De Silva et al v. American Brokers Conduit et al
Filing
21
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 1/21/2015. (jf2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
*
CLAIRE DE SILVA, ET AL.,
*
Plaintiffs,
*
v.
Case No.: GJH-14-03462
*
AMERICAN BROKERS CONDUCIT,
ET AL.,
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
MEMORANDUM OPINION
This is an action to quiet title brought by pro se Plaintiffs Claire De Silva and Carla De
Silva-McPhun (collectively, “Plaintiffs”) against several defendants, including GS Mortgage
Securities Corporation, Goldman Sachs Mortgage Company, L.P., Mortgage Electronic
Registration Systems, Inc., Homeward Residential, Inc., Deutsche Bank National Trust
Company, and JPMorgan Chase Bank, N.A. (collectively, “Defendants”). This Memorandum
and accompanying Order address Defendants’ unopposed Motion to Dismiss (ECF No. 14). The
time for a response has expired and a hearing is unnecessary in this case. See Loc. R. 105.2(a)
(Md.); see also Loc. R. 105.6 (Md.). For the reasons stated below, Defendants’ Motion to
Dismiss is GRANTED.
I.
BACKGROUND
Plaintiffs allege that they are the owners of real property located at 11206 Odell Farms
Court, Beltsville, Maryland 20705 (the “Property”). See ECF No. 2 at ¶ 10. Plaintiffs financed
the Property through a $399,070 loan (the “Note”) with American Brokers Conduit. See id. at ¶
1
11; see also ECF No. 14-2. To secure the Note, Plaintiffs executed a deed of trust in the amount
of $399,070, dated January 20, 2006, and used the Property as collateral. See ECF No. 14-1 at ¶
11; see also ECF No. 14-3. The deed of trust was recorded on March 27, 2007 with Prince
George’s County in Land Records Book 27479, Page 626. See ECF No. 2 at ¶ 12.
In signing the deed of trust, Plaintiffs expressly acknowledged that the Note, or a partial
interest in the Note, as well as the deed of trust, could be transferred numerous times without
advanced notice being provided to them. See ECF No. 14-3 at ¶ 20. The deed of trust stated:
“[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold
one or more times without prior notice to Borrower.” Id. Furthermore, the deed of trust also
made clear that even if the Note was sold, Plaintiffs’ obligations would remain the same. See id.
Specifically, the deed of trust provided that “[i]f the Note [was] sold and thereafter the Loan
[was] serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan
servicing obligations to Borrower [would] remain with the Loan Servicer or be transferred to a
successor Loan Servicer and [would] not [be] assumed by the Note purchaser unless otherwise
provided by the Note purchaser.” Id. On February 15, 2010, a deed of appointment of substitute
trustees was recorded in the land records of Prince George’s County at Book 31455, Page 626.
See ECF No. 2 at ¶¶ 14, 15(i); see also ECF No. 14-5. Then again, on April 1, 2011, a deed of
removal and appointment of substitute trustees was recorded in the land records of Prince
George’s County at Book 32556, Page 062. See ECF No. 2 at ¶ 15(j); see also ECF No. 14-6. A
On September 10, 2014, Plaintiffs filed this pro se lawsuit in the Circuit Court for Prince
George’s County, Maryland against Defendants. See ECF No. 2. Plaintiffs’ complaint alleges
three causes of action: quiet title (Count I), common law fraud (Count II), and violation of the
Maryland Consumer Debt Collection Act (Count III). Although it is not entirely clear from the
2
complaint, Plaintiffs also appear to be seeking an order that (1) they hold clear and clean title to
the Property and (2) they are no longer required to make payments on the Note because,
according to them, the deeds of appointment and/or the deed of trust are invalid and
unenforceable. See ECF No. 2 at ¶¶ 15(a)-(j). Specifically, Plaintiffs allege that the deeds are
invalid because they were improperly assigned and because the deed of trust was separated from
the Note. See ECF No. 2 at ¶¶ 15(a)-(j), 26-31.
