Thomas v. Ocwen Loan Servicing Llc et al

MOTION to Dismiss for Failure to State a Claim re Plaintiff's Amended Complaint

D. Md.May 30, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANTHONY THOMAS Plaintiff, v. OCWEN LOAN SERVICING, LLC, et al. Defendants. : : : : : : : : : : : No. 1:17-cv-00777-GLR MOTION OF DEFENDANT OCWEN LOAN SERVICING, LLC TO DISMISS PLAINTIFF’S AMENDED COMPLAINT PURSUANT TO RULE 12(b)(6) Defendant Ocwen Loan Servicing, LLC (“Ocwen”), by and through its counsel, Stradley Ronon Stevens & Young, LLP, hereby submits this Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In support of this Motion, Ocwen incorporates the accompanying Memorandum of Law. A proposed Order is attached. Respectfully submitted, /s/ Michelle H. Badolato Dated: May 30, 2017 Michelle H. Badolato (Bar No. 14477) Stradley Ronon Stevens & Young, LLP 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002-2223 Phone: (856) 321-2400 Facsimile: (856) 321-2415 mbadolato@stradley.com Attorneys for Defendant Ocwen Loan Servicing, LLC Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 1 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANTHONY THOMAS Plaintiff, v. OCWEN LOAN SERVICING, LLC, et al. Defendants. : : : : : : : : : : : No. 1:17-cv-00777-GLR MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANT OCWEN LOAN SERVICING, LLC TO DISMISS PLAINTIFF’S AMENDED COMPLAINT PURSUANT TO RULE 12(b)(6) Defendant Ocwen Loan Servicing, LLC (“Ocwen”), by and through its counsel, Stradley Ronon Stevens & Young, LLP, hereby submits this Memorandum of Law in support of its Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Rule 12(b)(6). I. INTRODUCTION This lawsuit is Plaintiff’s latest in a series of attempts to misuse the legal process to stave off foreclosure of his property located at 7214 Rockridge Road, Baltimore, Maryland (the “Property”). In January 2010, Plaintiff and his wife recorded a fraudulent Release of Deed of Trust, purporting to discharge the Deed of Trust securing the mortgage loan for their home. In order to proceed with foreclosure, Ocwen was forced to file a quiet title action in the Circuit Court for Baltimore County (the “Quiet Title Action”) to invalidate the fraudulent Release.1 In the Quiet Title Action, Plaintiff asserted counterclaims against Ocwen and its counsel under the 1 Ocwen commenced the Quiet Title Action, captioned Ocwen Loan Servicing, LLC v. Anthony Thomas et al., No. 03C16005234, on May 16, 2016, and on April 4, 2017, the court granted the declaratory relief Ocwen requested. (See Quiet Title docket report, attached hereto as Exhibit A.) Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 2 of 36 - 2 - Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (the “FDCPA” or the “Act”), seeking monetary, declaratory, and injunctive relief claims.2 On November 29, 2016, the court in the Quiet Title Action dismissed Plaintiff’s Counterclaim.3 On the heels of the court’s dismissal Order, Plaintiff filed this action, asserting the very same FDCPA claims against Ocwen that the court in the Quiet Title Action had dismissed.4 Plaintiff’s claims against Ocwen in this action are plainly barred by res judicata and the Rooker-Feldman doctrine. Moreover, Plaintiff’s claims fail on the merits because, as aptly stated by Judge Fader in the Quiet Title Action, Plaintiff’s pleading “bears no discernible relationship to what is required . . . to state a cause of action against [Ocwen].” (See Order dismissing Plaintiff’s Counterclaims in the Quiet Title Action, Exhibit C hereto.) For these reasons, Ocwen requests that the Court dismiss Plaintiff’ Amended Complaint with prejudice. II. FACTUAL AND PROCEDURAL HISTORY On May 7, 2007, Plaintiff and his wife Sharon M. Byrd-Thomas obtained a $250,000.00 loan (the “Loan”) from IndyMac Bank, F.S.B. (See Exhibit A to the original Complaint.) The Loan was secured by a Deed of Trust against the Property recorded among the land records of Baltimore County, Maryland in Book 25724, Page 622. (Id.) The Deed of Trust was later assigned to Ocwen by an Assignment recorded in Baltimore County, Maryland at Book 35163, Page 317. (Id.) On January 27, 2010, Plaintiff and his wife recorded a fraudulent 2 A copy of Plaintiff’s Verified Counterclaim in the Quiet Title Action is attached hereto as Exhibit B. 3 A copy of the court’s Order dismissing Plaintiff’s Counterclaim in the Quiet Title Action is attached hereto as Exhibit C. 4 In this Action, Plaintiff also sues Ocwen’s counsel in the Quiet Title Action and Hon. John F. Fader II and Hon. Ruth A. Jakubowski, the Circuit Court judges who issued rulings adverse to Plaintiff. