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Aghazu v. Severn Savings Bank, FSB

United States District Court, D. Maryland

March 2, 2016

SEVERN SAVINGS BANK, FSB, et al., Defendants.



Chineme Aghazu (Aghazu) has sued Severn Savings Bank, FSB (Severn), FCI Lender Services, Inc. (FCI), and Pontus SB Trust (Pontus), [1] alleging violations of the Truth-in-Lending Act (TILA), 15 U.S.C. § 1601, et seq., the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., the Maryland Consumer Debt Collections Act (MCDCA), Md. Code Ann., Com. Law, § 14-201, et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601, et seq. Severn, FCI, and Pontus (collectively, “Defendants”) have filed Motions to Dismiss all counts. ECF Nos. 5, 10.

On November 9, 2015, the Court held a hearing on Defendants’ Motions to Dismiss. ECF No. 16. Pursuant to the Court’s November 9, 2015 Order, see ECF No. 17, the parties were directed to and thereafter filed additional papers in connection with the Motions to Dismiss, including a Supplemental Motion to Dismiss by Severn, ECF No. 18. For the following reasons, Severn’s Motion to Dismiss and Supplemental Motion to Dismiss (ECF Nos. 5, 10) are GRANTED, and FCI and Pontus’ Motion to Dismiss (ECF No. 18) is GRANTED IN PART and DENIED IN PART.


A. The Mortgage Loan from Severn

In October 2003, Aghazu obtained a mortgage Loan (“Loan”) from Severn in the amount of $265, 000.00. Compl. ¶ 8, ECF No. 1. The Loan was evidenced by a Note (“Note 1”) and secured by a Deed of Trust encumbering Aghazu’s home at 7704 Northern Avenue, Glenn Dale, MD 20769 (the “Property”). Compl., Exs. 1, 2, ECF No. 1-1. Aghazu and Severn subsequently agreed to modify the Loan on two occasions: first on February 11, 2008 (increasing the Loan amount to $340, 000.00), then on August 28, 2008 (increasing the Loan amount to $380, 000.00). Compl. ¶¶ 11-12; Compl. Exs. 3, 4, ECF No. 1-1. In addition to increasing the amount of the Loan in August 2008, the parties entered into a second Note (“Note 2”), which was a modified version of Note 1.[3] Compl. Exs. 4, 5, ECF No. 1-1. Under the terms of Note 2, Aghazu was obligated to amortize the $380, 000.00 mortgage loan at 7.0% interest per annum, with monthly payments in the amount of $2, 528.15. Compl. Ex. 5.

B. The Bankruptcy Proceedings

On August 21, 2009, Aghazu filed for Chapter 7 bankruptcy in the District Court of Maryland, Greenbelt Division. Ch. 7 Case No. 09-25607 (D. Md. Aug. 21, 2009). On October 14, 2009, during the course of the Chapter 7 bankruptcy, she filed an adversary proceeding against Severn, alleging violations of the TILA and wrongful foreclosure. Ch. 7 Case No. 09-25607, Adv. No. 09-719 (D. Md. Oct. 14, 2009). In response, Severn contended that Aghazu was in default under the Loan and that the balance due thereunder was $439, 935.00, which included outstanding principal, accrued interest, unpaid escrow, late fees, attorney’s fees, and costs. Ch. 7 Case No. 09-25607, Adv. No. 09-719, ECF No. 11.

In January 2010, to resolve this dispute, the parties executed a Mutual Release and Settlement Agreement and entered a Consent Order Resolving Motion to Dismiss Complaint and Dismissing Adversary Proceeding (“Consent Order”). Id.; Compl. Ex. 8, ECF No. 1-1. Under the terms of the Consent Order, each party was absolved of all “claims arising from the Lawsuit or the Borrower’s procurement of the Loan.” Compl. Ex. 8 ¶ 5. Further, Aghazu was permitted to remain in the Property until January 1, 2011 without having to make any mortgage payments. Id. ¶ 2. After that time, she was allowed to remain in the Property, provided that she would make interest-only payments at a reduced rate of $1, 583.33 per month, and provided further that she would aggressively market the Property for sale by December 31, 2011. Id. If Aghazu failed to close under a contract of sale before December 31, 2011, the Consent Order entitled Severn to exercise all the rights it had under the original Loan documents, including Note 2. Id.

