William Marshall v. James B. Nutter & Company

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1940

WILLIAM AUBREY MARSHALL,

Plaintiff - Appellant,

v.

JAMES B. NUTTER & COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Richard D. Bennett, District Judge.

(1:10-cv-03596-RDB)

Argued: May 14, 2014 Decided: July 10, 2014

Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD,

Jr., United States District Judge for the Western District of

North Carolina, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Wynn and Judge Conrad joined.

ARGUED: Martin Eugene Wolf, GORDON & WOLF, CHTD., Towson,

Maryland, for Appellant. Todd W. Ruskamp, SHOOK, HARDY & BACON

L.L.P., Kansas City, Missouri, for Appellee. ON BRIEF: Richard

S. Gordon, Benjamin H. Carney, Thomas M. McCray-Worrall, GORDON

& WOLF, CHTD., Baltimore, Maryland; Cyril V. Smith, William K.

Meyer, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, for

Appellant. Clayton T. Norkey, Benjamin M. Johnston, SHOOK,

HARDY & BACON L.L.P., Kansas City, Missouri, for Appellee.

NIEMEYER, Circuit Judge:

William Marshall, a resident of Baltimore, Maryland, who

borrowed $252,000 from Savings First Mortgage, LLC, in a reverse

mortgage transaction, commenced this action against James B.

Nutter & Company, which purchased the mortgage from Savings

First, alleging that Nutter was liable for conspiring with

Savings First to violate the Maryland Finder’s Fee Act.

Marshall alleged that Savings First collected $3,666 in fees

from him at closing, in violation of Md. Code Ann., Com. Law

§ 12-804(e), which prohibits a mortgage broker from “charg[ing]

a finder’s fee in any transaction in which the mortgage broker

. . . is the lender,” and that because Nutter funded the loan

pursuant to a preexisting agreement, it was liable as a civil

coconspirator.

The district court held that Nutter could not be a violator

of § 12-804(e) because that statute regulates only mortgage

brokers and Nutter was not a “mortgage broker” in the

transaction. The court concluded that because Nutter was not

“legally capable” of violating the Act, it could not, under

Shenker v. Laureate Education, Inc., 983 A.2d 408 (Md. 2009), be

held liable for conspiring with Savings First to violate the

Act. Accordingly, it granted Nutter’s motion for summary

judgment.

We agree and affirm.

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I

Following Savings First’s solicitation, Marshall entered

into a reverse mortgage transaction on September 11, 2008. A

reverse mortgage loan provides cash payments to the borrower

based on the equity that the borrower has in his house. At the

closing, Marshall executed a $252,000 note payable to Savings

First and a deed of trust on his house on Payson Street in

Baltimore to secure the note. Under the reverse mortgage, the

amount of the note covered the payment of Marshall’s prior

mortgage, a cash payment to him at closing of $6,639, and the

payment of future cash advances. It also covered the costs and

fees of the transaction, including the payment to Savings First

of a “loan origination fee” of $3,360 and a “correspondent fee”

of $305.56. All closing documents designated Savings First as

the lender.

During the closing, Savings First assigned the mortgage to

Nutter, which “table funded” the loan. Table funding is a term

of art referring to “a settlement at which a loan is funded by a

contemporaneous advance of loan funds and an assignment of the

loan to the person advancing the funds.” 12 C.F.R. § 1024.2.

Nutter’s table funding of Marshall’s loan was pursuant to its

prior agreement with Savings First “to underwrite and table fund

each Reverse Mortgage Loan” that Savings First made.

