Milligan v. Ally Financial

Filing 19

MEMORANDUM OPINION (c/m to Plaintiff 5/20/16 sat). Signed by Judge Deborah K. Chasanow on 5/20/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
GERARD AVERY MILLIGAN
:
v.

:

Civil Action No. DKC 15-3486

:
ALLY FINANCIAL INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case are
the following motions: a motion for summary judgment filed by
Defendant Ally Financial Inc. (“Defendant”) (ECF No. 12); and a
cross-motion

for

summary

judgment

filed

Avery Milligan (“Plaintiff”) (ECF No. 16).1

by

Plaintiff

Gerard

The relevant issues

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

Local Rule 105.6.

For the following reasons,

Defendant’s motion for summary judgment will be granted, and
Plaintiff’s cross-motion will be denied.
I.

Background
A.

Factual Background

Unless

otherwise

noted,

construed

in

the

facts

outlined

the

light

most

here

favorable

are

undisputed

and

to

Plaintiff.

On May 10, 2014, Plaintiff purchased a used vehicle

from Waldorf Chevrolet Cadillac (the “Dealership”) in Waldorf,
1

Plaintiff’s “motion for judgment,” to the extent it is an
actual motion, will be denied and construed as a reply brief in
support of his motion for summary judgment. (See ECF No. 18).

Maryland by entering into a Retail Installment Sale Contract
(the “contract”) with the Dealership.
12-2).

(See ECF Nos. 1-1 ¶ 4;

The Dealership subsequently assigned its interest in the

contract to Defendant.

(See ECF Nos. 12-2; 12-4 ¶ 7).

On May

31, Plaintiff and the Dealership entered into a revised contract
(the “revised contract”), the rights of which were also assigned
to Defendant.
contract,

(ECF Nos. 12-3; 12-4 ¶ 5).

Defendant

provided

Plaintiff

Under the revised
with

approximately

$22,685.00 in financing, which Plaintiff was to pay back in 60
monthly payments beginning on July 15, 2014.
2).

(ECF No. 12-3, at

Plaintiff asserts that he was unaware that the Dealership

assigned

its

rights

under

the

revised

contract

to

Defendant

because the space for the Dealership to assign its rights is
blank on his copy of the revised contract.

(ECF Nos. 1-1 ¶¶ 5-

6; 16, at 1).
Plaintiff
approximately

received
forty-five

a

phone

days

after

call

from

purchasing

the

Defendant
vehicle,

which requested that he begin sending payments for the vehicle.
(ECF No. 1-1 ¶ 7).

Plaintiff, believing his payments should be

sent to the Dealership rather than to Defendant, requested that
Defendant “show proof of claim” over the revised contract.
id. ¶¶ 9, 14).

(See

Defendant continued to attempt to service the

loan pursuant to the assignment of the revised contract, but

2

Plaintiff repeatedly requested “proof of claim in this [revised]
contract.”

(See ECF Nos. 1-1 ¶ 9; 12-1, at 2).

According

to

Defendant,

“Plaintiff

has

defaulted

on

his

payment obligations to [Defendant], and [Defendant] has taken
steps

to

exercise

(ECF

No.

12-1,

its
at

rights
1).

under

the

Plaintiff

[revised

avers

repossessed the vehicle on July 9, 2015.

contract].”

that

Defendant

(ECF No. 1 ¶ 2).

On

September 29, Plaintiff received a facsimile copy of the revised
contract with the assignment blank filled in, indicating that
the Dealership had assigned its rights to Defendant.

(ECF No.

1-1 ¶ 10; 1-2, at 3).
B.

Procedural History

On November 16, 2015, Plaintiff, proceeding pro se, filed a
complaint and a motion for a temporary restraining order and
preliminary injunction.
that

Defendant

(ECF No. 1).

“illegally

The complaint asserts

repossessed

Plaintiff[’s]

property”

because it “has no interest in the [revised] contract” between
Plaintiff and the Dealership.

(Id. ¶ 2).

The court denied

Plaintiff’s request for emergency equitable relief on November
25.

(ECF No. 2).

On February 24, 2016, Defendant filed the

pending motion for summary judgment.

(ECF No. 12).

Plaintiff

was provided with a Roseboro notice, which advised him of the
pendency of the motion for summary judgment and his entitlement
to

respond

within

17

days.

(ECF
3

No.

13);

see

Roseboro

v.

Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding that pro se
plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).

Plaintiff responded

(ECF No. 15), filed a cross-motion for summary judgment (ECF No.
16), and filed what is styled as an “Opposition to Defendant[’s]
Summary Judgment and Motion for Judgment,” but will be construed
as a reply in support of his motion for summary judgment (ECF
No. 18).

Defendant filed a combined reply in support of its

motion and response to Plaintiff’s cross-motion.
II.

(ECF No. 17).

Standard of Review
Summary judgment is appropriate under Federal Rule of Civil

Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

In

entitled

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
of the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

determine

and

whether

determine

the

there

a

is

truth

genuine

of

the

issue

matter

for

but

trial.”

to
A

dispute about a material fact is genuine “if the evidence is
such

that

nonmoving

a

reasonable

party.”

Id.

jury
at

could

248.

return
Thus,

a

“the

verdict
judge

for

the

must

ask

himself not whether he thinks the evidence unmistakably favors
one

side

or

the

other

but

whether
4

a

fair-minded

jury

could

return

a

verdict

presented.”

for

the

[nonmoving

party]

on

the

evidence

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

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

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

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

is

not

sufficient to preclude an order granting summary judgment.

See

Liberty

in

The mere existence of a “scintilla” of

support

Lobby,

477

of

U.S.

the

at

nonmoving

252.

