Ward et al v. Branch Banking and Trust et al

Filing 92

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/17/2016. (c/m 5/18/2016 nd2s, Deputy Clerk)

2016 til< '( 17 PH 6: 38
IN THE UNITED STATES DISTRICT COURf.::::':, Ci' r::::::.
(' :.".I',"",y,::FOR THE DISTRICT OF MARYLAND ",I , 'Lll' ,~,"-

PHILLIP WARD, ET AL.,
Plaintiffs,
v,

Civil Action No,: ELH- 13-1968

BRANCH BANKING & TRUST
COMPANY,
Defendant,
MEMORANDUM OPINION
Phillip and Deirdre Ward, the self-represented plaintiffs, filed suit in July 2013 against
defendants Branch Banking & Trust Company ("BB&T") and the Fisher Law Group, PLLC (the
"Fisher Law Group"), alleging five counts related to defendants' attempt to foreclose plaintiffs'
home in Glenn Dale, Maryland (the "Property"),

See ECF 2,1

Plaintiffs filed an Amended

Complaint in September 2013, ECF 14,
Plaintiffs' claims against the Fisher Law Group were dismissed in June 2014, along with
four of the five counts alleged against BB&T,

See ECF 28, Memorandum;

.

ECF 29, Order.

2

1 Plaintiffs filed suit in the Circuit Court for Prince George's County,
BB&T removed
the case to this Court, ECF 1, Notice of RemovaL The case was initially assigned to Judge
Alexander Williams, Jr, It was reassigned to Judge Catherine Blake in November 2013, and then
reassigned to me in December 2013,
2 The dismissals were without prejudice,
But, I stated that if plaintiffs did not move to
amend the Complaint within twenty-one days from the date of the Order, the dismissal would be
with prejudice, See ECF 29, As to BB&T, plaintiffs filed a Motion to Amend the Complaint
one day late, and failed to include a copy of the proposed Second Amended Complaint. See ECF
33, At the request of the Court, plaintiffs filed a proposed Second Amended Complaint as to
BB&T. See ECF 39, Order; ECF 43, Proposed Second Amended Complaint. Ultimately, by
Memorandum (ECF 61) and Order (ECF 62) of March 2, 2015, I denied plaintiffs' Motion to

Count II of the Amended Complaint (ECF 14) remains, alleging that B.B&T violated the Truth in
Lending Act ("TILA"), 15 U.S.C.

SS

1601 et seq., by failing to disclose the sale or transfer of

plaintiffs' mortgage loan within 30 days after BB&T acquired the loan.3 ECF 14 ~~ 30-31.
Now pending is BB&T's "Second Motion for Summary Judgment" (ECF 89), supported
by a memorandum of law (ECF 89-1) (collectively, the "Second Motion") and nine exhibits, all
filed either at ECF 89-2 or ECF 89-3.

Plaintiffs have filed an "Opposition to Defendant's

Second Motion for Judgment" (ECF 90), accompanied by a memorandum of law (ECF 90-2)
(collectively, the "Opposition"), an "Affidavit of Phillip Ward" (ECF 90-3),4 and eight exhibits
(ECF 90-4 through ECF 90-11).
submitted.

The exhibits duplicate, in part, exhibits that BB&T has

BB&T has filed a reply (ECF 91), accompanied by one exhibit (ECF 91-1), which

provides a more legible copy of an exhibit submitted with its Second Motion. See ECF 89-2 at
39.
The Second Motion has been fully briefed, and no hearing is necessary to resolve it. See
Local Rule 105.6. For the reasons that follow, I will grant the Second Motion.
I. Factual and Procedural BackgroundS
On January 27, 2015, BB&T filed a Motion for Summary Judgment with respect to
Count II. ECF 51 ("First Motion").

Based on the unsupported Declaration of Patrick Carper

Amend, because three of the proposed counts were barred by collateral estoppel, and the
remaining proposed count failed to state a claim upon which relief could be granted.
3 Plaintiffs maintain, incorrectly, ECF 90-2 at 3: "The case currently has several
outstanding TILA claims yet to be ruled upon."
4 Mr. Ward attests in his Affidavit (ECF 90-3) to the authenticity of plaintiffs' exhibits
and advances additional arguments in opposition to the Second Motion.

Because plaintiffs are self-represented, their submissions must be liberally construed.
Erickson v. Pardus, 551 U.S. 89,94 (2007).
S

-2-

(ECF 51-3), one ofBB&T's

executives, BB&T alleged that it acquired plaintiffs' loan before the

relevant TILA provision went into effect.

