Jaigobin v. U.S. Bank, NA et al
Filing
18
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/23/2019. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LEONARD JAIGOBIN
:
v.
:
Civil Action No. DKC 18-1776
:
U.S. BANK, NA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution is the motion to
dismiss filed by Defendants U.S. Bank NA (Defendant U.S. Bank)
and JPMorgan Chase Bank, N.A. (Defendant Chase) (collectively,
“Defendants”).
(ECF No. 8).
The issues have been briefed, and
the court now rules, no hearing being deemed necessary.
Rule 105.6.
Local
For the following reasons, the motion to dismiss
will be granted.
I.
Background
A. Factual Background
The following facts are either alleged in the complaint or
taken from matters of public record of which the court may take
judicial notice.1
1
In 2007, Plaintiff purchased the property
In reviewing a motion to dismiss, the court may consider
allegations in the complaint, matters of public record, and
documents attached to the motion to dismiss that are integral to
the complaint and authentic.
See Philips v. Pitt Cnty. Mem’l
th Cir. 2009).
Here, Plaintiff does
Hosp., 572 F.3d 176, 180 (4
not attach to the complaint documents related to the underlying
foreclosure action.
However, in their motion to dismiss,
located at 12609 Hill Creek Lane, Potomac, Maryland 20854 (the
“Property”).
obtained
a
To finance the purchase of the Property, Plaintiff
loan
from
Washington
Mutual
Bank,
F.A.
(“WaMu”),
evidenced by an adjustable rate note (the “Note”) and secured by
a deed of trust (the “Deed of Trust”).
On June 12, 2008, Plaintiff filed a Chapter 11 Petition in
Bankruptcy in the United States Bankruptcy Court of the District
of Maryland (the “Bankruptcy Court”).2
(ECF No. 8-1, at 3; see
also ECF No. 14, at 3).
“On September 25, 2008, the Office of Thrift Supervision
(“OTS”)
closed
WaMu,
and
the
[Federal
Deposit
Insurance
Defendants attached relevant documentation related to the
purchase and foreclosure of Plaintiff’s home, including the
Note, the Deed of Trust, and court documents. (See ECF No. 83-ECF No. 8-11).
Defendants cite to these records in their
pending motion to dismiss and Plaintiff does not dispute them.
Thus, the records may be considered without converting the
motion into one for summary judgment. See Hall v. Virginia, 385
F.3d 421, 424 n.3 (4th Cir. 2004); Greens v. Wells Fargo Bank,
N.A., 927 F.Supp.2d 244, 246 n.2 (D.Md. 2013) (“A federal
district court may take judicial notice of documents from state
court proceedings and other matters of public record.”).
Plaintiff’s opposition to the motion to dismiss attaches an
assignment of the Deed of Trust, the results of a notary search,
copies of mortgage checks endorsed by Chase Home Finance or JPMC
Bank, and the affidavit of Michael Carrigan, a Certified
Mortgage Securitization Auditor. (See ECF No. 14-1–ECF No. 14–
5).
Defendants argue that the affidavit is inherently
unreliable and asks the court to decline to consider it.
(ECF
No. 15, at 2–4).
The court will not consider the affidavit
because it is not a matter of public record and it is not
integral to the complaint.
2
The statement of facts in Plaintiff’s opposition to
Defendants’ motion to dismiss restates verbatim most of the
facts in the facts section of Defendants’ motion to dismiss.
2
Corporation (“FDIC”)] was named as receiver.”
2; see also ECF No. 14, at 3).
(ECF No. 8-1, at
“[Defendant] Chase acquired
substantially all of WaMu’s assets[,] while the FDIC retained
its liabilities and gave notice that December 30, 2008 was the
last date to file a claim with the FDIC concerning WaMu.”
(Id.)
“On June 3, 2013, [Defendant] Chase, as attorney-in-fact
for the FDIC, as Receiver of WaMu, assigned the Deed of Trust to
[Defendant] U.S. Bank (the “Assignment”).”
see also ECF No. 14, at 3).
Assignment
in
Maryland[.]”
the
(Id.)
Land
(ECF No. 8-1, at 3;
“[Defendant] Chase recorded the
Records
of
Montgomery
County,
“On or about November 16, 2013, a notice
providing for the transfer of the secured claim under the loan
from WaMu to [Defendant] U.S. Bank was filed with the Bankruptcy
Court, along with a notation that Select Portfolio Servicing,
Inc. (“SPS”) was the servicer of the loan.”
