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Bryan v. Fay Servicing, LLC

United States District Court, D. Maryland

February 21, 2019

JOHN D. BRYAN, et al.


          Catherine C. Blake United States District Judge

         Pending before the court is defendant Fay Servicing, LLC's ("Fay Servicing") motion for summary judgment. (ECF No. 25). This case arises from the foreclosure sale of John D. Bryan and Benita T. Bryan's (collectively, "the Bryans") home. Following the foreclosure, the Bryans sued Fay Servicing, their mortgage servicer, alleging fraud and detrimental reliance, along with violations of the Maryland Consumer Protection Act ("MCPA") and the Real Estate Settlement Procedures Act ("RESPA"). For the reasons outlined below, the court will grant Fay Servicing, LLC's motion. The issues have been briefed and no oral argument is necessary. See Local Rule 105.6 (D.Md. 2018).


         On June 15, 2005, the Bryans took out a mortgage loan on their property, located at 9419 Joleon Road, Randallstown, Maryland (the "Property"). (Compl. ¶6).[1] Fay Servicing is the mortgage servicer for the Bryans' loan. (Id. ¶ 7). In May 2015, the Bryans executed a mortgage modification that became effective on June 1, 2015. (Def.'s Mot. Summ, J. Ex. 6 ["Modification Agreement"] at 2, 10, ECF No. 25-9). Fay Servicing asserts, and the Bryans do not dispute, that the Bryans were three years behind on their mortgage payments at the time of the 2015 mortgage modification, and as of the time of this suit, the Bryans were still behind on mortgage payments. (Id. at 1; Mem. P. & A. Supp. Def.'s Mot. Summ. J. ["Def.'s Mot."] at 23; Mem. P. & A. Supp. Pis.' Resp. Opp'n ["Pis.' Resp."] at 7). On April 5, 2016, a foreclosure action was brought against the Property in the Circuit Court for Baltimore County, Maryland. (Compl. ¶ 8). On February 25, 2017, as part of an effort to stop the foreclosure, the Bryans submitted a loss mitigation application. (Id. ¶ 10). The pending claims arise out of a series of telephone communications between the Bryans and various Fay Servicing employees regarding the Bryans' application.

         During a March 10, 2017, telephone call, .a Fay Servicing employee identified as Don informed Ms. Bryan that the Bryans' loss mitigation application was incomplete. (Def.'s Mot. Summ. J. Ex. 2 ["March 10 call"] at 4:06-4:20, ECF No. 25-5).[2] He told Ms. Bryan that the application was missing a signed and dated profit and loss statement, schedules from the Bryans' tax returns, a letter explaining that Ms. Bryan's business income was not reported via a 1099 Form, Mr. Bryan's 2015 W-2 forms, and Ms. Bryan's most recent Social Security Disability benefit letter. (March 10 Call at 10:45-17:36). Don explained how to create a profit and loss statement, (id. at 18:30-19:50), told Ms. Bryan that the statement needed to span January 1, 2016, through February 28, 2017, (id), and again reminded Ms. Bryan that the statement needed to be signed and dated, (id at 20:20-20:24). Don noted that he had "no control" over the ultimate delay of the foreclosure sale, and that, generally, a completed application was required 8 days prior to the scheduled foreclosure sale in order to stop the sale. (Id. at 20:40-21:17).

         During a subsequent March 14, 2017, call, Ms. Bryan spoke with Mr. Morrison ("Morrison"), another Fay Servicing employee. Morrison reminded Ms. Bryan that the ultimate outcome was "not up to me," and that the underwriting department needed to mark the file complete in order to delay the foreclosure sale. (Def.'s Mot. Summ. J. Ex, 3 ["March 14 call"] at 3:50-3:55, 8:30-8:38, ECF No. 25-6).

