United States District Court, D. Maryland
CYNTHIA M. JOHNSON, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
MEMORANDUM OPINION AND ORDER
Xinis United States District Judge.
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.
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.
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,
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.
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.
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.
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.
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.
Standard of Review
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).
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 ...