(Id.)
“On May 6, 2016, [Defendant] U.S. Bank filed a Motion for
Authorization to Proceed with Enforcement of Security Interest
Based on Post Confirmation Default, or in the alternative, for
Order Granting Relief from Automatic Stay.”
(Id.)
“By order
dated October 7, 2016, the Bankruptcy Court held that Plaintiff
had defaulted on his payment plans to [Defendant] U.S. Bank
under
his
[Defendant]
Fourth
U.S.
Amended
Bank
Plan
of
relief
foreclose on the Property.”
Reorganization
from
(Id.)
3
the
and
automatic
granted
stay
to
Under the Fourth Amended Plan of Reorganization, “Plaintiff
agreed to a monthly payment arrangement of $3,701.00 to Wells
Fargo and [to] continue the process of loan modification with
the lender.”3
(ECF No. 1, at 5 ¶ 16).
The Fourth Amended Plan
of Reorganization “sought to satisfy all pre-petition arrears of
$22,747.85 over sixty months.”
(Id. at 5 ¶ 17).
“Plaintiff
discontinued his payments which were in excess of $148,662.60
because Wells Fargo failed to [account properly] for his good
faith attempts to follow the conditions of the Fourth Amended
Plan.”
(Id. at 5 ¶ 19).
“On July 7, 2017, James Clarke, as substitute trustee for
[Defendant] U.S. Bank, filed a foreclosure action in the Circuit
Court for Montgomery County, Maryland against Plaintiff and his
wife, Case No. 434197V (“Foreclosure Action”).”4
(ECF No. 8-1 at
3–4; see also ECF No. 14 at 3–4).
3
The reference to Wells Fargo is confusing and unexplained.
Wells Fargo is not a party in this action. Plaintiff’s checks,
attached to his opposition to the motion to dismiss, identify
Wa-Mu as the payee. (ECF No. 14-2; ECF No. 14-3; ECF No. 14-4).
One check identifies “Chase Bank/WA-MU” as the payee. (ECF No.
14-3, at 6).
There is no indication that Plaintiff’s mortgage
payments under the Fourth Amended Plan were ever made, or ever
supposed to be made, to Wells Fargo.
Review of the Bankruptcy
Court docket suggests that the language referencing payment to
Wells Fargo appears at some point between the Third and Fourth
Amended Plan of Reorganization.
4
On November 2, 2018, the court dismissed Defendants
Clarke, et al., Substitute Trustees, because Plaintiff failed to
show good cause as to why service had not been effected. (ECF
No. 17).
4
B. Procedural Background
On June 15, 2018, Plaintiff filed a complaint setting forth
ten
causes
of
action:
lack
of
standing/wrongful
foreclosure
(Claim 1); violation of the Maryland Consumer Protection Act
(“MCPA”)
(Claim
2);
violation
of
the
Financial
Institutions
Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) (Claim
3);
Violation
of
the
Fair
Debt
Collection
Practices
Act
(“FDCPA”) (Claim 4); fraudulent misrepresentation and failure to
disclose
(Claim
5);
breach
of
contract
(Claim
6);
unjust
enrichment (Claim 7); negligence (Claim 8); rescission (Claim
9); and civil conspiracy (Claim 10).
(ECF No. 1).
Plaintiff’s
complaint also sought declaratory and injunctive relief.
September 5, 2018, Defendants filed a motion to dismiss.
No. 8).
On
(ECF
On October 09, 2018, Plaintiff filed a motion for leave
to file his response late, (ECF No. 13), and filed his response,
(ECF No. 14).
On October 23, 2018, Defendants replied, (ECF No.
15), and did not oppose Plaintiff’s motion for leave to file his
untimely response.
The motion will be granted and the response
was considered.
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
5
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604
F.2d
844,
847
(4th
Cir.
1979);
see
also
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
Ultimately, a
complaint must “‘permit[ ] the court to infer more than the mere
6
possibility of misconduct’ based upon ‘its judicial experience
and common sense.’”
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
A
plaintiff
asserting
fraud
must
also
satisfy
“the
heightened pleading standards of Federal Rule of Civil Procedure
9(b), which requires a plaintiff to plead ‘with particularity
the
circumstances
constituting
fraud.’”
