United States District Court, D. Maryland
LIPTON HOLLANDER, District Judge.
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,  Plaintiffs
filed an Amended Complaint in September 2013, ECF 14,
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. Count II of the Amended Complaint (ECF
14) remains, alleging that BB&T violated the Truth in Lending
Act ("TILA"), 15 U.S.C. Â§Â§ 1601 et seq.,
by failing to disclose the sale or transfer of
plaintiffs' mortgage loan within 30 days after BB&T
acquired the loan. ECF 14 Â¶Â¶ 30-31.
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),  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.
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.
Factual and Procedural Background
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.
parties subsequently engaged in limited discovery. The Second
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 Â¶ 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.
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.
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 Â¶ 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 Â¶ 1.
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 Â¶ 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."
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 Â¶ 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 Â¶ 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
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 Â¶ 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[.]"
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 Â¶ 6: "The MERSÂ® System is a
private electronic database used by members of the MERSÂ®
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
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
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 Â¶ 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."
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. According to Ms... Schwiers's
Declaration (ECF 89-3 at 3 Â¶ 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 Â¶ 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
Â¶ 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 Â¶Â¶ 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
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 Â¶Â¶
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 Â¶ 6. According to Mr.
Ward, "no such recordings were found." Id.
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
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 Â¶ 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 Â¶ 8.
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 Â¶ 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 ...