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Myers v. CFG Community Bank

United States District Court, D. Maryland

October 5, 2016

DOUGLAS C. MYERS Plaintiff
v.
CFG COMMUNITY BANK Defendant

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         Plaintiff 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. Circuit Court), http://casesearch.courts.state.md.us/inquiry. Myers filed an Amended Complaint on September 29, 2016 (ECF 2), adding an additional exhibit.[1]

         In his 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.” Id.

         Myers 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.

         Background

         The information below is gleaned from the Amended Complaint and Myers I.[2]

         On May 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.

         In 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.

         Myers 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.

         Myers 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.

         On 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. Id.

         Myers 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 at 4.[3]

         Myers 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.

         In the 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 ...


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