Glenn v. Wells Fargo Bank, N.A

Filing 23

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/1/2016. (Chasanow, Deborah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MAURICE GLENN
:
v.

:

Civil Action No. DKC 15-3058

:
WELLS FARGO BANK, N.A.
:
MEMORANDUM OPINION
Presently

pending

and

ready

discriminatory

lending

case

are

for
a

resolution

motion

to

in

this

dismiss

the

complaint (ECF No. 11) and a motion to strike (ECF No. 19) filed
by

Defendant

Fargo”).

Wells

Fargo

Bank,

N.A.

(“Defendant”

or

“Wells

The issues have been fully briefed, and the court now

rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, both motions will be granted, and
Plaintiff will have 21 days within which to file an amended
complaint.
I.

Background
A.

Factual Background1

Plaintiff

Maurice

Glenn

(“Plaintiff”),

who

is

African

American, banked with Wachovia Bank, N.A. (“Wachovia”) before it
1

When considering a motion to dismiss for failure to state
a claim, the well-pleaded allegations in the complaint are
accepted as true. See Brockington v. Boykins, 637 F.3d 503, 505
(4th Cir. 2011). Unless otherwise noted, the facts outlined here
are alleged in the complaint and construed in the light most
favorable to Plaintiff, the nonmoving party.

merged with Defendant in December 2008.

Plaintiff maintained a

business line of credit with Wachovia, which he contends was
“improperly

and

unilaterally

designated

by

[Defendant]

(ECF No. 1, at 3 ¶ 15).2

Business Direct Account.”

as

a

The Wachovia

business line of credit had a 3.25% interest rate, but Defendant
allegedly charged Plaintiff an increased interest rate of 7.25%
without notifying him and “in stark violation of his original
contract.”

(Id. at 4 ¶ 17).3

Plaintiff

asserts

that

between

2013

and

2014,

Defendant

denied multiple lending applications he submitted based solely
on

his

race

and

despite

his

qualifications.

In

or

around

January 2013, Plaintiff applied for a loan consolidation for his
business line of credit and two home equity loans.
initially
rejected.

approved
Bob

the

Davis,

consolidation,
a

bank

but

it

representative,

was

Defendant
ultimately

allegedly

told

Plaintiff “that he qualified for a loan consolidation but did
not

help

him

fill

out

the

application.”

(Id.

at

6

¶

4).

Plaintiff then telephoned Geetesh Kapoor, another Wells Fargo
representative,
loan.

regarding

his

application

for

a

consolidated

The complaint recites:
2

The
paragraphs
in
the
complaint
are
inconsistently.
For ease of reference, the court
citations containing the page and paragraph numbers.
3

numbered
will use

Plaintiff
does
not
attach
the
relevant
banking
documentation or make any factual allegations in the complaint
regarding contractual terms and obligations.
2

Mr.
Kapoor
provided
to
[Plaintiff]
a
document that stated [Defendant] would pay
for all liens on his house.[4]
During the
discussion Mr. Kapoor talked to another
Wells Fargo employee about [Plaintiff’s]
application.
Mr. Kapoor then stated to
[Plaintiff] that, “I hope you don’t mind but
may I ask what your race is?”
[Plaintiff]
responded that he is African American.
(Id. at 6 ¶¶ 7-8).5

Thereafter, Mr. Kapoor “informed [Plaintiff]

that he did not qualify for the consolidated loan.
changed

from

being

pleasant

to

totally

Mr. Kapoor

nonresponsive,

4

Plaintiff does not identify what type of document he
references, what specifically the document stated, or how Mr.
Kapoor “provided” a document over the phone.
5

Defendant notes that the implementing regulations of the
federal Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691
et seq., mandate that lenders request the race and ethnicity of
applicants for credit secured by an applicant’s dwelling. (ECF
No. 11-2, at 9-10 (citing 12 C.F.R. § 202.13(a)(1))). Under the
ECOA’s implementing regulations:
A creditor that receives an application for
credit
primarily
for
the
purchase
or
refinancing of a dwelling occupied or to be
occupied by the applicant as a principal
residence, where the extension of credit
will be secured by the dwelling, shall
request as part of the application the
following
information
regarding
the
applicant(s):
(i) Ethnicity . . . ; and race . . . .
12 C.F.R. § 202.13(a)(1).
Although § 202.5(b) provides that
“[a] creditor shall not inquire about the race . . . of an
applicant . . . in connection with a credit transaction,” an
explicit carve-out exists for information required by § 202.13.
Id. § 202.5(a)(2) (“Notwithstanding paragraphs (b) through (d)
of this section, a creditor shall request information for
monitoring purposes as required by § 202.13 for credit secured
by the applicant’s dwelling.”).
3

uncooperative, and disinterested in further helping [Plaintiff]”
after learning Plaintiff’s race.
asserts

that

initially

another

told

consolidation

Plaintiff

but

offer

or

around

from

two

Fargo
that

subsequently

upon learning his race.
In

Wells

(Id. at 6 ¶ 9).
employee,

he

Mr.

qualified

denied

Plaintiff
Knapp,

for

Plaintiff’s

the

also
loan

application

(Id. at 6-7 ¶¶ 10-11).

