Branch et al v. Bank of America

Filing 51

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 12/19/2013. (am2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
ANN BRANCH, et al.,

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Plaintiffs,

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v.

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Civil Case No.: PWG-11-3712

BANK OF AMERICA, N.A.

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Defendant.

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MEMORANDUM OPINION
This Memorandum Opinion disposes of Defendant Bank of America, N.A.’s (“BANA”)
Motion for Summary Judgment, ECF No. 45, and supporting Memorandum, ECF No. 45-1;
Plaintiffs Ann Branch (“Ann”) and Paul Branch’s (“Paul”) Opposition, ECF No. 49; and
Defendants’ Reply, ECF No. 50.
Having reviewed the filings, I find that a hearing is unnecessary. See Loc. R. 105.6. For
the reasons stated herein, Defendants’ Motion is GRANTED in part and DENIED in part.
I.

FACTUAL BACKGROUND 
In reviewing a motion for summary judgment, the Court considers the facts in the light

most favorable to the non-movant, drawing all justifiable inferences in that party’s favor. Ricci
v. DeStefano, 557 U.S. 557, 585–86 (U.S. 2009); George & Co., LLC v. Imagination Entm’t Ltd.,
575 F.3d 383, 391–92 (4th Cir. 2009); Dean v. Martinez, 336 F. Supp. 2d 477, 480 (D. Md.
2004). Unless otherwise stated, this background is composed of undisputed facts. Where a
dispute exists, I consider the facts in the light most favorable to Plaintiff. See Ricci, 557 U.S. at
585–86; George & Co., 575 F.3d at 391–92; Dean, 336 F. Supp. 2d at 480.

Plaintiffs Ann and Paul Branch were married until December 3, 2010, when they were
granted a Judgment of Absolute Divorce by the Circuit Court for Prince George’s County. Paul
Aff. ¶ 2, ECF No. 49-2; Ann Aff. ¶ 2, ECF No. 49-3; J. of Absolute Divorce (“Divorce J.”),
Branch v. Branch, No. CAD09-21574 (Md. Cir. Ct. Dec. 3, 2010), Pls.’ Opp’n. Ex. 7, ECF No.
49-6. Prior to the divorce, in February 3, 2007, Ann Branch and Defendant entered into a “Bank
of America Equity Maximizer Agreement and Disclosure Statement” (the “Line of Credit”), Pls.’
Opp’n Ex. 1, ECF No. 49-4, with a limit of $200,000. Ann intended to use this line of credit to
refinance an existing loan in the amount of $135,289.74, and did not inform Paul about the loan.
Ann Aff. ¶ 3–4.1 Around the date that the Line of Credit was executed, Ann received a check
from Defendant in the amount of $135,289.74. Id. ¶ 6.
The loan was to be secured by a Deed of Trust on Plaintiffs’ marital home, located at
9911 Pittman Avenue, Upper Marlboro, Maryland (the “Marital Home”). Plaintiffs assert that
Paul never was aware of or executed the Deed of Trust or signed any related documents before a
notary. Paul Aff. ¶ 7–8. It is undisputed, however, that Paul’s notarized signature appears on at
least one version of the Deed of Trust. See Deed of Trust, Pls.’ Opp’n Ex. 3, ECF No. 49-5.
Accordingly, Plaintiffs claim that Paul’s signature had been forged on the Deed of Trust and
therefore he should not be bound by its terms. See Compl., ECF No. 2. According to Paul, he
did not become aware that his signature appeared on the Deed of Trust until January 11, 2011,
when he attempted to refinance a mortgage on the Marital Home. Paul Aff. ¶ 9.
Plaintiffs filed their Complaint in the Circuit Court for Prince George’s County on
October 11, 2011, Civil Non-Domestic Case Information Rept., ECF No. 2-1, asserting four

