Theune v. U.S. Bank, N.A. et al

Filing 39

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT. Signed by Judge Marvin J. Garbis on 8/1/14. (mps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNE THEUNE

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Plaintiff
vs.

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U.S. BANK, N.A. AS TRUSTEE
FOR J.P. MORGAN ALTERNATIVE
LOAN TRUST 2007-S1, et al.

*

Defendants

CIVIL ACTION NO. MJG-13-1015

*

*

*

*

*

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*

*

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*

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MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendant U.S. Bank National
Association, as Trustee for J.P. Morgan Alternative Loan Trust
2007-S1's Motion for Summary Judgment [Document 33] and the
materials submitted relating thereto.

The Court finds a hearing

unnecessary.

I.

BACKGROUND OF UNDISPUTED FACTS1
Plaintiff Anne Theune ("Plaintiff") brings this lawsuit

seeking to quiet title in the real property located at 302
Goldenrod Drive, Pasadena, MD 21122 ("the Property") and a
declaratory judgment that her signature was forged on the
documents used to take out two loans on the Property in 2006.
The 2006 loans went into default, and Defendant U.S. Bank, N.A.
1

The following are taken from the parties' briefings and the
state court dockets in the relevant underlying cases.

a/k/a U.S. Bank National Association, as Trustee for J.P. Morgan
Alternative Loan Trust 2007-S1 ("USB") purchased the Property at
a foreclosure sale on October 7, 2010.

A.

Deeds of Trust Secured by the Property

In September 2004, Plaintiff, her late husband Peter
Theune,2 and Paul Sweatman granted a deed of trust on the
Property to secure a loan from Washington Mutual Bank ("WMB") in
the amount of $526,000.00 ("WMB DOT").

In June 2005, Plaintiff,

Peter Theune, and Paul Sweatman granted a second deed of trust
on the Property to secure a loan from APL Federal Credit Union
("APL") in the amount of $150,000.00 ("APL DOT").
On April 17, 2006, a third deed of trust was granted3 on the
Property to secure a loan from Crescent Mortgage Company in the
amount of $647,500.00 ("Crescent DOT").4

The Crescent DOT

contains a Refinance Affidavit that states the $647,500.00 was
2

Peter Theune passed away on June 1, 2010. Compl. ¶ 16.
Plaintiff maintains that her signature and her late
husband's signature were forged on the 2006 loan documents and
that she "was not aware [of the forgery] until the trustees on
the forged deeds of trust instituted foreclosure proceedings on
the Property." [Document 36-1] at 1-2.
4
Also on April 17, 2006, a fourth deed of trust was granted
on the Property to secure a second loan from Crescent in the
amount of $185,000.00 ("Crescent DOT2"). Plaintiff contends
that her and her husband's signatures were forged on the
Crescent DOT2 documents. However, Plaintiff concedes that the
foreclosure on the Crescent DOT renders moot her claims of
forgery as to Crescent DOT2 because "the foreclosure of DOT 1
extinguished DOT 2." See [Document 26-1] at 10; see also
[Document 36-1] at 17.
3

2

"borrowed for the purpose of refinancing" the WMB DOT –
principal balance due of $519,830.58 – and the APL DOT –
principal balance due of $148,359.50.

See [Document 2-2] at 17.

In May 2006, Certificates of Satisfaction were issued for
the WMB DOT and the APL DOT releasing the liens on the Property
secured by those loans.

B.

Foreclosure Action

The following took place in the Foreclosure Action:
Oct. 25, 2007

Defendant appointed Substitute Trustees to
foreclose on the Property.

Nov. 5, 2007

Substitute Trustees began foreclosure proceedings
in the Circuit Court for Anne Arundel County,
Maryland (Case No. 02C07126889).

Feb. 13, 2008

"First Allegation of Forgery" – Plaintiff filed a
Complaint for Temporary Restraining Order and
Preliminary and Permanent Injunctive Relief
seeking to enjoin the foreclosure, claiming,
inter alia, that her signature had been forged on
the Crescent DOT.5

Mar. 6, 2008

Circuit court granted the preliminary injunction,
but did not make any specific findings as to the
forgery allegation.

Aug. 27, 2008

Substitute Trustees moved to dissolve the
injunction, arguing that the injunction was
procedurally improper and that foreclosure was
permissible based upon equitable subrogation.

