Willis v. Bank of Am. Corp., Civil Action No. ELH-13-02615

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesWINFIELD T. WILLIS, Plaintiff, v. BANK OF AMERICA CORPORATION, et al., Defendants.
Docket NumberCivil Action No. ELH-13-02615
Decision Date01 August 2014


Civil Action No. ELH-13-02615


August 1, 2014


Winfield T. Willis, the self-represented plaintiff, filed suit against defendants Bank of America Corporation ("BAC"); Bank of America, N.A. ("BANA"); "Bank of America Home Loans"; and "BAC Home Loans Servicing, LP (Countrywide Home Loans Servicing, LP)" (ECF 2, "Complaint" or "Compl.").1 In a twenty-two count complaint, plaintiff alleges violations of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq. ("RESPA"); the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. ("TILA"); the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"); the Maryland Consumer Protection Act, Md. Code (2013 Repl. Vol.), Com. Law §§ 13-101 et seq. ("MCPA"); §§ 7-105.1 and 7-105.2 of the Real

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Property Article of the Maryland Code (2010 Repl. Vol., 2013 Supp.) ("R.P."); and Maryland common law.

Pursuant to Fed. R. Civ. P. 12(b)(6), defendants filed a motion to dismiss (ECF 10), supported by a memorandum (ECF 10-1) (collectively, the "Motion"). The Motion has been fully briefed.2 Plaintiff has moved to remand the case to state court (ECF 15, "Motion to Remand"), which defendants oppose (ECF 17). No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I will grant defendants' Motion, and I will deny plaintiff's Motion to Remand.

Factual Background3

This case arises from a mortgage loan in the sum of $350,000, obtained by Winfield Willis and Patricia Lewis4 for real property located at 2816 Hillsdale Road, Baltimore, Maryland 21207 (the "Property").5 The loan is evidenced by a promissory note ("Note") and secured by a

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deed of trust ("Deed of Trust"). See Compl. ¶ 4. There is a dispute as to the dates on which the instruments were executed. Plaintiff attached to the Complaint copies of two promissory notes and two deeds of trust. One set is dated December 16, 2005, and the other set is dated January 2, 2006. See Compl. Exh. S, ECF 2-18 (Note dated December 16, 2005) and Compl. Exh. R, ECF 2-18 (Deed of Trust dated December 16, 2005); Compl. Exh. J, ECF 2-10 (Note dated January 2, 2006) and Compl. Exh. O, ECF 2-15 (Deed of Trust dated January 2, 2006). Bondcorp Realty Services, Inc. ("Bondcorp") is identified as the lender on both deeds of trust, and each designates Mortgage Electronic Registration System, Inc. ("MERS") as the nominee for the lender and the lender's successors and assigns. Compl. Exh. O, ECF 2-15 at 1; Compl. Exh. R, ECF 2-18 at 1. Plaintiff (and not Lewis) executed each promissory note, in the amount of $350,000, providing for interest at a yearly rate of 7.250%, with monthly installment payments of $2,387.62. Compl. ¶ 4; Compl. Exh. J; Compl. Exh. S. Both notes also designate February 1, 2006, as the date for the commencement of monthly payments, and a maturity date of January 1, 2036. Compl. Exh. J; Compl. Exh. S. And, both the deeds of trust reflect the same loan number.

Plaintiff also attached to the Complaint a "Limited Power of Attorney for Correcting Typographical Errors" (Compl. Exh. Q, ECF 2-17 at 2), and a HUD-1A Settlement Statement (Compl. Exh. Q, ECF 2-17 at 1), each signed by plaintiff and dated December 16, 2005. The Limited Power of Attorney appoints Millennium Settlement Attorneys as attorney-in-fact for plaintiff and Lewis "to correct any TYPOGRAPHICAL ERRORS, to place [their] initials on documents where changes are made and/or to sign [their] names to and acknowledge any modification or other documents correcting the typographical error." Compl. Exh. Q, ECF 2-17 at 2.

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In February 2006, plaintiff received a letter stating that Bondcorp had sold his loan on the secondary market and that the servicing of the loan had been transferred. See Compl. Exh. A, ECF 2-1 (Letter from Bondcorp). Plaintiff was instructed to send all future payments to Countrywide Home Loans, Inc. Id. On April 18, 2012, the Deed of Trust dated January 2, 2006, was assigned to BANA as successor by merger to BAC Home Loans Servicing LP, f/k/a Countrywide Home Loans Servicing LP ("BAC Home Loans Servicing"). Motion Exh. A, ECF 10-2 (Assignment of Deed of Trust).6

According to plaintiff, defendants paid kickbacks to loan brokers such as Bondcorp for providing "predatory lending deals with higher interest rates than the market rate for minorities with good credit." Compl. ¶ 5. He alleges that defendants would allow Bondcorp to receive "a mortgage brokers fee on the HUD 1 at settlement, and then rewarded Bondcorp with two months in loan payments after the settlement as a bonus for providing a mortgage with a higher interest yield than what was normal and customary. . . ." Compl. ¶ 6. Further, plaintiff alleges that, in order to facilitate "this deceptive 'yield spread premium' kick back trade practice", defendants allowed Bondcorp to appear on the loan documents as the lender, even though defendants were the actual lender, a practice which plaintiff refers to as "table funding." Id. ¶¶ 7, 8.

