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Danso v. Ocwen Loan Servicing, LLC

United States District Court, D. Maryland

August 23, 2016




         Pending in this consumer lending case is a motion to dismiss for failure to state a claim filed by Ocwen Loan Servicing, LLC, Mortgage Electronic Registration Systems, Inc., and Deutsche Bank National Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR2, Mortgage Pass-Through Certificates Series 2006 AR2 (collectively, “Defendants”). ECF No. 17. The issues are fully briefed and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the following reasons, the motion will be granted.

         I. BACKGROUND

         The facts outlined here taken from Plaintiff’s Complaint and its attachments.[1] Unless otherwise noted, all facts are construed in the light most favorable to the Plaintiff, the nonmoving party.

         On December 30, 2005, Benjamin Y. Danso (“Plaintiff”) executed an Adjustable Rate Note (“Note”) in the amount of $320, 000 to IndyMac Bank, F.S.B. (“IndyMac”) for the purposes of refinancing his property at 12717 Turquoise Terrace, Silver Spring, Maryland 20904. ECF No. 2-2 at 3. The Note was secured by a Deed of Trust to IndyMac executed on the same date and which was recorded among the Land Records of Montgomery County, Maryland. ECF No. 2-2. The Deed of Trust, signed by Plaintiff, named Mortgage Electronic Registration Systems, Inc. (“MERS”) the beneficiary under the security interest as the nominee for IndyMac, its successors, and assigns.[2] ECF No. 2-2 at 2.

         In executing the security instrument, Plaintiff agreed that “MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.” Id. at 4.

         The Deed of Trust states that “[t]he Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower.” Id. at 12. The Deed of Trust also clearly states that Plaintiff’s obligations remain the same, regardless of whether the Note is sold: “If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser.” Id.

         On or about February 1, 2006, Plaintiff’s Note was pooled with several other notes in a residential mortgage-backed securitization trust, IndyMac INDX Mortgage Loan Trust 2006-AR2. ECF No. 2 at 3. As the Maryland Court of Appeals has explained:

[s]ecuritization starts when a mortgage originator sells a mortgage and its note to a buyer, who is typically a subsidiary of an investment bank. The investment bank bundles together the multitude of mortgages it purchased into a “special purpose vehicle, ” usually in the form of a trust, and sells the income rights to other investors. A pooling and servicing agreement establishes two entities that maintain the trust: a trustee, who manages the loan assets, and a servicer, who communicates with and collects monthly payments from the mortgagors.

Deutsche Bank Nat. Trust Co. v. Brock, 430 Md. 714, 718 (2013) (quoting Anderson v. Burson, 424 Md. 232, 237 (2011)). Here, the relevant pooling and servicing agreement names IndyMac as the servicer and Deutsche Bank National Trust Company (“Deutsche Bank”) as the trustee. ECF No. 2-6.

         In August 2015, MERS, acting as nominee for IndyMac Bank, executed and recorded a Corporate Assignment of Deed of Trust in the Land Records of Montgomery County, Maryland, which granted all beneficial interest under the Deed of Trust to Deutsche Bank. ECF No. 2-3. Because IndyMac transferred its interest in Plaintiff’s Note to Deutsche Bank-and received payment for the transfer-Plaintiff alleges that he is released from his obligation to pay back the loan pursuant to the terms of the Deed of Trust. ECF No. 2 at 4. Plaintiff also alleges, inter alia, that Defendants have no right to foreclose upon his property because they do not possess the original Note. Id. at 7-8.

         While IndyMac Mortgage Services, a division of OneWest Bank, F.S.B., originally serviced Plaintiff’s loan, Ocwen Loan Servicing, LLC (“Ocwen Loan Servicing”) became the loan servicer sometime after the Deed of Trust was transferred to Deutsche Bank. ECF No. 2 at 10.[3]

         On March 11, 2016, Plaintiff filed this Complaint against Defendants in the Circuit Court for Montgomery County, alleging that Defendants (1) breached their fiduciary duty by not releasing his mortgage after receiving payment and by attempting to enforce the mortgage, (2) slandered his property’s title by not releasing the mortgage and by recording an assignment of mortgage, and (3) caused him emotional distress by threatening him with foreclosure. Plaintiff also alludes to claims for breach of contract and unconscionability, suggesting that Defendants’ breached the Deed of Trust by not releasing Plaintiff from his debt obligations after his mortgage was securitized. See Id. at 1, 3. Lastly, Plaintiff asks for a declaration as to the “rights, obligations and interest of the parties with regard to the subject property.” ECF No. 2 at 13. Neither party directly addresses Plaintiff’s current status under the mortgage, but Plaintiff’s papers suggest that he commenced the present lawsuit in anticipation of foreclosure proceedings.

         Defendants timely removed the case to this Court pursuant to 28 U.S.C. § 1441(a) based on diversity jurisdiction, ECF No. 1, and then filed the instant motion to dismiss under Rule ...

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