Proctor v. Wells Fargo Bank, NA et al

MOTION to Dismiss for Failure to State a Claim

D. Md.May 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALEEA PROCTOR * Plaintiff, * v. * Civil Action No. 17-cv-00113-PWG WELLS FARGO BANK, N.A., et al. * Defendants. * * * * * * * * * * * * * * DEFENDANTS MOTION TO DISMISS THE COMPLAINT Defendants, Federal National Mortgage Association, Wells Fargo Bank, N.A., Michael J. Heid, and Gloria Ann Hernandez (collectively, the “Defendants”), by their undersigned attorneys, move pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) and Local Rule 105 to dismiss with prejudice the Complaint filed by the Plaintiff, Aleea Proctor, for failure to state a claim upon which relief can be granted. For the reasons set forth in the accompanying Memorandum of Law, the Court should grant this Motion to Dismiss. A proposed Order is enclosed herewith. WHEREFORE, the Defendants respectfully request that this Honorable Court grant this Motion and dismiss the Complaint with prejudice. [Attorney signatures appear on following page] Case 8:17-cv-00113-PWG Document 21 Filed 05/12/17 Page 1 of 2 2 Respectfully submitted, /s/ Michael S. Barranco Michael S. Barranco, Bar No. 04036 /s/ Justin E. Fine Justin E. Fine, Bar No. 18731 TREANOR POPE & HUGHES, P.A. 500 York Road Towson, Maryland 21204 Tel: 410-494-7777 Fax: 410-494-1658 msbarranco@tph-law.com jefine@tph-law.com Attorneys for Defendants, Federal National Mortgage Association, Wells Fargo Bank, N.A., Michael J. Heid, and Gloria Ann Hernandez CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 12, 2017, a copy of the foregoing Motion to Dismiss, corresponding Memorandum of Law, and Proposed Order were served via the Court's ECF/CM system or, if a non ECF/CM user, via first-class mail postage prepaid to: Aleea Proctor 8660 Bowie Road Nanjemoy MD 20662 Pro Se Plaintiff Jason L. Levine, Esquire Assistant Attorney General 80 Calvert Street, 4th Floor Annapolis, Maryland 21401 Attorney for Defendant Sheriff High Adam M. Kaplan, Esquire BWW Law Group, LLC 6003 Executive Blvd Suite 101 Rockville, Maryland 20852 Attorney for Defendant BWW Law Group, LLC /s/ Justin E. Fine Justin E. Fine, Bar No. 18731 Case 8:17-cv-00113-PWG Document 21 Filed 05/12/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALEEA PROCTOR * Plaintiff, * v. * Civil Action No. 17-cv-00113-PWG WELLS FARGO BANK, N.A., et al. * Defendants. * * * * * * * * * * * * * * ORDER Upon consideration of the Motion to Dismiss the Complaint (the “Motion to Dismiss”) filed by the Defendants, Federal National Mortgage Association, Wells Fargo Bank, N.A., Michael J. Heid, and Gloria Ann Hernandez, and any opposition or response thereto, and finding that the Complaint fails to state a claim upon which relief can be granted, it is on this _____ day of ___________________, 201___, hereby ORDERED that the Motion to Dismiss be and hereby is GRANTED; and it is further, ORDERED that the Complaint shall be and hereby is DISMISSED WITH PREJUDICE. Judge Paul W. Grimm U.S. District Court for the District of Maryland Case 8:17-cv-00113-PWG Document 21-1 Filed 05/12/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ALEEA PROCTOR * Plaintiff, * v. * Civil Action No. 17-cv-00113-PWG WELLS FARGO BANK, N.A., et al. * Defendants. * * * * * * * * * * * * * * DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS COMPLAINT Defendants, Federal National Mortgage Association (“Fannie Mae”), Wells Fargo Bank, N.A. (“Wells Fargo”), Michael J. Heid (“Heid”) and Gloria Ann Hernandez (“Hernandez”) (collectively the “Defendants”), by their undersigned attorneys, file this Memorandum of Law in Support of their Motion to Dismiss the Complaint and for the following reasons, the Court should dismiss the Complaint with prejudice. I. Summary of Argument Plaintiff Aleea Proctor (“Proctor”) filed a Complaint that attacks the final judgments against her in a related state-court foreclosure action, including dismissal of Proctor’s foreclosure counterclaim with prejudice, the final ratification of the foreclosure sale of her former property, and an order of judgment awarding possession of the property to the foreclosure purchaser, Fannie Mae. Proctor raised or could have raised the claims made here in the prior foreclosure action. Therefore, the doctrine of res judicata bars her Complaint. Additionally, the argument central to all seven of Proctor’s Causes of Action, Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 1 of 19 2 i.e., that the Deed of Trust was not transferred to Fannie Mae, is legally irrelevant to Proctor’s challenge to the foreclosure judgments against her. The Complaint also seeks a declaration restoring Proctor’s title to the Property. Such a declaration would effectively overturn the state court judgments and contravene the