Lupo v. JPMorgan Chase Bank, N.A. et al

Filing 42

MEMORANDUM OPINION (c/m to Plaintiff 9/28/15 sat). Signed by Judge Deborah K. Chasanow on 9/28/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LOUIS M. LUPO
:
v.

:

Civil Action No. DKC 14-0475

:
JPMORGAN CHASE BANK, N.A.,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution are (1) a motion
for summary judgment filed by Defendant JPMorgan Chase Bank,
N.A. (ECF No. 24); (2) Plaintiff Louis M. Lupo’s verified motion
in response (ECF No. 29); and (3) a partial motion to dismiss
filed by Defendant Specialized Loan Servicing, LLC (ECF No. 33).
The material issues have been briefed and the court now rules,
no hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendant Chase’s motion for summary judgment
will be granted.
be denied.

Plaintiff’s verified motion in response will

Defendant SLS’s partial motion to dismiss will be

granted in part and denied in part.

I.

Background
Factual Background1

A.

Plaintiff Louis M. Lupo (“Plaintiff” or “Mr. Lupo”) has
lived in Montgomery County, Maryland, since 2011.
5).

(ECF No. 18 ¶

He is employed by a federal contractor that stations him at

various

federal

agencies

metropolitan area.

(Id.

throughout
¶¶ 2-3).

the

Washington

D.C.

Defendant JPMorgan Chase

Bank, N.A. (“Chase”) is a national banking association that does
business in Maryland, with its principal place of business in
Ohio.

(ECF Nos. 1-1, at 2; 1-2, at 2).

Defendant Specialized

Loan Servicing, LLC (“SLS”) is a mortgage servicing corporation
with its principal place of business in Colorado.

(ECF No. 18 ¶

13).
Plaintiff’s amended complaint alleges that, on December 20,
2007,

he

executed

a

30-year

fixed-rate

promissory

note

(the

“Note”) for $173,850.00 at 6.0% annual interest rate payable to
the lender, Chase, in monthly installments of $1,551.24.
31).

(Id. ¶

On the same day, Plaintiff executed a deed of trust (the

“DOT”) to secure repayment of the Note with a lien against his

1

Unless otherwise noted, the facts outlined here are
construed
in
the
light
most
favorable
to
Plaintiff.
Furthermore, the facts recounted in this section are drawn
largely from Plaintiff’s amended complaint and set forth in the
prior memorandum opinion denying Defendant Specialized Loan
Servicing, LLC’s motion to dismiss based on improper venue or
transfer based on forum non conveniens. (See ECF Nos. 18; 31).
2

property

located

“Property”).

in

(Id.

North

¶

33).

Richland
The

DOT

Hills,

Texas

specifies

that

(the
it

is

“governed by federal law and the law of the jurisdiction in
which the Property is located.”

(Id. ¶ 13).

Plaintiff alleges

that he thereafter made timely payments in full.

(Id. ¶ 37).

He complains that, since the inception of his mortgage loan,
Defendant

Chase,

as

loan

servicer,

has

“miscalculated

overcharged for escrow” on his account every year.

and

(Id. ¶ 38).

For the first four years, Plaintiff alleges, he was able to
secure

a

payments

correction
lost

by

mortgage payments.

by

Chase

a

telephone

through

the

(Id. ¶¶ 39-40).

call

and

routing

find

numbers

mortgage
for

the

However, Plaintiff contends

that Chase made an error in 2013 that he has since been unable
to resolve.
Plaintiff’s specific allegations include that, on February
9, 2013, Chase “erroneously reported to Equifax that [he] was 30
days late on his November 30, 2012 mortgage loan payment” and
“that Plaintiff was $4,000 delinquent for the month of November
2012.”

(Id. ¶¶ 46-47).

was perfect.

Previously, Plaintiff’s credit history

(Id. ¶ 43).

He also alleges that the monthly

payment including escrow averaged approximately $1,502.00 and
that

he

telephoned

Chase

no

fewer

discovering its report to Equifax.

than

ten

times

(Id. ¶¶ 48-49).

after
During

these telephone calls, Plaintiff was routed to loss mitigation
3

analysts and spoke to different Chase representatives, but they
were unable to respond to his requests to correct his credit
report

and

recalculate

the

escrow.

(Id.

¶¶

50-54).

As

a

result, he asked Chase to investigate and inform him of the
procedure for managing his own escrow,
taxes and insurance directly.

i.e., paying his own

(Id. ¶¶ 55-58).

Eventually, he

was told that the investor in the Note would not permit anyone
other than Chase to manage his escrow account.

(Id. ¶ 59).

During these discussions, Plaintiff was offered refinancing or
repackaging

options,

but

he

declined.

(Id.

¶¶

62-64).

Plaintiff learned that the Note had been sold to Freddie Mac
shortly after the 2007 closing, and that Freddie Mac does allow
self-management for loans with more than 20% equity.2

(Id. ¶¶

65-66).
On

February

14,

2013,

Chase

sent

Plaintiff

a

letter

identifying itself as a debt collector and stating that his
mortgage

is

foreclosure.

past

due

by

(Id. ¶ 67).

two

months

and

may

be

referred

to

On February 22, 2013, Chase mailed

Plaintiff a statement specifying that his escrow payment due was

2

Plaintiff claims that he is in a position to self-manage
his escrow account, but he alleges no facts suggesting that he
has 20% equity in the property. (ECF No. 18 ¶ 66).
4

$978.48, a substantial increase from previous forecasts.3
69).

Conversations with Chase representatives followed, without

resolution.
credit

On March 21, 2013, Plaintiff disputed to Equifax, a

reporting

agency,

Chase creditor mistake.
a

(Id. ¶

letter

to

Chase

the

November

(Id. ¶ 78).

directly

to

the

2012

delinquency

as

a

On the same day, he faxed
JPMorgan

Chase

CEO

James

Dimon’s office setting forth the reasons that Plaintiff believed
his account to be in error and requesting an investigation and
correction of his escrow account.

(Id. ¶ 79).

copied

to

Protection

which

initiated

the

Consumer
an

Financial

investigation.

(Id.

The letter was
Bureau
¶

(“CFPB”),

80).

Other

discussions with Chase representatives occurred, but Defendant
refused to correct Plaintiff’s credit report, recalculate his
escrow, or reconcile his mortgage loan account.
Plaintiff

reports,

however,

that

Chase

(Id. ¶¶ 83-91).

“confirmed

the

errant

credit report in amount and date per Equifax update April 5,
2013.”

(Id. ¶ 92).

In a telephone conversation with David

Grace of Chase Executive Services, Mr. Grace replied that he
would

not

repair

Plaintiff’s

credit

report

until

he

paid

$2020.80 for his March 2013 mortgage payment, although Plaintiff
contends

that

that

amount

was

3

not

due.

(Id.

¶¶

93-98).

According to Plaintiff, the new amount represents an
increase of over 150% from his usual monthly escrow forecast,
which had been approximately $460 per month. (ECF No. 18 ¶ 70).
5

Plaintiff contends that Chase’s refusal to correct his credit
report

or

conduct

an

escrow

analysis

and

recalculation

is

memorialized in an April 15, 2013 letter faxed by Plaintiff to
Chase.
his

(Id. ¶¶ 99-100).

requests

for

Chase

Plaintiff alleges that, attached to
to

investigate

and

recalculate,

he

provided supporting documentation to show that his loan payments
were current and not in arrears.

(Id. ¶¶ 79, 100).

17,

respond,

2013,

Chase

overcharge

purported

Plaintiff’s

to

escrow,

but

refused

to

On April

continued

to

recalculate

Plaintiff’s escrow, and explained that it had reversed funds
originally applied to interest and principal payment and instead
applied these funds to the claimed escrow shortage.

(Id. ¶¶

101-04).
Chase, from February 2013 until May 2013 and through its
representatives

and

correspondence

with

Plaintiff,

informed

Plaintiff that his loan payments were overdue, that Chase was a
debt collector, and that it was attempting to collect a debt.
(Id. ¶¶ 67, 90, 96, 101, 105, 114, 117).

Chase refused to

repair Plaintiff’s credit report until he made various payments,
all of which Plaintiff alleges were not owed to Chase.
91, 97-99).

On May 4, 2013, Chase sent Plaintiff another letter

stating that the loan was in default by two months.
114-16).

(Id. ¶¶

(Id. ¶¶

On May 7, another letter demanded sums that Plaintiff

alleges were not due.

(Id. ¶¶ 117-19).
6

On May 31, Chase mailed

a “Notice of Assignment, Sale, or Transfer of Servicing Rights”
to Plaintiff, informing him that Chase could no longer accept
payments

on

his

mortgage

loan

and

that

the

loan

had

been

transferred and assigned to SLS with an effective date of June
17, 2013.

(Id. ¶ 121).

On June 20, 2013, SLS mailed to Plaintiff a similar notice
stating that all payments due after June 17, 2013 should be sent
to

SLS

and

contends

demanding

that

illegible.

the

payment.

payment

(Id.

¶¶

instructions

(Id. ¶¶ 131, 134).

129-30).

provided

Plaintiff

by

SLS

were

On or about June 24, Plaintiff

contacted SLS by telephone to make an electronic payment.
SLS

representative

informed

Plaintiff

that

his

loan

The

was

in

default and it would not accept his automated clearing house
(“ACH”) payment.
that

his

(Id. ¶¶ 135-36).

mortgage

investigation.
investigation

loan

account

Plaintiff explained to SLS
was

current

and

sought

an

When he called thereafter, he was told that the
was

ongoing.

(Id.

¶¶

137-40).

On

July

1,

Plaintiff called again and learned that he could not make an ACH
payment for the month because his account was in default.
¶

141).

He

was

told

that,

if

he

provided

proof

payment, SLS would then accept his ACH payment.

of

(Id.
prior

Plaintiff faxed

documentation to SLS on July 1, including proof of payment for
the previous 20 months and requests that SLS investigate his
loan

history,

recalculate

his

escrow
7

payments,

reconcile

his

account, and correct his credit report.

(Id. ¶¶ 142-43).

On

July 11, SLS sent Plaintiff a “Notice of Default and Notice of
Intent to Accelerate,” stating that he was in default as he had
failed to make loan payments since April 2013.

(Id. ¶¶ 144-46).

SLS again sent Plaintiff a letter on August 14 informing him,
inter alia, that he must make a payment on his loan by August
28, 2013 in order to halt the foreclosure process.
57).
SLS

(Id. ¶¶ 153-

On August 21, Plaintiff sent a letter to both Chase and
protesting

payments

and

recalculation,

SLS’s
again
and

refusal

to

requesting
credit

accept
an

report

his

July

and

investigation,
correction.

August
escrow
This

correspondence included supporting documentation and proof of
payment.

(Id. ¶ 147).

In a letter dated September 6, 2013, SLS

stated that Plaintiff’s July 1 fax was not a “qualified written
request” under the Real Estate Settlement Procedures Act, that
Plaintiff was in default based on Chase’s escrow analysis, and
that SLS could not correct Plaintiff’s credit report.

(Id. ¶

148).
Plaintiff’s
security

employment

clearances,

financial integrity.

which

requires
call

for

(Id. ¶¶ 41-42).

that
the

he

hold

holder

to

certain
maintain

During his dispute with

Chase and SLS, Plaintiff was being vetted for an employment
position that required additional security clearances.
44).

