McGowens v. Bank of America

Filing 17

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/12/2015. (c/m 3/12/15 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEPHEN MICHAEL MCGOWENS,
Plaintiff,
v.

Civil Action No. ELH-14-1101

BANK OF AMERICA,
Defendant.

MEMORANDUM OPINION
Stephen Michael McGowens, the self-represented plaintiff, filed suit against Bank of
America, defendant. ECF 1 (“Complaint).1 Plaintiff submitted several documents with the
Complaint, including his “Sworn Denial” dated April 4, 2014, ECF 1 at 4-18 (“McGowens
Affidavit”), and eight exhibits. See ECF 1-1 through ECF 1-8.

By Order docketed April 24,

2014 (ECF 3), I directed plaintiff to supplement the facts of his Complaint. Plaintiff filed his
supplement on May 7, 2014. See ECF 4 (“Supplement”).2
Although the Complaint is not a model of clarity, it appears to allege violations of the
Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq. (“RESPA”); the Truth in

1

Defendant asserts that there is no legal entity by that name. See ECF 8-1 at 1 n.1.
Defendant indicates that the correct corporate name is Bank of America, N.A. (“BOA”). Id.
2

Plaintiff filed a prior action against defendant on April 6, 2012. See McGowens v. Bank
of America, No. ELH 12-cv-1070 (D. Md. Apr. 6, 2012). By Order dated August 7, 2012 (ECF
9), the action was dismissed due to plaintiff’s failure to prosecute. Plaintiff also filed an action
against Colonial Savings, F.A. on April 7, 2014. See McGowens v. Colonial Savings, F.A. et al.,
No. ELH 14-cv-1100 (D. Md. April 8, 2014). That case is pending.

Lending Act, 15 U.S.C. §§ 1601 et seq. (“TILA”); the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692 et seq. (“FDCPA”); and Maryland common law.3
Pursuant to Fed. R. Civ. P. 12(b)(6), BOA filed a “Motion to Dismiss Plaintiff’s
Complaint” (ECF 8), supported by a memorandum of law (ECF 8-1, “Def. Memo.”) (I shall refer
to ECF 8 and ECF 8-1 collectively as the “Motion” or “Motion to Dismiss”). Defendant also
submitted two exhibits. These are the “Deed of Trust” dated November 15, 2007, for the
property located at 5528 Bucknell Road in Baltimore, Maryland (ECF 8-2, “Deed of Trust”); and
the “Assignment of Deed of Trust” dated December 23, 2011 (ECF 8-3, “Assignment”)
(conveying to Bank of America, N.A. all beneficial interest in the property located at 5528
Bucknell Road set forth in the Deed of Trust). In response, plaintiff filed a “Brief in Response to
Bank of America Motion to Dismiss or Summary Judgment” (ECF 10, “Opposition”), supported
by four exhibits (ECF 1-1 through ECF 1-4).
The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local
Rule 105.6. For the reasons that follow, I will grant defendant’s Motion.
I. FACTUAL BACKGROUND4
The source of this dispute appears to arise from five mortgage loans identified by plaintiff
as loan numbers #163119057, #020178164, #163118969, #163114225, and #163114217. ECF 1

3

The Court possesses subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
the federal question jurisdiction statute. See ECF 1 at 1. Under 28 U.S.C. § 1331, federal
district courts have “original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331. As to plaintiff’s claims under Maryland law,
28 U.S.C. § 1367(a) grants district courts “supplemental jurisdiction over all other claims that are
so related to claims in the action within [the court’s] original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution.” Thus, the
Court has authority to exercise supplemental jurisdiction with respect to plaintiff’s state law
claims. In addition, jurisdiction appears proper based on diversity. See 28 U.S.C. § 1332.
4

Unless otherwise indicated, the factual background is drawn from the Complaint.
2

at 4, McGowens Affidavit.5 Plaintiff denies these are his debts, or, if so, that they are valid
debts. Id.
In connection with at least one of the aforementioned loans, and perhaps more than one,
it appears that BOA initiated foreclosure proceedings. ECF 1 at 2, Complaint; ECF 4 at 2,
Supplement (“This case is being file [sic] because Bank of America Notice to Foreclose [sic] on
my property.”).

The address of the property that is allegedly the subject of foreclosure

proceedings (or the properties, if more than one) is not clear from the Complaint.6

The

Complaint also does not indicate that status of any ongoing foreclosure proceedings.
According to BOA, the “true facts, which are a matter of public record,” ECF 8-1 at 3,
show that Stephen and Janet McGowens executed a promissory note and Deed of Trust in favor
of the original lender, GN Mortgage, LLC, on November 15, 2007. See ECF 8-2, Deed of
Trust.7 The Deed of Trust named Mortgage Electronic Registration Systems, Inc. (“MERS”) as
grantee and nominee for the lender and its assigns. Id. On December 23, 2011, MERS assigned

5

Although the McGowens Affidavit contains numbered paragraphs, I will refer to the
page number and not the paragraph number, because the paragraph numbering provided by Mr.
McGowens is inconsistent.
6

Plaintiff refers to different property addresses. For example, an undated letter addressed
to “Bank of America Home Loans (Servicer),” attached to the Complaint, references a property
located at 3524 Erdman Avenue in Baltimore, Maryland, and Loan No. 163114225. ECF 1-5 at
1. A second letter addressed to “Bank of America Home Loans (Servicer)”, attached to the
Complaint and dated March, with no year, references 5528 Bucknell Road in Baltimore,
Maryland, and Loan No. 163119057. ECF 1-6 at 1. A third undated letter attached to the
Complaint, addressed to Colonial National Mortgage, references 2523 Garrett Avenue in
Baltimore, and Loan No. 830979. ECF 1-8 at 1. It is unclear which of these properties are the
subject of plaintiff’s allegations in this suit. Moreover, because Colonial National Mortgage is
not a party to this action, the relevance of that letter is not apparent.
7

