Background

• Marshall, a Baltimore resident, borrowed $252,000 from Savings First Mortgage in a reverse mortgage and closed with fees including an origination fee and a correspondent fee.
• Savings First assigned the loan to Nutter at closing; Nutter table-funded the loan under a preexisting agreement with Savings First.
• Marshall sued Nutter in federal court, alleging Nutter conspired with Savings First and other brokers to violate Md. Code Ann., Com. Law § 12-804(e), which prohibits finder’s fees by mortgage brokers when the broker is the lender.
• District court granted summary judgment, applying Shenker v. Laureate Education and holding Nutter could not be liable because it was not a mortgage broker and thus not legally capable of violating § 12-804(e).
• Marshall appeals the dismissal, arguing Shenker was misapplied and that a non-broker can be liable for civil conspiracy to violate the Finder’s Fee Act.
• Court affirms district court, holding that under Shenker a defendant must be legally capable of committing the underlying tort, and § 12-804(e) only imposes duties on mortgage brokers; Nutter, as funding lender, was not legally capable of violating the Act.

Issues

Key Cases Cited

• Shenker v. Laureate Education, Inc., 983 A.2d 408 (Md. 2009) (liability for civil conspiracy requires legal capability to commit the underlying tort)
• Alleco Inc. v. Harry & Jeanette Weinberg Found., Inc., 665 A.2d 1038 (Md. 1995) (conspiracy is not a standalone tort; requires underlying tort and actual damage)
• Kimball v. Harman, 34 Md. 407 (Md. 1871) (conspiracy rests on actual act causing damage, not mere agreement)
• BEP, Inc. v. Atkinson, 174 F. Supp. 2d 400 (D. Md. 2001) (discusses legal capability for conspiracy liability in Maryland context)