Hasan v. Friedman & Macfadyen, P.A. Trustees et al, No. 8:2011cv03539 - Document 21 (D. Md. 2012)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 7/20/12 sat). Signed by Chief Judge Deborah K. Chasanow on 7/20/12. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : MALINA HASAN : v. : Civil Action No. DKC 11-3539 : FRIEDMAN & MACFADYEN, P.A., et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this case is a motion to remand filed by Plaintiff Malina Hasan (ECF No. 181) and motions to dismiss filed by Defendants Bank of New York Mellon (ECF No. 7) and Friedman & MacFadyen, P.A. (ECF No. 11). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiff s motion will be denied and Defendants motions will be granted. I. Background The following facts are either set forth in the complaint, evidenced by documents referenced or relied upon in the complaint, or are matters of public record of which the court may take judicial notice.1 1 Although as a general rule extrinsic evidence should not be considered at the 12(b)(6) stage, the court may consider such evidence where the plaintiff has notice of it, does not dispute its authenticity, and relies on it in framing the complaint. American Chiropractic Ass n v. Trigon Healthcare, In September 2005, Plaintiff Malina Hasan obtained a $162,000 loan from First Horizon Home Loan Corporation for the purchase of real property in Upper Marlboro, Maryland. 11, Ex. 6, promissory note). trust granting First (ECF No. The loan was secured by a deed of Horizon a security interest in the property, and the deed of trust was recorded among the land records trust). of Prince Defendant George s Bank of County. New York (ECF No. Mellon 7-1, deed of ( BNY Mellon ) subsequently became the payee of the promissory note. At some point, Plaintiff ceased [making] her regular monthly mortgage payment[s] on the loan to [BNY Mellon] . . . after she mailed . . . a document with a series of questions . . . [and] stated that [she] did not intend to make payments until her questions Inc., 367 F.3d 212, 234 (4th Cir. 2002); see also Douglass v. NTI-TSS, Inc., 632 F.Supp.2d 486, 490 n. 1 (D.Md. 2009). Here, Defendants have attached numerous documents including a deed of trust, promissory note, and deed of removal and appointment of substitute trustees which are referenced or relied upon in the complaint. In her opposition papers, Plaintiff generally rejects all the contentions made by [Defendants] (ECF No. 15, at 2), but does not challenge the authenticity of the attached documents. Thus, the court may consider them in resolving the pending motions to dismiss. Furthermore, a federal court may consider matters of public record such as documents from prior . . . court proceedings in conjunction with a Rule 12(b)(6) motion. Walker This is v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009). particularly true where, as here, Defendants seek dismissal pursuant to the doctrine of res judicata. See Brooks v. Arthur, 626 F.3d 194, 200 (4th Cir. 2010) ( [W]hen entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact. (internal marks and citation omitted)). 2 were answered. (Id. at ¶ 11). Consequently, Plaintiff defaulted on her loan. On May 6, 2010, following Plaintiff s discharge from chapter 7 bankruptcy, BNY Mellon appointed Kenneth J. MacFadyen, a principal of the law firm Friedman & MacFadyen, P.A., among others, as a substitute trustee under the deed of trust. (ECF No. 7-6, deed of removal and appointment of successor trustees).2 Two weeks later, the substitute trustees initiated foreclosure proceedings in the Circuit Court for Prince George s County, Maryland. Plaintiff filed an emergency motion to enjoin the foreclosure sale, naming as defendants the substitute trustees, First Horizon Home Loans, and MetLife Home Loans. 7). (ECF No. 7- Plaintiff sought an order enjoining the foreclosure sale, arguing original that wet the ink defendants note were associated not the with holders the of property therefore, that they had no authority to foreclose. the and, (Id. at ¶ 24). The circuit court denied Plaintiff s motion the following day. (ECF No. 7-9, circuit court memorandum and order, at 2). 