of
Columbia notice statute where "main thrust of [plaintiff's case]
was that they were not given adequate notice" of foreclosure
sale) (citing Johnson, 641 A.2d at 504); Young v. 1st Am. Fin.
Servs., 992 F. Supp. 440, 445 (D.D.C. 1998)       (reasoning that
where "defendants did not violate [D.C. notice statute]
any foreclosure that occurred was not wrongful").
                               -15-
FDCPA, an issue the Court need not reach, McDevitt's claim fail·s

because Wells Fargo is not a proper defendant under the FDCPA.

               2.       The FDCPA Only Applies to "Debt Collectors"

        With one exception, not applicable here,                                   the FDCPA applies

only to      "debt       collectors,"               defined as persons whose principal

business is the collection of debt or who "regularly collect[]

        debts owed or due or asserted to be owed or due another."

15    U.S.C.      §    1692a(6).              A creditor,             such as        Wells    Fargo,       by

contrast,      is not          a    debt      collector and is                 not    subject    to the

FDCPA     unless        it    acquires          a     debt       in    default       solely     for     the

purpose of facilitating collection of such debt.                                           See 15 U.S.C.

§    1692a (4),       (6) .        Because the parties agree                       that Wells Fargo

acquired       McDevitt's           debt        in    2009       as    part     of    a     merger     with

Wachovia Mortgage,                 and that McDevitt's loan was not in default

at    that   time,       Wells          Fargo       indisputably         is    a     creditor,       not    a

"debt collector."

        McDevitt        devotes          much    of       his    papers       to     the    question of

whether      the      Rosenberg          firm        is    a    "debt    collector."            However,

Rosenberg's           status       as    a    debt         collector      is       immaterial     unless

Wells Fargo may be held vicariously liable for the firm's debt

collection activities.                    McDevitt presents no evidence suggesting

Wells     Fargo         had        the       right         to    control        Rosenberg        in     its

foreclosure           activities,            which        is    an essential         prerequisite to
                                                     -16-
any claim based on vicarious liability.                  See, e.g., Moorehead v.

Dist.    of Columbia,        747 A.2d 138,      146    (D.C.    2000)          (relationship

based on control "is the decisive factor in vicarious liability

analysis") . 7

        Therefore,     McDevitt       cannot    bring     such          an     FDCPA    claim

against Wells Fargo because, as a matter of law, the FDCPA does

not     apply    to   Wells    Fargo    in     its    capacity          as     a   creditor. 8

Accordingly, summary judgment shall be granted in favor of Wells

Fargo on Count I.

        B.      Breach of Contract

        In Count II of the Complaint, McDevitt asserts a claim for

breach of        contract.      The    interpretation          of   a        facially   clear

7
   It also is questionable whether a creditor that is not also a
debt collector may ever be held vicariously liable under the
FDCPA.   See, e.g. , Wadlington v. Credit Acceptance Corp. ,   76
F.3d 103, 108 (6th Cir. 1996) ("We do not think it would accord
with the intent of Congress .        for a company that is not a
debt collector to be held vicariously liable for a collection
suit filing that violates the Act only because the filing
attorney is a 'debt collector.'"); Townsend v. Fed. Nat. Mortg.
Ass'n, No. 3:12-cv-00045, 2013 WL 549263, at *10 (W.D. Va. Feb.
12, 2013) (" [C]reditors [may not] be held vicariously liable for
FDCPA violations by independent debt collectors acting on their
behalf.") (citation omitted).     The Court of Appeals in this
Circuit has not yet addressed this issue.
8
  Further, as Wells Fargo points out, McDevitt most probably is
time-barred from bringing any claim under the FDCPA itself
because the FDCPA has a one-year statute of limitations for
civil actions.  See 15 U.S.C. § 1692k(d).   However, it is not
necessary to reach this issue in light of the Court's ruling
above.

                                         -17-
contract is a question of law to be resolved by the court.                                                       See,

e.g.,    NRM Corp. v. Hercules,                      Inc.,          758 F.2d 676,             682     (D.C.      Cir.

1985).        Thus,         where a contract is unambiguous,                              summary judgment

is    appropriate,                "'since,         absent             such       ambiguity,          a     written

contract          duly signed and executed speaks                                 for     itself         and binds

the     parties             without        the    necessity                of     extrinsic          evidence.'"

