Reginald Jones v. HSBC Bank USA, N.A.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-02904-RWT Copies to all parties and the district court/agency. [998663291].. [11-1197]
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Date Filed: 08/25/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1197
REGINALD JONES,
Plaintiff - Appellant,
v.
HSBC BANK USA, N.A.; HOME EQUITY LOAN TRUST, SERIES ACE
2005-HE5;
WELLS
FARGO
BANK
NA;
MORTGAGE
ELECTRONIC
REGISTRATION SYSTEMS INC.; BUONASSISSI, HENNING & LASH,
P.C.,
Defendants – Appellees,
and
ONE CALL LENDER
CORPORATION,
SERVICES,
LLC;
SUPERIOR
HOME
MORTGAGE
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09cv-02904-RWT)
Submitted:
July 7, 2011
Decided:
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
August 25, 2011
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Lawrence J. Anderson, PELS ANDERSON, LLC, Bethesda, Maryland,
for Appellant.
Russell J. Pope, TREANOR POPE & HUGHES, P.A.,
Towson, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This
proceeding.
appeal
arises
out
of
a
Maryland
foreclosure
In October 2009, Plaintiff Reginald Jones (“Jones”)
filed suit in Maryland state court against defendants, HSBC Bank
USA,
N.A.
(“HSBC”),
Fremont
Reorganizing
Corporation
(“Fremont”), Home Equity Loan Trust Series ACE 2005-HE5 (“Home
Equity
Loan
Superior
Trust”),
Home
Wells
Mortgage
Fargo
Bank,
Corporation
NA
(“Wells
(“Superior”),
Fargo”),
Mortgage
Electronic Registration Systems, Inc. (“MERS”), One Call Lender
Services, LLC (“One Call”), Buonassissi, Henning & Lash, P.C.
(“BHL”), and Friedman & MacFayden, P.A.
Defendants removed to
federal court and the district court ultimately granted their
motion to dismiss.
Jones appeals that dismissal, urging that
the district court abused its discretion by denying him leave to
amend his complaint and that, in any event, the court should
have
entered
contained
in
dismissal
his
without
proposed
as
prejudice
amendment.
For
to
the
the
claims
reasons
that
follow, we affirm.
I.
In 2005, Jones took out an $825,200 home mortgage loan
from
Fremont.
The
loan
was
secured
Jones’s Rockville, Maryland property.
by
a
deed
of
trust
on
Fremont subsequently sold
its interest in Jones’s property on the secondary market to Home
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Equity Loan Trust, with HSBC serving as trustee.
Wells Fargo
assumed servicing responsibilities for the mortgage.
In November 2007, Jones defaulted on the loan.
As a
result, Wells Fargo, through substitute trustee BHL, initiated
foreclosure
proceedings
County, Maryland.
in
the
Circuit
Court
for
Montgomery
BHL filed an order to docket foreclosure on
July 10, 2009. Jones responded by filing an objection on July
27.
While
Jones’s
objection
was
pending,
foreclosure
of
his home proceeded, and a sale of the property was scheduled for
October 7, 2009.
Seeking to delay the sale, Jones filed the
present action in the Circuit Court for Montgomery County on
October 6.
The complaint alleged six causes of action, all
relating to Jones’s objections to the foreclosure, and named as
defendants HSBC, Home Equity Loan Trust, Wells Fargo, and MERS. 1
Shortly after the complaint was filed, defendants removed to the
United States District Court for the District of Maryland.
Despite
proceeded
as
Jones’s
scheduled,
and
lawsuit,
HSBC
1
the
purchased
foreclosure
the
sale
property
on
MERS serves as the record nominee for the holder of the
loan.
The complaint also names as defendants One Call and
Superior, but contains no specific allegations against them.
Jones consented to dismissal of Fremont and the original
trustee, Friedman & MacFayden, though he originally named them
as defendants as well.
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October
7.
Date Filed: 08/25/2011
The
state
court
Page: 5 of 15
retained
jurisdiction
over
the
foreclosure proceedings, and, on December 2, 2009, it held a
hearing on Jones’s objection to the foreclosure, at which he
appeared.
The court ultimately denied Jones’s objection.
Jones
then filed a motion for reconsideration, which the court also
denied.
The state court ratified the foreclosure sale on March
2, 2010, and HSBC filed a motion for possession on April 9.
