United States District Court, D. Maryland
Xinis United States District Judge.
pending is Defendants' motion to dismiss this case after
removal to this Court. ECF Nos. 16, 1. The motion is fully
briefed, and no hearing is necessary. See Loc. R.
105.6. For the reasons that follow, the Court grants in part
Defendants' motion and dismisses the Truth in Lending Act
claims. The Court declines to exercise supplemental
jurisdiction over the remaining state law claims and, in its
inherent authority, remands this case to the Circuit Court
for Montgomery County, Maryland. The remainder of
Defendants' motion to dismiss is denied as moot.
Richard and Megan Hackett (collectively, “the
Hacketts”) filed a class action suit in the Circuit
Court for Montgomery County, Maryland, stemming from alleged
improper procedures undertaken by Defendant Bayview Loan
Servicing, LLC (“Bayview”) as a loan servicer and
Defendant The Bank of New York Mellon, as Trustee for the
Certificate Holders of the CWALT, Inc., Alternative Loan
Trust 2006-OA19 (“the Bank”). Id. ¶
24. The Complaint avers that Bayview, as an agent for the
Bank, improperly assessed property preservation or inspection
charges on loans that it serviced and improperly denied the
Hacketts' loan modification application. Id.
¶¶ 7, 27, 39. As a result, the Hacketts filed suit
individually and on behalf of three subclasses of debtors,
asserting violations of the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et
seq.; the Maryland Consumer Debt Collection Practices
Act, Md. Code, Com. Law, § 14-201, et seq.; the
Maryland Consumer Protection Act, Md. Code, Com. Law, §
14-201, et seq.; the Maryland usury statute, Md.
Code, Com. Law § 12-121(a)(1)(ii); the Maryland Mortgage
Fraud Protection Act, Md. Code, Real Prop. § 7-401
et seq.; and the common law doctrine of unjust
enrichment. The Complaint also seeks declaratory and
injunctive relief. Id. ¶¶ 69-121.
2, 2018, Defendants removed the case to this Court, asserting
federal question and diversity jurisdiction. ECF No. 1.
Defendants then moved to dismiss for failure to state a claim
upon which relief can be granted. ECF No. 16. In response,
the Hacketts concede dismissal of the TILA claims and argue
that remand rather than dismissal is appropriate on the
remaining state law claims. ECF No. 19 at 6.
Standard of Review
ruling on a motion to dismiss brought pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, the
well-pleaded allegations are accepted as true and viewed most
favorably to the party pursuing the allegations. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Factual allegations must be enough to raise a right to
relief above a speculative level.” Id.
“‘[N]aked assertions' of wrongdoing
necessitate some ‘factual enhancement' within the
complaint to cross ‘the line between possibility and
plausibility of entitlement to relief.'”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 557).
“[C]onclusory statements or ‘a formulaic
recitation of the elements of a cause of action will not
[suffice].'” EEOC v. Performance Food Grp.,
Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting
Twombly, 550 U.S. at 555).
Dismissal of TILA Claims
responding to Defendants' motion to dismiss, the Hacketts
concede dismissal of the TILA claims in light of this
Court's recent dismissal of “nearly
identical” claims. ECF No. 19 at 16; see also Kemp
v. Seterus, Inc., No. 18-472, 2018 WL 3159070, at *4-6
(D. Md. June 27, 2018). The Hacketts are correct that
dismissal of the TILA claims is warranted for the same
reasons articulated in Kemp.
purpose of TILA is to “facilitate the ‘informed
used of credit.'” Watkins v. SunTrust Mortg.,
Inc., 663 F.3d 232, 234 (4th Cir. 2011) (quoting 15
U.S.C. § 1601(a)). TILA mandates that “[a]
creditor or servicer of a home loan shall send an accurate
payoff balance within a reasonable time, but in no case more
than 7 business days, after the receipt of a written request
for such balance from or on behalf of the borrower.” 15
U.S.C. § 1639g. Although the statute reaches both
creditors and servicers, TILA “imposes civil liability
only on creditors and, only in limited circumstances,
assignees of creditors.” Kemp, 2018 WL
3159070, at *3 (citing 15 U.S.C. §§ 1640(a),
1641(a)); see also Strickland-Lucas v. Citibank,
N.A., 256 F.Supp.3d 616, 626 (D. Md. 2017) (“[T]he
only parties who can be liable for TILA violations are the
original creditor and assignees of that creditor.”)