On November 3, 2014, Defendants removed the state action to this Court (see ECF No. 1)
and filed a motion to dismiss on November 24, 2014. See ECF No. 14. Plaintiffs’ opposition to
that motion was due on December 8, 2014. See Loc. R. 8(b) (Md.). When Plaintiffs did not
timely file its opposition, the Court ordered Plaintiffs to show cause, by no later than December
18, 2014, why the Court should not dismiss Plaintiffs’ complaint for the reasons stated in
Defendants’ motion to dismiss. See ECF No. 20. The Court warned Plaintiffs that “[f]ailure to
respond to th[e] Order to Show Cause may result in the immediate dismissal of this lawsuit.” Id.
Plaintiffs did not respond to the Court’s order.
II.
STANDARD OF REVIEW
The purpose of a motion to dismiss is to test the sufficiency of the plaintiff's complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The U.S. Supreme Court
has recently clarified the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Igbal, 556
U.S. 662 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases make
clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”
Twombly, 550 U.S. at 556 n. 3 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at
least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
3
In deciding a motion to dismiss, the Court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 556 U.S. at 678-79. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. In so doing, the
Court must construe all factual allegations in the light most favorable to the plaintiff. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
Furthermore, “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). To satisfy this standard,
plaintiffs “must, at a minimum, describe 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.” United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370,
379 (4th Cir. 2008) (internal quotation marks omitted) (citing Harrison, 176 F.3d at 784). “These
facts are often referred to as the ‘who, what, when, where, and how’ of the alleged fraud.” Id.
(internal quotation marks omitted) (quoting United States ex rel. Willard v. Humana Health Plan
of Tex. Inc., 336 F.3d 375, 384 (5th Cir. 2003)).
III.
DISCUSSION
As an initial matter, the Court will grant Defendants’ motion to dismiss based on
Plaintiffs’ failure to respond to the Court’s Order to Show Cause as well as their failure to
4
respond to Defendants’ motion to dismiss, which the Court considers a formal abandonment of
their claims. See e.g., Ferdinand–Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 (D.
Md. 2010) (“By her failure to respond to [defendant’s] argument” in a motion to dismiss, “the
plaintiff abandons [her] claim.”); Mentch v. Eastern Sav. Bank, FSB, 949 F. Supp. 1236, 1247
(D. Md. 1997) (holding that failure to address defendant’s arguments for summary judgment in
opposition brief constituted abandonment of the claim); Johnson v. Nationstar Mortgage, LLC,
No. 14-02536, 2014 WL 5377636, at *2, n.2 (D. Md. Oct. 21, 2014) (dismissing claim, in part,
because plaintiff failed to respond to defense arguments raised in its motion to dismiss). But even
if the Court considered the substance of Plaintiffs’ claims, it would still grant Defendants’
motion to dismiss.
First, Plaintiffs seek an order to quiet title in their favor because, according to them, the
deed of trust was separated from the Note thereby “making the mortgage unenforceable, null,
deficient, and illegal” and because the deed of trust and/or the Note were improperly assigned.
See ECF No. 2 at ¶¶ 14, 24-31. The Court will not grant this relief. Under Maryland law, 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.” Md.Code Ann., Real Prop. § 14-108(a). In such an action,
however, “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, 126
Md. App. 237, 728 A.2d 755, 773 (Md. App. 1999) (emphasis in original). Thus, “the plaintiff
bears the burden of proving both possession and legal title.” Anand v. Ocwen Loan Servicing,
LLC, 754 F.3d 195, 198 (4th Cir. 2014).
5
Here, Plaintiffs’ action to quiet title must be dismissed because they do not have legal
title to the Property. Indeed, Plaintiffs readily admit that they received a mortgage for the
Property and conveyed the deed of trust. Plaintiffs have not alleged, nor have they demonstrated,
that they have satisfied their obligations under the Note or the deed of Trust. Nor have Plaintiffs
shown any right to recession. That the deed of trust was allegedly separated from the Note does
not render the deed of trust “unenforceable, null, deficient, and illegal,” as Plaintiffs contend.
