Piotrowski v. Wells Fargo Bank, NA

Filing 20

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/22/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROBERT PIOTROWSKI
:
v.

:

Civil Action No. DKC 11-3758

:
WELLS FARGO BANK, N.A.
:
MEMORANDUM OPINION
Presently pending and ready for review in this mortgage
loan

modification

case

is

the

motion

to

dismiss

Defendant Wells Fargo Bank, N.A. (“Wells Fargo”).

filed

by

(ECF No. 10).

The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
following reasons, the motion to

Local Rule 105.6.

For the

dismiss will be granted in

part and denied in part.
I.

Background
A.

Factual Background

The following facts are alleged in the complaint filed by
Plaintiff Robert Piotrowski, as supplemented by the information
contained

in

dismiss.1

Mr. Piotrowski is a Maryland resident who purports to

1

documents

attached

to

Wells

Fargo’s

motion

to

“[W]hen a defendant attaches a document to its motion to
dismiss, ‘a court may consider it in determining whether to
dismiss the complaint [if] it was integral to and explicitly
relied on in the complaint and [if] the plaintiffs do not
challenge its authenticity.’”
Am. Chiropractic Ass’n v. Trigon

represent a class of homeowners who have been damaged by Wells
Fargo’s alleged failures to comply with applicable federal and
state law in connection with their mortgage loan modification
requests.
On or about January 31, 2007, Mr. Piotrowski purchased the
property

located

at

10916

Citreon

Court,

North

Potomac,

Maryland, 20878 (“the Property”) with the proceeds of a mortgage
loan.

In connection with this purchase, Mr. Piotrowski and his

wife signed two purchase money deeds of trust as “Borrower[s].”
(ECF No. 11-1).2

Paragraph 22 of the primary deed of trust,

provides, in relevant part, as follows:

Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting
Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)).
It is also appropriate to take judicial notice of — and
consequently consider — matters of public record in deciding a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Philips v. Pitt
Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Wells Fargo
attaches a number of documents to its motion to dismiss,
including (1) two recorded purchase money deeds of trust for the
Property signed by Mr. Piotrowski and his wife (ECF No. 11-1);
(2) a “Special Forbearance Agreement” signed by the Piotrowskis
(ECF No. 11-3); and (3) a letter from Wells Fargo to the
Piotrowskis dated May 15, 2011 (ECF No. 11-4). Because each of
these documents is either expressly relied on in the complaint
or is a matter of public record – and because Mr. Piotrowski
does not dispute their authenticity – the exhibits can be
considered without converting the motion into one for summary
judgment.
2

The deeds of trust submitted by Wells Fargo identify Mr.
Piotrowski’s wife as “Iwona Piotrowska.”
(See ECF No. 11-1).
In their briefs, however, both parties refer to Mr. Piotrowski’s
wife
as
“Iwona
Piotrowski”
and
to
the
couple
as
the
“Piotrowskis.”
2

22. Acceleration; Remedies.
Lender shall
give
notice
to
Borrower
prior
to
acceleration following Borrower’s breach of
any covenant or agreement in this Security
Instrument . . . . The notice shall specify:
(a) the default; (b) the action required to
cure the default; (c) a date, not less than
30 days from the date the notice is given to
Borrower, by which the default must be
cured; and (d) that failure to cure the
default on or before the date specified in
the notice may result in acceleration of the
sums secured by this Security Instrument and
sale of the Property. . . . If the default
is not cured on or before the date specified
in the notice, Lender at its option may
require immediate payment in full of all
sums secured by this Security Instrument
without further demand and may invoke the
power of sale, assent to decree, and/or any
other remedies permitted by Applicable Law.
(Id. at 10).
In December 2010, the Piotrowskis suffered a reduction in
household

income.

In

January

2011,

at

a

time

when

the

Piotrowskis were current on their mortgage loan, Mr. Piotrowski
submitted
Fargo,

a

completed
servicer

the

loan
of

Modification Request”).

modification
their

application

mortgage

loan

to

(“the

Wells
First

Specifically, Mr. Piotrowski requested

that his monthly mortgage payment be adjusted downward to 31% of
his total pretax monthly income.
Wells

Fargo

telephone

representative

that

the

On January 26, an unnamed

confirmed

servicer

had

to

Mr.

received

Piotrowski
all

of

via
the

documentation it needed and that “the package had been approved
by the processor.”

(ECF No. 1 ¶ 24).
3

On February 7, 2011, Wells Fargo informed Mr. Piotrowski
that

he

was

approved

for

a

“Special

Forbearance

Agreement.”

Pursuant to this Agreement, Mr. Piotrowski would pay a reduced
mortgage payment of $1,657.79 for the months of March, April,
and May 2011, during which time Wells Fargo promised that he
would be considered for “a modification of his loan as he had
applied.”

(Id.

¶ 28).

Paragraphs

2-4

of

the

Forbearance Agreement state as follows:
2.
This
Agreement
temporarily
accepts
reduced
payments
or
maintains
regular
monthly payments as outlined in section 5
below.
Upon successful completion of the
Agreement,
your
loan
will
not
be
contractually current.
Since the payments
may be less than the total amount due you
may still have outstanding payments and
fees.
Any outstanding payments and fees
will be reviewed for a loan modification.
If approved for a loan modification, based
on investor guidelines, this will satisfy
the remaining past due payments on your loan
and we will send you a loan modification
agreement.
An additional payment may be
required.
3. The lender is under no obligation to
enter into any further agreement, and this
Agreement shall not constitute a waiver of
the lender’s right to insist upon strict
performance in the future.
4. All of the provisions of the Note and
Security
Instrument,
except
as
herein
provided, shall remain in full force and
effect. Any breach of any provision of this
Agreement
or
non-compliance
with
this
Agreement, shall render the Agreement null
and
void.
The
lender,
in
its
sole
discretion and without further notice to
4

Special

you, may terminate this Agreement.
If the
Agreement is terminated, the lender may
institute foreclosure proceedings according
to the terms of the Note and Security
Instrument.
In the event of foreclosure,
you
may
incur
additional
expenses
of
attorney’s fees and foreclosure costs.
(ECF

No.

11-3).

The

Piotrowskis

accepted

the

Special

Forbearance Agreement on February 18, 2011, and made each of the
three payments in advance of the stated due date.
On April 25, 2011, Shona Sanders, a processor with Wells
Fargo,

requested

that

Mr.

Piotrowski

re-apply

modification by submitting certain documentation.

for

a

loan

The next day,

April 26, Mr. Piotrowski sent all of the documents requested by
Sanders in support of his second request to adjust his monthly
mortgage payment to 31% of his then pretax monthly income (“the
Second Modification Request”).
Mr. Piotrowski never received any notice from Wells Fargo
that it had denied his Second Modification Request.

