United States District Court, District of Maryland
Ellen Lipton Hollander, United States District Judge.
Plaintiff Michael Bochenski, who is self-represented, filed suit against defendant M&T Bank ("M&T" or "Bank"), supported by twenty exhibits. See ECF 2 ("Complaint"). In a twenty-seven page, single-spaced Complaint, he alleges that the Bank committed "fraud, theft and/or conspiracy to commit fraud" in connection with a mortgage loan ("Loan") that plaintiff obtained from another lender on September 30, 1987. See id. ¶ 1; ECF 2-4 at 1, Ex. D, Purchase Money Deed of Trust dated 9/30/87 ("Deed of Trust"). The Loan, in the sum of $65, 000, was used to finance plaintiff's purchase of residential real property (the "Property") located in Annapolis, Maryland, and is secured by the Property. See ECF 2 ¶ 1; ECF 2-4 at 1, Deed of Trust.
M&T had no involvement with plaintiff's Loan until November 1, 2011, when the servicing of the Loan was reassigned from Bogman, Inc. ("Bogman") to M&T. See ECF 2 ¶¶ 36, 38; ECF 2-3 at 1, Ex. C, letter dated 9/6/12 from Nancy Terranova, M&T Operations Manager, to Bochenski ("Terranova Letter"). Plaintiff claims that on January 9, 2012, he was notified by the Bank "that they now held the mortgage." ECF 2 ¶ 36. Thereafter, a series of disputes arose between plaintiff and M&T, as to several matters, including alleged overpayments by plaintiff in connection with his private mortgage insurance policy, largely made during the period when the Bank had no involvement in the Loan.
In his Complaint, plaintiff seeks compensatory damages of $194, 576.04 and punitive damages in an unspecified amount. Id. ¶ 72. In a later submission, ECF 19, he seeks punitive damages of $778, 404.16, to be paid "in gold or silver at current market rates or by certified check or cashier's check …." Id. at 29–30.
M&T has filed a "Motion to Dismiss Plaintiff's Complaint, or, in the Alternative, Motion for a More Definite Statement" (ECF 9, "Motion"). In response, plaintiff filed a "Motion to return for this Federal District Court's, court of record AND to return case to Maryland Circuit Court for Anne Arundel County in Annapolis Maryland as case number 02-C-14-185059" (ECF 10, "Motion to Return"). Plaintiff also filed a "Writ of Error and Motion to Return Court Case to Original Jurisdiction" (ECF 14, "Writ of Error"), and "Motion to Deny Defendant's Opposition and/or Request for a Hearing to Deny the Defendant's Deny Opposition" (ECF 16, "Motion to Deny"). Defendant filed oppositions to the Motion to Return and to the Writ of Error. See ECF 11; ECF 15. By Memorandum (ECF 17) and Order (ECF 18) entered July 21, 2014, I denied plaintiff's Motion to Return, Writ of Error, and Motion to Deny. And, plaintiff was directed to file his opposition to defendant's Motion by August 4, 2014. See ECF 18 ¶ 5.
On August 1, 2014, plaintiff filed two additional motions: a "Motion to Strike Defendants [sic] Motion to Dismiss and Amend Complaint to Claim and Hearing for Judgment and Stay Order" (ECF 19, "First Motion to Strike"), supported by five exhibits, and a "Motion to Strike Defendants [sic] Motion to Dismiss and Amend Complaint to Claim and Hearing for Judgment and Stay Order or Motion to Dismiss in Circuit Court" (ECF 20, "Second Motion to Strike"), supported by an exhibit. Although plaintiff styles these filings as motions,  I have construed these submissions as responses to defendant's Motion. M&T filed a Reply (ECF 21) on August 18, 2014.