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 3 of 36 - 3 - Release of Deed of Trust, which they had improperly executed as the purported “Lenders” under the Loan, in Baltimore County. (Id.) As is evident from the face of the recorded document, Ocwen did not execute the fraudulent Release of Deed of Trust. (Id.) On May 16, 2016, Ocwen, by and through their counsel Timothy S. Carey (“Carey”) of McCabe, Weisberg and Conway, PC (“McCabe Weisberg”) commenced the Quiet Title Action, seeking an order invalidating the fraudulent Release of Deed of Trust. (See Quiet Title docket report, Exhibit A hereto.) 5 On Plaintiff filed a Motion to Dismiss which was denied by Defendant the Honorable John F. Fader II (“Judge Fader”) by order entered September 7, 2016. (Id.) On September 26, 2016, Plaintiff filed a Verified Counterclaim for Damages against Ocwen and Carey in the Quiet Title Action. (See Verified Counterclaim in Quiet Title Action, Exhibit B hereto.) In his Counterclaim, Plaintiff asserted that Ocwen and Carey had violated the FDCPA by commencing the Quiet Title Action and by failing to respond to Plaintiff’s request to verify his debt. (Id. at ¶¶ 6 and 13.) Due to the filing of the Counterclaim, Ocwen retained the law firm of Duane Morris, LLP (“Duane Morris”) to represent it as co- counsel with McCabe Weisberg to address the Counterclaims. (See Exhibit A.) Defendants Kevin P. Diskin and Bryan Gales are attorneys with Duane Morris. (Id.) In response to Plaintiff’s Counterclaim in the Quiet Title Action, Ocwen and Carey each filed Motions to Dismiss. (Id.) On November 29, 2016, Judge Fader granted both motions to Dismiss, explaining: “What has been filed as a Counterclaim by Mr. Thomas bears 5 In deciding a motion pursuant to Fed. R. Civ. P 12(b)(6)), the Court may consider public records (including court filings) without converting the motion into one for summary judgment. See Witthohn v. Federal Ins. Co., 164 F. App’x 395, 396 (4th Cir. 2006). Consequently, the Court may consider publicly recorded land records and court dockets and filings in reviewing this Motion to Dismiss. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 4 of 36 - 4 - no discernible relationship to what is required by the Maryland Rules of Civil Procedure (Rule 2- 203) to state a cause of action against these Defendants/Movants.” (Order dismissing Plaintiff’s Counterclaim in the Quiet Title Action, Exhibit C hereto.) On December 14, 2016, Ocwen was granted an order of default. (See Exhibit A.) On January 24, 2017, Defendant the Honorable Ruth A. Jakubowski (“Judge Jakubowski”) denied Plaintiff’s demand to vacate the order of default, and denied Ocwen’s motion for judgment by default. (Id.) on April 3, 2017 an Order was entered granting declaratory judgment in favor of Ocwen, striking the Erroneous Release of Deed of Trust. (See Exhibit A.) Meanwhile, Plaintiff commenced this action on March 21, 2017, re-asserting the very same FDCPA claims against Ocwen and its counsel, again arguing that they violated the FDCPA by commencing the Quiet Title Action and by failing to respond to Plaintiff’s request to verify his debt. (Compl. ¶¶ 4-6.) Plaintiff alleges that he sent several letters to Ocwen’s counsel in the Quiet Title Action demanding debt verification in June and October 2016, to which counsel allegedly did not respond. (Id. at ¶¶ 5-6.) Plaintiff demands: (1) a declaration that Defendants are “debt collectors” under the FDCPA; (2) an order directing Defendants to verify the underlying residential mortgage debt; (3) an order directing Defendants to cease and desist all collection activities; (4) an order terminating the Quiet Title Action; and (5) a decree and voiding the Deed of Trust. Plaintiff also seeks compensatory, statutory, and punitive damages. On May 12, 2017, Ocwen filed a Motion to Dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6). In response, Plaintiff filed an Amended Complaint on May 16, 2017. The Amended Complaint is identical to the Plaintiff’s original Complaint, except it appears to dismiss the Plaintiff’s claims as to Judge Fader, and Judge Jakubowksi, as well as Julie L. Ensor. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 5 of 36 - 5 - III. LEGAL ARGUMENT A. Legal Standard A motion under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and the adequacy of the factual allegations contained therein. