Womack v. Ward

• Decision Date: 06 August 2018
• Docket Number: Civil Action No. DKC 17-3634
• Parties: ARTEZ RASHAD WOMACK v. CARRIE M. WARD, et al.
• Court: U.S. District Court — District of Maryland

ARTEZ RASHAD WOMACK v. CARRIE M. WARD, et al.

Civil Action No. DKC 17-3634

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

August 6, 2018

MEMORANDUM OPINION

Presently pending and ready for resolution is the motion to dismiss Plaintiff's amended complaint filed by Defendants Carrie Ward, BWW Law Group, LLC ("BWW Law Group"), and Freedom Mortgage Corporation ("Freedom Mortgage"). (ECF No. 21). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted.

I. Background

A. Factual Background

The following facts are either alleged in the amended complaint or taken from matters of public record of which the court may take judicial notice.¹ In 2011, Plaintiff purchasedthe property located at 5055 Ottawa Park Place, Waldorf, MD 20602 (the "Property"). To finance the purchase of the Property, Plaintiff obtained a loan from Amerigroup Mortgage Corporation, evidenced by a promissory note (the "Note") and secured by a deed of trust (the "Deed of Trust"). (ECF No. 10-2, at 4, 19). After Plaintiff defaulted, Defendant Freedom Mortgage, as authorized agent of the holder of the Note secured by the Deed of Trust, initiated foreclosure proceedings on the Property. Defendant Freedom Mortgage appointed Defendant Ward and additional individuals as substitute trustees under the Deed of Trust. (Id. at 35). The foreclosure action was docketed in the Circuit Court for Charles County, Maryland, on December 5, 2016. (Id.). Attached to the order to docket foreclosure action is a signed affidavit by Defendant Freedom Mortgage, dated September 28, 2016, which states that "Government National Mortgage Association is the owner of the Note and that Freedom Mortgage Corporation is servicer for said owner."² (Id. at 30).

Plaintiff alleges that there was never a document filed by Ginnie Mae stating that Defendant Freedom Mortgage had rights to the Note with respect to the Property being sold. (ECF No. 19, at 4). Plaintiff further alleges that "the defendant never . . . notified [him] that Ginnie Mae was the owner of the note[.]"³ (Id.). In August 2017, the Property was sold at a foreclosure sale. (ECF No. 10-3, at 10). The circuit court ratified the sale on October 10, 2017. (Id. at 11).

B. Procedural Background

On July 27, 2017, Plaintiff commenced this action against Defendants Carrie Ward, BWW Law Group, and Freedom Mortgage in the Circuit Court for Charles County. (ECF No. 2). On December 7, 2017, Defendants removed this action from the Circuit Court for Charles County based upon federal question jurisdiction. (ECF No. 1). After Defendants filed a motion to dismiss (ECF No. 10), on February 5, 2018, Plaintiff filed an amended complaint which sets forth five causes of action: breach of contract (Count 1), fraud (Count 2), fraudulent misrepresentation (Count 3), intentional infliction of emotional distress ("IIED") (Count 4), and a violation of the Fair DebtCollection Practices Act (the "FDCPA") (Count 5). (ECF No. 19). On February 16, Defendants filed a motion to dismiss Plaintiff's amended complaint. (ECF No. 21). Plaintiff responded (ECF No. 24), and Defendants replied (ECF No. 25).

II. Standards of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4^th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4^th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134(4^th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4^th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4^th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4^th Cir. 2009). Ultimately, a complaint must "'permit[ ] the court to infer more than the mere possibility of misconduct' based upon 'its judicial experience and common sense.'" Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4^th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).

Pro se pleadings are construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction means that the court will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts available; it does not mean that the court should rewrite the complaint to include claims never presented. Barnett v. Hargett, 174 F.3d 1128, 1132 (10^th Cir. 1999). That is, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901F.2d 387, 391 (4^th Cir. 1990); Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) ("[E]ven a pro se complaint must be dismissed if it does not allege a plausible claim for relief." (citation and internal quotation marks omitted)).

III. Analysis

A. Res Judicata

Defendants first argue that res judicata bars Plaintiff's complaint because it attacks the foreclosure action initiated in the Circuit Court for Charles County which resulted in a final judgment on the merits - the ratification of the foreclosure sale.⁴ (ECF No. 21-1, at 5). "Under Maryland Law, the requirements of res judicata or claim preclusion are: 1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; 2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and 3) that there was a final judgment on the merits."⁵ Colandrea v. Wilde Lake Cmty. Ass'n, Inc., 361 Md. 371, 392 (2000).

1. Parties are the Same or in Privity

The parties in the present action are the same or in privity with the parties to the prior suit - the foreclosure action initiated in the Circuit Court for Charles County. Privity involves a person so identified in interest with another that the person represents the same legal right. Bank of New York Mellon v. Georg, 456 Md. 616, 659 (2017). The parties to the foreclosure action were the Plaintiff, Defendant Ward, as substitute trustee, and additional substitute trustees. In this action, the additional parties named - Defendants BWW Law Group and Freedom Mortgage - are in privity with the substitute trustees. The substitute trustees are attorneys of the law firm BWW Law Group, (see ECF No. 10-2, at 2), and Defendant Freedom Mortgage, as servicer of the Note, appointed the substitute trustees to initiate the foreclosure action (Id. at 35). Additionally, the Defendants all share a mutual interest with respect to the validity of the foreclosure judgment. See Jones v. HSBC Bank USA, N.A., RWT-09-2904, 2011 WL 382371, at *5 (D.Md. Feb. 3, 2011) (finding that the defendants in the subsequent action were in privity with the substitute trustee in the foreclosure action because the plaintiff's claims in the subsequent action were premised on the plaintiff's claim that the foreclosure judgment was invalid and the defendants' shared a mutuality of interest with respect to the validity of theforeclosure judgment). Therefore, the first requirement of res judicata is met.

2. Identical Claims

Second, Plaintiff's claims could have been brought in the prior action. In deciding whether claims are identical under the second element, Maryland courts employ the "transaction test." Anyanwutaku v. Fleet Mortg. Grp., Inc., 85 F.Supp.2d 566, 571 (D.Md. 2000). Under the transaction test, claims are identical "when they arise out of the same transaction or series of transactions." Id. Res judicata bars not only matters decided in the original action but also all matters that could have been brought in the original action. Colandrea, 361 Md. at 392.

In Counts 1 through 5 Plaintiff alleges that Defendant Freedom Mortgage had no right to foreclose on the Property because they were not the actual owner and holder of the Note secured by the Deed of Trust. The foreclosure action and present case relate to the same transaction - the Note secured by the Deed of Trust on the Property and the foreclosure action that resulted when Plaintiff defaulted. Further, Plaintiff's claims that Defendant Freedom Mortgage never owned the Note and had no right to foreclose on the Property could have been raised and determined in the foreclosure proceeding. See HSBC Bank USA, 2011 WL 382371, at *5 (the plaintiff's claim that theforeclosure was improper because the defendants submitted false and insufficient affidavits in connection therewith, is a claim that clearly could have been raised in the foreclosure proceeding); Capel v. Countrywide Home Loans, Inc., Nos. WDQ-09-2374, WDQ-09-2439, 2010 WL 457534, at *4 (D.Md. Feb. 3, 2010) (the plaintiff's claims of alleged defects in contract formation and that the...