Wimbish v. Garten

RHONDA L. WIMBISH, Plaintiff, v. FEDDER AND GARTEN, Defendant.

Case No.: GJH-18-3558

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

January 24, 2020

MEMORANDUM OPINION

In this pro se action filed on November 19, 2018, Plaintiff Rhonda L. Wimbish ("Plaintiff") alleges that more than a dozen parties unlawfully foreclosed on her home in violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"), the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA"), the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq. ("RESPA"), and Maryland foreclosure law, Md. Code Ann., Real Prop. § 7-105, as well as several federal criminal statutes. ECF No. 1. Despite multiple orders from the Court, Plaintiff failed to properly serve any of the parties, and the Court accordingly dismissed all defendants except Fedder and Garten ("Defendant"), which filed a Motion to Dismiss the claims against it for failure to state a claim. ECF No. 13.¹ Plaintiff has not responded to the Motion. No hearing is necessary. See Loc. Rule 105.6. (D. Md.). For the following reasons, the Court will grant the Motion to Dismiss.

I. BACKGROUND

Plaintiff's Complaint, ECF No. 1, and an Amended Complaint that she filed on December 4, 2018, ECF No. 3, are detailed in parts but still provide an incomplete picture of the dispute at issue, which predates the present case. In support of its Motion to Dismiss, Defendant has attached several exhibits that explain and contextualize the events referenced in the Complaint and Amended Complaint. "Under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider exhibits, without converting the motion to dismiss to one for summary judgment." Brennan v. Deluxe Corp., 361 F. Supp. 3d 494, 501 (D. Md. 2019) (citing Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015)).

"In particular, a court may consider documents that are 'explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits . . . .'" Id. (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016)). "A court may also take judicial notice of matters of public record." Id. (citing Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). Judicially noticeable materials include the docket of a state court case, Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310, 316 n.4 (D. Md. 2014), filings that appear on such a docket, Barilone v. Onewest Bank, FSB, No. ELH-13-00752, 2013 WL 6909423, at *2 (D. Md. Dec. 31, 2013), and filings in a county land records office, Ukaegbu v. Select Portfolio Servicing, Inc., No. PWG-16-3415, 2017 2930465, at *5 (D. Md. July 7, 2017).

The Court may "consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity." Goines, 822 F.3d at 166. "To be 'integral,' a document must be one 'that by its very existence, and not the mere information it contains, gives rise to the legal rights asserted.'" Brennan, 361 F. Supp. 3d at 502 (emphasis inoriginal) (quoting Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011)). With these principles in mind, the Court considers Defendant's exhibits either after taking judicial notice of them as matters of public record under Federal Rule of Evidence 201(b)(2) or after determining that they are integral to Plaintiff's Complaint and Amended Complaint.

Plaintiff was granted a deed to the real property at 3514 White Chapel Road in Baltimore, Maryland on December 16, 2005. ECF No. 13-2 at 1.² On the same day, she obtained a $135,200 loan from Countrywide Home Loans, Inc. ("Countrywide"), secured by a deed of trust with regard to the property. ECF No. 13-3 at 1. On January 8, 2014, substitute trustees of the deed of trust filed a foreclosure action against Plaintiff in the Circuit Court for Baltimore County. ECF No. 13-4 at 1-3. In that proceeding, Plaintiff, through counsel, filed an Amended Motion to Dismiss and Stay the Sale, supported by an affidavit by Plaintiff, alleging in part that the signatures on the deed of trust and the note reflecting the terms of Plaintiff's loan were forged. See ECF No. 13-5 at 2. Plaintiff repeats that allegation of forgery in this action. ECF No. 3 ¶¶ 14, 22, 31. Plaintiff also asserts that during this period, she attempted to modify her interest rate and filed complaints with Maryland regulatory agencies. Id. ¶¶ 16, 18. On January 6, 2015, the parties to the foreclosure action entered a joint stipulation of dismissal. ECF No. 13-4 at 7.

