United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
Mecca Musari, pro se, has filed a ten-count
complaint against Defendantsregarding the foreclosure of her
home and related state and federal claims. Certain
Defendantshave 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.
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
appearanceand 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
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.
STANDARD OF REVIEW
is a jurisdictional issue . . . .” Gen. Tech.
Applications, Inc. v. Exro Ltda, 388 F.3d 114, 118 (4th
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
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.”).
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.”).
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).
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).
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
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
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). 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.”).
11 U.S.C. § 554, abandonment of property of the estate
(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 ...