May

2013,

Plaintiff

allegedly

Wells

Fargo

representatives

accepted

to

convert

an
his

Wachovia business line of credit into a Wells Fargo business
line of credit.

Plaintiff also was told that he qualified for a

new home equity loan.
representatives

“took

(Id.

at 7 ¶¶ 12–13).

Plaintiff’s

applications

communicating” with him upon learning his race.
14-15).

(Id.

at

and

stopped

(Id. at 7 ¶¶

Plaintiff further alleges that Defendant denied his

applications
without

However, the

for

credit

reasonable
8-9

¶¶

basis

22-30).

or

to

and

refinance

with

his

mortgage

discriminatory

Plaintiff

contends

loan

intentions.

that

Defendant

engaged in the practice of redlining and “selectively raised the
threshold requirement for the value of [his] home in order to
deny him credit on the basis of his race.”

(Id. at 10 ¶ 33).

In December 2013, Defendant allegedly denied Plaintiff’s
application for a modified interest rate for his home equity
loans under the Home Affordable Modification Program (“HAMP”) on
the basis of race.

According to Plaintiff, he called the HAMP
4

telephone hotline in July 2015 and was told that he qualified
for a loan modification through the federal program.
5 ¶¶ 19-23).
Office

of

As a result, Plaintiff lodged a complaint with the

the

Defendant’s

(Id. at 4-

Comptroller

denial

of

of

his

the

2013

Currency
HAMP

(“OCC”)

regarding

application,

believed was motivated by racial discrimination.

which

he

The OCC then

notified the U.S. Department of Housing and Urban Development
(“HUD”).

As a result of his complaints to the federal agencies,

Defendant allegedly retaliated against Plaintiff by denying his
subsequent credit and loan modification applications.

(Id. at 5

¶¶ 24-26).6
Plaintiff asserts that he also contacted other agencies and
government

officials

to

report

Defendant’s

conduct.

In

or

around May 2013, Plaintiff filed a complaint with the office of
United

States

Defendant.

Senator

Benjamin

Cardin,

which

then

contacted

complaint,

Plaintiff does not disclose the resolution of that
but

he

alleges

that

Defendant

repeatedly

denied

subsequent loan applications “on the basis of his race . . . and
in

retaliation

discrimination.”
Consumer

[for]

his

opposition

(Id. at 7 ¶ 18).

Financial

Protection

to

[Defendant’s]

Plaintiff also contacted the

Bureau,

the

office

of

United

States Senator Barbara Mikulski, and the Executive Office of the
6

The complaint, however, does not reference any specific
applications that Defendant denied after July 2015, nor does
Plaintiff discuss the resolution of the HUD complaint.
5

President of the United States.
when

these

complaints

were

The complaint does not specify

lodged.

Plaintiff

alleges

that

Defendant continued to deny his loan and credit applications in
retaliation for Plaintiff’s complaints.

(See id. at 8 ¶¶ 19-21,

at 9 ¶ 27).
B.

Procedural History

Plaintiff

initiated

this

action

against

Defendant

on

October 10, 2015, alleging violations of the ECOA (Count I); the
Maryland Equal Credit Opportunity Act (“MECOA”), Md. Code Ann.,
Com. Law § 12-701 et seq. (Count II); the Fair Housing Act
(“FHA”), 42 U.S.C. § 3601 et seq. (Count III); Title VI of the
Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq.
(Counts IV and V); and the Maryland Consumer Protection Act
(“MCPA”), Md. Code Ann., Com. Law § 13-301 et seq. (Count VI).
Count VII asserts a claim that Defendant breached Plaintiff’s
contract with Wachovia.

Accordingly, the allegations concern

race discrimination under the ECOA, MECOA, FHA, and Title VI;
retaliation under Title VI; deceptive practices under the MCPA;
and breach of contract under Maryland common law.
Defendant moved to dismiss the complaint for failure to
state

a

claim

under

Fed.R.Civ.P.

12(b)(6).

(ECF

No.

11).

Plaintiff responded in opposition and submitted a supplemental
exhibit containing documents that Defendant sent to Plaintiff
concerning his accounts.

(ECF Nos. 12; 15).
6

Defendant replied.

(ECF No. 17).

