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Crowley v. BWW Law Group, LLC

United States District Court, D. Maryland

September 6, 2016

JOANN CROWLEY, Plaintiff,
v.
BWW LAW GROUP, LLC, Defendant. BWW LAW GROUP, LLC Third-Party Plaintiff,
v.
THE HERALD-MAIL COMPANY Third-Party Defendant.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         This action arises from the attempted foreclosure of Plaintiff Joann Crowley's (“Crowley” or “Plaintiff”) property by Defendant BWW Law Group, LLC (“BWW”). After the Circuit Court for Washington County, Maryland, set aside the foreclosure, Plaintiff filed the subject action against Defendants BWW and JPMorgan Chase Bank, National Association (“JPMorgan”), asserting violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq.; the Maryland Consumer Protection Act, Md. Code Ann., Com. Law. §§ 13-101, et seq.; the Maryland Consumer Debt Collection Act, Md. Code Ann., Com. Law. §§ 14-201, et seq.; and the Maryland Mortgage Fraud Protection Act, Md. Code Ann., Real Prop. §§ 7-401, et seq. On November 9, 2015, this Court dismissed all claims against JPMorgan. Order, ECF No. 20. By the same Order, this Court dismissed all state law claims against BWW, but held that Crowley had plausibly stated a claim for relief against BWW under the Fair Debt Collection Practices Act (Count II). Id.

         BWW subsequently filed a timely six count Third-Party Complaint (ECF No. 25) seeking to implead The Herald-Mail Company (“Herald-Mail”) pursuant to Rule 14(a) of the Federal Rules of Civil Procedure. Specifically, BWW claims that any liability to Crowley stems from the Herald-Mail's alleged failure to publish the requisite legal notices of foreclosure in accordance with the contract between BWW and the Herald-Mail.

         Presently pending is Third-Party Defendant Herald-Mail's Motion to Dismiss the Third-Party Complaint (ECF No. 29). Having reviewed the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, Third-Party Defendant Herald-Mail's Motion to Dismiss the Third-Party Complaint (ECF No. 29) is GRANTED IN PART and DENIED IN PART. In sum, Counts I, II, III, and VI are not cognizable under Rule 14(a) of the Federal Rules of Civil Procedure. Counts IV and V, however, are cognizable under Rule 14(a) and sufficiently pled. Accordingly, the Motion to Dismiss the Third-Party Complaint is GRANTED as to Counts I, II, III, and VI, and DENIED as to Counts IV and V.

         BACKGROUND

         This Court accepts as true the facts alleged in the Third-Party Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). The subject Third-Party Complaint asserts two primary failures by the Herald-Mail with respect to the underlying foreclosure of Plaintiff Joann Crowley's property. The first is the Herald-Mail's misstatements of publication dates, representations on which BWW allegedly relied in certifying its compliance with the notice requirements. Third-Party Compl. ¶ 4, ECF No. 25. The second is the Herald-Mail's failure to publish according to the contracted dates. Id. Due to these actions, BWW claims that the Herald-Mail is liable for some or all of any liability BWW may have to Crowley. The background facts of this action have been fully set forth in this Court's Memorandum Opinion of November 9, 2015 (ECF No. 19), thus only a summary is included herein.

         A. Plaintiff Crowley's Complaint against BWW and JPMorgan

         In 2008, Plaintiff Crowley entered into a deed of trust and obtained a mortgage for the property located at 19829 Reidtown Road, Hagerstown, Maryland (the “Property”). Amended Compl. ¶¶ 11-12, ECF No. 17. JPMorgan acted as the servicer of the mortgage note. Id. As of May 2, 2009, Crowley had defaulted on her mortgage, and JPMorgan placed the note in default status. Compl. Ex. C, ECF No. 1-4. On November 15, 2013, attorneys with BWW Law Group, as Substitute Trustees, initiated foreclosure proceedings on the Property in the Circuit Court for Washington County, Maryland. Amended Compl. ¶ 14. BWW sold the Property at auction on March 12, 2014. Id. ¶ 15. Thereafter, BWW filed a Certificate of Publication of Sale for the state foreclosure proceeding on April 4, 2014.[1] Id. ¶ 16; Compl. Ex. F, ECF No. 1-7. The Certificate, published by the Herald-Mail Company in its daily newspaper, certified that notice of the sale of the Property was published in that newspaper on February 25, 2014, March 4, 2014, and March 11, 2014. Compl. Ex. F. However, the Certificate was dated February 25, 2014, a date prior to the publication dates it purported to certify. Id. Upon further investigation, Crowley discovered that, contrary to the affirmations made in the Certificate of Publication of Sale, the Herald-Mail did not publish notice of the sale of the Property on March 11, 2014. Amended Compl. ¶ 21; Compl. Ex. I, ECF No. 1-10.