C. Aghazu’s Post-Bankruptcy Occupancy of the Property and Loan Payments

Aghazu did not sell the Property after the bankruptcy proceeding.[4] See Compl. ¶ 19; Pl.’s Line to File Exhibits, Aff. Chineme Aghazu (“Aghazu Aff.”) ¶ 1, ECF No. 20-1. Beginning January 1, 2011, however, she did pay $1, 583.33 each month toward her mortgage. She characterizes these payments as “new principal and interest payment[s].” See Compl. ¶ 18. It is clear, however, that the $1, 583.33 Aghazu has been paying corresponds to the reduced rate interest-only payment that she was obliged to pay after January 1, 2011 under the terms of the Consent Order. Compl. Ex. 8 ¶ 5.[5] While the full extent to which Severn attempted to enforce its rights under Note 2 after December 31, 2011 is unclear, it did, on at least one occasion in August 2013, send Aghazu a Notice of Intent to Foreclose, informing her that she was in default under the Consent Order. Pl.’s Line to File Exhibits, Ex. D, ECF No. 20-5.

D. Severn’s Sale of the Loan to Pontus SB Trust and Transfer of Servicing to FCI

On December 31, 2014, Severn sold Aghazu’s Loan to Pontus. Compl. Ex. 10; see also Severn’s Reply, Ex. 1, ECF No. 7-1. On that same day, Severn notified Aghazu that it had sold her Loan to Pontus and further advised her that servicing of the Loan would be transferred to FCI, effective February 1, 2014. Compl. Ex. 10, ECF No. 1-1. Aghazu sent Severn a letter on January 6, 2014, asking for the payoff amount of her loan “as of January 2013.” Compl. Ex. 9, ECF No. 1-1. Severn allegedly did not respond to this request. Compl. ¶ 23.

The Loan’s new servicer, FCI, claims that on February 3, 2014, it sent Aghazu a Borrower Welcome Letter, advising her that the amount due under the Loan was $394, 996.00. Compl. Ex. 13 at 0058, ECF No. 1-1. However, for the first time, in an Affidavit provided to the Court after the November 9, 2015 Motions Hearing, Aghazu states that she did not receive this letter in February 2014, indicating that she only obtained a copy of it in response to a November 7, 2014 Qualified Written Request (QWR) she sent to FCI. See Aghazu Aff. ¶ 15.[6]

On February 19, 2014, Aghazu sent a payoff request to FCI. Compl. Ex. 11, ECF No. 1-1. On that same day, FCI sent her a payoff statement containing the word “DRAFT” in watermark on the paper, advising that the amount due under the Loan was $394, 669.00. Compl. Ex. 12, ECF No. 1-1. On February 25, 2014, FCI sent another payoff statement to Aghazu, this time without the word “DRAFT” in watermark, and this time informing Aghazu that the amount due under the Loan was in fact $407, 513.49. Compl. Ex. 13, ECF No. 1-1. The February 25, 2014 payoff statement included a line item for “Unpaid Charges” in the amount of $25, 988.36. Id. Notably, a subsequent payment statement sent to Aghazu in October 2014 included a roughly similar figure - $26, 860.64 - designated as “Fees” due. Compl. Ex. 15 at 0026. Aghazu asserts that these “Unpaid Charges” or “Fees” represent attorney’s fees, property taxes, and other items that had been waived under the terms of the Consent Order.[7]

Around this time, which is to say beginning in December 2013 and continuing until March 2014, Aghazu says she attempted to refinance her mortgage with Mortgage One Solutions (“Mortgage One”). Aghazu Aff. ¶¶ 4, 14, 16, 17. She says she requested the payoff figures first from Severn and then from FCI in order to facilitate the refinancing process. See Id. She claims, however, that due to the fact that the payoff figures she eventually received from FCI showed that she owed approximately $25, 000 in unpaid charges or fees, Mortgage One declined to refinance her Loan. Pl.’s Line to File Exhibits, Ex. J, ECF No. 20-11. Aghazu takes the position that these additional “fees” inhibited her attempts to refinance. Compl. Exs. 12, 13; Pl.’s Line to File Exhibits, Ex. J. Indeed, she asserts she was working to correct the alleged error in February and March 2014, after having been informed by Mortgage One that the additional “fees” might be an error stemming from the transfer of the Loan between Severn and FCI. See Pl.’s Line to File Exhibits, Ex. J.

On September 29, 2014, Aghazu received a Notice of Intent to Foreclose her Property from Pontus. Pl.’s Line to File Exhibits, Ex. I, ECF No. 20-10. The Notice yet again cited unpaid charges and fees, this time in the amount of $26, 697.53, payment of which would be required to cure Aghazu’s default. Id.

On November 7, 2014, Aghazu sent a Qualified Written Request (QWR) to FCI pursuant to the Real Estate Settlement Procedures Act, asking for certain information and requesting copies of any promissory notes executed by her. Compl. Ex. 14, ECF No. 1-1. On November 19, 2014, FCI sent a response ...

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