Hibdon et al v. Safeguard Properties, LLC et al
MEMORANDUM OPINION Signed by Judge Peter J. Messitte on 7/10/2015. (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS HIBDON, ET AL.,
SAFEGUARD PROPERTIES, LLC.,
Civil No.: PJM 14-591
Pursuant to Federal Rule of Civil Procedure 54(b), Thomas Hibdon and Robert Burns
have asked the Court to reconsider its order entered on November 17, 2014, ECF No. 66, in
which it granted the Motions to Dismiss filed by Safeguard Properties, LLC, CitiMortgage, Inc.,
and Bank of America N.A. with respect to Plaintiffs’ claims for violation of the Maryland
Consumer Protection Act (“MCPA”), Maryland Commercial Law Code § 13-301 et seq.
Defendants oppose the Motion. For the reasons that follow, the Motion is GRANTED-INPART and DENIED-IN-PART.
The Court begins with a brief summary of the factual allegations contained in the
At all times relevant to this action, Thomas Hibdon had a mortgage on his home in Port
Republic, Maryland serviced by CitiMortgage, ECF No. 1, at ¶ 97, and Robert Burns had a
mortgage on his home in Leonardtown, Maryland serviced by Bank of America, id. at ¶ 135.
Plaintiffs do not dispute the validity of the instruments creating these mortgages. Among other
things, these instruments provide that, after a borrower falls behind by more than 45 days on
mortgage payments, the servicer is permitted to “inspect” and/or “preserve” the property—
typically once a month—to determine if the property had in fact been abandoned. Id. at ¶ 6.
CitiMortgage and Bank of America had a contract with Safeguard to provide these services. Id.
at ¶¶ 100, 137.
Hibdon failed to make his mortgage payments to CitiMortgage beginning in February
2012. Id. at ¶ 99. On August 16, 2012, he came home to find posted on his front door a
standardized sticker with “Safeguard” printed on it. Id. at ¶ 101. The sticker indicated that
someone from Safeguard had visually inspected the premises of Hibdon’s home, and indicated
further that the property was considered vacant because the grass was high. Id. at ¶ 102. Hibdon,
as it happens, had recently had back surgery and was not able cut the grass during the summer of
2012. Id. The sticker advised Hibdon to call Safeguard and inform it if the property was, in fact,
not vacant; otherwise a crew would enter the home to winterize it. Id. at ¶ 103. Hibdon alleges
that he notified Safeguard in numerous ways that the property was not vacant: he had attorney
Kurt Wolfgang call Safeguard to inform a Safeguard representative that the property was not
vacant, and attached his own notice to his front door stating that “[i]f you are reading this you are
trespassing on my property. To contact me call Kurt Wolfgang attorney.” Id. at ¶¶ 104-06.
On August 23, 2012, Hibdon came home to find his house broken into and the locks
changed. Id. at ¶ 107. It was Safeguard’s agents, he maintains, who broke into his home,
consumed his food, changed his locks, and absconded with over $10,000 in personal property,
including his federal identification badge and passport. Id. at ¶¶ 109-112. Video taken by
surveillance cameras at the home in fact showed a crew of men and women arriving at the home
in a truck, a member of the work crew looking at Hibdon’s no-trespass notice, and that same
work crew member subsequently making a phone call. Thereafter, another member of the work
crew was seen to use a ladder to enter the home––presumably through a window––then let the
rest of the crew enter through the front door. Id. at ¶ 113. After Hibdon lodged a complaint with
Safeguard, an entity known as “Glorious Industries” returned to him some of the personal
property that had been removed. Id. at ¶ 122. Notably, one of the members of the work crew that
had entered the property, Joseph Green, was later prosecuted and convicted of theft in connection
with this incident. Hibdon says he attended Green’s sentencing, and heard Green testify “that
when [he] took the job, he was informed that the houses he was breaking into were abandoned
and that they could take whatever they wanted.” Id. at ¶ 127-131.
