WILLIAM AUBREY MARSHALL, JR., et al. Plaintiffs,
JAMES B. NUTTER & COMPANY, Defendant.
RICHARD D. BENNETT, District Judge.
Plaintiff William A. Marshall, Jr. ("Plaintiff" or "Marshall") filed this action, on behalf of himself and all others similarly situated, against Defendant James B. Nutter & Company ("Defendant" or "Nutter"), for alleged unlawful activities under the Maryland Finder's Fee Act ("MFFA"), MD. CODE ANN., COM. LAW §§ 12-801 et seq. (Count I), and the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COM. LAW §§ 113-101, et seq. (Count II). Currently pending before this Court is Defendant's Motion for Partial Summary Judgment as to Plaintiff's Finder's Fee Act claim in Count I. Also pending before this Court are Plaintiff's Motion for Certification of the Class and Motion to Certify Questions of Law to the Court of Appeals of Maryland. This Court has reviewed the record, as well as the pleadings and exhibits, and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant James B. Nutter & Company's Motion for Partial Summary Judgment (ECF No. 78) is GRANTED. Accordingly, judgment shall be entered in favor of Defendant and against Plaintiff as to Count I alleging conspiracy to violate the Maryland Finder's Fee Act. Additionally, Plaintiff William A. Marshall's Motion to Certify Questions of Law to the Court of Appeals of Maryland (ECF No. 98) is DENIED. Finally, Plaintiff William A. Marshall's Motion for Certification of the Class (ECF No. 83) shall be held sub curia subject to further briefing.
The allegations contained in Plaintiff's Complaint (ECF No. 2) were fully set forth in this Court's previous Memorandum Opinion entered on September 29, 2011. See Marshall v. James B. Nutter & Co., 816 F.Supp.2d 259 (D. Md. 2011) (denying Defendant's motion to dismiss complaint and Plaintiff's motion to strike or alternatively for leave to file surreply). That background is repeated here, in part, so as to provide context for the pending motions.
On September 22, 2010, William A. Marshall, Jr. ("Plaintiff" or "Marshall") brought this class action lawsuit in the Circuit Court for Baltimore City, seeking damages and declaratory relief against Defendant James B. Nutter & Company ("Defendant" or "Nutter"). Marshall filed this action on behalf of himself and a putative class of all other similarly situated individuals "who were borrowers in mortgage loan transactions secured by real property in the State of Maryland during the period commencing twelve years before [the Complaint] was filed to the present (the Class Period') where: (a) the mortgage loan was closed in the name of a nominal lender (other than Nutter); (b) Nutter funded the mortgage loan; and (c) Nutter received an assignment of the mortgage loan from the nominal lender contemporaneously with the closing." Compl. ¶ 31. Marshall alleges that Nutter, one of the largest private mortgage banking firms in the country, Compl. ¶ 11, conspired with Maryland mortgage brokers to violate the Maryland Finder's Fee Act ("MFFA"), MD. CODE ANN., COM. LAW §§ 12-801 et seq., by "reaching an agreement and understanding with mortgage brokers to table-fund mortgage loan transactions of [Marshall] and other members of the class where brokers acted as both mortgage broker and lender, thereby enabling brokers to charge unlawful finder's fees." Id. ¶¶ 42-43. Similarly, Marshall alleges that Nutter conspired with Maryland mortgage brokers to violate the Maryland Consumer Protection Act ("MCPA"), MD. CODE ANN., COM. LAW §§ 13-101 et seq. by conspiring with brokers acting as both mortgage broker and lender to "conceal[ ] and misrepresent[ ] Nutter's role as funding lender." Id. ¶¶ 50-51.
The record in this case reflects that Nutter is a mortgage banking firm licensed to conduct business in all fifty states with its principal place of business in Kansas City, Missouri. Madson Decl. ¶¶ 3-4, ECF No. 87-2. "Nutter operates in a variety of sectors within the mortgage banking market, including both the forward mortgage market and the reverse mortgage market." Id. ¶ 5. In 2006, because Nutter "lacked any physical presence in Maryland, " Nutter began to enter into contracts with "independent mortgage brokers" whereby these brokers would "initiate[ ] contact with Maryland borrowers... process[ ] borrower[ ] loan applications and generally facilitate[ ] the lending process." Id. ¶¶ 6-7. During the Class Period, Nutter entered into agreements with over fifty (50) independent mortgage brokers as well as "made or purchased nine hundred and ninety-nine (999) reverse mortgage loans associated with Maryland borrowers." Id. ¶¶ 7-8. According to Marshall six hundred and seventy-eight (678) of those loans are subject to class certification in this action. Pl.'s List of Class Transactions, ECF No. 83-4. Nutter concedes that these loans "were closed in the names of forty-six (46) unrelated mortgage brokers pursuant to a process referred to as table funding, ' meaning the loans were funded by a contemporaneous advance of loans funds [by Nutter] and an assignment of the loan to the person advancing the funds [i.e. Nutter].'" Def.'s Opp. to Class Certification 6, ECF No. 87 (citing 24 C.F.R. § 3400.2). However, Nutter argues that "table funding is a widely utilized and accepted method of structuring mortgage lending transaction" which in and of itself is not illegal. Id. at 7.
