Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schaefgen v. O'Sullivan

United States District Court, D. Maryland, Southern Division

July 28, 2015

COLLEEN H. SCHAEFGEN AS TRUSTEE, et al., Plaintiffs,
v.
LAURA H.G. O'SULLIVAN, et al., Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

After foreclosure proceedings were commenced against her in state court, Plaintiff, acting without counsel, brought this case raising several claims arising under the Fair Debt Collection Practices Act, the Real Estate Settlement Procedures Act, and seeking a writ of replevin and to prevent the foreclosure. Defendants have moved to dismiss, arguing that Plaintiff has not pleaded her federal claims with particularity, that a writ of replevin is not available over real property, and that this Court can neither interfere in a pending foreclosure action nor void a sale that has not yet occurred. Plaintiff responds by arguing, inter alia, that she should not be required to meet sophisticated or onerous pleading standards to state a claim. Because I find that Plaintiff has pleaded few, if any, relevant facts, I agree with Defendants and find that she has not stated a claim under federal law, and I also agree with Defendants that she has not stated a valid and ripe state-law claim. But although I grant the motion to dismiss, I also give Plaintiff the opportunity to amend her complaint to allege a valid claim, if she can do so consistent with the limits imposed in the accompanying Order.

I. BACKGROUND

For the purposes of considering Defendantss motion, I accept the facts that Plaintiff has alleged in her Amended Complaint, ECF No. 19, as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). On March 30, 2004, Plaintiff Colleen H. Schaefgen[1] took out a loan from Vision Mortgage, LLC ("Vision") in the amount of $286, 500 (the "Loan" or the "Mortgage") and secured by a deed of trust (the "Deed of Trust") on her residence at 1707 Belvedere Boulevard, Silver Spring, Maryland (the "Property"). See Note, Defs.' Mem. of Law in Supp. of Mot. to Dismiss Pl.'s Am. Compl. ("Def.'s Mem"). Ex. A, ECF No. 20-2; Deed of Trust, Def.'s Mem. Ex. 3, ECF No. 20-3.[2] That same day, Vision executed an allonge to the note making it payable to National City Mortgage. Note 5.

Schaefgen has not provided any allegations regarding her relationship with any of the Defendants. According to Defendants, Defendant PNC Bank, N.A. ("PNC") is the successor in interest to National City Mortgage. Def.'s Mem. 3, ECF No. 20-1. On February 27, 2013, PNC executed a Deed of Appointment of Substitute Trustees, Def.'s Mem. Ex. C, ECF No. 20-4, appointing Defendants Laura H.G. O'Sullivan, Erin M. Brady, Diana C. Theologou, Laura L. Latta, Jonathan Elefant, Laura T. Curry, and Chasity Brown as substitute trustees (the "Substitute Trustees") under the Deed of Trust.

The allegations in the Amended Complaint are convoluted and difficult to follow. However, Schaefgen alleges that she received a notice of trustee sale on or about July 7, 2014 notifying her of an imminent foreclosure sale of the Property. Compl. 2. She further alleges that Defendants do not have any right to attempt to collect the outstanding Mortgage, that they do not have the right to foreclose on the Property, that they have threatened legal action that they did not intend to take, and that they have sought to collect information about Schaefgen and the Property to facilitate their collection efforts. Id.

Schaefgen initially filed a complaint against Defendants in the Circuit Court for Montgomery County on July 15, 2014, Compl., Schaefgen v. O'Sullivan, No. PWG-14-3118 (D. Md. filed Oct. 3, 2014) ("Case No. 14-3118"), ECF No. 2. On September 22, 2014, she filed a similar case against the same Defendants in this Court. Compl., ECF No. 1. On October 3, 2014, Defendants removed Case No. 14-3118 to this Court, Notice of Removal, ECF No. 1 in Case No. 14-3118, and shortly thereafter, the two cases were consolidated, Paperless Order, ECF No. 10 in Case No. 14-3118. Defendants moved to dismiss the Complaint, Defs.' Mot. to Dismiss, ECF No. 12, and Schaefgen amended her complaint as a matter of course pursuant to Fed.R.Civ.P. 15(a)(1)(B), see Am. Compl.; Letter Order, ECF No. 18.

The Amended Complaint enumerates sixteen counts: Counts I, II, VII, XI, XIII, and XV allege violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.; Counts III, IV, VIII, XII, XIV, and XVI allege violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq.; Counts V and IX seek to set aside or vacate the foreclosure sale of the Property; and Counts VI and X seek a writ of replevin. On February 12, 2015, Defendants served the pending Motion to Dismiss Amended Complaint ("Defs.' Mot."), ECF No. 20, and supporting Memorandum, Defs.' Mem. ECF No. 20-1. Schaefgen filed her Opposition ("Pl.'s Opp'n"), ECF No. 22, and Defendants have Replied ("Defs.' Reply"), ECF No. 24.

On April 6, the Clerk of this Court docketed a letter returning a purported surreply to Schaefgen. Letter from Felica C. Cannon, Clerk, to Colleen H. Schaefgen (Apr. 23, 2015), ECF No. 25. On April 17, 2015, Schaefgen filed a Request for Leave to File Surreply or a Findings of Fact ("Pl.'s Mot. for Surreply"), ECF No. 26, and Defendants have opposed the motion ("Defs.' Surreply Opp'n"), ECF No. 27. Schaefgen has not filed a reply in support of her Motion for Surreply and the time to do so has passed. Loc. R. 105.2. Having reviewed the filings, I find a hearing is not required. Loc. R. 105.6.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "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.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, 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), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79; see Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). "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 663.

Although Plaintiff is proceeding pro se and her complaint is to be construed liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), this does not absolve Plaintiff of her obligation to plead a plausible claim, see Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977)).

III. DISCUSSION

A. Plaintiff's Motion to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.