Hasan v. Ocwen Loan Servicing, LLC

Filing 16

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 7/26/2017. (c/m 7/26/2017 chambers) (tds, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MALINA M. HASAN, pro se
Plaintiff
v.
OCWEN LOAN SERVICING, LLC
Defendant

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Civil No. PJM 16-3598

MEMORANDUM OPINION
Pro se Plaintiff Malina M. Hasan brings this action against Defendant Ocwen Loan
Servicing, LLC (“Ocwen”) to quiet title in her favor on a residential property at 15001 Jorrick
Court in Bowie, Maryland.
Ocwen has filed a Motion to Dismiss the Complaint, ECF No. 6. Hasan has filed a
Motion to Strike, ECF No. 10, and a Motion for Summary Judgment, Motion for Sanction, and
Motion to Dismiss for Violation of the Automatic Stay (“Motion for Summary Judgment”). ECF
No. 11. For the Reasons that follow, the Court GRANTS Ocwen’s Motion to Dismiss and
DENIES Hasan’s Motion to Strike. Hasan’s Motion for Summary Judgment, for Sanctions, and
to Dismiss is MOOT.
I.

Factual and Procedural Background

The Complaint alleges very few facts. Hasan avers that she is the owner of real property
at 15001 Jorrick Court Bowie, Maryland (“the Property”). ECF No. 2 at 1. But while it is not
specifically alleged in the Complaint, at some point Hasan presumably took out a mortgage to
purchase the Property, which is currently being serviced by Ocwen.

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Hasan alleges that Ocwen or parties with which Ocwen is joined in interest, transgressed
four laws with respect to the origination of her mortgage. First, she avers that the deed of trust
was by definition invalid because the loan had a term of thirty years and financial institutions
cannot enter mortgage agreements that last more than five years. ECF No. 2 at 2. Next, she
alleges that the originator of the loan violated the Truth in Lending Act (“TILA”), because it
omitted certain (unspecified) required disclosures. She also asserts her right to rescind the
mortgage under TILA. Id. Further, Hasan argues that the loan was fraudulent because, as
borrower, she did not have the same information as the bank, hence there was no “meeting of the
minds” required to establish a contract. Id. Finally, she argues that certain mortgage documents
violated the Statute of Frauds because both parties did not sign them. Id.
It is not clear from the Complaint whether the Property is currently in foreclosure. The
Complaint also does not specify when or how Ocwen obtained the right to service the loan or
who, in fact, originated it.
Hasan originally filed her Complaint against Ocwen to quiet title in the Circuit Court for
Prince George’s County on September 2, 2016. ECF No. 2. The case was removed to this Court
on October 30, 2016.
In this Court, on November 4, 2016, Ocwen filed a Motion to Dismiss Hasan’s
Complaint (“Motion to Dismiss”). ECF No. 6. Hasan subsequently filed a Motion to Strike
Ocwen’s Motion to Dismiss (“Motion to Strike”), ECF No. 10, to which Ocwen timely
responded. ECF No. 13.
On December 9, 2016, Hasan added a Motion for Summary Judgment, Motion for
Sanctions, and Motion to Dismiss for Violation of the Automatic Stay (“Motion for Summary
Judgment”), ECF No. 11, all of which Ocwen opposed. ECF No. 14.

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Hasan notified the Court on December 13, 2016 that she had filed for Chapter 13
bankruptcy protection. ECF No. 12. But Ocwen notified the Court on March 30, 2017 that the
bankruptcy case had been dismissed. ECF No. 15.
II.

Hasan’s Motion to Strike

The Court begins with Hasan’s Motion to Strike the Motion to Dismiss.
She argues that Ocwen’s Motion to Dismiss should be stricken “until [Ocwen is] able to
prove no fraud has taken place or any violations or misconduct.” ECF No. 10 at 1. Hasan clearly
misunderstands the purpose of a Motion to Strike. Pursuant to Fed. R. Civ. P. 12(f) “the court
may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Ocwen’s Motion to Dismiss falls into none of those categories. Moreover, a
Motion to Dismiss is not a pleading and cannot be stricken pursuant to Fed. R. Civ. P. 12(f). See
Fed. R. Civ. P. 7(a) (listing types of pleadings). 1
The Court DENIES the Motion to Strike, but will take note of its contents insofar as it
contains arguments in opposition to Ocwen’s Motion to Dismiss.
III.

