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

Filing 62

MEMORANDUM OPINION (c/m to Plaintiff 6/24/16 sat). Signed by Judge Deborah K. Chasanow on 6/24/2016. (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 in this case is
a motion for summary judgment filed by Defendant Specialized
Loan Servicing, LLC (“SLS”).

(ECF No. 46).

The issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

SLS’s motion for summary judgment will be granted.
I.

Background
A.

Factual Background1

Plaintiff Louis M. Lupo (“Plaintiff”) formerly owned a home
located at 7908 Hunter Lane, North Richland Hills, Texas 76180
(the “Property”).

On December 20, 2007, Plaintiff executed a

30-year fixed-rate promissory note (the “Note”) for $173,850.00
at a 6.0% annual interest rate payable to the lender, JPMorgan
1

The following facts are uncontroverted or construed in the
light most favorable to Plaintiff. More complete recitations of
Plaintiff’s allegations and the background of this case are set
forth in the court’s prior memorandum opinions.
(See ECF Nos.
31; 42).

Chase

Bank,

$1,551.24.

N.A.

(“Chase”),

in

monthly

of

The Note was secured by the Deed of Trust (the

“DOT”) recorded in Tarrant County, Texas.
parties

installments

agree

that

Plaintiff

made

(ECF No. 46-2).

timely

mortgage

loan

The
(the

“Loan”) payments until November 2012.
Prior to the transfer of loan servicing to SLS, Plaintiff
disputed his Loan payments with Chase.

According to Plaintiff,

Chase “miscalculated and overcharged for escrow” on his account
every year since the inception of the Loan.

(ECF No. 18 ¶ 38).

Plaintiff contends that Chase made an error in 2013 that he has
not been able to resolve.

The alleged error stemmed from an

increase in Plaintiff’s property taxes from 2010 to 2011, which
prompted

Chase

to

recalculate

required to pay into escrow.

the

amount

that

Plaintiff

was

According to SLS, the increase in

property taxes was accompanied by an increase in the cost of
hazard insurance, causing a corresponding rise in Plaintiff’s
monthly obligation.

(ECF No. 46-11, at 2).

Chase allegedly mailed a “Notice of Assignment, Sale, or
Transfer of Servicing Rights” to Plaintiff, informing him that
Chase

could

servicing

of

no

longer

the

Loan

accept
had

payments

been

effective date of June 17, 2013.

on

the

transferred

Loan

to

SLS

(ECF No. 18 ¶ 121).

and

that

with

an

At the

time servicing rights were transferred to SLS, the Loan was in
default.

(ECF No. 46-1 ¶ 5).
2

SLS also notified Plaintiff of the transfer and requested
that all Loan payments be sent to SLS rather than to Chase.
(ECF

No.

46-3).

Plaintiff

contends

that

the

payment

instructions provided by SLS on June 20 were illegible.

(ECF

No. 18 ¶¶ 131, 134).

On or about June 24, Plaintiff contacted

SLS

make

by

telephone

to

an

electronic

payment.

The

SLS

representative informed Plaintiff that the Loan was in default
and it would not accept his automated clearing house (“ACH”)
payment.

(Id. ¶¶ 135-36).

Plaintiff explained to SLS that his

mortgage loan account was current and sought an investigation.
When he called thereafter, Plaintiff alleges, he was told that
the investigation was ongoing.

(Id. ¶¶ 137-40).

On July 1,

Plaintiff called again and learned that he could not make his
monthly ACH payment because his account was in default.

He was

informed that, if he provided proof of prior payment, SLS would
then accept his ACH payment.
Plaintiff

sent

two

fax

(Id. ¶¶ 141-42).
transmissions

to

SLS

purporting to detail proof of his payment history.
4).

The

faxes,

addressed

to

“Portia,”

partial payment history with Chase.

contain

on

July

1

(ECF No. 46Plaintiff’s

Plaintiff wrote on the

cover sheet for each fax transmission: “Rejected [ACH] due to
inaccurate payment history.
past 20 months.”

Proof of Payments & ACH enclosed

(Id. at 1, 3).

3

Subsequently, on August 21,

Plaintiff

sent

another

fax

transmission,

this

time

to

SLS

executives:
This is my third “qualified written
request” [(“QWR”)] under Section 6 of the
Real
Estate
Settlement
Procedures
Act
[(“RESPA”)].
I am writing once again [to]
request
account
reconciliation
of
my
mortgage, an audit trail for the amount of
money claimed owed by [SLS], and repair of
my erroneously damaged credit report.
Although I faxed the required documents
to you in June 2013[2] demonstrating that I
was current in my payments, and despite my
multiple
telephone
conversations
with
Customer Care and Executive Services in
July, my ACH payments continue to be refused
for my home mortgage.
(ECF No. 46-5, at 2).

SLS responded on September 6, advising

Plaintiff that his prior fax transmissions were not QWRs under
RESPA.

(ECF No. 46-6, at 1 (“After our review of the loan, we

have confirmed that our office has not received a [QWR] prior to
your letter dated August 21, 2013.”)).

In its correspondence,

SLS also briefly summarized Plaintiff’s payment history:
The prior servicer, [Chase], responded
to your concerns with a letter dated April
17,
2013.
In
the
response,
[Chase]
indicates that you continued to send the
same monthly payment amount of $1,501.58
after an escrow analysis statement dated
February 24, 2012 reflected an increase to
the monthly mortgage payment amount.
The
new monthly mortgage payment was increased
to $2,020.80 effective May 1, 2012.
As a
courtesy, [Chase] applied the May and June
2

Here, Plaintiff appears to reference the fax transmissions
that he sent on July 1, 2013.
(See ECF No. 46-4).
4

2012 payments based on the old payment
amount.
A new escrow analysis statement was
generated on February 4, 2013 by the prior
servicer with a new mortgage payment in the
amount of $1,635.67 effective May 1, 2013.
Our records indicate that we are adhering to
the
February
4,
2013
escrow
analysis
statement.
Please note, the account is
currently due for the April 2013 payment
which reflects the $2,020.80 amount as the
newer analysis is effective with the May
payment. If a change to the property taxes
and/or home owner’s insurance has occurred,
please
supply
us
with
the
appropriate
information so that we may review this
matter further.
The payments made in June and July 2013
in the amount of $1,501.58 each were
transferred to SLS from the prior servicer
and combined to post the April 2013 mortgage
payment.
This left a balance in the
unapplied/suspense account in the amount of
$982.36.
On July 10, 2013, SLS received a
stop payment confirmation for the July 2013
payment
that
was
initially
issued
to
[Chase]. As such the April 2013 payment was
reversed and the funds remaining for the
June 2013 payment were placed into the
unapplied/suspense account.
At this time, the [Loan] is currently
delinquent. The [Loan] is due for the April
1, 2013 payment in the amount of $2,020.80.
There is a balance of $1,501.58 in the
unapplied/suspense account.
We are unable to set up ACH on the
[Loan] as the [Loan] is delinquent.
Once
the [Loan] has been brought current, please
resubmit your request.
We have enclosed a
reinstatement quote for your convenience.
(ECF No. 46-6, at 1-2).

