United States District Court, D. Maryland
WILLIAM M. NICKERSON, Senior District Judge.
Before the Court are two motions for summary judgment: one filed by Defendant Wells Fargo Financial Leasing, Inc. (Wells Fargo), ECF No. 32, and one filed by Defendants Crossroads Advisors, Inc. t/a Re/Max Crossroads (Re/Max) and Glenn Ains. ECF No. 36. Upon review of the filings and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that both motions will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
As detailed more fully below, this case arose out of a series of interactions between Plaintiff Eli del Solar and Defendant Ains, who is a real estate agent employed by Defendant Re/Max. ECF No. 32-1. Re/Max was hired by Defendant Wells Fargo in January of 2011 to market 27160 Cash Corner Road, Crisfield, Maryland 21817 (the Property),  a chicken farm that was in Wells Fargo's possession as the result of a foreclosure proceeding. Plaintiff, who is Hispanic, was interested in the Property and, at one point, submitted a contract for its purchase. Ultimately, the farm was sold to a non-Hispanic couple, Thomas and Jacqueline Hornsby, for a significantly lower purchase price than that offered by Plaintiff. Plaintiff initiated this action, alleging that Defendants did not sell the farm to him because he is Hispanic.
The complaint contains two counts. Count I is brought under the Fair Housing Act, Title VIII of the Civil Rights Act of 1968 as supplemented by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 et seq. (the FHA). Count II alleges violation of Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981. This action was originally filed in the Circuit Court for Somerset County, Maryland on or about June 25, 2013. Wells Fargo removed the case to this Court on August 12, 2013, and Defendants Ains and Re/Max subsequently joined in that removal. After the close of discovery, Wells Fargo moved for summary judgment and Ains and Re/Max then filed a virtually identical motion of their own for summary judgment. The Court, agreeing with Plaintiff that Wells Fargo had raised new issues in its reply brief, permitted Plaintiff to file a Surreply, ECF No. 45, in further opposition to Wells Fargo's motion. Both motions are now ripe.
II. LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, a party may be granted summary judgment when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." As such, Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 377 U.S. 317, 322 (1986). A judge's role is to determine whether there are any genuine issues of fact that would affect the outcome of a trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). "There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id . Sufficient evidence requires there be more than "the mere existence of a scintilla of evidence on which the jury could reasonably find for the plaintiff;" rather, it must be enough that a fact finder could "reasonably find for the plaintiff." Id. at 252.
Housing discrimination claims, like other discrimination claims, are subject to an adaptation of the now familiar McDonnell-Douglas burden shifting scheme. Sullivan v. Hernandez , 215 F.Supp.2d 635, 638 (D. Md. 2002). Accordingly, in order to survive summary judgment, a plaintiff asserting a claim under either the FHA or § 1981 must first establish a prima facie case showing that: (1) he was a member of a racial minority; (2) he applied for and was qualified for, or otherwise ready, willing and able to buy the property on the vendor's terms; (3) the vendor refused to sell the property to him; and (4) the property remained available for sale thereafter on terms similar to what he offered. Mobley v. Russell , 297 F.Supp.2d 835, 838-9 (D. Md. 2003) (citation omitted). If a plaintiff establishes this prima facie case, the burden shifts to the defendant to present a legitimate, non-discriminatory reason for rejecting the plaintiff's offer and selecting a different purchaser. Following the offer of a legitimate non-discriminatory reason, the burden shifts back to the Plaintiff to establish that the explanation is a pretext, such that it is "unworthy of credence." Sullivan , 215 F.Supp.2d at 638 (citing Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 433 (2000)).
In their motions for summary judgment, Defendants challenge Plaintiff's ability to establish all but the first element of the prima facie case. Defendants note that Plaintiff never applied for financing and did not proffer an expert to testify that he would have qualified for financing, had he applied. Furthermore, Defendants suggest that they demonstrated their willingness to sell the Property to Plaintiff by presenting a written counteroffer to Plaintiff's agent, Mickey Hayward. Defendants further assert that the evidence establishes that they actually would have preferred entering a contract with Plaintiff as opposed to the Hornsbys had Plaintiff been willing to meet the offer made by the Hornsbys. Instead, Defendants maintain, Plaintiff withdrew from the negotiations. The relevant facts are as follows.
After obtaining the Property in January of 2011 through foreclosure proceedings, Wells Fargo retained Re/Max and its listing agent, Glenn Ains, to market the Property. Shortly thereafter, Ains obtained a contract from Simon and Hae Seng Kim to purchase the Property for $905, 000. To facilitate the contemplated sale, the Kims were substituted for Wells Fargo as the foreclosure purchasers on April 6, 2011. The sale to the Kims failed to close, however, and a dispute arose between Wells Fargo and the Kims regarding the return of the Kims' $30, 000 deposit. Until that dispute could be resolved, the Kims refused to relinquish their status as substitute foreclosure purchasers. In the meantime, Ains began re-marketing the Property.
On or about May 28, 2011, Plaintiff, through his agent, Hayward, made an offer on the Property for a net purchase amount of $850, 000. A few days after Plaintiff submitted his offer, Wells Fargo notified Ains that it intended to present a counteroffer to Plaintiff of $905, 000, the same purchase price offered by the Kims. Ains informed Hayward of the proposed counteroffer and explained that the bank was looking for a contract at $905, 000, because a contract for that amount would enable it to keep the Kim's deposit.
On June 16, 2011, Wells Fargo sent the written counteroffer of $905, 000 to Hayward, who immediately forwarded it to Plaintiff. Plaintiff responded that evening with an email to Hayward stating that he believed that even his offer of $850, 000 "was/is a tad too high already." Pl.'s Ex. 10. The next morning, June 17, 2011, Hayward emailed Ains stating that Plaintiff was "sticking with his offer" of $850, 000 because his projection of income from the property would not support any higher initial investment. Ains Dep., Ex. 12.
On June 23, 2011, the Hornsbys submitted an offer to Ains for $875, 000. Ains Dep. at 63; Ains Dep., Ex. 13. This offer, however, was contingent on the Hornsbys selling one of their other farms. While the listing agreement prohibited Ains from informing Plaintiff about this offer, Ains asked Hayward to encourage the Plaintiff to increase his offer, suggesting that Wells Fargo might accept a purchase price of $875, 000. Ains Dep. at 52-54. On June 27, 2011, at 5:09 p.m., Plaintiff indicated in an email to Hayward that he would like to conditionally offer $875, 000. Pl.'s Ex. 17. The offer was contingent on his ability to obtain flood insurance for $4, 000 and also required that Wells Fargo pay for all electrical repairs and provide an Elevation Certificate to facilitate the insurance quote. Id . Plaintiff further stated in his email to Hayward, "[i]f it turns out that the insurance is more than what Mr. Ains stated, we can then ...