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Bochenski v. M&T Bank

United States District Court, D. Maryland

April 20, 2016

M&T BANK, Defendant


Ellen Lipton Hollander United States District Judge.

Plaintiff Michael Bochenski, who is self-represented, filed suit against M&T Bank (“M&T” or the “Bank”) in the Circuit Court for Anne Arundel County. ECF 2, “Complaint.” Plaintiff alleged, inter alia, “fraud, theft and/or conspiracy to commit fraud” (id. ¶ 1) in relation to a residential mortgage loan (the “Loan”) that plaintiff obtained in 1987, and which M&T first began to service in late 2011. ECF 2, ¶¶ 36, 38. M&T removed the action to this Court on the basis of diversity jurisdiction. ECF 1, “Notice of Removal.”

On November 13, 2015, M&T filed a Motion for Summary Judgment (ECF 37), as well as a memorandum of law (ECF 37-2) (collectively, the “Motion”), claiming that Bochenski’s only remaining claim is moot, and that “there is no longer a justiciable controversy for this Court to resolve.” ECF 37 at 1. The Motion is supported by three exhibits, including an “Amortization Schedule Calculator” relevant to the Loan (ECF 37-1); the Declaration of Aimee Carpenter, a Banking Officer and Support Specialist in M&T’s Mortgage Servicing Department (ECF 37-3, “Carpenter Declaration”); and the Declaration of Brian L. Moffett, Esq., counsel for defendant (ECF 37-4, “Moffett Declaration”). Plaintiff has not filed a response.[1]

On December 22, 2015, defendant submitted a “Reply in Support of Motion for Summary Judgment” (ECF 39, “Reply”), along with two exhibits. In the Reply, M&T urges the Court to grant the Motion as unopposed.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will grant defendant’s Motion.

I. Procedural History and Factual Background[2]

On September 30, 1987, plaintiff borrowed $65, 000 to finance the purchase of a home on Tyler Avenue in Annapolis, Maryland, 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, a division of the Maryland Department of Housing and Community Development. See 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 37-3, ¶ 5, Carpenter Declaration.

Plaintiff contends 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. See, e.g., ECF 2, ¶¶ 12, 13. The alleged overpayments were largely made during the period when the Bank had no involvement with the Loan and have since been refunded.[3] See ECF 2, ¶ 27; ECF 2-7 at 1-2 (copies of the checks refunding private mortgage insurance payments). The various disputes culminated in plaintiff’s suit against the Bank. In a generous reading of the Complaint, plaintiff alleged fraud; civil conspiracy; harassment; breach of ethical conduct; accord and satisfaction; intentional infliction of emotional distress; theft; and negligence. The Court also interpreted the Complaint to seek the remedies of “clear title, ” “quiet title, ” and a request for accounting. See generally ECF 2.

As to plaintiff’s claim for an accounting, he alleged that M&T failed to provide a “proper accounting” of his Loan obligation. 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 (alleging that “M&T has never sent a correct escrow statement or an accounting” for plaintiff’s Loan); id. ¶ 51 (“All M&T employees in all communications were demanded [to] generate proper accounting . . . . This statement and information has not been provided, as of this date.”); id. ¶ 59 (“All parties have been demanded to get a full accounting . . . 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 . . . .”).

In April 2014, M&T filed a “Motion to Dismiss Plaintiff’s Complaint, or, in the Alternative, Motion for a More Definite Statement.” ECF 9. 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. Plaintiff also filed a “Writ of Error and Motion to Return Court Case to Original Jurisdiction” (ECF 14), and “Motion to Deny Defendant’s Opposition and/or Request for a Hearing to Deny the Defendant’s Deny Opposition” (ECF 16). M&T 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) dated July 21, 2014, the Court denied plaintiff’s Motion to Return, Writ of Error, and Motion to Deny. And, plaintiff was directed to file his opposition to M&T’s Motion. See ECF 18 ¶ 5.

Plaintiff filed two additional motions in August 2014: a “Motion to Strike Defendants [sic] Motion to Dismiss and Amend Complaint to Claim and Hearing for Judgment and Stay Order” (ECF 19), 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), supported by an exhibit. Although plaintiff styled these filings as motions, the Court construed the submissions as responses to defendant’s Motion to Dismiss. M&T filed a Reply. ECF 21.

Notably, in defendant’s submissions prior to the Court’s ruling on March 10, 2015, the Bank failed to address the allegations as to an accounting. By Memorandum and Order dated March 10, 2015, the Court dismissed all of the counts in plaintiff’s Complaint, with the exception of plaintiff’s demand for M&T to provide him with an accounting of his Loan obligation. ECF 23 at 52-55; ECF 24; see, e.g., ECF 2, ¶¶ 12, 16, 17, 20, 26. That remaining claim is the subject of the Bank’s Motion.

Thereafter, on March 24, 2015, M&T filed an answer to plaintiff’s Complaint. ECF 25. On April 13, 2015, I referred the case to a magistrate judge for settlement. ECF 30. A settlement conference was scheduled for September 9, 2015. ECF 31; Docket. However, the parties were unable to reach a resolution. On September 22, 2015, the Court received a letter from Bochenski requesting a trial by jury. ECF 33. By Order dated September 22, 2015, the Court directed the Bank to submit a status report. ECF 34.

On October 2, 2015, M&T filed a status report confirming that the parties “were unable to reach a compromise.” ECF 35 at 1. ...

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