SMITH v. MIDLAND MORTGAGE et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on June 19, 2014. (lcegs7)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
ADRIENNE SMITH,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 13-706 (EGS)
)
MIDLAND MORTGAGE, et al.,
)
)
Defendants.
)
)
MEMORANDUM OPINION
Plaintiff Adrienne Smith filed this lawsuit on May 14, 2013
against defendants Midland Mortgage, Kenneth Clark, MidFirst
Bank, Mortgage Electronic Registration Systems (“MERS”), and
First Preference Mortgage (“First Preference”). Pending before
the Court are motions to dismiss filed by Midland Mortgage,
Kenneth Clark, MidFirst Bank, and MERS. Upon consideration of
the motions, the plaintiff’s response, the entire record, and
the applicable law, the Court GRANTS the motions to dismiss
filed by Kenneth Clark, Midland Mortgage, and MERS; GRANTS IN
PART AND DENIES IN PART the motion to dismiss filed by MidFirst
Bank; and, sua sponte, REMANDS this case to the Superior Court
of the District of Columbia.
I.

BACKGROUND
On July 14, 2003, plaintiff obtained from defendant First

Preference a home mortgage loan for $252,988.00 on the property

located at 1301 Taylor Street, NW in Washington D.C. See Pl.’s
Opp. to Mots. to Dismiss (“Opp.”), ECF No. 17 at 3; Deed, ECF
No. 15-1 at 1; Note, ECF No. 15-2 at 1.1 Ms. Smith was to make
monthly payments of $1,397.01 in principal and interest as well
as additional payments for taxes and insurance. See Note, ECF
No. 15-2 at 1; Deed, ECF No. 15-1 at 3. If plaintiff’s payment
was not received within fifteen days of its due date, she could
be charged a late fee. See Note, ECF No. 15-2 at 2.
Plaintiff’s mortgage was initially serviced by First Horizon
Mortgage Company, which is not a party to this action. Plaintiff
became frustrated because the company failed to “keep[] her
mortgage account serviced accurately and correctly,” increased
her mortgage payment at various times, and accused her of
submitting late and partial payments. See Opp. at 3. On June 13,
2008, First Horizon notified plaintiff that her loan would now
be serviced by Midland Mortgage, a division of MidFirst Bank.
See Letter, ECF No. 17-1 at 57; Midland Mot., ECF No. 12 at 1.
Plaintiff alleges that she experienced loan-servicing issues
with MidFirst Bank as well. These issues related to late-payment
notices and corresponding late fees she received from 2009–2013.
See Opp. at 4–5; Exhibits, ECF No. 17-1 at 1, 32, 62–73, 75–77,
1

The Court considers the mortgage Note and Deed, which were
attached to MERS’s motion, as “‘documents . . . incorporated in
the complaint.’” Haynes v. Navy Fed. Credit Union, 825 F. Supp.
2d 285, 288 n.2 (D.D.C. 2011) (quoting EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
2

81, 83–84, 86–88, 90, 94–95, 97–100. Plaintiff acknowledges that
some of these payments were late, but claims that others were
not. See Opp. at 5. This, plaintiff asserts, is in “conflict
with [the] terms of a deed set by First Preference.” Id.2
Plaintiff also alleges that the defendants have twice
attempted to foreclose on her property. First, she claims that
in February 2013 the defendants “provided multiple false
certifications . . . and claims to the D.C. Banking and
Insurance Department and removed Plaintiff’s name from her
Deed.” Compl. at 4. After she paid her January and February 2013
mortgage payments, plaintiff claims that the D.C. Banking and
Insurance Department “rejected and cancelled the first
foreclosure package due to arrears numbers that did not add up.”
Id. At this point, defendants allegedly “resubmitted false
information to the agency to open a second foreclosure now in
effect.” Id. Plaintiff, however, appears to concede that no
foreclosure is actually pending, Opp. at 2, and may have
misunderstood the meaning of an April 17, 2013 notice from
Midland Mortgage, which informed her that if she did not pay the
amount necessary to bring her loan current by May 17, 2013, “you
. . . may lose your home through foreclosure.” April 17, 2013
Letter, ECF No. 3-1 at 8.

2

Plaintiff attributes these issues to “racial targeting and loan
discrimination,” but never elaborates. See Compl. at 2.
3

Plaintiff filed this lawsuit on May 14, 2013. The following
day, she moved for a temporary restraining order and a
preliminary injunction, asking the Court to enjoin a pending
foreclosure. See Mot. for TRO, ECF No. 3 at 1. Judge Lamberth
denied the motion for a temporary restraining order on May 16,
2013, noting that “no foreclosure proceedings have even been
initiated at this time.” Order, ECF No. 4 at 1. After receiving
defendants’ opposition to the request for a preliminary
injunction, this Court denied that request and held that
“plaintiff has not alleged that foreclosure proceedings have
commenced on her property.” Order, ECF No. 9 at 3.
Four of the five defendants moved to dismiss in September
2013. The fifth, First Preference, has not entered an appearance
in the case. On September 18, 2013, the Court issued an Order
advising plaintiff of her obligation to respond to the
defendants’ motions and the consequences of failing to do so.
See Order, ECF No. 16. Plaintiff filed her opposition brief on
October 31, 2013 and filed a supplemental brief on January 10,
2014. See Opp.; Notice, ECF No. 18. The motions to dismiss are
now ripe for the Court’s decision.
II.