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Although it is alleged that Ann refinanced the mortgage in her own name “to fulfill the terms of
the separation agreement between the plaintiff Ann Branch and plaintiff Paul Branch,” Compl.
¶ 8, ECF No. 2, it is far from clear how this action was consistent with the parties’ agreement
that Paul would assume the Marital Home in the divorce. See Divorce J. 2.
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counts: Count I: “Declaration and Injunction to determine the rights pursuant to the [Line of
Credit]”; Count II: Breach of Contract; Count III: Reformation; and Count IV: Fraud. Compl.
Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 by
Notice of Removal filed on December 22, 2011. ECF No. 1. Defendant initially moved for
summary judgment on January 14, 2013, see Def.’s Mot. for Summ. J., but that motion was
denied without prejudice after I resolved a discovery dispute between the parties by sanctioning
Plaintiffs and ordering that additional discovery be produced to Defendant. See Mem. Op., ECF
No. 40. Defendant filed the instant motion for summary judgment on May 7, 2013. Defs.’ Mot.
The motion now has been briefed fully and it is ripe for consideration. 
II.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper when the moving party demonstrates, through “particular

parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials,” 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), (c)(1)(A); see Baldwin v. City of
Greensboro, 714 F.3d 828, 833 (4th Cir. 2013).

If the party seeking summary judgment

demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to
the nonmoving party to identify evidence that shows that a genuine dispute exists as to material
facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a “scintilla of
evidence” is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts
from which the finder of fact reasonably could find for the party opposing summary judgment.
Id. “[U]nder Fed. R. Civ. P. 56, as amended in 2010, facts in support of or opposition to a

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motion for summary judgment need not be in admissible form; the requirement is that the party
identify facts that could be put in admissible form.” Mallik v. Sebelius, ---- F. Supp. 2d ----,
2013 WL 4559516, at *12 (D. Md. Aug. 28, 2013) (citing Niagara Transformer Corp. v.
Baldwin Techs., Inc., No. DKC-11-3415, 2013 WL 2919705, at *1 n.1 (D. Md. June 12, 2013)).
A “genuine” dispute of material fact is one where the conflicting evidence creates “fair
doubt”; wholly speculative assertions do not create “fair doubt.” Cox v. Cnty. of Prince William,
249 F.3d 295, 299 (4th Cir. 2001); see also Miskin v. Baxter Healthcare Corp., 107 F. Supp. 2d
669, 671 (D. Md. 1999). The substantive law governing the case determines what is material.
See Hoovan-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001).

A fact that is not of

consequence to the case, or is not relevant in light of the governing law, is not material. Id.; see
Fed. R. Evid. 401 (defining relevance).
III.

DISCUSSION
A. Statute of Limitations
Defendant’s primary argument appears to be that all of Plaintiffs’ claims are barred by

the statute of limitations. “Under Maryland law, the statute of limitations for contract and fraud
claims is three years unless otherwise specified.” United States v. Allen-Williams, No. JFM-111001, 2011 WL 4985817, at *4 (D. Md. Oct. 19, 2011) (citing Md. Code, Cts. & Jud. Proc. § 5101). However, “Maryland also recognizes the ‘discovery rule’ in all civil actions. Under the
discovery rule, ‘the cause of action accrues when the claimant in fact knew or reasonably should
have known of the wrong.’” Virtual Physical Ctr. Rockville, LLC v. Phillips Med. Sys. N. Am.,
Inc., 478 F. Supp. 2d 840, 846 (D. Md. 2007) (quoting Poffenberger v. Risser, 431 A.2d 677, 680
(Md. 1981)).

