Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bird v. Bank of New York Mellon Trust Co.

United States District Court, D. Maryland

September 30, 2019

PAUL CHARLES BIRD SR., Plaintiff,
v.
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., et al., Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Bank of New York Mellon Trust Co., N.A. (“BONY”) and Specialized Loan Servicing LLC's (“SLS”) Motion to Dismiss and/or for Summary Judgment (“BONY/SLS Motion”) (ECF No. 9); the Motion of Ocwen Loan Servicing, LLC, as Successor-in-Interest to Ocwen Federal Bank, FSB to Dismiss Plaintiff's Complaint (“Ocwen Motion”) (ECF No. 12); and J.P. Morgan Chase Bank, N.A.'s (“JP Morgan Chase”) Motion to Dismiss (ECF No. 23). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant the Motions.

         I. BACKGROUND[1]

         This Court is familiar with many of the facts underlying Plaintiff Paul C. Bird's Complaint from previous litigation, the relevant portion of which follows:

On June 8, 1990, [Bird] and Brenda Lee Armstrong executed a promissory note (“Note”) secured by a deed of trust (“Deed”) in favor of Union Federal Savings Bank (“Union Federal”) in the amount of $111, 481.00 to finance the purchase of real property located at 3416 Hopkins Avenue, Baltimore County, Maryland 21227 (the “Subject Property”). The Deed was recorded among the Land Records of Baltimore County in Liber 8504, folio 533.
On August 26, 1996, Union Federal assigned the Note to the Secretary of the United States Department of Housing and Urban Development (“HUD”), and the assignment was recorded among the Land Records of Baltimore County at Liber 11787, folio 097. Subsequently, on October 27, 1997, an allonge[2] to the Note was executed by HUD to Ocwen Federal Bank, FSP (“Ocwen”). HUD assigned the Deed to Ocwen that same day, and the assignment was recorded among the Land Records of Baltimore County in Liber 12679, folio 507.
On November 15, 2000, Ocwen assigned the Deed to JP Morgan Chase Manhattan Bank as trustee c/o Residential Funding (“JP Morgan Chase”), and that assignment was recorded among the Land Records of Baltimore County at Liber 23237, folio 028. On that same day, Ocwen executed an allonge that contained an open indorsement. Subsequently, on December 20, 2000, Ocwen executed [the Lost Note Affidavit][3] to Homecomings Financial Network (“Homecomings”)…

Bird v. Specialized Loan Servicing LLC, No. CV RDB-16-3743, 2017 WL 1001257, at *1-2 (D.Md. Mar. 15, 2017) (internal citations and footnotes omitted). Because Bird had stopped making payments on the mortgage, Homecomings's appointee filed a foreclosure against Bird and Armstrong on January 10, 2002. (Compl. Ex. L [“Deed of Trust Analysis”] at 7, ECF No. 5-14). On February 6, 2003, Bird filed a Chapter 13 bankruptcy case in the U.S. Bankruptcy Court for the District of Maryland. See In re Bird, No. 03-52010-JS, 2007 WL 2684265 (Bankr. D.Md. Sept. 7, 2007). In that case, “Bird agreed that JP Morgan was the true claimant.” Id. at *3. Rejecting Bird's arguments, the Bankruptcy Court concluded there was a clear chain of assignments and allonges and no evidence that Ocwen intended to split the Note from the Deed. Id. at *4. The Bankruptcy Court further concluded that Ocwen had validly assigned the Deed and the Note to JP Morgan Chase in November 2000 and that the Lost Note Affidavit was valid. Id.

         On November 21, 2008, Bird filed three lawsuits in the Circuit Court for Baltimore County against JPMorgan Chase and Homecomings, among other defendants, for slander of title and intentional infliction of emotional distress, among other counts. See Bird v. GMAC Mortgage Corp., et al, Case No. 03-C-08-012446 (Cir.Ct.Balt.Cty filed Nov. 21, 2008). The Circuit Court dismissed the case, and Bird did not appeal. (BONY Mot. Dismiss Exs. 17, 18, ECF Nos. 9-17, 9-18).

