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

Filing 77

MEMORANDUM ORDER mooting 71 Defendant Equifax's Motion for Joinder in Opposition to Plaintiffs Motion to Reconsider; and denying 66 Plaintiff's Motion for Reconsideration. Signed by Judge Richard D Bennett on 10/16/2015. (c/m 10/19/15 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.,
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Defendants.
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Civil Action No. RDB-14-2841

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MEMORANDUM ORDER

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Plaintiffs Dennis and Marion Siple (“the Siples” or “Plaintiffs”) originally brought a
thirteen-count Complaint arising out of a foreclosure dispute 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. This Court previously entered a
Memorandum Opinion (ECF No. 64) and Order (ECF No. 65) dismissing Plaintiffs’

Plaintiffs identified Mr. Soto solely in the caption of the subject Complaint. See Compl., 1, ECF No. 1. They
identified him as an agent for Mortgage Electronic Registration Systems, Inc.. Id. Yet, Plaintiffs never
explained, either in the Complaint or in its numerous submissions to this Court, how Mr. Soto was
individually liable for the alleged violations. As there was no indication of any specific claims against Mr. Soto,
nor an entry of default, Plaintiffs’ case was DISMISSED as to Juan Soto.
2 Ms. Sevier was identified as an agent for Bank of America, N.A.
3 Mr. Meyer, Mr. Ansell, Mr. Savitz, and Ms. Rosenberg were simply identified as trustees, presumably of the
deed of trust referenced by Plaintiffs throughout their Complaint. See generally Compl.
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Complaint with prejudice.

On May 29, 2015, Plaintiffs filed the pending Motion to

Reconsider (ECF No. 66), arguing that this Court misapplied the Maryland statute of
limitations, and erred in denying Plaintiffs’ Motion to amend their Complaint.

See id.

Additionally, Defendant Equifax filed a Motion for Joinder in Opposition to Plaintiffs’
Motion to Reconsider (ECF No. 71). This Court has reviewed the parties’ submissions and
no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow,
Equifax’s Motion for Joinder in Opposition to Plaintiffs’ Motion to Reconsider (ECF No.
71) is MOOT,4 and Plaintiffs’ Motion to Reconsider (ECF No. 66) is DENIED.
BACKGROUND
The background facts of this action were fully set forth in this Court’s Memorandum
of Opinion of May 15, 2015 (ECF No. 64). To summarize, this case arose out of a
foreclosure dispute between Plaintiffs Dennis and Marion Siple and the fifteen named
Defendants. See Compl. (ECF No. 1). 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 was not clearly stated, it appears that their claims
arose 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
On June 15, 2015, Experian filed a Response in Opposition to Plaintiffs’ Motion to Reconsider. See Mot. in
Opposition, ECF No. 69. That same day, Equifax filed a Joinder in Experian’s Motion in Opposition. See
Mot. for Joinder, ECF No. 71. As this Court is denying the Plaintiffs’ Motion for Reconsideration, this Court
need not reach the pending Motion for Joinder. This case remains dismissed with prejudice as to all
defendants.

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individual, promising a lower payment rate if they defaulted on their mortgage. Id. ¶¶ 76-77.
Over the next three months, the Siples failed to make their monthly mortgage payments and
thus defaulted. Id. ¶¶ 76.a-76.c. Nationstar, the current servicer of the loan, initiated
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 then 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. This Court
granted Defendants’ motion, and dismissed Plaintiffs’ Complaint with prejudice. See Mem.
Op., ECF No. 64; Order, ECF No. 65.
STANDARD OF REVIEW
Plaintiffs move to alter this Court’s judgment under Rule 59 of Federal Rules of Civil
Procedure. Rule 59(e) authorizes a district court to alter, amend, or vacate a prior judgment
if the relevant motion is filed within twenty-eight days of the offending judgment. Fed. R.
Civ. P. 59(e). In this case, Plaintiffs timely filed their Motion to Reconsider.

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The United States Court of Appeals for the Fourth Circuit has repeatedly recognized
that a final5 judgment may be amended under Rule 59(e) in only three circumstances: (1) to
accommodate an intervening change in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or prevent manifest injustice. See, e.g.,
Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n.8 (4th Cir. 2008). Moreover,
“[t]he district court has considerable discretion in deciding whether to modify or amend a
judgment.” Id. A Rule 59(e) motion “may not be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to entry of judgment.” Pac.
Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting 11 Wright, et al.,
Federal Practice and Procedure § 2810.1, at 127-28 (2d ed. 1995)).
Where a party seeks reconsideration on the basis of manifest error, the earlier
decision cannot be “‘just maybe or probably wrong; it must . . . strike us as wrong with the
force of a five-week old, unrefrigerated dead fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194
(4th Cir. 2009) (quoting Bellsouth Telesensor v. Info. Sys. & Networks Corp., Nos. 92-2355, 922437, 1995 WL 520978 at *5 n.6 (4th Cir. Sept. 5, 1995)). “In general, reconsideration of a
judgment after its entry is an extraordinary remedy which should be used sparingly.” Id.
(internal citations and quotation marks omitted).
ANALYSIS
In their Motion to Reconsider, the Siples do not allege any intervening changes in
controlling law nor contend new evidence has come to light. See generally Mot. to Reconsider.

Rule 59(e) applies only to final judgments. See Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462,
1469 (4th Cir. 1991).

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Instead, Plaintiffs contend that this Court erred (1) in its application of the Maryland statute
of limitations, and (2) by failing to permit Plaintiffs to amend the Complaint.
I.