(Id. ¶

He alleges that, on December 26, 2013, as a result of
8

Defendants’

erroneous

credit

reporting,

he

“was

placed

on

‘Delayed for Entry to Duty’ status with his new client employer”
and denied a security clearance and access to his job site.4
(Id.

¶¶

160,

163-64).

In

addition,

credit card accounts were closed.
5,

2014,

neither
requested
report.

according
had
by

to

performed
Plaintiff,

(Id. ¶ 161).

(Id. ¶ 162).

Plaintiff,
the

several

Defendants

investigation

nor

had

they

and

of

Plaintiff’s

As of January
Chase

and

SLS

reconciliation

corrected

his

credit

Moreover, Plaintiff received a letter

dated February 4 from Hughes, Watters & Askanase, LLP, on behalf
of

SLS,

notifying

him

that

the

mortgage

loan

had

been

accelerated and that the Property would be foreclosed on and
sold in a non-judicial sale on March 4, 2014.

(Id. ¶ 170).

Defendants agree that Plaintiff borrowed $173,850 in 2007
and made timely payments until November 2012, but contend that
Plaintiff was 30 days late on his November 30, 2012 payment, an
event that Chase reported to Equifax on February 9, 2013.
Nos. 24, at 2; 33-1, at 2).

(ECF

According to Chase, the amount

needed for escrow rose substantially due to a large increase in
property taxes and a comparatively smaller increase in hazard
insurance premiums, which in turn resulted in a larger shortage
4

Although Plaintiff filed his amended complaint on April 4,
2014, he appears erroneously to have cited that he was placed on
“Delayed for Entry to Duty” status on “December 26, 2014.” (ECF
No. 18 ¶ 160). The relevant date must be December 26, 2013.
9

payment.

(ECF No. 24, at 4-6).

Relying on the same facts, SLS

argues that Plaintiff’s central factual allegations are directly
rebutted by the available documentation, including tax records
and Plaintiff’s payment history.

(ECF No. 33-1, at 4).

At

bottom, Defendants argue that the facts show that “Plaintiff’s
payment went up because his taxes went up; he refused to pay the
higher payment; as a result of his refusal to pay the required
amount,

he

went

into

default;

and

his

default

reported to the credit reporting agencies.”
B.

was

properly

(ECF No. 24, at 9).

Procedural History

Plaintiff, proceeding pro se, filed his original complaint
against Defendants Chase and SLS on February 19, 2014.
1).

(ECF No.

SLS first moved to dismiss on March 13, 2014 (ECF No. 7),

and Plaintiff filed his opposition (ECF No. 15).

Plaintiff

subsequently

complaint

alleging

filed

multiple

a

twenty-eight

violations

of

the

count

amended

Real

Estate

Settlement

Procedures Act (“RESPA”), Fair Credit Reporting Act (“FCRA”),
Fair

Debt

Maryland

Collection

consumer

Practices

protection

and

Act

(“FDCPA”),

mortgage

fraud

and

various

statutes,

as

well as claims for breach of contract, breach of the duty of
good faith and fair dealing, defamation, tortious interference
with economic relations, and unjust enrichment.
17-31).

Plaintiff

requests

relief, damages, and costs.

declaratory

relief,

(Id. at 31-32).
10

(ECF No. 18, at
injunctive

If there is no

adequate legal remedy, Plaintiff asks that a constructive trust
be placed on the Property.

(Id. at 31).

On April 16, 2014, Defendant SLS moved to dismiss this
action

pursuant

to

Fed.R.Civ.P.

12(b)(6)

or

12(b)(3),

or

to

transfer this action on the ground of forum non conveniens to
the United States District Court for the Northern District of
Texas.

(ECF No. 19).

Plaintiff opposed SLS’s motion (ECF No.

22) and SLS replied (ECF No. 23).

SLS’s Rule 12(b)(3) and

transfer motions were denied, but judgment was reserved on SLS’s
motion to dismiss under Rule 12(b)(6).
Also

pending

is

Defendant

(ECF No. 31, at 6 n.3).

Chase’s

judgment filed on October 30, 2014.

motion

for

(ECF No. 24).

summary
Plaintiff

responded in opposition, requesting that the court defer or deny
its

decision

on

Chase’s

summary

judgment

motion

until

disposition of SLS’s motion to dismiss or pending additional
discovery pursuant to Fed.R.Civ.P. 56(d).
replied.

(ECF No. 30).

(ECF No. 29).

Chase

SLS filed a renewed partial motion to

dismiss Plaintiff’s amended complaint on February 5, 2015.
No. 33).

(ECF

Plaintiff responded in opposition and noted that SLS’s

earlier Rule 12(b)(6) motion “is still under consideration by
the Court.”
its

(ECF No. 35, at 1).

“counsel

Memorandum

somehow

Opinion

missed

[ECF

No.

SLS replied, explaining that

footnote
31]

11

and

six
thus

to

the

renewed

Court’s
its

Rule

12(b)(6) and 12(b)(3) motion to dismiss out of an abundance of
caution.”5
II.

(ECF No. 38, at 1 n.2).

Defendant Chase’s Motion for Summary Judgment
A.

Standard of Review

A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures,

Inc.,

264

F.3d

459,

(4th

465

Cir.

2001).

In

undertaking this inquiry, a court must view the facts and the
reasonable

inferences

drawn

therefrom

“in

the

favorable to the party opposing the motion.”

light

most

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).

5

The earlier opinion to which SLS refers does not have a
“footnote six.”
Instead, SLS presumably intended to reference
footnote three on page six. (See ECF No. 31, at 6 n.3).
12

The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

If the nonmoving

party fails to make a sufficient showing on an essential element
of his or her case as to which he or she would have the burden
of proof, then there is no genuine dispute of material fact.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues on

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).

The

mere

support

of

the

sufficient
Liberty

to

Lobby,

existence
nonmoving

preclude
477

an

U.S.

at

of

a

“scintilla”

party’s
order
252.

case,

evidence

however,

granting
A

of

summary

“party

cannot

is

in
not

judgment.
create

a

genuine dispute of material fact through mere speculation or
compilation of inferences.”

Shin v. Shalala, 166 F.Supp.2d 373,

375 (D.Md. 2001) (citation omitted).

In other words, “[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)).
13

B.

Analysis

1.

RESPA

Congress enacted RESPA “to insure that consumers . . . are
provided with greater and more timely information on the nature
and costs of the settlement process” and “to effect certain
changes in the settlement process for residential real estate,”
such as the reduction of “the amounts home buyers are required
to place in escrow accounts established to insure the payment of
real estate taxes and insurance.”

12 U.S.C. §§ 2601(a), (b)(3).

Plaintiff asserts claims under RESPA against both Defendants in
Counts 1-12 of his amended complaint.
1-4,

Plaintiff

timely
requests

to

alleges

acknowledge

(“QWR”).

Defendants

failed

In
to

properly to his QWRs.

that

Id. § 2605(e).

Defendants

receipt

of

Counts

5-8,

conduct

an

RESPA

In Counts

collectively

failed

qualified

written

Plaintiff

investigation

contends
and

that

respond

And in Counts 9-12, Plaintiff argues that

Defendants violated RESPA in continuing to report adverse credit
information

after

receipt

of

his

QWRs.

Triggering

duties under RESPA, a QWR is defined as:
A written correspondence, other than notice
on a payment coupon or other payment medium
supplied by the servicer, that-(i) includes, or otherwise enables the
servicer to identify, the name and
account of the borrower; and

14

certain

(ii)
includes
a
statement
of
the
reasons for the belief of the borrower,
to the extent applicable, that the
account
is
in
error
or
provides
sufficient
detail
to
the
servicer
regarding other information sought by
the borrower.
Id. § 2605(e)(1)(B).
Although he is not explicit, Plaintiff appears to contend
that

two

of

his

communications

to

Chase

constitute

QWRs.

According to Chase, and Plaintiff does not offer clarification
in his opposition, Plaintiff’s purported Chase QWRs are: (1) the
letter

Plaintiff

faxed

to

Mr.

Dimon

on

March

21,

2013

(the

“Dimon Letter”); and (2) the letter Plaintiff faxed to Chase on
April 15, 2013 (the “April 2013 Request”).
100).

(ECF No. 18 ¶¶ 79,

Chase argues that neither communication satisfies the

statutory QWR definition “because neither was addressed to the
exclusive and separate address established by Chase.”
24-1, at 10).
RESPA’s implementing regulations allow (but
do not require) servicers to establish a
designated address for QWRs.
See 24 C.F.R.
§ 3500.21(e)(1) (“By notice either included
in the Notice of Transfer or separately
delivered
by
first-class
mail,
postage
prepaid, a servicer may establish a separate
and exclusive office and address for the
receipt and handling of qualified written
requests.”).
The final rulemaking notice
for the operative regulation, Regulation X,
explained that if a servicer establishes a
designated QWR address, “then the borrower
must deliver its request to that office in
order for the inquiry to be a ‘qualified
15

(ECF No.

written request.’”
Real Estate Settlement
Procedures Act, Section 6, Transfer of
Servicing of Mortgage Loans (Regulation X),
59 Fed.Reg. 65,442, 65,446 (Dec. 19, 1994).
Roth v. CitiMortgage Inc., 756 F.3d 178, 181 (2d Cir. 2014).

If

“a servicer complies with the notice requirements . . . for
designating a QWR address, a letter sent to a different address
is not a QWR, even if an employee at that address (who may not
have training in RESPA compliance) in fact responds to that
letter.”

Id. at 182.

Here,
periods

Chase

ending

provides

February

mortgage

28,

2013

loan
and

statements

March

22,

for

2013,

the
each

informing Plaintiff of an “Exclusive and Separate Address for
Qualified Written Requests.”
3).

(See ECF Nos. 24-4, at 4; 24-5, at

Plaintiff does not dispute that his mortgage statements

from Chase designated a QWR address, or that he failed to use
that

address.

Accordingly,

Plaintiff

has

failed

to

produce

evidence that Chase did not properly designate a QWR address or
that

he

address.

sent

qualifying

correspondence

to

the

designated

The Dimon Letter and April 2013 Request are not QWRs,

Chase’s RESPA duties were not triggered, and summary judgment
will be entered against Plaintiff on the RESPA claims he asserts
against Chase.

16

2.

FCRA

Plaintiff asserts an FCRA claim against Chase, arguing that
“Chase failed to conduct reasonable investigation or otherwise
comply with duties” under the statute.

(ECF No. 18, at 19).

Section 1681s–2(b)(1) imposes a duty on furnishers of credit
information to investigate disputed information “after receiving
notice pursuant to section 1681i(a)(2).”
“review

all

relevant

information

One such duty is to

provided

by

the

consumer

reporting agency pursuant to section 1681i(a)(2) of this title.”
15

U.S.C.

§

1681s-2(b)(1)(B)

(emphasis

added).

Accordingly,

Chase, as furnisher of credit information, has no responsibility
to investigate a credit dispute “until it receives notification
of a dispute from a consumer reporting agency.”

Mavilla v.

Absolute Collection Serv., Inc., 539 F. App’x 202, 208 (4th Cir.
2013) (citations omitted).
Here, Plaintiff’s amended complaint contains no allegation
that a credit reporting agency provided Chase with a notice of
dispute.

Furthermore, Plaintiff presents no evidence in his

opposition to support his claim that Chase’s FCRA duties were
triggered.

As a result, summary judgment will be entered in

favor of Chase on Count 13.
3.