2 Plaintiff has erroneously named Mr. MacFadyen s law firm, Friedman & MacFadyen, P.A., rather than Mr. MacFayden himself, as a defendant in this case. This oversight is understandable in light of the fact that the circuit court appears to have made the same mistake. (ECF No. 7-9, memorandum and order, at 2 ( The Trustees in this case are Friedman & MacFadyen and not as the claimant asserts, Trustees Curran and O Sullivan )). The firm correctly asserts that it has been improperly joined in this action. (ECF No. 11-1, at 7). Given that the complaint will be dismissed on other grounds, however, the misnomer is of no real consequence. 3 The property was sold at a foreclosure sale on July 14, 2010 (id.), and the sale was ratified on December 8, 2010 (ECF No. 78). On or about May 5, 2011 i.e., approximately five months after ratification Plaintiff, by counsel, filed in the circuit court a motion to vacate and set aside the foreclosure sale and counterclaim for breach of contract. (ECF No. 7-10).3 As grounds for this motion, Plaintiff alleged: [Nineteen] material violations of the Truth in Lending Act, the Real Estate Settlement Procedures Act and a variety of antipredatory-lending laws[;] . . . intentional misrepresentations of fact made by the lender and/or their servicing agents and/or Trustees with knowledge of [their] falsity and for the purpose of inducing Ms. [Hasan] to reasonably rely upon the information proffered to them, and to act upon [those] material misrepresentation[s] to Ms. [Hasan s] detriment (e.g. the mortgage that they [] offered was predatory, was designed to fail, served the lender but not the borrower s best interest)[;] . . . the Deed of Trust and Promissory Note were not recorded in the same name at the time of the foreclosure sale[;] . . . the foreclosure sale was premised upon fraud, because, based on the higher standard of the fiduciary s responsibility, the act of not ascertaining the ownership of the Promissory Note and Deed of Trust is equal to a material intentional misrepresentation based on a falsehood, intended to get a purchaser to commit to the purchase of the property, to the detriment of Ms. [Hasan], and the reliance on the misrepresentation was 3 References to page numbers for this document are to those designated by the court s electronic case filing system. 4 reasonable buyer. (Id. at 2-3). under the circumstances by the By a memorandum opinion and order issued May 10, 2011, the court denied this motion, reasoning, in relevant part: [D]espite the arguments of counsel, the Motion to Vacate was not filed in the appropriate time because the sale has been ratified for more than five months. No allegations sufficient to invoke Maryland Rule 2-535(b) have been advanced and the other issues advanced by the Defendant are subsumed by the case of Bates v. Cohn, 417 Md. 309 (2010). (ECF No. 7-9). Plaintiff, proceeding pro se, commenced the instant action against BNY Mellon and Friedman & MacFadyen by filing a verified complaint in the Circuit Court for Prince George s County on October 26, 2011. alleges that (ECF No. 2). Defendants fail[ed] In her complaint, Plaintiff to properly and accurately credit payments . . . toward the loan, prepar[ed] and fil[ed] false documents, and foreclose[ed] on the Subject Property without having the legal authority and/or proper documentation to do so. made . (Id. at ¶ 22). . . false She further contends that Defendants representations, concealments and non- disclosures with knowledge of the misrepresentations, intending to induce Plaintiff s reliance[.] (Id. at ¶ 29). Plaintiff purports to raise claims of negligence, fraud, breach of implied covenant of good faith and fair dealing, unjust enrichment, and 5 violations of ( HOEPA ).4 the As [d]ismiss[ing] Home relief, and Ownership she Equity seeks, permanently inter enjoin[ing] sale ; vacat[ing] the substitute trustee s title in of Plaintiff and favor compensatory, special, general, and rescission of contract based on fraud. Protection alia, the an punitive order foreclosure deed ; against Act quieting Defendants ; damages ; and (Id. at 18-19). BNY Mellon was served with the complaint on November 10, 2011, and removed to this court on December 9, asserting federal question jurisdiction. thereafter, it filed Fed.R.Civ.P. 12(b)(6). (ECF a No. motion (ECF No. 7). 1 to ¶¶ 3, 6, dismiss 9). pursuant Soon to Friedman & MacFadyen moved to dismiss on similar grounds on December 29. (ECF No. 11). At around the same time, Plaintiff filed a motion to remand in state circuit court, which BNY Mellon attached to a notice it filed in the instant case. (ECF No. 18-1). Plaintiff opposed Defendants motions to dismiss on January 17, 2012. 