United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
se Plaintiffs Flaubert Mbongo and Charlotte J. Dikongue
(hereinafter “Plaintiffs”) have sued Specialized
Loan Servicing, LLC (“SLS”), alleging violations
of the Home Equity Protection Act (HOEPA), 15 U.S.C. §
1639; the Real Estate Settlement Procedures Act (RESPA), 12
U.S.C. §§ 2601, et seq.; the
Truth-in-Lending Act (TILA), 15 U.S.C. § 1601, et
seq.; the Fair Credit Reporting Act (FCRA), 15 U.S.C.
§ 1681, et seq.; and the Maryland Consumer
Protection Act (MCPA),  Md. Code Ann., Com. Law § 13-101,
et seq. Plaintiffs add Counts for common law fraud,
breach of fiduciary duty, unjust enrichment, and civil
conspiracy. SLS has moved to dismiss all of Plaintiffs’
claims. For the reasons that follow, SLS’s Motion to
Dismiss for Failure to State a Claim (ECF No. 11) is GRANTED,
and Plaintiffs’ Complaint (ECF No. 1) is DISMISSED WITH
FACTS AND PROCEDURAL HISTORY
Maryland residents, reside in their home located at 14423
Bradshaw Drive, Silver Spring, Maryland (the
“Property”). Compl. ¶ 1, ECF No. 2.
fall of 2006, they applied for a mortgage loan (the
“Loan”) with First Residential Mortgage Service
Corporation (“First Residential Mortgage”).
Id. ¶ 17. They say that, in connection with
their Loan application, they expressly advised First
Residential Mortgage that they wanted a loan program with
payments “in accordance with their financial
abilities.” Id. According to Plaintiffs, First
Residential Mortgage “lead [them] to believe”
that they were being placed into a loan owned by the Federal
National Mortgage Association (“Fannie Mae”).
Id. ¶ 18.
point in time (unspecified in the Complaint), Plaintiffs
discovered that their Loan was never owned by Fannie Mae.
Id. ¶ 19. They allege that their original
lender, First Residential Mortgage, employed a “bait
and switch” tactic “for the express purpose of
being able to reap significant commissions” and to be
able to “acquire a high variable interest rate
loan.” Id. Plaintiffs also say that this
lender intended to sell the Loan “in parsed
fashion” to various third parties for profit,
resulting in “certain foreclosure.” Id.
Plaintiffs allege that First Residential Mortgage should have
disclosed this information to them prior to closing on the
Loan. Id. ¶ 20.
to Plaintiffs, the “end result of the false and
misleading misrepresentations and material omissions”
of First Residential Mortgage was that they were placed into
a transaction “without prior disclosure of negative
amortization, ” and into a loan program which was
“predetermined for default.” Id. ¶
21. Plaintiffs allege that First Residential Mortgage knew
“Plaintiffs could not ultimately afford” to pay
the terms of their mortgage Loan. Id.
further assert that, as a direct and proximate result of the
actions of SLS’s “predecessor” First
Residential Mortgage, Plaintiffs were subject to a
pre-manufactured default which will ultimately result in
foreclosure proceedings. Id. ¶ 25. Plaintiffs say
these actions became manifest when other
“predecessors” of SLS refused to modify their
mortgage under the Home Affordable Modification Program
(HAMP), even though Plaintiffs made good faith attempts to
accomplish a modification. Id. ¶ 26. Plaintiffs
also contend that there “was a conspiracy by [SLS] and
its predecessors to construct a premanufactured theft of
property and fraud.” Id. ¶ 27.
basis of these allegations, Plaintiffs allege that SLS, the
current servicer of the Loan violated: the HOEPA, 15 U.S.C.
§ 1639(h) (Count I); the RESPA, 12 U.S.C. §§
2601, et seq. (Count II); the TILA, 15 U.S.C. §
1605, and its implementing regulation, 12 C.F.R. § 226.4
(Regulation Z) (Count III); the FCRA, 15 U.S.C. §§
1681s-2(b), 1681o, and 1681n(a)(2) (Count IV); the MCPA, Md.
Code Ann., Com. Law §§ 13-101, 13-303(3), and
13-303(4) (Count V); fraud (Count VI); breach of fiduciary
duty (Count VII); unjust enrichment (Count VIII); and civil
conspiracy (Count IX).
originally filed their Complaint in the Circuit Court for
Montgomery County, which SLS removed to this Court toward the
end of September 2015. Id. SLS now moves to dismiss
the Complaint in its entirety pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that Plaintiffs have failed
to state a claim upon which relief may be granted because all
their claims are time-barred. Def.’s Mot. Dismiss, ECF
No. 11. In the alternative, SLS asserts that, even if timely,
Plaintiffs’ claims must be dismissed because they do
not plausibly allege any cognizable wrongs committed by SLS.
STANDARD OF REVIEW
Rule of Civil Procedure 8(a) prescribes “liberal
pleading standards, ” requiring only that a plaintiff
submit a “short and plain statement of the claim
showing that [he] is entitled to relief.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citing Fed.R.Civ.P.
8(a)(2)). If pleadings allege fraud or mistake, “a
party must state with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b).
