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Bey v. Shapiro Brown & Alt, LLP

United States District Court, D. Maryland, Southern Division

February 20, 2014

MALIK BEY, Plaintiff,
v.
SHAPIRO BROWN & ALT, LLP, et al., Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion resolves three related filings:

(1) Defendant New York Community Bank's ("NYCB") Motion to Dismiss, ECF No. 17, and supporting Memorandum ("NYCB's Mem."), ECF No. 17-1; Plaintiff Malik Bey's Response ("Pl.'s NYCB Opp'n"), ECF No. 22; and NYCB's Reply, ECF No. 24;

(2) Defendant Shapiro Brown & Alt, LLP's ("SBA") Motion to Dismiss, ECF No. 20, and supporting Memorandum ("SBA's Mem."), ECF 20-1; Plaintiff's Response ("Pl.'s SBA Opp'n"), ECF No. 23; and SBA's Reply, ECF No. 27; and

(3) Plaintiff's Motion to Strike SBA's Reply or, in the Alternative, to File a Surreply, ECF No. 28.

A hearing is unnecessary in this case because the issues adequately are presented on the filings. See Loc. R. 105.6. For the reasons explained below, Defendants' motions to dismiss both will be GRANTED. Plaintiff's Motion to Strike or, in the Alternative, to File a Surreply will be DENIED.

I. BACKGROUND

For purposes of considering Defendants' motions, this Court accepts the facts that Plaintiff alleged in his pro se Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). In February 2006, Plaintiff purchased his property after executing a promissory note (the "Note") for a mortgage from Nationwide Mortgage Services, LLC, secured by a Deed of Trust. Am. Compl. ¶ 6, ECF No. 15. The Note provides: "I understand that Lender may transfer this Note." Note 1, ¶ 1, SBA's Mem. Ex. C, ECF No. 20-4.[1] Another relevant section of the Note provides:

I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

Id. at 4, ¶ 10.

The Note was transferred from Nationwide Mortgage Services, LLC to Ohio Savings Bank, Am. Compl. ¶ 7, which changed its name in 2007 to AmTrust Bank, see History of (FDIC #: 29776) in Cleveland, OH, Fed. Deposit Ins. Corp. (Dec. 4, 2009), http://research.fdic.gov/bankfind/detail.html?bank=29776&na.[2] AmTrust Bank subsequently was operated as NYCB, following a transfer supervised by the FDIC. Id.

When Plaintiff first received requests from NYCB for payments on the Note, he asked for documentation establishing NYCB's right to collect. Am. Compl. ¶ 9. NYCB responded by providing a copy of the Note, endorsed to Ohio Savings Bank. See id. ¶ 10. Plaintiff did not consider this sufficient evidence of NYCB's right to collect and refused to make payments. See id. ¶¶ 10-11.[3] Based on Plaintiff's refusal to pay, NYCB retained SBA in 2012 to begin foreclosure proceedings. Id. ¶¶ 12-14.

When SBA contacted Plaintiff with regard to the foreclosure, Plaintiff requested that SBA also provide proof of its right to foreclose on the mortgage. Id. ¶ 16. SBA provided a copy of the Note endorsed to Ohio Savings Bank. Id. In May 2012, SBA began foreclosure proceedings by serving Plaintiff with an Order to Docket by posting it on the property on May 27, 2012 and mailing it to Plaintiff on May 29, 2012. Id. ¶ 17. The Order to Docket attached a copy of the endorsed Note, authenticated by an affidavit. Id. ¶ 18.

After receiving notice of the foreclosure, Plaintiff requested from SBA "documentation [demonstrating] that NYCB had authority to appoint [SBA] to initiate the foreclosure action." Id. ¶ 22. This time, the Note sent by SBA contained a second endorsement, in which a single signatory endorsed the mortgage to the FDIC as receiver for Ohio Savings Bank and then from the FDIC to NYCB. Id. ¶ 23. According to Plaintiff, the signature on this second endorsement varied significantly from the signature purporting to be from the same person on the first endorsement and, therefore, the signatures "were perjured." Id. ¶ 24. Plaintiff then requested to inspect the original Note; having done so, Plaintiff alleges that the Note was "markedly different" because the related endorsement contained no handwritten alterations. Id. ¶¶ 28-29.

Plaintiff filed his original pro se Complaint in this Court on May 30, 2013. Compl., ECF No. 1. Following NYCB's first Motion to Dismiss, ECF No. 11, Plaintiff filed an Amended Complaint, ECF No. 15, pursuant to Fed.R.Civ.P. 15(a)(1)(B). Plaintiff's three-count Amended Complaint alleges (1) a claim against SBA for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692f(6), 1692e(5); (2) claims against SBA and NYCB for violations of the Maryland Consumer Debt Collection Act ("MCDCA"), Md. Code Ann., Com. ...


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