Green v. Rosenberg & Associates, LLC. et al
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/7/2018. (c/m 3/7/2018 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROSENBERG & ASSOCIATES,
LLC, et al.,
Civil No. PJM 17-732
Pro Se Plaintiff Daryl Green has sued Mark D. Meyer, John A. Ansell, III, Kenneth
Savitz, Caroline Fields, Jennifer Rochino, and the law firm that employs or employed them,
Rosenberg & Associates (collectively the “Rosenberg Defendants”), as well as Wilmington
Savings Fund Society, FSB, as Trustee for Primestar-H Fund I Trust (“Wilmington”),
Statebridge Company, LLC (“Statebridge”), PROF-2014-S2 Legal Title Trust II, by U.S. Bank
National Association as Legal Title Trustee (“U.S. Bank”), and Fay Servicing, LLC (“Fay
Servicing”). He alleges violations of several consumer protection statutes under both federal and
state law relating to a foreclosure proceeding in the Circuit Court for Prince George’s County
initiated against his residence at 15416 Cedar Drive, located in Accokeek, Maryland (the
Several motions are pending before the Court. Each Defendant has filed a Motion to
Dismiss the case. ECF Nos. 16, 20, 24, 46. In opposition, Green has filed a Motion for Summary
Judgment and Request for Oral Argument. ECF No. 35. Defendants Fay Servicing and U.S.
Green attempted to remove to this Court the underlying state foreclosure proceeding in Case No. 17-1379, which
the Court dismissed on December 28, 2017, as improperly removed. See Rosenberg v. Green et al., No. 17-cv-1379,
ECF Nos. 58, 59 (D. Md. Dec. 28, 2017).
Bank have filed a Motion to Strike Plaintiff’s Motion for Summary Judgment. ECF No. 38.
Defendants Statebridge and Wilmington have filed a Motion to Strike Plaintiff’s Affidavit. ECF
For the reasons that follow, the Court GRANTS all the pending Motions to Dismiss, ECF
Nos. 16, 20, 24, 46. Green’s Motion for Summary Judgment and Request for Oral Argument is
DENIED. ECF No. 35. All other motions are MOOT.
FACTUAL AND PROCEDURAL BACKGROUND
The Rosenberg Defendants as Substitute Trustees brought a foreclosure proceeding
against the Property in the Circuit Court for Prince George’s County in June 2015. Nearly two
years after the initiation of the foreclosure action, on March 17, 2017, Green filed the present suit
in federal court. ECF No. 1. He alleges that he owns the Property in fee simple and is in
possession of a mortgage note “marked canceled.” Id. ¶ 58. He further claims that the notes
Defendants assert they possess are “fraudulent” because they are not the notes he signed and, in
fact, are different from the canceled note in his possession. Id. ¶ 61. In effect, he says,
Defendants are attempting to “steal his home” by means of a fraudulent foreclosure proceeding.
While Green spends numerous paragraphs of the lengthy Complaint discussing
Defendants’ business practices generally, his Complaint is largely devoid of details that shed
light on the relationship of each Defendant to Green’s underlying loan, leaving the Court
struggling to determine the timeline of events and relationship of the parties. However, based on
the numerous attachments submitted in subsequent filings by both Green and the Defendants, it
appears that Wilmington is the current owner of the mortgage note, having been assigned it by
U.S. Bank following several previous transfers. ECF No. 35-1 at 6, 17-22. Defendants Fay
Servicing and Statebridge appear each to have been the loan servicers at different points in time.
