United States District Court, D. Maryland
NATHANIEL M. COSTLEY, SR. ET AL.
BANK OF AMERICA, N.A. ET AL.
L. HOLLANDER UNITED STATES DISTRICT JUDGE
Nathaniel M. Costley, Sr. (“Mr.
Costley”) and the Estate of Mary Jane Costley
(“The Estate”) instituted suit against defendants
Bank of America, N.A., Individually and as Successor By
Merger to BAC Home Loans Servicing, LP F/K/A Countrywide Home
Loans Servicing, LP (“BANA”); Nationstar
Mortgage, LLC (“Nationstar”); and Green Tree
Servicing, LLC (“Green Tree”), predecessor to
Dietech Financial, LLC (“Ditech”). See
ECF 1. The Second Amended Complaint is the
operative pleading. ECF 79. Plaintiffs seek damages based on
claims of fraud, conversion, breach of contract, violation of
the Truth In Lending Act (“TILA”), 15 U.S.C.
§ 1601, et seq., and violation of the Fair Debt
Collections Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et seq. Jurisdiction is founded on
diversity of citizenship. ECF 79, ¶ 6.
and Nationstar are the remaining defendants. They have jointly
moved for summary judgment (ECF 119), supported by a
memorandum of law (ECF 119-1) (collectively, the
“Motion”) and numerous exhibits. Plaintiffs
oppose the Motion (ECF 126) and have submitted exhibits.
Defendants BANA and Nationstar have replied. ECF 128.
parties have fully briefed the issues, and no oral argument
is necessary. See Local Rules 105.6. For the reasons
set forth below, I shall grant defendants' motion.
Costley resides in Westminster, Maryland. ECF 119-18 at 8. He
is the grandson of the late Mary Jane Costley (“Ms.
Costley”). ECF 79, ¶ 9; ECF 119-1 at 1. Until Ms.
Costley's death in 2009, she was the record owner of
property located at 63 Charles Street in Westminster,
Maryland (the “Property”). ECF 79, ¶ 22; ECF
119-1 at 3; ECF 119-1 at 5. Prior to her death, Ms. Costley
entered into two loans with respect to this Property. These
loans form the basis of the parties' dispute.
September 29, 2006, Ms. Costley refinanced the existing
mortgage on her property, taking out a loan (the “First
Loan”) from Ocwen Loan Servicing, LLC. ECF 79, ¶
11; ECF 119-1 at 3. She executed a promissory note (ECF
119-2) and a deed of trust (ECF 119-3) in the amount of $88,
935.00 in connection with the First Loan. Defendants were not
involved in the origination of the First Loan. It was
assigned to defendant BANA on December 30, 2011, (ECF 6-8),
and was then assigned to Nationstar on January 4, 2013. ECF
September 21, 2007, Ms. Costley obtained a second mortgage on
her property, taking out a loan (the “Second
Loan”) from Countrywide Bank, FSB, predecessor to BANA.
ECF 79, ¶ 16; ECF 119-1 at 4. She executed a promissory
note (ECF 119-6) and a deed of trust (ECF 119- 7) in the
amount of $74, 000.00 in connection with the Second Loan.
BANA transferred the Second Loan to Ditech in March 2011. ECF
79, ¶ 36; ECF 119-1 at 5.
Costley became ill in August 2009, at which point she asked
Mr. Costley to assist her with her finances. ECF 79, ¶
18; ECF 119-1 at 5. Prior to that time, Mr. Costley had no
knowledge of his grandmother's financial affairs,
including the two loans. ECF 79, ¶ 19; ECF 119-1 at 5.
Costley died in December 2009. ECF 79, ¶ 22; ECF 119-1
at 5. At that point, BANA was servicing both loans. ECF 79,
¶ 21; ECF 119-1 at 5. Notably, Ms. Costley had not kept
current with payments on the loans prior to her death. ECF
79, ¶¶ 20, 26; ECF 119-1 at 5. BANA informed Mr.
Costley that the value of the Property was less than the
amount owed on the two loans. ECF 79, ¶¶ 26, 28;
ECF 119-1 at 6. Nevertheless, Mr. Costley voluntarily moved
into the Property in February 2010 (ECF 79, ¶ 30; ECF
119-1 at 5), and The Estate deeded the Property to him on May
4, 2010. ECF 6-7.
November 2009, shortly after Mr. Costley was made aware of
his grandmother's financial situation and shortly before
her death, Mr. Costley began an attempt to modify both loans.
ECF 79, ¶ 21; ECF 119-1 at 6. This attempt continued in
the months after the death of Ms. Costley. ECF 79, ¶ 25;
ECF 119-1 at 6. Mr. Costley claims that at some point during
those conversations BANA orally promised to modify or
refinance the loans if he complied with certain conditions,
and so he proceeded to comply with those conditions. ECF 79,
¶¶ 28-30; ECF 119-1 at 6. Mr. Costley's own
affidavit (ECF 126-3) is the only evidence that such an oral
agreement existed or that he complied with the terms of that
agreement. Id. at 6.
January 2011, Mr. Costley submitted a Home Affordable
Modification Program (“HAMP”) Loan Modification
Agreement to BANA. ECF 119-16. BANA refused to sign the
agreement, however. ECF 47-7. Instead, it offered to allow
Mr. Costley to personally assume the loans and then reapply
for loan modifications himself after assuming personal
liability. ECF 119-1 at 6; ECF 119-18 at 15, 18-19. Mr.
Costley refused to assume the loans. Id.
Costley claims that, after BANA refused to sign the HAMP Loan
Modification Agreement, he began to look more closely at the
underlying loan documents. ECF 119-18 at 32-33. At that
point, he says, he became suspicious about the legitimacy of
the loans. Id. Specifically, he claims that he found
an unsigned settlement sheet regarding the Second Loan, (ECF
119-18 at 14), realized that Ms. Costley was supposed to have
received $30, 744.82 pursuant to a Settlement Statement
regarding the First Loan, (ECF 79, ¶¶ 67-68), and
realized that Ms. Costley was supposed to have received $72,
479.30 pursuant to a Settlement Statement regarding the
Second Loan. ECF 79, ¶¶ 69-71. The record reflects
that Ms. Costley made many payments on both loans (ECF 119-5;
ECF 119-9), and includes the settlement statements for both
loans. ECF 119-4; ECF 119-8. The only evidence in the record
that Ms. Costley did not receive the payments she was
supposed to have obtained pursuant to these settlement
statements is Mr. Costley's own speculative assertions.
ECF 119-18 at 22; ECF 126-3, ¶ 11.
March 2011, after the Second Loan was transferred to Ditech,
Mr. Costley claims that he began receiving daily harassing
phone calls, telling him to pay the money owed on the two
loans. ECF 126-4, ¶ 10. He claims that these calls
continued until June 2013. ECF 126-4, ¶ 16.
August 6, 2013, Mr. Costley was named the Personal
Representative of Ms. Costley's Estate. ECF 126-4, ¶
19. On August 26, 2013, faced with foreclosure and removal
from the Property (ECF 119-1 at 7; ECF 126-4, ¶ 17), Mr.
Costley filed the initial Complaint in this case, without
counsel. ECF 1. After multiple amendments to the Complaint
and discovery, the defendants filed motions for summary
judgment. ECF 118; ECF 119. As noted, this court entered
summary judgment for Ditech on May 9, 2017. ECF 130.
Defendants BANA and Nationstar's joint motion for summary
judgment is pending.
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. 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.,