Willis v. Green Tree Servicing LLC

Filing 17

MEMORANDUM. Signed by Judge William M Nickerson on 3/12/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

WINFIELD T. WILLIS

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v.
GREEN TREE SERVICING, LLC
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Civil Action No. WMN-14-3748

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MEMORANDUM
Pending before the Court is a Motion for Remand to State
Court, ECF No. 10, filed by Plaintiff Winfield T. Willis and a
Motion to Dismiss, ECF No. 7, filed by Defendant Green Tree
Servicing, LLC (Green Tree).

The motions are fully briefed, the

Court determines that no hearing is necessary, Local Rule 105.6,
and for the reasons stated herein, Plaintiff’s motion will be
denied and Defendant’s motion will be granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, acting pro se, brings this action under the Real

Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et
seq (Count II);1 the Fair Debt Collection Practice Act (FDCPA),

1

Under Count II, Plaintiff also cites the “Consumer Financial
Protection Act,” and refers to Defendant failing to act “in
accordance with 1026.41 and . . . 1024.39.” ECF No. 2 at 9.
The Consumer Financial Protection Act of 2010 (CFPA), Pub. L.
11-203, Title X, 124 Stat. 1955 (codified as amended in
scattered sections of 12, 15, and 18 U.S.C.), which was part of
the larger Dodd-Frank Wall Street Reform and Consumer Protection
Act, established the Consumer Financial Protection Bureau (the
Bureau). Under this Act, the Bureau was charged with the

15 U.S.C. § 1592 (Counts X and XIII); the Maryland Consumer
Protection Act (MCPA), Md. Code Ann., Real Prop. § 13-101 et seq
(Counts I, III, IV, VIII, IX, and XII); the Maryland Mortgage
Fraud Protection Act (MFPA), Md. Code Ann., Real Prop. § 7-401
et seq (Count VII); Md. Code Ann., Real Prop. § 7-105 (Counts XI
and XIV); and various state common law claims (Counts V and VI)
for Defendant’s handling and servicing of his mortgage loan.
This case arises from a mortgage loan in the sum of
$350,000, obtained by Winfield Willis and Patricia Lewis, for
real property located at 2816 Hillsdale Road, Baltimore,
Maryland, 21207 (the Property).

The loan is evidenced by a

promissory note (the Note) and secured by a deed of trust (“Deed
of Trust”).

Only Plaintiff signed the Note but both Plaintiff

and Ms. Lewis signed the Deed of Trust.

Plaintiff has submitted

two versions of these documents – one dated December 15, 2005,
and one dated January 2, 2006.

The December 15, 2005, Note and

Deed of Trust – which Plaintiff claims are the true documents,
as December 15 “is the only date the Plaintiff remembers signing
any documents” -

is witnessed but not notarized.

ECF Nos. 2-9

authority to promulgate rules and regulations to “implement the
provisions of Federal consumer financial law.” 12 U.S.C. §
5512(a). Accordingly, the Bureau implemented regulations for
RESPA, which is the “1026.41” and “1024.39” to which Plaintiff
refers. See 12 CFR §§ 1026.41 and 1024.39. Therefore,
Plaintiff’s allegations that Defendant was not in compliance
with these federal regulations need not be considered
independently under the CFPA.
2

and 2-10.

The January 2, 2006, Note and Deed of Trust – which

Plaintiff claims are a forgery – are witnessed and notarized.2
ECF Nos. 2-5 and 2-6.

Plaintiff also alleges that this Note was

“robo signed” with three “Pay to the Order of” stamps.

ECF No.

2 ¶ 31.
On June 6, 2013, the Deed of Trust was assigned to
Defendant.

ECF No. 2-1.

On December 19, 2013, Defendant filed

an Affidavit of Deed of Trust Debt and Right to Foreclose in the
Circuit Court for Baltimore City, Maryland.

ECF No. 2-11.

