Agomuoh v. PNC Fin. Servs. Grp.
| Decision Date | 16 February 2017 |
| Docket Number | Case No.: GJH-16-1939 |
| Parties | EMMANUEL AGOMUOH, et al., Plaintiffs, v. THE PNC FINANCIAL SERVICES GROUP, et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Plaintiffs Emmanuel Agomuoh and Nene Ross bring this pro se action against Defendants the PNC Financial Services Group ("PNC"), the Federal Home Loan Mortgage Corporation ("Freddie Mac"), and the Alba Law Group, P.A. (collectively, "Defendants") for state law claims of negligence, fraudulent concealment, civil conspiracy, and violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 et seq. ("RESPA"), the Maryland Consumer Debt Collection Act, Md. Code Com. Law § 14-201 et seq. ("MCDCA"), the Maryland Consumer Protection Act, Md. Code Com. Law § 13-301 et seq. ("MCPA"), and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). Presently pending before the Court is Defendants' Motion to Dismiss, ECF No. 6. No hearing is necessary. See Loc. R. 105.6. For the following reasons, Defendants' Motion to Dismiss is granted.
On April 30, 2007, Plaintiff Nene Ross executed a promissory note (the "Note"), thereby obtaining a home mortgage loan (the "Loan") for $700,000 to purchase the property located at 5601 Lake Spring Court, Bowie, Maryland 20720 (the "Property"). ECF No. 1 ¶ 3; ECF No. 1-5 at 7.1 In the Note, Ross promised to pay $700,000 plus interest in return for the Loan. ECF No. 1-5 at 7 ¶ 1.2 The Loan was payable to "FNMC3, a division of National City Bank," as Lender. Id. Ross and Plaintiff Emmanuel Agomuoh also executed a Deed of Trust with the Lender to secure payment of the Note. ECF No. 1 ¶ 3; ECF No. 1-5 at 14. The Deed of Trust obligated Plaintiffs, as borrowers, to "pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment and late charges under the Note." ECF No. 1-5 at 16 ¶ 1. The Deed of Trust further provided that upon default by Plaintiffs, failure to cure the default "may result in acceleration of the sums secured by this Security Instrument and sale of the Property." Id. at 26 ¶ 22.
Plaintiffs learned in 2009 that "PNC Mortgage, a division of PNC Bank, N.A. purportedly merged with National City Mortgage and would be receiving Plaintiffs' monthly payments as the new servicer." ECF No. 1 ¶ 9. Plaintiffs contend that PNC's acquisition of their Loan was effectuated by two indorsements — the first by a "Loan Administrator for FNMC named Paula Noble," which was allegedly blank and later voided (the "Paula Noble indorsement") and the second by "'Belenda Luke' as 'Document Control Specialist' for National City Bank," which was also blank (the "Belenda Luke indorsement"). Id. ¶¶ 4-6. In 2011, Plaintiffs were experiencing financial difficulties and sought a modification of their Loan from PNC Mortgage. Id. ¶ 10. Plaintiffs were approved for the Home Affordable ModificationProgram (HAMP) and signed an agreement to that effect on May 17 and 19, 2011 (the "HAMP Agreement"), modifying their Loan. ECF No. 1 ¶ 10; ECF No. 1-6 at 2. One clause of the HAMP Agreement stated that:
In cases where the loan has been registered with MERS [Mortgage Electronic Registration Systems, Inc.] who has only legal title to the interests granted by the borrower in the mortgage and who is acting solely as nominee for Lender and Lender's successors and assigns, MERS has the right: to exercise any or all of those interests, including but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and cancelling the mortgage loan.
ECF No. 1-6 at 6 ¶ L. Thus, based upon this clause, Plaintiffs claim they agreed to grant MERS, and apparently only MERS, the right to foreclose and sell. ECF No. 1 ¶ 21. Plaintiffs allege, however, that PNC Bank recorded an "Appointment of Substitute Trustees"4 to hold the Deed of Trust in November 2013. Id. ¶ 23. Additionally, in September 2014, Plaintiffs learned that "their loan had been purchased, guaranteed, and/or securitized by Freddie Mac." ECF No. 1 ¶ 13. Plaintiffs claim that "PNC Mortgage was never the lender in connection with Plaintiff's loan transaction and merely became the successor servicer to loans sold to and likely securitized by Freddie Mac." Id. ¶ 16.
