Case Information
*1 FILED
__ 1I S C!ST~:CT cr!-,~T I ~. • IN THE UNI fED STATES DISTRICT C(ttVKf:ICT Cf !,!,nYLA;:) FOR THE DISTRICT OF MARYLAND SOlltl1el'll Dh';.\';oll p lj: III ill ZOll * CLE"'''' • -;-'~- -- . ,..::' DERRICK ENGLISH \)~ * "I ,.,., . [1] .v . ,----. Plaintiff, * v. Case No.: G.III-16.3675 * RYLAND MORTGAGE COMPANY, et 1//., * Defendants. * * * * * * * * * * * * * *
MEMORANDUM OPINION Plaintiff Derrick English C'Plaintilr) brings this pro .Ie action against Defendants Ryland Mortgagc Company ("Ryland"): U,S, Bank National Association. as Trustee for the Iioiders of thc GSAA Ilomc Equity Trust 2007.1 (..U.S. Bank"). Wells Fargo Bank. National Association ("'Wells Fargo"). and Mortgage Electronic Registration Systems. Inc. ("MERS"): Goldman Sachs Mortgagc Company and GS Mortgage Securities Corp. (collectively. "Goldman Defendants"): and "Docs J through 100." asscrting a multitude of state law claims and allcged
* 1601 1.'1self.. and the Real Estate violations of the Truth in Lending Act ("TILA"). J5U.S.C. 12 U.S.c. * 26011.'1 self.. relating to Plaintitrs mortgagc Settlcment Procedurcs Act ("RESPA"). loan. 1 The Court previously denicd Plaintiffs Motion for a Tcmporary Restraining Order. ECF Nos. 20 and 21. Now pending before thc Court is Defcndant Ryland's Motion to Dismiss. ECF No. J 3. Dcfendants U.S. Bank. Wells Fargo. and MERS's Motion to Dismiss. ECF No. 16. and the Goldman Defendants' Motion to Dismiss. ECl' No. 17. A hearing is unnecessary. SCI.' I.ocal Rule J05.6 (D. Md.). For the li)lIowing reasons. the Motions to Dismiss are granted. I The suit was inilially tiled in the Circuit Court for Prince George's Coullty. Maryland on October 3. 2()[6. ECF NO.2. Defendants removed the action to this COlirt on November 9. :W 16. ECF No. I.
I.
*2 BACKGROUND Thc Court dcrivcs thc fiJllowing 1~lCtsIi'om Plaintiffs Complaint. ITF NO.2. and public land rccords and court rccords. of \\hich thc Court takcs judicialnoticc'" On Scptcmbcr D. 2006. Plaintift: as Borrowcr. cxccutcd a Dccd of Trust and obtaincd a $263.950.00 mortgagc loan (..thc Loan") secured by thc propcrty locatcd at 12234 Opcn Vicw Lanc. #803. Upper Marlboro. Maryland 20774 (..thc Propcrty""). S"" ECF No. 21i 29: lOCI' No.3-I."' Thc Dccd ofTrustnamcd Dclendant Ryland as Lcnder and Dctendant MERS as "nomincc I(l!' Lcnder and Lcndcr's succcssors and assigns" and thc bcncliciary undcr thc Dccd of Trust. lOCI' NO.3-I at 1-2.Thc Dccd of Trust includcs a provision stating that I(lr purposes of"rcpaymcnt ofthc Loan" and thc "pcrlorInancc of Borrowcr's covcnants and agrccmcnts undcr this Sccurity Instrumcnt and thc Notc:' "Borrowcr irrevocably grants and convcys to Trustccs. in trust. with powcr of sale 101'thc Propcrtyl:' ECF No. 3-1 at 3.
Whcn Plaintiff c10scd on thc Propcrty ... the original Icndcr:' prcsumably Ryland. allcgedly "signcd 'IPSA IPooling and Scrvicing Agrccmcnt] that govcrncd plaintiffs particular lOCI' NO.2 'i 21. Ryland subscqucntly mortgagc notc:' sold thc Loan to a sccuritizcd pool of as "TRUST 2007-1 Trust:' S"" iii. 'i 39. On Scptcmbcr 21. loans dcscribcd in thc Complaint 2011. MERS assigncd its intcrcst in thc Dccd of Trust to Bank ofAmcrica. National Association ("Bank of Amcrica ""). S"" ECF No. 16-2 at 2. On January 13. 2013. Bank of Amcrica assigncd
to U.S. Bank. S"" ECF No. 16-3 at 2. thc Dccd of Trust these documents without converting the ~,1otillll w Dismiss into on\: fiJI" Summary .::! The COlin may consult .Judgment. .V(/\'i.~(l1irJl1 !.It!.. 484 F.3d 700, 705 Hlh Cir. 20(7) r-In .\"1.'<.'511!(')' (!/.\'/all! For lJ<!.ti..'l/ct'\'. TrimM/!
lindeI' Rule 12(h)(6). we Illay properly take judicialnotict' of matters or reviewing the dismissal ofa complaint puhlic record:'): Colonial Penn Ins. Co. \', Coil. 887 F.2d 1236. 1239 (4th Cir. 19K9) (noting that .. the most frequent ofasccrtainahle facts is in noticin!!. the content OfCOUl1 records.") (inh:rnal t'itatiollS omith:d). usc ofjudkitllnotice :. Curi~usly. PlaintilThas attached 10 the Complaint only pages 1-3 and 14-15 (of 15) orlhe Dced ofT1'l1sl. lliniiting a majority or the contractual provisions emhodied in the Deed of Trust. ."(,l' ECF No, ).1 at 1-5.
