Lucero v. Freddie Mac Equit Plus I-ESIC Limited Partnership et al
Filing
15
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/28/2015. (kw2s, Deputy Clerk)(C/M 7/29/15)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
GLADYS LUCERO,
Plaintiff,
v.
FREDDIE MAC EQUITY PLUS I-ESIC
LIMITED PARTNERSHIP;
OCWEN LOAN SERVICING, LLC;
MORTGAGE ELECTRONIC
REGISTRA nON SYSTEM;
SAMUEL 1. WHITE, PC;
Civil Action No. TDC-14-3089
101 GENEVA, LLC;
INDYMAC FINANCIAL SERVICES;
ONE WEST BANK;
MCCABE, WEISBERG, CONWAY, LLC;
and
DOE(S) 1-100;
Defendants.
MEMORANDUM OPINION
This case is before the Court on Defendants 101 Geneva, LLC and Samuel 1. White, PC's
Motion to Dismiss, ECF NO.4,
Partnership,
Mortgage
Electronic
and Defendants Freddie Mac Equity Plus I-ESIC Limited
Registration
System, Ocwen Loan Servicing,
LLC, and
y
One West Bank's Motion to Dismiss, ECF No. 12. Having reviewed the briefs, the Court finds
no hearing necessary.
See Local Rule 105.6 (D. Md. 2014).
For the reasons set forth below,
both Motions to Dismiss are GRANTED.
BACKGROUND
Plaintiff Gladys Lucero ("Lucero") proceeds in this action pro se. On October 27, 2005,
Lucero and Orlando Delgado took out a mortgage loan from Wilmington Finance for $300,000
to finance their purchase of property located at 9203 Wellington Court, Lanham, Maryland.
Prince
George's
http://mdlandrec.net.1
County
Land
Records,
Book
23724
at
619-21,
at
On November 30, 2007, Lucero and Delgado refinanced their mortgage
with Defendant IndyMac Bank ("IndyMac"), taking out a $389,700 mortgage.
at 330-351.
available
Id., Book 29095
The deed of trust expressly listed the Mortgage Electronic Registration System
("MERS") as the beneficiary of the security instrument, "solely as a nominee for Lender."
Id.,
Book 29095 at 330. In 2008, IndyMac went into receivership, and the FDIC was appointed as its
conservator.
In 2009, OneWest Bank ("One West") acquired all of IndyMac's
IndyMac became a division of OneWest.
accounts, and
See IndyMac and OneWest Loan Sale Agreement,
available at https://www.fdic.gov/about/freedom/IndyMacLoanSaleAgrmt.pdf;
see CompI., Ex.
5, ECF No. 1-5. 2
In 2012, Lucero and Delgado began to "experienc(e] unforeseen financial hardship" and
fell behind on their mortgage payments.
CompI.,-r 33, ECF No. 1. As a result, they began to
"receiv( e] demands for payment and threats of foreclosure" from IndyMac "in violation of the
Fair Debt Credit Collection Practices Act" ("FDCPA"), 15 U.S.c.
S
1601 et seq. CompI.,-r,-r13,
15. During this period, Lucero and Delgado worked with Freddie Mac Equity Plus I-ESIC
I
2
The Court takes judicial notice of these events pursuant to Fed. R. Evid. 201 (b)(2).
Id.
2
Limited Partnership ("Freddie Mac") to secure a loan modification from OneWest. Those efforts
were fruitless because, in Lucero's estimation, the banks and Freddie Mac "refused to work in
any reasonable way to modify the loan to avoid foreclosure."
Jd. ~ 33.
Lucero asserts that
MERS then colluded with IndyMac and OneWest to "hijack the Mortgage and then foreclose the
property." Jd.
On March 8, 2013, foreclosure proceedings on the property were instituted in the Circuit
Court for Prince George's County by O'Sullivan,
Brady, Theologu, McCabe, Weisberg, and
Conway, LLC ("McCabe"), acting as a substitute trustee for One West. Brady v. Lucero, Civ.
Action No. CAE13-07125
(Cir. Ct. Prince George's
http://casesearch.courts.state.md.us.3
Lucero
asserts
Co. March 8, 2013), available
that,
in relation
at
to the foreclosure
proceeding and the demands for payment leading up to that proceeding, McCabe and IndyMac
engaged in "extortion by demanding money" from her in violation of the FDCP A. CompI. ~ 24.
On June 11,2013, the property was sold at auction to 101 Geneva, LLC ("101 Geneva").
Prior to the sale, Lucero and Delgado did not file any legal challenge to the foreclosure.
Brady v. Lucero, Civ. Action No. CAE13-07125.
See
On June 13, 2013, Samuel I. White, PC
("White"), attorneys for 101 Geneva, sent a letter to Lucero and Delgado informing them that
101 Geneva now owned 9203 Wellington Court, that Lucero and Delgado had 30 days to vacate
the premises, and that if they failed to vacate the home in 30 days, they would be responsible for
paying 101 Geneva for the reasonable monthly value of the property.