I. Factual Background
On September 30, 1987, plaintiff borrowed $65, 000 to finance the purchase of a home on Tyler Avenue in Annapolis, payment for which was secured by a Deed of Trust dated September 30, 1987. ECF 2 ¶ 1; see also ECF 2-4 at 1, Deed of Trust. The lenders appear to have been Weaver Brothers, Inc. and the Community Development Administration ("CDA"), a division of the Maryland Department of Housing and Community Development ("MDHCD" or "Department") (collectively, the "Lender"). See ECF 2-4 at 1, Deed of Trust. The Maryland Housing Fund issued a "COMMITMENT/CERTIFICATE FOR MORTGAGE INSURANCE" to the Lender. See ECF 2 ¶ 63; ECF 2-1, Ex. A, Maryland Housing Fund Commitment/Certificate for Mortgage Insurance ("PMI Certificate"). As noted, on November 1, 2011, the servicing rights for plaintiff's mortgage were transferred from Bogman to M&T. See ECF 2 ¶ 38; see also ECF 2-3 at 1, Terranova Letter.
The remaining facts are difficult to glean from the rambling Complaint. But, it appears that plaintiff takes issue with the manner in which M&T serviced his Loan. Most of plaintiff's allegations pertain to the following: (A) plaintiff's payments for private mortgage insurance; (B) M&T's alleged failure to provide plaintiff with a "proper accounting" of his mortgage, and related communications with M&T Senior Counsel, Paul Kucinski; (C) M&T employees' alleged errors with respect to plaintiff's Loan; (D) M&T employees' alleged harassment of plaintiff; and (E) "theft" by M&T.
As best as I can determine, the mortgage has been satisfied. In any event, this case does not involve a foreclosure on the Property by the Bank.
A. Private Mortgage Insurance
Plaintiff's Deed of Trust contains two provisions that, read together, appear to have required plaintiff to purchase private mortgage insurance ("PMI"). First, the Deed of Trust provides, ECF 2-4 ¶ 7 (emphasis added):
7. Mortgage Insurance: Until all sums due under the Note and secured hereby are fully paid and satisfied (unless otherwise permitted by Lender and CDA), Borrower shall keep and maintain in effect a policy of mortgage insurance, in an amount at least equal to the outstanding indebtedness … issued by … the Maryland Housing Fund.
Second, the Deed of Trust states that monthly payments of the PMI are required on the same date monthly mortgages payments are due. See ECF 2-4 ¶ 2.
In September 1987, plaintiff obtained a PMI policy from the Maryland Housing Fund. See ECF 2 ¶ 63; ECF 2-1, PMI Certificate. Plaintiff made PMI premium payments of $13 per month for approximately 25 years, from 1987 until about early 2012. ECF 2 ¶ 30; see also ECF 2-3 at 1, Terranova Letter. Relying on the Homeowners Protection Act, plaintiff maintains here that he was never obligated to obtain PMI. See ECF 2 ¶¶ 13, 30, 63.
In a letter from plaintiff dated March 13, 1999, to "Bancone Mort Corp, " which appears to have been a previous servicer of plaintiff's mortgage, plaintiff stated: "PMI insurance is not for me it is insurance for you. Weaver Bro lied to me. This Homeowners Protection Act information you sent does not require me to have it." See ECF 2-5 at 1, Ex. E ("Bancone Letter").
Plaintiff apparently raised the issue of PMI with the Bank. Sometime after November 2011, M&T employee Claudette Satchell contacted the MDHCD to ask whether Mr. Bochenski qualified for cancellation of his PMI insurance obligation, given how much of his Loan principal had been paid. See ECF 2 ¶ 23; see also ECF 2-3 at 1, Terranova Letter. Thereafter, the MDHCD agreed to cancel Mr. Bochenski's remaining PMI payment obligations. See ECF 2 ¶ 23; see also ECF 2-3 at 1, Terranova Letter. The Department also agreed to refund plaintiff for the PMI premium payments that he had made from 2002 through 2011. See ECF 2-3 at 1, Terranova Letter; ECF ¶¶ 22-24. As a result, the State of Maryland Treasury Office issued two checks to plaintiff, totaling $1560. ECF 2 ¶ 27; see also ECF 2-7 at 1–2, Ex. G ("PMI Refund Checks"). M&T Bank repeatedly attempted to explain to Mr. Bochenski the actions that occurred regarding his PMI policy.
