Siple et al v. First Franklin Financial Corp. et al

Filing 64

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 5/15/2015. (c/m 5/15/15 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENNIS SIPLE and MARION SIPLE,

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Plaintiffs,

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v.

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FIRST FRANKLIN FINANCIAL
CORPORATION, et al.,

Civil Action No. RDB-14-2841

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Defendants.
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MEMORANDUM OPINION

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Plaintiffs Dennis Siple and Marion Siple (“the Siples” or “Plaintiffs”) bring this pro se
action against Defendants First Franklin Financial Corporation (“First Franklin”), U.S. Bank
National Association (“U.S. Bank”), Nationstar Mortgage, LLC (“Nationstar”), Bank of
America, N.A. (“Bank of America”), Mortgage Electronic Registration Systems, Inc.
(“MERS”), Juan Soto (“Soto”),1 Wendy Sevier (“Sevier”),2 Mark D. Meyer (“Meyer”), John
A. Ansell III (“Ansell”), Kenneth Savitz (“Savitz”), Diane S. Rosenberg (“Rosenberg”)3,
Equifax Information Services, LLC (“Equifax”), Trans Union, LLC (“Trans Union”),
Experian Information Solutions, Inc. (“Experian”), and twenty unnamed and unknown
parties.4 In a thirteen-count Complaint, the Siples allege violations of the Fair Credit

1 Plaintiffs identify Mr. Soto solely in the caption of the subject Complaint. See Compl., 1, ECF No. 1. They
identify him as an agent for Mortgage Electronic Registration Systems, Inc.. Id. Yet, Plaintiffs never explain, either
in the Complaint or in its numerous submissions to this Court, how Mr. Soto is individually liable for the alleged
violations. As there is no indication of any specific claims against Mr. Soto, nor an entry of default, Plaintiffs’ case
is DISMISSED as to Juan Soto.
2 Ms. Sevier is identified as an agent for Bank of America, N.A.
3 Mr. Meyer, Mr. Ansell, Mr. Savitz, and Ms. Rosenberg are simply identified as trustees, presumably of the deed of
trust referenced by Plaintiffs throughout their Complaint. See generally Compl.
4 Plaintiffs provide no information in their Complaint regarding the twenty unnamed individuals – no details
related to their roles in the alleged incidents, no facts indicating individual liability, or any information that could

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Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, et seq., the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. §§ 1962-1964, and various state law claims sounding in negligence,
contract, and real property. In addition, Plaintiffs request injunctive relief, as well as
declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201.
Currently pending before this Court are Defendants Bank of America, First Franklin,
Nationstar, and Sevier’s Motion for Extension of Time to Respond to Plaintiffs’ Complaint
(ECF No. 12); Defendant Trans Union’s Motion to Dismiss (ECF No. 13); Defendant
Experian’s Motion to Dismiss (ECF No. 15); Defendant Equifax’s Motion to Join Trans
Union and Experian’s Motions to Dismiss (ECF No. 35); Defendants Bank of America,
First Franklin, Nationstar, and Sevier’s Motion to Dismiss (ECF No. 37); Defendants Ansell,
Meyer, Rosenberg, and Savitz’s Motion to Dismiss (ECF No. 42); Defendant Equifax’s
Motion to Join Trans Union and Experian’s Replies in Support of their Motions to Dismiss
(ECF No. 54); Defendant U.S. Bank’s Motion for Leave to File Response to Plaintiff’s
Complaint (ECF No. 59); and Defendant U.S. Bank’s Motion to Join Bank of America, First
Franklin, Nationstar, and Sevier’s Motion to Dismiss (ECF No. 60). The parties’
submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md.
2014).
For the following reasons, Defendants Bank of America, First Franklin, Nationstar,
and Sevier’s Motion for Extension of Time to Respond to Plaintiffs’ Complaint (ECF No.

aid in identifying the unknown parties. See generally Compl. Given this lack of specificity and dearth of any
information relevant to the twenty unnamed and unknown parties, Plaintiffs’ case is DISMISSED WITH
PREJUDICE on all counts as to these individuals.

