United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge
pending and ready for resolution in this mortgage loan
modification case is the motion for summary judgment filed by
Defendant PNC Bank, N.A. (named in the complaint as
“PNC Mortgage, National Association”)
(“Defendant”). (ECF No. 33). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motion for summary judgment will be granted.
September 2002, Plaintiff Teresa Darby
(“Plaintiff”) and her ex-husband, James Darby,
jointly purchased the residential real property located at
14209 Floral Park Drive, North Potomac, Maryland 20878 (the
“Property”). (ECF No. 33-3, at 4). In April 2004,
Plaintiff and Mr. Darby refinanced their mortgage loan (the
“Loan”) with National City Mortgage Co., n/k/a
PNC Bank, N.A. (Defendant), in the amount of $552, 000.00,
secured by a deed of trust on the Property. (Id. at
5; ECF Nos. 33-4 ¶ 3; 36-1 ¶¶ 2-3). Plaintiff
and Mr. Darby were co-owners of the Property and co-obligors
on the Loan. Defendant is the mortgage loan servicer.
and Mr. Darby have not made a regular monthly mortgage
payment since December 2012, and Defendant has advanced the
necessary sums to cover the Property's taxes and
insurance since that time. (ECF Nos. 33-3, at 6-7; 33-4
¶ 4). On March 18, 2013, Plaintiff and Mr. Darby had
been advised that foreclosure would proceed. (ECF No. 33-4
¶ 6; id. at 16). A Notice of Intent to
Foreclose was issued on May 6, 2013, and an order to docket
foreclosure was filed on July 16, 2013, in the Circuit Court
for Montgomery County. (See ECF No. 33-5).
November 2012 and March 2014, Plaintiff, Mr. Darby, and
Defendant regularly communicated regarding loss mitigation
procedures through letters and telephone calls. (ECF Nos.
33-3, at 8; 33-4 ¶¶ 5-8). Plaintiff and Mr. Darby
submitted documents during this time, but never submitted a
complete loss mitigation application. On February 18, 2013;
March 18, 2013; March 26, 2013; April 27, 2013; July 18,
2013; December 12, 2013; and February 19, 2014, Defendant
sent letters to Plaintiff and Mr. Darby advising them that
they had not submitted all of the necessary documents for
loss mitigation to be considered. (ECF No. 33-4 ¶¶
3-8; id. at 12-31). Plaintiff and Mr. Darby then
requested foreclosure mediation, and an initial session was
held on March 18, 2014. It was unsuccessful, and another
session was scheduled for April 3, 2014. (ECF No. 33-7, at
affirms that she then submitted a loan modification
application on March 21, 2014 (ECF No. 36-1 ¶ 4), but
this application did not include Mr. Darby's financial
information. Mr. Darby sent Defendant a letter dated March
26, stating that he no longer resided at the Property and
“will not be responsible for making the payments on the
home and therefore, am not providing any income or financial
information for a refinance or loan modification.” (ECF
No. 33-4, at 33). On March 31, Defendant again informed
Plaintiff and Mr. Darby that Defendant was “unable to
proceed with the review of your request for assistance
because you did not provide us with the requested
documents.” (Id. at 35). The parties did not
reach an agreement during the second mediation session (ECF
No. 33-7, at 2-3), and on April 18, 2014, the Circuit Court
issued an order allowing foreclosure to proceed.
same day, Plaintiff filed a motion to stay the sale and
dismiss the action pursuant to Maryland Rule 14-211.
Defendant agreed several times to extend the date for its
response to the Rule 14-211 motion so that Plaintiff could
submit a complete loss mitigation application. Plaintiff
submitted another loss mitigation application on October 17,
2014. (ECF No. 36-1 ¶ 5). Defendant identified
additional documents needed for the application to be
considered complete, relating to a second mortgage on the
Property and to Mr. Darby. (Id. ¶¶ 6-9;
ECF No. 33-4 ¶ 13; id. at 37-38). Defendant
informed Plaintiff that she needed to submit a separation
agreement or divorce decree and a quit claim deed if Mr.
Darby would not cooperate with the application.
Plaintiff's counsel informed Defendant that Mr. Darby did
“not have the wherewithal to execute a separation
agreement.” (EF No. 33-8, at 2). Without the documents,
the loss mitigation review was again closed due to an
incomplete submission on December 8. (ECF No. 33-4 ¶
13). On February 5, 2015, Defendant responded to
Plaintiff's Rule 14-211 motion. Plaintiff's request
to dismiss the foreclosure case was denied by the Circuit
Court following a hearing, but her request for a stay was
granted with the condition that she make monthly loan
secured a final divorce decree on July 7, 2015, and submitted
a complete loss mitigation application in August
2015. (See ECF No. 33-4 ¶ 14).
Defendant reviewed Plaintiff's complete loan modification
application and denied it on August 18, 2015. (Id.
¶ 14; id. at 40-43). Plaintiff requested an
appeal of the denial on August 26. (Id. ¶ 15;
ECF No. 36-1 ¶ 12). Upon receipt of Plaintiff's
appeal letter, Defendant concluded that Plaintiff did not
have appeal rights because the Property was not
owner-occupied. On August 12, 2014, Defendant had engaged a
vendor to conduct an inspection of the Property as part of
its routine administration of mortgage loans in default. (ECF
No. 33-4 ¶ 12). The vendor reported that someone
residing at the Property advised that it was occupied by
someone other than Plaintiff or Mr. Darby, and Defendant
recorded the Property as non-owner occupied. (Id.).
Although Defendant determined in August 2015 that Plaintiff
did not have a right to an appeal, it conducted an
independent review of the application and concluded that the
denial was correctly decided. (ECF No. 33-4 ¶ 15). There
is no evidence that Plaintiff received notice of the appeal
determination. (ECF No. 36-1 ¶ 13).
Plaintiff failed to make any of the loan payments required by
the stay, the stay was vacated on August 14, 2015. Plaintiff
filed an appeal of the decisions related to her Rule 14-211
motion to the Maryland Court of Special Appeals on October
20, which remains pending. A foreclosure sale was set for
November 20, but Plaintiff filed a Chapter 13 bankruptcy
petition on November 19 to prevent the sale. (ECF No. 33-3,
at 15). After Defendant obtained lift-stay relief from the
bankruptcy court, Plaintiff requested a stay of the
foreclosure sale pending the appeal to the Court of Special
Appeals, which the Circuit Court granted on June 2, 2016.
commenced this action in the Circuit Court for Montgomery
County on December 14, 2015. Defendant removed the case to
this court on January 21, 2016. (ECF No. 1). Plaintiff
advances three counts against Defendant for: violation of 12
C.F.R. § 1024.41, a regulation under the Real Estate
Settlements Procedures Act (“RESPA”) concerning
loss mitigation procedures, because Defendant allegedly did
not properly consider her loan modification applications or
her appeal (Count I); violation of the Consumer Financial
Protection Act of 2010 (“CFPA”), 12 U.S.C.
§§ 5481, 5564 (Count II); and deceptive trade
practices in violation of the Maryland Consumer Protection
Act (“MCPA”), Md. Code Ann., Com. Law §
13-301 et seq. (Count III). (ECF No. 2 ¶¶
69-99). Plaintiff's complaint seeks injunctive relief,
monetary damages, and attorney's fees.
closed on July 27, 2016. (ECF No. 24). Defendant filed a
motion for summary judgment on August 26, 2016. (ECF No. 33).
Plaintiff responded in opposition ...