*3 On July II. 201-1. following the apparent del;lult of the Loan. the Substitute Trustees initiated a loredosure action against English. Scc /Jill. ". I:'nglish. CAEF14-17893 (Cir. C1. Prince George's Cty. July II. 20I-l).~ The Circuit Court denied English's Motion to Stay Foreclosure Sale on March 9. 2015. Dk. 019. and also denied English's Motion to Dismiss on February 16. 2016. Dk. 030. English Iilecl a line suggesting bankruptcy on February 3. 2016. which automatically stayed the I(lreclosure action. Sce Dk. 031. The bankruptcy stay \\as lilied on September n. 2016. Dk. 032. The most recent docket entry in the !()reclosure action was entered on February 17.2017. and the matter remains active. Sec Dk. 0-10.
English Iiled a Complaint to quiet title against the Substitute Trustees and Detendants in the Circuit Court 1(1)' Prince George's County. Maryland on October 3. 2016.l:'nglish ". Ryland Mol'/g. ('0 .. CAE 16-38008 (Cir. C1. Prince George's Cty. October 3. 2016)5 Defendants removed the action to this Court on November 9. 2016. Scc lOCI' No. I. In the Complaint under review. Plaimiff English alleges ten counts against Delendants: (I) Lack of Standing to Foreclose. (2) Fraud in the Concealment. (3) Fraud in the Inducement. (4) Intentionallntliction of Emotional Distress. (5) Quiet Title. (6) Slander of 'I'it Ie. (7) Declaratory Rclief. (8) Violations of the Truth in Lending Act ("TILA"). (9) Violations of the Real Estate Settlement Procedures Act ("RESPJ\"). and (10) Rescission. lOCI' '0.2 at I. Plaintiff seeks damages. restitution. injunctive and declaratorv rclief. Motions to Dismiss have been Iiled lw Detendants Rvland. sce .. .. ECF No. 13. U.S. Bank. Wells Fargo. and MERS. scc lOCI' No. 16. and the Goldman Delcndants. sec ECF No. 17. Plaintiff liled an Opposition to the Motions. lOCI' No. 26. Ila\'ing -1 The Substitute Trustees in this matter are named as Buonassissi. Ilcrlllin~. Lash. PC. As of I\U!!lIst 4. 2017. the fon:closurc action was still in active status. See "- .... http://cascscarch.courts.statc.md.us/casescarch/inquiry Detail.jis'?cascld=CA EF 1417893& loc=65&detaill.oc= I)(j V (last visited August 4. 2017). Docket entries in the Circuit COlll1 case arc denoted herein as "[)k:" ~ Plaintiffs Complaint. ECF NO.2. is stamped as received on October 7.1016.
, .'
reviewed the parties' briels. the appropriate records. and relevant authorities. the Court no\\"
*4 grants the Motions to Dismiss."
II.
STANDARD OF REVIEW Defendants may "test the adequacy of a complaint by way of a motion to dismiss under Rule 12(b)(6):'Prelich \', ,\led Res, Il1c.. 813 F. Supp. 2d 654. 660 (D, Md, 2(11) (citing <iel'll/{111\', Fox. 267 F. IIpp'x 231.233 (4th Cir. 2(08)), Motions to dismiss for lililure to state a claim do "not resolve contests surrounding the lilets. the merits of a claim. or the applicability of defenses." Prelich. 813 F. Supp, 2d at 660 (citing Ed,,'ard, \', ('il)' oI'Cio/ill1wro. 178 F.3d 23 I. 243 (4th Cir. 1999)), The court should not grant a motion to dismiss for tililure to state a elaim lor relief unless "it is elear that no relief could be grant<:d under any set of facts that could be proved consistent with the allegations:' CiE lill'. Primle Placel11el1lParll1ersII \'. Parker. 247 F.3d 543. 548 (4th Cir. 2(01) (citing 11..1,Il1c. 1'. Norlllll'eslel'l7 Bell Tel, Co .. 492 U.S. 229. 249- 50) (1989)). To overcomc a Rule 12(b)(6) motion. a complaint must allege enough lilcts to state a plausible claim for rclief. Bell All. Corp. 1'. Tll'IJll1hly. 550 U.S. 544. 570 (2007): Ashcrofi \', Iqhal. 556 U.S. 662. 678 (2009). II elaim is plausible when "the plaintilTpleads lilclUal content that allows the Court to draw the reasonablc inference that thc defendant is liable for the misconduct alleged:' Iqhal. 556 U,S, at 678.