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12) is MOOT;5 Defendant Trans Union’s Motion to Dismiss (ECF No. 13) is GRANTED
WITH PREJUDICE; Defendant Experian’s Motion to Dismiss (ECF No. 15) is
GRANTED WITH PREJUDICE; Defendant Equifax’s Motion to Join Trans Union and
Experian’s Motions to Dismiss (ECF No. 35) is GRANTED;6 Defendants Bank of America,
First Franklin, Nationstar, and Sevier’s Motion to Dismiss (ECF No. 37) is GRANTED
WITH PREJUDICE; Defendants Ansell, Meyer, Rosenberg, and Savitz’s Motion to Dismiss
(ECF No. 42) is GRANTED WITH PREJUDICE; Defendant Equifax’s Motion to Join
Trans Union and Experian’s Replies in Support of their Motions to Dismiss (ECF No. 54) is
GRANTED;7 Defendant U.S. Bank’s Motion for Leave to File Response to Plaintiff’s
Complaint (ECF No. 59) is GRANTED;8 and Defendant U.S. Bank’s Motion to Join Bank
of America, First Franklin, Nationstar; and Sevier’s Motion to Dismiss (ECF No. 60) is
GRANTED.9 In sum, this case is DISMISSED WITH PREJUDICE as to all Defendants.
BACKGROUND
In a ruling on a motion to dismiss, this Court must accept the factual allegations in
the plaintiff’s complaint as true and construe those facts in the light most favorable to the

