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Lucero v. Freddie Mac Equity Plus I-Esic Limited Partnership

United States District Court, D. Maryland

July 28, 2015

GLADYS LUCERO, Plaintiff,
v.
FREDDIE MAC EQUITY PLUS I-ESIC LIMITED PARTNERSHIP; OCWEN LOAN SERVICING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEM; SAMUEL I. WHITE, PC; 101 GENEVA, LLC; INDYMAC FINANCIAL SERVICES; ONE WEST BANK; MCCABE, WEISBERG, CONWAY, LLC; and DOE(S) 1-100; Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, District Judge.

This case is before the Court on Defendants 101 Geneva, LLC and Samuel I. White, PC's Motion to Dismiss, ECF No. 4, and Defendants Freddie Mac Equity Plus I-ESIC Limited Partnership, Mortgage Electronic Registration System, Ocwen Loan Servicing, LLC, and One West Bank's Motion to Dismiss, ECF No. 12. Having reviewed the briefs, the Court finds no hearing necessary. see Local Rule 105.6 (D. Md. 2014). For the reasons set forth below, both Motions to Dismiss are GRANTED.

BACKGROUND

Plaintiff Gladys Lucero ("Lucero") proceeds in this action pro se. On October 27, 2005, Lucero and Orlando Delgado took out a mortgage loan from Wilmington Finance for $300, 000 to finance their purchase of property located at 9203 Wellington Court, Lanham, Maryland. Prince George's County Land Records, Book 23724 at 619-21, available at http://mdlandrec.net.[1] On November 30, 2007, Lucero and Delgado refinanced their mortgage with Defendant IndyMac Bank ("indyMac"), taking out a $389, 700 mortgage. Id., Book 29095 at 330-351. The deed of trust expressly listed the Mortgage Electronic Registration System ("MERS") as the beneficiary of the security instrument, "solely as a nominee for Lender." Id., Book 29095 at 330. In 2008, IndyMac went into receivership, and the FDIC was appointed as its conservator. In 2009, One West Bank ("One West") acquired all of IndyMac's accounts, and IndyMac became a division of One West. see IndyMac and One West Loan Sale Agreement, available at https://www.fdic.gov/about/freedom/IndyMacLoanSaleAgrmt.pdf; see Compl., Ex. 5, ECFNo. 1-5.[2]

In 2012, Lucero and Delgado began to "experience] unforeseen financial hardship" and fell behind on their mortgage payments. Compl. ¶ 33, ECF No. 1. As a result, they began to "receiv[e] demands for payment and threats of foreclosure" from IndyMac "in violation of the Fair Debt Credit Collection Practices Act" ("FDCPA"), 15 U.S.C. § 1601 et seq. Compl. ¶¶ 13, 15. During this period, Lucero and Delgado worked with Freddie Mac Equity Plus I-ESIC Limited Partnership ("Freddie Mac") to secure a loan modification from One West. Those efforts were fruitless because, in Lucero's estimation, the banks and Freddie Mac "refused to work in any reasonable way to modify the loan to avoid foreclosure." Id. ¶ 33. Lucero asserts that MERS then colluded with IndyMac and One West to "hijack the Mortgage and then foreclose the property." Id.

On March 8, 2013, foreclosure proceedings on the property were instituted in the Circuit Court for Prince George's County by O'Sullivan, Brady, Theologu, McCabe, Weisberg, and Conway, LLC ("McCabe"), acting as a substitute trustee for One West. Brady v. Lucero, Civ. Action No. CAE13-07125 (Cir. Ct. Prince George's Co. March 8, 2013), available at http://casesearch.courts.state.md.us.[3] Lucero asserts that, in relation to the foreclosure proceeding and the demands for payment leading up to that proceeding, McCabe and IndyMac engaged in "extortion by demanding money" from her in violation of the FDCPA. Compl. ¶ 24.

On June 11, 2013, the property was sold at auction to 101 Geneva, LLC ("101 Geneva"). Prior to the sale, Lucero and Delgado did not file any legal challenge to the foreclosure. see Brady v. Lucero, Civ. Action No. CAE13-07125. On June 13, 2013, Samuel I. White, PC ("White"), attorneys for 101 Geneva, sent a letter to Lucero and Delgado informing them that 101 Geneva now owned 9203 Wellington Court, that Lucero and Delgado had 30 days to vacate the premises, and that if they failed to vacate the home in 30 days, they would be responsible for paying 101 Geneva for the reasonable monthly value of the property. The letter specifically stated that it was a "Notice of Collection" and that by sending it, White was "attempt[ing] to collect debt for another." Compl., Ex. 4 at 4, ECF No. 1-4. Lucero asserts that, as a result of its collection efforts, White has violated the FDCPA.

On July 15, 2013, Lucero and Delgado filed a Motion to Dismiss in the foreclosure action in which they challenged the validity of the sale. Freddie Mac Mot. to Dismiss, Ex. I, ECF No. 12-10 (copy of filing). On August 7, 2014, the Circuit Court ratified the sale. Brady v. Lucero, Civ. Action No. CAE13-07125. The foreclosure action remains open in the Circuit Court, and an appeal from the ratification order is pending in the Maryland Court of Special Appeals. see Id.

On June 27, 2014, Lucero and Delgado filed a separate lawsuit against Freddie Mac, IndyMac, One West, MERS, McCabe, 101 Geneva, and White in which they alleged eight causes of action: (1) wrongful foreclosure, (2) quiet title, (3) a request for declaratory relief, (4) gross negligence, (5) breach of written contract, (6) fraud or duress, (7) a request for an accounting, and (8) expungement of equitable lien and satisfaction of lien. Compl, Lucero v. Freddie Mac Equity Plus I ESIC LP, et al., Civ. Action No. CAE13-18389 (Cir. Ct. Prince George's Co. June 27, 2014).[4] That case was ultimately dismissed with prejudice. see Lucero v. Freddie Mac Equity Plus I ESIC LP, et al, Civ. Action No. CAE13-18389, Docket Entry No. 11, available at http://casesearch.courts.state.md.us.

On September 30, 2014, Lucero filed the instant case in this Court alleging nine causes of action: (1) wrongful foreclosure, (2) quiet title, (3) a request for declaratory relief, (4) gross negligence, (5) breach of written contract, (6) fraud or duress, (7) a request for an accounting, (8) expungement of equitable lien and satisfaction of lien, and (9) a violation of the FDCPA. To date, Lucero has failed to serve the Complaint on IndyMac or McCabe.

On November 25, 2014, 101 Geneva and White filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) contending, in relevant part, that Lucero's FDCPA count must be dismissed against them because they are not debt collectors within the meaning of the statute, and that Lucero's remaining claims are barred by res judicata. On December 1, 2014, Freddie Mac, MERS, Ocwen Loan Servicing ("Ocwen"), and One West also filed a Motion to Dismiss pursuant to Rule 12(b)(6) contending, in relevant part, that Lucero's FDCPA count must be dismissed against them because they are not debt collectors within the meaning of the statute, and that Lucero's remaining claims are barred by Younger abstention, see Younger v. Harris, 401 U.S. 37 (1971), and res judicata. Lucero did not respond to either motion.

DISCUSSION

I. Legal Standard

To overcome a Rule 12(b)(6) motion, a complaint must present a viable legal theory and must allege enough facts to state a plausible claim for relief under that theory. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible 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. Legal ...


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