Still attempting to retain the property, Jones filed an opposing
motion.
which
Jones also filed a motion for a preliminary injunction,
sought
to
prevent
HSBC
from
taking
possession
property until the federal suit was resolved.
of
the
The state court
granted HSBC’s motion on May 14, 2010, and entered a judgment
awarding HSBC possession of the property.
On May 18, Jones filed a motion for an injunction in
his federal court case that was almost identical to the motion
he had earlier filed in state court.
It asked the district
court to prevent the state court from allowing HSBC to take
possession
of
the
property.
In
both
the
state
and
federal
injunction requests, Jones argued that Fremont’s assignment of
the mortgage “split” the note from the deed of trust, creating
an unsecured debt and leaving the opposing parties without legal
authority to foreclose.
J.A. 44, 81.
5
Due to the state court’s
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granting a hearing on his motion for an injunction, Jones moved
to withdraw his federal court injunction request on June 18.
On July 1, 2010, the state court denied as moot all of
Jones’s outstanding motions in the foreclosure action.
With
Jones having exhausted all other avenues for relief, defendants
in
the
present
action
moved
on
October
21,
2010
filed
for
to
leave
dismiss
Jones’s complaint.
One
week
later,
Jones
district court to amend his complaint.
retained
sought
as
to
defendants
convert
only
the
HSBC,
suit
a
the
The proposed amendment
Wells
into
from
Fargo,
class
and
BHL,
action.
and
Raising
substantially different facts and legal theories, the revised
complaint centered on the manner in which Wells Fargo prepared
affidavits used in foreclosure proceedings.
employees
of
Wells
Fargo
signed
It alleged that
affidavits
supporting
foreclosures despite having no personal knowledge of the facts
contained
asserted
therein.
seven
Based
causes
of
on
this
action,
conduct,
complaint
fraud,
including
the
wrongful
foreclosure, and violation of the Maryland Consumer Protection
Act.
In a February 3, 2011 order, the district court denied
Jones’s
motion
dilatory,
for
futile,
Additionally,
the
leave
to
and
would
district
amend,
prejudice
court
6
explaining
the
dismissed
that
it
was
defendants.
the
original
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complaint
in
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its
entirety,
finding
Page: 7 of 15
that
Jones’s
claims
were
barred by res judicata due to the resolution of the original
state court foreclosure action.
This appeal followed.
II.
On
denial
of
appeal,
his
Jones
motion
for
challenges
leave
to
the
amend
district
court’s
and
court’s
dismissal with prejudice of his original complaint.
the
We consider
each issue in turn.
A.
Jones first argues that the district court erred by
refusing to grant his motion for leave to amend his complaint.
We review a district court’s denial of a plaintiff’s motion to
amend for abuse of discretion.
724, 729 (4th Cir. 2010).
Galustian v. Peter, 591 F.3d
When considering whether to grant
leave to amend a pleading, a “court should freely give leave
when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
denial
lies
of
leave
to
amend
within
the
district
Though
court’s
discretion, the court may not deny a party’s motion solely on
the basis of delay.
Edwards v. City of Goldsboro, 178 F.3d 231,
242 (4th Cir. 1999).
Instead, “delay must be accompanied by
prejudice, bad faith, or futility.”
the
district
court
did
not
abuse
7
Id.
its
As we explain below,
discretion
by
finding
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Jones’s amendment to be both dilatory and futile. 2 We therefore
affirm the denial of his motion to amend.
1.
Jones disputes the finding that his motion to amend
was dilatory.
He argues that, when he filed his motion, he had
only recently become aware of the facts supporting his amended
complaint’s assertion that the defendants supported foreclosure
with
false
affidavits.
However,
the
record
contains
ample
evidence that Jones either knew or should have known of these
facts considerably earlier.
that
Jones’s
concerns
As a threshold matter, it appears
about
the
accuracy
of
defendants’
documents were present when he filed his initial complaint, on
November 2, 2009.
the
accuracy
of
Indeed, that complaint explicitly questioned
documents
signed
by
Wells
Fargo
employees.
Though Jones was on notice of at least some potential problems
with the documents, he did not present the theories contained in
his proposed amendment until nearly a year later.
To
the
extent
that
Jones’s
complaint
cites
new
evidence, the information on which it relies was not presented
2
Because our determination that the district court did not
abuse its discretion in finding the proposed amendment both
dilatory and futile is sufficient to affirm the denial of
Jones’s motion to amend, we need not address the finding of
prejudice.
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in a timely manner.
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In support of his amended claims, Jones
relies on a spring 2010 deposition of a Wells Fargo employee
from unrelated litigation in Florida.