Nov. 12, 2008

Circuit court held a hearing on the motion to
dissolve. Plaintiff's former attorney was not
present, but had reviewed a Consent Order

5

Plaintiff's late husband did not join in the first, or any
of the subsequent, allegations of forgery, which were filed by
Plaintiff's former attorney(s) on behalf of Plaintiff only.
3

dissolving the injunction drafted by the attorney
for the Substitute Trustees and given his
"express authority [to counsel] to endorse my
signature thereon."6 [Document 33-7] at 8. The
circuit court entered the Consent Order Granting
Motion to Dissolve Preliminary Injunction.
Jan. 26, 2009

"Second Allegation of Forgery" – Plaintiff, with
a new attorney who was representing her in
proceedings for a limited divorce from Peter
Theune, filed a Renewed and Modified Complaint
for Temporary Restraining Order and Preliminary
Injunction or Alternatively, Motion to Reconsider
Rescission. The Second Allegation of Forgery
does not state that the Consent Order was entered
without Plaintiff's permission.

Feb. 3, 2009

Circuit court issued Temporary Restraining Order
and Preliminary Injunction.

Sept. 21, 2009 Substitute Trustees filed a Motion to Set Aside
Temporary Restraining Order and Preliminary
Injunction, making three arguments related to the
Maryland rules for challenging a foreclosure and
one argument related to the Consent Order.
Oct. 22, 2009

Circuit court entered Order to Set Aside
Temporary Restraining Order and Preliminary
Injunction, allowing the foreclosure to proceed.

Nov. 4, 2009 – "Third Allegation of Forgery" – Plaintiff filed a
Motion for Reconsideration on the grounds that
the circuit court had not considered her Response
to the Substitute Trustees' September 21 motion.
Plaintiff contended that her Response was filed
timely but returned because of a failure to
include the attorney appearance fee and that by
the time her attorney received the returned
response, the circuit court had already set aside
the injunction. Plaintiff's Response was
attached to the motion to reconsider and
reasserted the forgery allegations.
6

Plaintiff contends that her former attorney entered into
the Consent Order without her permission and that she "never
consented to have the injunction lifted." See, e.g., [Document
36-1] at 11.
4

Jan. 12, 2010

Circuit court denied Plaintiff's Motion.

Mar. 23, 2010

"Fourth Allegation of Forgery" – Plaintiff, again
with a new attorney, filed a Complaint for
Temporary Restraining Order and Preliminary and
Permanent Injunctive Relief repeating the forgery
allegation. The Fourth Allegation of Forgery
noted that a Consent Order dissolved the first
preliminary injunction, but did not state that it
was entered without Plaintiff's permission.

Mar. 23, 2010

Substitute Trustees filed an Opposition to
Plaintiff's Complaint, arguing that the request
for a preliminary injunction did not comply with
the Maryland rules. The Opposition does not
address the Consent Order.

Mar. 26, 2010

Circuit court entered a one-sentence Order
denying Plaintiff's Complaint.

Oct. 7, 2010

Property sold to USB at foreclosure sale for
$544,748.00.

Jan. 19, 2011

Circuit court issued the Final Order ratifying
and confirming the foreclosure sale, which was
docketed on February 1, 2011.

Plaintiff and USB agree that "no appeal of any order in the
Foreclosure Action was docketed by the Plaintiff."

[Document

33-1] ¶ 18.

C.

2010 Clear Title Action

Oct. 28, 2010

Plaintiff, with an attorney different from any of
those used in the Foreclosure Action, filed a
Complaint and Request to Clear Title against one
of the Substitute Trustees in the Circuit Court
for Anne Arundel County (Case No. 02C10156629).

5

May 10, 2011

Plaintiff filed a Motion to Dismiss Complaint and
Request to Clear Title.7

June 20, 2011

Circuit court granted Plaintiff's Complaint and
dismissed the case with prejudice.

Sept. 9, 2012

Plaintiff filed a Motion to Vacate Order
Dismissing Case with Prejudice.

Oct. 19, 2012

Circuit court exercised its revisory power under
Maryland Rule 2-535(b) and revised the Order June
20, 2011 to be dismissed without prejudice.

II.