Yet on May

15, 2011, Wells Fargo sent a letter to the Piotrowskis (“the
Notice of Default”) stating that “[o]ur records indicate that
your loan is in default for failure to make payments due.”
No. 11-4).
total

(ECF

The Notice of Default stated that the Piotrowskis’

delinquency,

as

of

May

15,

2011,

was

$3,926.04,

and

further advised that “[u]nless the payments on your loan can be
brought current by June 29, 2011, it will become necessary to
require immediate payment in full (also called acceleration) of
5

your Mortgage Note and pursue the remedies provided for in your
Mortgage or Deed of Trust, which include foreclosure.”

(Id.).

Mr. Piotrowski avers that the sum of $3,926.04 “represented the
difference

between

his

regular

payment

and

the

Special

Forbearance Agreement payments.”

(ECF No. 1, at 10 ¶ 34).3

On

May

“made

of

26,

2011,

$3,926.04.

Mr.

Piotrowski

the

cure

payment”

On May 25, 2011, allegedly “after again bringing his

loan current,” Mr. Piotrowski submitted another completed loan
modification application requesting that his monthly mortgage
payment

be

Request”).

adjusted

downwards

(“the

Third

Modification

(Id. at 10 ¶ 29).4

On June 20, 2011, a Wells Fargo representative named Tony
informed Mr. Piotrowski via telephone that Wells Fargo would be
assessing his account with late fees of $128.43 “as a result of
the Special Forbearance Agreement it had offered him and he
agreed to.”

(Id. at 11 ¶ 30).

Piotrowski promptly paid the

3

In ordering its paragraphs, the complaint repeats numbers
29-34.
For ease of reference, where this Memorandum Opinion
cites to a paragraph number that was repeated in the complaint,
it will be identified by both paragraph number and page number.
4

The complaint asserts inconsistent allegations regarding
the timing of Mr. Piotrowski’s cure payment and the Third
Modification Request.
The explicit allegations state that Mr.
Piotrowski submitted the Third Modification Request on May 25,
2011, one day before submitting the cure payment on May 26.
(ECF No. 1, at 10 ¶¶ 34, 29).
The complaint also alleges,
however, that Mr. Piotrowski submitted his Third Modification
request “after again bringing his loan current.”
(Id. at 10
¶ 29) (emphasis added).
6

$128.43 “out of fear that if he did not, Wells Fargo would
wrongfully assess him further fees or even threaten foreclosure
again for no bona fide reason.”
In

connection

with

his

(Id.).
Third

Modification

Request,

Mr.

Piotrowski sent additional documents requested by Wells Fargo
via facsimile to the attention of Wells Fargo representative Dee
Dee Greenwall on July 6 and again on July 25.

During the next

two weeks, Mr. Piotrowski left messages for Ms. Greenwall and
other

unnamed

Wells

Fargo

representatives

occasions without receiving any response.

on

at

least

seven

On August 11, 2011,

an unnamed Wells Fargo representative informed Mr. Piotrowski
(1)

that

consider

Wells
the

Fargo

Third

had

all

Modification

the

information

Request;

(2)

necessary

that

the

to

Third

Modification Request “had been forwarded to the underwriters for
review”; and (3) that it would take the underwriting department
about three to four weeks to review.

(ECF No. 1, at 12 ¶ 32).

After Mr. Piotrowski left another message inquiring about
his

Third

Modification

Request,

Ms.

Greenwall

contacted

Mr.

Piotrowski on September 15, 2011, and “promised him an update by
September 19, 2011.”
provided.
updates,
written

Indeed,

(Id. ¶ 33).

Wells

several

never

provided

Fargo

despite

response

to,

or

denial

Request.
7

of,

No such update was ever
additional
Mr.
the

requests

Piotrowski
Third

with

for
any

Modification

Mr. Piotrowski alleges that, as a result of Well Fargo’s
alleged “direct and indirect actions,” including “through the
improper threat of an imminent foreclosure action against the
Property” and “the assessment of unfair and deceptive late fees
and costs to his accounts,” he has (1) suffered damage to his
credit; (2) incurred legal fees and expenses; (3) lost time from
work in attempting to resolve the dispute without litigation;
and

(4) suffered

emotional

damages

“manifested

insomnia, sleeplessness, worry, and an[x]iety.”
B.

by

severe

(Id. ¶ 37).

Procedural Background

On December 29, 2011, Piotrowski filed a four-count class
action complaint on behalf of himself and similarly situated
borrowers against Wells Fargo, asserting claims under the Equal
Credit

Opportunity

Act,

15

U.S.C.

§ 1691(d)

(“ECOA”);

the

Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law
§ 14-201

et

seq.

(“MCDCA”);

the

Maryland

Consumer

Protection

Act, Md. Code Ann., Com. Law § 13-101 et seq. (“MCPA”); and the
Maryland

Mortgage

Fraud

Protection

Prop. § 7-401 et seq. (“MMFPA”).

Act,

Md.

Code

Ann.,

Real

(ECF No. 1 ¶¶ 56-106).

On

March 2, 2012, Wells Fargo moved to dismiss the complaint for
failure
12(b)(7)

to

join

and

a

for

necessary
failure

Fed.R.Civ.P. 12(b)(6).

party

to

pursuant

state

a

(ECF Nos. 10 & 11).

to

claim

Fed.R.Civ.P.
pursuant

Piotrowski filed an

opposition (ECF No. 14), and Wells Fargo replied (ECF No. 17).
8

to

II.

Motion to Dismiss Pursuant to Rule 12(b)(7)
A.

Standard of Review

Rule 12(b)(7) authorizes a motion to dismiss for failure to
join a party to the original action under Rule 19 “when there is
an absent person without whom complete relief cannot be granted
or whose interest in the dispute is such that to proceed in his
absence might prejudice him or the parties already before the
court.”

5A

Charles

A.

Wright

&

Arthur

Practice & Procedure § 1359 (2d ed. 1990).
12(b)(7)
absent]

motion,
party

first

is

it

must

necessary

to

be
a

R.

Miller,

Federal

In assessing a Rule

determined
proceeding

“‘whether
because

[the

of

its

relationship to the matter under consideration pursuant to Rule
19(a).”

Owens–Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th

Cir. 1999).

“If a party is necessary, it will be ordered into

the action,” so long as joinder does not destroy the court’s
jurisdiction.

Id.

When

joinder

is

infeasible,

it

must

be

determined “whether the proceeding can continue in [the party’s]
absence, or whether [the party] is indispensable pursuant to
Rule 19(b) and the action must be dismissed.”
B.

Id.

Analysis

In its motion, Wells Fargo argues that Mr. Piotrowski’s
complaint must be dismissed because he failed to join his wife,
Iwona Pitorwoski, as a party.

Wells Fargo notes that both

deeds of trust and the Special Forbearance Agreement “reflect
9

that Mrs. Piotrowski was a co-borrower on the [mortgage loan in
question],” such that complete relief cannot be afforded in her
absence.

(ECF

No.

Piotrowski

contends

11,
that

at

7-8).

Mrs.

