UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1197

REGINALD JONES,

Plaintiff - Appellant,

v.

HSBC BANK USA, N.A.; HOME EQUITY LOAN TRUST, SERIES ACE 

2005-HE5; WELLS FARGO BANK NA; MORTGAGE ELECTRONIC 

REGISTRATION SYSTEMS INC.; BUONASSISSI, HENNING & LASH, 

P.C.,

Defendants – Appellees,

and

ONE CALL LENDER SERVICES, LLC; SUPERIOR HOME MORTGAGE 

CORPORATION,

Defendants.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-

cv-02904-RWT)

Submitted: July 7, 2011 Decided: August 25, 2011

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.
2

Lawrence J. Anderson, PELS ANDERSON, LLC, Bethesda, Maryland, 

for Appellant. Russell J. Pope, TREANOR POPE & HUGHES, P.A., 

Towson, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

This appeal arises out of a Maryland foreclosure

proceeding. In October 2009, Plaintiff Reginald Jones (“Jones”)

filed suit in Maryland state court against defendants, HSBC Bank 

USA, N.A. (“HSBC”), Fremont Reorganizing Corporation 

(“Fremont”), Home Equity Loan Trust Series ACE 2005-HE5 (“Home 

Equity Loan Trust”), Wells Fargo Bank, NA (“Wells Fargo”), 

Superior Home Mortgage Corporation (“Superior”), Mortgage 

Electronic Registration Systems, Inc. (“MERS”), One Call Lender 

Services, LLC (“One Call”), Buonassissi, Henning & Lash, P.C. 

(“BHL”), and Friedman & MacFayden, P.A. Defendants removed to 

federal court and the district court ultimately granted their 

motion to dismiss. Jones appeals that dismissal, urging that 

the district court abused its discretion by denying him leave to 

amend his complaint and that, in any event, the court should 

have entered dismissal without prejudice as to the claims 

contained in his proposed amendment. For the reasons that 

follow, we affirm.

I.

In 2005, Jones took out an $825,200 home mortgage loan 

from Fremont. The loan was secured by a deed of trust on 

Jones’s Rockville, Maryland property. Fremont subsequently sold 

its interest in Jones’s property on the secondary market to Home 
4

Equity Loan Trust, with HSBC serving as trustee. Wells Fargo 

assumed servicing responsibilities for the mortgage.

In November 2007, Jones defaulted on the loan. As a 

result, Wells Fargo, through substitute trustee BHL, initiated 

foreclosure proceedings in the Circuit Court for Montgomery 

County, Maryland. BHL filed an order to docket foreclosure on 

July 10, 2009. Jones responded by filing an objection on July 

27.

While Jones’s objection was pending, foreclosure of 

his home proceeded, and a sale of the property was scheduled for 

October 7, 2009. Seeking to delay the sale, Jones filed the 

present action in the Circuit Court for Montgomery County on 

October 6. The complaint alleged six causes of action, all 

relating to Jones’s objections to the foreclosure, and named as 

defendants HSBC, Home Equity Loan Trust, Wells Fargo, and MERS.1

Despite Jones’s lawsuit, the foreclosure sale 

proceeded as scheduled, and HSBC purchased the property on 

Shortly after the complaint was filed, defendants removed to the 

United States District Court for the District of Maryland.

 1 MERS serves as the record nominee for the holder of the 

loan. The complaint also names as defendants One Call and 

Superior, but contains no specific allegations against them. 

Jones consented to dismissal of Fremont and the original 

trustee, Friedman & MacFayden, though he originally named them 

as defendants as well.
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October 7. The state court retained jurisdiction over the 

foreclosure proceedings, and, on December 2, 2009, it held a 

hearing on Jones’s objection to the foreclosure, at which he 

appeared. The court ultimately denied Jones’s objection. Jones 

then filed a motion for reconsideration, which the court also 

denied.

The state court ratified the foreclosure sale on March 

2, 2010, and HSBC filed a motion for possession on April 9. 

Still attempting to retain the property, Jones filed an opposing 

motion. Jones also filed a motion for a preliminary injunction, 

which sought to prevent HSBC from taking possession of the 

property until the federal suit was resolved. The state court 

granted HSBC’s motion on May 14, 2010, and entered a judgment 

awarding HSBC possession of the property.

