McCray v. Bank of Am., Corp.

MICHELLE MCCRAY Plaintiff v. BANK OF AMERICA, CORP. Defendant.

Civil Action No. ELH-14-2446

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

April 10, 2017

MEMORANDUM OPINION

In an Amended Complaint (ECF 20), Michelle McCray, the self-represented plaintiff, sued defendant "Bank of America, Corp., et al." ("BOA").¹ The litigation is rooted in plaintiff's purchase in August 2006 of a home on Harriet Avenue in Baltimore, with a mortgage loan from Countrywide Home Loans, Inc. ("Countrywide"). Id. BOA purchased Countrywide in 2008, and plaintiff's loan was formally transferred to BOA in 2009.² See ECF 20, ¶ 1; ECF 20 Ex. A; ECF 2-1.³

McCray appears to assert multiple violations of the Real Estate Settlement Procedures Act, as amended, 12 U.S.C. §§ 2601 et seq. ("RESPA"), and a violation of RESPA's implementing regulations. See, e.g., ECF 20 ¶¶ 1, 13, 23, 40-42. Plaintiff also seems to assert a claim under the Consumer Financial Protection Act ("CFPA"), 12 U.S.C. §§ 5531 and 5536(a). Id. ¶ 2.⁴ In her prayer for relief, McCray asks the Court to appoint "an independent company or individual . . . to review the defendant's loan servicing (accounting practices) in order to resolve the discrepancies" described in the Amended Complaint. ECF 20 at 21-22. In addition, McCray also seeks, inter alia, damages for harm to the house caused by BOA (ECF 20 at 22), and damages under RESPA for "error[s] not investigated, corrected, and or [sic] mentioned in defendant's response . . . ." Id. at 23.

BOA has filed a motion for summary judgment (ECF 65), which is supported by a memorandum of law (ECF 65-1) (collectively, the "Motion") and exhibits. ECF 65-2 through ECF 65-8. McCray opposes the Motion (ECF 66) ("Opposition") and has also submitted exhibits. ECF 66-1 through ECF 66-6. BOA has replied (ECF 67) and has provided an additional exhibit. ECF 67-1.

In its Motion, BOA failed to address a claim based on a Consumer Complaint Form ("CCF") and an exhibit submitted by plaintiff with ECF 20, i.e., Exhibit Z1. Therefore, by Orderof February 13, 2017 (ECF 73), I invited the parties to submit memoranda addressing plaintiff's claim that BOA failed to respond sufficiently to the CCF that plaintiff submitted to the Office of the Comptroller of the Treasury in violation of RESPA, and to her claim under 24 C.F.R. § 3500.17(k)(1). Id.; see ECF 65. I also advised the parties that my Order constituted notice that I would address the issues under Fed. R. Civ. P. 56. ECF 73 at 3. Per my Order (ECF 73), the parties submitted memoranda (ECF 82, McCray; ECF 83, BOA). In addition, BOA responded to ECF 82, as permitted by my Order. See ECF 85. However, McCray did not respond to ECF 83, although she was permitted to do so. See docket.

I have construed BOA's two submissions (ECF 83; ECF 85) as supplements to its Motion. I will construe plaintiff's submission (ECF 82) as a supplement to her Opposition.

The Motion is fully briefed and no hearing is necessary to resolve it. See Local Rule 105.6. The Court is mindful of its obligation to construe liberally the pleadings of a pro se litigant, which are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nevertheless, for the reasons that follow, I shall grant the Motion.

I. Factual and Procedural Background

A. Procedural Background

McCray filed suit in the Circuit Court for Baltimore City in June 2014 (ECF 2) and included thirty-five exhibits. ECF 2-1 through ECF 2-35. Defendant removed the case to this Court under 28 U.S.C. §§ 1331, 1332, and 1441. ECF 1.

On September 8, 2014, BOA moved to dismiss the initial Complaint. ECF 11; see ECF 2. By Memorandum Opinion (ECF 18) and Order (ECF 19) of June 1, 2015, I granted the motion in part and denied it in part.⁵

In particular, I granted the motion, with prejudice, as to McCray's RESPA claim arising from the complaint submitted to the Consumer Financial Protection Bureau ("CFPB"). ECF 19. I could not determine whether plaintiff asserted claims for accounting, breach of contract, and loss of rental income, and thus denied them. Id.; see ECF 18 at 21-24. And, I denied the motion to dismiss with respect to plaintiff's RESPA claim regarding two qualified written requests submitted by plaintiff. See ECF 18 at 20. In my Order (ECF 19), I granted plaintiff twenty-one days to amend her suit to allege RESPA claims for additional qualified written requests and to assert other claims, such as for an "accounting, breach of contract, loss of rental income, or the violation of 15 U.S.C. § 45, or a claim based on the 'rules' cited in her Motion for a Hearing." Id.

McCray filed an Amended Complaint on June 18, 2015. ECF 20. It contains forty-three numbered paragraphs and a lengthy prayer for relief. Id. The assertions in the Amended Complaint are challenging to discern, and the document does not explicitly set forth causes of action. See id. Nor did McCray include as an exhibit a "redline copy" identifying the changes made in the Amended Complaint. See ECF 20; Local Rule 103.6.

