United States District Court, D. Maryland
GREGORY J. BIRMINGHAM, Plaintiff,
PNC BANK, N.A., Defendant.
XINIS United States District Judge.
before the Court is a motion to dismiss filed by Defendant
PNC Bank, N.A. ECF No. 15. The issues are fully briefed and
the Court now rules pursuant to Local Rule 105.6 because no
hearing is necessary. For the reasons stated below,
Defendant’s motion will be GRANTED.
following facts are taken from the Plaintiff’s Amended
Complaint, supplemented with background information found in
Defendant’s Motion to Dismiss.
March 26, 2007, Plaintiff Gregory J. Birmingham
(“Birmingham”) executed a Promissory Note with
National City Bank in the amount of $327, 000. ECF No. 15-1
at 2. The Note was secured by a deed of trust on real
property owned by Birmingham. Id. Defendant PNC Bank
(“PNC”) acquired National City Corporation in
2008 and assumed the operating functions of National City.
Id. at 3 n.1.
2009, Birmingham entered into the Home Affordable
Modification Program (“HAMP”), a
government-backed program designed to help financially
struggling homeowners avoid foreclosure by encouraging banks
to modify the homeowners’ loans to make the mortgage
payments more affordable. Pursuant to HAMP, Birmingham
entered into a Trial Period Plan through PNC on November 1,
2009, ECF No. 14 at 2, which is designed to test a
debtor’s commitment to the Program and allows the
debtor to make reduced payments on his loan for three or four
months while his “permanent” loan modification is
being processed. At the time, Birmingham was uncertain how
long his trial period would last, and hearing nothing to the
contrary, made monthly trial-period payments through June of
2010. See Id. at 3-4.
March 22, 2010, Birmingham received a letter from PNC
informing him that PNC was unable to approve or finalize his
request for a permanent loan modification because he failed
to submit the necessary documentation. ECF No. 14 at 3. In
response, Birmingham alleges that he called PNC and was told
to disregard the letter and to continue making the trial
period payments. Id. PNC sent Birmingham another
letter on March 24, 2010, returning a check to Birmingham
deemed insufficient to reinstate his loan from default.
Id. at 4. Again, Birmingham alleges he contacted
PNC, and again, PNC directed him to continue making the trial
period payments. Id.
March 25, 2010, Birmingham received another letter from PNC,
this time informing him that he needed to pay $31, 728.72 by
April 24, 2010 to cure the loan default. ECF No. 14 at 4.
Birmingham alleges he called PNC for a third time and was
once again told to disregard the letter and continue making
his trial period payments. Id. at 4.
29, 2010, PNC and Birmingham executed a Home Affordable
Modification Agreement (“Modification
Agreement”), permanently modifying Birmingham’s
mortgage loan. Id. Birmingham states-and the
Modification Agreement attached to the Amended Complaint
confirms-that the Agreement’s “Effective
Date” was February 1, 2010. Id. at 8. Thus,
Birmingham apparently should have been making higher monthly
payments under the permanent Modification Agreement beginning
February 1, 2010.
avers that he was still sending the lower trial-period
payments through June 2010 because PNC falsely and
negligently advised him to keep making the trial-period
payments during four separate phone
conversations. ECF No. 14 at 7-8. Birmingham made another
trial period payment on July 1, 2010 in the amount of $1,
788.32, as suggested by the cover letter of the Modification
Agreement. Id. at 4. He also alleges that he called
PNC to verify that this was the correct amount, and PNC
answered in the affirmative. Id.
result, Birmingham learned just after signing the June
29th Modification Agreement that he was behind on
his mortgage payments by a full month. He contacted PNC
“many times” over the next six months in an
effort to cure the arrearage created by PNC’s
misrepresentations. ECF No. 14 at 4. Birmingham’s loan
payment problems continued, however, and on January 12, 2011,
PNC sent him a letter stating that he remained in default.
Id. On April 13, 2011, Birmingham received a Notice
of Intent to Foreclose, listing a default date of December 2,
2010. Id. at 2. He made numerous
attempts to correct the alleged errors throughout 2011 but to
no avail. Id. at 5.
August 29, 2013, Birmingham allegedly received a Notice of
Impending Foreclosure Sale, listing a sale date of September
26, 2013. ECF No. 14 at 2. He filed for Chapter 7 Bankruptcy
on September 9, 2013 and later that month sent PNC a
Qualified Written Request (“QWR”) under the Real
Estate Settlement Procedures Act. Id. The purpose of
a QWR, also called a Notice of Error or Request for
Information, is to dispute an error relating to, or request
information about, the servicing of a mortgage loan. PNC
partially responded to this request on November 19, 2014 by
providing Birmingham with a copy of his mortgage loan payment
transaction journal. ECF No. 17 at 3. Birmingham alleges that
the transaction journal provided him important information
about how PNC was appropriating, or allegedly
misappropriating, his payments in a way that needlessly kept
him in default. Id.
January 20, 2016, Birmingham filed this action against PNC,
alleging both negligent and intentional misrepresentation.
ECF No. 1. He later filed an Amended Complaint proceeding
only on the negligent misrepresentation claim. ECF No. 14. In
the Amended Complaint, Birmingham points to four occasions
from March to June 2010 when PNC erroneously directed
Birmingham to continue to make the lower trial-period
payments when he should have been making the higher
permanent-loan payments. Id. at 7. He also alleges
that PNC failed to amend the Modification Agreement to
correct their mistakes, which resulted in the loan remaining
in default. Id. at 8. As a result, Birmingham
claims, PNC foreclosed on his home.
filed its Motion to Dismiss on May 17, 2016, arguing that
Birmingham’s claim is time barred and that Birmingham
failed to plead a prima facie case for negligent
misrepresentation. ECF No. 15. For the reasons that ...