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McCray v. Bank of America, Corp.

United States District Court, D. Maryland

April 10, 2017



          Ellen L. Hollander United States District Court.

         In an Amended Complaint (ECF 20), Michelle McCray, the self-represented plaintiff, sued defendant “Bank of America, Corp., et al.” (“BOA”).[1] The litigation is rooted in plaintiff's purchase in August 2006 of a home on Harriet Avenue in Baltimore, with a mortgage loan from Countrywide Home Loans, Inc. (“Countrywide”). Id. BOA purchased Countrywide in 2008, and plaintiff's loan was formally transferred to BOA in 2009.[2] See ECF 20, ¶ 1; ECF 20 Ex. A; ECF 2-1.[3]

         McCray appears to assert multiple violations of the Real Estate Settlement Procedures Act, as amended, 12 U.S.C. §§ 2601 et seq. (“RESPA”), and a violation of RESPA's implementing regulations. See, e.g., ECF 20 ¶¶ 1, 13, 23, 40-42. Plaintiff also seems to assert a claim under the Consumer Financial Protection Act (“CFPA”), 12 U.S.C. §§ 5531 and 5536(a). Id. ¶ 2.[4] In her prayer for relief, McCray asks the Court to appoint “an independent company or individual . . . to review the defendant's loan servicing (accounting practices) in order to resolve the discrepancies” described in the Amended Complaint. ECF 20 at 21-22. In addition, McCray also seeks, inter alia, damages for harm to the house caused by BOA (ECF 20 at 22), and damages under RESPA for “error[s] not investigated, corrected, and or [sic] mentioned in defendant's response . . . .” Id. at 23.

         BOA has filed a motion for summary judgment (ECF 65), which is supported by a memorandum of law (ECF 65-1) (collectively, the “Motion”) and exhibits. ECF 65-2 through ECF 65-8. McCray opposes the Motion (ECF 66) (“Opposition”) and has also submitted exhibits. ECF 66-1 through ECF 66-6. BOA has replied (ECF 67) and has provided an additional exhibit. ECF 67-1.

         In its Motion, BOA failed to address a claim based on a Consumer Complaint Form (“CCF”) and an exhibit submitted by plaintiff with ECF 20, i.e., Exhibit Z1. Therefore, by Order of February 13, 2017 (ECF 73), I invited the parties to submit memoranda addressing plaintiff's claim that BOA failed to respond sufficiently to the CCF that plaintiff submitted to the Office of the Comptroller of the Treasury in violation of RESPA, and to her claim under 24 C.F.R. § 3500.17(k)(1). Id.; see ECF 65. I also advised the parties that my Order constituted notice that I would address the issues under Fed.R.Civ.P. 56. ECF 73 at 3. Per my Order (ECF 73), the parties submitted memoranda (ECF 82, McCray; ECF 83, BOA). In addition, BOA responded to ECF 82, as permitted by my Order. See ECF 85. However, McCray did not respond to ECF 83, although she was permitted to do so. See docket.

         I have construed BOA's two submissions (ECF 83; ECF 85) as supplements to its Motion. I will construe plaintiff's submission (ECF 82) as a supplement to her Opposition.

         The Motion is fully briefed and no hearing is necessary to resolve it. See Local Rule 105.6. The Court is mindful of its obligation to construe liberally the pleadings of a pro se litigant, which are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nevertheless, for the reasons that follow, I shall grant the Motion.

         I. Factual and Procedural Background

         A. Procedural Background

         McCray filed suit in the Circuit Court for Baltimore City in June 2014 (ECF 2) and included thirty-five exhibits. ECF 2-1 through ECF 2-35. Defendant removed the case to this Court under 28 U.S.C. §§ 1331, 1332, and 1441. ECF 1.

