United States District Court, D. Maryland, Southern Division
MICHELLE R. KANE, Plaintiff,
BAYVIEW LOAN SERVICING, LLC., et al. Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
Michelle R. Kane brings this pro se action against
Defendants Bayview Loan Servicing, LLC
(“Bayview”), U.S. Bank National Association, as
Trustee for Bayview Opportunity Master Fund IIIA REMIC Trust
2014-21NPL1 (“U.S. Bank”), and BWW Law Group, LLC
“Defendants”) under various federal and state
consumer protection laws following Defendants' attempt to
collect a mortgage loan debt and foreclose upon
Plaintiff's residence. Now pending before the Court are
Defendants' Motions to Dismiss. ECF Nos. 5 (BWW); 6
(Bayview/U.S. Bank). No. hearing is necessary. Loc. R. 105.6
(D. Md. 2016). For the following reasons, Defendants'
Motions are granted.
January 17, 2008, Plaintiff executed a refinance mortgage
loan with M-Point Mortgage Services, LLC, with an original
principal amount due of $239, 540 (the “Loan”).
The Loan and associated promissory note (the
“Note”), were secured by a Refinance Deed of
Trust (“Deed of Trust”) against Plaintiff's
real property located at 1009 Carrington Avenue, Capitol
Heights, Maryland 20743 (the “Property”). ECF No.
6-3; 6-4. Thereafter, the Note and Deed of Trust were
transferred and assigned to BAC Home Loans Servicing LP and
then Bank of America, N.A., ECF Nos. 6-5; 6-6. On March 24,
2014, the Note and Deed of Trust were assigned to the
Secretary of Housing and Urban Development
(“HUD”), with Bayview designated as the Loan
servicer. ECF No. 6-7; ECF No. 1-2 (notice to Plaintiff
stating that Bank of America is transferring the servicing of
the Loan to Bayview). On July 1, 2014, the Note and Deed of
Trust were assigned to Bayview. ECF Nos. 6-8; 6-3. It appears
that the Note was “securitized” pursuant to a
pooling and servicing agreement between HUD and Bayview,
though Plaintiff disputes the validity of this agreement.
See ECF No. 1 ¶ 34; see also ECF No.
1-6 (Plaintiff indicating that Bayview purchased pools of
mortgages in default from HUD for “pennies on the
dollar”). Thereafter, Bayview, as servicer of the Loan,
informed Plaintiff that U.S. Bank was the associated
creditor. See, e.g., ECF No. 1-4 (Bayview informing
Plaintiff that the Loan was transferred to a new creditor,
U.S. Bank); see also ECF No. 6-9 (Appointment of
Substitute Trustees listing U.S. Bank as the holder of the
Note and Deed of Trust).
25, 2014, Bayview sent Plaintiff a Notice of Default and
Intent to Accelerate, asserting that Plaintiff defaulted on
her loan on August 1, 2011. ECF No. 1-10. On July 26, 2016,
Plaintiff received a letter from BWW, informing her that BWW
had been retained to provide legal services in connection
with enforcement of the Deed of Trust. ECF No. 1-19. On
November 1, 2016, Substitute Trustees assigned by U.S. Bank
filed an Order to Docket a Foreclosure in the Circuit Court
for Prince George's County, Maryland, No. CAEF16-40119
(“Foreclosure Action”). On March 9, 2017, the
circuit court denied Plaintiff's motion to stay and
dismiss the Foreclosure Action. ECF No. 6-13. Plaintiff then
attempted to remove the Foreclosure Action to this Court, but
the action was remanded back to the circuit court. See
Ward v. Kane, No. GJH-17-0553, 2017 WL 1483343 (D. Md.
Apr. 21, 2017). Thereafter, Plaintiff filed Exceptions to
Sale pursuant to Maryland Rule 14-305 challenging U.S.
Bank's standing to foreclose and sought to have the March
7, 2017 foreclosure sale declared void. ECF No. 6-14. On
November 22, 2017, the circuit court ordered the Foreclosure
Action to continue in due course, finding that
Plaintiff's Exceptions did not “identify any
legitimate procedural irregularity regarding the [prior]
foreclosure sale.” ECF No. 6-16. Plaintiff then filed
the instant suit against Defendants, asking the Court to
“void the illegal foreclosure, sale, ratification, and
eviction” and award damages in the amount of $20
million pursuant to the following federal and state consumer
protection laws: Count I - Fair Debt Collection Practices Act
(“FDCPA”); Count II - Maryland Consumer Debt
Collection Act (“MCDCA”); and Count III - Real
Estate Settlement Procedures Act (“RESPA”).
See ECF No. 1 ¶¶ 10, 115.
STANDARD OF REVIEW
“document filed pro se is to be liberally
construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” See
Linlor v. Polson, 263 F.Supp.3d 613, 618-19 (E.D. Va.
2017) (citing Erickson v. Pardus, 551 U.S. 89, 94
(2007)) (internal quotations omitted). However, the Court may
not ignore a clear failure in the pleading to allege facts
that set forth a cognizable claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
1990). The Court may not act as the pro se
plaintiff's advocate and develop claims that she failed
to clearly raise. Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). Therefore, to overcome a Rule 12(b)(6)
motion, a pro se complaint must still allege enough
facts to state a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
is plausible when “the plaintiff pleads factual content
that allows the Court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. In evaluating the sufficiency of the complaint,
the Court accepts factual allegations in the complaint as
true and construes the factual allegations in the light most
favorable to the plaintiff. See Albright v. Oliver,
510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs
of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).