On

February 14, 2014, Defendant assigned substitute trustees.
Then, on February 28, 2014, Green Tree filed an Affidavit of
Default and Mailing of Notice of Intent to Foreclose in Circuit
Court for Baltimore City, Maryland.

ECF No. 2-2.

As part of

the foreclosure process, Defendant submitted the affidavit of
Elaine Waterson, a Foreclosure Specialist, attesting that
Defendant was unable to conduct a Final Loss Mitigation Analysis
because there was no contact with the borrower.

2

ECF No. 2-3.

The Court notes that, in a separate action filed by Mr. Willis
against Bank of America and others before Judge Ellen Lipton
Hollander, Willis v. Bank of America Corp., Civ. No. 13-2615,
the defendants submitted a Limited Power of Attorney for
Correcting Typographical Errors signed by Mr. Willis on December
16, 2005. This document allowed the settlement attorneys to
correct any typographical errors and copy Mr. Willis and Ms.
Lewis’s signatures onto a corrected document. ECF No. 16-1.
The December 15, 2005, Deed of Trust contains such a
typographical error, listing Mr. Willis’ property as 2816
Hillside Road, not 2816 Hillsdale Road. Compare ECF No. 2-10 at
3 with ECF No. 2-6 at 3.
3

In its filings with the Circuit Court, Ms. Lewis is included as
a Borrower along with the Plaintiff.

Plaintiff contends that

such inclusion constitutes material misrepresentations and
deceptive trade practices in violation of MCPA.

ECF No. 2 at

11-12.
Plaintiff alleges that the first time he received any
notice of the foreclosure was on June 2, 2014, when Defendant’s
attorney, Samuel I. White, delivered a copy of the foreclosure
documents.

Id. ¶ 6.

He claims not to have received a notice of

Intent to Foreclose packet sent by Defendant on October 10,
2013.

Id. ¶ 8.

Plaintiff also claims that the first direct

communication with Defendant was on September 19, 2014, when
Defendant’s employee Maria Alvarado stated that the address on
file for Plaintiff was a location in Baton Rouge, Louisiana.
Id. ¶ 10.

Plaintiff has no connection with Baton Rouge.

Plaintiff alleges that all documents that Defendant was
obligated to send under RESPA and Maryland law must have gone to
this address.

Id. ¶ 12-14.

Plaintiff filed this case in the Circuit Court for
Baltimore City on October 17, 2014.
this Court on December 1, 2014.

Defendant then removed to

Plaintiff filed a Motion to

Remand to send this action back to the Circuit Court for
Baltimore City after Defendant filed its Motion to Dismiss all
claims.
4

II.

PLAINTIFF’S MOTION TO REMAND

Plaintiff makes three arguments to support his Motion to
Remand to State Court: (1) that Defendant’s removal of the
action to this Court was untimely under 28 U.S.C. § 1446, ECF
No. 10 ¶ 3; (2) that Plaintiff’s claims raise “a novel or
complex issue of State law” and that these State law claims
“substantially predominate” over his Federal law claims such
that the court should exercise its discretion to remand the
case, id. ¶ 10; and (3) that diversity jurisdiction does not
exist because a Maryland company is remotely attached to
Defendant’s ownership.3

Id. ¶ 13.

The Court finds none of these

arguments persuasive and will maintain jurisdiction over this
action.
First, Defendant timely removed to this Court on December
1, 2014.

28 U.S.C. § 1446 requires a defendant to remove a

civil action from state to federal court within 30 days of being
served with the complaint.
2014.

Defendant was served on October 28,

Plaintiff calculates the last day for removal as November

3

Plaintiff also argues that the Court may sever his state law
claims from his federal claims under 28 U.S.C. § 1441(c) because
“none of these federal questions are based on the underlying
facts for the other eleven (11) state law claims.” ECF No. 10
at 7. Even a brief review of the complaint shows that all of
Plaintiff’s claims “derive from a common nucleus of operative
facts,” Isaac v. North Carolina Dep’t of Transp., 192 F. App’x
197, 199 (4th Cir. 2006), namely Defendant’s alleged conduct in
servicing Plaintiff’s loan. Thus, severance under § 1441(c) is
inappropriate.
5

28, 2014, taking into account that the thirtieth day, November
27, 2014, was the Thanksgiving holiday.

