Lewis v. Brady et al

Filing 29

MEMORANDUM OPINION (c/m to Plaintiff 4/1/15 sat). Signed by Judge Deborah K. Chasanow on 4/1/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
BERNARD LEWIS
:
v.

:

Civil Action No. DKC 13-1561

:
MCCABE, WEISBERG & CONWAY,
LLC et al.

:
:

MEMORANDUM OPINION
Presently pending and ready for resolution in this consumer
lending

action

is

a

Plaintiff Bernard Lewis.
briefed,

and

necessary.

the

court

motion

for

reconsideration

(ECF No. 26).
now

Local Rule 105.6.

rules,

no

filed

by

The issues have been
hearing

being

deemed

For the following reasons, the

motion will be denied.
I.

Background
The facts and procedural history have been explained in a

prior memorandum opinion and need not be repeated.
24).

(ECF No.

On August 4, 2014, the court issued a memorandum opinion

and order granting two motions to dismiss filed by Defendants
McCabe, Weisberg & Conway, LLC (“McCabe”), Ocwen Loan Servicing,
LLC. (“Ocwen”), Deutsche Bank National Trust Company (“Deutsche
Bank”), and Homeward Residential, Inc. (“Homeward”).
24 & 25).

(ECF Nos.

On September 2, 2014, Plaintiff filed a motion for

reconsideration.

(ECF

Nos.

26)

McCabe,

Homeward, and Ocwen opposed the motion.
II.

Deutsche

Bank,

(ECF Nos. 27 & 28).

Standard of Review
Because Plaintiff’s motion was filed within 28 days of the

court entering judgment it is governed by Fed.R.Civ.P. 59(e)
rather

than

Rule

60(b),

which

governs

motions

reconsideration filed more than 28 days after judgment.

for

See MLC

Auto, LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008);
Classen Immunotherapies, Inc. v. King Pharmaceuticals, Inc., 981
F.Supp.2d 415, 419 (D.Md. Oct. 31, 2013).
motion

to

alter

or

amend

may

be

Under Rule 59(e), a

granted

only:

“(1)

to

accommodate an intervening change in controlling law; (2) to
account

for

new

evidence

not

available

at

trial;

or

(3)

to

correct a clear error of law or prevent manifest injustice.”
Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998).

Motions for reconsideration are “an extraordinary

remedy which should be used sparingly.”

Pacific Ins. Co. v. Am.

Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
III. Analysis
Plaintiff

asserts

that

the

court

clearly

erred

in

its

dismissal of his claims asserting violations of the Real Estate
Settlement Procedures Act (“RESPA”) and the Maryland Consumer
Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law, § 14-201

2

et

seq.,

as

well

as

his

breach

of

contract

and

declaratory

judgment claims.
A.

RESPA

Plaintiff contends that the court erred in finding that his
January 19, 2013 and March 26, 2013 letters to Homeward and
Ocwen, respectively, were not valid qualified written requests
(“QWRs”) under RESPA because they did not relate to servicing.
(ECF No. 26, at 2-6).
servicer
within

to

provide

five

days

Section 2605(e) of RESPA requires a loan
a

written

if

the

response

servicer

acknowledging

receives

a

QWR

receipt

from

the

borrower “for information relating to the servicing” of a loan.
12

U.S.C.

§

“servicing”

is

2605(e)(1)(A)
defined

as

(emphasis
“receiving

added).
any

Under

scheduled

RESPA,

periodic

payments from a borrower pursuant to the terms of any loan,
including

amounts

for

escrow

accounts

.

.

.

and

making

the

payments of principal and interest and such other payments with
respect to the amounts received from the borrower as may be
required

pursuant

to

the

terms

of

the

loan.”

12

U.S.C.

§

2605(i)(3).
Plaintiff

makes

several

arguments

reconsideration as to the RESPA claim.
“the

letter(s)

related

role as servicers.

to

events

in

his

for

First, he asserts that

occurring

after

Defendants’

For example, [] Plaintiff was not requesting

the copy of the Note as it existed at settlement.
3

motion

Instead, []

Plaintiff was specifically requesting a copy of the Note as it
presently existed in an effort to ascertain who presently held
the Note.

As [] Plaintiff stated in his letter, his purpose was

to determine the Defendant(s) could collect payment.”
26, at 3) (emphasis added).

(ECF No.

