United States District Court, D. Maryland, Southern Division
CHARLES B. DAY, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Nationstar Mortgage, LLC and Federal
Home Loan Mortgage Company's Rule 12(b)(6) Motion to
Dismiss (“Defendants' Motion”) (ECF No.
37).The Court has reviewed Defendants'
Motion and the memoranda related thereto. No. hearing is
deemed necessary. Local Rule 105.6 (D. Md.). For the reasons
set forth below, the Court GRANTS IN PART AND DENIES IN PART
Standard of Review
Rule of Civil Procedure 12(b)(6) provides for “the
dismissal of a complaint if it fails to state a claim upon
which relief can be granted.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012). This rule's purpose “is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Id. (quoting
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4thCir. 2006)). In doing so, the Court must
keep in mind the requirements of Fed.R.Civ.P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), when
considering a motion to dismiss pursuant to Rule 12(b)(6).
Specifically, a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must
state “a plausible claim for relief, ” as
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice, ” Iqbal, 556 U.S. at 678-79. See
Velencia, 2012 WL 6562764, at *4 (discussing standard
from Iqbal and Twombly).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. At this
stage of the proceedings, the Court must accept the well pled
facts alleged in complaint as true. See Aziz v.
Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). With these
principles in mind, the Court now turns to the specific
allegations set forth in the SAC.
Plaintiffs' Factual Allegations Against Federal Home
Loan Mortgage Company are Sufficient.
state that Nationstar is the agent of the Federal Home Loan
Mortgage Company (“FHLMC” or “Freddie
Mac”), and therefore Freddie Mac is liable under the
theory of respondeat superior. SAC ¶74.
Plaintiffs' rely upon Proctor v. Wells Fargo Bank,
N.A., 289 F.Supp.3d 676 (D. Md. 2018) and Cezair v.
JP Morgan Chase Bank, N.A., Civ. A. No. DKC-13-2928,
2014 WL 4295048 (D. Md. Aug. 29, 2014). Clearly, Plaintiffs
are of the view that Freddie Mac bears vicarious
responsibility for the actions of Nationstar.
make no further challenge to Plaintiffs' theory in their
reply memorandum. Accordingly, the Court will give no
consideration of Defendants' contention here. The Court
DENIES Defendants' Motion based solely on the challenge
that Plaintiffs did not allege misconduct attributable to
Plaintiffs Have Sufficiently Presented a Claim Under the
Maryland Consumer Debt Collection Act.
state in the SAC that Defendants violated the Maryland
Consumer Debt Collection Act (“MCDCA”) found at
Md. Code Ann., Com. Law, Sec. 14-202(8) (Lexis/Nexis 2013
Replacement Volume). Specifically, Plaintiffs allege that
Defendants violated the act by “collecting and/or
claiming a right and/or attempting to collect on a debt that
Defendants had no right to collect when Defendants knew they
were not holders of the Note and had no right to collect
payment under the Note.” SAC ¶68.
statute states that a debt collector may not “claim,
attempt, or threaten to enforce a right with knowledge that
the right does not exist.” Remedies for a violation
include “damages proximately caused . . . including
damages for emotional distress or mental anguish suffered
with or without physical injury.” Md. Code Ann., Com.
Law, Sec. 14-203 (Lexis/Nexis 2013 Replacement Volume).
Furthermore, the MCDCA prohibits a party from
“attempting to enforce a right with actual knowledge or
with reckless disregard as to the falsity of the existence of
the right.” Kouabo v. Chevy Chase Bank,
F.S.B., 336 F.Supp.2d 471, 476 (D. Md. 2004).
parties agree that Nationstar sent correspondence, dated
March 18, 2016, which indicated that “a foreclosure
action may be filed in court as early as 45 days from the
post mark date of this notice.” Plaintiffs allege, and
Defendants did not dispute, that there was no actual
“filing” for the foreclosure action until nearly
a year later, on March 19, 2017. These facts are nearly
identical to the circumstances set forth in the
Cezair, this Court denied the defendant's motion
to dismiss. The underlying notice to the mortgagor in
Cezair also indicated the that foreclosure sale
“may” occur at any time after 45 days from the
date of the notice. However, the law prohibits such a sale,
unless the 45 days are preceded by the “service of
process” of the foreclosure order to docket (or
complaint to foreclose) on residential property and all other
papers filed with the court. Md. Code Ann., Real Prop. Sec.
7-105.1(n) (Lexis/Nexis 2013 Replacement Volume). As more
plainly stated, “when service of the
foreclosure order to docket is made, the notice to occupants
should be made simultaneously, and not when the foreclosure
order to docket is filed in the Circuit Court, which
would occur before service.” Cezair, at *10.
Here, there is no indication that a filing of the
foreclosure order occurred before the service of the
notice. Accordingly, “if such a statement is made
before the legal right to do so exists, it can constitute a
threat to act that is made with knowledge of the threat's
order to overcome a motion to dismiss regarding a MCDCA
claim, Plaintiffs must also satisfy the burdens imposed by
Federal Rule of Civil Procedure 9(b) which states that
“[i]n alleging fraud or mistake, a party must state
with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.” The
guiding principles for illuminating the sufficiency of
allegations that satisfy this heightened standard, are
adequately stated in Harrison v. Westinghouse Savannah
River Co., 176 F.3d 776 (4th Cir. 1999).
There, the court pointed out that the circumstances required
to be pled are, “the time, place, and contents of the
false representations, as well as the identity of the person
making the ...