For example, in a letter to plaintiff dated June 20, 2012, Aimee Carpenter, Mortgage Customer Support at M&T, responded to a letter from plaintiff and stated, ECF 2-6 at 1, Ex. F ("Carpenter Letter"):
Upon thorough review of your account, it has been determined that the PMI policy should have been canceled in 2002 by the previous servicer. However, it was not removed until March 2012 by M&T Bank. A refund in the amount of $1, 135.86 was mailed directly to you from the Maryland Department of Housing for premiums paid from 2002 through 2010. According to the Homeowners Protection Act of 1999, any loan closed prior to 7/29/99 would be removed at mid-point. Since your loan closed on 9/30/1987, your midpoint [sic] was reached in 9/2002. Based on this act, you were advised that the refund would be $1, 560.00. An additional check will be mailed by the Maryland Department of Housing in the amount of $424.14 for this difference under separate cover. This will cover the total amount of premiums paid from 2002 through 2011 ($156.00 times 10 years).[]
Similarly, in a letter dated July 25, 2012, discussed further, infra, M&T's Senior Counsel, Paul W. Kucinski, Esq., gave a similar account to Tyler King, Esq., then counsel for Mr. Bochenski, with respect to M&T's communications with the Department. See ECF 2-17, Ex. Q ("First Kucinski Letter"). Kucinski said, in part, id. at 2:
In response to the many correspondences and branch visits by Mr. Bochenski, his mortgage account was reviewed further. During this review, M&T determined that mortgage insurance on Mr. Bochenski's account was no longer required and was terminated. As a result, a second escrow analysis statement dated February 27, 2012 was prepared and issued to Mr. Bochenski to reflect the removal of the mortgage insurance.
It was also determined through our research that the private mortgage insurance policy should have been canceled by Bogman, Inc. in 2002. Two refund checks totaling $1, 560.00 were sent to Mr. Bochenski by the Maryland Community Development Agency to reimburse Mr. Bochenski for the premiums paid from 2002 through 2011 ($156.00 times 10 years).
And, in a letter to Mr. Bochenski dated September 6, 2012, ECF 2-3, M&T Operations Manager Nancy Terranova addressed the cancellation of Mr. Bochenski's PMI policy. She said, in part, id. at 1, Terranova Letter:
As you will recall, you obtained mortgage financing on September 30, 1987 arranged through the Community Development Association, a division of the Maryland DHCD. At the time your mortgage was originated, it was disclosed to you that you were required to maintain private mortgage insurance. (Please see the enclosed documents.) On November 1, 2011, the servicing of your mortgage loan was transferred from Bogman, Inc. to M&T. M&T is the current servicer of your loan.
As is often the case when M&T originates a mortgage loan or acquires servicing rights, we review mortgage accounts to make sure that the accounts are properly set up. In reviewing your mortgage account, we noticed that private mortgage insurance was still in place. Following an analysis of your mortgage account, we determined that you had paid down the principal balance of your mortgage loan significantly and that your private mortgage insurance may be qualified for cancellation. As a result, we contacted MD DHCD and advised the agency of the situation. Although the Homeowners Protection Act of 1998, which addressed private mortgage insurance requirements for those mortgage loans originated on or after July 29, 1999 did not affect your mortgage loan, MD DHCD agreed to cancel the Insurance and refund to you the premiums paid from 2002 through 2011 as a courtesy. Your annual premium was $1560.00. Two refund checks totaling $1, 560.00 were sent to you from MD DHCD.
In addition, Terranova advised plaintiff that late charges for his payments for May, June, and July of 2012, totaling $60.81, were waived by the Bank and "applied to the principal balance, " as "a customer service accommodation …." ECF 2-3 at 2, Terranova Letter. She also indicated that plaintiff's "Loan History" was enclosed with her letter. Id.