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On April 28, 2009, a lawyer at the firm of Cohn, Goldberg & Deutsch, LLC ("Cohn") wrote to plaintiff.7 Plaintiff responded by letter of May 6, 2009, disputing his outstanding debt of $348,453.81 on the loan. Compl. Exh. B, ECF 2-2 (Letter of May 6, 2009); see Compl. ¶ 12. Plaintiff asked Cohn to provide him with

the copy of the Deed of Trust and Note along with where the original note is located, evidence of who funded the loan with a copy of the wire transfer and/or check from Bondcorp Realty Services, Inc. to the title company, a copy of any evidence of another lender purchasing the note from Bondcorp Realty Services with a copy of the wire transfer and/or check, and a copy of any other lender purchasing the note with evidence of the purchase by wire transfer and/or check, and a copy of any other lender purchasing the note with evidence of the purchase by wire transfer or funds or a check.

Compl. Exh. B; see Compl. ¶ 12. Additionally, plaintiff asked Cohn to identify the owner of the Note. Compl. Exh. B.

On February 5, 2010, Michael J. McKeefery, Esq., a lawyer with Cohn, responded to plaintiff's letter of May 6, 2009. Compl. Exh. C, ECF 2-3 (Letter of February 5, 2010). McKeefery advised Willis that the "client" had verified the debt, and that he was enclosing a copy of the Note, Deed of Trust, and a payment history for the loan through April 28, 2009. Id. McKeefery also advised that the Federal National Mortgage Association ("Fannie Mae") "is the current owner of the note." Id. Further, McKeefery told Willis that Cohn's office was "in physical possession of the original Note on behalf of BAC Home Loans Servicing, L.P., f/k/a Countrywide Home Loans Servicing, Servicers and Attorney-In-Fact for Fannie Mae . . . ." Id. According to McKeefery, information regarding ownership of the Note had been conveyed in a loss mitigation letter to plaintiff dated April 28, 2009. Id.

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On or about February 22, 2010, BAC Home Loans Servicing, as "holder, or authorized agent of the holder of the note", appointed Edward S. Cohn, Stephen N. Goldberg, Richard E. Solomon, and Richard J. Rogers as Substitute Trustees under the Deed of Trust. See Compl. Ex. K, ECF 2-11 (Appointment of Substitute Trustees). Edward Cohn, as counsel for the Substitute Trustees, initiated foreclosure proceedings against plaintiff and Lewis on February 25, 2010 by filing in the Circuit Court for Baltimore City, an "Order to Docket Foreclosure of Residential Property." See Compl. ¶¶ 11, 16; Compl. Exh. E-M, ECF 2-4 - ECF 2-13 (Foreclosure documents); Docket, Circuit Court for Baltimore City, Edward S. Cohn v. Winfield T. Willis, et al, Civil Case No. 24O10000850, available at http://casesearch.courts.state.md.us /inquiry/inquiry-index.jsp. The Substitute Trustees subsequently filed a motion to dismiss the foreclosure action, without prejudice, which the Circuit Court granted on July 22, 2010. See Docket, Civil Case No. 24O10000850;8 Compl. ¶ 14.

Plaintiff alleges that Cohn,9 as agent for defendants, pursued the foreclosure action "with false, fabricated and counterfeit affidavits which is now commonly known as 'robo signing.'" Compl. ¶ 14. According to plaintiff, defendants "fabricated the loan documents with the date of January 2, 2006 . . . ." Id. ¶ 27. Claiming that he executed all of the loan documents on December 16, 2005, plaintiff asserts that defendants "fabricated loan documents by altering documents signed by the Plaintiff on December 16, 2005 to a date of January 2, 2006 which

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render the loan documents unenforceable." Id. ¶ 28. Moreover, plaintiff contends that Cohn "fabricated" the documents filed in support of the foreclosure proceeding by requiring the firm's employees to sign "documents for other parties named on the documents," and by requiring the notary to certify documents "known by the notary to be false." See id. ¶¶ 20, 21. Plaintiff maintains that there was no way for him to know about the "robo-signing" until Cohn dismissed the foreclosure action "when the 'robo-signing' scandal surfaced in 2011 which cited BOA as a primary violator." Id. ¶ 22.

In addition, plaintiff contends that Cohn did not include "any chain of assignments or other evidence in the foreclosure complaint" to verify "who actually owns the Note and has...

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