FDCPA

Plaintiff asserts claims against Chase arising under the
FDCPA

in

Counts

14-20

of

his

amended
17

complaint.

The

FDCPA

protects consumers from debt collectors that engage in abusive
and deceptive debt collection practices.

See United States v.

Nat’l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996).

Each

of Plaintiff’s claims is predicated upon his belief that Chase
is

a

“debt

collector”

under

the

statute.

See

15

U.S.C.

§

1692a(6)(F).
[T]o properly allege that [the defendant
lender] is a debt collector under the FDCPA,
[the plaintiff borrower] would have to
assert that [the defendant] was attempting
to collect “debts owed or due or asserted to
be owed or due another.”
15 U.S.C. §
1692a(6) (emphasis added).
Moreover, the
FDCPA
expressly
exempts
creditors
and
mortgagees from its definition of a debt
collector.
See 15 U.S.C. § 1692(a)(6);
Sparrow[ v. SLM Corp., No. RWT 08–00012,
2009 WL 77462, at *2 (D.Md. Jan. 7, 2009)].
Here, by all appearances, [the defendant]
was at all relevant times acting as a
creditor and mortgagee to collect a debt
owed to itself, not to a third party; in
other words, it does not fall under the
FDCPA’s definition of a debt collector.
Givens v. Citimortgage, Inc., No. PJM-10-1249, 2011 WL 806463,
at *2 (D.Md. Feb. 28, 2011).

The FDCPA expressly exempts “any

person collecting or attempting to collect any debt owed or due
or

asserted

to

be

owed

or

due

another

to

the

extent

such

activity . . . concerns a debt which was originated by such
person.”

15 U.S.C. § 1692a(6)(F)(ii).

Chase, as grantee of the DOT securing Plaintiff’s mortgage
loan, was collecting a debt that it originated.

18

(See ECF No. 18

¶ 31).

Like the defendant in Givens, Chase was “acting as a

creditor and mortgagee to collect a debt owed to itself,” and
thus the statutory exemption applies.
Because

Chase

is

not

a

“debt

2011 WL 806463, at *2.

collector”

under

the

Plaintiff’s Counts 14-20 must fail as against Chase.

FDCPA,
Summary

judgment will be entered against Plaintiff.
4.

Breach of Contract

Plaintiff asserts a claim for breach of contract against
Chase in Count 21 of his amended complaint.
under the DOT, and Texas law applies.6

6

This action arises

To establish a breach of

In a prior response in opposition, Plaintiff asserted that
“only three counts of the Complaint require application of Texas
state law: the breach of contract claim, the breach of duty . .
. of good faith and [fair] dealing, and the unjust enrichment
claim.”
(ECF No. 15, at 6).
Plaintiff incorporates this
earlier filing into his latest opposition to SLS’s partial
motion to dismiss. (See ECF No. 35-1, at 2). Defendants Chase
and SLS, however, do not address relevant choice-of-law issues
and variously cite to Maryland and Texas case law throughout
their filings.
The law of the forum state, Maryland, guides the choice-oflaw analysis. See Baker v. Antwerpen Motorcars Ltd., 807
F.Supp.2d 386, 389 n.13 (D.Md. 2011) (“In a federal question
[claim] that incorporates a state law issue, . . . a district
court applies the choice-of-law rules of the state in which it
sits unless a compelling federal interest directs otherwise.”).
In a contract claim, Maryland courts follow the rule of lex loci
contractus, applying the substantive law of the state where the
contract was formed, unless there is a choice-of-law provision
in the contract.
Am. Motorists Ins. Co. v. ARTRA Group, Inc.,
338 Md. 560, 573 (1995).
“Contracts relating to the sale of
realty are generally governed by the law of the jurisdiction in
which the property is located.”
Traylor v. Grafton, 273 Md.
649, 660 (1975).
Here, the DOT also provides: “This Security
Instrument shall be governed by federal law and the law of the
19

contract cause of action in Texas, a plaintiff must show: (1)
the existence of a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach of contract by the
defendant; and (4) damages suffered by the plaintiff as a result
of the breach.

Mullins v. TestAmerica, Inc., 564 F.3d 386, 418

(5th Cir. 2009) (citation omitted).

“A breach of contract . . .

only occurs when a party fails or refuses to perform an act that
it expressly promised to do.”

Gonzales v. Columbia Hosp. at

Med. City Dall. Subsidiary LP, 207 F.Supp.2d 570, 575 (N.D.Tex.
2002) (citation omitted).

Furthermore, to plead a breach of

contract claim, a plaintiff must identify a specific provision
of the contract that was allegedly breached.

Innova Hosp. San

Antonio, L.P. v. Blue Cross & Blue Shield of Georgia, Inc., 995
F.Supp.2d 587, 602 (N.D.Tex. 2014) (citations omitted).
Here, Chase acknowledges that the loan document qualifies
as

a

contract

breached

the

between

contract.

the

parties,

(ECF

No.

but

24-1,

it
at

denies
16).

that
Chase

it
has

provided evidence showing that it instructed Plaintiff to make
payments

of

$2,202.80

beginning

in

May

2012

as

part

of

his

obligation under the DOT to make payments on escrow, principal,
and interest.

Plaintiff refused to make these higher payments

jurisdiction in which the Property is located.” (ECF No. 24-6,
at 20).
Because the Property is located in Texas, Texas law
will be applied in analyzing Plaintiff’s contract claims.
20

and “instead continued to make the lower, previously effective
payment of $1,501.58.”

(Id.).

In the section titled “Payment

of Principal, Interest, Escrow Items, Prepayment Charges, and
Late Charges,” the DOT provides that “Lender may return any
payment or partial payment if the payment or partial payments
are insufficient to bring the Loan current.”
14).

(ECF No. 24-6, at

Accordingly, Chase had the option under the contract to

refuse

Plaintiff’s

partial

payments,

and

Chase

provided

Plaintiff with an explanation in its response to the April 2013
Request.

(See ECF No. 24-6, at 2-3).

Plaintiff alleges no

facts and presents no evidence in his opposition to support his
claim that Chase breached the contract.
5.

Breach of the Duty of Good Faith and Fair Dealing

In Count 22 of his amended complaint, Plaintiff asserts
that Chase breached its duty of good faith and fair dealing.7

In

Texas, “[a] common-law duty of good faith and fair dealing does
not exist in all contractual relationships.”

Subaru of Am. v.

David

225

McDavid

(citation

Nissan,

omitted).

Inc.,
In

84

S.W.3d

fact,

the

212,

Texas

(Tex.

Supreme

2002)

Court

has

expressly rejected the imposition of a duty of good faith and
fair dealing in all contracts.

Childers v. Pumping Sys., Inc.,

7

Although Chase cites only to Maryland law in its summary
judgment motion, this action arises under the DOT and Texas law
governs.
21

968 F.2d 565, 568 (5th Cir. 1992).
express

contractual

relationship

language

between

the

or

The duty arises only by
when

parties.

there

See

is

id.

a

special

“Generally,

a

special relationship resulting in the imposition of the duty of
good

faith

and

fair

dealing

is

found

between

an

insurance

company and its insured, but Texas courts have been reluctant to
extend

the

duty

of

good

faith

contractual relationships.”
533-34
“duty

(S.D.Tex.
of

good

1996)
faith

and

dealing

to

other

Bass v. Hendrix, 931 F.Supp. 523,

(citation
and

fair

fair

omitted).
dealing

is

Furthermore,
aimed

at

the

making

effective the agreement’s promises,” Fetter v. Wells Fargo Bank
Tex.,

N.A.,

110

S.W.3d

683,

689

(Tex.App.

2003)

(citation

omitted), but “does not create any new obligations” other than
those arising from the terms of the contract itself.

John Wood

Grp. USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 22 (Tex.App. 2000).
In other words, should the duty of good faith and fair dealing
apply,

it

would

not

obligate

a

lender

to

take

affirmative

actions that are not required to take under its loan agreement.
Here, there is no contract between Chase and Plaintiff upon
which a duty of good faith and fair dealing could be engrafted.
Plaintiff has not offered evidence of a special or fiduciary
relationship

between

“relationship

does

not

lender” under Texas law.

Chase

and

usually

Plaintiff,

exist

between

and
a

such

borrower

a
and

Bank One, Texas, N.A. v. Stewart, 967
22

S.W.2d 419, 442 (Tex.App. 1998).
evidence

demonstrating

a

Neither has Plaintiff provided

long-standing

personal

or

social

relationship or inequality in bargaining positions between the
parties, from which a duty of good faith and fair dealing could
arise.

See Bass, 931 F. Supp. at 534.

Therefore, Plaintiff’s

claim for breach of the duty of good faith and fair dealing in
Count 22 cannot survive summary judgment.
Even under Maryland law, the duty of good faith “does not
obligate [a lender] to take affirmative actions that the [party]
is clearly not required to take under [the contract].”
v. Columbia Bank, 91 Md.App. 346, 366 (1992).

Parker

In faulting Chase

for its failure to accept his partial loan payments, Plaintiff
effectively argues that Chase did not take certain actions that
it was not required to take under the DOT.
evidence

to

show

that

Chase

frustrated

Absent additional

the

purpose

of

the

contract or prevented Plaintiff from performing his obligations,
neither can Plaintiff succeed under Maryland law.
6.

Defamation

The parties treat Maryland law as controlling with regard
to

Plaintiff’s

defamation

claims.

23

Plaintiff,

a

resident

of

Maryland

at

all

relevant

times,

was

allegedly

injured

by

Defendants’ defamatory statements in Maryland.8
In Count 23, Plaintiff alleges that Chase falsely, without
justification,

and

published

credit

to

with

reckless

reporting

disregard
agencies

for

the

truth,

statements

about

Plaintiff that are injurious to his reputation and financially
damaging.

(ECF No. 18, at 25).

Chase disputes that Plaintiff

has provided facts or allegations sufficient to demonstrate a
prima facie defamation case.

(ECF No. 24-1, at 17-18).

Under

Maryland law, to establish a prima facie case, Plaintiff must
prove that: (1) the defendant made a defamatory communication to
a third person; (2) the statement was false; (3) the defendant
was

at

fault

in

communicating

plaintiff suffered harm.

the

statement;

and

(4)

the

See Thacker v. City of Hyattsville,

135 Md.App. 268, 313 (2000).

Thus, a defamation plaintiff has

the burden of proving the falsity of the alleged defamatory
8

For tort claims, Maryland applies the principle of lex
loci delicti, or the law of the “place of the alleged harm.”
Proctor v. Washington Metropolitan Area Transit Auth., 412 Md.
691, 726 (2010).
“Lex loci delicti dictates that when an
accident occurs in another state[, the] substantive rights of
the parties, even though they are domiciled in Maryland, are to
be determined by the law of the state in which the alleged tort
took place.” Philip Morris Inc. v. Angeletti, 358 Md. 689, 745
(2000) (citation and internal quotation marks omitted).
Given
Plaintiff’s location, the alleged harms would have occurred in
Maryland.
In light of these considerations, Maryland law will
govern with respect to the analysis of Plaintiff’s claims
sounding in tort.
As noted, this is consistent with the
parties’ arguments.
24

statements.
(1976).

Gen.

Motors

Corp.

v.

Piskor,

277

Md.

165,

171

Given that Plaintiff bears the burden of demonstrating

falsity, he must provide evidence supporting his contention that
Chase’s statements to third parties were untrue.
however, fails to meet this burden.

