2016 WL 1242625
D. Md.2016Background
- Plaintiff Asbury A. Parker, proceeding pro se, sued ABC, Acclaim, MERS, CitiMortgage, Fannie Mae, Seterus and unnamed defendants over a 2006 mortgage on 1015 Madison Court, Annapolis, MD, asserting claims tied to alleged defective assignments, securitization, and a pending state foreclosure.
- Plaintiff alleged the note was not properly transferred, assignments were defective, and sought declaratory relief, fraud claims, IIED, slander/quiet title, statutory violations (TILA/RESPA/FDCPA/HOEPA), breach of contract/fiduciary duty, and rescission.
- Foreclosure proceedings were pending in Anne Arundel County; a Notice of Intent to Foreclose and a foreclosure sale occurred before this suit. The federal court denied Plaintiff’s emergency injunction request.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) (and 12(b)(5) as to service). Plaintiff did not timely oppose; the court reviewed the record and recorded assignments showing chain of title to Fannie Mae.
- The court found Plaintiff’s claims legally deficient (merits and pleading), many time-barred, and in some instances precluded by the pending state action; it granted the motions and dismissed all counts with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing / right to foreclose / declaratory relief | Assignments and securitization were defective; deed/note separated so defendants lack right to foreclose | Recorded assignments and deed terms valid; securitization and MERS assignments lawful | Rejected: deed authorizes assignment; record shows unbroken chain of title; claims meritless and dismisssed |
| Fraud (concealment/inducement) | Defendants concealed securitization and misrepresented right to exercise power of sale | Fraud not pleaded with Rule 9(b) particularity; public record contradicts fraud theory; claims time-barred | Rejected: pleadings conclusory, fail Rule 9(b), factually unsupported and likely time-barred |
| Slander of title / quiet title | Notices and foreclosure filings disparaged title; seeks quiet title | Notices authorized by deed; foreclosure pending so quiet-title unavailable; no false publication or special damages alleged | Rejected: foreclosure right in deed, no known falsity or special damages; quiet-title barred while state foreclosure pending |
| Statutory claims, contract, fiduciary duty, rescission | Alleged violations of RESPA, TILA, FDCPA, HOEPA; breaches of contract/fiduciary duties; requests rescission | Claims lack statutory specificity; many claims untimely; plaintiff not party to PSAs; rescission is equitable and not supported | Rejected: pleading fails Rule 8 and other standards; many claims time-barred; no viable basis for rescission; all counts dismissed |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must allege facts raising claim above speculative level)
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se complaints construed liberally but must meet plausibility threshold)
- Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (scope of documents considered on motion to dismiss)
- Phillips v. LCI Int’l, Inc., 190 F.3d 609 (4th Cir. 1999) (when a defendant attaches a document integral to the complaint, court may consider it)
- Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212 (4th Cir. 2004) (same; documents attached to motion may be considered if integral)
- Batson v. Shiflett, 325 Md. 684 (1992) (Maryland IIED requires extreme and outrageous conduct)
- Anderson v. Burson, 424 Md. 232 (2011) (explaining mortgage securitization process)