Spaulding
v.
Wells
Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir. 2013) (quoting
Fed.R.Civ.P. 9(b)).
and
contents
of
The circumstances include “the time, place,
the
false
representations,
as
well
as
the
identity of the person making the misrepresentation and what he
obtained thereby.”
Harrison, 176 F.3d at 784 (citations and
internal quotation marks omitted).
The purposes of Rule 9(b)
are to provide the defendant with sufficient notice of the basis
for
the
plaintiff’s
claim,
protect
the
defendant
against
frivolous suits, eliminate fraud actions where all the facts are
learned
only
reputation.
after
discovery,
and
safeguard
the
defendant’s
Id.
III. Analysis
As a threshold issue, Defendants contend that the doctrine
of claim splitting bars all of Plaintiff’s claims.
judicata,
“claim
splitting
‘prohibits
a
Like res
plaintiff
from
prosecuting its case piecemeal[ ] and requires that all claims
arising out of a single wrong be presented in one action.’”
7
Sensormatic Sec. Corp. v. Sensormatic Elec. Corp. (Sensormatic
I),
329
F.Supp.2d
574,
579
(D.Md.
2004)
(quoting
Myers
v.
Colgate-Palomolive Co., 102 F.Supp.2d 1208, 1224 (D.Kan. 2000)).
Unlike res judicata, however, a final judgement in the first
suit is not required to bar the second suit.
Sec.
Corp.
v.
Sensormatic
Elec
Corp.
See Sensormatic
(Sensormatic
II),
452
F.Supp.2d 621, 626 n.2 (D.Md. 2006); see also 18 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice &
Procedure § 4406 (3d ed. 2019) (“In dealing with simultaneous
actions on related theories, courts at times express principles
of “claim splitting” that are similar to claim preclusion, but
that do not require a prior judgment.”).
Instead, the court is
only required to “assess whether the second suit raises issues
that
should
have
been
brought
in
the
first.”
Citibank, N.A., 226 F.3d 133, 140 (2d Cir. 2000).
Curtis
v.
Defendants
contend that Plaintiff filed a motion to dismiss in the pending
Foreclosure
Action
that
“raised
the
same
arguments that Plaintiff makes in this case.”
7).
Defendants
note
that
the
state
allegations
and
(ECF No. 8-1, at
court
“rejected
all
of
Plaintiff’s arguments and denied his motion to dismiss[]” and
concludes that “the doctrine of claim splitting bars Plaintiff’s
claims
in
transaction
this
as
action
the
because
Foreclosure
they
arise
Action.”
from
(Id.)
the
same
Plaintiff,
misunderstanding the distinctions between claim splitting and
8
res
judicata,
responds
that
claim
splitting
does
because the Foreclosure Action “is still pending[.]”
14, at 5–6).
not
apply
(ECF No.
The court need not conclude whether the doctrine
of claim splitting precludes Plaintiff’s claims because, even if
it did not, Plaintiff fails to plead facts showing that he is
entitled to relief.
A.
Lack of Standing/Wrongful Foreclosure
Plaintiff challenges Defendants’ ability to foreclose on
the Property.
(ECF No. 1, at 11–15 ¶¶ 56–74).
The complaint
does not clearly outline the bases of Plaintiff’s challenges.
The gravamen of Plaintiff’s claim appears to be that Defendants
improperly securitized the Note and the Deed of Trust, rendering
them unenforceable.
Maryland
courts
securitization
(Id.)
have
of
This challenge is unavailing because
recognized
mortgage
continually
loans.
Harris
the
v.
propriety
Household
of
Fin.
Corp., 14-cv-0606-RWT, 2014 WL 3571981, at *2 (D.Md. July 18,
2014)
(“This
[c]ourt
and
others
in
the
Fourth
Circuit
have
consistently. . . held[]” “that the securitization process does
not
make
negotiable
instruments
and
deeds
of
trust
unenforceable[.]”); Suss v. JPMorgan Chase Bank, N.A., 09-cv1627-WMN, 2010 WL 2733097, at *5 (D. Md. July 9, 2010) (“The
various arguments that Plaintiff advances to support his theory
that the securitization rendered the Note unenforceable are also
without legal support.”).
Moreover, Plaintiff cannot assert a
9
claim for “wrongful foreclosure” because no such cause of action
exists under Maryland law.
