Zerance v. BNC Mortgage, Inc. et al

Filing 15

MEMORANDUM Signed by Judge William M Nickerson on 11/24/2015. (c/m 11/24/15 cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MELISSA A. ZERANCE

v.
BNC MORTGAGE, INC. et al.
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Civil Action No. WMN-15-2883

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MEMORANDUM
Before the Court is a Motion to Dismiss filed on September
30, 2015, by Defendants Wells Fargo Bank, N.A. (Wells Fargo) and
U.S. Bank National Association, as Trustee for BNC Mortgage Loan
Trust 2006-2, Mortgage Pass-Through Certificates, Series 2006-2
(U.S. Bank).

ECF No. 12.

On October 1, 2015, the Clerk of the

Court sent a letter to Plaintiff, who is proceeding pro se,
informing her that a motion had been filed that could result in
the dismissal of her case and that she had 17 days from the date
of that letter to respond to the motion.
has not filed a response.

ECF No. 14.

Plaintiff

Upon review of the motion and the

applicable case law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that the motion will be
granted.
Plaintiff obtained a home mortgage from Defendant BNC
Mortgage, Inc. (BNC Mortgage) in 2006.

Shortly thereafter, BNC

Mortgage transferred the mortgage note to U.S. Bank.

Wells

Fargo became the servicer of the mortgage on behalf of U.S.
Bank.

On June 15, 2009, Plaintiff entered into a Loan

Modification Agreement with Wells Fargo.

As part of that

agreement, Plaintiff affirmed that the unpaid principal on the
mortgage loan was $164,382 and she agreed to capitalize the
outstanding interest, pay the unpaid principal balance plus
interest, and make monthly payments of $1,072.93.

ECF No. 12-3

at 36.
On or about September 2, 2014, Plaintiff defaulted on the
loan by failing to make those promised payments and, on May 8,
2015, a foreclosure action was initiated against Plaintiff in
the Circuit Court for Anne Arundel County, Maryland.

Plaintiff

then filed this Complaint in that same court asserting claims
for “Breach of Contract,” “Slander of Title,” “Declaratory
Relief,” and “Temporary Restraining Order and for Injunctive
Relief.”

ECF No. 2.

Defendants Wells Fargo and U.S. Bank1

timely removed the action to this Court and filed the instant
motion to dismiss.2

1

There is no indication in the record that the third Defendant
in this action, BNC Mortgage, was ever served with the Summons
and Complaint. It was, in fact, dissolved as a corporation in
2007. See ECF No. 1-4 (Report of Maryland State Department of
Assessments & Taxation).
2

With the Motion to Dismiss, Defendants attached certain public
records, including land records and filings from the state
foreclosure proceedings. ECF Nos. 2-2, 2-3, and 2-4. In that
Plaintiff did not file any opposition to the pending motion, the
2

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.

Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A

plaintiff's complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

Fed. R. Civ.

P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,’ rather
than a blanket assertion, of entitlement to relief.”
Corp. v. Twombly, 550 U.S. 544, 555 n. 3 (2007).

Bell Atl.

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).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light most favorable to the plaintiff.

See Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, however,

authenticity of those documents has not been challenged and the
Court can consider them in deciding the motion. Witthohn v.
Federal Ins. Co., 164 F. App’x 395, 396 (4th Cir. 2006) (noting
that, in ruling on a motion to dismiss, a court can consider
official public records so long as the authenticity of those
documents has not been disputed).
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unsupported legal allegations need not be accepted.

Revene v.

Charles Cnty. Comm’n, 882 F.2d 870, 873 (4th Cir. 1989).

Legal

conclusions couched as factual allegations are insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
devoid of any reference to actual events, United Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
The Court finds no factual support for any of Plaintiff’s
claims.

As to the breach of contract claim, Plaintiff appears

to allege that Covenant 23 of the Deed of Trust was breached
when BNC Mortgage transferred the mortgage to U.S. Bank.

See

Compl. ¶ 16 (alleging that BNC Mortgage, “for payment rendered,
divested itself of the Note and Deed of Trust but did not comply
with the covenants of the Deed of Trust, specifically Covenant
23”).

Covenant 23 of the Deed of Trust provides as follows:
Release. Upon payment of all sums secured by this
Security Instrument, Lender or Trustee, shall release
this Security Instrument and mark the Note paid and
return the Note to the Borrower. Borrower shall pay
any recordation costs. Lender may charge Borrower a
fee for releasing this Security Instrument, but only
if the fee is paid to a third party for services
rendered and the charging of the fee is permitted
under Applicable Law.

ECF No. 12-3, Deed of Trust at 13.

This Release provision, of

course, is not triggered by a simple transfer of the note.
Plaintiff makes no claim that she has satisfied the loan.

In

fact, when she entered into the Loan Modification Agreement in

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June of 2009, well after the transfer to U.S. Bank, she affirmed
her continued obligation to make payments under the note.
Plaintiff also appears to suggest that the Deed of Trust
was somehow breached by the failure to record the transfer of
the mortgage note, alleging that “[s]uch instrument remained
within the collateral file and was never submitted for
recordation to perfect defendants’ rights to real property.”
Compl. at 5.

There is no obligation, however, to record a

mortgage note, only the deed of trust must be recorded and a
copy of the Deed of Trust evidencing its recordation was
submitted with the Complaint.

See ECF No. 2 at 23 (copy of Deed

of Trust showing recordation beginning at Liber 1821, Folio
083).
Plaintiff’s “Slander of Title” claim appears to be premised
on the same erroneous contention as her Breach of Contract
claim.

“To maintain a claim for slander of title, also known as

the tort of injurious falsehood, a plaintiff must establish that
the defendant, with malice, published a known falsity to a third
party that caused special damages.”

Gibbons v. Bank of Am.

Corp., Civ. No. JFM-08-3511, 2012 WL 94569, at *10 (D. Md. Jan.
11, 2012).

In support of this claim, Plaintiff asserts that

“[h]ad BNC Mortgage, Inc. released the Property and surrendered
the Security Instrument to the person or persons legally
entitled to it upon the payment of all sums secured by BNC
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Mortgage, Inc., rather than breach the contract, Plaintiff would
have a clear and marketable title.”

Compl. ¶ 19.

As noted,

however, Plaintiff is not entitled to a release as she has yet
to repay her obligations under the lease and, thus, there was no
falsity concerning her title published by Defendants.
Plaintiff’s claims for declaratory and injunctive relief
fail for the same reasons.

Plaintiff seeks a declaration that

she is the sole title owner to the property based on the alleged
breach of Covenant 23 and that, based on her claim of sole title
to the property, seeks to enjoin the foreclosure proceedings in
the state court.

Beyond the faulty premise on which these

requests are based, they would also be denied in light of this
Court’s lack of jurisdiction over such requests.

See Tucker v.

Specialized Loan Servicing, LLC, 83 F. Supp. 3d 635, 641 (D. Md.
2015) (dismissing claims for declaratory and injunctive relief
that would preempt a state foreclosure action).
For these reasons, Defendants’ motion will be granted and
the Complaint dismissed in its entirety.

A separate order will

issue.

____________/s/______________________
William M. Nickerson
Senior United States District Judge

November 24, 2015

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