Mahfooz Y. Saad, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1491

Mahfooz Y. Saad,
Appellant,

vs.

PNC Bank National Association, et al.,
Respondents.

Filed May 30, 2017
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CV-15-9626

Bradley Kirscher, Kirscher Law Firm, PA, Roseville, Minnesota (for appellant)

David A. Schooler, Daniel J. Supalla, Cyrus C. Malek, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for respondents)

Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and Worke,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant borrower challenges the district court’s decision to grant summary
judgment to respondent lenders, arguing that (1) a genuine issue of material fact exists;
(2) the record supports, and he properly pleaded, his claims under the Fair Debt Collection

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Practices Act (FDCPA) and Minnesota Residential Mortgage Originator and Service r
Licensing Act (Minnesota Act); and (3) there was sufficient evidence of damages. We
affirm.
FACTS
In 2004, appellant Mahfooz Y. Saad took out a mortgage -secured loan from
respondent National City Mortgage that required him to make monthly payments on the
first day of each month but no later than the end of the 15th day each month. According
to the terms of the promissory note, all pay ments would be applied to Saad’s account in
chronological order. In 2009, National City Mortgage merged into respondent PNC Bank,
National Association (PNC), and PNC became successor -in-interest to Saad’s mortgage.
In 2013, Saad applied for a modificatio n of his loan, and PNC approved him for a trial
payment plan in which Saad agreed to make three payments that were due on November
1, 2013, December 1, 2013, and January 1, 2014. Saad satisfied the trial payment plan and
PNC approved him for a permanent modification effective on January 1, 2014.
In March 2014, Saad and PNC e ntered into a loan-modification agreement with an
effective date of January 1, 2014, that required Saad to make the first payment by February
1, 2014. PNC sent Saad an undated letter requiring him to “[m]ake an initial payment . . .
by March 14, 2014.” Saad made an initial payment before March 14, 2014. PNC applied
this payment to the payment due in February 2014 because Saad had not yet made a loan
payment for that month. Saad then made one payment per month from April to November
2014.

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PNC sent Saad notices that advised him that he was one month behind on his
payments in May, June, July, August, September, October, and November 2014. Because
Saad was one month behind in his paym ents, he started acc ruing late fees in April 2014.
When PNC did not receive a payment from Saad in December 2014, it notified him that he
was in default and that it might accelerate the full amount due or pursue foreclosure.
On January 21, 2015, Saad sued respondents and requested a declaration that he was
not in default and sought an injunction to prevent PNC from pursuing foreclosure ,
claiming: (1) two violations of the FDCPA for attempting to collect an amount not legally
owed under 15 U.S.C. § 1692f (2012) and for improperly threatening foreclosure under 15
U.S.C. § 1692e (2012); ( 2) fraudulent or negligent misrepresentation for stating that late
fees were due; (3) breach of contract; (4) breach of the implied covenant of good faith and
fair dealing; and (5) a violation of the Fair Credit Reporting Act under 15 U.S.C. §§ 1681n,
1681o (2012).
Respondents moved for summary judgment on all of Saad’s claims. Saad moved
for partial summary judgment, arguing that (1) all late fees charged between April 20 14
and December 2014 were misrepresentations that violated the mortgage contract and the
loan-modification agreement and (2) he was not in default. The district court granted
summary judgment in favor of respondents and denied Saad’s motion for partial summary
judgment. This appeal follows.
D E C I S I O N
Saad contends that there is a genuine issue of material fact concerning whether he
was in default and that the district court improperly weighed the evidence and resolved

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inferences in respondents’ favor when it granted summary judgment to respondents. We
disagree.
On appeal from summary judgment, we view the evidence in the light most
favorable to the party against whom summary judgment was granted and review de novo
whether there are any genuine issues of material fact and whether the district court erred in
its application of the law. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. , 644 N.W.2d 72,
76-77 (Minn. 2002). A genuine iss ue of material fact exists if a rational trier of fact,
considering the record as a whole, could find for the nonmoving party. Frieler v. Carlson
Mktg. Grp., 751 N.W.2d 558, 564 (Minn. 2008). But a genuine issue of material fact does
not exist “when the nonmoving party presents evidence which merely creates a
metaphysical doubt as to a factual issue and which is not sufficiently probative with respect
to an essential element of the nonmoving party’s case to permit reasonable persons to draw
different conclusions.” DLH, Inc. v. Russ , 566 N.W.2d 60, 71 (Minn. 1997). While a
district court “must not weigh the evidence on a motion for summary judgment,” it “is not
required to ignore its conclusion that a particular piece of evidence may have no probative
value, such that reasonable persons could not draw different conclusions from the evidence
presented.” Id. at 70.
Here, there is no genuine issue of material fact as to whether Saad was in default.
Saad’s original note required him to make a “monthly payment on the 1st day of each
month” but stated that he would not be subject to late fees or be in default until 15 days
after the date that the payment is due. When Saad later applied for a loan modification ,
PNC required him to make three trial modification payments in November 2013, December