15, 20). (ECF Nos. BNY Mellon opposed Plaintiff s motion to remand (ECF No. 17) and filed a reply with respect to its motion to dismiss (ECF No. 19). 4 The complaint lists several other counts that are not true causes of action, such as dismiss and permanently stop trustee s sale (count III), wrongful/unlawful foreclosure (count IV), and standing (count IX). To the extent that Plaintiff seeks an order enjoining the foreclosure sale that took place approximately sixteen months before she filed suit, her complaint is moot. 6 II. Motion to Remand In moving to remand, Plaintiff asserts, in conclusory fashion, that remand is proper because [BNY Mellon] did not file its Notice of Removal within the requisite thirty day time period after receipt of the [c]omplaint. (ECF No. 18-1). In response, BNY Mellon asserts that Plaintiff effected service of process by certified mail on November 10, 2011, attaching as proof a copy of an envelope postmarked November 8 and date stamped November 10 (ECF No. 17-1) and a United States Postal Service tracking report (ECF No. 17-2).5 Further observing that it filed its notice of removal on December 9, 2011, BNY Mellon maintains that its removal was timely. When the plaintiff challenges the propriety of removal, the defendant bears the burden of proving that removal was proper. See Greer v. Crown Title Corp., 216 F.Supp.2d 519, 521 (D.Md. 2002) (citing Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)). On a motion to remand, the court must strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court. Richardson v. Philip Morris Inc., 950 F.Supp. 700, 702 (D.Md. 1997) (internal 5 As BNY Mellon observes, this report appears to contain an error. It indicates an expected delivery date of November 10 and that processing in Maryland occurred on November 8, but that the document was actually delivered in New York on November 1. Defendant suggests that the report presumably should state that delivery was made on November 10 (ECF No. 17 ¶ 3) and Plaintiff has not challenged this assertion. 7 quotation marks omitted). This standard reflects the reluctance of federal courts to interfere with matters properly before a state court. Pursuant Id. at 701. to 28 U.S.C. § 1446(b)(1), [t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief based[.] upon which such action or proceeding is Furthermore, [w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action. 18 U.S.C. § 1446(b)(2)(A). Here, BNY Mellon has shown that it was served with the complaint on November 10, 2011, and that it filed the notice of removal on December 9, within the thirty days required by § 1446(b)(1). Furthermore, the notice of removal recites, Defendant Friedman & MacFadyen consents to removal of this case to federal court (ECF No. 1 ¶ 9), and the law independently confirmed its consent (ECF No. 13). requirements of § 1446(b)(2) are also satisfied. has not specifically challenged any of these firm has Thus, the As Plaintiff assertions, Defendants have met their burden of establishing that removal was timely. Accordingly, Plaintiff s motion to remand will be denied. 8 III. Motions to Dismiss A. Standard of Review The purpose of a motion to dismiss pursuant 12(b)(6) is to test the sufficiency of the complaint. to Rule 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. 8(a)(2). Fed.R.Civ.P. Rule 8(a) (2) still requires a showing, rather than a blanket assertion, of entitlement to relief. v. Twombly, 550 U.S. 544, 555 n. 3 (2007). Bell Atl. Corp. That showing must consist of more than a formulaic recitation of the elements of a cause of action or naked assertion[s] devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). At this stage, the court must consider all well-pleaded allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (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)). Complaints filed by pro se litigants are to be liberally construed . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent standards 9 than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). The court need not, however, accept unsupported legal allegations. (4th Cir. couched Revene v. Charles Cnty. Comm rs, 882 F.2d 870, 873 1989). as Nor factual must it allegations, agree with Iqbal, 556 legal conclusions U.S. at 678, or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844 (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. (quoting Fed.R.Civ.P. 8(a)(2)). Iqbal, 556 U.S. at 679 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. In the instant motions to dismiss, defendants raise several affirmative defenses, including a statute of limitations defense and the defense of res judicata. The statute of limitations is an affirmative defense that a party typically must raise in a pleading under appropriate Fed.R.Civ.P. ground for 8(c) dismissal. and See is not Eniola usually v. an Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v. Mettis, 203 10 F.Supp.2d 426, 428 (D.Md. 2002). proper when the face of the Nevertheless, dismissal may be complaint clearly existence of a meritorious affirmative defense. reveals the 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) (dismissing claims under the Truth in Lending Act on motion to dismiss as untimely). Similarly, the Fourth Circuit has permitted dismissal on res judicata grounds in some circumstances: This Court has previously upheld the assertion of res judicata in a motion to dismiss. Although an affirmative defense such as res judicata may be raised under Rule 12(b)(6) only if it clearly appears on the face of the complaint, when entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact. Andrews v. Daw, 201 F.3d 521, 524 (4th Cir. 2000) (internal citations omitted). B. Analysis Defendants move to dismiss on three grounds. First, they contend that Plaintiff s sole federal claim, alleged violations of the Home Ownership and Equity Protection Act ( HOEPA ), is barred by the statute of limitations. Second, they maintain that the issues presented in the complaint were already resolved in the foreclosure action; thus, the doctrine of res judicata 11 bars their relitigation in this case. Finally, Defendants argue that Plaintiff has, in any event, failed to state a claim for relief as to all state common law claims. Plaintiff s response fails to address any of these arguments. 1. The Limitations Defense The Truth in Lending Act ( TILA ) is a federal consumer protection statute intended to promote the informed use credit by requiring certain disclosures from lenders. of HOEPA, which was enacted as an amendment to TILA, applies to a special class of regulated loans that are made at higher interest rates and are subject to special disclosure requirements. See In re Community Bank of Northern Va., 622 F.3d 275, 282 (3rd Cir. 2010) (citing 15 U.S.C. § 1639). More specifically, HOEPA requires lenders to disclose to their borrowers the annual percentage rate ( APR ) of sums due for the use of monies loaned and the amount of regular monthly payments. In re Community Bank of Northern Va., 622 F.3d at 282-83. Violations of the HOEPA disclosure creditor give rise to a cause of action. American Mortg. Network, No. 1:11cv622 requirements by a See Caballero v. (JCC/JFA), 2011 WL 3440025, at *3 (E.D.Va. Aug. 8, 2011) (citing McAnelly v. PNC Mortg., No. 2:10-cv-02754, 2011 WL 2366680, at *2 (E.D.Cal. June 8, 2011)). Such an action, however, must be brought within one year from the date of the occurrence of the violation, and the 12 violation date can be no later than the date the plaintiff enters the loan agreement. No. CCB-10-11, 2010 WL Hood v. Aurora Loan Servs., Civ. 2696755, at *2 (D.Md. (internal marks and citations omitted). 1635(a), a consumer whose loan is July 6, 2010) Pursuant to 15 U.S.C. § secured by his or her principal residence has the right to rescind the loan until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement this containing subchapter, the material whichever is disclosures later[.] If required the under required disclosures are never made, an action for rescission under TILA or HOEPA expire[s] three years after the date of consummation of the transaction or upon the sale of the property, whichever first occurs[.] 15 U.S.C. § 1635(f); see also 12 C.F.R. § 226.23; Hood, 2010 WL 2696755, at *2 (citing In re Community Bank of Northern Va., 622 F.3d at 305). Thus, the statute of limitations for any claim under HOEPA expires, at the latest, three years from the date the plaintiff entered the loan agreement.6 In her complaint, Plaintiff asserts that she is entitled to money damages and rescission of 6 the deed of trust because Courts have disagreed as to whether equitable tolling may apply to HOEPA claims. See Caballero, 2011 WL 3440025, at *3 n. 4. Plaintiff has not advanced a tolling argument, however. 