Aghazu v. Severn Savings Bank, FSB et al

Filing 84

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 4/18/2018. (heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHINEME C. AGHAZU,
Plaintiff,
v.
SEVERN SAVINGS BANK, FSB, et al.,
Defendants.

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Civil No. PJM 15-1529

MEMORANDUM OPINION
In May, 2015, Chineme Aghazu (Aghazu) sued Severn Savings Bank, FSB (Severn), FCI
Lender Services, Inc. (FCI), and Pontus SB Trust (Pontus)1, alleging violations of the Truth-inLending Act (TILA), 15 U.S.C. § 1601, et seq., the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. § 1692, et seq., the Maryland Consumer Debt Collections Act (MCDCA), Md. Code
Ann., Com. Law, § 14-201, et seq., and the Real Estate Settlement Procedures Act (RESPA), 12
U.S.C. § 2601, et seq.
On October 31, 2017, following a lengthy and convoluted litigation path, Aghazu filed
the present Motion for Partial Summary Judgment as to Liability Only and for Summary
Judgment on Defendants’ Counterclaim. ECF No. 73. Defendants FCI and Pontus responded by
filing a joint Motion for Summary Judgment on liability. ECF No. 74. For the following reasons,

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Aghazu’s original Complaint (ECF No. 1) named Pontus Capital, LLC, as a Defendant. At the
November 9, 2015 Motions Hearing, however, counsel for Pontus SB Trust represented that Pontus
Capital, LLC had no direct relationship to the subject loan and property, and that, in fact, Pontus SB Trust
was the correct party in interest. Aghazu did not object to the proposed substitution. Accordingly, by
Memorandum Order dated November 9, 2015, the Court substituted Pontus SB Trust for Pontus Capital,
LLC, as a co-Defendant. ECF No. 17. The Amended Complaint (ECF No. 29) correctly refers to Pontus
SB Trust as a Defendant.

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Aghazu’s Motion (ECF No. 73) is GRANTED IN PART and DENIED IN PART, and
Defendants’ Motion (ECF No. 74) is DENIED.
I. FACTS
The facts are more fully set out in the Court’s March 2, 2016 Opinion. For purposes of
the pending Motions, the relevant facts are as follows.
In October 2003, Aghazu obtained a mortgage Loan (“Loan”) from Severn in the amount
of $265,000.00. Compl. ¶ 8, ECF No. 1. The Loan was evidenced by a Note (“Note 1”) secured
by a Deed of Trust encumbering Aghazu’s home at 7704 Northern Avenue, Glenn Dale, MD
20769 (the “Property”). Compl., Exs. 1, 2, ECF No. 1-1. Aghazu and Severn subsequently
agreed to modify the Loan on two occasions: first, on February 11, 2008 (increasing the Loan
amount to $340,000.00); later, on August 28, 2008 (increasing the Loan amount to $380,000.00).
Compl. ¶¶ 11-12; Compl. Exs. 3, 4, ECF No. 1-1. In addition to increasing the amount of the
Loan in August 2008, the parties executed a second Note (“Note 2”), which was a modified
version of Note 1. Compl. Exs. 4, 5, ECF No. 1-1.
On August 21, 2009, Aghazu filed for Chapter 7 bankruptcy in this Court. Ch. 7 Case No.
09-25607 (D. Md. Aug. 21, 2009). On October 14, 2009, during the course of the Chapter 7
proceeding, with leave of the Court, she filed an adversary proceeding against Severn, alleging
violations of the TILA and wrongful foreclosure. Ch. 7 Case No. 09-25607, Adv. No. 09-719 (D.
Md. Oct. 14, 2009). In January 2010, in order to resolve their dispute, the parties executed a
Mutual Release and Settlement Agreement and agreed to a Consent Order Resolving [the]
Motion to Dismiss [the] Complaint and Dismissing [the] Adversary Proceeding (“Consent
Order”). Id.; Compl. Ex. 8, ECF No. 1-1.

