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Johnson v. Bank of America, N.A.

United States District Court, D. Maryland

February 13, 2018

BANK OF AMERICA, N.A., Defendant.


          Paula Xinis United States District Judge.

         On April 3, 2017, pro se Plaintiff Cynthia M. Johnson filed suit, asserting common law claims for breach of contract and fraud against Defendant Bank of America, N.A. (“Bank of America”) in connection with a pending foreclosure on Johnson's home. Johnson requests full payoff of all mortgages presently attached to the home and declaratory, compensatory, and punitive relief in the amount of $20, 000, 500 from Defendant. ECF Nos. 2 & 5.

         Pending before the court are seven motions. On April 10, 2017, Bank of America filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 14. The remaining motions are responsive to a procedural irregularity that arose during the case in which the Clerk's Office of the Court misplaced Johnson's response to Bank of America's motion to dismiss, resulting in delayed docketing for almost six months. See ECF Nos. 18, 24, 25, 27, 28 & 29. As a result of the delay and Bank of America's representations regarding its not having received Johnson's response, Johnson requested that this Court impose various sanctions on Bank of America, to include striking its Reply. ECF Nos. 25 & 28. For the foregoing reasons, the motion to dismiss, ECF No. 14, is GRANTED. Plaintiff's motion at ECF No. 28 is GRANTED in part and DENIED in part, and Plaintiff's motion at ECF No. 25 is DENIED. The remaining motions, ECF Nos. 18, 24, 27, & 29, are DENIED as moot.

         I. Background

         On April 30, 1999, Plaintiff Cynthia M. Johnson (“Johnson”) and her then-husband, Reginald G. Johnson, obtained a loan for $167, 000 (the “Loan”) from Nationsbanc Mortgage Corporation, [1] and executed a Note in that amount. ECF No. 2-1 at 168-75. The loan was secured by a Deed of Trust in property located at 7414 Longbranch Drive, Hyattsville, Maryland 20784 (“Property”), and both Plaintiff and Reginald G. Johnson signed the Note and Deed of Trust. Id. Johnson alleges that around March 13, 2012, Bank of America contacted Johnson regarding a loan re-modification agreement, which Johnson signed and returned with a check for $1, 007.82. Bank of America applied those funds to Plaintiff's existing mortgage. ECF No. 2 at 1. The loan re-modification agreement, attached to Johnson's Complaint, reflects several changes that Johnson made to the document, including striking through all references to Reginald G. Johnson and excising most of paragraph three of the agreement. Paragraph three reads:

“If all or any part of the Property or any interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by the Security Instrument.”

ECF No. 2-1 at 8-10.

         Sometime thereafter, Bank of America informed Johnson that her re-modification request was denied because the agreement lacked Reginald Johnson's signature and because she had stricken through a substantive clause in the agreement. ECF No. 2 at 2. Nonetheless, over the next two years Johnson continued to send monthly checks of $1, 007.82, the amount set out in the re-modification agreement. Id. Bank of America applied those payments to her existing mortgage, and then, according to Johnson, “persistently harassed Plaintiff” through communications related to the Loan. Some of these communications requested that Johnson submit a valid loan re-modification agreement with proper signatures. Id.

         Beginning in January 2015, Bank of America started returning Johnson's monthly payments as insufficient and commenced foreclosure proceedings on the Property. Id. The parties pursued mediation unsuccessfully. Bank of America thereafter initiated a foreclosure action on the Property in the Circuit Court for Prince George's County. Id. at 2-4; see also O'Sullivan v. Johnson, No. CAEF16-25734.

         On December 12, 2016, Johnson filed a Complaint against Bank of America in the Circuit Court for Prince George's County, Maryland, alleging common law claims for breach of contract and fraud based on the bank's failure to honor the March 2012 loan re-modification and subsequent attempts to enforce the Deed of Trust. ECF No. 2. On February 15, 2017, Johnson filed an Amended Complaint, adding the registered agent for Bank of America. ECF No. 5. Bank of America then removed the action to this Court on April 3, 2017, properly asserting diversity jurisdiction, ECF No. 11, and filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on April 10, 2017, ECF No. 14.

         On September 26, 2017, having received no response from Johnson to Defendant's motion to dismiss, the Court issued a Show Cause Order as to why Johnson's Complaint should not be dismissed with prejudice pursuant to 12(b)(6). ECF No. 16. Johnson then filed a lengthy opposition to the motion to dismiss and a motion stylized as a “Request to Revoke (Vacate) Court's Order to Show Cause.” ECF Nos. 17 & 18. Johnson also provided the Court proof that she had filed her response timely on April 27, 2017, and sent Bank of America a copy of the response via first-class mail. See ECF No. 20. The Court confirmed with the Clerk that it had erroneously failed to docket Johnson's response and thereafter scheduled a recorded telephone conference with the parties. On that recorded call, counsel for Bank of America represented that while he or his secretary may have received Plaintiff's filing, counsel was previously unaware that Johnson had responded to Defendant's Motion. ECF No. 22. The Court then allowed Johnson to address in writing what, if any, relief she should be accorded in light of Bank of America's odd representation that it was not aware of Johnson's timely response. ECF No. 23. Johnson filed three motions: motions for clerk's entry of default and default judgment against Defendant, ECF Nos. 24 & 25, and a motion to strike defendant's reply to her opposition to the motion to dismiss, ECF No. 28.

         II. Standard of Review

         In ruling on a Rule 12(b)(6) 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), a court cannot ignore a clear failure 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)). See also Bell v. Bank of Am., N.A., No. RDB-13-0478, 2013 WL 6528966, at *1 (D. Md. Dec. 11, 2013) (“Although a pro se plaintiff is general[ly] given more leeway than a party represented by counsel . . . a district court is not obligated to ferret through a [c]omplaint that is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well ...

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