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Malek v. Flagstar Bank

United States District Court, D. Columbia.

September 29, 2014

GILDA MALEK, Plaintiff,

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For GILDA MALEK, Plaintiff: Afshin Pishevar, LEAD ATTORNEY, PISHEVAR & ASSOCIATES, P.C., Rockville, MD.

For FLAGSTAR BANK, Defendant: Christine M. Debevec, LEAD ATTORNEY, PRO HAC VICE, STRADLEY RONON STEVENS & YOUNG, LLP, Philadelphia, PA; John Alexander Nader, STRADLEY, RONON, STEVENS & YOUNG, LLP, Washington, DC.

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BERYL A. HOWELL, United States District Judge.

The plaintiff, Gilda Malek, filed this action against the defendant Flagstar Bank, a federally chartered savings bank, to challenge the recording of a deed of trust tat was executed by the plaintiff's husband in exchange for a $500,000 loan secured by the couple's house. See generally Compl., ECF No. 1. The defendant has moved, under Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint for failure to state a claim. See Def.'s Mot. to

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Dismiss (Def.'s Mot.), ECF No. 6. For the reasons explained below, the defendant's motion is denied in part and granted in part.


On March 15, 2000, the plaintiff and her husband, Farshied Malek (" Mr. Malek" ), acquired fee simple title by deed as tenants by the entireties to their house, which is located at 4836 Van Ness Street, N.W., Washington, D.C. Compl. ¶ ¶ 6-7, ECF No. 1-1; Def.'s Mot., Ex. A (Residential Property Deed, dated March 15, 2000) at 1, ECF No. 6-2. Five years later, on November 15, 2005, Mr. Malek obtained from the defendant a $500,000 Home Equity Line of Credit (" Home Equity Loan" ), with an initial advance of $200,000 and a ten year repayment period. Compl. ¶ 8; Def.'s Mot., Ex. B (Home Equity Line of Credit Agreement), ECF No. 6-3. To secure this loan, Mr. Malek executed a " Credit Line Deed of Trust" (" Deed of Trust" ) for the benefit of the defendant that encumbered the couple's house. Compl. ¶ 8; Def.'s Mot., Ex. C (Credit Line Deed of Trust), ECF No. 6-4. The parties do not dispute that the plaintiff did not execute the Home Equity Loan, the Deed of Trust, or any other document in connection with the loan made by the defendant to the plaintiff's spouse. Compl. ¶ 10; see generally Def.'s Mot., Ex. C.

On November 28, 2005, the defendant recorded the Deed of Trust with the Office of the Recorder of Deeds of the District of Columbia. Compl. ¶ ¶ 9-10. Almost eight years later and about two years before repayment of of the Home Equity Loan was due in full, the plaintiff filed suit, on July 18, 2013, against the defendant asserting three claims: (1) that the Deed of Trust should be declared invalid (" Count I" ), id. ¶ ¶ 11-12; (2) fraud (" Count II" ), id. ¶ ¶ 13-17; and (3) negligence (" Count III), id. ¶ ¶ 18-20. The case was originally filed in the Superior Court of the District of Columbia and subsequently removed to this Court based on diversity jurisdiction.[1] See Notice of Removal, ECF No. 1. Shortly thereafter, the defendant filed the pending motion to dismiss the Complaint with prejudice.


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," to encourage brevity and, at the same time, " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (ellipses in original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The Supreme Court has cautioned that although " Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading

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regime of a prior era, [] it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the " complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss, 134 S.Ct. 2056, 2067, 188 L.Ed.2d 1039 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible when the plaintiff pleads factual content that is more than " merely consistent with a defendant's liability," but allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678 (citing Twombly, 550 U.S. at 557); see also Rudder v. Williams, 666 F.3d 790, 794, 399 U.S.App.D.C. 45 (D.C. Cir. 2012). Although " detailed factual allegations" are not required to withstand a Rule 12(b)(6) motion, a complaint must offer " more than labels and conclusions" or " formulaic recitation of the elements of a cause of action" to provide " grounds" of " entitle[ment] to relief," Twombly, 550 U.S. at 555 (alteration in original), and " nudge[ ] [the] claims across the line from conceivable to plausible," id. at 570. Thus, " a complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555-56; Sissel v. United States Dep't of Health and Human Servs., No. 13-5202, 760 F.3d 1, 411 U.S.App.D.C. 301, at *7 (D.C. Cir. June 29, 2014) (in considering a Rule 12(b)(6) motion, the " court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct" ) (internal quotations and citations omitted). In addition, courts may " ordinarily examine" other sources " when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents ...

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