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Pursuant to the Consent Order, Aghazu was permitted to remain in the Property until
January 1, 2011 without having to make any mortgage payments. Compl. Ex. 8 ¶ 2. After that
time, she was allowed to remain in the Property, provided that she make interest-only payments
at the rate of $1,583.33 per month, and provided further that she aggressively market the
Property for sale by December 31, 2011. Id. If Aghazu failed to close under a contract of sale
before December 31, 2011, the Consent Order entitled Severn to exercise all the rights it
possessed under the original Loan documents, including Note 2. Id. At the same time, under the
terms of the Consent Order, each party was absolved of all “claims arising from the Lawsuit or
the Borrower’s procurement of the Loan.” Id. ¶ 5. The Consent Order stated that “[t]his Release
shall unconditionally remain in effect even if Borrower fails to close under a contract of sale for
the purchase of the Property on or before December 31, 2011, and alternatively, this release shall
not bar Lender from exercising all of its rights afforded to it under the Loan Documents should
Borrower fail to comply with the terms of this Agreement or should closing under a contract not
be consummated on or before December 31, 2011, for the purchase of the Property.” Id. Pursuant
to the Consent Order, both Aghazu and Severn were deemed responsible for and left to pay their
own legal fees, expenses, and costs. Id. ¶ 7.
Aghazu never did sell the Property following the bankruptcy proceeding, and she
apparently continues to occupy the Property as of the present date. See Compl. ¶ 19; Pl.’s Line to
File Exhibits, Aff. Chineme Aghazu (“Aghazu Aff.”) ¶ 1, ECF No. 20-1. Beginning January 1,
2011, however, she duly paid and has continued to pay $1,583.33 each month toward her
mortgage. These payments correspond to the reduced rate interest-only payment she was obliged
to pay after January 1, 2011 under the terms of the Consent Order. Compl. Ex. 8 ¶ 5.

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On December 31, 2013, Severn sold Aghazu’s Loan to Pontus. Compl. Ex. 10; see also
Severn’s Reply, Ex. 1, ECF No. 7-1. That same day, Severn notified Aghazu that it had sold her
Loan to Pontus and further advised that, effective February 1, 2014, servicing of the Loan would
be transferred to FCI. Compl. Ex. 10, ECF No. 1-1.
On February 19, 2014, Aghazu sent a payoff request to FCI. Compl. Ex. 11, ECF No. 11. On that same day, FCI sent her a payoff statement containing the word “DRAFT” in large
letters across the paper, indicating that the amount due under the Loan was $394,669.00. Compl.
Ex. 12 at 0188, ECF No. 1-1. The statement included $11,571.70 in “unpaid charges” itemized
as “negative escrow balance” and interest. Id. On February 25, 2014, FCI sent another payoff
statement to Aghazu, this time without the word “DRAFT,” and this time informing Aghazu that
the total amount due under the Loan was $407,513.49. Compl. Ex. 13, ECF No. 1-1. The
February 25, 2014 payoff statement included a line item for “Unpaid Charges” in the amount of
$25,988.36. Id. A subsequent payment statement sent to Aghazu in October 2014 included a
roughly similar figure – $26,860.64 – designated as “Fees” due. Compl. Ex. 15 at 0026.
On September 29, 2014, Pontus sent Aghazu a Notice of Intent to Foreclose her Property.
Pl.’s Motion for Summary Judgment (“Pl.’s MSJ”), Ex. 9, ECF 73-10. The Notice yet again cited
unpaid fees and costs, this time totaling $26,697.53, payment of which, per Pontus, would be
required in order to cure Aghazu’s supposed default. Id. Similarly, a November 2014 “Demand
Loan Payoff” statement from FCI provided that Aghazu owed “Unpaid Charges”, this time
totaling $26,988.30—consisting of $12,016.93 due for a negative escrow balance, and
$14,971.37 due for attorney fees. Pl.’s MSJ, Ex. 6, ECF 73-7.
Around this time, which is to say beginning in December 2013 and continuing until
March 2014, Aghazu says she was attempting to refinance her mortgage with an entity known as