ECF 51-1 at 6-8. By Memorandum (ECF 68) and

Order (ECF 69) of August 4, 2015, 1 denied BB&T's First Motion, and permitted the parties to
conduct limited discovery as to when BB&T acquired plaintiffs' loan. In particular, I ruled that
Carper's Declaration contained a "seemingly bald conclusion that BB&T acquired plaintiftts']
loan in 2005" and did not permit the Court to "discern what personal experiences or business
.records" provided the basis for the Declaration. ECF 68 at 14.
The parties subsequently engaged in limited discovery. The Second Motion followed.
Plaintiffs acquired the Property in July 2005, with a loan from Southern Trust Mortgage,
LLC ("Southern").

ECF 89-2 at 8, Note.

On July 25, 2005, plaintiffs executed a Promissory

Note (the "Note") that encumbered the Property.

ECF 89-2 at 8-11, Note; see ECF 90-3,

Affidavit of Phillip Ward at 1 ~ 3. The Note was secured by a Deed of Trust. ECF 89-2 at 1332. On October 4, 2005, the Deed of Trust was recorded in the land records of Prince George's
County. Id. at 13.
BB&T maintains that it "purchased plaintiffs' Note from Southern on August 17, 2005."
ECF 89-1 at 3. In support of this contention, BB&T relies on two declarations provided by
BB&T employees and various business records that, according to BB&T, demonstrate that
BB&T acquired plaintiffs' mortgage on August 17,2005.

See id. at 2-5.

In particular, BB&T relies on the Declaration of Christina Powers, a "Liability and
Qualified Mortgage Risk Manager" in BB&T's "lending department."

ECF 89-2 at 2 ~ 1; see id.

at 2-6. Ms. Powers's duties include "quality assurance and risk-related issues associated with
BB&T's sale and purchase of mortgage loans on the secondary market, handling repurchase

-3-

obligations, compliance-related

issues for the sale and purchase of loans by BB&T, and title-

related issues associated with those loans." Jd. at 2 ~ I.
BB&T has also submitted the Declaration of Mary Elizabeth Schwiers (ECF 89-3 at 2-4),
Jd. at 2 ~

an "Investor Reporting Section Manager" in BB&T's "investor reporting department."

I. Ms. Schwiers is "responsible for ensuring that investors' loan accounts, including the receipt
and disbursement of payments, are handled appropriately, accurately and consistent with the
contractual obligations owed by BB&T to the investor." Jd.
As stated, BB&T contends that its business records show that it acquired plaintiffs'
mortgage in August 2005. First, BB&T submits that a "Funding Disbursement Sheet" confirms
that it acquired plaintiffs' mortgage on August 17, 2005.

See ECF 89-1 at 3. Ms. Powers's

Declaration provides, in relevant part, ECF 89-2 at 3 ~ 4: "When BB&T purchases a loan on the
secondary

market

through

a correspondent

lending

arrangement,

BB&T

provides

the

correspondent lender with a funding disbursement sheet indicating the amount BB&T is funding
to purchase the loan."

A "Funding Disbursement Sheet" prepared by Tina Wells concerning

"Philip L Ward" is date-stamped "8/17/05" and time-stamped "3 36 42 PM."

Jd. at 34. Ms.

Powers avers that Ms. Wells works in "BB&T's correspondent lending department."
at 3 ~ 4.

The "Funding Disbursement

"ORIGINATING
05."

Jd. at 89-2

Sheet" identifies "Southern Trust Mortgage" as the

COMPANY" and indicates that the "Total Amount Funded" was "$361,080

Jd. at 34. In relevant part, the "Funding Disbursement Sheet" states, id. (capitalized in

original): "THE ABOVE REFERENCED LOAN HAS BEEN PURCHASEDIFUNDED

AS OF

08/17/2005

YOUR

THE

FUNDS

HAVE

BEEN

WIREDITRANSFERRED

INSTRUCTIONS."

-4-

AS

PER

Second, BB&T maintains that a "Notice of Assignment, Sale or Transfer of Servicing
Rights" demonstrates that it acquired servicing rights to plaintiffs' loan on August 17,2005.
ECF 89-1 at 3. In her Declaration, Powers states, in relevant part, ECF 89-2 at 4

'\I

See

5: "In

addition to purchasing Plaintiffs' loan, BB&T acquired the servicing rights for the loan and
provided notice of transfer of the servicing rights to Plaintiffs Phillip Ward and Deidre Ward on
August 17, 2005." A "Notice of Assignment, Sale or Transfer of Servicing Rights," addressed to
plaintiffs and dated August 17, 2005, provides, in pertinent part, id. at 36: "You are hereby
notified[] that the servicing of your mortgage loan, that is, the right to collect payments from you
is being assigned, sold, or transferred from Southern Trust Mortgage to Branch Banking and
Trust Company effective 09/01/05[.]"
Third, BB&T contends that a "MERS Milestone Report" shows that it acquired plaintiffs'
mortgage in August 2005. See ECF 89-1 at 4. Ms. Powers explains in her Declaration, ECF 892 at 4

'\I

6: "The MERS@ System is a private electronic database used by members of the

MERS@ System to track servicing rights and beneficial ownership interests in mortgage loans
registered on the system which loans are secured by a deed of trust or mortgage held by
Mortgage Electronic Registration Systems, Inc. ('MERS')."