Upon review of ECF 20, although the language has changed, it does not appear that McCray has asserted claims for an accounting, breach of contract, or loss of rental income. SeeECF 20.⁶ And, it does not appear that McCray has asserted claims under the "rules" cited in ECF 16 (§ 1026.36(c); § 1024.37; and § 1024.35(a)).⁷ But, it does appear that McCray has asserted a new claim under the CFPA (ECF 20, ¶ 2), and a new claim under RESPA's implementing regulations. ECF 20, ¶ 23. Moreover, McCray has amplified her RESPA claims regarding the CCF and the CFPB Complaint. See ECF 20, ¶¶ 40, 42.

B. The Loan

On or about August 30, 2006, plaintiff executed a Deed of Trust in favor of Countrywide and obtained an adjustable rate mortgage in the amount of $107,350.00 ("Loan"), with an initial interest rate of 9.850%, secured by property located at 2469 Harriet Ave., Baltimore, MD 21230 (the "Property"). ECF 11-2 (Deed of Trust). Although the Loan was initially made with Countrywide, BOA acquired Countrywide in 2008. ECF 20, ¶ 1.

McCray obtained several modifications to the Loan. She obtained her first modification on January 9, 2008 ("First Modification"). ECF 20 Ex. F; ECF 2-11. BOA's payment records show that, at the time of the First Modification, payment was due and owing for May 2007. ECF 65-2 at 31-32; 38-39. The First Modification, which was effective March 1, 2008, reflected an unpaid principal balance of $123,715.15, with monthly payments of principal and interest in the sum of $1,369.64, and an interest rate of 9.850%. Id.

On December 4, 2008, McCray obtained a second modification of the Loan ("Second Modification"). ECF 20 Ex. G; ECF 2-12 (Second Modification). The Second Modification, which was to be in effect from January 1, 2009 until December 31, 2013, reflected a principal balance of $129,504.00, based on payments due and owing for August 2008. Id.; see ECF 65-2 at 33. It also reduced McCray's interest rate to 3.625%, with combined monthly payments of $618.38. ECF 20 Ex. G; ECF 2-12 at 1.

McCray was approved for a third modification on May 11, 2009 ("Third Modification"). ECF 20 Ex. D-1; ECF 2-8; ECF 65-2 at 48-50 (Third Modification). The Third Modification reflected an unpaid principal balance of $128,428.94, included monthly payments of $724.27, and set a fixed interest rate of 3.585%, effective as of July 1, 2009. ECF 65-2 at 48-50. BOA's records indicate that the Third Modification was effective as of November 13, 2009. See ECF 65-2 at 34.

Thereafter, McCray intermittently failed to make payments due on the Loan. See ECF 65-2 at 33-37. Moreover, BOA did not receive payments from McCray after April 29, 2011. That payment was applied to the payment due and owing for January 2011. ECF 65-2 at 37.

BOA notified McCray on November 23, 2011, that it had transferred the Loan to Specialized Loan Servicing, LLC ("SLS"), effective January 1, 2012. ECF 20 Ex. B2; ECF 2-5 (Notice of Assignment).⁸ On or about March 19, 2015, the Deed of Trust was assigned to the Bank of New York Mellon (f/k/a Bank of New York) ("BONY"), as Trustee for the Certificate Holders of CWABS, Inc. Asset-Backed Certificates Series 2006-18. ECF 65-2 at 25-26 (Assignment of Beneficial Interest).

On April 21, 2015, foreclosure proceedings were initiated in the Circuit Court for Baltimore City against the Property, Case No. 24O15001102. See ECF 65-7. The Property was sold to BONY at a foreclosure sale on October 20, 2015, for $31,500. See id.; ECF 65-6 (Substitute Trustee's Deed). The sale was ratified on or about July 29, 2016. ECF 65-7 at 8. BONY assigned the deed to a third party on June 10, 2016, for $32,000. ECF 65-8 (Deed of Assignment).

C. The Qualified Written Requests

Congress enacted RESPA in order "to insure that consumers . . . are provided with greater and more timely information on the nature and costs of the [mortgage loan] settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices . . . ." 12 U.S.C. § 2601. Under RESPA, a mortgage servicer must respond to, or take action on, a borrower's qualified written request ("QWR"). 12 U.S.C. § 2605(e)(2).

A QWR is a "written request from the borrower . . . for information relating to the servicing of [a] loan." 12 U.S.C. § 2605(e)(1)(A). RESPA further defines a QWR as written correspondence from a borrower that "(i) includes, or otherwise enables the servicer to identify, the name and account of the borrower," and "(ii) includes a statement of the reasons for the belief of the borrower . . . that the account is in error . . . ." See 12 U.S.C. §§ 2605(e)(1)(B).

In her Amended Complaint, McCray asserts that she submitted four QWRs to Countrywide and/or BOA, to which the loan servicer did not respond or responded inadequately.⁹ According to McCray, she sent her first QWR ("First Letter") to...