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Green v. Rosenberg & Associates, LLC

United States District Court, D. Maryland

March 7, 2018

DARYL GREEN, Plaintiff,
ROSENBERG & ASSOCIATES, LLC, et al., Defendants.



         Pro Se Plaintiff Daryl Green has sued Mark D. Meyer, John A. Ansell, III, Kenneth Savitz, Caroline Fields, Jennifer Rochino, and the law firm that employs or employed them, Rosenberg & Associates (collectively the “Rosenberg Defendants”), as well as Wilmington Savings Fund Society, FSB, as Trustee for Primestar-H Fund I Trust (“Wilmington”), Statebridge Company, LLC (“Statebridge”), PROF-2014-S2 Legal Title Trust II, by U.S. Bank National Association as Legal Title Trustee (“U.S. Bank”), and Fay Servicing, LLC (“Fay Servicing”). He alleges violations of several consumer protection statutes under both federal and state law relating to a foreclosure proceeding in the Circuit Court for Prince George's County initiated against his residence at 15416 Cedar Drive, located in Accokeek, Maryland (the “Property”).[1]

         Several motions are pending before the Court. Each Defendant has filed a Motion to Dismiss the case. ECF Nos. 16, 20, 24, 46. In opposition, Green has filed a Motion for Summary Judgment and Request for Oral Argument. ECF No. 35. Defendants Fay Servicing and U.S. Bank have filed a Motion to Strike Plaintiff's Motion for Summary Judgment. ECF No. 38. Defendants Statebridge and Wilmington have filed a Motion to Strike Plaintiff's Affidavit. ECF No. 56.

         For the reasons that follow, the Court GRANTS all the pending Motions to Dismiss, ECF Nos. 16, 20, 24, 46. Green's Motion for Summary Judgment and Request for Oral Argument is DENIED. ECF No. 35. All other motions are MOOT.


         The Rosenberg Defendants as Substitute Trustees brought a foreclosure proceeding against the Property in the Circuit Court for Prince George's County in June 2015. Nearly two years after the initiation of the foreclosure action, on March 17, 2017, Green filed the present suit in federal court. ECF No. 1. He alleges that he owns the Property in fee simple and is in possession of a mortgage note “marked canceled.” Id. ¶ 58. He further claims that the notes Defendants assert they possess are “fraudulent” because they are not the notes he signed and, in fact, are different from the canceled note in his possession. Id. ¶ 61. In effect, he says, Defendants are attempting to “steal his home” by means of a fraudulent foreclosure proceeding. Id.

         While Green spends numerous paragraphs of the lengthy Complaint discussing Defendants' business practices generally, his Complaint is largely devoid of details that shed light on the relationship of each Defendant to Green's underlying loan, leaving the Court struggling to determine the timeline of events and relationship of the parties. However, based on the numerous attachments submitted in subsequent filings by both Green and the Defendants, it appears that Wilmington is the current owner of the mortgage note, having been assigned it by U.S. Bank following several previous transfers. ECF No. 35-1 at 6, 17-22. Defendants Fay Servicing and Statebridge appear each to have been the loan servicers at different points in time. Id.

         Green alleges seven causes of action against all Defendants. These include: 1) violations of the Federal Trade Commission Act (“FTC Act”) and the Consumer Financial Protection Act (“CFPA”); 2) violations of the Fair Debt Collection Practices Act (“FDCPA”); 3) violations of the Fair Credit Reporting Act (“FCRA”); 4) violations of the Real Estate Settlement Procedures Act (“RESPA”); 5) violations of the Maryland Consumer Debt Collection Act (“MCDCA”) and the Maryland Collection Agency Licensing Act (“MCALA”); 6) intentional infliction of emotional distress; 7) violations of the civil Racketeer Influenced and Corrupt Organization (“RICO”) statute.

         Green requests an injunction barring Defendants from further violating the statutes; an injunction prohibiting Defendants from doing business in the State of Maryland; an injunction preventing the underlying foreclosure action from moving forward; and damages in the amount of $10 million plus costs. ECF No. 1 ¶ 203.

         Shortly after filing his Complaint, on March 28, 2017, Green filed an Emergency Motion to Stay the Foreclosure Sale (ECF No. 4), which the Court denied. The Court has previously denied Green's Motion to Appoint Counsel in this case. ECF No. 30.

         On April 25, 2017, Green filed a copy of the purported “canceled note” with an affidavit attesting to its authenticity. ECF No. 12. The note attached to the affidavit, entitled “Balloon Note, ” is in the amount of $159, 000.00 and is signed only by Green. Id. The last page of the note appears to be stamped “Cancelled” without any indication of when or by whom. Id. Green's affidavit does not volunteer any of these missing details. Id.

         Defendants have all filed motions asking the Court to dismiss the Complaint for failure to state a claim. See ECF Nos. 16, 20, 24, 46. Green opposes the motions and, in response, asks the Court grant summary judgment in his favor. ECF No. 35.


         Federal Rule of Civil Procedure 8(a) prescribes “liberal pleading standards, ” requiring only that a plaintiff submit a “short and plain statement of the claim showing that [he] is entitled to relief.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (citing Fed.R.Civ.P. 8(a)(2)). However, “[a] plaintiff does not satisfy Rule 8 when the complaint ‘lump[s] all the defendants together and fail[s] to distinguish their conduct because such allegations fail to give adequate notice to the defendants as to what they did wrong.'” Classen Immunotherapies, Inc. v. Biogen IDEC, 381 F.Supp.2d 452, 455 (D. Md. 2005) (quoting Appalachian Enterprises, Inc. v. Epayment Solutions Ltd., 2004 WL 2813121, at *6 (S.D.N.Y.2004)).

         Additionally, claims for fraud must meet the heightened pleading standard of Rule 9(b), which requires a party to “state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b). Thus, a plaintiff alleging claims that sound in fraud must, at a minimum, describe the “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015) (internal quotation marks omitted).

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). But this standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court will accept factual allegations as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Indeed, the court need not accept legal conclusions couched as factual allegations or “unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Markets, Inc. v. J.D. Associates Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). In the end, the Complaint must contain factual allegations sufficient to apprise a defendant of “what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted).

         While federal courts are obliged to liberally construe a pro se litigant's claims in applying the above analysis, this requirement “does not transform the court into an advocate.” United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012) (internal quotations and citations omitted). The Fourth Circuit has noted that “[w]hile pro se complaints may ‘represent the work of an untutored hand requiring special judicial solicitude, ' a district court is not required to recognize ‘obscure or extravagant claims defying the most concerted efforts to unravel them.'” Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985)). Accordingly, although the facts alleged in a plaintiff's complaint must be taken as true, bare conclusory statements “are not entitled to the assumption of truth.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011) (quoting Iqbal, 556 U.S. at 679)) (internal quotation marks omitted).

         III. ANALYSIS

         Because Defendants make similar arguments in their pending Motions to Dismiss, [2] the Court will consider those motions collectively as they pertain to each of Green's claims before turning to the other pending motions.

         A. ...

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