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Bailey v. Bank of America

United States District Court, D. Maryland

April 7, 2017

JOHN T. BAILEY Plaintiff,
v.
BANK OF AMERICA, et al. Defendants

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         The self-represented plaintiff, John T. Bailey, filed suit against Bank of America (“BOA”) and Seterus, Inc. (“Seterus”), a specialty loan servicing company. ECF 1. Bailey subsequently supplemented his Complaint. See ECF 3; ECF 4; ECF 6.

         The precise nature of plaintiff's claim is unclear. As best as can be discerned, plaintiff applied for a home equity loan or second mortgage (possibly from Seterus) with respect to his home “of 48 years.” ECF 3 at 3. He was allegedly promised review and resolution within three weeks. Id. at 1. Instead, the loan took eight weeks to process and, in the end, plaintiff was denied the credit for which he had applied. ECF 3 at 6. As a result, plaintiff asserts that he lost a $1, 500 deposit on a Caribbean cruise (ECF 3 at 1; ECF 4 at 2; ECF 6 at 1); is behind on several bills, resulting in calls from debt collection services (ECF 3 at 5-6); and his home may fall into foreclosure. ECF 3 at 3-4; ECF 6 at 1-2.

         The case was designated as a foreclosure action. But, given the liberal construction afforded to submissions of a pro se litigant, the case may pertain to alleged civil rights violations, because plaintiff describes himself as “a black, elderly man . . . .” ECF 3 at 1. In addition, plaintiff may be seeking to allege unfair debt collection practices and/or claims of improper banking practices.

         On November 17, 2016, Bank of America, N.A. (“BANA”)[1] filed a motion to dismiss (ECF 18), pursuant to Fed.R.Civ.P. 8(a) and Fed.R.Civ.P. 12(b)(6), supported by a memorandum of law (ECF 18-1) (collectively, “Motion to Dismiss, ” or “Motion”), and two exhibits. ECF 18-2; ECF 18-3.[2] A Rule 12/56 letter was mailed to Bailey on the same date (ECF 19), advising him of the filing of the dispositive motion and that failure to timely respond may result in the entry of judgment against him or dismissal of the case. The letter also notified Bailey of his right to file a response within seventeen days. Id.

         On November 22, 2017, the clerk docketed correspondence from plaintiff dated November 18, 2016. ECF 20. The handwritten letter is difficult to decipher.

         According to the docket, Seterus has never been served with the suit. See Docket. On October 13, 2016, the Court wrote to Mr. Bailey, advising him of his obligations under Fed.R.Civ.P. 4(m) and informing him of the identity of the resident agent for Seterus. ECF 12. Because Seterus has yet to be served, I shall dismiss the Complaint as to Seterus, without prejudice, pursuant to Fed.R.Civ.P. 4(m) and Local Rule 103.8.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion to Dismiss.

         I. Factual Background [3]

         As noted, plaintiff applied for a home equity loan with BOA, possibly through Seterus. ECF 3 at 1; ECF 6 at 1. The loan took eight weeks to process, instead of the three weeks that plaintiff claims he was promised. And, in the end, plaintiff was denied the credit for which he had applied. ECF 3 at 6; ECF 6 at 1. Plaintiff attributes the delay to his primary mortgagor, BOA, based on the lengthy period BOA took to report to Seterus the amount of his monthly homeowners' insurance and a BOA error listing his “highest creditor” for a 2014 Chevy Malibu.[4]ECF 3 at 2; see also Id. at 6-7. As a result, Bailey allegedly lost a $1, 500 deposit on a Caribbean cruise (id. at 1), and is behind on several bills, resulting in calls from debt collection services. Id. at 5-6.

         In addition, BOA allegedly changed the date on which plaintiff's mortgage payment is deducted from his bank account, from the third to the first of each month. Id. at 7. Because plaintiff's sole income comes from Social Security payments made on the third of each month, plaintiff was charged “hundreds of dollars in overdraft fees.” Id. at 6-7. It also appears that plaintiff is behind in his primary mortgage payments due and owing to BOA, and his home may fall into foreclosure. Id. at 3-4; ECF 6 at 1-2.

         BOA maintains that it “is aware of only one loan on the property at issue. Specifically, on September 22, 2005, Plaintiff and his now deceased wife, Louise C. Bailey, obtained a loan in favor of [BOA] in the amount of $56, 295.00…and executed a Deed of Trust securing the Loan with the property located at 2509 Keyworth Ave., Baltimore, MD 21215…The Deed of Trust was assigned to the Federal National Mortgage Association (‘Fannie Mae') on or about April 15, 2016.[ ]” ECF 18-1 at 2-3; see also ECF 18-2 (Deed of Trust, recorded on October 14, 2005 in the land records for Baltimore City, Maryland at Book 6832, Page 684);[5] ECF 18-3 (Assignment to Fannie Mae, which was recorded on April 25, 2016, in the land records for Baltimore City, Maryland at Book 18060, Page 453). According to BOA, “[n]o foreclosure case has been filed or is pending related to this Property or this Loan.[]” ECF 318-1 at 3.