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Mortgage One Solutions (“Mortgage One”). Aghazu Aff. ¶¶ 4, 14, 16, 17. In the process, she
says, she requested payoff figures first from Severn and then from FCI in order to facilitate the
transaction. See id. Aghazu claims, however, that due to the fact that the payoff figures she
eventually received from FCI erroneously showed that she owed approximately $25,000 in
unpaid fees and costs, Mortgage One declined to refinance her Loan. Pl.’s Line to File Exhibits,
Ex. J, ECF No. 20-11. In other words, these additional “fees” and “costs” which Aghazu claims
were improper, caused her to lose an opportunity to refinance. Compl. Exs. 12, 13; Pl.’s Line to
File Exhibits, Ex. J.
II. PROCEDURAL HISTORY
On May 27, 2015, Aghazu filed her original Complaint in this Court, alleging that Severn
and FCI had failed to provide her with accurate payoff information, in violation of Regulation Z
of the TILA, 12 C.F.R. § 1026.36(c)(3) (Count I); that FCI had made a false representation in
connection with the collection of her mortgage debt in violation of the FDCPA, 15 U.S.C. §
1692e(2)(A) (Count II); that FCI had engaged in unfair debt collection practices in violation of
the FDCPA, 15 U.S.C. 1692f(1) (Count III); that both FCI and Pontus had engaged in unlawful
debt collection in violation of the MCDCA (Count IV); and that FCI and Severn had failed to
give her adequate notice of a loan servicing transfer in violation of RESPA, 12 U.S.C. § 2605(c)
(Count V).
Severn, FCI, and Pontus moved to dismiss all counts of the original Complaint, arguing
pursuant to Federal Rule of Civil Procedure 12(b)(6) that Aghazu had failed to state a claim upon
which relief might be granted.
On March 1, 2016, the Court issued a Memorandum Opinion and Order dismissing with
prejudice Aghazu’s TILA and FDCPA claims (Counts I, II, and III) as barred by applicable

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statutes of limitations, but dismissing without prejudice her MCDCA and RESPA claims (Counts
IV and V) for failure to state a claim.2 On April 1, 2016, Aghazu filed an Amended Complaint,
this time alleging violation of the MCDCA3 by both FCI and Pontus and violation of RESPA
against FCI.
On May 20, 2016, the remaining Defendants, FCI and Pontus, filed a Motion to Dismiss
the Amended Complaint for failure to state a claim. The Court, however, felt it was appropriate
to consider certain legal issues before it could evaluate the Motion to Dismiss. Accordingly, on
September 6, 2016, the Court held a one-day Bench Trial to address the limited issue of where
the approximately $25,000 in fees and costs allegedly owed by Aghazu came from, and the
effect, if any, that this claimed amount might have had on Aghazu’s efforts to refinance with
Mortgage One.
At the Bench Trial, and in its September 7, 2016 Order issued the next day, the Court
made two key findings. First, it determined, as a matter of law, that the attorneys’ fees and costs
Defendants claimed Aghazu owed in fact represented either attorneys’ fees and costs incurred by
Severn during Aghazu’s bankruptcy proceedings and that other fees and costs had been incurred
in preparation for a threatened foreclosure in 2011 that had never actually been initiated. The
Court held that, in light of the provision of the Consent Order following the bankruptcy
proceeding that made each party responsible for their own legal fees, expenses, and costs, any
attorneys’ fees or costs Defendants or their predecessor in interest (i.e. Severn) may have

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By Order dated November 9, 2015, the Court dismissed Count V with prejudice as to Severn.
Accordingly, because Count I, the only remaining claim against Severn, was also dismissed with
prejudice, Severn was and is no longer a Defendant in the case.

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As in her original Complaint, Aghazu incorrectly refers to this Act as the “Maryland Consumer Debt
Practices Act.” Although she clarified in later pleadings that Count IV alleged violations under the
Maryland Consumer Debt Collections Act (MCDCA) (emphasis supplied), her Amended Complaint,
once again, refers to the MCDCA by the wrong name.

