McNeil v. Bank of America, N.A.

Filing 9

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
:
v.

:

Civil Action No. DKC 13-2162

:
BANK OF AMERICA, N.A.
:
MEMORANDUM OPINION
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).

The issues

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.
I.

Background
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
20774

(“the

property”).

(ECF

No.

1).

In

the

complaint,

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,

2009

the

Deed

of

Trust

relating

to

property

is

invalid

and

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
least

once

and

remains

separated,

making

the

mortgage

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
was

in

a

forfeited

status

in

Maryland

at

the

time

of

the

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
the

Note,

and

not

MERS;

(5)

Reconstruct

Company

N.A.

was

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,
2013.

(ECF No. 5).

Plaintiff opposed the motion on October 15,

2013 (ECF No. 7), and Defendant replied on October 31, 2013 (ECF
No. 8).

2

II.

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
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.”
8(a)(2).

Fed.R.Civ.P.

“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
factual enhancement.”

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
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, unsupported legal

allegations need not be accepted.

Revene v. Charles County

Commis., 882 F.2d 870, 873 (4th Cir. 1989).

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
3

at 678, as are 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

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

v.

“[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.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Id.

III. Analysis
Plaintiff seeks to quiet title and requests that the court
declare

null

Defendant

and

void

the

Deed

of

argues

that

Plaintiff’s

Trust

dated

complaint

June

contains

conclusory statements, devoid of any factual support.

2009.
only

Under Md.

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.”

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
4

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).

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,
2010).
As Defendant argues, Plaintiff does not allege any specific
facts showing that the mortgage on her property was invalidly
created

or

that

it

has

become

invalid.

Plaintiff

does

not

dispute that she received the loan proceeds under the 2009 Deed
of Trust, nor does Plaintiff allege that the refinanced loan has
been

paid

or

satisfied.

Plaintiff

makes

several

arguments

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.
of

Trust

identifies

(ECF No. 1, at 2).

Defendant

Bank

of

America,

The 2009 Deed
N.A.

lender and Reconstruct Company, N.A. as the trustee.
is in the amount of $289,800.

(ECF No. 1-1, at 1).

as

the

The loan
Plaintiff

asserts in the opposition that the June 29, 2009 Deed of Trust
secures a refinanced loan on the property.

5

(See ECF No. 7, at

2).

This Deed of Trust secures a promissory note, dated June

29, 2009.

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.”
Second,

Plaintiff

(ECF No. 5-1, at 6).

argues

that

subject

mortgage

was

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
assigns.

MERS

is

the

and Lender’s successors and

beneficiary

under

this

Instrument.”

(ECF No. 1-3, at 1) (emphasis added).1

argues

“[t]he

that

settlement

when

the

Note

and

lender,

Mortgage

Provident

were

Funding

Security
Plaintiff

separated
Group,

at

Inc[.]

‘nominated’ MERS as ‘Mortgagee’ while the beneficiary under the
Note remained with Provident Funding Group, Inc.”

1

(ECF No. 7,

The November 9, 2007 Deed of Trust secures a loan in the
amount of $283,500. (ECF No. 1-3).
6

at 3).

She states that the separation occurred in November

2007.
As

Defendant

rejected

this

points

“separation

out,

courts

theory.”

in

this

See,

district

e.g.,

Reed

have

v.

PNC

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
(D.Md.

Apr.

3,

2012)

(same).

Judge

Nickerson

explained

in

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.

The

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.
that

“Provident

Funding

Group,

Inc.

transfer of the Security instrument.
voids the Mortgage and Note.”
also

lacks

separate

merit.

assignment

the

the

assumes

Deed

transfer of the promissory note.

of

Note

without

This breach of contract

(ECF No. 7, at 3).

Plaintiff
of

sold

Plaintiff asserts

that
Trust

This argument

there
when

must

be

a

there

is

a

“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
7

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
Prince

George’s

County

and

signed

Assistant Secretary of MERS.

by

DeWayne

Vardaman,

the

She states that the Certificate is

fraudulent because MERS was in forfeited status as of October 5,
2001.

