DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this case is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Shapiro & Burson, LLP, Wells Fargo Bank, N.A. ("Wells Fargo"), and Mortgage Electronic Registration Systems, Inc. ("MERS") (collectively, "Defendants"). (ECF No. 6).
This case arises from two separate, but related, events: the refinancing of Plaintiff's home in 2007, and the subsequent foreclosure of that home in 2010. The following limited facts regarding these events are largely taken from the complaint, but some of them have been supplemented with information contained in exhibits to Defendants' motion to dismiss.
At some time prior to September 2007, Plaintiff purchased a home in Bladensburg, Maryland, using a loan financed by Wells Fargo. On September 7, 2007, Plaintiff refinanced the original loan with a $342,000 loan secured by a deed of trust that she also obtained through Wells Fargo.
By 2009, Plaintiff had defaulted on the refinanced loan, and foreclosure proceedings ensued in the Circuit Court for Prince George's County. On June 1, 2009, Plaintiff
On June 23, 2011, Plaintiff, proceeding pro se, commenced the present action by filing a complaint in this court against Shapiro & Burson, Wells Fargo, MERS, and Abba Title. The complaint sets forth the following eleven counts, apparently as to all defendants: (1) "injunction and restraining order," (2) "mortgage fraud predatory lending," (3) "defective foreclosure failure to give proper notice of pending foreclosure sale," (4) unjust enrichment, (5) gross negligence, (6) violation of the duty of good faith, (7) "defective deed of trust," (8) "set aside or vacate foreclosure," (9) violations of RESPA, (10) fraud, and (11) violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., and "civil conspiracy to commit mail fraud, and civil conspiracy to commit wire fraud." (ECF No. 1).
After waiving service, Defendants Shapiro & Burson, Wells Fargo, and MERS moved to dismiss all of Plaintiff's claims pursuant to Rule 12(b)(6). (ECF No. 6). Plaintiff obtained counsel and filed an opposition in which she only opposed one of the arguments raised within Defendants' motion.
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of
At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), and must construe all factual allegations in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). Additionally, complaints filed by pro se plaintiffs are "to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted).
In evaluating the complaint, regardless of whether it was filed pro se, the court need not accept unsupported legal allegations. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir.1989). Nor must it agree with legal conclusions couched as factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not `show[n] ... that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Moreover, allegations of fraud — which Plaintiff raises in both her RICO and state law claims — are subject to a heightened pleading standard under Rule 9(b). Harrison, 176 F.3d at 783-84. Rule 9(b) states that "in alleging a fraud or mistake, a party must state with particularity the circumstances constituting the fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Such allegations typically "include the `time, place and contents of the false representation, as well as the identity of the person making the misrepresentation and what [was] obtained thereby.'" Superior Bank, F.S.B. v. Tandem Nat'l Mortg., Inc., 197 F.Supp.2d 298, 313-14 (D.Md.2000) (quoting Windsor Assocs., Inc. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md.1983)). In cases involving concealment or omissions of material facts, however, meeting Rule 9(b)'s particularity requirement will likely take a different form. See Shaw v. Brown & Williamson Tobacco Corp., 973 F.Supp. 539, 552 (D.Md.1997) (recognizing that an omission likely "cannot be described in terms of the time, place, and contents of the misrepresentation or the identity of the person making the misrepresentation" (internal quotations omitted)). The purposes of Rule 9(b) are to provide the defendant with sufficient notice of the basis for the plaintiff's claim, to protect the defendant against frivolous suits, to eliminate fraud actions where all of the facts are learned only after discovery, and to safeguard the defendant's reputation. See Harrison, 176 F.3d at 784. In keeping with these objectives, "[a] court should hesitate to dismiss a complaint under Rule 9(b) if the court is satisfied (1) that the defendant[s were] made aware of the particular circumstances for which [they] will have to prepare a defense at trial and (2) that [the] plaintiff has substantial
Additionally, one of the grounds on which Defendants seek dismissal is the statute of limitations. The statute of limitations is an affirmative defense that a party typically must raise in a pleading under Fed.R.Civ.P. 8(c) and is not usually an appropriate ground for dismissal. See Eniola v. Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md.2002); Gray v. Metts, 203 F.Supp.2d 426, 428 (D.Md. 2002). Nevertheless, dismissal is proper "when the face of the complaint clearly reveals the existence of a meritorious affirmative defense." Brooks v. City of Winston-Salem, N.C., 85 F.3d 178, 181 (4th Cir.1996); see also Rice v. PNC Bank, N.A., No. PJM 10-07, 2010 WL 1711496, at *3 (D.Md. Apr. 26, 2010) (granting a motion to dismiss claims brought pursuant to the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., because they were untimely).
