United States District Court, D. Maryland
Xinis United States District Judge
and Cyriacus Okoro (collectively, “Plaintiffs” or
the “Okoros”), proceeding pro se, filed
a Complaint against the Federal National Mortgage
Association, Hudson City Savings Bank, FSB, M&T Bank,
M&T Corporation, The Alba Law Group, P.A., Wells Fargo
Bank, N.A., and Wells Fargo Home Mortgage Inc. (collectively,
“Defendants”). Plaintiffs bring this action
against Defendants for violations of the Real Estate
Settlement and Procedures Act (“RESPA”) and Fair
Debt Collection Practices Act (“FDCPA”) in
connection with the Defendants' acceleration of their
Promissory Note and an attempt to enforce their security
interest. Plaintiffs also allege state law claims based upon
the same course of conduct.
pending before the Court are Defendants' Motions to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (ECF
Nos. 20, 23, and 24). The relevant issues have been fully
briefed and the court now rules pursuant to Local Rule 105.6
because no hearing is necessary. For the reasons set forth
below, the Court will GRANT Defendants' Motion to
matter arises out of foreclosure proceedings filed with
respect to Plaintiffs' property located at 7211 Oakley
Road, Glenn Dale, Maryland 20769 (the
“Property”). See ECF No. 1-1.
October 31, 2006, the Plaintiffs executed a promissory note
(the “Note”) in the original principal amount of
$681, 200 payable to Hovnanian American Mortgage, LLC
(“Hovnanian”), secured by a deed of trust
executed by Plaintiffs on the Property (the “Deed of
Trust”). ECF Nos. 1-1, 1-2. Hovnanian subsequently
executed and attached an allonge to the Note bearing a
special indorsement, thereby making the Note payable to Wells
Fargo Bank, N.A. (“Wells Fargo”). ECF No. 1-1 at 5.
Wells Fargo then added a blank indorsement on the allonge,
making the Note payable to the holder of the
Note. ECF Nos. 1 at 7, 1-1. Wells Fargo remained
the Loan Servicer throughout the life of the loan.
See ECF No. 1 at 3-4, 36-37.
allege that after Hovnanian sold their loan to Wells Fargo,
the loan was securitized in a pool to Federal National
Mortgage Association (“Fannie Mae”)
“sometime in 2009.” (ECF No. 1 at 3 n.3).
Plaintiffs further allege that Fannie Mae owns the loan and
the servicing of the loan was governed by the Fannie Mae
Single Family Servicing Guide. ECF No. 1 at 5. But despite
Plaintiffs' bald assertion, the loan documentation
attached to and incorporated in the Complaint nowhere
mentions Fannie Mae as an involved lender or servicer. ECF
No. 1 at 3 n.3.
those loan documents that Plaintiffs chose to provide the
Court, as incorporated in their Complaint, reflect that
Hovnanian executed a Corporate Assignment of Deed of Trust
(the “Assignment”) to Bank of America on October
14, 2011; and then Bank of America Assigned the Deed of Trust
to Hudson City Savings Bank FSB (“Hudson
City”) on May 25, 2012. ECF Nos. 1-3, 1-7. 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 Plaintiffs' 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.
2009, Plaintiffs defaulted on the Note. ECF Nos. 1 at 9, 11;
see also ECF No. 1-5. To forestall the expected
foreclosure, they asked for and allegedly received a trial
modification agreement from Wells Fargo also known as a Trial
Period Plan (“TPP”) under the Home Affordable
Modification Program (“HAMP”). ECF No. 1 at 10;
see also ECF No. 1-4. However, the documents that
Plaintiffs chose to attach to their Complaint and incorporate
by reference belie that any agreement was ever reached.
Rather, Plaintiffs provide only a completed application that
was not signed by any lender. ECF No. 1-4. Indeed, Plaintiffs
even aver elsewhere in their Complaint that they never
received approval for a final loan modification, ECF No. 1 at
12, yet also claim that they made monthly payments under the
trial modification, and later, forbearance. ECF No. 1 at 11,
n.10; see also ECF No. 1-5.
also claim that they complained in writing to the Office of
Thrift Supervision (“OTS”) in early 2011 based on
their rejection from the HAMP program in 2009. OTS responded
and attached direct correspondence from Hudson City verifying
that Hudson City does not participate in HAMP but would be
willing to discuss a possible forbearance agreement with
Plaintiffs. ECF No. 1-6; ECF No. 1 at 12-13, 18-19.
Plaintiffs aver that Hudson City's representations in
March of 2011 as the owner of the note were false because it
was not until May 25, 2012 that Hudson City was assigned the
Deed of Trust. ECF No. 1 at 13. Plaintiffs claim that Hudson
City was merely a servicer of the Note. ECF No. 1 at 15-16.
