United States District Court, D. Maryland
DIANA M. BELL, et al., Plaintiffs,
DEUTSCHE BANK NATIONAL TRUST COMPANY, et al., Defendants.
L. Russell, III, United States District Judge
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),
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). 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
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). 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).
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). 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
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; (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,
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.
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.
Motion for Leave to File Surreply
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.
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)).
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
Motions to Dismiss
Standard of Review
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).
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.
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)).
Relevant Materials and Allegations
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.
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
Travel.com, 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).
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). 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 ...