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incurred during the bankruptcy proceedings were fully disposed of by the Consent Order and
were not properly collectible by Defendants. The Court also determined that Aghazu could not
be held responsible for fees and costs associated with a foreclosure that was never initiated. In
sum, the Court held as a matter of law that Aghazu was liable for none of the attorneys’ fees and
costs claimed by Severn or Defendants. Second, the Court held that, following a bankruptcy,
unpaid property taxes or insurance payments could only become a lien on the property, but were
not collectible from the property owner (in this case, Aghazu) personally.
At the Bench Trial, the Court also heard testimony from Harold White, Aghazu’s
Mortgage One Loan Officer, who stated that Aghazu’s loan had in fact been tentatively approved
pending payoff figures, but that after Mortgage One received the payoff figures from
Defendants, her loan had been denied. He specifically stated that the loan was denied because of
the change in the loan-to-value ratio. When the Court inquired whether the $25,000 listed in fees
and costs affected the approval of Aghazu’s loan, White testified that “the $25,000 additional
was the thing that pretty much took it to where it was an approvable loan to non-approvable
loan.” White also said, however, that if Aghazu had not sought to take out $20,000 in cash as
part of the loan, she could have gone forward with the transaction.
On March 16, 2017, the Court issued a Memorandum Opinion and Order granting
Defendant’s Motion to Dismiss as to Count V, which alleged that FCI violated RESPA when it
failed to give Aghazu proper notice of the transfer of the loan. ECF Nos. 61 & 62. However, the
Court denied the Motion to Dismiss as to Count IV alleging violations of the MCDCA. Id.
Following that Opinion and Order, FCI and Pontus filed an Answer to the Amended Complaint
and a Counterclaim, arguing that Aghazu had breached the Consent Agreement 1) by failing to

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sell her house as scheduled by December 31, 2011, and 2) by failing to revert to the Loan
Documents and make monthly payments of principal and 7% interest. ECF No. 63.
On October 31, 2017, Aghazu filed the present Motion for Summary Judgment as to
Liability Only as to Count IV, arguing that there is sufficient evidence to find as a matter of law
that Defendants violated the MCDCA by seeking to collect fees and costs they were not entitled
to, with the knowledge that they were not entitled to them. ECF No. 73. She also seeks summary
judgment on the counterclaim, positing that the Consent Order does not allow for debt
acceleration unless Aghazu failed to make a payment, which she has not done. Id. On November
1, 2017, Defendants filed a Motion for Summary Judgment on the grounds that Aghazu has not
designated any expert witnesses and thus is unable to establish damages at trial. ECF No. 74.
Both Motions have been fully briefed, and the Court heard oral argument on February 7,
2018.
III. STANDARDS OF LAW
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). This does not mean, however, that “some alleged factual
dispute between the parties” defeats the motion for summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Rather, “the requirement is that
there be no genuine issue of material fact.” Id. (emphasis in original).
IV. ANALYSIS
1. Aghazu’s Motion for Partial Summary Judgment as to Liability.
a.

The MCDCA Applies to the Disputed Debt Collection and Aghazu is Entitled to
Partial Summary Judgment with Respect to her Claim.

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Aghazu’s sole remaining claim is pursuant to MCDCA § 14-202(8), which provides that
a collector of a debt may not “[c]laim, attempt, or threaten to enforce a right with knowledge that
the right does not exist.” Md. Code Ann. Com. Law § 14-202(8); Mem. Opinion at 13, ECF No.
61. Despite the fact that the Court found in its March 16, 2017 Memorandum Opinion that
Aghazu has standing to assert an MCDCA claim, Defendants have again raised the issue of
whether she “even qualifies for review under the MCDCA.” Opp. Mem. at 4, ECF No. 75-1.
Specifically, Defendants argue that questions remain regarding “a) whether Plaintiff is a
consumer, b) whether the loan at issue was a consumer loan, [and] c) whether attempts were
actually made to ‘collect’ from Plaintiff under the law.” The Court finds, again, that Aghazu has
satisfied these requirements and that she has done so as a matter of law.
The MCDCA defines “collector” as “a person collecting or attempting to collect an
alleged debt arising out of a consumer transaction.” Md.Code Ann., Com. Law, § 14–201(b).4
“Consumer transaction” is defined as “any transaction involving a person seeking or acquiring
real or personal property, services, money, or credit for personal, family, or household
purposes.” Id. § 14–201(c). Plainly, this definition extends to an individual homeowner seeking a
home loan to make improvements on her primary residence, as is the case with Aghazu. ECF No.
70-8, ¶ 1. Because she did not receive the loan to improve her property for commercial or
business purposes, as a matter of law she qualifies as a “person seeking or acquiring . . . money,
or credit for personal, family or household purposes.”
In addition, the Court finds as a matter of law that the communications from Defendants
to Aghazu in 2014 qualify as attempts to collect a debt under the MCDCA. The October 10,