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In ruling on a Rule 12(b)(6) motion, the court must consider whether the plaintiff has pleaded plausible, not merely conceivable or speculative, facts in support of his or her claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 540, 570 (2007). While Federal Rule of Civil Procedure 8(a) sets forth a “notice pleading” standard, Rule 8(a) “still requires a showing rather than a blanket assertion of entitlement to relief.” Id., 550 U.S. at 555 n. 3 (internal quotations omitted; emphasis added). That showing must consist of more than a “formulaic recitation of the elements of a cause of action or naked assertion devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009) (citations omitted). In evaluating a complaint, unsupported legal allegations need not be accepted. Revenue v. Charles Cnty. Comm’rs., 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, as are conclusory factual allegations devoid of any reference to actual events. Iqbal, 556 U.S. at 678; United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). To avoid dismissal, a complaint must contain “sufficient factual matter,” accepted as true, to show that the claim is facially plausible and to allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678. In addition, dismissal is “appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense.” Brockton v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011) (quotations omitted). Even where pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Department of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 6 of 36 - 6 - B. Plaintiff’s Claims Are Barred by Res Judicata and the Rooker-Feldman Doctrine. This action is a blatant attempt by Plaintiff to re-litigate claims that were previously adjudicated by the Circuit Court in the Quiet Title Action. As such, Plaintiff’s claims are barred by res judicata and the Rooker-Feldman doctrine. It is well-established that the doctrine of res judicata “bars the re-litigation of a claim if there is a final judgment in a previous litigation where the parties, the subject matter and causes of action are identical or substantially identical as to issues actually litigated and as to those which could have or should have been raised in the previous litigation.” Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 887 A.2d 1029 (Md. 2005). The purpose of res judicata is “to provide litigants, as well as the judicial system, with some definite end to the litigation of matters previously addressed by the court.” McCreary v. Beneficial Mortgage Co. of Maryland, et. al., 2011 WL 4985437, *5 (D. Md. Oct. 18, 2011). The preclusive effect of a state court judgment is determined under “the law of the state in which the judgment was rendered.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008). Here, the underlying dismissal of claims was entered by the Circuit Court for Baltimore County, and so Maryland law applies to a res judicata analysis. Under Maryland law, courts consider three elements in determining the applicability of res judicata: (1) whether the parties are the same, or in privity with, parties in the previous dispute; (2) whether the claim presented in the current suit is identical to that determined, or that which could have been raised and determined in the prior adjudication; and (3) whether the initial action was concluded by a final judgment on the merits. See Hall v. St. Mary’s Seminary & University, 608 F. Supp. 2d 679, 684 (D. Md. 2009); Ayanwutaku v. Fleet Mortg. Group, Inc., 85 F. Supp. 2d 566, 570-71 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 7 of 36 - 7 - (D. Md. 2000). All three elements for the applicability of res judicata are met here and require the dismissal of Plaintiff’s Amended Complaint with prejudice. First, the parties to this action are the same as those in the Quiet Title Action. No “privity” analysis is even required. In the Quiet Title Action, Plaintiff asserted counterclaims against Ocwen, and here too, Plaintiff asserts claims against Ocwen. Second, Plaintiff’s claims in this action are the very same claims that he asserted against Ocwen in the Quiet Title Action. Res judicata requires that the current claim and prior claim “arise out of the same transaction or series of transactions.” Hall, 608 F. Supp.2d at 685; see also Anyanwutaku, 85 F.Supp. 2d at 572. To determine whether the claims arise from the same transaction, or series of transactions, courts must consider “whether the facts are related in time, space, origin or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Anyanwutaku, 85 F.Supp. 2d at 571 (quoting Restatement (Second) of Judgments § 24(2) (1982)). Plaintiff’s claims in this action and the prior Quiet Title Action both arise out of the same transaction or series of transactions; in both actions, Plaintiff argues that Ocwen violated the FDCPA by commencing the Quiet Title Action to invalidate the fraudulent Release of Deed of Trust and by failing to respond to Plaintiff’s requests for debt verification. Third, there was a final judgment on the merits in the Quiet Title Action; the court dismissed Plaintiff’s counterclaim against Ocwen by Order dated November 29, 2016 and, thereafter, entered an Order granting Ocwen the declaratory relief it sought and closed the Quiet Title Action. (See Quiet Title Action docket report, Exhibit A hereto.) The final element of res judicata is satisfied because the Plaintiff’s claims were determined in the prior Quiet Title Action. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 8 of 36 - 8 - In sum, the Circuit Court’s Order dismissal of Plaintiff’s Counterclaim in the Quiet Title Action has preclusive effect on these proceedings. The doctrine of res judicata “encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Pueschel v. United States, 369 F.3d 345, 354 (4th Cir. 2004), quoting Brown v. Felsen, 442 U.S. 127, 131(1979). To allow Plaintiff to proceed with his claims against Ocwen in this action would be antithetical to this fundamental principle, and the Court should dismiss Plaintiff’s claims with prejudice. Plaintiff’s claims are also barred under the Rooker-Feldman doctrine. The Rooker-Feldman doctrine requires federal courts to abstain from hearing claims that have previously been adjudicated in state court or are “inextricably intertwined with the merits of a state court judgment.” Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 228 (4th Cir. 1997). In other words, the Rooker-Feldman doctrine prohibits federal courts from sitting in review of prior state court decisions. See Jordahl v. Democratic Party of Virginia, 122 F.3d 192, 202-03 (4th Cir. 1997) (“[W]here plaintiffs’ claims are inextricably intertwined with the merits of a state court decision, then the district court is being asked to review the state court decision, a result prohibited under Rooker-Feldman.”) Here, by asserting the very same claims against Ocwen that the Circuit Court dismissed in the Quiet Title Action, Plaintiff is asking this Court to review the state court’s adjudication of the claims, which Rooker-Feldman prohibits. Accordingly, the Court should dismiss Plaintiff’s claims. C. Plaintiff Fails to State a Claim for Violation of the FDCPA. Even setting aside the res judicata and Rooker-Feldman doctrines, Plaintiff’s FDCPA claims fail on their own merit. Plaintiff claims that Ocwen violated the FDCPA by initiating the Quiet Title Action and failing to respond to demands for verification and validation of the debt. (Compl. at ¶ 5 - 8.) The FDCPA is intended to protect consumers from debt Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 9 of 36 - 9 - collectors who engage in abusive and deceptive debt collection practices. 15 U.S.C. § 1692; see United States v. Nat'l Fin. Servs. Inc., 98 F.3d 131, 135 (4th Cir.1996). To state a claim under the FDCPA, the plaintiff must allege that: (1) the defendant is a debt collector under the FDCPA, (2) the plaintiff is the object of a collection activity arising from consumer debt, and (3) the defendant engaged in a debt collection activity prohibited by the FDCPA. See Ademiluyi v. PennyMac Mortg. Inv. Trust Holdings I, LLC, 929 F.Supp.2d 502, 524 (D. Md. 2013); Stewart v. Bierman, 859 F.Supp.2d 754, 759 (D. Md. 2012). Plaintiff fails to satisfy these elements. 1. Ocwen Is Not a “Debt Collector” as Defined under the FDCPA. Plaintiff’s FDCPA claims against Ocwen fail as a matter of law because the Act does not apply to Ocwen. It is well settled that the FDCPA applies only to “debt collectors,” meaning those who engage in the collection of debts on behalf of others (i.e., third-party debt collectors). A “debt collector” is “any person who uses any instrumentality of interstate commerce ... in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, mortgage servicing companies generally are not debt collectors under the Act. See, e.g., Adam v. Wells Fargo Bank, N.A., No. ELH-09-2387, 2011 WL 3841547, at *20 (D. Md. Aug. 26, 2011) (citations omitted) (confirming that holding that mortgage servicing companies and others who service outside debts for others are not debt collectors, so long as the debts are not in default when taken for servicing); see also Flores v. Deutsche Bank Nat’l Trust, Co., No. DKC-10-0217, 2010 WL 2719849, at *6 (D.Md. July 7, 2010) (same); Ayres v. Ocwen Loan Servicing, LLC, 129 F. Supp. 3d 249, 276-77 (D. Md. 2015) (same). Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 10 of 36 - 10 - Here, the Plaintiff alleges only in conclusory fashion that Ocwen is a “debt collector” under the FDCPA. Plaintiff does not allege that the mortgage debt was in default at the time Ocwen became the loan servicer. Nor has Plaintiff pleaded any facts to demonstrate that Ocwen was a debt collector by trade or was acting as a debt collector with respect to the Loan. Instead, the factual allegations lead only to conclusion that Ocwen was acting as a mortgage servicer. Accordingly, Plaintiff fails to establish that Ocwen is a “debt collector” for the purposes of the FDCPA, and Plaintiff’s claims against Ocwen fail as a matter of law. 2. The Filing of the Quiet Title Action Was Not an Unfair or Abusive Practice. Even if Ocwen was acting as a “debt collector,” Plaintiff fails to allege that Ocwen engaged in any conduct that violates the FDCPA. Plaintiff’s Amended Complaint is devoid of any factual allegations that Ocwen harassed, deceived, or misled Plaintiff or that Ocwen engaged in any unfair or unconscionable conduct. Instead, Plaintiff bases his FDCPA claim on Ocwen’s filing of the Quiet Title Action, which was necessitated by Plaintiff’s deceitful conduct in recording the fraudulent Release of Deed of Trust. The FDCPA protects consumers from harassment and deceptive or unfair practices by debt collectors. Section 1692d of the Act provides that “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. Section 1692e of the Act, on the other hand, forbids the use of “any false, deceptive, or misleading representation or means” in debt collection. Plaintiff’ Amended Complaint contains no allegations showing that Ocwen harassed, deceived, or misled Plaintiff. The FDCPA also prohibits debt collectors from using “unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. While the FDCPA does not Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 11 of 36 - 11 - define “unfair” or “unconscionable,” it does provide a non-exhaustive list of conduct that violates the section. See Hauk v. LVNV Funding, LLC, 749 F.Supp.2d 358, 366 (D. Md. 2010). These “unfair” practices include: (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if - (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement. 15 U.S.C. § 1692f(6). Plaintiff’s Amended Complaint is no model of clarity, but it appears that Plaintiff contends that Ocwen violated the FDCPA by pursuing the Quiet Title Action when, according to Plaintiff, Ocwen did not have a right to enforce any security interest in the Property.6 However, the only possible basis for Plaintiff’s contention that Ocwen lacked the right to enforce its security interest under the Deed of Trust is the very fraudulent Release of Deed of Trust that Ocwen filed the Quiet Title Action to invalidate. In other words, Plaintiff claims that the fraudulent Release of Deed of Trust deprived Ocwen of the right to file a lawsuit challenging the fraudulent Release of Deed of Trust. This circular argument fails. As noted above, the Circuit Court has already declared that the Release of Deed of Trust is invalid. Moreover, it is evident from the face of the Release of Deed of Trust that it is fraudulent. Plaintiff and his wife 6 Plaintiff also cites to Section 1692i in his Amended Complaint. This section of the Act requires a debt collector to bring legal action to enforce an interest in real property in the judicial district where the property is located. See 15 U.S.C. § 1692i. Here, Ocwen commenced the Quiet Title Action in Baltimore County, Maryland, where the Property is located. Accordingly, Section 1692i provides no basis for any claim against Ocwen. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 12 of 36 - 12 - themselves executed the Release, purporting to be the “Lenders” for the Loan, which they plainly were not. Ocwen, on the other hand, the Assignee under the Deed of Trust, did not execute the Release of Deed of Trust that Plaintiff improperly recorded. 3. Plaintiff Fails to Plead a Violation under Section 1692g of the FDCPA. In addition to claiming violation of the FDCPA for commencement of the Quiet Title Action, Plaintiff also complains that Ocwen violated the FDCPA when it failed to respond to the requests for debt validation. However, the requests for debt validation attached to Plaintiff’s original Complaint (Exhibit B to Complaint) are not addressed to, nor is there any allegation that they were sent to, Ocwen. Moreover, Section 1692g of the FDCPA sets forth the timing an process for requesting and providing verification of debt. Section 1692g provides: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing - * * * (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector * * * (b) Disputed debts If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 13 of 36 - 13 - copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. 