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<!.ti..'l/ct'\'. TrimM/!
reviewing

21.

ECF No. 16-2 at 2. On January 13. 2013. Bank of Amcrica assigncd

thc Dccd of Trust to U.S. Bank.

.::!

particular

sold thc Loan to a sccuritizcd pool of

2011. MERS assigncd its intcrcst in thc Dccd of Trust to Bank ofAmcrica.
("Bank of Amcrica "").

Ryland.

complaint

the ~,1otillll w Dismiss

into on\:

fiJI"

Summary

!.It!.. 484 F.3d 700, 705 Hlh Cir. 20(7) r-In
we Illay properly take judicialnotict'
of matters or

.V(/\'i.~(l1irJl1

lindeI' Rule 12(h)(6).

Colonial Penn Ins. Co. \', Coil. 887 F.2d 1236. 1239 (4th Cir. 19K9) (noting that .. the most frequent
usc ofjudkitllnotice
ofasccrtainahle
facts is in noticin!!. the content OfCOUl1 records.") (inh:rnal t'itatiollS omith:d).
:. Curi~usly. PlaintilThas attached 10 the Complaint only pages 1-3 and 14-15 (of 15) orlhe Dced ofT1'l1sl. lliniiting
a majority or the contractual provisions emhodied in the Deed of Trust. ."(,l' ECF No, ).1 at 1-5.
puhlic

record:'):

2

On July II. 201-1. following the apparent del;lult of the Loan. the Substitute Trustees
initiated a loredosure
Prince George's
Foreclosure

action against English. Scc /Jill. ". I:'nglish. CAEF14-17893

Cty. July II. 20I-l).~ The Circuit Court denied English's

Sale on March 9. 2015. Dk. 019. and also denied English's

February 16. 2016. Dk. 030. English Iilecl a line suggesting
which automatically

Mol'/g.

('0 ..

bankruptcy on February 3. 2016.

and the matter remains active. Sec Dk. 0-10.

English Iiled a Complaint
1(1)'

Motion to Dismiss on

Dk. 032. The most recent docket entry in the !()reclosure action was

entered on February 17.2017.

the Circuit Court

Motion to Stay

stayed the I(lreclosure action. Sce Dk. 031. The bankruptcy stay \\as lilied

n. 2016.

on September

(Cir. C1.

to quiet title against the Substitute Trustees and Detendants

Prince George's

in

County. Maryland on October 3. 2016.l:'nglish ". Ryland

CAE 16-38008 (Cir. C1. Prince George's

Cty. October 3. 2016)5 Defendants

removed the action to this Court on November 9. 2016. Scc lOCI' No. I. In the Complaint under
review. Plaimiff English alleges ten counts against Delendants:
Foreclose. (2) Fraud in the Concealment.
of Emotional

(I) Lack of Standing to

(3) Fraud in the Inducement.

(4) Intentionallntliction

Distress. (5) Quiet Title. (6) Slander of 'I'it Ie. (7) Declaratory

of the Truth in Lending Act ("TILA").
Act ("RESPJ\").

and (10) Rescission.

injunctive and declaratorv
..

Rclief. (8) Violations

(9) Violations of the Real Estate Settlement

Procedures

lOCI' '0.2 at I. Plaintiff seeks damages. restitution.

rclief. Motions to Dismiss have been Iiled lw Detendants
..

Rvland. sce

ECF No. 13. U.S. Bank. Wells Fargo. and MERS. scc lOCI' No. 16. and the Goldman
Delcndants.

sec ECF No. 17. Plaintiff liled an Opposition

to the Motions. lOCI' No. 26. Ila\'ing

-1The

Substitute Trustees in this matter are named as Buonassissi. Ilcrlllin~.Lash. PC. As of I\U!!lIst 4. 2017. the
fon:closurc action was still in active status. See
"....
http://cascscarch.courts.statc.md.us/casescarch/inquiry
Detail.jis'?cascld=CA EF 1417893& loc=65&detaill.oc= I)(j V

(last visited August 4. 2017). Docket entries in the Circuit COlll1 case arc denoted herein as "[)k:"
~ Plaintiffs Complaint. ECF NO.2. is stamped as received on October 7.1016.

,

.'

reviewed the parties' briels. the appropriate records. and relevant authorities. the Court no\\"
grants the Motions to Dismiss."
II.