3

Marshall commenced this class action against Nutter in the

Circuit Court for Baltimore City on September 22, 2010, alleging

that Nutter had “conspired with mortgage brokers” to violate a

provision of the Maryland Finder’s Fee Act that prohibits a

mortgage broker from charging “a finder’s fee in any transaction

in which the mortgage broker . . . is the lender.” Md. Code

Ann., Com. Law § 12-804(e). He alleged that “Savings First

acted as both the mortgage broker and as the nominal mortgage

lender,” while “Nutter table-fund[ed] the mortgage loan and

act[ed] as the funding lender.” Thus, as alleged, the $3,665.56

in fees that Savings First charged Marshall were “finder’s fees”

collected in violation of § 12-804(e). Marshall did not,

however, name Savings First as a defendant. Rather, he sued

only Nutter, asserting that Nutter was liable for conspiring

with Savings First and other unnamed “mortgage brokers” to

violate the Act. Specifically, he alleged that Nutter conspired

“by reaching an agreement and understanding with mortgage

brokers to table-fund mortgage loan transactions . . . [in

which] brokers acted as both mortgage broker and lender, thereby

enabling brokers to charge unlawful finder’s fees.” 1 Marshall

1

Marshall also alleged that Nutter conspired to commit

unfair and deceptive trade practices, in violation of the

Maryland Consumer Protection Act, Md. Code Ann., Com. Law § 13-

303. That count, however, was voluntarily dismissed and is not

before us.

4

sought to represent a class of similarly situated borrowers and

demanded judgment of three times the amount of all finder’s fees

collected, plus attorneys’ fees and costs.

After removing the action to federal court and conducting

discovery, Nutter filed a motion for summary judgment on

Marshall’s conspiracy claim, which the district court granted.

In doing so, the court relied on Shenker, which held that “a

defendant may not be adjudged liable for civil conspiracy unless

that defendant was legally capable of committing the underlying

tort alleged.” 983 A.2d at 428. The district court concluded

that “only mortgage brokers are ‘legally capable’ of violating

the Maryland Finder’s Fee Act” and therefore that Nutter, which

the complaint alleged was a “funding lender” and not a mortgage

broker, could not be held liable for conspiring to violate the

Act.

From the district court’s final judgment dated July 22,

2013, Marshall filed this appeal. 2

2

Marshall has also filed a motion to certify the legal

questions addressed in this appeal to the Maryland Court of

Appeals. Because we find that Maryland law unambiguously

resolves those questions, we deny the motion. See Roe v. Doe,

28 F.3d 404, 407 (4th Cir. 1994) (“Only if the available state

law is clearly insufficient should the court certify the issue

to the state court”).

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II

Marshall contends that the district court “misinterpret[ed]

and misappli[ed] [the] Maryland Court of Appeals’ decision in

Shenker” to conclude “that there [can] be no civil conspiracy

liability by a non-broker for violation of the [Finder’s Fee

Act].” He asserts that the district court’s ruling “undermines

the very nature of conspiracy as a means of imposing vicarious

liability upon parties for all acts committed pursuant to an

agreement to commit a tort or violate a statute.” He urges us

to hold instead that Nutter did not need to act as a mortgage

broker to be legally capable of violating the Finder’s Fee Act

and that the district court therefore erred in entering judgment

in Nutter’s favor.

Nutter contends, on the basis of Shenker, that “a civil

conspiracy claim requires proof that the defendant was ‘legally

capable’ of committing the wrongdoing underlying the

conspiracy.” It argues that, because § 12-804(e) only applies

to mortgage brokers and because it did not function as a

mortgage broker, it was not legally capable of violating the

provision, as necessary to support a conspiracy claim.

Thus, the sole question presented is whether, under

Maryland law, a non-broker may be held liable for conspiring

with a mortgage broker to violate § 12-804(e), which states that

“[a] mortgage broker may not charge a finder’s fee in any

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transaction in which the mortgage broker . . . is the lender.”

Md. Code Ann., Com. Law § 12-804(e). 3

We begin by noting that the Finder’s Fee Act itself does

not prohibit conspiracy to collect unlawful finder’s fees, nor

does it provide a cause of action to recover for conspiracy to

violate the Act’s terms. Instead, the remedy section states

simply that “[a]ny mortgage broker who violates any provision of

this subtitle shall forfeit to the borrower the greater of: (1)

[t]hree times the amount of the finder’s fee collected; or (2)

[t]he sum of $500.” Md. Code Ann., Com. Law § 12-807 (emphasis

added). Thus, Marshall’s entitlement to relief must stem not

from the Finder’s Fee Act itself, but instead from Maryland

common law governing civil conspiracy.