15 U.S.C. § 1692g (emphasis added). Here, Plaintiff does not allege that he requested the debt validation with 30 days of the initial communication from Ocwen. Nor does Plaintiff identify when he received such an initial communication from Ocwen. Plaintiff’s conclusory allegations concerning Ocwen’s alleged failure to verify and validate are insufficient to state a claim under the FDCPA. See Franklin v. Bww Law Group, LLC, 2016 WL 2756576, *7 (D.Md. May 12, 2016) (granting defendant’s motion to dismiss plaintiff’s FDCPA claims where no specifics as to timing or initial communication were pled.) Accordingly, Plaintiff’s claim against Ocwen under Section 1692g must be dismissed. 4. Declaratory or Injunctive Relief Is Not Available under the FDCPA. In addition to monetary damages, Plaintiff seeks declaratory and injunctive relief in his Amended Complaint, including (1) an order directing the defendants to cease and desist all collection activities; (2) an order terminating the quiet title action; and (3) a decree and voiding the Deed of Trust. However, such relief is unavailable under the FDCPA, and courts in this District have dismissed FDCPA claims purporting to seek declaratory or injunctive relief. See Hauk, 749 F.Supp.2d at 369; see also Bradshaw v. Hilco Receivables, LLC, 765 F. Supp. 2d 719, 733 (D. Md. 2011) (granting summary judgment in favor of defendant as to that portion of plaintiff’s complaint seeking declaratory and injunctive relief under the FDCPA and other state statutes). Accordingly, Plaintiff’s demands for declaratory and injunctive relief under the FDCPA fail as a matter of law, as the Act does not allow such relief. Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 14 of 36 - 14 - IV. CONCLUSION For all the foregoing reasons, Ocwen requests that the Court enter an Order in the form attached hereto, granting this Motion and dismissing Plaintiff’s Amended Complaint as to Ocwen with prejudice.7 Respectfully submitted, /s/ Michelle H. Badolato Dated: May 30, 2017 Michelle H. Badolato (Bar No. 14477) Stradley Ronon Stevens & Young, LLP 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002-2223 Phone: (856) 321-2400 Facsimile: (856) 321-2415 mbadolato@stradley.com Attorneys for Defendant Ocwen Loan Servicing, LLC 7 Plaintiff cannot rectify the legal deficiencies with the Amended Complaint and any amendment would be futile. As such, a dismissal with prejudice is warranted. See, e.g., Cozzarelli v. Inspire Pharms., Inc., 549 F.3d 618, 630 (4th Cir. 2008) (dismissal with prejudice warranted where “amendment would be futile in light of the [complaint’s] fundamental deficiencies”); and Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (holding that a district court may deny leave to amend if the “amendment would have been futile”) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 15 of 36 EXHIBIT A Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 16 of 36 Circuit Court of Maryland Go Back Now Case Information Court System: Circuit Court for Baltimore County - Civil System Case Number: 03C16005234 Title: Ocwen Loan Servicing L L C vs Thomas, et al Case Type: Quiet Title Filing Date: 05/16/2016 Case Status: Closed/Active Case Disposition: Decree or Order Disposition Date: 04/04/2017 Plaintiff/Petitioner Information (Each Plaintiff/Petitioner is displayed below) Party Type: Plaintiff Party No.: 1 Business or Organization Name: Ocwen Loan Servicing L L C Address: 100 Community Place City: Crownsville State: MD Zip Code: 21032 Attorney(s) for the Plaintiff/Petitioner Name: Carey, Esq, Timothy S Appearance Date: 05/16/2016 Practice Name: McCabe, Weisberg & Conway, LLC Address: 312 Marshall Ave Suite 800 City: Laurel State: MD Zip Code: 20707 Name: Gales, Esq, Bryan Appearance Date: 10/19/2016 Practice Name: Address: 111 South Calvert Street Suite 2000 City: Baltimore State: MD Zip Code: Name: Diskin, Esq, Kevin P Appearance Date: 11/01/2016 Practice Name: Duane & Morris, LLP Address: 30 S 17th Street City: Philadelphia State: PA Zip Code: 19103 Defendant/Respondent Information (Each Defendant/Respondent is displayed below) Party Type: Defendant Party No.: 1 Name: Thomas, Anthony P Address: 610 Liberty Heights Avenue City: Baltimore State: MD Zip Code: 21215 Address: 7214 Rockridge Rd City: Pikesville State: MD Zip Code: 21207 Aliases Defendant/Respondent Name: Thomas, Anthony Party Type: Defendant Party No.: 2 Name: Byrd Thomas, Sharon M Address: 610 Liberty Heights Avenue Page 1 of 5Case Information 5/30/2017http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 17 of 36 City: Baltimore State: MD Zip Code: 21215 Address: 7214 Rockridge Rd City: Pikesville State: MD Zip Code: 21207 Party Type: Defendant Party No.: 3 Name: Young, Elaine Address: 514 Sanford Place City: Baltimore State: MD