Angulo       v.    Gochnauer,             772     A.2d         830,       834     (D.C.      2001)        (citation

omitted).               A    contract        is    ambiguous               when     "the      provisions           in

question          are       reasonably          susceptible               of    different      constructions

or interpretations."                      1901 Wyoming Ave. Co-op. Ass'n v. Lee,                                  345

A.2d 456, 461 n.7                 (D.C. 1975).

        McDevitt argues that Wells Fargo's Motion should be denied

because the parties dispute:                             (1)    how often a payment needed to

be    made        under       the    contract,            (2)       "the        mechanism       for       contract

alterations,"               and     (3)    whether his                $25,000       payment         was    applied

properly.           P1 . ' s      Opp' n    at    15 ,     16 ,       18 . 9      However,      as       discussed

below,    the Note unambiguously required McDevitt to make monthly

payments,          and       further       required            that        any    modifications             to    his

payment schedule be made in writing.                                           Therefore,      the Court may

resolve       the       first       two     disputes           as     a    matter       of    law.         Because



9
   McDevitt also argues that the parties dispute why he stopped
making his mortgage payments, Pl.'s Opp'n at 19, but McDevitt's
motivation for not paying his mortgage is immaterial to the
legal issues presented in the Motions.
                              -18-
there          is    no    genuine         dispute     that    McDevitt     stopped       making    his

monthly             payments          without     obtaining        the    Bank's     agreement       in

writing,            the third issue is not relevant to disposition of the

claim.

                     1.         The Note Required McDevitt to Make Payments
                                Every Month

          McDevitt              first    argues       that    although      he     failed    to    make

payments            in February through September of 2010,                          he was not       in

default             because       his    advance      payment      of    $25,000    in April       2008

satisfied the payments                         otherwise due       for    that    period of       time.

McDevitt contends that his action was consistent with Paragraph

3    of    the Note,             which he       construes to mean that              so    "long as a

borrower .                 . submitted a payment for each month," the borrower

was not literally required to make a payment each month.                                          Pl.'s

Opp'n at 15.               (emphasis in Pl.'s Opp'n)

          However,          the       Note     does   not     require     payments       "for"    every

month.              It    clearly states           that      McDevitt     was    required    to    "pay

Principal and interest by making payments every month [,]

on       the    1st       day    of     each    month,"      and   "every month          [thereafter]

until          [he had]         paid [ ] all the Principal and interest[.]"                        Note

~    3    (emphasis             added) .       This    language does        not    merely set       the




                                                      -19-
total dollar amount which McDevitt was to have paid off, it also

dictates the precise frequency and timing of each payment. 10

        Moreover,      Paragraph 5 addressed how,                  if at all, McDevitt,s

payment      schedule        would    be     affected       in    the     event        he    made    an

advance payment.         It states:

        IF I MAKE A PARTIAL PREPAYMENT, THERE WILL BE NO
        CHANGES IN THE DUE DATES OR AMOUNTS OF MY PAYMENTS
        UNLESS THE LENDER AGREES IN WRITING TO THOSE CHANGES.

        Therefore,      McDevitt,s           argument       that    his         advance       payment

relieved him of the obligation to make future monthly payments

is     inconsistent      with        the    plain       language     of     the     Note,         which

literally     required payments               "each,,      and    "every   11
                                                                                 month       for     the

life    of   the     loan,     regardless          of    any prepayments,              unless        the

lender agreed otherwise in writing.

              2.      The Writing Requirement Was Not Modified by the
                      Bank's Conduct

        McDevitt      also     argues         that      "despite        whatever            the     loan

agreements         said[,]     the    Bank,s       actual        practice        was    to        simply

alter    [the contract, s]           terms verbally at McDevitt, s request [.]                         11




Pl. , s Opp, n at 17.           McDevitt points to instances in which the

Bank     orally      agreed     to         waive     his    late     fees.             From        these


10
   McDevitt appears to have had a limited right to pay less than
the full amount of interest due each month, with the result that
any deficiency would be added to his principal balance as
deferred interest.    See Note ~ 3 (E) - (F) This feature of the
Note is not at issue.
                                               -20-
occasions, he reasons that "a reasonable juror could infer that

[his payment        schedule had been verbally modified because]                                  the

Bank granted                        special    accommodations           verbally and          as    a

matter of course."             Id.

