United States District Court, D. Maryland
Lipton Hollander United States District Judge.
and James Strickland-Lucas, the self-represented plaintiffs,
filed suit on March 18, 2016, against Citibank, N.A.,
“DBA CWABS, Inc., Asset-Backed Certificates, Series
2007-QH2” (“Citibank”). Several exhibits
are appended to the suit. The litigation is rooted in a
foreclosure action pending in the Circuit Court for Harford
County as to plaintiffs' property. In this case,
plaintiffs allege violations of the Truth in Lending Act
(“TILA”), 15 U.S.C. §§ 1635 & 1640,
in connection with a 2007 loan that they obtained to finance
the purchase of their property. ECF 1. According to
plaintiffs, they were not provided with the requisite
disclosures during the origination of the loan, and they
properly rescinded their obligations under the loan in 2015.
23, 2016, a summons return was executed evidencing service on
defendant on June 21, 2016, via Corporation Trust, Inc. ECF
9. Because the defendant did not respond to the Complaint,
the Court entered an Order on September 6, 2016 (ECF 10),
setting a deadline for plaintiffs to move for entry of
default or show cause why such action was not appropriate. In
response, on September 12, 2016, plaintiffs filed a Motion
for Clerk's Entry of Default as to Citibank, pursuant to
Fed.R.Civ.P. 55(a). ECF 11. The Clerk entered an order of
default as to the defendant on September 14, 2016. ECF 12.
filed a motion to set aside entry of default on October 28,
2016. ECF 16; ECF 16-1. Plaintiffs opposed the motion (ECF
17) and Citibank replied. ECF 18. Pursuant to a Memorandum
(ECF 19) and Order (ECF 20) of November 29, 2016, I granted
Citibank's motion and directed Citibank to respond to the
Complaint within fourteen days.
Citibank filed a motion to dismiss (ECF 21) pursuant to
Fed.R.Civ.P. 8(a) and 12(b)(6), supported by a memorandum of
law (ECF 21-1) (collectively, “Motion”), and two
exhibits. ECF 21-2; ECF 21-3. Plaintiffs oppose the Motion
(ECF 24, “Opposition”), supported by an exhibit.
ECF 24-1. Citibank has replied. ECF 25, “Reply.”
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
March 2, 2007, plaintiffs executed a Deed of Trust to secure
payment of a promissory note payable to Quality Home Loans in
connection with a loan to plaintiffs in the amount of $161,
000.00 (the “Loan”). ECF 1 at 2; ECF 21-2 (Deed
of Trust, recorded on April 10, 2007, in the land records for
Harford County, Maryland at Liber 07296, Folio
595). The Loan was secured by the property
located on Old Stepney Road in Aberdeen, MD (the
Home Loans, the original lender, is not a party to this case.
Notably, Citibank was not involved in the origination of the
Loan. However, on August 26, 2011, four years after the Loan
transaction, the Deed of Trust was assigned to Citibank, as
Trustee for the Certificate holders of CWABS, Inc.
Asset-Backed Certificates, Series 2007-QH2, on August 26,
2011. ECF 21-3 (Assignment to Citibank, recorded on September
6, 2011, in the land records for Harford County, Maryland at
Liber 09310, Folio 364.)
August 12, 2014, a foreclosure action was initiated against
the Property in the Circuit Court for Harford County, Case
No. 12C14002475, Richard A Lash, et al. v. Jowanda
StricklandLucas, et al. (the “Foreclosure
Case”). See Maryland Judiciary Case Search
Disclaimer.jis (searching by court and case number) (last
visited May 26, 2017); see also Foreclosure Case
Docket, ECF 16-2. By Order of November 4, 2016, in the
Foreclosure Case, the Strickland-Lucas's motion to
dismiss and stay the Foreclosure Case was denied. Foreclosure
Case, Case No. 12C14002475, Doc. No. 45. Then, on December 6,
2016, the Strickland-Lucases noted an appeal to the Maryland
Court of Special Appeals. Foreclosure Case, Case No.
12C14002475, Doc. No. 48. As of this date, that appeal
March 18, 2016, approximately nine years after plaintiffs
obtained the Loan at issue in this case, plaintiffs filed
suit in this Court. They allege: “The creditor failed
to provide the plaintiffs with the appropriate form of
written notice published and adopted under [TILA] . . . and a
comparable written notice of the rights of the plaintiff
[sic]. . . .” ECF 1 at 2. Further, plaintiffs allege
that on or about October 24, 2015, they sent a “notice
to rescind” to Citibank with respect to the Deed of
Trust and Note, but Citibank failed to respond or
“re-establish” the Loan following rescission.
