United States District Court, D. Maryland, Southern Division
FRANK E. ROBERSON-BEY, et al., Plaintiffs,
DOVENMUEHLE MORTGAGE, INC., et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE.
case is a quiet title action brought by pro se
Plaintiffs Frank E. Roberson-Bey and Cheryl B. Roberson-Bey
against Dovenmuehle Mortgage, Inc., the Maryland Department
of Housing and Community Development (the
“Department”), PNC Bank National Association,
Fidelity National Title Insurance Co. Plaintiffs are the owners
and mortgagors of property located at 2620 Boones Lane in
District Heights, Maryland. Although Dovenmuehle was
Plaintiffs' initial loan servicer, at some point the
Department asserted ownership of the loan. Plaintiffs
challenge this assertion of ownership, claiming the
Department is unable to produce the promissory note that
would make its maintenance of a mortgagee lien lawful.
Pending before the Court are separate motions to dismiss by
Dovenmuehle and Fidelity, Plaintiffs' Motions for Partial
Summary Judgment and Declaratory Judgment, Plaintiffs'
Motion to Strike, and the Department's Motion to Stay
Discovery. Defendants Department and PNC Bank filed Motions
to Dismiss the Original Complaint, which were rendered moot
by the filing of an Amended Complaint, but have not moved to
dismiss the Amended Complaint. See ECF Nos. 11, 13.
No. hearing is necessary. See Loc. R. 105.6 (D. Md.
2016). For the following reasons, Defendants' Motions to
Dismiss, ECF Nos. 28, 34, are granted. Defendants'
Motions to Dismiss, ECF No. 11, 13, 18, are denied as moot.
Plaintiffs' Motions for Partial Summary Judgment,
Declaratory Judgment, and to Strike, ECF Nos. 32, 43, 44 are
denied. The Department's Motion to Stay Discovery, ECF
No. 45, is denied as moot.
STANDARD OF REVIEW
move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6),
contending that the Court lacks subject-matter jurisdiction
and Plaintiffs have failed to state a claim. As an initial
matter, the Court must first determine that it has
subject-matter jurisdiction over Plaintiff's claims.
See Miller v. Brown, 462 F.3d 312, 316 (4th Cir.
2006). It is the plaintiff's burden to prove that
subject-matter jurisdiction exists. See Evans v. B.F.
Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
“Dismissal for lack of subject-matter jurisdiction
because of the inadequacy of the federal claim is proper only
when the claim is ‘so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy.'” Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 89 (1998) (quoting
Oneida Indian Nation of N.Y. v. County of Oneida,
414 U.S. 661, 666 (1974)).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “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) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Plaintiffs must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80. A pro se
plaintiff is held to a “less stringent” standard
than a lawyer, and the Court must liberally construe a
pro se plaintiff's pleadings. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
claim is one for quiet title pursuant to Md. Code Ann. Real
Prop. § 14-108. ECF No. 23 at 1. Plaintiff alleges that the
Department has “failed or refused to produce a
certified copy of the original, unaltered promissory note,
” id. at 4, and seems to suggest that this
failure violates the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692-1692p, the
Real Estate Settlement and Procedures Act
(“RESPA”), 12 U.S.C. § 2605, and/or the
Truth In Lending Act (“TILA”), 15 U.S.C.
§§ 1601-1667f. Plaintiffs' Motion for
Declaratory Judgment further suggests that the failure to
produce a valid copy of the note violates U.C.C. §
3-305. See ECF No. 42 at 3. Though the Uniform Commercial
Code is not itself the law of any jurisdiction, Maryland law
contains an analogous provision. See Md. Code Ann.
Com. Law § 3-305.
a claim under the FDCPA, a Plaintiff must plead that
“(1) the plaintiff has been the object of collection
activity arising from consumer debt, (2) the defendant is a
debtor collector as defined by the FDCPA, and (3) the
defendant has engaged in an act or omission prohibited by the
FDCPA.” Flores v. Deutchse Bank Nat'l Trust
Co., 2010 WL 2719849 at *6 (D.Md. 2010). Though
Plaintiff alleges that various Defendants are debt
collectors, see ECF No. 23 ¶ 5, this question is a legal
one, and thus “conclusory” allegations alone are
insufficient to state a claim. See Walters, 684 F.3d
at 439. Indeed, the law is clear that “creditors,
mortgagors, and mortgage servicing companies are not debt
collectors and are statutorily exempt from liability under
the FDCPA.” See, e.g., Jesse v. Wells Fargo Home
Mortg., 882 F.Supp.2d 877, 879-80 (E.D. Va. 2012);
Flores, 2010 WL 2719849 at *6; 15 U.S.C.A. §
any of the Defendants could be considered debt collectors,
Plaintiffs do not identify, and the Court is unaware of, any
specific provision in the FDCPA that requires a mortgagee or
a mortgage servicing company to show, upon request, a
certified copy of the promissory note. And even if some
provision of the FDCPA did contain such a requirement, the
FDCPA does not provide for the remedy-removal of the
mortgagee as a false cloud to title- that Plaintiffs seek.
See 15 U.S.C.A. § 1692k (detailing remedies
available for violations of the FDCPA). Because Plaintiffs do
not allege any set of facts that can support a violation of
the FDCPA as to any of the Defendants, the FDCPA claims must
be dismissed. See also Wagner v. Pennymac Loan Servs.,
LLC, 2016 WL 3360434 at * 3 (N.D. Tex. 2016) (holding
that FDCPA claims based on show-me-the-note theory fail as a
matter of law).
also do not cite any specific provisions of RESPA that they
believe any Defendants have violated. RESPA requires
effective advance disclosure to home buyers and sellers of
settlement costs, the elimination of kickbacks and referral
fees pursuant to federally related mortgage loans, a
reduction in the amounts home buyers must place in escrow
accounts for payment of real estate taxes and insurance, and
reform and modernization of local recordkeeping of land title
information. 12 U.S.C.A. § 2601. Though § 2605(e)
outlines the duty of loan servicers to respond to qualified
written borrower inquiries contending that the loan account
is in error, that duty is limited to either (a) making
corrections to the account, (b) providing the borrower with a
written explanation or clarification of why the account is
not in error, or (c) providing the borrower with a written
explanation or clarification of why any information requested
is unavailable. Id. § 2605(e)(2). Nowhere in
that section, or any other section, does the statute require
loan servicers to produce a copy of the promissory note on
request. Even if Plaintiffs had pled facts that would make
out a violation of § 2605(e)(2), the remedy for
individuals is limited to actual damages, none of which have
been pled here, or, in the event of a pattern or practice of
noncompliance, statutory damages of no more than $2, 000.
Id. § 2605(f)(1). Plaintiffs have not alleged
any facts that state a claim for relief under RESPA, so the
claim must be dismissed. See also Vazquez v. Select
Portfolio Servicing, 2014 WL 117390 at *2 (N.D. Cal.
2014) (noting that “show me the note” requests
are not covered by RESPA).
to TILA, once more Plaintiffs fail to identify any specific
provisions of the statute that Defendants have allegedly
violated. TILA requires that, when a mortgage loan is sold or
otherwise transferred or assigned to a third party, the new
owner or assignee of the debt must notify the borrower within
thirty days. 15 U.S.C. § 1641(g)(1). The statute
requires that the notice contain:
(A) the identity, address, telephone number of the new
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on
behalf of ...