United States District Court, D. Maryland
DEBRA BONILLA-MEAD, JEFFREY SESSIONS, Qui Tam USAG, Relators/Plaintiffs
McCABE, WEISBERG and CONWAY, LLC H. G. O'SULLIVAN, ESQ., ALEXANDER BAHUS, CHASTITY BROWN, MICHAEL T. CANTRELL, RACHEL KIEFER, PHH MORTGAGE COMPANY, SAFEGUARD PROPERTIES CONTRACTED, BIERMAN, WARD and WOOD, LLC, Formerly known as Bierman Geesing and Ward, LLC., HOWARD BIERMAN, JACOB GEESING, CARRIE WARD, HSBC MORTGAGE CORP. USA, HSBC BANK USA, N.A., DOLORES LAURIA, VP HSBC BANK USA, N.A., JERRY PAULA RUSSELL, N.J. Notary Public, DEUTSCHE BANK TRUST CORP. - AMERICAS, SERVICELINK HOLDINGS, LLC., MONTGOMERY VILLAGE FOUNDATION, REMAX REALTY GROUP, ALAN PRIGAL, JOHN DOES 1-10, Defendants
OPINION AND ORDER
XINIS, UNITED STATES DISTRICT JUDGE
31-page Complaint, Maryland resident Debra Bonilla-Mead seeks
money damages for the alleged “wrongful foreclosure,
assault, home invasion, unlawful business practices, and
intentionally inflicted emotional damages” caused by
“debt collector defendants and their unknown
agents.” Compl., ECF No. 1, p. 5. Although
Bonilla-Mead does not elaborate on her primary claim, she
appears to bring suit under the qui tam provisions of the
False Claims Act, 31 U.S.C. § 3729 et seq.
Plaintiff also avers that this Court retains both
diversity and federal question jurisdiction based on
alleged violations of the Fourteenth Amendment to the United
States Constitution, federal banking laws, the Financial
Institutional Regulation, Reform, and Enforcement Act of 1989
(“FIRREA”),  the Fair Debt Collection Practices Act
of 2012 (“FDCPA”),  the Real Estate Settlement
Procedures Act (“RESPA”),  and the Truth in
Lending Act (“TILA”). Plaintiff also contends she
is entitled to damages under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”) statute.
has paid the filing fee. Nonetheless, this Court retains
broad, inherent power to dismiss an action, or part of an
action, which is frivolous, vexatious, or brought in bad
faith. See Fitzgerald v. First East Seventh Street
Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000);
Crowley Cutlery Co. v. United States, 849 F.2d 273,
277 (7th Cir. 1988).
complaint must include sufficient facts “to state a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The facts as pleaded must raise a right to relief
above the speculative level and amount to “more than
labels and conclusions.” Id. at 555. Indeed,
“courts are not bound to accept as true a legal
conclusion couched as a factual allegation.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations
in the complaint. Id. at 561. Rule 8(d)(1) of the
Federal Rules of Civil Procedure further provides that
complaint allegations “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). “Threadbare
recitals of the elements of a cause of action, supported by
mere statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
following reasons, the qui tam and RICO claims are dismissed
as patently insufficient, while other claims cannot proceed
without amendment. The Court addresses each in turn.
Qui Tam Action
tam action may be brought by a private citizen (popularly
called a “whistle-blower”) against a person or
company that had procured monies from the United States or
payments in the performance of a government contract by fraud
or false statements. Typically, such an action begins under
seal pursuant to the the False Claims Act, a statutory scheme
which permits a whistle-blower who brings the claim on the
government's behalf to recover a portion of the funds
ultimately adjudged to have been procured by fraud.
See 31 U.S.C. §3730(b), (d)(1)-(2). The
government may elect or decline to prosecute the claim on
behalf of the United States. If the government declines to
intervene, the plaintiff, as relator, may nonetheless pursue
the action, but can only do so with the benefit of counsel.
The counsel requirement is grounded in “the same policy
that forbids litigants, whether they are corporations or
other organizations, or individuals, such as member of a
class or shareholders, to be represented by nonlawyers . . .
.” U.S. ex rel. Lu v. Ou, 368 F.3d 773, 775
(7th Cir. 2004), abrogated by U.S. ex rel. Eisenstein v.
City of N.Y., N.Y., 556 U.S. 928 (2009) (citations
Complaint does not remotely state a proper qui tam action.
The Complaint asserts that Defendants' alleged misconduct
led to foreclosure of Bonilla-Mead's property, which she
had purchased in 2006. ECF No. 1, p. 17. Nowhere does the
Complaint set out any fraud that any Defendant committed
against the federal government. What is more, Plaintiff has
mailed Defendants a copy of her Complaint, rendering useless
the qui tam provision designed to keep under seal the False
Claims action pending against Defendants. See 31
U.S.C. § 3730(b)(2). Because of these fundamental
defects, the Court cannot discern a path for the Plaintiff to
pursue a qui tam claim. This claim is dismissed prior to
service on the United States Attorney General, and the case
shall be unsealed.
cause of action under 18 U.S.C. §1964(c) or
“RICO” requires that plaintiff plausibly aver:
“(1) conduct [causing injury to business or property],
(2) of an enterprise, (3) through a pattern, (4) of
racketeering activity.” Sedima S.P.R.L. v. Imrex
Company, Inc., 473 U.S. 479, 496 (1995). “The
object of civil RICO is thus not merely to compensate victims
but to turn them into prosecutors, ‘private attorneys
general,' dedicated to eliminating racketeering
activity.” Rotella v. Wood, 528 U.S. 549, 557
(2000), quoting Klehr v. A.O. Smith Corp., 521 U.S.
179, 187 (1984). Racketeering activity is defined as the
commission any offense enumerated at 18 U.S.C. §
1961(1), which includes any act or threat involving murder,
kidnaping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, dealing in a controlled substance,
and counterfeiting. The Court cannot discern from the
Complaint any acts of racketeering allegedly committed by
Defendants. Nor does the Complaint plead facts from which
this Court can identify a RICO violation. Incantations of the
RICO statute or generalized statements about RICO actions are
not sufficient. The claim, therefore, is dismissed.
Court has thoroughly examined the Complaint, which is
confusing and, at times, incomprehensible. Peppered
throughout are references to violations of the Fourteenth
Amendment, FIRREA, FDCPA, RESPA, and TILA. In this respect,
the Complaint falls woefully short of the pleading
requirements set forth in Rule 8(a) of the Federal Rules of
Civil Procedure. Rule 8(a) requires that a Complaint include
a “short and plain statement” of the facts
supporting each cause of action, the role that each Defendant
played in such violations, and the claimed damages the
Plaintiff suffered as a result. The current Complaint is
replete with pronouncements of law and references to cases
which appear wholly unrelated to this suit. The Court,
affording the Complaint a generous reading, is hard-pressed
to ascertain even the basic contours of Plaintiff's
claims. The Complaint has not put Defendants on fair notice
of that which they are to defend. Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 512 (2002).
Court will grant Bonilla-Mead one opportunity to amend her
Complaint. The Amended Complaint must comply with Rule 8(a)
and include a short plain statement as to her claims against
each Defendant, how each Defendant caused her harm, the
nature of the harm, and the approximate date(s) on which each
Defendant committed the claimed violations. Plaintiff must
also address whether she and any of the Defendants have
engaged in prior litigation related to the real property
described in the Complaint. In light of this Court's
ruling, Plaintiff's motion for temporary restraining
order (ECF No. 2), is denied as moot.
it is this 24th day of October 2018, by the United States
District Court for the District ...