In a letter from Kucinski to plaintiff dated February 28, 2013, Kucinski recounted his previous conversations with plaintiff, and expressed his view that plaintiff was responsible for making PMI payments while the policy was in effect. ECF 2-2 at 1-2, Ex. B ("Second Kucinski Letter"). In the Second Kucinski Letter, Kucinski said: "On February 21st I called you at the agreed upon time to discuss my findings. I explained to you that I disagreed with your position that you were not responsible for the monthly cost of mortgage insurance while it was in effect." Id. at 1. Kucinski also stated, id. at 2:
When the servicing of your mortgage loan transferred from Bogman, Inc. to M&T, a review of your account was performed and it was determined that mortgage insurance was no longer required. In fact, it was M&T that discovered you had paid too much in mortgage insurance premiums and it was M&T that contacted the MDHCD to facilitate a refund of excess premiums paid by you.
In the Complaint, plaintiff takes issue with the manner in which M&T managed his PMI insurance obligations. In his view, any suggestion by M&T that he was obligated to pay his PMI or that he only received a refund as a "courtesy" is fraudulent, and requires compensation to him. See, e.g., ECF 2 ¶ 12.
Further, plaintiff alleges that, in order to procure the refund of plaintiff's PMI payments, M&T employees engaged in "secret communications and ‘negotiations'" with the Department, without his consent, and failed to disclose these negotiations to him. ECF 2 ¶ 66; id., Prayer ¶ 16. According to plaintiff, the purpose of these negotiations was "to unlawfully take or reduce the Plaintiff's Funds …." Id. ¶ 66. In plaintiff's view, these negotiations, along with M&T's failure to disclose its communications with the Department, amount to "fraud against the plaintiff and/or the MD Treasury." Id. ¶ 23; see also, e.g., id. ¶ 65 (alleging that "fraud may be committed against Maryland DHCD that caused the Maryland Dept. of the Treasury [to] write two checks mentioned [in] paragraph 27 in this compliant [sic]….").
Moreover, plaintiff claims that the Bank must apply the PMI to the Loan principal to reduce the balance of the Loan. ECF 2 ¶¶ 13, 31, 32. According to plaintiff, he overpaid $17, 204.92 (with interest) and M&T owes an equal sum "as a punitive remedy for this fraud …." Id. ¶ 32.
Plaintiff also disputes that M&T reviewed his account prior to making a determination of his PMI insurance obligations. See id. ¶ 14. In plaintiff's view, M&T could not have reviewed his account because M&T "cannot show a monthly payment history of interest, principal and balance by date from September 1987 to current date. . . ." ECF 2 ¶ 14; see also id. ¶ 12 (characterizing statements in Ms. Terranova's letter as "false claims" and an act of "fraud against the plaintiff"). Moreover, plaintiff complains that the "Loan History" enclosed with the Terranova Letter was "incomplete" because "[t]he years from 1987 through 1997 and year 2012 to current date are missing." Id. ¶ 14; see also ECF 2-12, Ex. L ("Loan History").
B. Request for Proper Accounting; Communications with Mr. Kucinski
Plaintiff alleges that M&T failed, despite repeated requests, to provide him with a "proper accounting" of the balance due on his Loan. See, e.g., ECF 2 ¶ 16 ("M&T … must create proper accounting of funds to [plaintiff's] account … in accordance [with] the Deed of Trust …."); id. ¶ 46 ("M&T has never sent a correct escrow statement or an accounting for the account 004000093 during their time as the MSP."); id. ¶ 51 (All M&T employees in all communications were demanded [to] generate proper accounting for account 040000093.… This statement and information has not been provided, as of this date."); id. ¶ 59 ("All parties have been demanded to get a full accounting of account 004000093 and these request [sic] are still being denied and cause the plaintiff continuing harm."). According to plaintiff, "a full accounting will show the [mortgage] loan is paid off." Id. ¶ 60; see also id. ¶ 33 (stating that "this loan … has been paid off on or about March 2012 ….").
To support the contention that plaintiff's mortgage has been satisfied, plaintiff advances two claims. See ECF 2 ¶¶ 21, 29–32. Relying on M&T's purported mismanagement of plaintiff's excess PMI payments, plaintiff asserts: "Michael Bochenski the plaintiff did not ask for a refund " of the excess PMI payments. Id. ¶ 24 (emphasis supplied by plaintiff). Rather, plaintiff contends that he "demanded excess funds to be applied to the account reducing the principal at date of receipt of each excess paid." ECF 2 ¶ 24. Quoting the Deed of Trust, plaintiff alleges, id. (boldface and underling added by plaintiff):
"If the amount of the funds held by the lender, together with the future monthly installments of Funds payable before the dates of the Assessments, as they fall due, such excess shall be, at the Borrow er's option , either repaid to Borrower on monthly installments of Funds or towards the outstanding principal and interest."