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The parties agree that Plaintiffs’ cause of action accrued in late 2007, when the allegedly
forged Deed of Trust was recorded. See Defs.’ Mem. 9; Pl’s Opp’n ¶ 32. Plaintiffs’ Complaint
was not filed until October 10, 2011, four years after the Deed of Trust was filed. See Notice of
Removal ¶ 1. Ann has not claimed that she was unaware that Paul’s name appeared on the Deed
of Trust. See Ann Aff.2 To the contrary, in alleging that “Ann Branch demanded plaintiff Paul
Branch be removed from the Deed of Trust,” Compl. 29, Plaintiffs acknowledge that she knew
Paul’s name appeared on the Deed of Trust. Therefore, Ann’s claims are time-barred, and
summary judgment against her is appropriate on all claims.
Although Plaintiffs’ Complaint is unclear as to the factual and legal bases underlying
Plaintiffs’ causes of action, it appears that Counts II and III, for breach of contract and
reformation, respectively, necessarily are asserted by Ann alone. Both of these causes of action
require (or at least presuppose) the existence of a contract between the parties. See Carroll Co.
v. Sherwin–Williams Co., 848 F. Supp. 2d 557, 563 (D. Md. 2012) (“To prevail in an action for
breach of contract, a plaintiff must prove that the defendant owed a contractual obligation and
that the defendant breached that obligation.” (emphasis added)); see also Hearn v. Hearn, 936
A.2d 400, 410 (Md. Ct. Spec. App. 2007) (explaining that reformation conforms a document to
the “actual mutual intent of the parties”). Because Plaintiffs’ entire case rests upon their position

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In places, Plaintiffs are vague as to when and whether Ann knew that Paul’s name had been
signed to the Deed of Trust, see, e.g., Pls.’ Opp’n ¶ 35 (“The plaintiff discovered the refinancing
after the granting of the absolute divorce.”), and with respect to which causes of action are
asserted by which plaintiff, see Compl. Were Plaintiffs unrepresented, this vagueness might be
entitled to a liberal construction and additional facts might have been necessary. Cf. Boag v.
MacDougall, 454 U.S. 364, 365 (1982). However, even self-represented parties are expected to
state their claims “in an intelligible, coherent, and manageable form,” Corcoran v. Yorty, 347
F.2d 222, 223 (9th Cir. 1965), and where, as here, Plaintiffs are represented by counsel, there is
no injustice in expecting counsel clearly to set forth any facts relevant to Plaintiffs’ legal
assertions. Accordingly, the lack of precision and the vagueness in Plaintiffs’ filings does not
entitle them to additional favorable inferences.
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that Paul never was a party to any contract with Defendant, I cannot see any way that these
claims can be asserted by Paul, even in the alternative. Accordingly, Defendant is entitled to
summary judgment on Counts II and III on statute of limitations grounds.
Unlike Ann, Paul Branch, relies on the “discovery rule,” claiming that he did not discover
that his name had been signed to the Deed of Trust until January 11, 2011. See Paul Aff. ¶ 9.3 In
response, Defendant relies on Storey v. Columbia Home Loans, LLC, No. RDB-11-3214, 2012
WL 1957978 (D. Md. May 23, 2012), for the proposition that “the recording of a deed would”
put plaintiffs on notice of fraud. Def.’s Mem. 9 (citing Storey, 2012 WL 1957978, at *7). Yet
Storey bore key differences from the instant case: In Storey, the plaintiffs’ claims arose out of a
series of irregularities respecting their mortgage, in the midst of which the plaintiffs were
informed that their deed of trust had been lost and were asked to sign a new, back-dated deed of
trust. Storey, 2012 WL 1957978, at *3. After the plaintiffs refused to do so, they became aware
that a deed of trust purporting to contain their signatures had been filed. Id. Under those
circumstances, the plaintiffs argued that they were not put on notice of fraud until that deed of
trust was filed, and Judge Bennett agreed that the recording of the deed of trust was the earliest
point at which the plaintiffs could be said to be on notice, supporting a finding that the plaintiffs’
claims were filed timely. Id. at *7. At the very least, Storey emphatically does not stand for the
proposition that the recording of a forged deed of trust necessarily is notice to all the world that a
claim has accrued for statute of limitations purposes. It is better read more narrowly as saying

