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Wanda Busby v. Capital One

March 28, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 6, 8:




The pro se plaintiff, Wanda Busby, has asserted a variety of statutory and common law claims against the defendants, Capital One, N.A. ("Capital One") and attorney David Prensky ("Prensky"), in connection with a promissory note and deed of trust executed by the plaintiff in 1996. Capital One has moved to dismiss all of the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). Prensky has also filed a motion pursuant to Rule 12(b)(6) to dismiss all but two of the claims asserted against him. As discussed below, the plaintiff has failed to allege plausible claims for relief with respect to the claims addressed in the defendants' motions. The court therefore grants the defendants' motions.


In December 1996, the plaintiff purchased a property located in Northwest Washington, D.C. Am. Compl. ¶¶ 7, 19. To finance the purchase, the plaintiff obtained a $207,000 loan from the B.F. Saul Mortgage Company ("B.F. Saul"). Id. ¶ 19 & Ex. B. The loan was documented by a promissory note ("the Note"), id. ¶ 19; Capital One's Mot., Ex. A, and secured by a deed of trust ("the Deed of Trust"), Am. Compl., Ex. B. Both instruments were filed with the D.C. Recorder of Deeds on December 24, 1996. Am. Compl. ¶ 19. B.F. Saul subsequently assigned its rights under the Note to Chevy Chase Bank, F.S.B. ("Chevy Chase"). Capital One's Mot., Ex. A.

By early April 2010, the plaintiff had fallen three months behind on her loan payments. Am. Compl. ¶ 32. The plaintiff "contacted Capital One, the apparent loan servicer, in order to bring her payments up to date." Id. During a conversation with a Capital One representative, the plaintiff learned that there was, according to Capital One, "a sizable underpayment of her escrow account." Id. The plaintiff formally disputed these amounts and offered to pay all overdue amounts of principal and interest pending resolution of the escrow dispute. Id. ¶ 34. Capital One, however, rejected this offer. Id.

On April 12, 2010, the defendants sent the plaintiff a notice of foreclosure sale ("the Notice"), advising her that she owed $168,842.38 on her note and that her property would be sold at a foreclosure sale on May 19, 2010. Am. Compl., Ex. C. The Notice identified the holder of the note as "Capital One NA." Id. The Notice further stated that in the event the plaintiff wished to stop the foreclosure sale, she should contact Prensky, id., who had purportedly been appointed to act as trustee pursuant to a deed of appointment of substitute trustee ("the Deed of Appointment") executed on December 1, 2009, Am. Compl., Ex. B. Both the Notice and the Deed of Appointment were filed with the D.C. Recorder of Deeds on April 14, 2010. Am. Compl. ¶ 47.

On May 18, 2010, the plaintiff commenced this action against the defendants in the Superior Court of the District of Columbia. See generally Compl. After being served with the complaint, Prensky informed the plaintiff that Capital One had agreed to cancel the foreclosure sale scheduled for May 19, 2010. Am. Compl. ¶¶ 93-94. Prensky, however, left open the possibility that the foreclosure sale would be rescheduled at a later date. Id. ¶¶ 95-96.

The plaintiff filed an amended complaint in the Superior Court on June 9, 2010. See generally id. In the amended complaint, the plaintiff alleges that the Notice was fraudulent and ineffective because it misrepresented Capital One as the holder of the note, when, in reality, Capital One was acting, at best, as the loan servicer. Id. ¶¶ 24, 40-45, 49-52, 98-102. The plaintiff contends that under both the terms of the Deed of Trust and as D.C. law, a loan servicer lacks the authority to commence foreclosure proceedings against a borrower like the plaintiff.

Id. The plaintiff also alleges that in the Notice, the defendants misrepresented the amounts owed by the plaintiff. Id. ¶¶ 32-35; 123-24.