As explained in the August 4, 2014

memorandum opinion, however, inquiries regarding a servicer’s
authority to enforce the Note or collect payments do not qualify
as QWRs:
Although Plaintiff likely intended that [the
letters] serve as QWRs, in substance, he
sought
the
original
loan
documents,
“verification of the identity of the holder
in due course of the loan, and proof of the
servicer’s authority to service the loan[.]”
Bravo v. MERSCORP, Inc., No. 12-CV-884
(ENVV)
(LB),
2013
WL
1652325,
at
*3
(E.D.N.Y.
Apr.
16,
2013)
(finding
a
“correspondence falls short of the statutory
definition of a QWR” where it merely seeks
documents to verify the loan).
The two
letters do not relate to “servicing,” as
that term is defined under RESPA, because
they “say[] nothing about defendant[’s]
receipt of scheduled periodic payments or
the amounts of such payments.”
Id. at *3;
see also Dides v. Ocwen Loan Servicing, LLC,
Civ. No. WMN-12-2989, 2013 WL 2285371, at *2
(D.Md. May 21, 2013) (“the permissible scope
of Qualified Written Requests under RESPA is
limited
to
information
related
to
the
servicing of loans, specifically the receipt
of payments from a borrower and the making
of payments of principal and interest”).
The January 19, 2013 and March 26, 2013
letters reflect Plaintiff’s belief that
Homeward and Ocwen did not possess the
original Note and did not have authority to
collect loan payments.
Indeed, Plaintiff
explicitly indicated in his March 2013
4

correspondence to Ocwen that the purpose of
the letter was to establish that Ocwen “was
legally entitled to enforce the Note and
collect payment,” which does not relate to
servicing. (ECF No. 10 ¶ 23).
(ECF No. 24, at 14-15) (emphasis added).

The analysis in Best

v. Samuel I. White, P.C., Civ. No. WDQ-13-2348, 2014 WL 2575771,
at *3 (D.Md. June 6, 2014), applies here:
Best argues that his letters were QWRs
because Capital One’s possession of the Note
relates to its entitlement to service the
Note, as only a holder or owner can enforce
the Note. []
However, communications that
seek to obtain proof of the servicer’s
authority to service the loan are not QWR’s
under RESPA. . . .
Accordingly, Best’s
letters are not valid QWRs, and Best has
failed to state a violation of RESPA.
(emphasis added); see also, e.g., Ward v. Sec. Atl. Mortgage
Elec.

Registration

(E.D.N.C.

2012)

complaint

lacked

Sys.,

Inc.,

(dismissing

858

RESPA

allegations

about

F.Supp.2d
claim

when

561,

574-75

the

amended

irregularities

in

loan

servicing and “the notice does not identify purported errors
with

Plaintiffs’

servicing

account

thereof.”).

or

ask

Thus,

questions

Plaintiff’s

relating

to

BAC’s

argument

that

the

letters constituted QWRs because he “sought to determine that []
Defendant was entitled to collect the payment before making a
payment,” (ECF No. 26, at 4), does not provide a basis for
reconsidering dismissal of the RESPA claim.

5

Plaintiff’s next argument is that “[e]ven if the request
for a copy of the Note did not relate to servicing, the portion
of

Plaintiff’s

payments,

escrow

servicing.”
complaint

letter(s)

payments,

(ECF
did

that

No.

payments made on the loan.
to

the

RESPA

claim

fees

26,

Plaintiff

were

disputed

at

assert

and

the

assessed

expenses,

5).

Nowhere

that

his

did
in

to

amended
disputed

Plaintiff’s allegations pertaining
summarized

in

the

August

memorandum opinion:
Although Plaintiff does not attach the two
letters to his amended complaint, he alleges
that in the January 19, 2013 letter to
Homeward, he: (1) stated that the Note was
“fabricated” and not the original Note; (2)
announced that he made arrangements to pay
the debt; (3) asked for a payoff statement
and a current certified copy of the Note;
and (4) requested to inspect the original
Note and asked for an accounting of payments
and charges on the loan. (ECF No. 10 ¶ 20).
In the March 26, 2013 letter to Ocwen,
Plaintiff
allegedly:
(1)
requested
a
current, certified copy of the Note; (2)
requested a date and time to inspect the
original
Note;
(3)
explained
that
his
purpose was to establish that Ocwen was
legally entitled to enforce the Note and
collect payment; and (4) stated that he was
prepared to satisfy the debt, but wanted to
verify that Ocwen was the “holder” and that
the original Note would be returned to him.
(Id. ¶ 23).

