Neto v. Rushmore Loan Management Services, Inc. et al

Filing 14

MEMORANDUM OPINION (c/m to Plaintiff 3/7/17 sat). Signed by Judge Deborah K. Chasanow on 3/7/2017. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : JOAQUIM NETO : v. : Civil Action No. DKC 16-1056 : RUSHMORE LOAN MANAGEMENT SERVICES, INC., et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this consumer lending case are motions to dismiss filed by Defendant Alba Law Group, P.A. (“Alba”) (ECF No. 5) and Defendant Rushmore Loan Management Services, Inc. (“Rushmore”) (ECF No. 9). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions to dismiss will be granted. I. Background1 To purchase his home in 2004, Plaintiff Joaquim Neto (“Plaintiff”) agreed to a note and deed of trust with Wells Fargo Bank, N.A. (“Wells Fargo”). (ECF No. 1 ¶ 2). Plaintiff eventually defaulted on his loan, and in 2012 Wells Fargo or its agents initiated foreclosure proceedings in the Circuit Court for Prince George’s County, Maryland. 1 (ECF Nos. 1 ¶ 2; 5-3, at The facts outlined here are set forth in the complaint or judicially noticeable court documents. The facts are construed in the light most favorable to Plaintiff. 1). During the foreclosure proceedings, Wells Fargo assigned the deed of trust to US Bank National Association (“US Bank”). (Id. ¶ 3). According to the complaint, Rushmore became Plaintiff’s mortgage servicer as a result of this assignment. (Id. ¶ 4). The complaint is not clear as to when Alba, a law group that specializes in debt collection and litigation, became involved, but, at some point, Alba began working with Rushmore to litigate the foreclosure and debt collection. (Id. ¶¶ 66, 78). After Rushmore became the servicer of his mortgage loan, Plaintiff requested an application for loan modification. ¶ 19). (Id. Plaintiff’s agent then submitted Plaintiff’s application and began negotiating for a loan modification with Rushmore. (Id. ¶¶ 20-22). On April 8, 2015, a Rushmore representative called Plaintiff and notified him that his loan modification request had been denied. (Id. ¶ 25). Plaintiff’s agent contacted Rushmore seeking an explanation for the denial of the loan modification application. (Id. ¶¶ 19, 27). Although Plaintiff had never submitted any bank statements to Rushmore, a Rushmore representative initially told Plaintiff’s agent that the loan modification had been denied because of information in his bank statements. Rushmore request emailed and (Id. ¶ 29). Plaintiff indicating that a The following day, however, copy his 2 of a letter application had denying been his denied because the amount of Plaintiff’s “good faith down payment” was insufficient to offer a loan modification. (ECF Nos. 1 ¶ 31; 1- 1, at 2). To prevent a foreclosure sale while he sought loan modification, Plaintiff had filed bankruptcy proceedings in 2013 in the U.S. Bankruptcy Court for the District of Maryland, which led to an automatic stay in the foreclosure proceedings. No. 1 ¶¶ 20, 39). (ECF On June 5, 2015, the bankruptcy court removed the stay in the foreclosure proceedings and allowed Rushmore to move forward toward foreclosure. (Id. ¶ 39). Rushmore completed the foreclosure sale. On October foreclosure 14, 2015, proceeding to Plaintiff (1) excuse On September 15, (Id. ¶ 40). filed a motion noncompliance in the with the filing deadline, (2) vacate the sale, and (3) stay or dismiss the foreclosure proceedings (the “Motion to Vacate Sale”). No. 5-5). (ECF In it he raised several purported violations of the Real Estate Settlement and Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., including failure to provide accurate information under 12 C.F.R. § 1024.40(b)(1), failure to implement proper loss mitigation evaluation policies under section 1024.38(b)(2)(v), violations of the “dual tracking” prohibition in section 1024.41(g), and inadequate denial disclosure under section 1024.41(d). (ECF No. 5-5, at 17, 19, 20, 22). On March 31, 2016, the circuit court denied Plaintiff’s motion, finding 3 that Plaintiff procedural had “fail[ed] irregularities” in to the identify foreclosure any legitimate sale and that there was “no good cause to excuse the untimeliness [because his] motion does not meritorious argument.” state a valid defense or present (ECF No. 5-6). On April 8, 2016, Plaintiff filed the instant action. No. 1). (ECF In his nine claims, he raises the same four violations of RESPA (Counts I-IV); claims for negligence (Count V) and civil conspiracy (Count VI); and violations of the Maryland Consumer Debt Collection Act (Count VII), the Maryland Consumer Protection Act (Count VIII), Practices Act (Count IX). and (Id.). the Fair Debt Collection Plaintiff alleges violations by Rushmore in all nine counts, and Alba’s participation in, and liability for, Counts