Wilson et al v. Shapiro Brown & Alt, LLP et al

Filing 19

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 8/21/2017. (c/m 08/22/2017 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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GWENDOLYN D. WILSON, et al.
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Plaintiffs,
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v.
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SHAPIRO BROWN & ALT, LLP, et al. *
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Defendants.
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Case No. RWT 16-cv-3303

MEMORANDUM OPINION
On August 24, 2016, Gwendolyn D. Wilson and Paulette L. Scott (“Plaintiffs”) initiated
this action against Shapiro Brown & Alt, LLP (“Shapiro”) and Wells Fargo Bank, N.A. (“Wells
Fargo”) in the Circuit Court for Prince George’s County, Maryland.

ECF No. 2.

On

September 30, 2016, the Defendants removed the action to this Court. ECF No. 1.
Although the Court finds it incredibly difficult to discern the causes of action in
Plaintiffs’ Complaint, it appears that they are primarily requesting an Order from this Court
enjoining foreclosure proceedings in the Circuit Court for Prince George’s County, Maryland1
concerning the property located at 13300 Big Cedar Lane, Bowie, Maryland 20720. ECF No. 2
at 3. On October 7, 2016, Defendant Wells Fargo filed a Motion to Dismiss. ECF No. 11.
Originally having failed to file a timely response to Plaintiffs’ Complaint, Defendant Shapiro
filed a Motion to Accept Late Response to Complaint, with an accompanying Motion to Dismiss,
on November 18, 2016. ECF No. 18. The issues have been fully briefed, and the Court finds
that no hearing is necessary. Local Rule 105.6. For the reasons state below, the Court will grant
Defendants’ Motions to Dismiss and dismiss the Complaint in its entirety.

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Shapiro v. Scott, No. CAE12-32382.

I.

Background Facts
On July 29, 2005, the Plaintiffs purchased the property at 13300 Big Cedar Lane,

Bowie, Maryland 20720 (the “Property”). ECF Nos. 2 at 3; 11-2.2 In order to purchase the
Property, the Plaintiffs obtained a mortgage loan (the “Loan”) from Wells Fargo, secured by a
Deed of Trust on the Property. ECF No. 11-3. In 2011, the Loan was assigned to US Bank
National Association as Trustee. ECF No. 11-4. Sometime thereafter the Plaintiffs defaulted,
and substitute trustees at the direction of Wells Fargo commenced foreclosure proceedings in the
Circuit Court for Prince George’s County, Maryland on October 16, 2012. See ECF No. 11-5.
When the parties were unable to reach an agreement in mediation, the circuit court
entered an order on March 18, 2014 authorizing the foreclosure to proceed. ECF No. 11-6 at 3.
Despite Plaintiffs’ individual filing of bankruptcy actions following this order, on
September 8, 2016, a Praecipe was filed releasing the bankruptcy actions, and the foreclosure
action was allowed to proceed. Id. On August 24, 2016, the Plaintiffs initiated the instant
action. ECF No. 2.
II.

Legal Standard
1.

Pro Se Standard

A federal district court is charged with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case.

Hughes v. Rowe,

449 U.S. 5, 9 (1980). Nonetheless, liberal construction does not mean that a court can ignore a
clear failure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t
of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (citation omitted). The mandated liberal

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The Court takes judicial notice of Exhibits A–F of Defendant Wells Fargo’s Memorandum of Law in Support of
Motion to Dismiss as they are matters of public record filed in the courts and land records. See Fed. R. Evidence
201. Accordingly, the Court may consider these exhibits in reviewing Defendants’ Motions to Dismiss.
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

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construction afforded to pro se pleadings means that if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so; however, a
district court may not rewrite a complaint in order for it to survive a motion to dismiss. See
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
2.

Motion to Dismiss Based on Rule 12(b)(6)

The Defendants have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief could be granted. ECF Nos. 11; 18-1. A motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of
a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). 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) (internal
quotation marks omitted) (citation omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Thus, ‘[i]n reviewing a motion to dismiss an action
pursuant to Rule 12(b)(6). . . [a court] must determine whether it is plausible that the factual
allegations in the complaint are enough to raise a right to relief above the speculative level.’”
Monroe v. City of Charlottesville, Virginia, 579 F.3d 380, 386 (4th Cir. 2009) (quoting
Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)).
On a motion to dismiss, courts must accept “all well-pleaded allegations of the complaint
as true,” Albright v. Oliver, 510 U.S. 266, 268 (1994), and “must construe factual allegations in
the light most favorable to the plaintiff.”

Harrison v. Westinghouse Savannah River Co.,

176 F.3d 776, 783 (4th Cir. 1999). Courts, however, “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
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Fed. R. Civ. P. Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)).
III.