According to SLS, Plaintiff has not

made any payments on the Loan since the July 2013 payment that
was transferred to SLS from Chase.

5

Plaintiff has not made any

payments directly to SLS, nor has Plaintiff attempted to bring
the Loan current.

(ECF No. 46-1 ¶¶ 5-6, 11-12).

Furthermore, 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 full payments on the Loan.
(ECF

No.

46-9).

On

July

11

and

December

31,

SLS

provided

Plaintiff the opportunity to begin a trial mortgage modification
under the Home Affordable Modification Program (“HAMP”).
Nos. 46-7; 46-8).

Plaintiff did not advise SLS that he had

accepted either of the trial loan modification offers.
46-1 ¶¶ 13-16).

(ECF

(ECF No.

SLS did not make any report to the credit

bureaus concerning the Loan in June 2013; since then, however,
it has reported to the credit bureaus on a monthly basis that
the Loan was in default.

(Id. ¶ 19).

SLS retained the services of Hughes, Watters & Askanase,
L.L.P. (“HWA”) to provide pre-foreclosure notice and to conduct
foreclosure

proceedings.

On

December

2,

2014,

HWA

sent

to

Plaintiff by first class mail and certified mail a “Notice of
Maturity/Acceleration

of

Notice

Trustee’s

of

Substitute

Texas

Recourse
Sale”

(ECF Nos. 57-2; 57-3; 57-4; 57-5).

Loan

(the

and

“Sales

Enclosing
Notices”).

Copies of the Sales Notice

were also posted on the door of the Tarrant County Courthouse
and filed with the Tarrant County Clerk prior to December 16,
2014.

(ECF No. 57-1 ¶¶ 5-6).

The Federal Home Loan Mortgage
6

Corporation
foreclosure

(“Freddie
auction

Mac”)

and

has

purchased
since

taken

judicial process in Tarrant County, Texas.
B.

the

Property

possession

at

through

(See ECF No. 46-10).

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

filed

a

twenty-eight

count

amended

alleging multiple violations of RESPA, 12 U.S.C. § 2601,

et

seq.; the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681,
et seq.; the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692, et seq.; and various Maryland consumer protection
and mortgage fraud 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.

(ECF No. 18, at 17-31).

Plaintiff requests

declaratory relief, injunctive relief, damages, and costs.

(Id.

at 31-32).
On

April

16,

2014,

SLS

moved

to

dismiss

this

action

pursuant to Fed.R.Civ.P. 12(b)(6) or 12(b)(3), or to transfer
this action to the United States District Court for the Northern
District of Texas for forum non conveniens.
court

denied

SLS’s

Rule

12(b)(3)
7

and

(ECF No. 19).

transfer

motions

The
but

reserved judgment on the Rule 12(b)(6) motion.

(ECF No. 31, at

6 n.3).
Chase filed a motion for summary judgment (ECF No. 24), and
SLS

filed

a

renewed

partial

motion

amended complaint (ECF No. 33).

to

dismiss

Plaintiff’s

A memorandum opinion and order

granted Chase’s motion for summary judgment, and granted SLS’s
motion to dismiss under Rule 12(b)(6) in part and denied it in
part.

(ECF Nos. 42; 43).

Remaining against SLS are one RESPA

count, Counts 14-20 under the FDCPA, and Counts 26-28 alleging
violations of Maryland consumer protection and mortgage fraud
statutes.

SLS filed its answer (ECF No. 44), and the court

issued a scheduling order (ECF No. 45).
On November 3, 2015, SLS moved for summary judgment on the
remaining

claims.

Plaintiff

was

provided

with

a

Roseboro

notice, which advised him of the pendency of the motion for
summary judgment and his entitlement to respond within 17 days.
(ECF No. 47); see Roseboro v. Garrison, 528 F.2d 309, 310 (4th
Cir. 1975) (holding that pro se plaintiffs should be advised of
their right to file responsive material to a motion for summary
judgment).

Plaintiff responded in opposition (ECF No. 50), and

SLS replied (ECF No. 57).3

The court stayed the scheduling order

3

Plaintiff filed his response in opposition on January 22,
2016, shortly after the January 20 deadline for the response
period.
As a result, SLS argues that “[t]he [c]ourt should
8

pending resolution of SLS’s summary judgment motion.

(ECF Nos.

58; 60).
II.

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).

exercise its discretion by striking and refusing to consider
Plaintiff’s opposition.”
(ECF No. 57, at 12).
The court
declines SLS’s request and will consider all briefing concerning
Defendant’s summary judgment motion.
9

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).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”
(4th Cir. 2003).
significantly

Peters v. Jenney, 327 F.3d 307, 314

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).

granted.”
In other

words, a “party cannot 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);
see Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 522 (4th Cir. 2003).
“Although pro se litigants are to be given some latitude,
the above standards apply to everyone.

Thus, as courts have

recognized repeatedly, even a pro se plaintiff may not avoid
10

summary judgment by relying on bald assertions and speculative
arguments.”

Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md.

2011) (citations omitted).
III. Analysis
SLS

argues

that

communications

were

defaults,

late

and

the

statements

accurate
charges

and
are

contained

that

all

attributable

in

its

delinquencies,
to

Plaintiff’s

decision to not pay the full amount of the mortgage payment when
due.

The amount Plaintiff needed to pay into escrow rose due to

a substantial increase in property taxes and a comparatively
smaller

increase

in

hazard

insurance

premiums.

At

bottom,

according to SLS, the Loan fell into default when Plaintiff
refused to pay the increased amount.
A.

(ECF No. 46-11, at 1).

RESPA

Plaintiff asserts that SLS violated RESPA by failing to
acknowledge
Congress

receipt

enacted

of

his

QWRs.

See

RESPA

“to

insure

that

12

U.S.C.

§

2605(e).

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).

