Proctor v. Wells Fargo Bank, NA et al

MOTION to Dismiss for Failure to State a Claim

D. Md.May 2, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division ALEEA PROCTOR, * Plaintiff, * v. Civil Action No.: PWG-17-0113 * WELLS FARGO BANK, N.A., et al. * Defendants. * DEFENDANT SHERIFF MELVIN C. HIGH’S MOTION TO DISMISS COMES NOW, the Defendant, Sheriff Melvin C. High, by and through his attorneys, Brian E. Frosh, Attorney General of Maryland, and Jason L. Levine, Assistant Attorney General, and moves this Honorable Court pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint, and for the reasons set forth in the accompanying Memorandum of Law. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland _________/s/_______________ JASON L. LEVINE (#16631) Assistant Attorney General 80 Calvert Street, 4th Floor Annapolis, Maryland 21401 Tel: (410) 260-7412 jlevine@treasurer.state.md.us Attorneys for Sheriff High Case 8:17-cv-00113-PWG Document 18 Filed 05/02/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I certify that on May 2, 2017, a copy of Defendant, Sheriff Melvin C. High’s Motion to Dismiss, accompanying Memorandum of Law, and a proposed Order was filed and served via CM/ECF, and that a copy was also sent via first-class mail to: Aleea Proctor, 8660 Bowie Road, Nanjemoy, Maryland 20662. _________/s/_______________ JASON L. LEVINE (#16631) Case 8:17-cv-00113-PWG Document 18 Filed 05/02/17 Page 2 of 2 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division ALEEA PROCTOR, * Plaintiff, * v. Civil Action No.: PWG-17-0113 * WELLS FARGO BANK, N.A., et al. * Defendants. * DEFENDANT SHERIFF MELVIN C. HIGH’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS INTRODUCTION Plaintiff has sued Wells Fargo Bank, some of its officials, Federal National Mortgage Association (“Fannie Mae”), the BWW Law Group, LLC, and the Sheriff of Prince George’s County for alleged acts arising out of the foreclosure of her residence. She asserts seven causes of action: Count 1 RICO (18 U.S.C. § 1961(5), 1962(c)) Count 2 RICO (18 U.S.C. § 1961(5), 1962(d)) Count 3 Civil Racketeering Count 4 Unjust enrichment, Insurance Fraud, Breach of Contract, Bad Faith Count 5 Declaratory and Injunctive Relief Count 6 Violation of the Fair Debt Collection Practices Act Count 7 Claim in Recoupment - TILA (15 U.S.C. § 1640(k)) Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 1 of 10 2 For the reasons that follow, Plaintiff’s Complaint should be dismissed as against Sheriff High.1 FACTS Plaintiff is a foreclosure defendant in the matter of WBGLMC v. Proctor, Case No.: CAEF15-00209, Circuit Court for Prince George’s County, Maryland. On September 13, 2016, the circuit court entered an order of judgment awarding possession of Plaintiff’s foreclosed property to Fannie Mae. 2 The circuit court’s docket also reflects that a writ of possession was issued on March 27, 2017, but not yet executed as of the date of this filing. The Complaint itself contains a lengthy and difficult-to-follow narrative that attempts to outline some sort of misconduct related to the Plaintiff’s mortgage and ultimately the foreclosure of her residence. In the interest of brevity, Sheriff High has not set forth verbatim the facts alleged in Plaintiff’s Complaint but adopts and incorporates the alleged facts for the limited purpose of the Court’s consideration of this Motion, though he denies that they are accurate. 1 The Court permitted Plaintiff to amend her Complaint by April 28, 2017. See ECF 12. Though Plaintiff apparently attempted to file an Amended Complaint, the filing was rejected because she failed to comply with the Local Rules by not submitting a redlined version, despite the Court advising her in its letter order to do so. See ECF 17. 2 This Court may judicially notice the Maryland Judiciary Case Search website, http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis, pursuant to Fed. R. Civ. P. 201, and Fed. R. Evid. 803(8)(a)(i), and 901(b)(5). Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 2 of 10 3 LEGAL ANALYSIS A. STANDARD OF REVIEW To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” meaning the court could draw “the reasonable inference that the defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1037, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotations omitted). “Determining whether a complaint states a plausible claim for relief will ... be a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “A court decides whether this standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to relief. A Society Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir.2011), cert. denied, --- U.S. ----, 132 S.Ct. 1960 (2012). Because Plaintiff is a self-represented litigant, her Complaint is to be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). “However, liberal construction does not absolve Plaintiff from pleading a plausible claim.” Bey v. Shapiro Brown & Alt, LLP, No. PWG-13-1562, --- F.Supp.2d ----, 2014 WL 661586, at *3 (D. Md. Feb. 20, 2014); see also Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 10-3517, 2011 WL 3476994, at *6 (D. Md. Aug. 8, 2011) (“[E]ven when pro se litigants are involved, the Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 3 of 10 4 court cannot ignore a clear failure to allege facts that support a viable claim.”), aff'd, 526 F. App'x 255 (4th Cir.2013). The Fourth Circuit has stated: It is neither unfair nor unreasonable to require a pleader to put his complaint in an intelligible, coherent, and manageable form, and his failure to do so may warrant dismissal. Corcoran v. Yorty, 347 F.2d 222, 223 (9th Cir.), cert. denied, 382 U.S. 966 (1965); Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md.1981). District courts are not required to be mind readers, or to conjure questions not squarely presented to them. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985), cert. denied, 475 U.S. 1088 (1986). Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir.1992) (unpublished). Moreover, because Plaintiff’s claims sound in fraud, she is subject to the heightened pleading standard in Fed. R. Civ. P. 9(b), which requires her to plead with particularity the circumstances constituting the fraud, including, at a minimum, “the time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” United States ex rel. Owens v. First Kuwaiti Gen’l Trading & Contracting Co., 612 F.3d 724, 731 (4th Cir. 2010) (citation omitted). B. THE COMPLAINT FAILS TO ALLEGE ANY SPECIFIC CONDUCT BY THE SHERIFF OF PRINCE GEORGE’S COUNTY (OR HIS DEPUTIES), AND THUS FAILS TO STATE A CLAIM. Plaintiff’s Complaint fails to set forth a short and plain statement showing that she is entitled to relief at least with respect to the Sheriff of Prince George’s County, Sheriff Melvin C. High. See Fed. R. Civ. P. 8(a)(2). Though “notice pleading requires generosity in interpreting a plaintiff's complaint . . .generosity is not fantasy.” Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 254 (4th Cir.2005). Even after being Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 4 of 10 5 afforded the opportunity to amend her Complaint after Sheriff High pointed out, in writing, its deficiencies, Plaintiff has failed to do so, and thus has failed to demonstrate any plausible basis for relief as against Sheriff High. Consequently, the Complaint should be dismissed for failure to state any cognizable claim against Sheriff High as it does not allege any conduct that could form the basis of a viable cause of action against him. C. COUNTS I, II & III FAIL TO STATE A CLAIM FOR CIVIL RICO. Counts I, II and III are allegedly premised on violations of RICO’s civil provision, 18 U.S.C. § 1964. “A RICO claim requires a showing of racketeering activity, broadly defined to include the commission of several federal statutory and state common law offenses, known as ‘predicate acts.’” Clark v. Choudry, 2016 WL 3541248, at *5, n.5 (D. Md. June 29, 2016). Plaintiff must also plead with particularity the “time, place and contents of any false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999); see also Yesko v. Fell, 2014 WL 4406849, at *4 (D. Md. Sept. 5, 2014) (stating, “plaintiffs’ Civil RICO claim implicates the heightened pleading standard under Fed. R. Civ. P. 9(b).”) Here, Plaintiff has failed to plead any such acts with respect to the Sheriff of Prince George’s County, much less with particularity, and accordingly, Counts I, II & III should be dismissed for failure to state a claim. Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 5 of 10 6 D. COUNT IV FAILS TO STATE A CLAIM BECAUSE PLAINTIFF FAILED TO AFFIRMATIVELY PLEAD COMPLIANCE WITH THE NOTICE REQUIREMENT IN THE MARYLAND TORT CLAIMS ACT, AND SHERIFF HIGH ENJOYS STATUTORY STATE PERSONNEL IMMUNITY. Count IV purports to include State law claims against all Defendants for unjust enrichment, insurance fraud, breach of contract, and bad faith. However, none of those claims are viable as against Sheriff High. To begin, a State tort claim for unjust enrichment is barred by Plaintiff’s failure to comply with the notice requirement in the Maryland Tort Claims Act (“MTCA”), Md. Code Ann., State Govt. (“SG”) § 12-106. Plaintiff has neither complied with the notice requirement nor affirmatively pled such compliance, which is a condition precedent to bringing suit against a State actor.3 See Hansen v. City of Laurel, 420 Md. 670 (2011) (failure to affirmatively plead satisfaction of the tort claims notice requirement warrants dismissal); see also Abdus-Shahid v. Mayor & City Council of Baltimore, -- Fed. Appx. --, 2017 WL 35725, at *5 (4th Cir. Jan. 4, 2017) (noting that failure to affirmatively plead satisfaction of the notice requirement subjects the complaint to a motion to dismiss for failure to state a claim). In addition, as “State personnel” under the MTCA, Sheriff High is statutorily immune from suit unless Plaintiff pleads sufficient facts that demonstrate that he not only personally participated in some tortious conduct, but that he did so maliciously or was grossly negligent. See SG § 12-105; Md. Code Ann., Cts. & Jud. Proc.§ 5-522(b). As 3 Sheriffs are “State personnel” under the MTCA. See SG § 12-101(a)(6). Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 6 of 10 7 there are no such allegations in the Complaint, Sheriff High is immune from suit with respect to any State law claims. Regarding any alleged breach of contract claim, Plaintiff must plead facts establishing that Sheriff High owed her a contractual obligation and breached it. See Taylor v. NationsBank, N.A., 365 Md. 166, 175 (2001); Snider Bros, Inc. v. Heft, 271 Md. 409, 414 (1974) (The general rule is that one cannot be held to a contract to which he is not a party). Having failed to allege any such facts, Plaintiff cannot have a viable breach of contract claim either. There are no facts that plausibly establish a contractual relationship between Plaintiff and the Sheriff. Finally, Plaintiff’s claim for “insurance fraud” is frivolous. Maryland law does not recognize a civil cause of action for “insurance fraud,” nor has Plaintiff articulated any facts that could establish Sheriff High’s participation in any such fraud. Count IV should be dismissed. E. COUNT V’S REQUEST FOR INJUNCTIVE RELIEF AND A DECLARATORY JUDGMENT IS BARRED BY THE ANTI-INJUNCTION ACT. Count V seeks both an injunction and a declaratory judgment. However, under the Anti-Injunction Act, 22 U.S.C. § 2283, the district court may not grant an injunction to stay State court proceedings unless expressly authorized by Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. Id. As this Court noted in Tucker v. Specialized Loan Servicing, LLC, 83 F. Supp. 3d 635 (D. Md. 2015), “[s]ignificantly, where the Anti-Injuntion Act bars an injunction it also bars the issuance Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 7 of 10 8 of a declaratory judgment that would have the same effect as an injunction.” Id. at 641 (citation and internal quotes omitted). As this Court further recognized in Tucker, the Anti-Injunction Act prohibits a federal court from staying state court foreclosure proceedings or declaring a mortgage unenforceable, which is what Plaintiff appears in part to seek here. Plaintiff seeks equitable relief concerning real property that is already the subject of an ongoing state court proceeding, and “it is well settled that the court controlling the property for purposes of the earlier-filed suit