Turner v. JP Morgan Chase Bank, N.A.

Filing 29

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/25/2014. (kns, Deputy Clerk)(c/m 9/25/14)

UNITED STATES IlISTRICT COURT
III STRICT OF MARYLAND

MICHELLE A. TURNER,
Plaintiff,

v.

Civil Action No. TDC-14-0576

JPMORGAN CHASE, N.A.,
Defendant.

MEMORANDUM

OPINION

This matter is before the Court on a Motion to Dismiss filed by Defendant JPMorgan
Chase Bank, N.A. ("JP Morgan Chase").

ECF No. 10. The issue before the Court is whether

Plaintiff Michelle A. Turner ("Turner") has sufficiently stated a claim entitling her to relief.
Having reviewed the pleadings and supporting documents, the Court finds no hearing necessary.
See Local Rule 105.6 (D. Md. 2014).

For the following reasons, the Defendant's

Motion to

Dismiss is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On December 20, 2013, Turner, a resident of Maryland proceeding pro se, filed a
Complaint against jPMorgan

Chase in the Circuit Court for Montgomery County, Maryland.

See Notice of Removal at I. ECF No.1.

On February 27, 2014, jp Morgan Chase timely

removed the case to this Court on the basis of diversity jurisdiction.

Jd.

In her Complaint, Turner files suit against Jp Morgan Chase for "denying my mortgage
payments,

repeatedly

denying me home loan modifications

which forced my home into

foreclosure and prevented me from gaining employment," and "unfairly issuling] a derogatory

status on my credit report[,] resulting in an extremely low credit rating [andj making it even
more difficult to obtain employment." Compl. at I, ECl"NO.2.
Turner's factual allegations, taken from her Complaint, are as follows. Turner bought her
home in 1993 and lived in it with her two daughters for twenty years, during which time, Turner
states, "1 had excellent credit and prided myself with paying my bills on time." [d. After
becoming unemployed, Turner fell behind on her mortgage payments. In October 2010, Turner
"tried to pay for three mortgage payments which were due and would have brought [the]
mortgage current, but [JPMorgan] Chase returned the check" to Turner and told her that her
"home had gone into foreclosure" and that she should apply for a "'hardship forbearance" through
a home loan modification program. {d.
That same month, when Turner called jPMorgan Chase to inquire about the loan
modification process, a jPMorgan Chase representative prequalified Turner for a hardship
forbearance for up to one year while Turner sought employment and directed Turner to submit
an application, which would be mailed to her within 7-10 days. It took eight weeks for the
application to arrive, despite phone calls to jPMorgan Chase in the interim.

Once Turner

received the application, she scheduled a face.to-face meeting in March 2011 to discuss the
paperwork. At that meeting, a jPMorgan Chase representative told Turner that she, in fact, did
not qualify for a hardship forbearance despite what she had previously been told, but the
representative and Turner nonetheless completed and submitted the application and supporting
documents.
In August 2011, Turner received a letter stating that she was denied a loan modification
under the Home Affordable Modification Program ("HAMP"), but the letter did not mention
whether she was eligible for a hardship forbearance. When Turner called lPMorgan Chase "for

2

assistance and answers," a lPMorgan Chase representative suggested that Turner need not sell
her house if she did not want to, that she had not yet been considered for a hardship forbearance,
and that she should reapply for such forbearance and a loan modification.

ld.

Thus, in

September 2011, Turner submitted a second application for forbearance and loan modification,
only to be denied several months later. ln April 2012, again at the suggestion of a lPMorgan
Chase representative, Turner submitted a third application for a loan modification but was denied
again.
Turner further alleges that at some time during summer 2013, lPMorgan Chase asked
Turner to file a fourth loan modification application.

Turner had not yet submitted the

application when, on November 19,2013, Turner received a letter stating that her house was to
be auctioned at a foreclosure sale on December 4, 2013. Turner states that she "never received a
mediation hearing with Chase foreclosure counselors or an attorney concerning this matter, nor
did [she] receive proper advance notice of the sale date." Id. at 2.
On November 19,2013, Turner called lPMorgan Chase to discuss the foreclosure and
was told to file a loan modification application, "which would hopefully postpone or cancel the
sale date." Id. Turner filed the application via facsimile the next day. On November 26,
jPMorgan Chase postponed the sale. On December 2, "Angela from Chase" informed Turner
that the sale date was postponed, but that the modification application that jPMorgan Chase had
received from Turner was outdated. Id. Turner alleges that "Angela" told her to resubmit a new,
fifth application which lPMorgan Chase had sent to her by Federal Express on November 26,

3

2013.

