Suburban Mortgage Associates, Inc. v. Merrill Lynch Mortgage Capital, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SUBURBAN MORTGAGE ASSOCIATES, 
INCORPORATED,
Plaintiff-Appellant,
v.  No. 01-2440
MERRILL LYNCH MORTGAGE CAPITAL,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-96-1718-DKC)
Argued: September 23, 2002
Decided: November 14, 2002
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and Claude M. HILTON, Chief United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion in which Chief Judge Wilkinson and Judge Traxler joined.
COUNSEL
ARGUED: Vincente L. Martinez, PATTON BOGGS, L.L.P., Wash-
ington, D.C., for Appellant. Warren H. Colodner, KIRKPATRICK &
LOCKHART, L.L.P., New York, New York, for Appellee. ON
2 SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE
BRIEF: Timothy A. Vanderver, Jr., PATTON BOGGS, L.L.P.,
Washington, D.C., for Appellant. Loren Schechter, KIRKPATRICK
& LOCKHART, L.L.P., New York, New York; Charles R. Mills,
KIRKPATRICK & LOCKHART, L.L.P., Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
HILTON, Chief District Judge:
This matter comes before the Court on appeal by Suburban Mort-
gage Associates, Inc. ("Suburban") to the district court’s decision to
grant summary judgment for Merrill Lynch Mortgage Capital, Inc.
("Merrill Lynch") on claims of fraud, negligent misrepresentation,
and breach of contract.
In 1993, Suburban entered into an exclusive conduit relationship
with PaineWebber.1 The agreement required Suburban to give
PaineWebber a right of first refusal on all conduit loans originated by
Suburban. This relationship continued from 1993 to early 1994. In
early 1994, Suburban began looking for another conduit partner in
order to expand into commercial lending and because it was dissatis-
fied with PaineWebber.
In March 1994, Suburban approached Merrill Lynch to form a new
mortgage conduit partnership; an initial meeting was arranged for
early May 1994 in San Francisco. At this meeting Suburban claims
that it disclosed the identities of its largest borrowers, William Fried-
man2 and John Doyle, and discussed their loan portfolios, to ensure
1
A conduit relationship is one in which a lender originates and sells
loans to a secondary purchaser. The secondary purchaser packages the
loans as collateral for its mortgage-backed securities.
2
Mr. Friedman had been the target of negative publicity and allegations
arising from his business dealings in the 1980s for Southmark, a real
estate company involved in a large number of failed loan transactions.
SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE 3
that Merrill Lynch was comfortable working with them. Suburban
also claims it disclosed the fact that its Executive Vice President, Pat-
rick Nolan, was formerly associated with DRG Financial, Inc.3 Mer-
rill Lynch contends that none of these names were mentioned at the
meeting.
Suburban claims that these disclosures did not deter Merrill Lynch
from forming a business relationship, and that Merrill Lynch stated
that Friedman’s business would not be a problem. Suburban contends
Merrill Lynch was eager to receive as much business as possible from
Suburban, and that because Merrill Lynch had just entered the conduit
business Suburban’s experience and expertise were assets.
Suburban and Merrill Lynch met again in New York on May 25,
1994, to further discuss the conduit partnership. Suburban claims that
it again discussed the nature of its business and the identity of its key
borrowers, and that Merrill Lynch was enthusiastic about working
with Suburban. Merrill Lynch claims that Suburban expressed frustra-
tion with PaineWebber, and that the parties simply agreed to discuss
the matter again.
During June 1994, Suburban and Merrill Lynch held two meetings
in Bethesda, Maryland, where they discussed underwriting and loan
processing issues. The parties exchanged forms used in preparing loan
packages, as well as a draft of an agreement pursuant to which Subur-
ban would originate mortgage loans. Later in June 1994, the parties
met in New York to review specific loans; Suburban claims that it
again discussed its borrowers, including Friedman. On June 21, 1994,
Merrill Lynch sent Suburban a draft letter of intent. Suburban states
that the two had an informal agreement that they would work together
as partners.
Meanwhile, Suburban began to withdraw from its relationship with
PaineWebber, which it claims was at Merrill Lynch’s request. In early
June 1994, Suburban notified PaineWebber of its desire to withdraw
from the conduit, and gave formal notice on June 28, 1994. Merrill
Lynch states that Suburban withdrew from the PaineWebber agree-
3
In the late 1980s, DRG Funding was accused of improprieties by the
Department of Housing and Urban Development.