Anti-Injunction Act and may contravene the Rooker-Feldman Doctrine. Moreover, each of Proctor’s seven Causes of Action fail to state a claim upon which relief can be granted. For the following reasons, the Complaint should be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Additionally, Proctor failed to amend her Complaint by April 28, 2017, as permitted by the Court’s pre-motion Orders. However, Proctor filed a last-minute amended complaint on May 10, 2017, which the Defendants did not receive notice of until May 11, 2017 when the amended complaint appeared on the Court’s ECF docket, the day before the Defendants’ own deadline. Consequently, this Motion to Dismiss addresses the original Complaint. To the extent the Court accepts for filing the belated Amended Complaint, the Defendants request an extension of time to supplement this Motion to address it also, as necessary. II. Factual Allegations and Procedural History Although the Complaint is prolix and difficult to follow, sufficient information concerning the circumstances and background of this case can nevertheless be gleaned from the Complaint as well as public records from Prince George’s County, Maryland. The Defendants request that the Court take judicial notice of the “docket entries, pleadings and papers in other cases” as well as the “public real estate records” attached hereto as Exhibits 1-5, which the Court can review “without converting a motion to dismiss into a motion for Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 2 of 19 3 summary judgment.” See Brown v. Ocwen Loan Servicing, LLC, Case No. PJM 14-3454, 2015 WL 5008763, at *1 n.3 (D. Md. Aug. 20, 2015), aff'd, 639 Fed. Appx. 200 (4th Cir. 2016); Wheatley v. Cohn, Case No. GLR-13-3850, 2014 WL 2452606, at *3 (D. Md. May 30, 2014). On September 13, 2007, Proctor obtained a mortgage loan (the “Mortgage”) from Wachovia Bank, N.A. (“Wachovia”), Wells Fargo’s predecessor in interest. Ex. 1 at pp. 4 & 25, Order to Docket Foreclosure.1 The Mortgage note (“Note”) was secured by a deed of trust (“Deed of Trust”) with respect to the real property located at 2006 Shadyside Avenue, Suitland, Maryland 20746 (“Property”). Id. Wells Fargo was the servicer of the Mortgage and the holder in possession of the Mortgage note. Id. at p. 21. Fannie Mae was the owner of the Mortgage loan. Id. at 23. Heid and Hernandez are alleged employees and officers of Wells Fargo. Compl. at ¶ 44. Proctor defaulted on her Mortgage payment obligations on May 13, 2009. Ex. 1 at p. 36. On December 18, 2014, Wells Fargo, pursuant to the terms of the Deed of Trust, appointed Carrie M. Ward et al. as the substitute trustees (“Substitute Trustees”). Id. at pp. 32-35. The Substitute Trustees filed the foreclosure action WBGLMC v. Proctor against the Property in the Circuit Court for Prince George’s County (“Circuit Court”), Case No. CAEF15-00209 (“Foreclosure Action”) on January 12, 2015. Ex. 2, Md. Jud. Case Search Docket. 1 The Order to Docket Foreclosure is a public judicial record and signed pleading (see Md. Rule 1-311(b)) filed in the related foreclosure matter in Circuit Court for Prince George’s County, Case No. CAEF15-00209. See Ex. 2. Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 3 of 19 4 Proctor filed an answer and counterclaim (“Counterclaim”) in the Foreclosure Action on February 2, 2015. Ex. 2 at Docket No. 005; see also Ex. 3, Counterclaim. Proctor’s Counterclaim asserted various claims, including claims that the Substitute Trustees and Wells Fargo Home Mortgage (a division of Wells Fargo) had no “lawful claim to this Property” because “all supporting documentation is missing and therefore suspect,” fraud, violations of the Truth in Lending Act, and a demand for “original ‘wet ink’ documentation proving [the Defendants’] ownership of the Note and Deed of Trust connected to the Property.” Ex. 3 at pp. 4-6, 9. The Counterclaim demanded transfer of title to the Property in Proctor’s sole name and a permanent injunction against any further foreclosure activity. Id. at p. 12. The Substitute Trustees moved to dismiss the Counterclaim on April 2, 2015, and the Circuit Court granted the motion with prejudice on April 24, 2015. Ex. 2 at Docket Nos. 009, 010; Ex. 4, April 24, 2015 Order. Proctor subsequently filed on May 18, 2015 motions for a continuance and for “special mediation,” which the Circuit Court denied. Ex. 2 at Docket Nos. 013-014, 018. The Substitute Trustees sold the Property at a May 27, 2015 foreclosure sale to Fannie Mae and filed a report of sale in the Foreclosure Action on June 8, 2015. Ex. 2 at Docket No. 015; Ex. 5, Report of Sale. The Circuit Court ratified the foreclosure sale on March, 22, 2016 Ex. 2 at Docket No. 019. Fannie Mae moved on July 18, 2016 for a Judgment Awarding Possession, which the Circuit