VI, VII, and IX. pending motion to dismiss on May 3. (Id.). Alba filed its (ECF No. 5). Plaintiff responded May 19 (ECF No. 7), and Alba replied June 3 (ECF No. 8). Rushmore filed its motion to dismiss on July 7. (ECF No. 9). Plaintiff responded to that motion on July 25 (ECF No. 10), and Rushmore replied on August 11 (ECF No. 13). II. Standard of Review The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Rule 8(a), which requires a 4 “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” 544, 555 n.3 (2007). Bell Atl. Corp. v. Twombly, 550 U.S. That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). At this stage, all well-pleaded allegations in the complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must construed in the light most favorable to the plaintiff. be See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d (4th the complaint, unsupported legal allegations need not be accepted. Revene v. 1130, 1134 Cir. 1993)). In evaluating Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). conclusions couched as factual allegations are Legal insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has 5 alleged, but it has not ‘show[n] that the pleader is entitled to relief.’” Iqbal, 8(a)(2)). 556 U.S. at 679 (quoting Fed.R.Civ.P. Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing experience and common sense.” Generally, pro se court to draw on its judicial Id. pleadings are liberally construed and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction means that the court will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts available; it does not mean that the court should rewrite the complaint to include claims never presented. 1128, 1132 (10th Cir. 1999). Barnett v. Hargett, 174 F.3d That is, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (citation and internal quotation marks omitted) (“[E]ven a pro se complaint must be dismissed if it does not allege a plausible claim for relief.”). 6 III. Analysis A. Jurisdiction 1. Standing In its reply, Rushmore belatedly challenges Plaintiff’s standing in this case by arguing that he is alleging statutory violations without reference to a particularized concrete harm. (ECF No. states, 13, at however, 6-7). that Plaintiff’s these complaint violations specifically were part of a “fraudulent denial” of his application for loan modification, and that “but for this fraudulent denial, Plaintiff would have received a modification of his loan and would not have lost the value of his investment in the home made over the eleven year period since 2004,” which he estimates to be more than $30,000. (ECF No. 1 ¶ 42). This alleged harm is sufficient to meet the injury requirement under the standing doctrine. 2. Rooker-Feldman Defendants next argue that Plaintiff’s claims are barred under the Rooker-Feldman doctrine. 15). (ECF Nos. 5, at 4-7; 9-1, at Under the Rooker-Feldman doctrine, federal courts lack subject matter jurisdiction to sit in appellate judicial determinations made in state courts. Appeals v. Feldman, 460 U.S. 462 (1983); Trust Co., 263 U.S. 413 (1923). decisions lies exclusively review of See D.C. Court of Rooker v. Fidelity “[J]urisdiction to review such with 7 superior state courts and, ultimately, the United States Supreme Court.” Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997); see 28 U.S.C. § 1257(a). Accordingly, Rooker-Feldman bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered inviting before the district judgments.” district court court review proceedings and commenced rejection of and those Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “Courts have consistently applied the Rooker-Feldman to district court doctrine review foreclosure proceedings.” dismiss of a claims state requesting court’s federal eviction and Nott v. Bunson, No. WMN-09-2613, 2009 WL 3271285, at *2 (D.Md. Oct. 9, 2009) (citing Poydras v. One West Bank, No. 9–11435, 2009 WL 1427396 (E.D.Mich. May 20, 2009) (collecting cases)); see also Ogunsula v. Holder, No. GJH-151297, 2015 respect to WL 3892126, Plaintiff’s at *3 claim (D.Md. regarding June the 22, 2015) alleged (“With improper foreclosure on and eviction from her home, her claim is not appropriately brought in this Court.”). In recent years, the Supreme Court has sought “to refocus lower courts that had extended the Rooker-Feldman doctrine ‘far beyond the contours of the Rooker and Feldman cases . . . .’” Smalley v. Shapiro & Burson, LLP, 526 F.App’x 231, 237 (4th Cir. 2013) (unpublished opinion) (quoting Exxon, 544 U.S. at 283). The United States Court of Appeals for the Fourth Circuit has 8 since emphasized that preclusion doctrines, not Rooker-Feldman, should be applied unless the state court proceedings were the cause of the injury. Thana v. Bd. of License