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Best v. Federal National Mortgage Association

United States District Court, D. Maryland, Southern Division

December 21, 2017

DAWUD J. BEST, Plaintiff,



         Pro Se Plaintiff Dawud J. Best brings this action against Defendants Federal National Mortgage Association ("Fannie Mae"), Capital One, Nat'l Assoc. ("Capital One"), and Brock & Scott, PLLC ("B&S" and, collectively, "Defendants") related to Defendants' attempt to collect a debt and foreclose upon Plaintiffs property in Cheverly, Maryland. A number of dispositive motions are currently pending before the Court: Defendants' Motion to Dismiss, ECF No. 14; Plaintiffs Motion to File First Amended Complaint Without Leave, ECF No. 16; Defendants' Motion to Strike and Stay, ECF No. 18; Plaintiffs Cross Motion for Summary Judgment, ECF No. 19; and Plaintiffs Motion for Leave to File Second Amended Complaint, ECF No. 24. A motions hearing was held on December 4, 2017. Loc. R. 105.6 (D. Md. 2016). For the following reasons, Plaintiffs Motion for Leave to File Second Amended Complaint is granted, Defendants' Motion to Strike and Stay is denied, and the remaining motions are denied as moot.

         I. BACKGROUND[1]

         Plaintiff filed his initial Complaint on February 2, 2017, bringing claims under the Fair Debt Collection Practices Act (Count One), Maryland Consumer Debt Collection and Maryland Consumer Protection Acts (Count Two), and the Truth in Lending Act (Count Three) on behalf of himself and a class. ECF No. 1. Defendants moved to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 14. On May 10, 2017, Plaintiff filed a Motion to File First Amended Complaint Without Leave in accordance with Rule 15(a)(1)(B) whereby he removed his class action and added claims under the Fair Credit Reporting Act (Count Four), Equal Credit Opportunity Act (Count Five), and Real Estate Settlement Procedures Act (Count Six). ECF No. 16-2. Five days later, Plaintiff filed a Corrected First Amended Complaint whereby he revised the allegations made in his First Amended Complaint and increased his demand for compensatory and punitive damages. ECF No. 17-1.

         Defendants move to strike Plaintiffs Corrected First Amended Complaint and move to stay the action until the Court resolves concerns that non-attorney Thomas Alston drafted Plaintiffs filings with the Court and engaged in the unauthorized practice of law. ECF No. 18. Plaintiff responded to this motion and filed a Cross Motion for Summary Judgment. ECF No. 19. Finally, on October 13, 2017, Plaintiff filed a motion for leave to file a Second Amended Complaint seeking to add facts describing his related Chapter 7 bankruptcy action. ECF No. 24; see also In re Dawud J. Best, Case No. 16-25664 (Bankr. D. Md.), filed Nov. 29, 2016.


         A. Unauthorized Practice of Law

         Defendants contend that Thomas Alston, a non-attorney, was the true author of Plaintiff s filings and point to a number of facts highly suggestive of Alston's involvement in this matter. ECF No. 18-2 at 5. For example, Plaintiff was previously a pro se plaintiff in a lawsuit filed by Kimberly Alston, Thomas Alston's sister, Bey, et al. v. Midland Credit Management, Inc., et al, 8:15-cv-1329-GJH (D. Md.), and his Complaint herein has many of the hallmarks of prior complaints filed by Alston, including the threat of a class action brought by a pro se plaintiff, which is impermissible. See ECF No. 18-2 at 6 (citing Alston v. TransUnion, No. GJH-16-491, 2017 U.S. Dist. LEXIS 17031, at *2 (D. Md. Feb. 1, 2017)). Defendants also point to a residential contract of sale that Plaintiff submitted to Capital One, purported to be an offer from TAJ Properties LLC to purchase Plaintiffs property as a short sale. See ECF No. 26 at 7. Thomas Alston signed the contract on behalf of TAJ Properties. ECF No. 26-1. According to Defendants, the residential contract of sale is further proof of Thomas Alston's involvement in this matter and indicates that Plaintiffs claims relating to any obligations owed to him by Capital One in considering this sale for purposes of loss mitigation are brought in bad faith. ECF No. 26 at 6.

         The Court is mindful of the multitude of lawsuits filed in this District by Thomas Alston, members of his family, and other pro se plaintiffs that have raised concerns about Thomas Alston's alleged unauthorized practice of law. See, e.g., Letren v. Trans Union, LLC, No. PX 15-3361, 2017 U.S. Dist. LEXIS 150056, at *17 n.7 (D. Md. Sept. 15, 2017); Alston v. Orion Portfolio Servs., LLC, No. PJM 16-3697, 2017 U.S. Dist. LEXIS 28767 (D. Md. Mar. 1, 2017). The Court granted Defendants' request for hearing for precisely this reason.

