felder et al v. Buonassissi, Henning & Lash, PC et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 10/4/2013. (c/m 10/7/13 rs) (rss, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

HAROLD E. FELDER, et al.

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Plaintiffs
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v.
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BUONASSISSI, HENNING & LASH, PC *
et al.
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Defendants
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Civ. No.:

PJM 13-1741

MEMORANDUM OPINION
Plaintiffs Harold and Cherry Felder, pro se, have brought an action against 39 defendants,
alleging violations of 42 U.S.C. § 1983, 42 U.S.C. § 1985, 42 U.S.C. § 1986, malicious use of
process, malicious use of prosecution, 18 U.S.C. §§ 241 and 242, intentional infliction of
emotional distress, and mail fraud, all presumably related to foreclosure proceedings on four
properties located in Prince George’s County, Maryland. Defendant Specialized Loan Servicing,
LLC (“SLS”) has filed a Motion to Dismiss [Paper No. 10] for failure to state a claim upon
which relief can be granted.1 Defendant JPMorgan Chase Bank, N.A. (“Chase”) has filed a
similar Motion to Dismiss [Paper No. 12] for failure to state a claim against it. Defendants
Deutsche Bank National Trust Company (“Deutsche Bank”) and MERS have filed a Motion to
Dismiss [Paper No. 6] in which they argue insufficient service of process as to all defendants.
Defendant Wells Fargo Bank, NA (“Wells Fargo”) has filed a Motion to Dismiss on the same
grounds [Paper No. 15].

1

Plaintiffs filed their original Complaint on June 14, 2013. They amended it on July 9, 2013. The amendment did
not comply with Local Rule 103.6(c), which requires that an amended pleading be accompanied by a document
which displays the changes made to the document. It appears that the only change, however, was the addition of
more defendants. Since Plaintiffs’ current claims will all be dismissed with or without prejudice, the claims
dismissed without prejudice may be re-filed. Plaintiffs will be given 45 days to file a new complaint composed of
these claims, to be titled Second Amended Complaint.

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For the reasons that follow, the Court GRANTS WITH PREJUDICE SLS’s Motion to
Dismiss and Chase’s Motion to Dismiss as to Counts I, II, III and VI of the Amended Complaint,
and GRANTS WITHOUT PREJUDICE SLS’s Motion to Dismiss and Chase’s Motion to
Dismiss as to all remaining counts. Further, the Court GRANTS WITHOUT PREJUDICE
Deutsche Bank and MERS’s Motion to Dismiss and Wells Fargo’s Motion to Dismiss as to
themselves.
I.
The Amended Complaint is largely incoherent and devoid of material factual allegations.
Although its few alleged facts center on foreclosure, the Felders ultimately allege civil rights
violations, criminal violations, and various intentional torts. Despite the deficiencies in the
pleadings, the Court has been able to glean the following basic facts from the briefs and exhibits
filed in connection with Defendants’ Motions to Dismiss.2
The case arises from foreclosure proceedings relating to four Felder properties located in
Prince George’s County, Maryland:


5502 Parkers Endeavor Drive, Bowie, Maryland 20720 (“Parkers Property”)



2406 Nicol Circle, Bowie, Maryland 20721 (“Nicol Property”)



10605 Blackstone Avenue, Cheltenham, Maryland 20623 (“Blackstone Property”)



17119 Aspen Leaf Drive, Bowie, Maryland 20716 (“Aspen Property”)

See SLS’s Mot. to Dismiss 2 (citing Am. Compl. pp. 9-10).
Between 1993 and 2012, a number of events involving these properties occurred,
including the recording of deeds and deeds of trust, trustee sales, and orders of ratification. See
Id. at 2 (citing Am. Compl. pp. 9-11). At some point there was a foreclosure sale of one or more

2

The Court considers these facts only to establish an intelligible background; they are not deemed to be “wellpleaded allegations” by Plaintiffs for the purposes of a Motion to Dismiss under Federal Rule of Procedure 12(b)(6).