Plaintiff,

In his amended complaint,

he effectively concedes that he did not pay in full the monthly
fees sought by Defendants.
Ervin

v.

4052895,

JP

Morgan

at

*6

Chase

(D.Md.

(ECF No. 18 ¶¶ 70-71, 97-98); see
Bank

Aug.

NA,
13,

No.

GLR-13-2080,

2014)

(footnote

2014

WL

omitted)

(citation omitted) (noting that “[e]ven if there was a dispute
or actual error as to the escrow analysis, however, this dispute
did not justify [the borrower’s] decision to pay less than the
full amount owed”).

Although underpinning Plaintiff’s case is

his contention that he did not default on his mortgage loan
obligations, he acknowledges that he did not make payments in
the amounts specified by his loan servicers.
Plaintiff fails to offer evidence sufficient to state a
defamation claim against Chase.
7.

Tortious Interference with Economic Relations

Again, the parties treat Maryland law as controlling with
regard

to

Plaintiff’s

economic relations.
Maryland.

In

claims

for

tortious

interference

with

Plaintiff’s alleged injury took place in

Count

24,

Plaintiff

argues

that

Chase

intentionally and willfully interfered with Plaintiff’s economic
25

relations.
economic

To

state

relations

a

claim

under

of

tortious

Maryland

interference

with

Plaintiff

must

law,

demonstrate: (1) an intentional and willful act on the part of
the defendant; (2) calculated to cause damage to the plaintiff
in plaintiff’s economic relations; (3) done with an unlawful
purpose,
malice;

without
and

plaintiff.

(4)

right

or

resulting

justification,
in

actual

which

damage

and

constitutes
loss

to

the

Blondell v. Littlepage, 413 Md. 96, 125 (2010).

Chase contends that it “was simply reporting a customer’s
delinquency to the credit reporting agencies.”
at 18).

(ECF No. 24-1,

Chase argues that its reports were factually correct,

as Plaintiff was delinquent on his loan.

(Id.).

Moreover,

Plaintiff has not offered facts or evidence either to counter
Chase’s contention or to demonstrate that Chase acted willfully
and without right or justifiable cause in causing damage to
Plaintiff.

See Kwang Dong Pharm. Co. v. Han, 205 F.Supp.2d 489,

496 (D.Md. 2002) (citing Natural Design, Inc. v. Rouse Co., 302
Md. 47, 69-70 (1984)).

Summary judgment will be entered for

Chase.

26

8.

Unjust Enrichment

Plaintiff’s unjust enrichment claim will be analyzed under
Texas law.9

Chase contends that Plaintiff failed to plead facts

alleging or offer evidence demonstrating that Chase was unjustly
enriched.

(ECF

No.

24-1,

at

18-19).

Generally,

unjust

enrichment provides “restitution when a party receiving property
or benefits would be unjustly enriched if it were permitted to
retain the property or benefits at the expense of another.”
Heldenfels Bros. v. City of Corpus Christi, 832 S.W.2d 39, 43
(Tex.

1992)

(Gammage,

J.,

dissenting)

(citation

omitted).

Although Texas courts still occasionally refer to an “unjust
enrichment claim,” see, e.g., Elledge v. Friberg–Cooper Water
Supply Corp., 240 S.W.3d 869 (Tex. 2007), “these opinions do
not, however, characterize unjust enrichment as a separate cause
of action from money had and received; they consider it to be a
general

theory

restitution.”

of

recovery

for

an

equitable

action

seeking

Hancock v. Chicago Title Ins. Co., 635 F.Supp.2d

9

Maryland employs the same choice-of-law analysis for
unjust enrichment claims as for contract claims.
See Konover
Prop. Trust, Inc. v. WHE Assocs., Inc., 142 Md.App. 476, 490–92
(2002) (stating that lex loci contractus, “the place the
contract was made,” determines choice of law in contract
disputes and unjust enrichment claims); RaceRedi Motorsports,
LLC v. Dart Mach., Ltd., 640 F.Supp.2d 660, 666 (D.Md. 2009)
(applying the rule of lex loci contractus to determine choiceof-law for an unjust enrichment claim).
Because Plaintiff’s
property is located in Texas and the DOT provides that Texas law
governs claims brought under the loan agreement, Plaintiff’s
unjust enrichment claim will be analyzed under Texas law.
27

539,

560

(N.D.Tex.

enrichment claims).

2009)

(dismissing

the

plaintiffs’

unjust

As a result, Plaintiff cannot sustain his

claim for unjust enrichment stated in Count 25 of his amended
complaint.
Were Maryland law controlling, Plaintiff would not survive
summary judgment because he fails to identify any payments or
items

of

value

received

and

retained

by

Chase

“under

such

circumstances as to make it inequitable for the defendant to
retain the benefit without payment of it[s] value.”

Klein v.

Fid. & Deposit Co. of Am., 117 Md.App. 317, 346 (1997) (citation
omitted).
the

Rather, Plaintiff was required to make payments under

loan

agreement

and,

after

May

2012,

was

in

default

for

failing to pay in full.
9.

Maryland Consumer Protection Laws

In Counts 26-28, Plaintiff states claims against Defendants
under the Maryland Consumer Debt Collection Act (“MCDCA”), the
Maryland

Consumer

Mortgage
challenged

Fraud
the

Protection
Protection

Act
Act

applicability

(“MCPA”),
(“MMFPA”).

of

these

and

the

Maryland

Although
Maryland

SLS

consumer

protection statutes to the present case (see ECF No. 19-1, at
22) and Chase expressly adopts and incorporates SLS’s arguments
into its summary judgment motion (ECF No. 24-1, at 8), Chase
also advances arguments on the merits (see ECF No. 24-1, at 1921).
28

a.

MCDCA

In Count 26 of the amended complaint, Plaintiff asserts
claims against Chase under the MCDCA.
14-201, et seq.

Md. Code Ann., Com. Law §

Plaintiff states that “Chase, as the principal

for its division and/or sub-agent, SLS, is liable as a principal
for the actions of SLS.”

(ECF No. 18, at 26).

In support of

this claim, Plaintiff merely alleges that “Defendant SLS is a
division

and/or

subagent

of

Defendant

Chase.”

(Id.

¶

14).

Plaintiff provides no evidentiary support for his contention.
Furthermore,

as

Plaintiff

cannot

demonstrate

that

Chase

is

vicariously liable as a principal for the actions of SLS, he
cannot assert liability against the assignor of a loan arising
from the acts of the assignee.
§

120

(“Ordinarily

the

See, e.g., 6A C.J.S. Assignments

assignor

is

not

liable

for

damages

arising subsequent to the assignment occasioned by acts of the
assignee.”).
Plaintiff also asserts that Chase, acting with knowledge
that Plaintiff’s debt was invalid, attempted “to enforce a right
with knowledge that the right does not exist.”
Com. Law § 14–202(8).

Md. Code Ann.,

Plaintiff thus attacks the validity of

sums Chase demanded under the mortgage agreement.

However, the

MCDCA does not allow for recovery based on errors or disputes in
the process or procedure of collecting legitimate, undisputed
debts.

Marchese v. JPMorgan Chase Bank, N.A., 917 F.Supp.2d
29

452,

464

(D.Md.

2013).

proscribe

certain

mechanism

for

Furthermore,

methods

attacking

of

debt

the

the

MCDCA

collection

validity

of

is

and

the

meant
is

debt

not

to
a

itself.

Fontell v. Hassett, 870 F.Supp.2d 395, 405 (D.Md. 2012) (“[The
MCDCA]

focuses

attempting

to

on

collect

itself is valid.”).
basis

for

the

conduct

on

the

of

debt,

the

debt

whether

collector

or

not

the

in
debt

Accordingly, because the MCDCA provides no

liability

in

contesting

the

underlying

debt,

as

Plaintiff seeks to do here, Plaintiff’s argument must fail.
In

addition,

Plaintiff

asserts

that

Chase

used

“communication[s] which . . . give[] the appearance of being
authorized, issued, or approved by a government, governmental
agency, or lawyer when [they are] not.”
§

14–202(9).

complaint,
evidence.

Beyond

however,

conclusory

Plaintiff

Md. Code Ann., Com. Law

allegations

does

not

offer

in

his

any

amended

supporting

Summary judgment will be entered in favor of Chase on

Plaintiff’s MCDCA claims included in Count 26.
b.

MCPA

In Count 27, Plaintiff states several claims against Chase
arising under the MCPA.
seq.

Plaintiff’s

Md. Code Ann., Com. Law § 13-101, et

first

violation of the MCDCA.

claim

refers

to

Chase’s

purported

See id. § 13-301(14)(iii) (establishing

that any violation of the MCDCA is a per se violation of the
MCPA).

However, as discussed in the foregoing section, summary
30

judgment will be entered in favor of Chase on Plaintiff’s MCDCA
claims.
Plaintiff’s remaining claims against Chase arising under
the MCPA are based on allegations that Chase falsely represented
that: (1) it would assist Plaintiff with the resolution of the
loan; (2) its debt collectors were “loss mitigation analysts”;
(3)

Plaintiff

Plaintiff’s

could

mortgage

not
loan

self-manage
had

been

his

escrow

transferred,

account;
assigned,

(4)
or

sold for value for servicing when in fact Chase placed the loan
in collections status and SLS accepted it as a defaulted debt;
and (5) Plaintiff was in foreclosure and Defendants would be
accelerating Plaintiff’s debt.

(ECF No. 18, at 28-29).

He

further alleges that Chase adopted software that facilitated the
above-mentioned
summary

misrepresentations.

judgment

demonstrate

motion,

that

misrepresentations.10

he

Chase
was

(Id.

argues
damaged

at

that
by

(ECF No. 24-1, at 20-21).

29).

In

its

Plaintiff

cannot

its

alleged

A private party

bringing suit under the MCPA:
must establish that he or she has suffered
an identifiable loss, measured by the amount
the consumer spent or lost as a result of
his
or
her
reliance
on
the
.
.
.
10

Chase asserts that Plaintiff “is unable to state damages”
caused by its purported misrepresentations, which at summary
judgment stage will be construed as a challenge to Plaintiff to
offer evidence supporting his MCPA claims.
(ECF No. 24-1, at
21).
31

misrepresentation.
Thus, Plaintiffs must
establish actual injury or loss, despite the
language in § 13–302[,] [i.e., that [a]ny
practice prohibited by this title is a
violation . . . whether or not any consumer
in fact has been misled, deceived, or
damaged as a result of that practice.]
Green v. Wells Fargo Bank, N.A., 927 F.Supp.2d 244, 254 (D.Md.
2013), aff’d, 582 F.App’x 246 (4th Cir. 2014) (citations and
internal

quotation

marks

omitted);

see

also

Willis

v.

Countrywide Home Loans Servicing, L.P., No. CCB-09-1455, 2009 WL
5206475, at *6 (D.Md. Dec. 23, 2009)
quotation

marks

omitted)

(“[A]n

(citation and internal

individual

may

only

bring

a

claim under the [M]CPA, therefore, if she can establish the
nature of the actual injury or loss that he or she has allegedly
sustained as a result of the prohibited practice.”).
Here, Plaintiff has not offered any evidence that he was
actually

damaged

as

a

result

misrepresentations.

