United States District Court, D. Maryland
LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE
and Deirdre Ward, the self-represented plaintiffs, filed suit
in July 2013 against defendants Branch Banking & Trust
Company ("BB&T") and the Fisher Law Group, PLLC
(the "Fisher Law Group"), alleging five counts
related to defendants' attempt to foreclose
plaintiffs' home in Glenn Dale, Maryland (the
"Property"). See ECF 2. Plaintiffs filed
an Amended Complaint in September 2013. ECF 14.
claims against the Fisher Law Group were dismissed in June
2014, along with four of the five counts alleged against
BB&T. See ECF 28, Memorandum; ECF 29,
Order. Count II of the Amended Complaint (ECF 14)
remains, alleging that BB&T violated the Truth in Lending
Act ("TILA"), 15 U.S.C. §§ 1601 et
seq., by failing to disclose the sale or transfer of
plaintiffs' mortgage loan within 30 days after BB&T
acquired the loan. ECF 14 ¶¶ 30-31.
pending is BB&T's "Second Motion for Summary
Judgment" (ECF 89), supported by a memorandum of law
(ECF 89-1) (collectively, the "Second Motion") and
nine exhibits, all filed either at ECF 89-2 or ECF 89-3.
Plaintiffs have filed an "Opposition to Defendant's
Second Motion for Judgment" (ECF 90), accompanied by a
memorandum of law (ECF 90-2) (collectively, the
"Opposition"), an "Affidavit of Phillip
Ward" (ECF 90-3), and eight exhibits (ECF 90-4 through ECF
90-11). The exhibits duplicate, in part, exhibits that
BB&T has submitted. BB&T has filed a reply (ECF 91),
accompanied by one exhibit (ECF 91-1), which provides a more
legible copy of an exhibit submitted with its Second Motion.
See ECF 89-2 at 39.
Second Motion has been fully briefed, and no hearing is
necessary to resolve it. See Local Rule 105.6. For
the reasons that follow, I will grant the Second Motion.
Factual and Procedural Background
January 27, 2015, BB&T filed a Motion for Summary
Judgment with respect to Count II. ECF 51 ("First
Motion"). Based on the unsupported Declaration of
Patrick Carper (ECF 51-3), one of BB&T's executives,
BB&T alleged that it acquired plaintiffs' loan before
the relevant TILA provision went into effect. ECF 51-1 at
6-8. By Memorandum (ECF 68) and Order (ECF 69) of August 4,
2015,1 denied BB&T's First Motion, and permitted the
parties to conduct limited discovery as to when BB&T
acquired plaintiffs' loan. In particular, I ruled that
Carper's Declaration contained a "seemingly bald
conclusion that BB&T acquired plaintiff[s'] loan in
2005" and did not permit the Court to "discern what
personal experiences or business records" provided the
basis for the Declaration. ECF 68 at 14.
parties subsequently engaged in limited discovery. The Second
acquired the Property in July 2005, with a loan from Southern
Trust Mortgage, LLC ("Southern"). ECF 89-2 at 8,
Note. On July 25, 2005, plaintiffs executed a Promissory Note
(the "Note") that encumbered the Property. ECF 89-2
at 8-11, Note; see ECF 90-3, Affidavit of Phillip
Ward at 1 ¶ 3. The Note was secured by a Deed of Trust.
ECF 89-2 at 13-32. On October 4, 2005, the Deed of Trust was
recorded in the land records of Prince George's County.
Id. at 13.
maintains that it "purchased plaintiffs' Note from
Southern on August 17, 2005." ECF 89-1 at 3. In support
of this contention, BB&T relies on two declarations
provided by BB&T employees and various business records
that, according to BB&T, demonstrate that BB&T
acquired plaintiffs' mortgage on August 17, 2005. See
Id. at 2-5.
particular, BB&T relies on the Declaration of Christina
Powers, a "Liability and Qualified Mortgage Risk
Manager" in BB&T's "lending
department." ECF 89-2 at 2 ¶ 1; see Id. at
2-6. Ms, Powers's duties include "quality assurance
and risk-related issues associated with BB&T's sale
and purchase of mortgage loans on the secondary market,
handling repurchase obligations, compliance-related issues
for the sale and purchase of loans by BB&T, and
title-related issues associated with those loans."