One day after Bank of America, First Franklin, Nationstar, and Ms. Sevier submitted their Motion for Extension
of Time, they filed an Amended Motion for Extension of Time (ECF No. 14). This Court granted Defendants’
Amended Motion three days later. Order, ECF No. 20. Accordingly, Defendants’ first Motion for Extension of
Time is MOOT.
6 Plaintiffs, in their Opposition to Equifax’s Motion (ECF No. 46), do not contest Equifax’s joinder. Instead, they
assert the same arguments levied against Experian and Trans Union’s respective Motions to Dismiss. As Plaintiffs
present no facts to distinguish between the three credit reporting agencies in the Complaint, Equifax may join
Experian and Trans Union’s Motions to Dismiss.
7 This Motion is granted on the same grounds as Equifax’s first Motion to Join (ECF No. 35).
8 Although U.S. Bank filed this Motion for Leave to File Response to Plaintiff’s Complaint approximately three
months after U.S. Bank was served with the Complaint, U.S. Bank explained that its counsel was retained
immediately prior to the filing of the pending Motion. See U.S. Bank Mot. for Leave to File Resp. to Pls.’ Compl.,
1-2, ECF No. 59. The Plaintiffs have identified no resulting prejudice, thus this Motion is GRANTED.
9 Again, Plaintiffs provide no information with which to distinguish between U.S. Bank and the Defendants whose
Motion to Dismiss U.S. Bank moves to join. Accordingly, U.S. Bank may join Bank of America, First Franklin,
Nationstar, and Sevier’s Motion to Dismiss (ECF No. 37).
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plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a
pro se litigant’s complaint should not be dismissed unless it appears beyond doubt that the
litigant can prove no set of facts in support of his claim that would entitle him to relief.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Yet, a plaintiff’s status as pro se does not
absolve him of the duty to plead adequately. See Stone v. Warfield, 184 F.R.D. 553, 555 (D.
Md. 1999) (citing Anderson v. Univ. of Md. Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989),
aff’d, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990)). As this Court has explained, even pro se
litigants must “state their claims in an understandable and efficient manner.” Bell v. Bank of
America, N.A., Civ. A. No. RDB-13-478, 2013 WL 6528966, *1 (D. Md. Dec. 11, 2013).
This case arises out of a foreclosure dispute between Plaintiffs Dennis and Marion
Siple and the fifteen named Defendants. See Compl. On May 12, 2007, Plaintiffs executed an
Adjustable Rate Note (“the Note) in the amount of $236,000 to refinance a property located
at 422 Big Elk Chapel Road in Elkton, Maryland (“the Property”). Id. ¶ 13. Plaintiffs also
executed a Deed of Trust for the Property on the same day. Id.; see also Bank of America,
First Franklin, Nationstar, and Sevier’s Mot. to Dismiss Ex. A, ECF No. 37-2 (Deed of
Trust).
Although Plaintiffs’ Complaint is not clearly stated, it appears that their claims stem
from an allegedly novated mortgage agreement. Compl. ¶¶ 76-76.d, 148. Essentially, in or
about October 2008, the Siples contend that they received a phone call from an unknown
individual, promising a lower payment rate if they defaulted on their mortgage. Id. ¶¶ 76-77.
Over the next three months, Plaintiffs paid less than their monthly mortgage payments and
thus defaulted. Id. ¶¶ 76.a-76.c. Nationstar, the current servicer of the loan, initiated
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foreclosure proceedings on March 14, 2014 in the Circuit Court for Cecil County, Maryland.
Id.; see also Mem. in Supp. of Bank of America, First Franklin, Nationstar, and Wendy
Sevier’s Mot. to Dismiss, 2, ECF No. 37-1. The Siples removed the foreclosure action to
federal court, but the action was remanded back to the state court on September 11, 2014.
See Mem. in Supp. of Bank of America, First Franklin, Nationstar, and Wendy Sevier’s Mot.
to Dismiss, at 2; see also Compl. ¶ 2.
Plaintiffs filed the subject action seeking $50,000,000 in damages, injunctive and
declaratory relief, various civil penalties, and other relief related to the foreclosure dispute.
Defendants subsequently moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. In their respective Motions to Dismiss, Defendants argue
that Plaintiffs’ lengthy and rambling Complaint fails to state any claims for which relief may
be granted.
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
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alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to
dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” to plead a claim); see also
Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (“Although we are
constrained to take the facts in the light most favorable to the plaintiff, we need not accept
legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments.” (internal quotation marks omitted)). In the context of pro se litigants, however,
pleadings are “to be liberally construed,” and are “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation
omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th Cir. 2010).
Second, even a pro se complaint must be dismissed if it does not allege “a plausible
claim for relief.” Iqbal, 556 U.S. at 679 (recognizing no pro se exception to the requirement to
plead a “plausible claim for relief”); see also O’Neil v. Ponzi, 394 F. App’x. 795, 796 (2d Cir.
2010) (“We must dismiss pro se complaints that are frivolous or fail to state a claim.”).
Although a “plaintiff need not plead the evidentiary standard for proving” her claim, she
may no longer rely on the mere possibility that she could later establish her claim. McClearyEvans v. Maryland Department of Transportation, State Highway Administration, __ F.3d __, 2015
WL 1088931, *11-12 (4th Cir. 2015) (emphasis omitted) (discussing Swierkiewicz v. Sorema
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N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal). Under the plausibility standard, a
complaint must contain “more than labels and conclusions” or a “formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555. While the plausibility requirement
does not impose a “probability requirement,” id. at 556, “[a] claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Robertson v.
Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a
case against a defendant or forecast evidence sufficient to prove an element of the claim. It need
only allege facts sufficient to state elements of the claim.” (emphasis in original) (internal
quotation marks and citation omitted)). In making this assessment, a court must “draw on
its judicial experience and common sense” to determine whether the pleader has stated a
plausible claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its]
claims across the line from conceivable to plausible to resist dismissal.” Wag More Dogs,
LLC, 680 F.3d at 365 (internal quotation marks omitted).
ANALYSIS
As previously explained, a complaint must succinctly and clearly state a claim for
which relief may be granted to survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Moreover, under the elevated requirements of Iqbal and
Twombly, a plaintiff, even a pro se plaintiff, must state a claim that is plausible. Iqbal, 556 U.S.
at 679. This claim must be supported by some facts sufficient to state a cognizable claim, and
not mere conclusory statements and allegations. Iqbal, 556 U.S. at 678.