The Complaint alleges that on or about August 18, 2008, Marshall applied for a reverse mortgage loan with Savings First Mortgage, LLC ("Savings First"). Compl. ¶ 23. On three previous occasions, Savings First had "acted as a mortgage broker for mortgage loans obtained by... Marshall on his residence." Id. ¶ 22; Savings First Broker Documents, Def.'s Opp. to Class Certification, Ex. 7, ECF No. 87-8. On September 11, 2008, Savings First closed Marshall's mortgage loan in the amount of $252, 000.00 and contemporaneously assigned it to Nutter. Id. ¶¶ 25-26. In performing this transaction, Savings First charged Marshall $3, 665.56 in fees. Id. ¶ 30. Despite the fact that Nutter had advanced the loan funds, all loan documents, including the HUD-1 Settlement Statement,  the Note, and the Deed of Trust referred to Savings First as the lender. Compl. Exs. B-D, ECF Nos. 2-2 to 2-4. As a result, Marshall alleges that Nutter and Savings First conspired to conceal Nutter's role in the mortgage lending process and facilitated a table-funded transaction whereby Savings First could charge an illegal finder's fee in violation of the Maryland Finder's Fee Act. Compl. ¶¶ 26-30.
With respect to the putative class, Marshall alleges that he and the class members were charged unlawful finder's fees by the Maryland brokers which "averaged more than $3, 000 per mortgage transaction, resulting in tens of millions of dollars or more in unlawful charges to borrowers during the twelve-year period covered by this Class Action Complaint." Compl. ¶ 6. Moreover, Marshall claims that "Nutter's table-funding scheme employed a universal element of deception." Pl.'s Mem. in Supp. of Class Certification 8, ECF No. 83-1. Specifically, Plaintiff claims that Nutter "systematically concealed his identity as the funding lender in the transactions of Named Plaintiff and the other Class members, concealed in a uniform manner the fact that their transactions were table funded, and concealed Nutter's role in the transaction." Id. In support of this allegation, Marshall refers to confidentiality agreements between Nutter and Maryland brokers allegedly "prohibiting the brokers from disclosing the terms and conditions' and written agreements and documents which govern or describe in any way the purchase and/or servicing' of such loans." Id. Finally, Marshall also alleges that all the mortgage loans at issue in this case, including Marshall's and those of the putative class members, were "made pursuant to standard broker agreements between Nutter and Maryland mortgage brokers; followed a standard roadmap' for originating, documenting and closing the loan; utilized standard documents prescribed by Nutter organized in a consistent manner; and were all table-funded, with the broker appearing on the loan documents as lender." Pl.'s Mem. in Supp. of Class Certification 6.
Presently pending before this Court is Defendant's Motion for Partial Summary Judgment (ECF No. 78) as to Plaintiff's Finder's Fee Act claim in Count I. Also pending before this Court are Plaintiff's Motion for Certification of the Class (ECF No. 83) and Motion to Certify Questions of Law to the Court of Appeals of Maryland (ECF No. 98).
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a 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(c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, summary judgment is proper "only when no reasonable jury could return a verdict for the nonmoving party.'" Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir. 2001)(quoting Anderson, 477 U.S. at 255)). In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249.
In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993). If the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment must be granted. Anderson, 477 U.S. at 249-50. A party opposing summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also In re Apex Express Corp., 190 F.3d 624, 633 (4th Cir.1999). This Court has previously explained that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D. Md. 2001) (citations omitted).
Defendant James B. Nutter & Company ("Defendant" or "Nutter") contends that it is entitled to summary judgment with respect to the Maryland Finder's Fee Act ("MFFA") claim in Count I. Specifically, Defendant contends that in light of this Court's decision in Petry v. Prosperity Mortgage Company (" Petry '), a case consolidated with and referred to as Minter v. Wells Fargo Bank, N.A., ___ F.Supp.2d ___, 2013 WL 593963 (D. Md. 2013), Nutter is not "legally capable" of violating the MFFA and therefore cannot be held liable for conspiracy to violate this Act. In response, Plaintiff William A. Marshall, Jr. ("Plaintiff" or "Marshall") argues that Petry was incorrectly decided and that it is factually distinguishable ...