Thomas v. Phh Mortgage Services et al

MOTION to Dismiss for Failure to State a Claim

D. Md.November 28, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STEDFIELD THOMAS, * * Case No.: 1:16-cv-03700-RDB Plaintiff, * v. * PHH MORTGAGE SERVICES, WELLS FARGO BANK, N.A., * Defendants. * * * * * * * * * * * * * * DEFENDANTS PHH MORTGAGE CORPORATION AND WELLS FARGO BANK, N.A.’S MOTION TO DISMISS Defendants PHH Mortgage Corporation, improperly identified herein as PHH Mortgage Services (“PHH”), and Wells Fargo Bank, N.A. (“Wells Fargo”) (collectively, the “Defendants”), through their undersigned counsel, hereby move to dismiss the Complaint filed by Plaintiff Stedfield Thomas (“Thomas”) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7). In support of their motion, Defendants submit the accompanying Memorandum of Law, as well as a proposed order. November 28, 2016 /s/ Daniel C. Fanaselle Daniel C. Fanaselle (FBN 18753) BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 Telephone: (215) 864-8358 Facsimile: (215) 864-8999 fanaselled@ballardspahr.com Attorneys for Defendants PHH Mortgage Corporation and Wells Fargo Bank, N.A. Case 1:16-cv-03700-RDB Document 10 Filed 11/28/16 Page 1 of 1 DMEAST #27139368 v1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STEDFIELD THOMAS, * * Case No.: 1:16-cv-03700-RDB Plaintiff, * v. * PHH MORTGAGE SERVICES, WELLS FARGO BANK, N.A., * Defendants. * * * * * * * * * * * * * * ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Upon consideration of the Motion to Dismiss of Defendants PHH Mortgage Corporation and Wells Fargo Bank, N.A., and any response thereto, it is hereby ORDERED that the Motion is GRANTED, and the Complaint filed by plaintiff Stedfield Thomas is hereby dismissed with prejudice. Case 1:16-cv-03700-RDB Document 10-1 Filed 11/28/16 Page 1 of 2 DMEAST #27139368 v1 cc: Daniel C. Fanaselle BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 Keith H. Asher, Esq. Asher & Asher 8720 Georgia Avenue, Suite 703 Silver Spring, MD 20910 [END OF ORDER] Case 1:16-cv-03700-RDB Document 10-1 Filed 11/28/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND STEDFIELD THOMAS, * * Case No.: 1:16-cv-03700-RDB Plaintiff, * v. * PHH MORTGAGE SERVICES, WELLS FARGO BANK, N.A., * Defendants. * * * * * * * * * * * * * * MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS PHH MORTGAGE CORPORATION AND WELLS FARGO BANK, N.A.’S MOTION TO DISMISS November 28, 2016 Daniel C. Fanaselle (FBN 18753) BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 Telephone: (215) 864-8358 Facsimile: (215) 864-8999 fanaselled@ballardspahr.com Attorneys for Defendants PHH Mortgage Corporation and Wells Fargo Bank, N.A. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 1 of 25 i TABLE OF CONTENTS Page I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF FACTS ................................................................................................. 2 A. Background ............................................................................................................. 2 B. The Complaint ........................................................................................................ 6 III. STANDARD OF REVIEW ................................................................................................ 6 A. Standard for Dismissal Under Rules 12(b)(7) and 19(a). ....................................... 6 B. Standard on a Motion to Dismiss for Failure to State a Claim ............................... 7 IV. ARGUMENT ...................................................................................................................... 8 A. The Complaint Should Be Dismissed Because Thomas Fails to Name BNYM Trust, which is a Necessary Party to this Action. ................................................... 8 B. Thomas Has No Right to the Insurance Proceeds. ................................................ 10 1. BNYM Trust’s Loss Exceeded the Insurance Proceeds Received. .......... 11 C. In Any Event, the Complaint Fails to Plead Any Cause of Action Against Defendants. ........................................................................................................... 15 1. Thomas Fails to Plead Any Facts that Would Entitle Him to Declaratory Relief. ........................................................................................................ 16 2. Thomas Fails to Plead a Cause of Action for Breach of Contract. ........... 17 V. CONCLUSION ................................................................................................................. 19 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 2 of 25 ii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................8 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................................................................8 Cent. Union Bank v. N.Y. Underwriters’ Ins. Co., 52 F.2d 823 (4th Cir. 1931) .....................................................................................................10 Davis v. Mich. Basic Prop. Ins. Asso., 701 F. Supp. 131 (E.D. Mich. 1988) ........................................................................................15 Gilliland v. Koch Trucking, Inc., No. JFM 11-3073, 2015 U.S. Dist. LEXIS 65165 (D. Md. May 19, 2015) ..............................7 Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500 (4th Cir. 2015) .....................................................................................................3 Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255 (4th Cir. 2013) ...................................................................................................16 In re Spano, 161 B.R. 880 (Bankr. D. Conn. 1993) .....................................................................................14 Kougl v. Xspedius Mgmt. Co. of Dallas/Fort Worth, LLC, No. 3:04CV2518-D, 2005 WL 1421446 (N.D. Tex. June 1, 2005) ........................................17 Madry v. Fina Oil & Chem. Co., 44 F.3d 1004 (5th Cir. 1994) ...................................................................................................16 Merritt Hawkins & Assocs., LLC v. Gresham, No. 3:13-CV-00312-P, 2014 U.S. Dist. LEXIS 26213 (N.D. Tex. Feb. 21, 2014) .................17 Metra Indus., Inc. v. Rivanna Water & Sewer Auth., No. 3:12CV00049, 2014 U.S. Dist. LEXIS 21568 (W.D. Va. Feb. 19, 2014) ........................17 Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir. 1999) .....................................................................................................7 Route 9 Ltd. P’ship v. Essroc Cement Corp., No. 3:16-CV-63, 2016 U.S. Dist. LEXIS 97275 (N.D.W. Va. July 26, 2016) ........................16 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 3 of 25 iii S. Bank & Tr. Co. v. Alexander (In re Alexander), Nos. 11-74515-SCS, APN 13-07146-SCS, 2014 Bankr. LEXIS 3048 (U.S. Bankr. E.D. Va. July 16, 2014)............................................................................................................16 Simmerman v. Ocwen Fin. & Mortg. Servs. (In re Simmerman), 463 B.R. 47 (Bankr. S.D. Ohio 2011) ........................................................................................9 Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581 (4th Cir. 2004) ...................................................................................................16 Westmoreland v. Prince George’s Cnty., No. CIV.A. TDC-14-0821, 2015 WL 996752 (D. Md. Mar. 4, 2015) ......................................4 Whiting-Turner Contracting Co. v. Liberty Mut. Ins. Co., 912 F. Supp. 2d 321 (D. Md. 2012) ...........................................................................................7 Williams v. Chevy Chase Bank (In re Williams), 277 B.R. 78 (Bankr. D. Md. 2002) ............................................................................................9 Willis v. Bank of Am., N.A., No. ELH-13-2615, 2015 U.S. Dist. LEXIS 