Under Maryland law, civil conspiracy is defined as the

“combination of two or more persons by an agreement or

understanding to accomplish an unlawful act or to use unlawful

means to accomplish an act not in itself illegal, with the

further requirement that the act or the means employed must

result in damages to the plaintiff.” Hoffman v. Stamper, 867

A.2d 276, 290 (Md. 2005) (quoting Green v. Wash. Suburban

Sanitary Comm’n, 269 A.2d 815, 824 (Md. 1970)) (internal

3

We note that Nutter never argued that Savings First was

not a “mortgage broker” within the meaning of the Finder’s Fee

Act. Cf. Petry v. Prosperity Mortg. Co., ___ F.3d ___, No. 13-

1869 (4th Cir. July 10, 2014).

7

quotation marks omitted). In addition to proving an agreement,

“the plaintiff must also prove the commission of an overt act,

in furtherance of the agreement, that caused the plaintiff to

suffer actual injury.” Id. The agreement itself is not

actionable under Maryland law “but rather is in the nature of an

aggravating factor” with respect to the underlying tortious

conduct. Id. Indeed, the Maryland Court of Appeals has

consistently maintained that “conspiracy is not a separate tort

capable of independently sustaining an award of damages in the

absence of other tortious injury to the plaintiff.” Alleco Inc.

v. Harry & Jeanette Weinberg Found., Inc., 665 A.2d 1038, 1045

(Md. 1995) (quoting Alexander & Alexander Inc. v. B. Dixon

Evander & Assocs., 650 A.2d 260, 265 n.8 (Md. 1994)) (internal

quotation marks omitted). As the Alleco court explained:

There is no doubt of the right of a plaintiff to

maintain an action on the case against several, for

conspiring to do, and actually doing, some unlawful

act to his damage. . . . It is not, therefore, for

simply conspiring to do the unlawful act that the

action lies. It is for doing the act itself, and the

resulting actual damage to the plaintiff, that afford

the ground of the action.

Id. (quoting Kimball v. Harman, 34 Md. 407, 409-11 (1871))

(internal quotation marks and citation omitted); see also id.

(“‘No action in tort lies for conspiracy to do something unless

the acts actually done, if done by one person, would constitute

a tort’” (quoting Domchick v.Greenbelt Consumer Servs., Inc., 87

8

A.2d 831, 834 (Md. 1952)). Thus, civil conspiracy requires an

agreement, and an overt act in furtherance of the agreed-to

unlawful conduct that causes injury, as well as the legal

capacity of the conspirators to complete the unlawful conduct.

Building on this understanding of civil conspiracy, the

Maryland Court of Appeals held in 2009 that “a defendant may not

be adjudged liable for civil conspiracy unless that defendant

was legally capable of committing the underlying tort alleged.”

Shenker, 983 A.2d at 428. In Shenker, shareholders of Laureate

Education, Inc., alleged that the members of the company’s board

of directors had breached their fiduciary duties when

negotiating the price that the shareholders would receive in a

“cash out merger,” a type of merger where minority shareholders

are forced to take cash for their shares, thus freezing them out

of the merger. The shareholders also sued several third-party

investors who had joined two defendant board members in

acquiring the company, alleging that the third-party investors

were liable for conspiring with the board members in their

breach of their fiduciary duties. In dismissing the civil

conspiracy claim against the third-party investors, the Shenker

court explained:

“[T]ort liability arising from a conspiracy

presupposes that the coconspirator is legally capable

of committing a tort, that is, that [the

coconspirator] owes a duty to the plaintiff recognized

by law and is potentially subject to liability for

9

breach of that duty.” . . . “[A] cause of action for

civil conspiracy may therefore not arise if the

alleged conspirator, though allegedly a participant in

the agreement underlying the injury, was not

personally bound by the duty violated by the

wrongdoing.”

