United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Bruce Lee United States District Judge.
MATTER is before the Court, first, on Defendant The Bank of
New York Mellon's Motion for Summary Judgment (Dkt. No.
26) and, second, on Plaintiff Troy Englert's Partial
Motion for Summary Judgment (Dkt. No. 36). This case
concerns Plaintiffs two-count Complaint alleging that
Defendant breached a mortgage agreement by (1) improperly
crediting payments timely made by Plaintiff, and (2)
improperly charging Plaintiff for force-placed insurance even
though Plaintiffs insurance never lapsed. Defendant's
motion seeks summary judgment on both counts, while
Plaintiffs motion seeks summary judgment on Count I only.
are two issues before the Court. The first issue is whether
Defendant is entitled to summary judgment with respect to
Count II, where Plaintiff asserts that he maintained the
insurance required under the mortgage agreement and did not
receive Defendant's letters requesting proof of
insurance. The Court grants Defendant's Motion for
Summary Judgment with respect to Count II because, regardless
of whether Plaintiff received and responded to
Defendant's letters, Defendant put forth uncontroverted
evidence indicating that Plaintiffs insurance lapsed. In
addition, the insurance documents put forth by Plaintiff
indicate that during certain policy periods, the insurance
policy did not comply with the terms of the mortgage
second issue is whether either party is entitled to summary
judgment with respect to Count I, where Plaintiff asserts
that he made all required payments under the mortgage
agreement and that Defendant improperly credited his account.
With respect to Count I, the Court grants Defendant's
Motion for Summary Judgment and denies Plaintiffs
cross-Motion for Summary Judgment for two reasons. First,
Defendant has put forth detailed evidence demonstrating that
Plaintiff failed to timely pay the full amount owed, and that
Plaintiff remains in arrears. Second, Plaintiff admits that
he has not paid the full amount he owes in principal and
interest, and Plaintiffs evidence is insufficient to raise a
genuine dispute of material fact that Defendant misapplied
any particular payment.
Factual Background 
September 1999, Plaintiff purchased a home located in
Alexandria, Virginia (the "Property"). Since that
time, Plaintiff has owned and operated multiple companies,
including Patrick's Design, LLC, Englert Development
Corp., and ENG Imports, LLC. ENG Import Group, LLC was
created in 2011.
April 1, 2005, Plaintiff refinanced his home mortgage loan.
The refinance transaction was evidenced by, among other
things, an adjustable rate note (the "Note"). The
loan of $525, 000.00 made payable to First Horizon Home Loan
Corporation (the "Loan") was secured by a deed of
trust against the Property (the "Deed of Trust").
After origination, First Horizon Home Loan Corporation
("First Horizon") transferred the Loan to
Defendant, The Bank of New York. On or about August 16, 2011,
Nationstar became the loan servicer on behalf of Defendant.
payment provisions of the Note provide, in pertinent part:
[Plaintiff] will make a payment on the first day of every
month. . . .
[Plaintiffs] payment will consist only of the interest due on
the unpaid principal balance of mis Note. [After May 1,
2015], [Plaintiff) will pay principal and interest by making
a payment every month as provided below....
[Plaintiffs] monthly payment will be in the amount of U.S.
$2515.63. . .
The initial fixed interest rate [Plaintiff] will pay will
change to an adjustable interest rate on the first day of
May, 2015. . .
If the Note Holder has not received the full amount of any
monthly payment by the end of 15 calendars after the date it
is due, [Plaintiff will pay a late charge to the Note Holder.
The amount of the charge will be 5.00% of [Plaintiffs]
overdue payment. . . .
If [Plaintiff] do[es] not pay the full amount of each monthly
on the date it is due, [Plaintiff] will be in default. . . .
Dkt. No. 27-1 at 7-9 (Ex. A to Def.'s Mem.); Dkt. No.
33-1 at 2-4 (Ex. 1 to Pl.'s Mem.).
payment provisions of the Deed of Trust provide, in pertinent
1. Payment of Principal, Interest, Escrow Items,
Prepayment Charges, and Late Charges. . . . Lender
may return any payment or partial payment if the payment or
partial payments are insufficient to bring the Loan current.
Lender may accept any payment or partial payment insufficient
to bring the Loan current, without waiver of any rights
hereunder or prejudice to its rights to refuse such payment
or partial payments in the future, but Lender is not
obligated to apply such payments at the time such payments
are accepted.... Lender may hold such unapplied funds until
Borrower makes payment to bring the Loan current....
2. Application of Payments or Proceeds.. . .
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 the Note;
(b) principal due under the Note; (c) amounts due under
Section 3 [Funds for Escrow Items]. Such payments shall be
applied to each Periodic Payment in the order in which it
became due. ... If more than one Periodic Payment is
outstanding, Lender may apply any payment received ...