Jaigobin v. U.S. Bank, NA

          MEMORANDUM OPINION

          Deborah K. Chasanow, United States District Judge

         Presently pending and ready for resolution is the motion to dismiss filed by Defendants U.S. Bank NA (Defendant U.S. Bank) and JPMorgan Chase Bank, N.A. (Defendant Chase) (collectively, "Defendants") . (ECF No. 8) . The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted.

         I. Background

         A. Factual Background

         The following facts are either alleged in the complaint or taken from matters of public record of which the court may take judicial notice.^[1] In 2007, Plaintiff purchased the property located at 12609 Hill Creek Lane, Potomac, Maryland 20854 (the "Property"). To finance the purchase of the Property, Plaintiff obtained a loan from Washington Mutual Bank, F.A. ("WaMu"), evidenced by an adjustable rate note (the "Note") and secured by a deed of trust (the "Deed of Trust").

         On June 12, 2008, Plaintiff filed a Chapter 11 Petition in Bankruptcy in the United States Bankruptcy Court of the District of Maryland (the "Bankruptcy Court".^[2] (ECF No. 8-1, at 3; see also ECF No. 14, at 3) .

         "On September 25, 2008, the Office of Thrift Supervision ("OTS") closed WaMu, and the [Federal Deposit Insurance Corporation ("FDIC")] was named as receiver." (ECF No. 8-1, at 2; see also ECF No. 14, at 3) . "[Defendant] Chase acquired substantially all of WaMu's assets[, ] while the FDIC retained its liabilities and gave notice that December 30, 2008 was the last date to file a claim with the FDIC concerning WaMu." (Id.)

         "On June 3, 2013, [Defendant] Chase, as attorney-in-fact for the FDIC, as Receiver of WaMu, assigned the Deed of Trust to [Defendant] U.S. Bank (the "Assignment")." (ECF No. 8-1, at 3; see also ECF No. 14, at 3) . "[Defendant] Chase recorded the Assignment in the Land Records of Montgomery County, Maryland[.]" (Id.) "On or about November 16, 2013, a notice providing for the transfer of the secured claim under the loan from WaMu to [Defendant] U.S. Bank was filed with the Bankruptcy Court, along with a notation that Select Portfolio Servicing, Inc. ("SPS") was the servicer of the loan." (Id.)

         "On May 6, 2016, [Defendant] U.S. Bank filed a Motion for Authorization to Proceed with Enforcement of Security Interest Based on Post Confirmation Default, or in the alternative, for Order Granting Relief from Automatic Stay." (Id.) "By order dated October 7, 2016, the Bankruptcy Court held that Plaintiff had defaulted on his payment plans to [Defendant] U.S. Bank under his Fourth Amended Plan of Reorganization and granted [Defendant] U.S. Bank relief from the automatic stay to foreclose on the Property." (Id.)

         Under the Fourth Amended Plan of Reorganization, "Plaintiff agreed to a monthly payment arrangement of $3, 701.00 to Wells Fargo and [to] continue the process of loan modification with the lender."^[3] (ECF No. 1, at 5 ¶ 16). The Fourth Amended Plan of Reorganization "sought to satisfy all pre-petition arrears of $22, 747.85 over sixty months." (Id. at 5 ¶ 17). "Plaintiff discontinued his payments which were in excess of $148, 662.60 because Wells Fargo failed to [account properly] for his good faith attempts to follow the conditions of the Fourth Amended Plan." (Id. at 5 ¶ 19) .

         "On July 7, 2017, James Clarke, as substitute trustee for [Defendant] U.S. Bank, filed a foreclosure action in the Circuit Court for Montgomery County, Maryland against Plaintiff and his wife, Case No. 434197V ("Foreclosure Action")."^[4] (ECF No. 8-1 at 3-4; see also ECF No. 14 at 3-4).

         B. Procedural Background

         On June 15, 2018, Plaintiff filed a complaint setting forth ten causes of action: lack of standing/wrongful foreclosure (Claim 1); violation of the Maryland Consumer Protection Act ("MCPA") (Claim 2); violation of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") (Claim 3); Violation of the Fair Debt Collection Practices Act("FDCPA") (Claim 4); fraudulent misrepresentation and failure to disclose (Claim 5); breach of contract (Claim 6); unjust enrichment (Claim 7); negligence (Claim 8); rescission (Claim 9); and civil conspiracy (Claim 10). (ECF No. 1). Plaintiff's complaint also sought declaratory and injunctive relief. On September 5, 2018, Defendants filed a motion to dismiss. (ECF No. 8). On October 09, 2018, Plaintiff filed a motion for leave to file his response late, (ECF No. 13), and filed his response, (ECF No. 14). On October 23, 2018, Defendants replied, (ECF No. 15), and did not oppose Plaintiff's motion for leave to file his untimely response. The motion will be granted and the response was considered.

         II. Standard of Review

         The purpose of a motion to dismiss under Rule 12(b) (6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4^th Cir. 2006) . A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a) (2). "Rule 8(a) (2) still requires a 'showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007) . That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

         At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4^th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4^th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4^th Cir. 1989) . Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4^th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4^th Cir. 2009) . Ultimately, a complaint must "'permit[ ] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4^th Cir. 2010) (quoting Iqbal, 556 U.S. at 679) .

         A plaintiff asserting fraud must also satisfy "the heightened pleading standards of Federal Rule of Civil Procedure 9 (b), which requires a plaintiff to plead 'with particularity the circumstances constituting fraud.'" Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 781 (4^th Cir. 2013) (quoting Fed.R.Civ.P. 9(b)). The circumstances include "the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Harrison, 176 F.3d at 784 (citations and internal quotation marks omitted) . The purposes of Rule 9 (b) are to provide the defendant with sufficient notice of the basis for the plaintiff's claim, protect the defendant against frivolous suits, eliminate fraud actions where all the facts are learned only after discovery, and safeguard the defendant's reputation. Id.

         III. Analysis

         As a threshold issue, Defendants contend that the doctrine of claim splitting bars all of Plaintiff's claims. Like res judicata, "claim splitting 'prohibits a plaintiff from prosecuting its case piecemeal[ ] and requires that all claims arising out of a single wrong be presented in one action.'" Sensormatic Sec. Corp. v. Sensormatic Elec. Corp. (Sensormatic I), 329 F.Supp.2d 574, 579 (D.Md. 2004) (quoting Myers v. Colgate-Palomolive Co.,102 F.Supp.2d 1208, 1224 (D.Kan. 2000)). Unlike res judicata, however, a final judgement in the first suit is not required to bar the second suit. See Sensormatic Sec. Corp. v. Sensormatic Elec Corp. (Sensormatic II),452 F.Supp.2d 621, 626 n.2 (D.Md. 2006); see also 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4406 (3d ed. 2019) ("In dealing with simultaneous actions on related theories, courts at times express principles of "claim splitting" that are similar to claim preclusion, but that do not require a prior judgment.") . Instead, the court is only required to "assess whether the second suit raises issues that should have been brought in the first." Curtis v. Citibank, N.A.,226 F.3d 133, 140 (2^d Cir. 2000). Defendants contend that Plaintiff filed a motion to dismiss in the pending Foreclosure Action that "raised the same allegations and arguments that Plaintiff makes in this case." (ECF No. 8-1, at 7) . Defendants note that the state court "rejected all of Plaintiff's arguments and denied his motion to dismiss[]" and concludes that "the doctrine of claim splitting bars Plaintiff's claims in this action because they arise from the same transaction as the Foreclosure Action." (Id.) Plaintiff, misunderstanding the ...