The letter specifically
stated that it was a "Notice of Collection" and that by sending it, White was "attempt(ing] to
collect debt for another." CompI., Ex. 4 at 4, ECF No. 1-4. Lucero asserts that, as a result of its
collection efforts, White has violated the FDCP A.
3
The Court takes judicial notice of these proceedings pursuant to Fed. R. Evid. 201 (b)(2).
3
On July 15,2013, Lucero and Delgado filed a Motion to Dismiss in the foreclosure action
in which they challenged the validity of the sale. Freddie Mac Mot. to Dismiss, Ex. I, ECF No.
12-10 (copy of filing). On August 7, 2014, the Circuit Court ratified the sale. Brady v. Lucero,
Civ. Action No. CAEI3-07125.
The foreclosure action remains open in the Circuit Court, and
an appeal from the ratification order is pending in the Maryland Court of Special Appeals.
See
id.
On June 27, 2014, Lucero and Delgado filed a separate lawsuit against Freddie Mac,
IndyMac, OneWest, MERS, McCabe, 101 Geneva, and White in which they alleged eight causes
of action: (1) wrongful foreclosure, (2) quiet title, (3) a request for declaratory relief, (4) gross
negligence, (5) breach of written contract, (6) fraud or duress, (7) a request for an accounting,
and (8) expungement of equitable lien and satisfaction of lien. CompI., Lucero v. Freddie Mac
Equity Plus I ESIC LP, et a!., Civ. Action No. CAE13-18389 (Cir. Ct. Prince George's Co. June
27, 2014).4 That case was ultimately dismissed with prejudice.
See Lucero v. Freddie Mac
Equity Plus I ESIC LP, et al., Civ. Action No. CAEI3-18389, Docket Entry No. 11, available at
http://casesearch.courts.state.md.
us.
On September 30,2014, Lucero filed the instant case in this Court alleging nine causes of
action: (1) wrongful foreclosure, (2) quiet title, (3) a request for declaratory relief, (4) gross
negligence, (5) breach of written contract, (6) fraud or duress, (7) a request for an accounting, (8)
expungement of equitable lien and satisfaction of lien, and (9) a violation of the FDCP A. To
date, Lucero has failed to serve the Complaint on IndyMac or McCabe.
On November 25, 2014, 101 Geneva and White filed a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)( 6) contending, in relevant part, that Lucero's FDCP A
4 The Court takes judicial notice of these proceedings pursuant to Fed. R. Evid. 201(b)(2).
4
count must be dismissed against them because they are not debt collectors within the meaning of
the statute, and that Lucero's remaining claims are barred by res judicata.
On December 1,
2014, Freddie Mac, MERS, Ocwen Loan Servicing ("Ocwen"), and One West also filed a Motion
to Dismiss pursuant to Rule 12(b)( 6) contending, in relevant part, that Lucero's FDCP A count
must be dismissed against them because they are not debt collectors within the meaning of the
statute, and that Lucero's remaining claims are barred by Younger abstention, see Younger v.
Harris, 401 U.S. 37 (1971), and res judicata.
Lucero did not respond to either motion.
DISCUSSION
I.
Legal Standard
To overcome a Rule 12(b)(6) motion, a complaint must present a viable legal theory and
must allege enough facts to state a plausible claim for relief under that theory. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). 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."
Id. Legal conclusions or conclusory statements do not suffice and are not entitled to
the assumption of truth. Id.
In evaluating the sufficiency
of a plaintiffs
claims, the Court must examme the
complaint as a whole, consider the factual allegations in the complaint as true, and view the
factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. ofComm'rs
of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).
Complaints filed by pro se plaintiffs are "to be liberally construed" and "must be held to less
stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,
94 (2007). Nevertheless, the complaint must still present a viable legal theory and must contain
more than "legal conclusions, elements of a cause of action, and bare assertions devoid of further
5
factual enhancement" in support of that theory. Nemet Chevrolet, Ltd. v. ConsumerajJairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009).
II.
Claims Against Does 1-100
Lucero names Does 1-100 as Defendants.
The Federal Rules of Civil Procedure have no
mechanism for the filing of a complaint against an unknown defendant.
Rule 10(a) requires
plaintiffs in their pleadings to "name all the parties" to the action. Rule 4(a)(l) requires that a
summons "name ... the parties" and "be directed to the defendant."
"As a general rule," then,
the use of John Doe defendants is not favored in the federal courts.
Gillespie v. Civiletti, 629
F.2d 637, 642 (9th Cir. 1980); see Chidi Njoke v. Unknown Special Unit Staff, 217 F.3d 840,
2000 WL 903896 at
* 1 (4th
Cir. 2000) ("The designation of a John Doe. defendant is generally
not favored in the federal courts." (citing Gillespie)).
The device of a John Doe pleading is
appropriate only when a plaintiff knows a defendant exists, but cannot identify that defendant by
name.
See SchifJv.
Kennedy, 691 F.2d 196, 197-98 (4th Cir. 1982).