On May 18, Jones filed a motion for an injunction in 

his federal court case that was almost identical to the motion 

he had earlier filed in state court. It asked the district 

court to prevent the state court from allowing HSBC to take 

possession of the property. In both the state and federal 

injunction requests, Jones argued that Fremont’s assignment of 

the mortgage “split” the note from the deed of trust, creating 

an unsecured debt and leaving the opposing parties without legal 

authority to foreclose. J.A. 44, 81. Due to the state court’s 
6

granting a hearing on his motion for an injunction, Jones moved 

to withdraw his federal court injunction request on June 18.

On July 1, 2010, the state court denied as moot all of 

Jones’s outstanding motions in the foreclosure action. With 

Jones having exhausted all other avenues for relief, defendants 

in the present action moved on October 21, 2010 to dismiss 

Jones’s complaint.

One week later, Jones filed for leave from the 

district court to amend his complaint. The proposed amendment

retained as defendants only HSBC, Wells Fargo, and BHL, and 

sought to convert the suit into a class action. Raising 

substantially different facts and legal theories, the revised 

complaint centered on the manner in which Wells Fargo prepared 

affidavits used in foreclosure proceedings. It alleged that 

employees of Wells Fargo signed affidavits supporting 

foreclosures despite having no personal knowledge of the facts 

contained therein. Based on this conduct, the complaint 

asserted seven causes of action, including fraud, wrongful 

foreclosure, and violation of the Maryland Consumer Protection 

Act.

In a February 3, 2011 order, the district court denied 

Jones’s motion for leave to amend, explaining that it was 

dilatory, futile, and would prejudice the defendants. 

Additionally, the district court dismissed the original 
7

complaint in its entirety, finding that Jones’s claims were 

barred by res judicata due to the resolution of the original 

state court foreclosure action. This appeal followed.

II.

On appeal, Jones challenges the district court’s 

denial of his motion for leave to amend and the court’s 

dismissal with prejudice of his original complaint. We consider 

each issue in turn.

A.

Jones first argues that the district court erred by 

refusing to grant his motion for leave to amend his complaint.

We review a district court’s denial of a plaintiff’s motion to 

amend for abuse of discretion. Galustian v. Peter, 591 F.3d 

724, 729 (4th Cir. 2010). When considering whether to grant 

leave to amend a pleading, a “court should freely give leave 

when justice so requires.” Fed. R. Civ. P. 15(a)(2). Though 

denial of leave to amend lies within the district court’s 

discretion, the court may not deny a party’s motion solely on 

the basis of delay. Edwards v. City of Goldsboro, 178 F.3d 231, 

242 (4th Cir. 1999). Instead, “delay must be accompanied by 

prejudice, bad faith, or futility.” Id. As we explain below, 

the district court did not abuse its discretion by finding 
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Jones’s amendment to be both dilatory and futile.2 We therefore

affirm the denial of his motion to amend.

1.

Jones disputes the finding that his motion to amend 

was dilatory. He argues that, when he filed his motion, he had 

only recently become aware of the facts supporting his amended 

complaint’s assertion that the defendants supported foreclosure 

with false affidavits. However, the record contains ample 

evidence that Jones either knew or should have known of these 

facts considerably earlier. As a threshold matter, it appears 

that Jones’s concerns about the accuracy of defendants’ 

documents were present when he filed his initial complaint, on 

November 2, 2009. Indeed, that complaint explicitly questioned 

the accuracy of documents signed by Wells Fargo employees. 

Though Jones was on notice of at least some potential problems 

with the documents, he did not present the theories contained in 

his proposed amendment until nearly a year later.

To the extent that Jones’s complaint cites new 

evidence, the information on which it relies was not presented 

 2 Because our determination that the district court did not 

abuse its discretion in finding the proposed amendment both 

dilatory and futile is sufficient to affirm the denial of 

Jones’s motion to amend, we need not address the finding of 

prejudice.
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in a timely manner. In support of his amended claims, Jones 

relies on a spring 2010 deposition of a Wells Fargo employee 

from unrelated litigation in Florida. Although this deposition 

was taken in March, Jones did not file his motion to amend until 

that October. Meanwhile, Jones delayed the proceedings twice, 

first by filing a frivolous “motion to show authority” for which 

he was nearly sanctioned, and second by filing a motion for an 

injunction—-identical to one he filed in state court—-that he 

moved to withdraw only after defendants had invested time in 

responding. Given Jones’s delay in filing his amended complaint 

and his earlier pattern of dilatory behavior, we cannot say that 

the district court abused its discretion in finding his motion 

to amend dilatory.

