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Amenu-El v. Select Portfolio Services

United States District Court, D. Maryland

October 4, 2017




         Plaintiff Rhonda Amenu-El (“Plaintiff”) brought this four count Complaint against Defendants Select Portfolio Servicing (“SPS”) and U.S. Bank, N.A.[1] (collectively, “Defendants”) alleging violations of the Maryland Consumer Protection Act (“MCPA”), Md. Code. Ann., Com. Law § 13-101, et seq. (Count I), the Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14-201 (Count I), the Maryland Mortgage Fraud Protection Act (“MMFPA”), Md. Code Ann., Real Prop. §§ 7-401, et seq. (Count II), negligence (Count III), and the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.A § 2605, 12 C.F.R. § 1024.35 (Count IV). Currently pending before this Court is Defendants' Motion to Dismiss (ECF No. 7.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion to Dismiss (ECF No. 7) is GRANTED.


         This Court accepts as true the facts alleged in Plaintiff's complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). In 1994, with mortgage financing, Plaintiff purchased property in Catonsville, Maryland. (Compl., ECF No. 2 at ¶¶ 6-10.) In 2006, as a result of financial hardship, Plaintiff refinanced her loan through Household Finance Company (HFC). (Id. ¶¶ 11, 17.) The refinancing resulted in two mortgages, which Plaintiff again refinanced through HFC in 2013. (Id. at ¶¶ 13, 16.) In 2016, the smaller mortgage was discharged in bankruptcy and the larger mortgage was assigned to U.S. Bank N.A., with Select Portfolio Servicing (“SPS”) as its mortgage servicer. (Id. at ¶¶ 13, 14.)

         After experiencing additional financial hardship, Plaintiff sought a third loan modification.[2] (Id. at ¶ 17.) SPS, the current servicer of her loan, denied her request. (Id. at ¶ 18.) Plaintiff allegedly requested to modify her loan multiple times, but was told that SPS does not “do modifications, ” does not “offer HAMP modifications, ” or “couldn't address her modification requests because she had filed bankruptcy.” (Id.) SPS also failed to respond to Plaintiff's offer to reaffirm her account if that would lead to modification. (Id. at ¶ 19.) In addition, Plaintiff alleges both that she filed a Qualified Written Request (QWR) that went unanswered, Id. at ¶ 20, and that SPS inadequately responded to a QWR. (Id. at ¶ 24.)

         Plaintiff claims that her situation is another example of when “through no fault of [her] own, homeowners are wrongfully threatened by knowing and willful mortgage servicing practices which misrepresent, misstate, and/or omit the true facts concerning the actual status of a consumer's loan.” (Id. at ¶ 22.) These mortgage serving practices include:

(i) SPS's utter failure to timely credit Plaintiff's on-time and complete mortgage payments since they began servicing Plaintiff's mortgage; (ii) SPS's representations to Plaintiff that they do not engage in modifications of mortgages for their clients; (iii) SPS's assertion to Plaintiff that her discharge in bankruptcy makes her ineligible to have her loan modified; (iv) SPS's knowingly false and negative credit reporting of Plaintiff's loan as being in default status to various credit reporting agencies when the loan was actually current …; (v) SPS's improper demand for more monies …; (vi) SPS's inadequate responses to Plaintiff's inquiries (QWR dated 2/6/2017) required under federal and state law with the intent that Plaintiff would rely upon its false and misleading responses; and (vii) SPS's improper threats of foreclosure, with the intent that Plaintiff would pay it more sums not contractually due, when Plaintiff was and has been at all-time relevant in this Complaint current on her mortgage obligation.

(Id. at ¶ 24.) Had SPS “performed the basic services required of a license Maryland mortgage servicer in a timely manner, ” Plaintiff claims she would not have suffered damages and losses. (Id. at ¶ 25.) Those damages and losses include false and incorrect credit reporting, improper assessment of late fees and other related charges, costs incurred to make bona fide inquiries to SPS, and significant emotional damages. (Id. at ¶ 26.) Plaintiff brought the instant suit in the Circuit Court of Maryland for Baltimore County. Subsequently, Defendants removed this action before this Court based on federal question jurisdiction pursuant to §§ 28 U.S.C. 1332, 1441, and 1446. (ECF No. 5.)


         Rule 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.

         Rule 9(b) of the Federal Rules of Civil Procedure requires that “the circumstances constituting fraud be stated with particularity.” Fed.R.Civ.P. 9(b). The rule “does not require the elucidation of every detail of the alleged fraud, but does require more than a bare assertion that such a cause of action exists.” Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1074 (D. Md. 1991). To satisfy the rule, a plaintiff must “identify with some precision the date, place and time of active misrepresentations or the circumstances of active concealments.” Johnson v. Wheeler, 492 F.Supp.2d 492, 509 (D. Md. 2007). A court “should hesitate to dismiss a complaint under Rule 9(b) if [it] is satisfied (1) that the defendant has been made aware of the particular circumstances for which [it] will have to prepare a defense at trial, and (2) that [the] plaintiff has substantial prediscovery evidence of those facts.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).


         As a preliminary matter, part of the factual basis for Plaintiff's Complaint stems from SPS's denial of her third loan modification, which Plaintiff indicates was a request under the Home Affordable Modification Program (HAMP). (ECF No. 2 at ¶ 18.) In their Motion to Dismiss, Defendants correctly note that there is no right to a HAMP modification. Legore v. OneWest Bank, FSB, 898 F.Supp.2d 912, 917 (D. Md. 2012); Gibbs v. Bank of America, N.A., No. GLH-16-2855, 2017 WL 1214408, at *9 (D. Md. Mar. 31, 2017) (citing Gibson v. Nationstar Mortg., LLC, No. GJH-14-03913, 2015 WL 302889, at *2-3 (D. Md. Jan. 21, 2015)). As the United States District Court for the Eastern District of Virginia has explained, courts “universally reject” claims of entitlement to permanent loan modifications under HAMP “on the ground that HAMP does not create a private cause of action for borrowers against servicers and lenders.” Bourdelais v. JPMorgan Chase, No. 3:10-CV670-HEH, 2011 WL 1306311, at *3 (E.D. Va. Apr. 1, 2011); see also Ramos v. Bank of America, No. DKC-11-3022, 2012 WL 1999867, at *3 (D. Md. June 4, 2012) (“‘It is true that Congress did not create a private right of action to enforce the HAMP guidelines.'” (quoting Allen v. CitiMortgage, Inc., No. CCB-10-2740, 2011 WL 3425665, at *8 (D. Md. Aug. 4, 2011))).

         I. Maryland Consumer Protection ...

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