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Ward v. Branch Banking & Trust Co.

United States District Court, D. Maryland

May 17, 2016

PHILLIP WARD, ET AL., Plaintiffs,


          ELLEN LIPTON HOLLANDER, District Judge.

         Phillip and Deirdre Ward, the self-represented plaintiffs, filed suit in July 2013 against defendants Branch Banking & Trust Company ("BB&T") and the Fisher Law Group, PLLC (the "Fisher Law Group"), alleging five counts related to defendants' attempt to foreclose plaintiffs' home in Glenn Dale, Maryland (the "Property"), See ECF 2, [1] Plaintiffs filed an Amended Complaint in September 2013, ECF 14,

         Plaintiffs' claims against the Fisher Law Group were dismissed in June 2014, along with four of the five counts alleged against BB&T, See ECF 28, Memorandum;. ECF 29, Order.[2] Count II of the Amended Complaint (ECF 14) remains, alleging that BB&T violated the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., by failing to disclose the sale or transfer of plaintiffs' mortgage loan within 30 days after BB&T acquired the loan.[3] ECF 14 ¶¶ 30-31.

         Now pending is BB&T's "Second Motion for Summary Judgment" (ECF 89), supported by a memorandum of law (ECF 89-1) (collectively, the "Second Motion") and nine exhibits, all filed either at ECF 89-2 or ECF 89-3. Plaintiffs have filed an "Opposition to Defendant's Second Motion for Judgment" (ECF 90), accompanied by a memorandum of law (ECF 90-2) (collectively, the "Opposition"), an "Affidavit of Phillip Ward" (ECF 90-3), [4] and eight exhibits (ECF 90-4 through ECF 90-11). The exhibits duplicate, in part, exhibits that BB&T has submitted. BB&T has filed a reply (ECF 91), accompanied by one exhibit (ECF 91-1), which provides a more legible copy of an exhibit submitted with its Second Motion. See ECF 89-2 at 39.

         The Second Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant the Second Motion.

         I. Factual and Procedural Background[5]

         On January 27, 2015, BB&T filed a Motion for Summary Judgment with respect to Count II. ECF 51 ("First Motion"). Based on the unsupported Declaration of Patrick Carper (ECF 51-3), one of BB&T's executives, BB&T alleged that it acquired plaintiffs' loan before the relevant TILA provision went into effect. ECF 51-1 at 6-8. By Memorandum (ECF 68) and Order (ECF 69) of August 4, 2015, 1 denied BB&T's First Motion, and permitted the parties to conduct limited discovery as to when BB&T acquired plaintiffs' loan. In particular, I ruled that Carper's Declaration contained a "seemingly bald conclusion that BB&T acquired plaintiff[s'] loan in 2005" and did not permit the Court to "discern what personal experiences or business records" provided the basis for the Declaration. ECF 68 at 14.

         The parties subsequently engaged in limited discovery. The Second Motion followed.

         Plaintiffs acquired the Property in July 2005, with a loan from Southern Trust Mortgage, LLC ("Southern"). ECF 89-2 at 8, Note. On July 25, 2005, plaintiffs executed a Promissory Note (the "Note") that encumbered the Property. ECF 89-2 at 8-11, Note; see ECF 90-3, Affidavit of Phillip Ward at 1 ¶ 3. The Note was secured by a Deed of Trust. ECF 89-2 at 13-32. On October 4, 2005, the Deed of Trust was recorded in the land records of Prince George's County. Id. at 13.

         BB&T maintains that it "purchased plaintiffs' Note from Southern on August 17, 2005." ECF 89-1 at 3. In support of this contention, BB&T relies on two declarations provided by BB&T employees and various business records that, according to BB&T, demonstrate that BB&T acquired plaintiffs' mortgage on August 17, 2005. See id. at 2-5.

         In particular, BB&T relies on the Declaration of Christina Powers, a "Liability and Qualified Mortgage Risk Manager" in BB&T's "lending department." ECF 89-2 at 2 ¶ 1; see id. at 2-6. Ms. Powers's duties include "quality assurance and risk-related issues associated with BB&T's sale and purchase of mortgage loans on the secondary market, handling repurchase obligations, compliance-related issues for the sale and purchase of loans by BB&T, and title-related issues associated with those loans." Id. at 2 ¶ 1.