Id. at 428-29 (quoting Bahari v. Countrywide Home Loans, No. 05-

2085, 2005 WL 3505604, at *6 (D. Md. Dec. 16, 2005); BEP, Inc.

v. Atkinson, 174 F. Supp. 2d 400, 409 (D. Md. 2001)).

Consequently, the Shenker court concluded that “in Maryland,

liability for civil conspiracy based on the underlying tort of

breach of fiduciary duty (were it recognized) would require

proof that the defendant, although not committing personally the

underlying tort, was legally capable of committing the

underlying tort.” Id. at 429. Thus, the court held that the

shareholders’ civil conspiracy claim against the third-party

investors had been properly dismissed because the investors owed

no fiduciary duties to the shareholders and therefore could not

be legally liable for civil conspiracy. Id.

We conclude that the district court correctly applied

Shenker to Marshall’s civil conspiracy claim against Nutter.

Marshall sought to hold Nutter liable for conspiring with

Savings First and other mortgage brokers to violate § 12-804(e),

which prohibits mortgage brokers from charging finder’s fees in

any transaction in which they are also the lender. This

provision imposes a duty only on mortgage brokers, and therefore

10

only mortgage brokers are capable of violating it. Since it is

uncontested that Nutter was not functioning as a mortgage broker

but, as Marshall alleged in his complaint, as the “funding

lender,” Nutter was not legally capable of violating § 12-804(e)

and therefore, under Shenker, cannot be held liable for

conspiring to violate § 12-804(e).

To avoid this fairly straightforward conclusion, Marshall

contends that the district court improperly limited “conspiracy

claims solely to direct perpetrators of the underlying wrong.”

(Emphasis added). This argument, however, misconstrues the

district court’s ruling. The district court did not hold that

Nutter had to be a direct perpetrator of § 12-804(e); rather, it

held, in applying Shenker, that Nutter had to be “legally

capable” of committing such a violation before it could be held

liable for conspiracy. Because § 12-804(e) only regulates the

conduct of mortgage brokers, only mortgage brokers can violate

it.

Marshall also argues that the district court misapplied

Shenker because lenders like Nutter are in fact “legally

capable” of violating the Finder’s Fee Act. He contends, in

this regard, that the “[Finder’s Fee Act] regulates lenders, and

there is nothing standing in the way of a lender such as Nutter

acting as a ‘mortgage broker.’ Thus, Nutter is ‘legally

capable’ of violating the Act.” But the fact that Nutter could

11

hypothetically act as a mortgage broker in some transaction and

then be bound by § 12-804(e) is irrelevant. The duty alleged to

have been violated in this case was one imposed on mortgage

brokers to refrain from charging “a finder’s fee in any

transaction in which the mortgage broker . . . is the lender.”

Md. Code Ann., Com. Law § 12-804(e). As Nutter did not function

as a mortgage broker, but rather as a funding lender, Nutter was

“not personally bound by the duty violated by the wrongdoing”

and therefore could not be held liable for conspiring with

others to commit that wrongdoing. Shenker, 983 A.2d at 429

(quoting BEP, 174 F. Supp. 2d at 409) (internal quotation marks

omitted).

Finally, Marshall argues that Shenker’s “legally capable”

requirement is satisfied as long as the defendant owed the

plaintiff any duty of care. He maintains that Nutter owed him

and other borrowers duties of care in its capacity as a lender

under other provisions of the Finder’s Fee Act, as well as under

Maryland regulations and common law. But, as Shenker made

clear, the defendant must be “legally capable of committing the

underlying tort alleged.” 983 A.2d at 428 (emphasis added).

That Nutter was potentially subject to liability for breaching

other duties of care is irrelevant to whether it was legally

capable of committing the violation alleged by Marshall in this

case -- i.e., a violation of § 12-804(e).

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We thus affirm the district court’s judgment dismissing

Marshall’s claim that Nutter conspired to violate § 12-804(e) of

the Finder’s Fee Act.

AFFIRMED

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