116732 (D. Md. Sep. 2, 2015) .............................2 Xtria, LLC v. Tracking Sys., Inc., No. 3:07-CV-0160-D, 2007 U.S. Dist. LEXIS 44964 (N.D. Tex. June 21, 2007) ..................17 OTHER CASES Brown v. Dep’t of Commerce, 359 P.3d 771 (Wash. 2015)........................................................................................................9 Citibank Fed. Sav. Bank v. New Plan Realty Tr., 748 A.2d 24 (Md. 2000) ..........................................................................................................13 Continental Masonry v. Verdel Construction, 279 Md. 476, 369 A.2d 566 (1977) .........................................................................................17 Ed Jacobsen, Jr., Inc. v. Chapline, 251 A.2d 604 (Md. 1969) ........................................................................................................13 Federal Land Bank of Baltimore v. Cosimano, 165 Md. 333, 168 A. 886 (1933) .............................................................................................11 Garland v. Hill, 346 A.2d 711 (Md. 1975) ........................................................................................................14 Hadjis v Anderson, 260 Md 30, 271 A2d 350 (1970) .............................................................................................11 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 4 of 25 iv Kaufman v. Valente, 115 Conn. 428, 162 A. 693 (1932) ..........................................................................................14 Kline v. Chase Manhattan Bank, 43 Md. App. 133, 403 A.2d 395 (1979)...................................................................................13 Rollins v. Bravos, 80 Md. App. 617, 565 A.2d 382 (1989).............................................................................10, 12 United States Fire Ins. Co. v. Hecht, 164 So. 65 (Ala. 1935) .............................................................................................................10 Van Wagoner v. Nash, 50 A.2d 795 (Md. 1947) ..........................................................................................................13 Weismiller v. Bush, 468 A.2d 646 (Md. 1983) ........................................................................................................13 FEDERAL STATUTES 12 U.S.C. §§ 2605(i)(2)-(3) .............................................................................................................9 28 U.S.C. § 2201(a) .......................................................................................................................16 OTHER STATUTES Md. Comm. Law Code Ann. § 9-109(a)(3) .....................................................................................9 Md. Real. Prop. Code Ann. § 7-05.13 ...............................................................................12, 13, 15 Md. Real. Prop. Code Ann. § 12-105(b) ........................................................................................14 RULES Fed. R. Civ. P. 8 ...............................................................................................................................8 Fed. R. Civ. P. 8(a) ..........................................................................................................................7 Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim Fed. R. Civ. P. 12(b)(7)........................................................................................................1, 2, 6, 8 Fed. R. Civ. P. 19 .................................................................................................................2, 6, 7, 8 Fed. R. Civ. P. 19(a) ................................................................................................................6, 7, 8 Fed. R. Civ. P. 19(b) ........................................................................................................................7 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 5 of 25 v OTHER AUTHORITIES Black’s Law Dictionary (10th ed. 2014)........................................................................................10 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 6 of 25 Defendants PHH Mortgage Corporation (“PHH”) and Wells Fargo Bank, N.A. (“Wells Fargo”) (collectively, the “Defendants”), through counsel, respectfully submit this memorandum of law in support of their motion to dismiss the Complaint in this matter, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7). I. INTRODUCTION This action is entirely premised on plaintiff Stedfield Thomas’s (“Thomas”) misguided assertion that he is entitled to insurance proceeds that were disbursed after his former property was damaged in a fire in October 2014. See Compl. at ¶ 5. Thomas alleges that he received a mortgage loan from PHH in 2005, which was evidenced by a promissory note, and was secured by a deed of trust on the property. See Compl. at ¶ 4. Moreover, public records establish that a foreclosure action was commenced prior to the loss, and that the Bank of New York Mellon, f/k/a the Bank of New York, as Successor to JPMorgan Chase Bank, N.A., as Trustee for Bear Stearns Asset Backed Securities Trust 2006-SD2, Asset-Backed Certificates, Series 2006-SD2 (“BNYM Trust”) was the beneficiary of the deed of trust at the time of the loss. Indeed, Thomas admits that he defaulted under the terms of the deed of trust prior to the loss, but alleges that PHH wrongfully refused his request to apply the insurance proceeds to the debt, and instead, sold the property at a foreclosure sale. See Compl. at ¶¶ 11-12. Based thereon, Thomas purports to raise two causes of action, for (1) declaratory judgment, seeking a declaration that the remaining insurance funds belong to him, and (2) breach of contract. See Compl. at ¶¶ 22-39. Thomas asks the Court to order PHH to endorse the insurance funds to him, and to award damages in the amount of $500,000.00. See Compl. at ad damnum clause. The Complaint should be dismissed for several reasons. As a threshold matter, Thomas fails to name BNYM Trust, which was the proper beneficiary of the insurance funds as the holder Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 7 of 25 2 and owner of the subject note and deed of trust.1 Thus, BNYM Trust was a (and indeed the only) necessary and indispensable party to this action, and as such, the Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(7) and 19. In any event, even if Thomas had named all necessary parties, the Complaint should be dismissed because he had no right to any of the insurance proceeds. The Complaint and public records establish that following the foreclosure sale, BNYM Trust incurred a loss above and beyond the amount of the insurance proceeds, and thus, under the terms of the deed of trust and well established law, BNYM Trust was entitled to all of the insurance proceeds. Moreover, the Complaint should be dismissed because Plaintiff fails to state a cause of action for declaratory judgment or breach of contract. For these reasons, and as further discussed below, the Complaint should be dismissed in its entirety and with prejudice. II. STATEMENT OF FACTS A. Background On May 19, 2005, Thomas obtained a mortgage loan in the amount of $63,900.00 (the “Loan”) from PHH. See Compl. at ¶ 4, Ex. 1. The repayment of the Loan was secured by a deed of trust (the “Deed of Trust”) on the real property located at 934 West Franklin Street, Baltimore, MD 21223 (the “Property”). See Deed of Trust, attached hereto as Exhibit A.2 The Deed of Trust 1 Furthermore, all claims against Wells Fargo should be summarily dismissed, because the Complaint fails to raise a single allegation related to Wells Fargo. In fact, except for identifying Wells Fargo as the “2nd Defendant,” Thomas does not allege that Wells Fargo had any relation to the Loan, or the insurance proceeds. Thus, the Complaint clearly fails to state a cause of action against