United States District Court, District of Maryland
Richard D. Bennett United States District Judge
Plaintiff Kimberly Letke, proceeding pro se, brings this action against Wells Fargo Home Mortgage (“Wells Fargo”), alleging breach of contract under the Home Affordable Modification Program (“HAMP”), 12 U.S.C. § 5219(a) et. seq., and violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq. Pending before this Court are Defendant’s Motion to Dismiss the Amended Complaint (ECF No. 31), Plaintiff’s Motion to Proceed to Jury Trial (ECF No. 38), Plaintiff’s Motion to Have Questions Answered and Jury Trial Date Set (ECF No. 39), Plaintiff’s Motion to Schedule a Hearing and Add Defendant (ECF No. 40), and Plaintiff’s Motion for Emergency Mediation and/or Proceed to a Jury Trial and/or Award Letke $458, 000 (ECF No. 41). The Court has reviewed the parties’ submissions and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). Defendant’s Motion to Dismiss (ECF No. 31) is GRANTED IN PART and DENIED IN PART; specifically, the motion is granted with respect to Plaintiff’s Fair Housing Act claim and denied with respect to Plaintiff’s breach of contract claim under the Trial Payment Plan (“TPP”) established under the HAMP guidelines. Plaintiff’s Motion to Proceed to Jury Trial (ECF No. 38), Motion to Have Questions Answered and Jury Trial Date Set (ECF No. 39), and Motion to Schedule a Hearing and Add Defendant (ECF No. 40) are DENIED. Plaintiff’s Motion for Emergency Mediation and/or Proceed to a Jury Trial and/or Award Letke $458, 000 (ECF No. 41) is DENIED IN PART. Specifically, the motion is denied with respect to Plaintiff’s request to proceed to a jury trial or award Plaintiff $458, 000; however, Defendant must notify the Court within ten days of the date of this Opinion and Order whether Defendant agrees to mediation on the remaining breach of contract claim.
Plaintiff Kimberly Letke filed this action pro se after Defendant Wells Fargo failed to modify her loan under the Home Affordable Modification Program (“HAMP”) and subsequently instituted a foreclosure action against her. See generally Compl., Dec. 27, 2012, ECF No. 1. Plaintiff also asserts Wells Fargo impermissibly discriminated against her, in violation of the Fair Housing Act (“FHA”). Am. Compl. 20, 25, Dec. 23, 2013, ECF No. 21.
Plaintiff is a single woman living in Baltimore City. Compl. ¶ 3, ECF No. 1. Plaintiff was the owner of a home in the 4300 block of Valley View Avenue Baltimore, Maryland 21206. In 2006, Plaintiff sold her home for $235, 000 and bought a property located at 1607 Bridewells Court, Joppa, Maryland 21085 for $380, 000. Am. Compl. 13, ECF No. 21. Plaintiff made a $130, 000 down payment and mortgaged the $250, 000 balance through Wells Fargo. Id. Plaintiff committed to $2, 568 in monthly mortgage payments. Id. Subsequently, Plaintiff began struggling to make her mortgage payments and became delinquent on her mortgage. In May 2010, Plaintiff requested a home loan modification under the HAMP program, but she claims that after months of transmitting documents, making payments, and communicating with Wells Fargo, Defendant denied her home loan modification request. Id. at 14–17.
In November 2011, Wells Fargo pursued a foreclosure sale. Id. at 14. In response, Plaintiff sought to refinance her mortgage again under the HAMP program and believed that she refinanced to a 40-year mortgage with 2 % interest. Id. On November 17, 2011, a Wells Fargo agent allegedly advised Plaintiff that she was approved for a HAMP loan. Id. at 30. On January 9, 2012, Wells Fargo contacted Letke to inform her that the loan modification needed further documentation. Id. at 15. Despite Letke’s pending loan modification approval, Shapiro & Burson LLP, pursuant to their representation of Wells Fargo, instituted foreclosure actions against Plaintiff in 2012. Id. Letke requested mediation, which was conducted in the Harford County Circuit Court. Id. at 15, 30.
Plaintiff originally filed this action against Defendant Wells Fargo Home Mortgage (“Wells Fargo”), John Stumpf (“Stumpf”), and Adam Velde (“Velde”) on December 27, 2012. See generally Compl., ECF No. 1. On March 25, 2013, Defendant Wells Fargo filed a Motion for a More Definite Statement, while Stumpf and Velde filed a Motion to Dismiss. On November 23, 2013, this Court dismissed the claims against Velde and Stumpf and granted Defendant Wells Fargo’s Motion for a More Definite Statement. See generally Order Granting Def.s’ Mot. to Dismiss; Order Granting Def. Wells Fargo’s Mot. for More Definite Statement, ECF No. 20.
On December 23, 2013, Plaintiff filed an Amended Complaint (ECF No. 21) pursuant this Court’s order. See Order for a More Definite Statement, ECF No. 20. Plaintiff’s first count sought to pursue a cause of action under HAMP guidelines. 12 U.S.C. § 5219(a); see Am. Compl. 17, 25, ECF No. 21. Plaintiff alleged that Wells Fargo unnecessarily delayed her mortgage modification and did not credit her account with $18, 000 in Trial Payment Plan (“TPP”) payments. Am. Compl. 13–15, 23, ECF No. 21. In her second count, Plaintiff asserts that Wells Fargo violated the Fair Housing Act (FHA), Title VIII of the Civil Rights Act, 42 U.S.C. § 3601 et seq. Am. Compl. 25, ECF No. 21.
