Garey v. BWW Law Grp.
| Decision Date | 30 September 2021 |
| Docket Number | 8:19-cv-03112-PWG |
| Parties | MONICA GAREY, Plaintiff, v. BWW LAW GROUP, LLC, ET AL. Defendants. |
| Court | U.S. District Court — District of Maryland |
MONICA GAREY, Plaintiff,
v.
BWW LAW GROUP, LLC, ET AL. Defendants.
No. 8:19-cv-03112-PWG
United States District Court, D. Maryland, Southern Division
September 30, 2021
MEMORANDUM OPINION AND ORDER
Paul W. Grimm United States District Judge
Monica Garey purchased the real property located at 3052 Esser Place, Waldorf, Maryland (the “Property”) as her personal residence on March 29, 2015. ECF 56, Second Amended Complaint (“SAC”) ¶ 13. To fund that purchase, Ms. Garey obtained a mortgage loan. Id. Ms. Garey defaulted on her payment obligations under the mortgage loan, and a foreclosure action was initiated against her in the Circuit Court for Charles County, Carrie Ward, et al. v. Monica Garey, Case No. C-08-CV-18-001196 (Cir. Ct. Charles County) (the “Foreclosure Action”).[1] Id. ¶¶ 15, 24. Ms. Garey's property was sold in a foreclosure sale on August 20, 2019, id. ¶ 50, and the Circuit Court ratified the sale two months later. See Foreclosure Action Docket.
Ms. Garey filed suit in this Court on October 25, 2019. ECF 1, Compl. Her SAC, filed October 27, 2020, asserts five causes of action against Defendant BWW Law Group (acting on behalf of the substitute trustees) (“BWW”), and nine causes of action against SunTrust Mortgage,
Inc., and SunTrust Bank (collectively, “SunTrust”).[2];[3] See generally SAC. The causes of action against BWW and SunTrust variously assert individual and class claims for violations of state and federal consumer protection and debt collection statutes, which Ms. Garey alleges BWW and SunTrust violated in the course of foreclosing on the Property. Id.
Currently pending are BWW's and SunTrust's respective motions to dismiss the SAC, or, in the alternative to strike the class allegations in the SAC. I have reviewed the relevant filings[4]and determined that no hearing is necessary. See Loc. R. 105.6. For the reasons explained below, BWW's MTD is granted, SunTrust's MTD is granted in part and denied in part, and both Defendants' Motions to Strike the Class Allegations in the SAC are denied as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Garey secured her mortgage loan from First Home Mortgage Company on May 15, 2019. SAC ¶ 13. As part of the process for securing the loan, Ms. Garey executed a promissory note (“Note”) and deed of trust (“DOT”) on May 29, 2015. SAC ¶ 13. “Ms. Garey's loan was insured by the Federal Housing Administration (‘FHA').” Id. ¶ 14. Accordingly, Ms. Garey alleges
that the Note and Deed of Trust incorporated additional provisions and protections pursuant to FHA and HUD[5] regulations. Id.
Ms. Garey unfortunately lost her job and was unable to keep up with her loan payment obligations. Id. ¶ 15. From October 25, 2016, and until BWW filed the Foreclosure Action on December 12, 2018, SunTrust sent Ms. Garey a series of communications regarding the status of her loan and the possibility that the Property would be foreclosed on if the loan remained in default. Id. ¶¶16-23. Those communications allegedly included:
• A letter dated October 25, 2016, which “represented that foreclosure proceedings had commenced.” Id. ¶ 16
• A letter dated August 21, 2017, which “misrepresented that [SunTrust] had a right to conduct a foreclosure sale of the Property.” Id. ¶ 18
• A communication in April 2018 in which SunTrust stated that Ms. Garey would have to pay $44, 721.58 to reinstate the loan. Id. at 19
• A letter dated May 11, 2018, in which SunTrust “indicated that no foreclosure action” had yet been filed against her or the Property. Id. ¶ 20.
• A letter dated June 5, 2018, in which SunTrust “claimed and/or threatened a foreclosure sale could occur soon after June 25, 2018. Id. ¶ 21.
• A communication dated October 25, 2018, identified as a “Notice of Intent to Foreclose” that “threatened a foreclosure action could be filed in 45 days and that the cure amount was $52, 778.43.” Id. ¶ 23.
