Sall v. Buonassissi et al
Filing
60
MEMORANDUM OPINION (c/m to Plaintiff 11/28/11 sat). Signed by Chief Judge Deborah K. Chasanow on 11/28/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MOHAMMED A. SALL
:
v.
:
Civil Action No. DKC 10-2245
:
JOSEPH V. BUONASSISSI, II,
et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this Truth in
Lending Act (“TILA”) case are two motions:
Plaintiff’s motion
for leave to file a second amended complaint (ECF No. 46), and a
motion for leave to withdraw as counsel filed by Plaintiff’s
counsel (ECF No. 58).
The issues have been briefed, and the
court now rules, no hearing deemed necessary.
Local Rule 105.6.
For the following reasons, the motion for leave to file a second
amended complaint will be granted in part and denied in part,
and the motion for leave to withdraw as counsel will be granted.
I.
Background
This case presents a dispute between Plaintiff Mohammed A.
Sall and his mortgage lenders and servicers.
As two opinions in
this case have come before this one, some familiarity with the
facts is assumed.
See Sall v. Buonassissi, No. DKC 10-2245,
2011 WL 2791254 (D.Md. July 13, 2011); Sall v. Buonassissi, No.
DKC 10-2245, 2010 WL 5139032 (D.Md. Dec. 10, 2010).
A.
Factual Background
In August 2006, Sall sought to refinance his home through
Fremont
Investment
and
Loan
(“Fremont”).
In
his
original
complaint, Sall alleged that Fremont misrepresented the nature
of the loan, in part, by misstating some required disclosures
and entirely failing to make others.
Most importantly, Sall
alleged that his TILA disclosure statement did not accurately
disclose his payment schedule.
Sall presumably was unable to make the required payments on
his loan, which led to his lender, then Wells Fargo Bank, N.A.
(“Wells Fargo”), initiating foreclosure proceedings against him.
According
to
Deutsche
Bank
trustee
for
the
original
National
Sall’s
complaint,
Trust
loan,
Fremont
Company
though
members
had
(“Deutsche
of
the
appointed
Bank”)
law
firm
as
of
Buonassissi, Henning & Lash, P.C. (“the Buonassissi Trustees”)
served as substitute trustees.
B.
Procedural Background
On May 6, 2010, Sall filed suit against Fremont, Wells
Fargo, Deutsche Bank, the Buonassissi Trustees, and America’s
Servicing
Company
(“ASC”).1
After
removal
to
this
court,
Defendants filed answers in the fall of 2010 (ECF Nos. 15, 19),
and the court entered a scheduling order (ECF No. 20).
1
Sall originally
interest to Fremont.
alleged
2
that
ASC
was
a
Over the
successor-in-
next several months, all Defendants moved for judgment in their
favor in one form or another.2
It was not until April 2011,
however, that the court learned that Sall’s original counsel had
left his prior law firm and could not be located.
not
moved
to
withdraw
from
the
case
nor
Counsel had
had
he
otherwise
provided any indication that he was no longer counsel of record.
The court notified Sall of this development, and Sall retained
new counsel immediately.
Douglas
N.
Gottron,
On May 13, 2011, Sall’s new counsel,
appeared
in
the
case.
(ECF
No.
32).
Gottron twice requested and received additional time to respond
to the outstanding motions filed by Defendants (ECF Nos. 34,
36), which he did on June 7, 2011 (ECF Nos. 39, 40).
One day before he filed the oppositions, Gottron filed a
motion for leave to amend the original complaint.
(ECF No. 37).
On July 13, 2011, this court issued a memorandum opinion and
order granting in part and denying in part the motion.
Nos. 44, 45).
(ECF
The order permitted Plaintiff to file an amended
complaint within twenty-one days, but it did so with specific
directions:
it allowed a claim for wrongful refusal to rescind
to
against
proceed
only
ASC,
and
2
it
allowed
a
claim
for
On November 30, 2010, Fremont filed a motion for judgment
on the pleadings.
(ECF No. 23).
On March 7, 2011, the
remaining Defendants moved for summary judgment. (ECF No. 29).
3
declaratory judgment to proceed against Wells Fargo, Fremont,
ASC, and Deutsche Bank.
(ECF No. 45).3
On August 3, 2011, instead of filing an amended complaint
as directed, Plaintiff filed a motion for leave to file a second
amended complaint.