Green alleges seven causes of action against all Defendants. These include: 1) violations
of the Federal Trade Commission Act (“FTC Act”) and the Consumer Financial Protection Act
(“CFPA”); 2) violations of the Fair Debt Collection Practices Act (“FDCPA”); 3) violations of
the Fair Credit Reporting Act (“FCRA”); 4) violations of the Real Estate Settlement Procedures
Act (“RESPA”); 5) violations of the Maryland Consumer Debt Collection Act (“MCDCA”) and
the Maryland Collection Agency Licensing Act (“MCALA”); 6) intentional infliction of
emotional distress; 7) violations of the civil Racketeer Influenced and Corrupt Organization
Green requests an injunction barring Defendants from further violating the statutes; an
injunction prohibiting Defendants from doing business in the State of Maryland; an injunction
preventing the underlying foreclosure action from moving forward; and damages in the amount
of $10 million plus costs. ECF No. 1 ¶ 203.
Shortly after filing his Complaint, on March 28, 2017, Green filed an Emergency Motion
to Stay the Foreclosure Sale (ECF No. 4), which the Court denied. The Court has previously
denied Green’s Motion to Appoint Counsel in this case. ECF No. 30.
On April 25, 2017, Green filed a copy of the purported “canceled note” with an affidavit
attesting to its authenticity. ECF No. 12. The note attached to the affidavit, entitled “Balloon
Note,” is in the amount of $159,000.00 and is signed only by Green. Id. The last page of the
note appears to be stamped “Cancelled” without any indication of when or by whom. Id. Green’s
affidavit does not volunteer any of these missing details. Id.
Defendants have all filed motions asking the Court to dismiss the Complaint for failure to
state a claim. See ECF Nos. 16, 20, 24, 46. Green opposes the motions and, in response, asks the
Court grant summary judgment in his favor. ECF No. 35.
Federal Rule of Civil Procedure 8(a) prescribes “liberal pleading standards,” requiring
only that a plaintiff submit a “short and plain statement of the claim showing that [he] is entitled
to relief.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Fed. R. Civ. P. 8(a)(2)).
However, “[a] plaintiff does not satisfy Rule 8 when the complaint ‘lump[s] all the defendants
together and fail[s] to distinguish their conduct because such allegations fail to give adequate
notice to the defendants as to what they did wrong.’” Classen Immunotherapies, Inc. v. Biogen
IDEC, 381 F. Supp. 2d 452, 455 (D. Md. 2005) (quoting Appalachian Enterprises, Inc. v.
Epayment Solutions Ltd., 2004 WL 2813121, at *6 (S.D.N.Y.2004)).
Additionally, claims for fraud must meet the heightened pleading standard of Rule 9(b),
which requires a party to “state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged
generally.” Fed. R. Civ. P. 9(b). Thus, a plaintiff alleging claims that sound in fraud must, at a
minimum, describe the “the time, place, and contents of the false representations, as well as the
identity of the person making the misrepresentation and what he obtained thereby.” Weidman v.
Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015) (internal quotation marks omitted).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff
must plead facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 554, 570 (2007). But this standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a
court will accept factual allegations as true, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. Indeed, the court need not
accept legal conclusions couched as factual allegations or “unwarranted inferences, unreasonable
conclusions, or arguments.” E. Shore Markets, Inc. v. J.D. Associates Ltd. P’ship, 213 F.3d 175,
180 (4th Cir. 2000). In the end, the Complaint must contain factual allegations sufficient to
apprise a defendant of “what the . . . claim is and the grounds upon which it rests.” Twombly, 550
U.S. at 555 (internal quotations and citations omitted).
While federal courts are obliged to liberally construe a pro se litigant’s claims in applying
the above analysis, this requirement “does not transform the court into an advocate.” United
States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotations and citations omitted).
The Fourth Circuit has noted that “[w]hile pro se complaints may ‘represent the work of an
untutored hand requiring special judicial solicitude,’ a district court is not required to recognize
‘obscure or extravagant claims defying the most concerted efforts to unravel them.’” Weller v.
Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton,
775 F.2d 1274, 1277 (4th Cir. 1985)). Accordingly, although the facts alleged in a plaintiff’s
complaint must be taken as true, bare conclusory statements “are not entitled to the assumption
of truth.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at
679)) (internal quotation marks omitted).