Wells Fargo, and the Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 2 The Complaint attaches an unexecuted copy of the Deed of Trust, and as such, Defendants are attaching a true and correct copy of the executed and recorded Deed of Trust. The Court may consider the Deed of Trust for purposes of ruling on this Motion to Dismiss because it is recorded in the Clerk’s Office for Montgomery County, Maryland, and thus, constitutes a public record that is subject to judicial notice. See Willis v. Bank of Am., Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 8 of 25 3 is recorded among the land records of Baltimore City at Liber 14867, folio 454. See id. Under the terms of the Deed of Trust, Thomas agreed that the trustee would have the power to sell the Property upon default. See Deed of Trust, Ex. A at ¶ 22. The Deed of Trust further provided that Thomas was required to keep the Property “insured against loss by fire, hazards included within the term “extended coverage,” and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance” (“Hazard Insurance”). See Ex A, Deed of Trust at ¶ 5. Subsequently, the Loan was transferred to the BNYM Trust, which was evidenced by an assignment of deed of trust from PHH to BNYM Trust. A true and correct copy of the assignment is attached hereto as Exhibit B.3 The assignment is recorded in the Clerk’s Office for Baltimore City, Maryland at Liber 16906, folio 329. Id. PHH remained the servicer of the Loan. Id. Thereafter, Thomas defaulted under the terms of the Deed of Trust by failing to make the required monthly payments of principal and interest on the Loan as they became due and owing. As a result, on August 23, 2013, BNYM Trust executed a deed of appointment of substitute trustees, thereby appointing Diane S. Rosenberg, Mark D. Meyer, John A. Ansell, III, Stephanie Montgomery and Kenneth Savitz (collectively, the “Substitute Trustees”) as substitute trustees under the Deed of Trust. A true and correct copy of the deed of appointment of substitute trustees N.A., No. ELH-13-2615, 2015 U.S. Dist. LEXIS 116732, at *12 n.13 (D. Md. Sep. 2, 2015) (court could take judicial notice of an assignment of deed of trust attached to motion to dismiss, and could consider it without converting the motion to a motion for summary judgment, because the assignment was recorded in the Baltimore City land records, and therefore, was a public record) (citing Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (“[A] a court may properly take judicial notice of matters of public record . . . .”)). 3 The Court may consider the recorded assignment in ruling on Defendants’ instant motion. See supra note 2. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 9 of 25 4 is attached hereto as Exhibit C.4 On January 16, 2014, the Substitute Trustees initiated a foreclosure action against Thomas by filing an order to docket in the Circuit Court for Baltimore City, which was styled Diane S. Rosenberg, et al., v. Stedfield L. Thomas, No. 24O14000170 (the “Foreclosure Action”). A true and correct copy of the docket report for the Foreclosure Action is attached hereto as Exhibit D. 5 Several months after the Foreclosure Action was filed, on or about October 9, 2014, the Property allegedly incurred extensive damages in a fire. See Compl. at ¶ 5. Thereafter, Standard Guaranty Insurance Company (the “Insurer”) issued $20,591.84 to the order of PHH and Thomas, to cover the damages. See Compl. at ¶ 6. On December 1, 2014, PHH sent Thomas the check from the Insurer, along with a letter asking Thomas to have the check endorsed and returned. See Compl. at Ex. 2. The letter stated that PHH would hold the funds in escrow, with $10,000 to be released upon receipt of the endorsed check, and the remainder released in installments based on the percentage of work completed. See id. Thomas alleges that he subsequently engaged an independent claim adjustment firm, which convinced the Insurer to award an additional $88,000.00 to cover the damages in full. See Compl. at ¶ 8. On June 11, 2015, the Property was sold at foreclosure sale, with the result being a sale to BNYM Trust for $45,000.00. See Exhibit E. On August 6, 2015, the Circuit Court for Baltimore City entered an order ratifying the foreclosure sale. See Ex. D, Foreclosure docket report at Entry No. 9/1. On August 31, 2015 a trustees’ deed was executed, transferring ownership of the 4 The Court may consider the deed of appointment of substitute trustees. See supra note 2. 5 The Court may properly consider the Foreclosure Action and the pleadings filed therein because they are matters of public record that are not subject to reasonable dispute. See Westmoreland v. Prince George’s Cnty., No. CIV.A. TDC-14-0821, 2015 WL 996752, at *7 (D. Md. Mar. 4, 2015) (“court may take judicial notice of documents from other court proceedings and other matters of public record in conjunction with a Rule 12(b)(6) motion without converting it to a motion for summary judgment.”). Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 10 of 25 5 Property to BNYM Trust, which was recorded in the Baltimore City Clerk’s Office at Liber 17891, folio 147. A true and correct copy of the trustees’ deed is attached hereto as Exhibit E.6 On August 4, 2015, the Insurer issued a second check in the amount of $44,508.16. See Compl. at ¶ 9, Ex. 3. Thomas has retained possession of the check, and has refused to endorse and return the same to PHH. See Compl. at ¶ 9. Thomas alleges that he made several attempts to settle his delinquency under the Deed of Trust “by using the insurance proceeds to liquidate the mortgage and bring his account into good standing.” See Compl. at ¶ 11. According to Thomas, these attempts were “rebuffed and frustrated by PHH.” See Compl. at ¶ 12. Thomas further alleges that following the foreclosure sale, PHH notified him that there was a deficiency of $43,648.26. See Compl. at ¶ 16. However, PHH elected not to pursue the deficiency, and on or about January 1, 2016, issued an IRS Form 1099-C Cancellation of Debt which, according to Thomas, “essentially discharge[ed his] debt to the amount of approximately $60,124.00.” See Compl. at ¶ 17. On or about May 4, 2016, BNYM Trust sold the Property to Andrey Nizamutdinov for the sum of $5,000.00, and on June 14, 2016 a deed was recorded in the Baltimore City Clerk’s office at Liber 18153, folio 302. A true and correct copy of the deed is attached hereto as Exhibit F.7 On September 23, 2016, Thomas filed the subject complaint (the “Complaint”) against PHH and Wells Fargo in the Circuit Court for Baltimore City, Maryland. Defendants were served on October 13, 2016, and on November 14, 2016, Defendants timely removed this action to this Court. 6 See supra note 2. 7 See supra note 2. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 11 of 25 6 B. The Complaint The Complaint is entirely premised on Thomas’s assertion that he is entitled to the insurance proceeds. Specifically, Thomas purports to raise causes of action for declaratory judgment and breach of contract, based on the allegations that PHH: (1) wrongfully rejected his requests to apply the insurance proceeds to the mortgage debt, see Compl. at ¶¶ 27, 36-38; and (2) “irrevocably cancelled” the debt by issuing the Form 1099-C, which “vested the remainder of the insurance proceeds with [Thomas].” See Compl. at ¶ ¶ 27-30. Based thereon, Thomas requests damages in the amount of $500,000.00, along with a determination that the remaining insurance proceeds are his sole property. See Compl. at ad damnum clause. III. STANDARD OF REVIEW A. Standard for Dismissal Under Rules 12(b)(7) and 19(a). Under Rule 12(b)(7), a defendant may move to dismiss a complaint for failure to join a necessary or indispensable party under Rule 19. Concerning necessary parties, Rule 19 provides that: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if: (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. Fed. R. Civ. P. 19(a) (emphasis added). Concerning indispensable parties, Rule 19 provides that: Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 12 of 25 7 If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Fed. R. Civ. P. 19(b). Rule 19 sets forth a two-step analysis to determine whether an action should be dismissed for failure to join an absent party. Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th Cir. 1999). First, Rule 19(a) provides a framework for deciding whether an entity should be joined, i.e., whether the non-joined party is “necessary.” If joinder is called for, then Rule 19(b) guides a court in deciding whether the suit should be dismissed if that person cannot be joined or if the plaintiff refuses to join that person, i.e., whether the party is “indispensable.” Owens-Illinois, Inc., 186 F.3d at 440. If an absent party is both “necessary” and “indispensable,” then claims affecting that party’s rights should be dismissed. See e.g., Gilliland v. Koch Trucking, Inc., No. JFM 11-3073, 2015 U.S. Dist. LEXIS 65165, at *8 (D. Md. May 19, 2015) BNYM Trust is a necessary and indispensable party to the Complaint that must be joined to this action pursuant to Rule 19(a). If Thomas is unwilling or unable to join BNYM Trust as a party to this action, this Court should dismiss the Complaint pursuant to Rule 19(b). B. Standard on a Motion to Dismiss for Failure to State a Claim A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Federal Rule of Civil Procedure 8(a). See Whiting-Turner Contracting Co. v. Liberty Mut. Ins. Co., 912 F. Supp. 2d 321, 331 (D. Md. 2012). Rule 8(a) requires a complaint to contain a “short and plain statement of the claim Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 13 of 25 8 showing that the pleader is entitled to relief.” As the Supreme Court explained in Ashcroft v. Iqbal, 556 U.S. 662 (2009), this requirement: demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement. Id. at 687 (internal citations and quotations omitted). To satisfy the requirements of Federal Rule 8, a complaint must allege “sufficient factual matter, accepted as true, ‘to state a claim for relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). A claim lacks plausibility where the plaintiff alleges only the “sheer possibility” of misconduct. Id. Dismissal of a complaint is warranted where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 570. IV. ARGUMENT A. The Complaint Should Be Dismissed Because Thomas Fails to Name BNYM Trust, which is a Necessary Party to this Action. As a threshold matter, the Complaint should be dismissed pursuant to Rule 12(b)(7) and Rule 19, because Thomas has not joined BNYM Trust, which is a necessary and indispensable party to this action. As noted above, an entity is a necessary party where either: (1) the court cannot accord complete relief among existing parties without the entity also being a party; or (2) the entity claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may as a practical matter impair or impede the entity’s ability to protect that interest. Fed. R. Civ. P. 19(a). BNYM Trust is a necessary party under both principles.8 8 Joining BNYM Trust will not deprive this court of subject matter jurisdiction. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 14 of 25 9 It is indisputable that BNYM Trust has an interest in this action because the subject insurance proceeds rightfully belong to BNYM Trust as the owner of the Note, not PHH, which was merely the servicer of the Loan. See Brown v. Dep’t of Commerce, 359 P.3d 771, 778 (Wash. 2015) (noting that promissory notes embrace two sets of rights: (1) the right to enforce, and (2) ownership, the latter of which is governed by Article 9 of the UCC, and grants “the right to the economic benefits of the note, such as monthly mortgage payments and foreclosure proceeds.”); Simmerman v. Ocwen Fin. & Mortg. Servs. (In re Simmerman), 463 B.R. 47, 60 (Bankr. S.D. Ohio 2011) (“while Article 3 of the [UCC] establishes the person entitled to enforce a promissory note and receive payment, Article 9 addresses who has property interests in a negotiable instrument”); Md. Comm. Law Code Ann. § 9-109(a)(3) (providing that Article 9 of Maryland’s version of the UCC applies to “[a] sale of accounts, chattel paper, payment intangibles, or promissory notes”); see also 12 U.S.C. §§ 2605(i)(2)-(3) (defining “servicer” as “the person responsible for […] receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, including amounts for escrow accounts […][,] principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan”). Thus, BNYM Trust, as the beneficial owner of the Note, had the exclusive right to its economic benefits, including the insurance proceeds. Therefore, BNYM Trust is the only necessary party to this action. See Williams v. Chevy Chase Bank (In re Williams), 277 B.R. 78, 82-83 (Bankr. D. Md. 2002) (“It is the note holder, not the deed of trust trustee […] that holds the beneficial interest in the real property. While the deed of trust trustee may be a proper party, this court finds that the trustee is not a necessary party, nor an indispensable party […] The Bank as the sole beneficial holder of such interest is the necessary Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 15 of 25 10 and indispensable party to the action.”). Accordingly, BNYM Trust is a necessary and indispensable party to this action. Given the foregoing, Thomas should be compelled to join BNYM Trust as a necessary party to this action, and if he fails to do so, this action should be dismissed. B. Thomas Has No Right to the Insurance Proceeds. In any event, even if BNYM Trust were properly joined as a defendant, the Complaint should be dismissed because Thomas has no right to the insurance proceeds. Where, as here, an insurance contract contains a standard mortgagee clause,9 a separate and independent contract is formed between the insurer and the mortgagee. See Cent. Union Bank v NY Underwriters’ Ins. Co., 52 F.2d 823, 825 (4th Cir 1931). Further, where a loss occurs prior to a foreclosure sale at which the mortgagee purchases the property, the mortgagee is entitled to retain the insurance proceeds to the extent of any deficiency after the sale. See Rollins v. Bravos, 80 Md. App. 617, 628, 565 A.2d 382, 387 (1989) (“where the insured premises are damaged before foreclosure proceedings have been instituted or, if after they have been instituted, prior to the sale being held, and the mortgagee purchases the property at the foreclosure sale, the mortgagee is permitted to 9 A standard mortgagee clause, also referred to as a “New York standard mortgage clause,” is a provision in an insurance contract that gives “the mortgagee the primary right to sue for his interest in the proceeds of the policy.” United States Fire Ins. Co. v. Hecht, 164 So. 65, 67 (Ala. 1935); see also Cent. Union Bank v. N.Y. Underwriters’ Ins. Co., 52 F.2d 823, 824-25 (4th Cir. 1931) (“In the simple case of pledge or assignment of a policy as security for a debt, breach of the conditions of the policy by the insured defeats the rights of the assignee or pledgee, as well as the rights of the insured himself. To protect the assignee from forfeiture from such cause, the New York standard mortgage clause was devised, providing that the interest of the mortgagee under the policy should not be invalidated by any act or neglect of the mortgagor.”); Black’s Law Dictionary (10th ed. 2014) (defining “mortgage clause” as “[a]n insurance-policy provision that protects the rights of a mortgagee when the insured property is subject to a mortgage. [It usually] provides that any insurance proceeds must be allocated between the named insured and the mortgagee ‘as their interests may appear.’”) Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 16 of 25 11 retain the insurance proceeds pursuant to a mortgage clause requiring insurance, to the extent of any deficiency between the amount brought at foreclosure and the amount of the debt.”); see also Hadjis v Anderson, 260 Md 30, 35-36, 271 A2d 350, 353 (1970) (“We do not question [the mortgagee’s] right to retain the insurance proceeds. It was an insured named in the policy and had the right to retain such of the proceeds as did not exceed the amount of the mortgage debt”) (citing Federal Land Bank of Baltimore v. Cosimano, 165 Md. 333, 168 A. 886 (1933)). Moreover, the terms of the Deed of Trust explicitly provided that Thomas’s rights in the insurance proceeds were extinguished by the foreclosure sale. Specifically, paragraph 5 of the Deed of Trust provided that: if Lender acquires the Property under Section 2210 or otherwise, Borrower hereby assigns to Lender (a) Borrower’s rights to any insurance proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument, and (b) any other of Borrower’s rights (other than the right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the coverage of the Property. Lender may use the insurance proceeds either to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument, whether or not then due. See Ex. A at ¶ 5. Here, the loss occurred after the Foreclosure Action was filed, but before the Property was sold at the foreclosure sale. See Ex. E. Accordingly, under both Maryland law and the terms of the Deed of Trust, BNYM Trust was entitled to retain the insurance proceeds to the extent of the unpaid debt. 1. BNYM Trust’s Loss Exceeded the Insurance Proceeds Received. Here, BNYM Trust was entitled to retrain all of the insurance proceeds because its losses exceeded the sum of the insurance proceeds received. Following the foreclosure sale, the amount due under the Deed of Trust, including foreclosure fees and costs, totaled $88,648.26. See 10 Section 22, entitled “Acceleration,” details the Lender’s right to foreclose. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 17 of 25 12 Compl. at Ex. 4.11 Thereafter, BNYM Trust sold the Property to a third party purchaser for $5,000.00, reducing its total loss to $83,648.26. This sum exceeds the amount allegedly disbursed by the Insurer by more than $18,000.00.12 See Compl. at ¶¶ 6, 9. Thus, BNYM Trust’s loss under the Deed of Trust exceeds the total amount of the insurance proceeds disbursed, and as such, it was entitled to retain all of the proceeds. Moreover, while any deficiency claim against Thomas was reduced by BNYM Trust’s “purchase” price of $45,000.00, see Trustees’ Deed, Ex. E, this is not relevant to BNYM Trust’s right to the insurance proceeds. This is because a mortgagee’s right to insurance proceeds is not a claim for a deficiency against the borrower, but rather, is a right created by the insurance contract itself, under which the mortgagee is entitled to retain the proceeds to the extent of the deficiency following the sale. See Rollins, 565 A.2d at 387. Deficiency judgments are governed by Section 7-105.13 of the Maryland Real Property Code, which provides that a secured party may pursue a deficiency by filing a motion for a deficiency judgment after the sale is ratified. See Md. Real Prop. Code Ann. § 7-105.13. Under this section, the secured party is entitled to a deficiency judgment “if the proceeds of the sale, deducting all costs and expenses allowed by the court, are 11 According to the accounting attached as Exhibit 4 to the Complaint, the total debt under the Deed of Trust at the time of the sale was $74,883.17. Moreover, the mortgagee was entitled to accrued interest in the amount of $6,580.08, and foreclosure fees and costs in the amount of $7,185.01, for a total of $88,648.26. This amount was reduced by the foreclosure sale amount of $45,000.00, which resulted in a deficiency of $43,648.26. See Compl. at Ex. 4. 12 Thomas alleges that the Insurer agreed to award “an additional $88,000.00 to cover the damages in full. See Compl. at ¶ 8. Moreover, while unclear, Thomas appears to allege that this amount was awarded “in addition[]” to the original award of $20,591.84. See Compl. at Ex. 9. However, Thomas alleges that the Insurer has only disbursed a total of $65,100.00, with $20,591.84 disbursed in December 2014, and $44,508.16 disbursed on August 4, 2015. See Compl. at ¶¶ 6, 9. To the extent Plaintiff alleges that the Insurer disbursed more than $65,100.00, BNYM Trust remains entitled to an additional $18,548.26. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 18 of 25 13 insufficient to satisfy the debt and accrued interest.” § 7-105.13(c). The “proceeds of the sale” includes the purchase price, even if the mortgagee is the purchaser. See Ed Jacobsen, Jr., Inc. v. Chapline, 251 A.2d 604, 605 (Md. 1969) (rejecting mortgagor’s attempt to challenge deficiency judgment based on allegation that the purchase price paid by the mortgagee was inadequate, and holding that in the absence of fraud, the price obtained at the foreclosure sale is conclusive on the question of the value of the of the property “for the purpose of a deficiency decree . . . .”); Kline v. Chase Manhattan Bank, 43 Md. App. 133, 143, 403 A.2d 395, 401 (1979) (“the right of the mortgagee to a deficiency decree against the mortgagor is not affected by the mortgagee’s buying of the property at the foreclosure sale”). Thus, under § 7-105.13(c), the purchase price determines whether a mortgagee may pursue a deficiency judgment. However, the purchase price is often not an accurate gauge of a mortgagee’s actual loss where, as here, the mortgagee purchases the property. This is because Maryland law permits mortgagees to apply the outstanding mortgage debt to the purchase price - thus, mortgagees pay nothing unless the purchase price exceeds the amount of the debt due. See Citibank Fed. Sav. Bank v. New Plan Realty Tr., 748 A.2d 24, 28 (Md. 2000) (“It is well-settled in Maryland that a mortgagee may purchase the mortgaged property at a foreclosure sale by applying the mortgage debt to the purchase price, rather than by paying with cash or a certified check.”) (citing Van Wagoner v. Nash, 50 A.2d 795 (Md. 1947); Weismiller v. Bush, 468 A.2d 646 (Md. 1983) (“Maryland law has long and consistently permitted a mortgagee who purchases the mortgaged property at a foreclosure to apply the debt due him by the mortgagor against the purchase price, to the same effect as if he had posted or paid cash in that amount.”). Thus, while BNYM Trust bid $45,000.00 at the foreclosure sale, it did not actually pay this amount, and the value of the Property it acquired at the sale was much less, as established by the subsequent third party sale for Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 19 of 25 14 $5,000.00. See Ex. F. Accordingly, BNYM Trust’s actual loss is more accurately calculated using the Property’s fair market value, under which the total debt of $88,648.26 was offset by a Property worth only $5,000.00, leaving a deficiency of $83,648.26. While there are no Maryland decisions directly addressing this issue, this conclusion is supported by courts in other jurisdictions, which have likened mortgagees’ rights to insurance proceeds to damages awarded in eminent domain actions. See In re Spano, 161 B.R. 880, 890 (Bankr. D. Conn. 1993) (“Hazard insurance proceeds are similar to proceeds from the condemnation of the mortgaged property, on which proceeds the mortgagee generally has a lien to secure its debt.”) (citing Kaufman v. Valente, 115 Conn. 428, 434, 162 A. 693 (1932) (eminent domain award “is a substitute for so much of the mortgaged property as is appropriated for public use and the mortgagee has in equity a lien on the award . . .”). Indeed, under Maryland’s eminent domain code, mortgagees are entitled to damages to the extent of the fair market value of the property, which is defined as the amount a purchaser would be willing to pay for the property. See Md. Real. Prop. Code Ann. § 12-105(b) (“[t]he fair market value of property in a condemnation proceeding is the price as of