4 SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE
ment because PaineWebber had ceased processing Suburban’s loans.
On July 6, 1994, PaineWebber agreed to consent to the withdrawal.
Also on July 6, 1994, Merrill Lynch issued commitments to pur-
chase loans for three properties from Suburban: Prado Bay, Southern
Elms, and Oakland Square. Two of these loans were made to borrow-
ers affiliated with Friedman. Merrill Lynch claims that Suburban
never disclosed Friedman’s involvement, and that the commitments
were conditioned upon all information being satisfactory. Upon dis-
covering the connection to Friedman, Merrill Lynch revoked its pur-
chase commitments for two loans associated with him on July 16,
1994, and Suburban claims that Merrill Lynch demanded that it sever
ties with Friedman if it wanted to continue the business partnership.
Merrill Lynch claims that it merely told Suburban it would not pur-
chase any Friedman loans, based on both firsthand knowledge of
Friedman’s misconduct as well as his reputation for wrongdoing in
the real estate industry.
Suburban asked whether the ban on Friedman included Doyle, rep-
resenting to Merrill Lynch that the relationship between the two men
was indirect. Merrill Lynch stated that it would first have to investi-
gate the Friedman-Doyle business relationship. Pursuant to this con-
versation, Nolan drafted a memorandum to Merrill Lynch, which
stated that the only connection between Doyle and Friedman was
indirect in that Doyle was a principal shareholder and president of an
advisory company connected to Friedman; this memorandum was
intended to aid Merrill Lynch in making its decision. Merrill Lynch
conducted a subsequent investigation which revealed that Doyle and
Friedman were closely related business partners, and that the proper-
ties Suburban sought Merrill Lynch to refinance were co-owned by
Doyle and Friedman. Despite Merrill Lynch’s refusal to work with
Doyle, Suburban continued to work on Doyle properties until Novem-
ber 1994.
Subsequent investigations by Merrill Lynch also revealed that both
Nolan and Suburban had close relationships with Friedman. More-
over, when Merrill Lynch contacted PaineWebber about Suburban,
PaineWebber accused Suburban, Nolan, and Friedman of engaging in
improper conduct.
SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE 5
Suburban claims that Merrill Lynch assured it on multiple occa-
sions that as long as it discontinued business with Friedman, the con-
duit partnership would continue. On August 15, 1994, Suburban
signed a formal Correspondent Agreement and a Mortgage Loan Pur-
chase Agreement; the Correspondent Agreement expressly provided
that the contract was terminable at will without cause at any time by
either party. Suburban claims that from August through October
1994, it was in daily contact with Merrill Lynch and spent great time
and effort drafting underwriting and closing documents for their con-
duit partnership.
In early November 1994, Suburban closed its first loan for the Mer-
rill Lynch conduit. On November 14, 1994, Merrill Lynch told Subur-
ban by phone that it had decided to terminate the Correspondent
Agreement based on its failure to disclose the relationships with
Friedman, his associate Gene Phillips, and Doyle, as well as conduct
by Nolan.
On May 7, 1996, Suburban brought its Original Complaint against
Merrill Lynch, which alleged six counts: (I) breach of the Prado Bay
Purchase Commitment, (II) breach of the Southern Elms Purchase
Commitment, (III) breach of the Bloomfield Convenience Commit-
ment, (IV) negligent misrepresentation, (V) breach of the Correspon-
dent Agreement, and (VI) breach of the duty of good faith and fair
dealing. Merrill Lynch removed the case from the Circuit Court for
Montgomery County, Maryland to the United States District Court for
the District of Maryland.
On July 12, 1996, Merrill Lynch moved to dismiss the Original
Complaint. The district court orally dismissed Counts V and VI on
October 23, 1996, and issued a written order and opinion on March
27, 1997.4 On April 21, 1998, Merrill Lynch moved for partial sum-
mary judgment on Counts I, II, and IV of the Original Complaint,
which the district court granted on February 2, 1999. Suburban moved
for reconsideration, which the district court denied.
4
Suburban is not appealing the dismissal of Counts V and VI of the
Original Complaint.
6 SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE
While the district court was considering Merrill Lynch’s Motion
for Partial Summary Judgment, Suburban moved to amend Count V
of the Complaint. The district court granted Suburban’s motion on
February 2, 1999, and Suburban filed an amended complaint on Feb-
ruary 23, 1999 adding Count V for fraud.