Because Defendants make similar arguments in their pending Motions to Dismiss,2 the
Court will consider those motions collectively as they pertain to each of Green’s claims before
turning to the other pending motions.
A. Motions to Dismiss
a) Count One: FTC Act and CFPA Violations
Count One is easily dismissed at the outset. Neither the FTC Act nor the CFPA provide a
consumer with a private right of action. “[I]t has consistently been held that enforcement of the
FTC Act is vested exclusively with the FTC, and that ‘private actions to vindicate rights asserted
under the Federal Trade Commission Act may not be maintained.’” Betskoff v. Enter. Rent A Car
Co. of Baltimore, LLC, 2012 WL 32575, at *7 (D. Md. Jan. 4, 2012) (quoting Holloway v.
Bristol–Myers Corp., 485 F.2d 986, 987 (D.C. Cir. 1973)). Similarly, the CFPA is to be enforced
by the Consumer Financial Protection Bureau and does not provide private citizens with a private
right of action. See, e.g., Rupli v. Ocwen Loan Servicing, LLC, 2016 WL 4141013, at *3 n.5 (D.
Md. Aug. 4, 2016); Kalisz v. Am. Express Centurion Bank, 2016 WL 1367169, at *2 (E.D. Va.
Apr. 5, 2016). Indeed, the statute states that “The Bureau may take any action authorized under
Part E . . . .” 12 U.S.C. § 5531(a) (emphasis added). Accordingly, “various courts have
concluded that there is no private right of action to enforce 12 U.S.C. §§ 5531 and
5536(a).” McCray v. Bank of Am., Corp., 2017 WL 1315509, at *16 (D. Md. Apr. 10, 2017)
Because Green may not sue to enforce either of these Acts, Count One is dismissed with
prejudice against all Defendants.
The Rosenberg Defendants incorporate the arguments made in Defendants Fay Servicing’s and U.S. Bank’s
Motion. ECF No. 20-1. Though Wilmington notes that service upon it was improper, it states that it has appeared
voluntarily and joins in Statebridge’s Motion. ECF No. 46-2 at 3.
b) Count Two: FDCPA Violations
In Count Two of his Complaint, Green alleges that Defendants are violating the FDCPA
because they “acquire[d] servicing rights to some mortgages that are in default at the time of
transfer and proceed to collect on those mortgages.” ECF No. 1 ¶ 89. He alleges that Defendants
are “debt collectors” within the meaning of the statute and, “in numerous instances, . . . have
called consumers at unusual times or places, or times or places which it knew or should have
known to be inconvenient to the consumers.” Id. ¶ 70. Additionally, he alleges “in numerous
instances,” Defendants have participated in unauthorized communications with third parties,
have disclosed debts to third parties, have made false or misleading representations to collect a
debt, and have engaged in unfair acts regarding collection of amounts not authorized by the
agreement or permitted by law.
Defendants respond that Green has failed to state a claim under the FDCPA. Specifically,
Defendants U.S. Bank and Fay Servicing argue that they are not “debt collectors” under the Act
because they are creditors collecting on a debt for their own account. ECF No. 16-1 at 9 (citing
Reyes v. Bank of America, Civil No. PJM 12-3798, 2013 WL 6012504, at *2 (D. Md. Nov. 12,
2013)). Even if they were debt collectors under the FDCPA, they say Green’s claim still fails
because he has not alleged any conduct specific to them that violates the statute. Id. at 10. The
other Defendants echo this argument, noting that general allegations against “Defendants” as a
group without identifying specific conduct attributable to a specific Defendant is insufficient to
state a claim for relief. See ECF No. 20-1 at 1 (Rosenberg Defendants “join in Defendants [Fay
and U.S. Bank’s] Motion to Dismiss”); ECF No. 24-2 at 2, 5-6 (noting that “Statebridge is
simply lumped together with the rest of the ‘Defendants’”); ECF No. 46-2 at 1 (Wilmington
“incorporates by reference the Motion to Dismiss filed by Statebridge”).