6

relate

the

letters

interest

4,

2014

In

fact,

the

allegations

in

the

amended

complaint

contradict Plaintiff’s new and bare assertion that his letters1
disputed the assessed interest payments, escrow payments, fees
and

expenses.

The

amended

complaint

asserted

that

“[a]s

a

result of the conduct, actions and inactions of [] Defendants
Ocwen and Homeward, [] Plaintiff: . . . (b) has been assessed
interest, fees, collection costs[,] and other expenses that he
would not be liable for had he received the requested documents
required to sell his home[,]” (ECF No. 10 ¶ 42), which is a
different allegation than the one he makes now that the letters
sent to Ocwen and Homeward disputed this information.

See,

e.g., Best v. Samuel I. White, P.C., Civ. No. WDQ-13-2348, 2015
WL 799443, at *3 (D.Md. Feb. 24, 2015) (denying a motion to
reconsider dismissal of a RESPA claim and noting that plaintiff
“cannot recast his allegations as inquiries into ‘servicing’ of
the loan as defined by RESPA. []

His complaint alleged that his

letters sought proof that Capital One held the Note and was
entitled to receive payment; he did not allege that the letters
requested information about the receipt of periodic payments or
the amounts of such payments.”).

Moreover, in the August 4,

2014

court

memorandum

Plaintiff’s

opinion,

purported

the

request

for

“a

considered
payoff

whether

statement

1

Plaintiff does not identify which of the two letters he
believes qualify as QWRs requested this information.
7

or

accounting

of

the

loan”

in

the

January

2013

letter

could

constitute a QWR, but rejected the argument:
Plaintiff’s
arguments
are
unavailing.
Although
Plaintiff
requested
a
payoff
statement and accounting of the loan, this
“bare
assertion
[did]
not
provide
the
servicer with ‘sufficient detail’ as to why
plaintiff[] believe[d] the balance [was]
incorrect.”
Marsh v. BAC Home Loans
Servicing, No. 2:09-cv-813-Ftm-29DNF, 2011
WL 1196415 at *8 (M.D.Fla. March 29, 2011)
(quoting 12 U.S.C. § 2605(e)(1)(B)); Minson
v. CitiMortgage, Inc., No. DKC–12–2233, 2013
WL 2383658, at *3-5 (D.Md. May 29, 2013)
(finding that, inter alia, requests for a
certified copy of the original promissory
note and deed of trust, and a copy of the
account and general ledger statement showing
the loan history did not constitute as a
QWR); Ward v. Security Atlantic Mortg.
Electronic Registration Systems, Inc., 858
F.Supp.2d
561,
574-75
(E.D.N.C.
2012)
(finding that a letter seeking, inter alia,
copies of loan documents, assignments of the
deed of trust and promissory note, and a
loan transactional history did not qualify
as a valid QWR).
(ECF No. 24, at 15-16).
Based on the foregoing, Plaintiff has not demonstrated that
the court clearly erred in dismissing his RESPA claim.
C. MCDCA
Plaintiff asserted in his amended complaint that McCabe and
Deutsche

Bank

violated

the

MCDCA.2

(ECF

No.

10

¶¶

44-52).

Plaintiff believes that the court erred in concluding that he

2

Plaintiff does not allege that Homeward and Ocwen violated
the MCDCA.
8

failed to state a claim under the MCDCA.
8).

(See ECF No. 26, at 6-

The amended complaint alleged that McCabe violated Section

14-202(8)

of

the

MCDCA

by

threatening

to

sell

Plaintiff’s

property on February 5, 2013 and June 4, 2013 “with knowledge it
had no right to foreclose.”
the

August

4,

2014

(ECF No. 10 ¶ 46).

memorandum

opinion,

As stated in

Section

14-202(8)

provides that in collecting or attempting to collect an alleged
debt, a collector may not “[c]laim, attempt, or threaten to
enforce a right with knowledge that the right does not exist.”
Plaintiff appears to argue that the court erred in purportedly
finding “that [] Plaintiff failed to plead th[at] Defendant had
knowledge that the debt was invalid.

No such requirement is

found

at

in

the

MCDCA.”

(ECF

No.

26,

6).

According

to

Plaintiff, he alleged that Defendant cannot enforce the debt,
not that the debt is invalid.
Plaintiff
opinion.

misconstrues

(Id. at 8).
the

August

4,

2014

memorandum

The amended complaint alleged McCabe violated Section

14-202(8) of the MCDCA by threatening a foreclosure sale on
February 5 and June 4, 2013 “with knowledge it had no right to
foreclose.”