RESPA requires that servicers of a “federally related mortgage
11

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 a

federally

related

mortgage

loan

receives

a

[QWR]

from

the

borrower . . . for information relating to the servicing of such
loan,

the

servicer

acknowledging
(excluding

receipt

legal

shall
of

public

the

provide

a

written

correspondence

holidays,

Saturdays,

response

within
and

[20]

days

Sundays).”4

Triggering certain duties under RESPA, a QWR is defined in §
2605(e)(1)(B) 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
(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

4

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. Pub.L.
111–203 § 1463(c)(2), (3), 124 Stat. 1376, 2184 (2010); see
Cezair v. JPMorgan Chase Bank, N.A., No. DKC-13-2928, 2014 WL
4295048, at *7 n.8 (D.Md. Aug. 29, 2014).
Under the
implementing regulations, these modifications went into effect
on January 10, 2014. 12 C.F.R. § 1024, et seq.; see Berneike v.
CitiMortgage, Inc., 708 F.3d 1141, 1145 n.3 (10th Cir. 2013).
Here, the alleged QWR was sent on July 1, 2013, before the RESPA
amendments became effective.
12

regarding other
the borrower.

information

sought

by

Here, the sole remaining RESPA count concerns Plaintiff’s
July 1, 2013 fax transmissions.
46-4).

(ECF No. 42, at 45; see ECF No.

SLS argues that “[a]s was the case with the alleged QWRs

that Plaintiff claims to have sent to Chase, Plaintiff’s fax to
SLS was not a QWR because it was not sent to the separate and
exclusive address provided for [QWRs].”

(ECF No. 46-11, at 5).

In other words, according to SLS, Plaintiff’s July 1 faxes do
not satisfy the statutory QWR definition because “[i]nstead of
sending his correspondence via mail to the designated address
and

department,

Plaintiff

sent

named ‘Portia’ via facsimile.”

his

correspondence

to

(Id. at 6).

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
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).

13

someone

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; see Peters v. Bank of Am., N.A., No. 3:14-

CV-513, 2015 WL 1259417, at *2 (E.D.Va. Mar. 18, 2015).
On June 20, 2013, SLS sent the “Notice of Assignment, Sale,
or Transfer of Servicing Rights” to Plaintiff alerting him to
his rights under RESPA: “A [QWR] is a written correspondence
which includes you name and account number and your reasons for
the request.

Writing a note on your payment coupon or envelope

is not considered a [QWR].

. . .

[QWRs] must be sent to: Attn:

Customer Care Support[,] P.O. Box 636005[,] Littleton, CO 801636005[.]”

(ECF No. 46-3, at 1).

Plaintiff does not dispute that

correspondence from SLS designated a QWR address, or that he
failed to use that address.
address

that

transmissions

SLS
are

Because Plaintiff did not use the

designated
not

liability under RESPA.

QWRs

for
and

QWRs,

do

not

the

July

trigger

1

duties

fax
or

Instead, “[w]hen an alleged QWR fails to

meet the requirements of RESPA and its implementing regulation,
it ‘amounts to nothing more than general correspondence between
a

borrower

and

servicer.’”

Peters,

(quoting Berneike, 708 F.3d at 1149).
14

2015

WL

1259417,

at

*2

Accordingly, Plaintiff

has

failed

to

adduce

evidence

that

SLS

did

not

properly

designate a QWR address or that he sent QWRs to the designated
address.

Summary judgment will be entered in favor of SLS on

the remaining RESPA count.
B.

FDCPA § 1692e (Counts 14-18)

In Counts 14-18 of the amended complaint, Plaintiff alleges
that

SLS

made

numerous

U.S.C. § 1692e.

false

statements

in

violation

of

15

Section 1692e “forbids the use of any false,

deceptive,

or

misleading

collection

and

provides

conduct.”

United States v. Nat’l Fin. Servs., Inc., 98 F.3d

a

representation
non-exhaustive

or
list

means
of

in

debt

prohibited

131, 135 (4th Cir. 1996). (citation and internal quotation marks
omitted).

Plaintiff appears to allege violations by:
(1) The false representation or implication
that the debt collector is vouched for,
bonded by, or affiliated with the United
States or any State, including the use of
any badge, uniform, or facsimile thereof.
(2) The false representation of—
(A) the character, amount,
status of any debt; or

or

legal

(B)
any
services
rendered
or
compensation which may be lawfully
received by any debt collector for the
collection of a debt.
. . .
(8)
Communicating
or
threatening
to
communicate to any person credit information
which is known or which should be known to
15

be
false,
communicate
disputed.

including
the
failure
that
a
disputed
debt

to
is

(9) The use or distribution of any written
communication which simulates or is falsely
represented to be a document authorized,
issued, or approved by any court, official,
or agency of the United States or any State,
or which creates a false impression as to
its source, authorization, or approval.
(10) The use of any false representation or
deceptive means to collect or attempt to
collect any debt or to obtain information
concerning a consumer.
. . .
(12) The false representation or implication
that accounts have been turned over to
innocent purchasers for value.
15 U.S.C. § 1692e.
“To succeed on a FDCPA claim a plaintiff must demonstrate
that

‘(1)

the

plaintiff

has

been

the

object

of

collection

activity arising from consumer debt, (2) the defendant is a debt
[] collector as defined by the FDCPA, and (3) the defendant has
engaged

in

an

act

or

omission

prohibited

by

the

FDCPA.’”

Stewart v. Bierman, 859 F.Supp.2d 754, 759 (D.Md. 2012) (quoting
Dikun v. Streich, 369 F.Supp.2d 781, 784-85 (E.D.Va. 2005)),
aff’d sub nom. Lembach v. Bierman, 528 F.App’x 297 (4th Cir.
2013).
Fourth

Furthermore, the United States Court of Appeals for the
Circuit

standard

to

has

adopted

determine

if

a

the
§

16

“least
1692e

sophisticated

violation

has

debtor”

occurred.

Nat’l Fin. Servs., 98 F.3d at 135-36.

Under this standard, a

false statement that would not mislead the “least sophisticated
consumer” is not actionable.

The Fourth Circuit also determined

that a false or misleading statement is not actionable under §
1692e unless it is material.

Lembach, 528 F.App’x at 302-03.

1. Count 14
Count 14 includes allegations that SLS violated § 1692e(2)
by “repeatedly and falsely represent[ing] the amount of the debt
Plaintiff

owed

on

[the

Loan],”

“repeatedly

and

falsely

represent[ing] the legal status of the debt Plaintiff owed on
[the

Loan]

by

stating

that

Plaintiff

was

in

default,”

and

“falsely claiming that it was accelerating Plaintiff’s debt and
that Plaintiff was in foreclosure before such acceleration and
foreclosure legally occurred.”

(ECF No. 18, at 20).

To bolster

his allegations, Plaintiff purports to submit a declaration from
Rene Fortin, CPA, “who has reviewed the figures and determined
that they are incorrect and/or inconsistent.”

(ECF No. 50-1, at

5).

not

Ms.

Fortin’s

declaration,

however,

is

part

of

the

record, and Plaintiff’s Exhibit B is nothing more than a cover
page labeled “Certified Public Accountant Declaration.”
ECF No. 50-4).
amount

owed

‘Declaration.’

(See

SLS argues, “Plaintiff’s claim regarding the
is

predicated

entirely

on

this

phantom

As that document has not been produced, his

entire argument fails and the court is left only with SLS’s un17

rebutted statements as to the proper amount owed.”
at 3).

