Parker v. Am. Brokers Conduit

• Decision Date: 29 March 2016
• Docket Number: CIVIL NO. JKB-15-3652
• Citation: 179 F.Supp.3d 509
• Parties: Asbury A. Parker, Plaintiff v. American Brokers Conduit, et al., Defendants.
• Court: U.S. District Court — District of Maryland

179 F.Supp.3d 509

Asbury A. Parker, Plaintiff

v.American Brokers Conduit, et al., Defendants.

CIVIL NO. JKB-15-3652

United States District Court, D. Maryland.

Signed March 29, 2016

Asbury A. Parker, Laurel, DE, pro se.

Marc A. Marinaccio, Hogan Lovells US LLP, Baltimore, MD, Craig Robert Haughton, McGuireWoods LLP, Atlanta, GA, for Defendants.

MEMORANDUM

James K. Bredar

, United States District Judge

Asbury A. Parker (“Plaintiff”) brought a pro se action against American Brokers Conduit (“ABC”); Acclaim Title and Escrow (“Acclaim”); Mortgage Electronic Registration Systems, Inc. (“MERS”); CitiMortgage, Inc. (“CitiMortgage”); the Federal National Mortgage Association (“Fannie Mae”); Seterus, Inc. (“Seterus”); and “Does 1 to 250 inclusively” (collectively, “Defendants”). In his Complaint, Plaintiff presents a host of federal and state claims relating to a mortgage-loan transaction and a state-court foreclosure action to which he is a party.

Now pending before the Court are two motions to dismiss: a motion by CitiMortgage, filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

(ECF No. 5); and a motion by Fannie Mae, Seterus, and MERS (the “Fannie Mae Defendants”), filed pursuant to Rules 12(b)(5) and 12(b)(6) (ECF No. 7). Although the Clerk notified Plaintiff of these pending motions through letters dispatched to the mailing address listed on his Complaint (ECF Nos. 6 & 11), seeRoseboro v. Garrison , 528 F.2d 309 (4th Cir.1975)

(per curiam),¹ Plaintiff did not file a response in opposition within the period prescribed by Local Rule 105.2(a) (D. Md. 2014). Nevertheless, the Court has carefully reviewed the allegations in Plaintiff's Complaint and the arguments presented in the pending motions. For the reasons explained below, those motions will be GRANTED, and Plaintiff's case will be DISMISSED.²

I. Overview³

Plaintiff alleges that he is the “owner in possession” of certain real property located at 1015 Madison Court, Annapolis, Maryland, 21403 (“the Property”). (ECF No. 1 ¶ 1.) In August 2006, Plaintiff obtained a mortgage loan from ABC in the amount of $170,000, memorialized in a promissory note (“the Note”) and secured by a deed of trust (“the Deed”) encumbering the Property. (Id. ¶ 29.)⁴

Plaintiff's Complaint is not a model of clarity. However, his central theory seems to involve a challenge to the chain of title associated with the Note. Specifically, Plaintiff alleges that his “loan was securitized, with a Note not being properly transferred to Citi[M]ortgage”; that CitiMortgage made a subsequent assignment to Fannie Mae; and that these assignments were defective, such that “Defendants, and each of them, cannot show proper receipt, possession, transfer, negotiations, assignment and ownership of [Plaintiff's] original ... Note and Deed ... resulting in imperfect security interests and claims.” (Id. ¶¶ 24, 30, 32.)⁵

It seems that Plaintiff fell significantly behind on his mortgage payments. On April 11, 2014, he received a Notice of Intent to Foreclose from the law firm of Cohn, Goldberg & Deutsch, LLC (“Cohn Goldberg”), a nonparty and agent for Seterus, which is itself a loan servicer acting on behalf of Fannie Mae. (See ECF No. 1–5.) Thereafter, Plaintiff dispatched letters captioned “NOTICE OF CLAIM DISPUTE” to Cohn Goldberg and Seterus, demanding proof of the recipients' rights to enforce the Note. (See ECF Nos. 1–8 & 1–9.) Apparently dissatisfied with whatever responses he may have received, Plaintiff filed suit on November 30, 2015,⁶ asserting “lack of standing” and a right to declaratory relief (Counts I & VII); fraud in the concealment and in the inducement (Counts II–III); intentional infliction of emotional distress (“IIED”) (Count IV); slander of title and the right to quiet title (Counts V–VI); statutory violations under Maryland and federal law (Counts VIII & XI–XII); breach of contract and of fiduciary duty (Counts IX–X); and a claim for rescission (Count XIII). Plaintiff also sought emergency injunctive relief (ostensibly to halt the state foreclosure proceedings), which request the Court denied in a December 1, 2015, Order (ECF No. 2).⁷

CitiMortgage moved to dismiss on December 24, 2015 (ECF No. 5), and the Fannie Mae Defendants moved to dismiss on February 5, 2016 (ECF No. 7).⁸ Plaintiff failed to timely respond to either motion, and the motions are therefore ripe for decision.