the valuation date for the highest and best use of the property which a vendor, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay). Under this definition, BNYM Trust’s loss would be reduced by the Property’s fair market value of $5,000.00, leaving a deficiency of $83,648.26. Furthermore, even if BNYM Trust had limited its bid to the fair market value of the Property, it would have been deemed to have bid the full mortgage debt if it subsequently waived its right to a deficiency. See Garland v. Hill, 346 A.2d 711, 716 (Md. 1975) (“when a mortgagee purchases at a foreclosure sale the property upon which he holds the mortgage, for an amount less Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 20 of 25 15 than the mortgage debt and costs, and the mortgagee thereafter waives any claim to a deficiency judgment, the effect of the waiver is the same as if the bid had been for the full amount of the mortgage debt and costs.”). Thus, under Thomas’s interpretation, BNYM Trust would be without recourse unless it improperly sought a double recovery by bidding the fair market value of the Property, and pursuing a deficiency judgment that has been (at least partially) satisfied by insurance proceeds. Such a result conflicts with the mortgagee clause and the progeny of Maryland case law interpreting the same, and would also subvert the legislative intent of the Real Property Code’s provision governing deficiency judgments. Therefore, limiting BNYM Trust’s interest in the insurance proceeds to the amount of its deficiency claim would be unduly prejudicial, and would unjustly enrich Thomas, who has already benefitted from BNYM Trust’s waiver of the deficiency balance.13 See Davis v. Mich. Basic Prop. Ins. Asso., 701 F. Supp. 131, 133 (E.D. Mich. 1988) (“The mortgagors were compensated for the fire loss when their debt was satisfied. It would be unfair to also award them the insurance proceeds when the mortgagee paid the amount of the debt for worthless property.”). C. In Any Event, the Complaint Fails to Plead Any Cause of Action Against Defendants. Moreover, even the foreclosure sale did not extinguish Thomas’s claims to the insurance proceeds, the Complaint should be dismissed because Thomas fails to plead any cause of action for declaratory relief or breach of contract. This constitutes an additional and separate basis for dismissal under Rule 12(b)(6). 13 Again, even if the Court limits BNYM Trust’s claim to the insurance proceeds to the “deficiency,” as defined by § 7-105.13, BNYM Trust would be entitled to retain $43,648.26 of the insurance proceeds. See Compl. at Ex. 4. Thus, no matter how the Court characterizes BNYM Trust’s right, Thomas’s claim that he is entitled to all of the insurance proceeds should be dismissed. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 21 of 25 16 1. Thomas Fails to Plead Any Facts that Would Entitle Him to Declaratory Relief. Thomas seeks a declaratory judgment that the remaining insurance proceeds are his sole property. See Compl. at ¶ 24. While this claim necessary fails for the reason stated above, it should also be dismissed because Thomas fails to identify any actual controversy between the parties for the purposes of the Federal Declaratory Judgment Act. 14 Under the Federal Declaratory Judgment Act, declaratory relief is limited to cases involving an “actual controversy” between the parties. See 28 U.S.C. § 2201(a). An “actual controversy” exists when parties have a concrete dispute regarding their respective legal rights and duties that, if left unresolved, could lead to the accrual of future damages. Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 593 (4th Cir. 2004). Here, Thomas’s request for declaratory relief serves no purpose, because the alleged conduct has already occurred, and any relief can be fully and conclusively determined by reference to Thomas’s duplicative breach of contract claim. See S. Bank & Tr. Co. v. Alexander (In re Alexander), Nos. 11-74515-SCS, APN 13-07146-SCS, 2014 Bankr. LEXIS 3048, at *15-16 (U.S. Bankr. E.D. Va. July 16, 2014) (“If a request for a declaratory judgment adds nothing to an existing lawsuit, it need not be permitted […] courts regularly reject declaratory judgment claims that seek resolution of matters that will already be resolved as part of the claims in the lawsuit.”) (citing Madry v. Fina Oil & Chem. Co., 44 F.3d 1004 (5th Cir. 1994) 14 In the Complaint, Plaintiff seeks a declaratory judgment under state law. However, because this action has been removed to federal court, the Federal Declaratory Judgment Act determines whether declaratory relief is available. See NY @ Route 9 Ltd. P’ship v. Essroc Cement Corp., No. 3:16-CV-63, 2016 U.S. Dist. LEXIS 97275, at *20 (N.D.W. Va. July 26, 2016) (“In the Fourth Circuit, when a state court declaratory judgment action is removed to federal court, the action is treated as invoking the federal Declaratory Judgment Act”) (citing Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 261 n.3 (4th Cir. 2013) (“Federal courts sitting in diversity apply federal procedural law and state substantive law […] We treat a state court declaratory action that is removed as invoking the Federal Declaratory Judgment Act”)). Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 22 of 25 17 (reversing award of declaratory relief where “[t]he declaratory judgment does not declare any significant rights not already at issue in the contract dispute”); Merritt Hawkins & Assocs., LLC v. Gresham, No. 3:13-CV-00312-P, 2014 U.S. Dist. LEXIS 26213, at *3 (N.D. Tex. Feb. 21, 2014) (“Defendants’ counterclaims merely seek declaratory judgment on issues already pending before the Court-namely, the enforceability of the non-competition, non-disclosure, and non- interference provisions in Defendants’ employment contracts.”); Metra Indus., Inc. v. Rivanna Water & Sewer Auth., No. 3:12CV00049, 2014 U.S. Dist. LEXIS 21568,, at *2 (W.D. Va. Feb. 19, 2014) (dismissing declaratory judgment claim where an existing breach of contract claim sought duplicative relief, and concluding that when a declaratory judgment claim is duplicative and “seeks resolution of legal issues that will, of necessity, be resolved in the course of the litigation of the other causes of action,” permitting a declaratory relief claim to proceed serves no useful purpose); Xtria, LLC v. Tracking Sys., Inc., No. 3:07-CV-0160-D, 2007 U.S. Dist. LEXIS 44964, at *3 (N.D. Tex. June 21, 2007) (dismissing declaratory judgment action under Rule 12(b)(6) where it duplicated an existing breach of contract claim); Kougl v. Xspedius Mgmt. Co. of Dallas/Fort Worth, LLC, No. 3:04CV2518-D, 2005 WL 1421446, at *4 (N.D. Tex. June 1, 2005) (dismissing declaratory actions that were redundant vis-à-vis issues raised in other causes of action in the pending lawsuit). Accordingly, Thomas’s claim for declaratory relief should be dismissed. 