(ECF No. 57,

Here, the evidence shows that SLS provided Plaintiff

with the amount owed on the Loan, the required monthly payments,
and notice of default.

(See ECF Nos. 46-6; 46-9).

Plaintiff

provides no other evidence of false representations regarding
the amount and legal status of his debt, and his claims cannot
withstand summary judgment review.
Similarly,

Plaintiff

cannot

maintain

his

claim

that

SLS

made false representations by “claiming that it was accelerating
Plaintiff’s debt and that Plaintiff was in foreclosure before
such acceleration and foreclosure legally occurred.”
18,

at

20).

In

other

words,

according

to

(ECF No.

Plaintiff,

SLS

violated the FDCPA by threatening, along with the Substitute
Trustees, “to accelerate the debt and foreclose . . . before
they had the legal ability to do so.”

(ECF No. 50-1, at 6).

After providing notice to Plaintiff, SLS did accelerate the Loan
and initiated the foreclosure process.

(See ECF Nos. 50-11; 46-

1 ¶¶ 17, 20).

Plaintiff, however, cites to no authority in

support

argument

Trustees

of

his

must

occur

that

before

the

any

foreclosure can be communicated.

appointment

notices

of

of

Substitute

acceleration

and

Quite the opposite, as “it has

long been settled in Texas that when a substitute trustee signs
and

posts

appointment,

a

notice
the

prior

subsequent

to

the

substitute

post-appointment
18

acts

trustee’s
of

the

substitute trustee have the effect of ratifying and affirming
his

pre-appointment

acts.”

Calvillo

v.

Carrington

Mortgage

Servs., No. 08-13-00353-CV, 2015 WL 7730992, at *3 (Tex.App.
Nov.

30,

2015).

Here,

the

appointment

of

the

Substitute

Trustees on November 21, 2014 – or, indeed, the foreclosure sale
on January 6, 2015 – does not render SLS’s prior communications
false or fraudulent.

Plaintiff supplies no evidence showing

that the notices sent by SLS ran afoul of the FDCPA.
2. Count 15
In

Count

15,

representations

Plaintiff

regarding

alleges

HAMP,

a

that

federal

SLS

made

program.

false
Section

1692e(1) prohibits any “false representation or implication that
the debt collector is vouched for, bonded by, or affiliated with
the United States or any State, including the use of any badge,
uniform, or facsimile thereof.”

In addition, § 1692e(9) forbids

“[t]he use or distribution of any written communication which
simulates or is falsely represented to be a document authorized,
issued, or approved by any court, official, or agency of the
United States or any State, or which creates a false impression
as to its source, authorization, or approval.”
Plaintiff,

SLS

impression

that

“falsely
its

represented

Trial

Period

or

According to

created

Modification

a
Plan

false
was

affiliated with the federal HAMP program and/or that its Trial
Period Modification Plan was authorized, issued, or approved by
19

the

United

States

government.”

(ECF

No.

18

at

20-21).

Plaintiff further contends that “under the aegis of the federal
government, specifically HAMP . . . , and with the threat of
imminent

foreclosure,

[he]

was

required

to

reaffirm

the

collateralized debt, which would strip him of his rights and
defenses in the collection and foreclosure process.”
50-1,

at

8).

As

evidence,

Plaintiff

offers

(ECF No.

two

identical

letters sent by SLS - dated July 11, 2013, and December 31, 2013
– which allegedly bear government logos and convey a sense of
urgency.

(ECF No. 50-1, at 7).

Plaintiff cannot identify in the record evidence that SLS
falsely represented or implied that its services were vouched
for, bonded by, or affiliated with the government.
letters

demonstrate

that

SLS

invited

Plaintiff

Rather, the
to

submit

documentation in order to determine whether he qualified for a
loss mitigation program.

(ECF Nos. 46-7, at 1; 46-8, at 1).

separate

to

communications

Plaintiff,

SLS

offered

proposed

modification terms to help Plaintiff avoid foreclosure.
Nos. 50-15, at 2-3; 50-24, at 2-3).
the

proposed

Trial

Period

(ECF

In addition to explaining

Modification

Plan,

SLS

explicitly

advised:
Once you start your Trial Period Plan,
we may be able to offer you a mortgage
modification under [HAMP] with a lower
monthly payment. To see if you qualify, you
must submit a complete Borrower Response
20

In

Package. If you have already submitted your
Borrower Response Package, we’ll evaluate
you for a foreclosure prevention option,
including the HAMP modification.
In the
meantime, you are encouraged to participate
in this Trial Period Plan for a mortgage
modification.
(ECF Nos. 50-15, at 3; 50-24, at 3).

According to SLS, the

“letter[s]

the

because

include[]

SLS

the

insignia

participates

in

that

of

[federal]

program

qualified borrowers, HAMP modifications.”

and

program

offers,

to

(ECF No. 57, at 4).

Indeed, SLS attached to its communications with Plaintiff HAMPmandated loan modification application forms and invited him to
submit documentation to determine whether he qualified for a
loss mitigation program.

(See ECF Nos. 46-7; 46-8).

Plaintiff

fails to show that SLS made any false representations regarding
a loan modification through an SLS trial period plan or HAMP.
Accordingly, Plaintiff’s claims under §§ 1692e(1) and 1692e(9)
cannot survive summary judgment.
3. Count 16
Plaintiff
1692e(10),

which

representation
collect

any

consumer.”

asserts

or
debt

in

Count

prohibits
deceptive
or

to

16

that

SLS

violated

“[t]he

use

of

any

means
obtain

to

collect

information

or

§

false

attempt

concerning

to
a

Plaintiff alleges that SLS “falsely represented that

its debt collectors were ‘loss mitigation analysts’” and used
very small or illegible font in its correspondence.
21

(ECF No.

18, at 21).

He contends that “SLS clothed its debt collectors

in euphemistic language to disguise their status to [] Plaintiff
and deceive him into thinking he could resolve the dispute of
the inaccuracy of the claimed debt with them or take any other
action that one might take with a legitimate servicer.”
No. 50-1, at 10).

(ECF

Plaintiff, however, fails to explain how SLS

violated the FDCPA by giving its employees titles such as “loss
mitigation analyst” or “relationship manager.”
In support of his claim, Plaintiff references two letters
from SLS stating:
In order to assist with the resolution of a
potential or existing delinquency, we have
assigned a Relationship Manager to your
account.
. . .
We understand that discussing this
situation may be difficult; however, we want
you to know that we are here to listen and
discuss alternative options that may be
available to assist you.
Your Relationship
Manager will serve as your single point of
contact and will continue working with you
until all available home retention and nonforeclosure options have been exhausted. If
applicable, your Relationship Manager will
also be available to assist you with
inquiries
regarding
the
status
of
foreclosure.
(ECF Nos. 50-12, at 2; 50-13, at 2).