This

is

Plaintiff’s

arise

from

“problems

of

so,

Chase

his

Chase’s
notes,

failure

to

alleged
because
make

payments required – not from any action taken by Chase.”
No. 24-1, at 21).
complaint

general

the
(ECF

Although Plaintiff includes in his amended
statements

that

“he

justifiably

relied

on”

Chase’s misrepresentations (ECF No. 18, at 29), he does not
provide any supporting evidence.
be

within

Plaintiff

his
has

control

or

offered

nothing

Such evidence certainly would

personal

32

to

knowledge.
counter

Given

Chase’s

that

summary

judgment motion, and that Plaintiff’s allegations indicate that
he consistently disputed Chase’s position that the mortgage loan
was in default, Plaintiff’s MCPA claims must fail as against
Chase.

See Castle v. Capital One, N.A., No. WMN-13-1830, 2014

WL 176790, at *6 (D.Md. Jan. 15, 2014); Coulibaly v. J.P. Morgan
Chase

Bank,

N.A.,

No.

DKC-10-3517,

2011

WL

3476994,

at

*19

(D.Md. Aug. 8, 2011) (applying Maryland law and concluding that
the

plaintiff

could

not

establish

reliance

element

of

fraud

claim where “the complaint indicates that Plaintiff protested
many

of

[the

Summary

defendant]’s

judgment

will

be

actions

at

every

opportunity”).

entered

in

favor

of

Chase

on

Plaintiff’s MCPA claims.
c.
In

MMFPA
Count

Defendants.

28,

Plaintiff

asserts

MMFPA

violations

against

Md. Code Ann., Real Prop. § 7-401, et seq.

To the

extent that Plaintiff seeks to assert an MMFPA claim against
Chase

on

the

foregoing

basis

analysis

of
is

assignor
sufficient.

or

vicarious
See

liability,

supra

Part

the

II.B.9.a

(noting that Plaintiff provides no evidentiary support for the
alleged
assignor

agency
of

assignee).

a

relationship
loan

liability

and

cannot

arising

assert

from

the

against
acts

Under the MMFPA:
“Mortgage fraud” means any action by a
person made with the intent to defraud that
involves:
33

of

an
the

(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;
(2) Knowingly creating or producing a
document for use during the mortgage
lending
process
that
contains
a
deliberate
misstatement,
misrepresentation, or omission with the
intent that the document containing the
misstatement,
misrepresentation,
or
omission be relied on by a mortgage
lender, borrower, or any other party to
the mortgage lending process;
(3) Knowingly using or facilitating the
use of 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;
(4) Receiving any proceeds or any other
funds in connection with a mortgage
closing that the person knows resulted
from a violation of item (1), (2), or
(3) of this subsection; [or]
(5) Conspiring to violate any of the
provisions of item (1), (2), (3), or
(4) of this subsection.
Md. Code Ann., Real Prop. § 7-401(d).
process”

broadly

origination,

includes

negotiation,

the

“solicitation,

servicing,

34

The “mortgage lending
application,

underwriting,

signing,

closing, and funding of a mortgage loan.”

Id. § 7-401(e)(2)(i).

The

action

MMFPA

provides

a

private

right

of

“for

incurred as a result of a violation of this subtitle.”

damages
Id. § 7–

406(a)(1).
Plaintiff argues that Chase made deliberate “misstatements,
misrepresentations, and omissions during the mortgage lending
process” sufficient to create liability.
30-31).

(See ECF No. 18, at

The MMFPA does not define the terms “misstatement,”

“misrepresentation,”

or

“omission,”

as

used

in

the

statute.

However, MMFPA claims sound in common law fraud and Plaintiff
“must establish the elements of fraud ‘by clear and convincing
evidence.’”

Ademiluyi v. PennyMac Mortgage Inv. Trust Holdings

I, LLC, 929 F.Supp.2d 502, 530 (D.Md. 2013) (quoting Md. Envir.
Trust v. Gaynor, 370 Md. 89, 97 (2002)); see Galante v. Ocwen
Loan Servicing LLC, No. ELH-13-1939, 2014 WL 3616354, at *28
(D.Md. July 18, 2014).

To maintain an action for fraudulent

misrepresentation, Plaintiff must demonstrate that, inter alia,
he “relied on the misrepresentation and had the right to rely on
it” and that he “suffered compensable injury resulting from the
misrepresentation.”
foregoing

analysis

Ademiluyi,
with

applies here as well,

respect

see supra

929
to

F.Supp.2d

at

Plaintiff’s

520.
MCPA

The
claims

Part II.B.9.b, as Plaintiff

cannot demonstrate reliance or resulting damage.

At the summary

judgment stage, Plaintiff may not rest on general allegations;
35

rather,

he

affidavits

must
or

Fed.R.Civ.P.

offer

evidence

declarations

56(c)(4).

from

made

Given

the

on

record,

personal

Plaintiff’s

including
knowledge.

failure

to

present

evidence demonstrating that Chase violated the MMFPA, summary
judgment will be entered in favor of Chase.
III. Plaintiff’s Verified Motion in Response
Chase’s Motion for Summary Judgment
Responding
judgment

in

motion,

opposition
Plaintiff

to

Defendant

requests

that

to

Defendant

Chase’s
this

summary

court

defer

decision on or deny without prejudice Chase’s motion pending
disposition
Through

of

these

Defendant
requests,

SLS’s

unresolved

Plaintiff

attempts

motion
to

to

avoid

dismiss.
summary

judgment by deferral or delay rather than by asserting facts
sufficient to raise a triable issue.
A.
Plaintiff’s Request to Defer Judgment Pending
Disposition of Defendant SLS’s Motion to Dismiss
Plaintiff

supports

his

position

by

citing

Local

Rule

105.2.c, titled “Where More Than One Party Plans to File Summary
Judgment Motions.”

(ECF No. 29-1, at 2).

Relying on Local Rule

105.2.c, Plaintiff argues that Chase’s motion should be deferred
or dismissed because Chase did not signal its intention to move
for summary judgment in advance.

(Id. at 4).

Here, Chase is

the only party to have moved for summary judgment, and there is
no indication that Plaintiff sought to file for summary judgment

36

as well.

Thus, the application of Local Rule 105.2.c to defer

or deny Chase’s motion is inapposite.
Plaintiff

further

argues

that

Chase’s

summary

judgment

motion “seems directed, at least in part, towards the legal
sufficiency

of

the

Plaintiff’s

amended

complaint,

that

is,

Defendant Chase has in substance filed a Rule 12(b)(6) Motion
after

service

of

its

answer.”

(Id.

at

3).

In

addition,

Plaintiff notes, Chase “adopts and incorporates by reference . .
. the arguments made by SLS in its Motion to Dismiss.”
24-1,

at

8).

Asserting

that

Chase

is

(ECF No.

“piggybacking

a

Rule

12(b)(6) Motion upon its Rule 56 Motion for Summary Judgment,”
Plaintiff seeks that a decision on Chase’s motion be deferred or
denied without prejudice.

(ECF No. 29-1, at 3).

Plaintiff’s

contentions are unpersuasive, particularly given that Plaintiff
has had an opportunity to respond to Chase’s motion and submit a
proper Rule 56(d) request for additional discovery.

The mere

fact that SLS’s motion to dismiss under Rule 12(b)(6) is pending
does not justify denial of Chase’s summary judgment motion.
B.

Plaintiff’s Rule 56(d) Request

Alternatively,

Plaintiff

requests

that

this

court

defer

decision on or deny without prejudice Chase’s summary judgment
motion pending discovery pursuant to Rule 56(d).
at 1).

(ECF No. 29,

In support, Plaintiff supplies an affidavit in which he

states: “Because discovery has not begun . . . , I am unable to
37

present the facts essential to justifying my opposition to the
Defendant Chase’s Motion for Summary Judgment.”

(ECF No. 29-2 ¶

2).
As a general matter, Rule 56(d) allows district courts to
deny

summary

judgment

or

delay

ruling

on

the

motion

until

discovery has occurred if the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential
Summary

to

justify

judgment

its

opposition.”

ordinarily

is

Fed.R.Civ.P.

inappropriate

if

“the

56(d).
parties

have not had an opportunity for reasonable discovery,” E.I. du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448
(4th Cir. 2011), but Rule 56(d) requests “cannot simply demand
discovery for the sake of discovery.”

Hamilton v. Mayor & City

Council of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011).
interpreting

Rule

56(d)

have

consistently

held

Courts
that

a

nonmovant’s request may be denied if “the additional evidence
sought for discovery would not have by itself created a genuine
issue of material fact sufficient to defeat summary judgment.”
Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th
Cir. 2006) (internal quotation marks omitted); see Poindexter v.
Mercedes–Benz Credit Corp., No. 14–1858, 2015 WL 4081208, at *3
(4th Cir. July 7, 2015) (upholding the district court’s summary
judgment

ruling

despite

the

plaintiff’s

Rule

56(d)

request

because she “has not explained . . . how the information [sought
38

in discovery] could possibly create a genuine issue of material
fact

sufficient

for

her

to

survive

summary

otherwise affect the court’s analysis”).

judgment,

or

“In other words, a

nonmovant must provide ‘a reasonable basis to suggest that [the
requested] discovery would reveal triable issues of fact’ in
order for such a request to be granted.”

Agelli v. Sebelius,

No. DKC-13-497, 2014 WL 347630, at *9 (D.Md. Jan. 30, 2014)
(quoting McWay v. LaHood, 269 F.R.D. 35, 38 (D.D.C. 2010)).
Plaintiff’s

Rule

56(d)

affidavit

seeks

several

forms

of

discovery from Chase to justify his opposition to the summary
judgment motion, including: the escrow audit trail; the interest
audit trail; the audit trail or log from telephone calls between
Plaintiff and Chase; audio recordings and notes entered on his
account; the audit trail or log of Chase’s mortgage service
enterprise

desk

for

account

resolution;

Chase’s

documented

business procedures for correcting escrow miscalculations; the
audit

trail

or

log

for

inquiries

made

by

Equifax

to

Chase

requesting correction of Plaintiff’s credit report; the audit
trail
credit

and

digital

reporting

signatures

system(s)

for

for

Chase’s

Plaintiff’s

adverse

electronic

mortgage

account;

Chase’s customized accounting systems used for loss mitigation;
documentation of or related to the transfer of Plaintiff’s loan
serving to SLS; documentation in Chase’s possession showing that
Chase acknowledged Plaintiff’s written requests for information;
39

Chase’s

business

processes

for

reconciling

financial

information; and depositions of David Grace and Shannon Moss.
(ECF No. 29-2 ¶¶ 6-20).

Plaintiff contends that “[t]he above

discovery

is

good

essential

to

listed

in

oppose

faith

Defendant

to

Chase’s

establish
Motion

Judgment and is not for the purposes of delay.”

the

for

facts
Summary

(Id. ¶ 21).

In

its reply, Chase emphasizes that the issues for which Plaintiff
requests

“discovery

have

absolutely

nothing

whatsoever

to

do

with creating a genuine issue as to any fact material to the
Motion.”

(ECF No. 30, at 1).

The additional discovery sought by Plaintiff would not, by
itself, create a genuine issue of material fact sufficient to
defeat Chase’s summary judgment motion.

Although Plaintiff’s

case is premised upon the belief that he has made his loan
payments in full and on time, evidence produced by Defendants
and uncontroverted by Plaintiff shows that he went into default
on May 1, 2012 and has since remained in default.

Additional

discovery will not change this or other material facts.

Indeed,

Plaintiff has failed to supply specific facts or allegations
demonstrating why discovery would show otherwise.