         BB&T has also submitted the Declaration of Mary Elizabeth Schwiers (ECF 89-3 at 2-4), an "Investor Reporting Section Manager" in BB&T's "investor reporting department." Id. at 2 ¶ 1. Ms. Schwiers is "responsible for ensuring that investors' loan accounts, including the receipt and disbursement of payments, are handled appropriately, accurately and consistent with the contractual obligations owed by BB&T to the investor." Id.

         As stated, BB&T contends that its business records show that it acquired plaintiffs' mortgage in August 2005. First, BB&T submits that a "Funding Disbursement Sheet" confirms that it acquired plaintiffs' mortgage on August 17, 2005. See ECF 89-1 at 3. Ms. Powers's Declaration provides, in relevant part, ECF 89-2 at 3 ¶ 4: "When BB&T purchases a loan on the secondary market through a correspondent lending arrangement, BB&T provides the correspondent lender with a funding disbursement sheet indicating the amount BB&T is funding to purchase the loan." A "Funding Disbursement Sheet" prepared by Tina Wells concerning "Philip L Ward" is date-stamped "8/17/05" and time-stamped "3 36 42 PM." Id. at 34. Ms. Powers avers that Ms. Wells works in "BB&T's correspondent lending department." Id. at 89-2 at 3 ¶ 4. The "Funding Disbursement Sheet" identifies "Southern Trust Mortgage" as the "ORIGINATING COMPANY" and indicates that the "Total Amount Funded" was "$361, 080 05." Id. at 34. In relevant part, the "Funding Disbursement Sheet" states, id. (capitalized in original): "THE ABOVE REFERENCED LOAN HAS BEEN PURCHASED/FUNDED AS OF 08/17/2005 THE FUNDS HAVE BEEN WIRED/TRANSFERRED AS PER YOUR INSTRUCTIONS."

         Second, BB&T maintains that a "Notice of Assignment, Sale or Transfer of Servicing Rights" demonstrates that it acquired servicing rights to plaintiffs' loan on August 17, 2005. See ECF 89-1 at 3. In her Declaration, Powers states, in relevant part, ECF 89-2 at 4 ¶ 5: "In addition to purchasing Plaintiffs' loan, BB&T acquired the servicing rights for the loan and provided notice of transfer of the servicing rights to Plaintiffs Phillip Ward and Deidre Ward on August 17, 2005." A "Notice of Assignment, Sale or Transfer of Servicing Rights, " addressed to plaintiffs and dated August 17, 2005, provides, in pertinent part, id. at 36: "You are hereby notified[] that the servicing of your mortgage loan, that is, the right to collect payments from you is being assigned, sold, or transferred from Southern Trust Mortgage to Branch Banking and Trust Company effective 09/01/05[.]"

         Third, BB&T contends that a "MERS Milestone Report" shows that it acquired plaintiffs' mortgage in August 2005. See ECF 89-1 at 4. Ms. Powers explains in her Declaration, ECF 89-2 at 4 ¶ 6: "The MERS® System is a private electronic database used by members of the MERS® System to track servicing rights and beneficial ownership interests in mortgage loans registered on the system which loans are secured by a deed of trust or mortgage held by Mortgage Electronic Registration Systems, Inc. (MERS')." Further, Ms. Powers avers, id. at 5 n.1:

A transferor or a transferee can initiate the posting of a transfer of the servicing rights or beneficial rights or both of a mortgage on the MERS system. Whichever one initiates the transfer, the other one has to accept or confirm the transfer in order for it to appear on the MERS system. The transfer gets initiated in a "Batch" and that "Batch" is then accepted or confirmed by the non-initiating MERS members. The date under the "Date" column on the MERS Milestone Report is the date on which the "Batch" is accepted or confirmed, which may be different from the effective date of the transfer.