         In 2013, Bird filed a Chapter 7 bankruptcy case in U.S. Bankruptcy Court for the District of Maryland. See In re Bird, Case No. 13-28238-NVA. Bird argued that both the Deed and the Note were defective and sought to prevent foreclosure on the Subject Property and quiet title. (BONY Mot. Dismiss Ex. 19, ECF No. 9-20). The Bankruptcy Court dismissed the case because Bird's challenge to the Deed and the right to enforce it was barred by res judicata. Id. at 3. This Court affirmed, (BONY Mot. Dismiss Ex. 19, ECF No. 9-20), and the United States Court of Appeals for the Fourth Circuit affirmed this Court, see 620 Fed.Appx. 205 (4th Cir. Oct. 22, 2015). In that same case, SLS filed a motion for relief from stay so it could foreclose on the Subject Property. Specialized Loan Servicing LLC, 2017 WL 1001257, at *1. The Bankruptcy Court granted the motion, and this Court affirmed that ruling. Id. This Court noted that Bird's arguments that SLS “failed to provide a complete, unbroken chain of title, and failed to bring forward the original note prior to filing its motion” and “clearly failed to demonstrate any standing to seek relief from the stay” had already been rejected by the Bankruptcy Court, this Court, and the Fourth Circuit. Id. at *5. As a result, this Court concluded, such claims were res judicata. Id.

         Further, in December 2013, SLS notified Bird that it would be servicing his loan. (BONY Mot. Ex. 1 [“SLS Notification Letter”] at 1-3, ECF No. 9-1). As part of informing Bird about his rights under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. (2018), the SLS Notification Letter stated that “qualified written requests” (“QWR”) needed to take a particular form and be sent to an address in Littleton, Colorado. (Id. at 3). On January 12, 2017, SLS received what Bird called a “qualified written request” at a different address in Highlands Ranch, Colorado.

         On January 8, 2019, Bird sued BONY, SLS, Ocwen, Homecomings, Fairbanks Capital Management, Inc., [4] Residential Funding Co., LLC, JP Morgan Chase, and Huntington National Bank, formerly Union Federal. (ECF Nos. 1-2, 5). The ten-count Complaint alleges against all Defendants: vacation of void assignments due to violation of “Maryland Code 3-309(a)(b)” (Count I); fraud in the concealment (Count 2); fraud in the inducement (Count 3); intentional infliction of emotional distress (Count 4); quiet title (Count 5); slander of title (Count 6); declaratory relief (Count 7); violations of the Truth in Lending Act (“TILA”) (Count 8); violations of RESPA (Count 9); and recission of void contract (Count 10). (Id. at 1, ¶¶ 94-199). Defendants removed the case to this Court on February 15, 2019. (ECF No. 1).

         On February 21, 2019, BONY and SLS filed their Motion to Dismiss and/or for Summary Judgment. (ECF No. 9). On March 6, 2019, Bird filed a “Motion to strike defendants' motion to dismiss, and Plaintiffs' Federal Rules of Civil Procedure, Rule 56 motion for summary judgment on stated and undisputed claim relying on stipulations of undisputed facts material to the settlement of this claim as admitted and confessed in defendants' Affidavits of Lost Note” (“First Bird Opposition and Motion”). (ECF No. 19). On March 15, BONY and SLS filed a Reply. (ECF No. 28).

         On February 26, 2019, Ocwen filed its Motion of Ocwen Loan Servicing, LLC, as Successor-in-Interest to Ocwen Federal Bank, FSB to Dismiss Plaintiff's Complaint. (ECF No. 12). On March 14, 2019, Bird filed a “Motion to strike defendant Ocwen's motion to dismiss, and Plaintiffs' Federal Rules of Civil Procedure, Rule 56 motion for summary judgment on stated and undisputed claim relying on stipulations of undisputed facts material to the settlement of this claim as admitted and confessed in defendants' Affidavits of Lost Note” (“Second Bird Opposition and Motion”). (ECF No. 27). On March 29, 2019, Ocwen filed a combined Opposition and Reply. (ECF No. 29).

         On March 12, 2019, JP Morgan Chase filed its Motion to Dismiss. (ECF No. 23). On April 2, 2019, Bird filed “Motion to strike defendant JPMorgan Chase Bank's motion to dismiss, and Plaintiffs' Federal Rules of Civil Procedure, Rule 56 motion for summary judgment on stated and undisputed claim relying on stipulations of undisputed facts material to the settlement of this claim as admitted and confessed in defendants' Affidavits of Lost Note” (“Third Bird Opposition and Motion”) (collectively, with Bird's First and Second Opposition and Motion, “Bird's Motions to Strike and for Summary Judgment”).[5](ECF No. 32). On April 8, 2019, JP Morgan Chase filed a Reply. (ECF No. 33).

         II. DISCUSSION

         A. Standards of Review 1.Motion to Dismiss

         The purpose of a Rule 12(b)(6) motion is to “test[ ] the sufficiency of a complaint, ” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.