PROCEDURAL HISTORY
On November 15, 2012, Plaintiff filed the instant lawsuit

in the Circuit Court for Anne Arundel County, Maryland against
USB for Quiet Title and Declaratory Judgment.8

On April 5, 2013,

USB filed a Notice of Removal in this Court.
On April 13, 2012, USB filed a Motion to Dismiss, or in the
Alternative, for Declaration that Title to the Property is
Vested in the Foreclosure Purchaser, relying upon the
affirmative defense of res judicata.

[Document 22-1].

In

Response, Plaintiff argued that dismissal was improper because

7

Plaintiff contends that her former attorney filed the
Motion to Dismiss without her consent. See Theune Aff.
[Document 36-3] ¶¶ 35-39.
entered into the Consent Order without her permission and that
she "never consented to have the injunction lifted." See, e.g.,
[Document 36-1] at 11.
8
The Complaint also names MD TL, LLC ("MDTL") as a
Defendant. "MDTL purchased a tax certificate at a tax sale
based on delinquent taxes due on the Property. Prior to removal
to federal court, the state court dismissed all claims against
MDTL." Theune v. U.S. Bank, N.A., No. MJG-13-1015, 2013 WL
5934114, at *1 n.4 (D. Md. Nov. 1, 2013).
6

the Foreclosure Action was tainted by extrinsic fraud from the
Consent Order.

[Document 26-1].

In the Memorandum and Order Re: Motion to Dismiss, issued
November 1, 2013 [Document 30], the Court denied USB's Motion,
ruling that on procedural grounds, USB was not entitled to
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).9
[Document 30].

The court stated, however, that "USB may well be

entitled to summary judgment on its affirmative defenses" and
denied the Motion without prejudice to USB "to file a Motion for
Summary Judgment on any affirmative defense presented in its
Answer."

Id. at 13-14.

USB filed an Amended Answer on November 27, 2013, asserting
the affirmative defenses of res judicata, equitable subrogation,
and statute of limitations.

[Document 32].

By the instant

Motion, USB seeks summary judgment pursuant to Rule 56.

III. SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the
pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a).

9

All "Rule" references herein are to the Federal Rules of
Civil Procedure.
7

The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant’s rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).

Thus,

in order "[t]o defeat a motion for summary judgment, the party
opposing the motion must present evidence of specific facts from
which the finder of fact could reasonably find for him or her."
Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999)
(emphasis added).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive
determination of every action.'"

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

8

IV.

DISCUSSION
A.

Statute of Limitations
1.

Accrual of the Cause of Action

The Court's jurisdiction over the instant matter is based
upon diversity of citizenship, so Maryland state law governs the
applicability of the statute of limitations.

See Rockstroh v.

A.H. Robins Co., Inc., 602 F. Supp. 1259, 1262 (D. Md. 1985).
In Maryland, absent statutory exceptions, "[a] civil action at
law shall be filed within three years from the date it accrues."
Md. Code Ann., Cts. & Jud. Proc. § 5-101.

"'[W]hen an action

accrues is left to judicial determination.'"

Chesapeake Bay

Found., Inc. v. Weyerhaeuser Co., 848 F. Supp. 2d 570, 579 (D.
Md. 2012) (citation omitted).

"Under Maryland's discovery rule,

'the cause of action accrues when the claimant in fact knew or
reasonably should have known of the wrong.'"

Id. (citation

omitted).
Plaintiff seeks a declaratory judgment that her signature
was forged on the Crescent DOT and a judicial determination that
she and USB are joint owners of the property.

Thus, the cause

of action accrued when Plaintiff became aware of the alleged
forgery.
2006.

The Crescent DOT documents were signed on April 17,

See [Document 2-2].

In the Fourth Allegation of

Forgery, filed March 23, 2010, Plaintiff "solemnly affirm[ed]"
that "[she] had no knowledge of the refinance that led to the

9

[Crescent DOT] until one (1) year after documents were signed."
[Document 22-14] ¶ 14.

USB contends that this statement is

"Plaintiff's own admission that she became aware of the
existence of the Crescent First DOT as early as April 2007."
[Document 33-1] at 19.

Plaintiff argues that she cannot

"verify" that she became aware of the alleged forgery in April
2007 because the Fourth Allegation of Forgery "was prepared by
her former attorney who was later disbarred, [so] the statements
in the document are potentially at issue."

[Document 36-1] ¶ 6.

The Court will assume that Plaintiff did not become aware
of the Crescent DOT until after April 2007.