Further, Ms. Powers avers, id. at 5

n.l:
A transferor or a transferee can initiate the posting of a transfer of the
servicing rights or beneficial rights or both of a mortgage on the MERS system.
Whichever one initiates the transfer, the other one has to accept or confirm the
transfer in order for it to appear on the MERS system. The transfer gets initiated
in a "Batch" and that "Batch" is then accepted or confirmed by the non-initiating
MERS members. The date under the "Date" column on the MERS Milestone
Report is the date on which the "Batch" is accepted or confirmed, which may be
different from the effective date of the transfer.

-5-

According to the MERS Milestone Report for plaintiffs' mortgage, Southern registered
plaintiffs' mortgage on August 5, 2005. Id. at 39. On August 24, 2005, BB&T accepted the
transfer of both the beneficial and the servicing rights to plaintiffs' mortgage.

Id. The MERS

Milestone Report lists August 17, 2005, as the effective date of transfer for both beneficial and
servicing rights to plaintiffs' mortgage.

Id.

The MERS Milestone Report also indicates that,

effective September 8, 2005, BB&T transferred beneficial rights to plaintiffs' mortgage to the
"Federal National Mortgage Association," known as "Fannie Mae."

Id.; ECF 89-1 at 2. Ms.

Powers avers, ECF 89-2 at 6 ~ 8.c: "Although BB&T transferred to Fannie Mae the beneficial
rights in Plaintiffs' mortgage, it did not transfer the servicing rights. BB&T continued to service
Plaintiffs' loan."
Finally, BB&T submits that its internal '''Loan Transfer History' confirms that BB&T
acquired plaintiffs' loan prior to September 14,2005 ....

" ECF 89-1 at 46 According to Ms .

. . Schwiers's Declaration (ECF 89-3 at 3 ~ 3), the "Loan Transfer History" (ECF 89-3 at 6) is "a
computer screen shot of the Loan Transfer History page for Plaintiffs' loan ....

" Id at 3 ~ 3.

According to Ms. Schwiers, the "Loan Transfer History for Plaintiffs' loan shows that as of
September 14,2005, BB&T sold Plaintiffs' loan to ...

Fannie Mae ....

" ECF 89-3 at 3 ~ 4.

Thereafter, according to Ms. Schwiers, the "Loan Transfer History" indicates that Fannie Mae
transferred plaintiffs' mortgage through various loan pools that Fannie Mae owned. See id. at 3

6 As noted, the MERS Milestone Report indicates that, effective September 8, 2005,
BB&T transferred beneficial rights to plaintiffs' mortgage to Fannie Mae. ECF 89-2 at 39. In
my view, this discrepancy is not materia!.

-6 -

~~ 5-6. BB&T maintains, ECF 89-1 at 5: "The Loan Transfer History also shows that at no time
after selling plaintiffs' loan to Fannie Mae did BB&T reacquire ownership of the loan.,,7
Plaintiffs counter that "a genuine factual dispute exists" as to "when Defendant BB&T
allegedly purchased the Pro Se Plaintiffs[']

note."

ECF 90-2 at 6.

In particular, plaintiffs

contend, id. at 7: "[A] conflict exists between the Land Records of Prince George's County,
Maryland County [sic] and Defendant BB&T['s] internal records as well as its representation of
the MERS milestone report." See ECF 90-3 ~~ 6-10.
Mr. Ward avers in his Affidavit (ECF 90-3) that he "assessed [sic] online records from
[the] PG county official site searching for any recorded documents by Southern Trust, BB&T
and Fannie Mae on August 17, 2005 that in [sic] involved Southern Trust selling the note
assigning the Deed of Trust, or transferring

the Deed of Trust to BB&T regarding

[his]

property .... " ld. at 2 ~ 6. According to Mr. Ward, "no such recordings were found." ld.
In this regard, plaintiffs have submitted a print out of the search results for "ward,
phillip" as "Grantor/Grantee"

for "all dates" in what appears to be an online database of the land

records of Prince George's County. ECF 90-4 at 2-3. The print out identifies the date on which

