Bochenski v. M&T Bank

• Decision Date: 10 March 2015
• Docket Number: Civil Action No. ELH-14-1031
• Court: U.S. District Court — District of Maryland
• Parties: MICHAEL BOCHENSKI, Plaintiff, v. M&T BANK, Defendant.

MICHAEL BOCHENSKI, Plaintiff, v. M&T BANK, Defendant.

Civil Action No. ELH-14-1031

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

March 10, 2015

MEMORANDUM

Plaintiff Michael Bochenski, who is self-represented, filed suit against defendant M&T Bank ("M&T" or "Bank"), supported by twenty exhibits. See ECF 2 ("Complaint").¹ In a twenty-seven page, single-spaced Complaint, he alleges that the Bank committed "fraud, theft and/or conspiracy to commit fraud" in connection with a mortgage loan ("Loan") that plaintiff obtained from another lender on September 30, 1987. See id. ¶ 1; ECF 2-4 at 1, Ex. D, Purchase Money Deed of Trust dated 9/30/87 ("Deed of Trust"). The Loan, in the sum of $65,000, was used to finance plaintiff's purchase of residential real property (the "Property") located in Annapolis, Maryland, and is secured by the Property. See ECF 2 ¶ 1; ECF 2-4 at 1, Deed of Trust.

M&T had no involvement with plaintiff's Loan until November 1, 2011, when the servicing of the Loan was reassigned from Bogman, Inc.² ("Bogman") to M&T. See ECF 2¶¶ 36, 38; ECF 2-3 at 1, Ex. C, letter dated 9/6/12 from Nancy Terranova, M&T Operations Manager, to Bochenski ("Terranova Letter"). Plaintiff claims that on January 9, 2012, he was notified by the Bank "that they now held the mortgage." ECF 2 ¶ 36. Thereafter, a series of disputes arose between plaintiff and M&T, as to several matters, including alleged overpayments by plaintiff in connection with his private mortgage insurance policy, largely made during the period when the Bank had no involvement in the Loan.

In his Complaint, plaintiff seeks compensatory damages of $194,576.04 and punitive damages in an unspecified amount. Id. ¶ 72. In a later submission, ECF 19, he seeks punitive damages of $778,404.16, to be paid "in gold or silver at current market rates or by certified check or cashier's check ...." Id. at 29-30.³

M&T has filed a "Motion to Dismiss Plaintiff's Complaint, or, in the Alternative, Motion for a More Definite Statement" (ECF 9, "Motion"). In response, plaintiff filed a "Motion to return for this Federal District Court's, court of record AND to return case to Maryland Circuit Court for Anne Arundel County in Annapolis Maryland as case number 02-C-14-185059" (ECF 10, "Motion to Return"). Plaintiff also filed a "Writ of Error and Motion to Return Court Case to Original Jurisdiction" (ECF 14, "Writ of Error"), and "Motion to Deny Defendant's Opposition and/or Request for a Hearing to Deny the Defendant's Deny Opposition" (ECF 16, "Motion to Deny"). Defendant filed oppositions to the Motion to Return and to the Writ of Error. See ECF 11; ECF 15. By Memorandum (ECF 17) and Order (ECF 18) entered July 21, 2014, I denied plaintiff's Motion to Return, Writ of Error, and Motion to Deny. And, plaintiff was directed to file his opposition to defendant's Motion by August 4, 2014. See ECF 18 ¶ 5.

On August 1, 2014, plaintiff filed two additional motions: a "Motion to Strike Defendants [sic] Motion to Dismiss and Amend Complaint to Claim and Hearing for Judgment and Stay Order" (ECF 19, "First Motion to Strike"), supported by five exhibits, and a "Motion to Strike Defendants [sic] Motion to Dismiss and Amend Complaint to Claim and Hearing for Judgment and Stay Order or Motion to Dismiss in Circuit Court" (ECF 20, "Second Motion to Strike"), supported by an exhibit.⁴ Although plaintiff styles these filings as motions,⁵ I have construed these submissions as responses to defendant's Motion. M&T filed a Reply (ECF 21) on August 18, 2014.⁶

I. Factual Background⁷

On September 30, 1987, plaintiff borrowed $65,000 to finance the purchase of a home on Tyler Avenue in Annapolis, payment for which was secured by a Deed of Trust dated September30, 1987. ECF 2 ¶ 1; see also ECF 2-4 at 1, Deed of Trust. The lenders appear to have been Weaver Brothers, Inc. and the Community Development Administration ("CDA"), a division of the Maryland Department of Housing and Community Development ("MDHCD" or "Department") (collectively, the "Lender"). See ECF 2-4 at 1, Deed of Trust.⁸ The Maryland Housing Fund issued a "COMMITMENT/CERTIFICATE FOR MORTGAGE INSURANCE" to the Lender. See ECF 2 ¶ 63; ECF 2-1, Ex. A, Maryland Housing Fund Commitment/Certificate for Mortgage Insurance ("PMI Certificate"). As noted, on November 1, 2011, the servicing rights for plaintiff's mortgage were transferred from Bogman to M&T. See ECF 2 ¶ 38; see also ECF 2-3 at 1, Terranova Letter.