However, the complaint must contain more than “legal
conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement.”
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc.,
591 F.3d 250, 255 (4th Cir. 2009).
thirty-six page Complaint contains a litany of convoluted
allegations and legal conclusions related to Defendants'
attempts to service and collect Plaintiff's debt. It
appears that the gravamen of Plaintiff's Complaint is
that the securitization of her loan and transfer of the Title
and Deed of Trust from HUD to Bayview was somehow invalid,
and the recorded documents pertaining to the transfer provide
insufficient proof of Bayview's legal interest.
Therefore, Defendants allegedly do not have a legal interest
in the underlying mortgage and have attempted to collect a
“non-existing” debt. See ECF Nos. 1 at
8; 1 ¶ 45 (noting that Plaintiff's credit history
reflecting a debt to Bayview “is not factual data
because the debt is not owed to Bayview or U.S.
Bank”). Notably, Plaintiff points to a HUD
training presentation, ECF No. 1-21, and alleges that because
her loan did not qualify for “the Preferred Pooling
Eligibility, ” U.S. Bank cannot be the owner of the
loan. ECF No. 1 ¶ 65.
Collateral Attack on the Foreclosure Action
argue that Plaintiff's suit is an impermissible
collateral attack on the Foreclosure Action. ECF No. 6-1 at
12. While Plaintiff asserts that she “is not attacking
the foreclosure, she is attacking the fraud, ” ECF No.
10 at 2, Plaintiff's principal allegation is that
Defendants do not have a legal interest in the Note and Deed
and, therefore, the Court should “void the illegal
foreclosure, sale, ratification, and eviction” of the
Property. See ECF No. 1 ¶ 25 (alleging that
Bayview “lack standing to foreclose on said
property” because it claims to be the servicer for a
non-existent trust). This is, in essence, an attack on the
validity of the underlying Foreclosure Action.
Maryland, a plaintiff may challenge a foreclosure sale by 1)
filing a motion to stay or dismiss a pending foreclosure sale
to challenge the right of the lender to foreclose pursuant to
Md. Rule 14-211; 2) raising post-sale procedural
irregularities pursuant to Md. Rule 14-305(d) (i.e.,
Exceptions to the Sale); or 3) challenging the post-sale
audit. See Thomas v. Nadel, 48 A.3d 276, 277-78 (Md.
2012). The circuit court has twice considered and rejected
the same arguments that Plaintiff puts forth in this action.
On November 29, 2016, Plaintiff moved to dismiss the
Foreclosure Action pursuant to Md. Rule 14-211, challenging
the successive assignments of the Deed, chain of title, and
alleging that Defendants did not have a legal interest in the
Property. ECF No. 6-11. On March 7, 2017, the circuit court
denied Plaintiff's motion on the merits. ECF No. 6-13.
Thereafter, on July 19, 2017, Plaintiff filed Exceptions to
the Sale pursuant to Rule 14-305, again challenging
Defendants' standing to pursue the Foreclosure Action.
ECF No. 6-14. On November 22, 2017, the Circuit Court
overruled Plaintiff's Exceptions, finding that Plaintiff
did not identify any legitimate procedural irregularity
regarding the foreclosure sale that occurred on March 7,
2017, and ordered the Foreclosure Action to continue in due
course. ECF No. 6-16.
Maryland courts and this Court, applying Maryland law, have
consistently held that res judicata bars collateral
attacks on foreclosure judgments entered in the Circuit
Courts.” See Jones v. HSBC Bank USA, N.A., No.
RWT 09CV2904, 2011 WL 382371, at *5 (D. Md. Feb. 3, 2011)
(holding that plaintiff could not re-litigate claims to title
over a property that were resolved in a state court
foreclosure proceeding) (citations omitted). While the
circuit court did not consider Plaintiff's claims under
FDCPA, MCDCA, and RESPA filed herein, Plaintiff is attempting
to re-litigate whether Defendants' had a legal interest
in the underlying loan. See, e.g. ECF No. 6-11
¶ 23 (Plaintiff arguing that Bayview Opportunity Master
Fund IIIA REMIC Trust 2014-21NPL1 “is not a valid Trust
and does not exist”). As these issues have been
resolved by the circuit court, Plaintiff's claims related
to whether Defendants may collect upon Plaintiff's debts
through the Note and Deed of Trust are barred by res
judicata. Additionally, because Plaintiff was not a
party or an intended third-party beneficiary to the pooling
and servicing agreement underlying the securitization of her
loan, Plaintiff is unable to challenge whether Bayview or
U.S. Bank has a legal interest in the Property. See Bell
v. Clarke, No. TDC-15-1621, 2016 WL 1045959, at *3 (D.
Md. Mar. 16, 2016) (holding that plaintiff did not have
standing to amount a direct attack on the transfer of his
note and deed of trust under a pooling and servicing
agreement even if the alleged fraud or errors in assignment
rendered the ...