Although this deposition
was taken in March, Jones did not file his motion to amend until
that October.
Meanwhile, Jones delayed the proceedings twice,
first by filing a frivolous “motion to show authority” for which
he was nearly sanctioned, and second by filing a motion for an
injunction—-identical to one he filed in state court—-that he
moved to withdraw only after defendants had invested time in
responding.
Given Jones’s delay in filing his amended complaint
and his earlier pattern of dilatory behavior, we cannot say that
the district court abused its discretion in finding his motion
to amend dilatory.
2.
Jones also disputes the district court’s finding that
his
amended
complaint
was
futile.
In
assessing
whether
a
proposed amendment is clearly futile, a district court may look
to “substantive or procedural considerations.”
Aircraft, 615 F.2d 606, 613 (4th Cir. 1980).
Davis v. Piper
Here, the district
court found that Jones’s proposed amendment would be barred by
claim preclusion arising from the state court’s decision in the
original foreclosure action.
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The preclusive effects of a state court judgment are
determined by state law.
Laurel Sand & Gravel, Inc. v. Wilson,
519 F.3d 156, 162 (4th Cir. 2008).
Under Maryland law, claim
preclusion has three elements: “(1) the parties in the present
litigation are the same or in privity with the parties to the
earlier
litigation;
(2)
the
claim
presented
in
the
current
action is identical to that determined or that which could have
been determined in prior litigation; and (3) there was a final
judgment on the merits in the prior litigation.”
v. Rice, 938 A.2d 839, 848 (Md. 2008).
R&D 2011, LLC
Here, the district court
did not err by finding all three elements satisfied.
Though
Jones
and
BHL
were
the
sole
parties
to
the
state court foreclosure action, privity exists between BHL and
the two additional parties involved here, HSBC and Wells Fargo.
In a claim preclusion context, privity “generally involves a
person so identified in interest with another that he represents
FWB Bank v. Richman, 731 A.2d 916, 930
the same legal right.”
(Md. 1999).
BHL prosecuted the state court foreclosure action
on behalf of Wells Fargo, which in turn serviced the underlying
mortgage
on
behalf
of
HSBC.
With
respect
to
the
proposed
amendment, the relevant interest of all three defendants is the
same right to foreclose on the Jones mortgage.
Because the
three defendants represent the same legal right in this action
that
BHL
represented
in
the
state
10
court
action,
the
privity
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component of claim preclusion is satisfied.
See Anyanwutaku v.
Fleet Mortg. Group, Inc., 85 F. Supp. 2d 566, 571 (D. Md. 2000)
(finding privity, under Maryland law, between substitute trustee
who filed prior foreclosure action and successor holders of the
underlying mortgage note); see also FWB Bank, 731 A.2d at 930.
In deciding whether the claims are the same, so as to
satisfy
the
second
“transaction” test.
element,
Maryland
courts
employ
the
See Kent Cnty Bd. of Educ. v. Bilbrough,
525 A.2d 232 (Md. 1987).
Under this test, claims are the same
“when
the
they
arise
transactions.”
out
of
same
transaction
or
Anyanwutaku, 85 F. Supp. 2d at 571.
series
of
This holds
“regardless of the number of substantive theories, or variant
forms of relief flowing from those theories,” and “regardless of
the number of primary rights that may have been invaded” or
“variations in the evidence needed to support the theories or
rights.”
deLeon v. Slear, 616 A.2d 380, 392 (Md. 1992) (quoting
Restatement (Second) of Judgments § 24(2) (1982)).
In
the
proposed
amendment,
Jones
alleges
that
the
defendants improperly foreclosed on his home by submitting and
relying on false and defective affidavits.
While these claims
proceed on a new substantive theory and seek relief different
from what Jones sought in the initial foreclosure proceeding, at
bottom, they remain claims of wrongful foreclosure.
In both
cases, Jones’s claims center on the same basic transaction—11
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foreclosure of his home.
Page: 12 of 15
And in both the amended complaint and
the state-court foreclosure action, Jones has raised objections
to the procedures through which the defendants prosecuted the
foreclosure.
Thus, for the purposes of the second element of
claim preclusion, the two sets of claims are identical. 3
Finally, the state-court foreclosure action resulted
in a final judgment on the merits.
In Maryland, a foreclosure
action is ordinarily a summary, in rem proceeding.
When the
mortgagor
however,
voluntarily
appears
and
raises
objections,
the action results in an in personam judgment with preclusive
effect.