The Court agrees with Defendants. “To succeed on a FDCPA claim a plaintiff must
demonstrate that ‘(1) the plaintiff has been the object of collection activity arising from
consumer debt, (2) the defendant is a debt [ ] collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the FDCPA.’” Stewart v.
Bierman, 859 F. Supp. 2d 754, 759 (D. Md. 2012). “Congress enacted the FDCPA ‘to eliminate
abusive debt collection practices by debt collectors.’” Reyes v. Bank of Am., N.A., 2013 WL
6012504, at *2 (D. Md. Nov. 12, 2013) (quoting 15 U.S.C. § 1692(e)). However, creditors,
mortgagees, and mortgage servicing companies are not debt collectors and are statutorily exempt
from liability under the FDCPA. Id. (citing Scott v. Wells Fargo Home Mortgage Inc., 326 F.
Supp. 2d 709, 717 (E.D.Va.2003) aff’d, 67 F. App’x 238 (4th Cir. 2003)).
In his Complaint, Green fails to allege which Defendants, if any, are debt collectors under
the FDCPA. In fact, it is difficult to discern the relationship of the Defendants to Green during
the relevant time period of his loan. Though he alleges that “Defendants” are debt collectors
because they acquired servicing rights to his mortgage when it was in default, ECF No. 1 ¶ 89, in
the Fourth Circuit, the default status of a loan has no bearing on whether a person qualifies as a
debt collector under § 1692a(6). See Henson v. Santander Consumer USA, Inc., 817 F.3d 131,
135 (4th Cir. 2016). Rather, the inquiry turns on whether a person collects a debt on behalf of
others or for his own account. Id. If a person is collecting for his own account, that person is a
creditor, not a debt collector, for purposes of the FDCPA. Id. at 138. Green has not identified
which Defendant, if any, is collecting a debt for another such that it is plausibly a debt collector
under the FDCPA.
But that is not Green’s only problem. The Complaint also lacks any factual allegation, if
proven, that would plausibly establish that Defendants have engaged in any act prohibited by the
FDCPA. To the contrary, the Complaint contains only conclusory allegations of various acts by
“Defendants” that largely parrot the language of the statute without providing specific details
regarding Green’s own debt. See Hill v. Wilmington Fin., Inc., 2013 WL 4659704, at *4 (D. Md.
Aug. 29, 2013) (dismissing plaintiff’s claim that lacked detail regarding “time, dates, conduct or
actors involved in any violation of the FDCPA”). The closest Green comes to citing specific
examples is in paragraphs 103 and 120 of his Complaint, where he states that “Defendants,
directly or indirectly, [have] incessantly called despite receiving cease and desist demands from
Mr. Green with intent to, annoy, abuse, or harass him at the called numbers, and the natural
consequence of such calls has been to harass, oppress, or abuse persons.” ECF No. 1 ¶ 103. In
paragraph 120, he states “Defendants” have violated § 1692(e) by “communicating with Mr.
Green directly and indirectly and pursuing litigation and demanding sums not validly due from
Mr. Green based upon false, deceptive, and misleading communications as described above and
maintain this and other foreclosure actions in Maryland Courts against Green.” Id. ¶ 120.
However, these labels and conclusions, without any factual allegations, do not support a
plausible claim for relief.
Accordingly, Claim Two will be dismissed with prejudice against all Defendants.
c) Count Three: Violations of the FCRA
Count Three of the Complaint, alleging violations of the FCRA, suffers from similar
defects. The only specific reference to Green’s loan alleged in this Count is that “[i]n numerous
instances in which Defendants ha[ve] furnished to a consumer reporting agency information that
it was not legally allowed to report as they knowingly and falsely ‘verified’ to the reporting
agencies that their ownership in Mr. Green’s loan was valid despite Mr. Green’s multiple filed
disputes.” Id. ¶ 133.