Zip Code: 21216 Address: 7214 Rockridge Rd City: Pikesville State: MD Zip Code: 21207 Aliases Defendant/Respondent Name: Young, Elaine Thomas Court Scheduling Information Event Type: Inquisition Hearing Notice Date: 02/03/2017 Event Date: 04/03/2017 Event Time: 09:30 AM Result: Held/Concluded Result Date: 04/03/2017 Related Persons Information (Each Related person is displayed below) Party Type: Counter Defendant Party No.: 1 Business or Organization Name: Ocwen Loan Servicing L L C Party Type: Counter Defendant Party No.: 2 Name: Carey, Timothy S Party Type: Counter Plaintiff Party No.: 1 Name: Thomas, Anthony Document Tracking (Each Document listed. Documents are listed in Document No./Sequence No. order) Doc No./Seq No.: 1/0 File Date: 05/16/2016 Entered Date: 05/31/2016 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Complaint to quiet title and for declaratory judgment with exhibits Doc No./Seq No.: 2/0 File Date: 05/16/2016 Entered Date: 05/31/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Writ of Summons - Civil Doc No./Seq No.: 3/0 File Date: 05/16/2016 Entered Date: 05/31/2016 Decision: Party Type: Defendant Party No.: 2 Document Name: Writ of Summons - Civil Doc No./Seq No.: 4/0 File Date: 05/16/2016 Entered Date: 05/31/2016 Decision: Party Type: Defendant Party No.: 3 Page 2 of 5Case Information 5/30/2017http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 18 of 36 Document Name: Writ of Summons - Civil Doc No./Seq No.: 5/0 File Date: 07/28/2016 Entered Date: 08/04/2016 Decision: Granted Party Type: Plaintiff Party No.: 1 Document Name: Motion for alternative service Doc No./Seq No.: 6/0 File Date: 08/04/2016 Entered Date: 08/04/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Writ of Summons - Civil Doc No./Seq No.: 7/0 File Date: 08/04/2016 Entered Date: 08/04/2016 Decision: Party Type: Defendant Party No.: 2 Document Name: Writ of Summons - Civil Doc No./Seq No.: 8/0 File Date: 08/04/2016 Entered Date: 08/04/2016 Decision: Party Type: Defendant Party No.: 3 Document Name: Writ of Summons - Civil Doc No./Seq No.: 9/0 File Date: 08/11/2016 Entered Date: 08/16/2016 Decision: Denied Party Type: Defendant Party No.: 1 Document Name: Motion to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction Doc No./Seq No.: 9/1 File Date: 08/29/2016 Entered Date: 08/31/2016 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Response to Defendant's Motion to Dismiss with Prejudice for Lack of Subject Matter Jurisdiction Doc No./Seq No.: 9/2 File Date: 09/06/2016 Entered Date: 09/08/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Objection to Plaintiff's Response to Defendant's Dismiss with Prejudice for Lack of Subject Matter Jurisdiction * Doc No./Seq No.: 10/0 File Date: 09/21/2016 Entered Date: 09/23/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Correspondence Doc No./Seq No.: 11/0 File Date: 09/26/2016 Entered Date: 09/27/2016 Decision: Dismissed Party Type: Defendant Party No.: 1 Document Name: Verified Counter Claim for Damages* Filed by DEF001-Thomas, CNP001-Thomas Doc No./Seq No.: 12/0 Page 3 of 5Case Information 5/30/2017http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 19 of 36 File Date: 09/23/2016 Entered Date: 09/29/2016 Decision: Granted Party Type: Plaintiff Party No.: 1 Document Name: Request Non-Mil. Aff./Order of Default Doc No./Seq No.: 13/0 File Date: 09/29/2016 Entered Date: 09/29/2016 Decision: Party Type: Defendant Party No.: 2 Document Name: Notice of Default Order Sent Doc No./Seq No.: 14/0 File Date: 09/29/2016 Entered Date: 09/29/2016 Decision: Party Type: Defendant Party No.: 3 Document Name: Notice of Default Order Sent Doc No./Seq No.: 15/0 File Date: 10/13/2016 Entered Date: 10/19/2016 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Attorney Appearance Filed Doc No./Seq No.: 16/0 File Date: 10/17/2016 Entered Date: 10/21/2016 Decision: Granted Document Name: Motion for Admission Pro Hac Vice Filed by Attorney: Bryan Gales Esq Doc No./Seq No.: 17/0 File Date: 10/26/2016 Entered Date: 10/27/2016 Decision: Granted Party Type: Plaintiff Party No.: 1 Document Name: Motion to Dismiss Counterclaim and Incorporated Memorandum of Law Doc No./Seq No.: 17/1 File Date: 11/21/2016 Entered Date: 11/22/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Answer in Proper Person Doc No./Seq No.: 18/0 File Date: 11/21/2016 Entered Date: 11/22/2016 Decision: Granted Party Type: Plaintiff Party No.: 1 Document Name: Motion to Dismiss Counterclaim or in the Alternative Strike the Counterclaim Doc No./Seq No.: 19/0 File Date: 12/07/2016 Entered Date: 12/14/2016 Decision: Granted Party Type: Plaintiff Party No.: 1 Document Name: Request Non-Mil. Aff./Order