The Maryland Twelve-Year Statute of Limitations Governing Promissory
Notes is Inapplicable
Plaintiffs’ Complaint levied a series of allegations that were time-barred under the

Maryland statute of limitations.6 The Siples, in moving for reconsideration, argue that this
Court’s application of the Maryland statute of limitations is clear error of law. See Mot. to
Reconsider. Federal courts sitting in diversity generally apply state statutes of limitations.
Rowland v. Patterson, 852 F.2d 108, 110 (4th Cir. 1988). In Maryland, the statute of limitations
for a civil action is “three years from the date it accrues unless another provision of the Code
provides a different period of time within which an action shall be commenced.” Md. Code
Ann., Cts. & Jud. Proc. § 5-101.
Plaintiffs argue that applying the general statute of limitations constitutes a clear error
of law for two reasons. First, Plaintiffs argue that this Court should have applied the twelveyear exception to the statute of limitations governing promissory notes.

See Mot. to

Reconsider. The twelve-year exception for promissory notes, however, applies to claims
arising from allegations of fraud found within the promissory note itself. See Onwumbiko v. JP
Morgan Chase Bank, N.A., No. 8:12-CV-01733-AW, 2012 WL 6019497, at *3 (D. Md. Nov.
30, 2012) aff'd, 532 F. App'x 404 (4th Cir. 2013). In Onwumbiko, this Court, applying the
Maryland statute of limitations, held that that the Plaintiffs’ claims of fraud and consumer

Plaintiffs’ causes of action included violations of the Fair Credit 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 Truth in Lending Act
(“TILA”), 15 U.S.C. § 1601, et seq., the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601,
et seq., and various state law claims sounding in negligence, contract, and real property. Mem. Op., at 2.

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protection were in fact based on allegations of false advertising and conspiratorial conduct
that were extraneous to the deed of trust. Id. As in Onwumbiko, the Siples’ claims stem from
initial alleged conduct of a “lending agent,” not the language of the original Note. See
Compl., ¶ 76. Their claims therefore fall under the general statute of limitations applicable
to each of their alleged causes of action, and not the twelve-year exception for promissory
notes.
Second, Plaintiffs contend that, under the “continuing transaction” doctrine, their
cause of action did not accrue in February of 2009, but instead renewed with each monthly
payment. See Mot. to Reconsider at 3. In Maryland, a cause of action “accrues under the
discovery rule when the plaintiff has knowledge of the legally operative facts permitting the
filing of a claim …” Master Fin., Inc. v. Crowder, 409 Md. 51, 61 (2009). According to their
Complaint, the Siples became aware of the disputed novation in February of 2009 when
First Franklin refused to recognize any modifications to the original agreement. See Compl.,
ECF No. 64. Although there may have been ongoing consequences from the original
alleged cause of action, “there was not a series of acts or course of conduct by [Defendants]
that would delay the accrual of a cause of action to a later date.” Duke St. Ltd. P’ship v. Bd. of
Cnty. Comm’rs of Calvert Cnty., 112 Md. App. 37, 52, (1996). This Court’s application of the
general Maryland statute of limitations thus was not a clear error of law.
II.

PLAINTIFFS ALLEGE NO BASIS TO AMEND THEIR COMPLAINT
The Siples contend that this Court erred in refusing their request to amend the

Complaint. A court need not afford a plaintiff with the opportunity to amend a complaint

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where “it is clear that amendment would be futile in light of the fundamental deficiencies in
plaintiffs’ theory of liability.” Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 630 (4th Cir.
2008). The Siples’ entire cause of action rests on the alleged 2008 phone call that they argue
resulted in a novated mortgage agreement. Compl. ¶¶ 76(a)-(d).7 Such a modification of the
agreement was impossible, however, under the original terms of the loan. Pursuant to
Paragraph Fifteen of the original Deed of Trust, “All notices given by Borrower or Lender in
connection with this Security Instrument must be in writing.” See Bank of America, First
Franklin, Nationstar, and Sevier’s Mot. to Dismiss Ex. A, ECF No. 37-2 (Deed of Trust).
These terms foreclose the possibility of enforcement of any modifications arising
from a phone call that was not accompanied by any formal writing. No amendment to the
Complaint would have changed the terms of the Deed of Trust. In any event, Plaintiffs
never filed a motion to amend the Complaint, and do not give any indication in their Motion
to Reconsider how an amended complaint might differ from the original. See Mot. to
Reconsider. Instead, Plaintiffs simply argue that this Court’s dismissal with prejudice was
“far too drastic.” Id. This constitutes an attempt to “relitigate old matters,” not a “clear error
of law.” Gagliano, 547 F.3d at 241.
CONCLUSION

7 Plaintiffs acted in reliance on this call, foregoing the next three payments, and then paid a lower amount on
the fourth payment than that pursuant to their original agreement. Id. Plaintiffs concede that after failing to
make their next three payments, First Franklin Financial Corp. refused to accept the reduced payment
amount, and informed them that they had in fact defaulted, unambiguously rejecting the existence of any
“novated” agreement. Id.

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For the foregoing reasons, Plaintiffs’ Motion to Alter Judgment fails to satisfy the
requirements of Rule 59(e) of the Federal Rules of Civil Procedure. Accordingly, it is this
16th day of October, 2015, HEREBY ORDERED that:
1. Defendant Equifax’s Motion for Joinder in Opposition to Plaintiffs’ Motion to
Reconsider (ECF No. 71) is MOOT;
2. Plaintiffs’ Motion to Reconsider (ECF No. 66) is DENIED; and
3. The Clerk of the Court transmit copies of this Memorandum Order to Counsel.

____/s/____________________
Richard D. Bennett
United States District Judge

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