Thompkins v. Mortgage Lenders Network USA, Inc.

61 A.3d 829, 209 Md. App. 685, 2013 WL 755124, 2013 Md. App. LEXIS 18
CourtCourt of Special Appeals of Maryland
DecidedFebruary 28, 2013
DocketNo. 98
StatusPublished
Cited by3 cases

This text of 61 A.3d 829 (Thompkins v. Mortgage Lenders Network USA, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompkins v. Mortgage Lenders Network USA, Inc., 61 A.3d 829, 209 Md. App. 685, 2013 WL 755124, 2013 Md. App. LEXIS 18 (Md. Ct. App. 2013).

Opinion

KEHOE, J.

Appellants, Marshall T. Thompkins and his wife, Antoinette S. Thompkins (the “Thompkinses”), appeal from a decision of the Circuit Court for Baltimore City granting summary judgment in favor of appellee Mountaineer Investments, LLC (“Mountaineer”). In their complaint, the Thompkinses contended that Mountaineer was liable for certain alleged viola[689]*689tions of the Maryland Secondary Mortgage Loan Law (the “SMLL”), found at Md.Code Ann., Com. Law (“CL”) §§ 12-401 et seq. (1975, 2005 RepLVol., 2010 Supp.). In granting summary judgment, the circuit court determined that Mountaineer was an assignee and not a lender under the SMLL, and that there was no statutory or common law basis to hold Mountaineer derivatively liable for any of the lender’s alleged violations. The Thompkinses subsequently filed this appeal, presenting two questions for our review, which we have reworded and consolidated:

Is an assignee of a second mortgage loan liable for the lender’s violations of the SMLL?[1]

We conclude that an assignee of a second mortgage is not liable for the lender’s violations of the SMLL when the loan has been paid in full unless the assignee (i) expressly assumed such liability or (ii) itself violated the SMLL.2 Because the Thompkinses paid their loan prior to filing suit and no facts have been pled suggesting that Mountaineer either expressly assumed any liability for the lender’s alleged violations or violated the SMLL itself, we will affirm the circuit court’s grant of summary judgment in favor of Mountaineer.

Factual and Procedural Background

The Undisputed Facts

On March 4, 1998, the Thompkinses obtained a second mortgage loan in the principal amount of $60,075 from Mort[690]*690gage Lenders Network USA, Inc. (“MLN”). There is no dispute that this loan is subject to the provisions of the SMLL and that MLN was a “lender” as the term is defined in the SMLL.3

At closing, the Thompkinses paid certain additional fees, including a $250 document preparation fee, a $225 settlement or closing fee, a $151.25 title insurance premium, and a $1,000 mortgage broker’s or finder’s fee.

On the day of closing, MLN transferred the loan to Master Financial, Inc. (“Master Financial”). In early December of 2005, Master Financial transferred the loan to Mountaineer as part of a larger pool of small loans. There is no dispute that Mountaineer is an assignee of the Thompkinses’ loan. It is additionally undisputed that Mountaineer has never been in the business of making loans and has never been licensed in Maryland to do so. Thus, Mountaineer is not a “lender” as defined by CL § 12-401(b). As noted by the circuit court, it is additionally undisputed that Mountaineer “did not receive or charge any consideration, fees or commissions in connection with the Plaintiffs’ second mortgage.”

On June 26, 2006, approximately seven months after the note was assigned to Mountaineer, the Thompkinses paid the loan in full. Mountaineer released the Deed of Trust shortly thereafter.

The Complaint & Amended Complaint

The Thompkinses originally filed their complaint in the Circuit Court for Baltimore City on July 7, 2009, naming MLN and Mountaineer as defendants.4 On August 11, 2009, Mountaineer removed the action to the United States District Court [691]*691for the District of Maryland. Subsequently, on April 2, 2010, the District Court for the District of Maryland remanded the matter back to the Circuit Court for Baltimore City without addressing the merits of the Thompkinses’ contentions.

The Thompkinses alleged in their complaint and amended complaint5 that MLN violated the statutory requirements of the SMLL in three distinct ways. First, referencing the closing fees identified above, the Thompkinses asserted, in essence, that MLN charged fees in addition to a loan origination fee, and that the charging of such additional fees was in violation of the SMLL. See CL § 12-411 (“A lender may not directly or indirectly, contract for, charge, or receive, any interest, discount, fee, fine, commission, brokerage, charge, or other consideration in excess of that permitted by this subtitle.”); CL § 12-405(a)(3).6 Second, the Thompkinses alleged that MLN failed to provide the proper disclosure form as required by the SMLL. See CL § 12-407.1 (“The Commissioner shall develop and prepare a form that each lender shall furnish to an applicant for a secondary mortgage loan. The form shall state the following: (1) The purpose for which the loan is to be used; (2) A disclosure that, if the loan is for a commercial purpose, the borrower shall forfeit certain [692]*692rights.”).7 Third, the Thompkinses claimed that they were improperly charged a broker’s or finder’s fee (without having first entered into a separate and distinct written agreement with the mortgage broker) in violation of the SMLL. See CL § 12-805(d)(l) (“A finder’s fee may not be charged unless it is pursuant to a written agreement between the mortgage broker and the borrower which is separate and distinct from any other document.”); CL § 12-406(b) (“An agreement to pay a commission, finder’s fee, or point may not be enforced unless it is in writing and signed by the lender.”); CL § 12-405(a)(3).

The amended complaint did not allege that Mountaineer acted as a secondary mortgage lender but rather that Mountaineer “had a duty to make sure that the second mortgage loans it purchased complied with the SMLLn” and that Mountaineer “breached this duty and routinely purchased Maryland second mortgage loans that violated the SMLL, thus perpetrating the market for such illegal secondary mortgage loans.” Therefore, the amended complaint asserts:

As purchaser and/or assignee and holder of the note and the second mortgage of the Plaintiffs, Mountaineer ... is liable to the Plaintiffs because it is subject to all claims and defenses which the Plaintiffs ... could asserted against [MLN],

Additionally, the amended complaint alleged that Mountaineer “knowingly violated the provisions of the Maryland SMLL because it had actual knowledge ... of the requirements of the SMLL and that thousands of Maryland second mortgage loans were made in violation of the statute” and, further, that, “[n]otwithstanding this knowledge, [Mountaineer] continued to [693]*693collect interest on the Plaintiffs’ second mortgage loan that they were not legally entitled to collect.” The Thompkinses prayed for statutory damages totaling $264,415.54, plus fees, costs, and prejudgment interest.

The Circuit Court Proceedings

Prior to the completion of discovery, the Thompkinses moved for summary judgment on all violations alleged in the complaint, and argued that Mountaineer, as assignee, was liable for MLN’s violations. The Thompkinses contended that CL § 3-306 provided a statutory basis for imposing liability upon Mountaineer. Specifically, the Thompkinses interpreted CL § 3-306 to impose derivative liability when an assignee could not establish a holder-in-due-course defense. The Thompkinses also argued that Mountaineer was liable for the alleged violations under Maryland common law.

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Related

Larocca v. Creig Northrop Team, P.C.
94 A.3d 197 (Court of Special Appeals of Maryland, 2014)
Thompkins v. Mountaineer Investments, LLC
94 A.3d 61 (Court of Appeals of Maryland, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
61 A.3d 829, 209 Md. App. 685, 2013 WL 755124, 2013 Md. App. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompkins-v-mortgage-lenders-network-usa-inc-mdctspecapp-2013.