Coleman v. National Community Reinvestment Coalition

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ELLIOTTE PATRICK COLEMAN,
Debtor.
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ELLIOTTE PATRICK COLEMAN,
Plaintiff,
v.
NATIONAL COMMUNITY
REINVESTMENT COALITION,
Defendant.
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Case No. 06-00254
(Chapter 13)
Adversary Proceeding No.
07-10023
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
In this action for alleged fraud by the defendant, the
motion for summary judgment filed by the plaintiff, Coleman,
includes no affidavits or deposition transcript. 	That reason
suffices to require denial of the motion.
Even assuming that the exhibits attached to the motion come,
in large part, from the files of the defendant (“NCRC”) and would
largely be admissible into evidence as admissions of a party,
The document below is hereby signed.
Signed: May 11, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Coleman’s failure to include a statement of material facts not in
genuine dispute frustrates the orderly disposition of the motion,
and that too suffices as a basis to deny the motion.
Coleman contends that Parker, a NCRC employee, purported to
act on his behalf to arrive at a workout with Coleman’s mortgagee
(Countrywide). 	But Parker demanded that Coleman’s payments to be
used to stave off foreclosure by Countrywide were to be made
payable to Parker, not NCRC. 	The payments were not used for that
purpose, and Parker was not genuinely attempting on Coleman’s
behalf to reach a workout with Countrywide that would be
beneficial to Coleman (and misled Coleman into not making
mortgage payments directly to Countrywide). 	A finder of fact
could conclude that all of that alleged conduct is contrary to
NCRC policy, conduct that NCRC had not authorized Parker to
engage in, conduct that was not for the benefit of NCRC, and a
tort by Parker that was not a reasonably foreseeable result of
the employment relationship. 	In Schecter v. Merchants Home
Delivery, Inc., 892 A.2d 415, 428 (D.C. 2006), the Court of
Appeals relied on the observations in the Restatement (Second) of
Agency (1958) §§ 228, 235, and 235 cmt. a that a servant’s acts
are beyond the scope of the employment if “too little actuated by
a purpose to serve the master,” that "[a]n act of a servant is
not within the scope of employment if it is done with no
intention to perform it as a part of or incident to a service on
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account of which he is employed," and that "[i]t is the state of
the servant's mind which is material. 	Its external
manifestations are important only as evidence. 	Conduct is within
the scope of employment only if the servant is actuated to some
extent by an intent to serve his master." 	The Court of Appeals
then concluded, id., that:
“[t]he employer will not be held liable for those
willful acts, intended by the agent only to further his
own interest, not done for the employer at all." [Penn
Cent. Transp. Co. v. Reddick, 398 A.2d 27 (D.C. 1979)]
at 31 (citations and internal quotation marks omitted);
accord, Hechinger Co. v. Johnson, 761 A.2d 15, 24 (D.C.
2000).
A finder of fact could conclude that Parker’s willful act of
defrauding Coleman of his $2,000 and misleading him as to
Countrywide were done to further his own interests, not those of
NCRC. 	Accordingly, Coleman has not shown that by way of summary
judgment that NCRC can be held liable for Parker’s unauthorized
acts as within the scope of his employment. 	See M.J. Uline Co.
v. Cashdan, 171 F.2d 132, 134 (D.C. Cir. 1949) (hockey player’s
attempt to strike an opposing player with his stick would not be
an act within the scope of his employment if the hockey player
“at the moment he struck the blow, [was] completely indifferent
to the work he was employed to do and actuated only by anger or
hostility toward the man he tried to injure." Id. at 134.)
In any event, the motion’s exhibits raise an issue of
whether Parker’s acts ultimately were the cause of Coleman’s
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suffering a foreclosure, or whether, instead, it was Coleman’s
failure (after being advised that NCRC had fired Parker) to
provide NCRC with necessary information to achieve a workout with
Countrywide that led to a foreclosure being set.
In accordance with the foregoing, it is
ORDERED that Coleman’s Motion for Summary Judgment is
DENIED.
[Signed and dated above.]
Copies to: All counsel of record; Cynthia A. Niklas, Chapter 13
Trustee; Office of U.S. Trustee.
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