Thomas v. Sack

Decision Date07 March 2019
Docket NumberCivil No. ELH-18-1839
PartiesDEREK A. THOMAS, et al., Plaintiffs, v. JAMES M. SACK, et al., Defendants
CourtU.S. District Court — District of Maryland

Derek and DeLeonna Thomas ("Plaintiffs"), who are self-represented, filed a "Quiet Title Complaint" (the "Complaint") on May 11, 2018, in the Circuit Court for Anne Arundel County, Maryland, against Wells Fargo Bank, N.A. ("Wells Fargo"); NVR Mortgage Finance, Inc. ("NVR"); and James M. Sack, Trustee (collectively, "Defendants"). ECF 1-1. Plaintiffs alleged that Defendants' actions deprived them of their "right, title, possession. [sic] estate, and equity" in their property, located at 1602 Lindley Drive in Hanover, Maryland ("the Property"). Id.

The suit contains six counts. Count I is titled "Desparagement [sic] of Title"; Count II is titled "James M. Sack Trustee Conflict Of Interest"; Count III is titled "Wells Fargo Banka [sic] N.A. Subordinate Deed of Trust"; Count IV is titled "FHA And HUD Loan Settlement"; Count V is labeled "Breach of Contract"; and Count VI is titled "Promissory Estoppel And Detrimental Reliance."

Wells Fargo removed the case to federal court on June 20, 2018, pursuant to 28 U.S.C. §§ 1332 and 1441. ECF 1, ¶ 11. NVR and Sack consented to the removal. Id. ¶ 5.

Soon after, Wells Fargo moved to dismiss the Complaint (ECF 6), supported by a memorandum of law (ECF 6-1) (collectively, the "Wells Fargo Motion"), and exhibits. The Clerk's Office sent Rule 12/56 letters to Plaintiffs, advising them of the potential consequences of failing to respond to the dispositive motion. ECF 7; ECF 8.

On July 3, 2018, Sack and NVR moved to dismiss (ECF 11), supported by a memorandum of law (ECF 11-1) (collectively, "the Sack/NVR Motion") and numerous exhibits. Once again, the Clerk's Office sent Rule 12/56 letters to Plaintiffs, advising them of the potential consequences of failing to respond to the dispositive motion. ECF 12; ECF 13.

Plaintiffs did not file an opposition to either motion. See Docket. But, Plaintiffs did file a motion to remand the case to State court, pursuant to 28 U.S.C. § 1447. ECF 22. Wells Fargo filed an opposition to the motion to remand (ECF 23), as did NVR and Sack. ECF 24.

No hearing is necessary to resolve the pending motions. See Local Rule 105.6 (2018). For the reasons that follow, I will deny Plaintiffs' Motion to Remand (ECF 22) and grant the Defendants' motions to dismiss. ECF 6; ECF 11.

I. Factual and Procedural Background

The factual allegations in the Complaint are somewhat sparse and difficult to understand.

Plaintiffs are "the prior grantee owners" of the Property, which is located in Anne Arundel County, Maryland. ECF 1-1, ¶¶ 1, 5.1 On June 17, 2011, Plaintiffs executed a Note and Deed of Trust as security for a loan on the Property, in the amount of $565,600.00. See ECF 6-4.

On July 6, 2011, NVR transferred Plaintiffs' Mortgage and Note to Wells Fargo, without recording an assignment of mortgage. ECF 1-1, ¶ 9. Wells Fargo submitted a draft modification loan to Plaintiffs on December 8, 2015, although Wells Fargo "was not the holder of the mortgage and note by assignment of mortgage." Id. ¶ 10. On that same date, Wells Fargo created a subordinate deed of trust and subordinate promissory note. Id. ¶ 16. Sack served as the Vice President, General Counsel, and Secretary of NVR, but also served as trustee to Plaintiffs' Deed of Trust. Id. ¶ 13.

According to the defense, Plaintiffs defaulted on the Loan. Therefore, on September 19, 2017, Substitute Trustees, on behalf of loan servicer Wells Fargo, instituted foreclosure proceedings against them in the Circuit Court for Anne Arundel County. See Brown, et al. v. Thomas, et al., No. C-02-CV-17-002705 (Anne Arundel Cty. Cir. Ct.) (the "Foreclosure Action"). Plaintiffs never challenged the foreclosure sale. They did not file a motion to stay or dismiss the sale, they did not file exceptions to the sale; and they did not challenge the auditor's report. See ECF 6-2 (Anne Arundel County Circuit Court Docket). The Circuit Court entered a report of sale on December 20, 2017, and Judge Kathleen Vitale ratified the sale by "Final Order" dated February 6, 2018. ECF 6-3. A report and account of auditor was filed on February 22, 2018. ECF 6-2. The State issued a writ of possession on May 10, 2018. Id. One day later, plaintiffs filed this suit.

II. Legal Standards

Both the Wells Fargo Motion (ECF 6) and the Sack/NVR Motion (ECF 11) are premised on Federal Rule of Civil Procedure 12(b)(6). That Rule permits a defendant to test the legal sufficiency of a complaint by way of a motion to dismiss. In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221(2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law "to state a claim upon which relief can be granted." See In re Birmingham, 846 F.3d at 92.

Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Federal Rule of Civil Procedure 8(a)(2). That rule provides that 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). The purpose of the rule is to provide the defendants with "fair notice" of the claims and the "grounds" for entitlement to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. at 1974; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' ....") (citation omitted); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include "detailed factual allegations" in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Johnson v. City of Shelby, Miss., — U.S. —, 135 S. Ct. 346 (2014) (per curiam).

Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy theminimal requirements of Rule 8(a)(2), the complaint must set forth "enough factual matter (taken as true) to suggest" a cognizable cause of action, "even if ... [the] actual proof of those facts is improbable and ... recovery is very remote and unlikely." Twombly, 550 U.S. at 556 (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, a court "must accept as true all of the factual allegations contained in the complaint" and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). "A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer" that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

I am also mindful that Plaintiffs are self-represented litigants. Thus, their pleadings are "liberally construed" and "held to less stringent standards than [those filed] by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). "However, liberal construction does not absolve Plaintiff from pleading a plausible claim." Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310, 314 (D. Md. 2014), aff'd, 584 F. App'x 135 (4th Cir. 2014); see also Coulibaly v. J.P. Morgan Chase Bank, N.A., Civil Action No. DKC-10-3517, 2011 WL 3476994, at *6 (D. Md.Aug. 8, 2011) ("[E]ven when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim."); aff'd 526 F. App'x 255 (4th Cir. 2013).

Moreover, a federal court may not act as an advocate for a self-represented litigant. See Brock v. Carroll, 107 F.3d 241, 242-43 (4th Cir. 1996); Weller v. Dep't of Social Servs., 901 F.2d 387, 391 (4th Cir. 1990). Therefore, the court cannot "conjure up questions never squarely presented," or fashion claims for a plaintiff because he or she is self-represented. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986); see also MD v. Sch. Bd. of City of Richmond, 560 F. App'x 199, 203 n.4 (4th Cir. 2014) (rejecting self-represented plaintiff's argument that district court erred in failing to consider an Equal Protection claim, because plaintiff failed to allege it in the complaint).

Courts generally do not "'resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'" through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin...

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