United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
pending Motion for a Temporary Restraining Order and
Preliminary Injunction concerns a mortgage loan for the
property located at 12234 Open View Lane, #803, Upper
Marlboro, Maryland 20774 ("the Property").
Plaintiff Derrick English ("Plaintiff) filed a pro
se complaint against Defendants Ryland Mortgage Company
("Ryland"); U.S. Bank National Association, as
Trustee for the Holders of the GSAA Home Equity Trust 2007-1
("U.S. Bank"); Goldman Sachs Mortgage Company
('"Goldman Sachs"); GS Mortgage Securities
Corp.; Wells Fargo Bank, National Association ("Wells
Fargo"); Mortgage Electronic Registration Systems, Inc.
("MERS"); and "Does 1 through 100"
(collectively, "Defendants") in the Circuit Court
for Prince George's County, Maryland on October 7, 2016.
ECF No. 2. Defendants removed the action to this Court on
November 9, 2016. ECF No. 1. Currently pending before the
Court is Plaintiffs Motion for a Temporary Restraining Order,
Preliminary Injunction, and Declaratory Relief. ECF No. 3. A
hearing is unnecessary. See Local Rule 105.6 (D.
Md.). For the reasons explained below. Plaintiffs Motion for
a Temporary Restraining Order, Preliminary Injunction, and
Declaratory Relief is DENIED.
about September 13, 2006, Plaintiff entered into a consumer
credit transaction with Ryland Mortgage Company by obtaining
a $263, 950.00 mortgage loan secured by Plaintiffs principal
residence. ECF No. 2 ¶ 29. "This note was secured by a
First Mortgage/Trust Deed on the Property in favor of
Ryland." Id. ¶ 30. Ryland subsequently
sold the mortgage to TRUST 2007-1 Trust, a common law trust
that closed in 2007. See Id. ¶ 39; ECF No. 13-1
at 2. Plaintiff claims, among other allegations, that
"unbeknownst to [him], Ryland illegally, deceptively
and/or otherwise unjustly qualified Plaintiff for a loan
which Ryland knew or should have known that Plaintiff could
not qualify for or afford by, for example, the underwriter
has approved this loan based upon credit scores and the
borrower's Stated Income only." Id. ¶
52. Plaintiffs Property allegedly now faces foreclosure and
sale. ECF No. 3 at 11.
Complaint, Plaintiff alleges ten counts against Defendants:
(1) Lack of Standing to Foreclose, (2) Fraud in the
Concealment, (3) Fraud in the Inducement, (4) Intentional
Infliction of Emotional Distress, (5) Quiet Title, (6)
Slander of Title, (7) Declaratory Relief, (8) Violations of
the Truth in Lending Act ("TILA"), (9) Violations
of the Real Estate Settlement Procedures Act
("RESPA"). and (10) Rescission. ECF No. 2 at 1.
Defendants removed the case to this Court on November 9,
2016. ECF No. 1. The Motion for a Temporary Restraining
Order, Preliminary Injunction, and Declaratory Relief filed
by Plaintiff in state court on October 3, 2016 is now pending
before this Court. ECF No. 3. Ryland filed an Opposition to
Plaintiffs Motion for a Temporary Restraining Order on
November 11, 2016. ECF No. 14.
STANDARD OF REVIEW
purpose of a temporary restraining order ("TRO") or
a preliminary injunction is to "protect the status quo
and to prevent irreparable harm during the pendency of a
lawsuit, ultimately to preserve the court's ability to
render a meaningful judgment on the merits." In re
Microsoft Corp, Antitrust Litig., 333 F.3d 517, 525 (4th
Cir. 2003). The grant of a temporary restraining order or a
preliminary injunction is an "extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief." Dewhurst v.
Century-Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011)
(citing Winter v. Natural Resources Defense Council,
555 U.S. 7, 22 (2008)). To be granted a temporary restraining
order or a preliminary injunction, the moving party must
(1) there is a likelihood of success on the merits; (2) there
is a likelihood the movant will suffer irreparable harm in
the absence of preliminary relief; (3) the balance of
equities tips in movant's favor; and (4) the injunction
is in the public interest.
See Winter, 555 U.S. at 20; Dewhurst, 649
F.3d at 290 (reaffirming the four requirements). All four of
these requirements must be met in order for a temporary
restraining order or preliminary injunction to be granted.
See Dewhurst, 649 F.3d at 290.
