936 A.2d 343 (Md. 2007), 4, Hill v. Cross Country Settlements, LLC

Docket Nº:4
Citation:936 A.2d 343, 402 Md. 281
Opinion Judge:HARRELL, J.
Party Name:Kathleen HILL v. CROSS COUNTRY SETTLEMENTS, LLC.
Attorney:Leslie John Williams (Alan A. Abramowitz and Christina Bolmarcich of Bouland & Brush, LLC of Baltimore), on brief, for respondent., Jeffrey L. Forman (Bruce E. Kauffman of Kauffman and Forman, P.A. of Towson), on brief, for petitioner.
Case Date:December 03, 2007
Court:Court of Appeals of Maryland
 
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Page 343

936 A.2d 343 (Md. 2007)

402 Md. 281

Kathleen HILL

v.

CROSS COUNTRY SETTLEMENTS, LLC.

No. 4

Court of Appeals of Maryland

December 3, 2007

Page 344

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Leslie John Williams (Alan A. Abramowitz and Christina Bolmarcich of Bouland & Brush, LLC of Baltimore), on brief, for respondent.

Jeffrey L. Forman (Bruce E. Kauffman of Kauffman and Forman, P.A. of Towson), on brief, for petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, JOHN C. ELDRIDGE, (Retired, specially assigned) ALAN M. WILNER, (Retired, specially assigned), and DALE R. CATHELL, (Retired, specially assigned) JJ.

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HARRELL, J.

The only thing that is crystal clear about this case is that the grant of summary judgment, on this record, was inappropriate. Although we cannot state conclusively that no conceivable set of facts that may be developed on remand, based on the analysis here, could support disposition of this dispute by summary judgment, we suggest that it is quite likely that this litigation presents triable issues.

I.

Mary Sasso acquired the residential property at 533S. Chester Street in Baltimore City (the "Property") on 28 March 1991. Approximately six months later, she conveyed the Property to her daughter, Kathleen Hill, reserving for herself, however, a life estate with the power to encumber the Property. In 1999, Sasso obtained a home equity loan from Provident Bank ("Provident") using the Property as security for the loan. Provident recorded among the land records of Baltimore City on 22 April 1999 the Deed of Trust associated with that loan. Sasso refinanced the loan with Provident, and a new Deed of Trust was executed, on 25 October 2002. Provident issued a certificate of satisfaction for the 1999 loan and properly recorded the new Deed of Trust.

Sasso died on 18 May 2003. Provident continued to receive from Hill regular payments on the 2002 loan until a last payment on 25 June 2004. In June 2004, Adedayo Mseka (the "Buyer") agreed with Hill to purchase the Property for $175,000. Cross Country Settlements, LLC ("Cross Country"), was engaged by the Buyer to conduct the closing. During its title search, Cross Country discovered the outstanding 2002 Deed of Trust in favor of Provident. Cross Country contacted Provident to obtain payoff information. At this point in time, the only relevant information Cross Country had was the name of the borrower (Sasso) and other self-explanatory information revealed by the four corners of the recorded Deed of Trust. The record does not contain written documentation of the initial communications between Provident and Cross Country. The communications were characterized, however, in an affidavit of Cross Country's President, Rebecca L. Raras, submitted in support of Cross Country's motion for summary judgment, as "difficult." In essence, Cross Country was unable to obtain payoff information from Provident.

At some point after Cross Country contacted Provident initially, with no success, Cross Country asked for further information from Hill about the 2002 Deed of Trust loan. Hill gave Cross Country what she thought was the correct account number at Provident, number 96021899. This account number, as it turns out, was for the original 1999 loan on the Property, not the 2002 loan. Hill also supplied to Cross Country Sasso's death certificate, which contained such information as Sasso's Social Security Number. 1

Cross Country, using the account number provided by Hill, contacted Provident again in an effort to obtain payoff information for the 2002 loan. Provident responded on 6 July 2004 with a letter stating "the above referenced loan was paid in full on October 30, 2002. Deed and Certificate of

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Satisfaction sent to customer on January 24, 2003." Cross Country nonetheless deemed it odd that a loan would be paid in full only five days after it had been executed and recorded. Cross Country renewed its request to Provident for payoff information for the 2002 loan. Provident responded by faxing a copy of the 6 July 2004 letter to Cross Country, with a cover sheet that said, "[t]his was faxed to you on 7-6-04. PS Loan has been pd in full." There is nothing in the record to indicate that Cross Country solicited a confirmatory release or certificate of satisfaction from Provident regarding the 2002 loan.

