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Rubin v. Norwich Commercial Group, Inc.

United States District Court, D. Maryland

April 21, 2016




Presently pending and ready for resolution in this negligence and fraud case is a motion for summary judgment filed by Defendant Norwich Commercial Group, Inc. (“Norcom” or “Defendant”). (ECF No. 21). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant’s motion for summary judgment will be granted.

I. Background

A. Factual Background

Unless otherwise noted, the facts outlined here are undisputed and construed in the light most favorable to Plaintiff Sandra Rubin (“Plaintiff”). In July 2013, Plaintiff submitted an online inquiry regarding the possibility of taking out a reverse mortgage on her condominium in Silver Spring, Maryland. (ECF No. 23-3 ¶ 1). In July, Plaintiff received responses from multiple lenders attempting to secure her business. (ECF No. 21-3, at 6). One such lender was Mr. Rayburn George, Jr., who, according to Plaintiff, represented that he worked for Norcom. (Id.). Shortly thereafter, Mr. George met Plaintiff at her apartment to discuss her financial situation. He told Plaintiff that she could not obtain a reverse mortgage, but suggested that she restructure her finances by purchasing an annuity. Mr. George explained to Plaintiff that such an annuity would be “virtually risk free” and would allow her to receive monthly checks to cover her expenses. (ECF No. 23-3 ¶ 3).

On Mr. George’s recommendation, Plaintiff liquidated her stocks and wrote multiple checks to MFG, Inc., which Mr. George told Plaintiff “was an acronym for Norcom’s clearing house, Matrix Financial Group, Inc.” (Id. ¶ 4). Plaintiff wrote a check to MFG for $36, 000 on August 2, 2013, and for $99, 000 on August 5. (Id.). Plaintiff believed that Mr. George would purchase an annuity with these funds to supplement her monthly income. Mr. George did not purchase an annuity for Plaintiff, but sent Plaintiff some monthly payments from MFG to create the appearance that an annuity existed. In October, Plaintiff wrote a $4, 000 check to MFG to invest in the purported annuity. (ECF No. 21-3, at 10).

In early 2014, Mr. George contacted Plaintiff about refinancing her mortgage with Norcom. (ECF Nos. 21-3, at 11; 23-3 ¶ 6). Mr. George suggested that Plaintiff would receive approximately $60, 000 from refinancing, which she could put into her annuity. (ECF Nos. 21-3, at 11; 23-3 ¶ 6). According to Plaintiff, “in order to get [her] loan application approved, Mr. George forged a set of documents” regarding the nonexistent annuity. (ECF No. 23-3 ¶ 8). Mr. George did not show Plaintiff the documents. On February 21, 2014, Norcom approved Plaintiff for refinancing and she received approximately $61, 797.28. (ECF Nos. 21-3, at 15; 23-3 ¶ 9). On February 26, at Mr. George’s request, Plaintiff wrote a check to MFG for $59, 000. (ECF Nos. 21-3, at 15; 23-3 ¶ 12).

Plaintiff conducted no further business with Mr. George and had difficulty reaching him to inquire about her investments and the status of her money. (ECF No. 21-3, at 15). In the end, Plaintiff paid Mr. George and MFG approximately $198, 000, receiving only $30, 260.45 in return.[1] (See ECF No. 21-3, at 9). Plaintiff contends that she “lost everything [she] had to Mr. George” and “subsequently had to sell [her] condominium, move to Florida where [she] live[s] in a trailer with [her] daughter” living “month to month” on social security. (ECF No. 23-3 ¶ 15).

Despite Plaintiff’s initial belief that Mr. George worked for Norcom when he first reached out to her in July 2013, the parties now agree that Mr. George began working for Norcom on August 22, 2013. (ECF Nos. 21-1, at 3; 23, at 3). In late July 2013, Mr. George approached Norcom seeking to open a Norcom branch in York, Pennsylvania. (ECF No. 21-4 ¶ 6). Before starting at Norcom, Mr. George worked for other financial lending companies out of the same office in York. (See ECF Nos. 21-4 ¶ 7; 21-7, at 3; 21-10, at 3-4). Mr. George’s duties as branch manager of Norcom’s York office were to manage staff and payroll, assist in problem solving, oversee marketing and daily operations, and manage the loan files and pipeline of work for the branch’s loan officers. (See ECF Nos. 21-4 ¶ 41; 21-10, at 5; 21-11, at 5). Mr. George helped loan officers with individual cases, but he was not authorized to accept funds from customers or potential customers on behalf of Norcom. (ECF Nos. 21-4 ¶¶ 24-26; 21-10, at 5). Mr. George resigned from Norcom on April 4, 2014. (ECF No. 21-4 ¶ 20). On September 2, 2014, Mr. George committed suicide. (Id. ¶ 21). A note addressed “to the authorities, ” which was signed by Mr. George stated that he takes “full responsibility for any and all acts deemed inappropriate or illegal with regard to any mortgage originations, insurance sales/claims, or investment sales/claims.” (ECF No. 21-8).

B. Procedural History

Plaintiff commenced this action by filing a complaint on October 16, 2014. (ECF No. 1). After an unsuccessful settlement conference, Plaintiff filed an amended complaint on June 26, 2015 (ECF No. 22), which Defendant answered (ECF No. 24). The amended complaint asserts two counts against Defendant: negligence (Count I); and fraud under a respondeat superior theory of liability for Mr. George’s actions (Count II). The amended complaint requests compensatory damages in the amount of $200, 000, but Plaintiff has since noted that she “is not pursuing claims from Norcom for damages sustained by Plaintiff prior” to when Mr. George joined Norcom. (See ECF No. 23, at 1). On October 23, Defendant filed the pending motion for summary judgment. (ECF No. 21). Plaintiff responded (ECF No. 23), and Defendant replied (ECF No. 25).

II. Standard of Review

Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court of the United States explained that, in considering a motion for summary judgment, the “judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. Thus, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id. at 252.

In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a “scintilla” of evidence in support of the ...

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