Sharma et al v. OneWest Bank, FSB
Filing
23
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/28/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
PITAMBER D. SHARMA, et al.
:
v.
:
Civil Action No. DKC 11-0834
:
ONEWEST BANK, FSB
:
MEMORANDUM OPINION
Presently pending and ready for review in this diversity
action
is
the
(“OneWest”)
motion
to
(ECF No. 20).
filed
dismiss
by
Defendant
Plaintiffs’
first
OneWest
Bank,
FSB
amended
complaint.
The issues have been fully briefed, and the court
now rules, no hearing deemed necessary.
Local Rule 105.6.
For
the following reasons, the motion to dismiss will be granted in
part and denied in part.
I.
Background
Plaintiffs
allege
amended complaint.
Sharma,
his
together
Maryland.1
1
son
following
facts
in
their
first
On November 4, 2005, Plaintiffs Pitamber D.
Hari
purchased
To
the
a
buy
Sharma,
house
the
and
his
(“the
property,
daughter
property”)
in
Plaintiffs
Asha
Sharma,
Beltsville,
took
out
a
The first amended complaint also states that Plaintiffs
bought the property on December 27, 2005.
(ECF No. 19 ¶ 18).
The exact purchase date of the property is not relevant to the
issues presented in the pending motion.
$232,000.00 loan with Financial Mortgage, Inc. (“FMI”), which
loan was secured by a Purchase Money Deed of Trust (“the deed of
trust”) against the property.2
OneWest is the successor-in-
interest to FMI.
In October 2008, Plaintiffs “started experiencing financial
difficulties and fell behind in making their monthly payments to
their
lenders.”
Plaintiffs
OneWest.
(ECF
No.
unsuccessfully
19
¶
sought
11).
a
loan
In
December
modification
2008,
with
Roughly eight months later, in August 2009, OneWest
“made an oral and unilateral declaration” that the property was
a “Property Deemed Vacant” and proceeded to install a lock box
on the property, thereby retaining “exclusive, complete control
and possession” of it.
out
of
the
property
(Id. ¶ 13).3
ever
since.
Plaintiffs have been locked
Pitamber
Sharma
has
taken
shelter at a Hindu temple in Adelphi, Maryland, Hari Sharma has
moved to northern Virginia, and Asha Sharma has moved to India.
On February 7, 2011, Plaintiffs filed a complaint against
IndyMac Financial Service Corp. (“IndyMac”) in the Circuit Court
for Prince George’s County, Maryland.
2
After service, IndyMac
Plaintiffs also took out a $58,000.00 loan,
serviced by non-party Specialized Loan Servicing.
3
which
is
On two separate occasions, September 29, 2009, and August
13, 2010, OneWest attempted to foreclose on the property, but
OneWest dismissed the proceedings each time.
2
timely
removed
citizenship.
to
this
court
(ECF No. 1).
on
the
basis
of
diversity
of
Because IndyMac is a division of
OneWest and is not capable of being separately sued, the parties
stipulated to a name change on behalf of Defendant to OneWest.
(ECF No. 11).
2011.
Plaintiffs later amended the complaint on May 10,
This first amended complaint contains seven “counts”: (1)
quiet title and possession; (2) breach of contract; (3) breach
of
fiduciary
duty;
(4)
conversion
of
intangibles;
(5)
declaratory judgment; (6) unjust enrichment; and (7) damages.
(ECF No. 19).
On
dismiss
May
26,
2011,
Plaintiffs’
OneWest
first
filed
amended
the
pending
complaint.
motion
(ECF
Plaintiffs filed opposition papers on June 13, 2011.
21).
II.
OneWest replied on June 30, 2011.
No.
to
20).
(ECF No.
(ECF No. 22).
Standard of Review
The
purpose
of
a
motion
to
dismiss
pursuant
12(b)(6) is to test the sufficiency of the complaint.
to
Rule
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).
requires
Nevertheless,
“Rule
8(a)(2)
still
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
3
(2007).
That showing must consist of more than “a formulaic
recitation
of
the
elements
of
a
cause
of
action”
or
assertion[s] devoid of further factual enhancement.”
v.
Iqbal,
129
S.Ct.
1937,
1949
(2009)
(internal
“naked
Ashcroft
citations
omitted).
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations 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, the court need
not accept unsupported legal allegations.