ECF No. 10 at 4-5.

What Plaintiff does not take into account is that Friday,
October 28 was a Court holiday in accordance with Local Rule
504.1.

Therefore, the deadline for Defendant to remove was

December 1, 2014.

Defendant timely removed on that date.

Second, Plaintiff has not sufficiently articulated a reason
why the Court should exercise its discretion to remand back to
the Circuit Court for Baltimore City.

Section § 1367(c) of

Title 28 of the United States Code provides the Court with the
discretionary authority to decline to exercise its supplemental
jurisdiction over state law claims if such claims “raise[] a
novel or complex issue of State law” or “substantially
predominate[] over the . . . claims over which the district
court has original jurisdiction.”

Plaintiff argues that because

he brought eleven claims under Maryland law and three under
federal law, his state law claims are novel enough and so
predominate over his federal claims that remand is warranted.
He provides no further detail regarding the novelty of his
claims, nor does he articulate “in terms of proof, of the scope
of the issues raised, or of the comprehensiveness of the remedy
sought,”

United Mine Workers of America v. Gibbs, 383 U.S. 715,

726 (1966), why his Maryland claims predominate over his federal
claims.

To say simply that his Maryland claims are larger in
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number than his federal claim is insufficient ground to warrant
wholesale remand.

The Court, therefore, will exercise its

original jurisdiction authority over Plaintiff’s federal claims
and supplemental jurisdiction authority over the Maryland law
claims.
Finally, although the Court finds that it has subject
matter jurisdiction over this action, it will also reject
Plaintiff’s creative argument against diversity jurisdiction.

A

federal district court may exercise jurisdiction over a civil
action when the “matter in controversy exceeds the sum or value
of $75,000 . . . and is between citizens of different states.”
28 U.S.C. § 1332(a)(1).

For the purposes of diversity

jurisdiction, a corporation’s citizenship is derived from either
its state of incorporation or its principal place of business.
28 U.S.C. 1332(c).

Defendant is incorporated in Delaware and

has its principal office in Minnesota.

Therefore, it can claim

citizenship in Delaware and Minnesota, but not Maryland.
Plaintiff attempts to assign Maryland citizenship to Defendant
by stating that Walter Investment Management Corporation (Walter
Investment), a Maryland corporation, somehow owns Defendant.
ECF No. 10 ¶ 10.

Walter Investment is removed from Defendant by

eight layers of LLC ownership,4 all eight layers of which are

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The sole member of Defendant is Green Tree Licensing, LLC.
Green Tree Licensing, LLC’s sole member is Green Tree MH LLC.
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Delaware incorporated LLCs with a principal place of business in
either Minnesota or Florida.

It is an extreme stretch and

inappropriate under diversity jurisprudence to assign Walter
Investment’s Maryland citizenship to Defendant.

Plaintiff and

Defendant are citizens of different states and Plaintiff has
claimed in excess of $75,000 in damages; therefore, diversity
jurisdiction exists between the parties.

Plaintiff’s Motion to

Remand is denied in its entirety.

III. DEFENDANT’S MOTION TO DISMISS
A. Legal Standard
Defendant’s motion is governed by Fed. R. Civ. P. 12(b)(6)
and 9(b).

In evaluating a motion to dismiss filed pursuant to

Rule 12(b)(6), the Court must accept as true all well-pled
allegations of the complaint and construe the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff.

See Ibarra v. United States, 120

F.3d 472, 474 (4th Cir. 1997).

To survive dismissal, “a

complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’”

Ashcroft v.