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In its 173 paragraphs and thirteen counts, the subject Complaint fails to state one
claim for which relief may be granted, let alone thirteen. Far from identifying the applicable
law of each count and providing facts to support a plausible claim for relief, Plaintiffs often
omit any reference to law or facts. Rather, the nonsensical prose relies on conclusory
allegations and repetition of irrelevant legal jargon. Where relevant law is included, it is
unaccompanied by any facts to substantiate the claim. Further, instead of tailoring the facts
to each of the fifteen named defendants, the Siples provide no details to distinguish Bank of
America, for example, from Mark Meyer. Plaintiffs’ claims thus fail to rise “above the
speculative level” required to survive a motion to dismiss. Twombly, 550 U.S. at 547.
This Court acknowledges that “pro se plaintiff[s] [are] general[ly] given more leeway
than a party represented by counsel,” but the pro se plaintiff must provide sufficient detail in
his complaint to give the defendants reasonable notice of the charges they face. Bell, 2013
WL 6528966, at *1-2. In this case, Defendants have no reasonable notice of the nature or
circumstances of each pending claim. As a whole, the Complaint irrefutably violates the
pleading requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure. Yet, this
Court will examine the sufficiency of each individual claim.
A. Count One – Negligence (All Defendants)
In Count One, the Siples claim that all Defendants generally acted negligently,10
allegedly resulting in damage to Plaintiffs’ “credit rating [and] credit worthiness.” To assert a
claim of negligence under Maryland law, a plaintiff must plead: “(1) that the defendant was
under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty,

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Plaintiffs do not identify specific acts of negligence by the Defendants, individually or collectively.

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(3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately
resulted from the defendant’s breach of the duty.” Valentine v. On Target, Inc., 727 A.2d 947,
949 (Md. 1999) (quoting BG & E v. Lane, 656 A.2d 307, 311 (Md. 1995)). A negligence
claim, however, is subject to the general Maryland statute of limitations. Md. Code Ann., Cts.
& Jud. Proceedings § 5-101. A plaintiff thus must bring his claim within three years from the
date on which it accrues. Id.
Although it is difficult to determine the exact dates during which the asserted
negligence occurred, it appears that the Siples’ claims stem from the creation of the Note in
May 2007, as well as the alleged call and subsequent default between October 2008 and
February 2009. See Compl. ¶¶ 13, 76-77, 84, 126, 148, 151. Plaintiffs’ negligence claim thus
accrued, at the latest, in February 2009. Plaintiffs filed the instant lawsuit, however, on
September 8, 2014, over two years after the expiration of the three-year statute of
limitations. Accordingly, Plaintiffs have failed to state a claim for which relief may be
granted, and Count One is DISMISSED WITH PREJUDICE against all Defendants.
B. Count Two – Declaratory Judgment (All Defendants)
In Count Two, the Siples seek a declaratory judgment because “[a] good faith case
and controversy has arisen concerning the prospective duties, rights and remedies incumbent
upon the parties in their action by reason of defendants’ claims to equitable title and rights
thereunder.” Id. ¶ 46. Under the Declaratory Judgment Act, 28 U.S.C. § 2201, a plaintiff
must sufficiently plead three factors. Clay v. Chase Bank USA, N.A., Civ. A. No. 08:10-2169AW, 2011 WL 1066570, *5 (D. Md. Mar. 21, 2011). First, “the complaint must allege an
actual controversy between the parties of sufficient immediacy and reality to warrant
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issuance of a declaratory judgment.” Id. Second, the presiding court “must possess an
independent basis for jurisdiction over the parties.” Id. Finally, the court “must decide
whether to exercise its discretion to determine or dismiss the action.” Id. Declaratory relief is
prudent “(1) when the judgment will serve a useful purpose in clarifying and settling the legal
relations in issue, and (2) when it will terminate and afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.” Tobar-Barrera v. Napolitano, Civ. A.
No. RDB-10-0176, 2010 WL 972557, *3 (D. Md. Mar. 12, 2010) (citing Aetna Casualty &
Surety Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937)).
Viewing the Complaint in the light most favorable to the Plaintiffs, it is still nearly
indecipherable. It is unclear how a declaratory judgment could clarify the “legal relations in
issue.” In fact, it is not even apparent from the Complaint which legal authority would settle
the dispute. Second, rather than providing any details as to how a declaratory judgment
would resolve the subject controversy, the Siples state merely that such a judgment would
end the “good faith case and controversy.” Compl. ¶ 46. Instead of providing any facts for
this Court to consider in exercising its discretion to resolve the dispute, Plaintiffs merely
repeat the factors of a declaratory judgment. Count Two is DISMISSED WITH
PREJUDICE as to all Defendants.
C. Count Three – Temporary Restraining Order and Preliminary Injunction (All
Defendants)
In Count Three, Plaintiffs seek to enjoin the foreclosure sale of the Property, as well
as any collection on or enforcement of the Note. As the United States Supreme Court
explained in Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008), a temporary
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restraining order (TRO) or preliminary injunction are “extraordinary remed[ies] that may
only be awarded upon a clear showing that the plaintiff is entitled to such relief.” The
standard set forth by the Supreme Court in Winter governs the entry of a preliminary
injunction or TRO in federal courts. The Real Truth About Obama v. FEC, 575 F.3d 342 (4th
Cir. 2009), vacated, 130 S. Ct. 2371 (2010), reinstated in part, 607 F.3d 356 (4th Cir. 2010). Thus,
a claimant must demonstrate:
(1) likelihood to succeed on the merits,
(2) likelihood to suffer irreparable harm in the absence of preliminary
relief,
(3) that the balance of equities tips in favor, and
(4) the injunction is in the public interest.
Id. at 347 (quoting Winter, 555 U.S. at 22). All four requirements must be satisfied. The Real
Truth About Obama, 575 F.3d at 345-46.
In this case, the Siples cannot satisfy any of the Winter requirements. In fact, they
provide no facts specific to this standard. Instead, Plaintiffs merely claim that “all the
elements exist for injunctive issuance.” Compl. ¶ 52. They claim that all necessary
information is set forth in an “Application for TRO and Preliminary Injunction,” but attach
no such document to the Complaint. Id. Given Plaintiffs’ conclusory allegations and lack of
any specific details justifying injunctive relief, they have failed to state a claim for which relief
may be granted. Accordingly, Count Three is DISMISSED WITH PREJUDICE as to all
Defendants.
D. Count Four – Fraudulent Intentional Misrepresentation (All Defendants
Except Experian, Equifax, and Trans Union)

