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THE CIRCUIT COURT FOR PRINCE GEORGES COUNTY, MARYLAND

JOHN E. DRISCOLL, III, ESQUIRE, et al

) ) )

Substitute Trustees Plaintiffs

) ) ) Civil Action No. CAE

v.

) ) ) )

Defendant

DEFENDANTS MOTION TO DISMISS ORDER TO DOCKET SUIT OF FORECLOSURE OR, IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT NAME (Defendant) moves the Court to dismiss the Order to Docket filed by John E. Driscoll, III Esq. et al pursuant to Md. Rule 2-322(b)(2) for failure to state a claim under which relief can be granted and Md. Rule 2-201 which requires that every action be prosecuted in the name of the real party in interest. In the alternative, and pursuant to Md. Rule 2-322(d), Defendant requests a more definite statement regarding the defects complained of below. In support of the motion, Defendant alleges as follows: FACTS 1. This is an action for foreclosure of residential real property owned and occupied by the Defendant. 2. Plaintiffs initiated the Order to Docket Suit of Foreclosure of Deed of Trust on September 17, 2012.

3. There is, however, a defect in Plaintiffs Order to Docket and Exhibits which proves fatal to its cause. 4. Specifically, Wells Fargo alleges in the document captioned MD. CODE REAL PROPERTY 7105.1 (d))(2)(ii) AND RULE 14-207(b)(2) DEBT AND RIGHT TO FORECLOSE AFFIDAVIT, paragraph 1 that as servicer, Wells Fargo is responsible for the collection of this loan.. 5. Moreover, the AFFIDAVIT CERTIFYING OWNERSHIP OF DEBT INSTRUMENT AND ACCURACY OF NOTE SUBMITTED HEREWITH alleges that Wells Fargo Bank N.A. has been authorized to be the holder of the Note. 6. Initially, the term servicer is not a legally cognizable term and therefore lacks any legal force or impact. Nevertheless, to the extent that by servicer Wells Fargo alleges that it is the agent of Federal Home Loan Mortgage Corporation, this action has been brought in a representative capacity on that partys behalf. 7. If this is the case, the allegation that Wells Fargo is the servicer is materially repugnant to the allegation that it is the holder of the note. 8. As a result, this action should be dismissed or, in the alternative, a more definite statement should be demanded of Plaintiffs to explain the inconsistencies found in these Affidavits. STANDARD OF REVIEW 9. In considering a motion to dismiss for failure to state a claim, [A]ny ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader. Sharrow v. State Farm Mutual, 306 Md. 754, 768 (1986); 10. Whether to grant a motion to dismiss depends solely on the adequacy of the plaintiffs complaint. Green v. H & R Block, Inc., 355 Md. 488, 501 (1999). The courts review of the pending motion in this case should be cabined to the four corners of the complaint, the documents appended to the complaint as exhibits and those facts that may fairly be inferred from the

matters expressly alleged. Bennett Heating & Air Conditioning v. NationsBank of Maryland, 342 Md. 169, 174 (1996). MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION 11. Plaintiffs Complaint must be dismissed or, in the alternative, a more definite statement must be ordered, because the allegations of the Complaint are repugnant. a. Legal Standards i. Repugnancies A repugnancy occurs when allegations within a single cause of action or defense are inconsistent and thus neutralize each other. The resulting pleading is a nullity. The repugnancy may occur in the pleading or between it and an attached exhibit. Repugnancy should be attacked by a motion to dismiss a pleading seeking affirmative relief for failure to state a cause of action. ii. Real Party in Interest Md. Rule 2-201 requires that every action shall be prosecuted in the name of the real party in interest, except that an executor, administrator, personal representative, guardian, bailee, trustee of an express trust, person with whom or in whose name a contract has been made for the benefit of another, receiver, trustee of a bankrupt, assignee for the benefit of creditors, or a person authorized by statute or rule may bring an action without joining the persons for whom the action is brought. ARGUMENT 12. Here, Plaintiffs have alleged a series of inherently contradictory allegations which warrant dismissal of its pleading. 13. Specifically, the allegation that Wells Fargo is the servicer (to the extent that servicer means agent) materially conflicts with its allegation that it is the holder of the note. 14. This is because if Wells Fargo is its principals agent (which it suggests it is by

alleging that it has been authorized to bring this action), then Wells Fargos principal is the actual holder of the note even if Wells Fargo is in physical possession of it. 15. More precisely, the principal would be the holder of the note because that party has the power to exercise control over the instrument. 16. Consequently, this action should be dismissed under the rule against Repugnancies, the rule requiring pleadings to reflect the representative capacity of a party when acting for the use and benefit of another, and under Md. Rule 2-201because the named Plaintiffs have failed to commence this action in the name of the real party in interest. 17. Alternatively, because Defendant cannot intelligently admit or deny the allegations without Plaintiffs explaining the inconsistencies of its allegations, Plaintiff should be ordered to file a more definite statement explaining: (1) how Wells Fargo is the holder of the note if another party presumably is the owner; (2) what a servicer is and the duties and obligations it owes the party it is servicing for; and (3) why, if Wells Fargo is truly the holder of the note, would it need some other partys authorization for purposes of conducting this foreclosure action. CONCLUSION WHEREFORE, based upon the foregoing, Defendant respectfully requests the Court dismiss Plaintiffs complaint or, in the alternative, order a more definite statement be served by that party regarding the defects complained of; an award of its reasonably incurred legal fees and costs pursuant; and any other relief the Court deems just and proper.

[CERTIFICATE FOLLOWS]

CERTIFICATE OF SERVICE I HEREBY CERTIFY, under penalty of perjury, that a copy of the foregoing document was mailed via USPS first class mail to all parties affected by this pleading on or about April ____, 2013. By: _____________________________