Court granted on September 13, 2016 and issued corresponding writs of possession. Ex. 2 at Docket Nos. 024, 026, 029, 030, 035. On October 7, 2016, Proctor filed an emergency motion to vacate judgment awarding Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 4 of 19 5 judgment, which the Circuit Court denied on October 17, 2016. Id. at Docket Nos. 031- 033. Proctor filed the instant Complaint on February 24, 2017.2 She served Defendant Fannie Mae, but the Defendants are unaware of any attempt to properly serve Wells Fargo, Heid, or Hernandez. The Defendants joining in this Motion filed a timely letter requesting permission to file a motion to dismiss, as did several other Defendants. ECF Nos. 6, 10, 15. The Court granted leave for Proctor to file an Amended Complaint by April 28, 2017 if it was in compliance with Local Rule 103.6. ECF Nos. 7, 12, 16. Further, the Court stated that any subsequent dismissal of Proctor’s pleadings will be with prejudice. Id. at ECF No. 7, 12. The Court further permitted the Defendants to file motions to dismiss by May 12, 2017. Id. at ECF No. 12. Proctor apparently attempted to file an Amended Complaint on April 21, 2017, but the Clerk’s Office rejected it for failure to include a redline copy pursuant to Local Rule 103.6(c). ECF No. 17. Defendant Sherriff Melvin C. High filed a Motion to Dismiss the Complaint on May 2, 2017. ECF No. 18. As noted, Proctor filed a late amended Complaint on May 10, 2017 without serving the Defendants. The Complaint refers to the following claims: • First, Second, and Third Causes of Action: alleged violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.; • Fourth Cause of Action: unjust enrichment; • Fifth Cause of Action: declaratory and injunctive relief prohibiting eviction of the Property; 2 Proctor attempted to file a substantially similar complaint in this Court on December 22, 2016, but the Court dismissed it for Proctor’s failure to pay the filing fee, civil cover sheet, summons, and service copies of the complaint. See Case No. PJM-15-3900 (D. Md.) Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 5 of 19 6 • Sixth Cause of Action: violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; and • Seventh Cause of Action: “Claim in Recoupment” pursuant to the Truth in Lending Act. The Complaint also appears to allege a violation of the Truth in Lending Act, 15 U.S.C. § 1641(f)-(g) and assert that her Mortgage debt was paid by insurance, although Proctor does not frame these as a separate causes of action. See Compl. at ¶ 2. The central theme in Proctor’s Complaint is that the Mortgage “was never formally assigned to [Fannie Mae] with a written assignment of Deed of Trust, when the loan was assigned.” Compl. at ¶ 2. Proctor alleges therefore that the “foreclosure of the mortgage debt by the Defendants, and all of them related to the above referenced Deed of Trust, without having been assigned the Deed of Trust, is unlawful.” Id. at ¶ 28. This is the underlying premise of all seven Causes of Action. Id. at ¶¶ 2 & 94 (Counts I-III); ¶ 148 (Count IV); ¶ 154 (Count V); ¶ 159 (Count VI); ¶ 160 (Count VII). III. Standard of Review The purpose of a motion to dismiss pursuant to Federal Rule 12(b)(6) is to test the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). The complaint itself must show “entitlement to relief,” offering more than “labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). A plaintiff’s allegations 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) (internal citations omitted). When ruling on a motion to Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 6 of 19 7 dismiss, all well pleaded allegations are accepted as true. Ibarra v. U.S., 120 F.3d 472, 474 (4th Cir. 1997). However, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Nor must it agree with legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. at 679, or with conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not ‘show[n] ... that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, “[d]etermining 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.” Id. The Court may consider the documents attached to Proctor’s Complaint and the public records identified by the Defendants without converting this motion to dismiss to one for summary judgment. Philips v. Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009). IV. Argument A. Res Judicata Bars the Complaint. Res judicata, sometimes referred to as claim preclusion, prevents the re-litigation of matters previously litigated by the parties and their privies. Anyanwutaku v. Fleet Mortg. Group, Inc., 85 F. Supp. 2d 566, 570 (D. Md. 2000), aff’d, 229 F.3d 1141 (4th Cir. 2000). It also bars those claims that “could have been asserted and litigated in the original suit.” Id. To prevail, a party raising res judicata must establish three elements: Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 7 of 19 8 (1) whether the parties are the same as, or in privity with, the parties to the earlier dispute; (2) whether the cause of action presented is identical to the one determined in the prior adjudication; and, (3) whether there was a final judgment on the merits in the initial action. Id. at 570-71 (quoting Richman v. FWB Bank, 712 A.2d 41, 60 (Md. Ct. Spec. App. 1998)). The circumstances of this case satisfy all three elements of res judicata. Regarding the first element, Proctor was a party defendant and counter plaintiff in the Foreclosure Action. Although Wells Fargo and Fannie Mae were not parties to the Foreclosure Action, for the purposes of res judicata, they are in privity with the Foreclosure Action plaintiffs, the Substitute Trustees. “Privity in the res judicata sense generally involves a person so identified in interest with another that he represents the same legal right.” FWB Bank v. Richman, 731 A.2d 916, 930 (Md. 1999). Mortgage loan owners and servicers, like Fannie Mae and Wells Fargo respectively, are in privity with their substitute trustees. Anyanwutaku, 85 F. Supp. 2d at 571; see also Jones v. HSBC Bank USA, N.A., 444 Fed. Appx. 640, 643 (4th Cir. 2011). Heid and Hernandez are also in privity with the Substitute Trustees via their alleged roles as employees and/or officers of Wells Fargo. Compl. at ¶ 44; see Weinberger v. Tucker, 510 F.3d 486, 493 (4th Cir. 2007) (“[T]he other defendants, as directors, officers, employees, and attorneys of the Bank, are in privity with the Bank for purposes of res judicata.”). Thus Proctor and the Defendants are the same or in privity with the parties to the Foreclosure Action. Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 8 of 19 9 Regarding the second element, whether the causes of action are identical, Maryland law applies the transaction test. A later-filed lawsuit “concerns the same transaction” when it relates to “the factual and legal circumstances” surrounding previous lawsuit. Anyanwutaku, 85 F. Supp. 2d at 571. Here, the Foreclosure Action and Proctor’s Counterclaim related to the Mortgage Note and Deed of Trust, the Property, the Substitute Trustees’ right to foreclose, Proctor’s default under the Mortgage, and ultimately Fannie Mae’s right to take possession of the Property. The Complaint here likewise relates to these same issues and raises claims premised on Wells Fargo and Fannie Mae’s alleged inability to enforce the Deed of Trust. Compl. at ¶¶ 1-2. Therefore, the Foreclosure Action, Counterclaim, and this case involve the same factual and legal circumstances for res judicata purposes. Finally, as to the third element of res judicata, there are three final judgments. The Circuit Court dismissed Proctor’s Counterclaim with prejudice, ratified the foreclosure sale of the Property, and issued an Order of Judgment awarding possession of the Property to Fannie Mae. Ex. 2 at Docket Nos. 010, 019, 026; Exs. 3-5. The ratification of foreclosure sale is the equivalent to a final judgment, and an Order of Judgment is a final, appealable order. See Gordon v. Nationstar Mortg. LLC, Case No. RWT 14-1361, 2015 WL 5165453, at *1 n.6 (D. Md. Sept. 2, 2015) (collecting cases about ratification); G.E. Capital Mortg. Servs., Inc. v. Edwards, 798 A.2d 1187, 1189 (Md. Ct. Spec. App. 2002) (appeal of order of judgment awarding possession). For these reasons, res judicata is applicable and the finality of the Foreclosure Action prevents Proctor from re-raising claims related to the enforceability of the Mortgage Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 9 of 19 10 and Deed of Trust, Proctor’s default, and right of possession of the Property. All seven of Proctor’s Causes of Action, however, attempt to re-litigate whether the “foreclosure of the mortgage debt by the Defendants . . . without having been assigned the Deed of Trust was lawful” and the legality of “default-related” fees. Compl. at ¶¶ 28, 146; see also ¶¶ 2, 94, 148, 154, 159, 160. These claims were either raised or could have been raised in the Foreclosure Action and Counterclaim, and the present Complaint should be dismissed with prejudice. B. The Anti-Injunction Act Precludes the Complaint Because Proctor’s Primary Claim for Relief is a Declaration Restoring her Title to the Property. The Anti-Injunction Act, 22 U.S.C. § 2283, bars Proctor’s request “for the restoration of the title of the subject residential property into [her] name.” Compl. at ¶ 168. See Tucker v. Specialized Loan Serv., LLC, 83 F. Supp. 3d 635, 641 (D. Md. 2015). The Anti-Injunction Act prohibits not only federal-court issued injunctions of ongoing state- court cases but also “ ‘the issuance of a declaratory judgment that would have the same effect as an injunction.’ ” Id. (quoting Lovette v. Deutsche Bank Nat’l Trust Co. Case No. 12-1816-MBS-SVH, 2013 WL 841679, at *6 (D.S.C. Feb. 12, 2013)). Here, Proctor seeks for all seven Causes of Action a declaration granting her clear title to the Property and cancellation of the Mortgage. Compl. at ¶ 168. A plaintiff’s request for a declaration that the mortgage and security instruments are unenforceable would “ ‘preempt[] the foreclosure and has “the same effect” as [a] request for an injunction to prevent foreclosure.’ ” Tucker, 83 F. Supp. 3d at 641 (quoting Lovette, 2013 WL 841679, at *6). Proctor’s sought-after declaratory relief would therefore “ ‘result in precisely the Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 10 of 19 11 same interference with and disruption’ ” of the state-court Foreclosure Action that “ ‘the long-standing policy limiting injunctions was designed to avoid.’ ” Id. Thus because the Complaint primarily seeks declaratory relief that would interfere with the Foreclosure Action and enjoin Fannie Mae’s activities to take possession, the Complaint should be dismissed. C. The Rooker-Feldman Doctrine May Prohibit the Relief Sought by the Complaint, which is Inextricably Intertwined with the Foreclosure Action. The Complaint may also be barred by the Rooker-Feldman Doctrine, which prohibits a U.S. District Court from reviewing issues decided by a state court. Brown & Root, Inc. v. Breckenridge, 211 F.3d 194, 198 (4th Cir. 2000). The doctrine further prohibits a U.S. District Court from reviewing issues that are “inextricably intertwined” with state court decisions, where “ ‘success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.’ ” Id. (quoting Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)). Proctor’s Complaint is difficult to understand, thereby also making it difficult to determine her intention. It is clear, however, that Proctor seeks clear title to and possession of the Property. Compl. at ¶¶ 157, 168. Although Proctor does not specifically state her Complaint is as an appeal of the Foreclosure Action, her requested relief, if granted, would overturn the Circuit Court’s dismissal of her Counterclaim, ratification of the foreclosure sale, and order of possession in favor of Fannie Mae. Although the Defendants recognize there are limitations to the Doctrine, to the extent that Proctor’s lawsuit is in fact intended as an appeal of the Circuit Court’s judgment, the Court should dismiss the Complaint Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 11 of 19 12 pursuant to the Rooker-Feldman Doctrine. Compare Thana v. Bd. of License Comm’rs for Charles Cnty., Md., 827 F.3d 314, 318-21 (4th Cir. 2016) (discussing the “narrow role” of Rooker-Feldman); see also Williams v. 21st Mortg. Corp., Case No. PX 16-1210, 2017 WL 1133706, at *6 (D. Md. Mar. 27, 2017) (declining to apply Rooker-Feldman); Madukwe v. Capital One Fin. Corp., Case No. GJH-16-767, 2017 WL 1133276, at *4 (D. Md. Mar. 24, 2017) (same). D. Proctor’s Overarching Allegation of Insufficient Transfer of the Deed of Trust to Fannie Mae Does Not Support Any of Her Causes of Action. Proctor’s allegation that the Deed of Trust was not assigned to Fannie Mae does not support any of her claims for relief. Maryland law provides that a note can be transferred freely, and when transferred the right to enforce the corresponding deed of trust follows. Deutsche Bank Nat. Trust Co. v. Brock, 63 A.3d 40, 48 (Md. 2013) (citing Svrcek v. Rosenberg, 40 A.3d 494, 507 (Md. Ct. Spec. App. 2012)). The deed of trust, however, “ ‘cannot be transferred.’ ” Id. (quoting Anderson v. Burson, 35 A.3d 452, 460 (Md. 2011)). Thus Proctor has not alleged a viable basis for challenging Fannie Mae and Wells Fargo’s ability to foreclose the Mortgage. Moreover, it appears that Proctor has confused issues concerning ownership of her Mortgage loan with holdership of the Mortgage Note and the corresponding legal right to enforce the deed of trust. A mortgage promissory note is a negotiable instrument that is enforceable by the “holder,” which includes a person in possession of a note indorsed in blank. Deutsche, 63 A.3d at 49 (citing Md. Code Ann., Com. Law § 3-301). The Mortgage Note, which is attached to Proctor’s Complaint as Exhibit A at page 11, is indorsed “Pay Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 12 of 19 13 to the Order of _____ Without Recourse”; i.e., it is indorsed in blank and payable to bearer. See Deutsche, 63 A.3d at 49. The Complaint does not dispute that Wells Fargo as servicer was a holder in possession of the Note when it appointed the Substitute Trustees. Ex. 1 at p. 21. Therefore, Wells Fargo had the right to appoint the Substitute Trustees to carry out the foreclosure. Deutsche, 63 A.3d at 49. Because Proctor does not