Bey v. Shapiro Brown & Alt, LLP

• Citation: 997 F.Supp.2d 310
• Decision Date: 21 March 2014
• Docket Number: Civil Case No. PWG–13–1562.
• Parties: Malik BEY, Plaintiff, v. SHAPIRO BROWN & ALT, LLP, et al., Defendants.
• Court: U.S. District Court — District of Maryland

997 F.Supp.2d 310

Malik BEY, Plaintiff,

v.SHAPIRO BROWN & ALT, LLP, et al., Defendants.

Civil Case No. PWG–13–1562.

United States District Court,

D. Maryland,

Southern Division.

Signed Feb. 20, 2014.

Opinion Denying Motion to Amend March 21, 2014.

Malik Bey, Upper Marlboro, MD, pro se.

Bizhan Beiramee, McGinnis Wutscher Beiramee LLP, Bethesda, MD, Craig James Franco, Odin Feldman and Pittleman PC, Reston, VA, for Defendants.

MEMORANDUM OPINION

PAUL W. GRIMM, District Judge.

This Memorandum Opinion resolves three related filings:

(1) Defendant New York Community Bank's (“NYCB”) Motion to Dismiss, ECF No. 17, and supporting Memorandum (“NYCB's Mem.”), ECF No. 17–1; Plaintiff Malik Bey's Response (“Pl.'s NYCB Opp'n”), ECF No. 22; and NYCB's Reply, ECF No. 24;

(2) Defendant Shapiro Brown & Alt, LLP's (“SBA”) Motion to Dismiss, ECF No. 20, and supporting Memorandum (“SBA's Mem.”), ECF 20–1; Plaintiff's Response (“Pl.'s SBA Opp'n”), ECF No. 23; and SBA's Reply, ECF No. 27; and

(3) Plaintiff's Motion to Strike SBA's Reply or, in the Alternative, to File a Surreply, ECF No. 28.

A hearing is unnecessary in this case because the issues adequately are presented on the filings. See Loc. R. 105.6. For the reasons explained below, Defendants' motions to dismiss both will be GRANTED. Plaintiff's Motion to Strike or, in the Alternative, to File a Surreply will be DENIED.

I. BACKGROUND

For purposes of considering Defendants' motions, this Court accepts the facts that Plaintiff alleged in his pro se Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir.2011). In February 2006, Plaintiff purchased his property after executing a promissory note (the “Note”) for a mortgage from Nationwide Mortgage Services, LLC, secured by a Deed of Trust. Am. Compl. ¶ 6, ECF No. 15. The Note provides: “I understand that Lender may transfer this Note.” Note 1, ¶ 1, SBA's Mem. Ex. C, ECF No. 20–4.¹ Another relevant section of the Note provides:

I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. “Presentment” means the right to require the Note Holder to demand payment of amounts due. “Notice of Dishonor” means the right to require the Note Holder to give notice to other persons that amounts due have not been paid.

Id. at 4, ¶ 10.

The Note was transferred from Nationwide Mortgage Services, LLC to Ohio Savings Bank, Am. Compl. ¶ 7, which changed its name in 2007 to AmTrust Bank, see History of (FDIC #: 29776) in Cleveland, OH, Fed. Deposit Ins. Corp. (Dec. 4, 2009), http:// research. fdic. gov/ bankfind/ detail. html? bank= 29776& na. ² AmTrust Bank subsequently was operated as NYCB, following a transfer supervised by the FDIC. Id.

When Plaintiff first received requests from NYCB for payments on the Note, he asked for documentation establishing NYCB's right to collect. Am. Compl. ¶ 9. NYCB responded by providing a copy of the Note, endorsed to Ohio Savings Bank. See id. ¶ 10. Plaintiff did not consider this sufficient evidence of NYCB's right to collect and refused to make payments. See id. ¶¶ 10–11.³ Based on Plaintiff's refusal to pay, NYCB retained SBA in 2012 to begin foreclosure proceedings. Id. ¶¶ 12–14.

When SBA contacted Plaintiff with regard to the foreclosure, Plaintiff requested that SBA also provide proof of its right to foreclose on the mortgage. Id. ¶ 16. SBA provided a copy of the Note endorsed to Ohio Savings Bank. Id. In May 2012, SBA began foreclosure proceedings by serving Plaintiff with an Order to Docket by posting it on the property on May 27, 2012 and mailing it to Plaintiff on May 29, 2012. Id. ¶ 17. The Order to Docket attached a copy of the endorsed Note, authenticated by an affidavit. Id. ¶ 18.

