English v. Ryland Mortgage Company et al
Filing
32
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/11/2017. (kns, Deputy Clerk)(c/m 8/11/17)
FILED
C!ST~:CT cr!-,~T
IN THE UNI fED STATES DISTRICT C(ttVKf:ICT Cf !,!,nYLA;:)
I
~.
•
__
1I S
FOR THE DISTRICT OF MARYLAND
SOlltl1el'll Dh';.\';oll
ZOll
*
DERRICK ENGLISH
CLE"''''
,..::'
*
p
ill
lj: III
• -;-'~-
--
.
\)~
"I ,.,.,
.
. ,----.
.v
Plaintiff,
*
v.
1
Case No.: G.III-16.3675
*
RYLAND MORTGAGE COMPANY, et 1//.,
*
Defendants.
*
*
*
*
*
*
*
*
*
*
*
*
*
*
MEMORANDUM OPINION
brings this pro .Ie action against Defendants
Plaintiff Derrick English C'Plaintilr)
Mortgagc
Company
("Ryland"):
U,S, Bank National Association.
Ryland
as Trustee for the Iioiders of
thc GSAA Ilomc Equity Trust 2007.1 (..U.S. Bank"). Wells Fargo Bank. National Association
("'Wells Fargo"). and Mortgage
Sachs Mortgagc
Defendants"):
violations
1
Registration
and GS Mortgage
and "Docs J through
Securities
100." asscrting
of the Truth in Lending Act ("TILA").
Settlcment
loan.
Company
Electronic
Procedurcs
Act ("RESPA").
The Court previously
12 U.S.c.
denicd Plaintiffs
Systems.
Corp. (collectively.
J
3. Dcfendants
the Goldman
"Goldman
of state law claims and allcged
*
1601 1.'1
self.. and the Real Estate
J5U.S.C.
*
26011.'1 self.. relating to Plaintitrs
Motion for a Tcmporary
U.S. Bank. Wells Fargo. and MERS's
Defendants'
Goldman
a multitude
Nos. 20 and 21. Now pending before thc Court is Defcndant
No.
Inc. ("MERS"):
Ryland's
Restraining
mortgagc
Order. ECF
Motion to Dismiss. ECF
Motion to Dismiss. ECF No. 16. and
Motion to Dismiss. ECl' No. 17. A hearing is unnecessary.
SCI.' I.ocal
Rule J05.6 (D. Md.). For the li)lIowing reasons. the Motions to Dismiss are granted.
I
The suit was inilially tiled in the Circuit Court for Prince George's Coullty. Maryland on October 3. 2()[6. ECF
NO.2. Defendants removed the action to this COlirt on November 9.
:W 16. ECF No. I.
I.
BACKGROUND
Thc Court dcrivcs thc fiJllowing 1~lCtsIi'om Plaintiffs
Complaint.
land rccords and court rccords. of \\hich thc Court takcs judicialnoticc'"
ITF NO.2. and public
D. 2006.
On Scptcmbcr
Plaintift: as Borrowcr. cxccutcd a Dccd of Trust and obtaincd a $263.950.00
mortgagc loan (..thc
Loan") secured by thc propcrty locatcd at 12234 Opcn Vicw Lanc. #803. Upper Marlboro.
Maryland 20774 (..thc Propcrty"").
S""
ECF No. 21i 29: lOCI' No.3-I."' Thc Dccd ofTrustnamcd
Dclendant
Ryland as Lcnder and Dctendant
MERS as "nomincc
I(l!' Lcnder and Lcndcr's
succcssors
and assigns" and thc bcncliciary
undcr thc Dccd of Trust. lOCI' NO.3-I at 1-2.Thc
Dccd of Trust includcs a provision stating that I(lr purposes of"rcpaymcnt
"pcrlorInancc
of Borrowcr's
Notc:' "Borrowcr
Propcrtyl:'
covcnants and agrccmcnts
irrevocably
ofthc Loan" and thc
undcr this Sccurity Instrumcnt and thc
grants and convcys to Trustccs. in trust. with powcr of sale 101'thc
ECF No. 3-1 at 3.
Whcn Plaintiff c10scd on thc Propcrty ... the original Icndcr:' prcsumably
allcgedly "signcd 'IPSA IPooling and Scrvicing Agrccmcnt]
mortgagc notc:' lOCI' NO.2
'i 21.