2.

Jones also disputes the district court’s finding that 

his amended complaint was futile. In assessing whether a 

proposed amendment is clearly futile, a district court may look

to “substantive or procedural considerations.” Davis v. Piper 

Aircraft, 615 F.2d 606, 613 (4th Cir. 1980). Here, the district 

court found that Jones’s proposed amendment would be barred by 

claim preclusion arising from the state court’s decision in the 

original foreclosure action.
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The preclusive effects of a state court judgment are 

determined by state law. Laurel Sand & Gravel, Inc. v. Wilson, 

519 F.3d 156, 162 (4th Cir. 2008). Under Maryland law, claim 

preclusion has three elements: “(1) the parties in the present 

litigation are the same or in privity with the parties to the 

earlier litigation; (2) the claim presented in the current 

action is identical to that determined or that which could have 

been determined in prior litigation; and (3) there was a final 

judgment on the merits in the prior litigation.” R&D 2011, LLC 

v. Rice, 938 A.2d 839, 848 (Md. 2008). Here, the district court 

did not err by finding all three elements satisfied.

Though Jones and BHL were the sole parties to the 

state court foreclosure action, privity exists between BHL and 

the two additional parties involved here, HSBC and Wells Fargo. 

In a claim preclusion context, privity “generally involves a 

person so identified in interest with another that he represents 

the same legal right.” FWB Bank v. Richman, 731 A.2d 916, 930 

(Md. 1999). BHL prosecuted the state court foreclosure action 

on behalf of Wells Fargo, which in turn serviced the underlying 

mortgage on behalf of HSBC. With respect to the proposed 

amendment, the relevant interest of all three defendants is the 

same right to foreclose on the Jones mortgage. Because the 

three defendants represent the same legal right in this action 

that BHL represented in the state court action, the privity 
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component of claim preclusion is satisfied. See Anyanwutaku v. 

Fleet Mortg. Group, Inc., 85 F. Supp. 2d 566, 571 (D. Md. 2000) 

(finding privity, under Maryland law, between substitute trustee 

who filed prior foreclosure action and successor holders of the 

underlying mortgage note); see also FWB Bank, 731 A.2d at 930.

In deciding whether the claims are the same, so as to 

satisfy the second element, Maryland courts employ the 

“transaction” test. See Kent Cnty Bd. of Educ. v. Bilbrough, 

525 A.2d 232 (Md. 1987). Under this test, claims are the same 

“when they arise out of the same transaction or series of 

transactions.” Anyanwutaku, 85 F. Supp. 2d at 571. This holds 

“regardless of the number of substantive theories, or variant 

forms of relief flowing from those theories,” and “regardless of 

the number of primary rights that may have been invaded” or 

“variations in the evidence needed to support the theories or 

rights.” deLeon v. Slear, 616 A.2d 380, 392 (Md. 1992) (quoting 

Restatement (Second) of Judgments § 24(2) (1982)).

In the proposed amendment, Jones alleges that the 

defendants improperly foreclosed on his home by submitting and 

relying on false and defective affidavits. While these claims 

proceed on a new substantive theory and seek relief different 

from what Jones sought in the initial foreclosure proceeding, at 

bottom, they remain claims of wrongful foreclosure. In both 

cases, Jones’s claims center on the same basic transaction—-
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foreclosure of his home. And in both the amended complaint and 

the state-court foreclosure action, Jones has raised objections 

to the procedures through which the defendants prosecuted the 

foreclosure. Thus, for the purposes of the second element of 

claim preclusion, the two sets of claims are identical.3

Finally, the state-court foreclosure action resulted 

in a final judgment on the merits. In Maryland, a foreclosure

action is ordinarily a summary, in rem proceeding. When the 

mortgagor voluntarily appears and raises objections, however, 

the action results in an in personam judgment with preclusive 

effect. See Fairfax Sav., F.S.B. v. Kris Jen Ltd. P’ship, 655 

A.2d 1265, 1272 (Md. 1995); Tri-Towns Shopping Center, Inc. v. 