After receiving notice of the foreclosure, Plaintiff requested from SBA “documentation [demonstrating] that NYCB had authority to appoint [SBA] to initiate the foreclosure action.” Id. ¶ 22. This time, the Note sent by SBA contained a second endorsement, in which a single signatory endorsed the mortgage to the FDIC as receiver for Ohio Savings Bank and then from the FDIC to NYCB. Id. ¶ 23. According to Plaintiff, the signature on this second endorsement varied significantly from the signature purporting to be from the same person on the first endorsement and, therefore, the signatures “were perjured.” Id. ¶ 24. Plaintiff then requested to inspect the original Note; having done so, Plaintiff alleges that the Note was “markedly different” because the related endorsement contained no handwritten alterations. Id. ¶¶ 28–29.

Plaintiff filed his original pro se Complaint in this Court on May 30, 2013. Compl., ECF No. 1. Following NYCB's first Motion to Dismiss, ECF No. 11, Plaintiff filed an Amended Complaint, ECF No. 15, pursuant to Fed.R.Civ.P. 15(a)(1)(B). Plaintiff's three-count Amended Complaint alleges (1) a claim against SBA for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692f(6), 1692e(5); (2) claims against SBA and N.Y. CB for violations of the Maryland Consumer Debt Collection Act (“MCDCA”), Md.Code Ann., Com. Law § 14–202(8); and (3) a claim against NYCB for violations of the Maryland Consumer Protection Act (“MCPA”), Com. Law § 13–301(14)(iii).

NYCB and SBA filed motions to dismiss on August 15, 2013 and August 28, 2013, respectively. Plaintiff timely filed oppositions. NYCB filed its Reply on September 17, 2013 and SBA filed its Reply four months later, on January 23, 2014. Plaintiff then filed a Motion to Strike SBA's Reply or, in the alternative, to File a Surreply. The issues are presented adequately in Plaintiff's motion and it is unnecessary to wait for SBA's response.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB–12–237, 2012 WL 6562764, at *4 (D.Md. Dec. 13, 2012). This Rule's purpose “ ‘is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’ ” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006)). To that end, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint 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,” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. See Velencia, 2012 WL 6562764, at *4 (discussing the standard from Iqbal and Twombly ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. When ruling on such a motion, the Court must “accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.1997).

That said, “ ‘factual allegations must be enough to raise a right to relief above a speculative level.’ ” Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 472–73 (D.Md.2009) (quoting Twombly, 550 U.S. at 545, 127 S.Ct. 1955). Particularly, the Court is not required to accept as true “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or “allegations that are merely conclusory, unwarranted deductions of fact or unreasonable inferences,” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002) (citation omitted). Additionally, a plaintiff fails to state a claim where the allegations on the face of the complaint show that an affirmative defense would bar any recovery. Jones v. Bock, 549 U.S. 199, 214–15, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Fed.R.Civ.P. 8(c)); see Brooks v. City of Winston–Salem, 85 F.3d 178, 181 (4th Cir.1996) (noting that dismissal is proper “when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.”).

Plaintiff is proceeding pro se and his complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, liberal construction does not absolve Plaintiff from pleading a plausible claim. See Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md.1981) (citing Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir.1977)). As stated by the Fourth Circuit,

It is neither unfair nor unreasonable to require a pleader to put his complaint in an intelligible, coherent, and manageable form, and his failure to do so may warrant dismissal. Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.), cert. denied,382 U.S. 966 [86 S.Ct. 458, 15 L.Ed.2d 370] (1965); Holsey v. Collins, 90 F.R.D. 122, 128 (D.Md.1981). District courts are not required to be mind readers, or to conjure questions not squarely presented to them. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied,475 U.S. 1088 [106 S.Ct. 1475, 89 L.Ed.2d 729] (1986).

Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at *1 (4th Cir.1992) (per curiam).

“Matters outside of the pleadings are generally not considered in ruling on a Rule 12 motion.” Williams v. Branker, 462 Fed.Appx. 348, 352 (4th Cir.2012). However, “when a defendant attaches a document to its motion to dismiss, ‘a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiff[ ] do[es] not challenge its...