KEITH STARRETT, District Judge.
This matter is before the Court on the Defendant CitiMortgage, Inc.'s Motion for Summary Judgment [45] and Motion to Strike Exhibits E, F, G, H and I to Plaintiffs' Response in Opposition to Defendant's Motion for Summary Judgment ("Motion to Strike") [58]. Having considered the submissions of the parties, the record and the applicable law, the Court finds that the Motion to Strike [58] should be granted and that the Motion for Summary Judgment [45] should be granted in part and denied in part.
Plaintiffs Terry Montgomery and Nawasa Montgomery, husband and wife, assert numerous state law claims against Defendant CitiMortgage, Inc. ("CitiMortgage") relating to their efforts to have their mortgage loan payments reduced. Terry and Nawasa Montgomery own certain real property and a residence located at 183 Friendship Church Road, Columbia, Mississippi, 39429 (the "Subject Property"). On November 26, 2007, Plaintiffs pledged the Subject Property as collateral in order to secure a loan from Citicorp Trust Bank, fsb ("Citicorp") in the principal amount of
Effective July 1, 2008, Citicorp assigned its right to service the Plaintiffs' loan (that is, to collect payments from the Plaintiffs) to CitiMortgage. In September of 2008, Nawasa Montgomery called CitiMortgage seeking information about having the interest rate on the loan reduced. Mrs. Montgomery was advised to contact CitiMortgage's modification department. In December of 2008, Terry Montgomery also called CitiMortgage with respect to having the interest rate lowered. He was transferred to CitiMortgage's refinance department. Neither of these telephone calls resulted in Plaintiffs' mortgage loan payments being reduced.
The preceding circumstances are largely undisputed by the parties. Many of the circumstances addressed below are in dispute.
CitiMortgage alleges the following pertinent facts based on its business records, which include a Payment History report and Account Notes pertaining to the Plaintiffs' loan. (See Doc. No. [45-1 at ECF pp. 35-66].) Plaintiffs
CitiMortgage also makes the following claims regarding Plaintiffs' payment history
The Plaintiffs contend CitiMortgage steered them toward HAMP modification when they inquired about having their interest rate reduced. Allegedly, the Plaintiffs did not know anything about the loan modification process at that time. Plaintiffs assert that CitiMortgage should have lowered their interest rate and not led them into loan modification since they had never missed a mortgage payment or failed to pay on time.
Plaintiffs further assert or admit to the following matters relating to this dispute. Plaintiffs paid CitiMortgage less than $2,323.27 per month during the trial modification process. These reduced payments were made on time. Plaintiffs never asked CitiMortgage to stop making automatic withdrawals from their bank account. CitiMortgage advised the Plaintiffs that it could not debit their account during the modification process and that the Plaintiffs would have to send in the payments. Plaintiffs never missed a payment before or during the trial modification. From July of 2009 forward, CitiMortgage failed to apply any of Plaintiffs' payments (totaling approximately $28,000.00) to the loan. In 2010, Plaintiffs received letters from CitiMortgage that indicated their loan was delinquent and that foreclosure may result if the overdue amounts were not paid. Upon receiving the first of these letters, Terry Montgomery called CitiMortgage and was advised to disregard the letter as it was just part of the modification process. Plaintiffs timely submitted all of the information requested by CitiMortgage during the modification process. Further, Plaintiffs had to compile and resend information on several occasions because CitiMortgage could not keep track of it. No mortgage payments have been made since October of 2010, when CitiMortgage stopped making withdrawals from Plaintiffs' bank account.
It appears to be undisputed that CitiMortgage referred the Plaintiffs' loan to foreclosure in October of 2010. It also appears undisputed that foreclosure proceedings have not been finalized since Plaintiffs still reside at the Subject Property.
On December 13, 2011, Plaintiffs filed suit against CitiMortgage in the Circuit Court of Marion County, Mississippi. (See Compl. [1-1].) Plaintiffs' Complaint contains the following seven counts: (I) Negligence and Gross Negligence; (II) Negligent or Intentional Infliction of Emotional Distress; (III) Breach of Fiduciary Duty; (IV) Unjust Enrichment; (V) Breach of the Covenant of Good Faith and Fair Dealing; (VI) Negligent, Grossly Negligent and Wanton Failure to Monitor and Train Agents; and (VII) Injunction. On January 17, 2012, CitiMortgage removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. (See Notice of Removal [1].) On March 15, 2013, CitiMortgage filed its Motion for Summary Judgment [45]. This motion has been fully briefed. On May 6, 2013, CitiMortgage filed its Motion to Strike [58]. Plaintiffs have not responded to the Motion to Strike and the time for their response has expired.