Ocwen’s Motion to Dismiss

In order to survive a Motion to Dismiss, a plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). Bare legal conclusions are not entitled to the assumption of truth and are insufficient to
state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Fed R. Civ P. 9(b) provides that in

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The Motion to Strike is also evidence of Hasan’s broader lack of understanding as to who has the burden of proof
in this case. She writes “Defendant as well as it's Attorneys and the Trustees has yet to adhere to the following
Maryland Real Property Code and to prove Beyond a Shadow of a Doubt that these actions did not occur, until such
time no sale can be ratified do to fraud, and TILA violations.” ECF No. 10 at 3. In fact, in a quiet title action, as is
true in all civil actions, it is the plaintiff, here Hasan, who carries the burden to prove her case by a preponderance of
the evidence. Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014).

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alleging a fraud, a plaintiff “must state with particularity the circumstances constituting fraud or
mistake,” meaning that they must allege “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.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir.
1999) (quoting 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure:
Civil § 1297, at 590 (2d ed. 1990)).
Hasan’s action is to quiet title to the Property, which in Maryland “cannot, as a general
rule, be maintained without clear proof of both possession and legal title in the plaintiff.” Anand
v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014) (quoting Stewart v. May, 111
Md. 162, 73 A. 460, 463–64 (1909)). The plaintiff bears the burden of demonstrating that she has
both possession and legal title. Id.
Although the Complaint avers few facts, Hasan’s argument appears to be that at the time
of the origination of the mortgage in 2005, no lien attached to the Property for four reasons: (1)
mortgage loans with terms of more than five years are per se illegal, (2) the mortgage originator
violated TILA, (3) the mortgage originator committed a fraud that resulted in Hasan not
understanding the terms of her loan, and (4) the promissory note did not conform to the Statute
of Frauds. In consequence, Hasan argues, she has clear legal title to her property and is entitled
to prevail in a quiet title action.
None of these arguments are availing. It is not clear on what authority Hasan bases her
claim that mortgages with a thirty-year term are “by operation of law . . . Fraudulent.” ECF No. 2
at 2. In fact, thirty-year mortgages have been the norm in housing finance since the 1950s. See
Adam J. Levitin (FNa1) & Susan M. Wachter, The Public Option in Housing Finance, 46 U.C.

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Davis L. Rev. 1111, 1146 (2013). As a matter of law, this argument is rejected.
Hasan’s claims with respect to TILA violations and fraud fail because she alleges no facts
at all about the circumstances of the mortgage origination. She does not set forth when and
where she signed the promissory note and deed of trust nor with which financial institution. She
does not recount whether any loan officer was present for the settlement, what disclosures and
representations they made (or did not make), and what she understood to be the terms of her
loan. She also does not describe her reliance on those representations by the bank or what
damages she suffered as a result of her reliance. But one reality disposes of the whole matter.
The statute of limitations on TILA claims is three years, 15 U.S.C § 1635, which had clearly
lapsed before Hasan filed this suit in 2016. The TILA claim is, quite simply, groundless.
With respect to her claim pertaining to the Statute of Frauds, Hasan does not allege in the
body of her Complaints any supportive facts at all, but merely attaches what is apparently the last
page of the promissory note,2 which has the following notation:
Without Recourse Pay to the Order of:
____________________________________________
GreenPoint Mortgage Funding, Inc.
followed by the signature and name of the Vice President of GreenPoint Mortgage Funding. ECF
No. 2-1 at 2.Hasan avers that the blank line is evidence that her promissory note was never

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The Court may consider documents attached to a complaint or motion to dismiss “so long as they are integral to the
complaint and authentic.” Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014) (quoting Philips
v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir.2009). Though the Defendants do not contest the authenticity of
the document Hasan attached to her Complaint, the Court notes that Hasan only provides what the Court presumes
to be the last page of the promissory note, which contains only the indorsement described supra. The Court is wary
of drawing any conclusions based on one page extracted from a larger document.

