United States District Court, D. Maryland, Southern Division
DAWUD J. BEST, Plaintiff,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al. Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Unauthorized Practice of Law
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.
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.
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.
Lack of Subject-Matter Jurisdiction
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. 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).
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.
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 ...