Comm’rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016); Smalley, 526 F.App’x at 237 and n.2. As the Fourth Circuit recently held: [T]he distinction between preclusion principles and the Rooker-Feldman doctrine can sometimes be subtle, but it is nonetheless important to maintain. Preclusion principles are designed to address the tension between two concurrent, independent suits that results when the two suits address the same subject matter, claims, and legal principles. Whereas the Rooker-Feldman doctrine, by contrast, assesses only whether the process for appealing a state court judgment to the Supreme Court under 28 U.S.C. § 1257(a) has been sidetracked by an action filed in a district court specifically to review that state court judgment. Thus, if a plaintiff in federal court does not seek review of the state court judgment itself but instead “presents an independent claim, it is not an impediment to the exercise of federal jurisdiction that the same or a related question was earlier aired between the parties in state court.” Thana, 827 F.3d at 320 (citations omitted). Here the relevant state court judgment is the foreclosure and sale of Plaintiff’s former property. Although Defendants argue that Plaintiff is merely mounting a collateral attack on the foreclosure sale, Plaintiff maintains that “the state court judgment is not the source of the injury” here; rather, the injury he alleges is 9 that Defendants “knowingly and intentionally” violated RESPA. (ECF No. 7, challenging at the 14). As discussed foreclosure sale, above, but Plaintiff rather the is not “fraudulent denial” of his loan modification and the corresponding monetary losses due application. to the rejection of (ECF No. 1 ¶ 42). his loan modification Because the harm alleged is distinct from the foreclosure judgment, Plaintiff’s claim is not barred under the Rooker-Feldman doctrine. B. RESPA Claims Plaintiff’s first four claims are for RESPA violations. RESPA “is a broad remedial statute intended to provide American consumers with more information about the real estate settlement process and protection from ‘unnecessarily charges caused by certain abusive practices.’” high settlement Farber v. Brock & Scott, LLC, No. TDC-16-0117, 2016 WL 5867042, at *3 (D.Md. Oct. 6, 2016) implementing (citing regulations, 12 U.S.C. also known § 2601(a)). as “Regulation codified at 12 C.F.R. §§ 1024.1–1024.41. RESPA’s X,” are Plaintiff alleges that Rushmore failed to provide accurate information under Regulation X, section 1024.40(b)(1) (Count I); violated the “dual tracking” prohibition in section 1024.41(g) (Count II); provided inadequate denial disclosures under section 1024.41(d) (Count III); and failed to implement proper loss mitigation evaluation 10 policies under section 1024.38(b)(2)(v) (Count IV). (ECF No. 1 ¶¶ 43-61). Defendants argue that res judicata applies to Counts I-IV because Plaintiff raised these same issues in the Motion to Vacate Sale in the foreclosure case. 1, at 12-15; contemplates, adjudicate, 13, at nor at a 3-4).2 minimum, defendants (ECF Nos. 5, at 7 n.3; 9- “The that to doctrine courts address, not of res be judicata required successive to actions arising out of the same transaction and asserting breach of the same duty.” Mcghee v. JP Morgan Chase Bank, N.A., DKC-12-3072, 2013 WL 4495797, at *4 (D.Md. Aug. 20, 2013) (citing Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 563 (5th Cir. 1983)). The principle of res judicata encompasses two concepts: claim preclusion and issue preclusion, or collateral estoppel. re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). 2 See In 1996) Because A court may consider the affirmative defense of res judicata and documents from the underlying case on a motion to dismiss. Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (“Although an affirmative defense such as res judicata may be raised under Rule 12(b)(6) only if it clearly appears on the face of the complaint, when entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact.”); Lara v. Suntrust Mortgage Inc., No DKC-16-0145, 2016 WL 3753155, at *1 n.1, *6 (D.Md. July 14, 2016) (considering “relevant documentation regarding the Property and the foreclosure proceeding and sale” attached by Defendants to a motion to dismiss to substantiate a claim of res judicata); Green v. Wells Fargo Bank, N.A., 927 F.Supp.2d 244, 246 n.2 (D.Md. 2013). 11 Plaintiff raised his RESPA arguments as defenses rather than counterclaims in the foreclosure case, Defendants’ res judicata arguments are best viewed under the rubric of issue preclusion, which “bars a party from re-litigating an issue that he or she has already litigated unsuccessfully in another action.” Jones v. HSBC Bank USA, N.A., No. RWT-09-2904, 2011 WL 382371, at *3 (D.Md. Feb. 3. 