From October 2014 to June 2015, Plaintiffs attempted to obtain a second loan modification after "experiencing later financial difficulties." ECF No. 1 ¶ 25. In June 2015, PNC sent Plaintiffs a letter "indicating that certain loss mitigation options were not available, but that they were eligible for a short sale option."5 Id. ¶ 27. Plaintiffs sought the assistance of Boston Community Capital ("BCC"), a nonprofit organization, to engage in the short-sale negotiationswith PNC. Id. ¶ 28. While the parties were negotiating the short-sale, PNC scheduled a foreclosure sale of Plaintiffs' home. Id. ¶ 30. Plaintiffs' BCC representative admonished PNC that such an action was prohibited as "dual-tracking," a situation in which a mortgage servicer is reviewing loss mitigation requests, but simultaneously pursues foreclosure. Id. ¶ 30. Despite the "warning," however, PNC refused to stop the foreclosure sale and directed Alba Law Group, PA, to schedule and conduct a foreclosure sale. Id. ¶ 31.
Plaintiffs contend that PNC falsely stated that Plaintiffs were not eligible for any more loan modification requests. Id. ¶ 33. Plaintiffs further assert that PNC made false representations that it was not the owner or assignee of the Loan, and thus PNC's programs and standards should not have applied to Plaintiffs' loan modification requests. Id. ¶ 36. Plaintiffs allege that while "Freddie Mac expressly states on its website that borrowers are eligible for at least two different types of loan modifications," PNC did not consider Plaintiffs for either of these kinds of programs. Id. ¶ 43. Plaintiffs contend that they only received one loan modification, and homeowners are denied loan modifications only "if they have received three or more modifications." Id. ¶ 44.
Plaintiffs further argue that because only loans owned by Freddie Mac, Fannie Mae, or other government-sponsored entities are eligible for HAMP loan modification, that Plaintiffs' Loan must have been owned by one of these entities and not by PNC. Id. ¶ 37. Plaintiffs allege that PNC cannot prove transfer of Plaintiffs' Note from the original lender, FNMC/National City Bank, to PNC, because the "chain of endorsements," or checks, were blank or fraudulent. Id. ¶¶ 38-40, 4-8. Therefore, Plaintiffs claim that "PNC owns no debt secured by Plaintiffs' property." Id. ¶ 41. Plaintiffs contend that Alba Law Group, through its Substitute Trustees, also aided and abetted PNC in PNC's fraudulent representations that it was the holder of the Note. Id. ¶¶ 45-46.Plaintiffs allege that Alba negligently failed to examine the original instruments to determine whether PNC was in fact the holder of the Note. Id. ¶ 46.
Plaintiffs filed a Chapter 13 bankruptcy petition on January 23, 2015. ECF No. 1 ¶ 49. In that proceeding, PNC filed a "Proof of Claim"6 on August 2015. Id. The Proof of Claim was filed by Alba on behalf of PNC Bank. Id. ¶ 50. Plaintiffs allege that this was an additional fraudulent representation by Alba, as PNC was not the owner of the Note. Id. Finally, Plaintiffs allege that Freddie Mac cannot prove it actually owns Plaintiffs' or other promissory Notes, so it directs its Mortgage Servicers to foreclose on Freddie Mac's behalf. Id. at 23. Hence, Plaintiffs argue, Freddie Mac is also responsible for PNC foreclosing on their home when PNC did not in fact hold Plaintiffs' Note. Id. at 24.
Plaintiffs filed the instant Complaint in this Court on June 16, 2016. ECF No. 1. Plaintiffs allege: i) Negligent acceleration against PNC and Alba, ii) Negligence - false proof claim against Alba and PNC, iii) Fraudulent concealment against PNC, Alba, and Freddie Mac, iv) Violations of RESPA against PNC, v) Negligence based upon violations of RESPA, vi) Civil conspiracy against Alba, PNC, and Freddie Mac, vii) Violation of the Maryland Consumer Debt Collection Act against PNC and Alba, viii) Maryland Consumer Protection Act against PNC and Freddie Mac, and ix) Violation of the Fair Debt Collection Practices Act against Alba. Defendants filed their Motion to Dismiss on August 29, 2016. ECF No. 6. Plaintiffs filed their Response on September 19, 2016. ECF No. 10. Defendants filed their Reply on October 6, 2016. ECF No. 11.
"It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court." Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006). Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. See Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003), aff'd, 85 F. App'x 960 (4th Cir. 2004). Once a challenge is made to subject matter jurisdiction, Plaintiffs bear the burden of proving that subject matter jurisdiction exists. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999); see also Ferdinand-Davenport v. Children's Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010).
The Court should grant a Rule 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans, 166 F.3d at 647. In ruling on a motion to dismiss under Rule 12(b)(1), the Court "should regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Ferdinand-Davenport, 742 F. Supp. 2d at 777 (quoting Evans, 166 F.3d at 647); see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Defendants may also "test the adequacy of a complaint by way...
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