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The plain meaning of the MCDCA’s definition of “collector” extends to Pontus, the creditor, as well as
FCI, the debt collector. Courts in Maryland have specifically acknowledged that creditors are appropriate
defendants in MCDCA suits. See, e.g., Marchese v. JPMorgan Chase Bank, N.A., 917 F. Supp. 2d 452,
464 (D. Md. 2013) (stating that “the MCDCA [] allows for recovery against creditors that attempt to
collect debts when there is no right to do so”). 

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2014 “Payment Statement” from FCI to Aghazu listed $26,860.64 in “total fees charged” and
included a tear off portion at the bottom for Aghazu to detach and mail with her payment (the
tear off portion lists her “Amount Due” as $28,443.97—$26,860.64 in fees plus the $1,583.33
monthly interest-only payment). Pl. MSJ, Ex. 5, 73-6. The inclusion of the tear off portion
qualifies the “Payment Statement” as a demand for payment.
Furthermore, on November 17, 2014, Defendants issued a “Demand Loan Payoff” which
includes “Unpaid Charges” totaling $26,988.30. Pl. MSJ, Ex. 6, 73-7. The “Itemization of
Unpaid Charges” lists $12,016.93 in “Negative Escrow Balance” and $14,971.37 in “Attorneys
[sic] Fees.” Id. This document also constitutes a demand for payment.
Accordingly, the Court finds as a matter of law that Aghazu has standing to bring a claim
against FCI and Pontus under the MCDCA—she is a consumer under the Act, her home loan
qualifies as a consumer transaction, and Defendants attempted to collect a debt from Aghazu that
she has long claimed she does not owe.
b.

There Remains a Disputed Issue of Material Fact as to Defendants’ Actual or
Constructive Knowledge that They Lacked the Right to Collect the Debt.

“To plead a claim under [Section § 14-202(8) of] the MCDCA, Plaintiff must set forth
factual allegations tending to establish two elements: (1) that Defendants did not possess the
right to collect the amount of debt sought; and (2) that Defendants attempted to collect the debt
knowing that they lacked the right to do so.” Lewis v. McCabe Weisberg & Conway, 2014 WL
3845833, at *6 (D. Md. Aug. 4, 2014).
As discussed supra, at the September 6, 2016 Bench Trial, the Court determined as a
matter of law that Aghazu did not owe Defendants the approximately $25,000 in fees or costs
because either they were disposed of as part of the Consent Order ending the bankruptcy
litigation or they were incurred in connection with a foreclosure that was never actually initiated
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or, as to property taxes for the Fiscal Year 2010, they could not be recovered from Aghazu
personally, they could only be added as a lien on her property. See Forsyth Cty. & City of
Winston-Salem Tax Collector v. Burns, 891 F.2d 286 (4th Cir. 1989); Rhoads v. Sommer, 401
Md. 131, 157, (2007); United States v. Alfano, 34 F. Supp. 2d 827, 850 (E.D.N.Y. 1999).
Still, it remains disputed whether Defendants actually or constructively knew that they
were not entitled to those fees when they attempted to collect them in 2014.5 Defendants argue
that they “were relying exclusively on the books and records provided by [Severn] . . . ” and that
they “did not even acquire their interests until years later and there has been no evidence
whatsoever that they were informed of any problem with those charges at the time of their
acquisition.” Opp. At 9, ECF No. 75-1.
On the other hand, it is uncontested that, as of 2014, when the dispute over the $25,000
charges first surfaced, Defendants made no effort to determine what the amounts in the books
and records were actually based upon. While that certainly raises a strong presumption that
Defendants had at least constructive knowledge that they were not entitled to the charges, the
Court at this juncture will leave the entire matter of Defendants’ knowledge—actual or
constructive—that they were not entitled to the charges to the jury to decide. The matter can
always be re-visited, if necessary, post-trial.
Accordingly, the Court GRANTS Plaintiff’s Motion for Partial Summary Judgment as to
Liability IN PART and DENIES it IN PART. While the Court finds, as a matter of law, that
FCI and Pontus were not entitled to the unpaid charges that they were seeking, and that at least