More than one month after filing his response,

Plaintiff submitted the “Declaration of Maurice Glenn” (ECF No.
18),

which

“was

[Defendant’s]
Defendant
surreply.

filed

as

a

[m]otion

to

dismiss.”

moved

to

strike

(ECF No. 19).

supplement

the

to

[his]

(ECF

No.

declaration

as

response
20,
an

at

to
1).

improper

Plaintiff opposed Defendant’s motion

(ECF No. 20), and Defendant replied (ECF No. 21).
II.

Defendant’s Motion to Strike
Plaintiff contends that the “Declaration of Maurice Glenn”

is a supplemental exhibit to his opposition brief filed more
than one month prior.

The declaration purports to add factual

allegations not included in the complaint, and constitutes a
surreply.

See Butler v. DirectSAT USA, LLC, 47 F.Supp.3d 300,

312 n.5 (D.Md. 2014).
with

the

requirements

Plaintiff’s surreply does not comport
of

Local

Rule

105.2(a)

and

will

be

stricken.
Although district courts have discretion to accept them,
surreply briefs are generally disfavored.

See Chubb & Son v.

C.C. Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D.Md. 2013).
Local Rule 105.2(a) provides that “[u]nless otherwise ordered by
the court, surreply memoranda are not permitted to be filed.”
Courts may allow a surreply when “the moving party would be
unable to contest matters presented to the court for the first
time in the opposing party’s reply.”
7

Khoury v. Meserve, 268

F.Supp.2d 600, 605 (D.Md. 2003), aff’d, 85 F.App’x 960 (4th Cir.
2004).

Here,

Plaintiff

failed

to

request

leave

to

file

a

surreply, and he concedes that “there were no new legal issues
[raised in Defendant’s reply brief] which would require that
Plaintiff
factual

move

the

material

[c]ourt

to

contained

file

in

his

own

Plaintiff’s

surreply.

The

declaration

was

contained in his response to [Defendant’s] motion to dismiss.”
(ECF

No.

20,

at

4).

By

Plaintiff’s

own

admission,

declaration is not responsive to Defendant’s reply brief.

his
The

present circumstances do not warrant leave to file a surreply.
Moreover, Plaintiff’s assertion that the declaration merely
builds

on

factual

allegations

raised

in

his

opposition

is

unavailing, as allegations raised for the first time in response
to a motion to dismiss are not properly considered by the court.
See Myers v. Montgomery Cnty., No. DKC-14-3054, 2015 WL 3795915,
at

*9

n.7

(D.Md.

June

17,

2015)

(“Plaintiff

attaches

as

an

exhibit to his opposition an affidavit . . . , but it cannot be
considered on a motion to dismiss.”); (ECF No. 18 ¶¶ 3, 5, 7–10,
12–15,

18).

Accordingly,

Plaintiff’s

attempt

to

amend

the

complaint by filing a declaration would be inappropriate even if
he had attached the declaration to his opposition brief.

See

Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1068 (D.Md.
1991) (“[I]t is axiomatic that the complaint may not be amended

8

by the briefs in opposition to a motion to dismiss.” (citation
and internal quotation marks omitted)).
III. Defendant’s Motion to Dismiss
A. Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A complaint

need only satisfy the standard of Rule 8(a), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed.R.Civ.P. 8(a)(2).

“Rule 8(a)(2)

still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

That showing must consist of more than “a

formulaic recitation of the elements of a cause of action” or
“naked

assertion[s]

devoid

of

further

factual

enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., 7 F.3d at 1134).
complaint,

the

court

need

not
9

accept

In evaluating the
unsupported

legal

allegations.
(4th

Cir.

Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873
1989).

Legal

conclusions

couched

as

factual

allegations are insufficient, Iqbal, 556 U.S. at 678, as are
conclusory factual allegations without any reference to actual
events.

United Black Firefighters v. Hirst, 604 F.2d 844, 847

(4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186,
192 (4th Cir. 2009).
Allegations of fraud, which Plaintiff appears to assert in
Count VI, are subject to the heightened pleading standard of
Fed.R.Civ.P. 9(b).

Harrison, 176 F.3d at 783.

Rule 9(b) states

that, “in alleging a fraud or mistake, a party must state with
particularity
mistake.

the

circumstances

constituting

the

fraud

or

Malice, intent, knowledge, and other conditions of a

person’s mind may be alleged generally.”

Such circumstances

typically “include the ‘time, place, and contents of the false
representation, as well as the identity of the person making the
misrepresentation and what [was] obtained thereby.’”

Id. at 784

(quoting 5 Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. § 1297 (2d ed. 1990)).

Rule 9(b) provides the defendant

with sufficient notice of the basis for the plaintiff’s claim,
protects the defendant against frivolous suits, eliminates fraud
actions where all of the facts are learned only after discovery,
and safeguards the defendant’s reputation.
omitted).

