United States District Court, D. Maryland
Xinis United States District Judge.
Plaintiff's second attempt to survive Defendant's
challenge to the sufficiency of his Complaint. Because
Plaintiff's Amended Complaint has done little to address
the deficiencies that the Court identified in dismissing this
action originally, many of Plaintiff's counts will suffer
the same fate here. One critical difference, however, is that
Plaintiff's Amended Complaint for the first time
identified allegations stemming from a specific business
account that Plaintiff held with Defendant, the terms of
which compel arbitration for those claims. As to the claims
related to Plaintiff's business account, the Court grants
Defendant's Motion to Dismiss because they are arbitrable
(ECF No. 31). As to Plaintiff's non-arbitrable claims,
the Court grants Defendant's Motion to Dismiss for
failure to state a claim (ECF No. 31). The Court also denies
as moot Defendant's Motion to Strike (ECF No. 35), grants
Plaintiff's motion for an extension of time to file
supplemental exhibits (ECF No. 33), and denies
Plaintiff's motion for leave to file a surreply (ECF No.
Maurice Glenn (“Plaintiff”), who is
African-American, banked with Wachovia Bank, N.A.
(“Wachovia”) before it merged with Defendant
Wells Fargo Bank, N.A. (“Defendant” or
“Wells Fargo”) in December 2008. Plaintiff
maintained two accounts with Wells Fargo-a business line of
credit and a mortgage loan. ECF No. 25 at 3. With regard to
Wachovia, Plaintiff obtained his business line of credit on
May 29, 2007. ECF No. 25 at 3; ECF No. 31-3 at 1-8. The 2007
Wachovia loan agreement provided for an interest rate
“at a per annum rate equal to the prime rate published
in the ‘Money Rates' section of the Eastern edition
of The Wall Street Journal (the ‘WSJ Prime Rate')
plus a margin of 1.10%.” ECF No. 31-3 at 2; ECF No. 25
at 4. Plaintiff alleges that despite the 3.25% interest rate
associated with the line of credit, he was allegedly charged
an increased interest rate of 7.25% without notification and
“in stark violation of his original contract.”
ECF No. 25 at 5. Plaintiff contends Wells Fargo has also
never refunded Plaintiff the money paid in excess of the
agreed upon interest as required by the 2007 Wachovia credit
agreement. ECF No. 25 at 4-5.This same 2007 Wachovia loan
agreement contains an arbitration provision. ECF No. 31-3 at
2010, Plaintiff signed a Wells Fargo BusinessLine
Authorization Form (“the Authorization Form”),
converting his account from Wachovia to a Wells Fargo
BusinessLine account. ECF No. 31-3 at 9-10; ECF No.
34-2. The authorization form states that the
signatory has “read and agree[s] with the Terms and
Conditions on the reverse side of the Authorization
Form.” ECF No. 31-3 at 9; ECF No. 34-2 at 1. The
“Terms and Conditions” include a provision
requiring arbitration upon demand of any party in:
. . . any action, dispute, claim or controversy of any kind,
whether in contract or in tort, statutory or common law,
legal or equitable, or otherwise, now existing or hereafter
arising between the parties in any way arising out of,
pertaining to or in connection with (1) any agreement,
document or instrument to which this Arbitration Program is
attached or in which it appears or is referenced, or any
related agreements, documents or instruments . . .; (2) all
past, present, or future loans, lines of credit, notes,
instruments, drafts, credits, accounts, deposit accounts,
safe deposit boxes, safekeeping agreements, guarantees,
letters of credit, goods or services, or other transactions,
contracts or agreements of any kind whatsoever; (3) any past,
present or future incidents, omissions, acts, errors,
practices, or occurrences causing injury to either party
where the other party or its agents, employees or
representatives may be liable, in whole or in part . . . .
ECF No. 31-3 at 12.
2010 BusinessLine Customer Agreement also contained a
provision for amending the contract:
[The Wells Fargo] Bank may unilaterally change any of the
terms of any of Customer's Accounts at Bank's sole
discretion at any time. Bank will provide Customer with such
notice as is required by law, by mailing such notice to
Customer at the latest address shown in Bank's records.
If Customer has elected to receive statements electronically,
notices may be delivered to Customer electronically in the
same manner that statements are delivered. Subject to
applicable law and provided Bank does not notify Customer
otherwise, any changes will apply to the current balance of
its Accounts as well as to future balances.
2010 BusinessLine Customer Agreement further explained that
“that use of any feature of the BusinessLine
account or BusinessLine® MasterCard® card
may be used as evidence of the foregoing authorizations,
acceptances and agreements.” ECF No. 31-2 at 10.
to the Defendant, Wells Fargo then amended the contract
governing the business account in an updated BusinessLine
Customer Agreement, effective June 1, 2011 (the “2011
BusinessLine Customer Agreement”). ECF No. 31-3 at 16;
ECF No. 36 at 11. The amendment also contained an arbitration
provision identical to the provision in the 2010 BusinessLine
Authorization Form. Compare ECF No. 31-3 at 11-12
(provision from 2010 agreement), with ECF No. 31-3
at 15 (provision from 2011 agreement).
alleges that between 2012 and 2014, Defendant denied
Plaintiff's eleven lending applications based solely on
his race. Specifically, the applications are:
• A July 30, 2012 credit application denied on August
15, 2012. ECF No. 25 at 11-12.
