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Shipkovitz v. Dovenmuehle Mortgage Inc.

United States District Court, D. Maryland

November 17, 2016

DOVENMUEHLE MORTGAGE, INC., et al., Defendants.


          Paula Xinis United States District Judge.

         Plaintiff Samuel Shipkovitz (“Plaintiff” or “Mr. Shipkovitz”), proceeding pro se, filed an action against Dovenmuehle Mortgage, Inc. (“Dovenmuehle”) and Richard Cordray, Director of the Consumer Financial Protection Bureau (“CFPB”), in his official capacity.[1]

         Currently pending before the Court are Defendant Dovenmuehle's Motion to Dismiss (ECF No. 25), Defendant Cordray's Motion to Dismiss or in the alternative, for Summary Judgment (ECF No. 23), as well as five motions from the Plaintiff: (1) Motion for Leave to File an Amended Complaint (ECF No. 32); (2) Motion for an Extension of Time to Respond to Defendant Cordray's Motion to Dismiss (ECF No. 34); (3) Motion to Reconsider the Order Amending Deadlines (ECF No. 37); (4) Motion for Leave to File Second Amended Complaint (ECF No. 41); and (5) Motion for Leave to File Third Amended Complaint (ECF No. 47)).

         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, Defendant Dovenmuehle's Motion to Dismiss (ECF No. 25) shall be GRANTED, Defendant Cordray's Motion to Dismiss or in the alternative, for Summary Judgment (ECF No. 23) shall be GRANTED, Plaintiff's motions for leave to amend his complaint (ECF Nos. 32, 41, 47) shall be DENIED, and Plaintiff's other pending motions (ECF Nos. 34 and 37) shall be DENIED AS MOOT.

         I. BACKGROUND[2]

         In 1989, Plaintiff purchased the property located at 5918 Holland Road, Rockville, Maryland 20851 (the “Property”). ECF No. 2 at 3. To effectuate the purchase of the Property, Plaintiff obtained a loan in the amount of $105, 000.00 which was secured to the Real Property pursuant to the terms of a Deed of Trust (“Mortgage”). ECF No. 2 at 3.

         At some point, Defendant began to experience financial problems due to ongoing and significant medical issues. See ECF No. 2 at 4. As a result of these medical and financial issues, on March 27, 2000, Plaintiff conveyed a remainder interest in the Property to his niece and nephew. See ECF No. 2 at 4.

         In November of 2000, Plaintiff began to receive solicitations from Dovenmuehle regarding a program to refinance the Mortgage at a lower interest rate. ECF No. 2 at 4. Plaintiff applied for the program and was verbally assured by agents of Dovenmuehle that “his credit report and other material were in order.” ECF No. 2 at 5. He also received both an oral commitment and “preliminary good faith estimate of the new terms.” ECF No. 2 at 5. “Several days before the closing was to occur, ” Plaintiff was advised by Dovenmuehle that it would not proceed with refinancing of the Mortgage because Plaintiff had conveyed a remainder interest in the Property to his niece and nephew. ECF No. 2 at 5. Plaintiff asserts that he “has no idea as to their [Dovenmuehle's] motives to back out” but asserts that it could be due to Plaintiff's medical issues, age, religion, or national origin. ECF No. 2 at 6. Plaintiff claims he is damaged as of April 2001 when the refinanced mortgage would have produced a lower interest rate. ECF No. 2 at 6 (“As a result, Plaintiff has been directly damaged in the amount of the difference in interest collected from said April, 2001 . . . until said full payment, satisfaction and release on December 20, 2012.”).

         On December 18, 2015, Plaintiff filed a Complaint in the Circuit Court for Montgomery County. See Montgomery County Circuit Court Case No. 413180V. On March 10, 2016, the Complaint was properly removed to this Court. ECF No. 1.

         Liberally construed, the Complaint asserts claims against Defendant Dovenmuehle for breach of contract, violations of the Maryland Consumer Protection Act (“MCPA”), Truth in Lending Act (“TILA”), Fair Debt Collection Practices Act (“FDCPA”), Equal Credit Opportunity Act (“ECOA”), and Fair Housing Act (“FHA”), alleging that “the lender of his property . . . solicited Plaintiff to refinance and to which Plaintiff agreed and accepted, backing out without cause.” ECF No. 2 at 2, 7-8. In Plaintiff's sole count against Defendant Cordray, Plaintiff requests an Order from the Court “requiring the agency [CFPB] to conduct an appropriate investigation or as permitted by law.” ECF No. 2 at 11.


         While Defendant Cordray seeks dismissal under Rule 12(b)(6), the issues raised in the motion relate to this Court's subject matter jurisdiction pursuant to Rule 12(b)(1). Thus, Defendant Cordray's motion to dismiss should be treated under Rule 12(b)(1). Under this Rule, the plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court “may consider evidence outside the pleadings” to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, 945 F.2d at 768. Occasionally, jurisdictional facts are so intertwined with the merits of a claim that the jury is the proper trier of contested facts. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009).

         Defendant Dovenmuehle moves to dismiss under Fed.R.Civ.P. 12(b)(6). 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). Plaintiff is proceeding pro se, and his Complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff 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)).

         When 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).

         Defendant Dovenmuehle contends that Plaintiff's claims are time-barred by their respective statute of limitations. “[W]here facts sufficient to rule on an affirmative defense . . . are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Pressley v. Tupperware Long Term Disability Plan,553 F.3d 334 (4th Cir. 2009) (quoting Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc)). Defendant's statute of limitations challenge will prevail only if it is apparent from the face of the pleadings that the limitations period has expired. Blackstone v. St. ...

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