In evaluating the sufficicncy ofthc Plaintilrs claims. the Court accepts factual allegations in the complaint as true and construes the lactual allegations in the light most h As an initial matter. the Court declines to abstain from hearing this case bnscd upon the doctrine of rUllIIger abstention .. '~t'" ECF No, 16-1 at 6-7. As this Court noted in a recent decision rejecting defendant's argument for litting within the rOlli/gel" doctrine 3rc exceptional." r01/Hger abstention in the foreclosure context. "circumstances and "iJbstcntion from the exercise of fcderaljurisdictioll is the 'exception. not the rule.. ,. .-lgo/lliloh I'. r,\'(' "-in, Sel'\'s, (jl'I' .. No. GJII-16-1939. 2017 WL 657~28. at *~-5 (D. Md. Feb. 16.2017) (quoting ,';'1';111 ('Ol//I//C'I/ .. II/c, \'. Jacoh.,'. 134 S, Ct. 584. 588 (2013) (internal alterations omitted)): see al.w Tucker t', Spi!dali:ed l.oal1.\'enidng, LLC. 83 F. Supp, 3d 635. 646 (D. \1d. 2015) (finding }'Olmger not warranted il1mollgagor"s action against loan scrviccrs in federal COllll), Consistent with the Court's reasoning in Ago/lluo!J. the Court "ill exercise jurisdiction over Plaintiffs claims, *5 fllVorable to the Plaintiff See IlIhrighf I'. Olin'r. 510 U.S. 266. 268 (1994): Lmnherh t'. Hei. ot' CO/ll/ll'rs ,!/Dal'idsOIl Cr)'.. 407 F.3d 266. 268 (4th Cir. 2005). Ilo\\'ever. the complaint must eontain more than "legal eone!usions. elements of a eause of aetion. and bare assertions devoid of further flletual enhancement." Ne/llef Ch('l'rolef. Ud \'. COIISII/IIel'llffilirs.co/ll, 111<'.. 591 F.3d 250.255 (4th Cir. 2(09). Fed. R. Civ. P. 8(a) provides that "[aJ pleading that states a e!aimf()r relief must contain a short and plain statement of the e!aim showing that the pleader is entitled to relief." Although "no technical lorms of pleading are required. a complaint must 'gi\'e the defendant lair notice of\\'hat the plaintiff's claim is and the ground upon \\'hieh it rests .... Ellgle 1', Unifed Sfafes. 736 r. Supp. 670. 671 (D. Md. 1989). affd. 902 r.2d 28 (4th Cir. 1990) (citing Conley I', Ciih,\'(}{I. 355 U,S. 41. 48 (1957)), The Court is not obligatcd to aeeept unsupported Iellal allellations. Rewlle t'. Charles COIIIII\' CO/ll/llissiollers. 882 F.2d 870. 873 (4th Cir. 1989), . •.. ...
. legal conclusions couched as fllCtual allegations. t'. Allaill. 478 U,S, 265. 286 (1986). or l'apasml cone!usory factual allegations devoid of any reference to actual events. Unifed IJ/ack Fire/ighfers I', lIirsf. 604 F.2d 844. 847 (4th Cir. 1979).
III.
DISCUSSION A. Lack of Standin~/Wr()n~ful Foreclosure In Count One. English contends that DelCndants "do not have the right to foreclose on the Property beeausc Defendants ... have failed to perleet any security interest in the Property. or cannot prove to the court they have a valid interest as a real party in interest to I()ree!ose:' ECF No, 2 at 13. Thus. he e!aims ... the purported po\\'er of sale , .. no longer applies," lei. Plaintiff submits that the only parties \\'ho have standing to !(1I'ee!oseare the "holders of the Note'" \\'hom he alleges are ..the eertifieate holders of the securitized trust because they are the end users and pay taxes on their interest gains:' Id English further claims that Defendant MERS lacks *6 authority undcr its corporatc chartcr "to f(lI'cclosc a mortgagc or to own or trans IeI' an intcrcst in a sccuritizcd mortgagc:' and sccks to invalidatc thc transfcr ofthc Mortgagc/Dccd of Trust to U.S. Bank bccause thc transferor allcgcdly never "physically del ivcrl cd]"" thc Note. Id. at l3-f4. Plaintiff argucs that "I t Ihc Promissory Note and Mortgage/Dced
of Trust arc inscparablc:' and therefore the transfer ofthc Deed of Trust alone is a nullity. Id. at 15. Ilc rcqucsts thaI the Court "restrain" and "cnjoin" Delendants from j(Jreciosing upon the Property. Id. at 16. Plaintiirs claim fails f()r sevcral reasons,
Courts in this jurisdiction and c1se\\'hcrc havc "routinely rejected challcngcs to loan securitization 7 and assignmcnts cxccutcd through thc MERS systcm:' I'arker \". Alii. IJmkers Conduil. 179 F. Supp. 3d 509. 516-17 (D. Md. 2016) (dismissing lack of standing claim wherc plaintifTmadc idcntical argumcnt rcgarding dcfendants' "f~lillureJ to perfect any sccurity intcrcsC'): Reed,'. I'NC ;I/ortg, Civ. No. AW-13-1536. 2013 WI. 3364372. at *3 (D. Md . .July 2,2013) ("'Even assuming that his loan was sccuritizcd, PlaintifThas prcscntcd no hasis f(1I'thc Court to declare thc decd of trust invalid or uncnforccable:'): SIISS I'. .II' Morgal/ Chase 1J1/I1k. N,1.. Ci\'. No, WMN-09-1627. 2010 WI. 2733097. at *5 (D, Md, .July 9.2(10) (noting that "courts that havc considercd thc issuc havc found that thc [tv!ERS 1 systcm of rccordation is propcr and assignments madc through that systcm arc valid" and rcjccting theory that sccuritization rcndcrcd the promissory notc unenf()rccablc): Ruggia I'. Wash. ,I/ul .. 71') F. Supp. 7 Loan securitization may be explained as follows: "Real estate loan securitization creates a secondary lllar"CI for loans secured by mortgages on real property. Lenders originate loans and then sell a group or loans as a pool to an entity thai \vill issue securities:' Georgette C. Poindexler. Sunordintlled Rolling E(/lIil.'": Anllz\':il1,l!. Real 1:".\101(' 1.0lll1 Default;n fhe Era (!/',\'(,£'lIrifi:aliofl. 50 Emory L.J. 519. 521 (200 I): see also Anderson\', Bur.,'ol1 . ...t2...tMd. 232. 237 (20 II) r'Sccuritization starts whl'n a mortgagc originator sells a Illortgage and its note 10 a buyer. who is typicnlly a subsidiary of an investlllcnt bank .... The investment nank bundlcs together the multitude of mortgages it purchasl'd into a 'special purpose vchide: usually in the form ora trust. and sells the income rights to other inn:stors.") (citing 5';uhpriml' A/or/gage LeI/dill,'>!.. ami the .Hor/gage: Electronic Regis/ratiull Christopher L. Pelerson, Foreclosure. .~\"."elll. 7& lJ. Cill. L. Rev. 1359, 1367 (2010)). *7 2d 642. 647 (E. D. Va. May 13. 20 I 0) (.. ! A I dced of trust continucs
to securc thc holdcr of a notc and nothing in thc ... sccuritization of a notc rendcrs it unsccurcd:'). a{l"d. 442 F.App 'x. 816 (4th Cir. 2(11) (pCI' curiam). PlaintifTthus rclies upon a rcpeatedly rejected Iegalthcory in alleging that thc sccuritization of the Loan rcndcrs thc Deed of Trust invalid.
