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Noels v. Ocwen Loan Servicing LLP

United States District Court, D. Maryland, Southern Division

July 30, 2018




         Plaintiff Tiffany Lagenia Noels[1] has sued Defendants Ocwen Loan Servicing, LLP, (“Ocwen”), Deutsche Bank National Trust (“Deutsche Bank”), Brock & Scott, PLLC, and Shapiro & Brown, LLP. In her initial Complaint and Amended Complaint, Plaintiff alleges that Defendants committed violations of state and federal law in their handling of Plaintiff's mortgage loan modification. See ECF No. 1, ECF No. 16. Now pending before the Court is Ocwen and Deutsche Bank's Motion to Dismiss Plaintiff's initial Complaint, ECF No. 12, and their Motion to Strike Plaintiff's Amended Complaint, ECF No. 19.[2] No hearing is necessary.[3]See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Ocwen and Deutsche Bank's Motion to Strike Plaintiff's Amended Complaint, ECF No. 19, and their Motion to Dismiss Plaintiff's initial Complaint, ECF No. 12, are granted.

         I. BACKGROUND[4]

         On June 14, 2006, Plaintiff Tiffany Lagenia Noels executed a note in the amount of $278, 800 and Deed of Trust to Nova Star Mortgage, Incorporated (“Nova Star”) against the real property known as 1214 Iron Forge Road, District Heights, Maryland 20747. ECF No. 1 ¶¶ 8-9. Mortgage Electronic Registration Systems, Inc., as nominee for Nova Star, executed an Assignment transferring the Deed of Trust to Deutsche Bank, which was then transferred to Ocwen. On August 4, 2012, Plaintiff entered into a Home Affordable Modification Agreement (“Loan Modification”), which provided her with an interest rate of 2% and a deferred non-interest bearing principal of $140, 563.34. Plaintiff subsequently defaulted on the Loan Modification and Ocwen, through substitute trustees Brock & Scott, PLLC, began a foreclosure proceeding in the Circuit Court for Prince George's County on February 10, 2016. After the Circuit Court denied Defendants' Motion to Dismiss the Foreclosure Action on July 25, 2016, Plaintiff filed a Petition for Bankruptcy in the U.S. Bankruptcy Court for the District of Maryland, Case No. 16-25654-WIL, which temporarily stayed the Foreclosure Action.[5]

         On November 1, 2017, Defendant filed this action alleging violations of the Truth in Lending Act (“TILA”) (Count I), the Fair Debt Collection Practices Act (“FDCPA”) (Count II), and Breach of Contract (Count III). ECF No. 1. On the same day, Defendants attempted to remove the Foreclosure Action. ECF No. 2. The Clerk informed Defendants that the notice of removal was filed in error and that “[i]f your intention is to remove a case, the Notice of Removal must be filed in paper form with the Clerk's Office and a new civil case will be instituted.” ECF No. 9. Plaintiff subsequently filed a proper Notice of Removal, and the Foreclosure Action was removed to this Court. See Yacko et al. v. Noels et al., No. GJH-17-3604.

         On December 1, 2017, Ocwen and Deutsche Bank filed a Motion to Dismiss Plaintiff's Complaint with Prejudice, arguing that Plaintiff's claims were time-barred and failed on their merits.[6] ECF No. 12. On December 19, 2017, Plaintiff filed a Motion to Extend Time to File Responses to Defendants' Motions seeking an additional ten days to respond, ECF No. 13, which the Court granted, ECF No. 14. Rather than respond to Ocwen's motions, however, on January 16, 2018, Plaintiff filed an Amended Complaint. ECF No. 16. In her Amended Complaint, Plaintiff asserts claims of: Breach of Contract against Ocwen (Count I), id. at 30;[7] Violation of the Maryland Mortgage Fraud Protection Act (“MMFPA”) against all Defendants (Count II), id. at 35; Violation of Maryland's Consumer Protection Act (“MCPA”) and Consumer Debt Collection Act (“MCDCA”) against all Defendants (Count III), id. at 39; Violation of the Fair Debt Collections Practices Act (“FDCPA”) against Defendants Brock & Scott and Shapiro & Brown (Count IV), id. at 43; Respondeat Superior against all Defendants (Count V), id. at 48; Unclean Hands against all Defendants (Count VI), id. at 49; Violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against all Defendants (Count VII), id. at 51; and, Declaratory and Injunctive Relief (Count VIII), id. at 65. Plaintiff did not seek leave of the Court or consent of Defendants to file her Amended Complaint. On February 6, 2018, Ocwen filed a Motion to Strike the Amended Complaint or, in the Alternative, to Dismiss. ECF No. 19.[8] Ocwen argues that Plaintiff's Amended Complaint was filed improperly pursuant to Federal Rule of Civil Procedure 15, as it was filed more than twenty-one days after Ocwen filed its Motion to Dismiss Plaintiff's initial Complaint. ECF No. 19-1 at 11.


         To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555 (“a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.”)).

         The purpose of Rule 12(b)(6) “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). When deciding a motion to dismiss under Rule 12(b)(6), a court “must accept as true all of the factual allegations contained in the complaint, ” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted). The Court need not, however, accept unsupported legal allegations, see Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).


         Before assessing any of the pending Motions to Dismiss, the Court will first decide whether Plaintiff properly filed her Amended Complaint.

         A. Motion to Strike Plaintiff's Amended Complaint

         Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its ...

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