         After realizing this error, Crowley objected to the foreclosure sale on May 14, 2014. Amended Compl. ¶ 18. BWW and JPMorgan then submitted an amended Certificate of Publication of Sale, which listed the same dates of publication as the original Certificate.[2] Id. ¶ 19; Compl. Ex. H, ECF No. 1-9. Ultimately, the Circuit Court for Washington County found that JPMorgan did not meet the presale publication requirements and set aside the sale of the Property. [3] Am. Compl. ¶ 22; Compl. Ex. J, ECF No. 1-11.

         On March 3, 2015, Crowley filed her initial Complaint with this Court (ECF No. 1), alleging that BWW and JPMorgan violated federal and state law by submitting false and misleading Certificates of Publication of Sale (or “affidavits”). After BWW and JPMorgan filed their respective Motions to Dismiss (ECF Nos. 8 & 9), this Court dismissed all claims against JPMorgan, but allowed the Fair Debt Collection Practices Act claim (Count II) to proceed against BWW. See generally Mem. Op., ECF No. 19.

         B. BWW's Third-Party Complaint against the Herald-Mail

         BWW subsequently filed a timely Third-Party Complaint (ECF No. 25) seeking to implead The Herald-Mail Company (“Herald-Mail”) pursuant to Rule 14(a) of the Federal Rules of Civil Procedure. Specifically, BWW claims that any liability to Crowley stems from the Herald-Mail's misrepresentations and related failure to publish the requisite legal notices of foreclosure in accordance with the contract between BWW and the Herald-Mail. BWW allegedly relied on the Herald Mail's Certification of Publication and corresponding statements to ensure BWW's compliance with Md. R. 14-210(a).[4] Id. ¶¶ 3, 5, 7.

         In November 2013, BWW, as Substitute Trustee, initiated the foreclosure proceeding on the Property (the “Foreclosure Action”). Id. ¶ 5. On February 12, 2014, BWW, acting through its agent Alex Cooper Auctioneers, Inc. (“Cooper Auctioneers”), placed an order with the Herald-Mail to run three legal notices advertising the Trustees' sale of the Property on March 12, 2014. Id. ¶ 6. The notices were to appear in the February 25, 2014, March 4, 2014, and March 11, 2014 editions of the Herald-Mail's newspaper. Id. The Herald-Mail confirmed the order for the legal notices and provided the ad copy and invoice to BWW, again through its agent Cooper Auctioneers. Id. ¶ 8. Along with the confirmation and invoice, the Herald-Mail charged BWW's credit card in the amount of $1, 081.71 for the legal notices. Id. ¶ 9.

         On March 15, 2014, BWW received a Certification of Publication (“CoP 1”) from the Herald-Mail, which certified that the legal notices were published on the specified dates: February 25, 2014, March 4, 2014, and March 11, 2014.[5] Id. ¶ 10. Following receipt of the CoP 1, BWW alleges it relied on the statements in the CoP 1 in executing the requisite Report of Sale and Affidavit of Fairness of Sale and Truth of Report on April 2, 2014.[6] Id. ¶ 11. Shortly thereafter, on April 4, 2014, the Trustees filed the Sale of Report and CoP 1 in the Foreclosure Action. Id. ¶ 12.

         After Crowley filed exceptions to the Foreclosure Sale regarding the improper date of the legal notices, BWW contacted the Herald-Mail. Id. ¶ 14. On May 21, 2014, BWW claims that it contacted the Herald-Mail employee, Tina Sundergill, and was advised that the Herald-Mail would re-certify the publication dates. Id. ¶ 14. BWW received a second Certification of Publication (“CoP 2”)[7] on May 23, 2014, which certified that the legal notices were published on February 25, 2014, March 4, 2014, and March 11, 2014. Id. ¶ 15. Following receipt of CoP 2, BWW filed the document in the Foreclosure Action on May 29, 2014. Id. at ¶ 16.

         At an August 8, 2014 hearing in the Circuit Court for Washington County regarding the Foreclosure Action, BWW claims that Crowley asserted, for the first time, that the March 11, 2014 notice was not actually published on that date by the Herald-Mail. Id. ¶ 17. BWW asserts that it then independently investigated Crowley's allegation and confirmed that the Herald-Mail did indeed fail to publish the legal notice on March 11, 2014. Id. ¶ 18. On May 27, 2015, BWW alleges that the Herald-Mail's President, Andy Bruns, admitted to and took responsibility for the failure to publish the March 11, 2014 notice through an e-mail exchange with Trustee and BWW employee, Jacob Geesing. Id. ¶ 20.

         STANDARD OF REVIEW

         A. Impleader Pursuant to Rule 14(a) of the Federal Rules of Civil Procedure

         Rule 14(a) of the Federal Rules of Civil Procedure governs the process by which a defendant may assert claims against parties not yet joined to the ...


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