McNeil v. Bank of America, N.A.
MEMORANDUM OPINION (c/m to Plaintiff 5/7/14 sat). Signed by Chief Judge Deborah K. Chasanow on 5/7/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOYCE M. McNEIL
Civil Action No. DKC 13-2162
BANK OF AMERICA, N.A.
Presently pending and ready for resolution in this action
to quiet title is the motion to dismiss filed by Defendant Bank
of America, N.A. (“Bank of America”) (ECF No. 5).
have been fully briefed, and the court now rules, no hearing
being deemed necessary.
Local Rule 105.6.
For the following
reasons, Defendant’s motion to dismiss will be granted.
On July 26, 2013, Plaintiff Joyce M. McNeil, proceeding pro
se, filed the instant complaint to quiet title on certain real
property located at 106 Colton Street, Upper Marlboro, Maryland
Plaintiff asserts that her title to this property derives from a
Deed of Trust, dated June 29, 2009, and recorded in the land
records of Prince George’s County, Maryland on August 7, 2009.
(Id. at 1; see also ECF No. 1-1).
She alleges that the June 29,
unenforceable for the following reasons: (1) “Bank of America is
no longer the holder of the note associated with this Deed of
Trust”; (2) “[s]ubject [m]ortgage was separated from the note at
unenforceable, null, deficient, and illegal”; (3) a Certificate
of Release recorded on July 16, 2009 in the land records of
Prince George’s County, Maryland by
[the Mortgage Electronic
Registration Systems, Inc. (“MERS”)] is fraudulent because MERS
recording; (4) MERS could not legally assign the Note to the
current holder of the note because at the time the debt was
satisfied, Provident Funding Group was the lender or holder of
appointed trustee in the 2009 Deed of Trust; (6) unspecified
“[f]raud vitiates the most solemn contracts”; and (7) Defendant
does not have “legal standing to enforce the Note because the
Deed of Trust and Note have been separated as a result of the
securitization of the loan, making the subject Deed of Trust
invalid and unenforceable.”
(ECF No. 1, at 2-3).
Defendant moved to dismiss the complaint on September 30,
(ECF No. 5).
Plaintiff opposed the motion on October 15,
2013 (ECF No. 7), and Defendant replied on October 31, 2013 (ECF
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
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.”
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
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, unsupported legal
allegations need not be accepted.
Revene v. Charles County
Commis., 882 F.2d 870, 873 (4th Cir. 1989).
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
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
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
experience and common sense.”
Plaintiff seeks to quiet title and requests that the court
conclusory statements, devoid of any factual support.
Code Ann., Real Prop. § 14-108(a), a person in “actual peaceable
possession of property” may sue to quiet title when “his title
to the property is denied or disrupted, or when any other person
claims . . . to own the property . . . or to hold any lien
encumbrance on it.”
[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
To state a successful quiet title action, the
plaintiff must show his claim to title and allege an invalid or
defective adverse interest.
Hood v. Aurora Loan Servs., Civil
Action No. CCB-10-11, 2010 WL 2696755, at *5 (D.Md. July 6,
As Defendant argues, Plaintiff does not allege any specific
facts showing that the mortgage on her property was invalidly
dispute that she received the loan proceeds under the 2009 Deed
of Trust, nor does Plaintiff allege that the refinanced loan has
challenging the validity of the 2009 Deed of Trust, none of
which have merit.
She first argues that, based on her research,
Bank of America is no longer the holder of the promissory note
secured by the Deed of Trust.
(ECF No. 1, at 2).
The 2009 Deed
lender and Reconstruct Company, N.A. as the trustee.
is in the amount of $289,800.
(ECF No. 1-1, at 1).
asserts in the opposition that the June 29, 2009 Deed of Trust
secures a refinanced loan on the property.
(See ECF No. 7, at
This Deed of Trust secures a promissory note, dated June
Plaintiff’s vague assertion that Bank of America does
not hold the Note is insufficient.
As Defendant points out,
“Plaintiff does not identify the purported new holder of the
note, nor provide any specific facts as to when and how the note
was allegedly transferred.”
(ECF No. 5-1, at 6).
separated from the note at least once and remains separated,
invalidating the mortgage on the property.
Although the 2009
Deed of Trust appears to be the subject of Plaintiff’s complaint
as it relates to the refinanced loan on her property, many of
her allegations concern purported defects in the Deed of Trust
she executed on November 9, 2007 securing the original loan.
(ECF No. 1-3).
The November 9, 2007 Deed of Trust identifies
Provident Funding Group, Inc. as the lender and MERS as acting
“solely as a nominee for Lender
and Lender’s successors and
(ECF No. 1-3, at 1) (emphasis added).1
‘nominated’ MERS as ‘Mortgagee’ while the beneficiary under the
Note remained with Provident Funding Group, Inc.”
(ECF No. 7,
The November 9, 2007 Deed of Trust secures a loan in the
amount of $283,500. (ECF No. 1-3).
She states that the separation occurred in November
Mortg., 2013 WL 3364372, at *3 (D.Md. July 2, 2013) (rejecting
claim the deed of trust is invalid and unenforceable because it
has been separated from the underlying note); Parker v. Deutsche
Bank Nat’l Trust Co., No. WMN-12-3358, 2013 WL 1390004, at *3
Parker, 2013 WL 1390004, at *3, that “the rights under the Deed
of Trust follow the Note, [thus] there [is] no splitting.”
same logic applies here.
Plaintiff also does not explain why
the alleged separation of the 2007 Deed of Trust and promissory
note would invalidate the 2009 Deed of Trust.
transfer of the Security instrument.
voids the Mortgage and Note.”
transfer of the promissory note.
This breach of contract
(ECF No. 7, at 3).