The Hill-Mseka closing on the Property occurred on 15 July 2004. At settlement, Raras claimed, in her summary judgment affidavit, that Hill inquired about a Provident account being paid off. Raras showed Hill the 6 July 2004 payoff letter from Provident and inquired as to whether there were outstanding mortgages on the Property. Hill responded that the Provident account she had in mind when earlier she supplied the number 96021899 was a credit card account in her mother's name. Raras also claims that Hill informed her that the payoff letter from Provident was accurate. The form "Owner's Affidavit" signed by Hill at closing states, "THAT no agreement or contract for conveyance, or deed, conveyance, written lease, or writing whatsoever, is in existence, adversely affecting the title to said premises, except that in connection with which this Affidavit is given." 2 The settlement proceeded, with Hill receiving the proceeds of the sale of the Property without deduction for any amount due on the 2002 Provident loan. Cross Country, as agent for Stewart Title Guaranty Company ("Stewart"), issued a title insurance policy to the Buyer. 3

On 16 September 2004, two months after the closing and the last payment on the 2002 loan, Provident faxed Cross Country a pay off sheet for the outstanding loan, account number 96038807. The amount of the payoff was $70,261.26. On 21 September 2004, Cross Country sent a letter to Hill demanding that Hill "forward to Cross Country Settlements, LLC a certified check [for $70,261.26] made payable to Provident Bank ...." Hill did not respond to the demand letter. On 22 December 2004, Provident informed the Buyer that the Property would be sold at foreclosure in early 2005. Provident initiated foreclosure proceedings in the Circuit Court for Baltimore City. The Buyer made a claim against her title insurer, Stewart. Stewart paid the $70,261.26 to Provident, without apparent protest or mounting a defense to the foreclosure on behalf of the Buyer, its insured. Because the title insurance policy was not made a part of the record here, there is no basis upon which to evaluate Stewart's decision to pay.

Stewart then made demand upon its issuing agent, Cross Country, for reimbursement of the funds paid to Provident. Cross Country paid Stewart on 18 February 2005. Cross Country claims it was required to reimburse Stewart by the terms of an underwriting agreement between them, although that agreement also was not made part of the record. The sole basis in the record in support of Cross Country's claim that it was obligated by contract to reimburse Stewart is a bare

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assertion to that effect in the affidavit of Raras.

Cross Country filed its first Complaint against Hill on 12 November 2004 in the Circuit Court for Baltimore County. 4 After a series of dismissals and amended complaints, the Fourth Amended Complaint (the final complaint) and Cross Country's motion for partial summary judgment were filed on 8 March 2005, after Cross Country paid Stewart.

The Fourth Amended Complaint contained five counts: intentional misrepresentation, intentional misrepresentation - -concealment, negligent misrepresentation, unjust enrichment, and monies had and received. The misrepresentation counts were dismissed by the Circuit Court on Hill's motion on 5 October 2005. 5 Upon the parties' cross-motions for summary judgment, 6 the Circuit Court granted summary judgment to Cross Country on Count IV, unjust enrichment, on 2 December 2005. 7 Hill filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in a reported opinion, affirmed the judgment of the trial court. Hill v. Cross Country Settlements, LLC, 172 Md.App. 350, 914 A.2d 231 (2007). We granted certiorari, on Hill's petition, to consider whether the trial court was correct in granting summary judgment to Cross Country. Hill v. Cross Country Settlements, 398 Md. 314, 920 A.2d 1058 (2007). 8

II.

Maryland law is well settled regarding the appellate standards to be applied in reviewing a grant of summary judgment. Summary judgment is appropriate where "there is no genuine dispute

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as to any material fact" and "the party in whose favor judgment is entered is entitled to judgment as a matter of law." Maryland Rule 2-501(f). "In granting or denying a motion for summary judgment, a judge makes no findings of fact." King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608, 615 (1985). The appellate court will "review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party." Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520, 529 (2006). "In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law ." Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538, 543 (2007) (quoting Livesay v. Baltimore County, 384 Md. 1, 9-10, 862 A.2d 33, 38 (2004)).

As iterated above, if there is a genuine dispute as to any material fact, summary judgment is improper. Even where the underlying facts are undisputed, "if they [are] susceptible of more than one inference, the...

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