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.

Franklin v. BWW Law Group, LLC

United States District Court, D. Maryland

May 12, 2016

FLORENCE DIANE FRANKLIN
v.
BWW LAW GROUP, LLC

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

Presently pending and ready for resolution in this consumer lending case is a motion to dismiss filed by Defendant BWW Law Group, LLC (“Defendant” or “BWW”). (ECF No. 8). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant’s motion to dismiss will be granted.

I. Background

A. Factual Background[1]

On May 19, 2006, Plaintiff entered into a mortgage loan agreement (the “Loan”) regarding the property located at 3206 Spriggs Request Way, Bowie, Maryland 20721 (the “Property”). Plaintiff executed a promissory note (the “Note”) and a deed of trust (the “Deed of Trust”) to secure the Loan from NovaStar Mortgage, Inc. (“NovaStar”), the original lender. (ECF No. 8-3, at 35, 56).[2] The Deed of Trust was recorded on May 31, 2006, in the land records for Prince George’s County in Liber 25204, Folio 109-127. (ECF Nos. 2-1, at 1; 8-3, at 34).

On February 13, 2013, NovaStar assigned the Deed of Trust to Deutsche Bank National Trust Company, solely as trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-6 (the “Deutsche Bank Trustee”). (ECF No. 8-5). Defendant asserts that Plaintiff defaulted on her Loan repayment obligations on June 2, 2015. (ECF No. 8-3, at 54-55). On October 9, Plaintiff was served with a notice of intent to foreclose. (Id. at 76-103). In November, Ocwen Loan Servicing, LLC (“Ocwen”), as loan servicer for the Deutsche Bank Trustee, substituted Carrie Ward, Howard Bierman, Jacob Gressing, Pratima Lele, Joshua Coleman, Richard Goldsmith, Ludeen McCartney-Green, Jason Kutcher, Elizabeth Jones, Nicholas Derdock, Andrew Brenner, and Angela Dawkins (the “Substitute Trustees”) as trustees under the Deed of Trust. (ECF No. 8-6). On December 10, the Substitute Trustees filed an order to docket foreclosure against the Property in the Circuit Court for Prince George’s County (the “Foreclosure Action”). The case was numbered CAEF15-37286. (ECF No. 8-4). According to the state court docket, a report of sale was filed on April 21, 2016.

B. Procedural Background

Plaintiff, proceeding pro se, commenced this action in the Circuit Court for Prince George’s County on January 29, 2016. Defendant received a copy of the complaint on February 4 and removed the case to this court on February 18. (ECF No. 1). According to Plaintiff, Defendant’s representatives “are attempting an unlawful and illegal[] foreclosure sale of [Plaintiff’s] home.” (ECF No. 2, at 4). She advances vague claims against Defendant for, inter alia: willful fraud; wrongful or fraudulent foreclosure; quiet title; violations of the Maryland Fair Business Practices Act; the Maryland Uniform Deceptive Trade Practices Act; perjury; fraud upon the court; and slander of title. (See Id. at 1-4). The complaint also appears to assert claims arising under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq. (See Id. at 2, 6-7). Plaintiff’s complaint seeks declaratory relief, emergency injunctive relief, and monetary damages.

Defendant moved to dismiss the complaint on February 22, 2016. (ECF No. 8). Plaintiff was provided with a Roseboro notice, which advised her of the pendency of the motion to dismiss and her entitlement to respond within 17 days. (ECF No. 9); see Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding that pro se plaintiffs should be advised of their right to file responsive material to a motion for summary judgment). Plaintiff responded in opposition (ECF No. 11), and Defendant replied (ECF No. 12). On April 4, Plaintiff moved for an emergency temporary restraining order and stay pursuant to Fed.R.Civ.P. 65, requesting that the court void and set aside all orders and judgments granting foreclosure on the Property. (ECF No. 13). The court denied Plaintiff’s emergency motion. (ECF No. 15). Plaintiff also moved to dismiss Defendant’s reply brief in support of its motion to dismiss. (ECF No. 14). Defendant responded (ECF No. 16), and Plaintiff replied (ECF No. 17).[3]

II. Standards of Review

Defendant challenges Plaintiff’s standing to bring this action. Because standing is an element of subject matter jurisdiction, Defendant’s motion to dismiss for lack of standing should be treated under Fed.R.Civ.P. 12(b)(1). See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, 661-62 (4th Cir. 1998) (affirming the district court’s dismissal of the complaint for lack of standing pursuant to Rule 12(b)(1)). The existence of subject matter jurisdiction is a threshold issue the court must address before considering the merits of the case. Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). The court should grant the motion to dismiss only “if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In making this determination, the court “is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. Moreover, the plaintiff has the burden of proving that subject matter jurisdiction exists. Id.

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Fed.R.Civ.P. 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” “Rule 8(a)(2) still requires a ‘showing, ’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

Allegations of fraud, which Plaintiff asserts throughout the complaint, are subject to the heightened pleading standard of Fed.R.Civ.P. 9(b). Harrison, 176 F.3d at 783. Rule 9(b) states that, “in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Such circumstances typically “include the ‘time, place, and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.’” Id. at 784 (quoting 5 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1297 (2d ed. 1990)). Rule 9(b) provides the defendant with sufficient notice of the basis for the plaintiff’s claim, protects the defendant against frivolous suits, eliminates fraud actions where all of the facts are ...


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.