Turner submitted the fifth application and supporting documents with a hardship letter

explaining her circumstances.

On December 4, 2013, Turner received another denial letter.'

On March 6, 2014, JPMorgan Chase filed its Motion to Dismiss, construing Turner's
Complaint as asserting three claims: (1) breach of contract, (2) failure to modify a loan under the
HAMP, and (3) violation of the Fair Credit Reporting Act ("FCRA"), and arguing that the Court
should dismiss the Complaint because Turner failed to plead sufficiently any of these claims.
DISCUSSION
As stated above, Turner alleges a cause of action based on her claims that Jp Morgan
Chase

(I)

"den[ied]

my mortgage

payments,"

(2) "repeatedly

den[ied]

and prevented

my home

loan

modifications

which forced my home into foreclosure

me from gaining

employment:'

and (3) "unfairly issued a derogatory status on my credit report[,] resulting in an

extremely low credit rating, [and] making it even more difficult to obtain employment."

Compi.

at 1. For the reasons stated below, the Court, reading Turner's Complaint under the liberal
standard appropriate for pro se litigants, finds that Turner sutliciently states a claim for breach of
contract arising from JPMorgan Chase's denial of Turner's

mortgage payment.

lPMorgan

Chase's Motion to Dismiss as to the contract claim is therefore denied.
To the extent that Turner alleges a cause of action arising from JPMorgan Chase's
repeated representations

that she should file loan modification applications which were then

repeatedly denied, the Court construes the Complaint as pleading either a claim under the Home
Affordable

Modification

Program

("HAMP")

or a claim under the Maryland

Consumer

I According to the foreclosure case docket from the Circuit Court for Montgomery
County,
which JPMorgan Chase attached to its Motion to Dismiss, the foreclosure sale has since occurred
and was reported to the Circuit Court on February 12,2014. Maryland Judiciary Case Search,
Civil Action No. 379698V, Docket No. 23 (Montgomery Cnty. Cir. Ct. 2014), available at
http://casesearch. courts. state. md. us.

4

Protection Act ("MCPA"), Md. Code Ann., Com. Law

S

13-303(4)-(5) (West 2014). As there is

no cognizable claim available to Turner under HAMP, the Court dismisses the HAMP claim
with prejudice and will not permit Turner to amend the Complaint on this issue. Turner also fails
to plead sufficiently a claim under the Mep A.
Turner's allegations regarding her credit report, which the Court construes as attempting
to slate a cause of action under the FCRA, are also insufficient to state a claim under this statute.
'lbe Court dismisses both the MCPA and FCRA claims without prejudice and will pennit Turner
to amend her Complaint as to these issues.
Finally, to the extent that Turner attempts to allege a claim arising from procedural
irregularities with the foreclosure sale, she has failed to do so. Because Turner was required to
raise any objections she may have had regarding the foreclosure sale within the Circuit Court's
now-completed

foreclosure

proceedings, any attempt to allege such claims in an amended

complaint would be barred by the doctrine of res judicata because the matter has already been
resolved in another court. Accordingly, the Court dismisses any FCRA or unlawful foreclosure
claims in Turner's Complaint with prejudice and will not pennit Turner to amend the Complaint
on these issues.
I. Legal Standard
A court must deny a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for
failure to state a claim where the complaint alleges enough facts to state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell All Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim is plausible when "the plaintiff pleads factual content that allows the Court
to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal,

556 U.S. at 678. In assessing whether this standard has been met, the Court must examine the

5

complaint as a whole, consider the factual allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the Turner. A/bright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. ofComm'rs

ofDavid.wn

Cnty., 407 FJd 266, 268 (4th Cir. 2005),

Furthennore, while legal conclusions or conclusory statements do not suffice and are not entitled
to the assumption of truth, Iqbal, 556 U.S. at 678, "a document filed pro se is to be liberally
construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007)
(internal citations omitted).
11. Breach of Contract
Turner sufficiently states a claim for breach of contract. To establish a claim for breach
of contract, "a plaintiff must prove that the defendant owed the plaintiff a contractual obligation
and that the defeodant breached that obligatioo."
651 (Md. 2001).