In

his

Piotrowski

opposition,

is

not

a

Mr.

necessary

party because, pursuant to the doctrine of collateral estoppel,
this court’s factual and legal conclusions would bind her in any
subsequent proceedings.
Piotrowski
added

as

represents
an

(ECF No. 14, at 12).
that

additional

representation,

leave

to

Mrs.

named

Piotrowski

is

willing

In

light

granted

so

plaintiff.

amend

will

be

Nonetheless, Mr.
to

be

of

this

that

Mr.

Piotrowski can join Mrs. Piotrowski as an additional plaintiff,
and the question of whether she is a necessary or indispensable
party under Rule 19 will not be reached.
III. Motion to Dismiss Pursuant to Rule 12(b)(6)
A.

Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).
10

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

847

(4th

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
11

that

requires

the

reviewing

court

experience and common sense.”

to

draw

on

its

judicial

Id.

Allegations of fraud are subject to a heightened pleading
standard under Rule 9(b).

Harrison, 176 F.3d at 783–84.

Rule

9(b) states that “in alleging a fraud or mistake, a party must
state

with

fraud

or

particularity
mistake.

the

circumstances

Malice,

intent,

constituting

knowledge,

and

conditions of a person’s mind may be alleged generally.”

the
other
Such

allegations typically “include the ‘time, place and contents of
the false representation, as well as the identity of the person
making the misrepresentation and what [was] obtained thereby.’”
Superior

Bank,

F.Supp.2d

298,

F.S.B.
313–14

v.

Tandem

(D.Md.

2000)

Nat’l

Mortg.,

(quoting

Inc.,

Windsor

Inc. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md. 1983)).

197

Assocs.,
In cases

involving concealment or omissions of material facts, however,
meeting Rule 9(b)’s particularity requirement will likely take a
different form.

See Shaw v. Brown & Williamson Tobacco Corp.,

973 F.Supp. 539, 552 (D.Md. 1997) (recognizing that an omission
likely “cannot be described in terms of the time, place, and
contents of the misrepresentation or the identity of the person
making

the

misrepresentation”

(internal

quotations

omitted)).

The purposes of Rule 9(b) are to provide the defendant with
sufficient notice of the basis for the plaintiff’s claim; to
protect

the

defendant

against

frivolous

12

suits;

to

eliminate

fraud actions where all of the facts are learned only after
discovery; and to safeguard the defendant’s reputation.

See

Harrison, 176 F.3d at 784.
B.

Analysis

Wells Fargo contends that, when Mr. Piotrowski’s claims are
“measured

on

an

individualized

basis,”

each

count

of

the

complaint must be dismissed because (1) the conduct complained
of is not actionable under the statutes cited or (2) the factual
allegations are insufficient to meet Mr. Piotrowski’s pleading
burden.
Wells

(ECF No. 11, at 1-6).
Fargo’s

evidence

arguments

extrinsic

information

is

to

Mr. Piotrowski responds that

inappropriately
the

disregarded,

complaint
the

rely

on

facts

and

and

that,

when

complaint

pleads

sufficient

facts to support each count asserted therein.

such

Mr. Piotrowski

alternatively requests leave to amend if any of his claims are
held to be deficient.

As a second alternative, Mr. Piotrowski

asks for consideration of the motion to be deferred pending
additional

discovery

Fed.R.Civ.P.

56(d)

seeks to discover.

and

submits

attesting

to

a
the

certification
specific

pursuant

to

information

he

(See ECF No. 14, at 12 & ECF No. 14-1).

Because Wells Fargo is not moving for summary judgment but
instead

seeks

to

test

the

sufficiency

of

the

complaint’s

allegations pursuant to Rule 12(b)(6), it is not appropriate to
defer consideration of its motion under Rule 56(d).
13

Rather,

each

of

Mr.

Piotrowski’s

claims

will

be

analyzed

on

an

individualized basis, and the allegations of the complaint will
be disregarded only where they conflict with properly considered
exhibits.

See Fare Deals, Ltd. v. World Choice Travel.com,

Inc.,

F.Supp.2d

180

678,

683

(D.Md.

2001)

(“When

the

bare

allegations of the complaint conflict with any exhibits or other
documents,

whether

attached

or

adopted

by

reference,

the

exhibits or documents prevail.”).5
1.

Count I – Equal Credit Opportunity Act

The ECOA “contain[s] broad anti-discrimination provisions
that ‘make it unlawful for any creditor to discriminate against
any applicant with respect to any credit transaction on the
basis of race, color, religion, national origin, sex or marital
status, or age.’”

Capitol Indem. Corp. v. Aulakh, 313 F.3d 200,

202 (4th Cir. 2002) (quoting 15 U.S.C. § 1691(a)(1)).

5

The ECOA —

Although Mr. Piotrowski purports to assert claims on
behalf of a putative class of homeowners, this case has not been
certified as a class action under Fed.R.Civ.P. 23.
Therefore,
each count of the complaint must be examined to determine
whether Mr. Piotrowski himself states a claim for relief in
accordance with the pleading requirements set forth in Rules
8(a) and 9(b).
See, e.g., Epps v. JPMorgan Chase Bank, N.A.,
No. WMN–10–1504, 2012 WL 5250538, at *2 (D.Md. Oct. 22, 2012)
(“[Plaintiff’s] claims cannot be ‘typical’ within the meaning of
Rule 23(a)(3) if she does not have a claim herself[.]”);
Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1170 (3d Cir.
1987) (“[W]e find no abuse of discretion in the district court’s
refusal to consider certification of a class before determining
whether the named plaintiff, and a fortiori any putative class
which the named plaintiff might properly seek to represent, had
a federal cause of action.”) (internal citations omitted).
14

along with its accompanying Regulation B, 12 CFR § 202 et seq. —
also

establishes

certain

notification

requirements

that

creditor must satisfy.
Relevant here, Section 1691(d) of the ECOA provides that:
(1) Within thirty days (or such longer
reasonable time as specified in regulations
of the Bureau for any class of credit
transaction) after receipt of a completed
application for credit, a creditor shall
notify the applicant of its action on the
application.
(2) Each applicant against whom adverse
action is taken shall be entitled to a
statement of reasons for such action from
the creditor. A creditor satisfies this
obligation by —
(A) providing statements of reasons in
writing as a matter of course to
applicants
against
whom
adverse
action is taken; or
(B) giving
written
notification
of
adverse
action
which
discloses
(i) the applicant’s right to a
statement of reasons within thirty
days after receipt by the creditor
of a request made within sixty days
after
such
notification,
and
(ii) the identity of the person or
office from which such statement
may be obtained. Such statement may
be given orally if the written
notification advises the applicant
of his right to have the statement
of reasons confirmed in writing on
written request.
15 U.S.C. § 1691(d)(1)-(2).

15

a

Before

turning

to

whether

Mr.

Piotrowski’s

specific

allegations state one or more plausible claims under the ECOA,
it is necessary to resolve the parties’ dispute about whether
Subsections (d)(1) and (d)(2) impose distinct requirements on
creditors.