7 BB&T also submits an "Assignment of Deed of Trust" (ECF 89-2 at 41-42), dated
March 28, 2012, which the Fisher Law Group prepared concerning the Property. Ms. Powers
avers in her Declaration, ECF 89-2 at 6 ~ 8.d:
To allow for the initiation of foreclosure proceedings, MERS assigned the
subject Deed of Trust to BB&T pursuant to an Assignment of Deed of Trust dated
March 28, 2012. Attached as [ECF 89-2 at 41-42] is a true and correct copy of
the Assignment of Deed of Trust. This assignment is related to the deactivation
of Plaintiffs mortgage loan from the MERS@ System on September 16, 2013, by
BB&T, in its capacity as the servicer of Plaintiffs' loan. The deactivation of
Plaintiffs' mortgage loan from the MERS@ system did not result in any change or
transfer of ownership of Plaintiffs' loan. Ownership of Plaintiffs' loan remained
with Fannie Mae.
-7-

a particular "Instrument Type" was recorded pertaining to Mr. Ward as grantor or grantee and
the "Book/Page" on which the original document is found. Id. Notably, the print out provides
no information as to whom Mr. Ward transferred a property interest or ,whether subsequent
recipients transferred their interests to yet other parties. See id.
Mr. Ward maintains in his Affidavit that "there has been only been [sic] one entry of a
recorded document in the land record in PG County to date on October 4, 2005 with Southern
Trust Mortgage regarding [his] property ....

" ECF 90-3 at 2 ~ 7. According to Mr. Ward, the

original Deed of Trust to Southern (ECF 90-5 at 2) is the "[I]ast recording in [the] PG County
land records .... " Id. at 2 ~ 8.
Plaintiffs have also submitted an undated "State of Maryland Land Instrument Intake
Sheet" (ECF 90-6 at 2), which is partially illegible.

It reflects the recording of a transfer of a

deed of trust from plaintiffs to Southern. Id. In his Affidavit, Mr. Ward avers, ECF 90-3 at 3
~ 9: "[T]he initial Intake sheet. ..
August 17, 2005.

Id.

shows no purchase or assignment to Defendant BB&T" on

He also asserts, id.: "The public records simply have no record or

reference to BB&T purchasing the Note from Southern Trust or selling the note to Fannie Mae."
In addition, plaintiffs have submitted a "Mortgagee Policy / Schedule A" from "First
American Title Insurance Company," which lists the "Date of Policy" as "10/04/2005 @ 3 06
PM." ECF 90-9 at 2. According to Mr. Ward, it appears in the "PG County Court Land Records
.... " ECF 90-3 at 4 ~ 15. The document identifies the "INSURED" as "SOUTHERN TRUST
MORTGAGE, LLC, its successors and/or assigns as their interest may appear."
(capitalized in original).

It describes the "Mortgagee and assignments

...

ECF 90-9 at 2
covered by this

Policy" as "Deed of Trust dated 07/2512005, recorded 10/04/2005 at 306 PM, in Liber 23130, at

-8-

folio 522, from PHILLIP WARD and DEIDRE BARRON WARD to SOUTHERN TRUST
MORTGAGE, LLC in the amount of $356,000 00." Id (capitalized in original).
Plaintiffs have also filed a "Substitute Trustees' Deed," which is dated August 6, 2014,
and was recorded in the land records of Prince George's County by the Fisher Law Group on
August 28, 2014. ECF 90-11 at 2-4. In pertinent part, the "Substitute Trustees' Deed" provides
that "default ...

occurred under the terms of a certain Deed of Trust from Deidre Barron Ward

and Phillip 1. Ward dated July 25, 2005 and recorded in Liber 23130 at folio 522 among the
Land Records of Prince George's County .... " Id. at 2. Mr. Ward asserts in his Affidavit (ECF
90-3 at 6) that the "Substitute Trustees' Deed" (ECF 90-11 at 2-4) contradicts the "Loan Transfer
History" (ECF 89-3 at 6) and Ms. Schwiers's Declaration (ECF 89-3 at 3 ~ 4), which indicate
that BB&T sold plaintiffs'
apparent

loan to Fannie Mae on September 14, 2005.

how the "Substitute

Trustees'

However, it is not

Deed" (ECF 90-11 at 2-4) contradicts

BB&T's

submissions (ECF 89-3 at 6; ECF 89-3 at 3 ~ 4).
Notably, BB&T does not dispute plaintiffs' contention that the original Deed of Trust
from plaintiffs to Southern was the only Deed of Trust that was recorded in the land records of
Prince George's County. See ECF 91 at 3-4.
Beyond the land records of Prince George's

County, plaintiffs

submit that closing

documents for the mortgage contradict BB&T's contention that it acquired servicing rights to
plaintiffs' loan on August 17, 2005. See ECF 90-3 at 3 ~ 10. In particular, Mr. Ward avers id.:
"[T]he initial escrow closing documents from the Southern Trust Mortgage date [d] on July 25,
2005 . ..

list BB&T as the original servicer of my loan beginning on July 25, 2005 directly

contradicting ... the BB&T employee's account of when BB&T first acquired servicing rights."