Under the heightened pleading standard of Rule 9(b),
“[t]hese circumstances are ‘the time, place, and
contents of the false representations, as well as the
identity of the person making the misrepresentation and what
he obtained thereby.’” Weidman v. Exxon Mobil
Corp., 776 F.3d 214, 219 (4th Cir. 2015) (quoting
Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 784 (4th Cir. 1999)).
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a plaintiff must plead facts sufficient
to “state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). This standard requires “more than a
sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Although a court will accept factual allegations
as true, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do
not suffice.” Id. Indeed, the court need not
accept legal conclusions couched as factual allegations or
“unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Markets, Inc. v. J.D.
Associates Ltd. P’ship, 213 F.3d 175, 180 (4th
Cir. 2000). In the end, the complaint must contain factual
allegations sufficient to apprise a defendant of “what
the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted).
federal courts are obliged to liberally construe a pro
se litigant’s claims in applying the above
analysis, this requirement “does not transform the
court into an advocate.” United States v.
Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal
quotations and citations omitted). The Fourth Circuit has
noted that “[w]hile pro se complaints may
‘represent the work of an untutored hand requiring
special judicial solicitude, ’ a district court is not
required to recognize ‘obscure or extravagant claims
defying the most concerted efforts to unravel
them.’” Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting
Beaudett v. City of Hampton, 775 F.2d 1274, 1277
(4th Cir. 1985), cert. denied, 475 U.S. 1088
Statutes of Limitations
asserts that all of Plaintiffs’ claims should be
dismissed because they are barred by the respective statutes
of limitations for each cause of action. Def.’s Mem.
Supp. Mot. Dismiss (“Def.’s Mem.”) 3-4.
Court agrees with SLS.
claims under the HOEPA, RESPA, TILA, FCRA, MCPA, common law
fraud, breach of fiduciary duty, unjust enrichment, and civil
conspiracy all have statutes of limitations ranging between
one and five years. See, e.g., Gilbert v.
Residential Funding, LLC, 678 F.3d 271, 278 (4th Cir.
2012) (noting that claims seeking damages under the TILA and
HOEPA have a one-year statute of limitations period and
claims seeking rescission have a three-year statute of
limitations period) (citing 15 U.S.C. §§ 1635,
1640); Siple v. First Franklin Financial Corp., CIV.
A. RDB-14-2841, 2015 WL 2374414, at *10 (“Claims
brought pursuant to the FCRA, however, are subject to a
statute of limitations measured ‘not later than the
earlier of . . . two years after the date of discovery by the
plaintiff of the violation that is the basis for such
liability; . . . or five years after the date on which the
violation that is the basis for such liability
occurs.’”) (quoting 15 U.S.C. § 1681p);
Pitts v. Mozilo, No. GJH-15-451, 2015 WL 4770941, at
*3 (D. Md. Aug. 11, 2015) (“A RESPA claim brought by a
private litigant must be brought within either one or three
years from the date of the occurrence of the violation,
depending on the type of violation.”) (citing 12 U.S.C.
§ 2614); Willis v. Bank of Am. Corp., No.
CIV.A. ELH-13-02615, 2014 WL 3829520, at *10 (D. Md. Aug. 1,
2014) (“Under Maryland law, ‘[a] civil action
shall be filed within three years from the date it accrues
unless another provision of the Code provides’
otherwise.”) (quoting Md. Code Ann., Cts. & Jud.
Proc. § 5-101)).
gravamen of Plaintiffs’ claims is that their original
lender - First Residential Mortgage - failed to disclose
certain facts about the nature of the Loan (i.e., that it was
negatively amortized), which Plaintiffs say subjected them to
“premanufactured” default. See Compl.
¶¶ 19-21. The purported acts and omissions at issue
in the Complaint thus occurred in 2006, at the time
of the Loan’s origination. But the longest of the
limitations periods noted above - five years under the FCRA -
expired in 2011. Plaintiffs filed their Complaint in the
Circuit Court for Montgomery County on August 24, 2015,
see ECF No. 1, well beyond the end of the last of
the limitations periods for their claims.
attempt to rescue their Complaint by saying they did not
become aware of their injuries until the summer of
2015. As such, they say that the discovery rule makes their
claims timely. Pls.’ Opp’n Mot. Dismiss
(“Pls.’ Opp’n”) 9-11. They also argue
that the terms of their Loan were fraudulently concealed, and
that the doctrine of equitable tolling should be applied.
the discovery rule, a plaintiff’s cause of action
accrues” for purposes of calculating the expiration of
the statute of limitations “when the plaintiff knows or
reasonably should have known of the wrong.”
Willis, 2014 WL 3829520, at *10 (internal citations
and quotations omitted) (emphasis added). Assuming arguendo
that the discovery rule applies to all of the claims raised
by Plaintiffs,  the Court finds it utterly implausible
that they had no reason to know about the allegedly unlawful
terms of their Loan (i.e., the fact that it was negatively
amortized) prior to attempting to refinance in 2015.
Plaintiffs entered into the Loan with First Residential
Mortgage in 2006. The fact that they may not have
understood the consequences of their Loan’s
payment structure does not mean that they could not have made
an investigation with respect to its terms with reasonable
diligence. See Doe v. Archdiocese of Washington, 689
A.2d 634, ...