As an initial matter, the Court notes that individuals may not bring private suits to enforce
§ 1681s-2(a). See 15 U.S.C. § 1681s-2(c) (stating that civil liability does not accrue for violations
of section 1681s-2(a)); see also Saunders v. Branch Banking & Trust Co. of Va., 526 F.3d 142,
149 (4th Cir. 2008) (“FCRA explicitly bars private suits for violations of § 1681s-2(a).”).
To the extent Green asserts a claim under § 1681s–2(b), he still fails to meet his burden.
15 U.S.C. § 1681s-2(b) imposes duties upon furnishers of credit information upon being
provided notice of a dispute of the completeness or accuracy of any information provided to a
credit reporting agency, including: (A) conducting an investigation with respect to the disputed
information; (B) reviewing all relevant information provided by the consumer reporting agency;
(C) reporting the results of the investigation to the credit reporting agency; and (D) if the
investigation finds that the information is incomplete or inaccurate, reporting those results to all
other credit reporting agencies to which it furnished the original information. Accordingly, “[t]o
state a claim under section 1681s–2(b), a plaintiff must allege, inter alia, that after he or she
notified the consumer reporting agency of a dispute, the agency notified the defendant furnisher
of information of the dispute, after which defendant failed to adequately investigate; notice by a
consumer directly to the furnisher of the information does not trigger the furnisher’s duties under
section 1681s–2(b).” Craighead v. Nissan Motor Acceptance Corp., 2010 WL 5178831, at *4
(E.D. Va. Dec. 14, 2010), aff’d, 425 F. App’x 197 (4th Cir. 2011); see also Ausar-El v. Barclay
Bank Delaware, 2012 WL 3137151, at *3 (D. Md. July 31, 2012).
Again, Green falls far short of even the minimal pleading requirements here. In addition
to lumping Defendants together and reciting conclusory allegations that merely mimic the
wording of the statute, he does not allege that he informed any credit reporting agencies of his
dispute or that any credit agencies notified Defendants of his dispute.
His FCRA claim has no traction. It is dismissed with prejudice.
d) Count Seven: Civil RICO
Turning to Count Seven of the Complaint, Green’s Civil RICO claim is also quickly
disposed of. In this Count, he alleges that Defendants have participated in an illegal racketeering
enterprise whose “primary objective” is to “inflict severe and sustained economic hardship on
Plaintiff with the intent of impairing, obstructing, preventing and discouraging Plaintiff and
similarly situated consumers in the State of Maryland from enjoyment of their piece of the
American Dream of home ownership.” ECF No. 1 ¶ 186.
As with the other allegations, all Defendants move for dismissal based on insufficient
pleading of facts to support such a claim.
The Court agrees that Green’s RICO claim is similarly lacking sufficient detail to get him
through the litigation gate. “In order for a civil RICO claim to survive a Rule 12(b)(6) motion to
dismiss, plaintiff must allege ‘(1) conduct; (2) of an enterprise; (3) through a pattern; (4) of
racketeering.’” Chambers v. King Buick GMC, LLC, 43 F. Supp. 3d 575, 588 (D. Md. 2014)
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). To state a plausible claim of
a pattern of racketeering, a plaintiff must adequately plead at least two predicate acts that are
related and amount to a threat of continued criminal activity. Id. at 592-93, 599. Additionally, a
plaintiff must plead proximate cause, i.e., that he was injured “by reason of” the RICO violation.
Id. at 588 (quoting Hemi Group, LLC v. City of New York, N.Y., 559 U.S. 1, 6 (2010)).
Containing only “threadbare recitals of the elements,” Green’s RICO claim does not even
meet the minimum pleading requirements of Rule 8, let alone the heightened standard under
Rule 9 applicable to allegations sounding in fraud. Indeed, the Complaint is completely devoid of
any facts—such as times, places, and dates, to name a few—to state a plausible claim for relief
under the civil RICO statute.