13 Defendants failed to comply with the requirements of HOEPA. Plaintiff closed on her mortgage, however, on or about September 13, 2005, and commenced this action on October 26, 2011, over six years later. Accordingly, any alleged violation of HOEPA is time-barred and subject to dismissal. Because subject matter jurisdiction in this case is based on the federal HOEPA claim, which will be dismissed, questions arise as to (1) whether the court may exercise supplemental jurisdiction over the remaining state law claims, and (2) if so, whether it should. Pursuant to 28 U.S.C. § 1367(a), the court may exercise supplemental jurisdiction over all [nonfederal] claims that are so related to [federal] claims in the action . . . that they form part of the same case or controversy[.] Here, the remaining state law claims i.e., those alleging fraud, negligence, breach of an implied covenant of good faith and fair dealing, and unjust enrichment are sufficiently related to the HOEPA claim such that jurisdiction over them. the court may exercise supplemental See White v. County of Newberry, S.C., 985 F.2d 168, 172 (4th Cir. 1993) (supplemental claims need only revolve around a central fact pattern shared with the federal claim). Still, the court may decline to exercise supplemental jurisdiction . . . [if it] has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). In deciding whether to exercise discretion to consider supplemental 14 claims, courts generally look to factors such as the convenience and fairness to the parties, the existence of any underlying issues of federal policy, comity, and considerations Shanaghan v. Cahill, 58 F.3d 106, 110 (4th of judicial economy. Cir. 1995) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)). Ultimately, supplemental jurisdiction is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values. (quoting Carnegie-Mellon Univ., 484 U.S. at 350). Id. Here, the remaining state law claims plainly cannot be maintained in any court; thus, it makes little sense to remand district court for further proceedings.7 judicial economy, the court will them to state In the interest of exercise supplemental jurisdiction to consider the remaining claims. 2. The Res Judicata Defense Defendants contend that Plaintiff s remaining claims are barred by the doctrine of res judicata. As Judge Williams recently explained: 7 As this case was removed from the District Court of Maryland for Prince George s County, a decision not to exercise supplemental jurisdiction would require remand of the remaining claims to that court. See Darcangelo v. Verizon Communications, Inc., 292 F.3d 181, 196 (4th Cir. 2002) (citing Roach v. W. Va. Regional Jail and Corr. Facility Auth., 74 F.3d 46, 48-49 (4th Cir. 1996)). 15 Res judicata, or claim preclusion, prohibits relitigation of claims that could have been asserted, or were decided, in a [] prior suit between the same parties or their privies. [Anyanwutaku] v. Fleet Mortg. Group, Inc., 85 F.Supp.2d 566, 570 (D.Md. 2000). The purpose of this doctrine is to provide litigants, as well as the judicial system, with some definite end to the litigation of matters previously addressed by the court. . . . Generally, the preclusive effect of a judgment rendered in state court is determined by the law of the state in which the judgment was rendered. Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 162 (4th Cir. 2008). In accordance with Maryland law, res judicata applies when: (1) the present parties are the same or in privity with the parties to the earlier dispute; (2) the claim presented is identical to the one determined in the prior adjudication; and (3) there has been a final judgment on the merits. See [Anyanwutaku], 85 F.Supp.2d at 570 71. McCreary v. Beneficial Morg. Co. of Maryland, Civ. No. AW-11-cv01674, 2011 WL 4985437, at *3 (D.Md. Oct. 18, 2011). Each of those requirements has been met here. While the parties are not identical to those in the foreclosure action, they are in privity with them. The plaintiffs in the foreclosure case were the substitute trustees, including Kenneth MacFadyen, principal of the law firm Friedman & MacFadyen, P.A., who is a named defendant in the instant case. (ECF No. 7-8).8 Moreover, the substitute trustees in the foreclosure action were 8 As noted previously, the law firm itself is not a proper defendant in this action, but Plaintiff clearly intended to sue the substitute trustees. 