Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JULIUS UWANSC,

*

Plaintiff,

*

v.
*
BANK OF AMERICA, NATIONAL
ASSOCIATION,

Case No. 1:14-cv-01517-CCB
*

Defendants.
*

*

*

*
*

*

*

*

*

*

*

*

DEFENDANT BANK OF AMERICA, N.A.’S
RESPONSE IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant Bank of America,
N.A. (“BANA”), by and through counsel, hereby submits the following Response in Opposition
to Plaintiff Julius Uwansc’s (“Plaintiff”) Motion for Partial Summary Judgment (the “Motion”)
and states as follows in support:
I.

INTRODUCTION

Plaintiff’s Motion and Memorandum of Law in Support of the Motion (“Memo.”) request
that this Court find BANA liable for Count I of his Complaint for violation of the Maryland
Mortgage Fraud Protection Act (“MMFPA”), for Count II of his Complaint for violation of the
Maryland Consumer Debt Collection Act (“MCDCA”), and for Count III of his Complaint for
violation of the Maryland Consumer Protection Act (“MCPA”) without the necessary factual
support.
Plaintiff’s Motion further requests that this Court find that BANA cannot identify facts to
support any of its affirmative defenses. In doing so, Plaintiff’s Motion improperly attempts to

1
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 2 of 16

circumvent the Federal Rules of Civil Procedure and the Local Rules of this Court, to deprive
BANA of the right to defend itself at trial, and to avoid the merits of the case. The Motion
should be denied with respect to BANA’s affirmative defenses because it is an impermissible
attempt to resolve a discovery dispute without complying with the Local Rules, as is described
infra. Furthermore, BANA’s defenses are supported by facts and discovery exchanged by the
parties such that Plaintiff’s Motion should be dismissed with respect to BANA’s affirmative
defenses.
II.

UNDISPUTED FACTS

This matter relates to real property located at 6829 Richardson Road, Gwynn Oak,
Maryland 21207 (the “Property”). See Doc. 2, ¶¶ 6, 11. Plaintiff and his wife bought the
Property in 2004 by executing a promissory note in the amount of $143,200.00, secured by a
deed of trust. See Doc. 2, ¶11. Effective April 1, 2009, servicing of the subject loan secured by
the deed of trust (the “Loan”) was transferred to Countrywide Home Loans. BANA is successor
by merger to Countrywide Home Loans and began servicing Plaintiff’s Loan effective July 1,
2011. 1
Plaintiff applied for a loan modification in February 2011. See Doc. 31-14. Plaintiff was
approved for a Trial Period Plan (“TPP”) and was notified of the same on or about April 14,
2011. Plaintiff accepted the TPP. See Doc. 31-6. Plaintiff made each of the required TPP
payments and continued to make the trial payment amount while the loan was reviewed for a
permanent modification. See Doc. 31-2, Deposition of George Stratton Spiel, pp. 52:11 to 52:17.
During the loan modification review process, Plaintiff’s Loan fell into default status. See Doc.

1

Countrywide Home Loans changed its name to BAC Home Loans Servicing, LP effective April
27, 2009. BAC Home Loans Servicing, LP merged with and into Bank of America, N.A.
effective July 1, 2011.
2
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 3 of 16

31-2, pp. 50:17-51:10. Plaintiff continued to make trial payments and, eventually, a proposed
permanent modification agreement was sent to Plaintiff.

Plaintiff returned the proposed

modification agreement with alterations. Doc. 31-2, Deposition of George Stratton Spiel, p.
178:12-14. These alterations resulted in BANA being unable to implement the terms of the
modification agreement. See Doc. 31-14. BANA notified Plaintiff that it would be issuing new
permanent loan modification documents and that, once BANA received the signed, unaltered
permanent modification documents, BANA would initiate the finalization of the permanent
modification. Id.

