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Keyser-Bomar v. Alba Law Group, P.A.

United States District Court, D. Maryland

May 17, 2016

Cheryl Keyser-Bomar
v.
Alba Law Group, P.A.

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE

         Plaintiff 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 in part.

         BACKGROUND

         On 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. 25-3.)

         The 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. 1-4.)

         On 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.)

         On 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. 25-4.)

         On 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.)

         On 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.)

         Bomar 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 11.)

         The 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 FDCPA.

         ANALYSIS

         Federal 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 ...


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