ALEEA PROCTOR, Plaintiff, v. WELLS FARGO BANK, N.A., et al., Defendants.
Case No.: PWG-17-113
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division
January 25, 2018
Paul W. Grimm, United States District Judge
On September 13, 2007, Plaintiff Aleea Proctor obtained a $126,889.98 mortgage loan secured by the real property she purchased at 2066 Shadyside Avenue, Suitland, Maryland 20746 (the “Property“). Am. Compl. ¶¶ 20-21, ECF No. 20. After a foreclosure action was initiated against Proctor in the Circuit Court for Prince George‘s County, Case No. CAEF15-00209 (the “Foreclosure Action“), id. ¶ 31, resulting in the sale of the Property and a state court Order of Judgment awarding possession of the Property to Defendant Federal National Mortgage Association (“Fannie Mae“), Proctor filed suit in this Court.1 ECF No. 1. In addition to Fannie Mae, Defendants include Wells Fargo, N.A. (“Wells Fargo,” and together with Fannie Mae, the “Lenders“); the “Substitute Trustees” who initiated the Foreclosure Action (Howard N. Bierman, Joshua Coleman, Nicholas Derdock, Jacob Geesing, Richard R. Goldsmith, Jr., Elizabeth C. Jones, Jason Kutcher, Pratima Lele, Ludeen McCarthy-Green, and Carrie M. Ward); and Prince George‘s County Sheriff Melvin High. Am. Compl.
Background
Proctor used her Property to secure a $126,889.98 mortgage loan and executed a Deed of Trust on the Property in favor of the original lender, Wachovia Bank, N.A. (“Wachovia“). Thereafter (presumably because Proctor fell behind on her mortgage payments, although none of the parties state the reason for the Foreclosure Action or whether Proctor was current on her mortgage payments), Wells Fargo-not Wachovia-appointed the Substitute Trustees pursuant to the Deed of Trust to initiate foreclosure proceedings. Am. Compl. ¶ 26. Proctor claims that Wells Fargo was not the proper holder of the Deed of Trust and therefore lacked the authority to foreclose on her Property through the Substitute Trustees. Id. Yet, Wells Fargo acquired Wachovia in 2010. See Wachovia‘s Institution History, Nat‘l Info. Ctr., ECF No. 31-2.2
The Substitute Trustees filed the Foreclosure Action against Proctor in the Circuit Court for Prince George‘s County, Am. Compl. ¶ 31, and Proctor filed counterclaims against the Substitute Trustees, which the court dismissed with prejudice. State Ct. Docket, http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=CAEF1500209&loc=65&detailLoc=PGV. The Property was sold through the Foreclosure Action, and the state court ratified the sale on March 22, 2016. Id. On September 13, 2016, the state court entered an Order of Judgment awarding possession of the Property to Fannie Mae. Id. Proctor filed a motion to vacate the judgment, which the court denied. Id. The court issued a Writ of Possession on September 21, 2016 for the Prince George‘s County Sheriff to serve.3 Id.
At that point, when an Order of Judgment had been entered but the Foreclosure Action remained open, Proctor filed a 63-page complaint in this Court on January 13, 2017, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
The named Defendants noted their intent to file motions to dismiss, ECF Nos. 6, 10, 15, and I permitted Plaintiff to file an amended complaint to address the deficiencies Defendants
Plaintiff filed a verified Amended Complaint, ECF No. 20, removing BWW, Heid and Hernandez as Defendants and adding the Substitute Trustees as Defendants. See Pl.‘s Opp‘n to Lenders’ Mot. ¶ 5, ECF No. 39.4 In her Amended Complaint, Proctor also abandoned her RICO claims. With regard to the Lenders, she alleges wrongful foreclosure and violations of the Fair Debt Collection Practices Act (“FDCPA“),
Sheriff High and the Lenders moved to dismiss, ECF Nos. 26 & 31, and the Substitute Trustees filed a pre-motion conference request with regard to filing a motion to dismiss. ECF No. 35. I permitted them to file a motion that adopted the grounds that the other Defendants had raised, stating that any dismissal on those grounds would be with prejudice as Plaintiff already
Standard of Review
The Lenders, Sheriff High, and the Substitute Trustees move to dismiss pursuant to Rule 12(b)(6), under which Proctor‘s pleadings are subject to dismissal if they “fail[ ] to state a claim upon which relief can be granted.”
