Kimble v. Bank of America FSB et al

Filing 12

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 8/5/2015. (c/m 8/6/2015 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOHN KIMBLE, pro se
Plaintiff
v.
BANK OF AMERICA, ET AL.
Defendants

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Civil No. PJM 14-3790

MEMORANDUM OPINION
John Kimble, pro se, has sued Bank of America and Nationstar Mortgage (“Defendants”)
over a mortgage refinancing that took place in 1997. The Complaint sets forth seven numbered
sections styled as causes of action: Negligence (Claim I), Elder Abuse (Claim II), Common Law
Fraud (Claim III), Gross Negligence (Claim IV), Civil Conspiracy (Claim V), Truth in Lending
Act Violation (Claim VI), and Theft by Deception/False Pretenses/Negligent Misrepresentation
(Claim VII). Defendants have filed a Motion to Dismiss all counts for failure to state a claim.
ECF No. 9. Although the Clerk of the Court sent Kimble a letter indicating that if he did not file
a timely written response, the Court might dismiss the case or enter judgment without further
notice, ECF No. 10, Kimble never filed a response in opposition to Defendants’ Motion. For the
reasons that follow, the Court GRANTS WITH PREJUDICE Defendants’ Motion.
A.
According to the Complaint, Kimble’s parents Reginald and Kay owned a home on
Oakview Drive in Silver Spring, Maryland. On June 1, 1984, Reginald signed an agreement that
transferred his interests in the home to Kay as trustee for their sons (Plaintiff Kimble and his
brother Daniel). Reginald and Kay divorced in 1987.

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In 1997, Kay contacted Bank of America in an effort to refinance the mortgage on the
home. The Complaint alleges that the loan offered by Bank of America in the amount of
$116,250 “included only [$27,000] of a mortgage refinance but included car payoffs as well as
unsecured credit card payoffs for her personal credit cards[.]” These additional payoffs, the
Complaint alleges, violated the trust agreement, which provided that Kay was allowed to live in
the house as long as she desired, but upon her death or sale of the home, the home or proceeds
from any sale were to transfer to Kimble and his brother as beneficiaries. The Complaint alleges
that Kay was sexually assaulted about a year before the refinancing, and from that time until her
death in October 2010, she suffered from severe emotional distress and diminished capacity. The
Complaint alleges that Bank of America pressured Kay into the refinancing by misrepresenting
facts to her. According to the Complaint, Kay––and only Kay––signed the Bank of America
promissory note. The Complaint alleges that during the loan closing, Kimble was never in the
room with Kay or his brother. After Kay’s death in 2010, spoke with a representative from
Nationstar on the phone, in an attempt to modify the loan (Nationstar was presumably the
servicer of the mortgage). The Complaint alleges that Nationstar representatives told him that he
could not modify the loan because he was not the borrower. According to the Complaint, a
foreclosure proceeding was initiated against the home. The Court’s review of the public docket
indicates that it is still ongoing.
Kimble attaches to the Complaint what he represents is the original Deed of Trust, to
which he and his brother are signatories. No signature appears on the signature line for Kay. The
Complaint alleges that the Deed of Trust produced in the foreclosure proceedings (presumably
by Defendants or their successors in interest) contains a signature line with Kay’s signature. The
Complaint alleges that this discrepancy makes the lien invalid.

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Although Kimble alleges various purported causes of action, the Court understands the
gist of his complaint to be that Defendants unlawfully induced Kay to enter into the loan, and
that the Deed of Trust itself is invalid because it contains a forged signature. Kimble seeks
$1,000,000 in damages, and the removal of the lien on the home.
B.
To survive a motion to dismiss, 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, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a
defendant has acted unlawfully.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Iqbal, 556 U.S. at 678). It requires the plaintiff to articulate facts, which if true, would
“show” that the plaintiff has stated a claim entitling him to relief, i.e., the “plausibility of
entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 678).
Ordinarily, a plaintiff proceeding pro se is held to “less stringent standards” than a lawyer
is, and the court must construe her claims liberally, no matter how “inartfully pleaded.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, even a pro se complaint must meet a minimum
threshold of plausibility. See O’Neil v. Ponzi, 394 F. App’x 795, 796 (2d Cir. 2010).
If pleadings allege fraud or mistake, “a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Under the heightened
pleading standard of Rule 9(b), “[t]hese circumstances are ‘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.’” Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015)
(quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)).

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C.
Several of Kimble’s claims can be dispatched immediately. No cause of action exists in
Maryland for a tort of “elder abuse.” Kimble’s purported TILA claim––that Defendants failed to
hire competent and honest individuals––has nothing to do with TILA, which regulates lenders’
disclosure obligations.
Kimble’s negligence, gross negligence, common law fraud, civil conspiracy claims, and
negligent misrepresentation are all predicated on the same allegation: that Defendants failed to
sufficiently inform Kimble or Kay about allegedly onerous terms of the loan or the possible
consequences of default. However, “[i]t is well established that ‘the relationship of a bank to its
customers in a loan transaction is ordinarily a contractual relationship between debtor and
creditor and is not fiduciary in nature.’” Kuechler v. Peoples Bank, 602 F. Supp. 2d 625 (D. Md.
2009) (quoting Yousef v. Trustbank Savs., F.S.B., 568 A.2d 1134, 1138 (Md. Ct. Spec. App.
1990)). There are certain “special circumstances” that may give rise to a fiduciary duty between
borrower and lender. See Polek v. J.P. Morgan Chase Bank, N.A., 36 A.3d 399, 418 (Md.
2012)(listing examples of special circumstances). Kimble does not plausibly allege any such
special circumstances here. Because the Complaint does not plausibly allege a duty that
Defendants violated in the course of extending or servicing the loan, Kimble’s negligence and
gross negligence claims fail. For the same reasons, Kimble does not plausibly allege a tortious
act done in furtherance of a civil conspiracy.
Kimble’s common law fraud and civil conspiracy claims also fail. At most, Kimble
alleges that Defendants failed to inform Kay and Kimble of certain terms of the loan; e.g. the
length of repayment or the consequences of a failure to pay. Of course, Kimble does not allege
that any such terms were absent from the Deed of Trust. Accordingly, Kimble does not plausibly

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allege a knowingly false representation to the Plaintiff by any Defendant, let alone allege fraud
with the particularity required by Rule 9(b). For the same reason, Kimble fails to allege a
particular false statement of material fact sufficient to state a claim for negligent
misrepresentation.
Finally, to the extent that Kimble’s claims are predicated on his allegation that the Deed
of Trust itself is invalid because it contains a forged signature, Kimble fails to state a claim to
relief that is plausible on its face. Kimble alleges that the Deed of Trust that he attaches to the
Complaint, ECF No. 1-2, constitute the “original closing documents,” ECF No. 1, at 9, and that
this “original” Deed of Trust contains no signature by Kay. He concludes that Deed of Trust
produced in the foreclosure proceedings, ECF No. 1-3, which does contain Kay’s signature, is
therefore forged and invalid. However, it is not plausible that this purportedly “original” Deed of
Trust, ECF No. 1-2, is in fact the actual, operative Deed of Trust, because this document contains
no signature by a notary public. Instead, it is almost certain that Kimble has stumbled upon a
copy of the Deed of Trust that he and his brother signed at a point in time prior to the point at
which Kay signed the Deed of Trust. Indeed, this is consistent with his allegation that he was
never in the room with Kay when she signed the Deed of Trust.
For the foregoing reasons, the Court GRANTS WITH PREJUDICE Bank of America’s
Motion to Dismiss.
A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
August 5, 2015

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