Plaintiff seems to suggest that the Deed of Trust provides that, at the Borrower's election, excess payments are either returned to the Borrower or applied to the outstanding balance on the Loan. Accordingly, plaintiff contends that instead of a refund to plaintiff of $1, 560 for alleged PMI overpayments, all of plaintiff's prior PMI payments should have been applied to plaintiff's outstanding Loan balance. ECF 2 ¶¶ 24, 29, 31. Factoring in an interest rate of 8.65% to the premium payments, a rate that allegedly governs the Deed of Trust, id. ¶ 30, plaintiff calculates the "accumulated amount" of excess PMI payments to be $17, 204.92. Id. ¶ 32. In plaintiff's view, had this amount been applied to the principal of his Loan, as he directed, the balance would have been "paid in full" "[o]n or around April 2013 …." Id.; see also ECF 2-13 at 7, Ex. M, Undated Spreadsheet (purporting to show that the retroactive application of plaintiff's PMI payments would result in his mortgage being paid off on or around March 2013). Plaintiff also claims the Loan was paid off "on or about March 2012." Id. ¶ 33.
In the alternative, plaintiff contends that his mortgage was satisfied via an accord and satisfaction of his outstanding mortgage debt. To this end, plaintiff recounts that on May 2, 2012, M&T called to inform him that he needed to pay $7.42 to his mortgage escrow account. ECF 2 ¶ 21. Plaintiff contends that the next day, May 3, 2012, he wrote a check to M&T for $7.42. Id. That check, ECF 2-7 at 3, is dated May 3, 2012, and was drawn on an account of Canvas Wizard, Inc., payable to M&T Bank ("Check 4895"). In other words, Check 4895 was not drawn on a personal account of Mr. Bochenski. Plaintiff states in his Complaint: "[I]t is known and not in dispute or ever has been, to date, that Michael Bochenski is Canvas Wizard, Canvas Wizard Inc and Canvas Wizard LLC since March 1st 1988 in his trade and to all parties in this case …." ECF 2 ¶ 2. But, the precise nature of plaintiff's relationship to Canvas Wizard, Inc., or the business of Canvas Wizard, Inc., is unclear from the Complaint. Nor does plaintiff explain how the Bank would have known that "Michael Bochenski is Canvas Wizard, " ECF 2 ¶ 2, or why Bochenski was able to use corporate funds to pay personal obligations.
On the memo line on the front of Check 4895, plaintiff wrote: "FULL PAYOFF OF BALANCE." ECF 2-7 at 3, Check 4895. On the back, the check included a typed message, id. (emphasis added):
By cashing this check, M&T Bank agrees, to payoff mortgage 0040000093. … This instrument is an invoice for mistakes made by M&T Bank, as agreed to by M&T Bank, and supercedes [sic] any contract before check 4857, from this same account, on reverse of this instrument that M&T Bank cashed.
Plaintiff suggests that because M&T cashed the check, his mortgage obligations were terminated. See ECF 2 ¶ 21. Therefore, in plaintiff's view, M&T's continued demand for mortgage payments constituted theft, id., Prayer ¶ 15, and "continued harassment." Id. ¶¶ 21, 60.
Bochenski asserts that, notwithstanding his satisfaction of his mortgage, on or about July 10, 2012, "M&T contacted plaintiff and stated that they had ‘Intent to Foreclose'" upon his house. Id. ¶ 60. Plaintiff claims that he responded "in a panic, " asked how much he owed, and insisted that a "full accounting will show that the loan is paid off .…" Id. On July 11, 2012, plaintiff claims that M&T told him that he owed $1, 484.50. ECF 2 ¶ 60. Plaintiff also complains that the next day, July 12, 2012, M&T increased the amount he owed by $1.44 to $1, 485.94. Id.