According to Mr. Piotrowski, the Subsections are

independent provisions that can give rise to separate causes of
action.

(ECF No. 14, at 21).

Thus, in his opposition, Mr.

Piotrowski construes the complaint as alleging two types of ECOA
violations:

(1) Wells Fargo’s failure to provide timely notice

of its action in response to each of his three modification
requests, in violation of Subsection 1691(d)(1); and (2) Wells
Fargo’s failure to provide an explanation for declining each of
his

loan

modification

1691(d)(2).6

requests,

in

violation

of

Subsection

Wells Fargo, by contrast, argues that Subsection

6

In the complaint, Mr. Piotrowski appears to allege that
Wells Fargo also violated the ECOA by failing to evaluate his
loan modification requests “in a manner required by the Md. Code
Regs. 09.03.06.20.”
(ECF No. 1 ¶ 68).
The cited regulation
establishes a duty of good faith and fair dealing upon
“licensees” in connection with, inter alia, the servicing of a
mortgage loan. See Md. Code Regs. 09.03.06.20. As Wells Fargo
points out, however, the regulation does not apply to any person
“specifically exempt from licensure under Financial Institutions
Article, § 11-502, Annotated Code of Maryland.” Md. Code Regs.
09.03.06.01.
In other words, the duty of good faith and fair
dealing does not apply to “[a]ny bank, trust company, savings
bank, savings and loan association, or credit union incorporated
or chartered under the laws of this State or the United States
or any other-state bank having a branch in this State.”
Md.
Code Ann., Fin. Inst. § 11-502.
Moreover, “[e]nforcement of
[Md. Code Regs. 09.03.06.20] . . . is committed exclusively to
16

1691(d) imposes a single obligation on creditors – namely, to
provide notice of any adverse action taken on an application for
credit.

According

to

Wells

Fargo,

the

complaint

fails

to

establish that this single obligation was ever triggered because
the

complaint

does

not

allege

that

Wells

Fargo

ever

took

“adverse action” on any of Mr. Piotrowski’s loan modification
requests.

(ECF No. 17, at 9).

Mr. Piotrowski’s reading of the ECOA is consistent with the
statute’s
impose

express

separate

1691(d)(1),

a

language,

as

Subsections

obligations

on

creditors.

creditor

“must

whatever that action may be.”

provide

(d)(1)

notice

and

Under
of

(d)(2)

Subsection

any

action,

Ortega v. Wells Fargo Bank, N.A.,

No. 3:11cv01734, 2012 WL 275055, at *4 (N.D.Ohio Jan. 31, 2012)
(agreeing that Subsections (d)(1) and (d)(2) “require distinct
actions” by a creditor).

Thus, a plaintiff states a claim under

Subsection (d)(1) by alleging that a creditor “failed to provide
timely notice in response” to the plaintiff’s application for
credit.

Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 10–

3517, 2011 WL 3476994, at *16 (D.Md. Aug. 8, 2011).
Subsection 1691(d)(2), by contrast, speaks to the content
that must be included in a creditor’s notice to an applicant, if

the Commissioner of Financial Regulation.” Zervos v. Ocwen Loan
Servicing, LLC, No. 1:11–cv–03757–JKB, 2012 WL 1107689, at *6
(D.Md. Mar. 29, 2012) (citing Md. Code Regs. 09.03.06.16).
17

the action taken is an adverse one.
at *4.
a

See Ortega, 2012 WL 275055,

In order to state a claim under Subsection 1691 (d)(2),

plaintiff

must

allege

both

(1)

that

the

creditor

took

an

adverse action on his application and (2) that the creditor
provided

an

Coulibaly,

insufficient
2011

WL

explanation

3476994,

at

for

*16-17.

that

action.

Mr.

See

Piotrowski’s

allegations regarding his three loan modification requests will
be analyzed under each Subsection.
a.

First Loan Modification

With
complaint

respect
fails

to

to

the

state

First
a

Modification

claim

under

Request,

either

the

Subsection

1691(d)(1) or Subsection 1691(d)(2).
As detailed above, Mr. Piotrowski alleges that he submitted
his First Modification Request on an unspecified date in January
2011.7

Although he conclusorily alleges that Wells Fargo “never

provided [him] with a written statement of denial of his Frist
Modification Request” (ECF No. 1, at 10 ¶ 33), Mr. Piotrowski
also avers that Wells Fargo informed him on February 7, 2011
that he was approved for a Special Forbearance Agreement, which

7

In its reply, Wells Fargo states that “[t]he Plaintiff’s
first application for a modification was allegedly complete on
January 26, 2011.”
(ECF No. 17, at 6).
The paragraph of the
complaint that Wells Fargo cites to, however, actually alleges
that Wells Fargo “confirmed” to Mr. Piotrowski on or about
January 26, 2010, that it “had all the documentation it needed
for the First Modification Request.” (ECF No. 1 ¶ 25).
18

gave him the option of paying a reduced mortgage payment of
$1,657.79 for the months of March, April, and May 2011, during
which time Wells Fargo would consider modifying his loan “as he
had applied.”

(Id. ¶ 28).

The Piotrowskis signed the Special

Forbearance Agreement on February 18.
These

allegations

establish

(ECF No. 11-3).

that

Wells

Fargo

provided

a

response to the First Modification Request on February 7, 2012,
by sending a counteroffer, the Special Forbearance Agreement.
Notably, however, Mr. Piotrowski fails to plead the specific
date

on

which

he

submitted

his

completed

First

Modification

Request, but instead generally avers that it was “in January
2011.”

(ECF No. 1 ¶ 24).

pleaded

allegations

Absent this critical fact, the well-

do

not

establish

more

than

the

mere

possibility that Wells Fargo violated the ECOA’s 30-day notice
requirement by waiting to send notice of its counteroffer until
February

7,

Subsection

2011.

Thus,

1691(d)(1)

Mr.

claim

Piotrowski

in

fails

connection

to

with

state

the

a

First

Modification Request.
As

to

Subsection

whether

the

1691(d)(2),

complaint

it

is

alleges

significant

a

that,

violation

of

pursuant

to

Regulation B, there is no “adverse action” under the ECOA when
“the

creditor

makes

a

counteroffer

(to

grant

credit

in

a

different amount or on other terms) and the applicant . . .
expressly

accepts

the

credit
19

offered.”

12

CFR

§ 202.2(c)(2)(ii).8

Wells

Fargo’s

extension

of

the

Special

Forbearance Agreement shortly after its receipt of the First
Modification Request, followed by the Piotrowskis’ acceptance
thereof, fits squarely within this provision.