ECF No. 2 at ¶ 26. This Court has repeatedly rejected such claims. See, e.g., Reed v. PNC
Mortg., No. 13-1536, 2013 WL 3364372, at *3 (D. Md. July 2, 2013); Parker v. Deutsche Bank
Nat’l Trust Co., No. 12-13358, 2013 WL 1390004, at *2-3 (D. Md. Apr.3, 2013); Mabry v.
MERS, No. 13-1700, 2013 WL 5487858, at *3 (D. Md. Oct. 1, 2013). Nor is the Court moved by
the fact that the deed of trust or the Note may have been reassigned. In signing the deed of trust,
Plaintiffs acknowledged that the Note, as well as the deed of trust, could be transferred. See ECF
No. 14-3 at ¶ 20. The Court must therefore dismiss Plaintiffs quiet title action. See Hood v.
Aurora Loan Servs., No. 10-11, 2010 WL 2696755, at *5 (D. Md. July 6, 2010) (dismissing quiet
title action where plaintiffs, mortgagors, did not hold legal title to the mortgaged property);
Brown v. Wilmington Fin., No. 11-699, 2012 WL 975541, at *6 (D. Md. Mar. 21, 2012)
(dismissing plaintiff’s quiet title action where plaintiff “admit[ted] that she took out the two
loans from [the lender] and, in doing so, encumbered her property by a deed of trust”); Blick v.
JP Morgan Chase Bank, No. 12-1, 2012 WL 1030115, at *4 (W.D. Va. Mar. 27, 2012)
(dismissing a claim for quiet title where plaintiffs did not allege that they had satisfied their loan
obligations), aff’d, 475 Fed. Appx. 852 (4th Cir. 2012); Jones v. Fulton Bank, No. 13-126, 2013
WL 3788428, at *8 (E.D. Va. July 18, 2013) (“To assert a claim for quiet title, the plaintiff must
plead that he has fully satisfied all legal obligations to the party in interest”).
6
Next, the Court will also dismiss Plaintiffs’ fraud claim (Count II). Fed.R.Civ.P. 9(b)
states that “in alleging a fraud or mistake, a party must state with particularity the circumstances
constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s
mind may be alleged generally.” Superior Bank, F.S.B. v. Tandem Nat’l Mortg., Inc., 197 F.
Supp. 2d 298, 313-14 (D. Md. 2000) (quoting Windsor Assocs., Inc. v. Greenfeld, 564 F. Supp.
273, 280 (D. Md. 1983)). Such allegations typically “include the ‘time, place and contents of the
false representation, as well as the identity of the person making the misrepresentation and what
[was] obtained thereby.’” Id. Even viewing the allegations in the light most favorable to
Plaintiffs (as it must), the Court still comes to the conclusion that Plaintiffs have failed to
adequately alleged a common law fraud claim.
“To state a fraud claim under Maryland law, a plaintiff must allege five elements with
particularity (1) the defendant made a false statement of fact; (2) the defendant knew the
statement was false or acted with reckless disregard for the truth of the statement; (3) the
defendant made the statement for the purpose of defrauding the plaintiff; (4) the plaintiff
reasonably relied on the false statement, and (5) the plaintiff was damaged as a result.” Marchese
v. JPMorgan Chase Bank, N.A., 917 F.Supp.2d 452, 465 (D. Md. 2013) (citations omitted).
Additionally, Plaintiffs’ fraud allegations must meet the “heightened pleading standard under
Rule 9(b).” Piotrowski v. Wells Fargo Bank, N.A., No. 11-3758, 2013 WL 247549, at *5 (D. Md.
Jan. 22, 2013). Plaintiffs have failed to satisfy this burden here.