         On September 8, 2014, BOA moved to dismiss the initial Complaint. ECF 11; see ECF 2. By Memorandum Opinion (ECF 18) and Order (ECF 19) of June 1, 2015, I granted the motion in part and denied it in part.[5]

         In particular, I granted the motion, with prejudice, as to McCray's RESPA claim arising from the complaint submitted to the Consumer Financial Protection Bureau (“CFPB”). ECF 19. I could not determine whether plaintiff asserted claims for accounting, breach of contract, and loss of rental income, and thus denied them. Id.; see ECF 18 at 21-24. And, I denied the motion to dismiss with respect to plaintiff's RESPA claim regarding two qualified written requests submitted by plaintiff. See ECF 18 at 20. In my Order (ECF 19), I granted plaintiff twenty-one days to amend her suit to allege RESPA claims for additional qualified written requests and to assert other claims, such as for an “accounting, breach of contract, loss of rental income, or the violation of 15 U.S.C. § 45, or a claim based on the ‘rules' cited in her Motion for a Hearing.” Id.

         McCray filed an Amended Complaint on June 18, 2015. ECF 20. It contains forty-three numbered paragraphs and a lengthy prayer for relief. Id. The assertions in the Amended Complaint are challenging to discern, and the document does not explicitly set forth causes of action. See Id. Nor did McCray include as an exhibit a “redline copy” identifying the changes made in the Amended Complaint. See ECF 20; Local Rule 103.6.

         Upon review of ECF 20, although the language has changed, it does not appear that McCray has asserted claims for an accounting, breach of contract, or loss of rental income. See ECF 20.[6] And, it does not appear that McCray has asserted claims under the “rules” cited in ECF 16 (§ 1026.36(c); § 1024.37; and § 1024.35(a)).[7] But, it does appear that McCray has asserted a new claim under the CFPA (ECF 20, ¶ 2), and a new claim under RESPA's implementing regulations. ECF 20, ¶ 23. Moreover, McCray has amplified her RESPA claims regarding the CCF and the CFPB Complaint. See ECF 20, ¶¶ 40, 42.

         B. The Loan

         On or about August 30, 2006, plaintiff executed a Deed of Trust in favor of Countrywide and obtained an adjustable rate mortgage in the amount of $107, 350.00 (“Loan”), with an initial interest rate of 9.850%, secured by property located at 2469 Harriet Ave., Baltimore, MD 21230 (the “Property”). ECF 11-2 (Deed of Trust). Although the Loan was initially made with Countrywide, BOA acquired Countrywide in 2008. ECF 20, ¶ 1.

         McCray obtained several modifications to the Loan. She obtained her first modification on January 9, 2008 (“First Modification”). ECF 20 Ex. F; ECF 2-11. BOA's payment records show that, at the time of the First Modification, payment was due and owing for May 2007. ECF 65-2 at 31-32; 38-39. The First Modification, which was effective March 1, 2008, reflected an unpaid principal balance of $123, 715.15, with monthly payments of principal and interest in the sum of $1, 369.64, and an interest rate of 9.850%. Id.

         On December 4, 2008, McCray obtained a second modification of the Loan (“Second Modification”). ECF 20 Ex. G; ECF 2-12 (Second Modification). The Second Modification, which was to be in effect from January 1, 2009 until December 31, 2013, reflected a principal balance of $129, 504.00, based on payments due and owing for August 2008. Id.; see ECF 65-2 at 33. It also reduced McCray's interest rate to 3.625%, with combined monthly payments of $618.38. ECF 20 Ex. G; ECF 2-12 at 1.

         McCray was approved for a third modification on May 11, 2009 (“Third Modification”). ECF 20 Ex. D-1; ECF 2-8; ECF 65-2 at 48-50 (Third Modification). The Third Modification reflected an unpaid principal balance of $128, 428.94, included monthly payments of $724.27, and set a fixed interest rate of 3.585%, effective as of July 1, 2009. ECF 65-2 at 48-50. BOA's records indicate that the Third Modification was effective as of November 13, 2009. See ECF 65-2 at 34.

         Thereafter, McCray intermittently failed to make payments due on the Loan. See ECF 65-2 at 33-37. Moreover, BOA did not receive payments from McCray after April 29, 2011. That payment was applied to the payment due and owing for January 2011. ECF 65-2 at 37.