Indeed, it is undisputed

that SLS representatives communicated with Plaintiff about the
status

of

his

debt

and

any

alleged

inaccuracies.

SLS

representatives reviewed Plaintiff’s payment history under the

22

Loan, investigated his claim, and responded to Plaintiff.
ECF No. 46-6).

(See

Plaintiff provides no evidence and cites to no

case law supporting his contention that the job titles of SLS
employees
1692e(10).

constitute

false

representations

in

violation

of

§

In short, as SLS argues, Count 16 “is not about what

SLS’s employees were called, but about what they would or would
not do for [Plaintiff].”

(ECF No. 57, at 5).

Count 16 also includes allegations that SLS ran afoul of §
1692e(10)

because

(approximately

it

3-point

“used
font)”

illegible
in

its

very

Notice

small

of

type

Assignment.

According to Plaintiff, “[t]he extremely small font size on the
payment coupon and under the heading ‘Important Payment Options
[Information] for Your Records’ make the instructions illegible,
which is a deceptive practice made to induce [] Plaintiff to
call the debt collector.”

(ECF No. 50-1, at 11).

Essentially,

Plaintiff argues that “SLS clearly used the small type font so
it could solicit collection information in disguise.”

(Id.).

Again, Plaintiff offers no relevant authorities to support his
claim.

The

illegible.
below

Moreover,
standard

at

issue

here,

(See 50-5, at 2, 4).

larger,

“Important

text

bolded

Payment
the

text

Fourth

“prevents

liability

“Payment

Information

Circuit’s

“least
for

23

small,

is

not

The smaller text was printed

reading

Options

although

Instructions”

for

Your

sophisticated

bizarre

or

and

Records.”
debtor”

idiosyncratic

interpretations of collection notices by preserving a quotient
of reasonableness and presuming a basic level of understanding
and willingness to read with care.”

Nat’l Fin. Servs., 98 F.3d

at 136.
Plaintiff contends that SLS also violated § 1692e(10) by
“falsely represent[ing] that [he] could not make his mortgage
loan payments by ACH.”

(ECF No. 18, at 21).5

Both parties cite

to the DOT, which contains a provision regarding “Borrower’s
Right to Reinstate After Acceleration”:
Lender may require that Borrower pay such
reinstatement sums and expenses in one or
more of the following forms, as selected by
Lender: (a) cash; (b) money order; (c)
certified check, bank check, treasurer’s
check or cashier’s check, provided any such
check is drawn upon an institution whose
deposits are insured by a federal agency,
instrumentality or entity; or (d) Electronic
Funds Transfer.
(ECF No. 50-18, at 18).

In the section titled “Payment of

Principal, Interest, Escrow Items, Prepayment Charges, and Late
Charges,”

the

DOT

provides

that

the

“Lender

may

return

any

payment or partial payment if the payment or partial payments
5

In conclusory fashion, Plaintiff asserts that SLS’s
refusal to accept his ACH payments also violated § 1692e(12),
which prohibits “[t]he false representation or implication that
accounts have been turned over to innocent purchasers for
value.”
Count 16 of the amended complaint, however, does not
assert such a claim, and it will not be considered here.
See
Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d
324, 336 (4th Cir. 2009) (noting that a plaintiff may not amend
the pleading through a brief opposing summary judgment).
24

are

insufficient

Accordingly,

to

SLS

bring

has

the

the

Loan

option

current.”
under

the

(Id.
DOT

at

to

12).

refuse

Plaintiff’s partial payments, which Chase had done previously.
(See ECF No. 24-6, at 2-3).

Indeed, according to Plaintiff, “I

was told by SLS that I could make payment by ACH after I made
three

months

of

payments

in

the

form

of

cashier’s

checks,

Western Union transfers, or other cash-like equivalents.

. . .

I was also told that I could make ACH payments once I brought my
account up-to-date.”

(ECF No. 50-36 ¶¶ 13, 15).

Plaintiff

provides no other evidence and cites to no authority in support
of

his

claim

that

SLS’s

refusal

to

accept

his

ACH

payments

constituted a false, deceptive, or misleading representation.
Rather, the available evidence indicates that, under the DOT,
SLS had discretion to determine the payment method.

Summary

judgment will be entered in favor of SLS on Plaintiff’s claims
in Count 16.
4. Count 17
In Count 17, Plaintiff claims that SLS falsely represented
that it was the servicer of the Loan.

He asserts that:

SLS falsely represented or implied that
Plaintiff’s
mortgage
loan
had
been
transferred, assigned, or sold for value for
servicing, where in fact Chase had placed
Plaintiff’s mortgage loan in collections
status and had so transferred, assigned, or
sold the mortgage loan as a defaulted loan
to [] SLS, which [] SLS had accepted as a
defaulted debt.
25

(ECF No. 18, at 22).

According to Plaintiff, SLS violated §§

1692e(10) and 1692e(12) because “[n]othing in [the Notice of
Assignment]
considered

alerted
a

[him]

defaulted

that

SLS

mortgage.

was

In

pursuing

fact,

[the

what

it

Notice

of

Assignment] gives the deceptive appearance that he is simply to
make payments to another servicer.”

(ECF No. 50-1, at 15).

Plaintiff fails to offer evidence that any statement in the
Notice of Assignment was false, deceptive, or misleading.
correspondence

introduced

and

identified

SLS

as

the

The
loan

servicer and made no representations regarding the status of the
Loan or any prospective foreclosure proceedings.
50-5).

Moreover,

as

SLS

argues,

the

Notice

(See ECF No.
of

Assignment

complied with the requirements established by RESPA mandating
that

loan

servicing

transferees

provide

notice

to

borrowers.

See 12 U.S.C. § 2605(c)(3).6
5. Count 18
Plaintiff alleges in Count 18 that SLS violated § 1692e(8),
which prohibits “[c]ommunicating or threatening to communicate
to any person credit information which is known or which should

6

In his opposition to SLS’s summary judgment motion,
Plaintiff appears to argue that SLS’s July 11, 2013 letter
falsely stated that SLS represents another creditor.
(ECF No.
50-1, at 15). Count 17 of the amended complaint asserts no such
claim, and it will not be considered here. See Cloaninger, 555
F.3d at 336.
26

be known to be false, including the failure to communicate that
a disputed debt is disputed.”
contends

that

SLS:

(ECF No. 18, at 22).

incorrectly

determined

and

Plaintiff

reported

the

amount owed on the Loan; incorrectly determined and reported
Plaintiff’s

scheduled

monthly

payment

amount;

improperly

reported that the Loan was in default in September 2013; and
failed to report Plaintiff’s debt as disputed to the credit
bureaus.