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At oral argument on the present motions, held on February 7, 2018, counsel for Defendants appeared to
argue that Defendants did not have knowledge that Aghazu even disputed the charges. Feb. 7, 2018 Hr.
Tr. at 12:18-14:17. But the evidence clearly suggests that beginning in 2014, when she first asked
Defendants for the loan payoff figures, she claimed the charges were not due. And, of course, as of May
27, 2015, the date Aghazu filed the present lawsuit, Defendants definitely knew that she opposed the
charges.

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some of their communications to Aghazu in 2014 constituted demands for those payments, there
remains the question regarding Defendants’ actual and/or constructive knowledge of the debt’s
invalidity.
2. Summary Judgment on Defendants’ Counterclaim is Inappropriate.
Following the March 1, 2017 Opinion and Order denying in part Defendants’ Motion to
Dismiss, Defendants filed an Answer to the Amended Complaint and a Counterclaim against
Aghazu. ECF No. 63. The counterclaim alleges a single count for breach of contract, arguing that
Aghazu breached the Consent Order when she failed to sell her house by December 31, 2011,
and failed to revert to monthly payments of principal plus 7% interest provided by the original
Loan Documents. Defendants seek at least $58,578.84 in damages, which they calculate as the
difference of $944.82 per month between Aghazu’s monthly payments of 5% interest only
($1,583.33) and the amount she purportedly owes under Note 2 (principal plus 7% interest for a
monthly payment of $2,528.15), from January 1, 2012 until such time as the “breach” is cured.
Counterclaim, ¶¶ 6-9, ECF No. 63; Compl. Ex. 5, ECF No. 1-1.
Aghazu seeks summary judgment on the counterclaim on the grounds that she has
continued to perform under the terms of the Consent Agreement, and that Defendants, while they
may at one time have had a right under the Agreement to revert to the original loan terms, never
exercised that right. As a result, Aghazu argues, FCI and Pontus cannot now retroactively invoke
their right to higher monthly payments nor accelerate those rights to demand back payment of
those higher payments.
The Consent Order plainly suggests that Defendants reserved the right to revert to the
Loan Documents if Aghazu failed to sell her property on or before December 31, 2011. What is

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open to question is whether Defendants may have waived that right.6 In other words, can
Defendants now exercise that right and/or demand all or any part of the difference between the
payments they received and the payments they might have been owed under the original Loan
Documents? And what will be Aghazu’s obligations, if any, going forward?
Accordingly, the Court will DENY Plaintiff’s Motion for Summary Judgment on the
Counterclaim.
3. Defendants’ Motion for Summary Judgment.
Defendants argue that they are entitled to Summary Judgment because Aghazu has failed
to designate an expert to testify as to her damages and that her discovery responses “completely
[fail] to itemize any claims of damages despite a specific request in discovery.” Def. MSJ ¶5,
ECF No. 74. Aghazu counters that she is entitled to damages for emotional distress, which do not
require the testimony of an expert witness, and that she already proven that she lost a refinancing
opportunity as the result of Defendants’ actions.
The MCDCA provides that “[a] collector who violates any provision of this subtitle is
liable for damages proximately caused by the violation, including damages for emotional distress
or mental anguish suffered with or without accompanying physical injury.” Fontell v. Hassett,