See, e.g.,

Mercer v. Arc of Prince George’s Cnty., 532 F.App’x 392, 400 (4th
Cir. 2013) (upholding summary judgment for the defendant because
the plaintiff’s “minimal effort [to detail why discovery was
necessary] is insufficient to compel denial of the [defendant’s]
40

summary judgment motion”); Fierce v. Burwell, No. RWT-13-3549,
2015 WL 1505651, at *8 (D.Md. Mar. 31, 2015) (granting summary
judgment for the defendant and concluding with respect to the
plaintiff’s
reasons.

Rule

56(d)

Defendants

request:

have

“These

specified

the

are

not

facts,

and

specified
provided

extensive evidence in support of those facts, which they argue
entitle them to summary judgment.”).

Here, although Plaintiff

simply asserts “that the essential facts necessary to justify
his opposition are in the possession of Defendant Chase,” a
thorough review of Plaintiff’s Rule 56(d) affidavit reveals no
reasonable basis to suggest that the requested discovery would
reveal triable issues of fact.

(ECF No. 29-1, at 4).

Plaintiff

cannot brandish Rule 56(d) in an attempt to cure his case, which
is

based

ultimately

on

an

erroneous

belief.

Accordingly,

Plaintiff’s Rule 56(d) request will be denied.
IV.

Defendant SLS’s Rule 12(b)(6) Motion to Dismiss
Defendant SLS has filed duplicative motions to dismiss for

failure

to

state

a

claim

upon

which

relief

can

be

granted.

SLS’s initial filing on April 16, 2014 also included motions to
dismiss for improper venue under Rule 12(b)(3) and to transfer
on the basis of forum non conveniens.

(ECF No. 19).

As noted

above, SLS’s Rule 12(b)(3) motion and its motion to transfer
were denied.

(See ECF No. 31).

However, SLS’s Rule 12(b)(6)

motion remained under consideration.
41

(See id. at 6, n.3).

In

the interim, SLS again filed a motion to dismiss, renewing its
Rule 12(b)(6) arguments and asserting that the court lacks in
rem jurisdiction over the Property.

(ECF No. 33).

Plaintiff

opposes SLS’s motion on the ground that its earlier motion to
dismiss

remains

under

consideration

arguments have been decided.

and

its

Rule

12(b)(3)

(ECF No. 35-1, at 2).

SLS’s two filings shall be considered together because, in
essence, it has filed the same motion twice.11

In addition, to

the extent SLS’s motion seeks to dismiss some of Plaintiff’s
requested

relief

under

Rule

12(b)(6)

for

lack

of

in

rem

jurisdiction, it will be denied.12

11

This opinion will refer and cite to SLS’s latest motion.
(See ECF No. 33-1).
12

In its latest motion, SLS repeats its argument that this
court lacks in rem jurisdiction over the Property and, as a
result, Plaintiff’s claim for in rem relief must be dismissed.
(ECF No. 33-1, at 13-14).
Whereas this court’s earlier
memorandum opinion determined venue to be proper even though it
may lack in rem jurisdiction necessary to award Plaintiff some
of his requested relief (see ECF No. 31, at 7-15), SLS now seeks
to draw a distinction, arguing that the prior opinion addressed
the “issue in the context of venue, not with respect to the
motion to dismiss [for failure to state a claim upon which
relief can be granted].” (ECF No. 38, at 3). Just as before,
however, the type of relief sought by Plaintiff need not be
dismissed under Rule 12(b)(6) for lack of in rem jurisdiction.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of
the allegations set forth in the complaint and is concerned with
Plaintiff’s claims, not prospective relief. Furthermore, “[t]he
part of Plaintiff’s requested relief that directly affects the
Property – an injunction and a constructive trust – is de
minimis and if it cannot be granted, it will be Plaintiff’s
42

A.

Standard of Review Under Rule 12(b)(6)

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, 556 n.3 (2007).

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) (citations and internal quotation marks 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

loss, not Defendants’.”
(citation omitted)).

accepted.

Revene

v.

Charles

Cnty.

(ECF No. 31, at 11 (footnote omitted)

43

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

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.
604

F.2d

844,

847

(4th

United Black Firefighters v. Hirst,
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.’”

Iqbal,

8(a)(2)).

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
that

requires

the

reviewing

experience and common sense.”

court
Id.

to

draw

on

its

judicial

Furthermore, the court is

not required “to accept as true allegations that are merely
conclusory,
inferences.”

unwarranted

deductions

of

fact,

or

unreasonable

Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)

(citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001)).
A court reviewing a motion to dismiss pursuant to Rule
12(b)(6)

generally

may

not

consider

extrinsic

evidence.

However, “the court may properly consider documents ‘attached or
incorporated into the complaint,’ as well as documents attached
to the defense motion, ‘so long as they are integral to the
44

complaint

and

authentic.’”

Parrotte

v.

Lionetti

Associates,

LLC, No. ELH-13-2660, 2014 WL 1379790, at *3 (D.Md. Apr. 7,
2014) (quoting Philips v. Pitt County Memorial Hosp., 572 F.3d
176,

180

(4th

Cir.

2009));

see

HQM,

Ltd.

v.

Hatfield,

71

F.Supp.2d 500, 502 (D.Md. 1999) (“The [United States Court of
Appeals for the] Fourth Circuit and courts in this district have
recognized an exception for written documents referred to in the
complaint and relied upon by the plaintiff in bringing the civil
action.”).

“An integral document is a document that by its very

existence, and not the mere information it contains, gives rise
to

the

legal

rights

asserted.

In

addition

to

integral

and

authentic exhibits, on a 12(b)(6) motion the court may properly
take judicial notice of matters of public record.”

Chesapeake

Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d
602, 611 (D.Md. 2011) (citations and internal quotation marks
omitted).

Here, Plaintiff attached to his initial complaint

copies of the DOT and the Note.
that

these

documents

are

(ECF Nos. 1-1; 1-2).

central

to

Plaintiff’s

Given
amended

complaint and attached to SLS’s motions, the undersigned will
consider them in resolving the pending motion.
In addition, although courts generally should hold pro se
pleadings

“to

less

stringent

standards

than

formal

pleadings

drafted by lawyers,” they may nevertheless dismiss complaints
that lack a cognizable legal theory or fail to allege sufficient
45

facts under a cognizable legal theory.

Haines v. Kerner, 404

U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d 391, 398
(D.Md. 2002), aff’d, 121 F.App’x. 9 (4th Cir. 2005).
B.

Analysis

1.

RESPA

In Counts 1-12 of his amended complaint, Plaintiff asserts
that

Defendants

2605(e).

collectively

violated

RESPA.

U.S.C.

§

In Counts 1-4, Plaintiff argues that Defendants failed

timely to acknowledge receipt of his QWRs.
asserts

12

that

Defendants

properly to his QWRs.

failed

to

In Counts 5-8, he

investigate

and

respond

Counts 9-12 contain Plaintiff’s claims

that Defendants continued to report adverse credit information
after

receipt

of

his

QWRs.

Plaintiff’s

amended

complaint

suggests that two written transmissions to SLS might constitute
QWRs: a July 1, 2013 fax (ECF No. 18 ¶ 143) and an August 21,
2013 letter (Id. ¶ 147).
not

challenge

whether

In its motions to dismiss, SLS does
either

communication

satisfies

the

statutory requirements of a QWR.
RESPA

requires

that

servicers

of

a

“federally

related

mortgage loan” take certain actions and provide certain written
responses within specified periods of time after receiving a QWR
from a borrower.

According to § 2605(e)(1)(A): “If any servicer

of

related

a

federally

mortgage

loan

receives

a

qualified

written request from the borrower . . . for information relating
46

to the servicing of such loan, the servicer shall provide a
written

response

acknowledging

receipt

of

the

correspondence

within 20 days (excluding legal public holidays, Saturdays, and
Sundays).”13

Within 60 days from receipt of the QWR (excluding

Saturdays, Sundays, and holidays), the loan servicer shall:
(A) make appropriate corrections in the
account of the borrower, including the
crediting of any late charges or penalties,
and transmit to the borrower a written
notification of such correction (which shall
include the name and telephone number of a
representative of the servicer who can
provide assistance to the borrower);
(B)
after
conducting
an
investigation,
provide
the
borrower
with
a
written
explanation or clarification that includes-(i)
to
the
extent
applicable,
a
statement of the reasons for which the
servicer believes the account of the
borrower is correct as determined by
the servicer; and
13

The Dodd–Frank Wall Street Reform and Consumer Protection
Act amended RESPA to reduce the time period to acknowledge
receipt of a QWR from twenty (20) days to five (5) days.
It
also reduced the time period during which a servicer had to
investigate and respond from sixty (60) days to thirty (30)
days, with an additional fifteen (15) day extension possible if,
before the end of the thirty day period, the servicer notifies
the borrower of the extension and the reasons for delay in
responding.
Pub.L. 111–203 § 1463(c)(2), (3), 124 Stat. 1376,
2184 (2010); see Cezair v. JPMorgan Chase Bank, N.A., No. DKC13-2928, 2014 WL 4295048, at *7 n.8 (D.Md. Aug. 29, 2014).
These modifications went into effect on January 10, 2014, when
the implementing regulations took effect. 12 C.F.R. § 1024, et
seq.; Pub.L. 111–203 § 1400(c)(2), 124 Stat. 1376, 2136; see
Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3 (10th
Cir. 2013).
Here, the last alleged QWR is dated August 21,
2013, before the new time periods under RESPA became effective.
47

(ii) the name and telephone number of
an individual employed by, or the
office or department of, the servicer
who can provide assistance to the
borrower; or
(C)
after
conducting
an
investigation,
provide
the
borrower
with
a
written
explanation or clarification that includes —
(i)
information
requested
by
the
borrower or an explanation of why the
information requested is unavailable or
cannot be obtained by the servicer; and
(ii) the name and telephone number of
an individual employed by, or the
office or department of, the servicer
who can provide assistance to the
borrower.
Id.

§

2605(e)(2).

Furthermore,

during

the

60-day

period

following a servicer’s receipt of a QWR “relating to a dispute
regarding the borrower’s payments, a servicer may not provide
information regarding any overdue payment, owed by such borrower
and relating to such period or [QWR], to any consumer reporting
agency.”
a.

Id. § 2605(e)(3).
Failure to Acknowledge

Challenging

liability

under

RESPA

for

failure

to

acknowledge, SLS argues that Plaintiff does not allege “when
either purported QWR was received by SLS,” and “[a]bsent an
allegation as to when either correspondence was received, there
can be no RESPA liability.”
attempts

to

rebut

SLS’s

(ECF No. 33-1, at 6-7).

arguments
48

in

an

earlier

Plaintiff
opposition

motion (ECF No. 22, at 7-9), which he incorporates by reference
into his most recent opposition (ECF No. 35-1, at 2).

There,

Plaintiff asserts that he “is not required to plead the actual
dates the QWRs were received by Defendant SLS as that would not
be within his personal knowledge.

If Defendant SLS did not

receive the QWRs in the ordinary course of business, SLS should
raise that in its answer.”
SLS

cannot

succeed

(ECF No. 22-1, at 7).
on

its

motion

to

dismiss

simply

by

arguing that Plaintiff failed to allege when his purported QWRs
were received by SLS.