Although Burns’s home was not in foreclosure in 2012 or 2013, Id. at ¶ 136, the
Complaint does not allege that Burns was current on his mortgage payments during 2012 or
2013.1 From June 2012 to January 24, 2013, Burns was away from his Leonardtown home on
business in San Diego, California. Id. at ¶ 138. In late October 2012, his mother contacted him
and informed him that “the bank” had “taken over” the house and that notices had been posted
on the front door. For some reason, Burns’s mother refused to give him any contact information
contained in the notices, id. at ¶ 139, so on January 24, 2013 Burns asked a neighbor to give him
the phone numbers listed on the notices, which turned out to have been posted by “B.A.C. Field
Services Corporation,” id. at ¶¶ 140-41. When Burns called one of the phone numbers, he was
connected to a Safeguard representative who, on learning who Burns was, gave him a
combination for the lock box at the home. Id. at ¶ 143. On January 24 or 25, Burns’s friend
visited the home, and discovered that it had been ransacked. Id. at ¶¶ 144-47. Burns, who had
Defendants argued in their Motion to Dismiss that Burns did not dispute that he was in default on his mortgage.
See, e.g., ECF No. 26, at 11. In their Response, Plaintiffs appeared to concede that both Hibdon and Burns “had not
been paying on their mortgages[.]” ECF No. 36, at 11.
previously been the victim of an assault and robbery in San Diego, submits that, on hearing of
the ransacking, he suffered a mental breakdown and was voluntarily hospitalized until February
1. Id. at ¶¶ 148.
Burns returned to his home on February 2, at which time he discovered that his home had
indeed been ransacked, that numerous items of personal property were missing, and that his
locks had been changed. No lockbox was found. Id. at ¶¶ 150-57. On February 4, Burns was able
to reach a Safeguard representative, whom he informed that the house was not vacant, but that it
had been broken into, and his personal property “stolen.” Id. at ¶¶ 167-68. The representative
responded that Safeguard had photographs of the interior of the house showing it to be in good
condition, as well as other photographs taken at some later date that showed the absence of
personal property that should have been in place––which, according to Burns, implied that there
had been a theft of the property, that Safeguard or its agents either committed the theft or were
aware of it, and that they had not communicated these facts to him. Id. at ¶ 169. Burns says he
spent several months communicating with Safeguard in an effort to get his personal property
back, but to no avail. Burns filed a police report with the St. Mary’s County Sherriff, but no
arrests were made. The criminal investigation remains open and ongoing. Id. at ¶¶ 163-64
In their Complaint, Plaintiffs set forth seven claims for relief, including violations of the
federal Fair Debt Collection Practices Act, the Maryland Consumer Debt Collections Act, the
Maryland Consumer Protection Act, common law torts (Conversion, Trespass, Negligence), and
Breach of Contract. They moved for class certification for all claims. Defendants moved to
dismiss all claims and moved to strike the class claims.
The Court held a motions hearing on November 13, 2014. By oral opinion, the Court
granted Defendants’ Motions to Dismiss as to Plaintiffs’ statutory claims, and granted
Defendants’ Motions to Strike Class Allegations. The Court, however, denied Defendants’
Motions to Dismiss as to the common law tort and breach of contract claims. ECF No. 66.
Plaintiffs have since moved to reconsider one aspect of the Court’s ruling: namely, its
dismissal of the Maryland Consumer Protection Act (MCPA) claims. ECF No. 68. Defendants
oppose the Motion. ECF No. 75.
The standard governing a motion for reconsideration of an interlocutory order is not
altogether clear. While the standards articulated in Rules 59(e) and 60(b) are not binding in an
analysis of Rule 54(b) motions, courts frequently look to these standards for guidance in
considering such motions. See Quigley v. United States, 865 F. Supp. 2d 685, 699-700 (D. Md.
2012). Accordingly, courts have reconsidered interlocutory orders in the following situations: (1)
where there has been an intervening change in controlling law; (2) where there is additional
evidence that was not previously available; or (3) where the prior decision was based on clear
error or would work manifest injustice. See id. (citing Akeva L.L.C. v. Adidas Am., Inc., 385 F.