As indicated, the Deed of Trust is attached as an exhibit to defendant’s Motion. ECF 82. Plaintiff has not contested the authenticity of the document. In any event, the Deed of Trust is
a public record, and thus I can take judicial notice of it. See Philips v. Pitt Cnty. Mem’l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009)
3

the Deed of Trust to BOA. See ECF 8-3, Assignment. The loan, in the sum of $124,000, ECF 82 at 3, was used by plaintiff to purchase real property located at 5528 Bucknell Road in
Baltimore, Maryland (“Bucknell Property”). Id. at 5.
As noted, the Deed of Trust designated GN Mortgage, LLC as the original lender, id. at 2
and named MERS as the beneficiary and nominee for the lender. Id. at 3. On December 23,
2011, the servicing rights on the loan were re-assigned to BOA. ECF 8-3 at 2, Assignment.
According to plaintiff, BOA engaged in various forms of “misconduct” in its capacity as loan
servicer. ECF 1 at 2, Complaint.
First, plaintiff appears to contend that defendant committed fraud. In this regard, plaintiff
alleges that defendant failed to disclose that it “provided the cash value to fund the financial
institution’s alleged loan check to [him].” ECF 1 at 11, McGowens Affidavit. Further, he states:
“I was deceived and defrauded when I received my mortgage loan regarding my ability to make
my payments.” ECF 1 at 2, Complaint.
Plaintiff also alleges that BOA “breached any original purported mortgage loan
agreement/contract through misrepresentation, lack of disclosure, and lack of consideration by
failure to perform on the value of the purported mortgage loan agreement/contract.” ECF 1 at
11, McGowens Affidavit.
Most of plaintiff’s remaining allegations pertain to BOA’s management of the
foreclosure process. Plaintiff asserts, ECF 1 at 2, Complaint:
There were significant errors and misconduct in their [sic] foreclosure process.
Examples includes [sic] failure to send or to receive proper notices of foreclosure,
inaccurate information in the foreclosure documents, improperly executed or
defective foreclosure documents, improper court filings, mishandling of the
foreclosure process by the services of their attorneys robosigning, not forwarding
the proper note information that was requested at all. Not providing me who I
should realing [sic] be sending my payments too [sic]. I been [sic] receiving
inaccurate payment information which caused and contributed to me not being
4

able to pay. I have applied for a loan modification but was turn down [sic] by my
mortgage service company due to their errors. Payments have been misapplied
producing accounting errors by the servicing mortgage company.
In addition, plaintiff alleges that BOA does not possess the “original, unmarked,
unaltered Promissory Note.” ECF 1 at 11, McGowens Affidavit. In plaintiff’s view, without the
actual promissory note, BOA cannot collect on the loan. Id. Plaintiff also appears to allege that
BOA failed to respond to a qualified written request he sent to BOA, asking for information
about the location of the promissory note, in violation of RESPA. ECF 4 at 2, Supplement. In
support of this allegation, and as indicated, supra, plaintiff attached to his Complaint two letters:
(1) an undated letter addressed to “Bank of America Home Loans (Servicer),” which references a
property located at 3524 Erdman Avenue in Baltimore (“Erdman Property”) and Loan No.
163114225, ECF 1-5 at 1 (“First Written Request”); (2) a letter to “Bank of America Home
Loans (Servicer)” dated March, with no year, which references the Bucknell Property and Loan
No. 163119057, ECF 1-6 at 1 (“Second Written Request”). BOA seems to assume that the
Bucknell Property is the only property that is the subject of this dispute. See ECF 8-1 at 3, Def.
Memo.
Both letters begin by stating: “This is a ‘qualified written request’ under Section 6 of the
Real Estate Settlement Procedures Act (RESPA). . . .” Then, plaintiff proceeds to identify
“[e]rrors of concerns” committed by BOA as his loan servicer. ECF 1-5 at 1-2, First Written
Request; ECF 1-6 at 1-2, Second Written Request.
In addition, plaintiff poses, inter alia, these questions, EF 1-5 at 3, First Written Request;
ECF 1-6 at 3, Second Request (emphasis in original):



Is the lender/holder in possession of the original promissory note that is not an
electronic reproduced copy?
Have the promissory note and security instrument for the loan been separated at
any time?
5



Please confirm how the promissory note and security instrument have been held
together for the life of the loan?

Plaintiff also alleges that loan payments “have not been applied to the correct ‘Holder In
Due Course.’” EF 1-5 at 2, First Written Request; ECF 1-6 at 2, Second Request. It is not clear
from the Complaint whether BOA responded to plaintiff’s First Written Request or the Second
Written Request.
Based on the aforementioned allegations, it appears that plaintiff is lodging the following
claims against the defendant: Breach of Contract, False Representation, Fraud, and violations of
the FDCPA, TLA, and RESPA.

Plaintiff seeks damages in the amount of $930,000, an

injunction staying the foreclosure, and “a mortgage rate at the true value of the property.” ECF
1 at 3, Complaint.
As noted, by Order docketed April 24, 2014 (ECF 3), I directed plaintiff to supplement
the facts of his Complaint and provide the following information, ECF 3 at 1:
1) the address of the foreclosed property in question; 2) the date of foreclosure; 3)
whether the property is or was the subject of proceedings in other state or federal
courts; 4) details of the “significant errors and misconduct” in the foreclosure
process (Complaint at 2; ECF No. 1) and the dates these alleged error[s] occurred;
and 5) whether Plaintiff has raised his concerns with Defendant prior to filing this
action.
Plaintiff filed the Supplement to the Complaint, ECF 4, along with four exhibits: the
Court’s Order docketed on April 24, 2014 (ECF 4-2); McGowens Affidavit (ECF 4-3); an
incomplete “Affidavit” for BOA to fill in and sign (ECF 4-4); and a “Memorandum of Law”
(ECF 4-5). Three of the Supplement’s four exhibits (ECF 4-3 through ECF 4-5) were also
submitted with the initial Complaint. But, he did not address the deficiencies identified in the

6

Order.8 In large part, plaintiff re-submitted much of the information already included with his
Complaint. ECF 1; ECF 4.
Additional facts are included in the Discussion.
II.

