United States District Court, D. Maryland
JOHN T. BAILEY Plaintiff,
BANK OF AMERICA, et al. Defendants
Lipton Hollander United States District Judge
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.
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.
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.
November 17, 2016, Bank of America, N.A.
(“BANA”) 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. 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.
November 22, 2017, the clerk docketed correspondence from
plaintiff dated November 18, 2016. ECF 20. The handwritten
letter is difficult to decipher.
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
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
the Motion to Dismiss.
Factual Background 
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.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.
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.
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); 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.
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.
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.
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?
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.
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.
returned the requisite forms and the U.S. Marshal attempted
to serve defendants by mail at the addresses he provided. ECF
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.
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. Bailey never responded to my Order to show
cause. See Docket.
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.