Supp. 2d 559, 565-66 (M.D.N.C. 2005)).
Here, Plaintiffs argue that the Court made a clear error of law by applying the wrong
legal test in dismissing their claims alleging that the Defendants engaged in “unfair trade
practices” in violation of the MCPA. On further reflection, the Court agrees with Plaintiffs’
argument, at least in part.
In Count III of the Complaint, which alleges violations of the MCPA, Plaintiffs state that
“Safeguard and the Servicer Defendants engaged in unfair or deceptive trade practices when they
stole property from mortgagees whose property [Safeguard and/or its agents entered in order to
engage in preservation activities].” See ECF No. 1, at ¶ 235.
Section 13-303 of the Maryland Code, Commercial Law Article provides that “[a] person
may not engage in any unfair or deceptive trade practice, as defined in this subtitle or as further
defined by the Division, in” the sale of consumer goods and services.2 See Md. Code Ann., Com.
Law § 13-303. Section 13-301 of the Maryland Code, Commercial Law “provides a nonexclusive
list ‘defining’ unfair or deceptive trade practices.” Legg v. Castruccio, 100 Md. App. 748, 758
(1994) (emphasis added). This list includes, for example, “[f]alse, falsely disparaging, or
misleading oral or written statement, visual description, or other representation of any kind
which has the capacity, tendency, or effect of deceiving or misleading consumers.” Md. Code
Ann., Com. Law § 13-301(2)(i).3
The statute provides that a person may not engage in any unfair or deceptive trade practice in the sale, lease, rental,
loan, or bailment of any consumer goods, consumer realty, or consumer services, or in the extension of consumer
credit. See Md. Code Ann., Com. Law § 13-303 (1), (4) (emphasis added). The MCPA states that “consumer credit”,
“consumer debts”, “consumer goods”, “consumer realty”, and “consumer services” mean, respectively, credit, debts
or obligations, goods, real property, and services which are primarily for personal, household, family, or agricultural
purposes. Md. Code Ann., Com. Law § 13-101(d)(1). Courts have applied the MCPA to unfair or deceptive trade
practices undertaken in connection with services performed by mortgage servicers pursuant to a deed of trust. See,
e.g., Allen v. CitiMortgage, Inc., 2011 WL 3425665, at *10 (D. Md. Aug. 4, 2011) (denying a motion to dismiss
MCPA deceptive practice claims related to alleged misrepresentations by mortgage servicer regarding the status of
plaintiff’s existing mortgage and the status of plaintiff’s requested loan modification); Neal v. Residential Credit
Solutions, Inc., 2013 WL 428675, at *4 (D. Md. Feb. 1, 2013) (denying a motion for summary judgment on MCPA
deceptive practice claims related to alleged misrepresentations by mortgage servicer regarding whether plaintiffs
were obligated to make mortgage payments).
The prohibition against unfair and deceptive practices in the MCPA (one of the so-called “Little FTC Acts”) was
inspired by similarly worded provisions in the Federal Trade Commission Act, 15 U.S.C.A. § 45 (“FTC Act”), as
well as by the model Unfair Trade Practices and Consumer Protection Act (“UTP-CPA”). See Jack E. Karns, State
Regulation of Deceptive Trade Practices Under "Little FTC Acts": Should Federal Standards Control?, 94 Dick. L.
Rev. 373, 374-75 (1990). The FTC Act provides that “[u]nfair methods of competition in or affecting commerce,
and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C.A. §
45(a)(1). The model UTP-CPA sets forth three variations in its prohibitions against “[u]nlawful acts or practices.”
