Dides v. Ocwen Loan Servicing, LLC.

Filing 15

MEMORANDUM. Signed by Judge William M Nickerson on 1/14/13. (c/m 1/14/13 apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

SAMEH DIDES

v.
OCWEN LOAN SERVICES, LLC
*

*

*

*

*

*

*

*

*
*
*
*
*
*
*
*

Civil Action No. WMN-12-2989

*

*

*

*

*

*

*

MEMORANDUM
Plaintiff filed this action in the District Court for Anne
Arundel County, Maryland, on or about September 13, 2012.

The

allegations in the Complaint, in their entirety, are as follows:
“Illegally charging fees and illegally reporting to the [Bureau]
causing loss of Business and continuous [harassment] by Phone
requesting that [illegible writing] all fee[s] and pay for
compensation.”

ECF No. 2.

By checking a box, Plaintiff

indicated that this was a “contract” action and he claims as
damages “$20,000 plus interest.”

Id.

Defendant is a mortgage loan servicer and services the loan
held by Plaintiff on behalf of the current note holder.
Removal Petition, ECF No. 1 at 1.

See

On that basis, Defendant

makes the assumption that Plaintiff was attempting to assert a
claim under the federal Fair Debt Collection Act and/or the
federal Fair Credit Reporting Act.

Asserting federal question

jurisdiction, Defendant timely removed the action to this Court
on October 10, 2012.
Defendant then filed a motion to dismiss.

ECF No. 7.

As

grounds, Defendant argues that the allegations in the Complaint
lack sufficient specificity or factual content to state a claim
or to permit Defendant to appropriately respond.

Plaintiff

filed a response to the motion to dismiss, ECF No. 12, in which
he states that he telephoned defendant’s counsel and explained
the nature of his claim.

He also provided some additional

detail concerning the factual basis for his claim – that
Defendant did not credit him for a payment he claims that he
made and that Defendant failed to pay his property taxes despite
there being adequate funds in the escrow account to do so.

What

Plaintiff may have told Defendant’s counsel on the telephone or
stated in his opposition, however, are not part of the Complaint
and cannot be considered by the Court in deciding the motion to
dismiss.
Plaintiff also filed a “Motion to Return to Maryland
District Court,” ECF No. 13, that the Court treats as a motion
to remand.

That motion was filed on December 3, 2012.

In that

motion, Plaintiff repeats some of the allegations made in his
response to the motion to dismiss and also argues that his is a
contract action governed by state and not federal law.

He also

suggests that escrow accounts and credit bureaus are regulated
2

by state and not federal law.

Defendant opposed the motion to

remand, noting that it was not filed within 30 days as required
under 28 U.S.C. § 1447(c).

Defendant also argues that

Plaintiff’s motion to remand adds allegations concerning escrow
accounts which might implicate yet another federal statute, the
Real Estate Settlement Procedures Act.
The Court will deny Plaintiff’s motion to remand at this
time.

While the precise nature of his claim is not clear, it

appears from the allegations in the Complaint that he could be
attempting to assert claims under federal statutes.

If so, the

removal would be proper.
The Court will also grant Defendant’s Motion to Dismiss.
While the federal pleading standard requires simply a “short and
plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a), the complaint must
contain “enough facts to state a claim for relief that is
plausible on its face.”
544, 570 (2007).
and conclusions.”

Bell Atl. Corp. v. Twombly, 550 U.S.

The Complaint must contain more than “labels
Id. at 555.

Here, the allegations in the

Complaint are nothing more than vague assertions of accounting,
reporting and harassment that are somehow “illegal.”
The Court will dismiss the action, without prejudice to
Plaintiff’s filing of an Amended Complaint within fourteen days
of the date of this Memorandum and Order, should Plaintiff chose
3

to do so.

Once Plaintiff clarifies his claims, the Court can

re-evaluate whether those claims arise under federal law, as
they appear to, or under state law.

See Shilling v.

Northwestern Mut. Life Ins. Co., 423 F. Supp. 2d 513, 520-21 (D.
Md. 2006) (holding that remand was appropriate after the
plaintiff amended complaint to remove federal claim).

The Court

also notes that, where remand is sought based upon a lack of
federal subject matter jurisdiction, the timeliness of a motion
to remand is of no moment.

If this Court does not have subject

matter over the claims asserted, it can remand the action sua
sponte.

Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d

192, 196 (4th Cir. 2008).
A separate order will issue.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

DATED: January 14, 2013

4