Taylor v. NationsBank, N.A., 776 A.2d 645,

Here, Turner alleges that in October 2010, she tried to make three morlgage

payments that were due to JPMorgan Chase and that would have brought her mortgage current,
but that JPMorgan Chase returned her check to her. From the face of the Complaint, it does not
appear that JPMorgan Chase gave Turner any explanation for why it returned her check to her,
telling her only that her home was in foreclosure and that she should apply for a hardship
forbearance through the home modification loan program, for which she was then subsequently
denied.

Taking Turner's allegations as true and drawing all reasonable inferences in the light

favorable to the Turner, by refusing to accept Turner's payment, JPMorgan Chase breached its
contract with Turner, See Yacoubou v. Wells Fargo Bank, N.A., 901 F. Supp. 2d 623, 629-30 (D.
Md. 2012) (referencing the court's previous ruling in the same case that, under Maryland law, a
bank's refusal to accept monthly payments tendered by a mortgagor-borrower

6

was a breach of

contract, as slated in Adam v. Wells Fargo Bank, N.A., No. ELH-09-2387, 2011 WL 3841547, at
'14 (D. Md. Aug. 26, 2011)). See also Cala/an v. GMAC Morlg. Curp., 629 FJd 676, 690 (7th
CiT. 2011) (refusing to accept the argument that. as a matter oflaw, a lender is "free to refuse a
tendered payment and then to hold the borrower responsible for having failed to make the
payment").

Thus, the Court construes the Complaint, under the liberal standard for pro se

complaints, as fairly stating a claim for breach of contract.
In its Motion to Dismiss, jPMorgan Chase does not challenge the sufficiency ofTumer's
allegations as to the breach of contract claim, but raises the affirmative defense that such a claim
is time-barred by the statute of limitations.

As a general rule, contract claims are subject to the

three-year statute of limitations for civil actions, Md. Code Ann., Cts. & Jud. Proc. ~ 5-101
(West 2014), which accrues from the time of breach, or from the time the plaintifTdiscovers,

or

should have discovered, the breach. Junes v. Hyatt Ins. Agency, Inc., 741 A.2d 1099, 1103-04
(Md. 1999). Under ~ 5-102(.)(5),

however, any contracts executed under seal are governed by.

12-year slatute of limitations. Md. Code Ann., Cts. & Jud. Proc. ~ 5-102(.)(5).
The burden of establishing an affirmative defense, such as the defense that a claim is
time-barred, rests on the defendant, and therefore a court may reach such an affinnative defense
on a Rule 12(b)(6) motion only in the "relatively rare circumstances where facts sufficient to rule
on an aflirmative defense arc alleged in the complaint."

Goodman v. Praxair. Inc., 494 F.3d

458,464 (4th Cir. 2007). Here, there are two different statute of limitations periods that may be
applicable. and it is not clear that the facts available to the Court at the Rule 12(b)(6) stage are
sufficient for the Court to conclude that Turner's claims are barred by the general statute of
limitations. JPMorgan Chase has attached to its Motion to Dismiss the Deed of Trust that Turner
originally granted to Bane One Mortgage Corporation ("Bane One") to secure the mortgage loan

7

on her house, in which her signature appears next to the pre-printed word, in parentheses,
"(Seal)."

Mot. Dismiss, Ex. A.2 Under Maryland law, this signature form appears to establish

that the deed is a sealed document.

Warfield v. BaIt. Gas & Elec. Co., 512 A.2d 1044, 1044

(Md. 1986) ("We shall hold in this case that the inclusion of the word 'seal' in a pre-printed form
executed by an individual is sufficient to make the instrument one under seal."). Therefore, the
12-year statute of limitations may well apply here. See Pac. Mortg. & Inv. Group, Ltd v. Horn,
641 A.2d 913, 918 (Md. Ct. Spec. App. 1994) (applying 12-year statute of limitations to
borrowers' claims against the original mortgagee bank and the subsequent bank that acquired the
loan because the word "seal" was printed next to each of the borrowers'
original mortgage).

signatures on the

At a minimum. there is a question of fact whether the mortgage in question

is a scaled contract subject to a 12-year statute oflimitations,

so it would be inappropriate for the

Court to rule on the statute oflimitations defense at this time.