         BOA notified McCray on November 23, 2011, that it had transferred the Loan to Specialized Loan Servicing, LLC (“SLS”), effective January 1, 2012. ECF 20 Ex. B2; ECF 2-5 (Notice of Assignment).[8] On or about March 19, 2015, the Deed of Trust was assigned to the Bank of New York Mellon (f/k/a Bank of New York) (“BONY”), as Trustee for the Certificate Holders of CWABS, Inc. Asset-Backed Certificates Series 2006-18. ECF 65-2 at 25-26 (Assignment of Beneficial Interest).

         On April 21, 2015, foreclosure proceedings were initiated in the Circuit Court for Baltimore City against the Property, Case No. 24O15001102. See ECF 65-7. The Property was sold to BONY at a foreclosure sale on October 20, 2015, for $31, 500. See id.; ECF 65-6 (Substitute Trustee's Deed). The sale was ratified on or about July 29, 2016. ECF 65-7 at 8. BONY assigned the deed to a third party on June 10, 2016, for $32, 000. ECF 65-8 (Deed of Assignment).

         C. The Qualified Written Requests

         Congress enacted RESPA in order “to insure that consumers . . . are provided with greater and more timely information on the nature and costs of the [mortgage loan] settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices . . . .” 12 U.S.C. § 2601. Under RESPA, a mortgage servicer must respond to, or take action on, a borrower's qualified written request (“QWR”). 12 U.S.C. § 2605(e)(2).

         A QWR is a “written request from the borrower . . . for information relating to the servicing of [a] loan.” 12 U.S.C. § 2605(e)(1)(A). RESPA further defines a QWR as written correspondence from a borrower that “(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower, ” and “(ii) includes a statement of the reasons for the belief of the borrower . . . that the account is in error . . . .” See 12 U.S.C. §§ 2605(e)(1)(B).

         In her Amended Complaint, McCray asserts that she submitted four QWRs to Countrywide and/or BOA, to which the loan servicer did not respond or responded inadequately.[9] According to McCray, she sent her first QWR (“First Letter”) to Countrywide after signing the First Modification. ECF 20, ¶ 13. In particular, McCray claims that she sent the First Letter when she returned the documents for the First Modification (id.), which were due on January 24, 2008. ECF 2-11 at 2. But, at her deposition, McCray testified that the First Letter was sent “back in early 2007, 2008; I'm not quite sure.” ECF 67-1 at 4. Notably, McCray does not have a copy of the First Letter. At her deposition, McCray testified: “I don't have that letter . . . . [U]nfortunately that's the one letter I do not have.” Id.

         McCray also sent a letter to Countrywide dated December 22, 2008, along with the Second Modification. ECF 20 Ex. B; ECF 2-3 (“Second Letter”). At her deposition, McCray testified that she sent the Second Letter “with the loan modification agreement. . . . It was in the same envelope.” ECF 65-2 at 5. The Second Letter sought information as to perceived inaccuracies in the modification, including the payment amount and principal balance. ECF 20 Ex. B; ECF 2-3. In the Second Letter, McCray stated:

         I have contacted [C]ountrywide on several occasions seeking to speak with someone who can assist me with this modification and the inaccuracy. Unfortunately no one returned any of my phone calls, therefore I have decided to place it all in writing. I am not able to pay back the amount that I owe but I have some concerns about the amount that is being added to my principal balance.

         The Second Letter concluded, id.: “Please note that I am signing these documents with the understanding that I will be contacted to resolve the inaccurate amounts of principal balance, monthly mortgage, and the date this modification will all take effect.”

         Moreover, McCray submitted a Customer Complaint Form to the Office of the Comptroller of the Treasury. ECF 20, Ex. C; ECF 2-6 (CCF). Exhibit C is undated, apart from an “Expiration Date” of December 31, 2011. See ECF 20 Ex. C; ECF 2-6. However, in a letter from BOA to McCray in response to the CCF, dated November 4, 2010 (ECF 20, Ex. Z1), BOA stated that the CCF was filed with the Office of the Comptroller of the Currency on September 22, 2010. Id.[10]

         Under a section titled “Complaint Information, ” the CCF contains a single-spaced paragraph. ECF 20, Ex. C at 3; ECF 2-6 at 3. It begins: “There are a couple of issues I've had with Countrywide as my mortgage company and I would like the following situations investigated.” Id. Plaintiff reiterated the concern expressed in the Second Letter (ECF 20, Ex. B; ECF 2-3), and said: “I wrote a letter to discuss the discrepancies. They never responded to my letter.” Id. at 3. McCray also expressed some of the same concerns contained in the Amended Complaint (ECF 20), including, for example, the concern that BOA wrongfully charged her for certain Baltimore City tax payments to her debt. Compare ECF 20, Ex. C with ECF 20, ¶ 23.