The first variation provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared unlawful.” See Council of State Governments, Unfair Trade
Practices and Consumer Protection Law, at 6 (1970). This first variation resembles the general prohibition contained
in the FTC Act as well as the “Practices generally prohibited” section of the MCPA, Md. Code Ann., Com. Law §
Until 1994, Maryland appellate courts had not been called upon to distinguish between
“unfair” and “deceptive” trade practices. The Federal Trade Commission and some federal
courts, however, had by then already treated “unfair” and “deceptive” as separate and distinct
prohibited practices. See Legg, 100 Md. App. at 758. Maryland presumably was soon to follow.
As Section 13-105 of the Maryland Code, Commercial Law stated: “[i]t is the intent of the
General Assembly that in construing the term ‘unfair or deceptive trade practices’, due
consideration and weight be given to the interpretations of § 5 (a)(1) of the Federal Trade
Commission Act by the Federal Trade Commission and the federal courts.” Md. Code Ann.,
Com. Law § 13-105.
Legg v. Castruccio gave Maryland courts, in line with the FTC and other federal courts,
the occasion to recognize a private cause of action for “unfair” trade practices separate and
distinct from “deceptive” trade practices. See 100 Md. App. at 763-65; see also Consumer Prot.
Div. v. Luskin’s, Inc., 120 Md. App. 1, 31 (1998) aff’d in part, rev’d in part on other grounds
and remanded, 353 Md. 335 (1999). Relying on a lengthy analysis of the consumer unfairness
doctrine espoused by the Federal Trade Commission, the Maryland Court of Special Appeals in
Legg held that whether a trade practice was “unfair” under the MCPA should turn primarily on
the type of the injury suffered by the consumer. The court determined that to be considered
“unfair” under the MCPA, a trade practice must result in a: (1) substantial injury; (2) that is not
outweighed by any countervailing benefits to the consumer or to competition that the practice
produces; and (3) it must not be the type of injury that a consumer could reasonably have
13-303. The second variation declares unlawful “false, misleading, or deceptive acts or practices,” but does not use
the term “unfair.” The third variation sets forth an enumerated list of unfair and deceptive acts and practices, which
resembles the “Unfair or deceptive trade practices defined” section of the MCPA, Md. Code Ann., Com. Law § 13303. Accordingly, although the MCPA’s prohibition against unfair and deceptive practices was influenced by these
analogous provisions of the FTC Act and the UTP-CPA, the language of the relevant MCPA provisions varies
somewhat from these precursors––most notably, in the Maryland state legislature’s use of the phrase “trade
avoided. See Sager v. Hous. Comm’n of Anne Arundel Cnty., 957 F. Supp. 2d 627, 642 (D. Md.
2013) (citing Legg, 100 Md. App. at 767-71).
Plaintiffs argue that this Court’s dismissal of their MCPA unfairness claim was based on
a clear error of law because the Court did not base its ruling on the three-part Legg/FTC test.
Instead, they argue, the Court dismissed the claim by surveying the nonexclusive list of unfair
and deceptive practices defined in § 13-301, and concluded that the alleged house-breaking,
destruction, and removal of property at issue in this case was not “unfair” because they lacked
the element of deception that the Court believed the statute required.
During the hearing on the issue, counsel for Safeguard began by discussing the two
theories of relief that Plaintiffs had alleged under the MCPA: deceptive practices and unfair
practices. The Court observed:
I think plaintiff is saying the unfair practice includes a deliberate policy of not just
entering, because that may get -- you may get through the gate on that one by
reason of the language on the mortgage, but once in, you wreak havoc. That's
essentially -- is that an unfair practice? That’s, essentially, I take that to be their
ECF No. 67, at 95:5-15.4
Later in the colloquy, the Court asked:
I mean, can it be an unfair practice to -- as a result of your arguably legitimate
entry, can it be an unfair practice if property is deliberately destroyed, personal
property deliberately destroyed within or whatever, can that be an unfair practice?
I mean, it’s wrong, but is it an unfair practice under this particular Consumer
What are the case authorities? I am going to have to ask the plaintiff[s] that. What
are the case authorities that show that anything like this constitutes an unfair
practice under a consumer protection law?
