United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Se Plaintiff Daryl Green has asked the Court to
reconsider its Opinion and Order entered on March 7, 2018,
ECF Nos. 58, 59, in which it granted the Motions to Dismiss
filed by 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”).
Defendants oppose the Motion. For the reasons that follow,
the Motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of a foreclosure proceeding brought by the
Rosenberg Defendants as Substitute Trustees against
Green's residence at 15416 Cedar Drive, located in
Accokeek, Maryland (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 being foreclosed on in fee simple and is in
fact in possession of a mortgage note “marked
cancelled.” Id. ¶ 58. He further claims
that the notes Defendants assert they possess are
“fraudulent” because they are not the notes he
signed and are different from the cancelled 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.
on these allegations, Green's brought seven causes of
action against all Defendants. These included: 1) violations
of the Federal Trade Commission Act and the Consumer
Financial Protection Act; 2) violations of the Fair Debt
Collection Practices Act; 3) violations of the Fair Credit
Reporting Act; 4) violations of the Real Estate Settlement
Procedures Act; 5) violations of the Maryland Consumer Debt
Collection Act and the Maryland Collection Agency Licensing
Act; 6) intentional infliction of emotional distress; 7)
violations of the civil Racketeer Influenced and Corrupt
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.
April 25, 2017, Green filed a copy of the purported
“cancelled note” with an affidavit attesting to
its authenticity. ECF No. 12. The note attached to the
affidavit was in the amount of $159, 000.00 and signed only
by Green. Id. Though the last page of the note
appeared to be stamped “cancelled, ” there was no
indication of when or by whom it was supposedly cancelled.
Id. Green's affidavit did not volunteer any of
these missing details. Id.
Defendants filed motions asking the Court to dismiss the
Complaint for failure to state a claim. See ECF Nos.
16, 20, 24, 46. On March 7, 2018, the Court granted the
Motions to Dismiss, dismissing all of Green's federal
claims with prejudice. The Court declined to exercise
supplemental jurisdiction over the state law claims and
dismissed them without prejudice, noting that this was
appropriate given the early stage of the proceeding and
because “it appears Green is engaged in nothing more
than an attempt to collaterally attack the foreclosure of his
home, a proceeding that is currently being litigated in state
court.” ECF No. 58 at 15. However, in a footnote, the
Court stated, “if within ten days, Green files with the
Court the original of the purported cancelled note, or a copy
of the note, certified by a duly authorized notary public,
along with an affidavit by Green affirming, under the
penalties of perjury, when the note was paid off as well as
how, when, and by whom it was cancelled, the Court may
reconsider its rulings herein.” Id. at 15 n.5.
March 15, 2018, Green filed the present Motion for
Reconsideration with an attached affidavit. ECF No. 60. This
time he attaches two mortgage notes. One is the note
previously submitted with his April 25, 2017, filing, in the
amount of $159, 000. ECF No. 60-2 at 1. The other is in the
amount of $417, 000. ECF No. 60-2 at 4. Neither note is
certified; both are copies signed solely by Green that appear
to be stamped “cancelled” on the last page.
Green's affidavit affirms that “said cancelled
notes were received in March of 2012 as a result of lawful
business transactions between Daryl A. Green and the
initial/originator of the debt C&F Mortgage Corporation.
These original notes marked cancelled represent a full
satisfaction of the debt it secured.” ECF No. 60-1.
Based on these submissions, he asks the Court to reconsider
its ruling and reinstate the case. ECF No. 60.
Fay Servicing, U.S. Bank, Statebridge, and Wilmington have
filed oppositions. ECF Nos. 61, 62. Green has not replied,
but has instead filed a Notice of Appeal. ECF No. 63. On
April 6, 2018, the Court of Appeals for the Fourth Circuit
issued a letter indicating the appeal will become effective
upon entry of an order disposing of the pending Motion by
this Court. ECF No. 65.
Rule of Civil Procedure 60(b) provides relief from a final
court judgment or order for, inter alia, fraud,
misrepresentation, or misconduct by an opposing party or
“any other reason that justifies relief.”
Fed.R.Civ.P. 60(b)(3), (6). However, Rule 60(b) relief is
“extraordinary.” Compton v. Alton S.S.
Co., 608 F.2d 96, 102 (4th Cir. 1979). Indeed, in
addition to demonstrating that one of the grounds for relief
listed in the Rule is present, the moving party must also
“make a threshold showing that (1) its motion was
timely made; (2) it had a meritorious defense; (3) no unfair
prejudice to the opposing party would result; and (4)
exceptional circumstances warranted relief from the
judgment.” Robinson v. Wix Filtration Corp.
LLC, 599 F.3d 403, 426 n.12 (4th Cir. 2010).
light of Green's allegations of fraud, the Court left
open the possibility of reconsideration of its order of
dismissal if Green could produce an original or certified
copy of the supposedly original cancelled notes he claims to
have in his possession. However, Green's Motion and the
attached affidavit fail to provide any of the requested
information. To start, though the affidavit is notarized, the
documents themselves are not. Moreover, his affirmation that
“he received them in March 2012 as a result of lawful
business transactions” with C&F Mortgage
Corporation does not enlighten the Court as to when, how, or
by whom the notes were supposedly cancelled. In short, Green
continues to avoid providing specific details as to how the
notes were satisfied and who cancelled them to support his
claims of fraud.
Green uses his Motion to rehash his claims that were already
considered by the Court in its March 7, 2018, Opinion. Thus,
he has not shown exceptional circumstances to warrant
reconsideration under Rule 60(b). If indeed Green can
demonstrate the notes have really been cancelled and that one
or more of the ...