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In Count Four, the Siples contend that they “were deceived about a benefit that
would materially affect their position contractually under the Promissory Note.” Id. ¶ 75.
Under Maryland law, a claim of fraudulent intentional misrepresentation is governed by the
general three-year statute of limitations. See Md. Code Ann., Cts. & Judicial Proceedings § 5101. As previously noted, the latest date at which Plaintiffs’ claim could accrue was February
2009. Plaintiffs did not file their Complaint until September 8, 2014, over two years after the
expiration of the three-year statute of limitations. Even if the Siples had satisfied the
requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, their claim of
fraudulent intentional misrepresentation is time-barred. Count Four is thus DISMISSED
WITH PREJUDICE as to all Defendants named in the count.
E. Count Five – Breach of Implied Covenant Good Faith and Fair Dealing (All
Defendants Except Experian, Equifax, and Trans Union)
In Count Five of the subject Complaint, the Siples contend that the named
Defendants breached the implied covenants of good faith and fair dealing by enforcing and
attempting to collect on the Note when Plaintiffs defaulted in October 2008-February 2009.
Compl.

¶¶

83.1-83.2.

Like

claims

for

negligence

and

fraudulent

intentional

misrepresentation, Plaintiffs’ claim in Count Five must be filed within three years of the date
on which the cause of action accrues. See Md. Code Ann., Cts. & Judicial Proceedings § 5101. Plaintiffs defaulted, at the latest, in February 2009. Their claim for breach of the implied
covenant of good faith and fair dealing is thus time-barred because they filed the instant
action over two years after the latest specified date of accrual. Accordingly, Count Five is
DISMISSED WITH PREJUDICE as to all Defendants named in the count.
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F. Count Six – Quiet Title (All Defendants)11
In Count Six, the Siples seek to quiet title to the Property against any claims by
Defendants. Compl. ¶ 109. Under Maryland law, a “person in actual peaceable possession of
property” may bring a quiet title action “when his title to the property is denied or disputed,
or when any other person claims . . . to hold any lien encumberance on it[.]” Md. Code Ann.,
Real Property § 14-108(a). An action to quiet title serves to “protect the owner of legal title
from being disturbed in his possession and from being harassed by suits in regard to his title
by persons setting up unjust and illegal pretensions.” Wathen v. Brown, 429 A.2d 292, 294
(Md. Ct. Spec. App. 1981) (quoting Textor v. Shipley, 26 A. 1019, 1019-20 (Md. 1893)).
A plaintiff must demonstrate “both possession and legal title with ‘clear proof’” to
sustain a quiet title action. Flores v. Deutsche Bank Nat’l Trust Co., Civ. A. No. DKC-10-0217,
2010 WL 2719849, *7 (D. Md. July 7, 2010) (quoting Stewart et al. v. May, 73 A. 460, 463-64
(1909)); see also Porter v. Schaffer, 728 A.2d 755, 766-67 (Md. Ct. Spec. App. 1999). Yet, even a
possessor of legal title, however, may fail. Where a debt remains outstanding, and the obligor
presents no plausible reason for rescission of the mortgage, he does not have a claim of quiet
title for which relief may be granted. Johnson v. Prosperity Mortgage Corp., Civ. A. No. AW-112532, 2011 WL 5513231, *4 (D. Md. Nov. 3, 2011).
In this case, the Siples do not possess legal title to the Property, nor do they claim
that the Property is free of encumbrances. See Compl. ¶¶ 13, 14. Through the Deed of Trust,
Plaintiffs transferred legal title to the trustees. See Fagnani v. Fisher, 14 A.3d 282, 289 (Md.
2011) (explaining that a deed of trust “is a security interest device that transfers the legal title

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Specifically, the Siples bring Count Six against “All Defendants Claiming Rights to Subject Property.”

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from a property owner to one or more trustees to be held for the benefit of a beneficiary”)
(internal citation omitted). Moreover, although the Siples contend that a novation occurred,
they do not dispute the presence of encumbrances on the Property, nor have they presented
a plausible claim for rescission.12 As the Siples cannot satisfy the conditions precedent for a
quiet title, they cannot state a claim for which relief may be granted. For the foregoing
reasons, Count Six is DISMISSED WITH PREJUDICE as to all Defendants.
G. Count Seven – Accounting (All Defendants Except Experian, Equifax, and
Trans Union)
In Count Seven, the Siples seek an “accounting of their entire loan account from any
and all defendants[.]” Compl. ¶ 24. Under Maryland law, a suit for an accounting is equitable
in nature and “may be maintained when the remedies at law are inadequate.” P.V. Props. Inc.
v. Rock Creek Village Assocs. Ltd. P’Ship, 549 A.2d 403, 409 (Md. Ct. Spec. App. 1988) (citing
Nagel v. Todd, 45 A.2d 326 (Md. 1946)). Specifically,
An accounting may be had where one party is under an obligation to
pay money to another based upon facts and records which are known
and kept exclusively by the party to whom the obligation is owed, or
where there is a confidential or fiduciary relation between the parties,
and a duty rests upon the defendant to render an account.
Id.
In this case, none of the circumstances identified by the Maryland Court of Special
Appeals are present. Although the Siples were obligated to pay money to First Franklin and
its successors in interest, the relevant records were available to all parties. The Siples have
not alleged that they never received the relevant documents.

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Rescission will be addressed in Count Twelve.