Rule 12(b)(6)‘s purpose “is to test the sufficiency of a [claim] and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense, such as res judicata, “clearly appears on the face of the [pleading],” however, the Court may rule on that defense when considering a motion to dismiss. Kalos v. Centennial Sur. Assocs., No. CCB-12-
Discussion
Claims against the Lenders and the Substitute Trustees
Proctor brings various federal statutory and state tort claims against the Lenders and the Substitute Trustees. Am. Compl. ¶¶ 40-45. In response, these Defendants raise various grounds for dismissal, one of which is the affirmative defense of res judicata, or claim preclusion. When, as here, federal court litigants assert that a state court judgment has preclusive effect, “[the] federal court must give to [the] state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Under Maryland law, res judicata, or claim preclusion, provides grounds for dismissal if a defendant establishes that “(1) the present parties are the same or in privity with the parties to the earlier dispute, (2) the claim presented is identical to the one determined in the prior adjudication, and (3) there has been a final judgment on the merits.” Capel v. Countrywide Home Loans, Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md. Feb. 3, 2010) (citing Anne Arundel County Bd. of Educ. v. Norville, 887 A.2d 1029, 1037 (Md. 2005)).
1. Same parties
In the Foreclosure Action, Proctor was the defendant and Ward, Bierman, Geesing, Lele, Monto and Coleman (“WBGLMC“), acting as substitute trustee, was the plaintiff. Here, Proctor sues the Lenders, the Substitute Trustees, and Sheriff High (who does not assert res judicata and whom I will not consider for purposes of this discussion). The Lenders argue that “for the
Rather, Proctor opposes the application of res judicata to her claims against the Lenders on the basis that Wells Fargo has not “produce[d] a single document attesting to its status as noteholder and thus it cannot establish privity with the substitute trustees.” Pl.‘s Opp‘n to Lenders’ Mot. 7. But, I “take[ ] judicial notice of the fact that . . . on or around March 20, 2010, Wachovia merged with Wells Fargo.” Wells Fargo Bank, Nat‘l Ass‘n v. KT Mech. Contractors, Inc., No. 11-850-AW, 2011 WL 5005994, at *1 (D. Md. Oct. 18, 2011); see Wachovia‘s Institution History, Nat‘l Info. Ctr.;
2. Same claims
Under Maryland law, courts apply the transaction test to determine whether claims are identical. See Kent Cty. Bd. of Educ. v. Bilbrough, 525 A.2d 232, 238 (Md. 1987). “Under the transaction test, a ‘claim’ includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the claim arose.” Boyd v. Bowen, 806 A.2d 314, 325 (Md. Ct. Spec. App. 2002) (citing FWB Bank v. Richman, 731 A.2d 916, 928 (Md. 1999)). Notably, res judicata bars not only claims from the original litigation, but also other claims that could have been brought in the original litigation. Id. (citing Gertz v. Anne Arundel Cty., 661 A.2d 1157, 1161 (Md. 1995)). This Court consistently has held that res judicata bars collateral attack on foreclosure judgments. See Prudencio v. Capital One, N.A., No. PWG-16-2693, 2016 WL 6947016, at *3 (D. Md. Nov. 28, 2016) (concluding that the second element was satisfied because “all of Plaintiffs’ present claims” of violations of the FDCPA, the RESPA, and RICO; negligence; breach of fiduciary duties; fraud and misrepresentation; civil conspiracy; and intentional infliction of emotional distress “could have been raised in the foreclosure action“); Jones v. HSBC Bank USA, N.A., No. RWT 09CV2904, 2011 WL 382371, at *5 (D. Md. Feb. 3, 2011) (holding that claims for violations of the FDCPA, breach of fiduciary duty, and fraud could not be brought in this Court, as the claims could have been raised in the foreclosure proceeding), aff‘d, 444 F. App‘x 640 (4th Cir. 2011); Anyanwutaku, 85 F. Supp. 2d at 571 (concluding that plaintiff‘s claims for, inter alia,
As noted, Proctor claims that the Lenders and the Substitute Trustees wrongfully foreclosed on her Property, and she seeks injunctive relief. Am. Compl. ¶¶ 44, 45. Additionally, she brings a claim for slander and to quiet title against Fannie Mae. Id. ¶ 41. The crux of these claims is that the Lenders did not properly hold the Deed of Trust, such that they could not appoint the Substitute Trustees to foreclose on the Property, and therefore the Foreclosure Action was litigated without authority. Additionally, contradicting her own assertion that Wells Fargo does not hold the Deed of Trust, Proctor sues Wells Fargo for breach of that contract and the Note and claims that Wells Fargo and the Substitute Trustees, in servicing the loan and initiating the Foreclosure Action, violated the FDCPA and the MCDCA, and Wells Fargo violated the RESPA. Am. Compl. ¶¶ 40, 42, 43. These claims, also, relate to Defendants’ handling of her mortgage loan, culminating in the Foreclosure Action.
