United States District Court, D. Maryland, Southern Division
J. Hazel United States District Judge
Emmanuel Agomuoh and Nene Ross bring (his pro se
action against Defendants the PNC Financial Services Group
('"PNC"), the Federal Home Loan Mortgage
Corporation ("Freddie Mac"), and the Alba Law
Group. P.A. (collectively. "Defendants") for state
law claims of negligence, fraudulent concealment, civil
conspiracy, and violations of the Real Estate Settlement
Procedures Act. 12 U.S.C. § 2601 etseq.
("RESPA"). the Maryland Consumer Debt Collection
Act. Md. Code Com. Law § 14-201 et seq.
("MCDCA"). the Maryland Consumer Protection Act.
Md. Code Com. Law § 13-301 et seq.
("MCPA"). and the Fair Debt Collection Practices
Act. 15 U.S.C. § 1692 el seq.
("FDCPA"). Presently pending before the Court is
Defendants" Motion to Dismiss. ECF No. 6. No hearing is
necessary. See Loc. R. 105.6. For the following
reasons. Defendants" Motion to Dismiss is granted.
April 30. 2007. Plaintiff Nene Ross executed a promissory
note (the "Note"), thereby obtaining a home
mortgage loan (the "Loan"') for $700, 000 to
purchase the property located at 5601 Lake Spring Court.
Bowie. Maryland 20720 (the -Property"). ECF No. 1 ¶
3; ECF No. 1-5 at 7. In the Note. Ross promised to pay
$700, 000 plus interest in return for the Loan. ECF No. 1-5
at 7 ¶ 1. The Loan was payable to "FNMC
. a division of National City
Bank." as Lender. Id. Ross and Plaintiff
Emmanuel Agomuoh also executed a Deed of Trust with the
Lender to secure payment of the Note. ECF No. 1 ¶ 3; ECF
No. 1-5 at 14. The Deed of Trust obligated Plaintiffs, as
borrowers, to "pay when due the principal of. and
interest on. the debt evidenced by the Note and any
prepayment and late charges under the Note." ECF No. 1
-5 at 16 ¶ 1. The Deed of Trust further provided that
upon default by Plaintiffs, failure to cure the default
"may result in acceleration of the sums secured by this
Security Instrument and sale of the Property."
Id. at 26 ¶ 22.
learned in 2009 that "PNC Mortgage, a division of PNC
Bank. N.A. purportedly merged with National City Mortgage and
would be receiving Plaintiffs' monthly payments as the
new servicer." ECF No. 1 ¶ 9. Plaintiffs contend
that PNC's acquisition of their Loan was effectuated by
two indorsements - the first by a "Loan Administrator
for FNMC named Paula Noble." which was allegedly blank
and later voided (the "Paula Noble indorsement")
and the second by ""Belenda Luke' as
"Document Control Specialist' for National City
Bank." which was also blank (the "Belenda Luke
indorsement"). Id. ¶¶ 4-6. In 2011.
Plaintiffs were experiencing financial difficulties and
sought a modification of their Loan from PNC Mortgage.
Id. ¶ 10. Plaintiffs were approved for the Home
Affordable Modification Program (HAMP) and signed an
agreement to that effect on May 17 and 19, 2011 (the
"HAMP Agreement"*), modifying their Loan. ECF No. 1
¶ 10; ECF No. 1-6 at 2. One clause of the HAMP Agreement
In cases where the loan has been registered with MERS
[Mortgage Electronic Registration Systems. Inc.] who has only
legal title to the interests granted by the borrower in the
mortgage and who is acting solely as nominee for Lender and
Lender's successors and assigns. MERS has the right: to
exercise any or all of those interests, including but not
limited to, the right to foreclose and sell the Property: and
to take any action required of Lender including, but not
limited to. releasing and cancelling the mortgage loan.
ECF No. 1-6 at 6 ¶ L. Thus, based upon this clause.
Plaintiffs claim they agreed to grant MERS. and apparently
only MERS. the right to foreclose and sell. ECF No. 1 ¶
21. Plaintiffs allege, however, that PNC Bank recorded an
"Appointment of Substitute Trustees" to hold the
Deed of Trust in November 2013. Id. ¶ 23.