This claim is dismissed with prejudice.
e) Count Four: RESPA Violations
Green comes closer to stating a cognizable claim with respect to Count Four where he
argues that Defendants Fay Servicing and Statebridge3 violated RESPA by failing to adequately
respond to his qualified written requests (“QWRs”). ECF No. 1 ¶¶ 144-49. He alleges he sent
both Fay Servicing and Statebridge QWRs through his attorney in September 2015. Id. ¶ 148.
Statebridge did not respond and Fay Servicing allegedly responded by providing the contents of
the pending foreclosure action and a copy of the purported note. Id. Green alleges he then sent a
second round of QWRs in March 2016. Id. This time, Fay Servicing apparently responded by
providing another note, different from the one it previously provided and Statebridge responded
by stating it was no longer associated with the loan. Id. Thus, Green claims Defendants “failed to
acknowledge receipt of his QWRs within 5 days and/or correct account errors or conduct
investigations within 30 days in violation of RESPA.” Id. ¶ 149. Though he has stated more
specific factual allegations here, this does not save his claim.
“RESPA mandates good faith estimates and disclosure of settlement terms and interest
rates from lenders in order to allow consumers to evaluate whether they can afford all aspects of
their loan.” Minson v. CitiMortgage, Inc., 2013 WL 2383658 (D. Md. May 29, 2013) (quoting
Fedewa v. J.P. Morgan Chase Bank, Nat. Ass’n, 921 F. Supp. 2d 504, 510 (E.D.V.A. 2013)). 12
U.S.C. § 2605(e) states that “[i]f any servicer of a federally related mortgage loan receives a
[QWR] from the borrower . . . for information relating to the servicing of such loan, the servicer
Although this claim appears to be made against all Defendants, these are the only two defendants specifically
mentioned in the Count. Accordingly, the Court dismisses this claim with prejudice to the extent it pertains to the
Rosenberg Defendants, Defendants U.S. Bank, and Wilmington at the outset.
shall provide a written response acknowledging receipt of the correspondence within 5 days.”
§ 2605(e)(1)(A). A QWR is defined as “a written correspondence, other than notice on a
payment coupon or other payment medium supplied by the servicer, that (i) includes, or
otherwise enables the servicer to identify, the name and account of the borrower; and (ii)
includes a statement of the reasons for the belief of the borrower, to the extent applicable, that
the account is in error or provides sufficient detail to the servicer regarding other information
sought by the borrower.” § 2605(e)(1)(B). Creditors have thirty days following the receipt of a
QWR to make requested changes to the borrower’s account, notify the borrower of the results of
any investigation pertaining to the account, and transmit the name and telephone number of a
representative who can answer any questions about the account. § 2605(e)(2).
However, “courts have drawn a distinction between communications related to the
servicing of the loan, which are covered under RESPA, and those challenging the validity of a
loan, which are not.” Minson v. CitiMortgage, Inc., 2013 WL 2383658, at *4 (D. Md. May 29,
2013). When the “thrust of the request is to challenge [the defendant’s] authority ‘to proceed
with collection activities (including foreclosure),’” Judges in this District have found the
document fails to qualify as a QWR. Id.; see also Ayres v. Ocwen Loan Servicing, LLC, 129 F.
Supp. 3d 249, 265 (D. Md. 2015) (“Courts have held that allegations and requests for documents
that relate to the validity of the loan and do not attack the servicing of the loan are
not QWRs under RESPA.”). Correspondence that merely requests documents to verify the
underlying loan indicates that it does not relate to the servicing of the loan. Minson, 2013 WL
2383658, at *4.
In view of these requirements, it is clear that Green’s RESPA allegation suffers from
several defects. Nowhere does he allege who the servicer of his mortgage was at the time he
allegedly sent the two QWRs. Nor has he established that his correspondence qualified as a
QWR rather than a letter simply disputing the validity of the loan. Merely stating that the
correspondence he sent was a QWR does not make it so. Bare conclusory allegations are not
entitled to the assumption of truth, even at the Motion to Dismiss stage. See Aziz, 658 F.3d at
391. Green has not attached the alleged QWRs to the Complaint nor has he provided them in his
numerous other filings as far as the Court can tell. In fact, it seems that the thrust of Green’s
grievance is not the servicing of the loan, but the validity of the underlying note itself.