Revene v. Charles
Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
Nor must it
agree
allegations,
with
legal
conclusions
couched
as
factual
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), or conclusory
factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009).
“[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged, but it has not ‘show[n] . . . that the
pleader
is
entitled
to
relief.’”
(quoting Fed.R.Civ.P. 8(a)(2)).
Iqbal,
129
S.Ct.
at
1950
Thus, “[d]etermining whether a
4
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.
III. Analysis
A.
In
Count One:
the
first
Quiet Title and Possession
count
of
the
first
amended
complaint,
Plaintiffs allege that OneWest’s locking out of Plaintiffs from
the property “constitutes a cloud on [Plaintiffs’] title and
right to control, possess and use the [property].”
(ECF No. 19
¶ 23).
In Maryland,
[a] quiet title action is a suit in which a
plaintiff seeks a decree that some allegedly
adverse interest in his property is actually
defective, invalid or ineffective prior to
and at the time suit is brought either
because the lien was invalidly created, or
has become invalid or has been satisfied.
Kasdon v. G. W. Zierden Landscaping, Inc., 541 F.Supp. 991, 995
(D.Md. 1982).
“The purpose of an action to quiet title is to
protect the owner of legal title from being disturbed in his
possession . . . .”
Porter v. Schaffer, 126 Md.App. 237, 260
(1999) (internal quotations omitted).
The burden is on the
plaintiff to establish both possession and legal title by “clear
proof.”
Id. (citing Stewart v. May, 111 Md. 162, 173 (1909)).
Possession may be actual or constructive.
Wash. Mut. Bank v.
Homan, 186 Md.App. 372, 405 (2009); see also Md. Code Ann., Real
5
Prop. § 14-108(a) (permitting quiet title suits by “[a]ny person
in actual peaceable possession of property, or, if the property
is
vacant
and
unoccupied,
in
constructive
and
peaceable
possession of it”).
Here, Plaintiffs fail to state a claim to quiet title on
two
fronts.
establish
First,
that
they
they
fail
have
facts
be
it
August
would
actual
or
In fact, they allege just the
they have been locked out of the property
2009
and
have
therefore
“been
control, use, and possession” of the property.
21).
that
The basis of their quiet title claim is that they
lack possession:
since
allege
possession,
constructive, of the property.
opposite.
to
deprived
[of]
(ECF No. 19 ¶
Without possession, Plaintiffs cannot maintain a quiet
title cause of action.
See Md. Code Ann., Real Prop. § 14-
108(a).
Second, Plaintiffs fail to allege facts that suggest that
they
have
legal
title
to
the
property.
Plaintiffs
dispute the validity of the deed of trust.
do
not
By virtue of the
deed of trust, however, Plaintiffs transferred legal title to
the
trustee.
Fagnani
title,
v.
Fisher,
371,
See Porter, 126 Md.App. at 260; see also Parillon v.
Fremont
Inv.
L–09–3352,
6
2010
WL
a
(2011).
claim.
No.
bring
383
legal
Loan,
cannot
Md.
Without
&
Plaintiffs
418
quiet
1328425,
title
at
*2
(D.Md.
Mar.
25,
2010)
(dismissing
a
quiet
title
claim
of
a
plaintiff who had executed a deed of trust).
Count One could also be construed as a cause of action
under
section
14-108.1
of
the
Real
Property
Article
of
the
Maryland Code for a possessory action, also known as an action
for ejectment.
OneWest admits as much in its reply.
(ECF No.
22, at 3).
Although Plaintiffs do not cite section 14-108.1
anywhere
the
in
first
amended
complaint,
this
failure
pleading does not automatically foreclose the claim.
of
Jones v.
Koons Auto., Inc., 752 F.Supp.2d 670, 683 (D.Md. 2010) (“[T]he
failure in a complaint to cite a statute, or to cite the correct
one,
in
no
way
affects
the
merits
of
a
claim.
Factual
allegations alone are what matters.”).
Here, the first amended
complaint
Plaintiffs
provides
enough
notice
bring an action for ejectment.
that
added).
to
First, the title itself of the
first count is “QUIET TITLE AND POSSESSION.”
(emphasis
intended
Moreover,
the
(ECF No. 19, at 5)
first
Plaintiffs’ rights to possession throughout.
count
references
(Id. ¶¶ 20-23).