Thus, the state court Foreclosure Action and the present case relate to the same transaction or occurrence: the Note and Deed of Trust on the Property and the Foreclosure Action that resulted when Proctor apparently failed to make payments. Therefore, all of Proctor‘s present claims against the Lenders and the Substitute Trustees could have been raised in the foreclosure action. See Prudencio, 2016 WL 6947016, at *3 (FDCPA and RESPA claims and state tort claims could have been brought in foreclosure action); Bullock v. Ocwen Loan Servicing, LLC, No. PJM-14-3836, 2015 WL 5008773, at *5 (D. Md. Aug. 20, 2015) (finding that plaintiff‘s FDCPA and RESPA “statutory claims [we]re premised on [plaintiff‘s] contention that the Defendants lacked the legal authority to enforce the note and deed of trust” and therefore “the statutory claims ar[o]se out of the same series of transactions” as the state foreclosure action
3. Final judgment on the merits
The Property was sold through the Foreclosure Action, the state court ratified the sale on March 22, 2016, and the court entered an order of judgment on September 13, 2016, awarding possession to Fannie Mae. The ratification of sale constitutes a final judgment for preclusion purposes. See McGhee v. JP Morgan Chase Bank, N.A., No. DKC-12-3072, 2013 WL 4495797, at *6 (D. Md. Aug. 20, 2013) (“The important ruling in foreclosure cases is the circuit court‘s ratification of the foreclosure sale. ‘When a state court finalizes a foreclosure after the “plaintiff was given an opportunity to raise all objections to the foreclosure sale of [a] property,” that adjudication is a final judgment on the merits.‘” (quoting Capel v. Countrywide Home Loans, Nos. WDQ-09-2374, WDQ-09-2439, 2010 WL 457534, at *4 (D. Md. Feb. 3, 2010))); Graves v. OneWest Bank, FSB, No. PWG-14-1995, 2015 WL 2452418, at *6 (D. Md. May 20, 2015), recons. denied, 2015 WL 6769115 (D. Md. Nov. 2, 2015), aff‘d, 653 F. App‘x 788 (4th Cir. 2016). Therefore, there was a final judgment on the merits.
Civil Rights Claims against Sheriff High
Proctor sues Sheriff High “in his individual capacity as well as his official capacity as Sheriff and as employer/supervisor of certain unnamed deputies.” Am. Compl. ¶ 14. She claims:
36. On or about January 3, 2017, Defendant Sheriff High, or a deputy sheriff unknown to Plaintiff and 10 unidentified men invaded the Subject Property and terrorized Plaintiff‘s tenants living at said property who called Plaintiff. Plaintiff was shocked, aggravated, embarrassed and greatly stressed by the conduct of Defendant Sheriff High and/or his deputy and posse who threatened to evict Plaintiff‘s tenants and throw their things outside. It was only after Plaintiff had an advisor to speak with Defendant Sheriff High and/or his deputy which advisor asked for a warrant under the 4th Amendment that the Defendant Sheriff and/or his deputy agreed to leave but promised to come back in two weeks.