-9-

Although Mr. Ward does not cite to a particular submission in support of this proposition, his
Affidavit appears to refer to an exhibit (ECF 56-3) that plaintiffs submitted in support of
"Plaintiffs'

Opposition to Defendant's

[First] Motion for Summary Judgment."

ECF 56. An

"Initial Escrow Account Disclosure Statement" concerning the Property, dated July 25, 2005,
identified "BB&T LOAN SERVICING" as the "Servicer's Name." ECF 56-3 at I.
Plaintiffs also rely on a document that appears to have been filed with the Circuit Court
for Prince George's County during the course of foreclosure proceedings against plaintiffs.

An

undated "Affidavit of True Copy of Lien Instrument" by Michael Owens of the Fisher Law
Group provides, in relevant part, ECF 90-8 at 2:
I, the undersigned, am a processor employed by The Fisher Law Group,
PLLC. I do certify that the attached copy of the Deed of Trust dated July 25,
2005 and recorded on October 4, 2005 in Liber 23130 at Folio 522 among the
Land Records of Prince George's County, Maryland is a true and accurate copy of
the lien instrument upon which this foreclosure action is based, as downloaded
from Maryland Land Records On line ....
II. Standard

of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure,

summary judgment

is

appropriate only "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." See Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986). The non-moving party must demonstrate that there are disputes of material
fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus.
Co. Ltd. v. Zenith, Radio Corp., 475 U.S. 574,586 (1986).
The Supreme Court has clarified that not every factual dispute will defeat the motion.
"By its very terms, this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
- 10 -

judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247--48 (1986) (emphasis in original). A fact is "material" ifit "might
affect the outcome of the suit under the governing law." Id. There is a genuine issue as to
material fact "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Id.; see Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir.
2012).
"A party opposing a properly supported motion for summary judgment

'may not rest

upon the mere allegations or denials of [its] pleadings,' but rather must 'set forth specific facts'
showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 514
U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary
judgment motion, a court must view all of the facts, including reasonable inferences to be drawn
from them, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co.
Ltd., 475 U.S. at 587; see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor
and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013); FDIC v. Cashion, 720 F.3d
169,173 (4thCir. 2013).
The judge's "function" in reviewing a motion for summary judgment is not "to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial." Anderson, 477 U.S. at 249. Thus, in considering a summary judgment motion, the
court may not make credibility determinations.

Zoroastrian

Washington, D.C. v. Rustam Guiv Found. of New York, -

Ctr. & Darb-E-Mehr

FJd -

of Metro.

,2016 WL 2343251, at *9

(4th Cir. May 4, 2016) ("Where the determination of what actually happened depends on an

- 11 -

assessment of the credibility of the respective witnesses, '[t]his assessment is a disputed issued
of fact [that] cannot be resolved on summary judgment."')
Administrative

Office

0/ the

(citation omitted); Jacobs v. NC.

Courts, 780 FJd 562, 569 (4th Cir. 2015); Mercantile Peninsula

Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence,
such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the
function of the fact-finder to resolve factual disputes, including matters of witness credibility.
See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
However, to defeat summary judgment, conflicting evidence must give rise to a genuine
dispute of material fact. Anderson, 477

u.s. at 247-48.

If "the evidence is such that a reasonable

jury could return a verdict for the nonmoving party," then a dispute of material fact precludes
summary judgment. Id. at 248; see Libertarian Party o/Va. v. Judd, 718 F.3d 308, 313 (4th Cir.
2013). Conversely, summary judgment is appropriate if the evidence "is so one-sided that one
party must prevail as a matter of law." Anderson, 477 U.s. at 252. And, "the mere existence of a
scintilla of evidence in support of the [movant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [movant]." Id.
III. Discussion
As noted, plaintiffs allege that BB&T violated TILA when it failed to provide disclosures
required by TILA after it acquired plaintiffs'

mortgage loan.

"In adopting TILA, Congress

declared that' lilt is the purpose of this subchapter to assure a meaningful disclosure of credit
terms so that the consumer will be able to compare more readily the various credit terms

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available to him and avoid the uninformed use of credit.' 15 U.S.c.

S

1601(a)."

Gilbert v.

Residential Funding LLC, 678 FJd 271, 275-76 (4th Cir. 2012).
In relevant part, TILA states, 15 U.S.C.