3

In reviewing a Rule 12(b)(6) motion, a court may consider a document attached to the motion
to dismiss, so long as it was clearly integrdl to, and explicitly relied upon in the complaint. and
the plaintiff does not challenge its authenticity. Am. Chiropractic Ass'n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004). Here, the Court understands Turner to be referring in
her breach of contract claim to this mortgage, which jPMorgan Chase appears to have acquired
from Bane One, and Turner does not challenge the document's authenticity.
2

3 Turner's Complaint arguably could also be read as alleging a breach of the implied covenant of
good faith and fair dealing. Although Maryland law does not recognize an independent cause of
action for breach of the implied covenant of good faith and fair dealing, it does recognize such an
implied covenant where the "performance and enforcement" of a contr-dct are concerned.
Blondell v. Littlepage, 991 A.2d 80, 90-91 (Md. 2010) (citation omitted). Such a duty "requires
that one party to a contract not frustrate the other party's performance," but it does not obligate a
party to take affirmative actions that are not clearly required under the contract or "interpose new
obligations about which the contract is silent." Jd. Here, Turner may be alleging that jPMorgan
Chase frustrated Turner's performance of their mortgage agreement through a course of
conduct-returning
her mortgage payments to her. misinforming her that she was prequalified
for a hardship forbearance, and advising her to submit multiple applications for a hardship
forbearance or a loan modification all of which were denied-that encouraged her to focus her
efforts on seeking a hardship forbearance or loan modification, rather than on making additional
payments. Because the Court finds that Turner has alleged a cognizable breach of contract

8

III. Home Affordable Mortgage Program
In its Motion to Dismiss, JPMorgan Chase construes Turner's pleadings regarding her
loan modification applications as a claim for "refusal to modify a loan" under the HAMP.

See

Mot. Dismiss, at 6-8. HAMP is a national program of the United States Departments of Treasury
and Housing and Urban Development designed to stem the home foreclosure crisis by providing
affordable

mortgage

loan modifications

to eligible

borrowers.

See

Home Affordable

Modification Program, Making Home Affordable.gov, http://www.makinghomeafTordable.gov/
programsllower-paymentslPageslhamp.aspx

(last visited Sept. 25, 2014).

JPMorgan

Chase

argues that this claim must be dismissed with prejudice because there is no private right of action
under the HAMP.

Indeed, federal courts that have considered the issue have held that unless a

borrower has entered into an agreement under HAM?, the borrower cannot bring a claim or
cause of action to enforce HAM? guidelines, whether under a theory that they are third party
beneficiaries ofHAMP or otherwise. See Bowers v. Bank of America, N.A., 905 F. Supp. 2d 697,
701-02 (D. Md. 2012). See also Hart v. Countrywide Home Loans, Inc., 735 F. Supp. 2d. 741,
748 (E.D. Mich. 2010).

Here, Turner does not purport to state a cause of action under the

HAM? in her Complaint and does not allege that she was wrongly denied HAM? benefits that
she should have received.

Nevertheless, to the extent that the Complaint could be construed to

allege a cause of action under HAM?, the Court dismisses the claim with prejudice and will not
grant leave to amend.
IV. Maryland Consumer Protection Act
In alleging that JPMorgan Chase repeatedly advised her to file multiple applications for a
hardship forbearance or a loan modification yet denied all of them, Turner arguably seeks to

claim, this Court need not analyze whether the Complaint also properly alleges a breach of the
implied covenant of good faith and fair dealing.
9

allege a violation of the Maryland Consumer Protection Act in that she may have been unfairly
misled into pursuing such applications ratherthan focusing on making additional payments. The
MCPA prohibits "unfair or deceptive trade practices" in the "[tlhe extension of consumer credit"
or "[tJhe collection of consumer debts." Md. Code Ann., Com. Law ~ 13-303(4)-(5).

To state a

claim under the MCPA, a plaintilT must adequately plead that (1) the defendant engaged in an
unfair or deceptive practice or misrepresentation, (2) the plaintiff relied upon the representation,
and (3) doing so caused the plaintiff actual injury. Currie v. Wells Fargo Bank, 950 F. Supp. 2d
788, 796 (D. Md. 2013) (citation omitted). Under thc statute, an "unfair or deceptive" trade
practice includes "false ... or misleading oral or Mitten statement[s] ... or other representations
...

