United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
AMENDED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 22]
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion for Summary Judgment.
Plaintiffs Martin and Elizabeth Zwiebach bring this action
for declaratory and injunctive relief against Defendant
Citibank, N.A. (“Citibank”), incorrectly
identified by the Plaintiffs as CitiMortgage, Inc., asking
the Court to declare that their home equity line of credit
loan be deemed satisfied and paid in full. In support,
Plaintiffs allege that they tendered and Defendant cashed a
$35, 000 check on which was written that the payment was
intended to be “in full satisfaction and accord”
of the amount then owed. Defendant now moves for summary
judgment, arguing that the instrument cannot constitute an
accord and satisfaction under the contract governing the
Plaintiffs' account. For the reasons that follow,
Defendant's Amended Motion for Summary Judgment [Dkt. No.
22] is GRANTED.
February 9, 2011, Mr. Zwiebach entered into a Home Equity
Line of Credit Agreement and Disclosure (“Credit
Agreement”) with Citibank Federal Savings Bank
(“FSB”) for a home equity line of credit
(“HELOC”) account ending in 7262, with a credit
limit of $425, 000. [Dkt. No. 22-3, Wood Aff. ¶ 5, Exh.
1 at 1]. On that same date, and to secure the HELOC,
Plaintiffs executed a Home Equity Line of Credit Mortgage
(“Mortgage”) in favor of Citibank FSB,
encumbering the property located at 53 Singing Oaks Drive,
Weston, Connecticut. [Id., Wood Aff. ¶ 6, Exh.
2 at 1]. The Mortgage was recorded on or around February 14,
2001 in volume 293 at page 630 of the Weston land records.
[Id., Wood Aff. ¶ 7, Exh. 2 at 1]. Citibank FSB
merged into Citibank, N.A. as of October 1, 2006.
[Id., Wood Aff. ¶ 8, Exh. 3 at 1-3]. Under the
terms of the merger, Citibank, N.A. is the successor in
interest with respect to the Credit Agreement. [Id.,
Wood Aff. ¶ 9].
Credit Agreement contains a paragraph titled “Monthly
Payment Plan, ” which states:
You agree to pay to Us in U.S. dollars at least the Payment
Due each month by the Payment Due Date as indicated in Your
monthly billing statement . . . . We may, but need not,
credit partial payments to Your Account. This will not excuse
Your having to make the rest of the payment, notwithstanding
any “payment in full” or similar language on Your
payment, nor does it excuse You from having to make full
payments in the future. Any payment You make which relates to
an amount in dispute, or which claims to be a “payment
in full” must be sent to: Citibank, Item Processing,
Mail Stop 759, P.O. Box 790159, St. Louis, MO 63179.
[Id., Exh. 1 at 1-2]. The Mortgage also states that
Mr. Zwiebach “shall promptly pay when due the
indebtedness secured by [the] Mortgage including, without
limitation, that evidenced by the [Credit Agreement].”
[Id., Exh. 2 at 1].
Zwiebach became indebted to Defendant by borrowing money on
the HELOC pursuant to the terms of the Credit Agreement.
[Id., Wood Aff. ¶ 10]. Mr. Zwiebach failed to
pay the minimum amount due to the Defendant on June 3, 2011,
and failed to make subsequent minimum monthly payments.
[Id., Wood Aff. ¶ 12].
letter dated September 19, 2014, the Plaintiffs' tax
representative, David Selig, sent to Citibank a written
settlement offer in which he stated that the Plaintiffs
wished to “compromise their second mortgage obligation
for [the] lesser amount” of $100, 000, and in which
they requested a “face-to-face meeting with a
CitiMortgage representative.” [Dkt. No. 30-2, Exh. 2].
around October 19, 2015, Mr. Zweibach mailed a check to the
Defendant in the amount of $35, 000. [Dkt. No. 22-3, Wood
Aff. ¶ 14]. On the check was written
“ACCORD/SATISFACTION: SEE ATTACHED LETTER DATED 12 OCT.
2015.” [Dkt. No. 30-3, Exh. 5]. The check was
accompanied by a letter from Selig dated October 12, 2015,
which stated that the check was offered as full and final
payment of Plaintiffs' debt on the HELOC. [Dkt. No. 22-3,
Wood Aff. ¶ 14, Exh. 6 at 2]. The letter also stated
that Mr. Zwiebach's “good faith attempt to resolve
[his] claims against, and liabilities to Citi . . . have been
deliberately frustrated by mortgagor's employees . . .
[who] intentionally protracted the payment process by
refusing to candidly discuss [Mr. Zwiebach's]
liabilities, by ignoring [his] written requests for a
conference, and by providing contradictory
information.” [Dkt. No. 30-2, Exh. 5]. Selig also
stated that “neither [Mr. Zwiebach] nor his agent can
accurately reconcile [Citibank's] statements,
specifically, the application of payments previously made,
the imposition of penalties, and the calculation of interest
the letter and the check were mailed to Citimortgage, Inc.,
P.O. Box 790005, St. Louis, MO 63179-0005 despite the fact
that, as stated above, the parties agreed that all payments
which claim to be a “payment in full” had to be
sent to: Citibank, Item Processing, Mail Stop 759, P.O. Box
790159, St. Louis, MO 63179. [Dkt. No. 22-3, Exh. 1 at 2;
Dkt. No. 30-2, Exh. 5]. Plaintiff submitted U.S. Postal
Service return receipts as evidence that he mailed three
letters to Citibank, two on September 22, 2014, and one on
October 16, 2015. None of these letters were sent to the
“payment in full” address. [See Dkt. No.
30-2, Exh. 9].
letter dated November 3, 2015, Selig stated that he was
“unable to reconcile [Mr. Zwiebach's] payments to
the balance owed, ” and that he had not received a
“true and complete copy of [Mr. Zwiebach's] payment
history, from the first period of delinquency, which exceeded
60 days to the present, ” which he states he requested
on June 22, 2015. [Id., Exh. 6].
also exchanged emails with Citibank representatives in
January 2016, in which he asked about the status of the HELOC
“settlement offer.” [Id., Exh. 7]. The
Citibank representative responded that “[N]othing is in
process. I haven't received any documents. I have not
spoken to you. I need to update the borrower's income and
expenses in the system, verbally. I must send you a list of
documents. You must then return those to me complete. Once
they are complete the process will begin and your client will
be reviewed for settlement.” Id. The
Plaintiffs' tax representative responded that he had
already requested a meeting regarding the Plaintiffs'
account and had sent numerous follow-up letters. Id.
Selig then emailed the Citibank representative asserting that
the HELOC obligation had ...