(quoting Chow v. Aegis Mortg. Corp., 286 F.Supp.2d
956, 959 (N.D. Ill. 2003) (internal quotation marks and
creditor is defined as one “who both (1) regularly
extends, whether in connection with loans, sales of property
or services, or otherwise, consumer credit which is payable
by agreement in more than four installments or for which the
payment of a finance charge is or may be required, and (2) is
the person to whom the debt arising from the consumer credit
transaction is initially payable on the face of the evidence
of indebtedness or, if there is no such evidence of
indebtedness, by agreement.” 15 U.S.C. § 1602(g).
An assignee of a creditor may be liable “only if the
violation for which the action or proceeding is brought is
apparent on the face of the disclosure statement . . .
.” 15 U.S.C. § 1641(a).
Kemp, the plaintiff brought TILA claims on behalf of
herself and a putative class against a loan servicer and an
assignee creditor arising from the assessment of property
inspection fees. 2018 WL 3159070, at *1. This Court held that
the TILA claims against the loan servicer “are clearly
dismissible” because the loan servicer was neither a
creditor nor assignee of a creditor. Id. at *4. The
Court then found that Fannie Mae, as an assignee creditor,
was not liable under TILA because the alleged inaccuracy
forming the basis of the TILA violation (the assessment of
inspection fees) was not apparent on the face of the
disclosure statement. Id. at *5. The Court further
considered whether Fannie Mae became an original creditor
under TILA when the property inspection fees were assessed,
and concluded that such fees were “not new credit
transactions that could impose liability on Fannie
Mae.” Id. at *6. The Court so ruled because
such fees had been included in the original deed of trust to
which the plaintiff and original creditor agreed.
to Kemp, the claims against Bayview fail because
Bayview, as loan servicer, is neither a creditor nor assignee
creditor. See Mosley v. OneWest Bank, No.
RDB-11-00698, 2011 WL 5005193, at *4 (D. Md. Oct. 19, 2011)
(holding that plaintiff failed to state a TILA claim against
loan servicer). Likewise, the claims fail against the Bank as
an assignee creditor. As in Kemp, the alleged
inaccuracies in the payoff statements are not apparent on the
face of the disclosure statement because the
“disclosure statement is a document provided
before the extension of credit that sets out the
terms of the loan.” Kemp, 2018 WL 3159070, at
*5 (quoting Evanto v. Fed. Nat'l Mortg.
Ass'n, 814 F.3d 1295, 1297 (11th Cir. 2016))
(internal quotation marks omitted) (emphasis added in
Kemp). Accordingly, assessment of such fees could
not render the disclosure statement facially inaccurate.
Cf. 15 U.S.C. § 1634 (“If information
disclosed in accordance with this part is subsequently
rendered inaccurate as the result of any act, occurrence, or
agreement subsequent to the delivery of the required
disclosures, the inaccuracy resulting therefrom does not
constitute a violation of this part.”). Assignee
liability against the Bank under TILA cannot attach.
See 15 U.S.C. § 1641(a).
the property inspection fees, when assessed, did not require
new TILA disclosures because the fees had been part of the
original agreement between the Hacketts and the original
lenders. ECF No. 16-3 ¶ 14 (“Lender may charge
Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting
Lender's interest in the Property and rights under this
Security Instrument, including, but not limited to . . .
property inspection and valuation fees.”)
(emphasis added). Although, in theory, additional fees not
contemplated by previous agreement may require new
disclosures, see Begala v. PNC Bank, Ohio, Nat'l
Ass'n, 163 F.3d 948, 951 n.1 (6th Cir. 1998), fees
contemplated in the ...