It is unclear whether plaintiff eventually made the outstanding payment of $1, 485.94, as requested by M&T. But, on July 11, 2012, plaintiff's attorney at the time, Tyler King, wrote a letter to Kucinski, requesting a "full accounting" of plaintiff's mortgage account. ECF 2 ¶ 61; ECF 2-16, Ex. P ("King Letter"). King stated that "M&T demanded that Mr. Bochenski make a payment for an amount which he had never been billed." ECF 2-16 at 1. King also asserted: "M&T has continually ignored Mr. Bochenski's requests for information on the balance and breakdown of the account." ECF 2-16 at 2. King also said: "M&T has acknowledged the errors and has agreed to pay Mr. Bochenski for his time and effort spent resolving M&T's errors." Id.
On July 25, 2012, Kucinski responded to King's letter of July 12, 2012. See ECF 2-17, First Kucinski Letter. Mr. Kucinski maintained that M&T had sent plaintiff a copy of his escrow statement on multiple occasions. Id. "On December 22, 2011, " Kucinski wrote, "an escrow statement was mailed to Mr. Bochenski to the same address that previous statements and correspondence have been sent with no items being returned by the Postal Service." Id. at 1. In addition, Kucinski stated that escrow statements had also been mailed to plaintiff in February 2012 and March 2012, id. at 2, and he emphasized that "all three escrow statements … were mailed to the above property address that is listed on our system of record." Id. And, Kucinski "enclosed a copy of Mr. Bochenski's payment history, amortization schedule … payoff statement and escrow analysis previously sent to him." ECF 2-17 at 2, First Kucinski Letter. As indicated, Kucinski also wrote a letter to plaintiff dated February 28, 2013, concerning his PMI policy. ECF 2-2 at 1–2, Second Kucinski Letter.
Plaintiff characterizes several statements in the First and Second Kucinski Letters as "actionable fraud." ECF 2 ¶¶ 62–64. He explains, id. ¶¶ 62–64 (boldface added):
62. In the letter dated July 25, 2012 (Exhibit Q) from M&T's Paul Kucinski, PRC (unknown acronym) stated his first actionable fraud in paragraph 2 as listed below and M&T confirms they did not mail escrow statement on December 22, 2011. M&T does not even have an account number until February 2012. (note 2)
63. Mr. Kucinski committed actionable fraud a 2nd time in paragraph three that the plaintiff was informed his payment was different. The plaintiff had Harry Higgins contact M&T Mortgage Division and no payment change was made on that January 10th phone call between Harry Higgins and M&T Mortgage Division. The 3rd actionable fraud made by Mr. Kucinski is that the plaintiff terminated the call before resolution (as stated in letter by Kucinski, Plaintiff Bochenski "hung up"). The plaintiff sat in Mr. Higgins office and he used the office phone of Mr. Higgins and Plaintiff Bochenski did not hang up on anyone during this speaker conference call. Mr. Kucinski [sic] 4th actionable fraud is that a November 7, 2011 from the plaintiff's Canvas Wizard checking account for $699.00 … . It is actionable fraud in this letter from Paul Kucinski, dated July 25, 2012 (Exhibit Q) that a November 7th 2012 payment was received by M&T Bank that was mailed to Bogman Inc. M&T has committed actionable fraud for cashing this (endorsing this instrument) transacting [sic] to transfer funds that was not made out to M&T Bank. The November 7th 2012 Canvas Wizard check that Mr. Kucinski has stated was received is actionable fraud. The 5th Actionable fraud is that M&T had issued a onetime courtesy. That is impossible they had not even taken the loan known my [sic] M&T as 004000093 until November 1, 2011 as stated in exhibit C. Mr. Kucinski [sic] 6th actionable fraud is that M&T determined that PMI was not [sic] longer required. That an actionable fraud was committed by M&T employees since PMI was never required by the plaintiff once the Maryland Housing Fund Director signed the Certificate/Commitment this date "9/22/87" (September 22nd, 1987) on Exhibit A. It is the decree by the plaintiff that this set of actionable fraud shall require remedy of $5000.00 …
