United States District Court, D. Maryland, Southern Division
J. Hazel United States District Judge.
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.
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
On July 27, 2006. Mr. and Mrs. Zos conveyed the Property to
Mr. Zos alone. ECF No. 14-3 at 2 On or about April 30.
2007. Plaintiff refinanced the Property. 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. ¶
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. 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.
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.
STANDARD OF REVIEW
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.
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.
Consumeraffuirs.com. 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).
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).
Breach of Contract, and Breach of the Implied Covenant of
Good Faith and Fair Dealing
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.
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