Finally, the relief sought in the first count clearly requests
an
order
directing
OneWest
“to
remove
the
lock
from
[the
property]” (id. at 6), which is the type of relief contemplated
7
by section 14-108.1.
Count One will thus be analyzed as an
action for possession.4
In general, “[u]nless the plaintiff in ejectment shows a
legal title and a right to possession, . . . he cannot recover
in ejectment under the settled law of this state.”
Porter, 126
Md.App. at 271; accord Janoske v. Friend, 261 Md. 358, 363-64
(1971).
section
Regarding the first requirement, having legal title,
14-108.1
provides
an
exception:
“Encumbrance
of
property by a mortgage or deed of trust to secure a debt does
not prevent an action under this section by the owner of the
property.”
Md. Code Ann., Real Prop. § 14-108.1(b)(2).
Thus,
the fact that Plaintiffs executed the deed of trust, thereby
transferring legal title to the trustee, does not defeat their
action for ejectment as it does their quiet title claim.
Plaintiffs’
ability
to
maintain
a
possessory
therefore pivots on their right to possession.
assert
that
they
“continue
to
4
be
the
title
action
Here, Plaintiffs
owner
of
[the
This inference is particularly appropriate given the
relationship between a quiet title action and an action for
possession. The two causes of action are opposite sides of the
same coin, turning on which party has possession of the property
at issue. Wathen v. Brown, 48 Md.App. 655, 658 (1981); see also
Porter, 126 Md.App. at 273 (“Historically, quiet title was an
equitable remedy, whereas ejectment was a remedy at law. . . .
The fundamental difference between the two was the question of
possession. . . . Thus, when an owner was not in possession, a
[quiet title claim] would not lie, because the owner could
resort to the legal remedy of ejectment.” (internal citations
omitted)).
8
property].”
“there
is
(ECF No. 19 ¶ 19).
no
dispute
as
to
Moreover, OneWest concedes that
whether
the
equitable title owners of the Property.”
Plaintiffs
are
the
(ECF No. 20, at 4).
The parties agree that Plaintiffs have stated a claim for the
right to possession of the property.
Plaintiffs have satisfied
the second requirement for bringing an action for ejectment.
Accordingly, Count One will be dismissed as to Plaintiffs’
cause of action for quiet title, but not as to their ejectment
claim.
B.
Count Two:
Breach of Contract
In Count Two of the first amended complaint, Plaintiffs
allege
that
their
lockout
by
OneWest
constituted
a
material
breach of several provisions of the deed of trust, including
Sections 6, 7, 9, 12, 20, and 25.
(ECF No. 19 ¶¶ 26-27).5
Plaintiffs also contend that OneWest failed to provide proper
notice regarding OneWest’s entry into the property to change the
locks.
(Id. ¶ 27).
5
Plaintiffs also refer vaguely to alleged violations by
OneWest of “Maryland Foreclosure, Maryland Real Property, and
Maryland Residential Mortgage laws.”
(Id. ¶ 27).
It is
unclear how these references to bodies of state law apply to
Plaintiffs’ breach of contract claim. To the extent Plaintiffs
meant to state independent claims pursuant to any of these laws,
they fail to provide adequate notice to OneWest, even under the
liberal notice pleading standard of the Federal Rules.
Any
intended cause of action on these bases will therefore be
dismissed.
9
Under
Maryland
law,
to
establish
breach
of
contract,
a
plaintiff must prove that the defendant owed the plaintiff a
contractual
obligation
and
breached that obligation.
Md. 638, 658 (2010).
that
the
defendant
materially
RRC Ne., LLC v. BAA Md., Inc., 413
In this case, two of the provisions of the
deed of trust identified by Plaintiffs dictate the outcome of
the pending motion.
right
to
possession
Section 25 grants Plaintiffs a general
of
the
property:
possession
of
the
Property
until
notice
default
pursuant
to
of
Instrument.”
