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Hicks v. Ward

United States District Court, D. Maryland

October 24, 2017

PIERRE HICKS, et al., Plaintiff,
v.
CARRIE M. WARD, et al., Defendants.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge.

         This Memorandum Opinion addresses the pending Motions to Dismiss filed by Defendants Alex Cooper Auctioneers Inc. (ACAI) and Sara Tussey, ECF No. 7, and Carrie M. Ward, Howard N. Bierman, Jacob Geesing, Pratima Lele, Joshua Coleman, Richard R. Goldsmith, Jr., Ludeen McCartney-Green, Jason Kutcher, Elizabeth C. Jones, John E. Discoll, David K. McCloud, and Nicholas Derdock (collectively “Substitute Trustees”); Christina Williamson and Christopher Haresign (collectively “BWW Law”), ECF No. 10. The issues are fully briefed, and the Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons stated below, the Defendants' motions are GRANTED and the Court shall DISMISS this case with prejudice.

         I. BACKGROUND

         Due to the ambiguity of Plaintiffs' operative Complaint, this factual background is based on the Amended Complaint and supplemented by the attachments to Plaintiffs' original complaint, [1] as well as the public record, which includes cases in the Circuit Court for Montgomery County, Maryland, and this Court.[2]

         Plaintiffs' Amended Complaint centers on the foreclosure of real property located at 10406 Damascus Park Lane, Damascus, Maryland 20872 (the “Property”). See ECF Nos. 1-3, 1-4. Plaintiffs executed a Deed of Trust and Note, secured by the Property, on December 20, 2006. ECF No. 10-3. Plaintiffs do not challenge the validity of the Deed of Trust and Note.

         Following Plaintiffs' default on the Note in 2010, BWW Law group, LLC (“BWW Law”) - then known as Bierman, Geesing, Ward & Wood, LLC - was retained to foreclose on the Property. On June 8, 2010, BWW Law, acting as substitute trustees, initiated a foreclosure action against the Property in the Circuit Court for Montgomery County, Maryland in Jacob Geesing, v. Pierre Hicks, et al, Case No. 333446-V (2011). Plaintiffs removed this case to this Court, but it was remanded, see Jacob Geesing, v. Tanya Hicks, et al, No. PJM 10-1731 (D. Md. Jan. 18, 2011). The Montgomery County Circuit Court then dismissed the action without prejudice. Docket, Jacob Geesing, v. Pierre Hicks, et al, Case No. 333446-V (2011).

         On November 17, 2015, BWW Law initiated a new foreclosure action against the Property in the Circuit Court for Montgomery County, Maryland. Carrie M. Ward, et al, v. Pierre Hicks, et al, Case No. 411672-V (2016) (the “State Foreclosure Action”). Plaintiffs' challenges to the foreclosure were rejected by the Circuit Court, and a public foreclosure auction of the Property was effectuated on April 16, 2016 by Alex Cooper Auctioneers Inc. (“ACAI”). ECF No. 4 at ¶ 9.

         On June 20, 2016, Plaintiffs attempted to remove the State Foreclosure Action to this Court based on Federal Debt Consumer Protection Act (FDCPA) defensive counterclaims, but the case was remanded to Montgomery Circuit Court on August 1, 2016. BBW Law Group, LLC, et al, v. Pierre Hicks et al, No. DKC 16-2218, 2016 WL 4078019 (D. Md. Aug. 1, 2016). Soon thereafter, Plaintiffs filed a complaint in this Court before the Honorable Paul W. Grimm. See Pierre Hicks v. BWW Law Group et al, PWG-16-2859, 2016 WL 5957556 (Oct. 13, 2016). The Complaint in the prior federal action closely mirrors the Amended Complaint here. In both, Plaintiffs allege nearly identical claims against similar defendants. Id.

         On September 29, 2016, the Circuit Court for Montgomery County entered judgment in the State Foreclosure Action awarding possession of the property to Trustees. Ward v. Tanya Hicks et al, Case No. 411672V (2016). On October 3, 2016, Plaintiffs moved for injunctive relief before Judge Grimm, the claimed basis for which related to substantially similar FDCPA claims that the Plaintiffs now bring in the Amended Complaint. Id. Hicks et al, 2016 WL 5957556. On October 13, 2016, the Court denied Plaintiffs' motion because Plaintiffs could not demonstrate on the FDCPA claims likelihood of success on the merits and the requested relief would violate the Anti-Injunction Act. Id. (internal citation omitted). Plaintiffs ultimately withdrew the Complaint before Judge Grimm prior to his reaching the merits of the case. See Docket, Hicks et al, 2016 WL 5957556. Plaintiffs then noted an appeal of the State Foreclosure Action in the Maryland Court of Special Appeals, which the court dismissed on January 9, 2017 because Plaintiffs failed to brief the issues. See Hicks v. Carrie M. Ward et al, No. 1502 (2017).

         On January 30, 2017, Plaintiffs filed their Complaint with this Court alleging violations of the FDCPA as to Defendants. See ECF No. 1. Plaintiffs filed an Amended Complaint, ECF No. 4, on March 6, 2017, adding Defendants Carrie M. Ward, Howard N. Bierman, Jacob Geesing, Pratima Lele, Joshua Coleman, Richard R. Goldsmith, Jr., Ludeen McCartney-Green, Jason Kutcher, Elizabeth C. Jones, John E. Discoll, David K. McCloud, and Nicholas Derdock (collectively “Substitute Trustees”); Christina Williamson and Christopher Haresign (collectively “BWW Law”); Alex Cooper Auctioneers Inc. (“ACAI”) and its counsel, Sara Tussey; Montgomery County Circuit Court judges Mary Beth McCormick, Karla Natasha Smith, Richard E. Jordan, Keith J. Rosa, John W. Debelius III, and Robert A. Greenberg; the Clerk of the Montgomery County Court, Barbara H. Meiklejohn; and Darren M. Popkin, Montgomery County Sherriff. ECF No. 4. The Amended Complaint brings various FDCPA claims and requests monetary damages and for the Court to vacate the judgment in the State Foreclosure Action.

         On March 27, 2017, ACAI, Sara Tssey, Substitute Trustees, and BWW Law Defendants moved to dismiss the Amended Complaint in its entirety. ECF Nos. 7, 10. Plaintiffs responded on April 13, 2017, to which Substitute Trustees and BWW Law replied on April 27, 2017. On May 22, 2017, Plaintiffs filed an additional response and proposed order.

         II. DISCUSSION

         In ruling on a motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “However, conclusory statements or a ‘formulaic recitation of the elements of a cause of action will not [suffice].' ” EEOC v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. “ ‘[N]aked assertions of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.' ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         Although pro se pleadings are construed liberally to allow for the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980), the Court must not ignore a clear failure in the pleadings to allege facts setting forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” (internal citation omitted)). “A court considering a motion to dismiss can choose to ...


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