64. Mr. Kucinski has committed actionable fraud by stating that by M&T [sic] own research in paragraph 6 in his July 25, 2012 (exhibit Q) letter and in his letter dated February 28, 2013 (Exhibit B) paragraph 3 that he "disagreed with my position". It is not in his power or authority to agree or disagree and no person from M&T bank has the right to make such determinations … In [a] letter dated, February 28th 2012 Mr. Kucinski letter is well aware that Michael Bochenski the plaintiff is and has demanded the full amount and commits actionable fraud by stating "refund of $14, 000.00" … in paragraph 2 of the exhibit B. (As mentioned above in paragraph 24 of this complaint) has attempted to conceal M&T fraud and is further evidence of conspiracy to commit fraud and this actionable fraud and has caused the plaintiff excessive financial harm requires [sic] remedy that shall be $5000.00 … and is the wish of this court of record. (Exhibits Q, B) (Note 2)
In addition to the above allegations, plaintiff complains that, on or about March 2013, he and Mr. Higgins "spent at least an hour looking for Mr. Kucinski [sic] direct phone number …." ECF 2 ¶ 10. Further, plaintiff states, id. (emphasis added):
The phone number on Mr. Kucinski [sic] letter head has no extension and no operator can find him at M&T bank on his letter dated February 28th 2013 as witnessed by the plaintiff during Mr. Higgins [sic] attempts to contact him. This date is well after the hiring of Michael Bochenski's attorney and is an unlawful action of an attorney in the state of Maryland or the United States.
According to plaintiff, this incident, along with statements in the First and Second Kucinski Letters, constitute "fraud" and "breach of ethical conduct by Mr. Kucinski" that entitles plaintiff to $5, 000.00 in damages. See id., Prayer ¶ 4; id. ¶ 10.
C. Other Alleged Errors by M&T
In his Complaint, plaintiff chronicles a series of other alleged "errors" committed by M&T employees in servicing his Loan. See, e.g., ECF 2 ¶¶ 4, 7, 12, 16, 24, 27. For example, plaintiff recounts an incident that pertains to an alleged improper transfer of funds by M&T. Plaintiff alleges, id.:
67. On or about November 18th 2011, M&T Received [sic] a check from Michael Bochenski on a Bank of America account was accepted by M&T [sic]. These funds were properly transferred and made available for 2 weeks after date of deposit at M&T Bank. On or about December 5th 2011 M&T Bank transfer [sic] the Funds to Bank of America without permission or authorization by Michael Bochenski for unknown reasons to an unknown account. (Exhibit J) Baltimore Gas and Electric (aka BGE received a check based on this deposit from an M&T account. M&T bounced and or refused funds to BGE declaring Michael Bochenski had insufficient funds or some other reason. Michael Bochenski was forced to pay BGE at a cash transfer location in the Safeway Grocery store located on Forest Drive in Annapolis, Maryland for one year. …
Mr. Bochenski complains that these 12 payments "cost Michael Bochenski an additional 12 hours of time plus travel time." ECF 2 ¶ 67. He asserts: "Remedy for this error and or fraud shall be $1, 920.00 …." Id.
In addition, Mr. Bochenski complains about an incident regarding duplicate payments of his mortgage. See ECF 2 ¶¶ 36–42. On January 9, 2012, plaintiff states that he received a call from M&T, informing him that M&T "now held the mortgage." Id. ¶ 36. According to Mr. Kucinski, the purpose of this call was to "remind Mr. Bochenski that his monthly payment was due on January 1, 2012." ECF 2-17 at 1, First Kucinski Letter. Plaintiff maintains, however, that his payments are "not late until the 16th of each month and are without penalty to that date." ECF 2 ¶ 1. Moreover, he claims that the Deed of Trust "reflects this 15 day grace period." Id.
