Okon v. American Servicing Company et al

Filing 16

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/19/2016. (c/m 5/19/2016 aos, Deputy Clerk)

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FILED U S. DIS TRICT COURT IN THE UNITED STATES DISTRICT coBlHRICT OF Ht.HYLAND FOR THE DISTRICT OF MARYLAND lOlb IIAY I q P 12: II q SO/lt"l'm Dil'i"io/l IMEH RENEE OKON, Plaintiff, CLERK'S OFFICE Ai Gr::E[N~::U * * v. SERVICING COMPANY, ._~:('~llr'.l Casc Nu.: G.III-1S-2.t81 * AMERICAN I't BY * al., * Dcfcnlhrn ts. * * * * * * * * * MEMORANDUM PlaintifTlmch as Trustee Group. PA ("Alba"). alleging violations Servicing Company for SG Mortgage ("Wells Sccurities Fargo .. ).l IISBC Bank USA. National Trust 2006-FRE I ("IISBC"). Alba Law Melissa L Cassell. Amy II Hill. and See Chang (collectively. of the Maryland Complaint Mortgage Fraud Protcction 12. No hearing is necessary that follow. Motions "Defendants") Aci ("MMFPA"). Md. Code on any Defcndant. on August 31. 2015. ECF NO.2. Presently two Motions to Dismiss or. in the Altcrnative. For the reasons * OPINION Ann .. Real Prop. ~ 7-40 I. 1'1 seq. Before service was effcctuatcd an Amended * Renee Okon initiated this action on August 21. 2015 against Wells Fargo Bank. N.A .. tl/b/a America's Association. * * Ill!' Summary Plaintiff tiled pcnding bC!llrc the Coul1 are Judgment. ECF Nos. 4 & to resolve these Motions. ,<,'el' Local Rule 105.6 (D. Md. 2014). the Motions will he granted.2 I The Complaint incorrectly idcntilies Wells Fargo as '-American Servicing Company d/bla \Vells Fargo Bank. N.A:' The Clerk of the COlll1 will be directed 10 amend the docket to reflecl the true name oflhe Defendant. On September 17, 2015. Alba filed u Suggestion of Bankruptcy. indicating that Plaintiff had filed fur protection under Chapter 13 of the United States Bankruptcy Code. ECF No. J. Even assuming the automatic stay provision under 11 U.S.c. ~ 362 applied to an action \\,here the bankruptcy debtor initiated the action. set! 11 U.S.c. ~ 362(a) (referring to commencement or enforcement oran action ""against the debtor"). tllere would be no need to elller a 2 I. BACKGROUND In the Amended Complaint. PlaintiiTehallenges proceeding respecting certain aspects ofa foreclosure her residence located in Silver Spring. Maryland. See ECF NO.2 at 3;3 see also Devan v. Ohm. No. 388371 V (Montgomery Action"). Specifically. in the [Foreclosure she alleges that Defendants fraudulent documents foreclosure action. and an anidavit documents filed "a series of li'audulent documents Action) in order to foreclose on [her] property:' purportedly I05.I(e)(2)(ii) were lraudulent ECF NO.2 at 4. Those include a linal loss mitigation anidavit. a notice of submitted pursuant to Md. Code Ann .. Real Prop. ~ 7- and Md. Rule. Prop. Sales 14-207(b)(2). owner occupied:' Cnty. Cir. Cl.) (the "Foreclosure ILl. PlaintilTcontends that these insofar as they described the property to be foreclosed as "non- notwithstanding Plaintifr s representation to the trustee that she did in fact occupy the property. ILl. at 6. In the Foreclosure Foreclosure Proceedings Action. Plaintiff filed a document titled "Motion to Stop due to Fraudulent Anidavits Substitute Trustees; Counterclaims Filed by Wells Fargo and its Against Wclls Fargo ... and SG Mortgage Securities Trust 2006-FRE I...• See ECF No. 4-2. In that motion. she alleged that the anidavits accompanying the order to docket suit were li'audulent because they Slated that the property was non-owner occupied. See iLl. at 3. PlaintilTasserted stay at thisjullcture because the docket for the bankruptcy proceedings III re Okoll. No. 15-2t893 (flankr. D. Md. Apr. 7.2(16). 3 All pin cites to documents generated by claims of wrongful indicates that the case has been closed. ,)'1.'1.' tiled on the Court"s electronic filing system (CM/ECF) rcl~rto the page numhers that system. Although the Court relics on documents outside of the Complaint. these Motions Illay properly be considered under the motion to dismiss standard because. in reviewing such a motion. the court may consider. ill addition to the allegations in the Complaint, matters of public record and documents attached to the motion to dismiss that me integral to the complaint ami authentic. Sce Philips \'. Pilt emy. ,\I1!111 'j limp .. 51'2 F.Jd 176. 