BWW, on behalf of the substitute trustees, filed the Foreclosure Action on December 12, 2018. SAC ¶ 24. Ms. Garey was not personally served in the Foreclosure Action. Id. ¶ 26. A private process server's affidavit[6] that was filed in the Foreclosure Action indicates that after two good faith attempts at personal service had failed, he posted a copy of the Summons and Complaint on Ms. Garey's front door. ECF 79-2, Process Server Affidavit. Additionally, “service was completed
by mailing true copies of” the Summons and Complaint “via first class mail postage prepaid and by certified mail return receipt requested[.]” Id. at 2. Notwithstanding the communications listed above, Ms. Garey alleges that she “did not become aware of the foreclosure action until she received notice that the property was going to be sold at a foreclosure sale.” SAC ¶ 26.
In April 2019, SunTrust represented that the amount due to reinstate the loan was $63, 704.02, a figure Ms. Garey alleges was “inflated by at least $3, 000.” Id. ¶ 27. The April 2019 statement also “did not indicate that foreclosure proceedings had begun on the loan.” Id. ¶ 28. Ms. Garey alleges that SunTrust “did not send mortgage statements each month and therefore, Ms. Garey was not apprised of the status of her mortgage for several months in 2019, including but not limited to May, June, July and August.” Id. ¶ 29.
On June 19, 2019, Ms. Garey received a letter from BWW entitled “NOTICE TO OCCUPANTS OF PENDING ACQUISITION.” Id. ¶ 33. The letter reads, in pertinent part:
In the near future, the property located at 3052 Esser Place, Waldorf, MD 20603 may be sold at a foreclosure sale auction pursuant to the terms of a mortgage or deed of trust. We expect that ownership of the property may be transferred to SunTrust Bank within the next 60 to 90 days as a result of the foreclosure sale. Sometime thereafter, ownership of the property will probably be transferred to the Secretary of Housing and Urban Development (“HUD”).
Id.
On or about July 31, 2019, BWW sent Ms. Garey a Notice of Impending Foreclosure. SAC ¶ 44. On August 20, 2019, the Property was sold to the Defendants at a foreclosure sale. Id. ¶ 50.
Ms. Garey filed this action on October 25, 2019. Compl. In it, Ms. Garey seeks recovery for the damages allegedly caused by BWW's and SunTrust's actions during the foreclosure process which, she contends, violated the Truth In Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”); the Federal Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”); the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605 et seq. (“RESPA”); the Fair Credit Reporting Act,
15 U.S.C. § 1681 et seq. (“FCRA”); the Maryland Consumer Debt Collection Act, Md. Code, Comm. Law § 14-201 et seq. (“MCDCA”); the Maryland Consumer Protection Act, Md. Code, Comm. Law 13-101 et seq. (“MCPA”); and the Maryland Mortgage Fraud Protection Act, Md. Code, Comm. Law § 7-401 et seq. (“MMFPA”).
SunTrust and BWW both move to dismiss the SAC in its entirety under Fed.R.Civ.P. 12(b)(6), asserting that Ms. Garey's claims against them are precluded by the Foreclosure Action. They argue alternatively that Ms. Garey has failed to plead her MCDCA, MCPA, MMFPA, and FDCPA claims with particularity, and that she has failed to state a plausible claim for relief under RESPA, TILA, and FCRA. The Defendants also move to strike Ms. Garey's class allegations under Fed.R.Civ.P. 23.
Additional facts will be provided below as needed.
STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6) provides that a complaint must be dismissed if it “fails to state a claim upon which relief can be granted.” The purpose of the rule is to test the sufficiency of the complaint, not to address its merits. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). To survive a motion to dismiss under Rule 12(b)(6), the 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); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The claim for relief must be plausible, and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678-79.
All claims rooted in fraud allegations are subject to a heightened pleading standard under Fed.R.Civ.P. 9(b). Rule 9(b) states that “in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake.” Fed.R.Civ.P. 9(b). Such
allegations of fraud typically include the “time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999).
When reviewing a motion to dismiss, the Court must accept the well pleaded facts in the operative complaint (here, the SAC), and also may “consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013) (citing Philips v. Pitt County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). And where the allegations of the complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). If the Court considers matters outside the pleadings, it must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(d). However, a court may take judicial notice of matters of public record without converting a motion to dismiss into motion for summary judge. Secretary of State For Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (citing Hall v. Virginia, 385 F.3d 421, 424 (4th Cir. 2004)).
DISCUSSION
I. Res judicata
The...
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