The alleged wrongdoing by Defendants clearly did not involve an element of deception, which Plaintiffs do not
What does “unfair practice” mean? I mean, it’s not really unfair competition
because this is a consumer. When are you unfair to a consumer, under what
circumstances? What’s unfair?
ECF No. 67, at 96:3-16; 101:4-8.
Despite the Court’s repeated entreaties to counsel to provide case authority construing the
meaning of “unfairness” under the MCPA, counsel for Plaintiffs for some reason failed to call
the Court’s attention to either the Legg case, the FTC unfairness test, or to any state or federal
authorities interpreting the unfairness provision of the MCPA––despite having cited such
authorities in their briefs. Instead, counsel for Plaintiffs cited cases from the Northern District of
Illinois, which applied a different consumer protection statute––the Illinois Consumer Fraud and
Deceptive Business Practices Act––to a set of facts essentially similar to the case at bar. See ECF
No. 62, at 106:8-107:22.
Without delving into the Maryland Court of Special Appeals’s analysis in Legg, the Court
proceeded to analyze the unfairness provision using ordinary tools of statutory construction,
concluding that because unfair and deceptive practices are not discussed disjunctively in the
MCPA, and because the MCPA contains no separate interpretation of the meaning of “unfair
practice,” an unfair practice must necessarily involve an element of deception, either through
outright fraud or misrepresentation by omission or commission. See ECF No. 67, at 111:23114:5. Based upon the facts alleged in the Complaint, the Court concluded that Plaintiffs had not
stated a claim for unfair trade practices under the MCPA.
Presented now with controlling authority to the contrary, the Court concedes partial error,
and proceeds to analyze whether Plaintiffs have stated a claim for relief under the Legg/FTC test.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must plead facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). This standard requires “more than a sheer possibility that
a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a
court will accept factual allegations as true, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not suffice.” Id.
As indicated under the Legg/FTC test, to be considered “unfair” under the MCPA, a
“trade practice” must result in a: (1) substantial injury; (2) that is not outweighed by any
countervailing benefits to the consumer or to competition that the practice produces; and (3) it
must not be the type of injury that a consumer could reasonably have avoided. See Sager, 957 F.
Supp. 2d at 642.
With regard to substantial injury, the Legg court noted that it “is not concerned with
trivial or merely speculative harms. [ . . . ] In most cases a substantial injury involves monetary
harm ... unwarranted health and safety risks may also support a finding of unfairness. On the
other hand, emotional impact and other more subjective types of harm will not ordinarily make a
practice unfair.” 100 Md. App. at 768 (citing 1980 FTC Policy Statement on Unfairness)
(internal citations omitted). Legg also noted that since evidence of consumer injury is not clearcut in all cases, the FTC test allows a court to look to statutes or other sources of public policy to
affirm that a practice is unfair. Legg cautioned that to the extent that a court “relies heavily on
public policy to support a finding of unfairness, the policy should be clear and well-established.
In other words, the policy should be declared or embodied in formal sources such as statutes,
judicial decisions, or the Constitution as interpreted by the courts, rather than being ascertained
from a general sense of the national values.” See id.
As for countervailing benefits, the Legg court, again citing the 1980 FTC Policy
Statement on Unfairness, noted that “‘most business practices entail a balancing of costs and
benefits to the consumer. [ . . . ] Since many trade practices provide a mixed bag of costs and
benefits, the [FTC] will not find that a practice unfairly injures consumers unless it is injurious in
its net effect.” See 100 Md. App. at 768-69 (citing 1980 FTC Policy Statement on Unfairness)
(internal citations omitted).
Finally, the Legg court noted that the guiding principle of the “not reasonably avoidable”
prong is that “‘[n]ormally we expect the marketplace to be self-correcting, and we rely on
consumer choice—the ability of individual consumers to make their own private purchasing
decisions without regulatory intervention—to govern the market. [ . . . ] Corrective action is
viewed as necessary only when consumers are prevented from effectively making their own
decisions. The purpose of such action is to halt some form of seller behavior that unreasonably
creates or takes advantage of an obstacle to the free exercise of consumer decision making.” See
100 Md. App. at 769 (citing 1980 FTC Policy Statement on Unfairness) (internal citations
omitted). How, then, does this analysis apply to the present case?