STANDARD OF REVIEW
Defendants may "test the adequacy of a complaint by way of a motion to dismiss under

Rule 12(b)(6):'Prelich

\', ,\led Res, Il1c.. 813 F. Supp. 2d 654. 660 (D, Md, 2(11) (citing

<iel'll/{111\', Fox. 267 F. IIpp'x 231.233 (4th Cir. 2(08)), Motions to dismiss for lililure to state a
claim do "not resolve contests surrounding the lilets. the merits of a claim. or the applicability of
defenses." Prelich. 813 F. Supp, 2d at 660 (citing Ed,,'ard,

\', ('il)' oI'Cio/ill1wro.

178 F.3d 23 I.

243 (4th Cir. 1999)), The court should not grant a motion to dismiss for tililure to state a elaim
lor relief unless "it is elear that no relief could be grant<:d under any set of facts that could be
proved consistent with the allegations:'

CiE lill'. Primle

F.3d 543. 548 (4th Cir. 2(01) (citing 11..1,Il1c.

1'.

Placel11el1lParll1ersII

\'. Parker. 247

Norlllll'eslel'l7 Bell Tel, Co .. 492 U.S. 229. 249-

50) (1989)). To overcomc a Rule 12(b)(6) motion. a complaint must allege enough lilcts to state
a plausible claim for rclief. Bell All. Corp.

1'.

Tll'IJll1hly. 550 U.S. 544. 570 (2007): Ashcrofi

\',

Iqhal. 556 U.S. 662. 678 (2009). II elaim is plausible when "the plaintilTpleads lilclUal content
that allows the Court to draw the reasonablc inference that thc defendant is liable for the
misconduct alleged:' Iqhal. 556 U,S, at 678.
In evaluating the sufficicncy ofthc Plaintilrs claims. the Court accepts factual
allegations in the complaint as true and construes the lactual allegations in the light most
h As an initial
matter. the Court declines to abstain from hearing this case bnscd upon the doctrine of rUllIIger
abstention .. '~t'"ECF No, 16-1 at 6-7. As this Court noted in a recent decision rejecting defendant's argument for
r01/Hger abstention in the foreclosure context. "circumstances
litting within the rOlli/gel" doctrine 3rc exceptional."
and "iJbstcntion from the exercise of fcderaljurisdictioll is the 'exception. not the rule.. ,. .-lgo/lliloh I'. r,\'(' "-in,
Sel'\'s, (jl'I' .. No. GJII-16-1939.
2017 WL 657~28. at *~-5 (D. Md. Feb. 16.2017) (quoting ,';'1';111 ('Ol//I//C'I/ .. II/c, \'.
Jacoh.,'. 134 S, Ct. 584. 588 (2013) (internal alterations omitted)): see al.w Tucker t', Spi!dali:ed l.oal1.\'enidng,
LLC. 83 F. Supp, 3d 635. 646 (D. \1d. 2015) (finding }'Olmger not warranted il1mollgagor"s action against loan
scrviccrs in federal COllll), Consistent with the Court's reasoning in Ago/lluo!J. the Court "ill exercise jurisdiction
over Plaintiffs claims,

4

fllVorable to the Plaintiff See IlIhrighf
CO/ll/ll'rs ,!/Dal'idsOIl

I'.

Olin'r.

510 U.S. 266. 268 (1994): Lmnherh

t'.

Hei. ot'

Cr)'.. 407 F.3d 266. 268 (4th Cir. 2005). Ilo\\'ever. the complaint must

eontain more than "legal eone!usions. elements of a eause of aetion. and bare assertions devoid
of further flletual enhancement." Ne/llef Ch('l'rolef. Ud \'. COIISII/IIel'llffilirs.co/ll, 111<'.. F.3d
591
250.255 (4th Cir. 2(09). Fed. R. Civ. P. 8(a) provides that "[aJ pleading that states a e!aimf()r
relief must contain a short and plain statement of the e!aim showing that the pleader is entitled to
relief." Although "no technical lorms of pleading are required. a complaint must 'gi\'e the
defendant lair notice of\\'hat the plaintiff's claim is and the ground upon \\'hieh it rests .... Ellgle
1',

Unifed Sfafes. 736 r. Supp. 670. 671 (D. Md. 1989). affd. 902 r.2d 28 (4th Cir. 1990) (citing

Conley

I',

Ciih,\'(}{I. 355 U,S. 41. 48 (1957)), The Court is not obligatcd to aeeept unsupported

Iellal allellations. Rewlle
•..
...

t'.

Charles COIIIII\' CO/ll/llissiollers. 882 F.2d 870. 873 (4th Cir. 1989),
. .

legal conclusions couched as fllCtual allegations. l'apasml

t'.