Nevertheless, the

date for accrual of the cause of action is no later than
February 13, 2008 when Plaintiff filed the First Allegation of
Forgery in the Foreclosure Action.10

See [Document 22-4].

Thus,

by virtue of the statute of limitations, Plaintiff was required
to file any lawsuit against USB relating to the Crescent DOT and
the corresponding effects on ownership of the Property by
February 13, 2011.

10

The date might be even earlier, November 5, 2007, the date
of initiation of the Foreclosure Action, because by then
Plaintiff presumably was aware of the alleged forgery on the
Crescent DOT.
10

2.

Tolling of the Statute of Limitations

Plaintiff appears to concede that she was required to file
the Complaint against USB by February 13, 2011, but argues that
the 2010 Clear Title Action was filed timely and the statute of
limitations should be tolled.

See [Document 36-1] at 16.

In Maryland, the limitations period can be tolled "by
either a legislative or judicial exception."

Shailendra Kumar,

P.A. v. Dhanda, 43 A.3d 1029, 1039 (Md. 2012).

Plaintiff does

not suggest that there is a legislative exception to the threeyear limitations period for the instant lawsuit.11

Instead, she

argues that judicial tolling is appropriate because of allegedly
defective legal representation she received in connection with
the 2010 Clear Title Action.

See [Document 36-1] at 16-17.

Judicial tolling is appropriate when "'(1) there is
persuasive authority or persuasive policy considerations
supporting the recognition of the tolling exception, and, (2)
recognizing the tolling exception is consistent with the
generally recognized purposes for the enactment of statutes of
11

In Maryland, when a civil action is filed within the
limitations period and later dismissed without prejudice, a
plaintiff has 60 days from the date of dismissal – or expiration
of the limitations period, whichever is longer – to file a new
action "for the same cause against the same party or parties."
Md. Code Ann., Cts. & Jud. Proc. § 5-119(b). However, § 5-119
"applies only to a civil action or claim that is dismissed once
for failure to file a report in accordance with [medical
malpractice claim procedures]" and "does not apply to a
voluntary dismissal of a civil action or claim by the party who
commenced the action." § 5-119(a).
11

limitations.'"
omitted).

Shailendra Kumar, 43 A.3d at 1041 (citation

"The statute of limitations reflects a legislative

judgment of what is deemed an adequate period of time in which
'a person of ordinary diligence' should bring his action."
Grand-Pierre v. Montgomery Cnty., 627 A.2d 550, 552-53 (Md. Ct.
Spec. App. 1993) (citation omitted).
Statutes
of
limitations
are
primarily
designed to assure fairness to defendants.
Such statutes "promote justice by preventing
surprises through the revival of claims that
have been allowed to slumber until evidence
has been lost, memories have faded, and
witnesses have disappeared.
The theory is
that even if one has a just claim it is
unjust not to put the adversary on notice to
defend within the period of limitation and
the right to be free of stale claims in time
comes to prevail over the right to prosecute
them." . . . Moreover, the courts ought [to]
be relieved of the burden of trying stale
claims when a plaintiff has slept on his
rights.
This policy of repose, designed
defendants,
is
frequently
however, where the interests
require
vindication
of
the
rights.

to protect
outweighed,
of justice
plaintiff's

Furst v. Isom, 584 A.2d 108, 112 (Md. Ct. Spec. App. 1991)
(alteration in original).
On October 28, 2010, Plaintiff filed the 2010 Clear Title
Action in the Circuit Court for Anne Arundel County against one
of the four Substitute Trustees.
defendant.

See [Document 2-5].

USB was not named as a
The period of limitations for

12

filing a separate lawsuit against USB – or for seeking to add
USB as a defendant in the 2010 Clear Title Action – expired on
February 13, 2011.

In May 2011, Plaintiff's former attorney

filed a motion to dismiss the complaint, which the circuit court
granted with prejudice on June 20.

Fifteen months later in

September 2012, Plaintiff, with yet another new attorney – her
attorney in the instant lawsuit - filed a motion to vacate the
circuit court's order, which the circuit court granted on
October 9, 2012, changing the dismissal of the case from with
prejudice to without prejudice.

Plaintiff filed the instant

lawsuit on November 15, 2012 - twenty-one months after
limitations had run - naming USB as a Defendant for the first
time and seeking quiet title and declaratory judgment.
In the instant case, Plaintiff filed a new lawsuit against
a defendant not named in a previous lawsuit after the statute of
limitations had run and the previous lawsuit had been dismissed.
The most analogous situation the Court can find refers to the
situation presented "[w]hen amendment is sought to add a new
party to the proceedings."