CitiMortgage contends that Exhibits "E" through "I" to Plaintiffs' Response
Plaintiffs' response to the Motion to Strike [58] was due to be filed on or before May 23, 2013. Plaintiffs failed to file their response or request a filing extension by that date. The Court's Local Uniform Civil Rules provide that "[i]f a party fails to respond to any motion, other than a dispositive motion, within the time allotted, the court may grant the motion as unopposed." L.U.Civ.R. 7(b)(3)(E). The grant of the Motion to Strike would leave the Complaint pending. Further, the Court finds that the subject Exhibits are not dispositive of any issue on summary judgment. Therefore, the Motion to Strike [58] will be granted as unopposed.
Federal Rule of Civil Procedure 56 provides 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). "Where the burden of production at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of evidentiary support in the record for the nonmovant's case." Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.2010) (citation and internal quotation marks omitted). The nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. "`An issue is material if its resolution could affect the outcome of the action.'" Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir.2010) (quoting Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir.2001)). "An issue is `genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party." Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.2009) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007)). When deciding whether a genuine fact issue exists, "the court must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Sierra Club, Inc., 627 F.3d at 138. However, "[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial." Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.2002) (citation omitted). Summary judgment is mandatory "`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
CitiMortgage argues that Plaintiffs' claims under Counts I (negligence and gross negligence) and VI (negligent, grossly negligent and wanton failure to monitor and train agents) of the Complaint fail because it owed no legal duty to the Plaintiffs. "The four elements of negligence include (1) duty, (2) breach of duty, (3) causation, and (4) damages." Fisher v. Deer, 942 So.2d 217, 219 (¶ 6) (Miss.Ct. App.2006) (citing Couch v. City of D'Iberville, 656 So.2d 146, 150 (Miss.1995)).
CitiMortgage's reading of Poppelreiter is not well taken. In Poppelreiter, plaintiff mortgagors brought suit against GMAC, the mortgagee, alleging that it "negligently serviced their home mortgage loan and made misrepresentations regarding its loan modification process." 2011 WL 6100440, at *1. In its discussion of law, the court did provide that "[u]nder Mississippi law, [d]uties to disclose or to act affirmatively... do not arise in arms length transactions or under an ordinary standard of care." Id. at *3 (emphasis added; citation and internal quotation marks omitted). However, the court's grant of summary judgment in favor of GMAC on plaintiffs' negligence claim was not based on the absence of a legal duty between the parties. Instead, the court granted summary judgment due to the lack of evidence showing negligent conduct on the part of GMAC or damages proximately caused by such conduct. See id. at *4-5.
Poppelreiter v. GMAC Mortgage, LLC, No. 1:11cv8, 2011 WL 2690165, at *3 (N.D.Miss. July 11, 2011).
Thus, the central flaw in CitiMortgage's legal duty argument is that it conflates the duty to disclose or act affirmatively (which is relevant in a fiduciary duty analysis),
Although CitiMortgage is not identified as the "Lender" under the Plaintiffs' Note or Deed of Trust, it asserts the existence of an "indisputable mortgagor-mortgagee relationship between" the Plaintiffs and itself. (Mem. of Law [46] at p. 11.) Plaintiffs' positions in opposition to summary judgment are also taken under the view that a debtor-creditor or mortgagor-mortgagee relationship exists between the parties. The Court will accept the parties' positions for purposes of summary judgment.
Given the nature of the parties' relationship, the Court finds that CitiMortgage owed the Plaintiffs a legally enforceable duty, which encompassed the obligation to apply their mortgage payments to the loan in accordance with the terms of the Deed of Trust.
CitiMortgage asserts that all of Plaintiffs' negligence-based claims fail because they have not and cannot put forth any evidence suggesting that it or its agents acted negligently. The Court disagrees. The following deposition testimony raises a jury issue as to whether CitiMortgage breached a duty of care in its handling of the subject loan modification process:
(Terry Montgomery Dep. [54-1] 78:8-21, 79:6-12.)
