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)

Download PDF
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..' \'. ,\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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?