See Kapsis v. Am. Home Mortgage Servicing

Inc., 923 F.Supp.2d 430, 446 (E.D.N.Y. 2013) (treating as QWRs
those

communications

listed

in

the

amended

complaint

and

determining that the defendant loan servicer’s duty to respond
under RESPA was triggered when the “plaintiff indicates when the
letter was sent, to whom it was sent, why it was sent, and a
summary of the request contained therein”); Henok v. Chase Home
Fin., LLC, 915 F.Supp.2d 109, 119 (D.D.C. 2013) (determining
that

the

defendant

plaintiff’s
mortgagee

failure to respond).
ELH-14-02446,

2015

allegation

stated

a

that

claim

he

under

sent
§

letters

2605(e)(1)

to
for

Compare McCray v. Bank of Am., Corp., No.
WL

3487750,

at

*9

(D.Md.

June

1,

2015)

(“Taking as true the allegation that [the plaintiff] sent the
letter . . . , it is clear that the correspondence identified
the

plaintiff

and

her

loan/account
49

number,

was

sent

to

defendant,
enable

and

identified

defendant

to

sufficiently

investigate

specific

those

concerns

concerns

and

to
to

respond.”), with Blanchard v. Northway Bank, No. 13–CV–119, 2013
WL 1775460, at *2 (D.N.H. Apr. 25, 2013) (noting that a RESPA
claim that failed to “attach the alleged QWR” or provide “any
factual allegations describing [the QWR’s] contents” would be
insufficient to state a claim for relief), and Moore v. U.S.
Bank, N.A., No. 1:12–CV–1087, 2013 WL 1500594, at *3 (W.D.Mich.
Apr. 10, 2013) (dismissing a RESPA claim where the plaintiff had
“presented no facts showing that he made a QWR, besides his
conclusory allegation”).
Here,

Plaintiff

pleads

facts

in

his

amended

complaint

sufficient to allege that his July 1 fax and August 21 letter
contained information concerning “the name and account of the
borrower” and “reasons for the belief of the borrower, to the
extent applicable, that the account is in error or provides
sufficient detail to the servicer regarding other information
sought by the borrower.”
No. 18 ¶¶ 143, 147).

12 U.S.C. § 2605(e)(1)(B); (see ECF

He alleges that, in his July 1 fax, he

included “proof of payment for the past 20 months to show that
the account paid on time and no escrow shortage through this
month, and . . . requesting recalculation of the escrow so that
the mortgage loan could be taken out of default.”
143).

(ECF No. 18 ¶

Plaintiff further alleges that, after he sent another
50

letter to SLS on August 21, SLS responded on September 6, 2013.
According to him, SLS’s response stated that: Plaintiff’s July 1
fax

was

not

QWR14;

a

there

were

no

missing

payments

from

Plaintiff; Plaintiff was in default based on escrow analysis
conducted by Chase; and SLS could not correct Plaintiff’s credit
report.

(Id. ¶ 148).

Plaintiff’s allegations are sufficient to

suggest that SLS responded to his July 1 fax on September 6,
outside

of

the

20-day

window

RESPA

established

in

which

servicers must provide a “written response acknowledging receipt
of

the

correspondence.”

Furthermore,

although

12

there

U.S.C.

is

no

2605(e)(1)(A).15

§

indication

that

SLS’s

September 6 response expressly acknowledged Plaintiff’s August
21

letter,

it

did

apparently

Plaintiff’s complaint.
July

1

fax

substance.
within

and

respond

August

September

the

content

of

Plaintiff does not articulate that his
21

letter

differed

(See ECF No. 18 ¶¶ 143, 147).

SLS’s

to

6

response

is

materially

in

Accordingly, subsumed
an

acknowledgment

of

14

Although SLS’s September 6 letter apparently disputed
whether Plaintiff’s July 1 fax constituted a QWR, SLS does not
raise this argument in its motions to dismiss. (See ECF No. 18
¶ 148 (“In [its September 6 letter], Defendant SLS stated . . .
that [Plaintiff’s July 1 fax] was not a ‘qualified written
request’ under RESPA.”)).
15

Plaintiff, in Counts 1-4 of his amended complaint,
misstates the length of the statutory window.
(ECF No. 18, at
17).
As explained above, defendant loan servicers had 20 days
during which to acknowledge a QWR before The Dodd-Frank Act’s
changes to RESPA took effect.
51

receipt

of

Plaintiff’s

August

21

letter;

Plaintiff

may

not

succeed on his RESPA claims by elevating form over substance.
Plaintiff thus pleads facts sufficient to allege that his
July

1

fax

went

unacknowledged

by

SLS

statutory window established by RESPA.

during

the

20-day

As against SLS, a single

count under § 2605(e)(1)(A) concerning Plaintiff’s July 1 fax
will remain.

Plaintiff’s RESPA acknowledgment count against SLS

with respect to his August 21 letter will be dismissed.
b.

Failure to Investigate

Plaintiff also contends that SLS failed to investigate and
respond properly to his RESPA QWRs within 60 days, as required
by § 2605(e)(2).16

Although Plaintiff asserts that SLS did not

conduct a reasonable or independent investigation (ECF No. 18 ¶
151), he concedes that SLS’s September 6 letter stated that,
inter

alia:

there

were

no

missing

payments

from

Plaintiff;

Plaintiff was in default based on escrow analysis conducted by
Chase;

and

SLS

could

not

correct

Plaintiff’s

credit

report.

(Id. ¶ 148).

SLS contends that “[t]his type of response is

precisely

is

servicer

what
to

state

contemplated
the

reasons

16

by

[RESPA],

that

the

which
account

requires
has

a

been

Once again, in Counts 5-8 of his amended complaint,
Plaintiff misstates the timing requirement established by RESPA
and in effect at the time of the relevant events. (See ECF No.
18, at 17-18). At the relevant time, the statutory time period
was 60 days, not 20 days.
52

determined correct and provide the name and telephone number of
the department that could assist the Plaintiff.”
at 7).

(ECF No. 33-1,

In addition, Plaintiff’s assertion that SLS failed to

refer Plaintiff “to an individual or office or department . . .
who can provide assistance to the borrower” is belied by his
admission that SLS’s letter referred Plaintiff “to the ‘Customer
Care’ number.”
“Customer

(ECF No. 18 ¶ 149).

Care”

number

connects

Plaintiff asserts that the

him

to

“the

debt

collection

department, which lacks the authority and/or the information to
reconcile
(Id.).

his

account

Plaintiff,

and

remove

from

default

demands

however,

it

more

than

status.”

what

RESPA

requires; that Plaintiff did not want to speak with SLS’s debt
collection employees is immaterial.
The

version

of

RESPA

in

effect

at

the

time

Plaintiff

submitted his alleged QWRs to SLS required loan servicers to
respond

within

60

days

(excluding

legal

public

holidays,

Saturdays, and Sundays) after receipt of the QWR by providing
specific information and, where appropriate, taking action.
U.S.C. § 2605(e)(2).

Plaintiff sent his purported QWRs to SLS

on July 1 and August 21, and SLS responded on September 6.
No.

18

¶¶

143,

147,

12

149).

Excluding

weekends

and

(ECF
public

holidays, as directed by the statute, SLS’s response fell within
the 60-day period provided by RESPA for each of Plaintiff’s
alleged QWRs.

Cf. Hacker v. Deutsche Bank Nat. Trust Co., No.
53

SACV

12-1017-DOC,

2015).

2015

WL

685595,

at

*4

(C.D.Cal.

Feb.

17,

In fact, using the calculation method as provided in the

statute, SLS responded within 50 days of Plaintiff’s July 1 fax.
SLS’s

September

6

letter

provided

Plaintiff

with

a

written

response explaining why “the servicer believes the account of
the

borrower

is

correct

as

determined

by

the

servicer”

and

providing contact information of SLS employees who can offer
further assistance.

12 U.S.C. § 2605(e)(2)(B).

Accordingly,

this letter satisfies the requirements under § 2605(e)(2) as a
timely response to each of Plaintiff’s purported QWRs.

SLS’s

motion to dismiss Plaintiff’s claims for failure to investigate
and respond within 60 days will be granted, and Plaintiff’s
claims against SLS included in Counts 5-8 will be dismissed.
c.

Failure to Cease Reporting Adverse Credit Information

Plaintiff

asserts

that

SLS

continued

to

report

adverse

information regarding the disputed payments to credit reporting
agencies, in violation of § 2605(e)(3).

SLS correctly points

out that “[t]here is simply no factual allegation that such
reporting

occurred.”

(ECF

No.

33-1,

at

7).

Nowhere

in

Plaintiff’s amended complaint does he allege sufficiently any
point at which SLS affirmatively provided information regarding
the disputed payments to credit reporting agencies, let alone
within 60 days of his purported QWRs.

54

Thus, Plaintiff’s claims

against SLS included in Counts 9-12 of the amended complaint
will be dismissed.
2.

FDCPA

In Counts 14-20 of his amended complaint, Plaintiff asserts
that Defendants, as debt collectors, violated the FDCPA.
U.S.C. § 1692.
as

a

“debt

“regularly

15

For the FDCPA to apply, a defendant must qualify

collector,”
collects

defined,

or

in

attempts

part,

to

as

a

collect,

person

who

directly

or

indirectly, debts owed or due or asserted to be owed or due
another.”

Id.

§

1692a(6).

SLS,

however,

identifies

two

separate statutory exemptions that, it argues, remove it from
the FDCPA’s definition of a “debt collector” and thus relieve it
of liability under the statute.

(ECF No. 33-1, at 7-8).

First, SLS points to § 1692a(6)(F)(i), which exempts from
the definition of “debt collector” “any person collecting or
attempting to collect any debt owed or due or asserted to be
owed or due another to the extent such activity is incidental to
a

bona

fide

arrangement.”

fiduciary
According

obligation
to

SLS,

or

a

bona

“[i]t

is

fide
the

escrow
mortgage

servicer’s fiduciary obligation to the owner of the debt that”
exempts SLS from liability under the statute.
8);

Ruggia

v.

Washington

Mut.

Bank

719

(ECF No. 33-1, at

F.Supp.2d

642,

648

(E.D.Va. 2010), aff’d, 442 F.App’x. 816 (4th Cir. 2011) (citation
omitted) (“Mortgage servicing companies and trustees exercising
55

their

fiduciary

duties

enjoy

broad

liability under the FDCPA.”).

statutory

exemptions

Plaintiff, however, argues that

Ruggia and other case law cited by SLS is inapposite.
15-1, at 10-15).

from

(ECF No.

In the present case, there are no allegations

of a fiduciary relationship or trustee foreclosing on the DOT.
See Reynolds v. Gables Residential Servs., Inc., 428 F.Supp.2d
1260,

1264

exemption

(M.D.Fla.

because

the

2006)

(applying

contract

and

the

the

§

1692(6)(F)(i)

general

relationship

between a community manager and property owner gave rise to a
fiduciary

relationship);

Davis

v.

United

Student

Aid

Funds,

Inc., 45 F.Supp.2d 1104, 1109 (D.Kan. 1998) (determining that a
guaranty

agency,

default,

is

in

pursuing

collection

out

carrying

the
role

as

its

a

of

a

fiduciary,

loan
and

in

this

activity is clearly incidental to a its “bona fide fiduciary
obligation”).

In addition, Ҥ 1692a(6)(F)(i) was intended to

apply to entities such as trust departments of banks and escrow
companies.”
F.Supp.2d

Goodrow
464,

470

v.

Friedman

(E.D.Va.

&

2011);

MacFadyen,

see

also

P.A.,

Franceschi

788
v.