of Default Doc No./Seq No.: 20/0 File Date: 12/14/2016 Entered Date: 12/14/2016 Decision: Party Type: Defendant Party No.: 1 Document Name: Notice of Default Order Sent Page 4 of 5Case Information 5/30/2017http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 20 of 36 Doc No./Seq No.: 21/0 File Date: 01/06/2017 Entered Date: 01/09/2017 Decision: Denied Party Type: Defendant Party No.: 1 Document Name: Consumers Demand Motion to Vacate Order of Default Doc No./Seq No.: 22/0 File Date: 01/20/2017 Entered Date: 01/31/2017 Decision: Denied Party Type: Plaintiff Party No.: 1 Document Name: Motion for Default By Judgment Doc No./Seq No.: 23/0 File Date: 02/03/2017 Entered Date: 02/03/2017 Decision: Document Name: Hearing Notice Doc No./Seq No.: 24/0 File Date: 04/03/2017 Entered Date: 04/03/2017 Decision: Document Name: Open Court Proceeding April 3, 2017. Hon. Kathleen G. Cox. Hearing had in re: Inquisition. Testimony taken. Order to be filed. Doc No./Seq No.: 25/0 File Date: 04/03/2017 Entered Date: 04/03/2017 Decision: Document Name: Exhibits Filed Doc No./Seq No.: 26/0 File Date: 04/04/2017 Entered Date: 04/04/2017 Decision: Granted Document Name: Order of Court granting declaratory judgment This is an electronic case record. Full case information cannot be made available either because of legal restrictions on access to case records found in Maryland Rules, or because of the practical difficulties inherent in reducing a case record into an electronic format. Page 5 of 5Case Information 5/30/2017http://casesearch.courts.state.md.us/casesearch/inquiryByCaseNum.jis Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 21 of 36 EXHIBIT B Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 22 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 23 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 24 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 25 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 26 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 27 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 28 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 29 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 30 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 31 of 36 EXHIBIT C Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 32 of 36 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 33 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANTHONY THOMAS Plaintiff, v. OCWEN LOAN SERVICING, LLC, et al. Defendants. : : : : : : : : : : : No. 1:17-cv-00777-GLR ORDER UPON CONSIDERATION of the Motion of Defendant Ocwen Loan Servicing, LLC to Dismiss Amended Complaint Pursuant to Rule 12(b)(6), and any response in opposition thereto, it is on this day of , 2017: ORDERED that the Motion is GRANTED; and it is further ORDERED that Plaintiff’s Amended Complaint is DISMISSED WITH PREJUDICE and without leave to amend with respect to Defendant Ocwen Loan Servicing, LLC. BY THE COURT, HONORABLE GEORGE . RUSSELL, III UNITED STATES DISTRICT JUDGE Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 34 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ANTHONY THOMAS Plaintiff, v. OCWEN LOAN SERVICING, LLC, et al. Defendants. : : : : : : : : : : : No. 1:17-cv-00777-GLR CERTIFICATE OF SERVICE I, Michelle H. Badolato, hereby certify that on this date, I caused the foregoing Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to Rule 12(b)(6), together with supporting Memorandum of Law and proposed Order, to be served as follows. Via CM/ECF upon: Steven M. Cammarata, Esq. Michael T. Cantrell, Esq. Joshua A. Welborn, Esq. McCabe Weisberg & Conway, LLC 812 Marshall Avenue, Ste 300 Laurel, MD 20707 Attorneys for Defendant Timothy S. Carey Mary Cina Chalawsky, Esq. Office of the Attorney General Courts & Judicial Affairs Division 200 St. Paul Place, 20th Floor Baltimore , MD 21202 Attorneys for Defendants The Honorable Julie L. Ensor, The Honorable John F. Fader, II and The Honorable Ruth A. Jakubowski Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 35 of 36 Scott H. Marder, Esq. Phillip Chong, Esq. Duane Morris LLP 111 South Calvert Street, Suite 2000 Baltimore, MD 21202 Attorneys for Defendants Kevin P. Diskin and Bryan Gales Via First Class Mail upon: Anthony Thomas 7214 Rockridge Road Baltimore, MD 21207 Pro Se Plaintiff /s/ Michelle H. Badolato Dated: May 30, 2017 Michelle H. Badolato (Bar No. 14477) Stradley Ronon Stevens & Young, LLP 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002-2223 Phone: (856) 321-2400 Facsimile: (856) 321-2415 mbadolato@stradley.com Attorneys for Defendant Ocwen Loan Servicing, LLC # 3245084 Case 1:17-cv-00777-GLR Document 20 Filed 05/30/17 Page 36 of 36