New modification documents were sent to Plaintiff and were returned

unaltered and signed by him. See Doc. 31-15. BANA acknowledges receipt of the modification
agreement executed by Plaintiff. See Doc. 14, ¶54.
BANA thereafter assigned the Loan to the U.S. Department of Housing and Urban
Development (“HUD”). See Doc. 31-19. Servicing of the subject Loan was transferred to Selene
Finance L.P. See Doc. 31-21.
All factual allegations that differ from or contradict those stated above, including those
set forth by Plaintiff in “Plaintiff’s Statement of Material Facts not in Dispute” and in Sections I
and II of Plaintiff’s Motion, are in dispute.
III.

STANDARD OF REVIEW

Rule 56 of the Federal Rules of Civil Procedure provides that “[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). “The Supreme
Court has clarified that this does not mean that any factual dispute will defeat the motion: By its
very terms, this standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary

3
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 4 of 16

judgment; the requirement is that there be no genuine issue of material fact.” See Wyer v.
Conmed Healthcare Mgmt., 2013 U.S. Dist. LEXIS 2508, at *6 (D. Md. Jan. 8, 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original)). “The
party opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’” Id. at *7 (citing Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e))).
Furthermore, “[a] mere scintilla of proof . . . will not suffice to prevent summary judgment.”
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
Although the court views the evidence in the light most favorable to the nonmoving
party, “the court must, however, also abide by the ‘affirmative obligation of the trial judge to
prevent factually unsupported claims and defenses from proceeding to trial.’” Wyer, 2013 U.S.
Dist. LEXIS 2508, at *7 (citing Bouchat, 346 F.3d at 526). Ultimately, “[a] court should enter
summary judgment where a non-moving party fails to make a sufficient showing to establish the
elements essential to the party’s claim and on which the party will bear the burden of proof at
trial.” Ross v. Early, 2012 U.S. Dist. LEXIS 137258, at *9 (D. Md. Sept. 25, 2012) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
IV.
A.

LEGAL ARGUMENT

PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT AGAINST BANA
AS TO COUNT I FOR VIOLATION OF THE MARYLAND MORTGAGE
FRAUD PROTECTION ACT.
The “undisputed facts” cited by Plaintiff in the Motion do not support Count I against

BANA for violation of the MMFPA. The MMFPA prohibits “mortgage fraud.” Md. Real Prop.

4
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 5 of 16

Code Ann. § 7-402. The statute defines “mortgage fraud” as, “any action by a person made with
the intent to defraud that involves:
(1) Knowingly making any deliberate misstatement, misrepresentation, or omission
during the mortgage lending process with the intent that the misstatement,
misrepresentation, or omission be relied on by a mortgage lender, borrower, or any other
party to the mortgage lending process . . . ; or
(3) Knowingly using or facilitating the use of any deliberate misstatement,
misrepresentation, or omission during the mortgage lending process with the intent that
the misstatement, misrepresentation, or omission be relied on by a mortgage lender,
borrower, or any other party to the mortgage lending process;
Id. § 7-401(d) (emphasis added). Plaintiff’s Motion as to Count I for violations of the MMFPA
must be denied because the undisputed facts do not show that BANA acted “with an intent to
defraud” the Plaintiff, as required by the statute.
1.

Lack of Intent to Defraud.

Intent to defraud is not established by a mere showing of fraudulent conduct. See
Ferguson Trenching Co. v. Kiehne, 329 Md. 169 (1993). Rather, “[u]nderlying an ‘intent to
defraud’ is some form of bad faith by the defendant [and] [i]n order to have an intent to defraud,
the defendant must act dishonestly or at least with reckless indifference.” Id. at 184 (citing to
Everett v. Baltimore Gas & Elec., 307 Md. 286, 300 (1986)) (emphasis added). Here, Plaintiff’s
MMFPA claim against BANA relates to allegations that BANA ignored “written and oral
promises” to Plaintiff concerning the modification and threats of foreclosure. See Memo. at p. 13.
While some of the statements made in writing and orally to Plaintiff may have been allegedly
inaccurate, Plaintiff has not produced any facts in this case, and cites to none in the Motion, to
support the proposition that BANA made any such statements with the intent to defraud Plaintiff.
Indeed, despite repeatedly asserting that BANA intended for Plaintiff to rely on various
statements (written and oral), nowhere in the Motion does Plaintiff assert that BANA intended to