Mautner–Glick Corp., 22 F.Supp.2d 250, 254 (S.D.N.Y. 1998) (“The
legislative history of the FDCPA confirms that Congress did not
intend the Act to cover companies in the business of regularly
servicing

outstanding

debts,

such

as

rents,

for

others.”).

There is no indication that SLS was acting as a trust department
or escrow company, or was otherwise a fiduciary such that the §
56

1692(6)(F)(i) exemption should apply to relieve SLS of liability
under the statute.

The case law on which SLS relies does not

stand for the proposition that traditional mortgage servicing
activities should fall within the § 1692(6)(F)(i) exemption, or
that the exemption should apply to SLS.
Fargo

Bank,

N.A.,

No.

H-10-5018,

See Cyrilien v. Wells

2012

WL

2133551,

at

*2

(S.D.Tex. June 11, 2012) (citations omitted) (determining that,
although

evidence

established

that

Wells

Fargo’s

collection

activity was “incidental to a bona fide fiduciary obligation
created by virtue of its position as a mortgage servicer,” the
“debt

collector”

exemption

does

not

apply

to

a

mortgage

servicing company or an assignee of a debt if the debt was in
default at the time it was assigned).
Second, SLS argues that § 1692a(6)(F)(iii) applies, which
exempts

from

the

definition

of

“debt

collector”

any

person

attempting to collect a debt owed to the extent that debt “was
not in default at the time it was obtained by such person.”

See

Ayres v. Ocwen Loan Servicing, LLC, No. WDQ-13-1597, 2015 WL
5286677, at *19 (D.Md. Sept. 8, 2015) (emphasis added) (internal
quotation

marks

omitted)

(“Mortgage

servicing

companies

are

exempt from the definition of ‘debt collectors’ under the FDCPA
only to the extent that they take action to collect debts that
were not in default at the time they acquired the debts.”).
Mortgage servicers are often exempted because, at the time they
57

begin servicing, the loans typically are not in default.

Allen

v. Bank of Am. Corp., No. CCB-11-33, 2011 WL 3654451, at *7 n.9
(D.Md.

Aug.

18,

2011).

However,

“the

§

1692a(6)(F)(iii)

exception, which may operate to remove a loan servicer from the
definition of a ‘debt collector,’ does not apply if the loan was
in default at the time it was acquired by the servicing company,
or if the servicing company treated it as such.”

Shugart v.

Ocwen Loan Servicing, LLC, 747 F.Supp.2d 938, 942–43 (S.D.Ohio
2010); see also Allen, 2011 WL 3654451, at *7 n.9 (citations
omitted) (“Where a servicer believes a loan to be in default at
the time it commences servicing, however, courts have found it
is

not

exempt

collector.’”).

from

the

FDCPA’s

definition

of

‘debt

SLS cleverly argues that Plaintiff’s belief that

his debt was not in default should be credited, thus exempting
SLS from FDCPA liability under § 1692a(6)(F)(iii).

But here,

Defendants Chase and SLS both treated Plaintiff’s loan as in
default beginning in May 2012, long before Plaintiff became an
SLS

customer

effective

June

17,

2013.

In

their

respective

motions, Defendants expressly contend that Plaintiff’s debt was
in default because he refused to make payments in the amounts
Defendants sought.

Although Plaintiff insists throughout his

amended complaint that his loan was current, SLS treated the
loan as in default from when it was assigned servicing rights
and thus cannot claim a statutory exemption.
58

Neither exemption claimed by SLS applies to remove it from
the FDCPA’s statutory definition of a “debt collector.”

SLS

does not advance any alternative arguments as to why Plaintiff
failed to state FDCPA claims upon which relief can be granted.
As a result, SLS’s motion to dismiss Plaintiff’s FDCPA claims
contained within Counts 14-20 will be denied.
3.

Defamation

Count 23 of Plaintiff’s amended complaint states a common
law defamation claim against SLS.

Plaintiff alleges that SLS

falsely, without justification, and with reckless disregard for
the truth, published to credit reporting agencies and others
statements about Plaintiff that are injurious to his reputation
and financially damaging.

(ECF No. 18, at 25).

In particular,

Plaintiff refers to SLS’s statements that he “had missed and/or
was late on his mortgage payments.”

(Id.).

Plaintiff does not

identify when and to whom such statements allegedly were made by
SLS.
that

SLS argues that Plaintiff has not alleged sufficiently
any

SLS

statements

would

have

been

false

because

Plaintiff’s amended complaint does not demonstrate that he made
full and timely payments as called for by Defendants.

(ECF No.

33-1, at 10-11).
Under Maryland law, a defamation plaintiff has the burden
of proving the falsity of the alleged defamatory statements.
Piskor, 277 Md. at 171; see supra Part II.B.6.
59

Plaintiff bears

the

burden

of

demonstrating

falsity

and

must

allege

facts

supporting his contention that SLS’s statements to third parties
were untrue.

Plaintiff, however, fails to meet this burden.

In

his amended complaint, his allegations reveal that he did not
pay in full the monthly fees sought by Defendants.

(ECF No. 18

¶¶ 70-71, 97-98); see Ervin, 2014 WL 4052895, at *6 (footnote
omitted) (citation omitted) (noting that “[e]ven if there was a
dispute or actual error as to the escrow analysis, however, this
dispute did not justify [the borrower’s] decision to pay less
than the full amount owed”).
that

SLS’s

alleged

reports

This, in turn, belies his argument
to

credit

reporting

agencies

others, if any were made, were false and defamatory.
Plaintiff

has

defamation

failed

claim

to

against

plead

facts

SLS,

and

sufficient

SLS’s

motion

to

and

Thus,
state

to

a

dismiss

Plaintiff’s defamation claim in Count 23 will be granted.
4.

Tortious Interference with Economic Relations

In Count 24, Plaintiff alleges that SLS “intentionally and
willfully interfered with Plaintiff’s economic relations . . .
through [its] defamatory statements.”

(ECF No. 18, at 25).

Furthermore,

SLS’s

Plaintiff

alleges

that

actions

“were

calculated to coerce [him] to pay sums not due, to apply for
refinancing

and/or

repackaging

of

his

mortgage

loan

at

an

interest rate more favorable to [it], and to cause more damage
to [him] in his lawful business.”
60

(Id.).

Although Plaintiff

does not allege that he was discharged by his employer as a
result of his blemished credit report, he does assert that his
“security clearance was denied . . . based upon [his] credit
report; [Plaintiff] was denied access to his job site with his
new

client

employer.”

(ECF

No.

18

¶

164).

SLS

contends

generally that “Plaintiff has failed to allege any interference
with his employment relationship.”
The

elements

discussed above.

of

this

cause

(ECF No. 33-1, at 12).
of

action

See supra Part II.B.7.

in

Maryland

are

In the context of

contracts terminable at will, a cause of action for tortious
interference with economic relations “pertains to prospective
business relations.”

Kramer v. Mayor & City Council of Balt.,

124 Md.App. 616, 637 (1999); see Macklin v. Robert Logan Assocs,
334 Md. 287, 299 (1994).

In addition, “[a] broader right to

interfere with economic relations exists where . . . a contract
terminable at will is involved.”
70.

To

establish

tortious

Natural Design, 302 Md. at 69interference

in

this

context,

Plaintiff must “prove both a tortious intent and improper or
wrongful conduct.”
“A

plaintiff

may

Macklin, 334 Md. at 301 (citations omitted).
prove

tortious

intent

by

showing

that

the

defendant intentionally induced the breach or termination of the
contract

in

order

to

harm

the

plaintiff

defendant at [the plaintiff’s] expense.”

or
Id.

to

benefit

the

Similarly, for

the tort “to be actionable, the improper or wrongful conduct
61

must induce the breach or termination of the contract.”
301-02.

Id. at

Here, Plaintiff has not alleged that his employment or

other contracts were terminated or breached as a result of SLS’s
conduct.

Plaintiff

asserts

that

his

security

clearance

was

revoked and that he was denied new opportunities through his
employer,

but

he

does

include

in

his

amended

complaint

any

allegations that SLS induced the breach or termination of his
contracts with third parties.

Although it is not clear at this

point whether SLS’s actions were improper or wrongful, Plaintiff
has

nonetheless

failed

to

state

sufficiently

tortious interference with economic relations.

a

claim

for

SLS’s motion to

dismiss Count 24 will be granted.
5.

Unjust Enrichment

Plaintiff asserts a claim for unjust enrichment in Count 25
of his amended complaint.
enriched

by

Plaintiff’s

He argues that while SLS has been
mortgage

payments,

he

has

been

impoverished due to Defendants’ “churning his account through
late fees, property management fees, and legal fees.”
18, at 26).
in

[his

payment

SLS contends that “Plaintiff goes to great lengths

amended
rejections

complaint]
by

to

SLS.

identify
Plaintiff

allegedly
does

not,

identify any payments received or retained by SLS.”
33-1, at 12).

(ECF No.

improper
however,
(ECF No.

As explained above, Texas law governs Plaintiff’s

unjust enrichment claim.

See supra Part II.B.8.
62

In Texas,

unjust enrichment is not a separate cause of action, but rather
“a general theory of recovery for an equitable action seeking
restitution.”

Hancock, 635 F.Supp.2d at 560; see Redwood Resort

Props., LLC v. Holmes Co., 2006 WL 3531422, at *9 (N.D.Tex. Nov.
27, 2006) (citing Doss v. Homecomings Fin. Network, Inc., 210
S.W.3d

706,

709

n.4

(Tex.App.

2006))

(dismissing

an

unjust

enrichment claim and holding that it is not an independent cause
of action).
independent

Accordingly, because Texas law does not afford an
cause

of

action

for

unjust

enrichment,

Plaintiff

cannot sustain his claim stated in Count 25.
SLS also cites to Maryland law in its motion to dismiss.
Were Maryland law to govern Plaintiff’s unjust enrichment claim,
dismissal

nonetheless

allegations

do

not

would

identify

be

warranted

any

payments

because
or

Plaintiff’s

items

of

value

received and retained by SLS “under such circumstances as to
make it inequitable for the defendant to retain the benefit
without payment of it[s] value.”
(citation omitted).
complaint
benefit

Klein, 117 Md.App. at 346

Plaintiff failed to include in his amended

any

allegations

from

Plaintiff.

that

SLS

received

Tellingly,

and

retained

Plaintiff’s

a

amended

complaint concedes that SLS informed him that it “would not
accept his ACH payment,” given that it believed his account was
in default.

(ECF No. 18 ¶ 136).

63

Absent allegations of benefit

received from Plaintiff and retained by SLS, Plaintiff does not
state a prima facie unjust enrichment case.
6.
In

Remaining Alleged Violations of Maryland Law
its

Plaintiff’s

latest
amended

motion

to

complaint

dismiss,

“must

be

SLS

asserts

dismissed

as

to

that
SLS,

except as to Counts 26, 27 and 28,” which are brought under the
MCDCA,

the

MCPA,

and

the

MMFPA.

(ECF

No.

33,

at

1).

Furthermore, SLS’s proposed order reveals that it expects to
file an answer to Counts 26-28.

(ECF No. 33-2).

Given that SLS

expressly disavows an intent to move to dismiss Counts 26-28,
the claims contained within them will not be considered as to
SLS.
V.

Conclusion
For

the

foregoing

reasons,

summary judgment will be granted.
in response will be denied.

Defendant

Chase’s

motion

for

Plaintiff’s verified motion

Defendant SLS’s partial motion to

dismiss will be granted in part and denied in part.

A separate

order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

64