The complaint, which is in this court on the basis of federal question jurisdiction,
As to Plaintiff's federal claims, the complaint expressly lists counts based on violations of RESPA and RICO. At various places throughout the complaint, Plaintiff also points to sections of the Code of Federal Regulations referencing TILA requirements, and she requests "[a]ll applicable [s]tatutory damages for violations of [TILA]" in the prayer for relief. (ECF No. 1, at 14). Accordingly, the complaint will be construed as attempting to allege violations of RESPA, RICO, and TILA.
Defendants have moved to dismiss these federal claims by contending that they are either (1) not actionable because Congress has not provided a private right of action as to certain violations, (2) untimely, or (3) insufficiently pled to state a claim upon which relief can be granted. Although Plaintiff opposed Defendants' motion to dismiss in part, she did not respond to any of these arguments.
"RESPA sought to provide consumers with a better understanding of the home purchase and settlement process, and to reduce, when possible, `unnecessarily high settlement charges caused by certain abusive practices.'" Proctor v. Metro. Money Store Corp., 645 F.Supp.2d 464, 484 (D.Md. 2009) (quoting 12 U.S.C. § 2601). Plaintiff alleges that Defendants violated RESPA by failing to provide her with a "Special Information Booklet" and a "Good Faith Estimate as required by [RESPA]," by failing to notify her of "their intention to
RESPA creates a private right of action for only three types of wrongful acts: (1) failure of a loan servicer to provide proper notice about a transfer of servicing rights or to respond to a qualified written request for loan information, 12 U.S.C. § 2605; (2) payment of a kickback or unearned fees for real estate settlement services, 12 U.S.C. § 2607;
Plaintiff's remaining allegations stem from purported violations of §§ 2605 and 2607. Claims brought under § 2605 are governed by a three-year statute of limitations, while claims brought under § 2607 are subject to a one-year statute of limitations. 12 U.S.C. § 2614. The limitations period begins to run "from the date of the occurrence of the violation," which generally refers to the date of closing for loan origination violations. See id.; Findlay v. CitiMortgage, Inc., 813 F.Supp.2d 108, 117 (D.D.C.2011); Brown v. Wilmington Fin., No. CCB-11-699, 2012 WL 975541, at *4 (D.Md. Mar. 21, 2012). Here, both the complaint and the deed of trust indicate that the refinancing closed on September 7, 2007. Plaintiff, however, did not file her complaint until June 23, 2011, nearly four years later. Thus, regardless of whether the one-year or three-year limitations period applies, Plaintiff's allegations relating to nondisclosure at settlement of hidden fees, affiliated business arrangements, and the potential for post-closing transfer of the loan servicing contract are time-barred.
Nevertheless, Plaintiff's claim regarding nondisclosure of the transfer of her loan servicing contract must be dismissed as currently pled. To state a claim for such a violation under § 2605(b)(1),
TILA "is a federal statute applicable only to creditors and governs the terms and conditions of consumer credit by requiring that lenders disclose certain details about loans, fees, and costs." Davis v. Wilmington Fin., Inc., No. PJM 09-1505, 2010 WL 1375363, at *4 (D.Md. Mar. 26, 2010). Plaintiff's TILA claims are scattered throughout the complaint and generally assert that she did not receive accurate disclosures regarding itemization of finance charges or interest rates related to the refinancing of her home.
Defendants have moved to dismiss Plaintiff's RICO claim as insufficiently pled. Plaintiff appears to bring her RICO claim pursuant to 18 U.S.C. § 1962(c).
First, Plaintiff provides no factual allegations that Defendants were engaged in an enterprise. "[A]n enterprise [is] defined as an ongoing organization, formal or informal, in which the various associates function as a continuing unit." Delk v. ArvinMeritor, Inc., 179 F.Supp.2d 615, 626-27 (W.D.N.C.2002), aff'd, 40 Fed. Appx. 775 (4th Cir.2002). The complaint states only that "Defendants engaged in a mortgage lending enterprise." (ECF No. 1 ¶ 106). It contains no factual averments regarding the relationships between or among Defendants, much less how they "function[ed] as a continuing unit." Delk, 179 F.Supp.2d at 626-27. Such a "`naked assertion[]' devoid of `further factual enhancement'" need not be credited when evaluating the sufficiency of "enterprise" allegations on a motion to dismiss. Gallant v. Deutsche Bank Nat'l Trust Co., 766 F.Supp.2d 714, 722-23 (W.D.Va.2011); Davis, 2010 WL 1375363, at *3-4 (dismissing a pro se complaint that did not contain any factual averments "that any Defendant was involved in any `enterprise' as required under [RICO]").
