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Samuel v. Wells Fargo & Co.

United States District Court, District of Columbia

April 27, 2018

TIBEBE F. SAMUEL, Plaintiff
v.
WELLS FARGO & COMPANY, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, United States District Judge

         At the center of this lawsuit is the alleged decision of Defendants Wells Fargo & Company and Wells Fargo Bank, N.A. (collectively, “Wells Fargo”) to deny a Home Affordable Modification Program (“HAMP”) application filed by Genet Damtie in 2010. Given its subject matter, one might reasonably expect that Ms. Damtie would be a party to this case. She is not. Instead, this case has been brought by Tibebe F. Samuel, an individual who allegedly represented Ms. Damtie in her dealings with Wells Fargo. Ms. Damtie's HAMP application was never granted. She ultimately fired Plaintiff in early 2017. Her home was foreclosed later that year. Plaintiff filed suit shortly thereafter.

         Plaintiff, who does not purport to represent Ms. Damtie in this lawsuit, contends that Wells Fargo treated him unfairly during Ms. Damtie's HAMP application process. Plaintiff's currently-operative Amended Complaint is filled with generalized allegations of broken promises, deception and defamation. It is not a model of clarity or specificity. Defendants have filed a [12] Motion to Dismiss the Amended Complaint. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as it currently stands, the Court GRANTS-IN-P A R T and DENIES-IN-PA RT that motion. All of the claims that the Court can discern in Plaintiff's Amended Complaint are dismissed. For many of those claims, the statute of limitations has run. For others, Plaintiff has failed to plead essential elements. And for still others, there is simply no private cause of action available to Plaintiff.

         However, for the first time in his Opposition to Defendants' Motion to Dismiss, Plaintiff has raised defamation and interference with business relationship claims based on a statement that Wells Fargo allegedly made to Ms. Damtie about Plaintiff in March 2017. Because Plaintiff proceeds pro se, the Court has considered these claims despite the fact that they were absent from his Amended Complaint. Unlike Plaintiff's other defamation and interference claims, these claims do not appear to be time-barred or otherwise subject to dismissal on the pleadings on the current record. Plaintiff's lawsuit will be allowed to continue only so that he can assert claims based on the March 2017 statement. However, the Court will order Plaintiff to file a Second Amended Complaint that specifically asserts these claims so that there is an operative complaint in this case that sets forth the claims that are actually at issue going forward. This new pleading shall also omit the claims that the Court dismisses with prejudice, as discussed in more detail below.

         I. BACKGROUND

         For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiff's Amended Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

         In their reply brief, Defendants argue that the Court may not consider exhibits and factual assertions raised for the first time in Plaintiff's Opposition to Defendants' Motion to Dismiss because “it is well-settled that a plaintiff cannot seek to amend his pleadings in an opposition to a motion to dismiss.” Defs.' Reply at 3. Although this principle is indeed well-settled in cases where the plaintiff is represented by counsel, it does not apply in the same fashion in cases where the plaintiff proceeds pro se. Because Plaintiff proceeds in this matter pro se, when determining whether Plaintiff can state a plausible claim for relief the Court must consider his complaint in light of all of his filings, including those submitted in response to Defendants' Motion to Dismiss. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (“a district court errs in failing to consider a pro se litigant's complaint ‘in light of' all filings, including filings responsive to a motion to dismiss”) (quoting Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)); Fillmore v. AT & T Mobility Servs. LLC, 140 F.Supp.3d 1, 2 (D.D.C. 2015) (“the Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged in both the Complaint and Plaintiff's Opposition to Defendant's Motion to Dismiss.”). Accordingly, the Court has considered Plaintiff's claims in light of all of his filings, including his Opposition to Defendants' Motion to Dismiss and the attachments thereto.

         Plaintiff alleges that Wells Fargo serviced a mortgage on a Washington, D.C. property for which non-party Ms. Genet Damtie was the borrower. Am. Compl., ECF No. 9, ¶¶ 2, 30. Ms. Damtie allegedly retained Plaintiff in March 2010 “to handle and complete a Home Loan Modification Program (HAMP) Application” for her. Id. ¶¶ 2-3, 30. HAMP provides incentives for mortgage servicers to modify eligible first lien mortgages so that the payments of homeowners who are in default or risk of default can be reduced to affordable levels. Id. ¶¶ 18-19. Plaintiff is a self-described “loan modification consultant” who helps home owners navigate the HAMP application process. Id. ¶ 27. As is required by law, Plaintiff was not to be paid by Ms. Damtie unless and until her HAMP application process was completed. Id. ¶¶ 29, 31.[2]