Plaintifrs argument that separating thc Decd of Trust Ii'om thc original Promissory Notc nullifics the assignmcnt of the Dccd of Trust is equally unconvincing. Courts in thisjurisdiction have rejcctcd this "separation theory" and "show me the notc"-type argumcnts. See. e.g.. Qualllehll/II// )'. /Jallk o(AII/ .. "'-A .. Civ. No. TDC-14-2688. 2015 WL 1085707. at *5-6 (I). Md. Mar. 10. 2015 ) (dismissing plaintifr s challenge to Bank of Amcrica' s authority to Illrcclosc whcrc plaintiff argued that Bank of Amcrica's cntitlcment to thc propcrty was defectivc bccausc
'0. DKC -13- thc Notc and Dccd of Trust had bccn scparatcd): .Iolles \'. Balik oj'N. l'. ,\fellol7. 3005.2014 WL 3778685, at *4 (D. Md . .Iu1.29. 2(14) (rcjecting contcntion that dclCndants must produce original note to cnforce thc notc): Ha/'/'is I'. Household Fil/(lI1('(' Co/'p.. R WT-14-606. 2014 WL 3571981. at *2 (I). Md . .Iu1.18, 2(14) (cxplaining that ..thcrc is no rccognizable claim" that a mortgagor must "produce 'wct ink' signaturc documcnts" in ordcr for a mortgagc to bc valid). Plaintilrs claim that DelCndants' right to foreclosc on the Propcrty is invalid or wrongful based on this thcory is thcrcfore not Icgally cognizable.
Morcovcr. Plaintiff has madc no allcgations that hc was a party to thc originalPSA or to any ofthc assignments of the Dccd of Trust. PlaintifTthcrcforc has no standing to challengc thc IlO IV. Fare/Ie SI.. 1.1.1.1' \'. ,\faro/' o(Ballill/o/'e, validitv ofthc PSA or assi1!nmcnts. . 426 Md.
~ . . ••... 14.36 (2012) (noting that Maryland law pcrmits only partics to a contract and third-party bcncficiarics to bring suit to cnfi.ll'cc the tcrms 01''1 contract): Bell \'. Clo/'ke. No. CV TDC-15- 1621. 2016 WL 1045959. at *2 (D. Md. Mar. 16,2(16) (stating that "mortgagors gcncrally lack *8 standing to attack transrers or their mortgages through assignments and PSAs to which they are not parties."} Finally. Plaintiff makes no allegations in the Complaint that the Goldman Defendants are or were involved in the foreclosure orthe Property. Plaintirr lilrther nlils to address MERS' arguments that it is not a party to the f()reclosure action. and is not attempting to loreclose on the Property. Accordingly. Count One for I.ack or Standing/Wrongfid Foreclosure is dismissed.
B. Fraud Claims In Count Two. Plaintiff allegcs that Defcndants committed .. rraud in the concealment" by "conceal[ingj the fact that the Loans were securitized as well as the terms or the Securitization Agreements."' ECF NO.1 ~ 76. In Count Three. Plaintiff alleges that Delendants committed "fhlud in the inducement" by "intentionally misrepresent[ingl to PlaintilTthose Defendants were entitled to exercise the power orsale provision contained in the MortgagelDeed or Trust." Id ~ 85.
To state a claim lor fraudulent concealment under Maryland law. plaintifTmust allege that "(I) the delendant owed a duty to the plaintilTto disclose a material ract: (1) the delCndant failed to disclose that ract: (3) the defendant intended to delhllld or deceive the plaintirr: (4) the plaintiff took action in justi liable reliance on the concealment: and (5) the plainti 1'1' sutkred damages as a result of the defendant's concealmcnt." Greeo \'. II & R Wock. loc.. 355 Md. -188. 525 (1999). To state a claim lin' fraud in the inducement. a plaintifT must allege "( I ) that the defendant made a false statement of material fact to the plaintifI (2) that its fillsity was cithcr known to the defendant or that the representation was made with reckless indiflerence as to its truth: (3) that the misrepresentation was made f()J'the purpose of defrauding the plaintirf: (4) that the plaintiffrclied on the misreprescntation and had the right to rcly on it: and (5) that the *9 plaintiff suffered compensable injury resulting Irom the misrepresentation'" Carroll
('0. ". Shenrill-JI'illial1ls Co .. 848 F, Supp. 2d 557. 566 (D. Md, 2012) (citing VFC()/i'. ". Wrexll£llll A "ialioll Corp .. 350 Md. 693 (rvld. 1998)).
Under Rule 9(b) of the Federal Rules of Civil Procedure. claims sounding inlhllld must be pled with particularity. Rule 9(b) requires a plaintiff alleging fraud to make spccilic allcgations regarding ..the time. placc. and contents of the I~llscrepresentations. as wcll as the identity of the person making the misrepresentation. and what Iwasl obtained thereby'" Kerhy ". Morlgage FUlldillg COli'" 992 F.Supp. 787. 799 (0, Md, 1998): see also U.S. ex rei. Wilsoll ". Kellogg BrowlI & ROOI, 111('.. 525 F,3d 370. 379 (4th Cir. 2(08) (describing the "who. what. when. where. and how of the IraLldclaim). "Failure to comply with the pleading requirements of Rule 9(b) is treated as a I~lilureto state a claim under Rule 12(b)(6)'" Nal'l Mong. Warehol/\e, HC ". hikeriolis. 201 F. Supp. 2d 499. 504 (D, Md, 20(2).
