McGinley v. Central Mortgage Company et al

Filing 10

MEMORANDUM/ORDER granting 5 Motion to Dismiss for Failure to State a Claim. Signed by Judge Theodore D. Chuang on 8/21/2015. (kw2s, Deputy Clerk) (c/m 8/25/15)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

MONICA MCGINLEY,
Plaintiff,
v.
Civil Action No. TDC-14-3280
CENTRAL MORTGAGE COMPANY, and
SHAPIRO, BROWN, & ALT, LLP,
Defendants.

MEMORANDUM ORDER
This case is before the Court on Defendant Central Mortgage Company’s Motion to
Dismiss, ECF No. 5. Having reviewed the briefs, the Court finds no hearing necessary. See
Local Rule 105.6 (D. Md. 2014). For the reasons set forth below, the Motion to Dismiss is
GRANTED.
BACKGROUND
On October 20, 2014, Plaintiff Monica McGinley (“McGinley”), who proceeds in the
action pro se, filed suit in this Court against Central Mortgage Company (“Central Mortgage”)
and Shapiro, Brown & Alt, LLP (“Shapiro”) alleging that both Defendants had violated the Fair
Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., in their efforts to collect
mortgage payments relating to property located at 18933 Treebranch Terrace in Germantown,
Maryland.

As to Central Mortgage, McGinley alleges that on about June 12, 2013, she

submitted a qualified written request (“QWR”) to Central Mortgage regarding its servicing of her
mortgage for 18933 Treebranch Terrace. RESPA requires loan servicers to respond to a QWR

within 30 days of receipt, excluding legal public holidays, Saturdays, and Sundays. 12 U.S.C. §
2605(e)(2). McGinley alleges that Central Mortgage failed timely to respond to her request.
Records from McGinley’s 2013 bankruptcy proceedings reveal that Central Mortgage received
McGinley’s QWR on June 18, 2013, and that it responded to McGinley on July 18, 2013,
providing her with copies of the note, deed of trust, assignment of deed of trust, and loan
statements related to its servicing of her mortgage for 18933 Treebranch Terrace. Mot. to
Reconsider, Ex. 4, ECF No. 87-1, In re: Monica P. McGinley, No. TJC-13-30080 (Bankr. Md.
2013). 1

McGinley makes no specific allegations against Central Mortgage relating to the

FDCPA.
As to Shapiro, McGinley asserts that Shapiro is a debt collector within the meaning of the
FDCPA and that since 2011, Shapiro “has engaged in dubious practices that violate the
FDCPA.” Compl. ¶ 12. Otherwise, McGinley’s Complaint merely recites the provisions of the
FDCPA and alleges that they have been violated. McGinley makes no allegations against
Shapiro relating to RESPA.
On December 3, 2014, the Court issued an Order instructing the Clerk to prepare
summonses for the Defendants and informing McGinley that she bore the responsibility for
effecting service of process on Central Mortgage and Shapiro within 120 days. Order, ECF No.
2. In that Order, McGinley was warned that if she failed timely to serve either Defendant, her
Complaint would be dismissed without prejudice. To date, McGinley has failed to serve the
Complaint on either Defendant. However, on January 19, 2015, Central Mortgage filed a Motion
to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) contending that McGinley has

1

The Court takes judicial notice of these court proceedings pursuant to Fed. R. Evid. 201(b)(2).
2

failed to state a claim against it under the FDCPA or RESPA. McGinley did not submit a
Response to the Motion. 2
DISCUSSION
I.

Claims Against Shapiro
McGinley filed this action on October 20, 2014. Pursuant to Federal Rule of Civil

Procedure 4(m), she was therefore required to serve her Complaint on all Defendants by
February 17, 2015. On December 3, 2014, the Court reminded McGinley that she bore the
responsibility for effecting service of process within 120 days and that if she failed to meet that
deadline her case might be dismissed. To date, she has not served Shapiro. McGinley’s claims
against Shapiro are therefore dismissed without prejudice.
II.

Claims Against Central Mortgage
A.

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 plaintiff’s claims, the Court must examine the
complaint as a whole, consider the factual allegations in the complaint as true, and view the

2

McGinley did submit two Notices of Appearance to Correct the Record in which she asserts
that she is executor and agent for the estate of Monica McGinley, and that “Monica Patricia
McGinley” is a State Agency for which she is the registered agent. ECF Nos. 8 & 9. McGinley
attaches to the second Notice of Appearance documents related to her mortgage for another
property located at 36 Thomas Court in Montross, Virginia.
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factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm’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
factual enhancement” in support of that theory. Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009).
B.

RESPA Claim

As noted above, RESPA imposes on loan servicers a duty to respond to a borrower’s
QWR within 30 days of receipt, excluding legal public holidays, Saturdays, and Sundays. 12
U.S.C. § 2605(e)(2). Here, McGinley sent Central Mortgage a QWR on June 12, 2013. The
records from McGinley’s bankruptcy proceedings reveal that Central Mortgage received that
request on June 18, 2013 and responded to it on July 18, 2013. Excluding weekends and public
holidays, as required under the statute, Central Mortgage responded to McGinley’s request 25
days after that request was sent, and 21 days after Central Mortgage received it.

Central

Mortgage thus timely responded to McGinley’s QWR. McGinley’s RESPA claim arising from
her June 12, 2013 request is therefore dismissed with prejudice. See U.S. Airline Pilots Ass’n v.
Awappa, LLC, 615 F. 3d 312, 320 (4th Cir. 2010) (explaining that when any alteration to a cause
of action would be “futile” and have “no impact on the outcome of the motion to dismiss,” the
district court need not grant leave to amend).

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C.

FDCPA Claim

The only factual allegations that McGinley makes regarding her FDCPA claim are that
Shapiro is a debt collector within the meaning of that statute and that Shapiro has “engaged in
dubious practices” that violate the FDCPA. Compl. ¶¶ 12, 16. She makes no factual allegations
against Central Mortgage relating to the FDCPA. McGinley therefore fails to plead factual
content that would allow the Court to draw the reasonable inference that Central Mortgage is
liable to McGinley under that statute. Because McGinley fails to state a plausible claim for
relief, her FDCPA claim against Central Mortgage must 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, it is hereby ORDERED that Central Mortgage’s Motion to
Dismiss, ECF No. 5, is GRANTED and all claims against both Defendants are DISMISSED.
McGinley’s RESPA claim against Central Mortgage is DISMISSED WITH PREJUDICE.

Date: August 21, 2015

/s/
THEODORE D. CHUANG
United States District Judge

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