Because there was

no

obligation

“adverse

action,”

Wells

Fargo

had

no

under

Subsection 1691(d)(2) in connection with the First Modification

8

Regulation B defines “adverse action” as follows:
(1) The term means:
(i) A refusal to grant credit in
substantially
the
amount
or
on
substantially the terms requested in an
application unless the creditor makes a
counteroffer (to grant credit in a
different amount or on other terms) and
the applicant uses or expressly accepts
the credit offered;
(ii) A termination of an account or an
unfavorable change in the terms of an
account that does not affect all or
substantially all of a class of the
creditor’s accounts; or
(iii) A refusal to increase the amount
of credit available to an applicant who
has made an application for an increase.
(2) The term does not include:
. . .
(ii) Any action or forbearance relating
to an account taken in connection with
inactivity, default, or delinquency as
to that account; . . .

12 CFR § 202.2(c)(1)-(2).
20

Request.

Accordingly,

both

of

the

ECOA

claims

asserted

in

connection with Mr. Piotrowski’s First Modification Request will
be dismissed.
b.

Second Modification Request

With
complaint

respect
states

to
a

the

Second

plausible

Modification

ECOA

claim

Request,

under

the

Subsection

1691(d)(1), but not under Subsection 1691(d)(2).
As to Subsection 1691(d)(1), Mr. Piotrowski alleges that
he submitted his completed Second Modification Request on April
26, 2011, and that Wells Fargo failed to provide him “with a
written

statement

of

denial,”

either

before

sending

him

the

Notice of Default on May 15, 2011 or at any point thereafter.
Based on this alleged failure by Wells Fargo to provide any
notice (timely or otherwise) of its alleged declination, the
complaint

states

a

plausible

ECOA

claim

under

Subsection

1691(d)(1) as to the Second Modification Request.
By contrast, the allegations do not establish that Wells
Fargo

violated

Subsection

1691(d)(2)

in

connection

with

the

Second Modification Request as Mr. Piotrowski admits that he was
in default at the time when the application was purportedly
denied.

Regulation B specifically defines “adverse action” to

exclude “any action or forbearance relating to an account taken
in connection with inactivity, default, or delinquency as to
that account.”

12 C.F.R. § 202.2(c)(2)(ii).
21

Pursuant to this

provision,

numerous

courts

have

held

that

a

plaintiff’s

voluntary acceptance of an agreement that temporarily reduces
the amount of his monthly mortgage payment places him in default
and relieves a creditor’s obligation to comply with Subsection
1691(d)(2)’s
e.g.,

adverse

Ortega,

voluntarily
temporary

action

2012

WL

defaulted
loan

notification

275055,

on

her

modification

at

*5

requirement.
(where

mortgage

loan

agreement,

the

the

by

See,

plaintiff

accepting

servicer

had

a
no

obligation to provide an adverse action notification when it
denied

the

plaintiff’s

permanent

loan

modification

request);

Davis v. CitiMortgage, Inc., No. 10–12136, 2011 WL 891209, at
*2-3 (E.D.Mich. Mar. 11, 2011) (same).

The default status of a

consumer is determined at the time the creditor takes action
with

respect

to

the

consumer,

consumer applies for credit.

rather

than

at

the

time

the

Id.

In the complaint, Mr. Piotrowski avers that he accepted the
Special Forbearance Agreement and made his March, April, and May
2011 mortgage payments accordingly.

The terms of the Special

Forbearance

Mr.

Agreement

expressly

put

Piotrowski

on

notice

that his loan “w[ould] not be contractually current” if he paid
in accordance with the payment schedule provided.
3).

(ECF No. 11-

Mr. Piotrowski further avers that he made a cure payment

representing “the difference between his regular payment and the
Special

Forbearance

Agreement

payments”
22

on

or

about

May

26,

2011.

(ECF No. 1, at 10 ¶ 34).

By expressly alleging his

acceptance of the Special Forbearance Agreement, his payments
pursuant thereto, and his need to make a cure payment on May 26,
2011,

Mr.

Piotrowski

admits

that

he

was

in

default

on

his

mortgage loan during the relevant time period – i.e., between
April 26, 2011 (the date he submitted the Second Modification
Request) and May 15 (the date before which Wells Fargo allegedly
declined the Second Modification Request).

See, e.g., Davis,

2011 WL 891209, at *3 (“[B]y alleging that she paid reduced
monthly payments under the Trial Plan, Plaintiff admits that she
was not current on her mortgage loan.”).

Thus, based on the

facts alleged, Wells Fargo had no obligation under Subsection
1691(d)(2) to provide a “statement of reasons” explaining its
purported declination of Mr. Piotrowski’s Second Modification
Request.
c.

Third Modification Request

Finally,

as

to

the

Third

Modification

Request,

the

complaint states a plausible ECOA claim under both Subsections
1691(d)(1) and 1691(d)(2).
Mr.

Piotrowski

alleges

that

he

submitted

the

completed

Third Modification Request on or about May 25, 2011, and that
Wells

Fargo

denial.
by

never

provided

him

with

a

written

(ECF No. 1, at 10 ¶ 29; id. at 12 ¶ 35).

virtue

of

Wells

Fargo’s

alleged
23

failure

to

response

or

Here again,
provide

any

response,

the

1691(d)(1)

as

complaint
to

the

states

Third

a

claim

Modification

under

Subsection

Request.

As

to

Subsection 1691(d)(2), Wells Fargo’s argument that inaction does
not constitute “adverse action” for purposes of the ECOA is not
persuasive.

Failing to act on an application for credit is a de

facto denial, such that Wells Fargo’s alleged inaction on the
Third

Modification

Request

triggered

the

adverse

action

notification obligations imposed by Subsection 1691(d)(2).
In

sum,

1691(d)(1)

Mr.

claims

Piotrowski
related

Modification Requests.

can
to

proceed
the

with

Second

his

and

Subsection
Third

Loan

Because the complaint fails to allege

the specific date on which Mr. Piotrowski submitted his First
Modification Request, the Subsection 1691(d)(1) claim concerning
that

application

will

be

Plaintiff’s right to amend.

dismissed

without

prejudice

to

Likewise, because the complaint

does not allege that Wells Fargo took any “adverse action” in
connection with the First or Second Modification Requests, Mr.
Piotrowski can proceed with a Subsection 1691(d)(2) claim only
as to the Third Modification Request.9

9

In the complaint’s class allegations, Mr. Piotrowski avers
that one of the questions common to the putative class members
is “whether Wells Fargo’s conduct violates . . . state law
requirements relating to Equal Credit.”
(ECF No. 1 ¶ 42(d)).
In Count III, Mr. Piotrowski also alleges that Wells Fargo’s
compliance with the “Maryland Equal Credit Protection Act” was a
precondition to its right to foreclose on the Property.
(Id.
24

2.

Count II – Maryland Consumer Debt Collection Act

The

MCDA

“prohibits

debt

collectors

from

utilizing

threatening or underhanded methods in collecting or attempting
to collect a delinquent debt.”

Bradshaw v. Hilco Receivables,

LLC, 765 F.Supp.2d 719, 731-32 (D.Md. 2011) (citing Md. Code
Ann., Com. Law § 14-202).

