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Lymar Curry v. Bank of America Home Loans Servicing

August 10, 2011


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Lymar Curry obtained a loan from Defendants Bank Of America Home Loans Servicing and Bank Of America for the purchase of a condominium in the District of Columbia. He later became unable to afford the monthly payments and sought a loan modification from Defendants. After being refused, he filed this suit claiming that Defendants unlawfully rejected the modification. Defendants have now filed a Motion to Dismiss on the ground that Plaintiff's two causes of action for a declaratory judgment and negligence are facially infirm. Concurring, the Court will grant the Motion.


According to Plaintiff's Complaint, which must be presumed true for purposes of this Motion, he applied for and received a loan from Defendants in January 2008 in the amount of $236,000 to purchase a condominium. Compl., ¶ 6. Following extensive litigation between himself and the developer, he could no longer afford the monthly payments required under his agreement. Id., ¶¶ 7-8. He arranged by telephone with Defendants' legal department two forbearance periods spanning the last few months of 2009 and the first few months of 2010. Id., ¶ 9. In connection with this forbearance, Defendants accelerated Plaintiff's missed payments and also increased his monthly payments. Id., ¶ 10. In February 2010, Plaintiff claims that Defendants offered him a loan modification by telephone. Id., ¶ 11. Plaintiff then received and completed a loan-modification contract, but Defendants denied the modification, allegedly because it was not properly notarized. Id., ¶¶ 12-13. Plaintiff was forced to reapply for a loan modification twice more, as Defendants misplaced his second application. Id., ¶ 15. In August 2010, he received a foreclosure notice, but he was notified, again by telephone, that the sale would be canceled if he was approved for a loan modification by September 30, 2010. Id., ¶ 16.

Plaintiff next filed suit in the Superior Court of the District of Columbia in September 2010, seeking a declaratory judgment and negligence damages resulting from Defendants' allegedly unlawful denial of his loan modification. A temporary restraining order was granted on September 22, 2010, enjoining Defendants from going forward on the foreclosure sale of Plaintiff's home. Defendants removed the case to this Court a week later, and they have now filed a Motion to Dismiss.*fn1

II.Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "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 omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.

A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c).


Defendants seek the dismissal of Plaintiff's Complaint for failure to state a claim. They argue that Plaintiff can obtain no relief from this Court because Defendants never entered into a loan-modification agreement with him. Tellingly, they point out, Plaintiff does not assert a claim here for breach of contract. In bringing causes of action for declaratory judgment and negligence, Plaintiff is attempting to circumvent the law of contracts. Finally, they maintain that, to the extent Plaintiff could amend his Complaint to allege the existence of an oral contract, such a contract would be unenforceable as violative of the statute of frauds. The Court first turns to Plaintiff's negligence claim.

A. Negligence

Plaintiff initially alleges that Defendants owed him "a duty to use due care in processing his loan modification application and forbearances." Compl., ¶ 26. Defendants argue that they owed him no such duty since there was no contractual obligation to modify his loan. Reply at 2. Plaintiff counters that Defendants owed him the "duty to use due care that every legal entity owes to every other legal entity." Surreply at 6. This bare assertion is simply too vague to establish an element of negligence, and Plaintiff cites no authority to the contrary. This, however, is just one infirmity from which his negligence claim suffers.

This cause of action rests on the premise that the loan modification would be a valid contract but for Defendants' allegedly negligent decision not to accept it because of inadequate notarization. This is how Plaintiff reaches the conclusion that Defendants' rejection of the notarization led to the damages he allegedly suffered. See Compl., ¶ 30. Plaintiff's claim is based on one of two mistaken assumptions. First, he appears to maintain that a valid contract was created the moment he signed and notarized the loan-modification form. If this were true, however, his claim would be for breach of such contract, not negligence. Second, he alternatively argues after a fashion that Defendants had some sort of duty to enter into a contract with him. Yet, the hallmark of American contract law is that private parties are free to enter into lawful contracts with one another. See Manhattan Co. v. Goldberg, 88 A.2d 172, 174 (D.C. 1944) ("[i]ndividuals have the right to contract on their own terms in respect to their private concerns and engagements"); see also 174 Am. Jur. 2d Contracts § ...

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