Thrasher v. Homecomings Financial Network, Inc.

838 A.2d 392, 154 Md. App. 77, 2003 Md. App. LEXIS 166, 2003 WL 22938961
CourtCourt of Special Appeals of Maryland
DecidedDecember 11, 2003
DocketNo. 2712
StatusPublished
Cited by2 cases

This text of 838 A.2d 392 (Thrasher v. Homecomings Financial Network, 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
Thrasher v. Homecomings Financial Network, Inc., 838 A.2d 392, 154 Md. App. 77, 2003 Md. App. LEXIS 166, 2003 WL 22938961 (Md. Ct. App. 2003).

Opinion

KENNEY, Judge.

Walter Thrasher (“Thrasher”) appeals from an order of the Circuit Court for Frederick County dismissing a complaint for failure to state a claim. On appeal, Thrasher asks three questions that we have condensed into one and reworded as follows:

Is there a private cause of action, under Md.Code (2003 Repl. Vol.), § 11 — 523(b) of the Financial Institutions Article (“FI”), against a licensed mortgage lender who allows a mortgage to be executed at a place for which the person does not have a license to conduct business?

We answer “no” and affirm the judgment of the circuit court.

PROCEDURAL AND FACTUAL BACKGROUND

Thrasher owns real property located at 1820 Gapland Road in Jefferson, Maryland. On or about November 6, 2000, he executed and delivered a “junior deed of trust” to Homecomings Financial Network, Inc. (“Homecomings”) securing a loan with his property.

In a complaint filed September 18, 2002, Thrasher averred that the loan documents were executed at his home and that, in violation of FI § ll-505(e), Homecomings did not have a license to act as a mortgage lender at that location. Citing FI § ll-523(b), Thrasher asserted “that no interest, costs, finders fees, brokers fees or other charges may be collected from [him] on the subject loan and [for] cancellation of the deed of trust.”

Homecomings filed a motion to dismiss, arguing that, even if a violation had occurred, there was “simply no private right of action” under FI § ll-523(b). According to Homecomings, that provision of the statute only penalized an “unlicensed” person who made or assisted a borrower in obtaining a mortgage loan and not a “licensed” person who violated a provision of the Maryland Mortgage Lender Law (the “MMLL”). In support of its position, Homecomings cited [80]*80Staley v. Americorp Credit Corp., 164 F.Supp.2d 578 (D.Md. 2001). Thrasher responded that Homecomings’ license to conduct business at one location did not “create any type of ‘color of license’ that affords protection to someone who conducts ‘unlicensed’ activities.”

The central issue at the hearing on the motion to dismiss was whether a licensed mortgage lender became an “unlicensed person,” under FI § 11 — 523(b), when conducting business at an unlicensed location. According to Homecomings’ attorney, the parties had stipulated that

at all times relevant to the facts in this case Homecomings ... was a licensed mortgage lender under the [MMLL] and that license was ... for a location that is other than the alleged location being [Thrasher’s] home where the loan was actually closed. That is, the second part of the stipulation, is that assuming for the sake of this case that the facts do bear out that the loan was closed in the borrower’s home, clearly Homecomings is stipulating that ... that’s not a licensed location. [Thrasher’s] home, kitchen, living room, whatever it was, is not a licensed location.

Thrasher’s attorney clarified the stipulation, stating:

[W]e don’t dispute that [Homecomings] held a license for a particular location. But, [the license] wasn’t [for] the borrower’s home, and the reason I make the distinction, Your Honor, is just because part of the argument is whether ... having a license at another location gave ‘em the right to act anywhere else. Whether they would be considered a licensed lender still or an unlicensed lender if they acted at another location.

The circuit court, in granting the motion, stated that in

the Staley case, the Court did dismiss plaintiffs complaint in part and held that [FI § ]ll-505 did not create a private right of action. And there is a distinction here. Being unlicensed initially and then being licensed and violating a provision of holding the settlement in another place where they were not authorized is certainly a difference.
Now, I don’t think that [FI § ]11 — 505 did create a private right of action. I think that the [legislature] intended the [81]*81[Commissioner], not private parties, to enforce the licensing provisions of the MMLL. Now, no question that [FI § ]11-523[(b)] does provide for suits against creditors who failed to get a license at all. But it does not allow individual [borrowers] to enforce the licensing provisions of the MMLL. And in fact, if it did, that would be inconsistent with the administrative scheme [that] the [legislature] established to enforce the MMLL.

This timely appeal followed.

DISCUSSION

Thrasher argues that the circuit court erred in its determination (1) that there was no private cause of action, under FI § 11 — 523(b), against a licensed mortgage lender who allows a secondary mortgage to be executed at a place for which the person is not licensed to conduct business; (2) that a license under the MMLL allows the holder to conduct business at any location; and (3) that Homecoming “was licensed to close a second mortgage loan” at his home. Homecomings counters that the court correctly found no private cause of action, but that it did not make the determinations contained in Thrasher’s second and third assignments of error.

Contrary to Thrasher’s contention, the circuit court determined that FI § ll-523(b) created a private cause of action only against lenders who had failed to obtain a license, and not against licensed lenders who violated the MMLL. The court did not hold that a licensed lender could conduct business at any location or that Homecomings was “licensed to close a second mortgage loan” at Thrasher’s home. Rather, the court determined that such license violations were to be enforced by the Commissioner, and not private parties.

In Staley, the federal district court determined that there is no private right of action, either express or implied, under FI § 11 — 523(b), against a licensed mortgage lender violating the MMLL.1 In this case, appellant contends that Homecom[82]*82ings was in effect an “unlicensed” lender when the documents relating to the loan transaction were executed because they were not executed at a licensed place of business. Therefore, he claims the right to the private cause of action that is expressly created by FI § ll-523(b).

“ ‘[T]he cardinal rule of statutory construction is to ascertain and effectuate legislative intention.’ ” State v. Green, 367 Md. 61, 81, 785 A.2d 1275 (2001) (citations omitted). When we interpret a statute, our starting point is always the text of the statute. W. Corr. Inst. v. Geiger, 371 Md. 125, 141, 807 A.2d 32 (2002). “[I]f the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N.B. Handy Co., 366 Md. 467, 473, 784 A.2d 569 (2001). Nevertheless, the plain meaning rule is “elastic, rather than cast in stone[,]” and if “persuasive evidence exists outside the plain text of the statute, we do not turn a blind eye to it.” Adamson v. Correctional Med. Servs., 359 Md.

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Bluebook (online)
838 A.2d 392, 154 Md. App. 77, 2003 Md. App. LEXIS 166, 2003 WL 22938961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrasher-v-homecomings-financial-network-inc-mdctspecapp-2003.