Id. at 784 (citation

Fraud allegations that fail to comply with Rule 9(b)
10

warrant dismissal under Rule 12(b)(6).

See Harrison, 176 F.3d

at 783 n.5.
B. Analysis
1. Race Discrimination
a.

Violations of the ECOA and the MECOA (Counts I and II)

The ECOA “contain[s] broad anti-discrimination provisions
that ‘make it unlawful for any creditor to discriminate against
any applicant with respect to any credit transaction on the
basis of race, color, religion, national origin, sex or marital
status, or age.’”

Capitol Indem. Corp. v. Aulakh, 313 F.3d 200,

202 (4th Cir. 2002) (quoting 15 U.S.C. § 1691(a)(1)).
on

an

ECOA

claim

at

trial,

a

plaintiff

must

To succeed

provide

direct

evidence of unlawful discrimination or, if direct evidence is
lacking,

follow

the

burden-shifting

framework

established

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

in
See

Boardley v. Household Fin. Corp. III, 39 F.Supp.3d 689, 709-10
(D.Md.

2014);

(D.Md.

2001).

complaint

Faulkner
At

need

discrimination

the

not
under

v.

Glickman,

motion

to

establish
the

172

F.Supp.2d

dismiss
a

McDonnell

prima
Douglas

stage,
facie

732,

737

however,

a

case

of

framework.

See

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002) (noting
that “[t]he prima facie case . . . is an evidentiary standard,
not a pleading requirement”).
dismiss,

the

complaint

must

Rather, “to survive a motion to
‘state[]
11

a

plausible

claim

for

relief’ that ‘permit[s] the court to infer more than the mere
possibility of misconduct” based upon “its judicial experience
and common sense.’”

Coleman v. Maryland Court of Appeals, 626

F.3d 187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679),
aff’d sub nom. Coleman v. Court of Appeals of Maryland, 132
S.Ct. 1327 (2012).
Here, contrary to Defendant’s argument, Plaintiff is not
required at the motion to dismiss stage to provide any evidence
sufficient to sustain a claim for discriminatory lending.
ECF

No.

11-2,

at

8).

Nonetheless,

the

allegations

(See
in

Plaintiff’s complaint do not state a plausible claim for relief.
The elements of a prima facie ECOA lending discrimination case
are that: (1) Plaintiff is a member of a protected class; (2) he
was qualified for the benefit he sought; and (3) despite those
qualifications, he was rejected.

Boardley, 39 F.Supp.3d at 710-

11 (citing Letke v. Wells Fargo Home Mortg., Inc., No. RDB-123799, 2013 WL 6207836, at *4 (D.Md. Nov. 27, 2013)).7

7

Defendant

As Judge Grimm noted in Boardley, “[t]he elements for a
prima facie case of ECOA lending discrimination are less wellsettled.”
39 F.Supp.3d at 710.
The Fourth Circuit has, at
times, added an element to the prima facie case requiring the
plaintiff to show that the defendant continued to extend credit
to others of similar credit stature outside of the plaintiff’s
protected class. See Wise v. Vilsack, 496 F.App’x. 283, 285 (4th
Cir. 2012).
In Boardley, Judge Grimm addressed the lingering
question regarding the elements necessary to establish a prima
facie case of ECOA lending discrimination. 39 F.Supp.3d at 711.
There, the court focused on the three elements previously
identified, eliminating the fourth element from consideration.
12

contends

that

Plaintiff

failed

to

allege

qualified for the benefits he sought.

plausibly

that

he

Throughout the complaint,

Plaintiff simply asserts that he was qualified for the credit
extensions and loan modifications.
48,

13

¶

60).

On

(ECF No. 1, at 10 ¶ 34, 12 ¶

multiple

occasions,

Defendant’s

representatives allegedly “approved” Plaintiff for extensions of
credit or informed him that he was qualified and should submit
loan applications.
7 ¶¶ 12-13).

(Id. at 5 ¶ 23, 5 ¶ 3, 6 ¶ 4, 6 ¶ 6, 6 ¶ 10,

However, Plaintiff offers no allegations regarding

the terms of his credit approval, the requirements necessary for
approval, or, critically, Plaintiff’s actual qualifications when
he submitted each application.
711

(“[B]ecause

.

.

.

See Boardley, 39 F.Supp.3d at

Plaintiffs

do

not

allege

their

qualifications, Plaintiffs’ pleadings fall short with regard to
their ECOA lending discrimination claim.”); Combs v. Bank of
Am., N.A., No. GJH-14-3372, 2015 WL 5008754, at *3 (D.Md. Aug.
20, 2015) (“Although she alleges that she is a member of a
protected class, she fails to adequately allege that she met the
qualifications for loan modification and was denied despite her
qualifications.

