United States District Court, District of Columbia
TIBEBE F. SAMUEL, Plaintiff
WELLS FARGO & COMPANY, et al., Defendants
COLLEEN KOLLAR-KOTELLY, United States District Judge
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
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  Motion to Dismiss the Amended
Complaint. Upon consideration of the pleadings,
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.
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.
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.
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.
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.
“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. 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. In June of that year her home was
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.
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.
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.
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.
Conclusory Allegations of Wrongdoing
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 ...