5
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 6 of 16

or attempted to defraud Plaintiff. Indeed, the evidence suggests that BANA employees believed
they were providing Plaintiff with correct information regarding his loan and the loan’s status.
See Doc. 31-9, “Deposition of Chad Tate,” p. 41, ll. 6-20. There is simply no factual evidence
showing that BANA attempted or intended to defraud Plaintiff, and summary judgment in favor
of Plaintiff should be denied.
2.

Lack of Bad Faith.

There are no facts to support the proposition that BANA acted in “bad faith” with respect
to its servicing of Plaintiff’s loan. “‘Bad-faith’ is the opposite of good faith; it is not simply bad
judgment or negligence, but implies a dishonest purpose or some moral obliquity and a
conscious doing of wrong.” Rite Aid Corp. v. Hagley, 374 Md. 665, 681 (2003) (citing Vickers v.
Motte, 109 Ga.App. 615, 619-20 (1964)) (emphasis added). “‘[B]ad-faith’ differs from the
negative idea of negligence in that it contemplates a state of mind affirmatively operating with a
furtive design.” Id. (citing New Amsterdam Cas Co. v. Nat'l, etc., Banking Co., 117 N.J.Eq. 264,
277 (Ch.1934), aff'd, 119 N.J.Eq. 540 (N.J.Err. & App. 1936)) (emphasis added). Here, there are
no facts to support a finding that BANA acted with a “dishonest purpose,” “furtive design” or
“conscious doing of wrong” in its dealings with Plaintiff. While Plaintiff’s Motion goes to great
lengths to cite cases he contends support the position that an act violates a law even if the actor
does not have specific knowledge that its acts may constitute violations of said law (See Memo.,
p. 13), the Motion fails to assert or demonstrate in any way that BANA acted in “bad faith” as
defined by the Courts. While the facts presented in discovery and referenced in Plaintiff’s
Motion may demonstrate that BANA made mistakes, they do not demonstrate that BANA
operated with a “dishonest purpose” or “furtive design,” and, as such, a genuine issue of material

6
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 7 of 16

fact exists as to whether BANA violated the MMFPA. Accordingly, summary judgment as to
Count I of Plaintiff’s Complaint should be denied.
3.

Lack of Reckless Indifference.

Likewise, there are no facts to support the proposition that BANA acted with reckless
indifference with respect to its servicing of Plaintiff’s loan. “A recklessly indifferent person . . .
‘has actual knowledge that he or she [does] not know whether the statement [is] true or false, but,
with reckless indifference to the truth, [makes] the statement with the intent of deceiving the
listener.” Hoffman v. Stamper, 385 Md. 1, 44 (2005) (citing Le Marc's Mgmt. Corp. v. Valentin,
349 Md. 645, 654 (1998)) (emphasis added). Here, BANA’s employees and agents acted with
the belief that they were providing Plaintiff with correct information and were servicing his loan
correctly. See Doc. 31-9, “Deposition of Chad Tate,” p. 41, ll. 6-20. Any inaccurate information
provided to Plaintiff or acts or omissions by BANA were based, at worst, on an honest
misunderstanding of the status of Plaintiff’s loan and were not based on any intent to deceive the
Plaintiff. As a result, there is simply no evidence that BANA acted with reckless indifference.
Because there is no evidence that BANA acted with intent to defraud Plaintiff, Plaintiff’s
Motion as to Count I for violations of the MMFPA must be denied.
B.

PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT AGAINST BANA
AS TO COUNT II FOR VIOLATION OF THE MARYLAND CONSUMER DEBT
COLLECTION ACT.
The undisputed facts show that BANA did not violate the MCDCA or, at the very least,

they create a genuine issue of material fact as to whether BANA alleged acts or omissions
constitute violations of the MCDCA. Plaintiff argues that he is entitled to summary judgment as
to Count II on the grounds that BANA utilized debt collection methods which were illegal or
improper. See Memo., ¶IV.b, p. 17. As an administrative matter, it appears that some of the

7
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 8 of 16

arguments set forth by Plaintiff in his Motion do not even relate to this Plaintiff, this loan, or to
BANA. For instance, Plaintiff’s Motion states, “The plain language of the MCDCA makes clear
that the foreclosure, collection process initiated by SunTrust in three separate instances was an
attempt to enforce a right with knowledge that the right did not exist, in light of the Schnecks’
full and complete performance under the terms of their loan.: See Memo., ¶IV.b, p. 18.
Accordingly, it is difficult for BANA to respond to arguments that are clearly not directed at it.
Under the MCDPA, a party cannot attempt to collect a debt to which they know they
have no right. See MD. CODE ANN., § 14-202; see also Kouabo v. Chevy Chase Bank, F.S.B..,
336 F Supp. 2d 471, 475 (d. Md. 2004). The key element is “knowledge.” Id. (citing Spencer v.
Hendersen-Webb, Inc., 81 F. Supp. 2d 582, 595 (D. Md. 1999)). Specifically, the “knowledge”
requirement under § 14-202 of the MCDPA means “that a party may not attempt to enforce a
right with actual knowledge or with reckless disregard as to the falsity of the existence of the
right.” Id. (emphasis added).
Plaintiff’s Motion presents no facts to support a proposition that BANA had “actual
knowledge” that it was attempting to collect a debt to which it knew it had no right. For
example, BANA’s 30(b)(6) witness stated, “So the April 1st, 2011 payment was made and the
borrower was current. May 2nd, the first trial mod amount payment was received. The way
that—the way that works is it’s still a payment that’s less than the full amount, so it is applied to
the unapplied total. When the next—the next payment was made June 1st. That was also put into
the unapplied total, and then they were able to take a full payment out and make the payment.
So the loan actually goes into a month—into default by one month at that time, while the loan is
being reviewed for the—for the loan modification.” See Doc. 31-2, p. 50, ll. 17-21, p. 51, ll. 110. This testimony supports BANA’s position that Plaintiff’s loan was in default and that BANA

8
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 9 of 16

was not attempting to collect a debt which to which it knew it had no right. Furthermore, BANA
stated in response to Plaintiff’s Interrogatory Number 20, “BANA states that late payments were
received from Plaintiff as evidenced by the loan payment history attached to BANA’s responses
to Plaintiff’s First Request for Production of Documents. Therefore, Plaintiff was in default at
the time he was allegedly offered the Trial Payment Plan and, therefore, remained past due and
not current until he completed the trial modification and received a permanent modification.” See
Doc. 31-10, BANA’s Responses to Plaintiff’s First Set of Interrogatories. Once again, this is
evidence that BANA reasonably believed Plaintiff’s loan to be in default and that BANA was not
acting with actual knowledge that it did not have a right to collect from Plaintiff. Accordingly, a
genuine dispute of material fact exists as to whether BANA had actual knowledge that it did not
have a right to attempt to collect a debt from Plaintiff.
Not only does Plaintiff completely fail to state that BANA had actual knowledge or acted
with reckless disregard as to the falsity of the existence of the right to collect on a debt from
Plaintiff, but the written discovery and testimony in this case demonstrate that BANA, in fact,
did not have actual knowledge that such a right did not exist. Accordingly, summary judgment
as to Count II of Plaintiff’s Complaint must be denied.
C.

PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT AGAINST BANA
AS TO COUNT III FOR VIOLATION OF THE MARYLAND CONSUMER
PROTECTION ACT.
A genuine dispute of material fact exists as to whether BANA has liability for Plaintiff’s

MCPA claim.