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Moreover, the Siples were not in a confidential or fiduciary relation with any of the
named Defendants. First, a confidential relation arises “between two persons when one has
gained the confidence of the other and purports to act or advise with the other’s interest in
mind.” Buxton v. Buxton, 770 A.2d 152, 164 (Md. 2001). The Siples have identified no facts
indicating such a relationship with any Defendant. Similarly, they offer no facts indicating
the presence of a fiduciary relationship with any Defendant. After all, the relationship
between a “bank [and] its customer in a loan transaction is ordinarily a contractual
relationship between debtor and creditor, and is not fiduciary in nature.” Yousef v. Trustbank
Savings, F.S.B., 568 A.2d 1134, 1138 (Md. 1990) (internal citations omitted). Regarding the
trustee Defendants, a trustee of a deed of trust is in a fiduciary relationship only with the
beneficiary – and Plaintiffs are not the beneficiary. Accordingly, Count Seven is
DISMISSED WITH PREJUDICE against all Defendants named in the count.
H. Count Eight – Fair Debt Collection Practices Act (All Defendants)
In Count Eight of the Complaint, the Siples claim that Defendants violated the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692. Compl. ¶¶ 126-27. Claims
brought pursuant to the FDCPA, however, are subject to a one-year statute of limitations
from the date on which the cause of action accrues. 15 U.S.C. § 1692k(d). Here, the latest
date specified in the Complaint on which the cause of action accrued is February 2009.
Plaintiffs thus filed the subject lawsuit over four years after the expiration of the statute of
limitations. As their claim is time-barred, Count Eight is DISMISSED WITH PREJUDICE
as to all Defendants.