        However,    McDevitt does not articulate any legal theory by

which the Bank's verbal waiver of late fees on a case-by-case

basis        affected         its     future         right       to    require        that        any

modifications to his payment schedule be in writing.                                   McDevitt

suggests that the Bank's waiver of late fees is relevant because

"the contract between the parties left out important details and

policies,      leaving them to be determined outside the contract as

they    arose. "        Id.         This    argument        is   simply   incorrect          as    it

relates to his payment schedule.                       As discussed above,             the Note

did    not     "le[ave]       out     important       details"        regarding       McDevitt's

payment schedule or the manner in which it would be modified.

Therefore, McDevitt may not use extrinsic evidence in an attempt

to contradict the Note's plain and unambiguous terms.

        To the extent McDevitt is arguing that the Bank's conduct

over     the    course         of     the     loan     somehow        waived     the     writing

requirement        in   its     entirety,       he     is    also     incorrect.        While       a

party may waive its rights under a contract,                              a court will not

infer     waiver        from        the     party's     conduct        absent     a     "'clear,

unequivocal and decisive act of the party who is claimed to have
                                               -21-
waived its rights, so consistent with an intention to waive that

no   other       reasonable       explanation       is   possible.'"             Kersey   v.

Washington Metro. Area Transit Auth.,                    533 F.   Supp.        2d 181,    196

(D.D.C. 2008)          (quoting 13 Williston on Contracts              §   39:28 at 626-

27   (4th ed.      2000)).        The Bank's occasional oral waiver of late

fees is not evidence -              and certainly is not clear,                unequivocal

and decisive evidence -              that    the Bank abandoned the right                  at

issue      in   this     case,     namely    that    McDevitt's     monthly          payment

schedule could not be changed unless the Bank agreed in writing

to any such change.

        McDevitt       concedes     that    "no     writing    exists          now   or   has

existed     altering        the   contract's       terms."     Pl.'s       Opp'n     at   17.

Therefore,       for all the foregoing reasons, the Court shall, as a

matter of law, grant summary judgment in favor of Wells Fargo on

Count II.

      C.        Negligent Infliction of Emotional Distress

        Finally,       in   Count    III,     McDevitt       asserts       a    claim     for

negligent infliction of emotional distress.                       Under District of

Columbia law,

       [A] plaintiff may recover for negligent infliction of
      emotional distress if the plaintiff can show that (1)
      the defendant has a relationship with the plaintiff,
      or had undertaken an obligation to the plaintiff, of a




                                            -22-
       nature that necessarily implicates the plaintiff's
       emotional well-being,    (2)  there is an especially
       likely risk that the defendant's negligence would
       cause serious emotional distress to the plaintiff, and
       (3) negligent actions or omissions of the defendant in
       breach of that obligation have,       in fact,  caused
       serious emotional distress to the plaintiff.

Hedgepeth v.          Whitman Walker             Clinic,      22        A.3d    789,       810-11

(D.C. 2011).

       The        parties    devote      most        of    their          papers       to     the

question      of     whether Wells           Fargo      and       its    predecessors          in

interest undertook any special                     relationship with McDevitt

that   satisfies the           first     prong of          the test            set    forth    in

Hedgepeth.          Wells Fargo argues that it had no duty to avoid

negligent         infliction      of     emotional         distress             because       the

nature       of     its     relationship           with       McDevitt          was        purely

contractual.          Def. 's Mem.       P   &    A at 19-22.              In particular,

it   notes    Hedgepeth's         statement         that      a    duty to avoid the

negligent         infliction of emotional                 distress generally does

not arise where the purpose of a particular relationship or

undertaking is not            "to care for the plaintiff's emotional

well-being [but]            to obtain a financial, commercial or legal

objective,          even     if    its       non-attainment                due        to      [the

defendant's]          negligence is emotionally distressing to the

[plaintiff] . "             Hedgepeth,        22     A.3d         at      815        (citations



                                                 -23-
omitted) .        This language squarely covers the facts of this

case.

        Even      assuming       the       Bank did       owe     McDevitt        a    duty      to

avoid negligent infliction of emotional distress,                                      McDevitt

has not put forth any evidence that the Bank ever breached

it.     McDevitt suggests only two theories by which he seeks

to    hold     the       Bank     liable          for     negligent         infliction           of

emotional distress.