Plaintiffs argue that what makes the trade practice at issue here “unfair” satisfies all three
prongs of the Legg/FTC test. First, they argue that the alleged trade practice of breaking into
homes and stealing and destroying valuable personal property is a substantial injury. Second,
they argue that there can be no countervailing benefits to such a practice. Third, they argue that
the practice was not reasonably avoidable because Plaintiffs had no prior relationship with
Safeguard and did not participate in the decision of the mortgage servicers to enter into contracts
with Safeguard to provide property preservation services. As a result, Plaintiffs submit that they
had no ability to negotiate independently of Safeguard and its subcontractors.
Defendants, on the other hand, argue that Plaintiffs have failed to set forth a cognizable
“trade practice” under the MCPA. They point out that Plaintiffs have supplied no case authority
supporting the notion that an act of entry into a dwelling, followed at some point by tortious
conduct involving destruction or removal of property, amounts to a trade practice, much less an
“unfair” trade practice contemplated by the MCPA. Rather, say Defendants, state tort law––
trespass, negligence, and conversion, for example––already provides remedies for such alleged
actions. Defendants also suggest that there are a virtually limitless number of lenders with whom
Plaintiffs could have obtained mortgages with different terms concerning default and property
preservation, so that any harms Plaintiffs may have suffered were reasonably avoidable.5
Taken literally, the Legg/FTC test has the potential to transform a considerable number of
conventional torts committed by a mortgagee or its agents into claims under the MCPA. That is,
an act could involve substantial injury, be of little or no benefit to the mortgagee and total
detriment to the mortgagor and not be reasonably avoidable by the mortgagor. The case at bar is
a good example. Destruction and removal of valuable personal property unquestionably
constitute substantial injuries with no countervailing benefit to the consumer. Nor can it fairly be
said that Plaintiffs could have avoided the destruction and removal of the property during
preservation activities by shopping around for mortgages. As Defendants themselves point out,
the clause affording a right of entry for property preservation is a standard (and in fact,
statutorily required) element of a mortgage contract. See ECF No. 26, at 4-5. Moreover, there is
The reason Plaintiffs’ preference for relief under the MCPA becomes sharply apparent at this point. Unlike the
traditional common law torts of trespass, conversion, or negligence, the MCPA authorizes the recovery of attorneys’
fees. Md. Code Ann., Com. Law § 13-408(c).
no indication that borrowers have any say in selecting the property preservation company from
an open and functioning marketplace––invariably, such companies are chosen by the servicer.
Finally, according to the Complaint, even when Hibdon did contact Safeguard to instruct them
that the home was not vacant and should not be entered, and even after he put up signs on the
front door to the same effect, Safeguard or its subcontractors, he contends, broke in regardless.
But does this analysis justify an MCPA claim? Why don’t causes of action in trespass,
negligence, or conversion suffice?
The key element, in the Court’s view, one that does not subsume these conventional torts,
lies primarily in the significance of the word “practice” in the term “trade practice.” As the Court
views it, what matters is whether Plaintiffs have plausibly alleged that the theft and destruction
of personal property during property preservation activities constitutes a “practice” of the trade
under the MCPA, not merely an “act” that occurs in the course of trade activities, even if it may
harm the consumer.
Plaintiffs in fact cite to a dictionary definition of a “trade practice” that points the way:6
viz. “a method of competition, operating policy (as the use of standards of size, shape, and
quality of materials), or business procedure common to members of a line of business or industry
that may be formally adopted sometimes as a rule under government auspices.” See MerriamWebster’s Unabridged Dictionary (2015) (emphasis added), available at http://www.merriamwebster.com/dictionary/trade practice. “Practice” is defined as “a repeated or customary action”;
“the usual way of doing something.” Webster’s Collegiate Dictionary (11th ed. 2012), at 974
A dictionary definition may provide a “useful starting point,” though not a dispositive answer, in determining a
statute's meaning. See Blue v. Prince George’s Cnty., 434 Md. 681, 690 n.12 (2013).