The complaint also fails to allege sufficiently that Defendants engaged in a pattern of racketeering activity. The RICO statute defines "racketeering activity," in relevant portion, as "any act which is indictable" under a number of enumerated criminal provisions, which include mail and wire fraud. 18 U.S.C. § 1961(1). The elements of mail fraud are (1) a scheme disclosing an intent to defraud, and (2) the use of the mails in furtherance of the scheme. Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 336 (4th Cir.1996). Wire fraud is similar, except that "wire, radio, or television," rather than the mails, provides the means to further the fraud. 18 U.S.C. § 1343. In the context of a RICO action, the mailings or wirings do not need to contain the misrepresentations that defrauded the plaintiff, but they must be in furtherance of the fraudulent, material misrepresentation upon which the plaintiff justifiably relied to her detriment. Chisolm, 95 F.3d at 337. Additionally, these fraud allegations must state with particularity "the fraudulent acts that form the alleged pattern of racketeering activity" in accordance with Rule 9(b). Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1400-01 (9th Cir.1986)).
To allege a "pattern" of racketeering activity, Plaintiff must show that at least two predicate acts of racketeering occurred within ten years of each other, 18 U.S.C. § 1961(5), that the acts were related, and that they "amount to or pose a threat of continued criminal activity," H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). Acts are related if they "have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events." Id. at 240, 109 S.Ct. 2893 (quoting Sedima, 473 U.S. at 486 n. 14, 105 S.Ct. 3275). With respect to the continuity element, the United States Court of Appeals for the Fourth Circuit has explained:
Menasco, Inc., 886 F.2d at 683-84 (internal quotation marks and citations omitted).
In light of this backdrop, Plaintiff's allegations fail to allege adequately a pattern of racketeering activity. Incorporating the few factual allegations regarding the refinancing and ultimate foreclosure of her home, Plaintiff asserts that "Defendants engaged in a mortgage lending enterprise to undertake th[is] conduct ... [and] used the interstate mail and wire systems to communicate and defraud [her] out of her real property." (ECF No. 1 ¶¶ 106, 108). At the outset, the vague reference to Defendants' use of mail or wire systems does not provide any factual description of how they employed mailings or wirings to execute the purportedly fraudulent scheme. Additionally, Plaintiff's allegations fail to set forth sufficiently a "scheme disclosing an intent to defraud." Plaintiff appears to allege fraud based on Defendants' "intentional misrepresentations" regarding her "ability to repay the [refinanced] loan and... her qualifications for [that] loan" and the potential forgery of certain signatures on unspecified foreclosure documents. (Id. ¶¶ 97-98).
Finally, the complaint generally references only conduct directed at Plaintiff at the time of her refinancing and again during foreclosure proceedings against her home. But "a pattern requires more than just conduct directed at [a single] Plaintiff[]." Davis, 2010 WL 1375363, at *4; Orteck Int'l, Inc., 2006 WL 2572474, at *18. Indeed, in the absence of allegations of "specific fraudulent conduct perpetuated by any Defendant apart from the alleged conduct directed to Plaintiff[]," a RICO claim cannot survive a motion to dismiss. Davis, 2010 WL 1375363. Plaintiff's claim must, therefore, be dismissed.
As previously noted, subject matter jurisdiction in this matter is based on the federal questions presented in the complaint.
For the foregoing reasons, Defendants' motion to dismiss will be granted in part, and Plaintiff will be granted leave to amend her RESPA claim under § 2605(b)(1) within fourteen days of the date of the attached Order. A separate Order will follow.
The court may also take judicial notice of "matters of public record" when resolving a motion to dismiss. Clark v. BASF Salaried Employees' Pension Plan, 329 F.Supp.2d 694, 697 (W.D.N.C.2004), aff'd as modified by 142 Fed.Appx. 659 (4th Cir.2005); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). For this reason, the order ratifying the foreclosure of Plaintiff's home, which was issued by the Circuit Court for Prince George's County and included as an exhibit to Defendants' motion, may also be considered at this stage.
The complaint's conclusory allegation regarding fraudulent concealment is wholly insufficient to make this showing. Cf. Weinberger v. Retail Credit Co., 498 F.2d 552, 555 (4th Cir.1974) ("[M]erely intoning the word `fraudulently' in a complaint is not sufficient to raise the [doctrine of equitable tolling]."). Additionally, the complaint's few factual allegations regarding Defendants' purported noncompliance with RESPA's requirements do not provide grounds for equitable tolling. Cf. Davis, 523 F.Supp. at 1126 (explaining that "[a]pplication of the fraudulent concealment doctrine in the context of the disclosure requirements of ... TILA requires more than mere nondisclosure" because "[o]therwise, in a context in which nondisclosure is the gravamen of the violation, then just about every failure by defendant to disclose as required by... TILA would seemingly bring about tolling"). Additionally, because Plaintiff failed to respond to Defendants' argument regarding the statute of limitations in her opposition papers, she is deemed to have abandoned this argument. Schalk v. Associated Anesthesiology Practice, 316 F.Supp.2d 244, 250 n. 8 (D.Md.2004).