United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed the Defendant Wells Fargo Bank,
N.A.'s Motion for Summary Judgment (Document 49) and
Memorandum in Support (Document 50), the
Plaintiff's Response in Opposition (Document
51), and the Defendant's Reply in Support
(Document 52), as well as the Plaintiff's
Complaint (Document 1-2) and all attached exhibits.
For the reasons stated herein, the Court finds that the
motion should be granted.
HISTORY AND FACTUAL BACKGROUND
Plaintiff, Mr. Ernest Vandall, initiated this action with the
filing of a complaint in the Circuit Court of Greenbrier
County, West Virginia, on May 17, 2017. Mr. Vandall named
Wells Fargo Bank, N.A. (“Wells Fargo”) as the
sole Defendant. Pursuant to its Notice of Removal
(Document 1), Wells Fargo removed the case to this Court on
July 6, 2017, citing diversity jurisdiction.
2009, Mr. Vandall purchased a home at 213 2nd Street,
Rainelle, West Virginia. In order to purchase the home, Mr.
Vandall sought a mortgage from Wells Fargo and eventually
executed a promissory note and a Deed of Trust.
(See, Def.'s Mot. for Sum. Judg., Ex A) (see
also, Ernest Vandall Depo., at 12:2- 13:22, Document
51-2.) During the origination process, Wells Fargo determined
that the property Mr. Vandall was purchasing was located in
an area that the Federal Emergency Management Agency
(“FEMA”) designated as a Special Flood Hazard
Area (“SFHA”). (Def.'s Mot. for Sum. Judg.,
Ex. C.) Due to this designation, Wells Fargo required Mr.
Vandall to purchase flood insurance on the home in order to
obtain the mortgage. Shortly thereafter, Mr. Vandall acquired
a flood insurance policy through Nationwide. Importantly,
however, because Wells Fargo required Mr. Vandall to obtain
the flood insurance, Wells Fargo would increase Mr.
Vandall's monthly mortgage payment by one-twelfth of the
total annual flood insurance premium, hold that money in an
escrow account, and use it to pay the flood insurance premium
when it became due. (Id. at Ex. B, Deed of Trust,
¶ 3.) This process continued through 2012, and Mr.
Vandall received statements from Wells Fargo reflecting the
payments being made from the escrow account. (Id. at
October 2012, FEMA amended its Flood Insurance Rate Map for
the Rainelle area, and subsequently determined that Mr.
Vandall's property was no longer inside an SFHA. Due to
this change, Wells Fargo determined that Mr. Vandall was no
longer required to maintain flood insurance. On November 12,
2012, Wells Fargo generated a letter entitled “Flood
Insurance Notification” sent via first-class mail to
Mr. Vandall informing him of this update. (Id. at
Ex. J.) This notification stated that, “[s]ince [Mr.
Vandall's] property is no longer located in a required
flood zone, your flood insurance is now OPTIONAL.”
(Id.) (emphasis in original.) This notification did
not affect the cancellation of Mr. Vandall's flood
insurance policy, however. In fact, because of Wells
Fargo's escrow method of payment, Mr. Vandall's
2012-2013 flood insurance premium had previously been paid
and the policy remained in effect until September of 2013. On
November 13, 2012, the very next day after sending the
notification regarding the change in required flood
insurance, Wells Fargo sent Mr. Vandall a correspondence
providing his monthly payment and detailing the amount in his
escrow account. (Id. at Ex. N.) Because the flood
insurance premium for 2012 through 2013 had been paid in
full, and because the insurance was no longer required, this
November 2012 statement showed that Mr. Vandall's monthly
mortgage payment would be reduced. (Id.) The
statement also included a check refunding him the balance of
the escrow account that had been deducted to pay for flood
insurance which was no longer required. (Id.) Mr.
Vandall alleges that, although he received and looked at all
the mail delivered to the residence in question, he did not
receive the notice from Wells Fargo informing him that flood
insurance was no longer required. (Ernest Vandall Depo., at
35:10-23) (Document 51-2.) Mr. Vandall does not, however,
dispute receiving the updated escrow notice reflecting the
subtraction of the flood insurance payment and the refund
check that was attached. (Id. at 38:17-39:2;
August 2, 2013, nearly nine months after Wells Fargo sent the
flood insurance update notification and the updated escrow
statement including a check, Nationwide sent Mr. Vandall a
Flood Insurance Policy Renewal Premium Notice. (See,
Def.'s Mot. for Sum. Judg., Ex. Q.) This notice included
Mr. Vandall's address and policy number, and informed him
that his flood insurance would expire on September 16, 2013.