Green Tree MH LLC’s sole member is Green Tree HE/HI LLC. Green
Tree HE/HI LLC’s sole member is Green Tree CL LLC. Green Tree
CL LLC’s sole member is Green Tree Investment Holdings II LLC.
Green Tree Investment Holdings II LLC’s sole member is Green
Tree Credit Solutions LLC. Green Tree Credit Solutions LLC’s
sole member is Walter Investment Holding Company, LLC. Walter
Investment Holding Company, LLC’s sole member is Walter
Investment Management Corp. ECF No. 10-1 at 2-3.
8

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.
Twombly, 550 U.S. 554, 570 (2007)).

“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.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Iqbal, 556

A court need not

accept a plaintiff’s legal conclusions as true, as “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

Thus,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Id. at 679.

Many of Plaintiff’s claims allege fraudulent conduct on the
part of Defendant.

Claims that sound in fraud implicate the

heightened pleading standard of Federal Rule of Civil Procedure
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.”

Under this Rule, 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.”
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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).
B. RESPA Claim: Count II
In Count II, Plaintiff alleges that Defendant violated §
2605 of RESPA when it used the address of 3834 Pensacola Drive,
Baton Rouge, Louisiana, 70814, as his official contact address.
By using that address, Plaintiff claims that Defendant did not
meet the notice requirements under the statute and did not
comply with federal regulations requiring Defendant to provide
periodic monthly statements and to establish early intervention
with delinquent consumers.

ECF No. 2 at 9. Plaintiff does not

articulate any injury or resulting damages, simply demanding
$600,000 in compensatory damages.

Id.

“[C]ourts have

consistently dismissed complaints under RESPA if they do not
allege actual damages or state merely that in a conclusory
fashion the defendant caused damages to the plaintiff.”
Corazzini v. Litton Loan Servicing LLP, Civ. No. 09-199, 2010 WL
6787231, at *12 (N.D.N.Y. June 15, 2010); See 12 U.S.C. §
2605(f)(1)(A) (“Whoever fails to comply with this section shall
be liable to the borrower . . . [for] any actual damages to the
10

borrower as a result of the failure.”).

Plaintiff’s demand is

insufficient to show that damages arose from Defendant’s using
the Baton Rouge address on file.

See Hutchinson v. Delaware

Sav. Bank FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006)
(“[A]lleging a breach of RESPA duties alone does not state a
claim under RESPA.

Plaintiffs must, at a minimum, also allege

that the breach resulted in actual damages.”).

Therefore, the

Court will dismiss Plaintiff’s RESPA claim.
C. MCPA Claims: Counts I, III, IV, VIII, IX, and XII
In Counts I, III, IV, VIII,5 IX, and XII, Plaintiff alleges
that Defendant violated the MCPA by failing to notify him that
it was the new servicer of his loan (Count I); by “deceitfully”
attaching the Baton Rouge, Louisiana, address to his file and
sending all correspondence there (Count III); by including
Patricia Lewis as a Defendant to the foreclosure action,
although she did not sign the Note or apply for a loan (Count
IV);

by providing a fabricated amount due under the Note and

Deed of Trust to the Circuit Court of Baltimore City (Count
VIII); by failing to show a clear chain of assignment that
establishes “standing” to foreclose (Count IX); and by failing

5

In Count VIII, Plaintiff does not formally cite the MCPA as the
source of his claim, but he captions the Count “Deceptive Trade
Practices.” His other MCPA claims are similarly captioned, so
the Court will include Count VIII in its review of the MCPA.
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to disclose information “relevant to an ordinary person and/or
unsophisticated consumer” (Count XII).
The MCPA prohibits commercial entities from engaging in any
“unfair or deceptive trade practice” in “[t]he collection of
consumer debts.”

Md. Code Ann., Com. Law § 13-303(5).

“To

state a claim under the MCPA, plaintiffs must adequately allege:
‘(1) an unfair or deceptive practice or misrepresentation that
is (2) relied upon, and (3) causes them actual injury.’”