In other words, it is not ordinarily the one time (or even necessarily the repeated)
occurrence of an act that suffices to constitute the statutory tort of “unfair trade practice.” These
may all be isolated events. Rather, it is the “common” procedure, possibly “formally adopted,”
“repeated or customary,” “the usual way” that, consistent with the Legg analysis, transforms the
conventional tort into the statutory tort of “unfair trade practice.”7 Applied to the case at bar,
then, the Court holds that while a business may be liable in tort for property destruction and theft
committed by a business’s agents, such acts of property destruction and theft are not unfair trade
practices under the MCPA unless they are the result of the operating policy or customary
practice of that business.
The differing allegations raised by Hibdon and by Burns illustrate this distinction. The
Complaint alleges that, at the criminal allocution of apparent Safeguard agent Joseph Green,
Hibdon heard Green testify that when he took the job, he was informed8 that the houses he was
entering into were abandoned and that he and his crew could take whatever items they wanted.
Assuming the truth of this factual allegation, the Court finds it plausible to infer that the alleged
entry, property destruction, and property removal wrought by the Safeguard subcontractors
constitute not merely tortious actions committed by an agent or agents during the course of his or
In arguing that such actions are not “trade practices,” Defendants cite the preamble to the MCPA, which states that
the “General Assembly recognizes that there are federal and State laws which offer protection in these areas,
especially insofar as consumer credit practices are concerned, but it finds that existing laws are inadequate, poorly
coordinated and not widely known or adequately enforced.” Md. Code Ann., Comm. Law § 13–102(b)(2).
Defendants conclude, based on this language, that the MCPA only provides a remedy for forms of wrongdoing not
covered by traditional theories of tort and contract liability for which no remedy would otherwise be available to an
aggrieved consumer. See ECF No. 75, at 4-5. But Defendants’ reading of the MCPA preamble is strained. Far from
finding that no remedy was available for unlawful practices in consumer transactions prior to the enactment of the
MCPA, the General Assembly found that remedies were available. The Maryland Court of Appeals has held, “the
Legislature’s purpose in enacting the Consumer Protection Act was to supplement existing federal and state laws
which it found to be ‘inadequate, poorly coordinated and not widely known or adequately enforced.’” See Consumer
Prot. Div. Office of Atty. Gen. v. Consumer Pub. Co., 304 Md. 731, 761 (1985) (quoting Md. Code Ann., Comm.
Law § 13–102(b)(2)) (emphasis added). The Court concludes that the mere fact that allegations of a single event of
alleged wrongdoing may make out a common law claim or claims does not mean that the same allegations cannot
also make out an MCPA unfairness claim.
The Complaint does not specify whether Green was saying he was informed by Safeguard or a Safeguard
subcontractor, but for present purposes, the Court will assume he was.
their duties, but well beyond that, an instance of an agent or agents carrying out an articulated
company policy. Plaintiffs suggest that Safeguard––at the behest of the mortgage servicer
Defendants––allowed or encouraged its subcontractors to steal property in order to bully
delinquent homeowners into paying up or giving up their foreclosure rights without a fight,
which may or may not hold true. But, notably, this is the same inference that at least two Judges
in the Northern District of Illinois found plausible in construing the similar (but not identical)
unfairness standard under the Illinois MCPA analogue.9 See, e.g., Bywater v. Wells Fargo Bank,
N.A., 2014 WL 1256103, at *4 (N.D. Ill. Mar. 24, 2014); Hill v. Wells Fargo Bank, N.A., 946 F.