S

1641(g) (2012):

(I) In general
In addition to other disclosures required by this subchapter, not later than 30 days
after the date on which a mortgage loan is sold or otherwise transferred or
assigned to a third party, the creditor that is the new owner or assignee of the debt
shall notifY the borrower in writing of such transfer, including(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalf of the
new creditor;
(D) the location of the place where transfer of ownership of the debt is
recorded; and
(E) any other relevant information regarding the new creditor.
(2) Definition
As used in this subsection, the term "mortgage loan" means any consumer credit
transaction that is secured by the principal dwelling of a consumer.
Section 1641(g) was enacted as an amendment to TILA in 2009, as part of the Helping
Families Save Their Homes Act of 2009. See Pub. 1. No. 111-22,

S 404,

123 Stat. 1632, 1649

(titled "Notification of Sale or Transfer of Mortgage Loans", codified at 15 U.S.C.

S 1641(g»

(approved May 20, 2009). Judges in other federal district courts have consistently held that the
provision does not apply retroactively-that

is, it applies only to transfers that occurred after the

effective date of the amendment, May 20, 2009. See, e.g., Bradford v. HSBC Mortgage Corp.,
829 F. Supp. 2d 340, 353 (E.D. Va. 2011) (citing Angelini v. Bank of Am., 11-3011,2011

- 13 -

WL

2433485, at *5 (D. Or. Apr. 27, 2011)); accord, e.g., Diunugala v. Jp Morgan Chase Bank, NA.,
No. 12CV2106-WQH-KSC,
a/New

2015 WL 3966119, at *4 (S.D. Cal. June 30, 2015); Craig v. Bank

York Mellon Corp., No. 10-CV-4438 SLT RML, 2014 WL 1347225, at *10 (E.D.N.Y.

,
Mar. 31, 2014); O'Dell v. Deutsche Bank Nat. Trust Co., 12-CV-985 JCC/IDD, 2013 WL
2389874, at * 13 (E.D. Va. May 30, 2013) ("As IS U.S.C.

S

1641(g) had not yet been

implemented, there would have been no need [in 2011] for notice under that TILA provision.").
Accordingly,

in order for BB&T to have violated

S

164I(g) with respect to plaintiffs'

loan,

BB&T must have acquired the loan after May 20, 2009.
Plaintiffs advance. two primary arguments why the declarations and business records
submitted by BB&T do not demonstrate that BB&T acquired plaintiffs' loan in August 2005.8
First, plaintiffs attack the credibility and sufficiency of BB&T's submissions.

According to

plaintiffs: "Defendant BB&T's newly submitted affidavits falls [sic] far short of satisfying any
reasonable creditably [sic] standard of veracity .... " ECF 90-2 at 1_29 Plaintiffs maintain that
"neither employee appears to actually have had first hand or personal knowledge of the loan
activities ....

" Id at 10. Further, they submit that "BB&T['s] internal and what would appear

to be selfI-]serving records have no ...

presumption of creditably [sic] or reliability."

Id at 7.

In this regard, plaintiffs contend that "critical evidence that a purchase and sell [sic] of note [sic]
occurred is not present."

Id

at 10.

Plaintiffs maintain that BB&T has submitted "no

8 Plaintiffs also maintain that "new material facts ...
warrant the Court revisiting the
basis of the previously excluded claims in this matter ... " (ECF 90-2 at II) and complain that
they "never have been given the opportunity to conduct general discovery in this matter." Id at
8. Plaintiffs identify no new material facts. Therefore, I decline to revisit my earlier rulings in
this case.

Plaintiffs' submissions refer repeatedly to BB&T's "affidavits."
refer to the declarations that BB&T has submitted.
9

- 14 -

I assume that plaintiffs

endorsements

from 2005 with the date and the time to prove that an actual assignment has

occurred" (ECF 90-2 at 10-11) and that "no proof of a wire payment, receipt of payment, or any
other type of payment given or received have ever been provided by Defendant BB&T in this
matter."

Id. at 11. With regard to the MERS Milestone Report (ECF 89-2 at 39), plaintiffs

submit that, "upon close inspection by the naked eye," it appears that "this document has been
tampered with and altered." ECF 90-3 at 5.
Second, plaintiffs contend that Mr. Ward's Affidavit (ECF 90-3) and their exhibits (ECF
90-4 through ECF 90-11) contradict the declarations and records that BB&T has introduced.

As

noted, plaintiffs submit that, after the Deed of Trust was initially recorded in the land records of
Prince George's County on October 4,2005, no further assignments were recorded. See ECF 902 at 7; ECF 90-3 at 2-3 ~~ 6-9. Plaintiffs also aver that records that they received after obtaining
the loan contradict BB&T's business records as to when BB&T acquired their mortgage.

See

ECF 90-2 at 7; ECF 90-3 at 3 ~ 10.
Plaintiffs identify no genuine issue as to the credibility or the sufficiency of BB&T's
declarations and business records. Fed. R. Civ. P 56(c)(4) explicitly anticipates that declarations
may be used to support a motion for summary judgment.
affidavit or declaration

It provides, in relevant part, id.: "An

used to support or oppose a motion must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated." See Evans v. Technologies Applications
& Service Co., 80 F.3d 954, 962 (4th Cir. 1996).