On May 15, 2000, Merrill Lynch moved for partial summary judg-
ment on Suburban’s Count V, which the district court granted on
December 28, 2000. Suburban moved for reconsideration, which the
district court denied. The district court dismissed Count III on Octo-
ber 28, 2001 pursuant to a Stipulation of Dismissal. Suburban filed
a timely Notice of Appeal on November 28, 2001.
The issues presented for appellate review are whether the district
court erred by granting summary judgment for Merrill Lynch regard-
ing Suburban’s claims for fraud, negligent misrepresentation, and
breach of the purchase commitments. Because Suburban’s claims are
without merit, we affirm.
This Court reviews the district court’s grants of summary judgment
de novo. Providence Square Assocs. v. G.D.F., Inc., 211 F.3d 846,
850 (4th Cir. 2000). A party cannot rely on mere allegations in its
pleadings; rather, "[o]nly disputes over facts that might affect the out-
come of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also JKC Holding Co. v. Washington Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
I.
Suburban failed to meet the heightened burden of proof that Mary-
land law requires to prove a fraud claim. Suburban was obligated to
come forward with clear and convincing evidence demonstrating that
a reasonable jury could find for Suburban as to each of the essential
elements of its claim. VF Corp. v. Wrexham Aviation Corp., 715 A.2d
188, 193 (Md. 1998). To prove fraud under Maryland law, Suburban
was required to prove that Merrill Lynch made a false statement of
material fact to Suburban; that Merrill Lynch knew the statement was
false or was recklessly indifferent to its truth; that Merrill Lynch
intended to defraud Suburban; that Suburban justifiably relied on the
SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE 7
misrepresentation; and that Suburban suffered injury resulting from
the misrepresentation. Id. To establish fraud based on concealment,
Suburban had to prove that Merrill Lynch owed a duty to disclose the
fact allegedly concealed. Green v. H&R Block, Inc., 735 A.2d 1039,
1059 (Md. 1999).
Suburban’s evidence fails to demonstrate that Merrill Lynch made
a false statement of material fact. Suburban first complains that dur-
ing the first meeting in May 1994, two representatives of Merrill
Lynch did not express concern about either Friedman or Doyle. In this
factual context, the alleged comments can only be viewed as an
expression of opinion at the time, and do not constitute statements of
material fact which Suburban could rely upon. Steigerwald v. Brad-
ley, 136 F. Supp. 2d 460, 470 (D. Md. 2001) (noting that a statement
of opinion, estimate, or mere puffing cannot form the basis of an
intentional misrepresentation claim); Snyder v. Herbert Greenbaum
Assocs., 380 A.2d 618, 621 22 (Md. 1977). Moreover, Suburban has
failed to prove any fraudulent intent arising from a statement made at
a preliminary meeting between the two parties. See Paramount Bro-
kers, Inc. v. Digital River, Inc., 126 F. Supp. 2d 939, 951 (D. Md.
2000) (finding that statements made during party negotiations were
not fraudulent because they related to the future course of the busi-
ness relationship). Mere enthusiasm about a potential business rela-
tionship cannot form the basis for a fraud claim.
Suburban next claims that in July 1994 Merrill Lynch misrepre-
sented the future impact that Suburban’s relationship with Friedman
would have on the conduit relationship. The district court held that
Merrill Lynch’s alleged statements regarding Friedman in July 1994
were true at that time, since as of mid-July there was no evidence that
Merrill Lynch intended to terminate the relationship with Suburban.
Rather, Merrill Lynch did not decide to stop working with Suburban
until after the statements were made, when Merrill Lynch had both
investigated and worked closely with Suburban. These statements,
which went to the parties’ expectations as to the conduit relationship,
cannot form the basis of a fraud claim. See Abt Assocs. v. JHPIEGO
Corp., 104 F. Supp. 2d 523, 537 (D. Md. 2000) (rejecting plaintiff’s
attempt "to prove fraud inferentially by asserting that defendant’s
statements concerning its expectations as to [the parties’ business
8 SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE
relationship] were never realized and that they therefore must have
constituted fraud").
Finally, Suburban alleges that after the Correspondent Agreement
had been executed, Merrill Lynch assured Suburban that they were
"members of the same team" and that "the conduit relationship was
secure." Suburban has only pointed to one instance in October 1994
to support its argument, where it claims that a Merrill Lynch represen-
tative stated that the relationship "was going peachy," but could not
cite the specific words used by Merrill Lynch. Such general com-
ments of impression or opinion do not rise to the level of affirmative
misrepresentation necessary to sustain a fraud claim as a matter of
law. See JKC Holdings, 264 F.3d at 469 (stating that opinions and
predictions of what a party might hope or anticipate will happen are
not statements of material facts that can sustain an action for fraud).
