United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this consumer lending
case are motions to dismiss filed by Defendant Alba Law
Group, P.A. (“Alba”) (ECF No. 5) and Defendant
Rushmore Loan Management Services, Inc.
(“Rushmore”) (ECF No. 9). The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons, the
motions to dismiss will be granted.
purchase his home in 2004, Plaintiff Joaquim Neto
(“Plaintiff”) agreed to a note and deed of trust
with Wells Fargo Bank, N.A. (“Wells Fargo”). (ECF
No. 1 ¶ 2). Plaintiff eventually defaulted on his loan,
and in 2012 Wells Fargo or its agents initiated foreclosure
proceedings in the Circuit Court for Prince George's
County, Maryland. (ECF Nos. 1 ¶ 2; 5-3, at 1). During
the foreclosure proceedings, Wells Fargo assigned the deed of
trust to U.S. Bank National Association (“US
Bank”). (Id. ¶ 3). According to the
complaint, Rushmore became Plaintiff's mortgage servicer
as a result of this assignment. (Id. ¶ 4). The
complaint is not clear as to when Alba, a law group that
specializes in debt collection and litigation, became
involved, but, at some point, Alba began working with
Rushmore to litigate the foreclosure and debt collection.
(Id. ¶¶ 66, 78).
Rushmore became the servicer of his mortgage loan, Plaintiff
requested an application for loan modification. (Id.
¶ 19). Plaintiff's agent then submitted
Plaintiff's application and began negotiating for a loan
modification with Rushmore. (Id. ¶¶
20-22). On April 8, 2015, a Rushmore representative called
Plaintiff and notified him that his loan modification request
had been denied. (Id. ¶ 25). Plaintiff's
agent contacted Rushmore seeking an explanation for the
denial of the loan modification application. (Id.
¶¶ 19, 27). Although Plaintiff had never submitted
any bank statements to Rushmore, a Rushmore representative
initially told Plaintiff's agent that the loan
modification had been denied because of information in his
bank statements. (Id. ¶ 29). The following day,
however, Rushmore emailed Plaintiff a copy of a letter
denying his request and indicating that his application had
been denied because the amount of Plaintiff's “good
faith down payment” was insufficient to offer a loan
modification. (ECF Nos. 1 ¶ 31; 1-1, at 2).
prevent a foreclosure sale while he sought loan modification,
Plaintiff had filed bankruptcy proceedings in 2013 in the
U.S. Bankruptcy Court for the District of Maryland, which led
to an automatic stay in the foreclosure proceedings. (ECF No.
1 ¶¶ 20, 39). On June 5, 2015, the bankruptcy court
removed the stay in the foreclosure proceedings and allowed
Rushmore to move forward toward foreclosure. (Id.
¶ 39). On September 15, Rushmore completed the
foreclosure sale. (Id. ¶ 40).
October 14, 2015, Plaintiff filed a motion in the foreclosure
proceeding to (1) excuse noncompliance with the filing
deadline, (2) vacate the sale, and (3) stay or dismiss the
foreclosure proceedings (the “Motion to Vacate
Sale”). (ECF No. 5-5). In it he raised several
purported violations of the Real Estate Settlement and
Procedures Act (“RESPA”), 12 U.S.C. § 2601,
et seq., including failure to provide accurate
information under 12 C.F.R. § 1024.40(b)(1), failure to
implement proper loss mitigation evaluation policies under
section 1024.38(b)(2)(v), violations of the “dual
tracking” prohibition in section 1024.41(g), and
inadequate denial disclosure under section 1024.41(d). (ECF
No. 5-5, at 17, 19, 20, 22). On March 31, 2016, the circuit
court denied Plaintiff's motion, finding that Plaintiff
had “fail[ed] to identify any legitimate procedural
irregularities” in the foreclosure sale and that there
was “no good cause to excuse the untimeliness [because
his] motion does not state a valid defense or present
meritorious argument.” (ECF No. 5-6).
April 8, 2016, Plaintiff filed the instant action. (ECF No.
1). In his nine claims, he raises the same four violations of
RESPA (Counts I-IV); claims for negligence (Count V) and
civil conspiracy (Count VI); and violations of the Maryland
Consumer Debt Collection Act (Count VII), the Maryland
Consumer Protection Act (Count VIII), and the Fair Debt
Collection Practices Act (Count IX). (Id.).
Plaintiff alleges violations by Rushmore in all nine counts,
and Alba's participation in, and liability for, Counts
VI, VII, and IX. (Id.). Alba filed its pending
motion to dismiss on May 3. (ECF No. 5). Plaintiff responded
May 19 (ECF No. 7), and Alba replied June 3 (ECF No. 8).
Rushmore filed its motion to dismiss on July 7. (ECF No. 9).
Plaintiff responded to that motion on July 25 (ECF No. 10),
and Rushmore replied on August 11 (ECF No. 13).
Standard of Review
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). A complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2)
still requires a ‘showing, ' rather than a blanket
assertion, of entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That
showing must consist of more than “a formulaic
recitation of the elements of a cause of action” or
“naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted).
stage, all well-pleaded allegations in the complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and all factual allegations must be
construed in the light most favorable to the plaintiff.
See Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)). In evaluating the complaint,
unsupported legal allegations need not be accepted.
Revene v. Charles Cty. Comm'rs, 882 F.2d 870,
873 (4th Cir. 1989). Legal conclusions couched as
factual allegations are insufficient, Iqbal, 556
U.S. at 678, as are conclusory factual allegations devoid of
any reference to actual events. United Black Firefighters
v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979);
see also Francis v. Giacomelli, 588 F.3d 186, 192
(4th Cir. 2009). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged, but it
has not ‘show[n] that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
pro se pleadings are liberally construed and held to
a less stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean that the court
should rewrite the complaint to include claims never
presented. Barnett v. Hargett, 174 F.3d 1128, 1132
(10th Cir. 1999). That is, even when pro
se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990); Forquer v. Schlee,
No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(citation and internal quotation marks omitted)
(“[E]ven a pro se complaint must be dismissed
if it does not allege a plausible claim for relief.”).