United States District Court, D. Maryland
DOUGLAS C. MYERS Plaintiff
CFG COMMUNITY BANK Defendant
Catherine C. Blake United States District Judge.
Douglas C. Myers, a resident of Towson, Maryland, filed the
instant action on September 8, 2016. The complaint concerns a
foreclosure proceeding against Myers that resulted in the
sale of properties located at 5734 and 5800 Emory Road in
Upperco, Maryland. (Compl. 1-2, 5, ECF No. 1). According to
Myers, federal question jurisdiction exists. Myers seeks,
inter alia, a declaratory judgment that the
foreclosure sale, dated February 23, 2011, is void and a
permanent injunction prohibiting CFG Community Bank and/or
its assigns from taking further action which may
“affect title to these properties.” (Id.
6-7). The complaint must be dismissed for lack of
provides the following information in support of his claim.
On May 17, 2006, Myers executed a promissory note in the
amount of $800, 000 with AmericasBANK (AB) for the two
properties. On January 30, 2008, Ronald B. Katz, Substitute
Trustee, filed a foreclosure action on behalf of AB.
February 2008, AB proposed loan modification and termination
of the foreclosure action if Myers provided additional
security from Mt. Oak Estates, LLC. On March 4, 2009, Myers
and AB entered into a deed of trust modification agreement
and a loan modification agreement; the latter cured the
default and reinstated the loan under modified terms and
conditions. The loan modification agreement mentions the
foreclosure action. The deed of trust modification agreement,
which does not reference the foreclosure action, was recorded
in Baltimore County land records. (Id. 2). According
to Myers, these documents supersede the original note and
deed of trust on the properties. The assets of AB, including
the note, were acquired by CFG Community Bank in November of
2009. (Id. 3).
August 16, 2010, Myers filed a Chapter 13 Voluntary Petition
in U.S. Bankruptcy Court. Case No. 10-28695 (Bankr. Md.). In
that petition, Myers noted that his mailing address was 5732
Emory Road, Upperco, Md., 21155. (Compl. 3; Exhibit C, ECF
No. 1-4). On August 19, 2010, the Bankruptcy Court mailed the
Notice of Meeting of Creditors to 5734 Emory Road, which is
not the mailing address disclosed on the Voluntary Petition.
Myers claims he did not receive it. On November 1, 2011, the
Bankruptcy Court entered an order dismissing the case for
failure to attend the meeting of creditors and lifting the
automatic stay. This order was also mailed to the wrong
address. (Compl. 3-4; Exhibit D, ECF No. 1-5).
filed a timely motion to reconsider, stating that he did not
receive the notice due to the error and noting a new address:
P.O. Box 295, Owings Mills, Md., 21117. (Compl. 3; Exhibit E,
ECF No. 1-6). The Bankruptcy Court ordered Myers to file an
amended motion to reconsider, (compl. 3-4), which he
subsequently did, (id. 4; Exhibit F, ECF No. 1-7).
On January 31, 2011, the Bankruptcy Court entered an amended
order dismissing the case with prejudice. According to the
amended order, Myers “is a serial filer who has abused
the bankruptcy process.” Reconsideration was denied,
and Myers was barred from filing a new case in bankruptcy for
a period of 365 days. (Exhibit G, ECF No. 1-8). Myers claims
he did not receive notice of a subsequent order denying
reconsideration because it was not sent to his proper
address. (Compl. 5; Exhibit H, ECF No. 1-9).
February 23, 2011, the properties were sold at a foreclosure
sale. (Compl. 5). Myers claims that, at the time of that
sale, the property at 5800 Emory Road was still encumbered by
the deed of trust that had been assigned to CFG, and the
individual who purchased the properties at the foreclosure
sale was not a bona fide purchaser.
state docket reveals that Myers has filed several
unsuccessful motions in the foreclosure action seeking to
alter or amend judgment. On April 8, 2016, the Court of
Special Appeals of Maryland affirmed the judgment of the
Circuit Court of Baltimore County. On May 26, 2016, the Court
of Appeals of Maryland denied Myers' certiorari request.
the “well-pleaded complaint” rule, the facts
showing the existence of subject matter jurisdiction
“must be affirmatively alleged in the complaint.”
Pinkley, Inc. v. City of Frederick, 191
F.3d 394, 399 (4th Cir.1999) (citing McNutt v. Gen'l
Motors Acceptance Corp., 298 U.S. 178 (1936)). “A
court is to presume, therefore, that a case lies
outside its limited jurisdiction unless and until
jurisdiction has been shown to be proper.” United
States v. Poole, 531 F.3d 263, 274 (4th Cir. 2008)
(citing Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)). Moreover, the “burden of
establishing subject matter jurisdiction is on . . . the
party asserting jurisdiction.” Robb Evans &
Assocs., LLC v. Holibaugh, 609 F.3d 359, 362 (4th Cir.
2010); see Hertz v. Friend, 599 U.S. 77, 96 (2010).
to Myers, this case presents a federal question, for two
reasons. First, he claims his federal due process rights were
violated because an order, issued by the United States
Bankruptcy Court for the District of Maryland on February 14,
2011, that denied his motion to reconsider dismissal of his
voluntary bankruptcy petition was sent to the wrong address.
Second, jurisdiction is proper because the case concerns
“wrongful foreclosure, ” the plaintiff claims.
This second basis for jurisdiction appears to relate to the
plaintiff's contention that the foreclosure sale was held
in violation of an automatic stay. (See compl. 1, 3,
actions brought under state law generally do not give rise to
a federal question and are not a sufficient basis for subject
matter jurisdiction. See McNeely v. Moab Tiara Cherokee
Kituwah Nation Chief, 2008 WL 4166328 (W.D. N.C 2008)
(nothing in “simple foreclosure action of real property
. . . suggests the presence of a federal question”).
Where the essence of a complaint concerns a foreclosure
action, this may remain true even if the plaintiff asserts a
due process violation. See Smith v. Nationstar Mortgage,
LLC, 2015 WL 9581802, at *4 (D. Md. Dec. 29, 2015)
(dismissing case challenging foreclosure proceeding for lack
of subject matter jurisdiction despite due process claim);
El v. Holland, 2012 WL 2394830, at *1-2 (W.D. N.C.
June 25, 2012) (same, where plaintiff claimed wrongful
eviction without due process). The alleged due process
violation here is insufficient to establish jurisdiction.
Cf. Bell v. Hood, 327 U.S. 678, 682-3 (1946) (noting
a suit ...