The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VIVIAN MCCARTER )
Plaintiff, §
v. § Civil Case No. 11-2078 (RJL)
BANK OF NEW YORK et al. §
Defendants. §
)
MEMORANDUM OPINION
(Juiy i, 2012) [#4 and #5]
Plaintiff Vivian McCarter ("plaintiff" or "McCarter") brings this action against
The Bank of New York Mellon ("BNY"), Bank of America, N.A., as successor by merger
to BAC Home Loans Servicing, LP ("BANA"), Bierrnan, Geesing, Ward & Wood, LLC
("BGW"), Mortgage Electronic Registration Systerns, Inc. ("MERS"), and F ederal
National Mortgage Association ("Fannie Mae") (collectively, "defendants"), seeking
declaratory and injunctive relief, as well as damages, for 20 different causes of action.
Before the Court is defendants BNY, BANA, MERS and Fannie Mae’s Motion to
Dismiss (Dkt. #4) and defendant BGW’s Motion to Dismiss, or Alternatively, for
Summary Judgment (Dkt. #5). Upon consideration of the parties’ pleadings, relevant
lavv, and the entire record herein, the defendants’ Motions to Dismiss are GRANTED.
BACKGROUND
On December 23, 2005, plaintiff Vivian McCarter, a Washington, D.C. resident,
was issued a $270,000 mortgage loan by Countrywide Home Loans LLC
("Countrywide"), which was later bought by BANA. Compl. 1111 6, 38, 77, 8l, ECF No.
l-2. The mortgage loan, a 30-year fixed rate loan at 6.125% interest rate for 360 months,
was secured by plaintiffs principal residence, 1805 A Street SE, Washington, DC 20003
("Property"), and was reduced to a Deed of Trust and a Promissory Note. Ia'. 1111 37-39,
78.
At an unspecified date, plaintiff applied for a loan modification, which was later
denied. Ia’. 11 44. Plaintiff alleges that "underwriting standards" and the inability of
BANA and BNY to locate the Promissory Note were the reasons for the modification
denial. Ia’. 1111 44, 50. As a result, BANA foreclosed on plaintiffs property, and plaintiff
"lost her home." Id. 1111 36, 48, 76.
On November l, 2011, plaintiff filed this lawsuit against defendants in the
Superior Court for the District of Columbia. See generally id. Defendants removed the
action to this Court on November 22, 201 l. See Notice of Removal, ECF No. l.
Alleging numerous violations of law against a multitude of defendants, plaintiff seeks an
injunction preventing BANA from "attempting to take any action to take possession of
the property," compensatory, punitive and statutory damages, and an award of costs and
attorneys’ fees. Compl. 11 326.
STANDARD OF REVIEW
Defendants move to dismiss this action pursuant to Fed. R. Civ. P. l2(b)(6).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiffs obligation to provide the grounds of his entitle[ment] to
relief requires more than labels and conclusions, and a forrnulaic recitation of the
elements of a cause of action’s elements will not do." Bell Atlantz'c Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (citations and internal quotations marks
omitted). The 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) (citation and internal quotation marks omitted). "[T]he court need not accept
inferences drawn by plaintiff[] if such inferences are unsupported by the facts set out in
the complaint." Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
The court may, however, consider "any documents either attached to or incorporated in
the complaint and matters of which [the court] may take judicial notice." EEOC v. Sz‘.
Francis Xavier Parochz`al Sch., 117 F.3d 621, 624 (D.C. Cir. l997).
ANALYSIS
19 G€
Defendants argue that plaintiffs claims are so "conclusory, unclear," and
"insufficiently ple[d]" that plaintiff not only fails to allege facts that could be the
legitimate basis for a claim for relief against defendants, but also fails to provide
defendants notice of the claims being raised against them. Defs.’ Mem. of Law in Supp.
of Mot. to Dismiss Pl.’s Compl. at 2-3, ECF No. 4. Because the complaint is "largely
devoted to overbroad generalizations about the banking industry" without much tailoring
to a specific dispute between the parties, defendants contend that the complaint should be
dismissed pursuant to Rule l2(b)(6) because no viable cause of action can be engineered
from plaintiffs set of facts. Id. at 2; Def.’s Mem. in Supp. of Mot. to Dismiss Compl., or
in Altern., Mot. for Summ. Judgment at 18-19, ECF No. 5-1. I agree. Indeed, even
assuming the facts alleged in plaintiff s complaint were true, plaintiff, for the following
reasons, fails to state a claim upon which relief can be granted.
The Federal Rules of Civil Procedure provide for a minimal pleading standard to
ensure that the adverse party is reasonably informed of the asserted causes of action such
that he can file a responsive answer and prepare an adequate defense. Poblete v.
Gola’berg, 680 F. Supp. 2d 18, 19 (D.D.C. 2009) (citing Brown v. Calzfano, 75 F.R.D.
497, 498 (D.D.C. 1977)). In particular, Federal Rule of Civil Procedure 8(a)(2) requires
that a complaint contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The admittedly liberal standard set
by the rule is by no means onerous, but pleadings that: (l) are "confused and rambling
narrative[s] of charges and conclusions"; (2) are "untidy assortment[s] of claims that are
neither plainly nor concisely stated" or (3) fail to allege "even with modest particularity
the dates and places of the alleged transactions" will unhesitatingly be dismissed.
Poblete, 680 F. Supp. 2d at 19 (quoting Brown, 75 F.R.D. at 499).
Plaintiff s 59-page complaint, unfortunately, is an incoherent narrative containing
numerous allegations that generalize and conclude as opposed to specify and support.