Analysis
As discussed above, Plaintiffs are requesting a Temporary Restraining Order from this

Court enjoining foreclosure proceedings in the Circuit Court for Prince George’s County and a
declaratory judgment that Defendants have no standing to maintain the state court action.
ECF No. 2 at 3. Insofar as the Court is able to discern the often unintelligible Complaint,
Plaintiffs also allege violations of the Fair Debt Collection Practices Act 15 U.S.C. § 1692
(“FDCPA”), the Fair Credit Reporting Act, 15 U.S.C. § 1681, as well as fraud and slander of
title. In addition, they challenge the assignment of the Loan to US Bank National Association.
Lastly, they also allege that Defendants failed to respond to a Qualified Written Request
(“QWR”) in violation of the Real Estate Settlement Procedures Act (“RESPA”). The Court will
now individually address the merits of each of these causes of action.
1. Plaintiffs’ Request for a Temporary Restraining Order Enjoining the State
Court Proceedings and Preliminary Injunctive Relief
Under the Anti-Injunction Act (“AIA”), this Court may not grant “an injunction to stay
the proceedings in a State court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283;
see also Williams v. Cohn, 2016 WL 4415058, at *2 (D. Md. Aug. 19, 2016). As Congress has
not expressly authorized this Court to stay foreclosure proceedings, and such an injunction is
unnecessary to protect this Court’s jurisdiction or its judgments, the Court cannot grant Plaintiffs
the requested relief. To the extent that the Plaintiffs are asking for emergency relief, they must

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seek it in the pending action in the circuit court. Accordingly, the request for a Temporary
Restraining Order and Preliminary Injunction will be denied.
2. Plaintiffs’ Request for Declaratory Judgment
Plaintiffs also request that this Court enter an Order declaring, inter alia, that Defendants
lack standing to proceed in the foreclosure proceedings in state court. ECF No. 2 at 19–20. In
addition to limiting the Court’s ability to issue injunctions, the AIA also “bars the issuance of a
declaratory judgment that has the same practical effect as an injunction.” Williams, 2016 WL
4415058, at *2 (citation omitted). Because issuing declaratory judgment that the Defendants
lack standing to proceed in the foreclosure proceedings in state court has the same “practical
effect” as enjoining the state proceedings—halting the foreclosure action in state court—the
Court will not issue any declaratory judgment. See id.
3. Alleged Violation of the Fair Debt Collection Practices Act
Plaintiffs also seem to allege a violation of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 (“FDCPA”). See ECF No. 2 at 4–5. As a threshold question, to state a claim
under the FDCPA, the consumer must allege that the defendant is a “debt collector” under the
FDCPA. Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F. Supp. 2d 502, 524
(D. Md. 2013). The FDCPA defines a debt collector as one who “regularly collects or attempts
to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”
15 U.S.C. § 1692a(6).
Here, Wells Fargo originated the Loan and remained the mortgage servicer of the Loan.
See ECF Nos. 11-3; 11-4. Accordingly, Wells Fargo is not a “debt collector” under the FDCPA
and Plaintiffs cannot, as a matter of law, sustain a claim under the FDCPA against Defendant
Wells Fargo. See 15 U.S.C. § 1692a(6)(F) (excluding from the term “debt collector” “any
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person collecting or attempting to collect any debt owed or due or asserted to be owed or due
another to the extent such activity . . . concerns a debt which was originated by such
person. . . [or] concerns a debt which was not in default at the time it was obtained by such
person.”).
On the other hand, Wells Fargo appointed attorneys at the Shapiro law firm as substitute
trustees to proceed with foreclosure proceedings after the Plaintiffs defaulted on their Loan. See
ECF No. 11-5 at 2. Defendant Shapiro, therefore, is a “debt collector” pursuant to the FDCPA.
See McCray v. Federal Home Loan Mortgage Corp., 839 F.3d 354, 359 (4th Cir. 2016) (holding
a firm and the substitute trustees who “pursue foreclosure on behalf of creditors. . . were acting
as ‘debt collectors’” as defined by the FDCPA).
Beyond conclusory statements, however, the only intelligible factual allegation pled
against Shapiro on this allegation is that “[t]he new loan number is not connected to Plaintiff(s),
[sic] which is a misrepresentation and violation of the FDCPA.” ECF No. 2 at 5. Instead,
Plaintiffs pled that “at some time unknown to Plaintiff(s), [sic] and without Plaintiff(s)’ [sic]
authorization or signature, the Defendant(s) [sic] changed the loan number.” Id. at 4.
In order for a misrepresentation to give rise to a claim under the FDCPA and survive a
motion to dismiss, the misrepresentation must be material.

Stewart v. Bierman,

859 F. Supp. 2d 754, 764 (D. Md. 2012). Plaintiffs have failed to adequately plead facts to
demonstrate why a new loan number was material. Accordingly, Plaintiffs have failed to allege
“sufficient factual matter, [even if] accepted as true, to state a claim to relief that is plausible on
its face.” See Iqbal, 556 U.S. at 678 (internal quotation marks and citation omitted).