On one occasion we talked to one guy, and he actually — with CitiMortgage, and he actually encouraged us to get an attorney.
(Nawasa Montgomery Dep. [54-2] 57:17-58:7.)
CitiMortgage has submitted an affidavit from Sherry Romine, a Business Operations Analyst, stating "that Plaintiffs never submitted all the necessary paperwork to be fully evaluated for a permanent HAMP modification", and that "CitiMortgage contacted Plaintiffs numerous times regarding the deficiencies in their application ...." (Romine Aff. [45-1] at ¶ 19.) "[A] genuine issue of material fact is obviously present where one party testifies to one account of the matter in interest and the other party swears otherwise." Ill. Cent. R.R. Co. v.
The summary judgment records also presents a genuine issue of material fact regarding whether CitiMortgage complied with its contractual duties under the Deed of Trust in handling Plaintiffs' mortgage payments. The Deed of Trust provides in pertinent part: "Except as otherwise described in this Section 2, all payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under Note; (b) principal due under the Note; (c) amounts due under Section 3." (Doc. No. [45-1 at ECF p. 19].) Both Plaintiffs testified at deposition that they never stopped making payments during the loan modification process. (See Terry Montgomery Dep. [54-1] 34:19-35:1, 59:5-9; Nawasa Montgomery Dep. [54-2] 21:7-15, 27:7-13, 33:8-14.) Reading between the lines of CitiMortgage's request for summary judgment, it appears to concede that Plaintiffs made mortgage payments totaling at least $26,319.21 between August, 2009 and August, 2010. Yet, CitiMortgage's Payment History report pertaining to the Plaintiffs' loan, which is incomprehensible in many respects, seems to show the principal due on the loan remaining constant from July of 2009 forward. Viewing this evidence and the resulting inferences in the light most favorable to the Plaintiffs, the Court determines that a jury should consider CitiMortgage's alleged mishandling of the Plaintiffs' mortgage payments.
Putting aside the issue of damages for emotional distress, which will be addressed in the next section of this opinion, the Court also rejects CitiMortgage's contention that there is insufficient evidence on the fourth required element of negligence to preclude summary judgment. In a 2010 opinion, the Mississippi Supreme Court provided the following guidance for a trial court's consideration of damages:
Kennedy v. Ill. Cent. R. Co., 30 So.3d 333, 337 (¶ 10) (Miss.2010).
Both Plaintiffs indicated at deposition that they suffered lost wages because they had to take time off from work to deal with issues relating to this action. (See Terry Montgomery Dep. [54-1] 81:2-6; Nawasa Montgomery Dep. [54-2] 60:10-25.) Both Plaintiffs further testified that they were denied loans and their ability to obtain credit was impaired as a result of CitiMortgage reporting that they were delinquent when they had never missed a payment. (See Terry Montgomery Dep. [54-1] 58:4-59:9, 81:20-82:18; Nawasa Montgomery Dep. [54-2] 18:25-21:24, 63:1-17.) There is also the issue of the principal on the Plaintiffs' loan staying constant from July, 2009 forward despite Plaintiffs paying CitiMortgage more than $20,000 between August, 2009 and August, 2010. Although the extent to which Plaintiffs have
Summary judgment on Count I of the Complaint (negligence and gross negligence) will be denied since there is sufficient evidence to proceed to trial on each element of negligence challenged by CitiMortgage.