has jurisdiction over the property, and the court in which the later equity action was filed lacks jurisdiction.” Id. at 642 (citations omitted). As the Circuit Court for Prince George’s County, Maryland continues to retain jurisdiction over Plaintiff’s (former) residence, this Court therefore lacks jurisdiction to issue any injunctive or declaratory relief. Count V must also be dismissed. F. SHERIFF HIGH IS NOT ALLEGED TO BE A “DEBT COLLECTOR,” AND THUS COUNT VI FAILS TO STATE A CLAIM UNDER THE FDCPA. Count VI sues all Defendants under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§1692, et seq. However, the Complaint fails to allege that Sheriff High is a “debt collector” within the meaning of the FDCPA. See Horowitz v. Continental Casualty Co., -- Fed. Appx. --, 2017 WL 908217, at *2 (4th Cir. Mar. 7, 2017) (“To state a cause of action under the FDCPA, a plaintiff must allege, among other things, that the defendant was a debt collector” and that the “barebones assertion” that a party regularly acted as debt collectors failed to state a claim under the FDCPA.); see Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 8 of 10 9 also Eley v. Evans, 476 F. Supp. 2d 531, 533 (E.D. Va. 2007) (county sheriff not a “debt collector” under the FDCPA when repossessing automobile). Thus, Count VI fails to state a claim against Sheriff High. G. COUNT VII FAILS TO STATE A TILA CLAIM BECAUSE SHERIFF HIGH IS NOT ALLEGED TO BE A “CREDITOR.” Count VII also fails to state a claim for “recoupment” under the Truth-In-Lending Act (“TILA”), 15 U.S.C. § 1640. The TILA was enacted to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 364-65 (1973) (quoting 15 U.S.C. § 1601(a)). The statute “requires creditors to provide borrowers with clear and accurate disclosures of terms,” Beach v. Ocwen Federal Bank, 523 U.S. 410, 412 (1998), and imposes civil liability on creditors who fail to do so. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 54 (2004). But Sheriff High is not alleged to be a “creditor” for purposes of the TILA. Plaintiff has not alleged (nor could she in good faith) that Sheriff High regularly extends consumer credit, or is the person to whom the debt arising from the consumer credit transaction at issue was initially payable. See Mosley v. OneWest Bank, 2011 WL 5005193, at *3 (D. Md. Oct. 19, 2011) (citing 15 U.S.C. § 1602(f)). Thus, Count VII fails to state a claim against Sheriff High also. Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 9 of 10 10 CONCLUSION The foregoing premises having been considered, the Defendant, Prince George’s County Sheriff Melvin C. High, respectfully requests that this Honorable Court grant his Motion to Dismiss. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland _________/s/_______________ JASON L. LEVINE (#16631) Assistant Attorney General 80 Calvert Street, 4th Floor Annapolis, Maryland 21401 Tel: (410) 260-7412 jlevine@treasurer.state.md.us Attorneys for Sheriff High CERTIFICATE OF SERVICE I certify that on May 2, 2017, a copy of Defendant, Sheriff Melvin C. High’s Motion to Dismiss, accompanying Memorandum of Law, and a proposed Order were filed and served via CM/ECF, and that a copy was also sent via first-class mail to: Aleea Proctor, 8660 Bowie Road, Nanjemoy, Maryland 20662. _________/s/_______________ JASON L. LEVINE (#16631) Case 8:17-cv-00113-PWG Document 18-1 Filed 05/02/17 Page 10 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division ALEEA PROCTOR, * Plaintiff, * v. Civil Action No.: PWG-17-0113 * WELLS FARGO BANK, N.A., et al. * Defendants. * ORDER Upon consideration of Defendant Sheriff Melvin C. High’s Motion to Dismiss, any Opposition thereto, and any Reply, it is this ___ day of __________________, 2017, by the United States District Court for the District of Maryland, ORDERED, that Defendant Sheriff Melvin C. High’s Motion to Dismiss be and the same hereby is GRANTED, and it is further ORDERED, that the Complaint is dismissed with prejudice as to Defendant Sheriff Melvin C. High. _________________________________ Paul W. Grimm United States District Judge Case 8:17-cv-00113-PWG Document 18-2 Filed 05/02/17 Page 1 of 1