2011) (quoting Culver v. Md. Ins. Comm’r, 175 Md.App. 645, 653 (2007)). In Maryland, issue preclusion has four elements: “(1) the issue decided in the prior adjudication must have been identical to the one in the present action; (2) there must have been a final judgment on the merits in the first action; (3) the party against whom the plea is asserted must have been a party to the prior adjudication; and (4) the party against whom the plea is asserted must have been given a fair opportunity to be heard on the issue.” DeCosta v. U.S. Bancorp, No. DKC 10-0301, 2010 WL 3824224, at *6 (D.Md. Sept. 27, 2010) (citing Culver, 175 Md.App. at 657).3 Plaintiff does not dispute the first and third elements of issue preclusion. Rather, he admits that the Motion to Vacate Sale was “based upon Defendant Rushmore’s failure and refusal to comply with a number of loss mitigation rules and regulations 3 Maryland law applies because “a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). 12 which are indeed the subject of the instant action.” 7, at 4). (ECF No. He argues instead that the second element of issue preclusion has not been met. Plaintiff contends that the court “denied the motion as an insufficient basis” for excusing his untimeliness, and therefore its decision was based on procedural grounds, not the merits. (Id. at 5). He also suggests that he was not given a full and fair opportunity to litigate these claims. (Id.).4 Although Plaintiff is correct that the court announced its decision “without explanation or elaboration” (id.), he is incorrect that the court did not provide him a full and fair opportunity to litigate the issues or that it did not address the merits of his arguments. The court’s docket and order show that the motion was fully briefed by the parties; his opponent filed a response and see he and filed respond a reply, his Plaintiff opponents’ an opportunity to arguments. (ECF Nos. 5-3, at 3; 5-6 (court’s memorandum and 4 to giving counter- Plaintiff applies the res judicata standard for claim preclusion to his “full and fair opportunity” arguments. (ECF No. 7, at 5-6). He argues that that he could not have raised these issues as counterclaims in the foreclosure proceedings because he was limited by Maryland Rule 14-211 which prescribes the limited means in which a borrower may challenge a foreclosure proceeding. The doctrine of issue preclusion does not require that the duplicated legal issues be claims or counterclaims, as the doctrine of claim preclusion does, so these arguments are inapplicable here. Rule 14-211 did not prevent Plaintiff from making the same RESPA arguments in his Motion to Vacate Sale as he does here. 13 order)). When the circuit court ruled on the motion, it specifically stated that Plaintiff had “fail[ed] to identify any legitimate procedural irregularity regarding the September 18, 2015 foreclosure determining that sale.” (Id.). there was no More importantly, excuse for in Plaintiff’s untimeliness, the circuit court found that his motion did not “state a valid defense or present meritorious argument.” (Id.). Plaintiff attempts to overcome these findings by arguing that the circuit court’s determination that his arguments were not meritorious “is not to say that the underlying facts presented in support thereof were not meritorious or true.” at 15). (ECF No. 7, Plaintiff’s hair-splitting reference to the underlying facts does not affect the applicability of issue preclusion here to avoid successive the relitigation actions arising of out the of asserting breach of the same duty.” same the legal same issues “in transaction and The state court appears to have considered the merits of Plaintiff’s arguments, even if it did not elaborate as to why 5 it found them meritless.5 At least some of Plaintiff’s arguments would have been rejected because, inter alia, no private cause of action exists for the RESPA violations he alleged. See Agomuoh v. PNC Financial Services Group, No. GJH-16-1939, 2017 WL 657428, at *10 (D.Md. Feb. 16, 2017) (finding that no private cause of action existed under § 1024.38 and § 1024.40 and citing cases). See generally Schmidt v. Pennymac Loan Services, LLC, 106 F.Supp.3d 859, 867-71 (E.D.Mich. 2015) (describing the RESPA statute in the U.S. Code and the recent history of Regulation X). 14 Accordingly, res judicata applies to Plaintiff’s RESPA claims, and they will be dismissed. C. Plaintiff’s Other RESPA-Based Claims Several of Plaintiff’s other claims rely on the underlying RESPA violations as a foundation. Because these claims cannot proceed in the face of the state court’s ruling on Plaintiff’s Motion to Vacate Sale, these claims will also be dismissed. 