Currie

v. Wells Fargo Bank, N.A., 950 F. Supp. 2d 788, 796 (D. Md.
2013) (citation omitted).

MCPA claims are subject to the

heightened pleading standard of Rule 9(b).

See Spaulding v.

Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013)
(“[T]he MCPA claim, which sounds in fraud, is subject to the
heightened pleading standards of [Rule 9(b)].”).
Plaintiff has failed to adequately plead across six counts
a cause of action under the MCPA.

Counts IV, VIII, and IX

detail allegations – that Ms. Lewis was wrongfully included as a
party to the foreclosure action, that the “Schedule of Charges”
filed in the action was fabricated, and that the Defendant has
not clearly demonstrated it has the ability to foreclose – that,
if true, would constitute misrepresentations to the Circuit
Court rather than to Plaintiff.

Whether Defendant’s conduct in

foreclosing on Plaintiff’s property has been deficient is a

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question best left to the Circuit Court to address.6

Counts IV,

VIII, and IX will be dismissed.
As to Counts I, III, and XII, Plaintiff fails to allege
that he relied on or suffered damages as a result of Defendant’s
conduct.

A party seeking to recover damages under the MCPA must

prove reliance.

See Bank of America, N.A. v. Jill P. Mitchell

Living Trust, 822 F. Supp. 2d 505, 533 (D. Md. 2011) (“The
requirement of reliance flows from the MCPA’s prescription that
the party’s ‘injury or loss’ be ‘the result of’ the prohibited
practice.”) (quoting Md. Code Ann., Com. Law § 13-408).

With

regards to a material misrepresentation, a “consumer relies on a
misrepresentation when the misrepresentation substantially
induces the consumer’s choice.”

Id.

Plaintiff has failed to

allege facts to show that he relied on Defendant’s
misrepresentations or omissions, nor does he explain how
Defendant’s alleged failures materially impacted his
circumstances or conduct.

Further, Plaintiff fails to show that

Defendant’s conduct caused him actual harm.

Accordingly, Counts

I, III, and XII will be dismissed.

6

Plaintiff specifically requests that “the Honorable Court
should Dismiss Patricia Lewis from the foreclosure proceeding”
as he argues that Defendant concedes that Ms. Lewis is not
financially obligated to pay the loan in question. ECF No. 14 ¶
20. This Court has no power to dismiss any party from a case
pending before the Circuit Court for Baltimore City.
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D. Maryland Breach of Contract and Fraud Claims: Counts V
and VI
In Counts V and VI, Plaintiff alleges that Defendant is
liable for “Breach of Contract,” “Common Law Fraud,” and
“Constructive Fraud” under Maryland law because Defendant used
the January 2, 2006, documents as the basis of its foreclosure
filing.

ECF No. 2 at 12-15.

Plaintiff fails to sufficiently

allege a cause of action under either a theory of contract or
fraud.

First, in order to claim a breach of contract, Plaintiff

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 defendant.”

Polek v. J.P.

Morgan Chase Bank, N.A., 36 A.3d 399, 416 (Md. 2012) (citation
omitted).

Plaintiff begins by alleging that Defendant filed

“false, fabricated, and counterfeit loan documents dated January
2, 2006, in its foreclosure filing which renders the documents
invalid and unenforceable.”

ECF No. 2 ¶ 65.

An invalid and

unenforceable contract, by its nature, establishes no obligation
owed by a defendant and can therefore produce no breach to
support a cause of action.

See Big Red, LLC v. Davines, S.P.A.,

31 F. App’x 216, 220 (4th Cir. 2002).

Plaintiff then goes on to

assert that Defendant breached its obligations under the Note
and Deed of Trust “by not disclosing to the Plaintiff that the
Defendants fraudulently and/or intentionally misrepresented the
14

fact that the Defendant’s [sic] illegally affixed the
Plaintiff’s signature to the Note and Deed of Trust dated
January 2, 2006.”

