United States District Court, D. Maryland
JOHN D. BRYAN, et al.
FAY SERVICING, LLC
Catherine C. Blake United States District Judge
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
15, 2005, the Bryans took out a mortgage loan on their
property, located at 9419 Joleon Road, Randallstown, Maryland
(the "Property"). (Compl. ¶6). 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.
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). 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).
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).
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).
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."
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).
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
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.
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.
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. ...