A claim of failure to supervise (i.e., monitor) or train also requires a showing of duty, breach, causation and damages. See, e.g., Cuevas v. T & J's Last Minute Seafood Express, 1:10CV104, 2011 WL 1898919, at *3 (S.D.Miss. May 13, 2011); Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1229 (¶ 45) (Miss.2005). CitiMortgage asserts that Plaintiffs have failed to present any evidence showing that it did not properly supervise or train its employees. The Court agrees and finds nothing in the record, other than speculation and conjecture,
An action for intentional infliction of emotional distress requires the defendant's "conduct to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Raiola v. Chevron U.S.A., Inc., 872 So.2d 79, 85 (¶ 23) (Miss.Ct.App.2004) (citation omitted). Liability will not attach for mere insults, threats, indignities, petty oppression, annoyances, or other trivialities. Id. The claimant must show that the defendant
The record in this case fails to evidence conduct on the part of CitiMortgage that would permit a reasonable jury to conclude that CitiMortgage's handling of the Plaintiffs' loan was so outrageous and extreme in character as to be intolerable in a civilized society. At most, fact issues exist as to whether CitiMortgage mishandled or mismanaged Plaintiffs' request to lower their interest rate, the resulting loan modification process and Plaintiffs' mortgage payments. Such potentially negligent conduct fails to rise to the extreme level of wrongdoing necessary for Plaintiffs to proceed on a claim of intentional infliction of emotional distress. Cf. Stewart v. GMAC Mortgage, LLC, No. 2:10cv149, 2011 WL 1296887, at *10 (S.D.Miss. Mar. 31, 2011) (finding that the defendant's alleged inequitable conduct toward the plaintiff during the foreclosure process failed to support a claim); Fouche' v. Shapiro & Massey L.L.P., 575 F.Supp.2d 776, 788 (S.D.Miss.2008) (same). Therefore, this claim will be dismissed.
Mental anguish or emotional distress "`is a nebulous concept and requires substantial proof for recovery.'" Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64 (¶ 27) (Miss.2004) (quoting Morrison v. Means, 680 So.2d 803, 805 (Miss.1996)). Where ordinary negligence is at issue, "the plaintiff must prove some sort of injury or demonstrable harm, whether it be physical or mental, and that harm must have been reasonably foreseeable to the defendant." Am. Bankers' Ins. Co. of Fla. v. Wells, 819 So.2d 1196, 1208 (¶ 40) (Miss.2001) (citations omitted). There is a relaxed or "permissive" view recognized in Mississippi under which a plaintiff may recover for emotional distress caused by ordinary negligence as long as the injury was reasonably foreseeable by the tortfeasor. Id. at 1208 (¶ 41). However, this Court will apply the more stringent view, requiring proof of demonstrable physical or mental injury, in this case since it has been more consistently applied by federal district courts in Mississippi and the Mississippi Supreme Court. See, e.g., Burton v. Coahoma Cmty. Coll., No. 2:11cv129, 2012 WL 2254169, at *5-6 (N.D.Miss. June 15, 2012), aff'd, 505 Fed. Appx. 318 (5th Cir.2013); Stewart, 2011 WL 1296887, at *10; Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 4 (¶ 11) (Miss.2007) (citing cases from 2004, 2002, 2001 and 2000). Mr. and Mrs. Montgomery's claims of emotional distress will be addressed separately.
Mr. Montgomery testified that he had "lost a lot of sleep" worrying about whether he would be kicked out of his house and that there was a lot of stress on his marriage and his job as a result of CitiMortgage's acts or omissions. (Terry Montgomery Dep. [54-1] 79:17-19, 80:9-16.) He also had "[h]eadaches maybe from anxiety...." (Terry Montgomery Dep. [54-1] 81:11.) These statements fail to support an award of damages for emotional distress under Mississippi law. See Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 776 (¶ 29) (Miss.2004) (finding that plaintiff's testimony regarding stomach problems he purportedly developed
Mr. Montgomery also testified that his blood pressure went up "during this process...." (Terry Montgomery Dep. [54-1] 80:9-12.) Mr. Montgomery seemed to contend that he discovered this problem during one of his annual checkups. (Terry Montgomery Dep. [54-1] 80:9-21.) However, he also testified that the physician performing the checkup did not specifically state that his high blood pressure was related to the foreclosure proceedings; that he was managing his high blood pressure through diet and exercise; that he had no medical bills relating to the lawsuit; that he was not taking any medication; that he was not being treated for any condition; and that he had never been treated for anxiety or depression. (Terry Montgomery Dep. [54-1] 80:11-16, 81:13-15, 84:1-15, 87:5-11.) On the whole, the record evidences no medical treatment for Mr. Montgomery's blood pressure or purported mental injuries and there is an absence of "`substantial proof' of emotional harm...." Evans, 36 So.3d at 476 (¶ 53) ("Evans presents no medical or psychological treatment."); see also Edmonds v. Beneficial Miss., Inc., No. 3:04cv827, 2005 WL 2361913, at *3 (S.D.Miss. Sept. 13, 2005) (finding that plaintiff's allegations regarding his blood pressure failed to constitute sufficient proof of harm), aff'd, 212 Fed.Appx. 334 (5th Cir.2007); Hawkins, 830 So.2d at 1175 (¶ 27) (holding that the plaintiff's vague statements concerning visits to a psychiatrist could not support damages for emotional distress). Accordingly, summary judgment will be granted in favor of CitiMortgage on Mr. Montgomery's claim of negligent infliction of emotional distress.