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2013, and January 2014 before entering the loan -modification agreement. After he made
the t rial modification payments, Saad entered into a loan -modification agreement with
PNC that took effect on January 1, 2014. Saad’s first payment under the loan-modification
agreement was due in February 2014. But because Saad did not execute the loan -
modification agreement until March 2014, PNC allowed him to make the initial payment
under the agreement—the February 2014 payment—by March 14, 2014.
When respondents moved for summary judgment, they attached an affidavit of one
of PNC’s officers that stated that on March 14, 2014, Saad paid the inst allment due on
February 1, 2014. It also stated that, because PNC did not receive a March 2014 payment
from Saad, the installment due on March 1, 2014 was paid from funds taken from a
suspense account during the trial-payment-plan period. The affidavit averred that PNC did
not receive an April 2014 payment. As a result, Saad’s payments were late starting in May
2014.
In response, Saad submitted an affidavit and bank statements indicating that he
made payments toward his mortgage in both March 2014 and April 2014. Respondents
replied with an affidavit from PNC’s assistant vice president that stated that the loan -
modification agreement required Saad to make a payment for February 2014 . Although
PNC received payments from Saad in March 2014 and April 2014, he remained one month
behind because PNC applied those payments to his outstanding balances from February
2014 and March 2014, respectively.

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Saad contends that the two affidavits from PNC personnel create a genuine issue of
material fact as to whether he was in default and asserts that the district court improperly
weighed the evidence when it determined that the latter affidavit was correct.
The evidence in the record indicates that Saad failed to make one of his firs t three
payments under the loan-modification agreement. The affidavit from PNC’s officer states
that Saad failed to make the April 2014 payment. The affidavit from PNC’s assistant vice
president states that Saad failed to make the March 2014 payment. And Saad’s affidavit
indicates that he failed to make the February 2014 payment. While the affidavits differ as
to which payment Saad missed, a rational trier of fact, considering the record as a whole,
would find that Saad was in default no later than April 2014 . We therefore conclude that
Saad was in default in April 2014 and that there is no genuine issue of material fact.
Saad presents multiple arguments that the district court wrongfully granted
summary judgment in favor of respondents on his claims of violation of the FDCPA and
the Minnesota Act, misrepresentation, breach of contract, and breach of good faith and fair
dealing. The district court thoroughly analyzed each of Saad’s claims. It determined that
the FDCPA claims fail because respondents were not debt collector s and because Saad
pleaded one of his FDCPA claims for the first time at summary judgment. It determined
that Saad’s Minnesota Act claim fails because he did not plead it in his complaint. And it
determined that Saad’s claims of misrepresentation, breach of contract, and breach of good
faith and fair dealing fail because he did not allege sufficient damages. For these reasons,
the district court granted summary judgment in favor of respondents and dismissed Saad’s
claims. Here, we have already determined that Saad was in default and we may “affirm

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summary judgment on alternative theories presented but not ruled on at the district court
level.” Nelson v. Short-Elliot-Hendrickson, Inc., 716 N.W.2d 394, 402 (Minn. App. 2006),
review denied (Minn. Sept. 19, 2006).
“A defendant is entitled to summary judgment as a matter of law when the record
reflects a complete lack of proof on an essential element of the plaintiff’s claim.” Lubbers
v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). Saad concedes that all of his claims are
based on his assertion that PNC assessed late fees and sent him default notices before it
had a right to do so.1 As discussed above, the record taken as a whole establishes that Saad
was in default and that PNC had a right to take action against him in April 20 14. Saad
received notices advising him that his payments were late and reflecting that PNC started
assessing late fee s in May 2014. We therefore conclude that summary judgment was
proper on all of Saad’s claims and decline to address Saad’s additional arguments. See
Lipka v. Minn. Sch. Emps. Ass’n, Local 1980 , 550 N.W.2d 618, 622 (Minn. 1996)

1 Saad’s FDCPA claims require proof that respondents threatened to “take [an] action that
cannot legally be taken,” collected an amount that is not “expressly authorized by the
agreement creating the debt or permitted by l aw,” or threatened to foreclose Saad’s
mortgage without a “present right to possession of the property.” 15 U.S.C. §§ 1692e (5),
1692f(1), 1692f(6)(A). Saad’s misrepresentation claims require proof that the late notices
were false. See Hurley v. TCF Bank ing & Sav., F.A., 414 N.W.2d 584, 586 (M inn. App.
1987). Saad’s breach -of-contract claim relies on his assertion that respondents charged
him late fees before his payments were late. Saad’s claim of breach of the implied covenant
of good faith and fair dealing relies on his contention that respondents took action against
Saad before he was in default. Saad’s Fair Credit Reporting Act claim relies on his belief
that respondents reported to credit-reporting agencies that he was in default before he was
in default.

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(“[J]udicial r estraint bids us to refrain from deciding any issue not essential to the
disposition of the particular controversy before us.”); Nelson, 716 N.W.2d at 402.
Affirmed.