United States District Court, D. Maryland
J. HAZEL United States District Judge
Ngozi Madukwc brings this case against Defendants Capital One
Financial Corporation ("Capital One"). Federal Home
Loan Mortgage Corporation ("Freddie Mac"'), and
Cohn. Goldberg and Deutsch. LLC ("CGI)"*}, in
connection with the foreclosure and sale of her home. ECF No.
12. Pending before the Court are two Motions to Dismiss, the
first tiled by Defendants Capital One and Freddie Mac. ECF
No. 13. and the second filed by Defendant C'GD. ECF No.
16. These issues have been fully briefed and a hearing is
unnecessary. Loc. R. 105.6 (D. Md. 2016). For the reasons
slated below, the Court will grant Defendants' motions
and dismiss the case.
27. 2007, Plaintiff executed an adjustable rate note and deed
of trust with BF Saul Mortgage Company ("BF Saul"),
in order to purchase a home located at 53.1
Cedar Spring Street. Gaithersburg. Maryland 20877. ECF No. 12
¶ 2: see also ECF No. 12-1 at 2.  BF Saul was
subsequently acquired by Capita! One in 2008. when Capital
One merged with BF SauFs parent company. ECF No. 12 ¶
point during the intervening years. Plaintiff defaulted on
her loan. Id. ¶ 11. On July 8. 2013. Capital
One appointed CGD as substitute trustee for Plaintiffs loan.
Id. ¶ 12: see also ECF No. 12-3. On
July 12. 2013. CGD initiated foreclosure proceedings against
Plaintiff in Montgomery County Circuit Court, filing copies
of the note and deed of trust for the 533 Cedar Spring Street
property in support of their claim. ECF No. 12 ¶ 13:
see also C 'GD v. MaDukwe, 379030V (Mont. Cty.
Cir. Ct. 2017). Dkt. No. 1 Plaintiff alleges that this note is
a forgery and that Capital One "never owned and held
Plaintiffs note." ECF No. 12 ¶¶ 33-34. Thus.
Plaintiff claims that Capital One lacked the authority to
appoint CGD as trustee, and CGD consequently lacked the
authority to commence foreclosure proceedings. Id.
the foreclosure proceedings. Plaintiff sought a loan
modification from Capital One. Id. ¶ 11. On
September 15, 2015. Plaintiffs request for a loan
modification was denied, hi: see also ECF No. 12-2.
In the letter. Capital One explained that Plaintiff had
already received a loan modification under the Home
Affordable Modification Program ("HAMP"") in
2010. ECF No. 12-2 at 2. She was informed that her subsequent
attempts at loan modifications in 2013 and 2014 were denied
because of her 2010 loan modification, and the fact that
subsequent modifications would not have reduced her monthly
mortgage payment. Id. The letter also explained that
Freddie Mac was the investor in her loan and that Capital One
was her loan servicer, Id. Thus. Capital One was
required to "service [Plaintiff si home loan per the
guidelines of [Plaintiffs] home loan's investor FHLMC
("Freddie Mac'").'" Id.
learning that Freddie Mac. rather than Capital One. was the
investor of her loan. Plaintiff sent a letter to Capital One
on October 1 0. 2015. requesting more information
''regarding Freddie Mac's involvement." and
raising concerns "regarding the validity...of the
note." ECF No. 12 ¶¶ 42-43. Plaintiff alleges
that Capital One refused to acknowledge acceptance of her
letter or respond to her requests. Id. * 44.
Plaintiff claims that a response to her request "would
have shown that Capital One had no authority to foreclose or
take any other action in connection [with the
property!.""Id. ¶ 78.
December 29. 2015. the Montgomery County Circuit Court issued
an order ratifying the foreclosure sale, and altera hearing
on March 8. 2016 in which Plaintiff was present, granted
possession of the property to the foreclosure purchaser.
See COD. 379030V at Dkt. Nos. 41. 48. Plaintiff
subsequently tiled a motion to reconsider the court's
ruling, and in a separation motion. moved "to stay
proceedings pending determination of whether Capital One
currently owns the notes and loan." Id. at Dkt.
Nos. 51. 56. Plaintiff also submitted supplemental points and
authorities "demanding dismissal and/or stay for failure
to disclose secured party Freddie Mac." Id. at
Dkt. 59. In response to these motions, the court issued
orders denying Plaintiffs request for reconsideration and
denying Plaintiff "all relief requested by [ Plaintiff
s] Motion to Stay Proceedings pending determination of
whether Capital One currently owns the note and loan."
Id. at Dkt. Nos. 72. 104. A final order ratifying
the foreclosure sale was issued shortly thereafter.
