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Sindermann v. Wells Fargo Bank, N.A.

United States District Court, D. Maryland

December 23, 2014

DANA SINDERMANN,
v.
WELLS FARGO BANK, N.A. et al.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Plaintiff Dana Sindermann brings this lawsuit against Wells Fargo Bank, N.A. and HSBC Bank USA, N.A. (collectively "defendants"), alleging that they violated the Maryland Mortgage Fraud Protection Act ("MMFPA") and the Maryland Consumer Protection Act ("MCPA"). Sindermann requests monetary, declaratory, and injunctive relief. Pending is defendants' motion to dismiss, which is fully briefed.

Defendants' motion to dismiss will be granted in part and denied in part. Sindermann has not pleaded plausible claims to relief under either statute because his complaint does not sufficiently allege reliance. Accordingly, Counts I and II will be dismissed. Defendants' motion to dismiss Count III of the complaint-requesting declaratory and injunctive relief-will be denied without prejudice as explained below.

BACKGROUND

On September 13, 2005, Sindermann executed a promissory note that was secured by a deed of trust against the property located at 25800 Avonia Lane, Royal Oak, MD ("Property"). (Compl., ECF No. 2 ¶¶ 5, 17). Merchantile Mortgage, LLC transferred the note to Wells Fargo, which later transferred the note to HSBC. ( Id. ¶¶ 18, 20). Sindermann defaulted on the note on August 1, 2009, and later filed for bankruptcy. ( Id. ¶¶ 21-22). His debts were discharged on December 16, 2009. Id. Defendants initiated a foreclosure action on the Property on January 15, 2010, and HSBC bought the Property at a public auction on September 7, 2010. ( Id. ¶¶ 23, 27-28).[1]

Sindermann alleges that after HSBC bought the Property at the foreclosure auction, defendants did not secure the Property nor maintain it in good condition. ( Id. ¶¶ 29, 32-33).[2] The Property allegedly suffered vandalism and damage, including theft of an air conditioner and burst pipes with accompanying water damage. Id.

Defendants filed a "Motion to Vacate Ratification of the Sale, Withdrawal Report of Sale and Dismiss" the foreclosure sale on February 2, 2011, which did not contain a rationale or justification. ( Id. ¶ 36; ECF No. 12-5 at pp. 2-3).[3] Sindermann alleges that defendants failed to properly mail a copy of the motion to him or his counsel, but also states that he was suffering from "worsening depression and withdrawal from society" at the time. ( Id. ¶¶ 36, 38).

The Talbot County Circuit Court granted defendants' motion to vacate on February 7, 2011, and dismissed the foreclosure action without prejudice. ( Id. ¶¶ 39-40). Sindermann acknowledges that he received a copy of the court order granting the motion to vacate on February 10, 2011, (ECF Nos. 20 at p. 20; 20-3), but alleges it took until August 2012 for an agent of defendants to inform Sindermann that he "still owned the Property." (ECF No. 2 ¶ 46). Sindermann alleges that defendants retained possession and control of the Property, because they did not "surrender any proof of ownership or of the sale, " such as providing the Property's keys to Sindermann or the court. ( Id. ¶¶ 42-43). Accordingly, he alleges that while he has legal title to the Property, defendants retain control and possession of it.

Sindermann also alleges that the Property is now damaged and "no longer habitable." ( Id. ¶¶ 47-48). Sindermann has been unable to secure the Property and restore it to a habitable condition due to the cost and has, therefore, been "unable to prevent additional damage to the property, " including a break-in on August 12, 2013, for which the police report estimated $3, 000 in damages. ( Id. ¶¶ 49-50).

Sindermann filed a complaint in the Talbot County Circuit Court on February 6, 2014, which was removed to this court on March 21, 2014. (ECF No. 2). Sindermann alleges that defendants violated two statutes: the Maryland Mortgage Fraud Protection Act ("MMFPA"), Md. Code Ann., Real Prop. § 7-401, et seq (Count I); and the Maryland Consumer Protection Act ("MCPA"), Md. Code Ann., Com. Law §13-101, et seq (Count II). He seeks damages for both counts, and also requests declaratory judgment and injunctive relief in his favor (Count III). Id. Defendants filed a motion to dismiss or in the alternative for summary judgment on April 28, 2014. (ECF No. 12). Oral argument was heard November 12, 2014.

STANDARD

When ruling on a motion brought under Rule 12(b)(6), the court must "accept the wellpled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). "The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). "To satisfy this standard, a plaintiff need not forecast' evidence sufficient to prove the elements of the claim.... However, the complaint must allege sufficient facts to establish those elements." Walters, 684 F.3d at 439 (internal citations and quotation marks omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is probable, ' the complaint must advance the plaintiff's claim across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570).

In deciding whether to grant a motion to dismiss, the court may also consider documents attached to the complaint as well as documents attached to the motion to dismiss, provided that they are "integral to the complaint and authentic." See Sec'y for State for ...


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