In any event, on January 10, 2012, plaintiff went to his local M&T branch, at 2027 Somerville Road in Annapolis, "to find out if they actually held the account." Id. ¶ 36. According to plaintiff, "this information was confirmed." Id. ¶ 36. During this visit, plaintiff spoke with "M&T bank and agent Harry Higgins V.P., " who initiated a conference call with the "M&T mortgage division" to determine the status of plaintiff's "Annual Escrow Report." Id. ¶ 36. According to plaintiff, the M&T mortgage division stated that it had not yet mailed the escrow report. ECF 2 ¶ 36.
On February 8, 2012, M&T called plaintiff to inform him that it had not yet received his monthly payment, due on February 1, 2012, even though plaintiff had apparently already issued a check for that month. See id. ¶¶ 37, 38; see also ECF 2-17 at 2, First Kucinski Letter. And, as noted, plaintiff contends that his monthly payments are not due until the 16th of the month. ECF 2 ¶ 1. On February 10, 2012, plaintiff returned to his local M&T Branch to resolve the request for payment. ECF 2 ¶ 38. After speaking with Mr. Higgins, it was agreed that plaintiff would issue a new check and that M&T would place a stop payment order on plaintiff's previous check, at its expense. Id.; ECF 2-17 at 2, First Kucinski Letter. That same day, plaintiff issued a new check for $729. ECF 2 ¶ 38. Soon after, M&T cashed both checks, thus causing an error of "‘insufficient funds'" in plaintiff's checking account. ECF 2 ¶ 39. On or about February 17, 2012, after plaintiff notified M&T of the error, the Bank initiated a "‘recon reversal fee … to replace the Funds taken unlawfully and without consent … back to the Plaintiffs [sic] … checking account." Id. ¶ 40; see also ECF 2-17 at 2, First Kucinski Letter (stating that, by late February 2012, M&T had issued to plaintiff two refund checks totaling $729).
On or about March 3, 2012, plaintiff issued Check 4857, in the sum of $729, to M&T. See ECF 2 ¶ 41; ECF 2-14 at 1, Ex. N ("Check 4857"). It was drawn on the account of Canvas Wizard, Inc., and paid to "reverse the Recon reversal fee." See ECF 2 ¶ 41; ECF 2-14 at 1, Check 4857. On the back of Check 4857, plaintiff included a typed message, ECF 2-14 at 2 (emphasis added):
By cashing this check M&T Bank and/or M&T Mortgage admits to errors M&T Bank has made to account [redacted]7177 and belonging to Canvas Wizard, Inc [sic] and the Mortgage [sic] Michael Bochenski has with M&T Mortgage. M&T Bank agrees to pay the Canvas Wizard invoice or invoices to cover time and damages for M&T Bank errors. M&T Bank will pay all legal fees in the event these errors are not repaired to Canvas Wizard's or good banking standards.
Plaintiff maintains that Harry Higgins, Vice President of M&T's Parole Branch, endorsed and deposited Check 4857. See ECF 2 ¶¶ 42, 72; see also ECF 2-14 at 3. Thereafter, in a letter dated March 7, 2012, plaintiff sent an "invoice" to his local M&T branch, for expenses he allegedly incurred as a result of the double-payment error. ECF 2-18 at 2, Ex. R, Invoice Letter. He wrote, id.:
Your bill is, as follows:
20 hours labor at $75.00 per hour
Unauthorized loan to M&T Bank from 2/10/12 to 2/17/12
$379.01 at 20% interest compounded daily
Our terms are Net 10 days, net 2%, 11 days to 41 days
In the Complaint, plaintiff alleges that the Bank's failure to pay pursuant to the agreement set forth on Check 4857 is "theft fraud and conspiracy to commit fraud." ECF 2 ¶ 72. In addition, plaintiff contends: "James Falletto [Regional VP at plaintiff's local M&T branch] "promised to look into my problems with M&T's mortgagee division and did not do so as promised. The plaintiff decrees this fraud and mental anguish caused by James Falletto … requires $5000.00 remedy." Id. ¶ 59.
D. Alleged Harassment by M&T and its Employees
Plaintiff contends that "M&T continuous harassment has existed since January 2012 to present with no end in sight." Id. ¶ 43. Throughout the Complaint, plaintiff characterizes numerous actions taken by M&T and its employees as ...