challenge Wells Fargo’s status of holder in possession of the Note, the entire Complaint does not plausibly dispute Wells Fargo’s ability to foreclose the Mortgage through the Substitute Trustees. Further, to the extent that Proctor is alleging that an ownership interest was not properly conveyed to Fannie Mae or others or properly securitized, she lacks prudential standing to challenge it. To have prudential standing, “ ‘the plaintiff generally must assert [her] own legal rights and interests, and cannot rest [her] claim to relief on the legal rights or interests of third parties.” Bell v. Clarke, Case No. TDC-15-1621, 2016 WL 1045959, at *2 (D. Md. Mar. 16, 2016). In the mortgage context, “mortgagors [like Proctor] generally lack standing to attack transfers of ownership of their mortgage loans through assignments . . . to which they are not parties. Id. (collecting cases). E. Proctor’s Seven Causes of Action Fail to State a Claim. In addition to the foregoing defenses to the Complaint, Proctor’s individual Causes of Action fail to state a claim upon which relief can be granted. 1. Proctor’s RICO Claims. The First, Second, and Third Causes of Action allege violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. To plead a Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 13 of 19 14 plausible violation of RICO, Proctor must allege “(1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering.” Grant v. Shapiro & Burson, LLP, 871 F. Supp. 2d 462, 472 (D. Md. 2012). Moreover, Proctor’s RICO allegations are based on mail and wire fraud. Compl. at ¶ 94. When “ ‘mail and wire fraud are asserted as predicate acts in a civil RICO claim, each must be pled with particularity, pursuant to Rule 9(b).’ ” Willard v. Kunda, Case No. JFM-10-326, 2010 WL 4365569, at *3 (D. Md. Nov. 3, 2010), aff'd, 432 Fed. Appx. 259 (4th Cir. 2011) (quoting Proctor v. Metro. Money Store Corp., 645 F. Supp. 2d 464, 473 (D. Md. 2009)). Rule 9(b) triggers a heightened pleading standard, which requires Proctor to allege 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.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999). Proctor’s allegations are insufficient to establish the enterprise, pattern, and racketeering elements of RICO. An enterprise is an “ongoing organization, formal or informal, in which the various associates function as a continuing unit.” Grant, 871 F. Supp. 2d at 473 (quoting Delk v. ArvinMeritor, Inc., 179 F. Supp. 2d 615, 626-27 (W.D.N.C. 2002), aff'd, 40 Fed. Appx. 775 (4th Cir. 2002)). Proctor only offers the conclusory, formalistic proposition that “all Defendants did associate with a RICO enterprise of individuals and corporations,” which is insufficient to survive dismissal. Compl. at ¶ 88; Grant, 871 F. Supp. 2d. at 473. Regarding a pattern, RICO “requires more than just conduct directed at” the named plaintiff. Davis v. Wilmington Fin., Inc., Case No. PJM 09-1505, 2010 WL 1375363, at *4 (D. Md. Mar. 26, 2010) (citing Int'l Data Bank, Ltd. v. Zepkin, 812 F.2d 149, 155 (4th Cir. Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 14 of 19 15 1987)). Other than accusatory, vague references to the mortgage industry and other “borrowers,” Proctor fails “to allege any specific fraudulent conduct perpetuated by any Defendant apart from the alleged conduct directed to” her. Id. Nor does Proctor allege with specificity any racketeering by mail and wire fraud, which must amount to “a scheme disclosing an intent to defraud, and (2) the use of the mails [and wire, radio, or television] in furtherance of the scheme.” Grant, 871 F. Supp. 2d. at 473 (citing Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 336 (4th Cir. 1996)). Proctor merely alleges that Defendants “[t]hrough the mail and wire . . . demand[ed] that Plaintiffs [sic] and other borrowers pay fraudulently concealed mark-up and/or unnecessary fees for defaulted-related services.” Compl. at ¶¶ 95. She does not provide detailed factual enhancement pursuant to Rule 9(b) regarding who made these alleged misrepresentations, the contents thereof, or when and where they were made. Thus Proctor’s “threadbare factual allegations and bald legal conclusions” about her RICO claims “are insufficient to survive a motion to dismiss” See Pitkin v. Ocwen Fin. Corp., Case No. 8:12-CV-00573-AW, 2012 WL 5986480, at *3-4 (D. Md. Nov. 27, 2012). 