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 

undi"sputed and drawn from the parties' 

of Stipulated Facts [Dkt. No. 31]. 

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set forth herein are 

Amended Joint Statement 
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 

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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. 

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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, 

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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 Fargo3 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. 

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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. 

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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. 

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("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. 

Property. 

He had $142,876.56 of equity in the 

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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 onepage 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. 

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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 

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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) 1 its opponent must do more than simply show 

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 

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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 

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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, 

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[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"). 

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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 

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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. , 7 6 

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. 

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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. P 1 . ' 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 

motivation for not paying his mortgage 

legal issues presented in the Motions. 

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at 19, but McDevitt's 

is immaterial to the 
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 

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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 "every11 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. 

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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 

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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 

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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 

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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 

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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 

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independent 
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." 

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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 

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