Allaill. 478 U,S, 265. 286 (1986). or

cone!usory factual allegations devoid of any reference to actual events. Unifed IJ/ack Fire/ighfers
I',

lIirsf. 604 F.2d 844. 847 (4th Cir. 1979).

III.

DISCUSSION
A. Lack of Standin~/Wr()n~ful

Foreclosure

In Count One. English contends that DelCndants "do not have the right to foreclose on the
Property beeausc Defendants ... have failed to perleet any security interest in the Property. or
cannot prove to the court they have a valid interest as a real party in interest to I()ree!ose:' ECF
No, 2 at 13. Thus. he e!aims ... the purported po\\'er of sale , .. no longer applies," lei. Plaintiff
submits that the only parties \\'ho have standing to !(1I'ee!oseare the "holders of the Note'" \\'hom
he alleges are ..the eertifieate holders of the securitized trust because they are the end users and
pay taxes on their interest gains:' Id English further claims that Defendant MERS lacks

5

authority undcr its corporatc chartcr "to f(lI'cclosc a mortgagc or to own or trans IeI' an intcrcst in
a sccuritizcd

mortgagc:'

and sccks to invalidatc thc transfcr ofthc Mortgagc/Dccd

U.S. Bank bccause thc transferor allcgcdly never "physically
Plaintiff argucs that "I t Ihc Promissory

of Trust to

del ivcrl cd]"" thc Note. Id. at l3-f4.

Note and Mortgage/Dced

of Trust arc inscparablc:'

and

therefore the transfer ofthc Deed of Trust alone is a nullity. Id. at 15. Ilc rcqucsts thaI the Court
"restrain"

and "cnjoin" Delendants

from j(Jreciosing upon the Property. Id. at 16. Plaintiirs

claim fails f()r sevcral reasons,
Courts in this jurisdiction
securitization7
Conduil.

and assignmcnts

idcntical argumcnt rcgarding dcfendants'

intcrcsC'): Reed,'.

I'NC ;I/ortg,

Civ. No. AW-13-1536.

("'Even assuming that his loan was sccuritizcd,

"courts that havc considercd
propcr and assignments
sccuritization

I'arker \". Alii. IJmkers

lack of standing claim wherc

"f~lillureJ to perfect any sccurity
2013 WI. 3364372. at *3 (D. Md . .July
PlaintifThas

Court to declare thc decd of trust invalid or uncnforccable:'):
N,1.. Ci\'. No, WMN-09-1627.

rejected challcngcs to loan

cxccutcd through thc MERS systcm:'

179 F. Supp. 3d 509. 516-17 (D. Md. 2016) (dismissing

plaintifTmadc

2,2013)

and c1se\\'hcrc havc "routinely

prcscntcd no hasis f(1I'thc

SIISS I'.

.II' Morgal/ Chase 1J1/I1k.

2010 WI. 2733097. at *5 (D, Md, .July 9.2(10)

(noting that

thc issuc havc found that thc [tv!ERS 1 systcm of rccordation

is

madc through that systcm arc valid" and rcjccting theory that

rcndcrcd the promissory

notc unenf()rccablc):

Ruggia

I'.

Wash. ,I/ul .. 71') F. Supp.

7 Loan securitization may be explained as follows: "Real estate loan securitization creates a secondary lllar"CI

for

loans secured by mortgages on real property. Lenders originate loans and then sell a group or loans as a pool to an
entity thai \vill issue securities:' Georgette C. Poindexler. Sunordintlled Rolling E(/lIil.'": Anllz\':il1,l!. Real 1:".\101(' 1.0lll1
Default;n fhe Era (!/',\'(,£'lIrifi:aliofl.
50 Emory L.J. 519. 521 (200 I): see also Anderson\', Bur.,'ol1 . ...t2...t 232. 237
Md.
(20 II) r'Sccuritization starts whl'n a mortgagc originator sells a Illortgage and its note 10 a buyer. who is typicnlly a
subsidiary of an investlllcnt bank .... The investment nank bundlcs together the multitude of mortgages it purchasl'd
into a 'special purpose vchide: usually in the form ora trust. and sells the income rights to other inn:stors.") (citing
Christopher L. Pelerson, Foreclosure. 5';uhpriml' A/or/gage LeI/dill,'>!..
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 <I: Plmllling

('0111111

fhllll
'11.441

Count Five is dismissed.