Relevant here, debt collectors “may

not . . . [c]laim, attempt, or threaten to enforce a right with
knowledge that the right does not exist.”

Md. Code Ann., Com.

Law § 14-202(8).
Mr. Piotrowski alleges that Wells Fargo violated the MCDA
by “threatening” to foreclose on the Property “with knowledge
that [its] right did not exist under Maryland or Federal law
until [it] complied with the ECOA, the Maryland Equal Credit
Protection Act, and Md. Code Regs. 09.03.06.20.”
¶ 79).

(ECF No. 1

Wells Fargo argues that the Notice of Default accurately

described

its

right

to

foreclose

on

the

Property,

which

is

established by the deeds of trust and is not dependent on its
compliance with any of the statutes or regulations cited by Mr.
Piotrowski.

Wells Fargo’s position is persuasive.

In Maryland, the right to initiate foreclosure proceedings
typically arises upon the borrower’s default.

See, e.g., Pac.

¶ 79).
These isolated references cannot be read to assert a
separate cause of action under the Maryland Equal Credit
Opportunity Act, Md. Code Ann., Com. Law § 12-701 et seq.
25

Mortg. & Inv. Group, Ltd. v. LaGuerre, 81 Md.App. 28, 40-41
(1989) (“[W]hen a petition to foreclose a mortgage pursuant to
an assent to a decree is filed, stating simply that the mortgage
is

in

default,

such

petition

is

sufficient

to

sustain

the

foreclosure proceeding so long as any one of the provisions of
the mortgage, the violation of which can constitute a default
under the terms of the mortgage, is in default . . . generally
the sale may not be enjoined unless it is determined that none
of the pertinent provisions of the mortgage are in default.”);
Marchese v. JPMorgan Chase Bank, N.A., No. GLR-12-1480, 2013 WL
136427,

at

foreclose

*9
came

(D.Md.
about

Jan.

8,

when

2013)

(“[Lender’s]

[plaintiff]

right

defaulted

to

on

his

mortgage[.]”); Stewart v. Bierman, 859 F.Supp.2d 754, 770 (D.Md.
2012) (dismissing MCDCA claim where the plaintiffs “concede they
were

in

default

on

their

mortgage

payments”).

Thus,

with

respect to mortgage loans that are not insured by the federal
government,

a

servicer’s

compliance

with

statutes

and

regulations is generally not a condition precedent to initiating
foreclosure proceedings once a borrower defaults.

See Wincopia

Farm, LP v. Goozman, 188 Md.App. 519, 531-32 (2009); Stovall v.
SunTrust Mortg. Inc., No. RDB-10-2836, 2011 WL 4402680, at *9
(D.Md. Sept. 20, 2011) (servicer’s alleged non-compliance with
federal loan modification guidelines did not change the fact

26

that its “right to foreclose came about when [the plaintiff]
defaulted on her mortgage”).10
Here,

as

discussed,

the

allegations

in

the

complaint

establish that Mr. Piotrowski accepted the terms of the Special
Forbearance Agreement; submitted his payments for March, April,
and May 2011 in accordance with the schedule set forth in that
agreement; and made a cure payment on or about May 26, 2011.

In

so pleading, Mr. Piotrowski admits to defaulting voluntarily on
his mortgage loan and remaining in default until on or about May
26, 2011.
that

she

See, e.g., Davis, 2011 WL 891209, at *3 (in alleging
paid

reduced

monthly

payments

under

a

trial

loan

modification plan, the plaintiff also admitted that “she was not
current on her mortgage loan”).

Mr. Piotrowski thus also admits

that he was in default as of May 15, 2011, when Wells Fargo sent
the Notice of Default.

That notice advised the Piotrowskis

10

By contrast, a mortgagor of a loan that is insured by the
Fair
Housing
Administration
(“FHA”)
may
seek
to
enjoin
foreclosure proceedings based on the mortgagee’s violation of
regulations promulgated by the U.S. Department of Housing and
Urban Development, even if the mortgagor is in default, where
such regulations are “alluded to in the parties’ FHA-prescribed
form deed of trust.” Wells Fargo Home Mortg., Inc. v. Neal, 398
Md. 705, 728 (2007) (“[U]nder principles of equity, a
mortgagee’s commencement of a foreclosure proceeding on an FHAinsured mortgage, without first having adhered to the mandatory
HUD loss mitigation regulations, may invalidate the mortgagee’s
declaration of default.”). Here, the complaint does not allege
that Mr. Piotrowski’s mortgage loan was FHA-insured, nor do the
deeds of trust “allude to” any of the statutes or regulations
relied on by Mr. Piotrowski in his complaint.
27

(1) that their loan was in default; (2) that they had the option
to make a cure payment by June 29, 2011; and (3) that, in the
event

they

failed

to

cure,

Wells

Fargo

would

“proceed

with

acceleration” and also might “take steps to terminate [their]
ownership in the property by a foreclosure proceeding.”
No. 11-4).

(ECF

The Notice of Default thus accurately described

Wells Fargo’s remedies under Paragraph 22 of the Piotrowskis’
primary deed of trust.

(See ECF No. 11-1).

Wells

the

Fargo

connection
such

violated

with

violations

Mr.

or

Piotrowski’s

would

foreclosure rights.11

ECOA

have

no

its

loan

Even assuming that
state

analogue

modification

bearing

on

its

in

requests,

contractual

Accordingly, the complaint fails to state

a claim under the MCDCA in connection with the Notice of Default
because
claimed,
foreclose

Mr.

Piotrowski

attempted,
with

or

cannot

establish

threatened

knowledge

that

to

the

that

enforce
right

Wells
its

did

Fargo

right

not

to

exist.

Accordingly, Count II will be dismissed with prejudice.

11

In arguing that the complaint states a claim under the
MCDCA, Mr. Piotrowski urges the court to take judicial notice of
a consent order entered into between Wells Fargo and the federal
government.
(ECF No. 14, at 23).
Mr. Piotrowski fails,
however, to explain how this document has any bearing on whether
the Notice of Default accurately described Wells Fargo’s
foreclosure rights.
28

3.

Count III – Maryland Consumer Protection Act

The MCPA, codified at Md. Code Ann., Com. Law §§ 13–101, et
seq.,

“was

intended

to

provide

minimum

protection of consumers in [Maryland].”
Corp., 397 Md. 108, 140 (2007).

standards

for

the

Lloyd v. Gen. Motors

The Act is intended to be

liberally construed in order to achieve its consumer protection
objectives.

See State v. Cottman Transmissions Sys., Inc., 86

Md.App. 714, 743 (1991).
Under the MCPA, “a person may not engage in any unfair or
deceptive

trade

practice”

related

to

“[t]he

extension

consumer credit” or the “collection of consumer debts.”
Code

Ann.,

Com.

Law

§

13–303.