Standards of Review
A. Rule 12(b)(6)

As noted, BOA has moved to dismiss under Fed. R. Civ. P. 12(b)(6). A motion to
dismiss under Fed. R. Civ. P. 12(b)(6) tests the adequacy of a complaint. See McBurney v.
Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).
Whether a complaint adequately states a claim for relief is judged by reference to the
pleading requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) provides that a complaint must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
The purpose of the rule is to provide the defendant with “fair notice” of the claim and the
“grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 & n.3
(2007). That showing must consist of more than “a formulaic recitation of the elements of a
cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see Painter’s Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013).
To defeat a motion under Rule 12(b)(6), a complaint “must plead facts sufficient to show
that [the] claim has substantive plausibility.” Johnson v. City of Shelby, Miss., ____ U.S. ____,
8

Like the Complaint, the Supplement references the same five loans, #163119057,
#020178164, #163118969, #163114225, and #163114217. ECF 4 at 2, Supplement. Although
plaintiff denies that these five loans are his obligations, id., it is unclear from the Complaint and
Supplement what actions, if any, BOA took with respect to loans #020178164, #163118969, and
#163114225. As indicated, loan #163119057, associated with the Bucknell Property, and loan
#163114225, associated with the Erdman Property, are the subject of Mr. McGowens’ First
Written Request and Second Written Request to Bank of America Home Loans. ECF 1-5; ECF
1-6.
7

135 S. Ct. 346, 347 (2014); see Iqbal, 556 U.S. at 684 (“Our decision in Twombly expounded the
pleading standard for ‘all civil actions’ . . . .”) (citation omitted); Twombly, 550 U.S. at 570; see
also Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012); Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). If the “well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct,” the complaint has
not shown that “‘the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citation omitted).
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual
allegations contained in the complaint,’” and must “‘draw all reasonable inferences [from those
facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011) (citations omitted); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.
2011), cert. denied, ____ U.S. ____, 132 S. Ct. 402 (2011). The complaint must contain
sufficient factual detail to “nudge[ ] [the plaintiff's] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 680.
Dismissal “is inappropriate unless, accepting as true the well-pled facts in the complaint
and viewing them in the light most favorable to the plaintiff, the plaintiff is unable to ‘state a
claim to relief . . . .’” Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011) (citation
omitted). But, the court need not accept unsupported or conclusory factual allegations devoid of
any reference to actual events. See Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Nor must it accept legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678, or
legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986);
Monroe v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S.
992 (2010).

8

Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999). However, “in the relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be
reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d
458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan,
553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal
adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only applies … if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting
Richmond, 4 F.3d at 250) (emphasis added in Goodman).
As noted, plaintiff appended eight exhibits to his Complaint, ECF 1-1 through ECF 1-8,
in addition to submitting several documents with his Complaint, not specifically designated as
exhibits. See ECF 1 at 4-25. He also attached four exhibits to his Supplement. See ECF 4-2
through ECF 4-5.

In evaluating the sufficiency of a complaint in connection with a Rule

12(b)(6) motion, a court ordinarily “may not consider any documents that are outside of the
complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708
F.3d 549, 557 (4th Cir. 2013); see Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).
However, a court may properly consider documents incorporated into the complaint or attached
to the motion to dismiss, ‘“so long as they are integral to the complaint and authentic.’” U.S. ex
rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014)
(quoting Philips v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am. Chiropractic Ass’n v.

9

Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999)). To be “integral,” a document must
be one “that by its ‘very existence, and not the mere information it contains, gives rise to the
legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.
Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original).
Defendant attached two documents to its Motion. These are the Deed of Trust and the
Assignment. ECF 8-2; ECF 8-3. Plaintiff does not contest their authenticity. Moreover, these
documents are matters of public record. Therefore, I may consider them by way of judicial
notice without converting the Motion to one for summary judgment. See Philips v. Pitt Cnty.
Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (“In reviewing a Rule 12(b)(6) dismissal, we
may properly take judicial notice of matters of public record.”).
Because plaintiff is a self-represented litigant, his pleadings are “‘liberally construed’”
and “‘held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). “However, liberal construction does not
absolve Plaintiff from pleading a plausible claim.” Bey v. Shapiro Brown & Alt, LLP, No.
PWG–13–1562, 997 F. Supp. 2d 310, 314 (D. Md.) aff’d, 584 F. App’x 135 (4th Cir. 2014); see
also Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 10–3517, 2011 WL 3476994, at *6
(D. Md. Aug. 8, 2011) (“[E]ven when pro se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.”), aff’d, 526 F. App’x 255 (4th Cir. 2013).
Moreover, “[a] district court is not required to act as an advocate for a pro se litigant.”
Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), cert. denied, 439 U.S. 970 (1978). Nor is
it obligated to “anticipate all arguments” or “conjure up questions never squarely presented,” or
to fashion claims for a pro se plaintiff. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th