2. Unjust Enrichment. In the Fourth Cause of Action, Proctor alleges that the Defendants were unjustly enriched by overcharging her for “default-related services” and “unjustly” depriving her of the Property. Compl. at ¶¶ 146-148. To state an equitable claim of unjust enrichment, a plaintiff must allege: 1) A benefit conferred upon the defendant by the plaintiff; 2) An appreciation or knowledge by the defendant of the benefit; and 3) The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 15 of 19 16 for the defendant to retain the benefit without the payment of its value. Hill v. Cross Country Settlements, LLC, 936 A.2d 343, 351 (Md. 2007). Proctor fails to substantiate her unjust enrichment claim with specific allegations, including her basis for claiming that she was over-charged. And, there are no allegations that some benefit was conferred to the Defendants in an inequitable manner, given her apparent admission of default. Also, it is important to note that Proctor asserts that “Defendants fraudulently conceal[ed] these fees” (emphasis added). However, she falls far short of the Rule 9(b) standard for alleging details about the time, place, manner, and persons involved with the fraud. Therefore, the Fourth Cause of Action fails to plead a plausible claim for relief. 3. Declaratory Judgment. The Fifth Cause of Action seeks declaratory and injunctive relief in the form of halting “any and all actions to evict the Plaintiffs [sic] from the subject property,” a declaration that the Mortgage is “paid in full,” and the “expungement” of the land records evidencing Proctor’s default on the Mortgage and Fannie Mae and Wells Fargo’s right to foreclose. Compl. at ¶ 157. The relief requested by the Fifth Cause of Action would directly contravene the judgments in the Foreclosure Action and violate the Anti-Injunction Act for the reasons stated above. 4. Alleged Violation of the Fair Debt Collection Practices Act. Proctor’s allegation in the Sixth Cause of Action that the Defendants violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. is deficient for several reasons. The Defendants are not “debt collectors” under that statute. Ademiluyi v. Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 16 of 19 17 PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F. Supp. 2d 502, 525 (D. Md. 2013); Allen v. Bank of Am., N.A., 933 F. Supp. 2d 716, 729 (D. Md. 2013). Debt collectors under the FDCPA are entities that receive an assignment of debt “solely for the purpose of facilitating collection such debt of another.” Ademiluyi, 929 F. Supp. 2d at 525. Proctor here alleges that the Defendants are the owner and servicer of the Mortgage, which generally excludes such entities from FDCPA liability. Id.; Allen, 933 F. Supp. 2d at 729. And at no point does Proctor allege that Defendants received the Mortgage “solely” for debt-collecting purposes. Additionally, the FDCPA has a one-year statute of limitations. 15 U.S.C. § 1692k(d). Proctor alleges without detail that beginning in 2012, the Defendants mailed her “misleading information.” Compl. at ¶ 159 Consequently, any FDCPA claims filed more than one year after they accrued are time-barred. 5. Alleged Violation of the Truth in Lending Act The Seventh Cause of Action alleges that the Defendants violated the Truth in Lending Act (“TILA”), 15 U.S.C. § 1640(k). However, § 1640(k) provides that “a consumer may assert a violation by a creditor of [certain sections of TILA] as a matter of defense by recoupment or set off” in a foreclosure action. (Emphasis added). It is not an affirmative claim for relief that can be asserted in a separate lawsuit. Moreover, as noted above, the Foreclosures Action is now complete. Proctor appears to also allege a violation of TILA § 1641(f) and (g). Compl. at ¶ 2. Section 1641(f) is not a cause of action. While § 1641(g) requires TILA creditors to provide certain notices to borrowers when their mortgage loan is transferred, it does not apply to Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 17 of 19 18 the allegations of this case. Congress did not enact § 1641(g) until 2009, and Proctor alleges that the Mortgage was transferred to Freddie Mac “shortly after the loan documents were signed” in 2007. Compl. at ¶ 2 and Ex. A to the Compl; Ex. 1 at p. 25. Additionally, TILA claims are subject to a one-year statute of limitations. 15 U.S.C. § 1640(e). Even if Proctor had alleged a viable TILA claim, which she has not, it is time- barred. To the extent that Proctor argues she was not aware of Fannie Mae’s involvement until a later date, she was on notice when she was served with the Order to Docket materials in the Foreclosure Action on January 17, 2015 identifying Fannie Mae as the Mortgage loan owner. Ex. 2 at Docket No. 003. She did not file this case until February 24, 2017. 