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Ponder v. Chase Home Finance

October 28, 2009


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Lathal Ponder, acting pro se,*fn1 brought this suit against Chase Home Finance, LLC ("Chase"). Mr. Ponder alleges that when he could not afford to make payments on a mortgage loan from Chase, Chase agreed to send him a loan modification agreement and that Chase sent the agreement, but the postal service left it under the mat where it got wet in the rain. Mr. Ponder alleges that he asked Chase to send another set of documents, but he never received another package. As a result, Mr. Ponder alleges breach of contract, misrepresentation, and negligence arising from Chase's failure to resend the loan modification agreement. Chase moves to dismiss for failure to state a claim.


Chase is the holder of the Note that is secured by Mr. Ponder's property located at 3300 Martin Luther King Avenue, Washington, D.C. Chase also services on the loan. In 2008, Mr. Ponder defaulted on the Note. Subsequently, Mr. Ponder and Chase began to negotiate a loan modification, and Chase sent a modification agreement to Mr. Ponder via U.S. mail. Compl. ¶¶ 6-7, 10. Mr. Ponder alleges that when he discovered the package containing the modification agreement under the mat in front of his house, the envelope and its contents were soaking wet from rain. Id. ¶ 11. He called Chase to request another copy. Id. ¶ 12. Chase agreed to send one, but Mr. Ponder never received it. Id. ¶¶ 13-14. Mr. Ponder and Chase continued to negotiate regarding a potential loan modification agreement, but to date no agreement has been sent to Mr. Ponder for execution. Id. ¶¶ 15-20. Mr. Ponder remains in default on the Note, and Chase proceeded with foreclosure. Id. ¶ 20.

As a result, Mr. Ponder filed a three count Complaint in District of Columbia Superior Court against Chase, alleging breach of contract, misrepresentation, and negligence. Chase removed the case to this Court based on diversity jurisdiction. Chase now moves to dismiss for failure to state a claim.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Federal Rule of Civil Procedure 8(a) 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). A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to raise a right to relief above the speculative level." Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a right to relief. Id. at 555 n.3. "[A] complaint needs some information about the circumstances giving rise to the claims." Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).

In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth in a complaint. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.


A. Breach of Contract

The party asserting the existence of an enforceable contract, in this case Mr. Ponder, bears the burden of proving that the parties entered into an enforceable contract. Virtual Def. & Dev. Int'l, Inc. v. Republic of Moldova, 133 F. Supp. 2d 9, 17 (D.D.C. 2001). The essential elements of a contract are "competent parties, lawful subject matter, legal consideration, mutuality of assent and mutuality of obligation." Henke v. U.S. Dep't of Commerce, 83 F.3d 1445, 1450 (D.C. Cir. 1996). Under D.C. law,*fn2 there must be agreement as to all material terms and there must be an intention of the parties to be bound. Virtual, 133 F. Supp. 2d at 17.

Mr. Ponder alleges that Chase breached a loan modification agreement. But the parties never entered into such an agreement, and the Complaint does not allege that they did. Rather, the Complaint fails to allege that the parties agreed to any, let alone all, material terms of a loan modification. At most, the parties orally agreed to be bound by a final agreement to be drawn up and signed later, but this does not constitute an enforceable contract. See Overseas Partners, Inc. v. PROGEN Musavirlik ve Yonetim Hizmetleri, Ltd. Sikerti, 15 F. Supp. 2d 47, 53 (D.D.C. 1998) (an agreement to agree does not create a contract under D.C. law).

In response to the motion to dismiss, Mr. Ponder contends that the parties entered into an implied-in-fact contract. See Resp. [Dkt. # 6] at 4. The Complaint also fails to state a claim under this theory of liability. "An implied-in-fact contract is a true contract, containing all necessary elements of a binding agreement; it differs from other contracts only in that it has not been committed to writing or stated orally in express terms, but rather is inferred from the conduct of the parties in the milieu in which they dealt." Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C. 1993). The Complaint fails to allege conduct of the parties that would evidence the existence of an implied-in-fact contract. Mr. Ponder does not allege that the parties actually ...

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