1. Negligence Plaintiff’s negligence claim in Count V is premised on the fact that Rushmore had a duty to comply with the requirements of RESPA and breached that duty. the same alleged statutory Because this duty and breach are violations that the state court rejected as lacking merit in Plaintiff’s Motion to Vacate Sale, issue preclusion similarly dictates that this claim fails. 2. In Conspiracy Count conspired foreclosure. VI, Plaintiff together to alleges obtain (ECF No. 1 ¶ 66). that Alba Plaintiff’s and Rushmore property via A claim of civil conspiracy requires Plaintiff to allege: “1) A confederation of two or more persons by agreement or understanding; 2) some unlawful or tortious act done in furtherance of the conspiracy or use of unlawful or tortious means to accomplish an act not in itself illegal; and 3) actual legal damage resulting to the plaintiff.” Windesheim v. Larocca, 443 Md. 312, 347 (2015). 15 “Conspiracy is not a separate tort capable of independently sustaining an award of damages in plaintiff.” 2009) the absence of other tortious injury to the Haley v. Corcoran, 659 F.Supp.2d 714, 726 (D.Md. (citing Alleco Inc. v. The Harry & Jeanette Foundation, Inc., 340 Md. 176, 189 (1995)). Weinberg Plaintiff alleges that Rushmore and Alba were aware of Rushmore’s RESPA violations and pursued the foreclosure despite that knowledge. ¶¶ 67-68). (ECF No. 1 Because Plaintiff’s conspiracy claim is premised on the “intentional negligence” described in Count V (id. ¶ 65), there is no foundational tort to support an allegation of civil conspiracy. See Clark v. Md. Dep’t of Pub. Safety & Corr. Servs., 247 F.Supp.2d because “plaintiff has 773, 777 failed (D.Md. to 2003) state a (holding claim for that any substantive torts, his state law claim for civil conspiracy must fail.”). 3. Accordingly, this claim will be dismissed as well. FDCPA The Fair Debt Collection Practices Act (“FDCPA”) protects consumers from debt collectors that deceptive debt collection practices. engage in abusive and See United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 135 (4th Cir. 1996). Plaintiff alleges that Defendants violated the FDCPA by proceeding to a foreclosure sale when they were prohibited from doing so because of the purported RESPA violations. (ECF No. 1 ¶ 79). The state court’s determination that Plaintiff’s RESPA arguments lacked 16 merit therefore precludes him from succeeding on this claim, and it will be dismissed. D. MCDCA and MCPA Finally, Plaintiff alleges claims under the Maryland Consumer Debt Collection Act (“MCDCA”) and the Maryland Consumer Protection Act (“MCPA”). (ECF No. 1 ¶¶ 69-74). The MCDCA provides that in collecting or attempting to collect an alleged debt, a collector may not engage in various activities, including “claim[ing], attempt[ing], or threaten[ing] to enforce a right with knowledge that the right does not exist.” Ann., Commercial Law § 14–202(8). Md.Code To plead a claim under the MCDCA, a plaintiff must allege show that: (1) that Defendants did not possess the right to collect the amount of debt sought; and (2) that Defendants attempted to collect the debt knowing that they lacked the right to do so. See Pugh v. Corelogic Credco, LLC, No. DKC 13–1602, 2013 WL 5655705, at *4 (D.Md. Oct. 16, 2013). Courts have held that, even where there might have been procedural defects committed under the applicable statutes and regulations, initiating foreclosure proceedings is not a violation of the MCDCA where it is undisputed that the borrower has defaulted on the loan. Agomuoh, 2017 WL 657428, at *11 (dismissing MCDCA claim because plaintiffs were “undeniably in default”); Currie v. Wells Fargo Bank, N.A., 950 F.Supp.2d 788, 802 (D.Md. 2013); Marchese v. JPMorgan Chase Bank, N.A., 917 17 F.Supp.2d 452, 464 (D.Md. 2013) (holding that MCDCA does not allow “recovery based on errors or disputes in the process or procedure of collecting legitimate, undisputed debts”); Stovall v. SunTrust Mortg., Inc., RDB–10–2836, 2011 WL 4402680, at *9 (D.Md. Sept. 20, 2011). defaulted on his loan. Plaintiff (ECF No. 1 ¶ 2). acknowledges that he He therefore fails to state a claim under the MCDCA. The MCPA establishes that the violation of several other enumerated Maryland statutes, including the MCDCA, constitutes unfair or deceptive trade practices proscribed by the MCPA. See generally Md.Code Ann., Commercial Law § 13–301(14) (enumerating incorporated statutes). Plaintiff’s MCPA claim was based on the alleged MCDCA violation described above. Because he has not properly pleaded an MCDCA violation, his MCPA claim premised on an MCDCA violation will also be dismissed. IV. Conclusion For the foregoing reasons, the motions to dismiss filed by Defendant Alba and Defendant Rushmore will be granted. separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 18 A

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