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Johnson v. Dore

United States District Court, Fourth Circuit

September 20, 2013

EVELYN V. JOHNSON, Plaintiff,
v.
THOMAS P. DORE, et al., Defendants.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

On November 19, 2012, Plaintiff Evelyn V. Johnson filed a pro se Complaint against Defendants Citywide Mortgage Corporation, Mark S. Devan, Thomas P. Dore, Federal Deposit Insurance Corporation, Erin Gloth, IndyMac Federal Bank, FSB, Luann D. Jones, Shannon Menapace, Gerald F. Miles, Jr., Stephen B. Millstein, Mortgage Electronic Registration System, Inc., OneWest Bank, PNC Mortgage, Lisa Templeton, Wachovia Bank, N.A., and Wells Fargo Bank, N.A. ECF No. 1. Johnson asserts a variety of claims against the Defendants, including breach of contract, breach of an implied covenant of good faith and fair dealing, fraud, malicious prosecution, and civil conspiracy. Id. All of these claims appear to relate to a mortgage loan that Johnson executed in September of 2007. Id. ¶ 16.

BACKGROUND

Plaintiff Evelyn Johnson is a resident of Bowie, Maryland, in Prince George's County. Compl. ¶ 2, ECF No. 1. On September 25, 2007, Johnson obtained a mortgage loan in the amount of $265, 500.00, and executed a Deed of Trust as security interest for repayment of the loan. Id. ¶ 16. Citywide Mortgage Corporation was the original lender, and Mortgage Electronic Registration Systems, Inc. ("MERS") was named as the beneficiary of the Deed of Trust, as nominee for the holder of the mortgage note. Id. ¶¶ 17-18. MERS conveyed the Deed of Trust Note to Wachovia Bank, which Wells Fargo later succeeded by merger. Id. ¶¶ 23, 25. Notice of Defaults concerning Johnson's mortgage loan were filed in the Circuit Court of Prince George's County in July of 2009 and April of 2012. Id. ¶¶ 29-30. Johnson alleges that the Deed of Trust reflects that PNC Bank is the servicer and "investor." Id. ¶ 32.

PROCEDURAL HISTORY

On December 28, 2012, Defendants Thomas P. Dore, Mark S. Devan, Gerard F. Miles, Jr., Shannon Menapace, and Erin Gloth filed a Motion to Dismiss Complaint. ECF No. 4. Johnson filed a Response on January 17, 2013. ECF No. 6. On February 8, 2013, Defendants OneWest Bank, FSB and IndyMac Mortgage Services filed a Motion to Dismiss. ECF No. 7. On April 17, 2013, the Clerk of the Court sent a Letter to Johnson, informing her that the Defendants had filed a Motion to Dismiss, that she had a right to file a response, and that if she did not file a timely written response, the Court may dismiss the case. ECF No. 10.

On April 16, 2013, Defendant PNC Mortgage, a division of PNC Bank, N.A., filed a Motion to Dismiss. ECF No. 11. Again, the Clerk of the Court mailed a letter to Johnson informing her that the Defendants had filed a Motion to Dismiss and that the Court may dismiss her case if she failed to file a timely written response. ECF No. 12. As of this writing, Johnson has not filed a response to the Defendants' February 8th or April 17th Motions.

STANDARD OF REVIEW

The purpose of a motion to dismiss under Rule 12(b)(6) is "to test the sufficiency of a complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court has further articulated the standard applicable to Rule 12(b)(6) motions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Rule 8 "requires a showing, ' rather than a blanket assertion, of entitlement to relief." Twombly, 550 U.S. at 556 n.3. A pro se plaintiff is held to a "less stringent'" standard than a lawyer, and the Court must liberally construe a pro se plaintiff's complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

ANALYSIS

I. Motion to Dismiss by Defendants Thomas P. Dore, Mark S. Devan, Gerard F. Miles, Jr., Shannon Menapace and Erin Gloth

A. Res Judicata

Defendants Thomas P. Dore, Mark S. Devan, Gerard F. Miles, Jr., Shannon Menapace and Erin Gloth move to dismiss Johnson's Complaint on the grounds that it is barred by the doctrine of res judicata and also fails to allege sufficient facts to state a claim for which relief may be granted. ECF No. 4 at ¶¶ 1-2. "Res judicata, also known as claim preclusion, bars a party from relitigating a claim that was decided or could have been decided in an original suit." Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008). "Generally, the preclusive effect of a judgment rendered in state court is determined by the law of the state in which the judgment was rendered." Id. at 162.

"Under Maryland law, the elements of res judicata are: (1) that the parties in the present litigation are the same or in privity with the parties in the earlier dispute; (2) that the claim presented in the current action is ...


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