(ECF No. 46).
The new complaint appears to
drop Fremont entirely as a defendant, and it treats ASC and
Wells Fargo as one entity.
In his motion, Plaintiff seeks to
keep Wells Fargo and Deutsche Bank as defendants to the wrongful
refusal to rescind claim.
Defendants opposed this motion on
October 13, 2011.
(ECF No. 59).4
The day before the filing of
this
Gottron
yet
opposition,
added
another
twist
to
the
procedural history of this case by filing a motion to withdraw
as counsel to Sall.
(ECF No. 58).
Defendants did not file an
opposition.
II.
Analysis
A.
Motion for Leave to File a Second Amended Complaint
Neither
party
sets
forth
the
appropriate
which Sall’s motion should be analyzed.
his
motion
complaint,
as
in
a
motion
practice
for
leave
what
he
to
standard
under
Although Sall styles
file
a
second
actually
seeks
amended
is
a
reconsideration of the court’s July 13, 2011, opinion and order,
3
Because the motion for leave to amend was
Defendants’ respective motions were denied as moot.
4
Plaintiff did not reply.
4
granted,
in which the court denied leave to amend to bring a claim for
wrongful refusal to rescind as to all parties except ASC.
In
particular, Sall argues that similar claims against Wells Fargo
and Deutsche Bank should have been allowed.
Accordingly, Sall’s
motion will be construed as a motion for reconsideration of an
interlocutory order pursuant to Federal Rule of Civil Procedure
54.
See Fayetteville Investors v. Commercial Builders, Inc.,
936 F.2d 1462, 1469-70 (4th Cir. 1991).
The precise standard governing a motion for reconsideration
of an interlocutory order is unclear.
Id. at 1472.
While the
standards articulated in Rules 59(e) and 60(b) are not binding
in an analysis of Rule 54(b) motions, see Am. Canoe Ass’n v.
Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts
frequently look to these standards for guidance in considering
such motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d
559, 565-66 (M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations:
(1) there has
been an intervening change in controlling
law; (2) there is additional evidence that
was not previously available; or (3) the
prior decision was based on clear error or
would work manifest injustice.
5
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods., Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
reconsideration
under
Rule
54(b)
may
not
be
A motion for
used
merely
reiterate arguments previously rejected by the court.
to
Beyond
Sys., Inc., 2010 WL 3059344, at *2.
Here, as to Wells Fargo, Sall states that he was mistaken
in identifying ASC as an independent entity and that ASC is
merely a trade name for Wells Fargo.
Thus, Sall argues, Wells
Fargo should be named as a defendant to the wrongful refusal to
rescind claim.5
Sall does not, however, amend the fact alleged
in the complaint that he sent notice of rescission to only ASC.
At
this
time,
Defendant.
there
While
the
is
no
need
precise
to
name
corporate
Wells
Fargo
relationship
as
a
between
Wells Fargo and ASC is somewhat unclear,6 defense counsel is the
same for both ASC and Wells Fargo, and defense counsel has not
objected
to
the
treatment
of
ASC
as
an
independent,
suable
5
Plaintiff does not make clear whether ASC should be
replaced by Wells Fargo or whether Wells Fargo should simply be
added as a defendant to this claim.
6
For example, in his entry of appearance, Gottron listed
the two parties as follows: “Wells Fargo Bank, N.A., also doing
business as ‘Wells Fargo Home Mortgage’ and its division
‘America’s Servicing Company.’” (ECF No. 8).
6
entity.
Indeed, courts in this circuit have entertained suits
involving ASC without any reference to Wells Fargo.
See, e.g.,
In re Bellamy, 379 B.R. 86 (Bankr.D.Md. 2007); In re Brandon,
349 B.R. 130 (Bankr.M.D.N.C. 2006); Snodgrass v. New Century
Mortg. Corp., 358 B.R. 675 (S.D.W.Va. 2006);
Myers v. Am.’s
Servicing Co., 227 F.R.D. 268 (E.D.Va. 2005).7
Accordingly,
Plaintiff’s motion, construed as a motion for reconsideration,
will be denied as to Wells Fargo on this claim.
