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Richard Jay Rhodomoyer v. Wells Fargo Bank

May 10, 2013

RICHARD JAY RHODOMOYER
PLAINTIFF,
v.
WELLS FARGO BANK, N.A.,
DEFENDANT.



The opinion of the court was delivered by: Richard D. Bennett United States District Judge

MEMORANDUM OPINION

The pro se plaintiff Richard Jay Rhodomoyer ("Plaintiff" or "Mr. Rhodomoyer") brings this claim against the defendant Wells Fargo Bank, N.A. ("Wells Fargo"), alleging a violation of the Home Affordable Modification Program ("HAMP").*fn1 Specifically, Mr. Rhodomoyer alleges that Wells Fargo violated HAMP by failing to modify his mortgage loan. In response, Wells Fargo submitted a Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 5) on February 28, 2013. After Wells Fargo moved to dismiss Mr. Rhodomoyer's Complaint, Mr. Rhodomoyer alleged for the first time that his Complaint also encompasses a common law fraud claim against Wells Fargo for the actions of one of its attorneys. See Mot. for Hr'g & Mot. to Quash 6-8, ECF No. 10.

The parties have fully briefed the issues, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons discussed below, Defendant Wells Fargo's Motion to Dismiss the Plaintiff's Complaint (ECF No. 5) is GRANTED, and Mr. Rhodomoyer's HAMP claim is DISMISSED WITH PREJUDICE. Additionally, Mr. Rhodomoyer's Motion for a Hearing on the Merits and Motion to Quash Wells Fargo's Motion to Dismiss (ECF No. 10), which this Court construes as a motion for leave to amend the Complaint, is DENIED as futile.

BACKGROUND

In ruling on a motion to dismiss, the factual allegations in the plaintiff's complaint must be accepted as true and those facts must be construed in the light most favorable to the plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a pro se litigant's complaint should not be dismissed unless it appears beyond doubt that the litigant can prove no set of facts in support of his claim that would entitle him to relief. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

In 2008, the pro se plaintiff Richard Jay Rhodomoyer ("Plaintiff" or "Mr. Rhodomoyer") received a "Stated Income Loan" with Wachovia Bank to purchase real property located at 133 Polk Street, Cumberland, Maryland, 21502. Compl. ¶¶ II.4-.5. The loan was subsequently transferred from Wachovia Bank to the defendant Wells Fargo Bank, N.A ("Wells Fargo"). Id. ¶ II.4. Mr. Rhodomoyer alleges that in 2008, when the loan was formed, the loan officer recorded false information regarding the Plaintiff's income on his loan application. Id. ¶ II.5. Mr. Rhodomoyer also alleges that his loan was not handled properly by Wells Fargo, as it was "resold on the secondary market" subsequent to "several counts of mortgage fraud." Id. ¶ II.4.

Mr. Rhodomoyer eventually defaulted on his mortgage loan. Id. II.9. To avoid foreclosure, Mr. Rhodomoyer pursued a loan modification under the Home Affordable Modification Program ("HAMP"), a federal program that aims to "help eligible home owners with loan modifications on their mortgage debt." Id. ¶¶ II.1, .8. He also contemplated reinstating his loan, and discussed this matter with a Wells Fargo attorney, whom he identifies as "Mr. Joe Vito, Esq." Mot. for Hr'g & Mot. to Quash 6-8. Mr. Vito allegedly advised Mr. Rhodomoyer to "wait and see if [he] would be approved for a modification before trying to reinstate the loan." Compl.¶ II.9. Mr. Rhodomoyer alleges that he relied on Mr. Vito's instruction to his detriment, because he chose to "wait and see" whether Wells Fargo would approve his HAMP modification rather than reinstating the loan. Mot. for Hr'g & Mot. to Quash 7. At the time Mr. Rhodomoyer spoke with Mr. Vito, the cost to reinstate the loan was "feasible," but today "it would be next to impossible." Id. at 8. Wells Fargo never approved Mr. Rhodomoyer's application for a loan modification. Id. ¶ II.8. On February 6, 2012, Wells Fargo instituted foreclosure proceedings against Mr. Rhodomoyer. Mot. to Dismiss 3. Those proceedings are ongoing. Compl. 8, ¶ 6.b.

On December 28, 2012, Mr. Rhodomoyer filed this action, asserting jurisdiction based on a federal question*fn2 and alleging that Wells Fargo violated his rights under HAMP by failing to modify his loan. Compl. ¶¶ II.7-.8. In addition, Mr. Rhodomoyer now contends that the attorney for Wells Fargo, Mr. Vito, engaged in fraud by telling Mr. Rhodomoyer to "wait and see" if a HAMP modification would be approved for his mortgage loan before trying to reinstate it. Mot. for Hr'g & Mot. to Quash 6-8. Mr. Rhodomoyer's Complaint seeks $15,000 for attorneys' fees and medical costs due to "stress induced illness;"*fn3 an injunction against Wells Fargo's foreclosure efforts; "forgiveness/cancellation" of his total outstanding payments, the amount of which is not disclosed; and "approval of an affordable modification plan." Compl. ¶ III.2-.5.

Wells Fargo has moved to dismiss Mr. Rhodomoyer's claims, arguing that there is no private cause of action under HAMP. As to Mr. Rhodomoyer's fraud allegations, Wells Fargo contends that the claim fails to meet both the amount in controversy requirement under 28 U.S.C. § 1332 and the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. See Def.'s Reply 1-3, ECF No. 15.

For the reasons discussed below, Wells Fargo's Motion to Dismiss (ECF No. 5) is GRANTED, and Mr. Rhodomoyer's HAMP claim is DISMISSED WITH PREJUDICE. Mr. Rhodomoyer's Motion for a Hearing on the Merits and Motion to Quash Wells Fargo's Motion to Dismiss (ECF No. 10), construed as a motion for leave to amend the Complaint, is DENIED as futile.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting "that the jurisdictional allegations of the complaint [are] not true." Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F. Supp. 2d at 799.

Where the challenge is factual, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F3d at 192. "[T]he court may look beyond the pleadings and 'the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003) (citation omitted). The court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004); see also Sharafeldin v. Md. Dep't of Pub. ...


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