10

Cir. 1985), cert. denied, 475 U.S. 1088 (1986); see also M.D. v. Sch. Bd. of City of Richmond,
560 F. App’x 199, 203 n.4 (4th Cir. 2014) (rejecting self-represented plaintiff’s argument that
district court erred in failing to consider an Equal Protection claim, because plaintiff failed to
allege it in the complaint); Williams v. Ozmint, 716 F.3d 801, 811 (4th Cir. 2013) (stating that
self-represented plaintiff’s “‘catch-all’” request for “‘any other relief that seems just and proper’”
was insufficient to preserve a claim to declaratory relief), cert. denied, ___ U.S. ___, 134 S. Ct.
1294 (2014); Telford v. Vandusen, 972 F.2d 342, *1 (4th Cir. 1992) (unpublished) (district court
did not err in ignoring self-represented plaintiff’s “property damage” claim, because plaintiff
made only an “oblique reference to the property damage in the body of the complaint, [and] it
[was] nowhere mentioned in the demand for judgment.”).
As the Fourth Circuit has said: “To do so would not only strain judicial resources by
requiring those courts to explore exhaustively all potential claims of a pro se plaintiff, but would
also transform the district court from its legitimate advisory role to the improper role of an
advocate seeking out the strongest arguments and most successful strategies for a party.”
Beaudett, 775 F.2d at 1278 (citing Leeke, 574 F.2d at 1152–53). What the Fourth Circuit stated
in Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at *1 (4th Cir. 1992) (per curiam)
(unpublished), is also apt:
It is neither unfair nor unreasonable to require a pleader to put his complaint in an
intelligible, coherent, and manageable form, and his failure to do so may warrant
dismissal. Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.), cert. denied, 382 U.S.
966 (1965); Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md.1981). District courts
are not required to be mind readers, or to conjure questions not squarely presented
to them. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert.
denied, 475 U.S. 1088 (1986).
B. Fraud
Plaintiff lodges claims for fraud. Mr. McGowens’ allegations of fraud implicate the

11

heightened pleading standard under Fed. R. Civ. P. 9(b), which states: “In alleging fraud or
mistake, a party must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”
See, e.g., Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (stating that a
Maryland Consumer Protection Act claim that “sounds in fraud, is subject to the heightened
pleading standards of Federal Rule of Civil Procedure 9(b)”); E-Shops Corp. v. U.S. Bank N.A.,
678 F.3d 659, 665 (8th Cir. 2012) (“Rule 9(b)’s heightened pleading requirement also applies to
statutory fraud claims.”).
Under Rule 9(b), a plaintiff alleging claims that sound in fraud “must, at a minimum,
describe the time, place, and contents of the false representations, as well as the identity of the
person making the misrepresentation and what he obtained thereby.” United States ex rel.
Owens v. First Kuwaiti Gen’l Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010)
(quotation omitted). In other words, “Rule 9(b) requires plaintiffs to plead the who, what, when,
where, and how: the first paragraph of any newspaper story.” Crest Construction II, Inc. v. Doe,
660 F.3d 346, 353 (8th Cir. 2011) (quotation omitted).
Rule 9(b) serves several salutary purposes. In Harrison v. Westinghouse Savannah River
Co., 176 F.3d 776, 784 (4th Cir. 1999), the Fourth Circuit identified four purposes (quoting
United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Blue Cross Blue Shield of
Georgia, Inc., 755 F.Supp. 1055, 1056–57 (S.D. Ga. 1990):
First, the rule ensures that the defendant has sufficient information to formulate a
defense by putting it on notice of the conduct complained of . . . . Second, Rule
9(b) exists to protect defendants from frivolous suits. A third reason for the rule
is to eliminate fraud actions in which all the facts are learned after discovery.
Finally, Rule 9(b) protects defendants from harm to their goodwill and reputation.
However, the plain text of Rule 9(b) permits general averment of aspects of fraud that

12

relate to a defendant’s state of mind. And, a “court should hesitate to dismiss a complaint under
Rule 9(b) if the court is satisfied (1) that the defendant has been made aware of the particular
circumstances for which she will have to prepare a defense at trial, and (2) that plaintiff has
substantial prediscovery evidence of those facts.” Harrison, 176 F.3d at 784. Moreover, Rule
9(b) is “less strictly applied with respect to claims of fraud by concealment” or omission of
material facts, as opposed to affirmative misrepresentations, because “an omission ‘cannot be
described in terms of the time, place, and contents of the misrepresentation or the identity of the
person making the misrepresentation.’” Shaw v. Brown & Williamson Tobacco Corp., 973 F.
Supp. 539, 552 (D. Md. 1997) (quoting Flynn v. Everything Yogurt, No. HAR-92-3421, 1993
WL 454355, at *9 (D. Md. Sept. 14, 1993)); accord Piotrowski v. Wells Fargo Bank, N .A., No.
DKC 11–3758, 2013 WL 247549, at *5 (D. Md. Jan. 22, 2013).
C. Choice of Law
Neither party has addressed the matter of choice of law. The law of the forum state,
Maryland, guides the court’s choice-of-law analysis. See Fid. & Guar. Life Ins. Co. v. United
Advisory Grp., Inc., No. WDQ13–0040, 2014 WL 346630, at *4 (D. Md. Jan. 29, 2014) (“When
sitting in diversity, a federal court follows the choice-of-law rules of the forum state.”); Baker v.
Antwerpen Motorcars Ltd., 807 F.Supp.2d 386, 389 n. 13 (D. Md. 2011) (“In a federal question
[claim] that incorporates a state law issue, . . . a district court applies the choice-of-law rules of
the state in which it sits unless a compelling federal interest directs otherwise.”).
In a contract claim, Maryland courts follow the rule of lex loci contractus, applying the
substantive law of the state where the contract was formed, unless there is a choice-of-law
provision in the contract. Am. Motorists Ins. Co. v. ARTRA Group, Inc., 338 Md. 560, 573, 659
A.2d 1295, 1301 (1995). In this case, the Deed of Trust for the Bucknell Property provides:

13

“This Security Instrument shall be governed by federal law and the law of the jurisdiction in
which the Property is located.” ECF 8-2 at 13, Deed of Trust. Accordingly, because the
Property is located in Maryland, I will apply Maryland law in addressing plaintiff's contract
claims in connection with the Bucknell Property.
With respect to tort claims, Maryland applies the principle of lex loci delicti, i.e., the law
of the “place of the alleged harm.” Proctor v. Washington Metropolitan Area Transit Auth., 412
Md. 691, 726, 990 A.2d 1048, 1068 (2010). The alleged harm appears to have occurred in
Maryland. Accordingly, I will look to Maryland law with respect to the analysis of plaintiff's
claims sounding in tort.
In sum, federal law that controls plaintiff’s RESPA, TILA, and FDCPA claims. And, I
will resolve the parties’ contract and/or tort disputes under Maryland law.
III.