Specifically, Plaintiffs contend that Defendants committed fraud by “fail[ing] to properly
endorse and transfer interest as the Holder of Due Course and [by] commit[ing] slander and
fraud to the Plaintiffs’ title by back dating Substitute of Trustee documents . . . .” ECF No. 2 at ¶
30. Additionally, Plaintiffs allege that Defendants committed fraud by making “false
7
representation[s] . . . to Plaintiffs by slandering title with no Assignment and by backdating
Substitute of Trustee documents [and by] unauthorized Agents executing the documents within
the public records.” Id. at ¶ 33. These vague and conclusory allegations, however, do not include
the “time, place and contents of the false representation, as well as the identity of the person
making the misrepresentation.” Windsor Assocs., Inc., 564 F. Supp. at 280. Furthermore, where,
as here, “a complaint alleges fraud against multiple defendants, Rule 9(b) requires that the
plaintiff identify each defendant’s participation in the alleged fraud.” Haley v. Corcoran, 659 F.
Supp. 2d 714, 721 (D. Md. 2009) (emphasis added). In this case, Plaintiffs have simply lumped
all of Defendants into one category as “the Defendants” without identifying the role each
Defendant played in the alleged fraud. See ECF No. 2 at ¶¶ 33-35. Under these circumstances,
“[i]t would be impossible for any of the individual defendants to determine from these
allegations which of the misrepresentations they are specifically responsible for or what role they
are alleged to have played in the fraud.” U.S. ex rel. Brooks v. Lockheed Martin Corp., No. 001088, 2005 WL 841997, at *2 (D. Md. Mar. 22, 2005). Accordingly, Plaintiffs allegations
regarding their fraud claim are insufficient to satisfy the heightened pleading standard under
Fed.R.Civ.P. 9(b) and this claim must therefore be dismissed.
Finally, the Court must also dismiss Plaintiffs’ claim for violation of the
Maryland Consumer Debt Collection Act (“MCDCA”) (Count III). The MCDCA prohibits debt
collectors from utilizing threatening or underhanded methods in collecting or attempting to
collect a delinquent debt. Md. Code Ann., Com. Law §§ 14-201 to 14-204. Specifically, the
MCDCA states that a “person collecting or attempting to collect an alleged debt arising out of a
consumer transaction,” id. § 14–201(b), may not “[c]laim, attempt, or threaten to enforce a right
with knowledge that the right does not exist.” Id. § 14–202(8).
8
Here, Plaintiffs’ only substantive allegation regarding their MCDCA claim is that:
Defendant(s) American Home Mortgage Servicing, Inc., MERS,
GSAA Home Equity Trust 2006-9, Deutsche Bank National Trust
Company and US Bank National Association claimed, attempted,
or threatened to enforce a right with knowledge that its right did
not exist under Maryland or Federal law in the manner it sought by
maintaining the underlying slander of title actions by recording
backdated, misleading, fabricated and misleading documents in
Prince George’s County claiming an interest to Plaintiff property.
See ECF No. 2 at ¶ 41. This allegation, which merely provides “[t]hreadbare recitals of the
elements of a cause of action,” is inadequate to state a claim for a violation of the MCDCA.
Iqbal, 556 U.S. at 678. Indeed, as Defendants rightly point out, Plaintiffs do not “make a single
allegation as to how, when, or where defendants ‘claimed, attempted or threated to enforce a
right with knowledge that its right did not exist under Maryland or Federal law . . . .’” ECF No.
14-1 at 12 (citing ECF No. 2 at ¶ 41). “Nor do Plaintiffs specify what ‘right’ defendants
‘claimed, attempted, or threatened.’” Id. (citing ECF No. 2 at ¶ 41). The Court will therefore
dismiss Count Plaintiffs’ MCDCA claim.
IV.
CONCLUSION
For the reasons discussed, Defendants’ Motion to Dismiss (ECF No. 14) is GRANTED.
Dated: January 21, 2015
/S/
George Jarrod Hazel
United States District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?