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Okon v. American Servicing Co.

United States District Court, D. Maryland, Southern Division

August 9, 2016




         Plaintiff 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").[1] 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.[2]

         I. BACKGROUND

         In the Amended Complaint. Plaintiff challenges certain aspects of a foreclosure proceeding respecting her residence located in Silver Spring. Maryland. See ECF No. 2 at 3;[3] 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.

         In the 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."[4] 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.

         The 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.


         A. Subject Matter Jurisdiction

         Defendants 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)).

         The 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."').

         Complete 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 matter.

         B. Failure to State a Claim

         Dismissing 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.

         A 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, ...

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