Colbert-Dorsey et al v. Wells Fargo Bank N.A.

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
In Re: 	Case No. 07-10744PM
Chapter 13
Clayonia T. Colbert-Dorsey,
Debtor.
Clayonia T. Colbert-Dorsey and Neal 	AP No. 07-00726PM
Eugene Dorsey,
Plaintiffs,
v.
Goldman Sachs & Company and
Wells Fargo Bank N.A.
Defendants.
MEMORANDUM OF DECISION
This matter came before the court on the Motion for Partial Summary
Judgment and/or Partial Dismissal filed by the Defendant, Wells Fargo Bank, N.A.
("Wells Fargo" or "Defendant"), and the Response filed by the Plaintiffs, Clayonia T.
Colbert-Dorsey and Neal Eugene Dorsey. The court granted the Defendant's Motion
in open court at a hearing held on July 31, 2008, the basis for such ruling is set forth
herein.
Date signed August 11, 2008
Entered: August 12, 2008 Case 07-00726 Doc 46 Filed 08/12/08 Page 1 of 3

1 Goldman Sachs & Company was dismissed as a plaintiff by consent on
April 29, 2008.
The Plaintiffs filed a four count complaint.1 The Motion addressed Count I and
the alleged violation of the Truth in Lending Act ("TILA"). 15 U.S.C. § 1601
et seq.
The Plaintiffs complained that, in connection with a loan transaction consummated in
2004, the Defendant failed to provide a TILA-compliant disclosure statement, entitling
the Plaintiffs to rescind the transaction and resulting in cancellation of the
Defendant's security interest, damages and attorney's fees.
TILA requires creditors to make certain specific disclosures to consumers in
credit transactions. Certain charges in the subject transaction were excluded from the
TILA statement -- an appraisal fee, a credit report fee, an abstract/title search charge,
a title examination fee, title insurance charges, walk-thru charges,
judgment/liens/court copy charges, a recording charge and the state recordation tax.
In support of the Defendant's position that these charges were
bona fide and
reasonable, thereby rendering their exclusion from the TILA statement proper, the
Defendant submitted two affidavits -- one from Jenifer Stick, a real estate appraiser,
and the other from Michael Wyatt, an attorney whose practice focuses on real property
law. In opposition, the Plaintiffs merely submitted an affidavit from the
Debtor/Plaintiff, Clayonia T. Colbert-Dorsey, affirming that she and her spouse were
assessed certain charges at closing and that those charges are neither
bona fide nor
reasonable.
Federal Rule of Civil Procedure 56(c), made applicable in bankruptcy
proceedings by Federal Rule of Bankruptcy Procedure 7056, renders summary
judgment appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). There exists no
genuine issue as to any material fact asserted herein based upon the record before this
court.
Case 07-00726 Doc 46 Filed 08/12/08 Page 2 of 3

Federal Rule of Civil Procedure 56(e)(2) provides:
Opposing Party's Obligation to Respond. When a motion for summary
judgment is properly made and supported, an opposing party may not rely
merely on allegations or denials in its own pleading; rather, its response must --
by affidavits or as otherwise provided in this rule -- set out specific facts
showing a genuine issue for trial. If the opposing party does not so respond,
summary judgment should, if appropriate, be entered against the party.
Despite filing a document entitled "Affidavit," the Plaintiffs effectively failed to
respond to a properly made and supported motion. They failed to set out specific facts
showing a genuine issue for trial and simply restated the allegations set forth in the
complaint. This court cannot accept Clayonia T. Colbert-Dorsey's lay opinion on this
issue. There has been no showing whatsoever that she has any personal knowledge of
whether the various fees were
bona fide or reasonable.
See United States v. Garcia,
291 F.3d 127, 140 (CA2 2002);
United States v. Glenn, 312 F.3d 58, 66-67 (CA2 2002).
In the course of the argument, the attorney for the Plaintiffs argued for the first
time that they were frustrated by the Defendant's failure to cooperate in conducting
discovery. But this dilatory invocation of the protection of Rule 56(f) is not sufficient
cause for the court to continue the hearing. In the absence of a credible affidavit
under Rule 56(e) or any affidavit under Rule 56(f), the court finds no cause either to
deny or continue the motion.
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d
214, 244-245 (CA4 2002);
Hebert v. Wicklund, 744 F.2d 218, 222 (CA1 1984).
Accordingly, summary judgment in favor of the Defendant will be granted and
Count I of the complaint dismissed. An appropriate order will be entered.
cc: 	Clayonia T. Colbert-Dorsey and Neal Eugene Dorsey
Wells Fargo Bank N.A.
Counsel for the Dorseys
Counsel for Wells Fargo Bank N.A.
End of Memorandum
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