2. Thomas Fails to Plead a Cause of Action for Breach of Contract. Thomas’s breach of contract likewise fails for the reasons discussed above, the most notable being that Thomas has not alleged that any provision of the Deed of Trust was violated. To maintain a cause of action for breach of contract under Maryland law, a plaintiff must prove (1) a contractual obligation owed by the defendant to the plaintiff; and (2) a breach of that obligation by the defendant. Continental Masonry v. Verdel Construction, 279 Md. 476, 480, 369 Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 23 of 25 18 A.2d 566, 569 (1977). Here, the only relevant contract was the Deed of Trust, which governed the relationship between BNYM Trust and Thomas. However, Thomas fails to allege a breach of any term contained therein, and to the contrary, the undisputed facts show that it was Thomas who breached his obligations under the Note and Deed of Trust by failing to make the required payments. Thomas alleges that paragraph 19 of the Deed of Trust “contained an agreement that [he] could use [the insurance proceeds] to liquidate [his] mortgage indebtedness.” See Compl. at ¶¶ 35-36. However, this section is silent as to the parties’ rights to any insurance proceeds, and instead, provides that the borrower has the right to reinstate the Loan prior to a foreclosure sale. See Ex. A at ¶ 19. Rather, the right to insurance proceeds is set forth in paragraph 5 of the Deed of Trust, which provides in relevant part, that: Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender’s security is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such property to ensure the work has been completed to Lender’s satisfaction […] If the restoration or repair is not economically feasible or Lender’s security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section 2. See Ex. A at ¶ 5 (emphasis added). Thus, the Deed of Trust required that the funds be applied to the restoration of the Property, unless the restoration or repair was not economically feasible. Id. Thomas does not allege that the restoration was not feasible, and rather, he merely alleges that he was entitled to demand that PHH apply the funds has he chose. This interpretation conflicts with the clear language of the Deed of Trust, and the breach of contract claim should be dismissed on this basis alone. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 24 of 25 19 Moreover, the allegations of the Complaint establish that PHH fully complied with the requirements of Paragraph 5. PHH sent a letter on December 1, 2014, offering to release $10,000.00 to commence restoration of the Property. See Compl. at ¶ 5. Additionally, even if PHH had applied the initial disbursement to the debt, it would have been insufficient to reinstate the Loan because, as Thomas admits, he was behind on the mortgage by $49,240.92. See Compl. at ¶ 11. Furthermore, the additional funds were not disbursed by the Insurer until August 4, 2015, nearly two months after the Property had been sold at foreclosure sale. See Compl. at ¶ 9; Ex. E. This effectively cut off Thomas’s right to reinstate the Loan, see Ex. A at ¶ 19, and under Paragraph 5 of the Deed of Trust, any interest Thomas had in the insurance funds was assigned to BNYM Trust. See id. at ¶ 5. Accordingly, Thomas has failed to plead any cause of action for breach of contract, and as such, the claim should be dismissed with prejudice. V. CONCLUSION For all of the foregoing reasons, Defendants PHH Mortgage Corporation and Wells Fargo Bank, N.A. respectfully request that the Court dismiss the Complaint filed by Plaintiff Steadfield Thomas with prejudice. November 28, 2016 /s/ Daniel C. Fanaselle Daniel C. Fanaselle (FBN 18753) BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, PA 19103 Telephone: (215) 864.8358 Facsimile: (215) 864-8999 fanaselled@ballardspahr.com Attorneys for Defendants PHH Mortgage Corp. and Wells Fargo Bank, N.A. Case 1:16-cv-03700-RDB Document 10-2 Filed 11/28/16 Page 25 of 25 EXHIBIT A Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 1 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 4, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 2 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 5, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 3 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 6, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 4 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 7, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 5 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 8, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 6 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 45 9, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 7 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 0, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 8 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 1, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 9 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 2, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 10 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 3, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 11 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 4, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 12 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 5, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 13 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 6, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 14 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 7, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 15 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 8, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 16 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 46 9, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 17 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 47 0, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 18 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 47 1, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 19 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 47 2, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 20 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 47 3, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 21 of 22 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 48 67 , p . 0 47 4, M S A _C E 16 4_ 24 02 1. D at e av ai la bl e 01 /1 6/ 20 13 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-3 Filed 11/28/16 Page 22 of 22 EXHIBIT B Case 1:16-cv-03700-RDB Document 10-4 Filed 11/28/16 Page 1 of 4 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 69 06 , p . 0 32 9, M S A _C E 16 4_ 26 06 2. D at e av ai la bl e 02 /1 3/ 20 15 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-4 Filed 11/28/16 Page 2 of 4 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 69 06 , p . 0 33 0, M S A _C E 16 4_ 26 06 2. D at e av ai la bl e 02 /1 3/ 20 15 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-4 Filed 11/28/16 Page 3 of 4 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 69 06 , p . 0 33 1, M S A _C E 16 4_ 26 06 2. D at e av ai la bl e 02 /1 3/ 20 15 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-4 Filed 11/28/16 Page 4 of 4 EXHIBIT C Case 1:16-cv-03700-RDB Document 10-5 Filed 11/28/16 Page 1 of 5 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 59 49 , p . 0 36 2, M S A _C E 16 4_ 25 10 4. D at e av ai la bl e 01 /2 3/ 20 14 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-5 Filed 11/28/16 Page 2 of 5 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 59 49 , p . 0 36 3, M S A _C E 16 4_ 25 10 4. D at e av ai la bl e 01 /2 3/ 20 14 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-5 Filed 11/28/16 Page 3 of 5 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 59 49 , p . 0 36 4, M S A _C E 16 4_ 25 10 4. D at e av ai la bl e 01 /2 3/ 20 14 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-5 Filed 11/28/16 Page 4 of 5 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) F M C 1 59 49 , p . 