180 Htll Cir. 2009). -l 2 foreclosure U.S.C. S and injurious falsehood and violation of the Equal Credit Opportunity 1691a et self.. seeking damages and a declaratory judgment. The Circuit Court for Montgomery the Foreclosure Act. 15 See ill. at 9-14. County. Maryland dcnied Plaintiffs motion in Action. treating it as a motion to stay the sale of the property and dismiss the action. Plaintiff appealed to the Court of Special Appeals of Maryland. which aflirmed the denial of her motion on the ground that Plaintiff failed to comply with Md. Rule 14211(a)(3), which sets forth the requirements Maryland. See ECF No. 4-4. Plaintirfs separate action. See Ohm 1'. ofa motion to dismiss a foreclosure counterclaims. however. were docketed as a We//s Fargo Home Mortgage. Cnty. Cir. Ct.) (the ''Counterclaim action in No. 389299V (Montgomery Action"). In that case. on May 23. 2014, the court granted a motion to dismiss and dismissed the counterclaims without le<l\'e to amend. ECl' No. 4-6. Plaintirf did not appeal that dismissal. II. DISCUSSION A. Subjcct M:lttcr .Judsdiction Defendants seek dismissal on the ground that PlaintitThas for this Court's exercise of subject matter jurisdiction. ECl' No. 4-1 at 7: ECF No. 12-1 at 6. A motion to dismiss for lack or subject matter jurisdiction Civil Procedure jurisdiction lililed to allege a basis arises under Federal Rule or 12(b)( I). The plaintiff bears the burden of proving that subject matter properly exists in federal court. See Demetres 1'. E. W. COllst.. /IIC., 776 F.3d 271, 272 (4th Cir. 20 15). In a 12(b)( I ) motion, the court "may consider evidence outside the pleadings" to help determine Tail Park. \'. /IIC. whether it has jurisdiction over the case before it. While Strollhe, 413 F.3d 451. 459 (4th Cir. 2005). The court should grant the 12(b)(I) motion "'only if the material jurisdictional , .' facts arc not in dispute and the moving party is entitled to prevail as a matter of law .... Quigley 213.217 (D. Md. 2012) (quoting Richmond, Slales. 945 F.2d 765. 768 (4th Cir. 1991 The Complaint Uniled Slales. 927 F. Supp. 2d 1'. rrederickshurg & I'olomac R. Co. 1'. United ». does not allege any federal cause of action. citing only to a Maryland state statute as the basis for Plaintitrs may only exercise jurisdiction recovery. See ECF NO.2. Thus. this Court over this matter if there is complete diversity of citizenship. See 28 U.S.C. 1332(a). Diversity jurisdiction under ~ 1332 only exists if there is complete diversity between all parties. See Banca Del Seml'ione 1'. F.3d 615 (4th Cir. 1996) (per curiam) ("Since Stra\l'brh(!;e 267 (1806). courts have interpreted !'nJl'idel1l Bank o(Mw:\'land. 1'. 85 Curtiss. 7 U.S. (3 Cranch) section 1332 to require complete diversity bet\\'een all parties."). Complete diversity is lacking in this case. In the Amended Complaint. alleges that she resides in Silver Spring. Maryland. Defendants Alba and Cassell are domiciled Thus. this Court lacks jurisdiction but she also acknowledges Plaintiff that in Maryland. See ECF NO.2; ECF NO.8 at 2. over this matter. B. Failure to State a Claim Dismissing the non-diverse parties from this matter. however. would not save the case from dismissal because the Complaint fails to state a plausible claim fiJr relief. A motion to dismiss for failure to state a claim upon which relief may be granted is made pursuant to Federal Rule ofCivill'rocedure 12(b)(6}. Eel" No. 4-1 at8-10. When deciding a motion to dismiss under Rule 12(b)(6}. a court "IllUst accept as true all of the factual allegations contained in the cOlllplaint:' and Illust "draw all reasonable inlerences Ili'olll those facts] in favor of the plaintifC EI. du Ponl de Nemours & Co. \'. Ko!<m/ndu.l'.. Inc.. 637 F.3d 435.440 (4th Cir. 2011) (citations and internal quotation marks omitted). To sllI'\'ive a motion to dismiss invoking Rule 12(b)(6). "a complaint must contain suflicient i"actualmattcr. accepted as true. 'to state a claim to relief that is plausible on its i"ace:" Ashcro/i \'. Iqhal. 556 U,S. 662. 678 (2009) (quoting Bell Allaillic Corp. 1". TlI'(lIlIhly. 550 U.S, 544. 570 (2007)). Although pleadings of self-representcd litigants must be accorded liberal construction. see Gordoll \', Leeke. 574 F.2d 1147, 1151 (4th Cir.1978). liberal construction does not mcan a court can ignorc a clear t~lilure to allege facts that set forth a cognizable claim. see Weller I'. Dep'l oj'Soc, Sen's .. 901 F.2d 387 (4th Cir. 1990). In reviewing a motion to dismiss. the Court may consider allegations in the complaint. matters of public record. and documents attached to the motion to dismiss that are integral to the complaint and authentic. See I'hi/ips I'. I'il/ CIIIY. Mem 'I IImjJ .. 572 F.3d 176. 180 (4th Cir. 2009). While aflirmative de lenses may be reached by a motion to dismiss tiled under Rule 12(b)(6). such a motion should be granted only in the "rare circumstances where i"actssuflicient to rule on an aflimmtive detense arc alleged in the complain!." Goodmall \'. I'ra.\'11ir. IIIL'..494 F.3d 458. 