The remaining facts are difficult to glean from the rambling Complaint. But, it appears that plaintiff takes issue with the manner in which M&T serviced his Loan. Most of plaintiff's allegations pertain to the following: (A) plaintiff's payments for private mortgage insurance; (B) M&T's alleged failure to provide plaintiff with a "proper accounting" of his mortgage, and related communications with M&T Senior Counsel, Paul Kucinski; (C) M&T employees' alleged errors with respect to plaintiff's Loan; (D) M&T employees' alleged harassment of plaintiff; and (E) "theft" by M&T.

As best as I can determine, the mortgage has been satisfied. In any event, this case does not involve a foreclosure on the Property by the Bank.

A. Private Mortgage Insurance

Plaintiff's Deed of Trust contains two provisions that, read together, appear to have required plaintiff to purchase private mortgage insurance ("PMI").⁹ First, the Deed of Trust provides, ECF 2-4 ¶ 7 (emphasis added):

7. Mortgage Insurance: Until all sums due under the Note and secured hereby are fully paid and satisfied (unless otherwise permitted by Lender and CDA), Borrower shall keep and maintain in effect a policy of mortgage insurance, in an amount at least equal to the outstanding indebtedness ... issued by ... the Maryland Housing Fund.

Second, the Deed of Trust states that monthly payments of the PMI are required on the same date monthly mortgages payments are due. See ECF 2-4 ¶ 2.

In September 1987, plaintiff obtained a PMI policy from the Maryland Housing Fund. See ECF 2 ¶ 63; ECF 2-1, PMI Certificate. Plaintiff made PMI premium payments of $13 per month for approximately 25 years, from 1987 until about early 2012. ECF 2 ¶ 30; see also ECF 2-3 at 1, Terranova Letter. Relying on the Homeowners Protection Act, plaintiff maintains here that he was never obligated to obtain PMI. See ECF 2 ¶¶ 13, 30, 63.¹⁰

In a letter from plaintiff dated March 13, 1999, to "Bancone Mort Corp," which appears to have been a previous servicer of plaintiff's mortgage, plaintiff stated: "PMI insurance is not for me it is insurance for you. Weaver Bro lied to me. This Homeowners Protection Act information you sent does not require me to have it." See ECF 2-5 at 1, Ex. E ("Bancone Letter").

Plaintiff apparently raised the issue of PMI with the Bank. Sometime after November 2011, M&T employee Claudette Satchell¹¹ contacted the MDHCD to ask whether Mr. Bochenski qualified for cancellation of his PMI insurance obligation, given how much of his Loan principal had been paid. See ECF 2 ¶ 23; see also ECF 2-3 at 1, Terranova Letter. Thereafter, the MDHCD agreed to cancel Mr. Bochenski's remaining PMI payment obligations. See ECF 2 ¶ 23; see also ECF 2-3 at 1, Terranova Letter. The Department also agreed to refund plaintiff for the PMI premium payments that he had made from 2002 through 2011. See ECF 2-3 at 1, Terranova Letter; ECF ¶¶ 22-24. As a result, the State of Maryland Treasury Office issued two checks to plaintiff, totaling $1560. ECF 2 ¶ 27; see also ECF 2-7 at 1-2, Ex. G ("PMI Refund Checks"). M&T Bank repeatedly attempted to explain to Mr. Bochenski the actions that occurred regarding his PMI policy.

For example, in a letter to plaintiff dated June 20, 2012, Aimee Carpenter, Mortgage Customer Support at M&T, responded to a letter from plaintiff and stated, ECF 2-6 at 1, Ex. F ("Carpenter Letter"):

Upon thorough review of your account, it has been determined that the PMI policy should have been canceled in 2002 by the previous servicer. However, it was not removed until March 2012 by M&T Bank. A refund in the amount of $1,135.86 was mailed directly to you from the Maryland Department of Housing for premiums paid from 2002 through 2010. According to the Homeowners Protection Act of 1999, any loan closed prior to 7/29/99 would be removed at mid-point. Since your loan closed on 9/30/1987, your midpoint [sic] was reached in 9/2002. Based on this act, you were advised that the refund would be $1,560.00. An additional check will be mailed by the Maryland Department of Housing in the amount of $424.14 for this difference under separate cover. This will cover the total amount of premiums paid from 2002 through 2011 ($156.00 times 10 years).¹²

Similarly, in a letter dated July 25, 2012, discussed further, infra, M&T's Senior Counsel, Paul W. Kucinski, Esq., gave a similar account to Tyler King, Esq., then counsel for Mr. Bochenski, with respect to M&T's communications with the Department. See ECF 2-17, Ex. Q ("First Kucinski Letter"). Kucinski said, in part, id. at 2:

In response to the many correspondences and branch visits by Mr. Bochenski, his mortgage account was reviewed further. During this review, M&T determined that mortgage insurance on Mr. Bochenski's account was no longer required and was terminated. As a result, a second escrow analysis statement dated February 27, 2012 was prepared and issued to Mr. Bochenski to reflect the removal of the mortgage insurance.

***

It was also determined through our research that the private mortgage insurance policy should have been canceled by Bogman, Inc. in 2002. Two refund checks totaling $1,560.00 were sent to Mr. Bochenski by the Maryland Community Development Agency to reimburse Mr. Bochenski for the premiums paid from 2002 through 2011 ($156.00 times 10 years).

And, in a letter to Mr. Bochenski dated September 6, 2012, ECF 2-3, M&T Operations Manager Nancy Terranova addressed the cancellation of Mr. Bochenski's PMI policy. She said, in part, id. at 1,...