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4. Alleged Violation of the Fair Credit Reporting Act
Although Plaintiffs fail to set forth any distinct cause of action under the Fair Credit
Reporting Act 15 U.S.C. § 1681, et seq., they request in their prayer for relief monetary damages
for “libel to Plaintiffs’ credit” and “false reporting to the Credit Reporting Agencies
[(“CRAs”)].” See ECF No. 2 at 20. “[T]o bring a claim under 1681s-2(b), a plaintiff must
establish three elements: (1) that he or she notified the [CRA] of the disputed information,
(2) that the [CRA] notified the defendant furnisher of the dispute, and (3) that the furnisher then
failed to investigate and modify the inaccurate information.” Alston v. Branch Banking & Trust
Co., 2016 WL 4521651, at *6 (D. Md. Aug. 26, 2016) (quotations omitted, alterations in
original).

Plaintiffs have failed to allege any factual material to support any of the three

elements. Accordingly, even when liberally construed, Plaintiffs have failed to state a claim
under the Fair Credit Reporting Act 15 U.S.C. § 1681, et seq.
5. Fraud and Slander of Title
Plaintiffs also allege that “Defendant(s) [sic] have caused a fraudulent document to be
placed upon the Property Records of Prince George’s County which creates not only a cloud
upon Title, but slanders the Title as well.” ECF No. 2 at 17. Therefore, Plaintiffs “respectfully
demands [sic] to inspect the ‘Original Deed of Trust Note,’ Acknowledged and Accepted with
wet ink signatures, along with the Title Page that shows whether or not the Deed of Trust has
been satisfied.” Id.
In order to state a claim for slander of title under Maryland law, Plaintiffs “must plead
facts sufficient to show (1) a false statement, (2) that the false statement was communicated to
someone else (publication), (3) malice, and (4) special damages.” Rounds v. Maryland-Nat.
Capital Park & Planning Comm’n, 109 A.3d 639, 663 (Md. 2015), reconsideration denied
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(Mar. 27, 2015) (citation omitted). As a preliminary matter, beyond the conclusory statements
contained in the Complaint, Plaintiffs have failed to plead any factual support that satisfies
Fed. R. Civ. P. Rule 8’s pleading requirements. See Twombly, 550 U.S. at 556 n.3 (Rule 8
“requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief”) (quoting
Fed. R. Civ. P. 8(a)(2)).
6. Challenges to the Assignment of the Loan
Plaintiffs also challenge the assignment of the Loan from Wells Fargo to US Bank
National Association, alleging that “the Note and security deed were separated/split, where the
deed alone was separated from the note. Based on knowledge and belief, the promissory note
has been pledged, hypothecated, and/or assigned as a collateral security to an unknown entity.”
See ECF No. 2 at 4. Plaintiffs, however, lack standing to challenge the assignment of the Note to
US Bank National Association. See Danso v. Ocwen Loan Servicing, LLC, 2016 WL 4437653,
*4 (D. Md. Aug. 23. 2016) (holding when a plaintiff is not a party to the assignment, nor an
intended beneficiary, a plaintiff cannot challenge the validity of the assignment). Accordingly,
Plaintiffs lack standing to set forth this claim, and the Court will not consider the merits of their
argument. See id.
7. Alleged Violation of the Real Estate Settlement Procedures Act
Lastly, Plaintiffs allege that Defendants failed to respond to a QWR in violation of
RESPA. In the Complaint, Plaintiffs allege that they “requested the proof and even sent a
Qualified Written Request, as allowed under the Real Estate Protection Act [sic], to Defendants
[sic] Wells Fargo Bank, N.A. who has refused to provide proof thereof and to answer
Plaintiff(s)’ [sic] questions.” ECF No. 2 at 5. It is impossible to discern, without more, what
proof the Plaintiffs sought from Defendants, or even what specific written request they are
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referring to. The Complaint does not contain any factual support to demonstrate how this alleged
QWR meets RESPA’s definition of a QWR. Accordingly, the Complaint fails to adequately
plead any cause of action under RESPA. See McCray v. Bank of America Corp., 2015 WL
3487750, at *8 (D. Md. June 1, 2015).
IV.

Defendant Shapiro Brown & Alt, LLP’s Motion for Extension of Time
Originally having failed to file a timely response to Plaintiffs’ Complaint, Defendant

Shapiro filed a Motion to Accept Late Response to Complaint, with an accompanying Motion to
Dismiss, on November 18, 2016. ECF No. 18. For good cause having been shown, the Court
will grant both the Motion for Extension of Time and the Motion to Dismiss.
V.

Conclusion
To the fullest extent that the Court is able to liberally construe the Complaint, Plaintiffs

have failed to adequately plead any cause of action. See Taylor v. United Food and Commercial
Workers, Local 400, 2014 WL 4467836, at *2 (D. Md. Sept. 8, 2014) (“Although Plaintiff[s]
[are] proceeding pro se and [their] complaint is to be construed liberally, this does not absolve
Plaintiff[s] of [their obligation to plead a plausible claim.”) (citations omitted). Accordingly, the
Complaint [ECF No. 2] will be dismissed in its entirety, and Defendants’ Motions to Dismiss
[ECF Nos. 11 and 18-1] will be granted. A separate Order will follow.

Date: August 21, 2017

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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