The title insurer of Plaintiff's deed of trust, First American Title Insurance Company, then retained Defendant to represent Ditech Financial, LLC, then known as Green Tree Servicing, LLC ("Green Tree"). ECF No. 3 ¶ 29; see also ECF No. 13-1 at 2, 4. Bank of America, which had acquired Countrywide, had sold the rights to service Plaintiff's mortgage to Green Tree. ECF No. 3 ¶ 19. On January 12, 2015, Defendant filed suit on behalf of Green Treein the Circuit Court for Baltimore City seeking a declaratory judgment that Plaintiff's deed of trust and accompanying note are valid and enforceable against Plaintiff because her signatures on the documents are authentic. ECF No. 13-6 at 1, 3; ECF No. 13-7 ¶¶ 3, 19-21. In an amended complaint that Defendant filed on July 29, 2015, Defendant asserted as additional counts several alternative grounds for enforceability of the note, including ratification of any unauthorized signature and the existence of an equitable mortgage. ECF No. 13-7 at 5-12.

The court held a two-day trial. ECF No. 13-8 at 3. On May 13, 2016, Judge Audrey J.S. Carrion announced findings of fact at a transcribed proceeding. Id. Judge Carrion specifically found that "Ms. Wimbish's testimony that her signature on the deed and note at issue here are forgeries is not credible." Id. at 5. Judge Carrion continued:

I conclude and find that the signatures on the note and deed of trust at issue here are authentic and valid signatures of the Defendant, Ms. Rhonda Wimbish. I also determine and hold that both the note and the deed of trust are enforceable against the Defendant, Ms. Rhonda Wimbish. Therefore, I hereby declare that the note and deed of trust at issue here contain authentic and valid signatures of Ms. Rhonda Wimbish and that both, the note and the deed of trust, are enforceable against the Defendant, Ms. Wimbish, and the property at issue; 3514 White Chapel Road, Baltimore, Maryland 21215.

Id. at 5-6. In light of this decision as to Count I of the amended complaint, which sought such a declaration, Judge Carrion denied all of the other counts. Id. at 6; ECF No. 3 ¶ 36. Judge Carrion memorialized these findings in a written order. ECF No. 13-9. Plaintiff did not file an appeal of the decision. ECF No. 13-6 at 11. On November 21, 2017, the substitute trustees of the deed of trust filed a second foreclosure action. ECF No. 13-10 at 1-3. Plaintiff filed several motions to stay or dismiss that proceeding, each of which was denied. See id. at 3-6. The most recent denial was on February 22, 2019. Id. at 6. That order followed a ruling on November 15, 2018, declaring that the substitute trustees "[m]ay [p]roceed with sale of [P]roperty at issue." Id. at 5.

Plaintiff filed this action four days later and named as defendants a variety of entities and individuals, identifying only some of them in the body of the Complaint. ECF No. 3 ¶ 9. After five days had elapsed, the Court issued an order to Plaintiff informing her that she bears the responsibility for effecting service on the named defendants because she had paid the full filing fee for the action. ECF No. 2 at 1. The order warned Plaintiff that she risked dismissal of the case if she failed to effect service. Id. at 2. Rather than serve the defendants, Plaintiff filed her Amended Complaint, adding First American Title Insurance Company and Fedder and Garten as defendants. ECF No. 3. Plaintiff included summons forms for only the two new defendants and three others, however; the Court issued summons as to those parties on December 28, 2018. ECF No. 5; see ECF No. 17. On April 4, 2019, the Court issued to Plaintiff an Order to Show Cause within 14 days why service of process had not been effectuated. ECF No. 12. The order again warned Plaintiff that failure to show cause will result in dismissal of the Complaint. Id. Plaintiff did not respond. See ECF No. 17.

On April 11, 2019, Defendant Fedder and Garten filed the pending Motion to Dismiss the claims against it. ECF No. 13.³ Pursuant to procedure for pro se parties, the Court mailed a letter to Plaintiff notifying her of the dispositive motion the following day. ECF No. 15. On April 23, 2019, pursuant to the Order to Show Cause, the Court entered an order dismissing all defendants without prejudice with the exception of Fedder and Garten. ECF No. 17 at 2. Plaintiff has not responded to Defendant's Motion to Dismiss the Amended Complaint.

II. STANDARD OF REVIEW

To state a claim that survives a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The "mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). To determine whether a claim has crossed "the line from conceivable to plausible," the Court must employ a "context-specific" inquiry, drawing on the court's "experience and common sense." Iqbal, 556 U.S. at 679-80 (quoting Twombly, 550 U.S. at 570). When performing this inquiry, the Court acce...