464 (4th Cir.2(07) (en banc). Moreover. a mo\'ant cannot merely show that the elements ofthc defense appear on the t~lceoi"the complaint or in properly considcrcd documcnts. but must also "show that the plaintiffs potential rcjoinder to the aflirmati\'e defense was i"oreclosed by the allegations in the complaint:' Id. at 466, Plaintiffs claims against the non-diverse they are barred by the doctrinc of res judicata. Defendants must be dismissed becausc "It is well established that the doctrine of res judicata bars the rclitigation of matters prcviously litigatcd between parties and their privies. as well as those claims that collld hm'e heellasserled and litigatcd in thc original suit:' Allyallll'lIlakll1". Fleel Morlgage Glf} .. IlIc.. 85 F. Supp. 2d 566. 570 (D. Md.). atfd. 229 F.3d 5 1141 (4th Cir. 2000) (emphasis in original) (citations omitted). "Resjudicata. which is sometimes referred to as claim preclusion. helps to avoid .the expense and vexation attending multiple lawsuits. conserves judicial resources. and t()sters rcliance on judicial action by minimizing the possibilities of inconsistent decisions .... !d. (quoting Murray 111/'1FreiRiu Corp. I'. Graham, 555 A.2d 502. 503-04 (Md. 1(89)). "The traditional principle of res judicata has three elements: (1) the parties in the present litigation should be the same or in privity with the parties to the earlier case: (2) the second suit must present the same cause of action or claim as the first; and (3) in the tirst suit. there must have been a valid tin'll judgment on the merits by a court of competent jurisdiction." deLeol7 \'. Slear, 616 A.2d 380. 385 (Md. 1(92). All three elemcnts of res judicata arc met in this case. First. two of the diversc Defendants, Wells Fargo and HSBC. were parties to the Counterclaim court. Although the other two diverse Defendants-Hill Action in state and Chang-were that action, they were, according to the Amended Complaint. employees not parties to of Wells l'argo and/or I-lSBC when they engaged in the allegedly li'audulent acts and arc therefore in privity with Wells Fargo and/or HSBC and arc theret()re in privity with them. See ECF NO.2 at 2-3, 6-7; see also deLeol7, 616 A.2d at 389 (concluding privity with employer that employees were in for res judicata purposes where prior action against employer was based on its vicarious liability 1()r the conduct of those employees). With regard to the second clement. namely. whether this action presents ..the same cause of action or claim" as the previous suit. "federal courts and i\laryland state courts have adopted the 'transaction test' to determine the identity of the causes of action:' Al7yal7ll'lI/akll. 85 F. Supp. 2d at 571 (citing Adkil7s I'. Ails/ale 1m. Co .. 729 F.2d 974. 976 (4th Cir.1(84): dr/.eol7. 616 A.2d at 3(0). That is to say that. "as long as the second suit arises out of the same 6 transaction or series of transactions as the claim resolved by the prior judgment. the lirst suit will have preclusive eflecl." Ohio Valley Em'/I, Coal, 1', AracoII/a Coal Co.. 556 F.3d 177.210 (4th Cir. 2009). Plaintiffs allegations in this case regarding the allegedly li'audulent documents tilcd in the Foreclosure Action arise out of the same transaction as the claims involved in that action and in the Counterclaim Action. Notably. there. as she does here. Plaintiff challenged the description of her property as one that was "non-owner occupied." See. e.g.. Eel' No. 4-2 at 3. 9. Finally. Plaintilf does not dispute that the Counterclaim Action resulted in a linaljudgment on the meri ts. 5 III. CONCLUSION In sum. this Court lacks jurisdiction over the present suit because there is not complete diversity between the parties. Moreover. even if the jurisdictional cured, dismissal would be warranted because PlaintilTs Defendants are barred by res judicata. Accordingly. GRANTED and this action is DISMISSED Dated: Mav !9 S delCct could be claims against the non-diverse Defendants' Motions to Dismiss are with prejudice." ,/?A-- .2016 GEORGE J. IIi\ZEL United States District Judge Because the Court concludes that dismissal is warranted for nlilure to state a claim. it need not address the Hill and Chang regarding service of process. SI!f! ECF NO.4-I at 10-11. argument raised by Wells Fargo. HSBC. 6 Although the first dismissal of an action is ordinarily without prejudice. see ()slr:enski \'. S'eige/. 177 F.3d 245. Court has discretion to dismiss an action with prejudice where "it is clear that in light orthe {complaint's] fundamental dcficiencies(.r Co::arelli \'. Impire Pharm. 252-53 (4th Cir. 1999). the amendment would be futile Inc., 549 F.3d 618, 630 (4th this action are barred b:y res Cir. 2008). Because Plaintiffs state law claims against the only diverse Defendants would be futile. judicata. amendment of the Complaint 7 in

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