Here. I'laintitrs boilerplate Complaint and conclusory allegations do notmcet the heightencd standard of Rule 9(b). as he does not include the timc. place. idcntity orthc person making thc misrepresentation. or what was obtained thereby, Plaintifr I~lilsto plead particularizcd l~lctSin support or his claims that the Dcfendants li'audulently concealed the I~lctor securitization or fraudulently induced him to enter into the I.oan, See SOl1larriha \'. Greellpoilll Morlg FUlldillg, 111('.. No, 13-CV -072-R \VT. 2013 WI. 5308286. at *4 (D, Md, Sept. 19. 2013) (dismissing Ihllld claims in ncarly idcntical complaint where plaintilThomeowners "liled to plead the time. place. contents of any raise representations. or identities or the wrongdoers). PlaintilTalso refers to the Defendants collectivcly throughout the Complaint. making it impossible to discern which Defendant may be liable for which omission or misrepresentation, See 1'00rdi \'. COlllll1:nride Balik. '0, CV I'X 16-1201. 2016 \VI. 5815884. at *6 (D. Md. Oct. 4. *10 2016) (dismissing Iraudulent concealment and IraLld in the inducement claims where plaintirr mortgagors lumped defendants into one group). For this reason alone. Plaintitrs fi'aud claims arc subjcct to dismissal.
Even irthe Court allowed Plaintiff 10 elaborate on these deficientlraud claims. such claims would still Illil. As the Court explained supra. Plaintin-s theorics regarding loan securitization. scparation of the Notc and Dced of Trust. and Defendants' resulting standing to I(Jreclose are without merit. leaving Plaintiff without a leg to stand on in his Ihuld claims. Furthermore. the statute of limitations I(Jr a civil action under Maryland law is ..thrce ycars li'om the date it accrues unless another provision of the Code provides a different period or time within which an action shall be commenced:' Md. Code. Cts. & .Iud. Proc. ~ 5-10 I. Plaintifr has not alleged that he was unable to discover the purported Irmld within three years or executing the Deed or Trust and obtaining the mortgage Loan in September 01'2006. nor docs he make any regarding tolling. See Doe \'. Archdiocese o(lJ'ash .. 689 A.2d 634. 643 (Md. Ct. viable argument Spec. App. 1(97) (noting that ..the complaint rclying on the lraudulent eoneealmcnt must also contain specific allegations or how the fraud kcpt plaintiff in ignorance ora cause or action. how the IraLld was discovered. and why there was a delay in discovering the Iraud. despite plaintitrs diligcnee."). Accordingly. in addition to the deficiencies under Rules 9(b). Plaintin-s rraud claims are also time-barred. Parker \'. Alii. Brokers Conduit. 179 F. Supp. 3d 509. 518 (D. Md. 2016) ("even iI' Plainti ITcould theoretically cobble together a justiciable li'aud claim based on inl(JrIlJation that was witbheld at the time or the loan transaction. such a claim would presumably be time-barred"). Counts Two and Three arc dismissed.
*11 C. Intentional Infliction of Emotiollal Distress In Count Four. English allcgcs that Delcndants' actions hm-c ..thrcatcncd [himl with the loss of the Property:' and that Delcndants "intcntionally. knowingly and recklessly misrcprescnted to thc Plaintiff Ithat] those Delcndants wcre entitled to excreise the power of sale provision" with the "specific intent of intlieting cmotional distrcss on the Plaintiff:' ECF No, 2 'i~ 93. 95. 97. PlaintilTthcreforc
asscrts a claim for intcntional intliction of emotional distrcss, To state a claim for intcntional intliction ofcmotional distress ("liED") PlaintilTmust allege that: ,,( I) the delcndant's conduct was intentional or reckless: (2) the conduct was extrcme and outrageous: (3) thcrc was a causal eonncetion betwcen thc wrongful conduct and the cmotional distress: and (4) that the cmotional distress was severe:'llal'l'is ", .Jolles. 281 Md,56(). 566 (1977). In Maryland. an liED claim is "rarcly \'iable:' BOl'chers \', I ":rchllk. 126 Md. i\pp. 10. 19 (1999). Accordingly. an liED claim is subjcct to a heightcned pleading standard. and cach clement of the claim must be "pled with specificity:' Washillg/oll r, ,\{a,l'lIal'd. No, CV GLR-13- 3767.2016 WL 865359. at * 10 (I), Md. Mar. 7.2(16) (citing Bag\l'c{{ \', I'ellills/ll" Reg'{ Met!. 01' .. 665 A.2d 297. 319 (Md, C1. Spec. App. 1995)),
English lalls far short ofthc requircments for pleading anilED claim, English I~lils to detail the "extreme and outrageous" conduct by Dclcndants. and I~liIs to plead Illcts that "i f true. \', Balik o{Am .. .v,A .. No. CIV, would rise to thc levcl of severc cmotional distress:' Simmolls P.lM 13-0733.2014 WL 509386. at *5 (D, Md, Feb, 6. 2(14) (dismissing liED claim in foreclosure context), While Plaintiff baldly asserts that he has suffcred "slecpless nights. sevcre depression. lack of appetite. and loss of productivity:' ECF 0, 2 '1101. he olkrs no allegations showing that Delcndants' attemptcd I()reclosure was conducted in "deliberate disregard ofa high degree of probability that emotional distrcss would 1()1I0",:' or that such conduct went "bcyond
II
*12 all possiblc bounds of decency:' HlIrris. 281 Md. at 6 II (1977): see lI/so ASllfil-Ad;ei \', First Sm'illf!,s ;\Iortf!,lIf!,e Corp .. No. RWT-09-2184. 2010 WI. 730365. at *5 (D. Md. Fcb. 25. 2010) (noting that thc Court "cannot imaginc 1I11)' sct of facts surrounding a mortgagc transaction that would SUPPOI1 an infercncc of cxtrcmc and outragcous conduct:'). Plaintitrs allcgations do not state an liED claim. Count Four is dismisscd.
