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Leonard-Rufus El v. Ocwen Loan Servicing, LLC

United States District Court, D. Maryland

March 13, 2014

BRENDA LEONARD-RUFUS EL, RAHN EDWARD RUFUS EL Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, et al. Defendants.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

On October 15, 2013, Plaintiffs Brenda Leonard-Rufus El and Rahn Edward Rufus El filed a Complaint against three corporate and nineteen individual Defendants alleging various claims relating to a foreclosure proceeding on their home. Two groups of Defendants filed Motions to Dismiss. ECF Nos. 6, 10. On January 17, 2014, without consent of the parties or leave of the Court, Plaintiffs filed an Amended Complaint. ECF No. 26. The same groups of Defendants filed Motions to Strike the Complaint or in the alternative, Motions to Dismiss. ECF Nos. 27, 30, 33. For the reasons stated herein, the Court will dismiss the complaint with prejudice and direct the Clerk to close this case.

Facts & Procedural History

In October, 2009, Plaintiffs executed a Note in the amount of $266, 828.00 in favor of U.S. Mortgage Finance Corp. ("USMFC") secured by a Deed of Trust against real property located at 12645 Willow View Place, Waldorf, Maryland. Complaint, ECF No. 1 ("Compl."), at 2. The Deed of Trust originally named Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for USMFC. Motion to Dismiss filed by Substitute Trustees, ECF No. 6 ("Subs. Trustee Mot."), at 1. The Note reflects two special indorsements, from USMFC to GMAC Bank and from GMAC Bank to GMAC Mortgage, LLC and one blank indorsement from GMAC Mortgage LLC f/k/a/GMAC Mortgage Corporation. Motion to Dismiss filed by Ocwen Defendants, ECF No. 10 ("Ocwen Mot."), at 4. On May 13, 2013, Ocwen executed a Deed of Appointment appointing various individuals as substitute trustees. Subs. Trustee Mot., at 3.

The loan subsequently fell into default, and the substitute trustees commenced a foreclosure action in the Circuit Court for Charles County, Maryland. On October 15, 2013, Plaintiff filed a Complaint against twenty-two defendants alleging violations of the 5th Amendment to the United States Constitution, various provisions of Title 18 of the United States Code, the Fair Debt Collection Practices Act ("FDCPA"), the Real Estate Settlement Procedures Act ("RESPA"), fraud, "robo signing" and "MERS." Compl., at 1. The Complaint names three corporate entities-Ocwen, USMFC, and MERS, Inc.-and various individuals, six of whom are the substitute trustees. It seeks compensatory damages of $150, 000, punitive damages, declaratory judgment as to right and title of the property in Plaintiffs' favor, an injunction prohibiting Defendants from foreclosing on the property, fees and costs. Compl., at 3-4.

On December 3, 2013, six Defendants, the "substitute trustees" filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 6. On December 10, 2013, Ocwen Loan Servicing, LLC, MERS, Inc., and eight individual Defendants (the "Ocwen Defendants") filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), Fed.R.Civ.P. 12(b)(2) and Fed.R.Civ.P. 12(b)(6). ECF No. 10. It does not seem that the remaining Defendants have been properly served[1] despite an October 11, 2013 Order directing Plaintiffs to provide addresses for all Defendants within 30 days of the date of the Order in order for the Clerk to issue Summons.[2] ECF No. 11.

From December 19, 2013 to December 24, 2013, the Plaintiffs submitted seven filings. Three are styled "Affidavit of Fact" (ECF Nos. 13, 17, 22), three are styled "Notice of Default" (ECF Nos. 14, 15, 16) and one is styled as a "Certificate of Non-Response/Non-Performance" (ECF No. 18). On December 31, 2013, the Ocwen Defendants filed a Motion to Strike Plaintiffs' Miscellaneous Filings. ECF No. 24.

On January 17, 2014, Plaintiffs filed an Amended Complaint adding additional Defendants and two new counts. ECF No. 26. On January 24, 2014, the Substitute Trustee Defendants filed a Motion to Strike Amended Complaint. ECF No. 27. On January 31, 2014, the Ocwen Defendants filed a Motion to Dismiss Amended Complaint or in the alternative Motion to Strike Amended Complaint. ECF No. 30. On February 14, 2014, the Substitute Trustee Defendants also filed a Motion to Dismiss the Amended Complaint. ECF No. 33. Plaintiffs filed what are docketed as a "Motion to Dismiss Defendant's Motion to Dismiss" and "Motion to Strike Motion to Dismiss" on February 18, 2014 and February 24, 2014. ECF Nos. 35, 36.

Motions to Dismiss

A motion to dismiss pursuant to Rule 12(b)(1) challenges whether the parties have standing to sue. Plaintiffs must show an actual case or controversy by alleging (1) they have suffered an injury in fact, (2) there is a "causal connection between the injury and the conduct complained of" and (3) it must be "likely as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations omitted).

A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id .; see also Simmons & United Mortg. & Loan Invest, 634 F.3d 754, 768 (4th Cir. 2011) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.") (quotation and emphasis omitted). "Thus, [i]n reviewing a motion to dismiss an action pursuant to Rule 12(b)(6)... [a court] must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.'" Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)).

The arguments presented by both groups of Defendants in their unopposed motions to dismiss are well-taken. The Plaintiffs fail to allege a justiciable case or controversy and cannot demonstrate "any concrete and particularized injury in fact that is fairly traceable to actions attributable" to any Defendants. Casey v. Litton Loan Servicing LP, No. RDB-11-0787, 2012 WL 502886 (D. Md. Feb. 14, 2012). This case could therefore properly be dismissed under Federal Rule of Civil Procedure 12(b)(1).

Specifically, however, the Complaint fails to sufficiently plead any valid claims. Plaintiffs' first count, for violations of their Fifth Amendment Due Process Clause rights under 42 U.S.C. § 1983, is improper. In order to plead a claim under § 1983, a plaintiff must plead that a constitutional or statutory right was violated under color of law. The Complaint fails to allege any Maryland or Federal law under which any Defendants were allegedly acting. More significantly, perhaps, they do not allege any facts suggesting that a constitutional right has been violated.

Counts II-IV, VI and VII, violations of Title 18 of the United States Code will be dismissed because these portions of the United States ...


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