Clark v. Bank of America, N.A., 561 F.Supp.3d 542

Background

Clark refinanced a Maryland home loan with Bank of America (BofA) in 2005 (escrow interest paid) and again in 2010 and 2013; at some point between 2005 and 2010 BofA adopted a policy of not crediting interest on escrow accounts.
Clark’s 2013 Deed of Trust promised compliance with "applicable law," stated lender not required to pay interest unless required by law or writing, and contained a notice-and-cure (pre‑suit notice) provision.
Clark received Annual Escrow Statements (2014–2018) showing no interest credited; she filed this putative class action in November 2018 alleging breach of contract, violation of Md. Comm. Law § 12‑109 (interest on escrow accounts), MCPA (Md. Code § 13‑301), and unjust enrichment.
BofA moved for summary judgment; Clark opposed arguing the notice-and-cure clause is inapplicable/ambiguous/futile, § 12‑109 implies a private right, MCPA claims survive under continuing harm and for recent annual statements, and unjust enrichment applies.
The district court granted summary judgment to BofA on all counts, denied class certification as moot, and entered judgment for the defendant.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Breach of contract — application of notice‑and‑cure clause	Clark: clause inapplicable because breach enforces statutory duty; alternatively clause ambiguous or excused as futile	BofA: clause is a condition precedent to suit and Clark did not comply	Court: clause applies to Clark’s contract claim; no ambiguity shown and futility not established — summary judgment for BofA
2) Whether Md. Comm. Law § 12‑109 creates an implied private right of action	Clark: statute benefits borrowers and implies a private remedy (no other effective remedy)	BofA: statute contains no express remedy; silence and statutory scheme weigh against implying a private right	Court: applied Maryland three‑part test and found no implied private right — summary judgment for BofA
3) MCPA (§ 13‑301) — timeliness and actionable statements	Clark: continuing harm tolls limitations; alternatively recent Annual Escrow Statements (2016–2018) are new actionable misrepresentations/omissions she relied on	BofA: claims based on 2013 closing are time‑barred (3‑year statute); Annual Statements were accurate (showed no interest) and Clark did not show detrimental reliance or inflated payments	Court: continuing‑harm doctrine inapplicable; claims tied to 2013 closing are time barred; 2016–2018 statements not shown to be deceptive or relied upon — summary judgment for BofA
4) Unjust enrichment	Clark: BofA enriched by earning "float" on escrow funds and retained benefit inequitable	BofA: no evidence of inequitable gain or that Clark conferred a benefit beyond escrow services provided	Court: Clark presented no evidence to defeat summary judgment — claim dismissed

Key Cases Cited

Laurel Race Course, Inc. v. Regal Constr. Co., 274 Md. 142 (Md. 1975) (contractual condition precedent/notice requirements)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard — "scintilla" rule)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (view facts in light most favorable to nonmovant at summary judgment)
Baker v. Montgomery County, 427 Md. 691 (Md. 2012) (Maryland test for implying private cause of action)
Poffenberger v. Risser, 290 Md. 631 (Md. 1981) (accrual and discovery rule for statutes of limitation)
MacBride v. Pishvaian, 402 Md. 572 (Md. 2007) (continuing harm doctrine)
Hill v. Cross Country Settlements, LLC, 936 A.2d 343 (Md. 2007) (elements of unjust enrichment)