Motion for a Temporary Restraining Order, Plaintiff baldly
asserts that he is "likely to prevail on the merits at
trial." ECF No. 3 at 9. In support of this assertion, he
makes several conclusory statements. He states,
"Plaintiff has successfully alleged nine causes of
action against Defendants in this case, including violations
of TILA and RESPA: Fraud; Unfair and Deceptive Business
Practice; Unconscionabitity; and Quiet Title."
Id. Plaintiff asserts that "[a] judicial
declaration is necessary and appropriate at this time under
all the circumstances so that plaintiff may determine his or
her rights and duties under the note and deed of
trust, specifically." Id. at 10 (emphasis
in original). Plaintiff alleges that he can demonstrate at
trial that "'defendants breached their PSA [pooling
and serving agreement] contract and through misrepresentation
are about to foreclose on Plaintiffs real property .. ."
Id. Plaintiff claims that he will suffer irreparable
harm because ""Plaintiffs home will be sold within
the next week and Plaintiff [is] subject to eviction actions,
without immediate intervention from this Court." ECF No.
3 at 2.
has failed to establish a likelihood of success on the
merits, and therefore the Motion for a Temporary Restraining
Order or Preliminary Injunction must be denied. See
Dewhurst, 649 F.3d at 290 (explaining that each of the
four requirements must be met for the Court to grant relief).
As an initial matter, the majority of Plaintiff s allegations
stem from Defendants* actions in September 2006, and thus,
appear to be clearly barred by the relevant statute of
limitations periods. Plaintiff alleges violations of federal
statutes TILA and RESPA, as well as other common law claims,
including fraud in the concealment and fraud in the
inducement, which were likely time-barred no later than 2009.
Second, Plaintiffs claims which may not be time-barred, are
not pled with sufficient specificity for the Court to find
the requisite conditions to grant a temporary restraining
order or preliminary injunction.
under TILA are subject to either a one-year or three-year
statute of limitations. See 15 U.S.C. §
1640(e). "This limitations period begins to run when the
borrower accepts the creditor's extension of
credit." Grant, 871 F.Supp.2d at 472 (citations
omitted). RESPA claims are subject to a one-year statute of
limitations, running '"from the date of occurrence
of the violation.'" 12 U.S.C. § 2614. Although
equitable tolling may apply in TILA and RESPA claims.
"setting aside the statute of limitations as to such
claims is no easy task." Grant, 871 F.Supp.2d
at 470 n.10, 472 n.14 (internal citations omitted). To do so,
Plaintiff must show fraudulent concealment and the
'"inability of the plaintiff, despite due diligence,
to discover the fraud." Id. at 470 n.10;
see also Fowler v. Wells Fargo Home Mortg., Inc.,
GJH-15-1084, 2015 WL 2342377, at *3-4 (D. Md. May 13, 2015).
Plaintiff has not made this showing. As these violations
allegedly took place on September 13, 2006, and Plaintiff
makes no argument for equitable tolling, they are likely to
be found time-barred and Plaintiff is unlikely to succeed on
these claims at trial. See Fowler, 2015 WL 2342377,
also alleges that Defendants committed "'fraud in
the concealment" by "concealing the fact that the
Loans were securitized as well as the terms of the
Securitization Agreements." ECF No. 2 ¶ 76.
Plaintiff claims that Defendants committed "fraud in the
inducement" by "intentionally misrepresenting] to
Plaintiff those Defendants were entitled to exercise the
power of sale provision contained in the Mortgage/Deed of
Trust." ECF No. 2 ¶ 85. The statute of limitations
for a civil action under Maryland law is "three years
from the date it accrues unless another provision of the Code
provides a different period of time within which an action
shall be commenced." Md. Code, Cts. & Jud. Proc.
§ 5-101. This period may be extended if knowledge of a
cause of action is kept from a party by fraud. § 5-203.
In that case, "the cause of action shall be deemed to
accrue at the time when the party discovered, or by exercise
of ordinary diligence should have discovered the fraud."
Id. Here, as with his statutory claims, Plaintiff
has not suggested that he was unable to discover the fraud
within three years of purchasing the property in September
2006. See Fowler, 2015 WL 2342377, at *3; Doe v.
Archdiocese of Wash.,689 A.2d 634, 643 (Md. Ct. Spec.
App. 1997) (noting that "the complaint relying on the
fraudulent concealment must also contain ...