Additionally, in September 2014. Plaintiffs learned that
"their loan had been purchased, guaranteed, and/or
securitized by Freddie Mac." ECF No. 1 ¶ 13.
Plaintiffs claim that "PNC Mortgage was never the lender
in connection with Plaintiffs loan transaction and merely
became the successor servicer to loans sold to and likely
securitized by Freddie Mac." Id. ¶ 16.
October 2014 to June 2015, Plaintiffs attempted to obtain a
second loan modification after "experiencing later
financial difficulties." ECF No. 1 ¶ 25. In June
2015. PNC sent Plaintiffs a letter "indicating that
certain loss mitigation options were not available, but that
they were eligible for a short sale option. Id.
¶ 27. Plaintiffs sought the assistance of Boston
Community Capital ("BCC"). a nonprofit
organization, to engage in the short-sale negotiations with
PNC. Id. ¶ 28. While the parties were
negotiating the short-sale. PNC scheduled a foreclosure sale
of Plaintiffs' home. Id. ¶ 30.
Plaintiffs' BCC representative admonished PNC that such
an action was prohibited as "dual-tracking, ""
a situation in which a mortgage servicer is reviewing loss
mitigation requests, but simultaneously pursues foreclosure.
Id. ¶ 30. Despite the "warning."
however. PNC refused to stop the foreclosure sale and
directed Alba Law Group, PA, to schedule and conduct a
foreclosure sale. Id. ¶ 31.
contend that PNC falsely stated that Plaintiffs were not
eligible for any more loan modification requests.
Id. ¶ 33. Plaintiffs further assert that PNC
made false representations that it was not the owner or
assignee of the Loan, and thus PNC's programs and
standards should not have applied to Plaintiffs" loan
modification requests. Id. ¶ 36. Plaintiffs
allege that while "Freddie Mac expressly states on its
website that borrowers are eligible for at least two
different types of loan modifications, " PNC did not
consider Plaintiffs for either of these kinds of programs.
Id. ¶ 43. Plaintiffs contend that they only
received one loan modification, and homeowners are denied
loan modifications only "if they have received three or
more modifications." Id. ¶ 44.
further argue that because only loans owned by Freddie Mac,
Fannie Mae, or other government-sponsored entities are
eligible for HAMP loan modification, that Plaintiffs'
Loan must have been owned by one of these entities and not by
PNC. Id. ¶ 37. Plaintiffs allege that PNC
cannot prove transfer of Plaintiffs" Note from the
original lender. FNMC/National City Bank, to PNC, because the
"chain of endorsements.'' or checks, were blank
or fraudulent. Id. ¶¶ 38-40, 4-8.
Therefore. Plaintiffs claim that "PNC owns no debt
secured by Plaintiffs' property."' Id.
¶ 41. Plaintiffs contend that Alba Law Group, through
its Substitute Trustees, also aided and abetted PNC in
PNC's fraudulent representations that it was the holder
of the Note. Id. ¶¶ 45-46. Plaintiffs
allege that Alba negligently failed to examine the original
instruments to determine whether PNC was in fact the holder
of the Note. Id. ¶ 46.
filed a Chapter 13 bankruptcy petition on January 23. 2015.
ECF No. 1 ¶ 49. In that proceeding. PNC filed a
"Proof of Claim" on August 2015. Id. The
Proof of Claim was filed by Alba on behalf of PNC Bank.
Id. ¶ 50. Plaintiffs allege that this was an
additional fraudulent representation by Alba, as PNC was not
the owner of the Note. Id. Finally, Plaintiffs
allege that Freddie Mac cannot prove it actually owns
Plaintiffs" or other promissory Notes, so it directs its
Mortgage Servicers to foreclose on Freddie Mac's behalf.
Id. at 23. Hence, Plaintiffs argue. Freddie Mac is
also responsible for PNC foreclosing on their home when PNC
did not in fact hold Plaintiffs' Note. Id. at
filed the instant Complaint in this Court on June 16, 2016.