0 36 5, M S A _C E 16 4_ 25 10 4. D at e av ai la bl e 01 /2 3/ 20 14 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-5 Filed 11/28/16 Page 5 of 5 EXHIBIT D Case 1:16-cv-03700-RDB Document 10-6 Filed 11/28/16 Page 1 of 5 Circuit Court of Maryland Go Back Now Case Information Court System: Circuit Court for Baltimore City - Civil System Case Number: 24O14000170 Title: Diane S Rosenberg vs Stedfield L Thomas Case Type: Foreclosure Filing Date: 01/16/2014 Case Status: Closed/Inactive Case Disposition: Decree Or Order Disposition Date: 11/10/2015 Plaintiff/Petitioner Information (Each Plaintiff/Petitioner is displayed below) Party Type: Plaintiff Party No.: 1 Name: Rosenberg, Diane S Attorney(s) for the Plaintiff/Petitioner Name: Ansell, III, John A Appearance Date: 01/16/2014 Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Defendant/Respondent Information (Each Defendant/Respondent is displayed below) Party Type: Defendant Party No.: 1 Name: Thomas, Stedfield L Address: 934 W Franklin St City: Baltimore State: MD Zip Code: 21223 Related Persons Information (Each Related person is displayed below) Party Type: Bond Remitter/Bondsman Party No.: 1 Business or Organization Name: Atlantic Bonding Company, Inc. Party Type: Property Address Party No.: 1 Business or Organization Name: 934 W Franklin St Balto,md 21223($94,459.25) Party Type: Trustee Party No.: 4 Name: Montgomery, Stephanie Attorney(s) for the Related Persons Name: Ansell, III, John A Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Party Type: Trustee Party No.: 1 Page 1 of 4Case Information 11/20/2016http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=24O14000170&a... Case 1:16-cv-03700-RDB Document 10-6 Filed 11/28/16 Page 2 of 5 Name: Rosenberg, Diane S Attorney(s) for the Related Persons Name: Ansell, III, John A Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Party Type: Trustee Party No.: 2 Name: Meyer, Mark D Attorney(s) for the Related Persons Name: Ansell, III, John A Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Party Type: Trustee Party No.: 3 Name: Ansell III, John A Attorney(s) for the Related Persons Name: Ansell, III, John A Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Party Type: Purchaser Party No.: 1 Business or Organization Name: Bank Of New York Mellon Party Type: Trustee Party No.: 5 Name: Savitz, Kenneth Attorney(s) for the Related Persons Name: Ansell, III, John A Practice Name: Rosenberg & Associates LLC Address: 4340 East West Highwat Suite 600 City: Bethesda State: MD Zip Code: 20814 Document Tracking (Each Document listed. Documents are listed in Document No./Sequence No. order) Doc No./Seq No.: 1/0 File Date: 01/16/2014 Entered Date: 01/23/2014 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Order to Docket Suit with deed of trust and affidavit Doc No./Seq No.: 1/1 File Date: 03/28/2014 Entered Date: 03/28/2014 Decision: Document Name: Order Finding that Foreclosure Action May Proceed(Howard,J) Doc No./Seq No.: 1/2 File Date: 03/28/2014 Entered Date: 03/28/2014 Decision: Document Name: Copies Mailed Page 2 of 4Case Information 11/20/2016http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=24O14000170&a... Case 1:16-cv-03700-RDB Document 10-6 Filed 11/28/16 Page 3 of 5 Doc No./Seq No.: 2/0 File Date: 01/16/2014 Entered Date: 01/23/2014 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Preliminary Loss Mitigation Analysis Doc No./Seq No.: 3/0 File Date: 01/16/2014 Entered Date: 01/23/2014 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit certifying ownership of debt instrument The Bank of New York Mellon Doc No./Seq No.: 4/0 File Date: 02/04/2014 Entered Date: 02/06/2014 Decision: Document Name: Affidavit of Service as to Ann Marie Thomas Doc No./Seq No.: 5/0 File Date: 10/22/2014 Entered Date: 10/27/2014 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit of Service Doc No./Seq No.: 6/0 File Date: 03/19/2015 Entered Date: 03/20/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Final Loss Mitigation Analysis Doc No./Seq No.: 7/0 File Date: 03/19/2015 Entered Date: 03/20/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit of Mediation Mailing Doc No./Seq No.: 8/0 File Date: 06/11/2015 Entered Date: 06/12/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Trustee's Approved Bond($25,000.00)#154986 Doc No./Seq No.: 9/0 File Date: 06/18/2015 Entered Date: 06/19/2015 Decision: Confirmed/Ratified Party Type: Plaintiff Party No.: 1 Document Name: Report of Sale ($45,000.00) Doc No./Seq No.: 9/1 File Date: 08/06/2015 Entered Date: 08/06/2015 Decision: Document Name: Final Order Ratifying Report of Sale(Assigned to Auditor Diamond) Doc No./Seq No.: 9/2 File Date: 08/06/2015 Entered Date: 08/06/2015 Decision: Document Name: Copies Mailed Page 3 of 4Case Information 11/20/2016http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=24O14000170&a... Case 1:16-cv-03700-RDB Document 10-6 Filed 11/28/16 Page 4 of 5 Doc No./Seq No.: 10/0 File Date: 06/19/2015 Entered Date: 06/19/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Notice of Report of Sale Doc No./Seq No.: 11/0 File Date: 06/18/2015 Entered Date: 06/19/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit of Notice Pursuant to MD Rule 14-210 and MD Real Property Code Ann. Section 7-105, et. seq Doc No./Seq No.: 12/0 File Date: 06/18/2015 Entered Date: 06/19/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit of Auctioneer Doc No./Seq No.: 13/0 File Date: 06/18/2015 Entered Date: 06/19/2015 Decision: Party Type: Plaintiff Party No.: 1 Document Name: Affidavit of Purchaser Doc No./Seq No.: 14/0 File Date: 07/07/2015 Entered Date: 07/08/2015 Decision: Document Name: Certificate of Publication Doc No./Seq No.: 15/0 File Date: 08/21/2015 Entered Date: 08/24/2015 Decision: Document Name: Line Notifying Court of Audit Filing Doc No./Seq No.: 16/0 File Date: 10/15/2015 Entered Date: 10/19/2015 Decision: Confirmed/Ratified Document Name: Auditor's Account or Report Doc No./Seq No.: 16/1 File Date: 11/10/2015 Entered Date: 11/10/2015 Decision: Document Name: Order of Court finally ratifying and confirming auditor's report and account Doc No./Seq No.: 16/2 File Date: 11/10/2015 Entered Date: 11/10/2015 Decision: Document Name: Copies Mailed 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 4 of 4Case Information 11/20/2016http://casesearch.courts.state.md.us/casesearch/inquiryDetail.jis?caseId=24O14000170&a... Case 1:16-cv-03700-RDB Document 10-6 Filed 11/28/16 Page 5 of 5 EXHIBIT F Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 1 of 6 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 78 91 , p . 0 14 6, M S A _C E 16 4_ 27 04 8. D at e av ai la bl e 02 /2 6/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 2 of 6 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 78 91 , p . 0 14 7, M S A _C E 16 4_ 27 04 8. D at e av ai la bl e 02 /2 6/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 3 of 6 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 78 91 , p . 0 14 8, M S A _C E 16 4_ 27 04 8. D at e av ai la bl e 02 /2 6/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 4 of 6 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 78 91 , p . 0 14 9, M S A _C E 16 4_ 27 04 8. D at e av ai la bl e 02 /2 6/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 5 of 6 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 78 91 , p . 0 15 0, M S A _C E 16 4_ 27 04 8. D at e av ai la bl e 02 /2 6/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-7 Filed 11/28/16 Page 6 of 6 EXHIBIT F Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 1 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 2, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 2 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 3, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 3 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 4, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 4 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 5, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 5 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 6, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 6 of 7 B A LT IM O R E C IT Y C IR C U IT C O U R T ( La nd R ec or ds ) LG A 1 81 53 , p . 0 30 7, M S A _C E 16 4_ 27 31 0. D at e av ai la bl e 06 /1 4/ 20 16 . P rin te d 11 /2 0/ 20 16 . Case 1:16-cv-03700-RDB Document 10-8 Filed 11/28/16 Page 7 of 7 CERTIFICATE OF SERVICE This is to certify that on this 28th day of November, 2016, I caused a true and correct copy of the foregoing Motion to Dismiss and Memorandum of Law to be served electronically, upon the following: Keith H. Asher, Esq. Asher & Asher 8720 Georgia Avenue, Suite 703 Silver Spring, MD 20910 Attorneys for Plaintiff /s/ Daniel C. Fanaselle Daniel C. Fanaselle DMEAST #27582522 v2 Case 1:16-cv-03700-RDB Document 10-9 Filed 11/28/16 Page 1 of 1