Ryland subscqucntly
loans dcscribcd in thc Complaint
that govcrncd plaintiffs
S""
as "TRUST 2007-1 Trust:'
S"" iii. 'i 39. On Scptcmbcr
The COlin
S"" ECF
may consult these documents
the dismissal
ofa
National Association
without
No. 16-3 at 2.
converting
.Judgment. .\"1.'<.'511!(')' (!/.\'/all! For lJ!..
ami the .Hor/gage: Electronic Regis/ratiull
.~\"."elll.
7& lJ. Cill. L. Rev. 1359, 1367 (2010)).
2d 642. 647 (E. D. Va. May 13. 20 I 0) (.. !A I dced of trust continucs
and nothing in thc ...
sccuritization
(4th Cir. 2(11) (pCI' curiam).
Plaintifrs
nullifics
argument
the assignmcnt
rclies upon a rcpeatedly
theory" and "show me the notc"-type
plaintifr
s challenge
whcrc plaintiff argued that Bank of Amcrica's
thc Notc and Dccd of Trust had bccn scparatcd):
WL 3778685,
cntitlcment
valid). Plaintilrs
claim that DelCndants'
based on this thcory is thcrcfore
any ofthc
'0. DKC -13-
that dclCndants
must
Household Fil/(lI1('(' Co/'p.. R WT-14-606.
that ..thcrc is no rccognizable
documcnts"
in ordcr for a mortgagc
claim"
to bc
not Icgally cognizable.
that hc was a party to thc originalPSA
of the Dccd of Trust. PlaintifTthcrcforc
PSA or assi1!nmcnts.
••...
14.36 (2012) (noting that Maryland
bcncficiarics
contcntion
bccausc
right to foreclosc on the Propcrty is invalid or wrongful
Plaintiff has madc no allcgations
assignments
validitv~ofthc
'wct ink' signaturc
to Illrcclosc
to thc propcrty was defectivc
at *2 (I). Md . .Iu1.18, 2(14) (cxplaining
must "produce
See. e.g..
2015 WL 1085707. at *5-6 (I). Md.
at *4 (D. Md . .Iu1.29. 2(14) (rcjecting
that a mortgagor
argumcnts.
.Iolles \'. Balik oj'N. l'. ,\fellol7.
I'.
Notc
Courts in thisjurisdiction
to Bank of Amcrica' s authority
produce original note to cnforce thc notc): Ha/'/'is
Morcovcr.
in
thc Decd of Trust Ii'om thc original Promissory
)'. /Jallk o(AII/ .. "'-A .. Civ. No. TDC-14-2688.
2014 WL 3571981.
rejected Iegalthcory
of the Dccd of Trust is equally unconvincing.
Mar. 10. 2015 ) (dismissing
3005.2014
a{l"d. 442 F.App 'x. 816
of the Loan rcndcrs thc Deed of Trust invalid.
that separating
have rejcctcd this "separation
Qualllehll/II//
of a notc rendcrs it unsccurcd:').
PlaintifTthus
alleging that thc sccuritization
to securc thc holdcr of a notc
has no standing
or to
to challengc
IlO IV. Fare/Ie SI.. 1.1.1.1' \'. ,\faro/' o(Ballill/o/'e,
.
.
.
thc
426 Md.
law pcrmits only partics to a contract and third-party
to bring suit to cnfi.ll'cc the tcrms 01''1 contract):
1621. 2016 WL 1045959. at *2 (D. Md. Mar. 16,2(16)
7
Bell \'. Clo/'ke. No. CV TDC-15-
(stating that "mortgagors
gcncrally
lack
standing to attack transrers or their mortgages
not parties."}
Defendants
Finally. Plaintiff makes no allegations
are or were involved
address MERS' arguments
loreclose
through assignments
in the foreclosure
and PSAs to which they are
in the Complaint
that the Goldman
orthe Property. Plaintirr lilrther nlils to
that it is not a party to the f()reclosure action. and is not attempting
on the Property. Accordingly.
Count One for I.ack or Standing/Wrongfid
to
Foreclosure
is dismissed.
B. Fraud Claims
In Count Two. Plaintiff allegcs that Defcndants
committed
.. rraud in the concealment"
"conceal[ingj
the fact that the Loans were securitized
Agreements."'