        First,      he    contends          that    the     Bank      was    negligent           in

failing      to     apply       his    $25,000          payment       in    the    manner       he

directed.           See Compl.         ~    46.     This theory merely restates

his breach of contract claim,                      and does not give rise to a

separate claim for negligence.                          Cf. Choharis v. State Farm

Fire and Cas.            Co.,    961 A.2d 1080,             1089 n.12             (D.C.      2008)

(allegation of negligent performance of insurance contract

"does not mean that               there       is    a     separate cause of               action

sounding       in     tort      for        negligence,          but    rather         that      the

[plaintiff]         may recover damages therefor under a breach of

contract       theory")         (citing Myers v.            Firemen's         Ins.        Co.    of

Washington, D.C., 274 F.2d 84, 86 (D.C. Cir. 1959)).

        Second,       McDevitt             suggested       in     his       Opposition           to

Defendant's Motion for Summary Judgment that the Rosenberg

firm was negligent for failing to send him proper notice of
                                                   -24-
the     foreclosure            sale    or     for     "wrongfully       foreclosing           on

[his] home."         Pl.'s Opp'n at 31; see also Compl.                          ~~    45-47.

However,        McDevitt now concedes that the firm did send him

notice      of     foreclosure              more     than     a    month     before          the

foreclosure sale; he just didn't receive it.

        Even assuming McDevitt has raised a genuine issue of

fact     that Rosenberg was negligent                       in failing to mail the

fair housing letter in a timely fashion,                              he still has not

set out any basis on which a jury could find Wells Fargo

liable     for    the     firm's        purported negligence.                Although he

recites     the     general           rule    that         "[u]nder    standard        agency

principles,        [a]    principal is liable for the negligence of

its agent," he does not cite any case in which a client was

held vicariously liable for the negligence of its attorney.

Pl.'s Opp'n at 30.

        Further,         the     weight       of     authority        provides        that     a

client      generally            is     not     vicariously           liable     for         its

attorney's torts, absent evidence that the client directed,

controlled,         authorized,               or      ratified         the     attorney's

allegedly        tortious        conduct.            See     Horwitz    v.     Holabird        &


Root,     212    Ill.2d 1,            12-14    (Ill.       2004)   ("[W]hen attorneys

act     pursuant    to     the        exercise of          independent       professional

judgment                          they        are      presumptively           independent
                                                    -25-
contractors for purposes of imposing vicarious liability.")

(citing        cases);         Givens   v.     Mullikin       ex     rel.     Estate     of

McElwaney,          75     S.W.3d     383,    398    (Tenn.     2002)        ("'Unless    a

client is           implicated in some way other than merely being

represented by the                attorney                the       client    cannot     be

liable        for    the       attorney's     conduct.'")          (quoting    Bradt     v.

West, 892 S.W.2d 56, 76-77 (Tex. App. 1994)).

        As discussed earlier,                McDevitt points to no evidence

suggesting that Wells Fargo had any input into, or control

over,    the manner in which the Rosenberg firm conducted the

foreclosure           proceedings:             Further,       McDevitt         does    not

suggest        any       way     in   which     Wells     Fargo       may     have     been

negligent           in     selecting         Rosenberg     as       its      foreclosure

counsel.        Accordingly, even assuming Wells Fargo did have a

duty     to    McDevitt          to   avoid    the     negligent        infliction       of

emotional distress, there is no basis on which a reasonable

jury could find                by a   preponderance of          the       evidence     that

Wells Fargo breached its duty, or is vicariously liable for

any purported negligence of Rosenberg.

        As    the    Supreme Court           said in Liberty Lobby,              summary

judgment should be granted where there is no "evidence on

which the           jury could reasonably find                for    the plaintiff."



                                                -26-
477 U.S.   at 252.    Therefore,   the Court shall grant summary

judgment in favor of Wells Fargo on Count III.

IV.   CONCLUSION

      For the foregoing reasons, Wells Fargo's Motion is granted,

and McDevitt's Motion is denied.          An Order shall accompany this

Memorandum Opinion.




May 29, 2013                              Glf!ss&t ~~
                                          United States District Judge

Copies to: attorneys on record via ECF




                                   -27-