To be sure, "summary judgment affidavits cannot be conclusory, Rohrbough v. Wyeth
Laboratories,

Inc., 916 F.2d 970, 975 (4th Cir. 1990), or based upon hearsay, Maryland

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Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252 (4th Cir. 1991)." Erichsen v.
RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 567 (E.D.N.C. 2012).

Indeed, as stated, 1

concluded earlier that the Carper Declaration (ECF 51-3) submitted by BB&T in support of its
First Motion (ECF 51) advanced a "seemingly bald conclusion that BB&T acquired plaintiffIs'J
loan in 2005" and included insufficient information for the Court to "discern what personal
experiences or business records" formed the basis for the Declaration.

ECF 68 at 14.

Here, the declarations remedy these defects. Notably, the declarations refer to copies of
business records with which Ms. Powers and Ms. Schwiers are familiar in their capacities as
BB&T employees.

See ECF 89-2 at 2-3 ~ 1; ECF 89-3 at 2 ~ 2. Plaintiffs' contention that the

Court should disregard their declarations

because Ms. Powers and Ms. Schwiers did not

personally participate in the transfer of plaintiffs' loans is without merit. See ECF 90-3 at 4-5 ~
17. BB&T has not introduced the declarations as direct evidence of the transfer of plaintiffs'
mortgage.

Rather, the declarations provide information, based on the professional experience of

the declarants as BB&T employees, about the content of the business records that BB&T has
submitted.
Business records, such as the records on which BB&T relies, are routinely offered in
connection with motions for summary judgment.

Fed. R. Civ. P. 56(c)(l)(A)

provides, in

relevant part: "A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
materials ....

interrogatory

answers, or other

" Of course, "(aJ party may object that the material cited to support or dispute a

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fact cannot be presented in a form that would be admissible in evidence."
56(c)(2).

Fed. R. Civ. P.

Yet, business records, such as the records that BB&T has submitted, are admissible

under the Federal Rules of Evidence.

See Fed. R. Evid. 803(6)(B) (excluding from the general

prohibition against hearsay evidence "record[ s] ...

kept in the course of a regularly conducted

activity of a business ... "). Insofar as plaintiffs assert that the business records under BB&T's
control are unreliable (see ECF 90-2 at 7), as BB&T notes (ECF 91 at 5), the MERS Milestone
Report is derived from a database over which BB&T exercises no direct control. See ECF 89-2
at 4 ~ 6.
I am not persuaded by plaintiffs' contention that BB&T omitted required evidence or that
its submissions have been "tampered with and altered."

ECF 90-3 at 5. I am unaware of any

requirement that BB&T must provide "endorsements from 2005 with the date and the time to
prove that an actual assignment has occurred" (ECF 90-2 at 10-11) or "proof of a wire payment,
receipt of payment, or any other type of payment given or received" as to the transfer of
plaintiffs' mortgage.

ECF 90-2 at 11. Even assuming that such requirements exist, however, I

note that the date- and time-stamped "Funding Disbursement Sheet" provides, in relevant part,
ECF 89-2 at 34 (capitalized in original, italics added): "THE ABOVE REFERENCED

LOAN

HAS

BEEN

BEEN

PURCHASED/FUNDED

WIRED/TRANSFERRED

AS OF 08/17/2005

AS PER YOUR INSTRUCTIONS."

THE FUNDS

HAVE

Moreover, I see no facial indication

that the MERS Milestone Report (ECF 89-2 at 39) has been altered or is incomplete.

In this

regard, I note that Ms. Powers's Declaration certifies that the MERS Milestone Report (id.) is "a
true and correct copy of the MERS@ System Milestone Report for Plaintiffs' mortgage loan."
Id. at 4 ~ 6.

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As stated, plaintiffs also maintain that the exhibits submitted with their Opposition (ECF
90-4 through ECF 90-11) contradict BB&T's submissions.

In particular, supported by a printout

of an online search of the land records of Prince George's County (ECF 90-4 at 2-3), plaintiffs
contend that, after October 4,2005, no subsequent transfer of plaintiffs' note was recorded. ECF
90-3 at 3 ~ 9. On that basis, plaintiffs "dispute that on August 17, 2005 ... BB&T purchased a
Note from Southern Trust Mortgage." ld.
As a preliminary matter, Mr. Ward's Affidavit states that he "search[ed] for any recorded
documents by Southern Trust, BB&T and Fannie Mae on August 17,2005 that in [sic] involved
Southern Trust selling the note assigning the Deed of Trust, or transferring the Deed of Trust to
BB&T regarding [his] property ....