         According to the MERS Milestone Report for plaintiffs' mortgage, Southern registered plaintiffs' mortgage on August 5, 2005. Id. at 39. On August 24, 2005, BB&T accepted the transfer of both the beneficial and the servicing rights to plaintiffs' mortgage. Id. The MERS Milestone Report lists August 17, 2005, as the effective date of transfer for both beneficial and servicing rights to plaintiffs' mortgage. Id. The MERS Milestone Report also indicates that, effective September 8, 2005, BB&T transferred beneficial rights to plaintiffs' mortgage to the "Federal National Mortgage Association, " known as "Fannie Mae." Id.; ECF 89-1 at 2. Ms. Powers avers, ECF 89-2 at 6 ¶ 8.c: "Although BB&T transferred to Fannie Mae the beneficial rights in Plaintiffs' mortgage, it did not transfer the servicing rights. BB&T continued to service Plaintiffs' loan."

         Finally, BB&T submits that its internal "Loan Transfer History' confirms that BB&T acquired plaintiffs' loan prior to September 14, 2005...." ECF 89-1 at 4.[6] According to Ms... Schwiers's Declaration (ECF 89-3 at 3 ¶ 3), the "Loan Transfer History" (ECF 89-3 at 6) is "a computer screen shot of the Loan Transfer History page for Plaintiffs' loan...." Id. at 3 ¶ 3. According to Ms. Schwiers, the "Loan Transfer History for Plaintiffs' loan shows that as of September 14, 2005, BB&T sold Plaintiffs' loan to... Fannie Mae...." ECF 89-3 at 3 ¶ 4. Thereafter, according to Ms. Schwiers, the "Loan Transfer History" indicates that Fannie Mae transferred plaintiffs' mortgage through various loan pools that Fannie Mae owned. See id. at 3 ¶¶ 5-6. BB&T maintains, ECF 89-1 at 5: "The Loan Transfer History also shows that at no time after selling plaintiffs' loan to Fannie Mae did BB&T reacquire ownership of the loan."[7]

         Plaintiffs counter that "a genuine factual dispute exists" as to "when Defendant BB&T allegedly purchased the Pro Se Plaintiffs['] note." ECF 90-2 at 6. In particular, plaintiffs contend, id. at 7: "[A] conflict exists between the Land Records of Prince George's County, Maryland County [sic] and Defendant BB&T['s] internal records as well as its representation of the MERS milestone report." See ECF 90-3 ¶¶ 6-10.

         Mr. Ward avers in his Affidavit (ECF 90-3) that he "assessed [sic] online records from [the] PG county official site searching for any recorded documents by Southern Trust, BB&T and Fannie Mae on August 17, 2005 that in [sic] involved Southern Trust selling the note assigning the Deed of Trust, or transferring the Deed of Trust to BB&T regarding [his] property...." Id. at 2 ¶ 6. According to Mr. Ward, "no such recordings were found." Id.

         In this regard, plaintiffs have submitted a print out of the search results for "ward, phillip" as "Grantor/Grantee" for "all dates" in what appears to be an online database of the land records of Prince George's County. ECF 90-4 at 2-3. The print out identifies the date on which a particular "Instrument Type" was recorded pertaining to Mr. Ward as grantor or grantee and the "Book/Page" on which the original document is found. Id. Notably, the print out provides no information as to whom Mr. Ward transferred a property interest or whether subsequent recipients transferred their interests to yet other parties. See id.

         Mr. Ward maintains in his Affidavit that "there has been only been [sic] one entry of a recorded document in the land record in PG County to date on October 4, 2005 with Southern Trust Mortgage regarding [his] property...." ECF 90-3 at 2 ¶ 7. According to Mr. Ward, the original Deed of Trust to Southern (ECF 90-5 at 2) is the "[l]ast recording in [the] PG County land records...." Id. at 2 ¶ 8.

         Plaintiffs have also submitted an undated "State of Maryland Land Instrument Intake Sheet" (ECF 90-6 at 2), which is partially illegible. It reflects the recording of a transfer of a deed of trust from plaintiffs to Southern. Id. In his Affidavit, Mr. Ward avers, ECF 90-3 at 3 ¶ 9: "[T]he initial Intake sheet... shows no purchase or assignment to Defendant BB&T" on August 17, 2005. Id. He also asserts, id.: "The public records simply have no record ...

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