In

fact,

Plaintiff

does

not

indicate

what

Judge Grimm noted that, in the credit lending context,
comparative evidence of lending decisions is not readily
available or easily accessible to most plaintiffs. Id. (citing
Best Med. Int’l, Inc. v. Wells Fargo Bank, N.A., 937 F.Supp.2d
685, 697 (E.D.Va. 2013)).
Here, both parties refer to the
three-element prima facie case, and the court will analyze
Plaintiff’s claim accordingly.
13

qualifications

were

at

issue.”).

Plaintiff’s

“[t]hreadbare

recitals of the elements of [the] cause of action, supported by
mere conclusory statements, do not suffice.”
678–79.

Iqbal, 556 U.S. at

Accordingly, Plaintiff has failed to state an ECOA

claim for discriminatory lending.
Defendant challenges Plaintiff’s MECOA claim on the same
grounds.

“The MECOA is modeled after the federal ECOA.”

Combs,

2015 WL 5008754, at *3 (citing Patton v. Wells Fargo Fin. Md.,
Inc.,

437

Md.

83,

99-100

(2014)).

Under

the

statute,

“[a]

creditor that complies with the applicable provisions of the
[ECOA] . . . is in compliance with the requirements of this
subtitle; and . . . [a]ny violation of the [ECOA] . . . is a
violation of the provisions of this subtitle.”
Com. Law § 12–704(2)–(3).

Md. Code Ann.,

Because Plaintiff’s ECOA claim cannot

withstand Rule 12(b)(6) scrutiny, neither can his MECOA claim.8

8

Defendant further argues that Plaintiff’s MECOA claim is
time-barred.
(ECF No. 11–2, at 12–13).
The statute provides
that litigants must bring actions “within one year from the date
of the occurrence of the violation.” Md. Code Ann., Com. Law §
12–707(g). At the motion to dismiss stage, however, Defendant’s
statute of limitations challenge is an affirmative defense that
will prevail only if it is apparent from the face of the
pleadings that the limitations period has expired.
Blackstone
v. St. Mary’s County Sheriff’s Office, No. DKC-13-3809, 2014 WL
3891688, *3 (D.Md. Aug. 6, 2014); see Dean v. Pilgrim’s Pride
Corp., 395 F.3d 471, 474 (4th Cir. 2005).
Here, the relevant
dates and timeframes regarding Plaintiff’s claim are far from
clear.
Defendant contends that Plaintiff’s FHA, MCPA, and breach
of contract claims are also time-barred. (ECF No. 11-2, at 13,
14-15).
Similarly, given the lack of clarity in the complaint
14

b.

Violations of the FHA (Count III)

The FHA provides private citizens a right of action against
those

who

discriminate

against

them

in

the

housing

market.

Specifically, “[i]t shall be unlawful for any person or other
entity

whose

business

includes

engaging

in

residential

real

estate-related transactions to discriminate against any person
in

making

available

such

a

transaction,

or

in

the

terms

or

conditions of such a transaction, because of race [or] color.”
42 U.S.C. § 3605(a).

The act defines a residential real estate-

related transaction as: “[t]he making or purchasing of loans or
providing

other

financial

assistance

(A)

for

purchasing,

constructing, improving, repairing, or maintaining a dwellings;
or (B) secured by residential real estate.”

Id. § 3605(b)(1).

To

that

state

a

discrimination

claim,

Plaintiff

within

the

must

allege

meaning

of

the

discriminatory intent or discriminatory impact.

he

suffered

FHA

through

Robinson v. Bd.

of Cnty. Comm’rs for Queen Anne’s Cnty., MD, No. RDB-07-1903,
2008 WL 2484936, at *9 (D.Md. June 19, 2008) (citing Betsey v.
Turtle Creek Assocs., 736 F.2d 983, 986 (4th Cir. 1984)).
The

complaint

fails

to

allege

an

FHA

violation

through

discriminatory intent.

concerning relevant dates, the pleading does not contain
allegations sufficient to establish that Plaintiff’s claims are
time-barred.
15

To successfully allege discrimination in
connection
with
a
loan
application,
a
complaint must state that “(1) the plaintiff
is a member of a protected class, (2) the
plaintiff applied for and was qualified for
a loan, (3) the loan was rejected despite
the plaintiff’s qualifications, and (4) the
defendants continued to approve loans for
applicants with qualifications similar to
those of the plaintiff.”
Frison v. Ryan
Homes, No. AW–04–350, 2004 WL 3327904, at *5
(D.Md. Oct. 29, 2004).
Watson v. Bank of Am., N.A., No. PJM-14-1335, 2015 WL 1517405,
at *5 (D.Md. Mar. 30, 2015), aff’d, 621 F.App’x 200 (4th Cir.
2015), cert. denied, No. 15-8361, 2016 WL 777832 (U.S. June 6,
2016).