Grand-Pierre, 627 A.2d at 553; see

also Crowe v. Houseworth, 325 A.2d 592, 595 (Md. 1974).

In

Maryland, when a new party is added to proceedings, "any cause
of action as to that party is, of course, a new cause of action.
Thus, under Maryland law, [except in a] misnomer [situation],
relation back is not permitted when an amendment is sought to

13

add a new defendant."
citation omitted).

Grand-Pierre, 627 A.2d at 553 (internal

The Court of Special Appeals of Maryland has

held that Maryland law does not provide a plaintiff "with the
ability to avoid the bar of limitations where he voluntarily
dismissed his complaint and filed an identical claim, based on
the same facts, more than three years after the accrual of the
action."

Sheng Bi v. Gibson, 45 A.3d 305, 309 (Md. Ct. Spec.

App. 2012).
Plaintiff argues that she "was unable to proceed with the
[2010 Clear Title Action] because such complaint was dismissed
with prejudice based on a motion to dismiss to which [she] did
not consent."

[Document 36-1] at 16.

However, Plaintiff was on

notice that USB had purchased the Property at the foreclosure
sale as early as November 3, 2010 when the Report of Sale was
docketed in the Foreclosure Action.

See [Document 2-4].

Plaintiff had ample time before February 13, 2011 to seek to
include USB in the 2010 Clear Title Action.

Further, at the

time Plaintiff's former attorney filed the motion to dismiss the
2010 Clear Title Action in May 2011, limitations for adding USB
as a defendant in that case or for filing a separate lawsuit
against USB had expired three months earlier.12

12

Presumably, this explains why the circuit court order
granting Plaintiff's motion dismissed the case with prejudice –
since the statute of limitations had already run.
14

The Court finds that the Complaint against USB was filed
outside of the applicable statute of limitations.

Plaintiff's

argument in favor of tolling the statute of limitations boils
down to an allegation that she received defective legal
representation in connection with the 2010 Clear Title Action.
However, Maryland law does not permit Plaintiff to resurrect the
2010 Clear Title Action against a Defendant not named in the
original lawsuit based on mere allegations of legal malpractice
when the instant lawsuit was filed twenty-one months after the
expiration of the statute of limitations.13

Such a "proposed

tolling rule would permit a plaintiff to 'effectively postpone
the running of the statute [of limitations] for an indefinite
period of time.'"

Cf.

Philip Morris USA, Inc. v. Christensen,

905 A.2d 340, 348 (Md. 2006) (alteration in original) (citation
omitted), abrogated on other grounds by Mummert v. Alizadeh, 77
A.3d 1049 (Md. 2013).
Accordingly, the Court shall grant USB's Motion for Summary
Judgment.

13

Plaintiff contends that "[o]n August 23, 2012, [she] filed
a complaint with the Attorney Grievance Commission in Maryland
regarding [her former attorney]'s wrongful dismissal of [the
2010 Clear Title Action]." Theune Aff. [Document 36-3] ¶ 46.
However, there has been no evidence presented regarding any
disciplinary action against the attorney.
15

B.

Res Judicata

The Court finds an alternative ground for granting the
instant Motion.

Even if the suit were filed timely, Plaintiff's

claims would be barred by the doctrine of res judicata.
"[T]he law is firmly established in Maryland that the final
ratification of the sale of property in foreclosure proceedings
is res judicata as to the validity of such sale, except in case
of [extrinsic] fraud[14] or illegality . . . ."

Ed Jacobsen,

Jr., Inc. v. Barrick, 250 A.2d 646, 648 (Md. 1969) (internal
quotation marks omitted).

"Fraud is extrinsic when it actually

prevents an adversarial trial . . . ."