K In Plaintifl~s Opposition. he asserts. fix the lirst timC'. that ..[tJhe loan in question has hCC'1lp<lid in full." ECF No.
26 al 3. and attaches an "International Promissory Note (UNCITRAL Convention)" to "prove" this as~crtion. This
document is not legal tender. and such an argulllent is without merit in Plaintiffs case. J\//IlTiI11', CapillllOl1l'.
No,
I: I S-CY -1310.2016 WI. 4548382. at *4 (\V,D. Mich. Aug. 16.2016). report and r(!COl11l11entiarirm adol'fl'd. No.
I: 15-CV-131 O. 2016 WI. 4541997 (W.O. Mich. Aug. 31. 2016) (compiling cases rejecting this theory and finding
argument that said international promissory notes are legal tender ""isnonsense").

13

Eo Quiet Title
In Count Six. Plainti!Tseeks
to quiet title. Maryland
e1aims thereto."

to quiet title on the Property.

law requires that no proeeedings

possession

of property,

the title. or determine
disputed"

he "pending

to enltliTe or test the title or

Rob('/'son \', Ginnie Mae REMIC Tr, JIJIIJ 1/1)/. 9731', Supp, 2d 585. 590 (D,

Md, 2013): see a/so Md. Cocie. Real Prop, ~ 14-108(a)
peaeeahle

ECF No, 2 at 21, In an aetion

(providing

that "any person in actual

. , may maintain a suit .. , to quiet or remove any cloud Ii'om

any adverse e1aim" when ..the person's

and "if an action at law or proeeeding

title to the property is denied or

in equity is not pcnding to cnforee or test the

validity of the title"),
Courts in this jurisdietion
It)reelosurc

have routinely dismissed

e1aims to quict title while a

action remains pending in state eourt. as it does here. See, e.g .. Park('/' ",

.,1111.

Brok<'l's

Com/llil. 179 F. Supp. 3d 509. 519 (D. Md. 2016) ("llere. there is no question that a !tlreelosure
action remains pending in state court: in nlet. it was that state aetion that prompted
Complaint.

So even if Plaintiffs

to considcr

it."): Roberson.

quict-titlc

N.A .. NO.PWG.14.3819.

Countv.BIIL
.

the reeords ofwhieh

regarding

2015 WL 5052787.

It))'eelosure aetion against English's
Georce's
'-

rcquest had mcrit. the Court would lack jurisdietion

9731', Supp. 2d at 590 ("Plaintiff

title bceause there is an active procecding

Plaintiffs

has 1[liled to state a e1aim to quiet

the title."): Rwnire:: ", Wells Fargo Bank.

at *5 (D, Md. Aug. 25. 2015) (same), The

home remains aetive in the Cireuit Court Itll' Prince

.

\', /,'n~/ish. CAEF14-17893
the Court takesjudieialnotiee:

(Cir. Ct.Prinee
therefore.

It))' quiet title. Count Six is also dismissed,

14

Georce's
••..

Plaintiffeannot

.

Ctv . .Iulv 11. 2(14).
.
maintain his e1aim

F. Declaratory Relief
In Count Seven. English "requests ajudicial
interest of the parties with regard to the Property'"
of the Mortgage/Trust
assignation

determination

of the rights. obligations.

including a determination

and

as to the "validity

Deeds as of the date the Notes were assigned without a concurrent

of the underlying

foreclose on the Property'"

Trust Deeds'" and "whether any Defendant has authority to
ECF NO.2

"[Tlhe granting of declaratory

'i'i 123.

124. 126.

relief is entrusted to the discretion of the district court'"

(/real AlllericalllllS. Co. \'. (/ross. 468 F.3d 199.209 (4th Cir. 2(06) (citing 28 U.S.c. ~ 2201
("[AJny court of the United States. upon the tiling of an appropriate

pleading. may declare the

rights and other legal rclations of any interested party seeking such declaration"):

see also Md.

Code. Cts. & .Iud. Proc. ~ 3--406 (providing that "[ajny person interested under a deed ... may
have determined

any question of construction

Fedcral courts may issue declaratory judgments
"case or controversy"
jurisdiction.

requirement.

or validity arising under the instrumcnt

.. "').

only in cascs that (i) meet thc constitutional

and also (ii) present a valid basis 1(11" subject matter

5;ee.Ie{key Ballks. Ltc!.

I'. .los.

A. Balik Clothiers. IIIL".. 19 F. Supp. 99R. 100 I (D.
6

Md. 1985). F1II1her. even where a request for declaratory
the district court must. "in its discretion

relief meets hoth of these requirements.