ECF No. 1. Plaintiffs allege: i) Negligent acceleration
against PNC and Alba, ii) Negligence - false proof claim
against Alba and PNC, iii) Fraudulent concealment against
PNC. Alba, and Freddie Mac, iv) Violations of RESPA against
PNC. v) Negligence based upon violations of RESPA. vi) Civil
conspiracy against Alba, PNC. and Freddie Mac, vii) Violation
of the Maryland Consumer Debt Collection Act against PNC and
Alba, viii) Maryland Consumer Protection Act against PNC and
Freddie Mac. and ix) Violation of the Fair Debt Collection
Practices Act against Alba. Defendants filed their Motion to
Dismiss on August 29, 2016. ECF No. 6. Plaintiffs filed their
Response on September 19. 2016. ECF No. 10. Defendants filed
their Reply on October 6. 2016. ECF No. 11.
STANDARD OF REVIEW
is well established that before a federal court can decide
the merits of a claim, the claim must invoke the jurisdiction
of the court." Miller v. Brown, 462 F.3d 312,
316 (4th Cir. 2006). Federal Rule of Civil Procedure 12(b)(1)
governs motions to dismiss for lack of subject matter
jurisdiction. See Khoury v. Meserve, 268 F.Supp.2d
600. 606 (D. Md. 2003). aff'd. 85 F.App'x
960 (4th Cir. 2004). Once a challenge is made to subject
matter jurisdiction. Plaintiffs bear the burden of proving
that subject matter jurisdiction exists. See Evans v.
B.F. Perkins Co., a Div. of Standex Int'l Corp., 166
F.3d 642. 647 (4th Cir. 1999); see also
Ferdinand-Davenport v. Children 's Guild, 742
F.Supp.2d 772. 777 (D. Md. 2010).
Court should grant a Rule 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."
Evans, 166 F.3d at 647. In ruling on a motion to
dismiss under Rule 12(b)(1). the Court "should regard
the pleadings as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment."
Ferdinand-Davenport. 742 F.Supp.2d at 777 (quoting
Evans. 166 F.3d at 647); see also Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765. 768 (4th Cir. 1991).
may also "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 the Plaintiffs* claims, the
Court accepts factual allegations in the Complaint as true
and construes the tactual 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. Consumeraffairs.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 n.23 (D.Md. Aug. 8. 2011).
first argue that the Court should decline to exercise
jurisdiction over Plaintiffs* claims based upon the
Younger and Colorado River abstention
doctrines. ECF No. 6-2 at 15-18. Plaintiffs object, arguing
that this implores the Court to "ignore the obligation
... to take jurisdiction of federal claims" and
"seeks the unconstitutional deprivation of Plaintiffs*
right to seek money damages." ECF No. 10 at 6-27. Under
Younger abstention, named after the seminal case of
Younger v. Harris, 401 U.S. 37 (1971), a federal
court must abstain from interfering if there is: "(1) an
ongoing state judicial proceeding, instituted prior to any
substantial progress in the federal proceeding; that (2)
implicates important, substantial, or vital state interests;
and (3) provides an adequate opportunity for the plaintiff to
raise the federal constitutional claim advanced in the
federal lawsuit." Laurel Sand & Gravel, Inc. v.
Wilson, 519 F.3d 156, 165 (4th Cir. 2008); see also
Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass'n., 457 U.S. 423, 432 (1982) (describing these
three factors which are sometimes called the
assert that "when faced with related state court
foreclosure proceedings, this and other federal courts have
abstained in the federal action." ECF No. 6-2 at 16
(citing Tucker v. Specialized Loan Servicing, LLC.
83 F.Supp.3d 635. 643-44 (D. Md. 2015) (declining to issue
declaratory judgment on Younger grounds); Fiallo
v. PNC Bank, N.A., No. PWG-14-1857. 2014 WL 6983690. at
*2-3 (D. Md. Dec. 9. 2014) (discussing Younger
doctrine as alternative grounds for dismissal); Graves v.
One West Bank. FSB. No. DKC-13-3343, 2014 WL 994366. at
*2 (D.Md. Mar. 13. 2014); Cunningham v. JP Morgan Chase
Bank, 537 Fed.Appx. 44. 45 (3d Cir. 2013); Doscher
v. Menifee Cir. Ct., 75 F.App'x. 996. 997 (6th Cir.
2003)). These cases are ultimately unhelpful to
Defendants' case, however, as explained below.
the case of Younger itself dealt with an ongoing
state criminal prosecution. See Younger, 401 U.S.
