United States District Court, D. Maryland
PETER J. MESSITTE, District Judge.
Pursuant to Federal Rule of Civil Procedure 54(b), Thomas Hibdon and Robert Burns have asked the Court to reconsider its order entered on November 17, 2014, ECF No. 66, in which it granted the Motions to Dismiss filed by Safeguard Properties, LLC, CitiMortgage, Inc., and Bank of America N.A. with respect to Plaintiffs' claims for violation of the Maryland Consumer Protection Act ("MCPA"), Maryland Commercial Law Code § 13-301 et seq. Defendants oppose the Motion. For the reasons that follow, the Motion is GRANTED-IN-PART and DENIED-IN-PART.
The Court begins with a brief summary of the factual allegations contained in the Complaint.
At all times relevant to this action, Thomas Hibdon had a mortgage on his home in Port Republic, Maryland serviced by CitiMortgage, ECF No. 1, at ¶ 97, and Robert Burns had a mortgage on his home in Leonardtown, Maryland serviced by Bank of America, id. at ¶ 135. Plaintiffs do not dispute the validity of the instruments creating these mortgages. Among other things, these instruments provide that, after a borrower falls behind by more than 45 days on mortgage payments, the servicer is permitted to "inspect" and/or "preserve" the property - typically once a month - to determine if the property had in fact been abandoned. Id. at ¶ 6. CitiMortgage and Bank of America had a contract with Safeguard to provide these services. Id. at ¶¶ 100, 137.
Hibdon failed to make his mortgage payments to CitiMortgage beginning in February 2012. Id. at ¶ 99. On August 16, 2012, he came home to find posted on his front door a standardized sticker with "Safeguard" printed on it. Id. at ¶ 101. The sticker indicated that someone from Safeguard had visually inspected the premises of Hibdon's home, and indicated further that the property was considered vacant because the grass was high. Id. at ¶ 102. Hibdon, as it happens, had recently had back surgery and was not able cut the grass during the summer of 2012. Id. The sticker advised Hibdon to call Safeguard and inform it if the property was, in fact, not vacant; otherwise a crew would enter the home to winterize it. Id. at ¶ 103. Hibdon alleges that he notified Safeguard in numerous ways that the property was not vacant: he had attorney Kurt Wolfgang call Safeguard to inform a Safeguard representative that the property was not vacant, and attached his own notice to his front door stating that "[i]f you are reading this you are trespassing on my property. To contact me call Kurt Wolfgang attorney." Id. at ¶¶ 104-06.
On August 23, 2012, Hibdon came home to find his house broken into and the locks changed. Id. at ¶ 107. It was Safeguard's agents, he maintains, who broke into his home, consumed his food, changed his locks, and absconded with over $10, 000 in personal property, including his federal identification badge and passport. Id. at ¶¶ 109-112. Video taken by surveillance cameras at the home in fact showed a crew of men and women arriving at the home in a truck, a member of the work crew looking at Hibdon's no-trespass notice, and that same work crew member subsequently making a phone call. Thereafter, another member of the work crew was seen to use a ladder to enter the home - presumably through a window - then let the rest of the crew enter through the front door. Id. at ¶ 113. After Hibdon lodged a complaint with Safeguard, an entity known as "Glorious Industries" returned to him some of the personal property that had been removed. Id. at ¶ 122. Notably, one of the members of the work crew that had entered the property, Joseph Green, was later prosecuted and convicted of theft in connection with this incident. Hibdon says he attended Green's sentencing, and heard Green testify "that when [he] took the job, he was informed that the houses he was breaking into were abandoned and that they could take whatever they wanted." Id. at ¶ 127-131.
Although Burns's home was not in foreclosure in 2012 or 2013, Id. at ¶ 136, the Complaint does not allege that Burns was current on his mortgage payments during 2012 or 2013. From June 2012 to January 24, 2013, Burns was away from his Leonardtown home on business in San Diego, California. Id. at ¶ 138. In late October 2012, his mother contacted him and informed him that "the bank" had "taken over" the house and that notices had been posted on the front door. For some reason, Burns's mother refused to give him any contact information contained in the notices, id. at ¶ 139, so on January 24, 2013 Burns asked a neighbor to give him the phone numbers listed on the notices, which turned out to have been posted by "B.A.C. Field Services Corporation, " id. at ¶¶ 140-41. When Burns called one of the phone numbers, he was connected to a Safeguard representative who, on learning who Burns was, gave him a combination for the lock box at the home. Id. at ¶ 143. On January 24 or 25, Burns's friend visited the home, and discovered that it had been ransacked. Id. at ¶¶ 144-47. Burns, who had previously been the victim of an assault and robbery in San Diego, submits that, on hearing of the ransacking, he suffered a mental breakdown and was voluntarily hospitalized until February 1. Id. at ¶¶ 148.
Burns returned to his home on February 2, at which time he discovered that his home had indeed been ransacked, that numerous items of personal property were missing, and that his locks had been changed. No lockbox was found. Id. at ¶¶ 150-57. On February 4, Burns was able to reach a Safeguard representative, whom he informed that the house was not vacant, but that it had been broken into, and his personal property "stolen." Id. at ¶¶ 167-68. The representative responded that Safeguard had photographs of the interior of the house showing it to be in good condition, as well as other photographs taken at some later date that showed the absence of personal property that should have been in place - which, according to Burns, implied that there had been a theft of the property, that Safeguard or its agents either committed the theft or were aware of it, and that they had not communicated these facts to him. Id. at ¶ 169. Burns says he spent several months communicating with Safeguard in an effort to get his personal property back, but to no avail. Burns filed a police report with the St. Mary's County Sherriff, but no arrests were made. The criminal investigation remains open and ongoing. Id. at ¶¶ 163-64
In their Complaint, Plaintiffs set forth seven claims for relief, including violations of the federal Fair Debt Collection Practices Act, the Maryland Consumer Debt Collections Act, the Maryland Consumer Protection Act, common law torts (Conversion, Trespass, Negligence), and Breach of Contract. They moved for class certification for all claims. Defendants moved to dismiss all claims and moved to strike the class claims.
The Court held a motions hearing on November 13, 2014. By oral opinion, the Court granted Defendants' Motions to Dismiss as to Plaintiffs' statutory claims, and granted Defendants' Motions to Strike Class Allegations. The Court, however, denied Defendants' Motions to Dismiss as to the common law tort and breach of contract claims. ECF No. 66.
Plaintiffs have since moved to reconsider one aspect of the Court's ruling: namely, its dismissal of the Maryland Consumer Protection Act (MCPA) claims. ECF No. ...