Id. at 3; see also ECF 1-1 (“Notice
to Rescind Deed of Trust and Note”, dated October 21,
2015). Accordingly, plaintiffs conclude that the
Deed of Trust and Note are void and unenforceable. ECF 1 at
3. Nevertheless, they complain that the “defendant
continued to act as if the note and trust deed were
enforceable and subsequently foreclosure continued upon the
plaintiff's [sic] property.” Id.
basis of these facts, plaintiffs assert that the parties to
this case “were parties to a consumer credit
transaction that existed or was consummated on or after
September 30, 1995.” ECF 1 at 2. Further, they assert
that defendant is a creditor within the meaning of 15 U.S.C.
§§ 1601 and 1635 et seq. Id. And,
plaintiffs seek $314, 200.00 in damages. Id. at 4.
Standard of Review
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). Goines v.
Valley Cmty, Servs, Bd., 822 F.3d 159, 165-66 (4th Cir.
2016); McBurney v. Cuccinelli, 616 F.3d 393, 408
(4th Cir. 2010), aff'd sub nom. McBurney v.
Young, U.S., 133 S.Ct. 1709 (2013); Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). It provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl., Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for 'all
civil actions' . . . .” (citation omitted));
see also Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011). But, a
plaintiff need not include “detailed factual
allegations” in order to satisfy Rule 8(a)(2).
Twombly, 550 U.S. at 555. Moreover, federal pleading
rules “do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” Johnson v. City of Shelby, U.S.,
135 S.Ct. 346, 346 (2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Id. at 556 (internal quotations
reviewing a Rule 12(b)(6) motion, a court “'must
accept as true all of the factual allegations contained in
the complaint'” and must “'draw all
reasonable inferences [from those facts] in favor of the
plaintiff.'” E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. Maryland Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017); Belmora
LLC v. Bayer Consumer Care AG, 819 F.3d 697, 705 (4th
Cir. 2016); Houck v. Substitute Tr. Servs., Inc.,
791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, U.S., 132 S.Ct. 1960 (2012).
general, courts do not “resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses” through a Rule 12(b)(6) motion. Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
The purpose of the rule is to ensure that defendants are
“given adequate notice of the nature of a claim”
made against them. Twombly, 550 U.S. at 555- 56
(2007). But, “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009);
see also U.S. ex rel. Oberg v. Penn. Higher Educ.
Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014).
However, because Rule 12(b)(6) “is intended [only] to
test the legal adequacy of the complaint, ”
Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the
affirmative defense 'clearly appear[ ] on the face of
the complaint.'” Goodman, 494 F.3d at
464 (quoting Forst, 4 F.3d at 250) (emphasis added
in Goodman ).
limited exceptions, a court may consider documents beyond the
complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). A court
may properly consider documents that are “explicitly
incorporated into the complaint by reference and those
attached to the complaint as exhibits....”
Goines, 822 F.3d at 166 (citations omitted); see
U.S. ex rel. Oberg, 745 F.3d at 136 (quoting Philips
v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009)); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 198 (4th Cir. 2014); Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618
(4th Cir. 1999).
may also “consider a document submitted by the movant
that was not attached to or expressly incorporated in a
complaint, so long as the document was integral to the
complaint and there is no dispute about the document's
authenticity.” Goines, 822 F.3d at 166
(citations omitted); see also Int'l
Longshoreman's Ass'n., Local 333 v. Int'l
Longshoremen's Ass'n., AFL-CIO, Fed. Appx., 2017
WL 1628979 (4th Cir. May 2, 2017) (per curiam);
Kensington Volunteer Fire Dep't. v. Montgomery
Cnty., 684 F.3d 462, 467 (4th Cir. 2012). To be
“integral, ” a document must be one “that
by its 'very existence, and not the mere information it
contains, gives rise to the legal rights
asserted.'” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis in original).
“before treating the contents of an attached or
incorporated document as true, the district court should
consider the nature of the document and why the plaintiff
attached it.” Goines, 822 F.3d at 167 (citing
N. Ind. Gun & Outdoor Shows, Inc. v. City of S.
Bend, 163 F.3d 449, 455 (7th Cir. 1998)). “When
the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows
that the plaintiff has adopted the contents of the document,
crediting the document over conflicting allegations in the
complaint is proper.” Goines, 822 F.3d at 167.
Conversely, “where the plaintiff attaches or
incorporates a document for purposes other than the
truthfulness of the document, it is inappropriate to treat
the contents of that document as true.” Id.
exhibits plaintiffs attached to their Complaint relate to
when they gave notice of rescission to Citibank. ECF 1-1 to
ECF 1-3. Under the principles ...