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I. Count Nine – Specific Performance by Promissory or Equitable Estoppel (All
Defendants Except Experian, Equifax, and Trans Union)
In Count Nine, the Siples seek specific performance of the alleged oral contract
created by the unnamed caller. Compl. ¶ 147. Yet, a claim for specific performance is
governed by the general three-year statute of limitations. Md. Code Ann., Cts. & Judicial
Proceedings § 5-101. For the reasons articulated with regards to Counts One (Negligence)
and Five (Breach of Implied Covenant of Good Faith and Fair Dealing), Count Nine is
DISMISSED WITH PREJUDICE as to all Defendants named in the count.
J. Count Ten – Breach of Written and Oral Contract (All Defendants)
In Count Ten, the Siples inexplicably contend that all Defendants breached the terms
of the Note and an alleged second contract not to foreclose on the Property. Compl. ¶¶ 149152. Like the preceding claim for specific performance, a breach of contract claim is subject
to the general three-year statute of limitations. Md. Code Ann., Cts. & Judicial Proceedings §
5-101. For the reasons articulated in Counts One (Negligence), Five (Breach of Implied
Covenant of Good Faith and Fair Dealing), and Nine (Specific Performance), Count Ten is
DISMISSED WITH PREJUDICE as to all Defendants.
K. Count Eleven – Racketeering Influenced Corrupt Organizations Act (All
Defendants)
In Count Eleven, the Siples allege that each Defendant has “taken and committed
acts that violate” the Racketeering Influenced Corrupt Organizations Act (“RICO”), 18
U.S.C. §§ 1962-1964. Compl. ¶ 159. A civil RICO claim, however, “is a unique cause of
action that is concerned with eradicating organized, longterm, habitual criminal activity.”
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U.S. Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 317 (4th Cir. 2010) (citation omitted).
As this Court explained in Yesko v. Fell, Civ. A. No. ELH-13-3927, 2014 WL 4406849, *7-8
(D. Md. Sept. 14, 2014) (quoting Biggs v. Eaglewood Mortgage, LLC, 582 F. Supp. 2d 707, 714
(D. Md. 2008)), “RICO treatment is reserved for conduct whose scope and persistence pose
a special threat to social well-being.” A plaintiff must thus allege that “defendants engaged in
a pattern of racketeering activity” of the nature befitting a civil RICO claim. Al-Abood ex rel.
Al-Abood v. El-Shamari, 217 F.3d 225, 238 (4th Cir. 2000) (citing 18 U.S.C. §§ 1962, 1964). To
demonstrate a “pattern of racketeering activity,” a plaintiff must plead at least two predicate
acts. Yesko, 2014 WL 4406849, at *8.
In this case, the Siples have pleaded neither a pattern of racketeering activity nor any
predicate acts. Instead, they merely restate the provisions of 18 U.S.C. §§1962, 1964. See
Compl. ¶¶ 160-160.a. Following the recitation of the RICO provisions, Plaintiffs assure this
Court that they “have sufficiently alleged” a civil RICO claim without providing facts
specific to any Defendant. Id. ¶ 162. Without any facts articulating the underlying pattern of
racketeering activity, nor any effort to tailor the claim to each Defendant, the Siples have not
pleaded a plausible civil RICO claim under Iqbal and Twombly. Accordingly, Count Eleven of
the subject Complaint is DISMISSED WITH PREJUDICE as to all Defendants.
L. Count Twelve – Rescission of Note and Deed of Trust and Restitution of
Sums Paid (All Defendants Except Experian, Equifax, and Trans Union)
In Count Twelve, the Siples seek rescission of the Note and Deed of Trust, as well as
restitution of at least $200,000. Compl. ¶¶ 165-66. Plaintiffs contend that Defendants
violated unspecified provisions of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601, et
