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Weisheit v. Rosenberg & Associates, LLC

United States District Court, D. Maryland

April 25, 2018

SHERRY L. WEISHEIT, Plaintiff
v.
ROSENBERG & ASSOCIATES, LLC, et al., Defendants.

          MEMORANDUM

          James K. Bredar Chief Judge

         Plaintiff Sherry L. Weisheit brought this action against Defendants Rosenberg & Associates, LLC (“Rosenberg”), and Bayview Loan Servicing, LLC (“Bayview”), in March of last year, alleging violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. and its implementing regulations, and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., all resulting from alleged actions taken by Defendants in connection with an attempted foreclosure of Plaintiff's home in 2017. After Plaintiff amended her complaint, Defendants brought motions to dismiss and the Court denied those motions on November 15, 2017. Defendants then answered Plaintiff's amended complaint and the parties proceeded to discovery. The Court entered a scheduling order setting January 22, 2018 as the deadline for amending pleadings, and April 23, 2018 as the discovery deadline. (See ECF No. 35.) On March 19, 2018, Plaintiff moved to amend her complaint. (Mot. Amend, ECF No. 43.) The proposed amendments go only to Plaintiff's claims against Bayview, and Rosenberg did not respond in opposition to the motion. Bayview responded on April 2, 2018 (ECF No. 50), and Plaintiff replied on April 20 (ECF No. 55). Plaintiff's motion to amend is therefore ripe for review. There is no need for a hearing to resolve the matter, see Local Rule 105.6 (D. Md. 2016), and therefore Bayview's request for a hearing (ECF No. 51) will be denied by accompanying order. Plaintiff has satisfied both Federal Rules of Civil Procedure 16(b) and 15(a), and therefore her motion to amend will be granted by accompanying order.

         I. Background

         The facts relevant to the resolution of Plaintiff's motion to amend are not in dispute. Plaintiff brought this lawsuit against Bayview and Rosenberg on March 27, 2017. (See Compl., ECF No. 1.) Plaintiff asserted jurisdiction under 28 U.S.C. § 1331, on the ground that her complaint alleged violation of federal laws. (See Am. Compl. ¶ 7, ECF No. 19.) Plaintiff alleged that Bayview “is a loan servicer that regularly conducts business throughout the United States and Maryland.” (Id. ¶ 11.)

         Two allegations in Plaintiff's amended complaint are relevant to Plaintiff's motion to amend. First, Plaintiff allegedly received a letter from Bayview on December 29, 2016 that explained why Bayview denied Plaintiff's application for a loan modification, and stated that Bayview had “enclosed all supporting documentation, ” although no documentation was included. (Am. Compl. ¶¶ 22-23; December 29 Letter, Compl. Ex. 3, ECF No. 1-3.) Plaintiff then allegedly received a letter in February 2017 stating that the “all supporting documentation” language was “standard verbiage” and that no supporting documentation was forthcoming. (Am. Compl. ¶ 31.) Plaintiff attached this letter to her complaint. (February 15 Letter, Compl. Ex. 7, ECF No. 1-7.)

         Second, Plaintiff alleged that in the same December 29, 2016 letter, Defendant cited an investor restriction as the reason for denying her application. (Am. Compl. ¶ 22.) But, Plaintiff alleged, “[d]espite RESPA requirements to the contrary, Bayview did [not] identify the name of the investor or the particular guideline.” (Id. ¶ 23.) Plaintiff allegedly informed Bayview that this information was missing, but Bayview never responded. (See Id. ¶ 34.)

         On August 25, 2017, both Defendants brought motions to dismiss under Rule 12(b)(6), and did not challenge the Court's subject-matter jurisdiction over the Plaintiff's claims, or the Court's personal jurisdiction over either Defendant. (See ECF Nos. 21-22.) The Court denied Defendants' motions to dismiss on November 15, 2017 (Order, ECF No. 30), and both Defendants answered on November 29. Bayview denied that it regularly conducted business in the United States and Maryland. (Bayview Ans. ¶ 11, ECF No. 31.) With regard to Plaintiff's allegation that Bayview had an obligation under RESPA to provide the name of the investor and did not do so, Bayview admitted that it sent a letter to Plaintiff on December 29, 2016 denying her application, but denied the rest of the allegation.

         On December 21, 2017, the Court entered a scheduling order. In that order, the Court set January 22, 2018 as the deadline for moving for joinder of additional parties and amendment of pleadings. (Scheduling Order, ECF No. 35.) The parties proceeded to discovery. There is some dispute as to the conduct of the parties regarding discovery, but the Court has gleaned the following facts that appear to be undisputed: Defendant served Plaintiff with its first set of interrogatories on March 14, 2018 (Mot. Amend Mem. Supp. 3, ECF No. 43-1); Defendant provided responses to Plaintiff's first set of interrogatories and requests for admission on March 7, 2018 and amended responses on March 16 (Id.; Opp'n Mot. Compel 6-7, ECF No. 44); and neither party has taken a deposition (Mot. Amend Mem. Supp at 6). The discovery deadline was set for April 23, 2018, but the Court has indefinitely postponed that deadline. (See Mem. & Order, ECF No. 56.)

         Plaintiff moved to amend her complaint for a second time on March 19, 2018, a little less than two months after the deadline for amending pleadings. Plaintiff's proposed amendments include some typographical fixes, as well as a few clarifications, but largely revolve around a single significant change: Plaintiff wishes to amend her complaint to include allegations on behalf of a putative nationwide class of borrowers who, according to Plaintiff, were harmed by Bayview's alleged violations of RESPA. Plaintiff asserts that she had “promptly reached out to lawyers experienced in class action lawsuits and requested that they review the case, ” and has secured outside, class action counsel. (Mot. Amend Mem. Supp. at 4-5.) Bayview responded in opposition to Plaintiff's motion to amend on April 2 and Plaintiff replied on April 20. That same day, the Court entered a memorandum and order, denying as moot an earlier motion by Plaintiff to compel answers to her first set of interrogatories, and indefinitely postponing the discovery deadline in this case, pending resolution of Plaintiff's motion to amend; a task to which the Court will now turn.

         II. Standard for Motion to Amend Complaint

         When a plaintiff seeks to amend her complaint after the deadline for doing so set in a scheduling order, she “triggers both Fed.R.Civ.P. 15(a) governing amendments to pleadings and Fed.R.Civ.P. 16(b) governing modification to a scheduling order.” Rassoull v. Maximus, Inc., 209 F.R.D. 372, 373 (D. Md. 2002). First, the Plaintiff “must satisfy the good cause standard of Rule 16(b); if the moving party satisfies Rule 16(b), the movant then must pass the tests for amendment under [Rule] 15(a).” Elat v. Ngoubene, 993 F.Supp.2d 497, 519 (D. Md. 2014) (internal quotation marks omitted); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298-99 (4th Cir. 2008) (noting tension between Rule 15 and Rule 16; not reaching district court's Rule 15(a) finding of futility because it affirmed district court's Rule 16(b) application of “good cause” standard). Under Rule 15(a) the Court “should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). In this Circuit, “leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would [be] futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).

         III. Analysis

         a. “Good cause” under Federal Rule of Civil Procedure 16(b)

         The “primary consideration of the Rule 16(b) ‘good cause' standard is the diligence of the movant.” Rassoull, 209 F.R.D. at 374. “Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause' standard primarily considers the diligence of ...


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