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Mickerson v. American Brokers Conduit

United States District Court, D. Maryland

February 28, 2018




         Plaintiff 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 GRANTED.


         On July 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.

         Mickerson 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”).[1] 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.

         Meanwhile, in September 2008, Mickerson filed for bankruptcy under Chapter 7 of the Bankruptcy Code.[2] 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).

         Foreclosure 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.

         On 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 damages.

         Defendants 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.


         The 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 her claims.

         I. Legal Standards

         A party 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).

         To 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).

         Because 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. 2008).

         II. ABC and Wells Fargo

         Counts 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 ...

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