United States District Court, D. Maryland
David Copperthite, United States Magistrate Judge.
Wells Fargo Home Mortgage ("'Defendant"), moves
this Court to dismiss the Complaint of David Whyte
("Plaintiff'), for violation of the Maryland
Mortgage Fraud Protection Act ("MMFPA") (Count I),
Breach of Contract (Count II), and Negligence (Count III)
(the "Motion to Dismiss") (ECF No. 6). After
considering the Motion to Dismiss and the responses thereto
(ECF Nos. 10, 16), the Court finds that no hearing is
necessary. See Loc.R. 105.6 (D.Md. 2018). For the
reasons stated herein, the Court GRANTS Defendant's
Motion to Dismiss.
reviewing a motion to dismiss, this Court accepts as true the
facts alleged in the challenged complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388. 390 (4th Cir. 2011). On or
about February 25, 2014, Plaintiff refinanced a home mortgage
for his primary residence with Wells Fargo. ECF No. 1-1 at 6,
¶ 3. In return for receiving a mortgage rate of 3.625%,
Plaintiff was required to enroll in the Wells Fargo Preferred
Payment Plan and open a checking account to allow automatic
withdrawal of the monthly payment due on his mortgage.
Id. ¶¶ 4-8. Initially the monthly payment
was $4, 505 per month and Plaintiff deposited $4, 510.00 per
month to cover the withdrawal. Id. ¶ 9.
prior to June 2017, Wells Fargo adjusted the escrow amount
required for the mortgage payment which resulted in a new
monthly payment of $4, 595.39. Id. ¶ 10. The
increase in the monthly amount due resulted in a shortfall of
$85.39, and no withdrawal occurred. Id. ¶¶
11-12. Wells Fargo did not auto-draft any payments on
Plaintiffs mortgage from June 2017 through December 2017.
Id. ¶¶ 12-13. Plaintiff states he never
received any notice of the nonpayment until a foreclosure
action was instituted by Wells Fargo on December 4, 2017.
Id. ¶¶ 15-17. Plaintiff then contacted
Defendant and was permitted to pay all outstanding arrears
and Defendant dismissed the foreclosure action. Id.
¶¶ 18-19. Plaintiff alleges that Defendant reported
Plaintiffs mortgage late to credit bureaus as well as the
foreclosure action. Id. ¶ 20.
original complaint was filed in the Circuit Court for Howard
County, and removed by Defendant on November 13, 2018 (ECF
No. 1). The parties consented to a Magistrate Judge for all
proceedings, and the case was referred to me on December 19,
2018 (ECF No. 11). The Motion to Dismiss and Responses were
filed accordingly (ECF Nos. 6. 10, 16). This matter is now
fully briefed and the Court has reviewed Defendant's
Motion to Dismiss, as well as the responses thereto. For the
following reasons, Defendant's Motion to Dismiss is
for Motion to Dismiss for Failure to State a Claim
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, not to "resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses." King v. Rubenstein, 825 F.3d 206,
214 (4th Cir. 2016) (quoting Edwards v. City of
Goldsboro. 178 F.3d 231, 243 (4th Cir. 1999)). 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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
exists "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. An inference of a mere possibility of misconduct
is not sufficient to support a plausible claim. Id.
at 679. As stated in Twombly, "[f]actual
allegations must be enough to raise a right to relief above
the speculative level." 550 U.S. at 555. "A
pleading that offers 'labels and conclusions* or 'a
formulaic recitation of the elements of a cause of action
will not do." Nor does a complaint suffice if it tenders
"naked assertions' devoid of 'further factual
enhancement/" Iqbal, 556 U.S. at 678 (internal
citations omitted). Although when considering a motion to
dismiss a court must accept as true all factual allegations
in the complaint, this principle does not apply to legal
conclusions couched as factual allegations. Twombly,
550 U.S. at 555.
argues that Defendant violated the MMFPA by engaging in
mortgage fraud because it knowingly failed to disclose to
Whyte that if there was ever a shortfall in his Wells Fargo
Account, the auto-draft would be terminated and Wells Fargo
would not auto-draft any future payments even if there were
sufficient funds to pay the mortgage due that month. ECF No.
10 at 5-7. In like terms. Plaintiff alleges Defendant
committed a breach of contract because it agreed to
auto-draft payments if there were sufficient funds to make a
monthly mortgage payment and did not provide that if a
payment is missed the auto-draft would be canceled. See
Id. at 7-9. In Count III. Plaintiff alleges that Wells
Fargo was negligent because Wells Fargo owed a duty to
Plaintiff to properly manage his preferred payment plan and
breached that duty by failing to auto-draft funds. ECF No.
1-1 at 12, ¶¶ 31-34.
of MMFPA (Count I)
simply stated, what Plaintiff is alleging factually is that
he did not have sufficient funds to pay June 2017, but by the
next month since he deposited $4, 505 in June and $4, 505 in
July, he had a total of $9, 010 in his account, so Defendant,
under the Preferred Payment Plan, had sufficient funds to
withdraw either June's payment (late) in July or
July's payment in July, since his monthly amount was
increased to $4, 595.39. Plaintiff further alleges in his
complaint that although he may have missed one month (June),
the excess $4, 505 he ...