See Davis v. Wilmington Fin., Inc.,
09-cv-1505-PJM, 2010 WL 1375363, at *7 (D.Md. Mar. 26, 2010)
(“Plaintiffs cite no authority, and the [c]ourt can find none,
that ‘Wrongful Foreclosure’ is a separate cause of action in
Maryland.”).
B.
Statutory Violations
Plaintiff
argues
that
Defendants
violated
the
Maryland
Consumer Protection Act (“MCPA”), (ECF No. 1, at 15–16 ¶¶ 75–
77), the Fair Debt Collection Practices Act (“FDCPA”), (Id. at
17–18 ¶¶ 84–89), and the Financial Institutions Reform, Recovery
and Enforcement Act of 1989 (“FIRREA”), (Id., at 16–17 ¶¶ 78–
83).
Plaintiff claims that Defendants failed to provide notice
required under the MCPA.
(ECF No. 1, at 15–16).
respond that this claim is time barred.
Defendants
(ECF No. 8-1, at 12).
In his opposition, Plaintiff argues that he filed his complaint
“within three years of his learning of the MCPA violation[.]”
(ECF No. 14, at 6–7).
The statute of limitations is an affirmative defense.
Fed.R.Civ.P.
8(c).
A
motion
to
dismiss
filed
under
See
Rule
12(b)(6) may only reach the merits of an affirmative defense
when “all facts necessary to the affirmative defense clearly
appear on the face of the complaint.”
10
Goodman v. Praxair, Inc.,
494
F.3d
458,
(4th
464
Cir.
2007)
(internal
citations
quotation marks omitted) (emphasis in original);
and
see also Long
v. Welch & Rushe, Inc., 28 F.Supp. 3d 446, 456 (D.Md. 2014)
(“The statute of limitations. . . should only be employed to
dismiss claims pursuant to Rule 12(b)(6) when it is clear from
the face of the complaint that the claims are time barred.”); 5B
Charles A. Wright & Arthur R. Miller, Federal Practice & Proc.
§ 1357, at 352 (3d ed. 2019) (“A complaint showing that the
governing
claim
statute
of
limitations
relief
is
the
for
affirmative
defense
most
appears
has
run
common
on
the
on
the
situation
face
of
plaintiff’s
in
the
which
the
pleading[,]”
rendering dismissal appropriate).
Under
MCPA
§ 13-316(b),
“[w]ithin
7
days
of
acquiring
mortgaging servicing, a servicer shall send to the mortgagor a
written notice containing [certain information] regarding the
mortgage on the date of transfer[.]”
limitations is three years.
The MCPA’s statute of
Master Fin. Inc. v. Crowder, 409
Md. 51, 65 (2009).
The parties agree that “[o]n or about November 16, 2013, a
notice providing for the transfer of the secured claim under the
loan
from
Bankruptcy
WaMu
to
Court,
[Defendant]
along
servicer of the loan.”
with
U.S.
a
Bank
notation
was
that
filed
[SPS]
with
the
was
the
(ECF No. 8-1, at 3; ECF No. 14, at 3).
Therefore, the statute of limitations ran on Plaintiff’s MCPA
11
claim on November 23, 2016 and bars his claim now.
Plaintiff’s
argument that he “filed within three years of his learning of
the
MCPA
violation”
is
unavailing
because
Plaintiff
had
knowledge of the facts giving rise to the alleged violation in
2013.
See Brown v. Neuberger, Quinn, Gielen, Rubin, & Gibber,
P.A., 731 F.Supp.2d 443, 449 (D.Md. 2010) (“Under the discovery
rule in Maryland, a plaintiff’s cause of action accrues when the
plaintiff knows or reasonably should have known of the wrong.”);
see also Moreland v. Aetna U.S. Healthcare, Inc., 152 Md.App.
288, 297 (Md.Ct.Spec.App.) (“Knowledge of facts. . . not actual
knowledge of their legal significance, starts the statute of
limitations running.”) (citations and quotation marks omitted).
Plaintiff claims that Defendants failed to provide written
verification of his mortgage debts in violation of the FDCPA.
(ECF No. 1, at 17–18).
Defendants contend that the statute of
limitations bars this claim, and that Plaintiff failed to allege
that Defendants are “debt collectors” under the FDCPA.
8-1, at 11–12).