[that have] the capacity, tendency, or effect of deceiving or misleading consumers." Md.

Code Ann., Com. Law ~ 13-301(1).
Because an MCPA claim involves fraud, it is subject to the heightened pleading standards
of Federal Rule of Civil Procedure 9(b). Spaulding v. Wells Fargo Bank, N.A., 714 F. 3d 769,
781 (4th Cir. 2013). Under Rule 9(b), a plaintiff must plead with particularity the circumstances
of the fraud, including "the time, place, and contents of the false representations, as well as the
identity of the person making the misrepresentation and what he obtained thereby." Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783-84 (4th Cir. 1999) (citations omitted).
lIere, Turner alleges that in October 2010, a JPMorgan Chase agent prequalified her over
the phone for a hardship forbearance through a horne modification loan program, but then in
March 2011, at a face-to-face meeting to discuss her application, another agent told her that she
was, in fact, not qualified for the forbearance. Turner alleges that '''[n]onetheless we submitted
the completed forms and supporting documents," but that she was ultimately denied the
modification. Turner also alleges that sometime later-likely

10

August or September 2011 based

on the surrounding paragraphs in the Complaint-a jPMorgan Chase representative told Turner
that she did not need to agree to sell her house if she did not want to, and that her prior
application had only related to a loan modification and not to a hardship forbearance, so she
should submit a second application for a forbearance or loan modification, which was also later
denied.

On three more occasions, she was invited to submit an application for a loan

modification, only to be denied each time. Even accepting these allegations as true, however,
and construing all facts and reasonable inferences in the light more favorable to the Turner, she
does not meet the heightened pleading standard for fraud. For example, although Turner alleges
that the jPMorgan Chase representative told her during a March 2011 face.to-face meeting that
she was, in fact, ineligible for a forbearance. she does not allege any additional facts to suggest
that this statement was a misrepresentation and not simply a correction of the information she
had received during the October 2010 phone call. Similarly. Turner alleges that a jPMorgan
Chase representative told her that she did not have to sell her house if she did not want to, but it
is not sufficiently clear from these pleadings whether the representative made any statements
suggesting that Turner should not sell her house because she would likely or definitely receive a
loan modification if she reapplied. Thus, Turner fails to identify with specificity that JPMorgan
Chase's statements had the capacity, tendency, or effect of misleading Turner.
Furthermore, it is not sufficiently clear from the Complaint whether Turner meets the
second element, which requires that she show that she relied on any misrepresentations. In order
to sufficiently state an MCPA claim. a plaintiff must show that the defendant's misrepresentation
substantially induced a choice by the plaintiff. Currie. 950 F. Supp. 2d at 796. Here, Turner
does not sufficiently plead that she detrimentally relied on the statement by a JPMorgan Chase
agent that she was prequalified for a hardship forbearance, the statement that she did not have to

11

sell her house if she did not want to, or the repeated invitations to submit loan applications
because she does not allege that these statements induced her to forego selling her house or to
take or refrain from taking an action to her detriment. Similarly, in Green v. Wells Fargo Bank,
N.A., 927 F. Supp. 2d 244 (D. Md. 2013), the Court held that the plaintiffs failed to state an

MCPA claim where the complaint alleged that the bank's misrepresentations "could cause a
reasonable consumer to ...

be [led] into a false state of comfort," but alleged neither that the

bank specifically directed them to refrain from challenging their foreclosure proceedings and
continue to submit loan modification applications, nor that such misrepresentations caused them
to forego certain actions or remedies available to them to save their home. ld. at 254-55
(emphasis in original) (citations omitted). As for the third element, requiring that the defendant's
misrepresentations cause real injury, Turner arguably could have satisfied it by alleging that her
credit score was damaged and she lost her home and job because of actions that she took, or
refrained from taking, in reliance of JPMorgan Chase's statements. She did not. Having failed
adequately to plead the elements of an MCPA claim, the Court will dismiss that aspect of the
Complaint.
V. Fair Credit Reportin~ Act

In the Complaint, Turner also states that she is filing suit against jPMorgan Chase for
"unfairly issu[ing] a derogatory status on my credit report[,) resulting in an extremely low credit
rating, (andJ making it even more difficult to obtain employment." Compl. at I. The FCRA, 15
U.S.C. ~ 1681 el seq., imposes certain duties on '~furnishersof information," which includes
banks like jPMorgan Chase. Turner does not specify whether she is invoking this statute, but
even if the Complaint is construed to allege such a cause of action, Turner does not sufficiently
state a claim under any of its provisions.

