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Musari v. Countrywide Home Loans

United States District Court, D. Maryland, Southern Division

August 3, 2016

MECCA MUSARI, Plaintiff,
COUNTRYWIDE HOME LOANS et al., Defendants.



         Plaintiff Mecca Musari, pro se, has filed a ten-count complaint against Defendants[1]regarding the foreclosure of her home and related state and federal claims. Certain Defendants[2]have filed a joint motion to dismiss, arguing that she lacks standing to bring her claims, is inappropriately attacking state court decisions in federal court for certain of her state law claims and has failed to state a claim for the remainder of her state and federal claims. See Defs.’ Mot., ECF No. 12.[3]

         I. BACKGROUND

         Musari has alleged ten causes of action against all Defendants in this case, one of which was only brought against Countrywide. Because Countrywide has not entered an appearance[4]and has not moved to dismiss her claims, Defendants’ motion to dismiss does not addresses Count 1: violations of Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et. seq., and Count 2: breach of contract. Defendants’ motion seeks dismissal of her other claims, which are as follows: Count 3: violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq.; Count 4: violations of the Uniform Commercial Code (“UCC”), Article 3; Count 5: violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e; Count 6: violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.; Count 7: violations of the Maryland Consumer Protection Act (“MCPA”), Md. Code. Ann., Com. Law § 13-101 et seq.; Count 8: violations of slander of title; Count 9: perjury; and Count 10: wrongful foreclosure.

         Musari refinanced a mortgage with Countrywide on November 21, 2005. See Compl. ¶¶ 47-49, ECF No. 1. This mortgage was secured by a deed of trust on her residence. See Id. ¶¶ 7, 49. Subsequently, she received a foreclosure notice that she was in debt and that she would result, I have not considered this notice in ruling on Defendants’ motion to dismiss. A hearing is need to pay it off to avoid foreclosure. See Debt Notice, Compl., Ex. P, ECF No. 1-18. Foreclosure proceedings began in the Circuit Court for Prince George’s County, Maryland, on May 17, 2013. See Fisher v. Musari, No. CAE13-14491 (filed May 17, 2013). Musari’s property was sold to Fannie Mae on December 13, 2013. See Rpt. of Sale, Defs.’ Mot., Ex. F., ECF No. 12-7. After unsuccessfully contesting the foreclosure action in circuit court, see Musari, No. CAE13-14491, Musari filed for Chapter 7 bankruptcy. See In re Musari, No. 15-13225 (Bankr. D. Md. 2015). On June 19, 2015, the bankruptcy court permitted Fannie Mae to complete the foreclosure proceedings, see In re Musari, Doc. No. 44, and on June 24, 2015, discharged Musari’s debt, see In re Musari, Doc. No. 46. The bankruptcy case was closed on July 1, 2015. See In re Musari, Doc. No. 49.


         A. Fed.R.Civ.P. 12(b)(1)

         “Standing is a jurisdictional issue . . . .” Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 118 (4th Cir. 2004).[5]

Standing does not refer simply to a party's capacity to appear in court. Rather, standing is gauged by the specific common-law, statutory or constitutional claims that a party presents. “Typically, . . . the standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.

Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 77 (1991) (quoting Allen v. Wright, 468 U.S. 737, 752, (1984)) (emphasis in Int’l Primate). A motion to dismiss for lack of standing is analyzed as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Graves v. OneWest Bank, No. PWG-14-1995, 2015 WL 2452418, at *3 (D. Md. May 20, 2015); see also Nat’l Alliance for Accessibility, Inc. v. Rite Aid of N. Carolina, Inc., 1:10CV932, 2011 WL 4499294 (M.D. N.C. Sept. 27, 2011) (“Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may assert that a court lacks subject matter jurisdiction over a plaintiff's complaint, including by challenging a plaintiff's standing.”).