Here, the complaint is devoid of facts regarding the

requirements necessary for loan approval and Plaintiff’s actual
qualifications.
gave

Plaintiff also fails to allege that Defendant

preferential

treatment

to

applicants

outside

protected class with qualifications similar to his.

of

the

At bottom,

he does not plausibly allege “that discriminatory animus was a
motivating factor in [Defendant’s] decision to deny” his loanrelated applications.
Similarly,

Letke, 2015 WL 1438196, at *8.

Plaintiff

cannot

maintain

a

discriminatory

impact claim under the FHA.
To establish a prima facie case of
disparate impact discrimination [under the
FHA], plaintiffs must show that a specific
policy caused a significant disparate effect
on a protected group. To do this, they must
identify the problematic neutral practice at
issue . . . .
Watson v. Fort Worth Bank &
Trust, 487 U.S. 977, 994 (1988). In making
16

this showing, plaintiffs are required to
prove only that a given policy had a
discriminatory
impact
on
them
as
individuals.
Betsey, 736 F.2d at 987.
Thus, to determine whether plaintiffs have
met their burden, “[t]he correct inquiry is
whether the policy in question had a
disproportionate impact on the minorities in
the total group to which the policy was
applied.” Id.
Boardley, 39 F.Supp.3d at 712 (citation omitted).

To allege

disparate impact under the FHA, “[a] plaintiff must identify the
neutral

practice

at

issue

and

cite

statistical

evidence

demonstrating the discriminatory impact caused by the practice.”
Letke v. Wells Fargo Home Mortgage, Inc., No. RDB-12-3799, 2015
WL 1438196, at *8 (D.Md. Mar. 27, 2015) (citing Watson, 487 U.S.
at 994).

Here, although Plaintiff relies on disparate impact

cases, he fails even to identify a neutral policy or program
implemented
effect

on

by
a

Defendant
protected

that

caused

class.

a

(See

significant
ECF

No.

12,

disparate
at

9).

Furthermore, the complaint contains only conclusory assertions
of discrimination based on race and offers no specific factual
allegations regarding similarly situated customers outside of
the

protected

class.9

Plaintiff

thus

fails

to

state

a

discrimination claim under the FHA.

9

Plaintiff, in his opposition brief, cites to the complaint
at ¶¶ 48–51, 59–63, 67–68, 72–74 to support his assertion that
“Defendant [] approved loans for applicants outside [the]
borrower’s protected class with similar loan qualifications as
applicant but denied Plaintiff who was equally qualified.” (ECF
17

c.

Title VI Discrimination (Count IV)

Under Title VI, “[n]o person in the United States shall, on
the ground of race, color, or national origin, be excluded from
participation in, be denied benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial

assistance.”

42

U.S.C.

§

2000d.

“Program

or

activity” includes, inter alia, “all of the operations of an
entire corporation, partnership, or other private organization,
or

sole

proprietorship

if

assistance

is

extended

to

such

corporation . . . as a whole; or which is principally engaged in
the

business

social

of

services,

4a(3)(A).

providing

education,

or

and

parks

health

recreation.”

care,
Id.

housing,
§

2000d-

Title VI does not explicitly create a private right

of action, but it is well-settled that individuals may sue to
enforce that provision.

Gaskins v. Baltimore City Pub. Schs.,

JKB-15-2961, 2016 WL 192535, at *8 (D.Md. Jan. 15, 2016) (citing
Alexander v. Sandoval, 532 U.S. 275, 279 (2001)), aff’d sub nom.
Gaskins v. Abiodun, No. 16-1066, 2016 WL 2944194 (4th Cir. May
20, 2016).

No. 12, at 8). A review of the complaint, however, reveals that
the cited paragraphs make no reference to similarly situated
applicants receiving loans or access to credit from Defendant.
As noted above, to the extent that Plaintiff includes
additional factual allegations in his response papers, they are
insufficient to insulate the complaint from dismissal.
See
Mylan Labs., 770 F.Supp. at 1068.
18

To state a claim under Title VI, Plaintiff must plausibly
allege that Defendant received federal financial assistance and
engaged in intentional racial discrimination.
41 F.Supp.2d 587, 592 (D.Md. 1999).10

Farmer v. Ramsay,

Plaintiff asserts that

Defendant “denied Plaintiff a [h]ome loan modification under the
[f]ederally funded [HAMP]” on the basis of his race and color.
(ECF No. 1, at 15 ¶ 73).

After Defendant denied his November

2013 application for a HAMP modification, Plaintiff allegedly
called the HAMP hotline in July 2015 and was informed that he
qualified.

(Id. at 4-5 ¶¶ 19-23).

