United States District Court, D. Maryland
Xinis United States District Judge.
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.
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)).
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.
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.
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.
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,
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.
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.
STANDARD OF REVIEW
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).
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
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).
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.
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