United States District Court, D. Maryland, Southern Division
GREGORY J. WALSH and CHRISTINA WALSH Plaintiffs,
BANK OF NEW YORK MELLON, et al, Defendants.
J. Hazel United States District Judge.
Gregory Walsh and Christina Walsh (collectively.
"Plaintiffs") bring this action against Bank of New
York Mellon. N.A. ("BNY Mellon"), Select Portfolio
Servicing, Inc. ("SPS"), MERSCORP, Inc.
("MERSCORP"), and JP Morgan Chase Bank. N.A.
"Defendants") alleging violations of the Truth in
Lending Act. 15 U.S.C. § 1601 el seq. and
various state common law claims. In the Court's previous
Memorandum Opinion dated March 25. 2016, the Court granted
Defendants' Motions to Dismiss, ECF Nos. 5. 6, and 16.
but allowed Mr. Walsh to amend his Complaint. ECF No. 27. Mr.
Walsh added his wife Christina Walsh as a plaintiff, and
Plaintiffs filed an Amended Complaint on April 8. 2016. Now
pending before the Court is Defendant Chase's Motion to
Dismiss, ECF No. 30. Defendant MERSCORP Holdings,
Inc.'s Motion to Dismiss. ECF No. 35. and
Defendants BNY Mellon and SPS's Motion to Dismiss. ECF
No. 36. No hearing is necessary. See Log. R. 105.6 (D. Md.).
For the following reasons. Defendants' Motions to Dismiss
facts of this case were set forth in the Court's earlier
Memorandum Opinion. ECF No. 27 at 1-2. On November 12.
2004, Gregory and Christina Walsh purchased the property
located at 8913 56th Avenue, College Park, Maryland 20740
(the "Property") for $340, 000. See ECF
No. 1 ¶ 13: ECF No. 5-7 at 1. Plaintiffs obtained two
mortgage loans for the Property from Greenpoint Mortgage
Funding Corp. ("Greenpoint" or the
"Lender"), an entity that is now-defunct. ECF No. 1
¶¶ 15-18. The mortgages were secured by a Deed of
Trust (the "Deed of Trust") naming Mortgage
Electronic Registration Systems. Inc.
("MERS") as the beneficiary of the Deed and the
nominee "for Lender and Lender's successors and
assigns." ECF No. 5-8 at 2. Plaintiffs conveyed the
Property "in fee simple absolute" to the 56th
Avenue Family Holding and Improvement Trust on May 27. 2005.
ECF No. 5-2 at 1. According to Prince George's County
land records dated May 26. 2015. the 56th Avenue Family
Holding and Improvement Trust is the current owner of the
Property. ECF No. 5-3 at 1.
8, 2012, MERS, as "Nominee for Greenpoint Mortgage
Funding, Inc.. its Successors and Assigns." signed an
Assignment of Deed of Trust (the "Assignment")
conveying the Deed of Trust to the "Bank of New York, as
Successor-in-interest to JP Morgan Chase Bank." ECF No.
35-3 at 1. This Assignment was signed by two
individuals. Iquisha Criff and Ashley Clegg. purportedly as
"Vice Presidents" of MERS. Id. Much of
this dispute has centered on the authenticity of these
signatures and the validity of the Assignment, and therefore
the authority of various Defendants to enforce the Deed of
construing Plaintiffs first Complaint, ECF No. 1, the Court
analyzed the claims as ones of fraud and quiet title. ECF No.
27 at 2. The Court held in its earlier Memorandum Opinion
that Plaintiff did not plead his claims of fraud with
particularity, because Plaintiff failed to specify which
Defendants allegedly forged the signatures on the Assignment
and failed to provide sufficient factual allegations as to
the circumstances of the fraud. Id. at 6. Plaintiff
further failed to show how he relied on such fraudulent
signatures, as he was not an actual party to the Assignment.
Id. The Court also held that Plaintiff did not have
standing to challenge the Assignment, because he was neither
the record owner of the Property, nor a party or beneficiary
to the Assignment. Id. at 7. finally, the Court held
that the Plaintiff failed to plead his injury with specific
facts and did not provide proper notice to Defendants as to
which claims were asserted against them. Id. The
Court thus dismissed Plaintiffs claims, but allowed him time
to submit an amended complaint. ECF No. 27 at 8.
submitted their Amended Complaint on April 8. 2016. and now
assert claims under the Truth in Lending Act. 15 U.S.C.
§ 1601 et .seq. (Count 1). breach of fiduciary
duty (Count II). common law fraud and intentional infliction
of emotional distress (Count III), and cancellation of
instruments under the Uniform Commercial Code § 3-501
(Count IV). ECF No. 29. Plaintiffs also request
"declaratory and injunctive relief in the nature of an
order of cease and desist ordering the Defendants to stop
foreclosure proceedings and eviction." id. at
1. and that they bring this suit as a "class
action." id. at 28. The majority of
Plaintiffs' Amended Complaint discusses MERS*s authority
or lack thereof to effectuate the Assignment of Deed of
Trust. Plaintiffs contend that "the signer of the
Assignment appears to be an employee of .IP Morgan Chase
Bank. NA and not a MERS executive, as alleged." ECF No.
29 at 19. Plaintiffs allege that "in court proceedings
MERS has publicly disavowed any ownership interest in
mortgage notes" and "there is no power of attorneys
from the lenders giving MERS authority to assign the
mortgages or deeds of trust." Id. at 8-9.
Plaintiffs further claim that "MERS does not have a
sufficient agency relationship with the lender
[Greenpoint]" and "there is no agreement in
writing, as required by the Maryland Statute of Frauds,
between MERS and Greenpoint." Id. at 10.
Plaintiffs argue that "MERS never owned the note and had
no right to payments made on the note." Id. at
11. Plaintiffs also make allegations relating to their
obligations to pay on the mortgage loans. Specifically, they
argue that because BNY Mellon and Chase do not have the
original note in their possession, but rather a scanned copy,
there is no chain of title from the Lender to Defendants, and
BNY Mellon and Chase cannot enforce the note. Id. at
Chase submitted a Motion to Dismiss on April 26. 2016. ECF
No. 30. Defendant MERSCORP filed a Motion to Dismiss on May
11. 2016. ECF No. 35. Defendants BNY Mellon and SPS also
submitted their Motion to Dismiss on May IE 2016. ECF No. 36.
the Court sent letters describing Plaintiffs" rights
under Fed.R.Civ.P. 12 and 56 to Plaintiffs on April 27. 2016
and May 1 2. 2016. As of January 9. 2017. Plaintiffs have not
filed a Response to any of Defendants" Motions to
Dismiss. Upon review of the relevant pleadings, the Court
will now dismiss Plaintiffs' Amended Complaint with
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 WE 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 the Plaintiffs' 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).
Complaints filed by pro se plaintiffs, as here, are
"to be liberally construed" and "must be held
to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus. 551 U.S. 89, 94
(2007). However, the Complaint must contain more than
"legal conclusions, elements of a cause of action, and
bare assertions devoid of further factual enhancement."
Nemet Chevrolet. Ltd v. Consumeraffuirs.com. Inc.,
591 F.3d 250. 255 (4th Cir. 2009).
in claims "alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake." 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")."Even where a plaintiff is proceeding pro
se. the particularity requirements of Rule 9(b) apply."
Coulibay v. J.P. Morgan Chase Bank. N.A.. No. DKC
10-3517. 2011 WL 3476994. at *19 0.23 (D.Md. Aug. 8, 2011).
Violations of Truth in Lending Act