United States District Court, D. Maryland
Richard D. Bennett, United States District Judge
Kwame Taylor (“Plaintiff” or
“Taylor”) filed this action pro se
against Defendants M&T Bank (“M&T”) and Robert G.
Wilmers (collectively, “Defendants”) relating to
M&T's acquisition of his mortgage loan from K Bank.
Presently pending before this Court are Defendants'
Motion to Dismiss (ECF No. 6) and Plaintiff's Motion to
Postpone Proceedings (ECF No. 11). For the reasons set forth
in the parties' submissions and briefly summarized
herein, Defendants' Motion to Dismiss (ECF No. 6) is
GRANTED and Plaintiff's Motion to Postpone Proceedings
(ECF No. 11) is DENIED.
8(a)(2) of the Federal Rules of Civil Procedure requires that
a complaint contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the dismissal
of a complaint if it fails to state a claim upon which relief
can be granted. Fed.R.Civ.P. 12(b)(6). The United States
Supreme Court's opinions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009) “require that
complaints in civil actions be alleged with greater
specificity than previously was required.” While a
court must accept as true all factual allegations contained
in the complaint, legal conclusions drawn from those facts
are not afforded such deference. Iqbal, 556 U.S. at
678. Although a pro se plaintiff's pleadings are
“to be liberally construed” and are “held
to less stringent standards than formal pleadings drafted by
lawyers, ” Erickson v. Pardus, 551 U.S. 89, 94
(2007), even a pro se litigant's complaint must
be dismissed if it does not allege a “plausible claim
for relief.” Iqbal, 556 U.S. at 679.
first claim is that Defendant M&T breached the Purchase and
Assumption Agreement (P&A) by which M&T acquired most of K
Bank's assets from the Federal Deposit Insurance
Corporation (FDIC). (ECF No. 2 at ¶ 29.) Plaintiff
asserts that the P&A requires M&T to assume liability for K
Bank's fraud-for-profit scheme. (Id.) First,
Defendant argues that this claim is barred by Maryland's
statute of limitations. The statute of limitations for civil
actions in Maryland is three years from when the action
accrues. See Md. Code Ann., Cts & Jud. Proc. §
5-101. An action accrues when a plaintiff discovered, or
reasonably should have discovered, the basis for the action.
Master Fin., Inc. v. Crowder, 409 Md. 51, 61 (2009).
claims he was not “aware” of the fraud-for-profit
scheme and the P&A until 2015 and 2017. (ECF No. 10 at 2.)
However, the grounds for Petitioner's claim are actions
taken by K Bank in 2007 and 2008. (ECF No. 2.) Plaintiff
therefore had “knowledge of the legally operative facts
permitting the filing of a claim” against K Bank in
2007 and 2008. Master Finn. Inc., 409 Md. at 61.
Plaintiff's claim against M&T then accrued in 2010 when
M&T notified Plaintiff that it had taken over his loan. As
for Plaintiff's claim that the scheme “perpetuated
itself every time Defendant accepted a mortgage payment,
” this Court has previously rejected that argument.
See Siple v. First Franklin Fin. Corp., No.
RDB-14-2841, 2015 WL 6163791, at *3 (D. Md. Oct. 19, 2015),
aff'd, 653 Fed. App'x. 786 (4th Cir. 2016)
(Mem) (rejecting the argument that “under the
‘continuing transaction' doctrine,
[plaintiff's] cause of action . . . renewed with each
monthly payment” (citing Duke St. Ltd. P'ship
v. Bd. Of Cnty. Comm'rs of Calvert Cnty., 112 Md.
Ap. 37 (1996))).
Defendant M&T argues that the P&A does not authorize
Plaintiff to bring a claim as a third party. A third party
can bring suit to enforce the terms of a contract only if
‘“the contract was intended for his or her
benefit and it clearly appears that the parties intended to
recognize him or her as the primary party in interest and as
privy to the promise.'” Cr-RSC Tower I, LLC v.
RSC Tower I, LLC, 429 Md. 387, 457, 56 A.3d 170, 212
(2012) (quoting 120 West Fayette St., LLLP v. Mayor of
Baltimore, 426 Md. 14, 35, 43 A.3d 355, 368 (2012)). In
this case, the Shared Loss Agreements within the P&A, which
define the rights and responsibilities of the loans conveyed
by K Bank to M&T, specifically exclude third party
beneficiaries. (ECF No. 6-2 at 84, 144.) Therefore, even if
Plaintiff's first claim was not barred by Maryland's
statute of limitations, he has no right to enforce the terms
of the P&A.
second claim is that M&T breached his fourth loan
modification agreement, for which he was approved, pending a
Trial Period Plan (TPP). (ECF No. 2 at ¶¶ 20, 30.)
Plaintiff asserts that because he made three required trial
payments, M&T could not deny his loan modification
application. (Id. at 20.) This Court has dismissed
such breach of contract actions “when compliance with
the TPP [did] not guarantee a permanent loan
modification” and all conditions of the TPP were not
met. See White v. JPMorgan Chase Bank,
N.A., No. GLR-12-3591, 2013 WL 3071894, at *3 (D.
Md. June 17, 2013); see also Allen v. CitiMortgage,
Inc., No. CCB-10-2749, 2011 WL 3425665, at *5 (D. Md.
Aug. 4, 2011). Here, the offer letter from M&T clearly states
that “[i]n addition [to making timely payments], you
must maintain clear title to your property in order to remain
eligible for a permanent modification.” (Exhibit D, ECF
No. 9-1 at 22.) Plaintiff concedes in his Complaint that he
did not always have clear title. (ECF No. 2 at ¶ 21.)
Therefore, he failed to meet all of the TPP's conditions.
third claim is that for his seventh loan modification
agreement, M&T unjustly increased proposed monthly mortgage
payments. (ECF No. 2 at ¶¶ 26, 27, 30.) Aside from
generally citing the Fair Housing Act in his Reply to
Defendants' Motion to Dismiss, Plaintiff does not
offer-and this Court does not find-a cause of action
entitling Plaintiff to relief under these facts.
fourth claim is that M&T misrepresented Plaintiff's
property in a 2015 Broker Price Opinion (BPO) in order to
obtain a higher short-sale price. (ECF No. 2 at ¶ 32.)
The record shows, however, that a third party, “Market
to Market.com, ” conducted the evaluation. (ECF No. 9-1
at 101.) The supplement to the evaluation certifies that the
company “verified, from a disinterested source, all
information in th[e] report that was provided by parties who
had a financial interest in the sale or financing of the
subject property” and that it had “no present or
prospective interest in the property that is the subject of
th[e] report.” (Id. at 103.) Plaintiff's
allegation that M&T Bank “conveniently hir[es]
supposedly independent appraisers who only make errors or
misrepresentations that benefit their
‘customer'” is a conclusory statement
unsupported by factual allegations.
the Complaint does not mention or assert any claims against
Defendant Robert G. Wilmers. To the extent that
Plaintiff's response to Defendants' Motion to Dismiss
claims that, as the CEO of M&T Bank when it acquired K Bank,
Wilmers was grossly negligent for “fail[ing] to make
provisions for acquired loans, ” that claim fails.
IT IS HEREBY ORDERED this 25th day of September, 2017, that
Defendant's Motion to Dismiss (ECF No. 6) is GRANTED and
Plaintiff's Motion to Postpone Proceedings (ECF No. 11)
is DENIED; and it is FURTHER HEREBY ORDERED that this
Dismissal be ...