ECF No. 2 ¶ 72.

To the extent that this

statement is not conclusory, it fails to articulate the source
of Defendant’s obligation under either the Note or Deed of
Trust.

Plaintiff’s breach of contract claim consists of

“nothing more than mere conclusions and general averments of a
breach of a contractual duty.”

Cont’l Masonry Co. v. Verdel

Constr. Co., 369 A.2d 566, 569 (Md. 1977).
Second, Plaintiff’s allegations of fraud are insufficient
to state a cause of action.

Under Maryland common law “fraud

encompasses, among other things, theories of fraudulent
misrepresentation, fraudulent concealment, and fraudulent
inducement.”

Sass v. Andrew, 832 A.2d 247, 261 (Md. Ct. Spec.

App. 2003).

To plead a case of fraud, the plaintiff must show

that (1) the Defendant made a false representation to plaintiff;
(2) that its falsity was known by defendant or made with
reckless indifference to the truth; (3) that the
misrepresentation was made for the purpose of defrauding
plaintiff; (4) that the plaintiff relied on the
misrepresentation; and (5) that the plaintiff suffered injury as
a result of the reliance.
668 (Md. 1994).

See Nails v. S&R, Inc., 639 A.2d 660,

When pleading a case of fraud, the plaintiff is

subject to the heightened pleading standards of Federal Rule of
15

Civil Procedure 9(b).

Although Defendant’s subjective intent

may be presented generally, Plaintiff must be able to identify
the content of the false representation, when the representation
was made and by whom, and what was gained by making the
representation.

Plaintiff avers that he has met that standard

when he alleges that “the Defendant forg[ed] the Note and Deed
of Trust dated January 2, 2006, and record[ed] this false
document in public records.”

ECF No. 14 ¶ 7.7

This allegation

does not meet the particularity requirements beyond, perhaps,
providing a potential date of the misrepresentation.
As a result, the Court will dismiss Plaintiff’s Maryland
common law contract and fraud claims.
E. FDCPA Claims: Counts X and XIII
In Counts X and XIII, Plaintiff alleges that Defendant
violated the FDCPA by filing a foreclosure action in the Circuit
Court for Baltimore City and relying on the January 2, 2006,
documents in pursuing that action.

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“To establish a FDCPA claim,

Plaintiff also argues that, because he has called the
authenticity of the January 2, 2006, set of documents into
question, that Md. Code Ann., Com. Law § 3-308(a) requires
Defendant to “show proof that the instruments are valid by
providing the original instruments for examination by the Court
and Plaintiff.” ECF No. 14 ¶ 9. Section 3-308 applies when the
action is about the instrument itself, for example when a party
seeks to enforce it. Here, the action is not about the Note and
Deed of Trust itself but rather Defendant’s conduct in pursuing
its rights under these documents. Section 3-308 does not apply
in this action, although it may be relevant in the state
foreclosure proceedings.
16

a plaintiff must prove that: (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 the FDCPA.”

Booshahda v. Providence Dane LLC, 462 F. App’x

331, 333 (4th Cir. 2012).

Although it is now not disputed that

Defendant is a “debt collector” under the statute,8 Plaintiff’s
claims still fail since he has failed to allege that Defendant
engaged in an act or omission prohibited by the FDCPA.
Plaintiff alleges that Defendant violated the following sections
of the FDCPA: § 1692e(5) “by threatening to take and actually
taking action that they could not take in that they docketed the
Plaintiff’s foreclosure with the knowledge that they would
improperly supported [sic] the docketing with false, fabricated,
or counterfeit affidavits, note, deed of trust, and assignments,
etc,” ECF No. 2 ¶¶ 106, 125; and §§ 1692e(10) and 1692f when
“[e]very false, fabricated, or counterfeit affidavit, note, deed
of trust and assignment, etc. filed by Defendant in support of
the docketing of the Plaintiff’s foreclosure was a false

8

Defendant initially argued that it was not a debt collector
under the FDCPA under the belief that Plaintiff did not allege
that he was in default at the time Defendant assumed the
mortgage. ECF No. 7 at 24. Defendant then withdrew this
argument in its Reply noting that Plaintiff stated in the
complaint that “‘the alleged loan was classified as a default
loan at the time the Defendant began servicing the alleged
loan.’” ECF No. 16 at 12 (quoting ECF No. 2 ¶ 4).
17

representation or a deceptive means to collect or attempt to
collect a consumer debt.”