See Fairfax Sav., F.S.B. v. Kris Jen Ltd. P’ship, 655
A.2d 1265, 1272 (Md. 1995); Tri-Towns Shopping Center, Inc. v.
First Fed. Sav. Bank, 688 A.2d 998, 1005 (Md. Ct. Spec. App.
1997).
Jones argues that because Maryland Code, Real Property
Article § 7-105.1 establishes a three-year limitations period
for
suits
in
response
to
wrongful
3
foreclosures,
foreclosures
Even if that were not so, the amended complaint certainly
involves claims Jones could have raised in the foreclosure
action, either as counterclaims or as a defense.
Though Jones
contends that Maryland’s permissive counterclaim rules insulate
such claims from preclusion, to allow them in this case would,
in effect, nullify the original foreclosure judgment.
Avoiding
such a consequence is a central concern of the claim preclusion
doctrine. See Fairfax Sav., F.S.B. v. Kris Jen Ltd. P’ship, 655
A.2d 1265, 1269 (Md. 1995) (citing Restatement (Second) of
Judgments § 22(2)(b) (1982)).
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themselves
Date Filed: 08/25/2011
cannot
However,
the
be
statute
intended
simply
Page: 13 of 15
to
have
addresses
preclusive
actions
effect.
brought
in
response to the in rem variety of foreclosures—-those which the
mortgagor did not challenge directly in the first instance.
See
Fairfax Sav., 655 A.2d at 1274 (noting that plaintiffs could
relitigate
the
merits
of
a
prior
foreclosure
judgment
in
a
subsequent claim for damages, so long as the prior judgment was
solely in rem).
As noted above, however, when the mortgagor
appears and raises objections to the initial foreclosure action,
he
loses
the
resulting
opportunity
judgment.
See
to
later
id.
at
collaterally
1272
attack
(explaining
the
that
the
greater preclusive effect of a foreclosure judgment to which
exceptions
were
filed
flows
from
the
mortgagor’s
appearance in the foreclosure proceeding”).
“voluntary
In other words, the
mortgagor is entitled to litigate his objections only once: he
may defend against the original foreclosure action directly, or
he may bring a separate, offensive suit within three years of
the sale; he may not do both.
In this case, Jones voluntarily appeared and raised
numerous objections to the state-court foreclosure action.
The
state court held two hearings to consider the merits of those
objections.
When his objections were rejected, Jones chose not
to appeal or seek revision of the state court decision.
Thus,
the
final
state-court
foreclosure
constitutes
13
an
in
personam
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judgment on the merits, 4 and precludes Jones from raising the
same claims in this case.
As each of the three claim preclusion elements are
satisfied, the district court did not err by finding Jones’s
motion to amend futile.
Having properly found both futility and
delay present, the district court did not abuse its discretion
by denying Jones leave to amend.
See Equal Rights Ctr. v. Niles
Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
B.
Jones also appeals the district court’s dismissal with
prejudice of his original complaint.
We review the grant of a
Rule 12(b)(6) motion to dismiss de novo.
Coleman v. Maryland
Court of Appeals, 626 F.3d 187 (4th Cir. 2010).
Jones does not challenge the merits of the district
court’s dismissal, but instead argues only that it should have
entered
a
dismissal
amended
complaint.
without
Jones’s
prejudice
concern
with
appears
respect
to
be
to
his
that
the
prejudice designation prevents him from re-filing his amended
complaint in state court.
4
To the extent Jones believes that the final judgment was
procured by means of fraud or false testimony, his remedy is to
seek revision pursuant to Maryland Rule 2-535, not to bring a
collateral attack.
14
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Jones
Because
the
Date Filed: 08/25/2011
misinterprets
district
court
the
denied
Page: 15 of 15
district
Jones
court’s
leave
to
order.
file
his
proposed amendment, its dismissal order pertained only to his
original complaint.
While the district court did consider the
merits of the proposed amendment in deciding to deny his motion
for leave to amend, this consideration alone does not constitute
a final judgment on the merits.
Consequently, the dismissal
with prejudice of the original complaint in this case does not,
by itself, prevent Jones from re-filing the proposed amendment.
Because Jones’s only objection to the district court’s grant of
the defendants’ motion to dismiss is without merit, we affirm.
III.
For the foregoing reasons, we affirm the decision of
the district court.
facts
and
materials
legal
before
We dispense with oral argument because the
contentions
are
adequately
the
and
argument
court
presented
would
not
in
the
aid
the
decisional process.
AFFIRMED
15
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