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of the properties. Id. at 2 (citing Am. Compl. p. 15). Plaintiffs say they did not receive
“notice…after the first sale of the subject property.” Id. at 2 (citing Am. Compl. p. 15). They
continue: “[F]ormer [S]heriff [M]ichael [A]ngelo Jackson did not have sufficient evidence to
proceed with a sheriff’s sale. [T]he sheriff is not in possession of and never will be in possession
of a valid court order for the sale of the subject property.” Id. at 2 (citing Am. Compl. pp. 1617). It is not clear from the Amended Complaint, however, what property was sold at the
sheriff’s sale.
Chase was the servicer of a loan to Harold Felder that was secured by deeds of trust on
the property at 2406 Nicol Circle in Bowie, Maryland (the “Property”). See Chase’s Mot. to
Dismiss, Docket No. 12, at 2. Felder had purchased the Property for $705,000 on November 30,
2006, financing part of the purchase price with a trust loan of $564,000.3 Id. The deed and the
deed of trust were recorded in the land records of Prince George’s County. Chase has provided
copies of the deed and the deed of trust. See Docket No. 12, Ex. A and B.
By August 2008, Harold Felder was in default on the trust loan and Washington Mutual
Bank, which had become the noteholder, appointed as Substitute Trustees co-defendants John S.
Burson, William M. Savage, Gregory N. Britto, Jason Murphy, Kristine D. Brown, and Erik W.
Yoder (together, the “Substitute Trustees”). The deed of appointment was recorded in the land
records of Prince George’s County. See Docket No. 12, Ex. C.
On January 20, 2009, the Substitute Trustees docketed a foreclosure action in the Circuit
Court for Prince George’s County. See Docket No. 12, Ex. D. A foreclosure sale eventually was
ratified by the Circuit Court on June 7, 2010. Id. The Property was thereupon deeded by the
Substitute Trustees to Chase, the buyer at the foreclosure sale, on June 17, 2010. The Substitute

3

Chase references a second trust loan of $141,000 in its Motion to Dismiss, but has not provided evidence of this
second loan or of any deed of trust securing it.

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Trustee’s deed was recorded in the land records of Prince George’s County. See Docket No. 12,
Ex. E. The deed indicates that the Property sold for $301,000 on July 28, 2009. Id. Following
audit, the foreclosure sale was ratified and Chase was awarded possession of the Property. See
Docket No. 12, Ex. D.
II.
Federal Rule of Civil Procedure 8(a) prescribes “liberal pleading standards,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007), which requires only that a plaintiff submit “a short and plain
statement of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A plaintiff
may not, however, rely on naked assertions, speculation, or mere legal conclusions. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). When a defendant moves to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6), the court must evaluate the complaint’s sufficiency,
viewing all well-pleaded factual allegations as true and construing them in the light most
favorable to the plaintiff. See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009). To survive such a motion, the plaintiff must present enough factual content to render his
claim “plausible on its face,” i.e., to enable “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A plaintiff proceeding pro se is held to “less stringent standards” than is a lawyer, and the
court must construe his claims liberally, no matter how “inartfully pleaded.” Erickson, 551 U.S.
at 94; see also Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722 (4th Cir. 2010) (observing that
liberal construction of a complaint is particularly appropriate where a pro se plaintiff alleges civil
rights violations). Nevertheless, even a pro se complaint must meet a minimum threshold of
plausibility. See O’Neil v. Ponzi, 394 F. App’x 795, 796 (2d Cir. 2010).

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A district court has the discretion to grant a motion to dismiss with or without prejudice.
Hinks v. Bd. of Educ. of Harford Cnty., Civ. No. WDQ-09-1672, 2010 WL 5087598, at * 2 (D.
Md. Dec. 7, 2010). Dismissal with prejudice is proper if there is no set of facts the plaintiff
could present to support his claim. Id. (citing Cozzarelli v. Inspire Pharm., Inc., 549 F.3d 618,
630 (4th Cir. 2008)).
III.
SLS and Chase (by adoption of SLS’s Motion) argue that all the Felders’ claims should
be dismissed for failure to state a claim upon which relief can be granted. As to the claims
arising under the Civil Rights Act and the criminal statutes, SLS and Chase argue that the
Felders cannot bring such causes of action against them. Apart from this, as to all claims, SLS
and Chase argue that Plaintiffs have not pled sufficient facts to support their claims. The Court
agrees.
A.
The Court turns first to the viability of Counts I, II and III arising under the Civil Rights
Act, 42 U.S.C. § 1981, et seq. The Civil Rights Act provides a remedy for violations of
constitutional rights based on “state action.” See 42 U.S.C. § 1981, et seq. The Felders’ claims
under the Civil Rights Act are clearly untenable. In no sense were SLS or Chase state or federal
actors. See 42 U.S.C. § 1983; Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 619
(1991) (citing Nat. Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988)) (“The
Constitution’s protections of individual liberty and equal protection apply in general only to
action by the government.”); Andrews v. Fed. Home Loan Bank of Atlanta, 998 F.2d 214, 216
(4th Cir. 1993) (“In our constitutional scheme, state action doctrine protects the private sector
from the restrictions imposed on the conduct of government”). Nor is there any suggestion that