Id. ¶¶ 107, 126.

Section 1692e(5)

prohibits debt collectors from making a “threat to take any
action that cannot legally be taken or that is not intended to
be taken.”

Section 1692e(10) prohibits debt collectors from

using “any false representation or deceptive means to collect or
attempt to collect any debt or obtain information concerning a
consumer.”

Plaintiff has not alleged activity on the part of

the Defendant that violates these provisions.

Although

Plaintiff has alleged that the signatures on the January 2,
2006, documents have been forged, the documents in question are
factually correct as to the existence of debt and delinquency by
the Plaintiff and are nearly identical to the December 15, 2005,
documents on which Plaintiff relies.

Thus, a foreclosure action

could legally be taken by Defendant and initiating such action
does not constitute a threat against Plaintiff.
In addition, Defendant’s filings in the foreclosure action
do not constitute false representations or deceptive means used
to collect Plaintiff’s outstanding loan.

In order to

successfully “plead a claim of false representation under the
FDCPA, the party must show that the representations are
material.”
2013).

Lembach v. Bierman, 528 F. App’x 297, 303 (4th Cir.

Whether the representation is material “is determined

from the vantage of the ‘least sophisticated consumer,’
18

evaluating how that consumer ‘would interpret the allegedly
offensive language.’”

Powell v. Palisades Acquisition XVI, LLC,

No. 14-1171, 2014 WL 7191354, ___ F.3d ___, at *6 (4th Cir. Dec.
18, 2014).

The Fourth Circuit has “concluded that if a

statement would not mislead the unsophisticated consumer, then
it does not violate the FDCPA – even if it is false in some
technical sense.”

Fariasantos v. Rosenberg & Assoc., LLC, 2 F.

Supp. 3d 813, 817-18 (D. Md. 2014) (interpreting Lembach).

That

the Note and Deed of Trust were set on January 2, 2006, rather
than December 15, 2005, may be false in a technical sense, but
the identical contents of both sets of documents support the
undisputed fact that Plaintiff secured a mortgage for the
purchase of the Property and was in default.

See Stewart v.

Bierman, 859 F. Supp. 2d 754, 764-65 (D. Md. 2012) (“Even
assuming that the trustees’ signatures were not their own, the
signatures concern undisputedly accurate information concerning
mortgage debts owed by Plaintiffs.

The signatures do not relate

materially to the debt at issue, and Plaintiffs fail to assert
how the allegedly fraudulent signatures on indisputably accurate
court filings would mislead the least sophisticated consumer in
any way.”).
Finally, Plaintiff has failed to allege an independent
unconscionable action taken by Defendant and not otherwise
covered under the FDCPA to provide relief under 15 U.S.C. §
19

1692f.

Pursuant to § 1692f, “a debt collector may not use

unfair or unconscionable means to collect or attempt to collect
any debt.”

This section “allows the court to punish any other

unfair or unconscionable conduct not covered by the FDCPA.”
Lembach, 528 F. App’x at 303.

As such “the courts use § 1692f

to punish conduct that FDCPA does not specifically cover.”
at 304.

Id.

Therefore, “[a] complaint will be deemed deficient

under this provision if it ‘does not identify any misconduct
beyond which [p]laintiffs assert violate other provisions of the
FDCPA.’”

Johnson v. BAC Home Loans Servicing, LP, 867 F. Supp.

