Norris v. PNC Bank
| Docket Number | Civil Action ELH-20-3315 |
| Decision Date | 26 May 2023 |
| Parties | AMANDA NORRIS, et al., Plaintiffs, v. PNC BANK, N.A., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
The self-represented plaintiffs, Amanda Norris and Joseph Norris III, are the owners of a house located in Baltimore County (the “Property”). They filed a verified Complaint against defendant PNC Bank, N.A. (“PNC”), which held the mortgage to the Property at the relevant time, and Safeguard Properties Management, LLC (“Safeguard”), a property preservation services company. ECF 2 (the “Complaint”); ECF 1-2 (same). They appended several exhibits to the suit.[1]
In particular, plaintiffs allege breach of contract (Count One) trespass (Count Two), and invasion of privacy/intrusion upon seclusion (Count Three).[2] The claims arise from defendants' inspection of the Property following the default, and their efforts to secure it, based on the claim that the mortgage loan was in default and the Property was vacant.
The case is hotly contested, and the Court has issued several written decisions addressing various issues. See e.g., ECF 94, ECF 111, ECF 126, ECF 156, ECF 185. The opinions include an 81-page Memorandum Opinion (ECF 156) and Order (ECF 157) granting summary judgment to defendants in part and denying summary judgment in part. Trial is scheduled to begin on June 7, 2023. ECF 179; ECF 205, ECF 229.[3]
Motions in limine were due by March 3, 2023, and were set to be heard on May 19, 2023. See ECF 179; ECF 180. Safeguard filed an omnibus motion in limine. ECF 189 (“Safeguard's Motion”). Plaintiffs responded (ECF 206) and Safeguard replied. ECF 217. Additionally plaintiffs filed a motion in limine seeking to exclude from trial certain photographs of the Property. ECF 192 (“Plaintiffs' Motion”). Defendants responded (ECF 195) and plaintiffs replied. ECF 198. And, plaintiffs filed a renewed motion for belated disclosure of experts. ECF 199 (the “Renewed Motion”). Defendants oppose the Renewed Motion. ECF 200. Plaintiffs did not reply.
The Court held a hearing on May 19, 2023, which unexpectedly resumed on May 24, 2023. Argument was presented on the motions.[4] For the reasons that follow, I shall grant Safeguard's Motion in part and deny it in part. And, I shall deny Plaintiffs' Motion and their Renewed Motion.
Plaintiffs, who are married, are the owners of a house in the Windsor Mill area of Baltimore County. ECF 1-2, ¶ 1. According to Sarah Greggerson, a PNC Mortgage Officer, at the relevant time PNC held and serviced plaintiffs' mortgage loan (the “Loan” or the “Mortgage”) for the
Property. ECF 110-4 (Greggerson Decl.), ¶¶ 1, 3-5; see also ECF 1-2, ¶ 2.
Plaintiffs obtained the Mortgage on June 23, 2003, in the amount of $137,660.00, from
National City Mortgage Co. d/b/a Accubanc Mortgage, a division of National City Bank (“National”). ECF 1-2 at 13. The Loan was evidenced by a promissory note, payable to National. Id.; see ECF 1-2 at 25-26 (the “Note”); see also ECF 110-4, ¶¶ 3-5. The Note is secured by a Deed of Trust, which is recorded. ECF 110-4, ¶ 3; ECF 1-2 at 14; ECF 1-2 at 27-38 (the “Deed of Trust”).
PNC is the successor by merger to National. ECF 1-2 at 2, 14. Therefore, PNC is the current beneficiary of the Deed of Trust. Id. at 14.
On or about July 1, 2017, plaintiffs defaulted on the Mortgage. Id. ¶ 4. On September 18, 2017, PNC sent plaintiffs a Notice of Intent to Foreclose, and a foreclosure action was filed in the Circuit Court for Baltimore County on January 11, 2018. See ECF 1-2 at 12; 47-50.
Of pertinence here, the Deed of Trust includes the following provision, which states, in part, as follows, ECF 1-2 at 30 (boldface in original):
5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds .... Borrower shall not commit waste or destroy, damage or substantially change the Property or allow the Property to deteriorate, reasonable wear and tear excepted. Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant or abandoned Property....
In connection with the default, PNC retained Safeguard, a property preservation services company, to implement measures to inspect and protect the Property. ECF 1-2, ¶¶ 6-7, 40. PNC describes Safeguard as an “independent contractor.” ECF 110-1 at 4. Safeguard describes itself as “an agent of PNC and a third-party beneficiary of the Deed of Trust.” ECF 109-1 at 3.