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Defendant notes that Plaintiffs’ Opposition claims that Defendant’s alleged fraud was
discovered earlier, on November 10, 2010. Even assuming, without deciding, that such a
statement could be considered adopted by Paul, see Fed. R. Evid. 801(d)(1)(A) & (d)(2)(B),
either date is within three years of the date on which this action was filed, and therefore Paul’s
claim is timely in any event.
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that, even in the context of mortgage irregularities, a party is not necessarily on notice of fraud
until a fraudulent deed actually has been recorded.
Here, Paul Branch was not a party to the underlying transaction, and he has averred that
he did not even know that Ann was refinancing the mortgage until 2011. Paul Aff. ¶¶ 3–4, 9.
The mere fact that he refused to sign the Deed of Trust, see Compl. ¶ 11–13; Defs.’ Mem. 10,
without more, did not put him on notice that someone else may have signed it in his name.
Further, Plaintiffs have alleged that “Paul Branch had entered agreement with Ann Branch not to
be obligated under the Promissory Note,” Compl. ¶ 27, which suggests that Paul had been
assured that his name would not appear on the Deed of Trust and had no reason to expect
otherwise.4 Thus I find that he has alleged that he did not discover that a fraud may have
occurred until 2010, and his claims therefore are not time-barred.
B. Factual Dispute Regarding Forgery
Defendant also seeks to dispose of all of Plaintiffs’ claims by showing a lack of a genuine
dispute over whether Paul’s signature on the Deed of Trust is genuine. Defendant argues that it
has put forward expert testimony that conclusively establishes the genuineness of Paul’s
signature, and that this testimony is unopposed because Plaintiffs have not named a rebuttal
expert. See Def.’s Mem. 6–7 (citing Heilman Expert Report, Def. BANA’s Mot. for Sanctions

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Of course, Plaintiffs’ allegations also imply that Ann may have breached this supposed contract
with Paul and may stand as a guarantor of any resultant damages. Although this is a far cry from
giving any credence to Defendant’s insinuations that it was Ann, not BANA, who may have
forged Paul’s signature, see Def.’s Reply 5 n.1, it nevertheless suggests that Ann may bear
liability for Paul’s inclusion on the Deed of Trust. To the extent that such claim may create a
conflict between Ann and Paul, the record does not reflect whether Plaintiff’s counsel has made a
reasonable examination of whether any such conflict is consentable, has informed his clients of
any such conflict, properly has obtained written consent thereto, and otherwise has complied
with the provisions of Maryland Lawyers’ Rule of Professional Conduct 1.7.
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or, in the Alternative, to Compel Discovery Resps. and Extend Def.’s Deadline to File
Dispositive Mots. Ex. D, ECF No. 25-5). Defendant is incorrect on both points.
First, the mere fact that Plaintiffs have not identified a rebuttal expert does not prevent
them from rebutting Defendant’s handwriting expert. The Federal Rules of Evidence expressly
acknowledge that handwriting comparisons are within the competence of lay witnesses, Fed. R.
Evid. 901(b)(2), or the finder of fact, Fed. R. Evid. 901(b)(3). And the Fourth Circuit expressly
has noted that an opinion as to the genuineness of handwriting can be “rationally based on
the . . . perception” of a lay witness. United States v. Atkins, 139 F.3d 839 (4th Cir. 1998) (citing
Fed. R. Evid. 701); see also United States v. Tipton, 964 F.2d 650, 655 (7th Cir. 1992) (noting
that several circuits expressly have allowed lay testimony regarding handwriting). Defendant’s
claim that “Plaintiffs are barred from putting forth [rebuttal] evidence,” Def.’s Mem. 7, simply is
not true.
Moreover, Plaintiffs have put forth sufficient evidence to create a dispute of fact as to the
genuineness of Paul’s signature. Even crediting Defendant’s expert, his opinion is heavily
qualified. Although he found that one handwriting specimen “was very likely prepared by
PAUL R. BRANCH,” his opinion with respect to the Deed of Trust was less confident, stating
that “some handwriting similarities were observed in the questioned ‘Paul R. Branch’ signature
on the specimen [] which indicate BRANCH likely prepared this signature.” Heilman Expert
Report 3. Defendant’s expert further qualifies his findings by noting that “[a] more definite
opinion may be reached with additional signatures.” Id. In contrast to these tepid conclusions,
Paul Branch has affirmed from personal knowledge that he “did not sign the Deed of Trust and
deem[s] the signature on the Deed of Trust to be a forgery.” Paul Aff. ¶ 8. This is more than
sufficient to create a disputed issue of fact, and therefore precludes summary judgment.