Defendant subsequently filed the pending Motion to Dismiss. Def.’s Mot. to Dimiss, ECF No. 31. Defendant argues that the HAMP does not provide a private cause of action, that Plaintiff failed to allege facts to establish a plausible claim that she was discriminatorily targeted under the Fair Housing Act, and that Plaintiff’s claims are barred by res judicata. See generally Def.’s Mot. to Dismiss Ex., ECF No. 31–1.
Plaintiff filed a response, see Pl.’s Resp. to Mot. to Dismiss, ECF. No 33, and a supplemental response, see Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 36, to Defendant’s Motion to Dismiss. Defendant’s reply argued that Plaintiff sustained relief after bargaining over terms and voluntarily executing a loan modification after the initiation of litigation in this Court. See Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 37.
While Defendant’s Motion to Dismiss remained pending, Plaintiff filed numerous motions to compel discovery answers and proceed to a jury trial. See generally Pl.’s Mot. to Proceed to Jury Trial, ECF No. 38; Pl.’s Mot. to Have Questions Answered and Jury Trial Date Set, ECF No. 39; Pl.’s Mot. to Schedule a Hr’g and Add Defendant, ECF No. 40. In addition, Plaintiff wishes to pursue mediation. Pl.’s Mot. for Emergency Mediation, ECF No. 41.
STANDARD OF REVIEW
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court’s decision in Twombly articulated “[t]wo working principles” that courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim). In the context of pro se litigants, however, pleadings are “to be liberally construed, ” and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th Cir. 2010).
Second, even a pro se complaint must be dismissed if it does not allege “a plausible claim for relief.” Iqbal, 556 U.S. at 679 (recognizing no pro se exception to the requirement to plead a “plausible claim for relief”); see also O’Neil v. Ponzi, 394 F. App’x. 795, 796 (2d Cir. 2010) (unpublished) (“We must dismiss pro se complaints that are frivolous or fail to state a claim.”). Although a “plaintiff need not plead the evidentiary standard for proving” her claim, she may no longer rely on the mere possibility that she could later establish her claim. McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., - F.3d -, 2015 WL 1088931, *4 (4th Cir. 2015) (emphasis omitted) (discussing Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) in light of Twombly and Iqbal). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. While the plausibility requirement does not impose a “probability requirement, ” id. at 556, “[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.” Iqbal, 556 U.S. at 678; see also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to state elements of the claim.” (emphasis in original) (internal quotation marks and citation omitted)). In making this assessment, a court must “draw on its judicial experience and common sense” to determine whether the pleader has stated a plausible claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its] claims across the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC, 680 F.3d at 365 (internal quotation marks omitted).
In her Amended Complaint, Plaintiff alleges two counts of breach of contract. In her first count, Plaintiff sought to pursue a cause of action under HAMP guidelines. 12 U.S.C. § 5219(a); see Am. Compl. 17, 25, ECF No. 21. In her second count, Plaintiff asserts that Wells Fargo violated the Fair Housing Act, Title VIII of the Civil Rights Act, 42 U.S.C. § 3601 et seq. Am. Compl. 25, ECF No. 21. In response, Defendant asserts that res judicata bars Plaintiff’s claims. Def.’s Mot. to Dismiss 6–10, ECF No. 31–1. In addition to her Amended Complaint, Plaintiff filed numerous motions to add defendants, compel discovery, and request emergency mediation. See generally Pl.’s Mot. to Proceed to Jury Trial, ECF No. 38; Pl.’s Mot. to Have Questions Answered and Jury Trial Date Set, ECF No. 39; Pl.’s Mot. to Schedule a Hr’g and Add Defendant, ECF No. 40; Pl.’s Mot. for Emergency Mediation, ECF No. 41.
I. Home Affordable Modification Program Breach of Contract Claim
Plaintiff explicitly attempts to file a private cause of action based on the Home Affordable Modification Program’s (“HAMP”) guidelines. Am. Compl. 28–31, ECF No. 21. As will be explained below, this Court liberally construes the thrust of Plaintiff’s argument as asserting that the Trial Payment Plan (“TPP”) constituted a contract between her and Wells Fargo and that Wells Fargo breached the contract when it failed to modify her loan. Am. Compl. 13, ECF No. 21. In addition to emotional hardship, Plaintiff alleges that she suffered fees imposed by the bank, that $18, 000 of her TPP payments were not credited to her mortgage, and that her credit score was negatively affected by Wells Fargo’s failure to perform. See generally Am. Compl., ECF No. 21. Plaintiff also prays for $458, 000 and attorney’s fees. Id. at 28–29.
A. Private Right of Action under Home Affordable Modification Program Guidelines
Plaintiff clearly attempts to pursue a private right of action under HAMP guidelines in her status as a third party beneficiary of the program. See Am. Compl. 1, ECF No. 21 (identifying 12 U.S.C. §§ 5201, 5211, 5213, 5219, 5225 as the basis of her first claim); see also id. at 17–20, 28–31. As this Court previously noted, Congress did not “create a private right of action to enforce the HAMP guidelines.” See Allen v. CitiMortgage, Inc., No. CIV. A. CCB– 10–2740, 2011 WL 3425665, at *8 (D. Md. Aug. 4, 2011). Indeed, courts have “universally rejected” claims asserting entitlement to permanent loan modifications under HAMP itself. Bourdelais v. J.P. Morgan Chase Bank, N.A., No. CIV. A. 10–0670–HEH, 2011 WL 1306311, at *3 (E.D. Va. April 1, 2011).
Courts in this district, however, have held enforcement of the TPP, if one exists, may give rise to a private right of action separate from HAMP. See Stovall v. SunTrust Mortg., Inc., No. CIV. A. RDB–10–2836, 2011 WL 4402680, at *11 (D. Md. Sept. 20, ...