(ECF No. 10 ¶ 46).

Plaintiff further contended

that McCabe violated the MCDCA by attempting a foreclosure sale
on October 29, 2013 knowing it had no right to foreclose because
“Defendants were not in possession of the original Note.”
¶

47).

Plaintiff

argued

that
9

Deutsche

Bank

is

liable

(Id.
for

McCabe’s violations because it retained McCabe to collect the
debt.

(Id. ¶ 49).

As indicated, the dismissal of the MCDCA

claim was based on the fact that Plaintiff had not pled that
McCabe knew that it did not have a right to collect or attempt
to

collect

a

debt.

More

specifically,

in

concluding

that

Plaintiff failed to plead a violation of the MCDCA, the court
reasoned, in relevant part:
There are several problems with Plaintiff’s
MCDCA claim.
Although Plaintiff asserts
that McCabe attempted to collect a debt by
sending foreclosure notices to him, the
Substitute Trustees (who are attorneys with
the law firm McCabe, Weisberg & Conway, LLC)
were involved in the foreclosure proceeding,
not the law firm itself. But even assuming
McCabe
attempted
to
collect
a
debt,
Plaintiff has not shown that it knew it
lacked the right to do so. Plaintiff’s only
basis for the MCDCA claim is that McCabe did
not possess the original Note and thus was
not authorized to enforce the lien on the
Property through foreclosure.
Plaintiff’s
challenge
is
based
on
false
premises.
Maryland Rule of Procedure 14-204 allows
“any successor trustee” of a deed of trust
to file a foreclosure action.
Here, the
Deed of Appointment of Substitute Trustees,
recorded in the land records of Prince
George’s
County
on
February
29,
2012,
explicitly identified Deutsche Bank as the
holder or authorized holder of the Note
secured by the Deed of Trust and further
appointed Substitute Trustees, acknowledging
that they “shall have all the rights, powers
and authority, and be charged with all the
duties that were conferred or charged upon
the trustee(s) named in said Deed of Trust.”
(ECF No. 14-1, at 27). The Deed of Trust –
the validity of which Plaintiff does not
challenge - granted the lender or the
10

lender’s agent the authority to foreclose on
the Property. As McCabe points out, even if
the original Note contained Melvina Lewis’s
signature, the validity of the Deed of Trust
as security for the debt against the
Property would not be affected; assuming the
Note contained her signature, Melvina Lewis
would merely be added as a debtor, and this
purported discrepancy “would not affect the
validity of the debt as to [Plaintiff].”
(ECF No. 14, at 9).
Plaintiff does not
dispute that he signed the Note.
Plaintiff
asserts that Deutsche Bank is liable under
the MCDCA for retaining McCabe to collect
the alleged debt.
Plaintiff has not shown
that
either
McCabe
or
Deutsche
Bank
attempted to collect a debt which they knew
was invalid, thus the MCDCA claim will be
dismissed.
(ECF

No.

24,

at

17-18)

(emphases

added).

The

conclusory

allegation that McCabe did not have a right to foreclose and
that it knew it had no right to foreclose because “Defendants
were not in possession of the original Note,” (ECF No. 10 ¶ 47),
is insufficient to plead a plausible violation of Section 14202(8) of the MCDCA for the reasons explained in the memorandum
opinion and set forth above.

Accordingly, Plaintiff’s arguments

urging reconsideration of the dismissal of the MCDCA claim are
unavailing.
D. Breach of Contract
Next, Plaintiff argues that the court erred in dismissing
the breach of contract claim, although his arguments on this
front

are

unclear.

He

asserts

that

“the

Court

erred

by

inferring that [] Plaintiff was in default under the note to []
11

Defendant, when [] Plaintiff’s allegations state [] Defendants
were not holders of the Note.”

(ECF No. 26, at 8).

He further

contends that “the Court erred by relying on the Appointment of
Substitute

Trustee

disputed.”

(Id.).

when

the

contents

of

that

document

are

Finally, he argues that even if Defendants

had standing to enforce their rights under the Deed of Trust,
they are limited to actions that are “reasonable and appropriate
to protect the Lender’s interest in the Property,” and changing
the locks in response to Plaintiff’s bankruptcy filing is not
“reasonable or appropriate” action.

(Id. at 9).

None of these arguments demonstrate a clear error of law in
dismissing the breach of contract claim.