(ECF No. 50-1, at 16-17).

First,

citing

his

January

2015

credit

report,

Plaintiff

baldly states that SLS incorrectly “add[ed] Plaintiff’s monthly
payments to the total amount owed on the [Loan].”
(citing ECF No. 50-3, at 3)).

(Id. at 16

Plaintiff apparently contends

that SLS incorrectly calculated the total amount due on the Loan
by continually adding monthly payment amounts to the account
balance.

Beyond concluding that SLS calculated “wrongfully,”

Plaintiff

offers

contention.

no

(Id.).

evidence

or

According

explanation
to

SLS,

the

to

support

credit

his

report

reflects monthly increases to the account balance resulting from
“unpaid interest, escrows, late fees and other items that are
owed by Plaintiff.”
increased

over

time

(ECF No. 57, at 7).
as

Plaintiff

failed

The account balance
to

send

SLS

the

scheduled payment amount; in fact, the credit report also notes
that “[t]he original amount of this account was $173,850,” which

27

is the amount Plaintiff borrowed under the Loan.

(ECF No. 50-3,

at 3; see ECF No. 50-18, at 4).
Second, Plaintiff argues that the scheduled payment amount
of $2,020.00 reflected in the credit report is incorrect and
should not have been added continuously to his account balance.
According

to

Plaintiff,

his

“monthly

payment

for

the

dates

reported could not have been the $2,020 erroneously added to his
principal.”

(ECF No. 50-1, at 16).

A review of the account

balance as recorded in the credit report reveals no month-tomonth increase of $2,020.00.

(See ECF No. 50-3, at 3).

Indeed,

as explained above, the account balance increased each month due
to “unpaid interest, escrows, late fees and other items that are
owed by Plaintiff.”

(ECF No. 57, at 7).

Furthermore, as SLS

argues, the scheduled payment amount of $2,020.00 “refer[s] to
the

next

scheduled

payment

–

the

payment

due

following the last payment received on July 3, 2013.

immediately
As SLS did

not receive any payments after July 2013, it accurately reported
to the credit bureaus that the . . . next payment due was for
$2,020.”

(ECF

No.

57,

at

7-8).

Plaintiff

has

adduced

no

evidence in support of his claim that SLS violated § 1692e(8) by
communicating the information reflected in the credit report.
Third,

Plaintiff

asserts

a

§

1692e(8)

violation

because

“SLS report[ed] his account 180 days late in September 2013
after

representing

that

it

would
28

not

report

his

account

delinquent for three months following the transfer of servicing
rights.”

(ECF

No.

50-1,

at

16).

As

a

threshold

matter,

Plaintiff fails to argue that, in doing so, SLS reported false
information to the credit bureaus.

Instead, Plaintiff appears

to argue that SLS reneged on its assurance that it would hold
credit reporting for three months.

It its September 6, 2013

letter, SLS informed Plaintiff:
When a loan transfer occurs, SLS holds
all credit reporting for the month in which
the transfer occurs, as well as two (2)
additional
months
to
allow
for
the
resolution
of
interim
payment
issues
associated with the transfer.
As indicated
above, your loan service transferred to SLS
on
June
20,
2013;
therefore,
credit
reporting will exclude the months of June,
July and August.
(ECF

No.

50-18,

at

3).

Plaintiff

acknowledges

that

“SLS

report[ed] his account 180 days late in September 2013,” which
accords with the course of action SLS revealed in its September
6 letter.

As SLS argues, the letter did “not state that SLS

will never report the delinquencies from the first three months
of loan servicing.”

(ECF No. 57, at 8).

Accordingly, the

undisputed evidence shows that after the hold period expired,
SLS began reporting Plaintiff’s delinquency and payment history.
Plaintiff offers no further evidence or argument in support of
his claim.

29

Fourth, Plaintiff asserts that SLS failed to report his
debt as disputed in violation of § 1692e(8).

As SLS notes, the

term “disputed debts” is a term of art under the FDCPA that
applies when a “consumer notifies the debt collector in writing
within the thirty-day period described in [§ 1692g(a)] that the
debt, or any portion thereof, is disputed, or that the consumer
requests the name and address of the original creditor.”
U.S.C. § 1692g(b).

15

The 30-day period referenced in the statute

commences when the debt collector provides the consumer with a
written notice of the debt.

Here, SLS sent a § 1692g(a) debt

validation notice to Plaintiff on June 23, 2013.
50-7).

(See ECF No.

SLS informed Plaintiff that, pursuant to the FDCPA,

“unless you notify [SLS] directly . . . within 30 days after
receiving this notice that you dispute the validity of this debt
or any portion thereof, [SLS] will assume the debt is valid,” or
undisputed.

(Id. at 3).

As evidence of his claim, Plaintiff

submits correspondence purportedly disputing the debt owed.

The

letters, however, are dated between February 17–24, 2014, and
were sent to SLS, Chase, HWA, and the Substitute Trustees.
ECF No. 50-32).

(See

The letters Plaintiff cites as evidence of his

dispute are dated February 2014, long after the 30-day statutory
window for disputing the debt’s validity.

Moreover, Plaintiff’s

letters to SLS merely inform the debt collector that he intends
to commence legal proceedings.
30

Even

assuming

that

Plaintiff

properly

disputed

his

debt

through his July 2013 communications with SLS, he offers no
additional evidence to show that § 1692e(8) was violated.

At

summary judgment, it is Plaintiff’s burden to present evidence
that raises a genuine dispute of material fact.
concedes

that

notation:

the

January

“Account

2015

previously

credit

in

Plaintiff,
initial

however,

debt

argues

dispute

with

that

the

Chase”

credit

report

servicing

–

which

rights

to

–

includes

a

investigation

(ECF No. 50-3, at 3).
notation

and

cites

Equifax credit report from March 2013.
(citing ECF No. 50-34)).

report

dispute

complete, reported by data furnisher.”

Here, Plaintiff

“refers
as

to

evidence

the
an

(ECF No. 50-1, at 16

Citation to the March 2013 Equifax

was
SLS

compiled

before

–

not

does

Chase

support

transferred
Plaintiff’s

conclusion that the aforementioned dispute notation refers to
Chase instead of SLS.
prior

dispute

with

It is merely evidence of Plaintiff’s
Chase

and

Chase’s

debt

verification.

Furthermore, the notation from the January 2015 credit report
neither provides the date of the earlier dispute nor identifies
the entity that reported the debt as disputed.

Nothing in the

record supports Plaintiff’s claim that SLS communicated credit
information without acknowledging that Plaintiff had disputed
the debt.

He relies only on a conclusory statement in his

opposition brief - that the January 2015 credit report notation
31

regarding
dispute

a

prior

with

debt

Chase,

dispute

rather

refers

than

to

any

his

initial

dispute

with

debt
SLS.