• A March 5, 2013 “mortgage refinance” or
“loan consolidation” application denied on March
13, 2013. ECF No. 25 at 14.
• An April 29, 2013 or May 14, 2013
“reopened” mortgage refinance or fixed mortgage
application denied after May 2013. ECF No. 25 at 15-16.
• A November 25, 2013, HAMP modification application
denied on December 24, 2013. ECF No. 25 at 7.
• A December 9, 2013 rate decrease application for his
business line of credit denied on December 13, 2013. ECF No.
25 at 10.
• A December 23, 2013 rate decrease application for his
business line of credit denied on December 24, 2013. ECF No.
25 at 11.
• A January 29, 2014 HAMP modification application
denied on February 7, 2014. ECF No. 25 at 7.
• A February 13, 2014 application for an unknown type of
loan. ECF No. 25 at 20.
• A February 20, 2014 mortgage refinance application
denied in April of 2014. ECF No. 25 at 21.
• A November 2014 mortgage refinance application denied
on December 30, 2014. ECF No. 25 at 21-23.
• A July 2, 2015 HAMP modification application denied on
July 7, 2015. ECF No. 25 at 8-9.
each, Plaintiff baldly asserts that he was denied the
above-described benefits because of his race but offers no
detail as to whether he was qualified to obtain the benefits
he sought or why his denial was race based. ECF No. 25 at
7-12, 14-16, 21-23. Only one of the above alleged denials
does Plaintiff aver that a particular bank representative,
Geetesh Kapoor, reacted negatively upon hearing that
Plaintiff is African-American. ECF No. 25 at
13-14. Notably, however, Plaintiff included the
identical averments in his original complaint that has been
deemed insufficient as a matter of law. See ECF No.
23 at 16.
also alleges in his Amended Complaint, as he did in his
original Complaint, that he complained to United States
Senator Benjamin Cardin, which Senator Cardin's Office
then forwarded to Wells Fargo's Home Mortgage Office of
Executive Complaints. ECF No. 25 at 15. As a result,
Plaintiff contends that he was denied conversion of a
business line of credit and a home equity loan “in
retaliation for Plaintiff having filed a credit
discrimination complaint against Wells Fargo with the office
of Senator Cardin.” ECF No. 25 at 16.
on June 28, 2013, Glenn filed a complaint against Wells Fargo
with the Consumer Financial Protection Bureau
(“CFPB”) concerning one of his mortgage refinance
applications. ECF No. 25 at 17. He also claims that he was
denied participation in the Home Affordable Modification
Program (“HAMP”) and an interest rate decrease on
his business line of credit in retaliation for the complaints
to the CFPB and Senator Cardin. ECF No. 25 at 18-19.
lodged a complaint with the Office of the Comptroller of the
Currency (“OCC”) regarding Defendant's denial
of his 2013 HAMP application. ECF No. 25 at 19. Once again,
Plaintiff claims that his home mortgage refinance application
was initially approved, but then Wells Fargo rescinded this
approval in retaliation for his various government
complaints. ECF No. 25 at 23.
initiated this action against Defendant on October 10, 2015.
On November 9, 2015, Defendant moved to dismiss the complaint
for failure to state a claim under Fed.R.Civ.P. 12(b)(6). ECF
No. 11. On July 1, 2016, the Court granted Defendant's
motion without prejudice and with leave to file an Amended
Complaint. ECF No. 24; see Glenn v. Wells Fargo Bank,
N.A., No. CV DKC 15-3058, 2016 WL 3570274 (D. Md. July
1, 2016). Plaintiff then filed an Amended Complaint. ECF No.
Amended Complaint asserts the identical claims brought in his
initial complaint: violations of the Federal Equal Credit
Opportunity Act (“ECOA”) 15 U.S.C.§ 1691
(Count I); the Maryland Equal Credit Opportunity Act
(“MECOA”), Md. Code Ann., Com. Law § 12-701
et seq. (Count II); the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq.
(Count III); Title VI of the Civil Rights Act of 1964
(“Title VI”), 42 U.S.C. § 2000d et
seq. (Count IV); and Retaliation under Title VI of the
Civil Rights Act of 1964 (Count V); and breach of contract
moves to dismiss all claims related to Plaintiff's
business line of credit under Fed.R.Civ.P. 12(b)(1) for lack
of subject matter jurisdiction because the agreement between
it and Plaintiff compels arbitration. ECF No. 31. As to the
remaining claims, Defendant urges the Court to dismiss
pursuant to Rule 12(b)(6) because Plaintiff's Amended
Complaint does not allege sufficient facts to sustain the
claims as a matter of law.
responded in opposition, ECF No. 32, and then five days later
submitted a motion for an extension of time to file
supplemental exhibits to accompany his response brief. ECF
Nos. 33, 34. Defendant opposes Plaintiff's motion to file
supplemental exhibits and moves to strike the supplemental
exhibits and accompanying affidavit. ECF No. 35. Defendant
has replied to its motion to dismiss. ECF No. 36. Plaintiff
has moved to file a surreply to the motion to dismiss. ECF