United States District Court, D. Maryland, Southern Division
CORRECTED MEMORANDUM OPINION
J. HAZEL UNITED STATES DISTRICT JUDGE
Imeh Renee Okon initialed this action on August 21, 2015
against Wells Fargo Bank, N.A., d/b/a America's Servicing
Company ("Wells Fargo"). HSBC Bank USA. National
Association, as Trustee for SO Mortgage Securities Trust
2006-FRE1 ("HSBC"). Alba Law Group. PA
("Alba"), Melissa L Cassell. Amy H Hill, and See
Chang (collectively. "Defendants") alleging
violations of the Maryland Mortgage Fraud Protection Act
("MMFPA"). Md. Code Ann., Real Prop, § 7-401.
et seq. Before service was effectuated on any
Defendant. Plaintiff filed an Amended Complaint on August 31.
2015. ECF No. 2. Presently pending before the Court are two
Motions to Dismiss or. in the Alternative. Motions for
Summary Judgment. ECF Nos. 4 & 12. No hearing is
necessary to resolve these Motions. See Local Rule
105.6 (D. Md. 2014). For the reasons that follow, the Motions
will be granted.
Amended Complaint. Plaintiff challenges certain aspects of a
foreclosure proceeding respecting her residence located in
Silver Spring. Maryland. See ECF No. 2 at
see also Devon v. Okon, No. 388371V (Montgomery
Cnty. Cir. Ct.) (the "Foreclosure Action").
Specifically, she alleges that Defendants filed "a
series of fraudulent documents in the [Foreclosure Action] in
order to foreclose on [her] property." F.CF No. 2 at 4.
Those purportedly fraudulent documents include a final loss
mitigation affidavit, a notice of foreclosure action, and an
affidavit submitted pursuant to Md. Code Ann.. Real Prop.
§ 7-105.1(e)(2)(ii) and Md. Rule, Prop. Sales
14-207(b)(2). Id. Plaintiff contends that these
documents were fraudulent insofar as they described the
property to be foreclosed as "non-owner occupied."
notwithstanding Plaintiffs representation to the trustee that
she did in fact occupy the property. Id. at 6.
Foreclosure Action. Plaintiff filed a document titled
"Motion to Stop Foreclosure Proceedings due to
Fraudulent Affidavits Filed by Wells Fargo and its Substitute
Trustees: Counterclaims Against Wells Fargo . . . and SG
Mortgage Securities Trust 2006-FRE1." See ECF
No. 4-2. In that motion, she alleged that the affidavits
accompanying the order to docket suit were fraudulent because
they slated that the property was non-owner occupied. See
Id . at 3. Plaintiff asserted claims of wrongful
foreclosure and injurious falsehood and violation of the
Equal Credit Opportunity Act. 15 U.S.C. § 1691a el
seq., seeking damages and a declaratory judgment.
See Id . at 9-14.
Circuit Court for Montgomery County, Maryland denied
Plaintiffs motion in the Foreclosure Action, treating it as a
motion to stay the sale of the property and dismiss the
action. Plaintiff appealed to the Court of Special Appeals of
Man land, which affirmed the denial of her motion on the
ground that Plaintiff failed to comply with Md. Rule
14-211(a)(3), which sets forth the requirements of a motion
to dismiss a foreclosure action in Maryland. See ECF
No. 4-4. Plaintiffs counterclaims, however,
were docketed as a separate action. See Qfcon v. Wells
Fargo Home Mortgage, No. 389299V (Montgomery Cnty. Cir.
Ct.) (the "Counterclaim Action"). In that case, on
May 23. 2014. the court granted a motion to dismiss and
dismissed the counterclaims without leave to amend. F.CF No.
4-6. Plaintiff did not appeal that dismissal.
Subject Matter Jurisdiction
seek dismissal on the ground that Plaintiff has failed to
allege a basis for this Court's exercise of subject
matter jurisdiction. ECF No. 4-1 at 7; ECF No. 12-1 at 6. A
motion to dismiss for lack of subject matter jurisdiction
arises under Federal Rule of Civil Procedure 12(b)(1). The
plaintiff bears the burden of proving that subject matter
jurisdiction properly exists in federal court. See
Demetres v. E. W. Const., Inc., 116 F.3d 271, 272 (4th
Cir. 2015). In a 12(b)(1) motion, the court "may
consider evidence outside the pleadings" to help
determine whether it has jurisdiction over the case before
it. White Tail Park, Inc. v. Stroube, 413 F.3d 451.
459 (4th Cir. 2005). The court should grant the 12(b)(1)
motion "'only if the material jurisdictional facts
are not in dispute and the moving party is entitled to
prevail as a matter of law."' Quigley v. United
States, 927 F.Supp.2d 213, 217 (D. Md. 2012) (quoting
Richmond. Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765. 768 (4th Cir. 1991)).
Complaint does not allege any federal cause of action, citing
only to a Maryland state statute as the basis for Plaintiffs
recovery. See ECF No. 2. Thus, this Court may only
exercise jurisdiction over this matter if there is complete
diversity of citizenship. See 28 U.S.C. 1332(a).
Diversity jurisdiction under § 1332 only exists if there
is complete diversity between all parties. See
Banco Del Sempione v. Provident Bank of Maryland, 85
F.3d 615 (4th Cir. 1996) (per curiam) ("Since
Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267
(1806). courts have interpreted section 1332 to require
complete diversity between all parties."').
diversity is lacking in this case. In the Amended Complaint.
Plaintiff alleges that she resides in Silver Spring,
Maryland, but she also acknowledges that Defendants Alba and
Cassell are domiciled in Maryland. See ECF No. 2;
ECF No. 8 at 2. Thus, this Court lacks jurisdiction over this
Failure to State a Claim
the non-diverse parties from this matter, however, would not
save the case from dismissal because the Complaint fails to
state a plausible claim for relief.
motion to dismiss for failure to state a claim upon which
relief may be granted is made pursuant to Federal Rule of
Civil Procedure 12(b)(6). ECF No. 4-1 at 8-10. When deciding
a motion to dismiss under Rule 12(b)(6). a court
""must accept as true all of the factual
allegations contained in the complaint." and must
"draw all reasonable inferences [from those facts] in
favor of the plaintiff.'' Ed. du Pont de Nemours
& Co. v. Kofon Indus.. Inc.,637 F.3d 435, 440 (4th
Cir. 2011) (citations and internal quotation marks omitted).
To survive a motion to dismiss invoking Rule 12(b)(6).
"a complaint must contain sufficient Tactual matter,
accepted as true, 'to state a claim to relief that is
plausible on its face.'" Ashcwfi v. Iqbal,556 U.S. 662. 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly,550 U.S. 544. 570 (2007)). Although pleadings
of self-represented litigants must be accorded liberal
construction, see Gordon v. Leeke,574 F.2d 1147, ...