United States District Court, D. Maryland
ARTHUR F. HEBBELER, et en Plaintiffs,
FIRST MARINER BANK, Defendant.
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Arthur and Deborah Hebbeler (together, the
"Hebbelers") have sued their mortgage lender, First
Mariner Bank ("FMB" or the "Bank"),
alleging breach of contract, fraud, and violations of state
and federal laws in connection with a foreclosure proceeding
on their home. ECF 2 (the
"Complaint"). The Complaint initially contained nine
counts against FMB: Violations of the Maryland Consumer
Protection Act ("MCPA"), Md. Code (2013 Repl. Vol.,
2018 Supp.), §§ 13-101 et seq. of the
Commercial Law Article ("C.L.") (Count I);
Detrimenal [sic] Reliance (Count II); Breach of Contract
(Count III); Negligence (Count IV); Unjust Enrichment (Count
V); Violations of the Real Estate Settlement Procedures Act
("RESPA"), 12 U.S.C. §§ 2601 et seq.
(Count VI); Fraud (Count VII); Declaratory Judgment (Count
VIII); and Injunctive Relief (Count IX). See. ECF 2.
Memorandum Opinion (ECF 20) and Order (ECF 21) of August 10,
2015, the Court granted in part and denied in part the
Bank's motion to dismiss. See ECF 13 (Motion).
In particular, the Court dismissed Counts I, VII, VIII, and
the Bank filed an Answer (ECF 22) to the Complaint. The
Answer contains several "negative defenses" and
numerous "affirmative defenses." Id. at
before the Court is FMB's "Motion to Amend Answer
and to Assert Counterclaims and Cross Claim" (ECF 27,
the "Motion"), filed on January 10, 2019. FMB moves
for leave to amend its Answer ("Amended Answer")
and to assert five counterclaims against the Hebbelers, as
well as a cross claim against the United States Small
Business Administration ("SBA"), for declaratory
relief (collectively, the "Counterclaim"). ECF
Amended Answer proposes two new affirmative defenses: fraud
("SEVENTEENTH AFFIRMATIVE DEFENSE") and unclean
hands ("EIGHTEENTH AFFIRMATIVE DEFENSE"). ECF 27-1
at 13. The Counterclaim asserts four counts against the
Hebbelers: fraud (Count I); tortious interference with
economic relationships (Count II); breach of contract (Count
III); and unjust enrichment (Count IV). And, in Count V, FMB
seeks declaratory relief against the Hebbelers and the
oppose the Motion (ECF 28), contending that the proposed
amendments are "futile." ECF 28-1 at 3-4. The Bank
has replied (ECF 29) and has provided six exhibits. ECF 29-1
hearing is necessary to resolve the Motion. Local Rule 105.6.
For the reasons that follow, I shall grant the Motion (ECF
Factual and Procedural Background
noted, plaintiffs filed the instant suit in the Circuit Court
for Baltimore City on November 1, 2017. ECF 2. On December 7,
2017, FMB removed the case to this Court, pursuant to 28
U.S.C. §§ 1331, 1441, and 1446. ECF 1.
allege that they obtained a mortgage from defendant in July
2002, secured by their home on Hilton Avenue in Catonsville,
Maryland (the "Property")- ECF 2, ¶¶ 6-7;
see ECF 19. In May 2015, plaintiffs and defendant
entered into a Forbearance Agreement. ECF 2, ¶ 9;
see ECF 19 ("Forbearance Agreement" or
"Agreement"). According to the Forbearance
Agreement, plaintiffs defaulted on their mortgage in 2012
and, as of April 23, 2015, they were in arrears of $101,
931.66. ECF 2, ¶ 9; ECF 19 at 2-3.
Forbearance Agreement provided that FMB would forbear from
foreclosing on the Property so long as plaintiffs complied
with the terms of the Agreement. ECF 19 at 9, Among those
terms was a payment schedule, which stated that plaintiffs
were to pay $68, 000 immediately; an additional $20, 284.78
by May 29, 2015; and a further sum of $13, 646.88 by August
1, 2015. ECF 2, ¶ 10; ECF 19 at 4. The Complaint alleges
that these payment deadlines were merely "guidelines,
and not material terms of the Agreement." ECF
2, ¶ 10. However, the Forbearance Agreement
itself states that the "breach" of "any of the
provisions of th[e] Agreement" shall be considered an
"Event of Default," allowing FMB to "exercise
any and all of its default rights and remedies . . .
including . . . foreclosing on the Property." ECF 19 at
5-6. The Agreement also specifies that the "failure of
[plaintiffs] to comply with . . . any of the provisions of
the Loan Documents" would constitute another "Event
of Default." Id. at 5. The plaintiffs were
required to make monthly payments of $2, 936.71 on their
mortgage. See ECF 13-8 ("Note") at
\;see also ECF2, ¶ 23.
to plaintiffs, "FMB's records suggest that from May
7, 2015 through August 15, 2015, [plaintiffs] paid a total of
$97, 984.78 under the Forbearance Agreement." ECF 2,
¶ 11. This would imply that plaintiffs were $3, 946.88
short of the amount due under the Agreement. But, plaintiffs
contend that "FMB failed to apply two crucial
payments," totaling $4, 300.00, which plaintiffs
"hand delivered" to the Bank on May 8, 2015, and
June 22, 2015. Id. ¶¶ 11-12. Plaintiffs
maintain that the Bank failed to deposit their checks, and
thus the payments were not applied under the Agreement.
Id. ¶ 12. According to plaintiffs, had these
payments been applied, they would have exceeded the payment
amount due under the Forbearance Agreement. Id.
¶¶ 12-13, 18.
ensuing year, plaintiffs allege that they repeatedly
contacted FMB to ask that the payments be applied to their
account, and consistently maintained that defendant's
accounting was incorrect. Id. ¶ 15. Plaintiffs
further allege that ...