37. At the time the Defendant Sheriff and his posse invaded Plaintiff‘s property, they did not have a warrant nor a Writ of Possession nor any other legal authority to evict Plaintiff‘s tenants or otherwise interfere with Plaintiff‘s property rights. In fact, the Attorney General in a letter to the Court stated that no Writ of Possession or other warrant at been issued to Sheriff High. Plaintiff asks the Court to take judicial notice of said letter which appears among the papers of the above-entitled and numbered cause and which is incorporated herein by reference for all purposes.6
38. Sometime in March 2017, Defendant Sheriff High and/or his deputy returned to Plaintiff‘s property and so terrorized her tenants that the tenants abandoned the property and the property remains uninhabited. . . .
. . .
46. REDRESS FOR VIOLATIONS OF CIVIL RIGHTS
A. The facts alleged in the Factual Background paragraphs 37-39 apply specifically to Sheriff High individually and in his official capacity as Sheriff of Prince George‘s County, Maryland and the unidentified deputies and the 10 men
acting in concert with Defendant Sheriff High and/or at his instigation and under his supervision.
B. During all times relevant to this lawsuit, Sheriff High and those acting in concert with him and/or under his supervision were acting under color of state law, and those actions were pursuant to the policies and procedures of the Prince George‘s County Sheriff Office.
C. Defendant Sheriff High and those acting in concert with him and/or under his Supervision deprived Plaintiff of her rights under the 4th, 5th, and 14th Amendments to the United States Constitutions in the manner set forth in the Factual Background above and to redress such violations Plaintiff brings this suit and asks for an award of damages consistent with law and equity with punitive and injunctive relief as warranted to deter future wrongful conduct by Sheriff High and others.
Notably, the State Court Docket, of which I may take judicial notice pursuant to
Official Capacity
Sheriff High asserts that he “enjoys Eleventh Amendment immunity in his official capacity and is not a ‘person’ for purposes of
Sheriff High insists that he is a State official. High‘s Mem. 5. Certainly, under Maryland law, a sheriff, such as Sheriff High, is a State official. Savage v. Gahler, No. JKB-16-1219,
To determine whether a government official is a local government official, as opposed to a State official, for purposes of § 1983, the court considers whether he is acting as a “final policymaker[ ] for the local government in a particular area, or on a particular issue.” McMillian v. Monroe Cty., Ala., 520 U.S. 781, 786 (1997). This is a question of state law. Id. In this case,
In Rucker v. Harford County, which I find instructive, David Rucker and his father filed a § 1983 action in this Court after David, “a civil bystander, was struck by a bullet.” 558 A.2d at
Soldad v. Cook County, Illinois, 506 U.S. 56 (1992), on which Proctor relies, in inapposite. There, Cook County deputy sheriffs were present for (but did not assist in), and did not act to stop, an unlawful eviction in which Edward Soldad‘s mobile home was forcibly removed from a mobile home park by the park‘s owner. Id. at 57-58. After the home was returned “badly damaged,” Soldad brought a § 1983 action against the park owners and the deputy sheriffs for violating his property rights under the Fourth and Fourteenth Amendments. Id. at 59. The district court granted summary judgment on the basis that there was no evidence of conspiracy and therefore no state action. Id. The Seventh Circuit disagreed about the evidence of a conspiracy, but held that the removal of the mobile home was not a violation of Soldad‘s property rights. Id. at 59-60. The Supreme Court reversed, concluding that the seizure and removal of the mobile home from the park was indeed a seizure within the meaning of the Fourth Amendment. Id. at 72. The Supreme Court did not address whether the deputy sheriffs were state or county officials. Moreover, the identity of deputy sheriffs of Cook County, Illinois under one set of circumstances has no bearing on whether a sheriff in Prince George‘s County, Maryland, under another set of circumstances, is a state or county official, because this turns on the law of the particular state. See McMillian, 520 U.S. at 786. Thus, whether deputy sheriffs in Cook County, Illinois are local or state officials under Illinois law is completely irrelevant to resolution of the same question as it relates to a sheriff or sheriff‘s deputies under Maryland law.