Billingsley v. Lawson,

406 A.2d 946, 951 (Md. Ct. Spec. App. 1979).

Examples include:

"[w]here the unsuccessful party has been
prevented from exhibiting fully his case, by
14

Maryland cases generally address the presence of extrinsic
fraud in a final order ratifying a foreclosure sale by reference
to Maryland Rule 2-535(b), which provides that "the court may
exercise revisory power and control over the judgment in case of
fraud, mistake, or irregularity." See, e.g., Green v. Ford
Motor Credit Co., 828 A.2d 821, 830-31 (Md. Ct. Spec. App.
2003). It is unclear whether the general principle under
Maryland law relating to extrinsic fraud and ratification
orders, see Ed Jacobsen, Jr., Inc. v. Barrick, 250 A.2d 646, 648
(Md. 1969), exists independently of Maryland Rule 2-535(b). If
that is not the case, then it is unclear whether this Court
sitting in diversity may employ Maryland Rule 2-535(b) to
invalidate a Maryland state court judgment and/or whether the
Plaintiff was required to affirmatively request such relief in
her Complaint. Cf. Maicobo Inv. Corp. v. Von Der Heide, 243 F.
Supp. 885, 893 (D. Md. 1965). Plaintiff's briefing of the
extrinsic fraud exception leaves much to be desired. However,
the Court will assume that Plaintiff could be entitled to the
relief she requests as presented in her extrinsic fraud theory
if she prevailed on showing that there was extrinsic fraud.
16

fraud or deception practiced on him by his
opponent, as by keeping him away from court,
a false promise of a compromise; or where
the defendant never had knowledge of the
suit, being kept in ignorance by the acts of
the
plaintiff;
or
where
an
attorney
fraudulently or without authority assumes to
represent a party and connives at his
defeat; or where the attorney regularly
employed corruptly sells out his client's
interest to the other side . . . ."
Schwartz v. Merchants Mortgage Co., 322 A.2d 544, 547 (Md.
1974).
Plaintiff argues that the Foreclosure Action was tainted by
extrinsic fraud because her former attorney did not have her
permission to enter into the Consent Order dissolving the
preliminary injunction on November 12, 2008.

However, the entry

of the Consent Order does not appear to have prevented an
adversarial process in the Foreclosure Action.

Nor does the

Consent Order – assuming Plaintiff's former attorney acted
improperly in not consulting Plaintiff - rise to the level of
actions that have been found to constitute extrinsic fraud.
The Foreclosure Action docket reflects that Plaintiff
actively participated in the Foreclosure Action against the
Property both before and after entry of the Consent Order.

For

example, on three occasions after entry of the Consent Order –
January 26, 2009, November 4, 2009, and March 23, 2010 –
Plaintiff sought to preliminarily and/or permanently enjoin the
foreclosure sale based upon, inter alia, the alleged forgery of

17

her signature on the Crescent DOT.

The circuit court issued its

Final Order in the Foreclosure Action on January 19, 2011, yet
Plaintiff concedes that she never filed an appeal of any order
in the Foreclosure Action docket.

See [Document 36-1] at 7.

The docket also indicates that on May 8, 2014 the circuit court
granted USB's Motion for Judgment of Possession of the Property
and that Plaintiff was served with a Writ of Possession on July
11.

However, the docket does not indicate that Plaintiff has

responded to or challenged USB's Motion for Judgment of
Possession.

Cf. Jones v. HSBC Bank USA, N.A., No. 09CV2904,

2011 WL 382371, at *4 (D. Md. Feb. 3, 2011).

Thus, there was a

final judgment on the merits15 in the Foreclosure Action, and res
judicata provides an alternative round to grant USB summary
judgment.16

15

Plaintiff contends that she was denied a fair opportunity
to be heard after entry of the Consent Order "because the
urgency of the situation did not afford Plaintiff ample time to
retain competent counsel." [Document 36-1]. While Plaintiff
may have experienced an unfortunate series of events with her
former attorneys, the alleged ineffectiveness and/or misconduct
of one, or more, of those attorneys does not affect whether
entry of the Consent Order – the act alleged to be the extrinsic
fraud – prevented Plaintiff from moving forward with her case.
16
Because the Court has determined that USB is entitled to
summary judgment on the affirmative defense of the statute of
limitations, and also very likely on res judicata, it need not
reach USB's third affirmative defense of equitable subrogation.
18

V.

CONCLUSION
For the foregoing reasons:
1.

Defendant U.S. Bank National Association, as
Trustee for J.P. Morgan Alternative Loan Trust
2007-S1's Motion for Summary Judgment [Document
33] is GRANTED.

2.

Judgment shall be issued by separate Order.

SO ORDERED, on Friday, August 01, 2014.

/s/__________
Marvin J. Garbis
United States District Judge

19