Plaintiff argues that BANA is liable for his MCPA claim because BANA

“extended him a loan modification which he accepted without alternation and performed upon
but BANA failed to honor its written and oral promises and instead made a series of false
misrepresentations and omissions which infected Mr. Uwansc’s loan and without the legal or

9
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 10 of 16

equitable to do so and included materially, false statements and omissions by BANA.” See
Memo., ¶IV.c, p. 22. Plaintiff’s Motion as to Count III must be denied because the facts do not
show that he sustained damage as a result of BANA’s actions.
1.

A Plaintiff Must Show Causation of Actual Damages to Maintain a Private
Action Under the MCPA.

In Citaramanis v. Hallowell, 328 Md. 142, 152 (1992), the Maryland Court of Appeals
noted that, with respect to the MCPA,
the Legislature has established a clear distinction between the elements
necessary to maintain a public enforcement proceeding versus a private
enforcement proceeding. In a public enforcement proceeding ‘[a]ny
practice prohibited by this title is a violation . . . whether or not any
consumer in fact has been misled, deceived, or damaged as a result of that
practice.’ § 13-302. In contrast, a private enforcement proceeding
pursuant to § 13-408(a) expressly only permits a consumer ‘to recover for
injury or loss sustained by him as the result of a practice prohibited by this
title.’ § 13-408(a). Section 13-408(a), therefore, requires an aggrieved
consumer to establish the nature of the actual injury or loss that he or she
has allegedly sustained as a result of the prohibited practice. (emphasis
added).
To that end, courts have held that “a private consumer bringing an action under the Act must
show actual injury or loss sustained as a result of a practice prohibited by the Act to establish a
private right of action under the statute.” Ingram v. Auto Palace, Inc., 2012 U.S. Dist. LEXIS
149813, at *43-44 (D. Md. Oct. 17, 2012) (emphasis added) (attached as Appendix 1) (citing
McGraw v. Loyola Ford, Inc., 124 Md. App. 560, 580 (1999)).
2.

Plaintiff Has Not Shown Actual Damages Resulting from the Alleged
Prohibited Conduct.

A genuine dispute exists as to whether Plaintiff sustained actual injury or loss as a result
of BANA’s alleged actions. Notably, in his Motion, Plaintiff fails to address what injury or loss
he sustained as a result of BANA’s alleged violations of the MCPA. Plaintiff apparently
attempts to circumvent this requirement by stating that he “has identified specific losses or

10
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 11 of 16

injuries [he] [intends] to seek at trial” and referring to the ad damnum clause of his Complaint.
See Memo., ¶IV.C, p. 22. However, the ad damnum clause merely states that Plaintiff seeks
“[c]ompensatory economic and non-economic damages in the amount of no less than $200,000.”
See Doc. 2, ad damnum clause. This mere allegation of entitlement to an award of damages fails
to meet this Court’s requirement that “a private consumer bringing an action under the Act must
show actual injury or loss sustained as a result of a practice prohibited by the Act to establish a
private right of action under the statute.” See, Ingram, at *43-44.

For that reason alone,

Plaintiff’s Motion as to Count III should be denied. Accordingly, a genuine dispute of material
fact exists with respect to Plaintiff’s MCPA claim and summary judgment must be denied.
3.

No Private Cause of Action Exists For Alleged Violations of Servicing
Guidelines Under the Making Home Affordable Program.

