Strickland v. JPMorgan Chase Bank, N.A.

Filing 10

MEMORANDUM AND ORDER GRANTING 7 Motion of Defendant to Dismiss Count I, with leave to amend and Count II with Prejudice. Plaintiff shall file amended complaint on or before 1/21/14. Signed by Judge William M Nickerson on 1/7/14. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

YVETTE M. STRICKLAND

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v.
JP MORGAN CHASE BANK, N.A.
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Civil Action No. WMN-13-2665

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MEMORANDUM & ORDER
Plaintiff Yvette Strickland filed this action in the
Circuit Court for Prince George’s County on July 31, 2013.

The

Complaint alleges that in 2009, as part of her bankruptcy
proceedings, she and Defendant JP Morgan Chase Bank, N.A.
entered into a Consent Order Approving Loan Modification
(Consent Order) which permitted her to make interest only
payments on her mortgage loan for the period 2009 through 2013.
She further alleges that she made all monthly payments as
required by the Consent Order until such time as Defendant
“unilaterally and without cause began rejecting those payments.”
Compl. ¶ 7.

The Complaint asserts one count for breach of

contract and one count to quiet title.
Defendant removed the action to this Court on September 13,
2013, and then filed a motion to dismiss.

ECF No. 7.

In its

motion, Defendant notes that Plaintiff’s description of the
terms of the Consent Order was “accurate, but incomplete.”
at 7.

Id.

Defendant supplies a copy of the Consent Order with its

motion, ECF No. 7-1, and accurately observes that, while the
Consent Order did permit interest only payments through 2013, it
also provided that “[t]he monthly payment amounts in [the
paragraph permitting interest only payments] are subject to
change due to interest rate changes and/or escrow adjustments.”
Id. ¶ d.1

With its motion, Defendant also submits property tax

records which show that property taxes were paid on the property
in question for the years 2010, 2011, and 2012.2

Defendant also

points to a provision in the Deed of Trust securing the mortgage
loan that required Plaintiff to make escrow payments to
Defendant to cover payments for property taxes and homeowner’s
insurance.3

Defendant notes that the Complaint fails to allege

that it was Plaintiff that paid the property taxes and argues
that the only reasonable inference that can be drawn from these
facts and that failure is that Defendant paid the property taxes
and adjusted Plaintiff’s monthly payments accordingly.

On this

1

The Court may consider any documents referred to in the
complaint and relied upon to justify a cause of action - even if
the documents are not attached as exhibits to the complaint.
See Fed. R. Civ. P. 10(c); New Beckley Mining Corp. v. Int'l
Union, United Mine Workers of Am., 18 F.3d 1161, 1164 (4th Cir.
1994).
2

In considering a motion under Rule 12(b)(6), the Court may also
take judicial notice of matters of public record. Hall v.
Virginia, 385 F.3d 421, 424 (4th Cir. 2004).
3

The Deed of Trust was also referenced in the Complaint.
¶ 18.
2

Comp.

basis, Defendant contends that Plaintiff has failed to state a
claim for breach of contract.
Defendant also contends that Plaintiff’s claim for “quiet
title” must fail.

Under Maryland law, the burden of proof in an

action to quiet title rests initially on the plaintiff.

A

person in “actual peaceable possession of property” may sue to
quiet title when “her title to the property is denied or
disputed, or when any other person claims ... to own the
property ... or to hold any lien encumbrance on it.”
Ann., Real Prop. § 14–108(a).

Md. Code

In such an action, “the

plaintiff, and not the defendant, must prove possession and a
legal claim to title before the burden is shifted to the
defendant to establish superior title.”

Porter v. Schaffer, 728

A.2d 755, 773 (Md. Ct. Spec. App. 1999) (emphasis in original).
Because Plaintiff does not allege that she paid her mortgage
loan and thereby satisfied the Deed of Trust, Defendant argues
Plaintiff has failed to meet her initial burden to establish a
quiet title claim.
To survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

556 U.S. 662, 663 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
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Such determination is a

“context-specific task,” Iqbal, 556 U.S. at 679, in which the
factual allegations of the complaint must be examined to assess
whether they are sufficient “to raise a right to relief above
the speculative level.”

Twombly, 550 U.S. at 555.

In

evaluating a motion to dismiss, the “Court accepts all well-pled
facts as true and construes these facts in the light most
favorable to the plaintiff in weighing the legal sufficiency of
the complaint.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
Such deference, however, is not accorded to labels and legal
conclusions, formulaic recitations of the elements of a cause of
action, and bare assertions devoid of further factual
enhancement.

Iqbal, 556 U.S. at 678.

From Plaintiff’s opposition to the pending motion, it
appears that Plaintiff does not seriously contend that Defendant
was not entitled to make escrow adjustments to Plaintiff’s
monthly bills.

Instead, it appears that her primary contention

is that Defendant failed to give her notice of an increase in
required payment.

After acknowledging that Defendant asserted

that it paid the taxes and was entitled to increase the payment
for those taxes, Plaintiff posits, “[Defendant] has not asserted
that it actually did increase the payment.

It has not asserted

that the payment was increased to a certain amount on a certain
day.

It also has not asserted that it notified the Plaintiff of
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an increase in payment. . . .

Plaintiff, at the appropriate

juncture, will testify that she did not receive notice of an
increase in payment.”

Opp’n ¶¶ 7-8.

This claim of lack of notice, however, is not in the
Complaint.

The Complaint, as it stands, simply alleges that

only the payment of interest was required under the Consent
Order and that she made all such payments.

The former

allegation, i.e., that only interest payments were due, however,
is belied by the terms of the Consent Order which clearly
permitted escrow adjustments.

Thus, the premise of Plaintiff’s

breach of contract claim, as currently framed, fails.
Plaintiff requests, should the Court find that the
Complaint as originally filed in state court fails to state a
claim for breach of contract, that she be permitted to amend her
Complaint.

Opp’n ¶ 12.

Defendant, in its Reply, concedes

Plaintiff’s entitlement to amendment of the Complaint and
requests that the breach of contract claim be dismissed, with
leave to amend.

Reply at 3.

The Court agrees that permitting

Plaintiff to bring her Complaint in line with her actual claim
is the proper response at this juncture.
As to the “quiet title” claim, Plaintiff makes no response
in her opposition.

Therefore, the Court will consider her to

have abandoned that claim.

See Ferdinand-Davenport v.

Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010).
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Accordingly, it is this 7th day of January, 2014, by the
United States District Court for the District of Maryland,
ORDERED:
1) That Defendant’s Motion to Dismiss, ECF No. 7, is
GRANTED and that: Count I of the Complaint is DISMISSED, with
leave to amend; and Count II of the Complaint is DISMISSED, with
PREJUDICE;
2) That Plaintiff shall file an amended complaint on or
before January 21, 2014, or this case will be dismissed in its
entirety, with prejudice; and
3) That the Clerk of the Court shall transmit this
Memorandum and Order to all counsel of record.

_______________/s/________________
William M. Nickerson
Senior United States District Judge

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