Id. at Dkt. No. 106. Plaintiff continued to
vigorously contest the foreclosure, filing several motions
for reconsideration and interlocutory appeals to the Maryland
Court of Special Appeals. See id at Dkt. Nos. 99.
111, 114, and 116.
initiated this case on March 16. 2016. ECF No. 1. and
subsequently amended her complaint on April 20. 2016. ECF No.
12. In her Amended Complaint, she alleges that Capital One,
and thus COD. did not have the right to foreclose on her
property because the note they submitted to the Montgomery
County Circuit Court was fraudulent. Id. ¶ c
33-34; 41. She also alleges that Capital One hid Freddie
Mac*s involvement in the loan by failing to respond to her
request for information, which caused her to lose her home to
"an entity that had no true interest in her
loan." Id. * ¶¶49-53. Plaintiff
claims that Defendants' actions constitute fraud. civil
conspiracy and tortious interference with a contract, and
also alleges violations of the Maryland Consumer Debt
Collection Act ("MCDCA"), the Maryland Consumer
Protection Act ("MCPA"). the Real Estate Settlement
Procedures Act ("RBSPA"), and the Fair Debt
Collection Practices Act ("FDCPA"). Id.
¶¶ 54-86. In addition. Plaintiff requests that the
Court issue two declaratory judgments, the first stating that
Maryland's foreclosure system is inadequate to litigate
counterclaims and violates the Due Process Clause of the
Fourteenth Amendment, and the second that "no Defendant
named in this action has any right, title or interest in her
Note." Id. at 28-36. On May 4. 2016. Defendants
Capital One and Freddie Mac filed a Motion to Dismiss for
lack of subject matter jurisdiction, and for failure to state
a claim. ECF No. 1 3. On May 9. 2016. Defendant COD filed a
Motion to Dismiss reiterating the arguments made by the other
Defendants. ECF No. 16. Plaintiff filed her responses. ECF
Nos. 18 and 22. and Defendants Capitol One and Freddie Mac
filed a reply, ECF No. 20.
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) (citation omitted). Once a challenge is
made to subject matter jurisdiction, the plaintiff bears the
burden of proving that the Court has subject matter
jurisdiction. See Evans v. B.F. Perkins Co., a Div. of
Standex Int'l Corp.. 166 F.3d 642. 647 (4th Cir.
1999) (citation omitted): see also Ferdinand Darenpon v.
Children's Guild 742 F.Supp.2d 772. 777 (D, Md.
2010). However, the 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.
survive a motion to dismiss invoking Fed. R. Civ. Pro.
12(b)(6). "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face." Ashcroft v.
h/hal. 556 U.S. 662. 678 (2009) (citing Bell
Atlantic C'orp. v. Twombty, 550 U.S. 544. 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal 556 U.S. at
678. "Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id. (citing Twombly. 550
U.S. at 555) ("a plaintiffs obligation to provide the
"grounds" of his 'entitle|ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of a cause of action's elements will not
Civ. P. 12(b)(6)"s purpose "is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Presley v. City of
Charlottesville. 464 F.3d 480. 483 (4th Cir. 2006)
(citation and internal quotation marks omitted). When
deciding a motion to dismiss under Rule 12(b)(6). a court
"must accept as true all of the factual allegations
contained in the complaint." and must "draw all
reasonable inferences [from those lactsj in favor of the
plaintiff." F..I. du Pant de Nemours & Co. v.
Kolon Indus.. Inc.. 637 F.3d 435. 440 (4th Cir. 2011)
(citations and internal quotation marks omitted). 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). I 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. Consunieraffairs.com. Inc..
591 F.3d 250. 255 (4th Cir. 2009).
to Federal Rule of Kvidencc 201. a court, at any
stage of the proceedings, may "judicially notice a fact
that is not subject to reasonable dispute." provided
that the fact "can be accurately and readily determined
from sources whose accuracy cannot reasonably be
questioned." Fed.R.Evid. 201(b)(2). These facts may be
properly considered by the court without converting a motion
to dismiss into a motion for summary judgment, as long as the
facts are construed in the light most favorable to the
plaintiff. Zak v. Chelsea Therapeutics bit 7.
Ltd..780 F.3d 597. 607 (4th Cir. 2015).
Specifically, when, as here, Defendants have raised the
defense of res judicata, "a court may
judicially notice facts from a prior judicial
proceeding." Ashe v. PNC Fin. Sens. Grp.. Inc..165 F.Supp.3d 357. 360 (D. Md. 2015) (quoting Brooks v.
Arthur.626 F.3d 194. 199 n.6 (4th Cir. 2010)). The
consideration of the affirmative defense of res
judicata is appropriate at ...