In addition, the plaintiff claims that the Deed of Appointment is fraudulent and ineffective. Id. ¶¶ 25, 47-48, 54-79. The plaintiff asserts that there are errors in the notarization on the form, id. ¶¶ 58-68, and that although the Deed of Appointment was executed by an individual on behalf of Chevy Chase on December 1, 2009, Chevy Chase had merged with Capital One four months earlier and therefore did not exist as of the date the Deed of Appointment was executed, id. ¶¶ 70-75.

In her ten-count amended complaint, the plaintiff asserts a variety of statutory and common law*fn1 claims against the defendants. Id. ¶¶ 113-234. Specifically, the amended complaint contains the following claims: fraud (Count I); breach of fiduciary duty (Count II); violations of the D.C. Interest Rate Ceiling Amendment Act ("D.C. Usury Statute"), D.C. CODE § 28-3312, and the D.C. Consumer Protection Procedures Act ("CPPA"), D.C. CODE § 28-3904 (Count III); conversion (Count IV); violations of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961 et seq. (Counts V-VII); negligence (Count VIII); unconscionability, bad faith and unfair dealing (Count IX); and "emotional distress" (Count X) Id. Aside from the breach of fiduciary duty claim (Count II), which is asserted only against Prensky, id. ¶¶ 116-19, and the D.C. Usury Statute claim (Count III), which is asserted only against Capital One, id. ¶¶ 123, each claim is asserted against both defendants.

The defendants removed this action to this court on June 17, 2010. See generally Notice of Removal. On July 16, 2010, Capital One and Prensky separately filed motions to dismiss the amended complaint pursuant to Rule 12(b)(6). See generally Capital One's Mot.; Prensky's Mot. Capital One seeks the dismissal of all the claims asserted against it. See generally Capital One's Mot. Prensky has moved to dismiss all of the claims against him except the breach of fiduciary duty and negligence claims. See generally Prensky's Mot. The plaintiff filed an omnibus opposition to both motions on February 14, 2011,*fn2 see generally Pl.'s Opp'n, and the defendants filed separate replies on February 25, 2011, see generally Capital One's Reply; Prensky's Reply.


A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense to define more narrowly the disputed facts and issues." Conley, 355 U.S. at 47-48 (internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or "plead law or match facts to every element of a legal theory," Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (abrogating the oft-quoted language from Conley, 355 U.S. at 45-46, instructing courts not to dismiss for failure to state a claim unless it appears beyond doubt that "no set of facts in support of his claim [] would entitle him to relief"). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). "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. (citing Twombly, 550 U.S. at 556).

In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations -- including mixed questions of law and fact -- as true and draw all reasonable inferences therefrom in the plaintiff's favor. Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004); Browning, 292 F.3d at 242. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).

B. The Court Grants the Defendants' Motions to Dismiss the Amended Complaint

1. Count I: Fraud

The plaintiff appears to base her fraud claims on Capital One's alleged misrepresentation that it was the holder of the note and that it had the authority to institute foreclosure proceedings against the plaintiff, Capital One's alleged misrepresentations regarding the amounts owed by the plaintiff and the alleged misrepresentations by Capital One and Prensky that Prensky was authorized to act as trustee on behalf of the note holder in foreclosure proceedings. See Am. Compl. ¶¶ 24-25, 40-79, 98-102, 123-24. According to the plaintiff, these misrepresentations appear in the Notice and the Deed of Appointment. See id.

Both Capital One and Prensky contend that the plaintiff has failed to state a viable claim for fraud because she has not alleged that she relied on these allegedly fraudulent representations to her detriment, as required to state a claim for fraud under D.C. law.*fn3 Capital One's Mot. at 8-9; Prensky's Mot. at 5-6. Capital One also argues that that the plaintiff has alleged no facts to support her contention that Capital One misrepresented the amounts owed by the plaintiff. Capital One's Mot. at 9-12. The plaintiff maintains that she has properly stated a claim for fraud, asserting that the amended complaint addresses the essential elements of a fraud claim under D.C. law. Pl.'s Opp'n at 16-22. In ...

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