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Ervin v. JP Morgan Chase Bank, N.A.

United States District Court, D. Maryland

August 13, 2014

ANDREW J. ERVIN, Plaintiff,


GEORGE L. RUSSELL, III, District Judge.

Pending before the Court is Defendant JP Morgan Chase Bank NA's ("Chase") Motion for Summary Judgment (ECF No. 23) and Motion for Leave to File Surreply (ECF No. 35), and Plaintiff Andrew J. Ervin's Cross Motion for Partial Summary Judgment (ECF No. 24). Having reviewed the pleadings and supporting documents, the Court finds no hearing necessary. See Local Rule 105.6 (D.Md. 2014). For the reasons outlined below, the parties' Motions for Summary Judgment will be denied and Chase's Motion for Leave to File Surreply will be granted.


In March 2007, Plaintiff Andrew J. Ervin refinanced the mortgage on his residence at 12722 Manor Road, Glen Arm, Maryland by borrowing $380, 000 from GSF Mortgage Corporation and securing the debt with a note and deed of trust. Thereafter, Ervin defaulted on the loan and Chase became the holder of the loan. Effective August 1, 2012, the parties entered into a Loan Modification Agreement ("LMA"), pursuant to an on-the-record settlement agreement reached in Andrew J. Ervin v. JPMorgan Chase Bank, N.A., Case No. 03-C-10-011259, Circuit Court for Baltimore County, which lowered Ervin's interest rate and monthly payment. All other terms and provisions of the original loan documents remained in full force and effect.

The LMA provided for an estimated monthly escrow payment of $814.08, which included $516.17 for private mortgage insurance ("PMI"). Additionally, the LMA indicated that the escrow amount and PMI may periodically change over the term of the loan. By its annual escrow statement dated July 11, 2012 ("Annual Escrow Statement"), Chase informed Ervin of an escrow shortage of $5, 636.80[1], and, as a result of the shortage, increased Ervin's monthly mortgage payment from $1, 671.13 to $1, 746.15 beginning October 1, 2012.

Ervin made his first payment under the LMA on July 11, 2012, in the amount of $1, 671.09. Ervin made his next payment of $1, 670.98 on August 2, 2012, which was applied to his account as the payment due on September 1, 2012. A statement issued by Chase to Ervin on August 6, 2012, indicated the next amount due on October 1, 2012, including the escrow increase effective that day, was $1, 746.15. Nevertheless, beginning on September 17, 2012, through March 1, 2013, Ervin tendered partial payment in the amount of $1, 670.98. By correspondence dated February 11, 2013, Chase gave notice to Ervin of its intent to foreclose the Loan.

Ervin initiated this suit on June 6, 2013, in the Circuit Court for Baltimore City, Maryland alleging violations of the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law §§ 14-201 et seq. (West 2014) (Count I), the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §§ 13-101 et seq. (West 2014) (Count II), and the Maryland Mortgage Fraud Protection Act ("MMFPA"), Md. Code Ann., Real Prop. §§ 7-401 et seq. (West 2014) (Count III). (ECF No. 2). All of Ervin's claims are based on the premise that the Notice of Intent to Foreclose and the monthly mortgage statements sent between July 2012 and March 2013 relied upon miscalculations and misrepresentations in the Annual Escrow Statement which resulted in false and misleading statements that Ervin was delinquent, owed late fees, and Chase could foreclose on his mortgage account. Chase removed the case to this Court on July 19, 2013. (ECF No. 1).

Chase now moves for summary judgment arguing the statements contained in the Annual Escrow Statement, monthly mortgage statements, and Notice of Intent to Foreclosure were accurate and all delinquencies, defaults, and late charges are attributable to Ervin's decision to not pay the full amount of the mortgage payment when due. Ervin moves for partial summary judgment as to Chase's liability on his claims in this action arguing Chase failed to properly apply Ervin's payments under the LMA and knowingly elected to include premiums for a PMI policy it knew had been canceled prior to Ervin's loan modification as part of Ervin's monthly escrow amount. According to Ervin, these actions rendered all subsequent mortgage statements and the Notice of Intent to Foreclose false, deceptive, and misleading.


A. Motion for Leave to File SurReply

As a preliminary matter, the Court finds good cause to allow Chase leave to file a surreply. Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed. See Local Rule 105.2(a) (D.Md. 2014). "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve , 268 F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld , 154 F.Supp.2d 56, 61 (D.D.C. 2001)), aff'd, 85 F.App'x 960 (4th Cir. 2004).

The parties agree that, for the first time in his Reply to Opposition to Cross Motion for Summary Judgment ("Reply"), Ervin argues Chase's Amended Interrogatory Answers constitute a "sham affidavit." Accordingly, Chase's Motion for Leave to File Surreply will be granted.

B. Sham Affidavit

Ervin argues in his Reply that the Amended Interrogatory Answers, attached as exhibit A-1 to Chase's Opposition to Ervin's Cross Motion for Partial Summary Judgment ("Chase's Opposition"), should be disregarded under the sham affidavit doctrine. Specifically, Ervin contends Amended Interrogatory Answers numbers 5, 6, and 13 flatly contradict the original Interrogatory Answers without explanation.

"[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity." Cleveland v. Policy Mgmt. Sys. Corp. , 526 U.S. 795, 806 (1999). "Application of the sham affidavit rule at the summary judgment stage must be carefully limited to situations involving flat contradictions of material fact.'" Zimmerman v. Novartis Pharm. ...

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