         II. Procedural Background

         On June 15, 2016, plaintiff filed the Complaint, which consisted of a one-page Fed.R.Civ.P. 11 certification. ECF 1. The Clerk advised Bailey by telephone that he must send a completed complaint. See Docket. Then, on June 16, 2016, plaintiff filed a supplement to the Complaint (ECF 3, the “First Supplement”), which consisted of the following: 1) a letter dated September 29, 2015, from Bailey to BOA; 2) a letter dated October 23, 2015, from Bailey to the claims department of the “Mid-Atlantic Program Service Center”; 2) a letter dated November 3, 2015, from Bailey to “Creditor”; and 4) a letter dated December 4, 2015, from Bailey to BOA. ECF 3.

         The Clerk informed Bailey on June 16, 2016, that the First Supplement (ECF 3) was not a complaint. See Docket. Plaintiff filed his second supplement on June 21, 2016 (ECF 4, the “Second Supplement”), which appears to be a motion. It is unclear, however, what Bailey is requesting from the Court. Id. The Second Supplement states that Bailey seeks a “just settlement” of this case. Id. at 2. It includes a letter to Bailey dated August 25, 2015, from the National Museum of African American History and Culture, asking Bailey to accept an invitation to become a Charter Member of the Museum by making a donation. Id. at 3. Further, the Second Supplement includes a certificate from WJZ-13, a television station in Baltimore, stating that WJZ-13 “salutes” Bailey as a “Hometown Hero.” Id. at 4.

         By Order of June 22, 2016 (ECF 5), I granted Bailey's motion to proceed in forma pauperis (ECF 2) and asked Bailey to supplement and clarify his Complaint. In particular, he was directed to supplement the Complaint by answering the following questions, id. at 2:

1. Whether he has a primary mortgage on his property, and if so, with whom;
2. Whether he is behind in that mortgage, whether the mortgagor has filed a foreclosure action against him, and if so, the status of those proceedings;
3. Whether he has an equity mortgage or second mortgage on his property and if so, with whom; whether he is behind in that mortgage; and whether that mortgagor has filed a foreclosure action against him; and
4. What role does Seterus play in this case, i.e., what has that company done to cause him harm?

         In response to the Order, plaintiff filed his third supplement on July 5, 2016 (ECF 6, the “Third Supplement”), supported by an exhibit (ECF 6-1), in which he alleges that the mortgage at issue is a second equity mortgage and that BOA is the entity that “employed” Seterus to review the mortgage application. ECF 6 at 1. However, plaintiff failed to “write out answers to each” of the questions set forth in ECF 5, as directed in the Order. Id. at 2. The exhibits attached to the Third Supplement do not contain information relevant to the suit and consist, in part, of letters written to Bailey by politicians, including one written by former Vice President Al Gore, thanking Bailey for sending a CD to him. See ECF 6-1 at 5.

         By Order of July 11, 2016 (ECF 7), I allowed the suit to proceed but said, id. at 1: “Despite supplementation of the complaint, the precise nature of plaintiff's claims is unclear.” I noted, id. at 2: “Plaintiff's case has been instituted as a foreclosure proceeding. Despite this designation, given liberal construction, the case may also contain claims of unfair debt collection practices and/or claims of improper banking practices.” In order for the United States Marshal to effect service of process on defendants, I directed plaintiff to complete U.S. Marshal service of process forms for each defendant. Id. at 3.

         Bailey returned the requisite forms and the U.S. Marshal attempted to serve defendants by mail at the addresses he provided. ECF 8.

         On August 25, 2016, the Clerk docketed correspondence dated August 22, 2016 (ECF 10), which appears to be a letter from Bailey to then Baltimore City Mayor Stephanie Rawlings Blake. In the letter, Bailey complains about an account he opened up for his thirteen grandchildren and a payment that was “left in limbo”. Id. at 1. He then asks then Mayor to provide a payment plan for his City and State taxes, and to contact Al Gore to obtain a copy of a CD that Bailey provided to Al Gore. Id. at 2.

         On August 12, 2016, a summons return was executed, evidencing service on BOA on August 8, 2016. ECF 9. On September 29, 2016, the Clerk docketed a summons return as unexecuted with respect to Seterus. See ECF 11. Because it did not appear that service on Seterus was obtained at the address provided by Bailey, by Order of October 13, 2016 (ECF 12), I directed Bailey to provide another U.S. Marshal service of process form for Seterus, due by October 24, 2016. Id. at 2. I also provided Bailey with the address for the resident agent for Seterus. Id. Alternatively, I directed Bailey to “show cause as to why the claims against Seterus should not be dismissed, without prejudice, under Fed.R.Civ.P. 4(m) and Local Rule 103.8 for failure to effect service of process.” Id. at 2.[6] Bailey never responded to my Order to show cause. See Docket.

         By Order of November 14, 2016 (ECF 17), I reminded Bailey that “Seterus has never been served with the suit, according to the Docket.” In handwritten correspondence dated November 18, 2016 (ECF 20), Bailey appears to relate that his mortgage counselor, Stephanie Wilson, quit working on his loan application after he attempted to serve Seterus with the Complaint. Id. Bailey provided no explanation for his failure to serve Seterus.

         III. ...


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