         Plaintiff maintains that while he did review a number of publicly-available complaints filed by Thomas Alston before judges in this District, Plaintiff affirmatively stated to the Court that Thomas Alston neither advised nor assisted him at any time. Plaintiff further maintains that the residential sale contract signed by Thomas Alston was the product of an arms-length transaction. ECF No. 29 at 5. Based on the facts presented to the Court at this time, the Court, while concerned, cannot conclude that Thomas Alston engaged in the unauthorized practice of law, and Defendants' motion to strike and stay is therefore denied.[2]

         B. Lack of Subject-Matter Jurisdiction

         Defendants argue that Plaintiff lacks standing to bring this action because the claims are part of Plaintiff s bankruptcy estate and can only be raised by the bankruptcy trustee. ECF No. 14-2 at 8.[3] Under federal law, a bankruptcy estate is generally comprised of "all legal or equitable interests of the debtor in property as of the commencement of the case, " including pre-petition causes of action, i.e., those that accrued before debtors filing for bankruptcy. See 11 U.S.C. § 541(a)(1); Nat'l American Ins. Co. v. Ruppert Landscaping Co., 187 F.3d 439, 441 (4th Cir. 1999). However, a plaintiff regains standing to bring pre-petition claims if those claims are abandoned or exempt from the estate. Nat'l American Ins. Co., 187 F.3d at 441; see also Musari v. Loans, No. PWG-15-3028, 2016 WL 4124227, at *4 (D. Md. Aug. 3, 2016) (citing Schlotzhauer v. Morton, 119 A.3d 121, 123 (Md. Ct. Spec. App. 2015) (only bankruptcy trustee may bring claims within estate unless (i) "the trustee abandons the [claims]" or (ii) "the bankruptcy court declares them to be exempt from creditor claims.")). Such claims are abandoned if they are listed on debtor's schedule of property and have not been administered when the bankruptcy case closes. See 11 U.S.C. § 554(c); see also Ahteshamuddin v. Residential Credit Solutions, No. WMN-11-854, 2011 U.S. Dist. LEXIS 103578 (D. Md. Sept. 14, 2011) (dismissing foreclosure challenge for lack of subject matter jurisdiction because plaintiff lacked standing to bring a claim that was not scheduled during a Chapter 7 bankruptcy and was never abandoned by the trustee).

         In listing these claims on the debtor's schedule of property, a debtor must "do enough itemizing to enable the trustee to determine whether to investigate" the claims and pursue them on behalf of the estate. See Nicholas v. Green Tree Servicing, No. TDC-15-1297, 2016 U.S. Dist. LEXIS 39162, at *8 (D. Md. Mar. 25, 2016) (citing Donarumo v. Furlong, 660 F.3d 81, 87 (1st Cir. 2011)). Defendants argue that Plaintiffs claims were not properly abandoned because they accrued prior to filing for bankruptcy and were not scheduled before Plaintiffs bankruptcy was discharged. ECF No. 14-2 at 9-10. However, Plaintiff moved to re-open his bankruptcy action after filing his Complaint in this Court, see Bankruptcy Case ECF No. 63, and the Bankruptcy Court granted Plaintiffs motion "for the limited purpose of permitting Debtor(s) to ADD PERSONAL PROPERTY AND PRE-PETITION CREDITORS." See Bankruptcy Case ECF No. 64. Thereafter, Plaintiff filed amended schedules disclosing, as an exempt asset, claims in the amount of $340, 000 for "FDCPA, MDCA, MCPA & TILA violations." See Bankruptcy Case ECF No. 66 at 10, 14.

         Defendants do not suggest that Plaintiffs disclosure of his pre-petition claims lacked the requisite detail necessary to enable the bankruptcy trustee to bring the claims on behalf of the estate if it chose to do so. See Bankruptcy Case ECF No. 60 (U.S. Trustee acknowledging Plaintiffs claims as described in the amended schedule and requesting the bankruptcy court to reappoint trustee to "review and investigate the Claim and Debtor's claimed exemptions; determine the estate's interest; and, take necessary steps to administer property"). Nor do Defendants argue that Plaintiff may not re-open his bankruptcy action to amend his schedule of property for the express purpose of retaining standing to bring these pre-petition claims on his own. Cf. Musari, 2016 WL 4124227, at *8 (dismissing pre-petition claims subject to plaintiff being "permitted to file a motion in bankruptcy court to reopen her bankruptcy case and amend her schedule of exemptions"). Therefore, because the amended schedule included the pre-petition claims, and the bankruptcy case was closed without any objection or action by the trustee, the claims were both exempt and ...

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