Section 1692g of the FDCPA provides:
Within
five
days
after
the
initial
communication with a consumer in connection
with the collection of any debt, a debt
collector shall. . . send the consumer a
written notice containing. . . a statement
that unless the consumer, within thirty days
after receipt of the notice, disputes the
validity of the debt, or any portion
12
(ECF No.
thereof, the debt will be assumed
valid by the debt collector.”
to
be
Here, there is no allegation identifying a communication –
let alone an initial communication in connection with the debt
collection – that fails to provide notice as set forth in the
statute.
The complaint contains no allegations that Plaintiff
submitted
a
timely
request
for
validation
of
his
debt.
Plaintiff appears to misread the statute; it does not require
that
a
debt
collector
validate
a
debt
contacting a consumer to collect that debt.
within
five
days
of
Rather, the statute
requires the debt collector to notify the consumer within five
days of initial contact of his or her right to seek validation
within 30 days.
Plaintiff’s conclusory allegations regarding
Defendant’s alleged failure to verify and validate the debt are
insufficient to state a claim under the FDCPA.5
Finally, Plaintiff alleges that Defendants violated FIRREA
by “fail[ing] to apply his mortgage payments” under the Fourth
5
Plaintiff fails to state his FDCPA for additional reasons.
Like the MCPA claim, the statute of limitations bars Plaintiff’s
FDCPA claim.
The statute of limitations for an FDCPA claim is
one year.
15 U.S.C. § 1692k(d).
Plaintiff agrees that the
November 16, 2013 notice identified Defendant U.S. Bank as the
secured party and SPS as the servicer of the loan.
In his
opposition, Plaintiff elaborates and admits that he “became
aware of the discrepancies that existed in his mortgage on or
around April of 2017[.]” (ECF No. 14, at 6–7). He did not file
his complaint until more than a year later, in June 2018. (ECF
No. 1).
Moreover, Defendants correctly note that Plaintiff
fails to allege any facts to demonstrate that Defendants are
debt collectors under the FDCPA.
13
Amended Plan of Reorganization.
(ECF No. 1, at 16–17 ¶¶ 78–83).
Plaintiff notes that he “filed an administrative claim with the
FDIC due to the lack of credit for his payments to Wells Fargo.”
(Id.
at 17 ¶ 82).
Defendants contend that “[t]he [c]ourt lacks
subject matter jurisdiction over” this claim because “Plaintiff
was required to submit his FIRREA claim, and any other claim
based on WaMu’s actions, to the FDIC before the December 30,
2008 bar date.”
(ECF No. 8-1, at 13–14).
Plaintiff responds
that he did not receive proper notice of the December 30, 2008
bar date and was “not in a position to investigate and assert
[his]
rights
in
a
timely
manner[.]”
(ECF
No.
14,
at
8).
Defendants counter that Plaintiff was not entitled to actual
notice and his late-filed claims were properly disallowed by the
FDIC.
(ECF No. 15, at 6–8).
The
Fourth
Circuit
recently
outlined
FIRREA’s
provisions:
FIRREA establishes an administrative
process that allows the FDIC, acting as
receiver for a failed institution, to settle
claims
against
that
institution
and
liquidate its assets.
To effectuate that
process, FIRREA requires that claimants
submit all of their claims against a failed
institution to the FDIC before a certain
date – the bar date.
FIRREA allows
claimants either to obtain administrative
review, followed by judicial review, of any
disallowed
claim
against
a
depository
institution for which the FDIC is receiver,
or to file suit for de novo consideration of
the disallowed claim in a district court.
14
relevant
But, except as otherwise provided in
the
Act,
a
court
may
not
exercise
jurisdiction over (i) any claim or action
for payment from, or any action seeking a
determination of rights with respect to, the
assets of any depository institution for
which the FDIC has been appointed receiver,
including assets which the FDIC may acquire
from itself as such receiver; or (ii) any
claim relating to any act or omission of
such institution or the FDIC as receiver.
These provisions combine to create an
exhaustion
requirement
that,
we
have
concluded, is absolute and unwaivable.
Put
another
way,
FIRREA
operates
as
a
jurisdictional bar to claims that parties
did not submit to the FDIC’s administrative
process.”
Willner v. Dimon, 849 F.3d 93, 102–103 (4th Cir. 2017) (internal
alterations,
citations,
and
quotation
marks
omitted).