Suburban next argues that Merrill Lynch concealed material facts
from it, namely Merrill Lynch’s failed business dealings with Fried-
man and its subsequent decision to investigate Suburban in late July
or early August. However, because Suburban failed to prove by clear
and convincing evidence that Merrill Lynch owed any duty to Subur-
ban, the district court properly dismissed Suburban’s claim for fraud-
ulent concealment. A defendant’s decision to terminate its business
relationship with a plaintiff cannot form the basis of a fraudulent con-
cealment action in the absence of a fiduciary or confidential relation-
ship. Cheney Bros., Inc. v. Batesville Casket Co., 47 F.3d 111, 114-15
(4th Cir. 1995). Moreover, there is no evidence that Merrill Lynch
made any partial or fragmentary statements of fact that gave rise to
a duty to disclose. Suburban was on notice that Merrill Lynch
intended to conduct an investigation of both Friedman and Doyle;
moreover, Suburban cannot be surprised that these inquiries inevita-
bly led to suspicions about its own misconduct.
Finally, there is no evidence set forth that Merrill Lynch intended
to deceive Suburban. Merrill Lynch’s statements regarding the stabil-
ity of the relationship, as well as its subsequent decision to investigate
and then terminate the conduit partnership, were true opinions when
stated. Because there is no evidence that Merrill Lynch acted pursuant
to "dishonest, corrupt or immoral" motives, Suburban has failed to
prove by clear and convincing evidence the prerequisite for fraud.
SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE 9
Ellerin v. Fairfax Sav., F.S.B., 652 A.2d 1117, 1125 (Md. 1995).
Additionally, Suburban’s theory that Merrill Lynch intended to
exploit and steal Suburban’s conduit expertise has no support from
the record.
II.
The district court properly granted summary judgment on Subur-
ban’s negligent misrepresentation claim since Suburban failed to
demonstrated that Merrill Lynch made any false statements or that it
even owed a duty of care to Suburban. As demonstrated above, each
of the alleged statements about which Suburban complains was either
true when made or was an expression of opinion or a prediction that
cannot form the basis of a claim. Paramount Brokers, 126 F. Supp.
2d at 951.
In addition, the district court correctly found that the negligent mis-
representation claim should be dismissed since Merrill Lynch did not
owe a duty of care to Suburban. Under Maryland law, "a negligent
misrepresentation action may be maintained only . . . where there is
an ‘intimate nexus’ between the parties." 21st Century Props. Co. v.
Carpenter Insulation & Coatings Co., 694 F. Supp. 148, 153 (D. Md.
1988) (citation omitted). At the time of the alleged misrepresenta-
tions, Merrill Lynch and Suburban were negotiating the terms of a
proposed agreement. Such "arms length negotiations between repre-
sentatives of business entities . . . cannot be said to be ‘intimate’
unless language is to be stripped of all meaning." Id. at 154.
Furthermore, Suburban has failed to put forth any evidence that
Merrill Lynch acted negligently. Merrill Lynch did not learn about the
misconduct involving Nolan and Suburban until after the Correspon-
dent Agreement had been executed. Thus, any statement about the
stability of the relationship made prior to this discovery was not made
negligently, and Merrill Lynch raised numerous reasons which are
adequate to terminate the relationship.
III.
The district court properly granted Merrill Lynch summary judg-
ment on Suburban’s breach of purchase commitments claim. The lan-
10 SUBURBAN MORTGAGE v. MERRILL LYNCH MORTGAGE
guage of the purchase commitments clearly and unambiguously states
that any obligation of Merrill Lynch to purchase the loans was condi-
tioned upon all information being satisfactory. Thus, Merrill Lynch
was entitled to decide that it would not purchase the loans upon find-
ing that the properties were associated with Friedman. And, while
Merrill Lynch was required to use good faith in exercising its right
to revoke the commitments, see United Wholesalers, Inc. v. A.J. Arm-
strong Co., 251 F.2d 860, 862 (4th Cir. 1958), there is no evidence
on the record that Merrill Lynch did otherwise. Merrill Lynch’s past
experiences with Friedman, as well as his public reputation, provided
substantial support for Merrill Lynch’s decision to reject the purchase
commitments.
AFFIRMED