2d 766, 782 (E.D.N.C. 2011).

Here, Plaintiff does not allege

independent conduct to support a claim under § 1692f.

Instead,

he tacks § 1692f to his deficient § 1692e(10) claim.

Therefore,

Plaintiff’s claims under the FDCPA must be dismissed.
F. MFPA Claim: Count VII
In Count VII, Plaintiff alleges that Defendant violated the
MFPA when it “forged the Plaintiff’s signatures on the Note and
Deed of Trust dated January 2, 2006, and recorded the
instruments for public record” and by doing so “committed
mortgage fraud . . . with a pattern of constructive mortgage
fraud.”

ECF No. 2 ¶¶ 82-84.

Under the MFPA, mortgage fraud is

defined, in relevant part as
Any action by a person made with the intent to defraud
that involves:

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(1)

Knowingly making any deliberate
misstatement, misrepresentation, or omission
during the mortgage lending process with the
intent that the misstatement,
misrepresentation, or omission be relied on
by a mortgage lender, borrower, or any other
party to the mortgage lending process; . . .

(3)

Knowingly using or facilitating the use of
any deliberate misstatement,
misrepresentation, or omission during the
mortgage lending process with the intent
that the misstatement, misrepresentation, or
omission be relied on by a mortgage lender,
borrower, or any other party to the mortgage
lending process

Md. Code Ann., Real Prop. § 7-401(d).

In order to state a claim

under the MFPA, a plaintiff must make the same allegations as
required to prove a general case of fraud.

See Castle v.

Capital One, N.A., WMN-13-1380, 2014 WL 176790, at *5 (D. Md.
Jan 15, 2014).

An MFPA claim must also meet the heightened

pleading standard of 9(b).

Ademiluyi v. PennyMac Mortg. Inv.

Trust Holdings, LLC, 929 F. Supp. 2d 502, 532 (D. Md. 2013).
Plaintiff’s count of the MFPA violation fails to add any further
detail or specificity regarding Defendant’s alleged fraud than
what Plaintiff alleged in Counts V and VI.

Instead, he repeats

the conclusory allegation that the January 2, 2006, documents
were forged and then adds the more forceful conclusion that
Defendant committed “mortgage fraud.”

Through these statements,

Plaintiff continues to fail to allege particular facts

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sufficient to support a cognizable claim and thus Count VII must
be dismissed.
G. Md. Code Ann., Real Prop. § 7-105 et seq. Claims: Counts
XI and XIV
In Counts XI and XIV, Plaintiff alleges that Defendant is
liable under Md. Code Ann., Real Prop. § 7-105 et seq. because
Defendant failed to comply with the foreclosure and notice
provisions required under Maryland Law.

ECF No. 2 at 20-21, 24-

25. Sections 7-105.1 and 7-105.2 “regulate the notices to be
given and procedures to be followed in the state foreclosure
process.”

Stewart, 859 F. Supp. at 766.

If a lender or

assignee violates one of these provisions, the borrower may file
an action “within 3 years after the date of the order ratifying
sale.”

Md. Code Ann., Real. Prop. § 7-501.1(o); See also id. 7-

501.2(e).

The cause of action, therefore, accrues after the

foreclosure is complete and went unchallenged by the borrower.
“In other words, the mortgagor is entitled to litigate his
objections only once: he may defend against the original
foreclosure action directly, or he may bring a separate,
offensive suit within three years of the sale; he may not do
both.”

Jones v. HSBC Bank, 444 F. App’x 640, 645 (4th Cir.

2011).

In light of the ongoing foreclosure action in the

Circuit Court for Baltimore City, which Plaintiff appears to be
defending, it is clear that the time for a § 7-105 action has
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not yet accrued, and may even be barred completely.

Counts XI

and XIV will be dismissed.

IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Remand
will be DENIED and Defendant’s Motion to Dismiss will be
GRANTED.

A separate Order will issue.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

DATED:

March 12, 2015

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