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countersigned and, as a result, violates the Statute of Frauds.
In fact, this type of notation is commonly used in commercial paper. Rather than
invalidating it, this notation signifies that the Promissory Note has been indorsed in blank, which
means that the instrument “becomes payable to bearer and may be negotiated by transfer of
possession alone until specially indorsed.” Md. Code Ann., Com. Law § 3-205. Without further
factual allegations, or indeed, a copy of the full promissory note demonstrating that it was not
signed, Hasan’s argument that the promissory note violated the Statute of Frauds is fatally
hollow.3
In short, in her Complaint Hasan offers no “more than labels and conclusions.” Soft Stuff
Distribs., Inc. v. Ryder Truck Rental, Inc., Civil No. CCB-11-2605, 2012 U.S. Dist. LEXIS
105681, 2012 WL 3111679 at *3 (D. Md. Jul. 30, 2012). Absent even a modicum of facts, none
of Hasan’s theories that her Property is unencumbered by a lien is meritorious and dismissal is
entirely in order.
Furthermore, the dismissal will be with prejudice. A district court may dismiss a
complaint with prejudice when “it is clear that amendment would be futile in light of the
fundamental deficiencies in plaintiffs' theory of liability. “ Cozzarelli v. Inspire Pharm. Inc., 549
F.3d 618, 630 (4th Cir. 2008). That is unquestionably the case here.
Hasan’s arguments that the thirty year term of the loan invalidated her mortgage lien and

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The deed of trust, which Ocwen attached to its Motion to Dismiss, also belies any argument that the transaction
violates the Statute of Frauds. Pursuant to the Maryland Statute of Frauds, “[n]o corporeal estate, leasehold or
freehold, or incorporeal interest in land may be assigned, granted, or surrendered, unless it is in writing signed by the
party assigning, granting, or surrendering it, or his agent lawfully authorized by writing, or by act and operation of
law. Md. Code Ann., Real Prop. § 5-103 (West). In this case, Hasan was the party surrendering an interest. She does
not dispute that her initials appear on every page of the deed of trust and her signature appears at the end of the
document. ECF No. 6-1.

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that the mortgage document violated the Statute of Frauds are invalid as a matter of law.
Amendment of her Complaint with respect to those theories would thus be futile.
Her claims as to the alleged TILA violation are time-barred because the Deed of Trust
was signed in 2005 and the statute of limitations for a rescission pursuant to TILA ran from that
year, even assuming, as Hasan alleges, that the mortgage originator failed to make required
disclosures. 15 U.S.C. § 1635 (“An obligor's right of rescission shall expire three years after the
date of consummation of the transaction or upon the sale of the property, whichever occurs
first…). Similarly limitations as to common law fraud under Maryland law also ran after three
years. Branch v. Bank of Am., N.A., No. CIV. PWG-11-3712, 2013 WL 6815903, at *2 (D. Md.
Dec. 19, 2013) (quoting United States v. Allen–Williams, No. JFM–11–1001, 2011 WL 4985817,
at *4 (D. Md. Oct. 19, 2011)). Since Hasan’s suit was filed in 2016, it came well beyond the
limitations period for her TILA and common law fraud claims.
With all avenues through which Hasan might at one time have attacked the lien on the
Property closed, it is impossible for her to state a valid claim that she has clear legal title to the
Property. Her cause of action has been extinguished and cannot be revived.
IV. Conclusion
For the foregoing reasons:
Hasan’s Motion to Strike Ocwen’s Motion to Dismiss, ECF No. 10, is DENIED;
Ocwen’s Motion to Dismiss, ECF No. 6, is GRANTED WITH PREJUDICE;
Hasan’s Motion for Summary Judgment, Motion for Sanctions, and Motion to Dismiss,
or Violation of Automatic Stay, ECF No. 11, is MOOT;

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A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
July 26, 2017

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