(Id.) The notice also included the amount of the
premium he could owe to renew the insurance policy for the
following year. (Id.) Mr. Vandall did not pay the
premium to renew the flood insurance policy, and on September
17, 2013, Nationwide sent him a notice informing him that the
flood insurance policy had expired, but that he could
reinstate the policy by paying the annual premium.
(Def.'s Mot. for Sum. Judg., Ex. R.) Mr. Vandall alleges
that he did not receive either of these notices from
Nationwide and never reinstated the policy. (Ernest Vandall
Depo., at 51:1-52:7.)
2016, Rainelle and the surrounding areas of Greenbrier County
“experienced catastrophic flooding, ” which
severely damaged Mr. Vandall's home. (Compl., at ¶
11-12.) After the water subsided, Mr. Vandall contacted the
National Flood Insurance Program, administered by FEMA,
“to make a claim for the extensive damage to his house
and its contents.” (Id. at ¶ 12.) FEMA
informed Mr. Vandall that he did not have flood insurance,
however, and Mr. Vandall proceeded to call Wells Fargo. Wells
Fargo informed Mr. Vandall that he did not have flood
insurance because, as the 2012 notices sent to him stated,
the flood insurance was no longer required on his mortgage,
and he had allowed the flood insurance policy to lapse. Mr.
Vandall alleges in his complaint that Wells Fargo canceled
his flood insurance and continued to charge him for the cost
of flood insurance even after the insurance had lapsed. He
filed his complaint thereafter.
well-established standard in consideration of a motion for
summary judgment is that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a)-(c);
see also Hunt v. Cromartie, 526 U.S. 541, 549
(1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Hoschar v. Appalachian Power Co.,
739 F.3d 163, 169 (4th Cir. 2014). A “material
fact” is a fact that could affect the outcome of the
case. Anderson, 477 U.S. at 248; News &
Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010). A “genuine
issue” concerning a material fact exists when the
evidence is sufficient to allow a reasonable jury to return a
verdict in the nonmoving party's favor. FDIC v.
Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News
& Observer, 597 F.3d at 576.
moving party bears the burden of showing that there is no
genuine issue of material fact, and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp., 477 U.S. at 322-23. When determining whether
summary judgment is appropriate, a court must view all of the
factual evidence, and any reasonable inferences to be drawn
therefrom, in the light most favorable to the nonmoving
party. Hoschar, 739 F.3d at 169. However, the
non-moving party must offer some “concrete evidence
from which a reasonable juror could return a verdict in his
favor.” Anderson, 477 U.S. at 256. “At
the summary judgment stage, the non-moving party must come
forward with more than ‘mere speculation or the
building of one inference upon another' to resist
dismissal of the action.” Perry v. Kappos,
No.11-1476, 2012 WL 2130908, at *3 (4th Cir. June 13, 2012)
(unpublished decision) (quoting Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985)).
considering a motion for summary judgment, the court will not
“weigh the evidence and determine the truth of the
matter, ” Anderson, 477 U.S. at 249, nor will
it make determinations of credibility. N. Am. Precast,
Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D.
W.Va. Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes
over a material fact exist that “can be resolved only
by a finder of fact because they may reasonably be resolved
in favor of either party, ” summary judgment is
inappropriate. Anderson, 477 U.S. at 250. If,
however, the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, ” then summary judgment
should be granted because “a complete failure of proof
concerning an essential element . . . necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at
Fargo moves for summary judgment as to each count of the
Plaintiff's complaint. The Plaintiff alleged the
following causes of action: Count I-Declaratory Relief, Count
II- Breach of Contract, Count III-Breach of Covenants of Good
Faith and Fair Dealing, Count IV- Negligence, Count V-Unjust
Enrichment, Count VI-Conversion, Count VII-Detrimental
Reliance, Count VIII-Fraud, and Count IX-Punitive Damages.
Importantly, in each of these counts, Mr. Vandall claims that
Wells Fargo ...