McCrea v. Devan, 031319 MDSCA, 1320-2017

Docket Nº:1320-2017
Opinion Judge:LEAHY, J.
Judge Panel:Leahy, Shaw Geter, Kenney, III, James A. (Senior Judge, Specially Assigned), JJ.
Case Date:March 13, 2019
Court:Court of Special Appeals of Maryland



MARK S. DEVAN, et al.

No. 1320-2017

Court of Special Appeals of Maryland

March 13, 2019

Circuit Court for Charles County Case No. 08-C-16-002735

Leahy, Shaw Geter, Kenney, III, James A. (Senior Judge, Specially Assigned), JJ.



This appeal arises from a foreclosure action initiated by Wells Fargo Bank, N.A. ("Wells Fargo"), through its substitute trustees, Mark S. Devan, Thomas P. Dore, Brian McNair, and Angela Nasuta (collectively "Appellees" or "Trustees") against Nicole Rena McCrea ("Appellant") on real property located at 12742 Turtle Dove Place, Waldorf, Maryland ("the Property"). After receiving a loan modification on her mortgage with Wells Fargo under the Home Affordable Modification Program ("HAMP") in 2010, McCrea defaulted in June 2014.

After filing a Notice of Intent to Foreclose on May 23, 2016, the Trustees instituted the foreclosure action in the Circuit Court for Charles County on October 19, 2016. McCrea contested the foreclosure and sought to pursue foreclosure alternatives through mediation, which suspended temporarily the pending foreclosure action. In December 2016, McCrea again applied for a HAMP loan modification. Wells Fargo determined she was ineligible under HAMP, but allowed her to participate in its own modification program, which required her to complete a trial-payment period.

On January 18, 2017, McCrea and Wells Fargo attended postfile mediation, at which the parties failed to resolve the pending foreclosure. Despite the failed mediation, McCrea successfully completed her trial-payment period for the Wells Fargo loan modification. On April 17, 2017, Wells Fargo notified McCrea that it approved her loan modification, which would be finalized upon her submission of a signed loan modification agreement ("the Agreement") by May 2, 2017. Rather than signing the Agreement, McCrea submitted a complaint to the Consumer Financial Protection Bureau ("CFPB") and sought an independent review of Wells Fargo's previous decision to deny McCrea a HAMP loan modification. The Trustees ultimately filed a foreclosure bond with the circuit court on July 21, 2017. On August 10, 2017-the day before the scheduled foreclosure sale- McCrea field a pro se motion to stay and dismiss the foreclosure action. The circuit court denied McCrea's motion and she timely appealed, presenting three questions for our review, which we have rephrased and consolidated into the following two1:

I. Did McCrea's motion to stay and dismiss the foreclosure action assert

(A) good cause for the untimely filing and (B) meritorious defenses against Wells Fargo and the Trustees?

II. Did the circuit court abuse its discretion in denying McCrea's motion to stay and dismiss the foreclosure proceedings prior to the submission of the Trustees' opposition to the motion?

We hold that the trial court did not abuse its discretion in denying the motion because McCrea failed to establish good cause for the untimely filing of the motion and because McCrea failed to state with particularity the factual bases of the defenses asserted against the validity of the lien or the lien instrument and the right of the Trustees to foreclose. Further, even if the circuit court denied McCrea's motion before the Trustees filed a response, any error was harmless because it caused her no prejudice.


A. The Deed of Trust

On March 7, 2007, McCrea executed a Deed of Trust to secure a $219, 000 mortgage for the Property.2 Originally, in November 2010, Wells Fargo approved McCrea for a loan modification under HAMP ("2010 HAMP loan modification").3 The agreement for the 2010 HAMP loan modification indicated that the modified principal balance of the Note was $200, 505.10, with interest accruing as of November 1, 2010, and modified monthly payments beginning on December 1, 2010.