         A party may move to dismiss a claim pursuant to Fed.R.Civ.P. 12(b)(1), which allows it to assert lack of subject matter jurisdiction by motion as a defense to a claim for relief. A Rule 12(b)(1) motion to dismiss may allege that “the jurisdictional allegations in the complaint are not true.” Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (same). If the defendant alleges as much, then “the Court may . . . consider matters beyond the allegations in the complaint.” Fontell, 2010 WL 3086498, at *3. The Court “regard[s] the pleadings’ allegations as mere evidence on the issue, ” and its consideration of additional evidence does not “convert[] the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac Ry. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see Adams, 697 F.2d at 1219 (“A trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.”).

         When a defendant challenges subject matter jurisdiction, the burden is on the plaintiff to prove that subject matter jurisdiction exists. See Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir. 1999); El-Amin v. Int’l Longshoremen’s Ass’n Local No. 333, No. CCB-10-3653, 2011 WL 2580630, at *2 (D. Md. June 28, 2011). “A court should grant a Rule 12(b)(1) motion ‘if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.’” El-Amin, 2011 WL 2580630, at *2 (quoting Evans, 166 F.3d at 647).

         B. Fed.R.Civ.P. 12(b)(6)

         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 678. Plaintiff is proceeding pro se, and her complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff from pleading plausible claims. 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)). I must accept the facts as alleged in Plaintiffs’ complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).

         When reviewing a motion to dismiss, “[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover, where the allegations in the complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011). If the documents that the Court considers exceed this scope, the Court must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Group, Inc., 916 F.Supp.2d 620, 623 (D. Md. 2013). In considering Defendants’ motion to dismiss, I have only looked at those exhibits attached to Musari’s pleadings or those exhibits attached to the parties’ filings with respect to this motion that are integral to the amended complaint and the authenticity of which has not been disputed.


         A. Standing

         Defendants argue that Musari lacks standing to bring all of her claims because Musari’s debts were discharged in Chapter 7 bankruptcy, these claims existed at the time she entered bankruptcy, and the claims are assets of the bankruptcy estate. See Defs.’ Mem. 29-30. Musari does not dispute, and the record establishes, that her debts were discharged in a Chapter 7 bankruptcy and that the claims that she seeks to assert in this lawsuit existed at the time she filed for bankruptcy. See In re Musari, Doc. No. 47; Compl. At issue, therefore, is whether her claims are properly the assets of the bankruptcy estate and if they are, how it affects the disposition of Defendants’ motion to dismiss.

         “When a person files for protection from creditors under federal bankruptcy law, all of the person’s property, including personal injury claims, become the property of the bankruptcy estate.” Schlotzhauer v. Morton, 119 A.3d 121, 123 (Md. Ct. Spec. App. 2015), cert. granted, 128 A.3d 51 (Md. 2015); see also Bowie v. Rose Shanis Fin. Servs., LLC, 862 A.2d 1102, 1106- 07 (Md. Ct. Spec. App. 2004).[6] Only the bankruptcy trustee may bring these claims, including claims for personal injuries unless (i) “the trustee abandons the [claims]” or (ii) “the bankruptcy court declares them to be exempt from creditor claims.” See Schlotzhauer, 119 A.3d at 123. The trustee retains the exclusive right to assert these claims even after the bankruptcy case has been closed and the debtor’s debt discharged. Id. at 123-24; see also Bowie, 862 A.2d at 1113-14. If a debtor brings suit for claims that belong to the bankruptcy estate, the debtor lacks standing, and the claims must be dismissed unless the estate has abandoned its rights with respect to the claims. See Bowie, 862 A.2d at 1106-07, 1118 (affirming circuit court’s dismissal of case where bankruptcy trustee had exclusive right to bring claim and therefore debtor lacked standing); see also Ahteshamuddin v. Residential Credit Sols. Inc., No. WMN-11-854, 2011 WL 4345060, at *3 (D. Md. Sept. 14, 2011) (“[B]ecause the causes of action now asserted became the property of the bankruptcy estate and were never abandoned by the trustee, Plaintiff lacks standing to pursue those claims and they must be dismissed.”).

         1. Abandonment

         Under 11 U.S.C. § 554, abandonment of property of the estate occurs when

(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value and benefit to the estate.
(b) On request of a party in interest and after notice and a hearing, the court may order the trustee to abandon any property of the estate that is burdensome to the estate or that is of ...

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