Id. at 2 ¶ 1.
has also submitted the Declaration of Mary Elizabeth Schwiers
(ECF 89-3 at 2-4), an "Investor Reporting Section
Manager" in BB&T's "investor reporting
department." Id. at 2 ¶ 1. Ms, Schwiers is
"responsible for ensuring that investors' loan
accounts, including the receipt and disbursement of payments,
are handled appropriately, accurately and consistent with the
contractual obligations owed by BB&T to the
stated, BB&T contends that its business records show that
it acquired plaintiffs' mortgage in August 2005. First,
BB&T submits that a "Funding Disbursement
Sheet" confirms that it acquired plaintiffs'
mortgage on August 17, 2005. See ECF 89-1 at 3. Ms.
Powers's Declaration provides, in relevant part, ECF 89-2
at 3 ¶ 4; "When BB&T purchases a loan on the
secondary market through a correspondent lending arrangement,
BB&T provides the correspondent lender with a funding
disbursement sheet indicating the amount BB&T is funding
to purchase the loan." A "Funding Disbursement
Sheet" prepared by Tina Wells concerning "Philip L
Ward" is date-stamped "8/17/05" and
time-stamped "3 36 42 PM." Id. at 34. Ms.
Powers avers that Ms. Wells works in "BB&T's
correspondent lending department." Id. at 89-2
at 3 ¶ 4. The "Funding Disbursement Sheet"
identifies "Southern Trust Mortgage" as the
"ORIGINATING COMPANY" and indicates that the
"Total Amount Funded" was "$361,080 05."
Id. at 34. In relevant part, the "Funding
Disbursement Sheet" states, id. (capitalized in
original): "THE ABOVE REFERENCED LOAN HAS BEEN
PURCHASED/FUNDED AS OF 08/17/2005 THE FUNDS HAVE BEEN
WIRED/TRANSFERRED AS PER YOUR INSTRUCTIONS."
BB&T maintains that a "Notice of Assignment, Sale or
Transfer of Servicing Rights" demonstrates that it
acquired servicing rights to plaintiffs' loan on August
17, 2005. See ECF 89-1 at 3. In her Declaration,
Powers states, in relevant part, ECF 89-2 at 4 ¶ 5:
"In addition to purchasing Plaintiffs' loan,
BB&T acquired the servicing rights for the loan and
provided notice of transfer of the servicing rights to
Plaintiffs Phillip Ward and Deidre Ward on August 17,
2005." A "Notice of Assignment, Sale or Transfer of
Servicing Rights," addressed to plaintiffs and dated
August 17, 2005, provides, in pertinent part, id. at
36: "You are hereby notified1' that the servicing of
your mortgage loan, that is, the right to collect payments
from you is being assigned, sold, or transferred from
Southern Trust Mortgage to Branch Banking and Trust Company
BB&T contends that a "MERS Milestone Report"
shows that it acquired plaintiffs' mortgage in August
2005. See ECF 89-1 at 4. Ms. Powers explains in her
Declaration, ECF 89- 2 at 4 ¶ 6: "The MERS®
System is a private electronic database used by members of
the MERS® System to track servicing rights and beneficial
ownership interests in mortgage loans registered on the
system which loans are secured by a deed of trust or mortgage
held by Mortgage Electronic Registration Systems, Inc.