A

party’s

“party

case

cannot

create

a

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

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

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

Indeed, this court has an

affirmative obligation to prevent factually unsupported claims
and defenses from going to trial.
F.2d

774,

778–79

(4th

Cir.

1993)

See Drewitt v. Pratt, 999
(quoting

Felty

v.

Graves–

Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it
5

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
III. Analysis
Plaintiff’s

complaint

is

based

on

his

assertion

that

Defendant does not have an interest in the revised contract.
(See ECF No. 1 ¶ 2).2

In support of this contention, Plaintiff

attaches a photograph of his copy of the revised contract, in
which

the

space

for

the

Dealership

assigned its interest was left blank.

to

denote

that

it

has

(ECF No. 15-1, at 2-3).

Defendant counters by attaching copies of the revised contract
with

the

assignment

section

completed.

(ECF

No.

12-3).

Defendant also attaches affidavits from a custodian of records
for the Dealership (ECF No. 12-4) and Defendant (ECF No. 12-5)
attesting to the validity of the assignment.
2

Defendant contends

It is not entirely clear what specific claims Plaintiff is
asserting against Defendant.
Plaintiff has not been called to
clarify his claims because Defendant answered rather than moving
to dismiss for failure to state a claim. In his opposition to
Defendant’s motion, Plaintiff alludes to claims of extortion,
identity theft, and harassment, but he provides no support for
these claims and did not raise such claims in his complaint.
(ECF No. 18, at 1). Moreover, it appears that Plaintiff is only
asserting claims challenging the validity of the assignment
itself rather than alleging that Defendant engaged in improper
means to collect payments from Plaintiff.
In short, even
construed liberally, Plaintiff’s complaint alleges only that the
Dealership’s assignment to Defendant was invalid or forged.
6

that, “[u]nless required by the [revised] contract itself, no
consent or notice to the other party to a contract is required
to

validate

Maryland
(1955);

an

Co-op.

assignment.”
Milk

(ECF

Producers

No.

v.

17-1,

Bell,

at

206

2

Md.

(citing
168,

176

Fry v. Coyotte Portfolio, LLC, 128 Md.App. 607, 619

(1999)).
“Under Maryland law, contract rights are freely assignable
(1)

‘[u]nless

otherwise

agreed,’

or

(2)

except

when

‘the

assignment would materially change the duty of the other party,
or increase materially the burden or risk imposed on him by his
contract, or impair materially his chance of obtaining return
performance.’”

Korangy v. Mobil Oil Corp., 84 F.Supp.2d 660,

665 (D.Md. 2000) (emphasis added) (quoting Md. Code Ann., Com.
Law § 2-210).
that

a

The Court of Special Appeals of Maryland held

party’s

obligations

were

not

“materially

changed

or

increased” when “[n]either the amount owed nor the date upon
which payments were due changed.”

Fry, 128 Md.App. at 619.

Absent a contractual provision to the contrary, § 2-210 does not
require notice to the other party.
contract

precludes

assignment
contract

be

assignment

provided

includes

to

or

Here, nothing in the revised
mandates

Plaintiff.

several

explicit

that

notice

Rather,

the

references

of

an

revised
to

the

Dealership’s ability to assign its rights under the contract.
(See

ECF

No.

12-3,

at

2-3).

Furthermore,
7

the

Dealership’s

assignment to Defendant did not materially change Plaintiff’s
duty

—

it

simply

required

Plaintiff

to

make

the

payments

dictated by the revised contract to Defendant rather than to the
Dealership.

Thus, the Dealership’s assignment to Defendant is

not prohibited as a matter of law.
Plaintiff’s
the

assignment

conclusory
are

not

allegations

supported

by

that

the

sufficient to survive summary judgment.

Defendant

record

and

forged
are

not

Defendant attaches a

copy of the revised contract that includes the assignment (ECF
No. 12-3), and both parties to the assignment attest to its
validity (ECF Nos. 12-4; 12-5).

Although Plaintiff contends

that Defendant forged the assignment because it has not provided
the “original wet ink” signature, such an argument is unavailing
because “there is no recognizable claim to demand in an action
brought

by

a

borrower

signature documents.”
14-606,

2014

WL

that

the

lender

produce

‘wet

ink’

Harris v. Household Fin. Corp., No. RWT-

3571981,

at

*2

(D.Md.

July

18,

2014).3

Similarly, Plaintiff’s contention that the affidavits Defendant
provides are hearsay is unpersuasive.
The court and the parties have great
flexibility with regard to the evidence that
may
be
used
on
a
[summary
judgment]
proceeding.
The
court
may
consider
materials
that
would
themselves
be
3

Although Harris was decided in the context of a mortgage
foreclosure action, the court’s reasoning regarding the lack of
a claim to demand “wet ink” documents is relevant here.
8

admissible at trial, and the content or
substance
of
otherwise
inadmissible
materials where the party submitting the
evidence show[s] that it will be possible to
put the information into admissible form.
See Humprheys & Partners Architects, L.P. v. Lessard Design,
Inc.,

790

F.3d

532,

538-39

(4th

internal quotation marks omitted).
that

they

are

custodians

of

Cir.

2015)

(citations

and

Here, the two affiants aver
business

records

for

their

respective companies and that the revised contract is a business
record.

(ECF Nos. 12-4; 12-5).

Plaintiff has not articulated

that these averments are disingenuous or that the evidence would
not be admissible at trial.

Defendant has adequately supported

its motion for summary judgment, and Plaintiff fails to show a
genuine

dispute

of

material

fact.

Accordingly,

Defendant’s

motion for summary judgment will be granted.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment will be granted, and Plaintiff’s cross-motion will be
denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

9