12

As JPMorgan Chase points out in its Motion to Dismiss, the only FCRA claim available
to Turner's private suit is for breach of a duty to correct an erroneous report to a credit agency
under 15 u.s.c. 9 1681s-2(b). Under that provision of the FCRA, however, a defendant's duty
to investigate and correct an erroneous report is triggered only by a report from a consumer
reporting agency. 9168Is-2(b)(1). See also Saunders v. Branch Banking & Trust Co. of Va., 526
F.3d 142, 149 (4th Cir. 2008). Here, Turner neither alleges that she filed a dispute with the
credit reporting agency challenging the accuracy of her credit report, nor that JPMorgan Chase
had notice of an erroneous report through that reporting agency. Because Turner has failed to
sufficiently plead a claim under the FCRA, that aspect of the Complaint is dismissed.
VI. Claims Relating to Foreclosure

Turner also alleges that she "never received a mediation hearing with Chase foreclosure
counselors or any attorney concerning [her foreclosure], nor did [she) receive proper advance
notice of the sale date." CompI. at 2. In its Reply Memorandum, JPMorgan construes these
allegations as an attempt to state a claim for ""illegalforeclosure," which it argues is barred by the
doctrine of res judicata, or in the alternative, the Rooker-Feldman doctrine. Reply at 4-5.
As set forth in the Complaint, Turner's allegations fail to state a claim. Under Maryland
law, a mortgagor in a foreclosure action is entitled to mediation upon filing a request with the
court. Md. Code, Real Prop. 9 7-105.1G)(l) (West 2014). The Complaint, however, does not
allege that Turner ever filed such a request with the Circuit Court, or that any such request was
improperly denied. Thus, even assuming that denial of a request for a pre-foreclosure mediation
session could constitute a cognizable cause of action, Turner has not alleged facts on which such
a claim may be based.

13

Likewise, Turner's statement that she was denied proper notice of the foreclosure does
not establish a viable claim. The Complaint alleges that Turner did not receive "proper advance
notice" because she first received notice of the foreclosure sale when she received a certified
letter on November 19, 2013, which was 15 days in advance of the original December 4,2013
date. Compl. at 2. However, the Maryland Rules only require notice of the foreclosure sale not
less than 10 days, and not more than 30 days, before the date of sale. Md. Rule 14-21O(b).
Moreover, the Complaint states that on November 26, over a week before the announced
foreclosure sale date, jPMorgan Chase postponed the foreclosure sale, Compl. at 2, and it does
not allege any notice deficiencies associated with later sale dates. Turner, therefore, has not
alleged facts sufficient to support a violation of the notice requirement.
Even if Turner were to be granted leave to amend her Complaint to allege irregularities
with the foreclosure process relating to notice, mediation, or other issues, she would be
precluded from bringing any such claims by the doctrine of res judicata because the Circuit
Court of Montgomery County ruled on her foreclosure when it issued a Final Ratification on
Sale Order on April 21, 2014, Maryland Judiciary Case Search, Civil Action No. 379698V,
Docket No. 23 (Montgomery Cnty. Cir. Ct. 2014), available at http://casescarch.courts.
state.md.us. Res judicata, sometimes referred to as claim preclusion, bars claims that were
raised or could have been raised in a prior litigation where: (1) that action was between the same
parties; (2) the claim in the second matter is identical to the one determined in the prior action, or
could have been raised and determined in the prior action; and (3) there was a final judgment on
the merits of the claim in a prior action. R&D
2008).

14

2001, LLC v. Rice, 938 A.2d 839, 848 (Md,

Here, the Circuit Court foreclosure proceeding relating to Turner's home was between
the same parties, JPMorgan Chase and Turner. For res judicata purposes, a ratification order is a
final judgment as to the validity of the foreclosure sale, abscnt claims that the unsuccessful party
was prevented from fully exhibiting her case by her opponent's extrinsic fraud or deception, such
as by keeping her away from the court or kecping her in ignorance of the proceedings.

t"d

Jacobsen. Jr. Inc. v. Barrick, 250 A.2d 646, 648 (Md. 1969); Theune v. U.S. Bank, N.A., No.
MJG-13-1015, 2013 WL 5934114, at '3 (D. Md. Nov. 1,2013).