Plaintiff’s FIRREA claim makes little sense for at least two
reasons.
First, Plaintiff appears to challenge the actions of
the FDIC and WaMu.
applicability
of
They are not parties to this action.
FIRREA
to
either
Defendant
is
The
inexplicable.
Plaintiff provides no evidence that the FIRREA is applicable to
Defendants’ conduct here or that they violated its provisions
with respect to him.
Second,
Plaintiff’s FIRREA claim focuses
on payments made under his bankruptcy plan.
Plaintiff made all
of these payments after WaMu closed, and all but three of these
payments after the December 30, 2008 bar date.
statutory claims will be dismissed.
15
Plaintiff’s
C.
Fraudulent Misrepresentation
Plaintiff’s
that
fraudulent
“Defendants
misrepresentation
securitized
the
[N]ote
and
claim
contends
breached
a
loan
modification by mishandling his payments.” (ECF No. 14, at 8–9;
see also ECF No. 1, at 18–19 ¶¶ 90–103).
that
Plaintiff
failed
to
plead
his
Defendants contend
fraud
claim
with
particularity and that “a fraud claim cannot arise from a breach
of contract.”
to
(ECF No. 8-1, at 15–16).
Defendants’
discovery
will
motion
to
enable.
.
dismiss
.
Plaintiff
fails
misrepresentation
particularity.
and
“(1)
to
to
that
“[f]urther
provide
additional
(ECF No. 14, at 9).
state
plead
a
his
claim
claim
for
with
fraudulent
the
requisite
Fraudulent misrepresentation is simply a means
of committing fraud.
(2003).
to
contends
Plaintiff
details to support the claim[.]”
Plaintiff’s opposition
See Sass v. Andrew, 152 Md.App. 406, 432
To make out a claim of fraud, a plaintiff must show
that
plaintiff;
defendant
the
defendant
(2)
or
that
that
the
made
its
a
falsity
false
was
representation
representation
to
the
either
to
the
was
made
known
with
reckless
indifference as to its truth; (3) that the misrepresentation was
made for the purpose of defrauding the plaintiff; (4) that the
plaintiff relied on the misrepresentation and had the right to
rely on it; and (5) that the plaintiff suffered compensable
injury
resulting
from
the
misrepresentation.”
16
Id.
at
429.
Plaintiff did not identify any specific false statement and his
challenges to the Defendants’ securitization of the Note are
unavailing.
See Harris, 2014 WL 3571981, at *2.
Plaintiff
failed to provide any facts to support the existence of a loan
modification agreement, let alone its breach.
unclear
that
either
of
the
Defendants
modification agreement with Plaintiff.
even
In fact, it is
executed
a
loan
Assuming an agreement
existed, Plaintiff failed to describe how Defendants breached
the purported loan modification and simply concludes that they
mishandled
payments
under
it.
Plaintiff’s
contention
that
discovery will provide him additional details to support his
claim
ignores
that
one
of
Rule
9(b)’s
purposes
is
to
“discourage[e] fishing expeditions brought in the dim hope of
discovering a fraud[.]”
Pub. Employees’ Ret. Ass’n of Colo v.
Deloitte & Touche LLP, 551 F.3d 305, 311 (4th Cir. 2009).
D.
Breach of Contract, Unjust Enrichment, Rescission
Plaintiff raises breach of contract, unjust enrichment, and
rescission claims.
Plaintiff’s breach of contract claim focuses
on the purported modification agreement.
(ECF No. 1, at 19–20,
¶¶
“[t]he
104–10).
agreement
was
Plaintiff
an
offer
alleges
by
that
Defendant
Chase
[m]odification
to
forebear
on
foreclosing[,]” that “Defendant Chase knew or should have known
that confession or judgment provisions. . . are not favored” in
Maryland, and that Defendant Chase “effectively and unilaterally
17
breached the modification agreement[.]”
(Id.)
As discussed
above, there is no evidence that either Defendant entered into a
loan
modification
agreement
with
Plaintiff.
Plaintiff
inconsistently describes both Defendant U.S. Bank and Defendant
Chase as parties to the modification agreement.
No.
1,
at
19
¶
98)
(“[Defendant]
U.S.
Compare (ECF
Bank
entered
a
modification agreement. . . ) with (ECF No. 1, at 20 ¶ 105)
(“The
[m]odification
agreement
was
an
offer
by
[Defendant]
Chase. . . ).