As to Deutsche Bank, Sall argues that Deutsche Bank had
actual or constructive notice of his request to rescind the
loan,
so
wrongful
Deutsche
refusal
Bank
to
should
rescind
remain
as
claim.
a
In
allegation, Sall points to two documents:
defendant
support
to
of
the
this
an August 4, 2009,
letter, and an August 14, 2009, letter, both from ASC (“the
August letters”).
(ECF No. 46-1).
Sall does not, however,
explain how or when he obtained the August letters.
Given their
dates and the fact that they were addressed to Sall, the most
logical conclusion is that he had the August letters in his
possession since at least the commencement of this suit.
Thus,
Sall fails to explain how this information was “not previously
7
To the extent the issue is simply that ASC is a misnomer,
“[u]nder modern practice, if the right party is before the
court, although under a wrong name, an amendment to cure a
misnomer of parties will be allowed.”
See United States v. A.
H. Fischer Lumber Co., 162 F.2d 872, 874 (4th Cir. 1947)
(internal quotations omitted).
7
available” or how rejecting its consideration would constitute
See Akeva L.L.C., 385 F.Supp.2d at 566.8
“manifest injustice.”
At best, Sall alleges that “Wells Fargo actively prevented
identification
note.”
of
Deutsche
(ECF No. 46, at 2).
Bank
as
holder
of
the
underlying
Even if this were true, it still
does not adequately explain why Sall only now is alleging that
notice was provided to more than just ASC, regardless of whether
he
could
have
specifically
identified
additional recipient of notice.
Deutsche
Bank
as
that
The August letters make clear
that ASC was only the servicer of the loan and that another
entity was the lender.
the
commencement
of
Thus, Sall had sufficient information at
this
suit
to
allege
facts
implicating
another party beyond ASC in his wrongful refusal to rescind
claim.
Without more, there is no convincing reason why Deutsche
Bank should remain a Defendant to this claim.
Sall’s motion
will thus be denied as to Deutsche Bank.
In sum, Sall’s motion for leave to file a second amended
complaint,
construed
as
a
motion
for
reconsideration
of
an
interlocutory order, will be denied as to the proposed retention
of Wells Fargo and Deutsche Bank with respect to the wrongful
refusal
to
rescind
claim.
Sall’s
motion
will
be
granted,
however, to the extent that it attaches an amended complaint.
8
Sall has not identified
controlling law” either. See id.
8
an
“intervening
change
in
See Local Rule 103.6.
The exhibit attached to Sall’s motion
(ECF No. 46-3) will be deemed filed as the operative complaint
as of the date of this opinion, with the following amendments:
ASC and Wells Fargo will be treated as separate entities, and
Count One is alleged against ASC only and no other Defendant.
B.
Motion to Withdraw as Counsel
On October 12, 2011, Plaintiff’s counsel filed a motion to
withdraw appearance, asserting that “[d]ifferences have arisen
between
Plaintiff
and
his
attorneys
of
record
that
make
it
impossible for said attorneys to continue representing Plaintiff
in these and/or any other proceedings.”
(ECF No. 58, at 1).
Local Rule 101.2 provides, in relevant part:
In the case of an individual, appearance of
counsel may be withdrawn only with leave of
Court and if (1) appearance of other counsel
has been entered, or (2) withdrawing counsel
files a certificate stating (a) the name and
last known address of the client, and (b)
that a written notice has been mailed to or
otherwise served upon the client at least
seven (7) days previously advising the
client of counsel’s proposed withdrawal and
notifying the client either to have new
counsel enter an appearance or to advise the
Clerk that the client will be proceeding
without counsel.
If the withdrawal of
counsel’s appearance is permitted, the Clerk
shall notify the party that the party will
be deemed to be proceeding without counsel
unless and until new counsel enters an
appearance on behalf of the party.
Here,
Plaintiff’s
counsel
has
complied
with
the
dictates
of
Local Rule 101.2 because the motion states the name and last
9
known address of Sall, and it attaches a copy of the written
notice that was timely mailed from counsel to Sall regarding the
proposed withdrawal.
Accordingly, counsel’s motion to withdraw
appearance will be granted.
III. Conclusion
For the foregoing reasons, the motion for leave to file a
second amended complaint filed by Plaintiff will be granted in
part and denied in part.
counsel
filed
by
The motion for leave to withdraw as
Plaintiff’s
counsel
will
be
granted.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
10
A
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?