The amended complaint

alleged that Defendant Ocwen breached its contractual obligation
under the Deed of Trust when its agents entered the Property and
attempted to change the locks without giving prior notice to
Plaintiff.3

The court concluded that Paragraph 9 of the Deed of

Trust, (ECF No. 14-1, at 11-12), authorized Ocwen to secure the
Property and change the locks if Plaintiff failed to perform the
covenants and agreements contained in the Deed of Trust or there
was a legal proceeding – such as a proceeding in bankruptcy –
that might affect the Lender’s interest in the property.

The

3

The prior memorandum opinion presumed that Plaintiff
attempted to hold Ocwen and Deutsche Bank liable for breach of
contract, considering his allegation that Ocwen is an agent of
Deutsche Bank, thus Deutsche Bank is liable for Ocwen’s actions.
(ECF No. 22, at 7).
12

court held that “Plaintiff’s bankruptcy filing combined with his
default on the mortgage loan – thereby failing to perform the
covenants of the Deed of Trust – authorized the lender to do
‘whatever

is

reasonable

interest

in

the

Property.”

or

appropriate

Property,’

which

(ECF No. 24, at, 21).

to

protect

included

Lender’s

securing

the

None of Plaintiff’s arguments

in the motion for reconsideration undermine this conclusion.
E. Declaratory Judgment
Finally,

Plaintiff

argues

that

the

court

dismissed his request for a declaratory judgment.
26,

at

9).

Plaintiff

included

as

a

separate

erroneously
(See ECF No.

count

in

his

amended complaint a request for declaratory judgment that “the
original

Note

was

signed

by

Mr.

&

Mrs.

Lewis

and

that

Defendants are not in possession of the original Note.”
No. 10 ¶ 61).

(ECF

In dismissing the claim for declaratory judgment,

the court noted:
Defendants contend that Plaintiff cannot
bring a declaratory judgment action because
no actual controversy presently exists.
Specifically,
Defendants
note
that
the
validity of the Note concerns their rights
to foreclose on the Property, which is no
longer
an
issue
because
Plaintiff
voluntarily filed for bankruptcy in October
2013 and the bankruptcy case was closed in
December 2013. Plaintiff has not stated the
existence of a controversy which should be
settled.

13

the

(ECF No. 24, at 23-24) (emphasis added).

In his motion for

reconsideration, Plaintiff asserts that “[a]lthough [] Defendant
has

dismissed

seeking

to

the

foreclosure

collect

payment.

action,

[]

[]

Defendant

Plaintiff

is

contends

still

that

[]

Defendant is not a holder of the Note and therefore not entitled
to collect payment.”

(ECF No. 26, at 9).

Plaintiff asserts

that his “declaratory judgment claim seeks to adjudicate whether
Defendant can or cannot collect payment under the Note.”

(Id.).

The only allegation in the amended complaint in support of
the declaratory judgment claim was that Defendants had no right
to enforce the Note by way of foreclosure because they did not
possess the original Note (which Plaintiff maintains contained
both his and his wife’s signatures).
As

McCabe

entered[,]

points
the

out,

“[a]t

foreclosure

the

action

(See ECF No. 10 ¶¶ 53-61).

time

the

against

court’s

Order

Plaintiff

had

was
been

dismissed and [] Plaintiff had a pending bankruptcy case that
would have obviated any attempt to foreclose.

As such, there

was no case or controversy by which [] Plaintiff may have been
entitled

to

declaratory

judgment.”

(ECF

No.

27

¶

23).

Plaintiff has not established that the court clearly erred in
its conclusion that there was no actual case or controversy for
a declaratory judgment.

In any event, Plaintiff’s new assertion

that Defendant is not entitled to collect payment under the Note
because purportedly it does not hold the original note fails to
14

state an actual controversy.

Defendants are not required to

present the original Note to Plaintiff in order to enforce the
note.

See, e.g., Jones v. Bank of New York Mellon, Civ. Action

No. DKC 13-3005, 2014 WL 3778685, at *4 (D.Md. July 29, 2014)
(rejecting

argument

that

unless

defendant

can

produce

the

original note for the record, it has no authority to enforce the
note); Harris v. Household Finance Corp., Civ. Case No. RWT 14606, 2014 WL 3571981, at *2 (D.Md. July 18, 2014) (“there is no
recognizable claim to demand in an action brought by a borrower
that the lender produce ‘wet ink’ signature documents.”).
IV.

Conclusion
For

the

foregoing

reasons,

reconsideration will be denied.

Plaintiff’s

motion

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

15

for