Nawasa Montgomery's deposition testimony regarding her stress, embarrassment and not being able to sleep is just as ineffectual as Mr. Montgomery's testimony regarding the same for purposes of recovery of emotional distress damages. Mrs. Montgomery's statements regarding medical treatment relating to emotional distress necessitate further inquiry. Mrs. Montgomery stated that she was hospitalized at some point in 2012 "for heart pains." (Nawasa Montgomery Dep. [54-2] 59:1-22.) Mrs. Montgomery could not recall the names of the doctors at the hospital. Mrs. Montgomery testified that she saw "Dr. Johnson" for her emotional injuries and that he wanted to put her on blood pressure medication. (Nawasa Montgomery Dep. [54-2] 58:22-59:7, 64:12-20.)
Where there is insufficient evidence to support a claim of intentional infliction of emotional distress, such as in this case, recovery under a negligence theory is possible "if there is a resulting physical illness or assault upon the mind, personality or nervous system of the plaintiff which is medically cognizable and which requires or necessitates treatment by the medical profession." Paz, 949 So.2d at 4 (¶ 10). Mrs. Montgomery clearly alleges receiving medical treatment relating to her emotional distress. The problem is that no medical evidence, such as medical records or testimony from a treating physician, has been presented in support of this claim. Moreover, no showing has been made that Mrs. Montgomery is competent to testify as to medical causation. Thus, the above-referenced deposition testimony fails to preclude summary judgment on Mrs. Montgomery's allegation of negligent infliction of emotional distress. See Marchbanks v. Dolgencorp, Inc., No. 1:07cv299, 2008 WL 5050136, at *8 (N.D.Miss. Nov. 20, 2008) (granting summary on negligent infliction claim in the absence of medical testimony supporting plaintiff's allegations); Little v. K & B. Miss. Corp., No. 3:06cv501, 2007 WL 2417353, at *8 (S.D.Miss. Aug. 27, 2007) (same result in the absence of medical testimony or records); Adams v. David's Bridal, Inc., No. 3:06cv130, 2007 WL 805663, at *6 (S.D.Miss. Mar. 14, 2007) (same); cf. Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 658 (Miss.1995) ("Certainly, if one is to recover for emotional distress predicated on potential future illness there must be substantial proof of exposure and medical evidence that would indicate possible future illness.") (emphasis added).
"The Mississippi Supreme Court `has never held that the relationship between a mortgagor and mortgagee is a fiduciary one.'" Kirby v. Bank of Am., N.A., 2:09cv182, 2012 WL 1067944, at *6 (S.D.Miss. Mar. 29, 2012) (quoting Hopewell Enters., Inc. v. Trustmark Nat'l Bank, 680 So.2d 812, 816 (Miss.1996)). "[T]he power to foreclose on a security interest does not, without more, create a fiduciary relationship." Hartman v. McInnis, 996 So.2d 704, 708 (¶ 10) (Miss. 2007) (citation omitted). Mississippi courts do not ordinarily impress fiduciary duties on parties to an arms-length transaction since the parties usually have divergent interests. See Dominquez v. Palmer, 970 So.2d 737, 742 (¶ 26) (Miss.Ct.App. 2007) (citations omitted). The party asserting the existence of a fiduciary relationship has a "clear and convincing" burden of proof. Gen. Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 270 (¶ 37) (Miss.1999) (citing Peoples Bank & Trust Co. v. Cermack, 658 So.2d 1352, 1358 (Miss.1995)).
A fiduciary duty may be found to arise from a contractual relationship if the following four factors are met:
Other than arguments of counsel, which do not preclude summary judgment,
Simply put, "there is no evidence that this relationship moved beyond a mortgagor-mortgagee relationship", and thus, it is "not a fiduciary relationship as a matter of law." Burgess v. Bankplus, 830 So.2d 1223, 1228 (¶ 11) (Miss.2002). In the absence of a duty there can be no breach. Accordingly, Plaintiffs' breach of fiduciary duty claim will be dismissed.
