Sharp v. Federal National Mortgage Association

Filing 17

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/16/2016. (kw2s, Deputy Clerk) (c/m 3.16.16)

FILED
U.S. DISTHICT CDUHT
IN THE UNITED STATES DISTRICT COUlilrSTRICT OF MARYLAND
FOR THE DISTRICT

OF MARYLAND

ZOlb BAR I b A q: 2 I

SOllthem DiI'isio/l

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CLEf~K'S OFFICE
AT G~EEh~:ELi
8y_ ...
::
'T!!; ,.

ELSIE S. SHARI',

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Plaintiff,

Case N••.: G.lII-15-3289

v.

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FEDERAL NATIONAL
ASSOCIATION, et aI.,

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MORTGAGE

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Defendants.

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MEMORANDUM

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OPINION

Plaintirr Elsie Shanta Sharp brings this action against Derendants Federal National
Mortgage Association ("Fannie Mae") and Mortgage Electronic Registration Systems. Inc.
("MERS"). alleging Iraud. breach or contract. and violations or the RacKeteer Inlluenced and
Corrupt Organizations Act ("'RICO"). All or Plaintiffs allegations arise rrom a i()reciosurc
action on Plaintiffs fonner property. See lOCI'No. I. This Memorandum Opinion addresses
Defendants' Motion to Dismiss (ECF NO.8) and Plaintiffs Motion Itll' a Temporary Restraining
Order (ECF No. 15). A hearing is unnecessary. Loc. R. 105.6 (D. i\ld. 2014). For the reasons
stated below. Defendants' Motion to Dismiss is GRANTED and Plaintin-s Motion It)r a
Temporary Restraining Order is DENIED.
I.

BACKGROUND

Elsie Shanta Sharp. also Known as Elsie S. Stevenson. ECF No. 1-2. challenges the
it)reclosure or the property located at 14110 Kydan Court. Brandywine. MD 20613 ("Property")
by Fannie Mae and MERS. ECF No. I ,;~ 1-8. Sharp signed a promissory note ("Note") and

Deed of Trust ("'DOr')

for the Propel1y in thc amount of$3X4.200.00. ECF No. 1',29: ECF No.

8-2.1 First Chesapeake Home Mortgage. I.I.C was thc originallcndcr

ofthc Notc and trustcc of

the DOT. ECF No. I ~ 31. The DOT identitics MERS as the "nomincc" Ill!'thc Icndcr as
beneticiary of the DOT. ECF No. 8-2 at 1. Fannie Mae is the owncr of the Note and Nationstar
l'vlortgage. I.I.C is the servicer Illr Fannie Mae. ECr: No. X-3 at 42: ECF No. I ',; 33.
On January 11. 2013. a Substitution of Trustee \\as recorded in the Oflicial Records Il)l'
Prince George's County as instrument number 34279.560. \\'ith Nationstar Mortgage. I.I.C
assigning all beneticial interest within the DOT to Howard N. Bierman. Jacob Geesing. and
Carrie M. Ward. ECF No. I ~ 113. Bierman. Ward. and Geesing tiled a notice of Illreclosurc
action with the Circuit Court for Prince Gcorge's County. Maryland ("Circuit Court"). ECr: No.
8-3. On January 27.2016. the Circuit Court dcnied six motions by Sharp that challengcd the
foreclosure action. linding that Sharp "I~liled to state a valid dcfense or present a meritorious
argumcnt"

ECF No. 15. Ex. 2. On February 1. 2016. the Circuit Court sent an eviction not icc to

Sharp notifYing her that the court entered ajudgment awarding possession of the property to
Fannie Mae. ECr: No. 15. Ex. I.
II.

DEFENDANTS' MOTION TO IHSMISS

A. Standard of Review
Federal Rule of Civil Procedure ("Rule") 12(b)(6) permits a defendant to present a
motion to dismiss for I~lilureto state a claim upon when rclief can be granted. Fed. R. Ci\'. 1'.
12(b)(6). "To survive a motion to dismiss. a complaint must contain suflicient factualmaller.

I Courts arc generally

not allowed

"to consider

matters outside the pleadings

Of resolve

on a motion to dismiss:" 80siger \'. U.S. Airways, bu.:. 510 F.3d 4 .. . -150 (41h
.
C
limited

circumstances

including
are integral

"documents

in which
'attached

to the complaint

the court Illay consider
to the complaint.

and authentic ....

e.xtrinsic documents

as well as those attached

Phil'i)S \'. Pilf. C"y.