D. Shinder of Title In Count Fivc. Plaintiff claims that Dcfendants "disparagcd Plaintiffs cxclusivc valid title by and through the prcparing. posting. publishing. and recording" of such documcnts as thc otice of Default. Noticc ofTrustcc's Salc. and Trustcc's Dccd. ECF No. 2 ~ 104. Plaintiff allcgcs that DclCndants "kncw or should havc known that such documents wcre improper in that at the time of thc cxccution and dclivery of said documcnts. Dcfendants had no right. title. or interest in thc Property:' Id. '1105.
In an action for slander of title. or injurious fliischood. plaintifTmust "establish that the dcfendant. with mal icc, publishcd a known falsity to a third party that causcd spccial damagcs:' Gihho/lS \'. BlIllk of A 1/1. Corp .. No. elY . .IFM-08-351 I. 2012 WI. 94569. at * 10 (D. Md . .Ian. 1 I. 2012) (citing Homing I'. HlIl'l~l', 36 Md. App. 419 (Md. 1977)). Slandcr oftitlc is thus similar to a deflllnation claim. but diners "matcrially in thc greatcr burdcn ofproofrcsting on thc plaintifl: and thc neccssity 1<.11' spccial damagcs in all cascs:' Belllle \'. ;\I(,,\/II//ell 265 Md. 585. 608 (1972). Additionally. "the plaintitTmust provc in all cascs that thc publication played a matcrial and substantial part in inducing othcrs not to dcal with him. and that as a rcsult hc suflercd spccial !d damagc:'
In English's case. hc cannot plausibly allegc that Defendants publishcd a "known tliisity:' because thc Dccd of Trust cxpressly authorizcs thc powcr of sale bascd upon thc rcpaymcnt (or *13 non-repayment) of PlaintifTs Loan. see ECF NO.3-I at 3. and Plaintiff did not allege in his
s See Parker 1'. Alii. Brokers COlldllil. 17') F. Complaint that he was current on his payments. Supp. 3d 509. 519 (D. Md. 2016) (dismissing slander of title claim where Deed expressly authorized fiJreciosure and Plaintiffncvcr disputed his mortgage paymcnts were in arrcars): SillllllOIlS 1'. Balik of A 111.. NA .. Civ. No. P.lM 13-0733.2014 WL 509386. at *5 (D. Md. Fch. 6. 2014) ("'Dominating everything c1sc ... is thc Illct that the Deed of Trust givcs thc mortgagcc or assignee the right to forcclose on thc Property. As a result. any Notice of Default or Notice of Forcclosurc ... could hardly be falsc.").
Morcovcr. Plaintiff fails to idcntify which Dcfcndants crcatcd or publishcd thc allegcd flllsity. or allege how such publication played "a matcrial and suhstantial part" in causing "special damagc" to Plaintiff. See SOlllarri!Ja \'. (1reenpoinl Mortg. Fllnding. InL'.. No. 13-CY- on-R WT. 2013 WL 5308286. at *5-6 (D. Md. Scpt. 1').2013)
(dismissing slandcr of title claim whcrc plaintiff fllilcd to plead more than bare allegations). Whilc PlaintilTvagucly rcfercnces "expcnscs" that he incurrcd "in order to clear title:' along \\'ith myriad cmotional harms. hc docs not allegc surticient fllctual content Irom whieh the Court ean plausihly inkr that Defendants' publications eauscd him damages whieh "rcsult in a pecuniary loss directly or immediatcly fhllll the conduct of third persons:' ROllnd,. 1'. MmJ'land-Nal. Capilal Park <I: Plmllling ('0111111 '11.441 Md. 621. 663 (2015) (defining "spccial damages"). Count Five is dismissed. K In Plaintifl~s Opposition. he asserts. fix the lirst timC'. that ..[tJhe loan in question has hCC'1lp<lid in full." ECF No. 26 al 3. and attaches an "International Promissory Note (UNCITRAL Convention)" to "prove" this as~crtion. This document is not legal tender. and such an argulllent is without merit in Plaintiffs case. J\//IlTiI11', CapillllOl1l'. No, I: I S-CY -1310.2016 WI. 4548382. at *4 (\V,D. Mich. Aug. 16.2016). report and r(!COl11l11entiarirm adol'fl'd. No. I: 15-CV-131 O. 2016 WI. 4541997 (W.O. Mich. Aug. 31. 2016) (compiling cases rejecting this theory and finding argument that said international promissory notes are legal tender ""isnonsense").