Here, Lucero has not
established that there are actual, but unidentified, additional parties related to the issues she
raises in her Complaint. Defendants Does 1-100 are therefore dismissed from the case.
III.
Res Judicata
101 Geneva, White, Freddie Mac, MERS, and OneWest assert that Counts 1-8 of the
Complaint are barred by res judicata because those claims were raised by Lucero against them in
her 2014 state case.
They are correct.
Furthermore, Lucero's FDCPA claim against these
Defendants is also barred by res judicata.
Res judicata, or claim preclusion, dictates that a prior judgment between the same parties
precludes subsequent litigation on those matters actually and necessarily resolved in the first
adjudication.
In re Varat Enters., Inc., 81 F.3d 1310, 1314-15 (4th Cir. 1996). The preclusive
6
effect of a prior state-court judgment is determined by the law of the state in which the judgment
was rendered.
Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008).
In
Maryland, the elements of res judicata are (1) the parties in the present suit are the same or in
privity with the parties in the earlier suit, (2) the claims presented in the current action are
identical to the ones presented in the first suit, and (3) there has been a final judgment on the
merits in the first suit.
Id. at 162.
Claims are "identical" if they "arise[] out of the same
transaction or series of transactions as the claim resolved by the prior judgment."
citations and quotations omitted).
bars re-litigation
Id. (internal
If all three of these elements are present, the prior judgment
of every matter actually adjudicated
in the earlier case.
Id. at 161.
Furthermore, because claims are identical if they arise out of the same transaction or series of
transactions, "[ n]ewly articulated claims" in the second suit may still be barred by res judicata if
those claims "could have been brought in the earlier action" because they arose from that
common series of transactions.
Id. at 162; Sterling v. Local 438, Liberty Ass'n of Steam and
Power Pipe Fitters and Helpers Ass 'n, 113 A.2d 389, 393 (Md. 1955) ("[A] judgment in an
earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the
earlier case, but as to all matters which could have been litigated.").
As to the first requirement, with the exception of Gcwen, the parties in the present suit
were all parties in the earlier suit and therefore "have been afforded their day in court on those
facts and issues" adjudicated in the earlier case.
Caldor, Inc. v. Bowden, 625 A.2d 959, 971
(Md. 1993) (discussing privity in the context of res judicata and collateral estoppel).
As to the second requirement, Counts 1-8 in the current suit are identical to the claims
presented in the state court action. Count 9, Lucero's FDCPA claim, was not presented in the
state court action, but arises from the same series of transactions that are the basis for the state
7
court suit.
Indeed, Lucero's factual allegations in this case are a word-for-word copy of the
factual allegations she made in the state court case, and, in those allegations, Lucero repeatedly
accuses various Defendants of FDCP A violations.
Thus, although Lucero did not expressly
allege her present FDCP A claim in her state court suit, the factual basis she uses in this case for
that claim is exactly the same factual basis she used for her prior state court suit. Lucero thus
certainly could have brought her FDCP A claim in that previous state court action.
As to the third element, the state court action was dismissed with prejudice, a judgment
that is both final and on the merits. Lawlor v. National Screen Service Corp., 349 U.S. 322,327
(1955) (explaining that "[i]t is of course true" that a "judgment dismissing the previous suit 'with
prejudice' bars a later suit on the same cause of action").
Because, with the exception of Ocwen, the parties in this suit are the same as those in the
state court case, the claims presented in the current action were or could have been presented in
the state court action, and there was a final judgment on the merits in that case, Lucero's claims
against Defendants Freddie Mac, MERS, IndyMac, OneWest, McCabe, 101 Geneva, and White
are barred by res judicata.
All causes of action against those Defendants are therefore dismissed
with prejudice.
IV.
Claims Against Oewen
The only remaining claims are those against Ocwen. As to those claims, Ocwen asserts
that Lucero has failed to plead facts sufficient to state a plausible claim for relief.s See Fed. R.
Civ. P. 12(b)(6). Ocwen is correct.
Ocwen also asserts that it is not a debt collector within the meaning of the FDCP A. However,
because Lucero provides no factual allegations about her relationship with Ocwen, the Court
need not consider Ocwen' s status under the FDCP A.
S
8
Lucero has failed to plead any facts whatsoever about Ocwen, and therefore necessarily
fails to plead factual content that would allow the Court to draw the reasonable inference that
Gcwen is liable for any of the misconduct that Lucero alleges. Her claims against Ocwen must
therefore be dismissed.
See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)
(explaining that "[d]istrict judges are not mind readers" and therefore cannot be expected to
"construct full-blown claims" based on insufficient factual allegations).
CONCLUSION
For the foregoing reasons, Defendants'
Complaint is DISMISSED.
Motions to Dismiss are GRANTED and the
All claims against Does 1-100, Freddie Mac, MERS, 101 Geneva,
White, McCabe, IndyMac, and OneWest are DISMISSED with prejudice.
Date: July 28, 2015
THEODORE D. CHU
United States Distri
ud e
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