At the time, Safeguard had a “Master Services Agreement” (“MSA”) with PNC, governing the services it provided for PNC. See ECF 136-2 at 15-45. A provision of the MSA stated: “[Safeguard] understands it shall serve as an independent contractor, and under no circumstances shall it be, or be deemed to be, a partner, agent, servant, distributor, or employee of [PNC] in its performance hereunder.” Id. at 22. Of relevance here, the MSA provides for visual exterior inspection and, in some cases, interior inspection and protection of properties. Id. at 43; see also id. at 5.
In an earlier submission, PNC asserted, and plaintiffs did not contest, that the Mortgage is insured by the Federal Housing Administration (“FHA”), and therefore subject to FHA requirements. ECF 110- 1 at 2, 4 n.1. PNC directed the Court's attention to FHA Mortgagee Letter 2016-02, which “consolidates and updates property preservation and protection (P&P) guidance for properties securing FHA-insured mortgages.” FEDERAL HOUSING ADMIN. MORTGAGEE LETTER 2016-02 at 1 (Feb. 5, 2016), https://www.hud.gov/sites/documents/16-02ML.PDF. Mortgagee Letter 2016- 02 provides: “The mortgagee [i.e., PNC] must preserve and protect all vacant properties securing FHA-insured mortgages in default or in foreclosure.” Id. at 2. And, it enumerates various requirements for doing so. See id. at 1-19.
Plaintiffs allege that agents of defendants unlawfully entered their home several times between October and December 2017, under the pretext that it was vacant and supposedly to protect the Property. ECF 1-2, ¶ 7. At the hearing on May 24, 2023, they asserted that defendants unlawfully took possession of the home by changing the locks and barring their entry. In the course of defendants' entry into the home, defendants allegedly stole, damaged, and destroyed personal property of plaintiffs, and also damaged the house itself. Id. The parties dispute the extent to which either plaintiff actually resided at the Property in the fall and winter of 2017, when the entries occurred.
Safeguard propounded interrogatories to Ms. Norris and to Mr. Norris. ECF 109-8 (Ms. Norris's Resps. to Safeguard's First Interrogs., the “Answers”); ECF 189-2 (Mr. Norris's Resps. to Safeguard's First Interrogs.). Ms. Norris was asked to identify all facts and documents supporting plaintiffs' contention that the Property was not vacant at the relevant time. ECF 109-8 at 6. She responded: “[T]o the best of my recollection, knowledge and belief and without waving objections, please see Maryland Property Code 7-105, 7-105.1, 7-105.18.” Id.
Mr. Norris was asked to provide “the name, address and phone number of every person, other than a person intended to be called as an expert witness at trial, having personal knowledge of the facts material to the cause or circumstances concerning the incident referred to in [the] Complaint . . .” ECF 189-2 at 1. Mr. Norris only identified Ms. Norris. Id. at 2.
Plaintiffs also provided a list of personal property that they assert was stolen or destroyed by defendants, along with dollar values. ECF 109-8 at 7-8; see also ECF 189-2 at 2-3. These include several “signed” first edition books; a piggy bank belonging to their son, containing $600 in cash;[6] a car worth $3,500; a riding lawnmower; a washing machine; stemware and china; items of clothing; a statue by the sculptor Frederic Remington, allegedly worth $1,200; and other items. According to plaintiffs, at the time that the items were stolen, damaged, or destroyed, the total value was approximately $9,600. ECF 109-8 at 7-8; see also ECF 189-2 at 2-3.
As to the piggy bank, Ms. Norris testified that $400 of the cash in the piggy bank consisted of $100 dollar bills given to plaintiffs' son by his grandparents when he was born. ECF 136-1 at 16 (Tr. at 108).
Furthermore, Ms. Norris claims that defendants wrote a phrase (“Basement 55 yrds”) on a Valentine's Day card from their son. ECF 109-8 at 9. She also asserts that individuals “riffled through [her] intimate apparel.” Id.
The car in issue is a 1999 Toyota Avalon, about 18 years old at the relevant time. Plaintiffs claim that it was worth either $3,000 or $3,500 when it was “destroyed” by defendants. See id. at 7; see also ECF 189-2 at 3; ECF 136 at 10-11.[7] The value was derived from the Kelly Blue Book. ECF 136 at 10-11; ECF 136-1 at 19 (Tr. at 119-20). Ms. Norris testified that electronics were removed from the vehicle, the seats were damaged, and the glove compartment was accessed. ECF 136-1 at 19-20 (Tr. at 119-22). However, Ms. Norris testified that plaintiffs never took the car to be repaired, and she did not know how much that would cost. Id. at 20 (Tr. at 121-22). Notably, Mr. Norris testified that the car was inoperable at the time of the entries, and remained inoperable as of his deposition in May 2021. ECF 109-3 at 1-2 (Tr. at 26-28).
In addition, plaintiffs asserted in their answers to interrogatories that the Property depreciated in value in the amount of $234,000. ECF 109-8 at 8; ECF 189-2 at 4. But, they did not provide the overall value of the Property. And, they listed further damage to the Property,...
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