Accordingly, summary judgment is appropriate on all claims in
Count 18.
C.

FDCPA § 1692f (Counts 19-20)

Counts 19-20 of the amended complaint include allegations
that SLS engaged in unfair or unconscionable debt collection
practices in violation of § 1692f.

In Count 19, Plaintiff fails

to identify the precise statutory subsections on which he bases
his claims.

He alleges that:

[SLS] unfairly and continuously reported []
Plaintiff’s mortgage debt as late, knowing
that
the
negative
credit
reporting
information was especially coercive to []
Plaintiff,
and
[]
Chase
unconscionably
transferred the debt as delinquent to its
division
or
subagent,
[]
SLS,
who
unconscionably refused to accept Plaintiff’s
payments, in violation of 15 U.S.C. § 1692a.
(ECF No. 18, at 23).7

Here, as discussed above in the context of

§

provides

1692e,

violated

Plaintiff
the

FDCPA

by

no

reporting

evidence
credit

showing

that

information.

SLS
No

subsection of § 1692f limits such reporting, particularly credit
reporting that has not been shown to be false or deceptive.
Similarly, Plaintiff has not demonstrated that SLS’s refusal to
7

Section 1692a is the FDCPA’s definitional provision and
does not contain statutory prohibitions. Accordingly, Count 19
will be analyzed as asserting claims of unfair collection
practices under § 1692f.
32

accept

his

ACH

payments

ran

afoul

of

§

1692f.

Absent

evidentiary support for Plaintiff’s conclusory allegations in
Count 19, his claims brought under § 1692f cannot withstand
SLS’s summary judgment motion.
Count 20 asserts that SLS “is in the process of effecting
dispossession of [the Property] without any present right to
effect non-possession through a nonjudicial action, to wit, by
an auction based upon claims that [] Plaintiff owes money that
he does not owe on the debt.”

(Id.).

A defendant violates §

1692f(6)(A) by “[t]aking or threatening to take any nonjudicial
action to effect dispossession or disablement of property if . .
.

there

is

no

present

right

to

possession

of

the

property

claimed as collateral through an enforceable security interest.”
In his opposition brief, Plaintiff argues that “SLS did not give
notice . . . of the foreclosure auction held on January 6,
2015.”

(ECF No. 50-1, at 17).

However, as detailed above, SLS

sent Plaintiff a “Notice of Default and Notice of Intent to
Accelerate” on July 11, 2013.

SLS warned, “Failure to pay the

total amount due under the terms and conditions of [the DOT] by
08/13/13 [SLS] . . . will request the Trustee or Substitute
Trustee to collect the amount through non-judicial foreclosure
or judicial foreclosure.”

(ECF No. 46-9, at 1).

pre-foreclosure

Plaintiff

certified mail.

notice

to

by

first

HWA provided

class

mail

(See ECF Nos. 57-2; 57-3; 57-4; 57-5).
33

and

Notice

was also posted on the door of the Tarrant County Courthouse and
filed with the Tarrant County Clerk prior to December 16, 2014.
(ECF No. 57-1 ¶¶ 5-6).

Here, the evidence Plaintiff offers does

not raise any genuine dispute of material fact regarding the
validity

of

entitlement

the
to

debt

pursue

owed,

the

Loan’s

foreclosure.

default,

Nothing

in

or
the

SLS’s
record

supports Plaintiff’s claim that SLS lacked the right to initiate
foreclosure proceedings on the Property, which was claimed as
collateral through the Loan.

Accordingly, summary judgment is

appropriate.
D.

Maryland Consumer Protection Statutes

Plaintiff

also

asserts

claims

against

SLS

under

the

Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann.,
Com. Law § 14-201, et seq. (Count 26); the Maryland Consumer
Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13-101, et
seq. (Count 27); and the Maryland Mortgage Fraud Protection Act
(“MMFPA”), Md. Code Ann., Real Prop. § 7-401, et seq. (Count
28).
1. MCDCA
In Count 26 of the amended complaint, Plaintiff contends
that SLS violated the MCDCA by: attempting to collect a debt
with

knowledge

that

the

debt

was

invalid

or

with

reckless

disregard as to the validity of the amount claimed to be owed;
operating as a collection agency in Maryland without a license;
34

falsely

representing

communications

that

an
give

affiliation
the

with

appearance

of

HAMP;
being

and

“using

authorized,

issued, or approved by the United States government in order to
collect a debt.”

(ECF No. 18, at 27).

Section 14–202(8) provides that a debt collector may not
“[c]laim, attempt, or threaten to enforce a right with knowledge
that the right does not exist.”

To succeed on a claim under the

MCDCA, Plaintiff must establish two elements: (1) that SLS did
not possess the right to collect the amount of debt sought; and
(2) that SLS attempted to collect the debt knowing that they
lacked the right to do so.

See Pugh v. Corelogic Credco, LLC,

No. DKC-13–1602, 2013 WL 5655705, at *4 (D.Md. Oct. 16, 2013).
The key to prevailing on a claim of MCDCA is to demonstrate that
the defendants “acted with knowledge as to the invalidity of the
debt.”

Bierman, 859 F.Supp.2d at 769 (emphasis in original).

In Bierman, at the motion to dismiss stage, the court held that
the plaintiffs’ MCDCA claim failed because they merely recited
the statutory language in alleging that the defendants “violated
the

MCDCA

by

claiming,

attempting

or

threatening

to

enforce

rights with the knowledge that the right did not exist.”
Here,

Plaintiff

similarly

recites

35

the

applicable

Id.

statutory

language, but fails to adduce evidence in support of his claim
sufficient to raise any genuine dispute of material fact.8
Plaintiff also asserts that SLS made false representations
regarding its affiliation with HAMP and “us[ed] communications
that . . . give the appearance of being authorized, issued, or
approved by the United States government in order to collect a
debt when such communications were not so authorized, issued or
approved.”

(ECF No. 18, at 27).

Plaintiff’s claim recites

almost verbatim the statutory language of § 14–202(9) and echoes
his FDCPA claim under § 1692e(10).

See supra Part III.B.2.

Beyond conclusory allegations in his amended complaint, however,
Plaintiff

does

not

judgment motion.
HAMP

insignia

offer

evidence

to

survive

SLS’s

SLS argues that its communications bear the

“because

SLS

participates

in

that

program

offers, to qualified borrowers, HAMP modifications.”
57,

at

4).

SLS

summary

provided

Plaintiff

with

and

(ECF No.