;\/el1l.

Cir.

factual

2007).

in the context

disputc.:s whell ruling
there are

"I!O\\-cvcr.
ofa

Illotion to dismiss."'

to the Jllotion to dismiss. so long as they

Ilos!, .. 51'2

F.3d 176. 180 (4th Cir. 2009).

accepted

as true .. to state a claim to rclief that is plausiblc on its lace. ". Ilsheroti

U.S, 662, 678.129

S, Ct. 1937 (2009),"A

claim has 1(lcial plausibility

factual content that allows the court to draw the reasonablc
for the misconduct

8(a)(2) to determine

orthe

well-pleaded

infcrence that the defendant

a motion to dismiss. courts refer to the pleading requirements

if the complaint

TlI'(JI/lhly. 550 U.S. 544. 554-55.
statement

whcn thc plaintilTplcads

adequately

127 S. Ct. 1955 (2007), Rule 8(a)(2) requires a "short and plain

may proceed even if the "aetual proof of those facts is improbable

is very remote and unlikely:'

omitted),

For a motion to dismiss. judges are required to assess ..the sufliciency

and not to resolve contests surrounding

TII'OI/lh~l'. 550

events:'

unsupported

"a formulaic

legal allegations

omitted),

are insuftieient

C"/l1l. Gell. Ure

2376,2015

of the complaint

rather than a blanket assertion.

recitat ion

0 I'the

e Icments

0 I' a

cause of aetion:'

of

of

need not be accepted:'

as are conclusory
IllS.

U.S. Dist. LEXIS 91689. at
Irthe "well-pleaded

factual allegations

c". \',Ae/mlleee/
* 13-14

or "naked

lilhal. 556 U.S. at 678. "In el'aluating

couched as factual

devoid of any rclerencc

Surgel)' Or. ,,(Belhese/a,
(0, Md . .July 15.2(15)

U.c. No.

to actual

DKC 14-

(internal citations

1(\Ctsdo not permit the court to infcr more than the mere

,
.,

the

Rel'elle \'. ('lllIrles Oy.

Camm 'rs. 882 F.2d 870. 873 (4th Cir. 1989), Similarly. "[IJegal conclusions
allegations

marks

to relicf." TII'OI/lhly. 550 U.S. at 555 n.3. That showing must consist of more than

devoid of further ((letual enhancement:'

eomplaint.

and

464 F.3d 480. 483 (4th Cir. 20(6).

"Rule 8(a)(2) still requires a 'showing:

"labels and conclusions:'
assertions

U.S. at 556 (internal quotation

thc 1(lcts. the mcrits ofa claim. or the applieability

Preslel'. \'. Cill' "rCharlalle.ITille.
..

entitlement

1'.

claim showing that the pleader is entitled to relief," Fed, R. Cil'. 1'. 8(a)(2). i\

complaint

Howcvcr.

of Rule

states a claim for relief See Bel! All. C"rp.

recovery

defenses"

is liable

1<1.

alleged."

When assessing

\'. Ii/hal. 556

possibility

of misconduct:'

the complaint

has not shown ..that the pleader is entitled to relief."'

Iqba/. 556 U.S. at 679. "While federal courts must liberally construe a pro se litigant's claims.
this requirement

Servicing.

the court into an advocate .... HII//ock \'. OCll'ell Loall

'does not transform

LLC. No. PJM 14-3836.2015

U.S. Dist. LEX IS 110622. at *7 (I). Md. Aug. 20. 20 J 5)

Uniled Slales \'. lVi/soil. 699 F.3d 789. 797 (4th Cir. 2(12)).

(quoting

B. Plaintiffs
Plaintiff-s

Complaint

primary argument

home loan was securitized
19. However.

fails tn state a claim
is that the substitution

by "originating

this Court has repeatedly

of trustee is improper because her

lender banks to investment

banks:'

rejected the notion that thc sccuritization

renders a note or deed of trust unenforceable.

securization

of notes renders them unenforceable."):

PlaintitThas

unenforceable."):

presented

Parka

Reed \'. IWC Morlg .. No. A \\'-13-1536.

challenges

system of recordation
Furthermore.

that his loan was

no basis for the Court to deelare the deed of trust im'alid or

v. Delllsche Balik Nal ., TnlSl Co .. No. WMN-12-3358.