16 acting to enforce the rights of BNY Mellon, a defendant here, under the promissory note and deed of trust associated with Plaintiff s property. (ECF No. 7-6). There can be no question that the substitute trustees were in privity with BNY Mellon. See Vaeth v. Mayor and City Council of Baltimore City, Civ. No. WDQ-11-0182, 2011 WL 4711904, at *2 (D.Md. Oct. 4, 2011) ( Privity exists when a non-party to the earlier litigation is so identified with a party . . . that he represents precisely the same legal right in respect to the subject matter involved. ) (quoting Martin v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 651 (4th Cir. 2005)); see also McCreary, 2011 WL 4985437, at *3 (finding privity where the parties in the foreclosure action included [s]ubstitute [t]rustees from the law offices of [the defendant firm] ). Moreover, the state law claims raised by Plaintiff in this action are identical, for res judicata purposes, to those raised in the foreclosure case. on the same proceeding if cause it of [A] claim in a second action is based action arises [as out of one raised] the involves the same operative facts. same in an earlier transaction or Vaeth, 2011 WL 4711904, at *3 (quoting Keith v. Aldridge, 900 F.2d 736, 740 (4th Cir. 1990)). In considering whether claims arise from a prior identical transaction, courts look to whether the facts are related in time, space, origin, or motivation, whether they form 17 a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or business understanding or usage. McCreary, Restatement (Second) of 2011 WL Judgments 4985437, § 24(2) at *3 (quoting (1982)). In the foreclosure action, Plaintiff argued that certain disclosures were purposefully withheld by the lender and/or substitute trustees associated with her loan, and challenged the authority of the substitute trustees to proceed with the foreclosure sale. She has presented the exact same issues in this case. Id. ( Any claim that Defendants conduct in enforcing the Deed of Trust was abusive or wrongful should have been raised as an exception during the foreclosure proceeding itself. ). Finally, the circuit court s December 8, 2010, ratification order was clearly a final foreclosure proceeding. the foreclosure sale by relief prior to motion vacate and set filing the denied by the circuit court. Plaintiff had an sale aside counterclaim for breach of contract. Because on (ECF No. 7-8). injunctive to judgment the merits the Plaintiff challenged emergency and the of a motion for post-ratification foreclosure sale and Both of those motions were (ECF No. 7-9). a full and fair opportunity to litigate her claims against Defendants or their privies during the foreclosure proceeding, the doctrine of res judicata bars 18 their relitigation in this case. Accordingly, Defendants motions to dismiss will be granted. In her intends to opposition press papers, forward Plaintiff with an asserts amended that complaint she to meticulously set out the details behind the problems illustrated in the initial verified complaint. (ECF No. 15, at 1). Pursuant to Federal Rule of Civil Procedure 15(a)(2), courts are to grant leave to amend a pleading freely . . . when justice so requires. Leave should be denied, however, where the amendment would be so prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile. HCMF Corp. v. Allen, 238 F.3d 273, 276 (4th Cir. 2001) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). An amendment is futile when the proposed amendment is clearly insufficient or frivolous on its face, or if the amended claim would still fail to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). El-Amin v. Blom, Civ. No. CCB-11-3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012). statute of Because Plaintiff s claims are barred by the limitations and/or the amendment would clearly be futile. doctrine res judicata, Thus, Plaintiff will not be permitted to file an amended complaint. 19 of IV. Conclusion For the foregoing reasons, Plaintiff s motion to remand will be denied and Defendants motions to dismiss will granted. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 20
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