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C. Ratification
Defendant argues that even if Paul Branch’s signature was forged, he ratified that
signature by his subsequent acts. “Ratification requires an intention to ratify and knowledge of
all material facts. Intention to ratify may be inferred by words, conduct or silence on the part of
the principal that reasonably indicates its desire to affirm the unauthorized act.” Progressive
Cas. Ins. Co. v. Ehrhardt, 518 A.2d 151, 156 (Md. Ct. Spec. App. 1986) (internal citations
omitted). According to Defendant, Paul ratified his signature by allowing the original mortgage
to be paid off and remaining in the Marital Home. Def.’s Mem. 11. Defendant also asserts that
he is charged with knowledge of the material facts because he should have known that Ann could
not refinance the mortgage without his signature on the Deed of Trust, id., and that Paul
benefited from the transaction and did nothing to repudiate those benefits, see Def.’s Reply 7;
see also Ehrhardt, 518 A.2d at 156 (“Circumstances that suggest an intent to ratify include:
receipt and retention of the benefits of the unauthorized transaction and a failure to make a
timely disaffirmance of the unauthorized acts.” (internal citations omitted)).
It is not clear that Paul had knowledge of the alleged forgery, insofar as he purports to
have been unaware that the mortgage was being refinanced. See Branch Aff. ¶ 3. Nor is it clear
that he knew that loan funds were being disbursed in his and Ann’s name. And notwithstanding
the opacity of Plaintiffs’ Complaint, it is at least as likely that Ann’s loan frustrated Paul’s goals
in effectuating the Divorce Judgment as it is that he knowingly realized any benefit from the
transaction. Compare Compl. ¶ 7 (stating that Ann sought to refinance “in order to provide Ann
Branch sole financial obligation of the marital home”), with Divorce J. 2 (“Paul Branch assumes
the marital property . . . .”).

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Most importantly, “the existence of ratification is essentially a question of fact.” Smith v.
Merritt Sav. & Loan, Inc., 295 A.2d 474, 481. As such, it is not appropriate to grant summary
judgment on that basis.
D. Damages
Defendant argues Plaintiffs have not shown any damages on their breach of contract or
fraud claims. Because Ann Branch’s breach of contract claim is time-barred, I need not consider
whether she has shown damages arising from that claim. The only question is whether Plaintiffs
have demonstrated that they may be able to recover damages on Paul’s fraud claim.
To prevail on a claim for fraud, Plaintiffs must show, by clear and convincing evidence:
(1) that the defendant made a false representation to the plaintiff, (2) that its
falsity was either known to the defendant or that the representation was made with
reckless indifference as to its truth, (3) that the misrepresentation was made for
the purpose of defrauding plaintiff, (4) that the plaintiff relied on the
misrepresentation and had the right to rely on it, and (5) that the plaintiff suffered
compensable injury resulting from the misrepresentation.
Gourdine v. Crews, 955 A.2d 769, 791 (Md. 2008) (quoting Md. Envtl. Trust v. Gaynor,
803 A.2d 512, 516 (Md. 2002)).
In arguing that Plaintiffs did not sustain any compensable injury, Defendant attempts to
elide Ann and Paul together, arguing that “Plaintiffs admit that they used the money they
obtained from BANA to refinance and pay off their prior mortgage.” Def.’s Mem. 13. In fact,
Paul alleges that Ann did so without his knowledge or consent, and that he never agreed to be
bound by her action. See Paul Aff. ¶¶ 3–8. And although it is not clear that Paul has suffered the
$200,000 in damages that he alleges—particularly if the outstanding balance on the loan secured
by the Deed of Trust actually is only $135,289.74, Pls.’ Opp’n ¶ 57—Plaintiffs have provided
evidence that Paul attempted to refinance the earlier mortgage and was unable to do so because
of the Deed of Trust. See Paul Aff. ¶ 9; see also Pls.’ Opp’n ¶ 57. Although Paul will bear the

