Bell v. Intervale Mortgage Corporation et al
Filing
11
MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 5/8/2013. (c/m 5/8/2013 eb) (ebs2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
DERWIN W. BELL,
Plaintiff,
v.
Civil Action No. AW-13-582
INTERVALE MORTGAGE
CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION
Pending before the Court is Defendant Impac Secured Assets 2005-2 Trust’s Motion to
Dismiss pro se Plaintiff Derwin Bell’s Complaint for failure to state a claim. Doc. No. 7. The
Court has reviewed the record and concludes that no hearing is necessary. See Loc. R. 105.6 (D.
Md. 2011). For the following reasons, the Court will GRANT Defendant’s Motion to Dismiss.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Derwin Bell, proceeding pro se in this matter, asserts a series of claims against
Defendants Intervale Mortgage Corporation (Intervale) and Impac Secured Assets 2005-2 Trust1
(Impac) related to the origination and securitization of a mortgage loan secured by Bell’s
property located at 626 University Drive in Waldorf, Maryland.2
On October 14, 2005, Bell executed a Note in favor of Intervale in the amount of
$288,000. Compl. ¶ 5. To secure the loan, Bell also granted Intervale a security interest in the
1
The proper name of the trust is Impac Secured Assets Corporation Mortgage Pass-Through Certificates Series
2005-2.
2
The Court notes that the Complaint in this case is remarkably similar in form and substance to the Complaint in
another case before this Court, Bowman et al. v. Finance America, LLC et al., Case No. 13-cv-208-AW. Indeed,
several portions of the Complaints are identical.
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property through a Deed of Trust, which was recorded in the land records of Charles County. Id.
¶ 6. On or about December 29, 2005, Intervale sold the Note to Impac, a securitization trust
registered with the Securities and Exchange Commission (SEC), without Plaintiff’s knowledge
or consent. Id. ¶ 7. Plaintiff did not learn of this transaction until August 6, 2012, when he
obtained a Real Estate Securitization Audit, attached to his Complaint as Exhibit A. According
to the Audit, Defendant Impac was established on December 1, 2005. Compl. Ex. A at 8.
Plaintiff filed his Complaint on February 22, 2013, alleging Deceit and Actual Fraud
(Count I), Conspiracy to Defraud (Count II), Breach of Implied Covenant of Good Faith and Fair
Dealing (Count III), and Unjust Enrichment (Count IV) against both Defendants. Impac filed its
Motion to Dismiss on March 29, 2013, to which Plaintiff responded on April 19, 2013.3 The
Motion is fully briefed and ripe for the Court’s consideration.
II.
STANDARD OF REVIEW
The purpose of a motion to dismiss under Rule 12(b)(6) is “to test the sufficiency of [the]
complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Except in certain
specified cases, the complaint need only satisfy Rule 8(a) of the Federal Rules of Civil
Procedure, 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). A plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
resolving a motion to dismiss, the Court should proceed in two steps. First, the Court should
determine which allegations in the Complaint are factual allegations entitled to deference, and
which are mere legal conclusions that receive no deference. See Ashcroft v. Iqbal, 556 U.S. 662,
678–79 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. Second, “[w]hen there are well-pleaded
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Defendant Intervale has not yet answered the Complaint.
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factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 679.
In its determination, the Court must “accept the well-pleaded allegations of the complaint
as true,” Albright v. Oliver, 510 U.S. 266, 268 (1994), and “must construe factual allegations in
the light most favorable to the plaintiff,” Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999). The Court should not, however, accept unsupported legal
allegations, Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989), “legal
conclusion[s] couched as . . . factual allegation[s],” Papasan v. Allain, 478 U.S. 265, 286 (1986),
or conclusory factual allegations devoid of any reference to actual events, United Black
Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). “Factual allegations must be
enough to raise a right to relief above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555.
Complaints filed by pro se plaintiffs are “to be liberally construed . . . and a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted)
(internal quotations omitted). However, “even a pro se complaint must meet a minimum
threshold of plausibility.” Hawkins v. Hairston, No. 12-cv-1366-JKB, 2012 WL 5503839, at *2
(D. Md. Nov. 8, 2012).
III.
ANALYSIS
As a preliminary matter, Impac contends that Plaintiff’s claims are barred by Maryland’s
statute of limitations, which provides that “[a] civil action at law shall be filed within three years
from the date it accrues.” MD. CODE ANN., CTS. & JUD. PROC. § 5-101. Impac argues that the
alleged misrepresentations underlying Plaintiff’s claims occurred “at the time of closing” in
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2005, and therefore, his causes of action accrued in 2005. See Compl. ¶ 15. However, the Court
of Appeals of Maryland has held that the discovery rule generally applies to a cause of action
brought under § 5-101 and that “the cause of action accrues when the claimant in fact knew or
reasonably should have known of the wrong.” Poffenberger v. Risser, 431 A.2d 677, 680 (Md.
1981). Plaintiff alleges that he did not learn of the securitization of the Note until August 6,
2012. Compl. ¶ 7. The Court must accept Plaintiff’s well-pleaded allegations as true, and based
on the record before the Court it would be premature to conclude that Plaintiff had constructive
notice of the transaction earlier than 2012. Accordingly, the Court will not dismiss Plaintiff’s
Complaint on statute of limitations grounds. However, Plaintiff’s claims against Impac
nevertheless fail to withstand scrutiny.
Plaintiff’s allegations of fraud,4 conspiracy, and breach of implied covenant of good faith
and fair dealing are all based on Intervale’s alleged failure to disclose to Plaintiff in October
2005 that it was going to sell the Note to Impac following the transaction. See, e.g., Compl. ¶ 15
(“Intervale did not disclose the material information to the Plaintiff at the time of closing . . . .”);
¶ 16 (“Intervale induced Plaintiff into entering the contract . . . .”). However, Plaintiff fails to
allege, other than in conclusory allegations made against both Defendants, any wrongdoing by
Impac in particular. Indeed, Plaintiff cannot allege that Impac committed any wrongdoing
because it did not even exist at the time Plaintiff and Intervale entered the loan agreement in
October 2005. According to the Audit attached to Plaintiff’s Complaint, Impac did not exist
until December 1, 2005 at the earliest. Compl. Ex. A at 8. Furthermore, Impac asserts in its
Motion that it was created on December 29, 2005, Doc. No. 7-1 at 6, a fact not disputed by
Plaintiff in his response brief. Accordingly, Counts I, II, and III against Impac will be dismissed.
4
Plaintiff cites various provisions of the California Code governing actions for deceit and actual fraud. The Court
construes Plaintiff’s claim as one for fraudulent inducement under Maryland law.
4
In Count IV, Plaintiff alleges unjust enrichment and claims that “Intervale was paid in
full when it sold Plaintiff’s Note to the Trust. The Trust [Impac] was paid in full when Plaintiff
allegedly defaulted and it was reimbursed by the insurance company.” Compl. ¶ 33. Even
assuming that Impac recovered from an insurance company upon Plaintiff’s default, Plaintiff
cannot explain how Impac recovered twice and was unjustly enriched. Furthermore, Plaintiff has
failed to articulate any legal theory, and the Court is aware of none, that forgives his mortgage
debt merely because his lender sold the Note to a third party.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS Impac’s Motion to Dismiss for failure to
state a claim. A separate Order follows.
___May 8, 2013__
Date
/s/
Alexander Williams, Jr.
United States District Judge
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