Kemp v. Seterus, Inc.
Kemp v. Seterus, Inc.
Opinion of the Court
Putative Class Plaintiff Donna Kemp has sued the servicer of her home mortgage loan, Seterus, Inc., and the owner of the loan, Federal National Mortgage Association (Fannie Mae), alleging violations of various Maryland state lender laws as well as the federal Truth in Lending Act (TILA),
I. FACTUAL AND PROCEDURAL BACKGROUND
This action centers around Seterus' servicing of Kemp's mortgage loan and allegedly improper property inspection fees that it charged her following her default on the loan.
A. Kemp's Mortgage Loan and Subsequent Default
In April 2007, Kemp obtained a home mortgage loan from Countrywide Home Loans, Inc., secured by a deed of trust on real property located in Glen Burnie, Maryland (the Property). Hr'g Tr. at 4:3-7; ECF No. 24-4. Although the exact date has not been provided, at some point after the origination of the loan, it was assigned to Fannie Mae, the current owner. Hr'g Tr. at 5-6.
In 2017, Kemp fell behind on her mortgage payments. ECF No. 17 ¶ 19. On April 10, 2017, Seterus, Kemp's loan servicer, declared the loan to be in default and stated that if Kemp did not "cure the default on or before May 15, 2017, it may result in acceleration of the sums secured by the mortgage and may result in the sale of the premises."
Seterus responded to Kemp's request for information on July 24, 2017. In its correspondence, Seterus disclosed to Kemp, apparently for the first time, that it had charged her loan account with certain property inspection fees from August 26, 2016, through July 24, 2017.
On September 25, 2017, in response to her request for a payoff total on her loan, Seterus informed Kemp that she owed $180.00 in property inspection fees that she was required to pay in connection with any loan payoff. The next day, Seterus responded to Kemp's second inquiry asking *445about the property inspection fees, stating:
[T]he authority to charge fees such as property inspection fees or legal fees is contained in the Deed of trust.... Enclosed is a copy of the Deed of Trust for your reference. Due to the continued contractual delinquency of the loan, Seterus exercised its right under the terms of the signed Deed of Trust to protect the loan owner's interest in the property. Property inspections are ordered when a loan is more than 45 days contractually delinquent, and every 30 days if the contractual delinquency continues. These were drive-by inspections to see if the property was occupied in good repair. The fee for this service was billed to Seterus by an outside contractor and then assessed to the loan. As of the date of this loan, Seterus has assessed the loan [twelve] property inspection fees [at $15.00 per inspection] totaling $180.00. These fees are considered valid.
Kemp alleges that the assessment of these property inspections fees on the loan violated Maryland law, specifically Md. Com. § 12-121(a)(1)(ii), which prohibits "lenders" from imposing such fees.
B. Kemp's Trial Plan and Loan Modification
In addition to the referenced correspondence regarding her loan, Kemp alleges that in a letter dated July 20, 2017, Seterus offered her a "Trial Period Plan" (TPP) in order to obtain a Fannie Mae loan modification. The plan required Kemp to make three trial payments to Seterus, on behalf of Fannie Mae, on or before September 1, October 1, and November 1, 2017. Kemp claims she accepted the TPP offer and made all the trial period payments.
On November 8, 2017, Seterus, on behalf of Fannie Mae, offered Kemp a Final Loan Modification Agreement.
Since the loan modification, Kemp states that she has continued to make her modified mortgage payments and that her loan remains in effect.
C. The Present Litigation
Based on these allegations Kemp brings six causes of action on behalf of herself and on behalf of three putative classes of situated persons. These claims all stem from the alleged improper property inspection fees added to her loan and include: 1) declaratory and injunctive relief related to Kemp's and the State Law Class members' mortgage accounts against both Defendants; 2) unjust enrichment on behalf of Kemp and the State Law Class against Seterus; 3) Maryland Consumer Debt Collection Practices Act (MCDCA) and Maryland Consumer Protection Act (MCPA) claims on behalf of Kemp and the State Law Class Members against Seterus; 4) Md. Com. Law § 12-121(a)(1)(ii) claim on behalf of Kemp and Usury Class members against both Defendants; 5) Maryland Mortgage Fraud Protection Act (MMFPA) claim on behalf of State Law Class members and Kemp against Seterus; and 6) TILA violations-the one and only federal claim-on behalf of the TILA Class members and Kemp against all Defendants, or in the alternative, only against Fannie Mae. ECF No. 17.
*446Kemp originally filed this suit in Montgomery County Circuit Court on December 19, 2017, and amended her Complaint in that court on January 26, 2018.
On February 15, 2018, based on federal question jurisdiction, Defendants removed the case to this Court, accompanied by a Motion to Dismiss the First Amended Complaint. Kemp responded to the Motion to Dismiss but, without seeking leave from the Court, also filed a Second Amended Complaint on March 15, 2018.