37. Since Younger, the Supreme Court "has
extended Younger abstention to particular state
civil proceedings that are akin to criminal
prosecutions." Sprint Commc 'n.,
Inc. v. Jacobs. 134 S.Ct. 584, 588 (2013). However,
as recent Supreme Court jurisprudence has also made clear,
"[c]ircumstances fitting within the Younger
doctrine ... are "exceptional"; they include . .
.'state criminal prosecutions, " "civil
enforcement proceedings, " and 'civil proceedings
involving certain orders that are uniquely in furtherance of
the state courts" ability to perform their judicial
functions.''' Sprint, 134 S.Ct. at 588
(2013) (citing New Orleans Pub. Serv., Inc. v.
Council of City of New Orleans, 491 U.S. 350
(1989)). The Supreme Court further opined:
Divorced from their quasi-criminal context, the three
Middlesex conditions [supra] would extend
Younger to virtually all parallel state and federal
proceedings, at least where a party could identify a
plausibly important state interest. That result is
irreconcilable with our dominant instruction that, even in
the presence of parallel state proceedings, abstention from
the exercise of federal jurisdiction is the "exception,
not the rule." Sprint, 134 S.Ct. at 588 (2013).
The Court in Tucker v. Specialized Loan Servicing
LLC. 83 F.Supp.3d 635 (D. Md. 2015), a similar mortgage
loan case, noted that "[h]ere, the ongoing state court
proceeding certainly is neither a criminal proceeding nor
akin to one; if anything it mirrors contract
litigation." Tucker, 83 F.Supp.3d at 646.
Similarly here, no facts demonstrate that the Maryland state
foreclosure proceeding is akin to a quasi-criminal
proceeding. See Brumfiel v. U.S. Bank, N.A., No
14-2453-WJM. 2014 WL 7005253 (D. Colo. Dec. 11. 2014)
(finding that state foreclosure proceeding did not fall into
first two categories of proceedings noted in Sprint,
and that it was unclear whether it fell into the third);
Lech v. Third Fed. Say. & Loan Ass 'n of
Cleveland. No. 13-518. 2013 WL 6843062. at * 1-2
(S.D. Ohio Dec. 27. 2013) (finding that state-court action
was a "garden variety foreclosure case" and did not
fall into any of the three categories).
whether abstention is proper is informed by the type of
relief sought. See Johnson v. City of
Chesapeake. Virginia. 205 F.3d 1333. at *1 (4th Cir.
2000). The Supreme Court has prescribed that while federal
courts are empowered to dismiss or remand cases based on
abstention principles where equitable relief is sought, as
injunctive or declaratory relief, federal courts generally
may not do so in a common-law action for damages. See
Quackenbush v. Allstate Ins. Co.. 517 U.S. 706. 719-21
(1996) (noting that "we have applied abstention
principles to actions 'at law" only to permit a
federal court to enter a stay order that postpones
adjudication of the dispute, not to dismiss the federal suit
altogether.") (emphasis in original). Rather,
"[w]here the plaintiff seeks damages, federal courts may
not dismiss an action, but can stay proceedings to await
conclusion of the state action." 1-77 Properties.
LLC v. Fairfield Cty., 288 F.App'x 108. 110 (4th
cited cases are thus inapposite because they are either
pre-Sprint and/or cases in which the Plaintiff
sought injunctive relief. In Tucker, for example,
the Court noted that "Plaintiffs" declaratory
judgment action may interfere with the state court's
attempt to effect these orders."" Tucker,
83 F.Supp.3d at 647. In Cunningham, the plaintiff
asked the Court to "enjoin the foreclosure
action."" Cunningham. 537 F. App"x
44. Similarly in Doscher. plaintiff had "asked
the district court to block the sale of his
house."" Doscher. 75 F.App'x at 996
(6th Cir. 2003) In Graves, plaintiff, who had
initially sought injunctive relief, was moving for
reconsideration and to submit an amended complaint.
Graves v. One W. Bank, FSB. No. CIV.A. DKC 13-3343,
2014 WL 994366. at *1 (D. Md. Mar. 13. 2014). Plaintiffs here
are exclusively seeking damages, ECF No. 1 at 40. hence,
dismissal is not appropriate. And. "because it is not
clear that an order of foreclosure presents the
'exceptional circumstances' necessary to 'justify
a federal court's refusal to decide a case in deference
to the States* under Younger.'' the ...