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SLS or Chase shared a “sufficiently close nexus” with state actors such that the actions of the
former “may be fairly treated as that of the [s]tate itself.” Jenkins v. Gaylord Entm’t Co., 840 F.
Supp. 2d 873, 884 (D. Md. 2012) (alteration in original) (quoting Jackson v. Metro. Edison Co.,
419 U.S. 345, 351 (1974)); see also Ventura v. Am.'s Servicing Co., Civ. No. 8:13-CV-02087AW, 2013 WL 4482949, at *4 (D. Md. Aug. 20, 2013).
Accordingly, Counts I, II and III of the Amended Complaint are dismissed with prejudice
as to SLS and Chase.
B.
The Court next turns to the viability of Count VI alleging violations of criminal statutes
18 U.S.C. §§ 241 and 242. These, too, fail as a matter of law. There is no private cause of
action under these criminal statutes. Shahin v. Darling, 606 F. Supp. 2d 525, 538 (D. Del. 2009);
see also Mesmer v. St. Mary’s Cnty., Civ. No. DKC-10-1053, 2010 WL 1881772, at *2 (D. Md.
May 7, 2010) (dismissing claims under 18 U.S.C. §§ 241 and 242 because plaintiff may not
attempt to bring criminal charges in a civil proceeding).
Count VI of the Amended Complaint is also dismissed with prejudice as to SLS and
Chase.
C.
Finally, SLS and Chase argue that the remaining counts of the Amended Complaint, i.e.
Counts IV, V, VII and VIII, fail to meet the minimum pleading standard required to survive a
motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Court agrees.
The Amended Complaint is essentially devoid of material factual allegations. Even
under a most generous reading, it fails to “state a claim to relief that is plausible on its face.”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plaintiffs need to re-think their
claims and attempt to flesh out a new complaint that contains substantial material factual
averments in support of the claims they believe they have. For now, these remaining counts, as
to SLS and Chase, are dismissed without prejudice.
V.
Deutsche Bank, MERS and Wells Fargo argue that the Complaint should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(5) because service as to them was defective.4
Again, the Court agrees.
Fed. R. Civ. P. 4(c) provides that “[a] summons must be served with a copy of the
complaint. The plaintiff is responsible for having the summons and complaint served within the
time allowed by Rule 4(m).” The original Complaint was filed on June 14, 2013. The Clerk of
the Court issued summonses on July 1, 2013.

On July 9, 2013, the Felders returned the

summonses as executed, suggesting that they were served by certified mail, and the Clerk
docketed them. Review of the certified mail receipts, however, indicates mailing dates between
June 7, 2013 and June 21, 2013, before the summonses were issued by the Clerk, and in some
cases, before the original Complaint was even filed with the Court. The Felders failed to comply
with the general rule of service contained in Rule 4(c) regulating the service of a summons and
Complaint upon a defendant.
Furthermore, the Felders’ service on Defendants was insufficient under Fed. R. Civ. P.
4(e) and 4(h), which provide that both corporations and individuals may be served by “following
state law for serving a summons in an action brought in courts of general jurisdiction in the state
where the district court is located or where service is made.” Since the Felders attempted to

4

These Defendants apparently seek dismissal of the case as to all Defendants based on defective service. It is not
clear by what authority these Defendants purport to speak for Defendants other than themselves. In any event, since
SLS and Chase have filed Motions to Dismiss, they have foregone the defective service issue.

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serve by certified mail, they were presumably choosing to follow Maryland Rule 2-121. See
Docket No. 4.

But they did not, as required by Maryland Rule 2-121(a)(3), serve the

Defendants by certified mail requesting “Restricted Delivery-show to whom, date, address of
delivery.”
Service of Process as to Deutsche Bank, MERS, and Wells Fargo was therefore clearly
deficient.

The Amended Complaint is therefore dismissed without prejudice as to these

Defendants.
VI.
For the foregoing reasons, as to Counts I, II, III, and VI of the Amended Complaint,
SLS’s Motion to Dismiss [Paper No. 10] and Chase’s Motion to Dismiss [Paper No. 12] are
GRANTED WITH PREJUDICE as to SLS and Chase only. As to Counts IV, V, VII and VIII,
SLS’s Motion to Dismiss and Chase’s Motion to Dismiss are GRANTED WITHOUT
PREJUDICE as to SLS and Chase only. Deutsche Bank and MERS’s Motion to Dismiss [Paper
No. 6] and Wells Fargo’s Motion to Dismiss [Paper No. 15] are GRANTED WITHOUT
PREJUDICE as to all remaining Defendants. The Court GRANTS Plaintiffs leave to prepare a
new Second Amended Complaint, arrange for new summonses and effect proper service on any
Defendants as to whom a claim was dismissed without prejudice, but must do so within 45 days
from this date.
A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
October 4, 2013

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