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Zos v. Wells Fargo Bank, N.A.

United States District Court, D. Maryland, Southern Division

January 18, 2017

WELLS FARGO BANK. N.A., Defendant.


          George J. Hazel United States District Judge.

         Plaintiff Ozioma David Zos brings this action against Defendant Wells Fargo Bank. N.A. successor by merger to Wells Fargo Home Mortgage ("Defendant" or "Wells Fargo") for breach of contract, intentional misrepresentation, violations of the Truth in Lending Act, 15 U.S.C. § 1631. el seq. ("TILA"), and other claims relating to his home mortgage loan. Presently pending before the Court is Defendant's Motion to Dismiss. ECF No. 32. Plaintiff has not filed an Opposition, and the time for doing so has passed. No hearing is necessary. See Loc. R. 105.6. For the reasons stated herein. Defendant's Motion to Dismiss is granted.

         I. BACKGROUND

         Mr. Zos and his then-wife Nkem D. Zos purchased the real property located at 8201 Roanoke Avenue. Takoma Park. MD 20912 (the "Property") on November 10. 1998. ECF No. 14-2 at 2.[1] On July 27, 2006. Mr. and Mrs. Zos conveyed the Property to Mr. Zos alone. ECF No. 14-3 at 2[2] On or about April 30. 2007. Plaintiff refinanced the Property.[3] See ECF No. 26-1 ¶ 4; ECF No. 2 ¶ 3. As part of the refinancing. Plaintiff executed a "written financing agreement. good faith estimate, buyer-broker agreements, and other loan documents" with Equity United Mortgage Corporation ("Equity United"), a mortgage brokerage. ECF No. 26-1 ¶ 4. Plaintiff alleges that at all times relevant to the action. Equity United acted as an agent of Defendant Wells Fargo Bank. N.A. Id. ¶ 5.

         Plaintiff alleges that the Wells Fargo agent represented to him that he was being placed in "a fixed monthly payment loan program with an estimated interest rate of 6.625%." Id. ¶ 6. Plaintiff further contends that "ft]here was no discussion about an interest only feature in the fixed monthly payment fully amortized loan program at the time prior to execution of the note in 2007.[4] Id. ¶ 7. Plaintiff claims that he first found out about his "interest-only fixed-rate mortgage" in a letter sent March 3. 201 5. which advised him of a future payment increase. Id. ¶ 8. Plaintiff sent Defendant a letter on March 13. 2015 stating that his agreement did not have an interest-only feature and demanded corrective action. Id. ¶ 9. Defendant did not take the requested corrective action, and Plaintiff filed this lawsuit. Id. ¶ 10.

         Plaintiff filed his initial Complaint in the Circuit Court for Montgomery County. See ECF No. 1-1; Zos v. Wells Fargo Bank, No. 412955 V (Cir. Ct. of Mont. Cty.). Plaintiff filed an Amended Complaint with the Circuit Court for Montgomery County on January 14, 2016. ECF No. 1-1 at 9; ECF No. 2. Defendant removed the action to this Court on February 19. 2016. ECF No. 1. Defendant filed a Motion to Dismiss for Failure to State a Claim on February 26, 2016. ECF No. 14. As Plaintiff was then pro se, the Court sent Mr. Zos a letter advising him of his rights under Fed.R.Civ.P. 12 and 56. ECF No. 15. Attorney Chidiebere Onukwugha entered an appearance on behalf of Mr. Zos on March 30, 2016. ECF No. 20. Plaintiff filed a Second Amended Complaint on April 1. 2016. ECF No. 26. The Court denied the Motion to Dismiss the Amended Complaint as moot. ECF No. 31. and on May 5, 2016. Defendant again submitted a Motion to Dismiss for Failure to State a Claim as to Plaintiffs Second Amended Complaint, ECF No. 32. which the Court addresses herein. As of this date. Plaintiff has not responded to Defendant's Motion to Dismiss.[5]


         "A defendant may test the adequacy of a complaint by way of a motion to dismiss under Rule 12(b)(6)." Maheu v. Bank of Am., N.A.. No. 12-CV-508. 2012 WL 1744536. at *4 (D. Md. May 14, 2012) (citing German v. Fox. 267 F.App'x 231. 233 (4th Cir. 2008)). To overcome a Rule 12(b)(6) motion, a complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when "the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         In evaluating the sufficiency of Plaintiff s claims, the Court accepts factual allegations in the Complaint as true and construes the factual allegations in the light most favorable to the Plaintiff. Albright v. Oliver. 510 U.S. 266. 268 (1994); Lambeth v. Bd of Comm'rs of Davidson Cty., 407 F.3d 266. 268 (4th Cir. 2005). However, a court need not accept a plaintiffs legal conclusions as true, as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Complaint must contain more than "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement." Nemel Chevrolet, Ltd v. Inc.. 591 F.3d 250. 255 (4th Cir. 2009). Additionally, the Court may consider documents attached to the Motions to Dismiss without converting the Motion into one for Summary Judgment, "so long as [such documents] are integral to the complaint and authentic." Philips v. Pitt. Cty. Mem. Hasp.. 572 F.3d 176. 180 (4th Cir. 2009).

         To state a claim of fraud, a party must also "state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed.R.Civ.P. 9(b). Rule 9(b) requires "that a plaintiff alleging fraud must make particular allegations of the time, place, speaker, and contents of the allegedly false acts or statements." Adams v. NVR Homes. Inc.. 193 F.R.D. 243. 249-50 (D. Md. 2000): U.S. ex rel. Wilson v. Kellogg Brown & Root. Inc., 525 F.3d 370. 379 (4th Cir. 2008) (describing the "who. what, when, where, and how" of the fraud claim).

         III. ANALYSIS

         A. Breach of Contract, and Breach of the Implied Covenant of Good Faith and Fair Dealing

         "A breach of contract suit is based on a particular contract where that contract contains the terms whose breach is alleged." De 't of Pub. Safety & Corr. Servs. v. ARA Health Servs., Inc., 107 Md.App. 445. 459 (1996). In this diversity case. Maryland law applies to Plaintiffs claims for breach of contract and breach of the implied covenant of good faith and fair dealing. See Millman v. Wetterau Inc.. CIV. H-88-1331. 1989 WL 206582. al * 12 (D. Md. June 6. 1989): Traylor v. Grafton, 273 Md. 649, 660 (1975) ("[s]ince the place of contracting was Maryland, its law must determine the validity and effect of the alleged agreement.) Under Maryland law. "[w]here a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed." Kasten Const. Co., Inc. v. Rode Enterprises. 268 Md. 318. 328-29 (1973). Further, "[w]hen the language of a contract is clear. the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it to mean." Id.

         Describing the so-called "signature doctrine." the Maryland Court of Appeals has stated, "[u]nder long-settled law. if there is no dispute that [the Borrowers] signed the Applications, they are presumed to have read and understood those documents as a matter of law." Windesheim v. Larocca.443 Md. 312. 328-29 (2015) (citing See Merit Music Service, Inc. v. Sonneborn,245 Md. 213. 221-22 (1967) ("[T]he law presumes that a person knows the contents of a document that he executes and understands at least the literal meaning of its terms.")); Binder v. Benson.225 Md. 456. 461 (1961) ("[T]he usual rule is that if there is no fraud, duress or mutual mistake. one who has the capacity to understand a ...

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