United States District Court, D. Maryland
Deborah K. Chasanow, United States District Judge
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.
following facts are either alleged in the complaint or taken
from matters of public record of which the court may take
judicial notice. 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").
12, 2008, Plaintiff filed a Chapter 11 Petition in Bankruptcy
in the United States Bankruptcy Court of the District of
Maryland (the "Bankruptcy Court". (ECF No. 8-1, at
3; see also ECF No. 14, at 3) .
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
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
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
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." (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) .
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")." (ECF No. 8-1 at 3-4; see also ECF
No. 14 at 3-4).
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.
Standard of Review
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 (4th 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).
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 (4th Cir. 1999) (citing Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)). In evaluating the complaint,
unsupported legal allegations need not be accepted.
Revene v. Charles Cty. Comm'rs, 882 F.2d 870,
873 (4th 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 (4th Cir. 1979);
see also Francis v. Giacomelli, 588 F.3d 186, 193
(4th 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 (4th Cir.
2010) (quoting Iqbal, 556 U.S. at 679) .
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 (4th 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.
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 (2d 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 ...