ECF NO.1 ~ 76. In Count Three. Plaintiff alleges that Delendants
"fhlud in the inducement"
by "intentionally
entitled to exercise the power orsale
by
as well as the terms or the Securitization
misrepresent[ingl
provision contained
to PlaintilTthose
committed
Defendants
in the MortgagelDeed
were
or Trust." Id ~
85.
To state a claim lor fraudulent
that "(I) the delendant
concealment
under Maryland law. plaintifTmust
owed a duty to the plaintilTto
failed to disclose that ract: (3) the defendant
disclose a material ract: (1) the delCndant
intended to delhllld or deceive the plaintirr: (4) the
plaintiff took action in justi liable reliance on the concealment:
damages as a result of the defendant's
concealmcnt."
made a false statement
known to the defendant
truth: (3) that the misrepresentation
the plaintiffrclied
a plaintifT must allege "( I ) that the
of material fact to the plaintifI
or that the representation
and (5) the plainti 1'1' sutkred
Greeo \'. II & R Wock. loc.. 355 Md. -188.
525 (1999). To state a claim lin' fraud in the inducement.
defendant
(2) that its fillsity was cithcr
was made with reckless indiflerence
was made f()J'the purpose of defrauding
on the misreprescntation
allege
as to its
the plaintirf: (4) that
and had the right to rcly on it: and (5) that the
8
plaintiff suffered compensable injury resulting Irom the misrepresentation'"
Shenrill-JI'illial1ls
Carroll
Co .. 848 F, Supp. 2d 557. 566 (D. Md, 2012) (citing VFC()/i'.
('0.
".
". Wrexll£llll
A "ialioll Corp .. 350 Md. 693 (rvld. 1998)).
Under Rule 9(b) of the Federal Rules of Civil Procedure. claims sounding inlhllld must
be pled with particularity. Rule 9(b) requires a plaintiff alleging fraud to make spccilic
allcgations regarding ..the time. placc. and contents of the I~llscrepresentations. as wcll as the
identity of the person making the misrepresentation. and what Iwasl obtained thereby'" Kerhy ".
Morlgage
FUlldillg COli'" 992 F.Supp. 787. 799 (0, Md, 1998): see also U.S. ex rei. Wilsoll ".
Kellogg BrowlI & ROOI, 111(' 525 F,3d 370. 379 (4th Cir. 2(08) (describing the "who. what.
..
when. where. and how of the IraLldclaim). "Failure to comply with the pleading requirements of
Rule 9(b) is treated as a I~lilureto state a claim under Rule 12(b)(6)'" Nal'l Mong.
HC ". hikeriolis.
Warehol/\e,
201 F. Supp. 2d 499. 504 (D, Md, 20(2).
Here. I'laintitrs
boilerplate Complaint and conclusory allegations do notmcet the
heightencd standard of Rule 9(b). as he does not include the timc. place. idcntity orthc person
making thc misrepresentation. or what was obtained thereby, Plaintifr I~lilsto plead
particularizcd l~lctSin support or his claims that the Dcfendants li'audulently concealed the I~lctor
securitization or fraudulently induced him to enter into the I.oan, See SOl1larriha \'. Greellpoilll
Morlg
FUlldillg, 111(' No, 13-CV -072-R \VT. 2013 WI. 5308286. at *4 (D, Md, Sept. 19. 2013)
..
(dismissing Ihllld claims in ncarly idcntical complaint where plaintilThomeowners
"liled to
plead the time. place. contents of any raise representations. or identities or the wrongdoers).
PlaintilTalso refers to the Defendants collectivcly throughout the Complaint. making it
impossible to discern which Defendant may be liable for which omission or misrepresentation,
See 1'00rdi \'. COlllll1:nride Balik.
'0,
CV I'X 16-1201. 2016 \VI. 5815884. at *6 (D. Md. Oct. 4.
9
2016) (dismissing
mortgagors
Iraudulent
concealment
lumped defendants
and IraLld in the inducement
claims where plaintirr
into one group). For this reason alone. Plaintitrs
fi'aud claims arc
subjcct to dismissal.
Even irthe Court allowed
Plaintiff 10 elaborate
claims would still Illil. As the Court explained
securitization.
scparation
on these deficientlraud
supra. Plaintin-s
claims. such
theorics regarding
of the Notc and Dced of Trust. and Defendants'
loan
resulting
standing to
I(Jreclose are without merit. leaving Plaintiff without a leg to stand on in his Ihuld claims.