('MERS')." Further, Ms. Powers avers,
id. at 5 n.l:
A transferor or a transferee can initiate the posting of a
transfer of the servicing rights or beneficial rights or both
of a mortgage on the MERS system. Whichever one initiates the
transfer, the other one has to accept or confirm the transfer
in order for it to appear on the MERS system. The transfer
gets initiated in a "Batch" and that
"Batch" is then accepted or confirmed by the
non-initiating MERS members. The date under the
"Date" column on the MERS Milestone Report is the
date on which the "Batch" is accepted or confirmed,
which may be different from the effective date of the
to the MERS Milestone Report for plaintiffs' mortgage,
Southern registered plaintiffs' mortgage on August 5,
2005. Id. at 39. On August 24, 2005, BB&T
accepted the transfer of both the beneficial and the
servicing rights to plaintiffs' mortgage. Id.
The MERS Milestone Report lists August 17, 2005, as the
effective date of transfer for both beneficial and servicing
rights to plaintiffs' mortgage. Id. The MERS
Milestone Report also indicates that, effective September 8,
2005, BB&T transferred beneficial rights to
plaintiffs' mortgage to the "Federal National
Mortgage Association," known as "Fannie Mae."
Id.; ECF 89-1 at 2. Ms. Powers avers, ECF 89-2 at 6
¶ 8.c: "Although BB&T transferred to Fannie Mae
the beneficial rights in Plaintiffs' mortgage, it did not
transfer the servicing rights. BB&T continued to service
BB&T submits that its internal '"Loan Transfer
History' confirms that BB&T acquired plaintiffs'
loan prior to September 14, 2005 . . . ." ECF 89-1 at
According to Ms. . Schwiers's Declaration (ECF 89-3 at 3
¶ 3), the "Loan Transfer History" (ECF 89-3 at
6) is "a computer screen shot of the Loan Transfer
History page for Plaintiffs' loan . . . ."
Id. at 3 ¶ 3. According to Ms. Schwiers, the
"Loan Transfer History for Plaintiffs' loan shows
that as of September 14, 2005, BB&T sold Plaintiffs'
loan to . . . Fannie Mae . . . ." ECF 89-3 at 3 ¶
4. Thereafter, according to Ms. Schwiers, the "Loan
Transfer History" indicates that Fannie Mae transferred
plaintiffs' mortgage through various loan pools that
Fannie Mae owned. See Id. at 3 ¶ 5-6. BB&T
maintains, ECF 89-1 at 5: "The Loan Transfer History
also shows that at no time after selling plaintiffs' loan
to Fannie Mae did BB&T reacquire ownership of the
counter that "a genuine factual dispute exists" as
to "when Defendant BB&T allegedly purchased the
Pro Se Plaintiffs['] note." ECF 90-2 at 6.
In particular, plaintiffs contend, id. at 7:
"[A] conflict exists between the Land Records of Prince
George's County, Maryland County [sic] and Defendant
BB&T['s] internal records as well as its
representation of the MERS milestone report."
See ECF 90-3 ¶¶ 6-10.
Ward avers in his Affidavit (ECF 90-3) that he "assessed
[sic] online records from [the] PG county official site
searching for any recorded documents by Southern Trust,
BB&T and Fannie Mae on August 17, 2005 that in [sic]
involved Southern Trust selling the note assigning the Deed
of Trust, or transferring the Deed of Trust to BB&T
regarding [his] property . .. ." Id. at 2
¶ 6. According to Mr. Ward, "no such recordings
were found." Id.
regard, plaintiffs have submitted a print out of the search
results for "ward, phillip" as
"Grantor/Grantee" for "all dates" in what
appears to be an online database of the land records of
Prince George's County. ECF 90-4 at 2-3. The print out
identifies the date on which a particular "Instrument
Type" was recorded pertaining to Mr. Ward as grantor or
grantee and the "Book/Page" on which the original
document is found. Id. Notably, the print out
provides no information as to whom Mr. Ward transferred a
property interest or whether subsequent recipients
transferred their interests to yet other parties. See
Ward maintains in his Affidavit that "there has been
only been [sic] one entry of a recorded document in the land
record in PG County to date on October 4, 2005 with Southern
Trust Mortgage regarding [his] property . . . ." ECF
90-3 at 2 ¶ 7. According to Mr. Ward, the original Deed
of Trust to Southern (ECF 90-5 at 2) is ...