" ECF 90-3 at 2 ~ 6. Yet, plaintiffs' supporting exhibit

(ECF 90-4 at 2-3), a printout of an online search of the land records of Prince George's County,
appears to provide the results ofa search of the "Grantor/Grantee"

index only as to Phillip Ward.

"[T]he standard method for title searches has long been to examine the chain of title."

lnre

Colon, 563 F.3d 1171, 1179 (lOth Cir. 2009). As the Tenth Circuit has explained, id.:
The searcher first constructs a chain of grantors of the property, using the grantee
index to find the deed to the purported owner from a prior grantor, returning to the
grantee index to find the deed to that prior grantor from an earlier grantor, and
continuing that process for an appropriate period of time. The searcher then uses
the grantor index to find all conveyances by each grantor during the period of the
grantor's ownership of the property and examines each conveyance to determine
whether the property conveyed is the property of interest.
Accordingly, it is unclear how an apparent search of land records pertaining only to Mr.
Ward as grantor or grantee would have identified a subsequent transfer of the loan from Southern
to BB&T.

Nonetheless, as noted, BB&T does not dispute that the transfer of the loan from

Southern to BB&T was not recorded.

See ECF 91 at 3-4.
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Therefore, I will assume that no

records of subsequent

assignments

of plaintiffs'

loan were recorded.

Nevertheless,

that

subsequent transfers of the Note were not recorded in the land records of Prince George's
County does not contradict BB&T's

business records, which show that BB&T acquired

plaintiffs' mortgage in August 2005.
Rejecting a similar argument, Judge Bennett recently observed that, under Maryland law,
"'the holder of the deed of trust note ... may transfer the note to another party without recording
a new deed of trust ... in the Land Records.'''
1672,2016

Leith v. Deutsche Bank Nat'! Trust Co., RDB-15-

WL 704306, at *4 (D. Md. Feb. 23, 2016) (quoting In re Williams v. Chevy Chase

Bank, 277 B.R. 78, 81-82 (Bankr. D. Md. 2002»; see also Reed v. PNC Mortgage, No. AW-131536,2013 WL 3364372, at *3 (D. Md. July 2,2013) ("[UJnder Maryland law, 'raj deed of trust
securing a negotiable

promissory

note cannot be transferred

like a mortgage;

rather, the

corresponding note may be transferred, and carries with it the security provided by the deed of
trust.' Deutsche Bank Nat'l Trust Co. v. Brock, 430 Md. 714, 63 AJd

40, 48 (Md. 2013).

Accordingly, there is no legal requirement that an assignment ofa deed of trust must be recorded
in Maryland.").
As there was no legill requirement that BB&T record its acquisition of the Deed of Trust
in the land records of Prince George's County, the absence of such a record is of no moment.
BB&T's evidence that it acquired plaintiffs' loan during August 2005 is not contradicted by
records submitted by plaintiffs, which suggest that a title insurance company (see ECF 90-9 at 2)
and the Fischer Law Group (see ECF 90-8 at 2; ECF 90-11 at 2-4) relied on the original Deed of
Trust from plaintiffs to Southern, recorded in the land records of Prince George's County.

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As discussed, Mr. Ward's Affidavit maintains, ECF 90-3 at 3 ~ 10: "[TJhe initial escrow
closing documents from the Southern Trust Mortgage date[dJ on July 25,2005 ...

list BB&T as

the original servicer of my loan beginning on July 25, 2005 directly contradicting ... the BB&T
employee's

account of when BB&T first acquired servicing rights."

record to suggest that "BB&T LOAN SERVICING"

There is nothing in the

(ECF 56-3 at I) is the same entity as

BB&T. Even assuming that the "Initial Escrow Account Disclosure Statement" (ECF 56-3 at I)
indicated that BB&T or a related entity was the initial loan servicer for plaintiffs' mortgage, this
fact would not preclude

a subsequent

assignment

of the loan from Southern to BB&T.

Moreover, it provides no indication that BB&T acquired plaintiffs' loan after May 20, 2009,
which is the material fact at issue here.
In light of the foregoing, I am persuaded that no genuine dispute of material fact exists as
to when BB&T acquired plaintiffs' loan. The evidence here "is so one-sided that one party must
prevail as a matter of law." Anderson, 477 U.S. at 252. As evidenced by BB&T's declarations
and exhibits, it has demonstrated that it acquired plaintiffs' loan during August 2005-years
before

S

1641(g) went into effect. Accordingly, summary judgment for BB&T as to Count II of

the Amended Complaint (ECF 14) is appropriate.
IV. Conclusion
For the foregoing reasons, I will grant the Second Motion (ECF 89). A separate Order
follows, consistent with this Memorandum.

Date: May 17,2015

lsi
Ellen Lipton Hollander
United States District Judge

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