Discussion

As a matter of law, plaintiff’s claims of Breach of Contract, False Representation, Fraud,
and violations of the FDCPA, TLA, and RESPA contain several defects that warrant dismissal
pursuant to Rule 12(b)(6). I will discuss each in turn.
1. Breach of Contract
Plaintiff appears to lodge a claim for breach of contract. ECF 1 at 11, McGowens
Affidavit; ECF 4 at 2, Supplement. He alleges that BOA “breached any original purported
mortgage loan agreement/contract through misrepresentation, lack of disclosure, and lack of
consideration by failure to perform on the value of the purported mortgage loan
agreement/contract.” ECF 1 at 11, McGowens Affidavit. Seeking dismissal, defendant argues:
“Such a claim must fail as a matter of law because Plaintiff has not even identified the contract,
how it was breached, or damages resulting from the breach.” ECF 8-1 at 7, Def. Memo.

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To state a breach of contract claim, a plaintiff must show that the parties reached a valid
and binding agreement; that the defendant breached the terms of the agreement; and that the
plaintiff suffered damages as a result of the breach. See Taylor v. NationsBank, N.A., 365 Md.
166, 175, 776 A. 2d 645, 651 (2001). In other words, “[i]t is the parties’ agreement that
ultimately determines whether there has been a breach.” Mathis v. Hargrove, 166 Md. App. 286,
318-19, 888 A.2d 277, 396 (2008). To survive a motion to dismiss a breach of contract claim, a
complaint must “allege with certainty and definiteness facts showing a contractual obligation
owed by the defendant to the plaintiff and a breach of that obligation by the defendant.”
Robinson v. GEO Licensing Co., L.L.C., 173 F. Supp. 2d 419, 423 (D. Md. 2001) (citations
omitted).
I agree with defendant that plaintiff has failed to plead adequately a claim for breach of
contract. In particular, plaintiff has failed to identify any terms in the promissory note, Deed of
Trust, or any other contract that defendant purportedly breached. See Parillon v. Fremont Inv. &
Loan, No. L–09–3352, 2010 WL 1328425, at *4 (D. Md. Mar. 25, 2010) (dismissing plaintiff's
breach of contract claim where plaintiff did “not identify a term set forth in the Loan, the Deed
of Trust, or any other contract, that a named defendant breached”).
In sum, plaintiff’s conclusory allegations with respect to a breach of contract are
insufficient to state a claim. Therefore, the claim will be dismissed, without prejudice.
2. Fraud
Plaintiff lodges claims for fraud and false representation. ECF 4 at 2, Supplement. In
particular, he states that “he was deceived and defrauded” by defendant in connection with his
ability to make loan payments. ECF 1 at 2, Complaint. Beyond this general allegation, plaintiff
does not offer any further details about the identity of the person or persons who deceived him or

15

how he was defrauded. Nor does plaintiff specify the time, the place, or the contents of any
alleged misrepresentation, or how he relied on the alleged fraudulent conduct.
Under Maryland common law, “[f]raud encompasses, among other things, theories of
fraudulent misrepresentation, fraudulent concealment, and fraudulent inducement.” Sass v.
Andrew, 152 Md. App. 406, 432, 832 A.2d 247, 261 (2003) (quotation omitted). In an action for
fraudulent misrepresentation, the plaintiff ordinarily must show, Nails v. S & R, Inc., 334 Md.
398, 415, 639 A.2d 660, 668 (1994) (citations omitted):
(1) that the defendant made a false representation to the plaintiff, (2) that its
falsity was either known to the defendant or that the representation was made with
reckless indifference as to its truth, (3) that the misrepresentation was made for
the purpose of defrauding the plaintiff, (4) that the plaintiff relied on the
misrepresentation and had the right to rely on it, and (5) that the plaintiff suffered
compensable injury resulting from the misrepresentation.
Accord Thomas v. Nadel, 427 Md. 441, 451 n. 18, 48 A.3d 276, 282 n. 18 (2012).
To be actionable, a false representation “must be of a material fact.” Gross v. Sussex,
Inc., 332 Md. 247, 258, 630 A.2d 1156, 1161 (1993). “A ‘material’ fact is one on which a
reasonable person would rely in making a decision,” Sass, 152 Md. App. at 430, 832 A.2d at
260, or a fact that “the maker of the misrepresentation knows . . . [the] recipient is likely to
regard . . . as important. . . .” Gross, 332 Md. at 258, 630 A.2d at 1161 (quotation omitted).
Moreover, the fraudulent “misrepresentation must be made with the deliberate intent to deceive.”
Sass, 152 Md. App. at 430, 832 A.2d at 260 (citing VF Corp. v. Wrexham Aviation Corp., 350
Md. 693, 704, 715 A.2d 188 (1998); Ellerin v. Fairfax Savings, F.S.B., 337 Md. 216, 230, 652
A.2d 1117 (1995)). So, the defendant must “know[ ] that his representation is false” or be
“recklessly indifferent in the sense that he knows that he lacks knowledge as to its truth or
falsity.” Ellerin, 337 Md. at 232, 652 A.2d 1125.

