United States District Court, D. Maryland
DOUGLAS C. MYERS Plaintiff
CFG COMMUNITY BANK Defendant
L. Hollander United States District Judge.
Douglas C. Myers filed suit on September 22, 2016, against
CFG Community Bank (“CFG”), defendant. The
Complaint (ECF 1), to which several exhibits are appended,
concerns a foreclosure proceeding against Myers that resulted
in the sale of his properties on or about February 11, 2011,
located at 5734 and 5800 Emory Road in Upperco, Maryland.
Id.; see also Myers v. CFG Community Bank,
CCB-16-3098 (D. Md.) (“Myers I”);
Katz v. Myers, Case No. 03-C-08-001235 (Balto. Co.
filed an Amended Complaint on September 29, 2016 (ECF 2),
adding an additional exhibit.
suit, Myers, who is self-represented, invokes this
court's federal question jurisdiction under the Fifth
Amendment and 42 U.S.C. § 1983. ECF 2 at 1. Further,
Myers indicates his action is “predicated on the
authority of Rule 60(b)(4) of the Federal Rules of Civil
Procedure…made applicable to bankruptcy proceedings by
Federal Rule of Bankruptcy Procedure 9024.”
seeks declaratory relief voiding the foreclosure sale; a
permanent injunction voiding the subsequent transfer of the
deeds to the properties to Frederick Burgesen; and an order
to CFG to record a release of judgments entered against him
and Mt. Oak Estates, LLC. ECF 2 at 4. Moreover, he seeks
entry of an order “reinstating fee simple title”
to him. Id. In particular, he challenges an amended
order in Bankruptcy Case RAG-10-28695 (Bankr. Md.), entered
January 31, 2011, dismissing his bankruptcy case; the order
of February 14, 2011; and the foreclosure sale held in
February 23, 2011. Id. at 3.
information below is gleaned from the Amended Complaint and
17, 2006, Myers executed a promissory note in the amount of
$800, 000 with AmericasBANK (the “Bank”) for the
two properties. Myers I, ECF 1 at 2. On January 30,
2008, Ronald B. Katz, Substitute Trustee, filed a foreclosure
action on behalf of the Bank in the Circuit Court for
Baltimore County. ECF 2; Myers I, ECF 1 at 2.
February 2008, the Bank proposed loan modification and
termination of the foreclosure action if Myers provided
additional security from Mt. Oak Estates, LLC. Myers
I, ECF 1 at 1-2. The loan modification agreement and a deed
of trust modification agreement, which cured the default and
reinstated the loan under modified terms and conditions, was
executed on March 4, 2009. The loan modification agreement
mentions the foreclosure action. The deed of trust
modification agreement, which did not reference the
foreclosure action, was then recorded in Baltimore County
land records. Myers I, ECF 1 at 2. According to
Myers, these documents superseded the original note and deed
of trust on the properties. Id. The assets of the
Bank, including the note, were acquired by CFG in November
2009. Id. at 3.
filed a Chapter 13 Voluntary Petition in U.S. Bankruptcy
Court on August 16, 2010, RAG-10-28695 (Bankr. Md.). Myers
noted a mailing address at 5732 Emory Road, Upperco, Md.,
21155. ECF 2 at 2; ECF 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. ECF 2 at 2. On October 5, 2010, the Bankruptcy Trustee
mailed a motion to dismiss to Myers, based on his failure to
attend the meeting of creditors. Id. But, it was
sent to the wrong address. Id. The Bankruptcy Court
entered an order on November 1, 2011, dismissing the case
based on Myers's failure to attend the meeting of
creditors, and lifted the automatic stay. Id. But,
this order also was mailed to the wrong address.
Id.; see also ECF 1-5; ECF 2-1.
filed a timely motion to reconsider on November 8, 2010,
indicating he did not receive the notice due to the error and
noting a new address, P.O. Box 295, Owings Mills, Md. 21117.
ECF 2 at 2-3; ECF 1-2. The Bankruptcy Court ordered Myers to
file an amended motion to reconsider, which he did.
Myers I, ECF 1-7.
January 31, 2011, the Bankruptcy Court entered an amended
order denying reconsideration, dismissing the case with
prejudice, and lifting the stay. Myers I, ECF 1-8.
The amended order stated that Myers's filing history
“reveals he is a serial filer who has abused the
bankruptcy process.” Id. In addition, the
Bankruptcy Court barred Myers from filing a new case in
bankruptcy for a period of 365 days from February 2, 2011.
moved to reconsider on February 8, 2011, under Rule 59(e).
ECF 2 at 3. The Bankruptcy Court denied that motion in an
Order Dated: February 13, 2011. ECF 1-4 at 2. On February 23,
2011, the properties were sold at a foreclosure sale. ECF 2
consistently has claimed that, at the time of the foreclosure
sale, the properties were still encumbered by the deed of
trust that had been assigned to CFG, and that the individual
who purchased the properties at the foreclosure sale is not a
bona fide purchaser.
instant action, Myers claims that his Fifth Amendment right
to due process was denied by the Bankruptcy Court because of
inadequate notice or failure to provide service. He seeks
relief pursuant to Rule 60(b)(4) of the Federal Rules of
Civil Procedure to correct this alleged deficiency. Myers
also invokes Rule 60(b)(3) and (4) in an effort to reopen his
Chapter 13 bankruptcy case to permit him to file a motion to
vacate dismissal of the case, based on his claim of lack of
notice. That ...