*14 Eo Quiet Title In Count Six. Plainti!Tseeks to quiet title on the Property. ECF No, 2 at 21, In an aetion to quiet title. Maryland law requires that no proeeedings he "pending to enltliTe or test the title or e1aims thereto." Rob('/'son \', Ginnie Mae REMIC Tr, JIJIIJ 1/1)/. 9731', Supp, 2d 585. 590 (D, Md, 2013): see a/so Md. Cocie. Real Prop, ~ 14-108(a) (providing that "any person in actual peaeeahle possession of property, . , may maintain a suit .. , to quiet or remove any cloud Ii'om the title. or determine any adverse e1aim" when ..the person's title to the property is denied or disputed" and "if an action at law or proeeeding in equity is not pcnding to cnforee or test the validity of the title"),
Courts in this jurisdietion have routinely dismissed e1aims to quict title while a It)reelosurc action remains pending in state eourt. as it does here. See, e.g .. Park('/' ", .,1111. Brok<'l's Com/llil. 179 F. Supp. 3d 509. 519 (D. Md. 2016) ("llere. there is no question that a !tlreelosure action remains pending in state court: in nlet. it was that state aetion that prompted Plaintiffs Complaint. So even if Plaintiffs quict-titlc rcquest had mcrit. the Court would lack jurisdietion it."): Roberson. 9731', Supp. 2d at 590 ("Plaintiff has 1[liled to state a e1aim to quiet to considcr title bceause there is an active procecding regarding the title."): Rwnire:: ", Wells Fargo Bank. N.A .. NO.PWG.14.3819. 2015 WL 5052787. at *5 (D, Md. Aug. 25. 2015) (same), The It))'eelosure aetion against English's home remains aetive in the Cireuit Court Itll' Prince . . \', /,'n~/ish. CAEF14-17893 Georce's Countv.BIIL (Cir. Ct.Prinee Georce's Ctv . .Iulv 11. 2(14). . .
'- ••.. the reeords ofwhieh the Court takesjudieialnotiee: therefore. Plaintiffeannot maintain his e1aim It))' quiet title. Count Six is also dismissed,
*15 F. Declaratory Relief In Count Seven. English "requests ajudicial determination of the rights. obligations. and interest of the parties with regard to the Property'" including a determination as to the "validity of the Mortgage/Trust Deeds as of the date the Notes were assigned without a concurrent assignation of the underlying Trust Deeds'" and "whether any Defendant has authority to foreclose on the Property'" ECF NO.2 'i'i 123. 124. 126.
"[Tlhe granting of declaratory relief is entrusted to the discretion of the district court'" (/real AlllericalllllS. Co. \'. (/ross. 468 F.3d 199.209 (4th Cir. 2(06) (citing 28 U.S.c. ~ 2201 ("[AJny court of the United States. upon the tiling of an appropriate pleading. may declare the rights and other legal rclations of any interested party seeking such declaration"): see also Md. Code. Cts. & .Iud. Proc. ~ 3--406 (providing that "[ajny person interested under a deed ... may have determined any question of construction or validity arising under the instrumcnt .. "'). Fedcral courts may issue declaratory judgments only in cascs that (i) meet thc constitutional "case or controversy" requirement. and also (ii) present a valid basis 1(11" subject matter jurisdiction. 5;ee.Ie{key Ballks. Ltc!. I'. .los. A. Balik Clothiers. IIIL".. 619 F. Supp. 99R. 100 I (D. Md. 1985). F1II1her. even where a request for declaratory relief meets hoth of these requirements. the district court must. "in its discretion ... be satisfied that declaratory relief is appropriate'" White \'. Nal'l Ullioll Fire IllS. Co. ol"l'illshllrgh. I'a .. 913 F.2d 165. 167 (4th Cir. 1990).
Because the Court has already found Plaintifrs legal theories regarding Defendants' standing to foreclose on the Propcrty to be fatally flawcd. the Court will also reject I'laintifrs request I()r declaratory judgment to the same eflcct. See I'ruitl \'. Wells Fargo Bank. N.,I.. No. CV DKC 15-1308.2015 WI. 9490234. at *8 (D. Md. Dec. 30. 2(15) (dismissing claiml(l!' declaratory relief and noting that "even crediting Plaintiffs allegation that Delcndants are not in *16 actual possession ol'the original Note. entry 01' Plaintil'fs requested declaratory reliel' is not warranted because it contravenes Maryland law."). Furthermore. PlaintitTs vague tllctllal allegations prevent the Court Ii'om issuing a declaratory judgment that would sen'C "a usel'ul purpose in c1aril'ying and settling thc legal relations in issue:' or "af!(ml relicI' ti'01l1the
giving rise to the proceeding:' CI'III<'1111ia/ Ute IllS. CO. uncertainty. insecurity. and controversy I'. /'oslol7. 88 F3d 255. 256 (4th Cir. 1996). Count Se\'en is dismissed.
G. T1LA, HOEPA and RESPA Claims In Count Eight. Plaintiffal1eges "Violation ol'TILA and 1I0EPA. 15 U.S.c. ~ 1601 1'1 seq." ECF NO.2 at 23. TILA "is a federal consumer protection statute intended to promote the informed use 01' credit by requiring certain disclosures li'om lenders. IIOEPA. \\hich was enacted as an amendment to TILA. 'applies to a special class 01' regulated loans that arc made at higher interest rates and are subject to special disclosure requirements .... lIasall \'. Fl'il'dll/all & ,lIacF,/{~\.C'J1. /'.A .. No. CIV.A. DKC 11-3539.2012 WL 30\2000. at *5 (D. Md . .Iuly 20. 2012) (citing 1111'1'COI/1I11lll/il)' Balik o(Nor/hall /'0 .. 622 F.3d 275. 282 (3d Cir. 2(10): \5 U.S.c. ~ 1639).
An action liJr damages based upon TlLA and HOEPA disclosure requirements "must be brought within one year I'rom the date ol'the occurrence ol'the violation:' and the \'ioiation date can be "no later than the date the plainti tT enters the loan agreement." I {!.ISall. 2012 WL 3012000. at *5 (citing Hood \'. AIII'O/,({ LO'1/1 Sl'n's .. Civ. No. CCll-IO-1 I. 20\0 WL 2696755. at *2 (D. Md . .Iuly 6.2(10)): see 15 U.S.c. ~ 1640(e). A claim lilr rescission under TILA "must be brought within three years ol'the loan closing:' /'ills \'. 11/,d/o. No. G.lH.15-45 I. 20 \5 WL 4770941. at *3 (D. Md. Aug. I I. 20\5) (citing 15 U.S.c. ~ \635(1)).