First Fed. Sav. Bank, 688 A.2d 998, 1005 (Md. Ct. Spec. App. 

1997).

Jones argues that because Maryland Code, Real Property 

Article § 7-105.1 establishes a three-year limitations period 

for suits in response to wrongful foreclosures, foreclosures 

 3 Even if that were not so, the amended complaint certainly 

involves claims Jones could have raised in the foreclosure 

action, either as counterclaims or as a defense. Though Jones 

contends that Maryland’s permissive counterclaim rules insulate 

such claims from preclusion, to allow them in this case would, 

in effect, nullify the original foreclosure judgment. Avoiding 

such a consequence is a central concern of the claim preclusion 

doctrine. See Fairfax Sav., F.S.B. v. Kris Jen Ltd. P’ship, 655 

A.2d 1265, 1269 (Md. 1995) (citing Restatement (Second) of 

Judgments § 22(2)(b) (1982)).
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themselves cannot be intended to have preclusive effect. 

However, the statute simply addresses actions brought in 

response to the in rem variety of foreclosures—-those which the 

mortgagor did not challenge directly in the first instance. See

Fairfax Sav., 655 A.2d at 1274 (noting that plaintiffs could 

relitigate the merits of a prior foreclosure judgment in a 

subsequent claim for damages, so long as the prior judgment was 

solely in rem). As noted above, however, when the mortgagor 

appears and raises objections to the initial foreclosure action, 

he loses the opportunity to later collaterally attack the 

resulting judgment. See id. at 1272 (explaining that the 

greater preclusive effect of a foreclosure judgment to which 

exceptions were filed flows from the mortgagor’s “voluntary 

appearance in the foreclosure proceeding”). In other words, the 

mortgagor is entitled to litigate his objections only once: he 

may defend against the original foreclosure action directly, or 

he may bring a separate, offensive suit within three years of 

the sale; he may not do both.

In this case, Jones voluntarily appeared and raised 

numerous objections to the state-court foreclosure action. The 

state court held two hearings to consider the merits of those 

objections. When his objections were rejected, Jones chose not 

to appeal or seek revision of the state court decision. Thus, 

the state-court foreclosure constitutes an in personam final 
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judgment on the merits,4

As each of the three claim preclusion elements are 

satisfied, the district court did not err by finding Jones’s 

motion to amend futile. Having properly found both futility and 

delay present, the district court did not abuse its discretion 

by denying Jones leave to amend. See Equal Rights Ctr. v. Niles 

Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).

and precludes Jones from raising the 

same claims in this case.

B.

Jones also appeals the district court’s dismissal with 

prejudice of his original complaint. We review the grant of a 

Rule 12(b)(6) motion to dismiss de novo. Coleman v. Maryland 

Court of Appeals, 626 F.3d 187 (4th Cir. 2010).

Jones does not challenge the merits of the district 

court’s dismissal, but instead argues only that it should have 

entered a dismissal without prejudice with respect to his 

amended complaint. Jones’s concern appears to be that the 

prejudice designation prevents him from re-filing his amended 

complaint in state court.

 4 To the extent Jones believes that the final judgment was 

procured by means of fraud or false testimony, his remedy is to 

seek revision pursuant to Maryland Rule 2-535, not to bring a 

collateral attack.
15

Jones misinterprets the district court’s order. 

Because the district court denied Jones leave to file his 

proposed amendment, its dismissal order pertained only to his 

original complaint. While the district court did consider the 

merits of the proposed amendment in deciding to deny his motion 

for leave to amend, this consideration alone does not constitute 

a final judgment on the merits. Consequently, the dismissal 

with prejudice of the original complaint in this case does not, 

by itself, prevent Jones from re-filing the proposed amendment. 

Because Jones’s only objection to the district court’s grant of 

the defendants’ motion to dismiss is without merit, we affirm.

III.

For the foregoing reasons, we affirm the decision of 

the district court. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED