United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
March 5, 2018, Plaintiffs Om Sharma, Vaughn and Diane Riffe,
Virginia Brown, and Susan Geiselman brought this putative
class action against Rushmore Loan Management Services, LLC
(“Rushmore”), Wilmington Savings Fund Society,
FSB solely as Trustee for BCAT 2014-4TT
(“Wilmington”), and U.S. Bank, NA solely as
Trustee for RMAC 2016-CTT (“U.S. Bank”). This
action follows Brown's voluntary dismissal of a class
action counterclaim filed in a foreclosure action brought by
Wilmington and Rushmore against her in state court. Rushmore
and Wilmington have moved to recover costs and attorneys'
fees incurred in litigating the state court counterclaim
pursuant to Fed.R.Civ.P. 41(d), and have asked this Court to
stay all claims until those costs and fees have been paid.
See ECF Nos. 7, 14. Also pending before the Court is
a Motion to Stay by U.S. Bank and a Motion for an Extension
of Time by all defendants. No. hearing is necessary.
See Loc. R. 105.6. For the following reasons,
Wilmington and Rushmore's Motions are granted in part and
denied in part. U.S. Bank's Motion is denied as moot.
Defendants' Motion for an Extension of Time is granted.
November 6, 2015, a foreclosure action was filed in Baltimore
County Circuit Court against Virginia Brown. ECF No. 14-7 at
Brown and the remaining plaintiffs in this case responded
with a class action counterclaim against Defendants
Wilmington and Rushmore on November 17, 2015 alleging
violations of the Real Estate Settlement Procedures Act
(“RESPA”), the Fair Debt Collection Practices Act
(“FDCPA”), the Maryland Collection Agency
Licensing Act (“MCALA”), and the Maryland
Mortgage Lender Law (“MMLL”). Id. at 5.
In April 2016, Wilmington and Rushmore filed motions to
dismiss. Id. at 6. Plaintiffs responded by amending
their counterclaim complaint in June 2016. Id. at 7.
Wilmington and Rushmore again filed motions to dismiss in
July 2016. Id. at 8. A hearing was scheduled for
March 24, 2017. Id. at 9.
days prior to that hearing, Brown filed a notice of
supplemental authority informing the Court that she had
secured a default judgment against Wilmington and Rushmore on
the MCALA and MMLL claims in November 2016 in a separate
action filed in Baltimore City Circuit Court in April 2015.
Id. Wilmington and Rushmore, previously unaware of
the existence of this action, asked the County Court to stay
the proceedings pending a motion to vacate in Baltimore City.
Id. The County Court agreed, and on May 25, 2017,
the Baltimore City Court vacated the default judgment after
finding that Wilmington and Rushmore had not been properly
served. ECF No. 14-4.
Brown had filed a Second Amended Complaint in Baltimore
County Court on April 6, 2017. ECF No. 14-7 at 9. On February
13 and 14, 2018, Wilmington and Rushmore filed motions to
dismiss in response to the Second Amended Complaint.
Id. at 10. On February 26, 2018, Brown voluntarily
dismissed her counterclaim.
March 10, 2018, she and the remaining class action counter
plaintiffs filed a Complaint in this Court largely echoing
the claims made in her state court Second Amended Complaint.
ECF No. 1. Wilmington and Rushmore moved for an award of
costs and attorneys' fees pursuant to Fed.R.Civ.P. 41(d),
and, if awarded, for the Court to stay proceedings until the
costs and fees are recovered. ECF Nos. 7, 14. Rushmore and
U.S. Bank have also moved to stay proceedings pending the
determination in Blackstone v. Sharma, a MCALA case
that was pending before the Court of Appeals of Maryland.
See ECF Nos. 7, 9. The Court of Appeals of Maryland
issued its opinion in Blackstone v. Sharma, 191 A.3d
1188 (Md. 2018) on August 2, 2018 and denied reconsideration
on October 3, 2018. Plaintiffs then filed an Amended Complaint
in this Court advancing new MMLL theories and abandoning the
previous MCALA theories. ECF No. 25.
41(d) of the Federal Rules of Civil Procedure states that:
plaintiff who previously dismissed an action in any court
files an action based on or including the same claim against
the same defendant, the court:
(1) may order the plaintiff to pay all or part of the
costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied
Defendants seek attorneys' fees, as well as costs.
Although not explicit from the test of the Rule, a court may
also award attorneys' fees from this prior action under
Rule 41(d) when either (1.) the underlying statute at issue
provides for attorneys' fees, or (2.) the court finds
“that the plaintiff has acted ‘in bad faith,
vexatiously, wantonly, or for oppressive reasons.'”
Andrews v. America's Living Centers, LLC, 827
F.3d 306, 311 (4th Cir. 2016) (quoting Alyeska Pipeline
Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 28-59
(1975). “The decision whether and in what amount to
award attorney fees is one committed to the award court's
discretion.” United Food & Commercial Workers,
Local 400 v. Marval Poultry Co., 876 F.2d 346, 350-51
(4th Cir. 1989). This ...