McGowens v. Bank of Am.
| Decision Date | 12 March 2015 |
| Docket Number | Civil Action No. ELH-14-1101 |
| Parties | STEPHEN MICHAEL MCGOWENS, Plaintiff, v. BANK OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Stephen Michael McGowens, the self-represented plaintiff, filed suit against Bank of America, defendant. ECF 1 ("Complaint).1 Plaintiff submitted several documents with the Complaint, including his "Sworn Denial" dated April 4, 2014, ECF 1 at 4-18 ("McGowens Affidavit"), and eight exhibits. See ECF 1-1 through ECF 1-8. By Order docketed April 24, 2014 (ECF 3), I directed plaintiff to supplement the facts of his Complaint. Plaintiff filed his supplement on May 7, 2014. See ECF 4 ("Supplement").2
Although the Complaint is not a model of clarity, it appears to allege violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq. ("RESPA"); the Truth inLending Act, 15 U.S.C. §§ 1601 et seq. ("TILA"); the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"); and Maryland common law.3
Pursuant to Fed. R. Civ. P. 12(b)(6), BOA filed a "Motion to Dismiss Plaintiff's Complaint" (ECF 8), supported by a memorandum of law (ECF 8-1, "Def. Memo.") (I shall refer to ECF 8 and ECF 8-1 collectively as the "Motion" or "Motion to Dismiss"). Defendant also submitted two exhibits. These are the "Deed of Trust" dated November 15, 2007, for the property located at 5528 Bucknell Road in Baltimore, Maryland (ECF 8-2, "Deed of Trust"); and the "Assignment of Deed of Trust" dated December 23, 2011 (ECF 8-3, "Assignment") (). In response, plaintiff filed a "Brief in Response to Bank of America Motion to Dismiss or Summary Judgment" (ECF 10, "Opposition"), supported by four exhibits (ECF 1-1 through ECF 1-4).
The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will grant defendant's Motion.
The source of this dispute appears to arise from five mortgage loans identified by plaintiff as loan numbers #163119057, #020178164, #163118969, #163114225, and #163114217. ECF 1at 4, McGowens Affidavit.5 Plaintiff denies these are his debts, or, if so, that they are valid debts. Id.
In connection with at least one of the aforementioned loans, and perhaps more than one, it appears that BOA initiated foreclosure proceedings. ECF 1 at 2, Complaint; ECF 4 at 2, Supplement ("This case is being file [sic] because Bank of America Notice to Foreclose [sic] on my property."). The address of the property that is allegedly the subject of foreclosure proceedings (or the properties, if more than one) is not clear from the Complaint.6 The Complaint also does not indicate that status of any ongoing foreclosure proceedings.
According to BOA, the "true facts, which are a matter of public record," ECF 8-1 at 3, show that Stephen and Janet McGowens executed a promissory note and Deed of Trust in favor of the original lender, GN Mortgage, LLC, on November 15, 2007. See ECF 8-2, Deed of Trust.7 The Deed of Trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as grantee and nominee for the lender and its assigns. Id. On December 23, 2011, MERS assignedthe Deed of Trust to BOA. See ECF 8-3, Assignment. The loan, in the sum of $124,000, ECF 8-2 at 3, was used by plaintiff to purchase real property located at 5528 Bucknell Road in Baltimore, Maryland ("Bucknell Property"). Id. at 5.
As noted, the Deed of Trust designated GN Mortgage, LLC as the original lender, id. at 2 and named MERS as the beneficiary and nominee for the lender. Id. at 3. On December 23, 2011, the servicing rights on the loan were re-assigned to BOA. ECF 8-3 at 2, Assignment. According to plaintiff, BOA engaged in various forms of "misconduct" in its capacity as loan servicer. ECF 1 at 2, Complaint.
First, plaintiff appears to contend that defendant committed fraud. In this regard, plaintiff alleges that defendant failed to disclose that it "provided the cash value to fund the financial institution's alleged loan check to [him]." ECF 1 at 11, McGowens Affidavit. Further, he states: "I was deceived and defrauded when I received my mortgage loan regarding my ability to make my payments." ECF 1 at 2, Complaint.
Plaintiff also alleges that BOA "breached any original purported mortgage loan agreement/contract through misrepresentation, lack of disclosure, and lack of consideration by failure to perform on the value of the purported mortgage loan agreement/contract." ECF 1 at 11, McGowens Affidavit.