II. Failure to Litigate

Because Plaintiff failed to oppose either of the pending motions to dismiss, he has effectively conceded the dispositive arguments presented in those motions, and for that reason alone his Complaint is susceptible to dismissal. See White v. Wal–Mart Stores, Inc. , Civ. No. ELH–14–00031, 2014 WL 1369609, at *2 (D.Md. Apr. 4, 2014)

(“When a plaintiff fails to oppose a motion to dismiss, a district court is ‘entitled, as authorized, to rule on the ... motion and dismiss [the] suit on the uncontroverted bases asserted’ in the motion.” (alterations in original) (quoting Pueschel v. United States , 369 F.3d 345, 354 (4th Cir.2004) )). Of course, the Court “need not grant a motion to dismiss based on the failure to file a timely opposition when the motion is plainly lacking in merit.” United States v. Sasscer , No. Y–97–3026, 2000 WL 1479154, at *2 n. 6 (D.Md. Aug. 25, 2000). But as will become apparent, it is Plaintiff's Complaint rather than the pending motions that is “plainly lacking in merit,” and dismissal is the appropriate remedy.

III. Analysis of the Complaint

A. Standard and Scope of Review

A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In analyzing a Rule 12(b)(6) motion, the Court views all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States , 120 F.3d 472, 474 (4th Cir.1997). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable[.]” Twombly , 550 U.S. at 556, 127 S.Ct. 1955. Even so, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration in original) (quoting Twombly , 550 U.S. at 555, 557, 127 S.Ct. 1955 ). A plaintiff filing pro se is held to a “less stringent standard[ ]” than is a lawyer, and the Court must construe pro se claims liberally. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, even a pro se complaint must meet a minimum threshold of plausibility. Letke v. Wells Fargo Home Mortg., Inc. , Civ. No. RDB–12–3799, 2013 WL 6207836, at *2 (D.Md. Nov. 27, 2013).

In general, the Court does not consider extrinsic evidence at the Rule 12(b)(6)

stage—but there are important exceptions to this general principle. First, the Court may consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; see also

Haley v. Corcoran , 659 F.Supp.2d 714, 721 n. 4 (D.Md.2009) (“A district court may take judicial notice of ‘matters of public record’ without converting a Rule 12(b)(6) motion into a motion for summary judgment.” (citation omitted)). Second, “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 authenticity.’ ”

Am. Chiropractic Ass'n v. Trigon Healthcare, Inc. , 367 F.3d 212, 234 (4th Cir.2004)

(alterations added and in original) (quoting Phillips v. LCI Int'l, Inc. , 190 F.3d 609, 618 (4th Cir.1999) ).

B. “Lack of Standing”⁹ and Declaratory Relief (Counts I & VII)

In Count I, Plaintiff alleges that Defendants “do not have the right to foreclose on the Property because Defendants ... failed to perfect any security interest in the Property,” ostensibly because the assignors failed to endorse and transfer the Note to the assignees and because any attempt to assign the Deed apart from the Note is a “ity.” (ECF No. 1 at 11-12.)¹⁰ In related Count VII, Plaintiff requests a “judicial determination of the rights, obligations and interest of the parties with regard to the Property” and a judgment that he owns the Property in fee simple. (Id. at 21.) Counts I and VII fail as a matter of both law and fact.

As to the law, Courts in this Circuit and elsewhere have routinely rejected challenges to loan securitization and assignments executed through the MERS system; courts have likewise rejected the note/deed separation theory that Plaintiff seems to advance here. See, e.g. , Quattlebaum v. Bank of Am., N.A. , Civ. No. TDC–14–2688, 2015 WL 1085707, at *5 (D.Md. Mar. 10, 2015)

(“In Maryland ... the right to enforce the deed of trust automatically follows the note, making the two inseparable.... Courts ... have therefore repeatedly and appropriately rejected the ‘separation theory’ as a basis for invalidating mortgages.”); Reed v. PNC Mortg. , Civ. No. AW–13–1536, 2013 WL 3364372, at *3 (D.Md. July 2, 2013) (“Even assuming that his loan was securitized, Plaintiff has presented no basis for the Court to declare the deed of trust invalid or unenforceable.”); Unthank v. Freedom Mortg. Corp. , Civ. No. JFM–13–100, 2013 U.S. Dist. LEXIS 41316, at *2 (D.Md. Mar. 25, 2013) (“The law is clear...that defendant[s] were entitled to transfer and/or securitize the mortgage note at issue in this case...