Indeed, most of the allegations are so overbroad and inconsistent with one another that
defendants could not possibly exact what factual allegations underlie those claims, much
less respond in any intelligible manner.
For instance, one of plaintiffs main allegations is that BANA sold her a
"deceptive loan product" and unlawfully foreclosed on her property. See Compl. 1111 6,
38, 44, 48, 69. But plaintiff not only utilizes threadbare conclusory statements to support
the 20 causes of action she has initiated against BANA, but also fails to include in her
complaint any description of the foreclosure or identification of the parties involved. As
such, BANA is unable to ascertain the nature and scope of plaintiffs claims against it,
which range from common law fraud to abuse and malicious prosecution, beyond the
possible conclusion that plaintiff is disputing some unspecified, 7 year-old mortgage loan
and its ensuing default. Indeed, the complaint reads like a poorly written assortment of
generalized grievances about the banking industry that is more closely tied to newspaper
articles and investigative reports than plaintiffs own situation.
ln addition to frustrating defendants’ ability to discern the exact claims being
raised against them, the plaintiff also fails to allege facts that would allow the court to
draw the reasonable inference that the defendants are liable for any of the misconduct
alleged. First, there is a complete dearth of relevant factual allegations in the complaint
supporting any of plaintiff s claims for relief as to MERS, Fannie Mae, or BNY, yet
plaintiff wraps these entities into the term "defendant" and initiates a myriad of claims
against them.‘ Even if the Court accepted as true plaintiffs allegations that MERS "lost
the underlying note to [plaintiff s] mortgage" (Compl. 1111 7, 162), Fannie Mae "failed to
follow its own underwriting requirements" (Compl. 11 245), and BNY "did not apply
consistent standards to applicants for mortgage modification under the HAMP program"
(Compl. 11 174), it could not infer from such conclusory statements that plaintiff has stated
any plausible claim for relief against defendants MERS, Fannie Mae, or BNY. See
[qbal, 556 U.S. at 679 ("where the . . . facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged-but it has not shown-that the
pleader is entitled to relief’) (alteration in original) (citation and intemal quotations marks
omitted).
Additionally, plaintiff fails to make factual allegations against BANA or BGW
sufficient to raise a right to relief above the speculative level. For instance, in support of
her claim of common law fraud against BANA and BGW, plaintiff alleges that BANA
"misle[d] [her] as to how she could redeem her property from the foreclosure process"
l The causes of action plaintiff initiates against defendants MERS, F annie Mae, and BNY
include claims for declaratory relief, injunctive relief, common law fraud, gross
negligence, unfair and captive business practices, failure to comply with District of
Columbia statutes, intentional violation of the duty of good faith (MERS and Fannie Mae
only), wrongful disclosure (MERS and Fannie Mae only), violations of Truth and
Lending Act (Fannie Mae only), conspiracy to commit mortgage fraud (BNY only) and
failure to comply with state statutes (BNY only).
6
and BGW used "illegal practices" such as "notarizi[ng] assignments of mortgage[s] that
were back-dated.” See Compl. 1111 131, 147, 152. But with regard to her fraud claim
against BANA, plaintiff utilizes legal conclusions, rather than factual matter, to support
her cause of action. See Compl. 1111 132 (BANA "provided information to [plaintiff] that
. . . were in direct contradiction with one another, and if any one of them is true then the
others must be false representations of fact"); 133 (BANA "made reckless statements
without knowledge of the truth, shown by the various and conflicting assertions made to
[p]laintiff about the status of the foreclosure sale of her home"), 134 (BANA’s "false
statements were intended to induce [p]1aintiff s reliance on HAMP processes . . . intemal
to [BANA] for resolution of the foreclosure issue"). Not only must fraud claims be pled
with particularity, but the case law makes clear that the Court "need not accept inferences
drawn by plaintiff if those inferences are not supported by the facts set out in the
complaint, nor must the court accept legal conclusions cast as factual allegations."
Hettinga v. Um`tea’ States, 677 F.3d 471, 476 (D.C. Cir. 2012) (citing Kowal, 16 F.3d at
1276); Fed. R. Civ. P. 9(b). The same deficiency is true for plaintiffs common law
fraud claim against BGW. Indeed, the only factual content describing the existence of
BGW’s alleged "improper procedures" is found in a Baltz`more Sun newspaper article that
is unrelated to plaintiffs case. See Compl. 1111 149-50. Finally, plaintiff charges BANA
and BGW with gross negligence based on BANA’S failure to "follow its own
underwriting procedures in a way calculated to induce [plaintiff] to obtain a mortgage for
which she did not qualify" and BGW’s allowance of the use of "forged documents . . . in
the illegal foreclosure of [plaintiffs] home." Compl. 11 168. As a result, plaintiff
contends that she "lost ownership of her property at foreclosure." Ia’. But the plaintiff
fails to allege, among other things, how BANA neglected its own underwriting
procedures, which documents BGW used that were allegedly forged, what duty
defendants owed to plaintiff to form the basis of a negligence claim, and what the causal
relationship is between defendants’ conduct and plaintiffs damages.
Only a complaint that states a plausible claim for relief survives a motion to
dismiss. Put simply, pleadings that are no more than conclusions are not entitled to the
assumption of truth. Iqbal, 556 U.S. at 678. As such, plaintiff fails to nudge her claims
across the line from conceivable to plausible. Twombly, 550 U.S. at 57 0. Dismissal for
failure to state a claim is thus appropriate under Rule l2(b)(6).
CONCLUSION
For all the foregoing reasons, defendants’ Motions to Dismiss [#4 and #5] are
hereby GRANTED. An appropriate order shall accompany this Memorandum Opinion.
/'
RICHARD .__L ON
United States District Judge