United States District Court, D. Maryland, Southern Division
KEVIN C. BETSKOFF, Plaintiff,
DIANE S. ROSENBERG & ASSOCS., LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge.
September 22, 2006, Plaintiff Kevin Betskoff refinanced his
mortgage and obtained a $436, 500.00 loan secured by the real
property he owned at 3423 Nottingham Road, Westminster,
Maryland 21157 (the "Property"). Compl. ¶ 9,
ECF No. 1; Pl.'s State Ct. Countercl. ¶¶ 14,
17, 19, ECF No. 12-4. In about 2008, Betskoff no longer could
"make the requested mortgage payments," due to a
"decline in [his] income and [an] increase in monthly
mortgage payments throughout the repeated transfers of his
mortgage servicing and ARM adjustments." Pl.'s State
Ct. Countercl. ¶ 27. Diane Rosenberg and her associates
at Diane S. Rosenberg and Associations, LLC, as Substitute
Trustees, initiated a foreclosure action against Betskoff in
Carroll County Circuit Court, No. 06-C-13-064213 (the
“Foreclosure Action”), Compl. ¶ 9, resulting
in the sale of the Property and a state court Final Order of
Ratification, State Ct. Docket,
&detailLoc=ODYCIVIL. Betskoff, who is proceeding without
counsel, then filed this lawsuit against Diane Rosenberg and
Diane S. Rosenberg and Associations, LLC (“Substitute
Trustees”), challenging their conduct in conjunction
with the foreclosure on his Property. Compl.
pending is the Substitute Trustees' Motion to Dismiss,
ECF No. 12, which the parties fully briefed, ECF Nos. 12-1,
14, 15. A hearing is not necessary. See Loc. R.
105.6. Because res judicata bars Betskoff's
claims against the Substitute Trustees, I will dismiss the
case without reaching the alternative grounds Defendants
raise for dismissal.
Substitute Trustees filed the Foreclosure Action against
Betskoff in Carroll County Circuit Court on June 21, 2013.
State Ct. Docket. In response, Betskoff filed a third-party
complaint and counterclaims against them on August 19, 2013,
both of which the state court dismissed with prejudice on
April 3, 2014. Id. The court issued an order
declaring that its dismissal was a final order under Maryland
Rule 2-602(b). Id. Betskoff filed an appeal to the
Court of Special Appeals on April 28, 2014, and the Maryland
intermediate court affirmed the state circuit court on June
10, 2015, id.; see Betskoff v. Rosenberg,
No. 0380 (Md. Ct. Spec. App. June 10, 2015) (unreported), ECF
No. 12-5. Betskoff filed a petition for writ of certiorari to
the Maryland Court of Appeals, which was denied on September
23, 2015. State Ct. Docket.
filed another motion to dismiss the Foreclosure Action on May
22, 2017, which the court denied on July 12, 2017.
Id. Then, on March 7, 2018, he removed the
Foreclosure Action to this Court. Id.; see
Rosenberg v. Betskoff, No. GLR-18-672 (D. Md.).
Following the removal, the Substitute Trustees sold the
Property and filed a Notice of Report of Sale in state court
on March 27, 2018. State Ct. Docket. After this Court
determined that it did not have jurisdiction over the
Foreclosure Action and remanded the case to state court on
April 25, 2018, ECF No. 29 in GLR-18-672, the state court
issued a Final Order of Ratification on May 14, 2018, State
Ct. Docket. Betskoff filed a petition to set aside the
foreclosure sale in state court on May 23, 2018, which the
court denied on July 2, 2018. State Ct. Docket.
point, when the state court had issued a Final Order of
Ratification but the Foreclosure Action remained open,
Betskoff filed his Complaint in this Court against the
Substitute Trustees on July 12, 2018, alleging violations of
the Fair Debt Collections Practices Act, 15 U.S.C. §
1692 et seq. (“FDCPA”), as well as state
law claims arising from the foreclosure of his Property.
he continued to file motions in the Foreclosure Action. On
July 23, 2018, he filed a motion for sanctions in state
court, which the court denied on August 3, 2018. State Ct.
Docket. On August 15, 2018, he filed both a motion for
reconsideration in the state circuit court and an appeal to
the Court of Special Appeals. Id. The state circuit
court denied the motion for reconsideration on September 13,
2018, and Betskoff supplemented his appeal on October 4,
2018. Id. The state circuit court issued an order
granting possession of property, and Betskoff filed a motion
for reconsideration on October 31, 2018, which the court
denied on November 30, 2018. Id. On April 4, 2019,
the Court of Special Appeals dismissed his appeal.
Substitute Trustees move to dismiss pursuant to Rule
12(b)(6), under which Betskoff's pleadings are subject to
dismissal if they “fail[ ] to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). A
pleading 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, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has
facial plausibility when the [claimant] pleads factual
content that allows the court to draw the reasonable
inference that the [opposing party] is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
“Although courts should construe pleadings of
self-represented litigants liberally, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), legal conclusions or
conclusory statements do not suffice, Iqbal, 556
U.S. at 678.” Moore v. Jordan, No.
TDC-16-1741, 2017 WL 3671167, at *4 (D. Md. Aug. 23, 2017).
12(b)(6)'s purpose “is to test the sufficiency of a
[claim] and not to resolve contests surrounding the facts,
the merits of a claim, or the applicability of
defenses.” Velencia v. Drezhlo, No.
RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012)
(quoting Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense,
such as res judicata, “clearly appears on the
face of the [pleading], ” however, the Court may rule
on that defense when considering a motion to dismiss.
Kalos v. Centennial Sur. Assocs., No. CCB-12-1532,
2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012) (quoting
Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir.
2000) (citation and quotation marks omitted)).
brings a federal statutory claim under the FDCPA and state
tort claims of fraud and negligence against the Substitute
Trustees. Compl. ¶¶ 35-57. In response, Defendants
raise the affirmative defense of res judicata, and
they argue in the alternative that Betskoff fails to state a
claim. Defs.' Mem. 1. When, as here, federal court
litigants assert that a state court judgment has preclusive
effect, “[the] federal court must give to [the] state
court judgment the same preclusive effect as would be given
that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Under
Maryland law, res judicata, or claim preclusion,
provides grounds for dismissal if a defendant establishes
that “(1) the present parties are the same or in
privity with the parties to the earlier dispute, (2) the
claim presented is identical to the one determined in the
prior adjudication, and (3) there has been a final judgment
on the merits.” Capel v. Countrywide Home Loans,
Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md.
Feb. 3, 2010) (citing Anne Arundel County Bd. of Educ. v.
Norville, 887 A.2d 1029, 1037 (Md. 2005)).