         During an April 11, 2017, call, Morrison told Ms. Bryan that the profit and loss statement she had submitted covering January through December 2016 was not signed and dated. (Dep. Bryan 142:4-12). He informed Ms. Bryan that "[t]hat's all I need . . . [t]his will get the file' marked complete, and it will get the sale date postponed until they reach a decision." (Id. 142:13-143:1). Morrison stated he would "try to push for the file to get marked complete." (Id. 144:5-6). He later stated "we only need one more thing and I can . . . mark it complete." (Id. 145:18-21). Ms. Bryan asked to be notified when the foreclosure sale was postponed. (Id. 148:21-149:3). She never received any notification stating that the sale was postponed. (Id. 149:4-7). Shortly after the April 11, 2017 call, Ms. Bryan submitted a signed and dated profit and loss statement for January 2016 to December 2016. (Def.'s Mot. Summ. J. Ex. 5, ECF No. 25-8).

         During an April 17, 2017, call, Morrison stated that he was "trying to get this moved, pushed through marked complete." (Bryan Dep. 150:11-12). He stated that he had escalated the file "marked as complete" but that there was no way for him to tell where the underwriting department was in the process. (Id. 150:15-16). He repeated that he had asked the underwriting department to "mark the file complete so I can get this stopped." (Id. 151:7-8). He told Ms. Bryan that the underwriting department had noted the package was missing the "profit and loss and 2016 personal/business tax returns." (Id. 151:11-13). When Ms. Bryan informed him that she had not filed her 2016 tax returns yet he stated "I don't know what they're going to say about that. I'm hoping that we can get by with it," (Id. 152:5-6). He stated "I'm telling that you haven't filed 2016 tax returns yet and I'm asking to still mark it complete, but that's the roll of thedice." (Id. 153:11-14). He did, however, repeatedly indicate that Ms. Bryan should not be concerned, stating: "I'm going to get this postponed"; "don't worry about it"; "we're going to get what we need"; "I'm pushing, I'm pushing for you." (Id. 156:7-157:12).

         Ms. Bryan indicated during her deposition that she knew the underwriting department had to mark the application complete before the foreclosure would be postponed. (Id. 162:17-20). On April 24, 2017, Ms. Bryan called Fay Servicing to check on the status of her application, but they were unable to provide an update. (Id. 165:13-19). On April 25, 2017, the Property was sold by foreclosure auction. (Id. ¶ 9).

         After learning about the foreclosure sale, the Bryans sued Fay Servicing alleging: violations of the Maryland Consumer Protection Act (Count I); detrimental reliance (Count II); violations of the Real Estate Settlement Procedures Act (Count III); and fraud (Count IV). (Compl. ¶¶ 25-55, ECF No. 2). The Bryans also sought a declaratory judgment in their favor (Count V) and injunctive relief (Count VI). (Id. ¶¶ 56-68). The Bryans have alleged solely noneconomic damages. (Compl. ¶ 24). The parties subsequently agreed to limit the scope of the pending claims to whether: (1) during an April 11, 2017, conversation, Fay Servicing represented that it would stop the foreclosure if the Bryans submitted a complete profit and loss statement;[3]

         Here no genuine dispute as to any material fact exists-the parties have submitted the full recordings of the March 10 and March 14, 2017 calls. (ECF No. 25-5; ECF No. 25-6). The pertinent portions of the April 11, April 17, and April 24, 2017 phone calls are included in the transcript of Ms. Bryan's deposition. (Bryan Dep., ECF No. 25-7 at 139-47, 149-60, 162-65). Accordingly, the court is presented with pure questions of law. and (2) Fay Servicing is liable under RESPA for proceeding with the foreclosure sale after the Bryans allegedly provided a complete loss mitigation application prior to the foreclosure sale. (Def.'s Mot. Summ. J. Ex. 1 ["Limitation of Claims"], ECF No. 25-4). Accordingly, the court will limit its consideration of the Bryans' claims to these two allegations.


         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted . "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) (emphases added). "A dispute is genuine if 'a reasonable jury could return a verdict for the nonmoving party.'" Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Didaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986)). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Anderson, Ml U.S. at 247-48.

         The court must view the evidence in the light most favorable to the nonmoving party, Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable inferences in that party's favor, Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see also Jacobs . v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the court must "prevent factually unsupported claims and defenses from proceeding to trial." Bouchaty. Bali. ...

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