“It
is
well-established
in
Maryland
that
a
complaint
alleging a breach of contract ‘must of necessity allege with
certainty
and
definiteness’
facts
showing
a
contractual
obligation owed by the defendant to the plaintiff and a breach
of that obligation by defendant.”
RRC Northeast, LLC v. BAA
Maryland, Inc., 412 Md. 638, 655 (2010) (emphasis in original)
(quoting Cont’l Masonry Co. v. Verdel Constr. Co., 279 Md. 476,
480 (1977).
Plaintiff provides inconsistent details about the
modification agreement and fails to allege with certainty and
definiteness
facts
either Defendant.
showing
a
contractual
obligation
owed
by
Plaintiff fails to state a claim for breach
of contract.
Plaintiff’s
Defendants
“were
unjust
the
enrichment
beneficiar[ies]
claim
contends
that
of
financial
gain
conferred. . . by the Plaintiff[,]” that “Defendants conspired
18
and. . . possessed appreciation and knowledge of the benefit[,]”
and that “Defendants accepted and retained the benefit under
such
circumstances
as
to
make
it
inequitable
for
the
Defendant[s] to retain the benefit without payment of its value
or the return of money.”
enrichment
requires[:]
(1)
(ECF No. 1, at 20–21).6
a
benefit
conferred
“Unjust
upon
the
defendant by the plaintiff[;] (2) a defendant’s appreciation or
knowledge of the benefit[;] and (3) the defendant’s acceptance
or retention of the benefit under circumstances that would make
it inequitable for the defendant to retain the benefit without
the payment of its value.”
714,
723
n.9
(D.Md.
2009)
Haley v. Corcoran, 659 F.Supp. 2d
(citing
Hill
v.
Cross
Country
Settlements, LLC, 402 Md. 281, 295 (2007); see also Sanders v.
Cohn,
Goldberg
&
Deutsch,
LLC,
No.
15-cv-1571-DKC,
2016
WL
223040, at *7 (D.Md. Jan. 19, 2016) (citing Hill, 402 Md. at
295).
“It is settled law in Maryland, and elsewhere, that a
claim for unjust enrichment may not be brought where the subject
matter of the claim is covered by an express contract between
the parties.”
640,
642
FLF, Inc. v. World Publ’ns., Inc., 999 F.Supp.
(1998)
(citations
omitted);
see
also
Dunnaville
McCormick & Co., 21 F.Supp.2d 527, 535 (D. Md. 1998).
6
v.
Here,
The complaint incorrectly numbers the paragraphs outlining
Plaintiff’s unjust enrichment claim. The paragraph numbers are
nonconsecutive and duplicative of paragraph numbers in the
breach of contract and negligence claims.
19
there is an express mortgage agreement – the Note and the Deed
of Trust.
Plaintiff’s claim for unjust enrichment will not lie.
Plaintiff also alleges the existence of a modification agreement
which would similarly prevent an unjust enrichment claim.
Plaintiff also seeks rescission, although the complaint is
unclear about whether he seeks rescission of the Note and the
Deed
of
agreement.
Trust
or
(ECF
rescission
No.
1,
at
of
the
22–23
alleged
¶¶
123–129).
modification
Defendants
contend that “Plaintiff’s rescission claim fails as a matter of
law because he has not alleged its prima facie elements.”
No. 8, at 16–17).
failed
to
allege
(ECF
Defendants emphasize that “Plaintiff has
facts
showing
that
he
was
induced
by
any
wrongful action by Defendants to enter into the loan contract[]”
and “has not allege[d] that he has tendered, or is willing and
able to tender, the loan proceeds to Defendants.”
(Id. at 17).
Plaintiff
Defendant[s]
responds
that
he
“alleged
that
the
engaged in fraudulent activity[]” and “[t]he fraudulent activity
forms the basis for [his] rescission claim.”
10).
Plaintiff
failed
to
state
a
claim
(ECF No. 14, at
for
fraud
and
his
rescission claim will be dismissed.
E.
Negligence
Plaintiff’s
negligence
claim
payments under the bankruptcy plan.
appears
to
involve
his
He contends that Defendant
U.S. Bank “failed to account to Plaintiff” “for the income and
20
expenses associated with [his] commitment to the modification
agreement[]” and alleges that this failure “allow[ed] him to
default in the eyes of the Bankruptcy Court.”