Individual Capacity
Section 1983 requires a showing of personal fault, whether based upon the defendant‘s own conduct or another‘s conduct in executing the defendant‘s policies or customs. See Monell v. New York City Dep‘t of Social Servs., 436 U.S. 658, 690 (1978); West v. Atkins, 815 F.2d 993, 996 (4th Cir. 1987), rev‘d on other grounds, 487 U.S. 42 (1988) (no allegation of personal involvement relevant to the claimed deprivation); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977) (in order for an individual defendant to be held liable pursuant to § 1983, it must be “affirmatively shown that the official charged acted personally in the deprivation of the plaintiff‘s rights“) (quoting Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md. 1971), aff‘d, 451 F.2d 1011 (4th Cir. 1971)). Moreover, an individual cannot be held liable under § 1983 under a
According to Sheriff High, he “had no personal involvement in the occurrences complained of.” High‘s Mem. 6.10 Indeed, Proctor alleges (in conclusory fashion) that Sheriff High or a deputy sheriff entered her Property without lawful authority and “terrorized” her tenants. She does not allege any facts plausibly showing that the Sheriff himself took any specific action. Without so much as an affirmative assertion that Sheriff High was present for either the January or March 2017 incident, Proctor‘s claims are conclusory and insufficient to state a claim against Sheriff High based on any personal involvement. See Johnson v. Dore, No. RWT-12-3394, 2013 WL 5335626, at *4 (D. Md. Sept. 20, 2013) (granting Rule 12(b)(6) motion to dismiss claims as to two defendants because the “Complaint d[id] not include any allegations concerning [those defendants] to support a plausible claim against them” but rather “repeatedly refer generally to ‘Defendants,’ without identifying specific Defendants or conduct“); Ciralsky v.
Sheriff High also contends that the “the Amended Complaint fails to state a claim for supervisor liability.” High‘s Mem. 6. In a § 1983 action, liability of supervisory officials “is premised on ‘a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.‘” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir. 2001) (citing Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). To establish supervisory liability under § 1983, a plaintiff must show that: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor‘s response to the knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices; and (3) there was an affirmative causal link between the supervisor‘s inaction and the particular constitutional injury suffered by the plaintiff. See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
For all of the above reasons, the claims against Sheriff High and his deputies are dismissed. As noted, Proctor amended her Complaint after Sheriff High filed his letter request to file a motion to dismiss, in which he identified Proctor‘s pleading deficiencies and provided a
Thus, Proctor‘s Amended Complaint will be dismissed in its entirety. A separate order will issue.
Date: January 25, 2018
/S/
Paul W. Grimm
United States District Judge
lyb
Notes
Absolute quasi-judicial immunity extends to non-judicial officers “performing tasks so integral or intertwined with the judicial process that those persons are considered an arm of the judicial officer who is immune.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994). The basis for affording non-judicial officials absolute immunity is to avoid the “danger that disappointed litigants, blocked by the doctrine of absolute immunity from suing the judge directly [would] vent their wrath on clerks, court reporters, and other judicial adjuncts.” Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993) (alteration in original) (quoting Dellenbach v. Letsinger, 889 F.2d 755, 763 (7th Cir. 1989)). Courts have therefore extended absolute immunity to protect, among others, clerks of court, law enforcement officers, and others who enforce court orders. See, e.g., Foster v. Walsh, 864 F.2d 416, 417-18 (6th Cir. 1988) (holding the clerk of court to be absolutely immune for issuing an erroneous warrant pursuant to the court‘s order); Henry v. Farmer City State Bank, 808 F.2d 1228, 1238-39 (7th Cir. 1986) (“[Police officers, sheriffs, and other court officers who act in reliance on a facially valid court order are entitled to quasi-judicial immunity from suit.“).
Id. (quoting Kendrick v. Cavanaugh, No. CCB-10-2207, 2011 WL 2837910, at *4 (D. Md. July 14, 2011)).
In his individual capacity, Ms. Proctor would have to plead facts establishing the elements of supervisory liability, see Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), which she has not attempted to do. Nor does Ms. Proctor allege that Sheriff High had any direct involvement in anything that she complains of.
Id. at 2. And, in his May 15, 2017 letter, he asked to supplement Sheriff High‘s motion to dismiss, contending that with regard to Sheriff High “individually, the Amended Complaint fails to state a claim for supervisory liability under Shaw v. Stroud.” ECF No. 23.