United States District Court, D. Maryland
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE
Cheryl Keyser-Bomar (“Bomar”) sues The Alba Law
Group, P.A. (“Alba Law”), claiming that Alba Law
violated the Maryland Consumer Debt Collection Act
(“MCDCA”) and the Fair Debt Collection Practices
Act (“FDCPA”) by improperly pursuing a
foreclosure based on a due-on-sale clause and by sending a
letter directly to her in an attempt to collect a debt when
she was represented by counsel. She seeks actual damages,
costs, and attorney’s fees. Alba Law has filed a motion
for summary judgment. For the reasons stated below, the
defendant’s motion will be granted in part and denied
April 29, 2004, Bomar and her husband entered into a deed of
trust for 14507 High Rock Road in Cascade, Maryland
(“Cascade property”). (Deed of Trust, Compl. Ex.
A, ECF No. 1-2.) That same day, the plaintiff’s husband
signed a promissory note secured by the Cascade property.
(Promissory Note, Compl. Ex. B, ECF No. 1-3.) Bomar did not
sign the note. (Id.) Her husband died in 2008, and
she continued to make monthly mortgage payments without issue
until 2013. (Bomar Dep. 15-16, Mot. Summ. J. Ex. A, ECF No.
parties dispute whether Bomar missed the loan payment due on
February 1, 2013, when PNC Bank, N.A. (“PNC”) was
the loan servicer. (Dorothy Thomas Aff. ¶ 7, Mot. Summ.
J. Ex. C, ECF No. 25-5.) On March 1, 2013, Bomar submitted a
payment of $1, 045, which PNC applied to the payment that was
due on February 1. (Id.) The plaintiff has provided
documentation that her last loan payment was received on
March 1, 2013, and it was applied to the February 1 payment
period. (Notice of Intent to Foreclose, Compl. Ex. C, ECF No.
March 2, 2013, the loan was placed into default status.
(Id.) Alba Law contends that because the only
payment PNC received during March 2013 was applied to the
payment that had been due on February 1, Bomar missed the
loan payment due on March 1, 2013. Bomar alleges she was told
in March that PNC would not accept payments from her because
she was not a note holder on the Cascade property, and when
she tried to assume responsibility on the note, PNC demanded
payment of the note in full. (Compl. ¶ 13.) She
testified that she sent a check for her monthly mortgage
payment in April 2013, and that check was returned to her.
(Bomar Dep. 16.)
November 21, 2013, the substitute trustees for the Cascade
property, represented by Alba Law, began foreclosure
proceedings on the property. (Electronic Docket, Compl. Ex.
D, ECF No. 1-5.) At that time, the balance owed on the note
was $160, 976.47. (Aff. Debt, Compl. Ex. E, ECF No. 1-6.) On
March 10, 2014, the substitute trustees sold the Cascade
property at auction for $165, 524.52 to Deutsche Bank Trust
Company Americas. (Report of Sale, Compl. Ex. F, ECF No.
1-7.) Afterwards, Bomar filed exceptions to the sale.
(Exceptions to Foreclosure Sale, Mot. Summ. J. Ex. B, ECF No.
August 28, 2014, the Circuit Court for Washington County,
Maryland, ordered that the foreclosure sale be set aside
because it was performed in bad faith and in violation of
federal banking regulations. (Circuit Court Order 5, Compl.
Ex. I, ECF No. 1-10.) Specifically, the court determined that
the plaintiff did not miss payments, but PNC “refused
to accept her payments because her name was not on the
promissory note despite her taking title to the property by
operation of law.” (Id.) Additionally,
“[r]equiring her to pay the note in full by the due-on
sale clause as a result of her husband’s death directly
contradicts the mandates of federal regulation.”
(Id. at 4.)
January 22, 2015, Alba Law sent a letter directly to Bomar.
(Alba Law Letter, Pl.’s Opp’n Ex. 2, ECF No.
26-2.) The letter explained that Alba Law represented PNC,
that Bomar had defaulted on the loan, and that Alba Law had
been instructed to institute foreclosure proceedings.
(Id.) The amount due on the loan at that time was
$179, 532.23. (Id.)
subsequently filed suit against PNC and Alba Law in this
court in February 2015. On October 2, 2015, the Court of
Special Appeals of Maryland reversed the Circuit Court for
Washington County, holding that the plaintiff’s
post-sale exception to the foreclosure sale, based on her
allegation that PNC violated federal regulations by utilizing
the due-on-sale clause, could not be used to challenge the
foreclosure proceeding because it was not timely. (Court of
Special Appeals Opinion 4, Mot. Summ. J. Ex. D, ECF No.
25-6.) The court determined that Bomar knew of the alleged
improper basis for the foreclosure prior to the sale, and
“[i]mproprieties in the larger foreclosure process that
occur before the sale and are known to the homeowner prior to
the sale must be raised pre-sale.” (Id. at
plaintiff and PNC reached an agreement that resolved their
claims in this lawsuit, and this court dismissed this matter
with prejudice as to PNC on February 23, 2016. (February 23,
2016 Order, ECF No. 37.) Now at issue are Bomar’s
claims against Alba Law for allegedly violating the MCDCA and
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no
genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a) (emphases added). “A dispute is
genuine if ‘a reasonable jury could return a verdict
for the nonmoving party.’” Libertarian
Partyof Va. v. Judd, 718 F.3d 308, 313 (4th
Cir. 2013) (quoting Dulaney v. Packaging Corp. of
Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact
is material if it ‘might affect the outcome of the suit
under the governing law.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Accordingly, “the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment[.]” Anderson, 477 U.S. at
247-48. The court must view the evidence in the light most
favorable to the nonmoving party, Tolan v. Cotton,
134 S.Ct. 1861, 1866 (2014) (per curiam), and draw all
reasonable inferences in that party’s favor, Scott
v. Harris, 550 U.S. 372, 378 (2007) (citations omitted);
seealso Jacobs v. N.C. Admin. Office of the