HAMP-mandated

loan

modification application forms and simply invited him to submit
8

Moreover, as noted in a prior memorandum opinion,
Plaintiff cannot contest the validity of the debt amount
demanded by SLS through his MCDCA claim.
(ECF No. 42, at 2930). The statute does not allow for recovery based on errors in
the process or procedure of collecting legitimate, undisputed
debts.
Marchese v. JPMorgan Chase Bank, N.A., 917 F.Supp.2d
452, 464 (D.Md. 2013).
Rather, the MCDCA proscribes certain
methods of debt collection; it is not a mechanism for attacking
the validity of the debt itself.
Fontell v. Hassett, 870
F.Supp.2d 395, 405 (D.Md. 2012) (“[The MCDCA] focuses on the
conduct of the debt collector in attempting to collect on the
debt, whether or not the debt itself is valid.”).
36

documentation

to

determine

mitigation program.

whether

he

qualified

(See ECF Nos. 46-7; 46-8).

for

a

loss

Here, as in the

FDCPA context, Plaintiff has failed to submit evidence showing
that

SLS

made

false

representations

regarding

a

loan

modification or sent communications in violation of § 14–202(9).
Concerning Plaintiff’s remaining claim that SLS operated as
a collection agency in Maryland without the required license, he
provides

no

supporting

evidence

and

fails

even

to

identify

relevant MCDCA subsections prohibiting the alleged conduct.

In

his opposition brief, Plaintiff concedes that “SLS has provided
proof of its Maryland Collection Agency” license, but argues
that his claim remains viable because he “searched for such
license at the time of filing suit, and it did not appear in the
database.”

(ECF

No.

however,

“has

maintained

it

50-1,

at
a

20

n.2).

According

Collection

Agency

to

license

[Maryland] continuously since January 12, 2004 . . . .
license number is 3725.”
Plaintiff’s

case

law,

in

SLS’s

(ECF No. 46-1 ¶ 18).

opposition

brief

largely

restates

conclusory allegations in the amended complaint.
50-1, at 20-21).

SLS,

the

(See ECF No.

Rather than cite to the record or relevant

Plaintiff

asserts

only

that

he

“has

introduced

specific detail that shows facts material to the stated claims
are in dispute.”

(Id. at 20).

37

Accordingly, summary judgment

will be entered in favor of SLS on Plaintiff’s MCDCA claims
included in Count 26.
2. MCPA
Plaintiff states several claims against SLS arising under
the MCPA.

Plaintiff’s first claim refers to SLS’s purported

violation of the MCDCA.

See Md. Code Ann., Com. Law § 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 judgment will be entered in favor of
SLS on Plaintiff’s MCDCA claims.
Plaintiff’s remaining MCPA claims against SLS are based on
allegations
collectors

that
were

illegible

text

Plaintiff

to

SLS:
“loss

in

its

contact

falsely

represented

mitigation

analysts”;

correspondence

SLS;

falsely

that

as

a

used

means

represented

its

that

debt
small,

to

induce

Plaintiff

could not make his Loan payments by ACH; falsely represented
that Plaintiff’s mortgage loan had been transferred, assigned,
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 falsely represented that Plaintiff was in foreclosure
and that it would be accelerating Plaintiff’s debt.

(ECF No.

18,

and

at

28-29).

intentionally

or

He

further

recklessly

alleges

adopted

that

internal

“Chase

SLS

enterprise-wide

software processes” that facilitated the above-mentioned false
38

representations.

(Id. at 29).

Here, the record is devoid of

support for Plaintiff’s claim that SLS used deceptive software
programs or processes, and summary judgment will be entered in
favor of SLS on this claim.

The remaining underlying conduct

complained

mirrors

against

of

SLS

in

under

Count
the

27

FDCPA.

As

Plaintiff’s

discussed

in

allegations
depth

above,

Plaintiff adduces no evidence in support of his claims.
supra Part III.B.

See

For the same reasons, his claims concerning

SLS’s alleged false representations and use of small font size
cannot withstand summary judgment review.
3. MMFPA
Plaintiff asserts claims in Count 28 under the MMFPA, which
provides that “[a] person may not commit mortgage fraud.”
Code Ann., Real Prop. § 7-402.

Under the statute, “mortgage

fraud” is defined as:
any action by a person made with the intent
to defraud that involves:
(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
39

Md.

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[.]
Id. § 7-401(d).
the

The “mortgage lending process” broadly includes

“solicitation,

servicing,

application,

underwriting,

mortgage loan.”

signing,

origination,
closing,

Id. § 7-401(e)(2)(i).

and

negotiation,
funding

of

a

Furthermore, the MMFPA

provides a private right of action “for damages incurred as a
result of a violation of this subtitle.”

Id. § 7–406(a)(1).

The MMFPA does not define the terms
“misrepresentation” or “omission,” as used
in the statute[.]
But, under Maryland
common law, “‘[f]raud encompasses, among
other
things,
theories
of
fraudulent
misrepresentation, fraudulent concealment,
and
fraudulent
inducement.’”
Sass
v.
Andrew,
152
Md.App.
406,
432
(2003)
(citation omitted).
Regardless of the
40

particular
theory,
the
plaintiff
must
establish the elements of fraud “by clear
and convincing evidence.”
Md. Envir. Trust
v. Gaynor, 370 Md. 89, 97 (2002).
Ademiluyi v. PennyMac Mortgage Inv. Trust Holdings I, LLC, 929
F.Supp.2d

502,

530

(D.Md.

2013);

see

Galante

v.

Ocwen

Loan

Servicing LLC, No. ELH-13-1939, 2014 WL 3616354, at *28 (D.Md.
July 18, 2014).
Here, Plaintiff again alleges that: “SLS knowingly claimed
that Plaintiff had not tendered the payments he was required to
tender when in fact he had done so”; “SLS knowingly and falsely
informed Plaintiff that he had not complied with the terms of
the [Loan] when he in fact had done so”; “SLS falsely misstated
and

demanded

that

Plaintiff

make

payments

in

a

manner

not

required under the [Loan]”; and SLS “intentionally or recklessly
adopted

internal

enterprise-wide

software

processes

that

encourage, facilitate, or assist in such unfair and deceptive
trade

practices.”

(ECF

No.

18,

at

31).

Plaintiff’s

MMFPA

claims, like those he asserts throughout the amended complaint,
fundamentally contest the amount owed on the Loan and SLS’s
entitlement to restrict payment by ACH.

Critically, however,

and as explained above, Plaintiff has not brought forth evidence
in support of his allegations.

At the summary judgment stage,

he may not rest on general allegations; rather, Plaintiff must
offer

evidence

from

the

record,

41

including

affidavits

or

declarations
56(c)(4).

based

on

personal

knowledge.

Fed.R.Civ.P.

The evidence adduced by Plaintiff raises no genuine

dispute of material fact regarding validity of the Loan and
SLS’s prerogative under the Loan to specify manner of payment
after default.

Summary judgment will be entered in favor of

SLS.
IV.

Conclusion
For

the

foregoing

judgment will be granted.

reasons,

SLS’s

motion

for

summary

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

42