Section

13–301(1)

of
Md.

defines

“[u]nfair or deceptive trade practices” to include, inter alia:
(1) any

“[f]alse,

falsely

disparaging,

or

misleading

oral

or

written statement, visual description, or other representation
of

any

kind

which

has

the

capacity,

tendency,

or

effect

of

deceiving or misleading consumers”; (2) any “[f]ailure to state
a material fact if the failure deceives or tends to deceive”;
and

(3)

any

violation

including the MCDCA.

of

certain

enumerated

state

statutes,

To assert a claim for false or misleading

statements under the MCPA, Mr. Piotrowski must allege not only
that Wells Fargo made a false or misleading statement, but also
that the statement caused him an actual loss or injury.
Citaramanis v. Hallowell, 328 Md. 142, 152 (1992).
29

See

The complaint alleges that the following acts or omissions
by

Wells

Fargo

“had

the

capacity,

tendency

or

effect

of

deceiving Mr. Piotrowski” in violation of the MCPA:

(1) the

threat

of

of

foreclosure

proceedings;

(2)

the

charging

fees

notwithstanding Mr. Piotrowski’s acceptance of, and compliance
with, the Special Forbearance Agreement; and (3) an unspecified
collection of misrepresentations and failures to disclose.

(See

ECF No. 1 ¶¶ 81-94).12
a.

“Threat” of Foreclosure

Wells
foreclosure

Fargo’s

alleged

action”

does

“threat

not

state

of
a

prosecution

claim

under

of

the

a

MCPA

because, based on the facts alleged, it cannot be viewed as an
unfair or deceptive practice.

As already discussed, in light of

Mr. Piotrowski’s admission that he voluntarily defaulted on the
loan by accepting the Special Forbearance Agreement, the Notice
of Default accurately explained the potential consequences of
leaving the default uncured.
primary

deed

possibility

of

that

trust,

Under the express terms of the

those

foreclosure

consequences

proceedings

12

would

included
be

the

initiated.

In his opposition, Mr. Piotrowski argues, for the first
time, that Wells Fargo also violated a separate provision of the
MCPA, which provides that a mortgage loan servicer “shall
respond in writing to each written complaint or inquiry within
15 days if requested.”
(ECF No. 14, at 38 (citing Md. Code
Ann., Com. Law § 13-316(c)(2)). As Wells Fargo contends in its
reply, however, the complaint cannot be construed as asserting a
claim under this provision. (ECF No. 17, at 13).
30

Therefore,

the

Notice

of

Default

could

not

have

misled

or

deceived Mr. Piotrowski.
b.

“Bogus” Late Fees

The

allegation

that

Wells

Fargo

charged

Mr.

Piotrowski

$128.43 in late fees, even though he accepted and complied with
the terms of the Special Forbearance Agreement, also does not
state a claim under the MCPA.

The Special Forbearance Agreement

expressly put the Piotrowskis on notice that, upon successful
completion of the Agreement, “they may still have outstanding
payments

and

fees.”

(ECF

No.

11-3).

Although

the

Special

Forbearance Agreement stated that “[a]ny outstanding payments
and fees will be reviewed for a loan modification,” it did not
contain any promise to grant a permanent loan modification that
would forgive such fees.

(Id.) (emphasis added).

In light of

this language, the late fees allegedly charged by Wells Fargo to
Mr.

Piotrowski

cannot

constitute

an

“unfair

or

deceptive

practice” within the meaning of the MCPA.
c.

Misrepresentations and Material Omissions

When the allegations regarding the “bogus” late fees and
the “threat” of foreclosure are excluded, a close reading of the
complaint reveals only a handful of affirmative representations
made

by

Wells

Fargo:

(1) a

statement

by

an

unnamed

representative on January 26, 2010 informing Mr. Piotrowski that
his First Modification Request had been received and “approved”;
31

(2) the representation by Wells Fargo in the Special Forbearance
Agreement

delivered

on

February

7,

2011

that

Mr.

Piotrowski

would continue to be considered for a loan modification “as he
had applied”; (3) a request by Ms. Sanders on April 25, 2011, to
resubmit his modification request; (4) a statement by an unnamed
Wells Fargo representative on August 11, 2011, informing Mr.
Piotrowski that his Third Modification Request had been received
and forwarded to the underwriting division for review; and (5) a
statement by Ms. Greenwall on September 15, 2011, promising Mr.
Piotrowski

that

he

would

receive

an

update

on

Modification Request no later than September 19.

his

Third

With respect

to omissions, the complaint generally alleges that, despite Mr.
Piotrowski’s

regular

communications

with

Wells

Fargo

and

its

representatives, Wells Fargo never informed him, either orally
or in writing, that his loan modification requests were simply
being

ignored,

thus

material facts.”
Wells
allegations
availing.

constituting

a

“fail[ure]

to

disclose

(ECF No. 1 ¶ 85).

Fargo
fail

advances
to

state

four
an

arguments

MCPA

claim,

as

to

none

of

why

these

which

are

First, Wells Fargo contends that Mr. Piotrowski fails

to allege that Wells Fargo or its representatives ever made an
objectively

false

statement.

Under

the

MCPA,

statements do not need to be false to be actionable.
representation

that

is

merely
32

misleading

can

however,
Rather, a

constitute

an

unfair

or

deceptive

trade

practice.

As

noted

in

Mr.

Piotrowski’s opposition, the gravamen of his MCPA claim is that
Wells Fargo’s omissions and misrepresentations “gave the clear
impression
multiple

to

[him]

requests

that

for

a

[Wells
loan

Fargo]

would

modification”

consider

even

his

though

servicer actually had chosen to “simply ignore[]” them.
No. 14, at 28).
actions

did,

the
(ECF

Thus, Mr. Piotrowski alleges that Wells Fargo’s

in

fact,

deceive

him

into

believing

that

his

modification requests were being given serious consideration.
Second, Wells Fargo asserts that the MCPA allegations in
the

complaint

heightened

sound

pleading

in

fraud

yet

standard.

The

do

not

meet

complaint

Rule

9(b)’s

provides

ample

details about the dates, times, and contents of Wells Fargo’s
communications with Mr. Piotrowski.

Although it is true that

Mr. Piotrowski pleads Wells Fargo’s purported material omissions
in less specific terms, Rule 9(b)’s particularity requirements
are

relaxed

in

this

context

because

an

omission

typically

“cannot be described in terms of the time, place, and contents
of the misrepresentation or the identity of the person making
the misrepresentation.”
the

substance

of

the

Shaw, 973 F.Supp. at 552.
alleged

omissions

is

clear:

Moreover,
despite

repeatedly communicating with Mr. Piotrowski, Wells Fargo failed
to

disclose

that

it

was

not

actually

considering

Mr.

Piotrowski’s requests but had instead summarily ignored them.
33

This is sufficient to meet the relaxed Rule 9(b) standard as it
provides

Wells

Fargo

with

notice

for

the

basis

of

Mr.

Piotrowski’s MCPA claim.
Third, Wells Fargo contends that violations of the ECOA and
its state law counterpart cannot give rise to a claim under the
MCPA.