Even if the Court were to liberally construe the Complaint to plausibly allege the
communications were QWRs, Green’s RESPA claim would still fall short. A plaintiff must
allege that he suffered actual harm from the failure to respond or that the defendant has a pattern
or practice of noncompliance. Ayres, 129 F. Supp. 3d at 266; 12 U.S.C. § 2605(f). Here, Green
seeks injunctive relief, which, as Defendants suggest, is “unavailable in RESPA private actions.”
Minson, 2013 WL 2383658, at *5.
Green’s RESPA claim is dismissed with prejudice.
f) Counts Five and Six: State Law Claims under MDCPA and MCALA; IIED
Counts Five and Six arise under Maryland state law. Green filed the lawsuit on the basis
of federal question jurisdiction, see ECF No. 1 ¶ 2; ECF No. 1-1 (civil cover sheet), and at least
one Defendant appears to be a citizen of Maryland,4 defeating the requirement of complete
diversity of citizenship necessary to establish original jurisdiction. Having dismissed all of the
federal claims, the Court, as a matter of discretion, chooses not to exercise supplemental
jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c) (“The district courts
may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has
The Court remanded the removed foreclosure proceeding to state court, Civ. No. 17-1379, in part because Green
had not established diversity jurisdiction as to the Rosenberg Defendants, four of whom asserted they are Maryland
citizens and are also named Defendants here. See Rosenberg v. Green et al., No. 17-cv-1379, ECF Nos. 52, 58.
dismissed all claims over which it has original jurisdiction.”); Arbaugh v. Y & H Corp., 546 U.S.
500, 514 (2006) (“[W]hen a court grants a motion to dismiss for failure to state a federal claim,
the court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C.
§ 1367, over pendent state-law claims”). The Court believes this to be appropriate at this early
stage, especially where it appears Green is engaged in nothing more than an attempt to
collaterally attack the foreclosure of his home, a proceeding that is currently being litigated in
state court. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless
decisions of state law should be avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if
the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.”) (internal footnotes omitted), superseded by
statute in 28 U.S.C. § 1367(c)(3).
Accordingly, except as to the federal counts, which are being dismissed with prejudice,
the remainder of the Complaint will be dismissed without prejudice as to all Defendants.5
B. Remaining Motions
Having granted the Motions to Dismiss, the remaining motions are easily disposed of.
Summary judgment will be granted where “there is no genuine issue of material fact that
could lead a trier of fact to find for the non-moving party.” Willingham v. Crooke, 40 F. App’x
850, 851 (4th Cir. 2002). Because Green has failed to state a claim sufficient to survive a motion
to dismiss, he obviously is not entitled to judgment as a matter of law. His Request for Summary
Judgment and Oral Argument is therefore DENIED.
However, if within ten days, Green files with the Court the original of the purported cancelled note, or a copy of
the note, certified by a duly authorized notary public, along with an affidavit by Green affirming, under the penalties
of perjury, when the note was paid off as well as how, when, and by whom it was cancelled, the Court may
reconsider its rulings herein.
The remaining Motions to Strike are MOOT.
For the foregoing reasons, the Court GRANTS Defendants Fay Servicing’s and U.S.
Bank’s Motion to Dismiss (ECF No. 16); Rosenberg Defendants’ Motion to Dismiss (ECF No.
20); Defendant Statebridge’s Motion to Dismiss (ECF No. 24); and Defendant Wilmington’s
Motion to Dismiss (ECF No. 46). Green’s Motion for Summary Judgment and Request for Oral
Argument (ECF No. 35) is DENIED. The remaining Motions to Strike (ECF Nos. 38, 56) are
dismissed as MOOT.
A separate Order will ISSUE.
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
March 7, 2018
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