United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
pending and ready for resolution is the motion to dismiss
Plaintiff's amended complaint filed by Defendants Carrie
Ward, BWW Law Group, LLC (“BWW Law Group”), and
Freedom Mortgage Corporation (“Freedom
Mortgage”). (ECF No. 21). The issues have been briefed,
and the court now rules, no hearing being deemed necessary.
Local Rule 105.6. For the following reasons, the motion to
dismiss will be granted.
following facts are either alleged in the amended complaint
or taken from matters of public record of which the court may
take judicial notice. In 2011, Plaintiff purchased the property
located at 5055 Ottawa Park Place, Waldorf, MD 20602 (the
“Property”). To finance the purchase of the
Property, Plaintiff obtained a loan from Amerigroup Mortgage
Corporation, evidenced by a promissory note (the
“Note”) and secured by a deed of trust (the
“Deed of Trust”). (ECF No. 10-2, at 4, 19). After
Plaintiff defaulted, Defendant Freedom Mortgage, as
authorized agent of the holder of the Note secured by the
Deed of Trust, initiated foreclosure proceedings on the
Property. Defendant Freedom Mortgage appointed Defendant Ward
and additional individuals as substitute trustees under the
Deed of Trust. (Id. at 35). The foreclosure action
was docketed in the Circuit Court for Charles County,
Maryland, on December 5, 2016. (Id.). Attached to
the order to docket foreclosure action is a signed affidavit
by Defendant Freedom Mortgage, dated September 28, 2016,
which states that “Government National Mortgage
Association is the owner of the Note and that Freedom
Mortgage Corporation is servicer for said
owner.” (Id. at 30). Plaintiff alleges
that there was never a document filed by Ginnie Mae stating
that Defendant Freedom Mortgage had rights to the Note with
respect to the Property being sold. (ECF No. 19, at 4).
Plaintiff further alleges that “the defendant never . .
. notified [him] that Ginnie Mae was the owner of the
note[.]”(Id.). In August 2017, the
Property was sold at a foreclosure sale. (ECF No. 10-3, at
10). The circuit court ratified the sale on October 10, 2017.
(Id. at 11).
27, 2017, Plaintiff commenced this action against Defendants
Carrie Ward, BWW Law Group, and Freedom Mortgage in the
Circuit Court for Charles County. (ECF No. 2). On December 7,
2017, Defendants removed this action from the Circuit Court
for Charles County based upon federal question jurisdiction.
(ECF No. 1). After Defendants filed a motion to dismiss (ECF
No. 10), on February 5, 2018, Plaintiff filed an amended
complaint which sets forth five causes of action: breach of
contract (Count 1), fraud (Count 2), fraudulent
misrepresentation (Count 3), intentional infliction of
emotional distress (“IIED”) (Count 4), and a
violation of the Fair Debt Collection Practices Act (the
“FDCPA”) (Count 5). (ECF No. 19). On February 16,
Defendants filed a motion to dismiss Plaintiff's amended
complaint. (ECF No. 21). Plaintiff responded (ECF No. 24),
and Defendants replied (ECF No. 25).
Standards of Review
purpose of a motion to dismiss under Rule 12(b)(6) is to test
the sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006). A plaintiff's complaint need only satisfy the
standard of Rule 8(a), which requires a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule
8(a)(2) still requires a ‘showing,' rather than a
blanket assertion, of entitlement to relief.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007).
That showing must consist of more than “a formulaic
recitation of the elements of a cause of action” or
“naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted).
stage, all well-pleaded allegations in a complaint must be
considered as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and all factual allegations must be
construed in the light most favorable to the plaintiff,
see Harrison v. Westinghouse Savannah River Co., 176
F.3d 776, 783 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)). In evaluating the complaint,
unsupported legal allegations need not be accepted.
Revene v. Charles Cty. Comm'rs, 882 F.2d 870,
873 (4th Cir. 1989). Legal conclusions couched as
factual allegations are insufficient, Iqbal, 556
U.S. at 678, as are conclusory factual allegations devoid of
any reference to actual events, United Black Firefighters
v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979);
see also Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009). Ultimately, a complaint must
“‘permit[ ] the court to infer more than the mere
possibility of misconduct' based upon ‘its judicial
experience and common sense.'” Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010) (quoting Iqbal, 556 U.S. at 679).
se pleadings are construed liberally and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976));
Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal
construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do
so from the facts available; it does not mean that the court
should rewrite the complaint to include claims never
presented. Barnett v. Hargett, 174 F.3d 1128, 1132
(10thCir. 1999). That is, even when pro
se litigants are involved, the court cannot ignore a
clear failure to allege facts that support a viable claim.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990); Forquer v. Schlee,
No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(“[E]ven a pro se complaint must be dismissed
if it does not allege a plausible claim for relief.”
(citation and internal quotation marks omitted)).
first argue that res judicata bars Plaintiff's
complaint because it attacks the foreclosure action initiated
in the Circuit Court for Charles County which resulted in a
final judgment on the merits - the ratification of the
foreclosure sale. (ECF No. 21-1, at 5). “Under
Maryland Law, the requirements of res judicata or
claim preclusion are: 1) that the parties in the present
litigation are the same or in privity with the parties to the
earlier dispute; 2) that the claim presented in the current
action is identical to the one determined in the prior
adjudication; and 3) that there was a final judgment on the
merits.” Colandrea v. Wilde Lake Cmty.
Ass'n, Inc., 361 Md. 371, 392 (2000).
Parties are the ...