United States District Court, D. Maryland
GWEN D. MICKERSON, Plaintiff,
AMERICAN BROKERS CONDUIT, EMC MORTGAGE CORPORATION, STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., CITIBANK, N.A., WELLS FARGO BANK, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEM and DOES 1 THROUGH 100, Defendants.
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.
Gwen D. Mickerson, who is self-represented, has filed suit
asserting actions arising out of an attempted foreclosure on
her residence. She alleges multiple state common law claims
and a violation of the Maryland Mortgage Fraud Protection Act
(“MMFPA”), Md. Code Ann., Real Prop. §§
7-401 to 7-409 (2015), against Defendants Americans Brokers
Conduit (“ABC”); EMC Mortgage Corporation
(“EMC”); Structured Asset Mortgage Investments
II, Inc. (“SAMI”); Citibank, N.A.; Wells Fargo
Bank, N.A. (“Wells Fargo”); the Mortgage
Electronic Registration System (“MERS”); and Does
1 through 100. Pending before the Court is a Motion to
Dismiss, joined by all Defendants except ABC and EMC, neither
of which has entered an appearance in the case. No hearing is
necessary to resolve this Motion. See D. Md. Local
R. 105.6. For the reasons set forth below, the Motion is
13, 2007, Mickerson received a $560, 000 loan from Defendant
ABC by signing a promissory note (“the Note”).
The Note was secured by a Deed of Trust (“the
Deed”) on her residence on Tree Leaf Court in Upper
Marlboro, Maryland (“the Property”). The Deed
names Defendant MERS as the beneficiary and as the nominee
for ABC. The Deed also states that the “Note or a
partial interest in the Note (together with this Security
Instrument) can be sold one or more times without prior
notice to [Mickerson].” Deed ¶ 20, Compl. Ex. B at
12, ECF No. 2-3.
alleges that “after the signing of the Note and Deed of
Trust, the Note was sold, transferred, assigned and
securitized” into a mortgage-based security, the
Structured Asset Mortgage Investments II Trust 2007-AR7
(“the Trust”). Defendant SAMI is the depositor for the
Trust, and Defendant EMC acts as the Trust's sponsor and
as the servicer for the mortgages in the Trust. According to
Mickerson, the Trust closed on September 18, 2007, after
which it could no longer accept new mortgages. Mickerson
alleges that Defendants do not have any documentation
memorializing the sale of the Note to the Trust. Over five
years later, on October 12, 2012, MERS, as nominee for ABC,
executed an Assignment of the Deed (“the
Assignment”) to Defendant Citibank, which was at that
time the trustee for the Trust. The Assignment was recorded
with the Prince George's County Land Records Department.
in September 2008, Mickerson filed for bankruptcy under
Chapter 7 of the Bankruptcy Code. Voluntary Pet'n, In
re Hamilton, No. 08-22212 (Bankr. D. Md. 2009) (Dkt. No.
1). Citibank promptly asked the bankruptcy court to lift the
automatic stay so that it could institute foreclosure
proceedings. Mot. for Relief from Stay, In re
Hamilton, No. 08-22212 (Bankr. D. Md. 2009) (Dkt. No.
11). The bankruptcy court granted Citibank's motion on
October 23, 2008. Order, In re Hamilton, No.
08-22212 (Bankr. D. Md. 2009) (Dkt. No. 14). The bankruptcy
court issued an order of discharge on January 6, 2009. Order
Discharging Debtor, In re Hamilton, No. 08-22212
(Bankr. D. Md. 2009) (Dkt. No. 18).
actions were instituted against the Property in March 2009,
December 2009, and November 2015. For reasons not explained
in the record, each of those actions was dismissed without a
foreclosure sale. The November 2015 foreclosure action was
dismissed on November 10, 2016. Mickerson appears to still
live at the Property.
March 3, 2017, Mickerson filed this lawsuit in the Circuit
Court for Prince George's County, Maryland, along with a
Motion for Temporary Restraining Order, Preliminary
Injunction, and Declaratory Relief. The case was timely
removed to this Court, which declined to issue preliminary
relief because Mickerson failed to show a likelihood of
success on the merits of her claims. Mickerson then filed an
Amended Complaint, which alleges ten counts: (1) lack of
standing to foreclose; (2) fraud in the concealment; (3) a
violation of the MMFPA; (4) unconscionable contract; (5)
breach of contract; (6) breach of fiduciary duty; (7) quiet
title; (8) slander of title; (9) unjust enrichment; and (10)
declaratory relief. All of these claims emerge from
Mickerson's argument that the Note was not properly
assigned to the Trust. She argues that this improper transfer
broke the chain of title, prevents Defendants from
foreclosing on the Property, and entitles her to a
declaratory judgment that she alone has rights to the
Property. She also argues that, by asserting their rights to
the Property and by purporting to transfer the Note to the
Trust, Defendants committed fraud that entitles her to
SAMI, Citibank, Wells Fargo, and MERS (collectively, the
“Moving Defendants”) have filed the pending
Motion to Dismiss. Defendant EMC was served on March 23, 2017
but has not filed an Answer or other responsive pleading in
this case. The record contains no proof that Defendant ABC
was ever served.
Moving Defendants seek dismissal under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). They assert that
Mickerson's causes of action must fail because she has
provided no plausible legal or factual basis to substantiate
may move for dismissal for lack of subject matter
jurisdiction under Rule 12(b)(1). The plaintiff has the
burden to show that subject matter jurisdiction exists.
Evans v. B.F. Perkins Co., Div. of Standex Int'l
Corp., 166 F.3d 642, 647 (4th Cir. 1999). When a
defendant asserts that the plaintiff has failed to allege
facts sufficient to establish subject matter jurisdiction,
the allegations in the complaint are assumed to be true under
the same standard as in a Rule 12(b)(6) motion, and
“the motion must be denied if the complaint alleges
sufficient facts to invoke subject matter
jurisdiction.” Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009).
defeat a motion to dismiss under Rule 12(b)(6), the complaint
must allege enough facts to state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A claim is plausible when the facts pleaded allow “the
Court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. Legal
conclusions or conclusory statements do not suffice.
Id. The Court must examine the complaint as a whole,
consider the factual allegations in the complaint as true,
and construe the factual allegations in the light most
favorable to the plaintiff. Albright v. Oliver, 510
U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs of
Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
Documents attached to the complaint or motion may be
considered if “they are integral to the complaint and
authentic.” Sec'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007). The court may also take judicial notice of matters of
public record, such as state court proceedings and property
records. Philips v. Pitt Cty. Mem'l Hosp., 572
F.3d 176, 180 (4th Cir. 2009).
the Court's jurisdiction here is based on diversity, the
Court relies on state law, in this case Maryland law, to
resolve the pending issues. Horace Mann Ins. Co. v. Gen.
Star Nat'l Ins. Co., 514 F.3d 327, 329 (4th Cir.
ABC and Wells Fargo
II, IV, and VI, consisting of claims for fraud in the
concealment, unconscionable contract, and breach of fiduciary
duty, are asserted against only ABC. Count V, Mickerson's
breach of contract claim, is asserted against ABC and MERS