“Borrower
Lender
Section
(ECF No. 19-1, at 17).6
has
22
of
shall
have
given
Borrower
this
Security
Section 9 governs when
OneWest may change the locks on the property:
If . . . Borrower has abandoned the
Property, then Lender may do and pay for
whatever is reasonable or appropriate to
protect Lender’s interest in the Property
and rights under this Security Instrument,
including protecting and/or assessing the
value of the Property, and securing and/or
repairing the Property. . . . Securing the
Property includes, but is not limited to,
entering the Property to make repairs,
change locks, replace or board up doors and
windows, drain water from pipes, eliminate
building
or
other
code
violations
or
6
“[C]ourts may consider a document that a defendant
attaches to its motion to dismiss if the document ‘was integral
to and explicitly relied on in the complaint and if the
plaintiffs do not challenge its authenticity.’”
CACI Int’l,
Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th
Cir.
2009)
(internal
quotations
omitted)
(quoting
Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 214
(4th Cir. 2004)).
10
dangerous conditions,
turned on or off.
and
have
utilities
(Id. at 13).
As to Plaintiffs’ argument regarding inadequate notice, it
is undisputed that Plaintiffs do not have possession of the
property and that OneWest does.
Under Section 25, OneWest was
required to give proper notice before taking over possession.
OneWest contends that it did give notice that the property was a
“Property Deemed Vacant.”
(ECF No. 20, at 5).
As alleged,
however, OneWest’s notice might have been inadequate because it
was given orally, and Section 15 of the deed of trust appears to
require that all notice be provided in writing.
at 15).
(ECF No. 19-1,
Thus, Plaintiffs have stated a claim for breach of the
deed of trust.
OneWest argues that it is not in breach because it changed
the locks on the property pursuant to Section 9, and, unlike
other provisions in the deed of trust, Section 9 does not carry
a notice requirement.
that
Plaintiffs
(ECF No. 20, at 6).
abandoned
the
property
in
OneWest contends
August
permitting it to change the locks on the property.
2009,
thus
Plaintiffs,
of course, disagree.
Clouding matters here is the fact that the deed of trust
does
not
include
a
definition
of
“abandonment.”
In
such
instances, courts must ascribe to undefined contract terms their
11
ordinary meaning.
Metro. Life Ins. Co. v. Promenade Towers Mut.
Hous. Corp., 84 Md.App. 702, 718 (1990).
defines
“abandonment”
as
follows:
Black’s Law Dictionary
“The
relinquishing
of
or
departing from a homestead, etc., with the present, definite,
and
permanent
to
of
never
returning
or
Black’s Law Dictionary (9th ed. 2009).
possession.”
way,
intention
“abandon”
real
property,
“one
regaining
Put another
party
must
have
voluntarily surrendered his or her property interest with an
intent
to
property.”
terminate
his
or
her
ownership
interest
in
the
Beesley v. Hanish, 70 Md.App. 482, 497 (1987); see
also Tuzeer v. Yim, LLC, No. 816, Sept. Term, 2010, 2011 WL
4537172, at *15 (Md.Ct.Spec.App. Oct. 3, 2011) (“Generally, a
finding of abandonment requires the ‘concurrence of two factors,
(a) an intention to abandon and (b) some overt act, or some
failure to act, which carries the implication that the owner
does not claim or retain any interest in the subject matter.’”
(quoting
Dorman
(1947)).
On
v.
its
Mayor
own,
&
an
City
Council,
extended
187
period
of
Md.
678,
non-use,
684
is
“insufficient to establish an intent to abandon the right to the
property.”
Beesley, 70 Md.App. at 497.
Whether Plaintiffs abandoned the property, thus permitting
OneWest to change the locks without notice, is not evident based
12
on the complaint.7
At most, OneWest again points to the fact
that it notified Plaintiffs that it considered the property a
“Property Deemed Vacant.”
It is not
OneWest’s
actions that
determine whether Plaintiffs’ abandoned the property, however,
it is
Plaintiffs’
actions and intent that matter.
Notably,
OneWest does not contend that its notice to Plaintiffs carried
with it some ultimatum or imposed some duty to respond.
On its
own, Plaintiffs’ non-use of the property does not give rise to
an inference of abandonment.
See Beesley, 70 Md.App. at 497.
In fact, if anything, the first amended complaint suggests just
the
opposite:
only
eight
months
prior
to
the
lockout,
Plaintiffs had sought loan modifications with OneWest on the
property, and, though unsuccessful, Plaintiffs allege that the
“loan modification has remained in progress.”
(emphasis
added).