Furthermore.
the statute of limitations
I(Jr a civil action under Maryland
the date it accrues unless another provision
law is ..thrce ycars li'om
of the Code provides a different
period or time within
which an action shall be commenced:'
Md. Code. Cts. & .Iud. Proc. ~ 5-10 I. Plaintifr has not
alleged that he was unable to discover
the purported
Deed or Trust and obtaining
viable argument
regarding
the mortgage
Loan in September
the IraLld was discovered.
diligcnee.").
Accordingly.
claims are also time-barred.
01'2006. nor docs he make any
rclying on the lraudulent
or how the fraud kcpt plaintiff in ignorance
and why there was a delay in discovering
in addition
to the deficiencies
eoneealmcnt
must also
ora cause or action. how
the Iraud. despite plaintitrs
under Rules 9(b). Plaintin-s
rraud
Parker \'. Alii. Brokers Conduit. 179 F. Supp. 3d 509. 518 (D. Md.
2016) ("even iI' Plainti ITcould theoretically
inl(JrIlJation that was witbheld
be time-barred").
the
tolling. See Doe \'. Archdiocese o(lJ'ash .. 689 A.2d 634. 643 (Md. Ct.
Spec. App. 1(97) (noting that ..the complaint
contain specific allegations
Irmld within three years or executing
cobble together a justiciable
at the time or the loan transaction.
Counts Two and Three arc dismissed.
10
li'aud claim based on
such a claim would presumably
C. Intentional
Infliction
of Emotiollal
Distress
In Count Four. English allcgcs that Delcndants'
loss of the Property:'
misrcprescnted
provision"
'i~
and that Delcndants
actions hm-c ..thrcatcncd
"intcntionally.
to thc Plaintiff Ithat] those Delcndants
knowingly and recklessly
wcre entitled to excreise the power of sale
with the "specific intent of intlieting cmotional distrcss on the Plaintiff:'
93. 95. 97. PlaintilTthcreforc
asscrts a claim for intcntional
To state a claim for intcntional
allege that: ,,( I) the delcndant's
and outrageous:
intliction ofcmotional
distress ("liED")
10. 19 (1999). Accordingly.
PlaintilTmust
conduct was intentional or reckless: (2) the conduct was extrcme
(3) thcrc was a causal eonncetion
566 (1977). In Maryland.
ECF No, 2
intliction of emotional distrcss,
betwcen thc wrongful conduct and the
cmotional distress: and (4) that the cmotional distress was severe:'llal'l'is
an liED claim is "rarcly \'iable:'
WL 865359. at * 10 (I), Md. Mar. 7.2(16)
", .Jolles. 281 Md,56().
BOl'chers \', I ":rchllk.
an liED claim is subjcct to a heightcned
clement of the claim must be "pled with specificity:'
3767.2016
[himl with the
Washillg/oll
126 Md. i\pp.
pleading standard. and cach
r, ,\{a,l'lIal'd. No, CV GLR-13-
(citing Bag\l'c{{ \', I'ellills/ll" Reg'{ Met!.
01' .. 665 A.2d 297. 319 (Md, C1. Spec. App. 1995)),
English lalls far short ofthc requircments
detail the "extreme and outrageous"
for pleading anilED
conduct by Dclcndants.
would rise to thc levcl of severc cmotional distress:'
P.lM 13-0733.2014
claim, English I~lils to
and I~li s to plead Illcts that "i f true.
I
Simmolls
\', Balik o{Am ..
WL 509386. at *5 (D, Md, Feb, 6. 2(14) (dismissing
.v,A ..
liED claim in
foreclosure
context), While Plaintiff baldly asserts that he has suffcred "slecpless
depression.
lack of appetite. and loss of productivity:'
showing that Delcndants'
degree of probability
attemptcd
that emotional
ECF
No. CIV,
nights. sevcre
0, 2 '1101. he olkrs no allegations
I()reclosure was conducted
in "deliberate
disregard ofa high
distrcss would 1()1I0",:' or that such conduct went "bcyond
II
all possiblc
bounds of decency:'
281 Md. at 6 II (1977): see lI/so ASllfil-Ad;ei
HlIrris.
Sm'illf!,s ;\Iortf!,lIf!,e Corp .. No. RWT-09-2184.