... be satisfied that declaratory

relief is appropriate'"

White \'. Nal'l Ullioll Fire IllS. Co. ol"l'illshllrgh. I'a .. 913 F.2d 165. 167 (4th Cir. 1990).
Because the Court has already found Plaintifrs

legal theories regarding Defendants'

standing to foreclose on the Propcrty to be fatally flawcd. the Court will also reject I'laintifrs
request I()r declaratory judgment
CV DKC 15-1308.2015
declaratory

to the same eflcct. See I'ruitl \'. Wells Fargo Bank. N.,I.. No.

WI. 9490234. at *8 (D. Md. Dec. 30. 2(15) (dismissing

relief and noting that "even crediting Plaintiffs

15

claiml(l!'

allegation that Delcndants

are not in

actual possession
warranted

because it contravenes

allegations
purpose

Maryland

in c1aril'ying and settling thc legal relations

/'oslol7.

insecurity.

and controversy

requested

law."). Furthermore.

prevent the Court Ii'om issuing a declaratory

uncertainty.
I'.

ol'the original Note. entry 01' Plaintil'fs

PlaintitTs

judgment

in issue:'

declaratory

reliel' is not

vague tllctllal

that would sen'C "a usel'ul

or "af!(ml relicI' ti'01l1the

giving rise to the proceeding:'

CI'III<'1111ia/

Ute IllS.

CO.

88 F3d 255. 256 (4th Cir. 1996). Count Se\'en is dismissed.

G. T1LA, HOEPA and RESPA Claims
In Count Eight. Plaintiffal1eges

"Violation

ol'TILA

seq." ECF NO.2 at 23. TILA "is a federal consumer
informed

use 01' credit by requiring

as an amendment

to TILA. 'applies

protection

certain disclosures

li'om lenders. IIOEPA.

requirements

/'.A .. No. CIV.A. DKC 11-3539.2012

(citing 1111'1' OI/1I11lll/il)' Balik o(Nor/hall
C

15 U.S.c.

~ 1601 1'1

statute intended to promote the

to a special class 01' regulated

interest rates and are subject to special disclosure
,lIacF,/{~\.C'J1.

and 1I0EPA.

loans that arc made at higher

.... lIasall

WL 30\2000.

\\hich was enacted

\'. Fl'il'dll/all

&

at *5 (D. Md . .Iuly 20. 2012)

/'0 .. 622 F.3d 275. 282 (3d Cir. 2(10):

\5 U.S.c.

~

1639).
An action liJr damages

based upon TlLA and HOEPA disclosure

brought within one year I'rom the date ol'the occurrence

ol'the violation:'

can be "no later than the date the plainti tT enters the loan agreement."
at *5 (citing Hood \'. AIII'O/,({ LO'1/1 Sl'n's .. Civ. No. CCll-IO-1
Md . .Iuly 6.2(10)):

see 15 U.S.c.

4770941.

at *3 (D. Md. Aug. I I. 20\5)

/'ills

\'. 11/,d/o.

(citing 15 U.S.c.

\6

"must be

and the \'ioiation date

I {!.ISall. 2012 WL 3012000.

I. 20\0 WL 2696755.

~ 1640(e). A claim lilr rescission

brought within three years ol'the loan closing:'

requirements

at *2 (D.

under TILA "must be

No. G.lH.15-45 I. 20 \5 WL

~ \635(1)).

In Count Ninc. PlaintilTallcges
NO.2 at 24. Congrcss

enactcd

and more timcly information
trom unnecessarily

ofRESPA.

112] U.S.c.

RESPA to "insurc that consumcrs

...

~ 26011!/S"lf."

arc providcd

on the nature and costs of the scttlement

high scttlcmcnt

,I/o::ilo. No. GJH.15-451.

"Violation

with grcater

process and arc protcctcd

chargcs caused by ccrtain abusivc practices

2015 WL 4770941.

ECF

.. :. I'i/ls \'.

at *3 (D. Md. Aug. II. 2(15) (citing 12 LJ.S.c. ~

2601). Similar to claims undcr TILA. a RESPA claim hrought by a privatc litigant must bc
brought within eithcr onc or thrce years Irom the date ofthc
LJ.S.c. ~ 2614. Thc limitations
Hrlllrll

cntcred into:'

I'.

occurrcnce

of the violation. S"" 12

pcriod "begins to run ti'om the datc thc loan agrecmcnt

/Vil/lling/on Fill.. No. CCB-l

J

-699.2012

was

WL 975541. at *4 (D. Md.