“The transfer of the note,
however, carries the Deed of Trust with it.”
Parker, 2013 WL
1390004, at *2; see also Svrcek v. Rosenberg, 203 Md.App. 705
(2012) (noting that “[t]he deed of trust need not and properly
speaking cannot be assigned like a mortgage, but the note can be
transferred freely, and, when transferred, carries with it the
security, if any, of the deed of trust.”).
Next, Plaintiff challenges the validity of a Certificate of
Satisfaction, recorded on July 16, 2009 in the land records of
Assistant Secretary of MERS.
She states that the Certificate is
fraudulent because MERS was in forfeited status as of October 5,
(ECF No. 1, at 2).
The registration status of MERS in
Maryland is irrelevant to a quiet title action.
entity in the State of Maryland, [d]efendant’s contracts – which
are central to [p]laintiff’s allegations – are unaffected.”);
Lawson v. MERS, Inc., 8:13-CV-02149-AW, 2013 WL 4482953 (D. Md.
Aug. 20, 2013) (“The isolated and vague allegation that MERS is
a forfeited entity is insufficient to state a cause of action.
Furthermore, assuming MERS were forfeited, it is unclear that
this status would affect the validity of the contract between
Countrywide and Plaintiff.”).
Plaintiff argues in the opposition that “[u]pon information
and belief, the execution of the certificate of satisfaction by
(ECF No. 7, at 5).
Plaintiff’s fraud allegation
fails to meet the heightened pleading standard of Rule 9(b), as
she includes no factual basis to support this claim.
as Defendant points out, the Certificate of Satisfaction relates
satisfaction -- even if it is ‘fraudulent’ as Plaintiff claims –
cannot have any effect on the validity of the Deed of Trust
which Plaintiff signed two years later on June 29, 2009.”
No. 5-1, at 6-7).
Indeed, Plaintiff asserts in the complaint
that her title to the property derives from the deed dated June
(ECF No. 1 ¶ 2).
Plaintiff’s fourth argument is that when the initial debt
was satisfied, MERS was not the “lender” or holder of the Note,
thus it could not have legally assigned the Note to Defendant
Bank of America, the current holder.
promissory note and thus could not assign it is unavailing.
MERS never had beneficial interest in the
note nor did they receive the income from
the payments. The actual owner of the note
has never executed an assignment.
assignment of a mortgage in the absence of
the assignment and physical delivery of the
Note will result in a nullity.
acquires actual physical possession of the
interest in the note.
(ECF No. 7, at 3).
Plaintiff concludes that “Bank of America
could not legally secure the debt owed from MERS in order to
conduct the refinance because MERS was never owed money.”
Plaintiff’s argument is premised on a misunderstanding
of the relevant documents and the role of MERS.
First, the 2007
Deed of Trust identified MERS as “the beneficiary under this
(ECF No. 7-2, at 1); see Parker, 2013 WL
1390004, at *2 (rejecting contention that MERS did not have a
beneficiary interest in a promissory note where the Deed of
Trust expressly designated MERS as the beneficiary under the
As explained in Mabry v. MERS, Civil Action No.
“[p]laintiff’s  claim, that MERS did not have the authority to
assign the mortgage, flatly contradicts the language in the Deed
The Deed of Trust expressly states that MERS is the
beneficiary in its capacity as ‘nominee for Lender . . . and
Lender’s successors and assigns.”
Here, the 2007 Deed of Trust
contains identical language to that at issue in Mabry.
corporation that is acting solely as nominee for Lender
Lenders’ successors and assigns.”) (emphasis added)).
Nickerson explained in Suss v. JP Morgan Chase Bank, N.A., 2010
WL 2733097, at *1 (D.Md. July 9, 2010):
MERS is an entity that tracks ownership
interests in residential mortgages in an
electronic database. MERS members . . . pay
a subscription fee for the processing and
transfer of mortgages.
Mortgages on which
MERS is named as a beneficiary may be freely
transferred among MERS members and the
transfers are recorded in MERS electronic
database but are not publically recorded.
The propriety of the MERS registry system has
been affirmed by courts in this district.
See id. at *5; see
also Parker, 2013 WL 1390004, at *3.
The 2007 Deed of Trust
Trust, Plaintiff consented to MERS’s authority to act on behalf
of the lender.
(See ECF No. 1-3, at 14).
Thus, to the extent
argument lacks merit.
deficient, as Plaintiff does not explain how or why this would
assertion of fraud is similarly unavailing.
in the opposition that “Provident Funding Group, Inc. defrauded
failing to apply funds earned to the interest and principal as
required by contract.”
(ECF No. 7, at 3).
concludes that “[t]his breach of contract voids the Mortgage and
Plaintiff in Lawson, 2013 WL 4482953, at *3, posited
the same isolated allegation, which Judge Williams rejected as
“too vague to state cognizable causes of action for breach of
contract and fraud.”
This allegation certainly does not meet
Moreover, Plaintiff fails to explain how any
obligations under the 2009 Deed of Trust, which secures her
Lastly, Plaintiff argues that Defendants lacks standing to
enforce the Note because “the Deed of Trust and Note have been
separated as a result of the securitization of the loan, making
the subject Deed of Trust invalid and unenforceable.”
In any event, as Judge Williams reasoned in Reed,
2013 WL 3364372, at *3, “[e]ven assuming that [her] loan was
securitized, Plaintiff has presented no basis for the Court to
declare the deed of trust invalid or unenforceable.”
Lawson, 2013 WL 4482953, at *3 (same).
In sum, Plaintiff’s claims lack the particularity necessary
to state a plausible cause of action to quiet title.
not identify the nature of any defect in the 2009 Deed of Trust
For the foregoing reasons, Defendant’s motion to dismiss
will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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