22, 2013, Defendants initiated foreclosure proceedings.
See Dore v. Okoro, Case No. CAE 13-08379 (the
“Foreclosure Action”); ECF No. 1 at 18; see
also ECF No. 1-8. Five attorneys employed by The Alba
Law Group, P.A. (“Alba”) were appointed as
substitute trustees in connection with those proceedings. ECF
No. 1 at 13-14; ECF No. 1-8 (a copy of the Declaration of
Substitution of Trustees).
14, 2014, Plaintiffs sent Wells Fargo a letter that they
characterize as a Qualified Written Request
(“QWR”), pursuant to § 2605(e) of RESPA,
requesting information regarding the historic transfer of the
Note and Deed of Trust. ECF No. 1 at 15; ECF No. 1-9.
Plaintiffs then filed for bankruptcy relief on February 16,
2016. In re: Henrietta Okoro and Cyriacus
Okoro, Bankr. D. Md., Case No.: 16-11751 (Chapter 7)
[hereinafter “Bankruptcy Proceeding”]. The
Foreclosure Action remains pending and is currently stayed in
light of Plaintiffs' bankruptcy. See ECF No.
20-3 at 2. Plaintiffs allege that in the Bankruptcy
Proceeding, Hudson City and Wells Fargo filed a fraudulent
proof of claim which included a forged version of the Note,
fraudulently produced by placing the indorsement on a scanned
image in accordance with Wells Fargo policies to create
forgeries. ECF No. 12 at 3.
March 3, 2016, Plaintiffs filed the instant Complaint (ECF
No. 1) and later, on April 9, 2016, an Amended Complaint (ECF
No. 12), cumulatively asserting fourteen claims, including
fraud (Counts I, II, III, XIV),  negligence (Counts II, X),
civil conspiracy (Count IV, XIII), tortious interference with
contract (Count VII), and violations of the Maryland Consumer
Debt Collection Act (“MCDCA”) (Count V), Maryland
Consumer Protection Act (“MCPA”) (Count VI), Fair
Debt Collection Practices Act (“FDCPA”) (Count
VIII), and Real Estate Settlement and Procedures Act
(“RESPA”) (Count IX, XI, XII).
claims under common law, the MCDCA, and MCPA against Wells
Fargo, Hudson City, and Alba, Plaintiffs principally allege
that Wells Fargo and Hudson City falsely held out Hudson City
as the lender and holder of the Note. Without ownership,
Plaintiffs claim, Hudson City never had authority to deny
Plaintiffs a HAMP-based loan modification. ECF No. 1 at 22.
Plaintiffs contend that Hudson City and Wells Fargo conspired
to present Hudson City as the owner of Plaintiffs' loan
so as to have a justifiable excuse for denying
Plaintiffs' loan modification in 2009. ECF No. 1 at 16.
Additionally, because Hudson City deceitfully represented
itself to be the investor or owner, Plaintiffs were
“fraudulently deprived” of their opportunity for
a loan modification in February 2011. ECF No. 1 at 14. They
also allege that, when Hudson City did not own the loan,
Wells Fargo converted their mortgage payments and “may
not have credited some or all of such payments to
Plaintiffs' account.” ECF No. 1 at 14- 15. Wells
Fargo then sought to conceal its alleged fraud and
misapplication of Plaintiffs' interest payments. ECF No.
1 at 15. Asserting that, in 2009, they should have received a
final loan modification, Plaintiffs allege that, over the
next seven years, they lost time and money, incurred myriad
fees, and suffered physical and mental pain and anguish
attempting to obtain a loan modification. ECF No. 1 at 17-18.
Plaintiffs also claim that Wells Fargo violated RESPA by not
responding to Plaintiffs' 2014 written request for
information disclosing the identity of the Note holder, ECF
No. 1 at 15, and Wells Fargo's proof of claim filed in
Bankruptcy Court attaches a forged note, thus breaching the
“duty of care . . . imposed to protect the debtor from
fraud and abuse by creditors . . . in filing a proof of
claim.” ECF No. 12 at 12. With regards to Fannie Mae,
Plaintiffs allege that the application of the Fannie Mae
servicing guidelines deceives homeowners, and Fannie Mae
conspired against the Plaintiffs. ECF No. 1 at 38.
April 8, 2016, Plaintiffs filed an adversary proceeding in
the Bankruptcy Court alleging similar facts and circumstances
and seeking declaratory relief from the Bankruptcy Court.