(ECF No. 1, at
21–22 ¶¶ 111–122; see also ECF No. 14, at 9–10).
Defendants
argue that “Plaintiff’s negligence claim fails as a matter of
law because it arises from an alleged breach of contract.”
(ECF
No.
well
8-1,
at
16).
Defendants
are
correct.
“It
is
established in Maryland that the relationship between the bank
and
borrower
is
contractual,
not
fiduciary,
in
nature.”
Spaulding v. Wells Fargo Bank, N.A., 920 F.Supp.2d. 614, 620
(D.Md.
2012).
“Moreover,
the
mere
negligent
breach
of
a
contract, absent a duty or obligation imposed by law independent
of that arising out of the contract itself, is not enough to
sustain an action sounding in tort.”
Id.; see also Green, 927
F.Supp.2d at 250–51.
F.
Civil Conspiracy
Plaintiff’s
“Defendant[s]
benefit.”
civil
joined
conspiracy
together
for
claim
their
(ECF No. 1, at 23 ¶¶ 130–31).
alleges
mutual
gain
that
and
Defendants argue that
“Plaintiff did not plead the prima facie elements of his civil
conspiracy claim.”
(ECF No. 8-1, at 17–18).
Defendants also
note that conspiracy is not a separate tort and concludes that
Plaintiff’s civil conspiracy claim must be dismissed “[b]ecause
all of Plaintiff’s tort claims fail[.]”
21
(Id. at 17).
A claim of civil conspiracy requires Plaintiff to allege:
“(1) [a] confederation of two or more persons by agreement or
understanding;
(2)
[s]ome
unlawful
or
tortious
act
done
in
furtherance of the conspiracy or use of unlawful or tortious
means
to
accomplish
an
act
not
in
itself
illegal;
[a]ctual legal damage resulting to the plaintiff.”
v. Larocca, 443 Md. 312, 347 (2015).
and
(3)
Windesheim
“Conspiracy is not a
separate tort capable of independently sustaining an award of
damages
in
the
plaintiff.”
absence
of
other
tortious
injury
to
the
Haley, 659 F.Supp. 2d at 726 (quoting Alleco Inc.
v. The Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176,
189
(1995)).
Defendants
Plaintiff
agreed
to
failed
commit
an
to
allege
unlawful
any
or
facts
that
tortious
act.
Moreover, because Plaintiff failed to state a claim for his
other tort claims, there is no foundational tort to support his
allegation of civil conspiracy.
See e.g. Neto v. Rushmore Loan
Mgmt. Servs., Inc., No. 16-cv-1056-DKC, 2017 WL 896890, at *6
(D.Md. Mar. 7, 2017).
IV.
Dismissal with Prejudice
Plaintiff requested leave to amend the complaint.
14, at 9–10).
(ECF No.
Defendants requested dismissal with prejudice.
(ECF No. 8, at 1–2; ECF No. 8-1, at 18; ECF No. 15 at 1, 10).
Fed.R.Civ.P. 15(a)(2) provides that courts should “freely give
leave [to amend] when justice so requires,” and commits the
22
matter to the discretion of the district court.
See Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 769 (4th Cir.
2011).
“Denial of leave to amend should occur ‘only when the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would be futile.’”
Jarallah v. Thompson, 123 F.Supp.3d 719, 728
(D.Md. 2015) (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986)).
This is the third court in which Plaintiff has challenged
the foreclosure of the Property.
At no point, in any of the
courts, has Plaintiff suggested that he has anything more to add
to support his claims.
Moreover, Plaintiff failed to move to
amend formally and also failed to provide a proposed amended
complaint or to indicate his desired amendments.
Plaintiff’s
request for leave to amend the complaint will be denied.
See
Willner, 849 F.3d at 114 (“Where, as here, the plaintiff fails
to. . . move to amend and fails to provide the district court
with any proposed amended complaint or other indication of the
amendments he wishes to make, the district court does not abuse
its
discretion
in
denying
leave
to
amend.”)
(citations
and
quotation marks omitted); Cozzarelli v. Inspire Pharms. Inc.,
549 F.3d 618, 630–31 (4th Cir. 2008) (“[W]e cannot say that the
district court abused its discretion by declining to grant a
motion [for leave to amend] that was never properly made.”).
23
V.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendants will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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?