United States District Court, D. Maryland
L. Hollander United States District Court.
Amended Complaint (ECF 20), Michelle McCray, the
self-represented plaintiff, sued defendant “Bank of
America, Corp., et al.”
(“BOA”). 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. See ECF
20, ¶ 1; ECF 20 Ex. A; ECF 2-1.
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. 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.
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.
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.
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.
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.
Factual and Procedural Background
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.
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.
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.
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.
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. 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)). 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.
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.
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.
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.
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.
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.
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). 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
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).
The Qualified Written Requests
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).
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).
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. 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.
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:
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
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.”
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.
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.
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.
on January 31, 2012, McCray filed a customer complaint with
the CFPB. ECF 20, Ex. A; ECF 2-1 (“CFPB
Complaint”). 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.
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.
facts are included in the Discussion.
Standard of Review
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).
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).
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).
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).
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.
The RESPA Claims
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.
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.
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 . . . ...