LEXIS 48029. at *7 (D. Md. Apr. 3. 2(13) ("This Court has previously
addressing

in this District.

rejected the notion thaI. as a general matter. the

2013 U.S. Dist. LEXIS 93343. at *7 (D. Md. July 2. 2(13) ("Even assuming
securitized.

is proper and assignments
Complaint

2013 U.S. Dist.

noted that courts.

to MERS similar to those raised here. have consistently

Plaintiffs

ofa loan

See l.all'SOIl \'. MERS. IlIc.. NO.8: J 3-cv-02149-

A W, 2013 U.S. Disl. LEXIS 117548. at *7 (D. Md. Aug. 20. 2(13) ("Judges
ineluding this Court. have repeatedly

ECI' No. 1 ~I~18-

found that 'the

made through that system arc valid .... ).

is replete with allegations

but does not include any

facts to allow the Court to lind that there arc t~lcts to support a tinding that Defendants
harm nor that Plaintiffis
determine

entitled to relief. Specilically.PlaintilTseeks

"the validity of the DOT as to any unrecorded

4

assignees

caused a

to havc the Court
over a period of years:'

ECI'

No. I ~ 42, and lind that the substitution
Eel' No. I at 19-20. PlaintilTalieges
implications

of trustee is \'oid and unenloreeable

that the Delendants

"intentionally

concealed

the negativc

of the loan they wcre offering. and as a result. Plaintiff filces the potential of losing

her home to thc very entity and entitics who placed her in this position."
Additionally,

Plaintiffargucs

that the forcclosure

evidenced

by the Note executed

transferred

and endorsed

complaints

may 'represent

by PlaintilTin

to any ofthc

1990) (citation omitted),
granted. Defendants'

C. Plaintiffs
Defendants'
by res judicata.

favor of the Originator.

thc work of an untutored
'obscurc

efforts to unravel them .... Weller

l',

ECF No, 1

'I~

27-28,

is improper because ..the debt or obligation

namcd Dclendants'"

district court is not requircd to recognize
concerted

under the DOT.

ECF NO.1

hand requiring
or cxtravagant

was not propcrly

'i 38.

"While pro se

special judicial

solicitudc.'

claims defYing the most

Dep'l o/Soc, Sen's,. 901 F.2d 387. 391 (4th Cir.

Because Plaintiff has fililcd to asscrt facts upon which relief can be

Motion to Dismiss is GRANTED,

claim is barred by res judicata
Motion to Dismiss should also be denied because Plaintilfs

Under Maryland

law. res judicata

claim is barred

applies to a lawsuit \\hen: "( I ) the two actions

involve either the same partics or persons in privity with those parties: (2) the claim presented
either identical to. or is such that it could IHI\'e been resolved.
was a prior tinal adjudication
Dis!. LEXIS 73596. at
privity requirement
the non-party

a

* I0

on the merits'"

in the earlier dispute: and (3) there

Wheal ley \'. Cohll. No. GI.R-13-3850.

2014 U.S,

(0, Md. May 30. 2014). "The Fourth Circuit has emphasized

of res judicata

simply denotes a relationship

that the

between the party of record and

close enough to render the latter bound by the prior litigation'"

neck \', CKD /'l'<Iha

Holding. A,S.. 999 F. Supp, 652. 656 (D, Md. 1998) (citing Vlliled Slates \', ,I/allllillg Coal
Corp .. 977 F.2d 117. 121 (4th Cir. 1992)). The key inquiry when determining

5

is

privity is \\hether

the relationship
represents
(citations

between the party and the non-party

the interests of the latter. Beck \'. CKD I'l'lIhu I/o/clill,!!.. A.S.. 999 F. Supp. at 656
omitted).