         An “Authorization Letter” was sent to Wells Fargo notifying it of Plaintiff's retention by Ms. Damtie, and Wells Fargo allegedly responded to the letter indicating that it agreed to work with Plaintiff as Ms. Damtie's agent. Id. ¶¶ 3, 32.[3] Wells Fargo allegedly indicated that it would make a decision on Ms. Damtie's HAMP application within 45-60 days (assuming that all required information had been provided). Id. ¶¶ 4, 32. However, according to Plaintiff, the process ended up taking more than seven years. Id. During this period Plaintiff allegedly completed numerous tasks on behalf of Ms. Damtie (e.g., “faxing and mailing documents” and “letter writing”). Id. ¶ 5. Plaintiff continued to work as Ms. Damtie's agent until April 2017 when, frustrated with the delay, Ms. Damtie terminated his representation and hired a new representative. Id. ¶ 4.[4] In June of that year her home was foreclosed. Id.

         Plaintiff alleges that Wells Fargo lied when it indicated in 2010 that Ms. Damtie's application would be processed in 45-60 days. Id. ¶ 6. In fact, according to Plaintiff, Wells Fargo “never had the intention of modifying the loan at all.” Id. ¶¶ 6, 46-47. Instead, Wells Fargo's intention was allegedly “to accumulate interest in the mortgage, ” “prolong the HAMP process” and eventually foreclose on the home when profitable to Wells Fargo. Id. ¶ 6.

         In a section of his Amended Complaint entitled “Defamation of Character and Interference in Plaintiff's Business, ” Plaintiff alleges that Wells Fargo made certain false statements about Plaintiff to Ms. Damtie and others. Id. ¶¶ 41-45. In his Amended Complaint, Plaintiff alleges two specific instances when such false statements were made. First, Plaintiff alleges that “[i]n the Superior Court of the District of Columbia in July 2016 during a hearing, the defendant's representative made a false statement regarding the Plaintiff.” Id. ¶ 42. Second, Plaintiff alleges that “[i]n August 2016, a complaint was lodged by the borrower against the Defendant to Consumer Financial Protection Bureau (CFPB)” and “although the Defendant and the Plaintiff discussed . . . the complaint, ” Defendants “provided false information to the CFPB stating that the Defendant was ‘unable to reach the Plaintiff' in order to address the issues in the complaint.” Id. ¶ 43. Finally, although not alleged in his Amended Complaint, Plaintiff has raised a third allegedly defamatory statement in his Opposition to Defendants' Motion to Dismiss. According to a letter allegedly sent by Ms. Damtie to Plaintiff, a Wells Fargo customer service representative told Ms. Damtie on March 28, 2017 that her HAMP application had not been granted in part because Wells Fargo had been unable to get in touch with Plaintiff. See Pl.'s Opp'n, Ex. E.

         Defendants have moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). That motion has been fully briefed and is now ripe for resolution.

         II. LEGAL STANDARD

         Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         III. DISCUSSION

         A. Conclusory Allegations of Wrongdoing

         At the outset, the Court notes that Plaintiff's Amended Complaint is littered with generalized, conclusory allegations of wrongdoing that are insufficient to state a claim against Defendants. See, e.g., Am. Compl. ¶ 1 (alleging that Defendants engaged in “misconduct, deceptive business practices, interference in business relations, and defamation of character”); id. ¶ 4 (alleging that the HAMP application process was delayed due to “deceptive practices and dishonesty by the defendant”); id. ¶ 6 (alleging that Defendants “lied, ” “made deceptive and dishonest statements, ” and provided information that was “harmful”); id. ¶ 35 (“Defendants have engaged in a pattern of unfair and deceptive practices, ” “provid[ed] false information” and “fail[ed] to deal with the Plaintiff in good faith and engag[ed] in deceptive practices”); id. ¶ 39 (“Defendant violated federal laws, violated the District of Columbia laws, program requirements and contractual requirements governing loss mitigation”); id. ¶ 40 (alleging that Defendants have “engaged in a pattern of unfair and deceptive practices”); id. ¶ 41 (alleging that Defendants failed “to respond to borrower and Plaintiff's inquiries” and “provid[ed] false or misleading information” on certain issues); id. ¶ 44 (alleging “improper, unlawful, deceptive, and unethical ...


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