Mar. 21. 2012) (citation omittcd).
llere. PlaintilTs
this Complain!.

Loan closed on Septcmber

ECF NO.2

'i 29:

ECF NO.3-I

at I. Although

TILA and RESPA claims in limitcd circumstanccs.

To do so. PlaintitTmust

plaintiff. dcspitc due diligcncc.

.\lor/g. I"c.. GJH-15-1084.
argument
discovcr

of cquitable

more than tcn ycars hellll'e he tiled
cquitable

tolling may apply in

"setting asidc thc statutc of limitations

as to

CIrolll \'. Shapiro &- HI/r.llln. LL/'. 871 F. Supp. 2d 462. 470. n.1 0

such claims is no easy task:'
(D. Md. 2(12).

13.2006.

[0

show traudulent

discovcr

the ti'aud:'

2015 WL 2342377.

conccalmcnt

intoning the word 'fraudulcntly'

...

ofthc

Id.: Sl!" also FIIII'/l!!' \'. /V"lls I'«(rgo Ilo/lll!

at *3-4 (D. Md. May 13.2(15)

tolling whcre plainti ff did not providc rationale

injury through due diligence).

and thc "inability

(rcjccting

li)r why shc \\'as unable to

English has not made this slu)\\'ing herc. and "mcrcly

is not surticicnt

to raisc thc doctrine ofcquitable

CIralll, 871 F. Supp. 2d at 470, n.l 0 (internal citations

and altcrations

Dcfcndants'

13.2006,

allegcd actions took place on Septcmbcr

17

omittcd).

tolling."

As thc

and PlaintitT does not state

suflicicnt

facts to warrant equitable tolling. these claims arc barred by the statute of limitations.

Counts Eight and Nine are dismissed.
H. Rescission
Finally. in Count Ten. Plaintiff claims he is entitled to rescind his l.oan and all
accompanying

l.oan documents

l.oan Origination

Agrcemcnt:

due to "J) TILA Violations: 2) Failure to provide a Mortgage
3) Fraudulent Concealmcnt:

4) Fraudulent Induccmcnt:

5) tililure

to abide by thc PSA: 6) making illegal or fraudulent transters of the Note and ivlortgage/lked
Trust: and [7]) Public Policy Grounds:'
As noted above. Plaintiirs
of limitations.

of

ECF NO.2 '1149.

TILA claim Ill!' rescission is barred by the three-year statute

The Court has further found Plaintilrs

without merit. Finding no legally cognizable

other theories in support of rescission to be

grounds lor rescinding the l.oan. Plaintiirs

final

cause of action shall be denied. See Simmon\' \'. /Jt/llk o(AIII .. N..'1.. No. CIV. P.lM 13-0733.2014
WL 509386. at *7 (D. Md. Feb. 6. 2014) ("'[Tlo the extent II'laintitrsj
on other causes of action in the Complaint.

claim Il)J' rescission rests

her Iililure to allege tilctS in support of any of these

other claims is also the death knell of her rescission claim"): SOIllt/rri!Jt/ r, (in'ell/will/.l/"r'g
Fundillg.

Inc ..

(dismissing

No. 13-CV-072-RWT.

2013 WL 5308286. at *9-10 (D. Md. Sept. 19.2013)

rescission claim where other underlying causes of action had been dismissed).

Count

Ten is dismissed.
I.

Motion to file Surreply

Plaintiff has moved to lile a Surreply in this case. ECF No. 30. l.oc. R. 105.2('1) pn1\'ides
that ..[u Jnless otherwise ordered by the court. surreply memoranda
Loc. R. J05.2(a) (D. Md. July I. 2(16). Further. "[slurreplies

arc not permitted to be tiled:'

may be permitted when the moving

party would be unable to contest matters presented to the court tl)r the lirst time in the opposing

18

party's reply:' Kholll}'

I'.

lv/eseI've.

268 F. Supp. 2d 600. 605 (D. Md. 2003) (internal citations

omitted). Because Plaintiff has given no indication that he was unable to contest the matters
presented in Defendants' Motions to Dismiss in his first Opposition. and the Court finds that
Plaintiff was afTorded sufficient opportunity to do so. his Motion for Leave to File Surreply shall
be denied.
VI.

CONCLUSION
For the foregoing reasons. Defendants' Motions to Dismiss. ECF Nos. 13. 16. and 17. are

granted. I'laintitTs Motion for Leave to File Surreply. ECF No. 30. is denied. A separate Order
shall issue.

Dated: August

1I

&I~L

.2017

United States District Judge

19