Section

13-301(14)

of

the

MCPA

establishes

that

a

violation of certain statutes constitutes a per se violation of
the MCPA.

As Wells Fargo notes, the ECOA is not specifically

enumerated in this section.

It is not clear, however, why this

omission necessarily means that facts giving rise to an ECOA
violation cannot also serve as the basis for an MCPA claim,
provided the conduct satisfies some other prong of the statute.
To the contrary, the first statute listed in Section 13-301(14)
is “[t]his title,” i.e., a violation of the MCPA itself.
Finally, Wells Fargo argues that Mr. Piotrowski fails to
allege

any

cognizable

damages

attributable

alleged deceptive trade practices.

to

Wells

Fargo’s

As noted, Mr. Piotrowski

avers that he suffered a variety of damages as a result of Wells
Fargo’s alleged conduct, including damage to his credit; lost
time from work and legal fees to resolve his dispute without the
need

for

anxiety

litigation;
and

insomnia.

and

emotional
Although

it

distress
is

not

in

the

clear

form
that

of
Mr.

Piotrowski will be able to prove that these damages were the
result of being deceived into believing that Wells Fargo was
34

actually considering his modification requests (as opposed to,
for

example,

Wells

Fargo’s

ultimate

refusal

to

grant

Mr.

Piotrowski’s request for a permanent loan modification13), the
complaint’s damages allegations are sufficient to survive a Rule
12(b)(6) motion.

See, e.g., Marchese, 2013 WL 136427, at *12

(plaintiff sufficiently pled actual injury by alleging, inter
alia, that he suffered emotional and physical distress; attorney
fees; and damage to his credit); Allen, 2011 WL 3425665, at *10
(plaintiff’s allegations of “damage to [her] credit score [and]
emotional damages” sufficient to allege “an actual injury or
loss as a result of a prohibited practice under the MCPA”).
In sum, Count III will be dismissed, with prejudice, to the
extent Mr. Piotrowski seeks recovery under the MCPA for being
charged with $128.43 in late fees and being “threatened” with
foreclosure.
claim

to

Mr. Piotrowski can, however, proceed with MCPA
the

extent

it

alleges

that

Wells

Fargo’s

representations and omissions misled him into believing that he
was actually being considered for a permanent loan modification.

13

Although it seems likely that any damages Mr. Piotrowski
suffered are the result of being denied a permanent loan
modification as opposed to having been misled about the extent
of Wells Fargo’s consideration of his requests, none of Mr.
Piotrowski’s causes of action, as currently alleged, depend on
allegations that Wells Fargo violated federal loan modification
guidelines relating to the Home Affordable Modification Program
(“HAMP”). Thus, the parties’ arguments regarding the preemptive
effect of HAMP need not be reached.
35

4.

Count IV

The

MMFPA

- Maryland Mortgage Fraud Protection Act

generally

commit mortgage fraud.”

provides

that

“[a]

person

may

not

Md. Code Ann., Real Prop. § 7–402.

Relevant here, the statute defines mortgage fraud to include:
(1)
Knowingly
making
any
deliberate
misstatement, misrepresentation, or omission
during the mortgage lending process with the
intent
that
the
misstatement,
misrepresentation, or omission be relied on
by a mortgage lender, borrower, or any other
party
to
the
mortgage
lending
process . . . .
Id.

§

7–401(d)(1).

process”

to

origination,

The

include

statute
“[t]he

negotiation,

defines

“mortgage

solicitation,

servicing,

closing, and funding of a mortgage loan.”

lending

application,

underwriting,

signing,

Id. § 7–401(e)(2).

In the complaint, Mr. Piotrowski alleges that Wells Fargo
committed mortgage fraud in violation of the MMFPA by making
“deliberate

misstatements,

misrepresentations

and

omissions

during the mortgage lending process,” including by ignoring his
loan modification requests and by “commenc[ing] and carr[ying]
out” state foreclosure proceedings.
Wells

Fargo

asserts

that

Mr.

(ECF No. 1 ¶ 103).
Piotrowski’s

entire

MMFPA

claim fails because the definition of “mortgage lending process”
does not encompass post-origination collection and foreclosure
activities.
has

been

(ECF No. 17, at 16-18).

rejected

on

numerous

36

This argument, however,

occasions

by

courts

in

this

district.

See, e.g., Stovall, 2011 WL 4402680, at *10 (“[T]he

plain language of the [MMFPA] clearly countenances post-closing
servicing

activities[.]”);

Marchese,

2013

WL

136427,

at

*13

(relying on Stovall to reject argument that the MMFPA excludes
“loan servicing with regard to defaulting borrowers”).
Fargo’s

arguments

construction

do

regarding
not

legislative

warrant

a

intent

departure

and

from

Wells

statutory

these

prior

interpretations of the MMFPA.
Wells Fargo is nonetheless correct in observing that the
complaint does not include any factual allegations that Wells
Fargo ever initiated or completed foreclosure proceedings on the
Property owned by the Piotrowskis.
claim

will

be

dismissed

to

the

Thus, Mr. Piotrowski’s MMFPA
extent

it

relies

on

the

conclusory allegation that Wells Fargo improperly “commenced and
carried out” state foreclosure proceedings.
As to the allegations that Wells Fargo committed mortgage
fraud

by

failing

modification

to

requests,

respond
Wells

to

Mr.

Fargo’s

Piotrowski’s

arguments

are

loan

largely

duplicative of those advanced in connection with the MCPA claim.
Because
Fargo’s

Mr.

Piotrowski

alleged

states

an

representations

MCPA

claim

based

and

omissions

on

about

Wells
its

consideration of his loan modification requests, the complaint
also states an MMFPA claim based on the same conduct.

See

Marchese, 2013 WL 136427, at *14 (determining the sufficiency of
37

an MMFPA claim pursuant to Rule 12(b)(6) involves “the same
analysis” conducted for an MCPA claim).14
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendant Wells Fargo Bank, N.A., will be granted in part and
denied in part.

A separate Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

14

In its motion, Wells Fargo also asks that the first eight
pages of the complaint be stricken because they “contain a
diatribe of allegations relating to foreclosures which have
nothing to do with the claims advanced by the Plaintiff.” (ECF
No. 11, at 2). Rule 12(f) permits the court to “strike from a
pleading . . . any redundant, immaterial, impertinent, or
scandalous matter.” Rule 12(f) motions are disfavored, however,
and “should be denied unless the allegations ‘have no possible
relation to the controversy and may cause prejudice to one of
the parties.’” Graff v. Prime Retail, Inc., 172 F.Supp.2d 721,
731 (D.Md. 2001).
Although it does appear that many of the
allegations in the first portion of the complaint are irrelevant
to Mr. Piotrowski’s individual claims, it cannot be said that
they “have no possible relation to the controversy” or that
leaving them intact would somehow prejudice Wells Fargo. Thus,
Wells Fargo’s informal request to strike will be denied.
38