         BOA responded to McCray's CCF in a letter dated November 4, 2010. ECF 20, Ex. Z1. BOA explained the calculation of the principal, how McCray's payments were applied to the account, and why certain fees were assessed following the modifications. Id. Moreover, BOA provided a breakdown of the amount due, and asked McCray to contact a customer service representative so that BOA could further answer her questions. Id.

         Then, on January 31, 2012, McCray filed a customer complaint with the CFPB. ECF 20, Ex. A; ECF 2-1 (“CFPB Complaint”).[11] The CFPB Complaint identified BOA as the financial institution that was the subject of the complaint and listed a variety of perceived problems with McCray's mortgage, including the calculation of payments, the amount of principal due, and the assessment of various charges. See ECF 20, Ex. A; ECF 2-1. McCray also claimed that BOA's customer service was unresponsive to her concerns. Id.

         BOA responded to McCray's CFPB Complaint by letter dated March 9, 2012. ECF 20, Ex. C2; ECF 2-7. BOA included detailed explanations as to McCray's inquiries, including the computation of the principal balance, the assessment of fees, and why property taxes were charged. Id. at 2-3. Moreover, the response noted that BOA had unsuccessfully attempted to contact McCray by telephone on February 15 and 16, 2012, to discuss her concerns. Id. at 1. In the event McCray wanted to discuss her concerns, the response included the telephone number of Paulette Dearmyer, “Customer Advocate, ” in the “office of the CEO and President, ” who signed BOA's letter. Id. at 3.

         Additional facts are included in the Discussion.

         II. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017) (“ A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law.”). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

         The Supreme Court has clarified that not every factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016).

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings, ' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 514 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary judgment motion, a court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The judge's “function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

         However, to defeat summary judgment, conflicting evidence must give rise to a genuine dispute of material fact. Anderson, 477 U.S. at 247-48. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then a dispute of material fact precludes summary judgment. Id. at 248; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016). Conversely, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].” Id.

         III. Discussion

         A. The RESPA Claims

         Plaintiff claims that she is entitled to relief under RESPA based on BOA's failure to respond to the First Letter, the Second Letter, the CCF, and the CFPB Complaint, which she asserts were QWRs within the meaning of the statute. ECF 20, ¶¶ 1, 13, 40-42; see ECF 65-2 at 96. In the Motion, BOA asserts five grounds as to why summary judgment should be granted as to these claims. In particular, BOA asserts: (1) there is no evidence as to the existence of the First Letter; (2) plaintiff sent the First Letter and the Second Letter to the wrong address, absolving BOA of liability under the RESPA; (3) the Second Letter was not a QWR as defined by the RESPA; (4) plaintiff failed to produce any evidence of damages; and (5) McCray's claims under RESPA are time-barred. ECF 65-1 at 11-15.

         For the reasons stated below, I shall grant summary judgment to BOA with respect to McCray's claims regarding the First Letter, the Second Letter, and the CCF, because those claims are barred by RESPA's statute of limitations. And, I shall grant the Motion as to the CFPB Complaint because that claim was previously dismissed, with prejudice. Finally, I shall award summary judgment to BOA as to McCray's claim under RESPA's implementing regulations, because Congress has not created a private right of action for such a claim.

         1. The Statute

         As noted, Congress enacted RESPA in order “to insure that consumers . . . are provided with greater and more timely information on the nature and costs of the [mortgage loan] settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices . . . .” 12 U.S.C. § 2601. And, as indicated, a QWR consists of written correspondence from a borrower that “(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower”, and “(ii) includes a statement of the reasons for the belief of the borrower . . . ...

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