These allegations, which

form the entire basis for Plaintiff’s Title VI discrimination
claim,

lack

devoid

of

clarity

and

allegations

factual

support.

regarding

10

The

complaint

Plaintiff’s

is

actual

“Financial assistance” contemplates grants, loans or
subsidies without reciprocal services or benefits and not
including contract of insurance or guaranty.
Leskinen v. UTZ
Quality Foods, Inc., 30 F.Supp.2d 530, 534 (D.Md. 1998)
(citations omitted).
HAMP provides incentives for lenders,
through the establishment of servicer participation agreements
with loan services providers, such as Defendant, to modify
mortgages so struggling homeowners can stay in their homes.
Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 772–73 (4th
Cir. 2013) (citing the Economic Stabilization Act of 2008, Pub
L. No. 110-343, 122 Stat. 3765 (2008), codified at 12 U.S.C. §
5201 et seq.).
“[S]ervicers agreed to identify homeowners who
were in default or would likely soon be in default on their
mortgage payments, and to modify the loans of those eligible
under the program.
In exchange, servicers would receive a
$1,000 payment for each permanent modification, along with other
incentives.” Id. (quoting Wigod v. Wells Fargo Bank, N.A., 673
F.3d 547, 556-57 (7th Cir. 2012)).
Here, Defendant does not
challenge whether its administration of HAMP constitutes
“financial assistance” within the meaning of the statute.
19

qualifications

for

a

loan

modification

through

the

federal

program – either in November 2014 when Plaintiff applied or in
July 2015 when he allegedly learned from the HAMP hotline that
he was qualified.

Beyond conclusory assertions, Plaintiff fails

plausibly to allege that he suffered discrimination on the basis
of race.

See Gaskins, 2016 WL 192535, at *8 (“In the absence of

a

to

nexus

Plaintiff

race,

Title

seeks.”).

VI

cannot

Plaintiff’s

deliver

claim

in

the
Count

relief
IV

that

will

be

dismissed.
2. Title VI Retaliation (Count V)
To
allege

state
that:

a

Title

(1)

he

VI

retaliation

engaged

in

claim,

protected

Plaintiff

conduct;

(2)

must
he

suffered an adverse action; and (3) a causal link exists between
the protected conduct and the adverse action.

Peters, 327 F.3d

at 320 Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003);
Howerton v. Bd. of Educ. of Prince George’s Cty., No. TDC-140242, 2015 WL 4994536, at *17 (D.Md. Aug. 19, 2015).
link

is

demonstrated

if

Plaintiff

establishes

A causal
that

the

“protected activity was a but-for cause of the alleged adverse
action.”

Murphy-Taylor

v.

Hofmann,

968

F.Supp.2d

693,

721

(D.Md. 2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2534 (2013)).
Here, Plaintiff asserts only that “[t]he subsequent denial
of [his] credit applications and loan modifications would not
20

have

occurred

but

for

his

opposition

to

[Defendant’s]

discrimination during the processing of his credit application
and his filing of various complaints with Federal and State
government agencies and offices stated above.”
16 ¶ 81).

(ECF No. 1, at

Again, Plaintiff’s allegations of retaliation amount

to nothing more than unwarranted factual inferences and legal
conclusions that are insufficient to state a claim.

Plaintiff

does not identify with any specificity which “subsequent” credit
and

loan

applications

retaliation.

were

denied

as

a

result

of

purported

Plaintiff also fails to provide the relevant dates

on which he allegedly lodged complaints with the OCC or other
federal agencies and officials.
8 ¶¶ 19-20).
allegations

(See id. at 5 ¶¶ 24-26, 7 ¶ 16,

Absent some sense of a chronological timeline,
of

a

causal

nexus

are

necessarily

lacking.

Accordingly, Plaintiff fails plausibly to connect his alleged
reports and complaints – which, he asserts, constitute protected
activity

under

Title

VI

–

to

the

denial

of

his

subsequent

applications.11
3. Violations of the MCPA (Count VI)
Under the MCPA, “a person may not engage in any unfair or
deceptive

trade

practice”

related

11

to

“[t]he

extension

of

Furthermore, Plaintiff provides no citation to case law
or legal authorities in support of his assertion that his
purported protected activity gives rise to a Title VI
retaliation claim.
21

consumer credit” or the “collection of consumer debts.”
Code

Ann.,

Com.

Law

§

13–303.

Section

13-301(1)

Md.

defines

“[u]nfair or deceptive trade practices” to include “false . . .
or

misleading

oral

or

written

statement[s]

.

.

.

or

other

representations . . . [that have] the capacity, tendency, or
effect of deceiving or misleading consumers.”

To state an MCPA

claim, “a plaintiff must adequately plead that (1) the defendant
engaged in an unfair or deceptive practice or misrepresentation,
(2) the plaintiff relied upon the representation, and (3) doing
so caused the plaintiff actual injury.”

