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Bolden v. McCabe, Weisberg & Conway, LLC

United States District Court, Fourth Circuit

December 31, 2013



DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this action alleging violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. Law, § 14-201 et seq., and the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law § 13-101 et seq., is a motion to dismiss filed by Defendant McCabe, Weisberg & Conway LLC ("Defendant") (ECF No. 12) and a motion for summary judgment filed by pro se Plaintiff Jermaine Bolden ("Plaintiff") (ECF No. 16). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion to dismiss will be granted and Plaintiff's motion for summary judgment will be denied as moot.

I. Background

A. Factual Background

Plaintiff, proceeding pro se, commenced this action on April 29, 2013, alleging violations of federal and state consumer laws. Plaintiff's only factual allegations in support of his consumer law claims are that "[o]n February 9, 2013 and March 7, 2013, Defendant initiated a hard pull of Plaintiff's credit report from Experian without permissible purpose, thereby reducing Plaintiff's credit score." (ECF No. 1 ¶ 7).[1] Plaintiff asserts that Defendant's actions have harmed him, "resulting in credit denials, credit delays, inability to apply for credit, loss of use of funds, mental anguish, emotional distress, humiliation, a loss of reputation, and expenditures for fees and costs." ( Id. ¶ 8).

Although the complaint itself does not identify the relationship between the parties, documentation attached thereto sheds some light on the gravamen of Plaintiff's complaint. It appears that Plaintiff executed a Note on December 23, 2010 with First Home Mortgage Corporation, in the amount of $136, 905.00. (ECF No. 1-6).[2] First Home Mortgage Corporation endorsed the Note to Maryland Community Development Administration, making it the holder of the Note. (ECF No. 1-9, at 11). On the same date, Plaintiff executed a Deed of Trust securing to the lender, First Home Mortgage Corporation, the real property located at 3603 Fernandes Drive, Temple Hills, Maryland, for the payment of the Note. (ECF No. 1-7). The Deed of Trust identifies the beneficiary as "Mortgage Electronic Registration Systems, Inc. (MERS') (solely as nominee for lender [First Home Mortgage Corporation]... and Lender's successors and assigns)." ( Id. at 2). David E. Waters and Anthony B. Olmert Sr. are identified as the Trustees in the Deed of Trust. ( Id. ). Paragraph 20 of the Deed of Trust provides that:

Lender, at its option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder by an instrument recorded in the city or county in which this Security Instrument is recorded. Without conveyance of the Property, the successor trustee shall succeed to all the title, power and duties conferred upon Trustee herein and by applicable law.

(ECF No. 1-7, at 8). On December 4, 2012, MERS, as nominee for First Home Mortgage Corporation, assigned the Deed of Trust to M&T Bank, which now services Plaintiff's loan. (ECF Nos. 1-8 & 1-9). This assignment was recorded in the land records in Prince George's County on February 6, 2013. On January 17, 2013, the Community Development Administration of the Maryland Department of Housing and Community Development executed a Deed of Appointment of Substitute Trustees, appointing the following substitute trustees under the Deed of Trust: Laura H.G. O'Sullivan; Erin M. Brady; Diana C. Theologou; Laura L. Latta; Jonathan Elefant; Laura T. Curry; and Chasity Brown. (ECF No. 1-9, at 13-14).[3]

The record further reflects that Plaintiff defaulted on the loan on July 2, 2012 in the amount of $4, 370.32, and M&T Bank filed a Notice of Intent to Foreclose. (ECF No. 1-9, at 2). A review of publicly available records shows that the substitute trustees subsequently commenced a foreclosure action on January 31, 2013 in the Circuit Court for Prince George's County, Maryland, and Plaintiff was served on or about February 27, 2013. Plaintiff includes as an exhibit a letter from the law offices of McCabe, Weisberg & Conway, LLC, dated April 26, 2013, providing Plaintiff with "notice of impending foreclosure sale." (ECF No. 1-10, at 4). The notice from Defendant informed Plaintiff of the date (May 14, 2013) and time of the foreclosure sale and also regarding possible rights renters have to continue renting the property until the end of the lease term.

Plaintiff also submits with the complaint a "Qualified Written Request" and "Milestones Request" concerning his mortgage on the property. (ECF Nos. 1-2 & 1-3). In these documents, Plaintiff asserts that "McCabe, Weisberg & Conway LLC sends [him] letters threatening foreclosure action. Without proof that McCabe, Weisberg & Conway has any authority to enforce the Mortgage, collect payments, or even mail anything to [Plaintiff]." (ECF No. 1-2, at 2). Plaintiff further contends that he needs "validation that the contractual obligations were met by both sides." ( Id. ). In the "Milestones Request" document, Plaintiff seeks clarification on whether his mortgage loan with First Home Mortgage Corporation was assigned to M&T Bank. ( See ECF No. 1-3). Plaintiff alleges that "the Note and Deed of trust has been bifurcated thus the defendant does not have standing. For relief [Plaintiff is] seeking damages under any fair debt collections practices act, fair credit reporting act, consumer protection act, monetary violations, original closing cost, court cost and A Quiet Title." (ECF No. 1-1).

On May 13, 2013, Plaintiff hand-delivered to the clerk's office a document entitled "Plaintiff Jermaine Bolden['s] Request to Stop the Sale, " asking the court to enjoin a foreclosure sale scheduled for the following day, May 14, 2013. (ECF No. 4). Construing this document as a motion for a temporary restraining order, the motion was denied because the issues raised by Plaintiff bore no apparent relationship to any relief sought in the complaint and federal courts generally do not interfere in state court foreclosure proceedings. (ECF No. 6).

Defendant then moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on July 5, 2013 (ECF No. 12). Plaintiff opposed the motion on July 17, 2013 (ECF No. 15), and subsequently moved for summary judgment on August 7, 2013 (ECF No. 16). Defendant opposed the motion on August 26, 2013 (ECF No. 19), and Plaintiff replied on September 16, 2013 (ECF No. 23).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a ...

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