B. Foreclosure Proceedings

1. McCrea's Default

On June 2, 2014, McCrea defaulted on the 2010 HAMP loan modification. In May 2016, Wells Fargo sought to foreclose on the deed of trust based on the June 2014 default and appointed Appellees as substitute trustees in October. 4 According to the Notice of Intent to Foreclose, McCrea had made payments up until June 2, 2014, which applied to the May 2014 payment period. The Trustees subsequently filed an order to docket suit and a final loss mitigation affidavit in the Circuit Court for Charles County on October 19, 2016. McCrea requested postfile foreclosure mediation on October 27, 2016, to avoid foreclosure and determine her qualification for a loan modification or other foreclosure alternative. The mediation process suspended the foreclosure proceedings as of November 4, 2016. The parties participated in mediation before the Office of Administrative Hearings on January 18, 2017; according to the foreclosure mediator's notification of status filed just two days later, on January 20, "no agreement was reached."

2. The HAMP Denials

During the month prior to the foreclosure mediation-December 2016-McCrea, again, sought mortgage assistance, which yielded two responses from Wells Fargo. In a letter dated December 27, 2016, Wells Fargo informed McCrea she was ineligible for both a HAMP Tier 1 loan modification because she had "reached the allowable number of modifications" and a Tier 2 loan modification because her "proposed monthly modified payment would be more than 42% of [her] monthly income." In a second letter, also dated December 27, 2016, Wells Fargo offered McCrea a loan modification program through its own long-term mortgage assistance program, subject to McCrea's successful completion of a "trial period plan" consisting of monthly trial payments of $803.79. The offer described the "modification process" as follows: We can finalize your modified loan terms after you successfully complete your trial plan. At that time we will send you a loan modification agreement ("Modification Agreement"), which will reflect the terms of your modified loan. You will need to sign and promptly return to us both copies of the Modification Agreement or your loan cannot be modified.

(Emphasis added). Despite receiving this offer, McCrea appealed Wells Fargo's denial of

HAMP Tier 1 and Tier 2 loan modifications, on January 15, 2017. She alleged that she had one prior HAMP modification and that her disqualification from a Tier 2 loan modification was "unsupported." On January 20, 2017, Wells Fargo informed McCrea that its decision to deny HAMP modifications had not changed.

3. The Agreement

On April 17, 2017, Wells Fargo notified McCrea that she had successfully completed the trial plan and had been approved for the Wells Fargo loan modification. The notice indicated that the terms of the Agreement for the Wells Fargo loan modification would not apply until McCrea signed and returned the Agreement by May 2, 2017. The Agreement stated that "[i]f the Borrower's Loan [wa]s currently in foreclosure, the Lender w[ould] attempt to suspend or cancel the foreclosure action upon receipt of the first payment" under the Agreement. The Agreement indicated, however, that if the "Borrower does not return a properly signed modification Agreement by th[e due] date and make all payments pursuant to the trial plan Agreement . . . Wells Fargo Home Mortgage may deny or cancel the modification."

4. CFPB Appeal

Meanwhile, McCrea submitted a complaint to the CFPB on May 3, 2017, seeking an independent review of Wells Fargo's December 5 decision denying her a HAMP loan modification. In its response, dated June 20, 2017, Wells Fargo maintained that McCrea's account "was handled properly and no adjustments [we]re needed." Specifically, Wells Fargo explained that it reviewed McCrea's account for mortgage assistance options five times between September 2014 through July 2017, which revealed McCrea's ineligibility for another HAMP Tier 1 modification because she had previously been approved for one. Upon further review, Wells Fargo determined that McCrea "still didn't qualify for HAMP assistance." Additionally, Wells Fargo reiterated that it had not yet received a signed Agreement, and acknowledged that, although the previously initiated foreclosure action had been suspended for the mediation process, the loan was "subject to be removed from suspension and the foreclosure action w[ould] move forward" if McCrea did not accept and/or return the signed Agreement. (Emphasis added). McCrea never submitted a signed modification agreement to Wells Fargo.

5. Motion to Stay and Dismiss Foreclosure Action

The Trustees subsequently...

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