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Ordinarily, under Maryland law, a mere failure to disclose a material fact does not
constitute fraud, in the absence of a legal duty to disclose that inheres in certain types of
transactions. “Maryland recognizes no general duty upon a party to a transaction to disclose facts
to the other party.” Maryland Envtl. Trust v. Gaynor, 370 Md. 89, 97, 803 A.2d 512, 516 (2002)
(citing Fegeas v. Sherrill, 218 Md. 472, 476, 147 A.2d 223, 225 (1958)). However, “[e]ven in
the absence of a duty of disclosure, one who suppresses or conceals facts which materially
qualify representations made to another may be guilty of fraud.” Finch v. Hughes Aircraft Co.,
57 Md. App. 190, 239, 469 A.2d 867, 891, cert. denied, 300 Md. 88, 475 A.2d 1200 (1984), cert.
denied, 469 U.S. 1215 (1985).
Fraud based on active suppression of material facts is the variety of fraud referred to as
“fraudulent concealment.” The Maryland Court of Appeals has said: “Fraudulent Concealment
is any statement or other conduct which prevents another from acquiring knowledge of a fact,
such as diverting the attention of a prospective buyer from a defect which otherwise, he would
have observed.” Lloyd v. Gen’l Motors Corp., 397 Md. 108, 138, 916 A .2d 257, 274 (2007)
(quotation omitted). In other words, it describes a “situation where the defendant actively
undertakes conduct or utters statements designed to, or that would, divert attention away from” a
material fact. Id. at 138 n.11, 916 A.2d at 274 n.11.
“To create a cause of action, concealment must have been intentional and effective-the
hiding of a material fact with the attained object of creating or continuing a false impression as to
that fact. The affirmative suppression of the truth must have been with intent to deceive.”
Fegeas v. Sherrill, 218 Md. 472, 476–77, 147 A.2d 223, 225–26 (1958) (citations omitted);
accord Rhee v. Highland Dev. Corp., 182 Md. App. 516, 524, 958 A.2d 385, 390 (2008). As the

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Rhee Court explained, 182 Md. App. at 536, 958 A.2d at 396 (internal citation omitted)
(alterations in Rhee):
[T]he concealment or suppression [of a material fact] is in effect a representation
that what is disclosed is the whole truth. The gist of the action [for fraud] is
fraudulently producing a false impression upon the mind of the other party; and if
this result is accomplished, it is unimportant whether the means of accomplishing
it are words or acts of the defendant....
A claim of failure to disclose “requires only that the defendant remain silent about, or
omit, facts that the defendant had a duty to disclose.” Lloyd, 397 Md. at 138 n. 11, 916 A.2d at
274 n. 11. Where the fraudulent concealment claim is based on a duty to disclose, Maryland
courts have formulated the elements of the cause of actions as follows, Blondell v. Littlepage,
413 Md. 96, 119, 991 A.2d 80, 94 (2010) (quoting Lloyd, 397 Md. at 138, 916 A.2d at 274)
(emphasis omitted):
“(1) [T]he defendant owed a duty to the plaintiff to disclose a material fact; (2)
the defendant failed to disclose that fact; (3) the defendant intended to defraud or
deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the
concealment; and (5) the plaintiff suffered damages as a result of the defendant's
concealment.”
.
As indicated, allegations of fraud implicate the heightened pleading standard under Fed.
R. Civ. P. 9(b). To establish a claim for fraud, plaintiff must allege “‘the time, place, and
contents of the false representations, as well as the identity of the person making the
misrepresentation and what he obtained thereby.’” Owens, 612 F.3d at 731 (citation omitted).
Plaintiff has not offered factual allegations to support the elements of a fraud claim. As
noted, the Deed of Trust was assigned to BOA in December 2011. Prior to that time, BOA had
no involvement with plaintiff. Although plaintiff baldly asserts he was “defrauded” regarding
his “ability to make [his] payments,” and he references “improperly executed or defective
foreclosure documents,” ECF 1 at 2, Complaint, he does not allege any facts to show with whom

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he spoke, the content of any communications, or when these communications occurred. Nor
does he indicate how he justifiably relied on any alleged misrepresentations. Moreover, he does
not allege facts to show he suffered a compensable injury proximately caused by defendant’s
purported misrepresentations.
As a result, plaintiff’s fraud claims must fail.

The claims of fraud, subject to a

heightened pleading standard, will be dismissed with prejudice.
3. FDCPA
In the Complaint, plaintiff states that he is giving “constructive notice” pursuant to the
FDCPA that he is declining to pay the debt he owes to BOA and requests “validation and
supporting legal evidence” of the debt. ECF 1 at 6, McGowens Affidavit.
Congress enacted the FDCPA in 1977, see Pub.L. 95–109, 91 Stat. 874 (1977), to protect
consumers from debt collectors who engage in “abusive, deceptive, and unfair debt collection
practices,” and “to insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged . . . .” 15 U.S.C. § 1692(e); see United
States v. Nat’l Fin. Servs. Inc., 98 F.3d 131, 135 (4th Cir. 1996). Because the FDCPA is a
remedial statute, it is construed liberally in favor of the debtor. See Johnson v. Riddle, 305 F.3d
1107, 1117 (10th Cir. 2002).
Under 15 U.S.C. § 1692e, a debt collector may not “use any false, deceptive, or
misleading representation or means in connection with the collection of any debt.” See Elyazidi
v. SunTrust Bank, ____ F.3d ____, 2015 WL924101 at *4 (4th Cir. Mar. 5, 2015). To state
successfully a claim under the FDCPA, the complaint must allege: “(1) the plaintiff has been the
object of collection activity arising from consumer debt; (2) the defendant is a debt collector as
defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by

