United States District Court, D. Maryland, Southern Division
Charles B. Day, United States Magistrate Judge
the Court is Defendant Old Line Bank's
(“Defendant”) Motion for Summary Judgment
(“Motion”) (ECF No. 34) requesting summary
judgment be entered against Moisette Sweat, Terry Sweat, and
Michael Wolff, Chapter 7 Trustee of the Bankruptcy Estate of
Sweatism, LLC (collectively “Plaintiffs”). The
Court has reviewed Defendant's Motion, related memoranda,
and the applicable law. No. hearing is deemed necessary.
Local Rule 105.6 (D. Md.). For the reasons set forth below,
the Court GRANTS Defendant's Motion.
attempting to pursue the opening and operation of a
restaurant in July 2015, Mr. and Mrs. Sweat sought to obtain
financial backing in the form of a loan from Defendant.
Id. at 160:6-161:19. Prior to contacting Defendant
in regards to a loan, Plaintiffs reached a financing
agreement with Wing Heaven Franchise Systems, LLC at an
initial cost of $15, 000, contracted with a general
contractor to restructure the restaurant space, liquidated
their retirement accounts, purchased a work vehicle, and
executed a lease agreement for a space for the restaurant for
which they were paying rent. Id. at 46:11-21,
90:13-91:4, 102:11-16, 107:1-21, 120:3-18, 147:7-148:16. As
part of the lending process, Mr. and Mrs. Sweat engaged in
numerous email communications with Holley Zippi, a loan
officer and vice president with Defendant, concerning the
loan. Zippi Aff. at 2 (ECF No. 34-4). Defendant contends that
on July 24, 2015, after Ms. Zippi's review of
Plaintiffs' loan application, Plaintiffs loan application
was denied, with Ms. Zippi informing Mr. Sweat of the denial
by telephone. Defendant claims that it sent an adverse action
notice to Plaintiffs. Id. at 2-3. In November 2015,
Plaintiffs provided co-signor information to Defendant for
further consideration of the loan application. Dep. of M.
Sweat, at 168:16-169:13. On November 30, 2015, an adverse
action notice was sent, addressed to Plaintiffs but with an
incorrect address. Zippi Aff. at 3.
January 19, 2017, Plaintiffs filed suit against Defendant
alleging two counts: first, a claim of violations of the
Equal Credit Opportunity Act (“ECOA”), 15 U.S.C.
§ 1691 et seq., by Defendant in failing to
provide adverse action notices; and second, a claim of
negligence by Defendant in failing to review Plaintiffs'
loan application and co-signor information. Am. Compl. 5-6.
STANDARD OF REVIEW
the Federal Rules of Civil Procedure, “[t]he court
shall grant summary judgment 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.”
Fed.R.Civ.P. 56(a). A dispute is deemed genuine only if the
“evidence is such that a reasonable jury could return a
verdict for the nonmoving party, ” and a fact is deemed
material only if it “might affect the outcome of the
suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Supreme Court
has explained that the burden of proof lies with the movant
to identify “those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the non-moving party to show an absence of evidence
in the record as to an essential element of the claim or to
present “specific facts showing that there is a genuine
issue for trial.” Id. at 324. A court
reviewing a motion for summary judgment must view the
evidence in the light most favorable to the party opposing
the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
Assuming arguendo the presence of a technical
violation of the ECOA, Plaintiffs are unable to prove actual
damages resulting from said violation.
claim that Defendant failed to provide an adverse action
notice as required by the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691 et seq.
Am. Compl. 5. The ECOA, originally enacted to protect against
discrimination in lending practices, provides that “it
shall be unlawful for any creditor to discriminate against
any applicant, with respect to any aspect of a credit
transaction on the basis of race, color, religion, national
origin, sex or marital status, or age.” 15 U.S.C. §
1691(a)(1). The ECOA and its accompanying Regulation B, 12
C.F.R. § 202, contain notification requirements
mandating “a creditor to provide written notice of any
adverse action taken in connection with an application for
credit within a certain timeframe and pursuant to certain
content guidelines.” Coulibaly v. J.P. Morgan Chase
Bank, N.A., Civ. Ac. No. DKC-10-3517, 2012 WL
3985285, at *4 (D. Md. Sept. 7, 2012) (citing 15 U.S.C.
§ 1691(d)). Regulation B further requires that
“[a] creditor shall notify an applicant of action taken
within: 30 days after receiving a completed application
concerning the creditor's approval of, counteroffer to,
or adverse action on the application . . .”. 12 C.F.R.
§ 202.9(a)(1)(i). Regulation B further mandates that
[a] notification given to an applicant when adverse action is
taken shall be in writing and shall contain  a statement
of the action taken;  the name and address of the
creditor;  a statement of the provisions of § 701(a)
of the Act;  the name and address of the federal agency
that administers compliance with respect to the creditor; and
either : [(i)] a statement of specific reasons for the
action taken; or [(ii)] a disclosure of the applicant's
right to a statement of specific reasons within 30 days, if
the statement is requested within 60 days of the
Id. at § 202.9(a)(2). Indeed, “when a
creditor fails to comply with these requirements, it is in
violation of the ECOA, regardless of whether it engaged in
any prohibited discrimination.” Coulibaly,
2012 WL 3985285, at *4 (citations omitted).
allege that Defendant failed to provide proper notification
of adverse action on Plaintiffs' small business loan
application. Pls.' Am. Compl. 5. Specifically, Plaintiffs
argue that (1) the November 2015 notice was sent to the wrong
address and did not contain information required by the ECOA,
(2) the wrong address being listed on the notice constituted
negligence on Defendant's ...