Supp. 2d 817, 826-27 (N.D. Ill. 2013). The Court also notes that it is plausible that Safeguard (or
Safeguard’s subcontractors) may have allowed or encouraged their employees to loot the
possessions of purportedly abandoned homes, perhaps in order to offer these employees an
additional benefit at no cost to Safeguard. In either case, this Court finds that Hibdon has
sufficiently alleged that the entry, property destruction, and property removal that he suffered
during Defendants’ “home preservation” activities constitute a “trade practice” under the MCPA.
At the Motion to Dismiss phase, therefore, Hibdon has stated a claim for relief under the
MCPA’s prohibition against “unfair trade practices.”
Burns, by way of contrast, has not adequately alleged that the entry, property destruction,
and property removal that he suffered constitute a trade practice under the MCPA. Unlike
Hibdon––who alleges, based on security camera footage and state court criminal proceedings,
that a Safeguard agent or sub-agent (Joseph Green) committed the entry, property destruction,
and property removal––Burns asks Court to infer that Safeguard’s agents committed the entry,
While Maryland has adopted the 1980 FTC Policy Statement on Unfairness as the standard for unfairness claims
under the MCPA, Illinois continues to rely on the pre-1980 FTC Policy Statement criteria for unfairness; e.g., the
so-called “Cigarette Rule.” See Michael M. Greenfield, Unfairness Under Section 5 of the FTC Act and Its Impact
on State Law, 46 Wayne L. Rev. 1869, 1914 (2000). The 1980 FTC Policy Statement cabined the types of consumer
injury that unfairness claims previously brought under the Cigarette Rule could reach, importing a cost-benefit
analysis requirement and narrowing the use of public policy as a basis for finding unfairness. See id. at 1874-78.
property destruction, and property removal because Safeguard agents were inside his home at or
about the time that his possessions were ransacked and the property removal effectuated. While
it may be that Safeguard’s agents were indeed the ones who committed the property destruction
and property removal, it is equally plausible that they were merely negligent in leaving open
Burns’s rear sliding glass door after they completed their property preservation activities, thereby
facilitating the entry of unknown third parties who committed the property destruction and
property removal.10 In any event––critically––unlike Hibdon, there is no factual allegation in the
Complaint that the Safeguard employees or subcontractors who Burns alleges committed
property destruction or took his property did so as a result of an operating policy or customary
business practice of Safeguard. The most that Burns can say is that Safeguard’s agents took
similar actions at least once in Maryland (i.e. with respect to Hibdon’s home in Calvert County)
and on a few other occasions against other homeowners in Illinois.11 But assuming that such
evidence would be admissible at trial in Burns’s case––a questionable proposition––it still would
not demonstrate that in his case individuals acted pursuant to a policy or custom of the mortgage
servicer. In the Court’s view, Burns has not, at least at this initial juncture, plausibly alleged that
the Defendants’ alleged destruction of his property or removal of his personalty constitute an
unfair trade practice under the MCPA.12
For these reasons, Plaintiffs’ Motion to Reconsider, ECF No. 68, is therefore
GRANTED-IN-PART and DENIED-IN-PART. Defendants’ Motions to Dismiss Count 3:
This latter possibility is supported to some extent by the facts pleaded in the Complaint indicating that one or
more persons may have been squatting on the property, e.g. dishes and bath towels had been used, and cigarette
butts were found on the floor. See ECF No. 1, at ¶¶ 153-55.
Burns also cites newspaper reports of homeowners in Texas, Arkansas, and other states who have complained of
such practices by Safeguard. See, e.g., ECF No. 1, at 13-16.
Should Burns develop, in the course of discovery, more plausible evidence that Safeguard agents either destroyed
or removed his property pursuant to a policy or customary business practice, he can always seek leave of Court to
amend his Complaint to revive his MCPA claim.
Violation of §13-301 et seq. of the Maryland Commercial Law Code: The Maryland Consumer
Protection Act are now DENIED as to Plaintiff Hibdon’s claim that Defendants engaged in
unfair trade practices under the MCPA, but are GRANTED as to Plaintiff Burns’s claim that
Defendants engaged in unfair trade practices under the MCPA.
A separate Order will ISSUE.
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
July 9, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?