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burden of showing his damages at trial, the fact that the Deed of Trust has prevented him from
securing a new mortgage and finalizing his divorce is sufficient evidence of damages to prevent
a grant of summary judgment against him. See Dynacorp Ltd. v. Aramtel Ltd., 56 A.3d 631, 668
(Md. Ct. Spec. App. 2012) (finding actual damages “where the evidence establishes that the
plaintiff lost assets as a result of the false representation”).
However, Paul Branch’s fraud claim has a more fundamental problem: it is not apparent
that Defendant made any representations to Paul whatsoever, much less misleading
representations on which he reasonably relied. See Gourdine, 955 A.2d at 791. Nor does this
seem consistent with Paul’s claim that he had no knowledge that Defendant was working with
Ann to refinance the original mortgage. See Paul Aff. ¶ 3–9. If the facts are as Plaintiffs have
alleged, it may be appropriate to issue summary judgment in favor of Defendant on Count IV.
Pursuant to Fed. R. Civ. P. 56(f), Plaintiffs have fourteen days to identify a genuine issue of fact
as to whether Defendant made any false representations to Paul Branch or otherwise to show
cause why summary judgment should not be granted on Count IV.
E. Remaining Claims
Defendant also seeks summary judgment on a purported count of violation of the
Maryland Consumer Protection Act (“MCPA”), which apparently was listed as a basis for
damages in Ann’s interrogatory responses. See Resps. to First Set of Interrogs. to Pls. No. 14,
Def.’s Reply in Supp. of its Mot. for Summ. J. Ex. D, ECF No. 35-4. As Defendant correctly
notes, no claim for the MCPA has been set forth in a pleading, Def.’s Mem. 14, and therefore no
such claim is before me.
The only claim that definitely remains is Paul Branch’s claim for declaratory relief. To
the extent that Paul’s claim of forgery is, in essence, a defense to a putative contract suit at

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common law, it appears that the declaratory judgment claim is legal. See Marseilles Hydro
Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643 (7th Cir. 2002) (“‘If the declaratory
judgment action does not fit into one of the existing equitable patterns but is essentially an
inverted law suit—an action brought by one who would have been a defendant at common law—
then the parties have a right to a jury.” (quoting Owens–Illinois, Inc. v. Lake Shore Land Co.,
610 F.2d 1185, 1189 (3d Cir. 1979))). But in Maryland, a jury demand must be asserted “either
as a separate paper or separately titled at the conclusion of a pleading and immediately preceding
any required certificate of service.” Md. Rule 2-325(a). Merely checking a box on the circuit
court’s Case Information Sheet, ECF No. 2-1, is not effective to invoke the right to a jury trial.
Duckett v. Riley, 52 A.3d 84, 85 (Md. 2012). Accordingly, Plaintiff Paul Branch’s remaining
claim will be tried without a jury. See Fed. R. Civ. P. 81(c)(3) (a pre-removal jury demand in a
removed case is effective when “in accordance with state law”).
Following any briefing on whether Paul Branch believes that he can maintain Count IV,
the next step is to set this case in for a bench trial. A scheduling call will be held on Tuesday,
January 21, 2014 at 3:00 p.m., at which time the parties should be prepared to discuss a trial
schedule and other related deadlines. Counsel for Plaintiffs is to initiate the call.

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IV.

CONCLUSION
For the aforementioned reasons, Defendants’ Motion for Summary Judgment is

GRANTED with respect to Counts II and III, and with respect to all counts asserted by Ann
Branch, and otherwise is DENIED.
Within fourteen days, Plaintiff Paul Branch SHALL SHOW CAUSE as to why Summary
Judgment should not be granted in favor of Defendant with respect to Count IV; and
A telephone status conference will be SCHEDULED for Tuesday, January 21, 2014, at
3:00 p.m. to address a trial schedule and any other related issues; counsel for Plaintiffs is to
initiate the call.
A separate order shall issue.

Dated: December 19, 2013

/S/
Paul W. Grimm
United States District Judge

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