See Okoro v. Wells Fargo, Adversary No.: 16-00185,
ECF No. 1. Defendants contended that Plaintiffs lacked
standing in the adversary proceeding. On June 6, 2016, the
Plaintiffs filed a motion for an order of abandonment of the
present action with the Bankruptcy Court, and the Trustee did
not object. See Bankruptcy Proceedings, ECF 50. On
June 28, 2016, the Bankruptcy Court entered an order
determining that the present action is abandoned property
pursuant to 11 U.S.C. §554 and Fed.R.Bankr.P. 6007.
See Bankruptcy Proceedings, ECF 51; ECF No. 34-1
(June 28, 2016, Order of Abandonment). Then, on August 8,
2016, the Bankruptcy Court dismissed the adversary proceeding
for lack of jurisdiction after finding that the Order of
Abandonment removed the cause of action from the jurisdiction
of the bankruptcy case. Okoro v. Wells Fargo,
Adversary No.: 16-00185, ECF No. 32 at 4-5.
20, 2016, Alba filed a Motion to Dismiss. ECF No. 20. On May
31, 2016, Fannie Mae filed a Motion to Dismiss, ECF No. 23,
and Hudson City and Wells Fargo filed their Joint Motion to
Dismiss. ECF No. 24. For the reasons that follow, all three
motions to dismiss will be GRANTED.
STANDARD OF REVIEW
the contemporaneous bankruptcy proceedings, Defendants
challenge Plaintiffs' standing to bring the instant
action before this Court. Standing is an element of subject
matter jurisdiction, thus Defendants' Motions to Dismiss
for lack of standing should be treated under Fed.R.Civ.P.
12(b)(1). See White Tail Park, Inc. v. Stroube, 413
F.3d 451, 459 (4th Cir. 2005); Axel Johnson, Inc. v.
Carroll Carolina Oil Co., Inc., 145 F.3d 660, 661-62
(4th Cir. 1998) (affirming the district court's dismissal
of the complaint for lack of standing pursuant to Rule
12(b)(1)). The existence of subject matter jurisdiction is a
threshold issue the court must address before considering the
merits of the case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999).
also move to dismiss under Fed.R.Civ.P. 12(b)(6), arguing
that Plaintiffs' Complaint and Amended Complaint fail to
state a claim. The purpose of a motion to dismiss under Rule
12(b)(6) is to test the sufficiency of the complaint.
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006) (citation and internal quotation marks
omitted). Plaintiffs are proceeding pro se, and
their Complaint and Amended Complaint are to be construed
liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972). However, liberal construction does not absolve
Plaintiffs from pleading plausible claims. See Holsey v.
Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing
Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir.
1977)). As the Fourth Circuit made clear:
It is neither unfair nor unreasonable to require a pleader to
put his complaint in an intelligible, coherent, and
manageable form, and his failure to do so may warrant
dismissal. Corcoran v. Yorty, 347 F.2d 222, 223 (9th
Cir.), cert. denied, 382 U.S. 966 (1965); Holsey
v. Collins, 90 F.R.D. 122, 128 (D.Md.1981). District
courts are not required to be mind readers, or to conjure
questions not squarely presented to them. Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985),
cert. denied, 475 U.S. 1088 (1986).
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at
*1 (4th Cir.1992) (per curiam).
ruling on a motion under Rule 12(b)(6), the court must
“accept the well-pled allegations of the complaint as
true, ” and “construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff.” Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). “The mere recital of
elements of a cause of action, supported only by conclusory
statements, is not sufficient to survive a motion made
pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To
survive a motion to dismiss, a complaint's factual
allegations “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). “To
satisfy this standard, a plaintiff need not
‘forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements.”
Walters, 684 F.3d at 439 (citation omitted).
“Thus, while a plaintiff does not need to demonstrate
in a complaint that the right to relief is ‘probable,
' the complaint must advance the plaintiff's claim
‘across the line from conceivable to
plausible.'” Id. (quoting
Twombly, 550 U.S. at 570).
reviewing a motion to dismiss, “[t]he court may
consider documents attached to the complaint, as well as
documents attached to the motion to dismiss, if they are
integral to the complaint and their authenticity is not
disputed.” Sposato v. First Mariner Bank, No.
CCB-12- 1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013);
see also CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009);
Fed.R.Civ.P. 10(c) (“A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading
for all purposes.”). To be “integral, ” a
document must be one “that by its ‘very
existence, and not the mere information it contains, gives
rise to the legal rights asserted.'” Chesapeake
Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794
F.Supp.2d 602, 611 (D.Md.2011) (citation and emphasis
omitted). Here, the Note, the Deed of Trust, the Declaration
of Substitution of ...