(noting that thc Court "cannot
would SUPPOI1 an infercncc
imaginc
1I11)'
\', First
2010 WI. 730365. at *5 (D. Md. Fcb. 25. 2010)
sct of facts surrounding
of cxtrcmc and outragcous
conduct:').
a mortgagc
Plaintitrs
transaction
allcgations
that
do not
state an liED claim. Count Four is dismisscd.
D. Shinder of Title
In Count Fivc. Plaintiff claims that Dcfendants
title by and through the prcparing.
posting. publishing.
otice of Default. Noticc ofTrustcc's
allcgcs that DclCndants
Salc. and Trustcc's
and dclivery of said documcnts.
In an action for slander of title. or injurious
with mal icc, publishcd
Additionally.
substantial
damagc:'
I'.
of such documcnts
as thc
Dccd. ECF No. 2 ~ 104. Plaintiff
Dcfendants
wcre improper
in that
had no right. title. or
fliischood. plaintifTmust
"establish
"matcrially
1<.11' spccial damagcs
"the plaintitTmust
that the
elY . .IFM-08-351 I. 2012 WI. 94569. at * 10 (D. Md . .Ian. 1 I.
HlIl'l~l', 36 Md. App. 419 (Md. 1977)). Slandcr oftitlc
claim. but diners
and thc neccssity
valid
a known falsity to a third party that causcd spccial damagcs:'
Gihho/lS \'. BlIllk of A 1/1. Corp .. No.
a deflllnation
and recording"
cxclusivc
Id. '1105.
interest in thc Property:'
2012) (citing Homing
Plaintiffs
"kncw or should havc known that such documents
at the time of thc cxccution
dcfendant.
"disparagcd
in thc greatcr burdcn ofproofrcsting
in all cascs:'
Belllle \'. ;\I(,,\/II//ell
provc in all cascs that thc publication
is thus similar to
on thc plaintifl:
265 Md. 585. 608 (1972).
played a matcrial and
part in inducing othcrs not to dcal with him. and that as a rcsult hc suflercd spccial
!d
In English's
case. hc cannot plausibly allegc that Defendants
because thc Dccd of Trust cxpressly
authorizcs
publishcd
a "known
tliisity:'
thc powcr of sale bascd upon thc rcpaymcnt
12
(or
non-repayment)
of PlaintifTs
Loan. see ECF NO.3-I
that he was current on his payments.s
Complaint
Supp. 3d 509. 519 (D. Md. 2016) (dismissing
authorized
fiJreciosure and Plaintiffncvcr
SillllllOIlS
1'.
everything
the right to forcclose
Forcclosurc
...
"special damagc"
"expcnscs"
Plaintiff
paymcnts
were in arrcars):
WL 509386. at *5 (D. Md. Fch. 6.
is thc Illct that the Deed of Trust givcs thc mortgagcc
fails to idcntify which Dcfcndants
or
crcatcd or publishcd
played "a matcrial and suhstantial
thc allegcd
part" in causing
to Plaintiff. See SOlllarri!Ja \'. (1reenpoinl Mortg. Fllnding. InL'.. No. 13-CY-
2013 WL 5308286.
at *5-6 (D. Md. Scpt. 1').2013)
fllilcd to plead more than bare allegations).
(dismissing
slandcr of title claim
Whilc PlaintilTvagucly
that he incurrcd "in order to clear title:' along \\'ith myriad cmotional
not allegc surticient
publications
his mortgage
on thc Property. As a result. any Notice of Default or Notice of
flllsity. or allege how such publication
whcrc plaintiff
Alii. Brokers COlldllil. 17') F.
slander of title claim where Deed expressly
disputed
c1sc ...
1'.
could hardly be falsc.").
Morcovcr.
on-R WT.
See Parker
Balik of A 111 NA .. Civ. No. P.lM 13-0733.2014
..
2014) ("'Dominating
assignee
at 3. and Plaintiff did not allege in his
fllctual content Irom whieh the Court ean plausihly
eauscd him damages
the conduct of third persons:'
Md. 621. 663 (2015) (defining
whieh "rcsult in a pecuniary
ROllnd,. 1'. MmJ'land-Nal.
"spccial damages").
rcfercnces
harms. hc docs
inkr that Defendants'
loss directly or immediatcly
Capilal Park
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