The Court, however, denied Defendants' Motion to Strike the Second Amended Complaint, granted Kemp leave to amend, and accepted the Second Amended Complaint she had filed.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) prescribes "liberal pleading standards," requiring only that a plaintiff submit a "short and plain statement of the claim showing that [he or she] is entitled to relief." Erickson v. Pardus ,
III. ANALYSIS
Because the only claim arising under the original jurisdiction of the Court is Count VI, the Court addresses the Motion to Dismiss Kemp's TILA claims front and center.
A. Count VI: TILA Claims
In Count VI of the Second Amended Complaint, Kemp alleges three TILA violations. First, she alleges a violation of 15 U.S.C. § 1639g based on the purported payoff statement Seterus provided in September 2017, which she claims was inaccurate because it included the unlawful property inspection charges. Second, she alleges a violation of
Title 15 Section 1639g of the U.S. Code provides: "A creditor or servicer of a home loan shall send an accurate payoff balance within a reasonable time, but in no case more than 7 business days, after the receipt of a written request for such balance." The corresponding regulation that implements the statute,
TILA, however, imposes civil liability only on creditors and, only in limited circumstances, assignees of creditors.
Though TILA provides for liability ofassignees in certain circumstances, its reach is limited. A civil action for a TILA violation "may be maintained against any assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary."
Defendants have moved to dismiss Count VI arguing, inter alia , that neither of them are "creditors" within the meaning of TILA. ECF No. 24.
1) Seterus
The TILA claims against Seterus, who is the loan servicer, are clearly dismissible. See, e.g., Mbongo v. Specialized Loan Servicing , LLC,
2) Fannie Mae
The TILA violations as to Fannie Mae require slightly more comment.
i. Inaccurate Payoff Statement ( 15 U.S.C. § 1639g &
Though it is undisputed that Fannie Mae is not the original creditor to whom the mortgage debt was initially payable, Kemp argues that as an assignee of the original creditor, Fannie Mae should be held liable under
*448In response, Fannie Mae argues that § 1602(g)'s language is clear: it only applies to the original creditor, not to subsequent assignees. Moreover, it argues that § 1641(a), which extends TILA's reach to certain assignees, is not applicable because the alleged inaccuracy is not apparent from the face of the disclosure statement. Fannie Mae replies that Kemp's argument that reading § 1639g to only apply to mortgage originators ignores TILA's remedial purpose, Fannie Mae says, has been expressly rejected by both the Eleventh and Second Circuits. See, e.g., Evanto v. Fed. Nat. Mortg. Ass'n ,
The Court agrees with Fannie Mae. The statute in question authorizes a private right of action against an assignee in a very narrow set of circumstances, i.e., only if the violation for which such action is brought is apparent on the face of the disclosure statement.
The Second Circuit similarly recognized the limited liability TILA places on assignees of the original creditor. See Vincent ,
This Court accepts the logic of the Eleventh and Second Circuits. Kemp's claim of violations for inaccurate payoff balances are not cognizable TILA claims against Fannie Mae as an assignee.
ii. Failure to Provide New Disclosures (
Even if Fannie Mae does not fall within the limited category of assignees that can be held liable under TILA, Kemp says her claim under
*449Generally speaking, TILA's disclosure requirements are triggered before a credit transaction is consummated.
Though Kemp cites at least one case suggesting that when a lender adds unauthorized fees, it creates a new credit transaction, see Travis ,
Kemp does not challenge the initial disclosures she received. Nor, obviously, can she do so as to these Defendants. To be sure, whether or not the property inspection fees were lawfully charged under Maryland law has yet to be determined. They may or may not be. As Fannie Mae points out, for instance, the property inspection fees were previously noted in the deed of trust agreed to by Kemp, see ECF No. 24-4, so arguably they are not new credit transactions that could impose liability on Fannie Mae under TILA.
In any case, Kemp's TILA claims fail as to Fannie Mae.
B. Supplemental Jurisdiction
Having dismissed all of Kemp's federal claims, the Court, as a matter of discretion, declines to exercise supplemental jurisdiction over the remaining state law claims. See
Accordingly, the Court DISMISSES Count VI with prejudice, the REMANDS the case to state court, where it began.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 24) is GRANTED . Count VI of the Second Amended Complaint is DISMISSED WITH PREJUDICE . The case is REMANDED for consideration of the state law claims.
A separate Order will ISSUE .
Though not addressed in the parties' pleadings, for the first time at oral argument Kemp argued that Fannie Mae may also be liable as an assignee because the regulation that implements the statute,
Though Kemp's Opposition brief seems to suggest that the loan modification itself required new disclosures, she clarified at oral argument that she was not pursuing a claim on this ground. Hr'g Tr. at 32. Indeed, several Judges in this District have held that TILA does not apply to loan modifications. See, e.g., Rodriguez v. Indymac Mortg. Servs. , FSB, No. RWT 12-CV-2207,
Reference
- Full Case Name
- Donna KEMP, on Behalf of Herself and on Behalf of Three Classes of Similarly Situated Persons v. SETERUS, INC.
- Cited By
- 6 cases
- Status
- Published