Most of plaintiff's remaining allegations pertain to BOA's management of the foreclosure process. Plaintiff asserts, ECF 1 at 2, Complaint:
There were significant errors and misconduct in their [sic] foreclosure process. Examples includes [sic] failure to send or to receive proper notices of foreclosure, inaccurate information in the foreclosure documents, improperly executed or defective foreclosure documents, improper court filings, mishandling of the foreclosure process by the services of their attorneys robosigning, not forwarding the proper note information that was requested at all. Not providing me who I should realing [sic] be sending my payments too [sic]. I been [sic] receiving inaccurate payment information which caused and contributed to me not beingable to pay. I have applied for a loan modification but was turn down [sic] by my mortgage service company due to their errors. Payments have been misapplied producing accounting errors by the servicing mortgage company.
In addition, plaintiff alleges that BOA does not possess the "original, unmarked, unaltered Promissory Note." ECF 1 at 11, McGowens Affidavit. In plaintiff's view, without the actual promissory note, BOA cannot collect on the loan. Id. Plaintiff also appears to allege that BOA failed to respond to a qualified written request he sent to BOA, asking for information about the location of the promissory note, in violation of RESPA. ECF 4 at 2, Supplement. In support of this allegation, and as indicated, supra, plaintiff attached to his Complaint two letters: (1) an undated letter addressed to "Bank of America Home Loans (Servicer)," which references a property located at 3524 Erdman Avenue in Baltimore ("Erdman Property") and Loan No. 163114225, ECF 1-5 at 1 ("First Written Request"); (2) a letter to "Bank of America Home Loans (Servicer)" dated March, with no year, which references the Bucknell Property and Loan No. 163119057, ECF 1-6 at 1 ("Second Written Request"). BOA seems to assume that the Bucknell Property is the only property that is the subject of this dispute. See ECF 8-1 at 3, Def. Memo.
Both letters begin by stating: "This is a 'qualified written request' under Section 6 of the Real Estate Settlement Procedures Act (RESPA). . . ." Then, plaintiff proceeds to identify "[e]rrors of concerns" committed by BOA as his loan servicer. ECF 1-5 at 1-2, First Written Request; ECF 1-6 at 1-2, Second Written Request.
In addition, plaintiff poses, inter alia, these questions, EF 1-5 at 3, First Written Request; ECF 1-6 at 3, Second Request (emphasis in original):
Plaintiff also alleges that loan payments "have not been applied to the correct 'Holder In Due Course.'" EF 1-5 at 2, First Written Request; ECF 1-6 at 2, Second Request. It is not clear from the Complaint whether BOA responded to plaintiff's First Written Request or the Second Written Request.
Based on the aforementioned allegations, it appears that plaintiff is lodging the following claims against the defendant: Breach of Contract, False Representation, Fraud, and violations of the FDCPA, TLA, and RESPA. Plaintiff seeks damages in the amount of $930,000, an injunction staying the foreclosure, and "a mortgage rate at the true value of the property." ECF 1 at 3, Complaint.
As noted, by Order docketed April 24, 2014 (ECF 3), I directed plaintiff to supplement the facts of his Complaint and provide the following information, ECF 3 at 1:
1) the address of the foreclosed property in question; 2) the date of foreclosure; 3) whether the property is or was the subject of proceedings in other state or federal courts; 4) details of the "significant errors and misconduct" in the foreclosure process (Complaint at 2; ECF No. 1) and the dates these alleged error[s] occurred; and 5) whether Plaintiff has raised his concerns with Defendant prior to filing this action.
Plaintiff filed the Supplement to the Complaint, ECF 4, along with four exhibits: the Court's Order docketed on April 24, 2014 (ECF 4-2); McGowens Affidavit (ECF 4-3); an incomplete "Affidavit" for BOA to fill in and sign (ECF 4-4); and a "Memorandum of Law" (ECF 4-5). Three of the Supplement's four exhibits (ECF 4-3 through ECF 4-5) were also submitted with the initial Complaint. But, he did not address the deficiencies identified in theOrder.8 In large part, plaintiff re-submitted much of the information already included with his Complaint. ECF 1; ECF 4.
Additional facts are included in the Discussion.
As noted, BOA has moved to dismiss under Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the adequacy of a complaint. See McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010).
Whether a complaint adequately states a claim for relief is judged by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of the rule...
To continue reading
Request your trial