United States District Court, D. Maryland
B. ROBERT SILL, Plaintiff,
AMERICAN ADVISORS GROUP, et al., Defendants.
Richard D. Bennett, United States District Judge.
se Plaintiff B. Robert Sill (“Plaintiff” or
“Sill”) brought this thirteen count Complaint
against Defendants American Advisors Group
(“AAG”), Reverse Mortgage Solutions
(“RMS”), Walter Investment Management Company
(“Walter”), and Ditech Financial
“Defendants”), stemming from the reverse mortgage
loan he obtained from AAG. (Compl., ECF No. 2.) Currently
pending before this Court are Defendant AAG's Motion to
Dismiss (ECF No. 9) and Defendants RMS, Walter, and
Ditech's Motion to Dismiss (ECF No. 13). The parties'
submissions have been reviewed, and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the
following reasons, both Motions to Dismiss (ECF Nos. 9 and
13) are GRANTED.
Court accepts as true the facts alleged in Plaintiff's
complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388,
390 (4th Cir. 2011). On or around April 27, 2012, Plaintiff
was seeking funds to renovate a property when he saw an ad by
AAG for a reverse mortgage. (ECF No. 2 at 2.) Plaintiff
discussed obtaining a loan with AAG. (Id.) Plaintiff
then “made the decision to accept the loan based on
faulty, vague information in discussions with AAG, the
materials provided by AAG and the assurances given to him by
AAG as to the lack of risk he would be undertaking.”
(Id.) As a result, Plaintiff “has been placed
in a position in which he has seen the value of his estate
decrease and may lose his home.” (Id.)
Plaintiff claims that AAG and RMS knew or should have known
the risk to him and further that AAG will profit at
Plaintiff's expense. (Id.)
these facts, Plaintiff brought the following causes of action
against AAG, RMS, Walter and Ditech: common law fraud,
negligence, misrepresentation, Maryland Consumer Protection
Act (“MCPA”), Maryland Securities Act, Securities
Act of 1933 and Banking Act of 1933 and 1935, Securities and
Exchange Act of 1934, Bad Faith, Breach of Fiduciary Duty,
and Willful Blindness. Petitioner seeks punitive damages and
attorney's fees, additionally claiming that all officers
or directors of AAG/RMS are individually liable and the
shareholders, directors, and officers that have received
distributions from AAG/RMS are personally liable for
AAG/RMS's debt to Plaintiff.
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 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937
(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. 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);
Alley v. Yadkin County Sheriff Dept., No. 17-1249,
___ Fed App'x ___, 2017 WL 4415771 (4th Cir. Oct. 5,
2017). However, 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.
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).
outset, this Court notes that the Complaint does not assert
how any of the Defendants are related or any actions taken by
Defendants Walter or Ditech. Even construing Plaintiff's
Complaint liberally, it does not contain sufficient factual
allegations showing he is entitled to relief under any of the
above causes of action.
with Plaintiff's fraud, misrepresentation, and MCPA
claims, these claims sound in fraud and must be pled with
particularity. Marchese v. JPMorgan Chase Bank,
N.A., 917 F.Supp.2d 452, 465 (D. Md. 2013); Robinson
v. Nationstar Mortgage LLC, No. TDC-14-3667, 2015 WL
4994491, at *4 (D. Md. Aug. 19, 2015) (citing Spaulding
v. Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4th Cir.
2013)). The Complaint, however, vaguely states that there
were “facts” that AAG/RMS had knowledge of or
should have had knowledge of, that Defendants “had a
duty to disclose these types of facts, ” and that
Plaintiff justifiably relied to his detriment on their
“misrepresentations and silence.” (ECF No. 2 at
2.) Further, that “[t]he conduct of AAG/RMS describe[d]
above constitutes violations of [the MCPA], and their actions
and inactions evidence an intent for Sill to rely to his
detriment.” (Id. at 3.) At a minimum, these
allegations do not identify the subject matter of the
allegedly false statements or unfair or deceptive practices
let alone assert with particularity “the date, place
and time of active misrepresentations or the circumstances of
active concealments.” Wheeler, 492 F.Supp.2d
at 509. Even Plaintiff's Responses to the Motions to
Dismiss, which this Court does not consider as an amendment
to the Complaint, Pruitt v. Alba Law Grp., Case No.
DKC-15-0458, 2015 WL 5032014, at *5 (D. Md. Aug. 24, 2015)
(citing Bey v. Shapiro Brown & Alt, LLP, 997
F.Supp.2d 310, 318 (D. Md. 2014)), only reference past
investigations and reports by the Consumer Financial
Protection Bureau. Accordingly, Plaintiff's claims
clearly fail to meet the heightened pleading requirements.
negligence, breach of fiduciary duty, and bad faith claims
stem from AAG/RMS' alleged “fail[ure] to disclose
the true nature of what might happen in the future, despite a
duty to disclose.” (ECF No. 2 at 2.) Plaintiff's
negligence and breach of fiduciary duty claims fail against
Defendant AAG because AAG did not owe a duty of care to
Plaintiff. Rather, the relationship between a mortgage
servicer and a borrower is contractual. See Bowers v.
Bank of America, N.A., 905 F.Supp.2d 697 (D. Md. 2012)
(dismissing the plaintiff's breach of duty, care and
trust claim against his mortgage servicer because
“‘it is well established that the relationship of
a bank to its customer in a loan transaction is ordinarily a
contractual relationship between debtor and creditor and is
not fiduciary in nature'” (quoting Kuechler v.
People's Bank, 602 F.Supp.2d 625, 633 (D. Md.
2009))). As to Defendants Ditech and Walter, the Complaint
fails to allege any actions taken by either party. Finally as
to Defendant RMS, Plaintiff fails to indicate how RMS was
involved in the buying and selling of the reverse mortgage
loan, when the misrepresentations were allegedly made.
Additionally, as an assignee, RMS is not liable for the fraud
of the assignor. Lupo v. JPMorgan Chase Bank, N.A.,
No. DKC-14-0465, 2015 WL 5714641, at *10 (D. Md. Sept. 28,
2015) (explaining that absent a showing of vicarious
liability, the plaintiff could not assert liability against
the assignor of a loan arising from the acts of the
assignee). Lastly, Plaintiff's bad faith claim fails
because Maryland does not recognize an independent cause of
action for breach of the implied duty of good faith and fair
dealing. Bowers, 905 F.Supp. at 703.
remaining claims also fail as a matter of law.
Plaintiff's claims under the Maryland Securities Act,
Securities Act of 1933 and Banking Act of 1933 and 1935, and
Securities and Exchange Act of 1934 fail because they are
securities based claims that do not relate to Plaintiff's
purchase of a reverse mortgage from AAG. Plaintiff's
claim of “willful blindness” also fails, as it is
a doctrine used in criminal cases to prove ...