Turner v. J.P. Morgan

Chase, N.A., TDC-14-0576, 2015 WL 5021390, at *4 (D.Md. Aug. 21,
2015) (citing Currie v. Wells Fargo Bank, N.A., 950 F.Supp.2d
788, 796 (D.Md. 2013)); see Boardley, 39 F.Supp.3d at 712-13.
Claims for unfair or deceptive trade practices under the
MCPA sound in fraud and must be pleaded with particularity.
Haley v. Corcoran, 659 F.Supp.2d 714, 724 n.10 (D.Md. 2009).
Subject to Rule 9(b)’s heightened pleading standard, Plaintiff
must

allege

“the

time,

place,

and

contents

of

the

false

representations, as well as the identity of the person making
the misrepresentation and what he obtained thereby.”

Harrison,

176 F.3d at 784 (citation and internal quotation marks omitted).
Here,

the

practices
Plaintiff:

complaint
with

does

not

particularity.

theorizes

that

the
22

allege
In
7.25%

unfair

his

and

opposition

interest

rate

deceptive
papers,
on

his

business

line

of

credit

is

a

“false

and

misleading

representation” (ECF No. 12, at 17); introduces new allegations
regarding

alleged

loan

advertisements

(id.

at

17-18);

and

concludes, without any factual basis, that “[Defendant] did not
intend

to

grant

loan

consolidation

to

qualified

minority

applicants like Plaintiff” as they had advertised (id. at 17).
Furthermore, the complaint lacks allegations that that Plaintiff
detrimentally relied upon any purported misrepresentations.

See

Combs, 2015 WL 5008754, at *6 (“[T]o assert a claim for false or
misleading

statements

under

the

MCPA,

[the

plaintiff]

must

allege that the defendant’s statement caused her an actual loss
or injury.” (citation omitted)).
omissions

by

introducing

new

Plaintiff cannot rectify his
allegations

of

actual

injury

through a declaration, which will be stricken as an improper
surreply.

See supra Part II.

Accordingly, Plaintiff fails to

state a claim under the MCPA in Count VI.
4. Breach of Contract (Count VII)
Plaintiff asserts that “Defendant [] breached the business
line of credit agreement that Plaintiff [] signed with Wachovia”
when it increased Plaintiff’s interest rate from 3.25% to 7.25%
without notification.

(ECF No. 1, at 17 ¶ 88).

To state a

claim for breach of contract under Maryland law, Plaintiff must
allege that he had a valid contract with Defendant and that
Defendant failed to satisfy its contractual obligations.
23

See

Taylor v. NationsBank, N.A., 365 Md. 166, 175 (2001).
asserting

that

Defendant

increased

the

interest

rate

Beyond
on

his

business line of credit “in stark violation of his original
contract,” Plaintiff provides no relevant factual allegations.
(ECF No. 1, at 4 ¶ 17).
nor

does

he

reference

He does not attach a specific contract,
contractual

terms

or

obligations

from

which the court could find plausible a breach of contract claim.
Accordingly, Count VII will be dismissed.
IV.

Conclusion
Although Plaintiff has not sought to amend the pleading,

district courts have discretion to grant leave to amend “freely”
and “when justice so requires.”

Fed.R.Civ.P. 15(a)(2).

Here,

Plaintiff will be granted the opportunity to amend the complaint
to comply with federal pleading standards and remedy defects
identified in this memorandum opinion.

The court expects that

he will incorporate appropriate facts from his declaration and
include allegations sufficient to “nudge[] [his] claims across
the line from conceivable to plausible.”
570; see Giacomelli, 588 F.3d at 193.

Twombly, 550 U.S. at

“The Twombly plausibility

standard, which applies to all civil actions, does not prevent a
plaintiff

from

pleading

facts

alleged

‘upon

information

and

belief’ where the facts are peculiarly within the possession and
control

of

the

defendant,

factual

information

that

or

where

makes

the

24

the

belief

inference

of

is

based

on

culpability

plausible.”
Cir.

2010)

Plaintiff

Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d
(citations
is

and

cautioned,

internal
however,

quotation

marks

omitted).

that

“may

not

he

rely

exclusively on conclusory allegations of unlawful conduct, even
where alleged ‘upon information and belief.’”

Doe v. Salisbury

Univ., 123 F.Supp.3d 748, 768 (D.Md. 2015); see Malibu Media,
LLC v. Doe, No. PWG-13-365, 2014 WL 7188822, at *4 (D.Md. Dec.
16, 2014).

Accordingly, the court will grant Plaintiff 21 days

within which to file an amended complaint.
For the foregoing reasons, Defendant’s motion to strike and
motion

to

dismiss

will

be

granted.

A

separate

order

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

25

will