“It is well-established that no private cause of action exists under HAMP for alleged
violations of the servicing guidelines.” See Sheard v. Bank of Am., N.A., 2012 WL 3025119, *3
(D. Md. July 23, 2012) (collecting decisions from this Court holding that there is no private
cause of action under HAMP); Allen v. CitiMortgage, Inc., 2011 WL 3425665, *8 (D. Md. Aug.
4, 2011) (dismissing claims based on HAMP). Rather, “[c]ompliance oversight [of HAMP’s
guidelines] is delegated to Freddie Mac.” Legore v. OneWest Bank, FSB, 898 F. Supp. 2d 912,
914 (D. Md. 2012); Cade v. BAC Home Loans Servicing, LP, 2011 WL 2470733, *5 (S.D. Tex.
June 20, 2011) (“There is no private right of action under HAMP.”); Correll v. Bank of Am.,
N.A., 2012 WL 348594, *4 (E.D. Va. Feb. 2, 2012) (same).
Notwithstanding this well-established precedent, Plaintiff attempts to shoehorn BANA’s
alleged mishandling of his loan modification application and acceptance into a state law MCPA
claim. However, “[a] plaintiff cannot circumvent the intent of the legislature by recasting
alleged HAMP violations as alternative causes of action.” Ramos v. Bank of Am., N.A., 2012
11
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 12 of 16

WL 5928732, *4 (D. Md. Nov. 26, 2012). In Ramos, the plaintiff asserted eleven causes of
action against Bank of America, N.A. after the bank denied the plaintiff’s loan modification
request. Id. at *1. The plaintiff asserted an MCPA claim because the bank allegedly “den[ied]
her loan modification, fail[ed] to maintain adequate staff to help Plaintiff with her application,
and generally prevent[ed] Plaintiff from obtaining a loan modification—all for the purpose of
charging Ramos additional fees and penalties.” Id. at *4.

This Court dismissed the claims,

holding:
In essence, all of Plaintiff's factual allegations assert that Defendants acted
improperly pursuant to the HAMP guidelines. [H]owever, Congress did not
create a private right of action to enforce HAMP. A plaintiff cannot circumvent
the intent of the legislature by recasting alleged HAMP violations as alternative
causes of action. See, e.g., Parks v. BAC Home Loan Servicing, LP, 825
F.Supp.2d 713, 716 (E.D. Va. 2011) (dismissing a claim for breach of the implied
duty of good faith and fair dealing “as it is merely another attempt to recast the
HAMP claim”). Because they rely exclusively on Defendants’ alleged HAMP
violations, Plaintiff's unjust enrichment and MCPA claims are not cognizable and
will be dismissed with prejudice.
Id.; Ramos v. Wells Fargo Home Mortg., 2012 WL 261308, *3 (D. Md. Jan. 26, 2012)
(dismissing various claims, including a claim under the MCPA, because they “arise out of [the
defendants’] alleged failure to follow the HAMP procedures set forth by the Treasury
Department to determine whether a party is eligible for a loan modification”) (citing Akinoye v.
Wells Fargo Home Mortg., 2011 WL 6180210, *4–5 (D. Md. Dec.12, 2011)).
Plaintiff’s MCPA claim is based on his attempt to obtain a loan modification under
HAMP and BANA’s alleged mishandling of those efforts. See Doc. 2, generally; see also,
Memo., ¶IV.c, p. 21, 22. These are precisely the type of claims consistently rejected by this
Court. See, e.g., Sheard, 2012 WL 3025119 at *3 (denying MCPA claim asserting loan review
failures related to HAMP); Ramos, 2012 WL 5928732 at *4 (same); Allen, 2011 WL 3425665 at
*8 (same); Legore, 898 F. Supp. 2d at 919 (same); Ramos, 2012 WL 261308, *3 (same);
12
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 13 of 16

Akinoye, 2011 WL 6180210 at *4–5 (same). Accordingly, Plaintiff has failed to demonstrate
that no genuine dispute exists with respect to BANA’s alleged violations of the MCPA and
summary Judgment as to Count III must be denied.
D.

PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT WITH RESPECT
TO THE AFFIRMATIVE DEFENSES RAISED BY BANA.
A genuine dispute of material fact exists as to BANA’s affirmative defenses. Plaintiff

maintains that “BANA’s Answer and discovery responses identified no facts to support any of its
Affirmative Defenses.” See Memo., ¶IV.d, p. 23. This statement is inaccurate. For instance,
Plaintiff’s Interrogatory Number 20 states, “If you contend that you were permitted to
repetitively claim and represent to Plaintiff, as described in the Complaint, that he was past due
and not current on the Subject Loan while Plaintiff was current on his Trial Plan Payments to
you, set forth in detail all facts that support such a contention for each such statement you
made to Plaintiff concerning the Subject Loan.” See Doc. 31-10, BANA’s Responses to
Plaintiff’s First Set of Interrogatories, ¶20. BANA responded, in part, and subject to proper
objections raised, “BANA states that late payments were received from Plaintiff as evidenced by
the loan payment history attached to BANA’s responses to Plaintiff’s First Request for
Production of Documents. Therefore, Plaintiff was in default at the time he was allegedly
offered the Trial Payment Plan and, therefore, remained past due and not current until he
completed the trial modification and received a permanent modification.” See, Doc. 31-10, ¶20.
This response, further supported by documents produced in discovery, clearly creates a genuine
issue of fact as to BANA’s Second, Third, Fourth, Fifth, and Sixth Affirmative Defenses. See
Doc. 14.
Additionally, Plaintiff’s Motion fails to specifically address any of the individual
defenses raised by BANA in its Answer. Nonetheless, it is clear that a genuine dispute of
13
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 14 of 16

material fact exists as to these defenses. For instance, as a first defense, BANA pled, “At all
times relevant to this action, BANA administered the loan obligations in conformity with
applicable laws and regulations and pursuant to the loan agreement(s) and Deed of Trust.” See
Doc. 14. As discussed in this Memorandum supra, genuine issues of fact exist as to each of
Plaintiff’s causes of action, all of which allege that BANA failed to administer its obligations to
Plaintiff in conformity with applicable laws. Since genuine issues of fact exist as to each of
Plaintiff’s causes of action based on the premise that BANA did not comply with applicable
laws, a genuine issue of fact necessarily exists as to whether BANA’s First Affirmative Defense
is supported.
Moreover, Plaintiff wholly fails to specify in his Motion why he is entitled to summary
judgment as to BANA’s Seventh, Eighth, and Ninth Defenses. See Memo., ¶IV.d, p. 23.
BANA’s Plaintiff’s Motion fails to show how any of these defenses are inadequately pled. As
noted supra, “the party against whom inferences [are] to be drawn . . . [is] entitled to the
inferences most favorable to his contentions.’” Hill v. Cross Country Settlements, LLC, 402 Md.
281, 294 (2007), (citing Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14 (1959)). Here,
Plaintiff has done nothing more than baldly assert that BANA’s affirmative defenses are
unsupported by the facts and fails to specify as to any or all of the defenses how said defenses are
unsupported apart from making the blanket argument that they are. See Memo., ¶IV.c, p. 23.
Rather, Plaintiff’s Motion with respect to BANA’s affirmative defenses is an attempt to deprive
BANA of the right to defend itself at trial and to avoid the merits of the case. Accordingly, and
as discussed in this Section, supra, Plaintiff is not entitled to summary judgment as to BANA’s
affirmative defenses.

14
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 15 of 16

V.

CONCLUSION

For the foregoing reasons, Defendant Bank of America, N.A. respectfully requests that
this Court deny Plaintiff’s Motion for Partial Summary Judgment in its entirety.

Date: June 29, 2015

Respectfully submitted,
/s/Veronica D. Jackson
Veronica D. Jackson (Federal Bar No. 18532)
McGuireWoods LLP
7 Saint Paul Street, Suite 1000
Baltimore, Maryland 21202
(410) 659-4436
(410) 659-4471 (Fax)
vdjackson@mcguirewoods.com
Attorneys for Defendant

15
68266845.1

 Case 1:14-cv-01517-CCB Document 46 Filed 06/29/15 Page 16 of 16

CERTIFICATE OF SERVICE
I hereby certify that, on June 29, 2015, a copy of the foregoing was sent to all parties and
counsel of record in this matter when filed with the Court’s ECF system.
/s/ Veronica D. Jackson
Veronica D. Jackson

16
68266845.1