United States District Court, D. Maryland
JAIME B. PALACIOS, Plaintiff,
U.S. BANK NATIONAL ASSOCIATION, ET AL., Defendants.
Lipton Hollander United States District Judge
Palacios, who is self-represented, filed suit on July 16,
2015, against U.S. Bank, National Association ("U.S.
Bank") and the law firm of Samuel I. White, P.C.
("White"), defendants, alleging that defendants
made "unlawful attempts to collect delinquent home
mortgage debts" (ECF 1 ¶ 1), submitted false
evidence to a federal court, and engaged in civil conspiracy.
See ECF 1. U.S. Bank and White moved to dismiss the
complaint. ECF 8; ECF 13. With leave of court (ECF 21),
plaintiff filed a "First Amended Complaint" (ECF
22), supported by five exhibits. ECF 22-1 through ECF 22-5.
Plaintiff seeks declaratory relief (Count I) and alleges
claims for civil fraud (Count II and Count III); "civil
RICO" (Count IV); "civil cospiracy [sic]"
(Count VI); bad faith (Count VII); and
"negligence and gross negligence" (Count VIII). ECF
22 ¶¶ 44-81.
to rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of
Civil Procedure, White has moved to dismiss or, in the
alternative, for summary judgment (ECF 23). The motion is
supported by a memorandum of law (ECF 23-1) (collectively,
the "White Motion") and five exhibits. ECF 23-2
through ECF 23-6. Pursuant to Fed. R Civ. P. 12(b)(6), U.S.
Bank has moved to dismiss plaintiff's "First Amended
Complaint" (ECF 25), supported by a memorandum of law
(ECF 25-1) (collectively, the "U.S. Bank Motion"),
and eleven exhibits. ECF 25-2 through ECF 25-12.
has not responded to the White Motion (ECF 23) or to the U.S.
Bank Motion (ECF 25), and the time to do so has
expired. See Local Rule 105.2(a). Instead,
plaintiff has filed a "Motion for Leave to File Second
Amended Complaint" (ECF 27, "Motion to
Amend"). See also ECF 27-1, proposed Second
Amended Complaint, as corrected by ECF 28-1. Both White (ECF
29) and U.S. Bank (ECF 30) oppose the Second Motion to Amend,
and plaintiff has replied. ECF 31; ECF 32.
hearing is necessary to resolve the motions. See
Local Rule 105.6. For the reasons that follow, I will
construe the White Motion (ECF 23) as a motion to dismiss and
grant it. I will also grant the U.S. Bank Motion. ECF 25.
And, I will deny the Second Motion to Amend. ECF 27.
Factual and Procedural Background
31, 2003, plaintiff purchased a residential property in Falls
Church, Virginia (the "Property"). ECF 25-2 at 3-4.
In connection with the purchase, plaintiff executed a deed of
trust that secured a mortgage of $320, 000 as a lien on the
Property. ECF 25-3 at 3-10. On May 30, 2006, plaintiff
executed a "Gift Deed" (ECF 25-4 at 3-4), which
vested the Property in the names of Jaime Palacios and Monica
Palacios as "Tenants by the Entirety." Id.
at 3. Monica Palacios is the wife of Jaime
Palacios. Jaime and Monica Palacios refinanced the
mortgage on June 9, 2006, obtaining a loan in the amount of
$455, 000. ECF 25-5 at 3-18. A "Note" as to the
Property in the amount of $455, 000, dated June 9, 2006,
identifies the "Lender" as "First National
Bank of Arizona." ECF 22-3 at 6-8. Monica Palacios alone
signed the "Note" as "Borrower."
Id. at 8.
to a "Loan Modification Agreement" dated November
19, 2009, between Monica and Jaime Palacios and "Wells
Fargo Bank, N.A., d/b/a/ America's Servicing
Company" (ECF 22-2), the "‘Unpaid Principal
Balance'" increased to $479, 045.30. See Id
. at 1-2. As discussed, infra, plaintiff
vigorously contests the authenticity of the "Loan
Modification Agreement." See ECF 22 ¶ 17.
of an "Assignment" dated April 1, 2011 (ECF 25-6 at
3), the deed of trust for the Property was transferred from
"Mortgage Electronic Registration Systems, Inc.
(‘MERS'), as nominee for First National Bank of
Arizona . . ." to U.S. Bank, "as Trustee, successor
in interest to Bank of America, National Association, as
Trustee (successor by merger to LaSalle Bank National
Association) as Trustee for Morgan Stanley Mortgage Loan
Trust 2006-12XS, its successors . . . ." Id.
Wells Fargo Bank, N.A. ("Wells Fargo") served as
U.S. Bank's mortgage servicer. See ECF 22 at 2;
see also In Re Jaime Palacios, 13-11200-RGM (Bankr.
E.D. Va.) (ECF 21). At some unspecified point, Monica and
Jamie Palacios ceased to make payments on the mortgage and
foreclosure proceedings commenced.
Bank asserts, ECF 25-1 at 2: "Plaintiff . . . has
engaged in a multi-court, multi-year campaign" against
U.S. Bank, White, and others "in an effort to prevent
the foreclosure of his property." From the parties'
submissions, it is not possible to ascertain the complete
history of plaintiff's legal battles to stave off
foreclosure as to the Property. However, the relevant procedural
history is as follows:
27, 2011, in the United States Bankruptcy Court for the
Eastern District of Virginia, Monica Palacios filed a
voluntary petition for bankruptcy under Chapter 7 of the
United States Bankruptcy Code. In re Monica
Palacios, 11-15499-RGM (Bankr. E.D. Va.) (ECF 1). She
received a discharge on November 23, 2011. Id., ECF
25, 2012,  plaintiff, as next friend of his minor
children, Vittorio Palacios and Vanessa Palacios, as well as
Alexandra Palacios, plaintiff's adult child,
filed a "Complaint to Enjoin Foreclosure" in the
Circuit Court of Fairfax County, Virginia. ECF 25-7. The
"Complaint to Enjoin Foreclosure" named as
defendants Professional Foreclosure Corporation of Virginia
("PFC"), the substitute trustee, and U.S. Bank.
Id. at 1. The "Complaint to Enjoin
Foreclosure" stated, in relevant part, id. at
This is a complaint to stop a foreclosure on a property under
a deed of trust that secures a note on which there is no
liability by the current owners. The complaint claims that
the current owners are minors and therefore there must be a
court hearing on the issues of the case, that underlying
[sic] deed of trust is flawed and invalid and that the
appointment of the substitute trustee to conduct the
foreclosure sale (which has been noticed to July 31, 2012)
was improperly appointed and lacks authority.
particular, the "Complaint to Enjoin Foreclosure"
contended that U.S. Bank did not hold a valid promissory note
as to the Property. ECF 25-7 at 3 ¶ 8. It ...