\6 *17 In Count Ninc. PlaintilTallcges "Violation ofRESPA. 112] U.S.c. ~ 26011!/S"lf." ECF NO.2 at 24. Congrcss enactcd RESPA to "insurc that consumcrs ... arc providcd with grcater and more timcly information on the nature and costs of the scttlement process and arc protcctcd trom unnecessarily high scttlcmcnt chargcs caused by ccrtain abusivc practices .. :. I'i/ls \'. ,I/o::ilo. No. GJH.15-451. 2015 WL 4770941. at *3 (D. Md. Aug. II. 2(15) (citing 12 LJ.S.c. ~ 2601). Similar to claims undcr TILA. a RESPA claim hrought by a privatc litigant must bc brought within eithcr onc or thrce years Irom the date ofthc occurrcnce of the violation. S"" 12 LJ.S.c. ~ 2614. Thc limitations pcriod "begins to run ti'om the datc thc loan agrecmcnt was cntcred into:' Hrlllrll I'. /Vil/lling/on Fill.. No. CCB-l J -699.2012 WL 975541. at *4 (D. Md. Mar. 21. 2012) (citation omittcd).
llere. PlaintilTs Loan closed on Septcmber 13.2006. more than tcn ycars hellll'e he tiled this Complain!. ECF NO.2 'i 29: ECF NO.3-I at I. Although cquitable tolling may apply in TILA and RESPA claims in limitcd circumstanccs. "setting asidc thc statutc of limitations as to such claims is no easy task:' CIrolll \'. Shapiro &- HI/r.llln. LL/'. 871 F. Supp. 2d 462. 470. n.1 0 (D. Md. 2(12). To do so. PlaintitTmust show traudulent conccalmcnt and thc "inability ofthc plaintiff. dcspitc due diligcncc. [0 discovcr the ti'aud:' Id.: Sl!" also FIIII'/l!!' \'. /V"lls I'«(rgo Ilo/lll! .\lor/g. I"c.. GJH-15-1084. 2015 WL 2342377. at *3-4 (D. Md. May 13.2(15) (rcjccting argument of cquitable tolling whcre plainti ff did not providc rationale li)r why shc \\'as unable to discovcr injury through due diligence). English has not made this slu)\\'ing herc. and "mcrcly intoning the word 'fraudulcntly' ... is not surticicnt to raisc thc doctrine ofcquitable tolling." CIralll, 871 F. Supp. 2d at 470, n.l 0 (internal citations and altcrations omittcd). As thc Dcfcndants' allegcd actions took place on Septcmbcr 13.2006, and PlaintitT does not state *18 suflicicnt facts to warrant equitable tolling. these claims arc barred by the statute of limitations. Counts Eight and Nine are dismissed.
H. Rescission Finally. in Count Ten. Plaintiff claims he is entitled to rescind his l.oan and all accompanying l.oan documents due to "J) TILA Violations: 2) Failure to provide a Mortgage l.oan Origination Agrcemcnt: 3) Fraudulent Concealmcnt: 4) Fraudulent Induccmcnt: 5) tililure to abide by thc PSA: 6) making illegal or fraudulent transters of the Note and ivlortgage/lked of Trust: and [7]) Public Policy Grounds:' ECF NO.2 '1149.
As noted above. Plaintiirs TILA claim Ill!' rescission is barred by the three-year statute of limitations. The Court has further found Plaintilrs other theories in support of rescission to be without merit. Finding no legally cognizable grounds lor rescinding the l.oan. Plaintiirs final .. N..'1.. No. CIV. P.lM 13-0733.2014 cause of action shall be denied. See Simmon\' \'. /Jt/llk o(AIII WL 509386. at *7 (D. Md. Feb. 6. 2014) ("'[Tlo the extent II'laintitrsj claim Il)J' rescission rests on other causes of action in the Complaint. her Iililure to allege tilctS in support of any of these other claims is also the death knell of her rescission claim"): SOIllt/rri!Jt/ r, (in'ell/will/.l/"r'g
Inc .. No. 13-CV-072-RWT. 2013 WL 5308286. at *9-10 (D. Md. Sept. 19.2013) Fundillg. (dismissing rescission claim where other underlying causes of action had been dismissed). Count Ten is dismissed.
I. Motion to file Surreply Plaintiff has moved to lile a Surreply in this case. ECF No. 30. l.oc. R. 105.2('1) pn1\'ides that ..[u Jnless otherwise ordered by the court. surreply memoranda arc not permitted to be tiled:' Loc. R. J05.2(a) (D. Md. July I. 2(16). Further. "[slurreplies may be permitted when the moving party would be unable to contest matters presented to the court tl)r the lirst time in the opposing *19 party's reply:' Kholll}' I'. lv/eseI've. 268 F. Supp. 2d 600. 605 (D. Md. 2003) (internal citations omitted). Because Plaintiff has given no indication that he was unable to contest the matters presented in Defendants' Motions to Dismiss in his first Opposition. and the Court finds that Plaintiff was afTorded sufficient opportunity to do so. his Motion for Leave to File Surreply shall be denied.
VI. CONCLUSION
For the foregoing reasons. Defendants' Motions to Dismiss. ECF Nos. 13. 16. and 17. are granted. I'laintitTs Motion for Leave to File Surreply. ECF No. 30. is denied. A separate Order shall issue.
&I~L United States District Judge 1I Dated: August .2017