(ECF No. 1, at 2).

The registration status of MERS in

Maryland is irrelevant to a quiet title action.
Mabry,

2013

[d]efendant

WL
is

5487858,
or

is

not

at

*2

validly

(“[r]egardless
registered

as

See, e.g.,
of
a

whether
corporate

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
DeWayne

Vardaman,

fraudulent.”

assistant

secretary

(ECF No. 7, at 5).

for

MERS[,]

is

Plaintiff’s fraud allegation

fails to meet the heightened pleading standard of Rule 9(b), as
8

she includes no factual basis to support this claim.

Moreover,

as Defendant points out, the Certificate of Satisfaction relates
to

the

2007

Deed

of

Trust.

Thus,

“the

certificate

of

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).

(ECF

Indeed, Plaintiff asserts in the complaint

that her title to the property derives from the deed dated June
29, 2009.

(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.
that

MERS

never

held

a

beneficiary

Plaintiff’s contention
interest

in

the

promissory note and thus could not assign it is unavailing.

2007
She

states:
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.
An
assignment of a mortgage in the absence of
the assignment and physical delivery of the
Note will result in a nullity.
MERS never
acquires actual physical possession of the
Note,
nor
do
they
acquire
beneficial
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

9

conduct the refinance because MERS was never owed money.”
at 5).

(Id.

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
Security Instrument.”

(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
instrument).
WMN-13-1700,

As explained in Mabry v. MERS, Civil Action No.
2013

WL

5487858,

at

*3

(D.Md.

Oct.

1,

2013),

“[p]laintiff’s [] claim, that MERS did not have the authority to
assign the mortgage, flatly contradicts the language in the Deed
of Trust.

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.

(See ECF

No.

separate

1-3,

at

1,

2007

Deed

of

Trust

(“MERS

is

a

corporation that is acting solely as nominee for Lender
Lenders’ successors and assigns.”) (emphasis added)).

and

As Judge

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
10

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.
(emphasis added).

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

allowed

behalf

MERS,

Provident

as

Funding

nominee,
Group,

to

act

Inc.

on

By

signing

of

the

the
2007

lender,
Deed

of

Trust, Plaintiff consented to MERS’s authority to act on behalf
of the lender.
Plaintiff

(See ECF No. 1-3, at 14).

challenges

MERS’s

assignment

Thus, to the extent

of

the

mortgage,

this

argument lacks merit.
Plaintiff
invalid

also

because

trustee.

As

argues

Reconstruct
Defendant

that

the

Company

points

2009

Deed

N.A.

was

out,

this

of

Trust

named

as

argument

is

is
the

also

deficient, as Plaintiff does not explain how or why this would
invalidate

the

2009

Deed

of

Trust.

Plaintiff’s

assertion of fraud is similarly unavailing.

general

Plaintiff alleges

in the opposition that “Provident Funding Group, Inc. defrauded
the

Plaintiff

of

funds

earned

through

sale

of

the

Note

by

failing to apply funds earned to the interest and principal as
required by contract.”

(ECF No. 7, at 3).

Plaintiff thus

concludes that “[t]his breach of contract voids the Mortgage and
the Note.”

Plaintiff in Lawson, 2013 WL 4482953, at *3, posited

11

the same isolated allegation, which Judge Williams rejected as
“too vague to state cognizable causes of action for breach of
contract and fraud.”
the

heightened

pleading

Fed.R.Civ.P. 9(b).
breach

of

This allegation certainly does not meet
standard

for

fraud

claims.

See

Moreover, Plaintiff fails to explain how any

contract

by

Provident

Funding

Group

voids

her

obligations under the 2009 Deed of Trust, which secures her
refinanced loan.
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.”
1,

at

3).

securitized.

Plaintiff

presents

no

facts

that

her

(ECF No.
loan

was

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.”

See also

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.

She does

not identify the nature of any defect in the 2009 Deed of Trust
or

her

mortgage

loan.

Accordingly,

dismissed.

12

her

complaint

will

be

IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss

will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13