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the FDCPA.” Boosahda v. Providence Dane LLC, 462 F. App’x 331, 333 n.3 (4th Cir. 2012)
(quoting Ruggia v. Wash. Mut., 719 F.Supp.2d 642, 647 (E.D.Va. 2010); see Stewart v. Bierman,
859 F. Supp. 2d 754, 759 (D. Md. 2012).
Defendant contends it is not subject to the FDCPA in this case because it is not a “debt
collector” under that statute with respect to Mr. McGowens’ mortgage. ECF 8-1 at 9, Def.
Memo. Thus, it contends that plaintiff’s FDCPA claim is subject to dismissal, with prejudice.
Id.
Under the FDCPA, “debt collectors” are generally defined, in relevant part, as entities
that “collect[ ] or attempt[ ] to collect, directly or indirectly, debts owed or due or asserted to be
owed or due to another.” 15 U.S.C. § 1692(a)(6). However, the definition of “debt collector”
contains an exemption for an entity, such as a mortgage servicer, that collects debts that were
“not in default at the time [they were] obtained” by the entity. Id. § 1692(a)(6)(F)(iii). Thus, it
“is well-settled . . . that . . . mortgage servicing companies are not debt collectors and are
statutorily exempt from liability under the FDCPA,” to the extent that they take action to collect
debts that were not in default at the time they acquired the debts. Scott v. Wells Fargo Home
Mortgage, Inc., 326 F. Supp. 2d 709, 718 (E.D. Va.) (emphasis in original), aff’d, 67 F. App’x
238 (4th Cir. 2003); see Clarke v. Dunn, DKC-13-2330, 2014 WL 4388344, at *4 (D. Md. Sept.
4, 2014); Flores v. Deutsche Bank Nat'l Trust Co., DKC–10–217, 2010 WL 2719849, at *6 (D.
Md. July 7, 2010); Sparrow v. SLM Corp., RWT–08–12, 2009 WL 77462, at *2 (D. Md. Jan. 7,
2009); see also De Dios v. Int’l Realty & Investments, 641 F.3d 1071, 1075 n. 3 (9th Cir. 2011)
(citing legislative history of the FDCPA indicating that the exception in § 1692(a)(6)(F)(iii) was
intended to provide that “‘mortgage service companies and others who service outstanding debts

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for others, so long as the debts were not in default when taken for servicing,’’’ are not debt
collectors).
The Complaint and the Supplement lack any allegations that plaintiff's mortgage was in
default when BOA became plaintiff’s mortgage servicer. Accordingly, for purposes of the
FDCPA, BOA is not a “debt collector” with respect to plaintiff's mortgage debt. BOA is entitled
to dismissal, with prejudice, as to plaintiff’s FDCPA claim.
4. TILA
Plaintiff alleges that BOA’s failure to “disclose that [it] provided the cash value to fund
the financial institution’s alleged loan check” to him is a violation of TILA. ECF 1 at 11,
McGowens Affidavit.
TILA was enacted to “‘assure a meaningful disclosure of credit terms so that the
consumer will be able to compare more readily the various credit terms available to him and
avoid the uninformed use of credit.’” Mourning v. Family Publications Serv., Inc., 411 U.S. 356,
364–65 (1973) (quoting 15 U.S.C. § 1601(a)). The statute “requires creditors to provide
borrowers with clear and accurate disclosures of terms,” Beach v. Ocwen Federal Bank, 523 U.S.
410, 412 (1998), and imposes civil liability on creditors who fail to do so. Koons Buick Pontiac
GMC, Inc. v. Nigh, 543 U.S. 50, 54 (2004); 15 U.S.C. § 1640(a).
An action for damages under TILA must be brought within one year after the date of the
occurrence of the violation. 15 U.S.C. § 1640(e). To the extent that plaintiff’s allegations arise
in connection with the mortgage loan for the Bucknell Property, the loan documents were signed
on November 15, 2007. See ECF 8-2 at 1, Deed of Trust. Thus, the time for filing a TILA claim
expired on November 15, 2008.
Plaintiff did not initiate this action until April 7, 2014, several years after the statute of

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limitations had expired on any TILA claims in connection with the Bucknell Property.
Moreover, plaintiff does not contend that equitable tolling is warranted on the ground that
plaintiff was denied a reasonable opportunity to discover the fraud.

See King v. State of

California, 784 F.2d 910, 915 (9th Cir. 1986); Wong v. American Servicing Co., Inc., No. 2:09–
CV–01506 FCD/DAD, 2009 WL 5113516, *4 (E.D. Cal. Dec. 18, 2009).
On the face of the complaint, plaintiff’s TILA claim as to the Bucknell Property is timebarred. Therefore, the claim is subject to dismissal, with prejudice.
5. RESPA
Plaintiff appears to allege that BOA violated RESPA by failing to respond to a qualified
written request (“QWR”) to correct his account. ECF 4 at 2, Supplement.

As indicated, to

support his claim, plaintiff attached to his Complaint two letters addressed to Bank of America
Home Loans. ECF 1-5, First Written Request; ECF 1-6, Second Written Request. The dates of
the letters do not appear on them.
As indicated, both letters from Mr. McGowens began as follows: “This is a ‘qualified
written request . . . .’” ECF 1-5 at 1; ECF 1-6 at 1; ECF 1-8 at 1. Mr. McGowens’s concern in
both letters appears to be that BOA is not the proper holder of the promissory note. ECF 1-5 at
3, First Written Request; ECF 1-6 at 3, Second Written Request. It is not clear based on the
Complaint whether BOA responded to plaintiff’s First Written Request or Second Written
Request. But, in the Supplement, plaintiff asserts: “Defendant has failed to send me a Qualified
Written Request when i [sic] requested it in writing”. ECF 4 at 2, Supplement.
In seeking dismissal of the RESPA claim, BOA argues: “Plaintiff cannot state a claim
under RESPA because he has identified no facts to demonstrate that a QWR was sent and he
does not allege damages as a result of the failure to respond to the QWR. Thus, this claim