Plaintifrs

Complaint

Trust have been separated
recorded,"

"1(lCUSeSon two primary allegations:

and transferred:

ECF No. 15 at 2. As noted by Defendants.

in the instant Complaint

(I) that the Note and Deed of

(2) and that no assignment

involved the same property and loan currently
allegations

is close enough that the !(JrIller adequatcly

occurred

of the Deed of Trust InlS

the "underlying

I(lreclosure

at issue in the present action. None of Plaintitrs
alier the entry of the Order ratifying the sale. and

there is no reason why Plaintiff could not have raised and adjudicated
Foreclosure

Action,"

ECF NO.8-I

action

at 6. Under the transaction

her alleged claims in the

test. "claims are considered

of the same cause of action when they arise out of the same transaction

a part

or series of transactions,"

AnYWlJI'lIIakul'. Fieef Morf,!!.- Grp .. 85 F. Supp. 2d 566. 571 (D. !'vld. 2000). PlaintilTwas
to the foreclosure

action and had an opportunity

"the final ratification

of the sale of property

No. MJG-13-1015.

to raise her claims there. Under iVlaryland law.

inloreclosure

validity of such sale. except in case of extrinsic

proceedings

is resjudicata

the toreclosure

,vA ..
Ed

2014 U.S. Dist. LEXIS 106245. at *19 (D. Md. Aug. I. 2014) (quoting

alleged any Ii'aud or illegality

action. Defendants

as to the

Th£'fll7£'\'. U.S. Balik.

fraud or illegality,"

Jacobsen. Jr .. lnc. \'. Barrick. 252 Md. 507. 250 A.2d 646. 648 (1969».l'laintiIThas
adequately

a party

that prevcnted

are in privity with the plaintiffs

action represented

lilir proceedings

of the foreclosure

the interests of the Defendants

have been bound by an adverse decision.

Accordingly.

,

res judicata

not

in the I(lreclosure

action. as the plaintiffs

here and the Defendants

in

Il'(lUld

applies.~

.. Plaintiff requests that the Court give her leave to amend her Complaint. so that she Illay "allege sufli,iL'1l1 facts"
and "more properly set forth her various cause of actions." ECF No. II at [-3.llo\\"cv('r. any amendment would be
futile because the action is barred by resjudicata.lICMFCorp.
\', Allen. 238 r.3d 273. 276 (.. 1h Cir. 2001) (stating
l
that a motion to amend should be denied \\hcn the amcndmcill would bc futile).

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III.

PLAINTIFF'S

MOTION

FOR TEMPORARY

RF:STRAINING ORDER

Plaintiff requests that the Court issue a temporary restraining order ("TRO") to stop and
prevent a writ of possession
not demonstrated

on the Prope11y. lOCI' No. 15 at2. The Court linds that I'laintilThas

that she is entitled to a TRO. The purpose ofa TRO "is to . protect the status

quo and to prevent irreparable harm during the pendency of a lawsuit. ultimately to preserve the
eourt's ability to render a meaningful judgment
Mortg .. Inc., No. GJH-15-l

(quoting In re Microsoji
a TRO or a preliminary

on the merits .... FOll'Ier

I'.

Wells I'ill'go IIOIIIl'

OX4. 2015 U.S. Dist. LEXIS 63076. at *6 (D. Md. May 13. 2015)

Corp. Antitrust

injunction

Litig .. 333 F3d 517. 525 (4th Cir. 2003 )). "The grant of

is an 'extraordinary

remedy that may only be awarded upon a

clear showing that the plaintilT is entitled to such relief .... Id at *6-7 (quoting /)l'll'hlll'st1'. Cry.
Aluminum

Co .. 649 F3d 2X7. 290 (4th Cir. 2011 )). A plaintilTseeking

a TRO must establish

"r 1J

that he is likely to succeed on the merits: 121 that he is likely to suiTer irreparable harm in the
absence of preliminary
injunction

reliet: [3] that the balance of equities tips in his Ill\'(lr. and [41 that an

is in the public interest:'

Rl'ol 7i'llth Ahollt

(4th Cir. 2009) (citing Winter

1'.

discussed above. I'laintiffhas

not demonstrated

case is being dismissed.
IV.

()/WJ1W.

Inc. ". FfC.

575 F3d 342. 346

NRDC. Inc .. 555 U.S. 7. 20. 129 S. Cl. 365 (200X)). As

I'laintilTs

a likelihood of success on the merits. Indeed. her

Motion fiJr a Temporary

Restraining Order is DENIED.

CONCLUSION

For the reasons discussed.
and Plaintiffs

Defendants'

Motion for a Temporary

Motion to Dismiss (ECF No. X) is GRANTED

Restraining

Order (ECF No. 15) is DENIED. 1\ sep~lrate

Order shall follow.

&ii--

Dated: March /&.2016

GEORGE.I. HAZEL
United States District Judge
7