"An unjust-enrichment action is based on a promise, which is implied in law, that one will pay a person what he is entitled to according to equity and good conscience." Langham v. Behnen, 39 So.3d 970, 976 (¶ 14) (Miss.Ct.App.2010) (quoting 1704 21st Ave., Ltd. v. City of Gulfport, 988 So.2d 412, 416 (¶ 10) (Miss. Ct.App.2008)) (internal quotation marks omitted). Unjust enrichment applies "where no legal contract exists" and where "the person charged is in possession of money or property which, in good conscience and justice, he or she should not be permitted to retain, causing him or her to remit what was received." Willis v. Rehab Solutions, PLLC, 82 So.3d 583, 588 (¶ 14) (Miss.2012) (citing Powell v. Campbell, 912 So.2d 978, 982 (Miss.2005)). For a plaintiff to recover under this rule, the party to whom the mistaken payment was made must be left in the same position after refund as he would have been in the absence of the initial payment to him. See id.
"All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement." Limbert v. Miss. Univ. for Women Alumnae Ass'n, Inc., 998 So.2d 993, 998 (¶ 11) (Miss.2008) (citing Morris v. Macione, 546 So.2d 969, 971 (Miss.1989)). Good faith has been described as "`faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party.'" Harris v. Miss. Valley State Univ., 873 So.2d 970, 987 (¶ 51) (Miss.2004) (quoting Cenac v. Murry, 609 So.2d 1257, 1272 (Miss.1992)). "The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness or reasonableness." Id. Bad judgment or negligence does not constitute bad faith. Id. Instead, "bad faith implies some conscious wrongdoing because of dishonest purpose or moral obliquity." Lippincott v. Miss. Bureau of Narcotics, 856 So.2d 465, 468 (¶ 8) (Miss.Ct.App.2003) (citation and internal quotation marks omitted).
Plaintiffs' chief authority cited in opposition to summary judgment on their claim for breach of the implied covenant of good faith and fair dealing is Cenac v. Murry. In that case, Murry was found to have breached the covenant by engaging in the following conduct in order to force a forfeiture of a contract for sale of a country store: harassing the Cenacs and store customers by lurking around the store with a video camera; threatening, insulting and mocking the Cenacs; leaving a dead cat near the property line; attempting to listen to telephone conversations on the pay phone at the front of the store; calling the store or the Cenacs' residence and hanging up as soon as anyone answered; and firing guns at the Cenacs. See Cenac, 609 So.2d at 1262-67, 1272-73.
Conduct of the sort found actionable by the Mississippi Supreme Court in Cenac is noticeably absent from the record in this case. Viewing the summary judgment evidence in the light most favorable to the Plaintiffs, the Court only finds jury issues as to CitiMortgage's alleged negligence in its dealings with the Plaintiffs. No showing of "conscious wrongdoing" motivated by any "dishonest purpose" has been made. Lippincott, 856 So.2d at 468 (¶¶ 8-9) (affirming the trial court's grant of summary judgment where each fact allegation made by the plaintiff amounted to mere negligence); see also Teeuwissen v. JP Morgan Chase Bank, N.A., 902 F.Supp.2d 826, 837 (S.D.Miss.2011) (dismissing good faith and fair dealing claim alleging merely negligent conduct). Consequently, Plaintiffs' claim for breach of
CitiMortgage claims that Plaintiffs' request for injunctive relief fails because all of their other claims are due to be dismissed. No challenge to Plaintiffs' ability to meet the specific elements required for a grant of injunctive relief is made. Pursuant to the logic of CitiMortgage, this request for dismissal will be denied given the Court's ruling as to summary judgment on Count I of the Complaint.
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that CitiMortgage's Motion to Strike [58] is granted.
IT IS FURTHER ORDERED AND ADJUDGED that CitiMortgage's Motion for Summary Judgment [45] is granted in part and denied in part. The claims asserted by the Plaintiffs under Counts II, III, IV, V and VI of the Complaint [1-1] are dismissed with prejudice. The claims asserted under Counts I and VII remain pending.