This
fact
7
bolsters
the
(ECF No. 19 ¶ 12)
conclusion
that
Plaintiffs attempt to combat OneWest’s argument that they
abandoned the property by asserting that during the months from
June to August 2009, they “commenced efforts to modify the loan”
and “started to prepare the property to rent.” (ECF No. 21, at
3).
They assert that they “have never abandoned the Property
and/or [their] belongings in the Property.” (Id.). In support
of these new factual allegations, Plaintiffs attach an affidavit
to their opposition.
It is axiomatic, however, that facts
contained in an opposition to a motion to dismiss but not within
the complaint itself cannot be considered. See Zachair, Ltd. v.
Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997). As none of these
facts appear anywhere in the complaint, they can offer no
support
for
Plaintiffs’
argument
against
dismissal.
Nonetheless, for the reasons discussed in this opinion, Count
Two will not be dismissed.
13
Plaintiffs
did
not
intend
to
abandon
the
property.
If
Plaintiffs did not abandon the property, then OneWest had no
right to change the locks on it under Section 9 of the deed of
trust.
Plaintiffs
contract claim.
have
therefore
stated
a
plausible
See Iqbal, 129 S.Ct. at 1950.
breach
of
OneWest’s motion
to dismiss Count Two will be denied.
C.
In
Count Three:
the
third
Breach of Fiduciary Duty
count
of
the
first
amended
complaint,
Plaintiffs allege that OneWest breached its fiduciary duty to
them pursuant to the deed of trust.
(ECF No. 19 ¶ 30).
“[A]lthough the breach of a fiduciary duty may give rise to
one or more causes of action, in tort or in contract, Maryland
does
not
recognize
fiduciary duty.”
a
separate
tort
action
for
breach
of
Int’l Bhd. of Teamsters v. Willis Corroon
Corp., 369 Md. 724, 727 n.1 (2002) (citing Kann v. Kann, 344 Md.
689, 713 (1997)).
Here, the substance of Plaintiffs’ breach of
fiduciary duty claim is indistinguishable from their claim for
breach of contract.
Even if an independent cause of action
could be sustained, however, no fiduciary duty exists between
the parties.
First, “in Maryland, the relationship of a bank to
its customer in a loan transaction is ordinarily a contractual
relationship between debtor and creditor, and is not fiduciary
in nature.”
Yousef v. Trustbank Sav., F.S.B., 81 Md.App. 527,
14
536 (1990) (internal citations omitted).
trust
does
not
establish
any
Second, the deed of
contracted-for
fiduciary
duty.
Third, none of the various statutes mentioned by Plaintiffs in
Count Three confer such a duty.
(See ECF No. 19 ¶ 30 (Maryland
Protection of [Homeowners] in Foreclosure Act); id. ¶ 33 (Home
Affordable [Modification] Program)).
Accordingly, this count
will be dismissed.
D.
In
Count Four:
Count
Four
Conversion of Intangibles
of
the
complaint,
Plaintiffs
allege
that
OneWest has converted their “intangible rights to use, possess,
and collect rent monies.”
(ECF No. 19 ¶ 39).
Under Maryland law, a conversion “is any distinct act of
ownership or dominion exerted by one person over the personal
property of another in denial of his right or inconsistent with
it.”
Allied
Inv.
Corp.
v.
(internal quotations omitted).
Jasen,
354
Md.
547,
560
(1999)
Although the original common law
rule required the plaintiff’s property to be tangible to state a
claim for conversion, “[t]hat rule has been modified over time
and certain intangible property interests may now be recovered
through a conversion claim.”
Id.
The Court of Appeals of
Maryland, however, has limited the expansion of the rule to
include
only
intangible
incorporated
into
a
certificate,
and
has
property
transferable
refused
“to
15
rights
“that
document,”
cover
are
such
completely
merged
as
a
or
stock
intangible
rights.”
Id. at 562.
intangible
rights,
a
Thus, to state a claim for conversion of
complaint
“must
.
.
.
contain
facts
alleging that tangible documents evidencing those [intangible]
interests . . . were transferred improperly to [the defendant].
Id. (emphasis added).
Here, Plaintiffs fail to allege that any tangible documents
have been converted by OneWest.
Indeed, the document at issue —
the deed of trust — was attached to the first amended complaint
by Plaintiffs.
(See ECF No. 19-1).
As Maryland has decided not
to safeguard via the tort of conversion the sorts of purely
intangible rights asserted by Plaintiffs, this count must be
dismissed.