22

should be dismissed with prejudice.” ECF 8-1 at 10, Def. Memo.
Congress enacted RESPA in order “to insure that consumers ... are provided with greater
and more timely information on the nature and costs of the settlement process and are protected
from unnecessarily high settlement charges caused by certain abusive practices....” 12 U.S.C. §
2601. Among other provisions, RESPA requires a mortgage servicer to respond to a borrower's
“qualified written request.” See 12 U.S.C. § 2605(e)(1)(A), (B). A QWR consists of written
correspondence from a borrower that identifies the borrower and account at issue, and “includes
a statement of the reasons for the belief of the borrower . . . that the account is in error or
provides sufficient detail to the servicer regarding other information sought by the borrower.” 12
U .S.C. § 2605(e)(1)(B).
Adopting a liberal construction of plaintiff’s Complaint and Supplement, and the two
undated letters appended by plaintiff, addressed to Bank of America Home Loans, plaintiff
alleges that he submitted two qualified written requests to BOA, and BOA failed to respond in
writing as required by RESPA. But, it is unclear when these events occurred and what damage
flowed from BOA’s alleged failure to respond to plaintiff’s requests.
Because § 2605(f) imposes liability for damages sustained “as a result of” the RESPA
violation, “[i]n order to state a claim for a RESPA violation in connection with a [QWR], a
plaintiff must allege actual damages resulting from a violation of § 2605.” Renfrow v. CTX
Mortg. Co., 2012 WL 3582752, at *7 (N.D. Tex. Aug. 20, 2012). See also, Van v. BAC Home
Loan Servicing LP, No. 4:10CV73, 2010 WL 9077597, at *4 (E.D. Va. Sept. 23, 2010)
(dismissing a RESPA claim because “[p]laintiff has identified no damage flowing from the
alleged delay in response time and/or the servicer’s failure to answer any particular question as is
required.”); McLean v. GMAC Mortgage Corp., 595 F. Supp. 2d 1360, 1366 (S.D. Fla. 2009)

23

(granting summary judgment for defendant as to plaintiff’s RESPA claim, because
notwithstanding violation of RESPA, plaintiffs incurred no damage); In re Tomasevic, 275 B.R.
103, 117 (Bankr. M.D. Fla. 2001) (“[Plaintiff] has offered no evidence of any damages
proximately caused by [defendant’s] violations of RESPA. The debtor is therefore not entitled to
recover . . . .”).
In his Opposition, plaintiff clarifies that in March 2013, he sent BOA a “‘qualified
written request’ as that term is defined under RESPA, 12 U.S.C. 2605(e) (1) (B), regarding the
crediting of payments on his mortgage account.” ECF 10 at 2, Opposition. Plaintiff asserts: “In
the qualified written request, the Plaintiff specified his reasons for belief that the account was not
in default and requested that Defendant Bank of America correct the error.” Id. He adds:
“Plaintiff also requested that Defendant Bank of America provide him with information and
documentation supporting its claim that the Plaintiff’s account was in default.” Id. Despite his
written request, plaintiff alleges that BOA did not provide a timely written response within
twenty days of receiving the request, nor did it correct his account within sixty days after
receiving the request. Id. According to plaintiff, BOA also provided information to consumer
reporting agencies about overdue payments that were the subject of his written requests. Id.
Based on these facts, plaintiff argues that BOA violated section 2605(e)(1)-(3) of RESPA and
“has engaged in a pattern or practice of non-compliance” with the requirements of the statute.
Id.
Neither the Complaint nor the Supplement articulate clearly any injury sustained by
plaintiff due to BOA’s alleged failure to supply a timely response to his written inquiries. In the
Opposition, however, plaintiff adds facts about BOA’s alleged negative reports to consumer
reporting agencies, a clear allegation of damage that is absent from the Complaint. But, a

24

plaintiff is prohibited from fixing the deficiencies of the Complaint through subsequent briefs.
Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 748 n.4 (D. Md. 1997), aff’d, 141 F.3d 1162 (4th Cir.
1998); Mylan Labs., Inc. v. Akzo, N.V., 770 F. Supp. 1053, 1068 (D. Md. 1991) (“[I]t is
axiomatic that the complaint may not be amended by the briefs in opposition to a motion to
dismiss.”) (internal quotations omitted).
The additional facts offered in the Opposition cannot be considered in analyzing the
Motion to Dismiss. Therefore, this claim is subject to dismissal, without prejudice.
6. Failure to Comply with the Court’s Order Docketed April 24, 2014
In seeking dismissal, BOA argues that the Complaint does not contain sufficient detail to
satisfy the pleading standards of Fed. R. Civ. P 8(a). ECF 8-1 at 5, Def. Memo. In a similar
vein, defendant contends that the Complaint is subject to dismissal because plaintiff failed to
comply with the Court’s Order docketed on April 24, 2014 (ECF 3) to supplement the Complaint
with more factual information. ECF 8-1 at 6, Def. Memo.
As indicated, by Order docketed on April 24, 2014 (ECF 3), I directed plaintiff to
supplement the facts of his Complaint and provide the following information, ECF 3 at 1:
1) the address of the foreclosed property in question; 2) the date of foreclosure; 3)
whether the property is or was the subject of proceedings in other state or federal
courts; 4) details of the “significant errors and misconduct” in the foreclosure
process (Complaint at 2; ECF No. 1) and the dates these alleged error[s] occurred;
and 5) whether Plaintiff has raised his concerns with Defendant prior to filing this
action.
In response, plaintiff filed a Supplement, ECF 4, but he did not address the deficiencies
identified in the Order. In large measure, the Supplement merely copied what was already set
forth in plaintiff’s initial Complaint, without identifying the address of the property that is the
subject of this litigation or the status of any foreclosure proceedings. See ECF 4.

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In order for defendant to prepare an adequate response to plaintiff’s claims, plaintiff must
notify the defendant of the precise nature of the allegations against it. See Twombly, supra, 550
U.S. at 555-56 & n.3. As noted, Fed. R. Civ. P. 8(a)(2) requires a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
Nonetheless, I will grant one more opportunity to plaintiff to amend his Complaint to
address the deficiencies identified in the Court’s Order of April 24, 2014 (ECF 3), and in this
Memorandum.
III. CONCLUSION
For the foregoing reasons, defendant’s Motion (ECF 8) will be granted, in part, and
denied, in part. Plaintiff’s claims under TILA and FDCPA, as well as his claims for fraud, will
be dismissed, with prejudice. Plaintiff’s claims for breach of contract and violations of RESPA
are dismissed, without prejudice, and with leave to amend the Complaint.
A separate Order follows, consistent with this Memorandum Opinion.

Date: March 12, 2015

/s/
Ellen Lipton Hollander
United States District Judge

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