6. Proctor Alone Is Responsible to Repay the Mortgage Loan. Although not framed as a separate cause of action, Proctor makes passing allegations in the Complaint about the Mortgage loan owner being reimbursed through mortgage insurance. She appears to claim that this somehow relieves her of her obligation to repay the loan. However, Proctor “alone has the responsibility to repay the money she borrowed.” See Anderson v. O’Sullivan, 121 A.3d 181, 188 (Md. Ct. Spec. App. 2015). V. Conclusion For all the foregoing reasons, the Court should dismiss the Complaint with prejudice. [Attorney signatures appear on following page] Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 18 of 19 19 Respectfully submitted, /s/ Michael S. Barranco Michael S. Barranco (Bar No. 04036) Justin E. Fine (Bar No. 18731) TREANOR POPE & HUGHES, P.A. 500 York Rd. Towson, Maryland 21204 Tel: (410) 494-7777 Fax: (410) 494-1658 msbarranco@tph-law.com jefine@tph-law.com Attorneys for Defendants, Fannie Mae, Wells Fargo, Heid, and Hernandez Case 8:17-cv-00113-PWG Document 21-2 Filed 05/12/17 Page 19 of 19 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 1 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 2 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 3 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 4 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 5 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 6 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 7 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 8 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 9 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 10 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 11 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 12 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 13 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 14 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 15 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 16 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 17 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 18 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 19 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 20 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 21 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 22 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 23 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 24 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 25 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 26 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 27 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 28 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 29 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 30 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 31 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 32 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 33 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 34 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 35 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 36 of 37 Case 8:17-cv-00113-PWG Document 21-3 Filed 05/12/17 Page 37 of 37 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 1 of 6 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 2 of 6 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 3 of 6 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 4 of 6 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 5 of 6 Case 8:17-cv-00113-PWG Document 21-4 Filed 05/12/17 Page 6 of 6 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 1 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 2 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 3 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 4 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 5 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 6 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 7 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 8 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 9 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 10 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 11 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 12 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 13 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 14 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 15 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 16 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 17 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 18 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 19 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 20 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 21 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 22 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 23 of 24 Case 8:17-cv-00113-PWG Document 21-5 Filed 05/12/17 Page 24 of 24 Case 8:17-cv-00113-PWG Document 21-6 Filed 05/12/17 Page 1 of 2 Case 8:17-cv-00113-PWG Document 21-6 Filed 05/12/17 Page 2 of 2 Case 8:17-cv-00113-PWG Document 21-7 Filed 05/12/17 Page 1 of 3 Case 8:17-cv-00113-PWG Document 21-7 Filed 05/12/17 Page 2 of 3 Case 8:17-cv-00113-PWG Document 21-7 Filed 05/12/17 Page 3 of 3