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Despite the fact that the Consent Order contains language of non-waiver, a mortgagor may defeat
acceleration and reinstate her mortgage obligations under certain circumstances. Restatement (Third) of
Prop.: Mortgage § 8.1 (Am. Law Inst. 1997). As comment (e) to that Section provides,
[An “anti-waiver” provision’s] effect will be negated where the pattern of accepting late
payments is sufficiently continuous and prolonged to justify the conclusion that the mortgagee
has abandoned or waived the protection of the provision.
Id. at cmt. e.
As further indicated in that comment, “estoppel, fraud, or bad faith provide appropriate theories for
defeating acceleration.” Id. Although this kind of relief appears to be equitable in nature and would
ordinarily be for the Court, not a jury, to decide, the Court is prepared to submit the issue to the jury for at
least an advisory opinion. See Fed. R. Civ. P. 52(a)(1).

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870 F. Supp. 2d 395, 411 (D. Md. 2012). Because Aghazu is authorized to seek emotional
distress or mental anguish damages under the MCDCA, she can establish that she is entitled to at
least one category of damages without designating an expert.7 As for the amount of the
emotional damages, any failure to specify is not fatal, since emotional damages are obviously
indeterminate and virtually impossible to quantify.
At the same time, Aghazu may also be able to establish actual damages as a result of her
lost opportunity to refinance with Mortgage One. At the Bench Trial, Aghazu called as a witness
Mortgage One Loan Officer Harold White, who testified that Aghazu’s loan had been approved
pending receipt of payoff figures from Defendants, but that after Mortgage One received the
payoff figures from Defendants, including the allegedly unpaid fees and costs, her loan was
denied because the loan-to-value ratio had changed. White also noted, however, that Aghazu’s
loan may have been doomed by her request to take out $20,000 in cash as part of the loan.
While Aghazu initially failed to disclose the terms of her potential refinanced loan during
formal discovery, she has, with leave of Court, since supplemented the record with a report from
White detailing the terms of the refinance loan Mortgage One was prepared to offer. ECF
No. 81. As Aghazu’s counsel admitted during oral argument, however, the terms of the
refinanced loan may not have been more favorable to Aghazu than the terms she had with
Severn, in which case she would not be entitled to a separate element of damages for this lost
opportunity. Feb. 7, 2018 Hr. Tr. at 55:4-7 (“We wouldn’t be claiming it as a damage then, your
Honor. We’re looking for affirmative relief. So it doesn’t matter if the numbers are negative.

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  In the Court’s March 16, 2017 Opinion, it noted: “What remains under the MCDCA are Aghazu’s
claims for emotional distress and mental anguish. Generally speaking, these are left to the reasonable
sensibilities of the jury. The Court would only observe that Defendants’ demands that Aghazu pay these
demonstrably invalid fees and costs have continued for multiple years, characterized by multiple demands
for payment including at least one  phantom Notice of Intent to Foreclose, and that they may very well
have ultimately caused Aghazu to lose an opportunity to refinance, all of which could conceivably be
taken into account in assessing her emotional distress and mental anguish.” 

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We’re just looking then at the action of the refinance not be[ing] granted.”). On the other hand,
as stated, whether the eventual terms of the refinanced loan might have been better or worse, any
anxiety that Aghazu may have sustained over the status of the refinance caused by Defendants’
insistence that she owed for charges she did not in fact owe—Will I get it or won’t I?—most
definitely would be part of the emotional distress she claims as a result of Defendant’s insistence
that she owed the charges.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment as to
Liability Only and Summary Judgment on Defendants’ Counterclaim (ECF No. 73) is
GRANTED IN PART, except to the extent that Defendant’s actual or constructive knowledge
that the $25,000 (more or less) of charges has not been established as a matter of law. In that
single respect, Plaintiff’s Motion is DENIED IN PART. Plaintiff’s Motion for Summary
Judgment on the Counterclaim (ECF No. 73) is also DENIED. Defendants’ Motion for
Summary Judgment (ECF No. 74) is DENIED.
A separate Order will ISSUE.

/s/
_
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
April 18, 2018

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