Turner neither alleges, nor is

there any evidence to suggest, that she was the victim of such extrinsic fraud.
Furthermore, objections to the foreclosure proceedings, including claims about improper
notice or opportunity for mediation, had to be raised within the Circuit Court's foreclosure
proceedings.

Md. Rule 14-305(d)(l)

("Exceptions

[to a foreclosure sale] shall set forth the

alleged irregularity with particularity, and shall be filed within 30 days after the dale of a
notice. . ..

Any matter not specifically set forth in the exceptions is waived unless the court

finds thaI justice requires otherwise."); Gill v. Dare, No. JFM-I2-645, 2012 WL 1927581, at 'I
(D. Md. May 25, 2012) ("[Ilt is clear that if a person wants to object to a foreclosure, she must
do so in the context of the foreclosure proceedings instituted against her."). See a/so Thomas v,
Nadel, 48 A.3d 276, 277-79 (Md. 2012) (explaining thaI a horrower seeking to challenge a
foreclosure sale must assert before the sale any known and ripe defenses to thc conduct of the
sale, or raise after the sale any objections arising out of procedural irregularities); Md. Rule 14211(a)(I) ("The borrower ... may file in the action a motion to stay the sale of the property and
dismiss the foreclosure action.") (emphasis added). Therefore, any new claim challenging the

15

legality of the foreclosure is barred under res judicata.4

See Anyanwutaku

v. Fleet Mortg.

Group, inc., 85 F. Supp. 2d 566, 570-72 (D. Md. 2000) (holding that the plaintifrs claims
challenging the propriety of the state court's foreclosure proceedings, including "illegal
foreclosure," were barred because they should have been raised during the state foreclosure
proceedings); .fones v. HSBC Bank USA. N.A., Civ. No. RWT-09cv2904, 2011 WL 382371, at
'5 (D. Md. Feb. 3, 2011).
Because Turner's allegations relating to the foreclosure do not state a claim and any
amended claim would be barred as already litigated under the doctrine of res judicata, the Court
dismisses any foreclosure claims with prejudice and will not grant leave to amend.
CONCLUSION
For the foregoing reasons, and as set forth in the accompanying Order, JPMorgan
Chase's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. To the extent that
the Complaint alleges a violation of the terms of the Home Affordable Modification Program or
procedural irregularities relating to the foreclosure proceedings, those claims are dismissed with
prejudice, such that no amended claims will be permitted.

4

Although lPMorgan Chase also asserts that any foreclosure-related claims are barred by the

Rooker-Feldman doctrine, that argument is unpcrsuasive. The Rooker-Feldman doctrine bars a
plaintiff from challenging a state court judgment in federal court. Davani v. Va. Dep't. of
Transp., 434 F.3d 712, 713 (4th Cir. 2006) (explaining that a party that loses in state court may

not file suit in federal district court seeking redress for an injury allegedly caused by the state
court's decision). Leaving aside the fact that Turner filed her action in state court and it is
JPMorgan Chase that chose to remove this case to federal court, in this instance, Turner filed her
Complaint before the state court judgment on foreclosure, so her Complaint cannot possibly be
construed to be challenging such a judgment. Whether any amended claim filed now that the
foreclosure proceeding is complete would be barred by the Rooker.Feldman doctrine would
depend on the specific claim alleged and whether it constituted a collateral attack on the
judgment. The Court need not address this issue further because it finds that res judicata bars
any amended claims on this issue.
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To the extent it alleges a violation of the Maryland Consumer Protection Act or the Fair
Credit Reporting Act, these claims arc dismissed without prejudice, such that, to the extent
Turner wishes to amend these aspects of the Complaint, she may do so within 21 days of the date
of this order. Turner is cautioned that she should only file amendments as to these claims if she
can validly allege additional facts that will establish, consistent with this Opinion, that she is
entitled to relief under these causes of action.
To the extent that the Complaint alleges a breach of contract claim, the Motion to
Dismiss is denied.

Date: September 25, 2014
THEODORE D. C

United States Dis

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