E.
Count Five:
Count
judgment,”
Five
but
is
it
Declaratory Judgment
styled
actually
as
a
contains
injunctive, and compensatory relief.
request
for
elements
“declaratory
of
declaratory,
First, Plaintiffs seek a
declaratory judgment that “Plaintiffs have absolute ownership,
possession
and
the
(ECF No. 19 ¶ 43).
right
of
disposition
of
[the
property].”
Plaintiffs also seek to have the lock
removed from the property, and they seek damages.
(Id.).
To
the extent Plaintiffs seek injunctive and compensatory relief,
the possessory action and breach of contract claim described in
Counts
One
and
Two
of
the
first
provide for such potential relief.
16
amended
complaint
already
To the extent Plaintiffs pursue declaratory relief, their
claim is again foreclosed by the resolution of Counts One and
Two.
Plaintiffs
seek
a
declaration
that
“Plaintiffs
have
absolute ownership, possession and the right of disposition of
[the
property].”
(ECF
No.
19,
at
14).
These
issues
are
adequately - and directly - addressed in the first two counts.
When declaratory relief would be duplicative of claims already
alleged,
dismissal
Mktg./Balt.,
Inc.
is
v.
warranted.
Varilease
F.Supp.2d 505, 528 (D.Md. 2004).
Tech.
Harte-Hanks
Fin.
Grp.,
Direct
Inc.,
299
Accordingly, the court will
grant the motion to dismiss as to Count Five.
F.
Count Six:
Unjust Enrichment
In the sixth count, Plaintiffs claim that OneWest has been
unjustly enriched by taking possession of the property.
(ECF
No. 19 ¶¶ 44-48).
A claim of unjust enrichment ordinarily cannot be brought
where the subject matter of the claim is governed by an express
contract between the parties.
Janusz v. Gilliam, 404 Md. 524,
567 (2008); accord FLF, Inc. v. World Publ’ns, Inc., 999 F.Supp.
640,
642
(D.Md.
Plaintiffs’
1998).
rights
and
Here,
duties
the
deed
vis-à-vis
of
trust
OneWest
defines
and
the
property, and neither party disputes the existence or validity
of the deed of trust itself.
Accordingly, an unjust enrichment
claim will not lie here and Count Six will be dismissed.
17
G.
Count Seven:
Damages
Finally, Plaintiffs fail to state a claim in Count Seven.
They
seek
a
variety
of
damages,
all
of
which
appear
to
be
consequential in nature stemming from OneWest’s alleged breach
of the deed of trust.
(See ECF No. 19 ¶¶ 52-53).
Consequential
damages suffered as a result of a contract breach “are generally
defined
as
[s]uch
damage,
loss
or
injury
as
does
not
flow
directly and immediately from the act of the party, but only
from some of the consequences or results of such act.” Trimed,
Inc. v. Sherwood Med. Co., 977 F.2d 885, 893 n.7 (4th Cir. 1992)
(internal quotations omitted).
Unlike Count Two, however, where
Plaintiffs assert the breach of specific contractual provisions,
Plaintiffs
in
Count
Seven
merely
specify
additional
damages
being sought for those breaches, but do not allege a separate
breach.
damages
To the extent the count asserts only consequential
rather
than
any
legally
Plaintiffs fail to state a claim.
cognizable
cause
of
action,
See Agwumezie v. Allstate
Ins. Co., No. Civ.A. DKC 2002-0493, 2002 WL 32361936, at *3
(D.Md. Aug. 8, 2002).8
Accordingly, the motion to dismiss will
be granted as to this count.
8
Plaintiffs also allege that “[a]s a direct result of One
West’s failure to pay utility bills, [the property] may have
suffered frozen pipes and other damages.”
(ECF No. 19 ¶ 51).
This appears to be a rather inartful attempt to state a
negligence claim.
To the extent this is the case, Count Seven
18
IV.
Conclusion
For
the
foregoing
reasons,
the
motion
to
dismiss
first
amended complaint filed by Defendant OneWest will be granted in
part and denied in part.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
must still
suggesting
Indeed, as
excuses it
be dismissed. Plaintiffs do not set forth any facts
that OneWest had a duty to pay the utility bills.
OneWest points out, the deed of trust specifically
from taking such action. (See ECF No. 19-1, at 13).
19
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