Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Birmingham v. PNC Bank, N.A.

United States District Court, D. Maryland

July 15, 2016

GREGORY J. BIRMINGHAM, Plaintiff,
v.
PNC BANK, N.A., Defendant.

          MEMORANDUM OPINION

          PAULA XINIS United States District Judge.

         Pending 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.

         I. Background

         The following facts are taken from the Plaintiff’s Amended Complaint, supplemented with background information found in Defendant’s Motion to Dismiss.[1]

         On 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.

         In 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.[2] See Id. at 3-4.

         On 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.

         On 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.

         On June 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.

         Birmingham 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.[3] 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.

         As a 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.[4] Id. at 2. He made numerous attempts to correct the alleged errors throughout 2011 but to no avail. Id. at 5.

         On 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.

         On 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.

         PNC 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.