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Bell v. Deutsche Bank National Trust Co.

United States District Court, D. Maryland

January 25, 2019

DIANA M. BELL, et al., Plaintiffs,


          George L. Russell, III, United States District Judge

         THIS MATTER is before the Court on Defendants Deutsche Bank National Trust Company (“Deutsche Bank”) and Ocwen Loan Servicing, LLC's (“Ocwen”) Motion to Dismiss the Complaint with Prejudice (ECF No. 6), [1] Defendants BWW Law Group, LLC (“BWW”) and Carrie M. Ward's Motion to Dismiss (Bell II, ECF No. 7), and Plaintiffs Diana M. Bell and James F. Bell's (collectively, “the Bells”) Motion for Leave to File Surreply (ECF No. 16).[2] The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant Defendants' Motions and deny the Bells' Motion.

         I. BACKGROUND[3]

         On September 13, 2006, Ms. Bell executed a Deed of Trust with Fremont Investment and Loan to secure repayment of a loan in the original principal amount of $225, 250.00 (the “Loan”). (Compl. at 3, ECF No. 1; Defs.' Mot. Dismiss [“Defs.' Mot.”] Ex. A at 1-2, ECF No. 6-2).[4] The Deed of Trust was recorded as a lien on the residential property located at 2135 Wildwood Trail, Pocomoke City, Maryland 21851 (the “Property”). (Compl. at 3; Defs.' Mot. Ex. A at 1). Ms. Bell is the owner of record for the Property. (Defs.' Mot. Ex. B at 1, ECF No. 6-3). At some point, the Loan was assigned to Deutsche Bank. (See Defs.' Mot. Ex. C at 2, ECF No. 6-4; Pls.' Request Dismiss Defs.' Mot. Dismiss [“Pls.' Opp'n”] Ex. 1 at 1, ECF No. 12-1). On April 2, 2017, Ms. Bell defaulted on the Loan. (Defs.' Mot. Ex. C at 2). BWW sent Ms. Bell a dunning letter on August 22, 2017 (the “Dunning Letter”), attempting to collect the outstanding balance on the Loan. (Compl. at 2; Defs.' Mot. Ex. C at 1; Pls.' Opp'n Ex. 1 at 1).

         On November 9, 2017, Ward and other BWW attorneys initiated a foreclosure action against Ms. Bell in the Circuit Court for Worcester County, Maryland (the “Foreclosure Action”). See Ward v. Bell, No. C-23-CV-17-000380 (Cir. Ct. Worcester Cty. filed Nov. 9, 2017).[5] As part of the Foreclosure Action, Ward submitted to the Circuit Court an affidavit, dated October 30, 2017, attesting to Deutsche Bank's ownership of the Loan and the amounts due and owing on the Loan (the “Affidavit”). (See Compl. at 2; Defs.' Mot. Ex. C at 2-3; Pls.' Opp'n Ex. 1 at 4-5).

         On April 13, 2018, the Bells, proceeding pro se, sued Deutsche Bank, Ocwen, BWW, and Ward. (ECF No. 1; Bell II, ECF No. 1). The identical seven-Count Complaints allege: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (2018); (2) negligence; (3) fraudulent concealment;[6] (4) fraud in the inducement; (5) slander of title; (6) declaratory relief; and (7) rescission under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq. (2018). (Compl. at 8-13, ECF No. 1; Compl. at 8-13, Bell II, ECF No. 1). The Bells seek declaratory relief, money damages, and attorney's fees and costs. (Compl. at 13; Compl. at 13, Bell II).

         On May 25, 2018, Deutsche Bank and Ocwen filed a Motion to Dismiss the Complaint with Prejudice. (ECF No. 6). The Bells filed an Opposition on June 14, 2018. (ECF No. 12). On June 28, 2018, Deutsche Bank and Ocwen filed a Reply. (ECF No. 14). The Bells filed a Motion for Leave to File Surreply on July 30, 2018. (ECF No. 16). To date, the Court has no record that either Deutsche Bank or Ocwen filed an Opposition.

         On May 29, 2018, BWW and Ward filed their Motion to Dismiss. (Bell II, ECF No. 7). The Bells filed an Opposition on June 18, 2018. (Bell II, ECF No. 14). To date, the Court has no record that BWW and Ward filed a Reply.


         A. Motion for Leave to File Surreply

         The Bells request leave of the Court to respond to “new arguments and factual claims” made in BWW's Reply. (Pls.' Mot. Leave File Surreply at 1, ECF No. 16).[7]

         “Unless otherwise ordered by the Court, surreply memoranda are not permitted to be filed.” Local Rule 105.2(a) (D.Md. 2018). Typically, “[s]urreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply.” Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001)).

         The Court will deny the Bells' Motion for at least three reasons. First, BWW never filed a Reply. Second, to the extent the Bells' Surreply could be construed as responding to arguments made in Deusche Bank and Ocwen's Reply, Deutsche Bank and Ocwen did not present any new facts or arguments in their Reply. They only address arguments the Bells raised in their Opposition, or reiterate arguments raised in their Motion. Third, the Bells' Motion does not address any novel arguments or factual assertions. It merely reiterates allegations in the Complaints, sets forth the procedural history of this case, and attaches documents they referred to in the Complaints. Thus, the Court will deny the Bells' Motion.

         B. Motions to Dismiss

         1. Standard of Review

         The 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 fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), or does not “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)). A claim is facially 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. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of America, N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub nom., Goss v. Bank of America, NA, 546 Fed.Appx. 165 (4th Cir. 2013).

         In considering a Rule 12(b)(6) motion, a court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not accept unsupported or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.

         Pro se pleadings are liberally construed 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)); accord Brown v. N.C. Dep't of Corr., 612 F.3d 720, 722 (4th Cir. 2010). Pro se complaints are entitled to special care to determine whether any possible set of facts would entitle the plaintiff to relief. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). But even a pro se complaint must be dismissed if it does not allege “a plausible claim for relief.” Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec.4, 2012) (citation and internal quotation marks omitted). “While pro se complaints may ‘represent the work of an untutored hand requiring special judicial solicitude,' a district court is not required to recognize ‘obscure or extravagant claims defying the most concerted efforts to unravel them.'” Weller v. Dep't of Soc. Servs. for Balt., 901 F.2d 387, 391 (4th Cir.1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir.1985)).

         2. Relevant Materials and Allegations

         Before reaching the merits of Defendants' Motions, the Court must determine which extra-pleading materials it can consider in assessing the Motions and address the Bells' attempts to amend their Complaints through their Opposition.

         i. Extra-pleading materials

         The general rule is that a court may not consider extrinsic evidence when resolving a Rule 12(b)(6) motion. See Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D.Md. 2011). But this general rule is subject to several exceptions. First, a court may consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic, see Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006). Second, a court may consider documents referred to and relied upon in the complaint-“even if the documents are not attached as exhibits.” Fare Deals, Ltd. v. World Choice, Inc., 180 F.Supp.2d 678, 683 (D.Md.2001); accord New Beckley Mining Corp. v. Int'l Union, United Mine Workers of America, 18 F.3d 1161, 1164 (4th Cir. 1994). Third, a Court may consider matters of public record. Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

         The Bells attach several documents to their Opposition, including: (1) a mortgage fraud analysis from Fraud Stoppers, (Pls.' Opp'n Ex. 1 at 25-28); (2) the Dunning Letter, (id. at 1); (3) a September 20, 2017 letter from the Bells to BWW disputing the debt in the Dunning Letter, (id. at 2); (4) a September 25, 2017 response from BWW to the dispute letter, (id. at 3); (5) the Affidavit, (id. at 4-5); (6) their marriage certificate and Mr. Bell's power of attorney for Ms. Bell, (id. at 10-16); and (7) credit reports from Experian and Equifax, (id. at 33-37).[8] Only the Dunning Letter and the Affidavit are referred to and relied on in the Complaints, and Defendants do not dispute their authenticity. Indeed, Deutsche Bank and Ocwen also attach the Dunning Letter and the Affidavit to their ...

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