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seq., and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq. Id. ¶
165. Under this authority, the Siples claim that they possess “a right to rescind the active
note and deed of trust as a consequence.” Id. ¶ 165. Any action pursuant to TILA, however,
must be filed within one year from “the date of the occurrence of the violation[.]” 15 U.S.C.
§ 1640(e). Similarly, any RESPA claim is subject to a one-year or three-year statute of
limitations, depending on the specific provision under which the claim is brought. 12 U.S.C.
§ 2614.
Plaintiffs’ claim for rescission and restitution under TILA and RESPA is thus timebarred. Althought the Siples do not identify which provisions Defendants allegedly violated,
the longest possible limitations period is three years, or February 2012. Plaintiffs, however,
filed the instant lawsuit over two years after the expiration of the limitations period. Count
Twelve is accordingly DISMISSED WITH PREJUDICE as to all named Defendants.
M. Count Thirteen – Fair Credit Reporting Act (All Defendants)
In Count Thirteen of the Complaint, the Siples claim that Defendants violated the
Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681, et seq., resulting in damage to their
individual and joint credit ratings. Compl. ¶¶ 171. Claims brought pursuant to the FCRA,
however, are subject to a statute of limitations measured “not later than the earlier of . . . two
years after the date of discovery by the plaintiff of the violation that is the basis for such
liability; . . . or five years after the date on which the violation that is the basis for such
liability occurs.” 15 U.S.C. § 1681p. Although Plaintiffs do not identify when any alleged
violations occurred, it appears that February 2009 is the latest (and only) date named in the
Complaint. Plaintiffs provide no facts to indicate that they discovered the alleged violations
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at any point after that date. The limitations period thus expired in February 2011, but the
Siples did not file the subject action until September 8, 2014. Moreover, had they timely
filed, they do not even identify which provision Defendants allegedly violated. For the
foregoing reasons, Count Thirteen fails to state a claim for which relief may be granted is is
thus DISMISSED WITH PREJUDICE as to all Defendants.
CONCLUSION
For the reasons stated above, Defendants Bank of America, First Franklin,
Nationstar, and Sevier’s Motion for Extension of Time to Respond to Plaintiffs’ Complaint
(ECF No. 12) is MOOT; Defendant Trans Union’s Motion to Dismiss (ECF No. 13) is
GRANTED WITH PREJUDICE; Defendant Experian’s Motion to Dismiss (ECF No. 15)
is GRANTED WITH PREJUDICE; Defendant Equifax’s Motion to Join Trans Union and
Experian’s Motions to Dismiss (ECF No. 35) is GRANTED; Defendants Bank of America,
First Franklin, Nationstar, and Sevier’s Motion to Dismiss (ECF No. 37) is GRANTED
WITH PREJUDICE; Defendants Ansell, Meyer, Rosenberg, and Savitz’s Motion to Dismiss
(ECF No. 42) is GRANTED WITH PREJUDICE; Defendant Equifax’s Motion to Join
Trans Union and Experian’s Replies in Support of their Motions to Dismiss (ECF No. 54) is
GRANTED; Defendant U.S. Bank’s Motion for Leave to File Response to Plaintiff’s
Complaint (ECF No. 59) is GRANTED; and Defendant U.S. Bank’s Motion to Join Bank
of America, First Franklin, Nationstar; and Sevier’s Motion to Dismiss (ECF No. 60) is
GRANTED. In sum, this case is DISMISSED WITH PREJUDICE as to all Defendants.

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A separate Order follows.

Dated:

May 15, 2015

/s/______________________________
Richard D. Bennett
United States District Judge

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