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). To be viable, a complaint must contain “a
4

short and plain statement of the claim showing that the pleader
is entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quotation marks omitted; alteration in original). The plaintiff
need not plead all of the elements of a prima facie case in the
complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14
(2002), nor must the plaintiff plead facts or law that match
every element of a legal theory. Krieger v. Fadely, 211 F.3d
134, 136 (D.C. Cir. 2000). Despite this liberal standard, a
complaint still “must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation marks omitted).
“‘[W]hen ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in
the complaint.’” Atherton v. D.C. Office of Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). The court must give the plaintiff “the benefit of
all inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). Nevertheless, a court “need not accept inferences drawn
by plaintiff[] if such inferences are unsupported by the facts
set out in the complaint.” Id. Further, “[t]hreadbare recitals
5

of elements of a cause of action, supported by mere conclusory
statements” are not sufficient to state a claim. Iqbal, 556 U.S.
at 678. Although a pro se complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers,”
Erickson, 551 U.S. at 94 (quotation marks omitted), it too “must
plead ‘factual matter’ that permits the court to infer ‘more
than the mere possibility of misconduct.’” Atherton, 567 F.3d at
681–82 (quoting Iqbal, 556 U.S. at 679).
III. ANALYSIS
A. Plaintiff’s Claims Against Kenneth Clark, MERS, and Midland
Mortgage.
The Court will dismiss plaintiff’s claims against defendants
Clark, MERS, and Midland Mortgage. Mr. Clark is mentioned in the
Complaint only in connection with plaintiff’s description of
attempts to contact him regarding her loan-servicing issues. See
Compl. at 2, 3, 6; Opp. at 7. Mr. Clark rightly argues that he
may be “personally liable for torts which [he] commit[ted],
participate[d] in, or inspire[d],” Lawlor v. District of
Columbia, 758 A.2d 964, 974 (D.C. 2000), but the Complaint
alleges no such action. See Clark Mot., ECF No. 10. MERS
similarly is mentioned only in passing, without any description
of an action that could subject it to liability. See Compl. at
3, 4–5; Opp. at 6. Midland Mortgage is discussed throughout
plaintiff’s pleadings, but plaintiff has not controverted its

6

assertion that it is merely a division of MidFirst Bank and thus
is not subject to a separate lawsuit. See Midland Mot., ECF No.
12 at 2–3. In the absence of any reason to doubt it, the Court
credits Midland Mortgage’s assertion. Accordingly, the Court
will dismiss Mr. Clark, MERS, and Midland Mortgage.
B. Plaintiff’s Claims Against MidFirst Bank.
Plaintiff’s complaint makes more detailed allegations
regarding MidFirst Bank, but provides no clear description of
any legal claims she intends to raise. At times, she makes vague
references to broad legal claims, but these are never explained.
See, e.g., Opp. at 2 (“Plaintiff’s claims are applicable under
United States Civil Rights statutes, Fair Lending and Credit
with Federal Regulatory Agency Authority including Housing and
Urban Development (HUD) and the Consumer Financial Protection
Bureau (CFPB)”). This lack of specificity makes it difficult for
plaintiff to meet the requirements of Federal Rule of Civil
Procedure 8(a), which requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief” as well as “a demand for the relief sought.”
Under this standard, a complaint must “ensure that the adverse
party is reasonably informed of the asserted causes of action
such that he can file a responsive answer and prepare an
adequate defense.” McCarter v. Bank of New York, 873 F. Supp. 2d
246, 249 (D.D.C. 2012). Though this standard is liberal, a
7

complaint that is a “confused and rambling narrative of charges
and conclusions” or an “untidy assortment of claims that are
neither plainly nor concisely stated” must be dismissed. Poblete
v. Goldberg, 680 F. Supp. 2d 18, 19 (D.D.C. 2009) (quotation
marks omitted). A liberal reading of plaintiff’s complaint
reveals possible claims for wrongful foreclosure and breach of
contract.3
1.

Plaintiff Fails to State a Claim for Wrongful
Foreclosure.

The only relief plaintiff requested in the Complaint was “that
the Court dismiss the foreclosure complaint” and “that my Deed
[be] returned to me.” Compl. at 6. These requests suggest that
plaintiff intended to raise a claim for wrongful foreclosure.
Indeed, that is the only claim that MidFirst Bank discerns from
her pleadings. See MidFirst Mot., ECF No. 11 at 1. MidFirst Bank
argues that the claim must be dismissed because plaintiff failed
to allege that a foreclosure has taken place. See id. The Court

3

Plaintiff’s other allegations form only a “confused and
rambling narrative of charges and conclusions.” Id. Her
conclusory allegation of “racial targeting and loan
discrimination,” Compl. at 2, cannot alone state a legal claim.
Her request for “an explanation why First Preference steered her
to” her previous loan servicer, which she claims was “shown to
be racially biased against African-Americans,” is similarly
unelaborated. See Opp. at 1, 4. Nor did plaintiff explain how
defendants may be liable for the allegedly harassing mail that
was sent to her home. See Compl. at 4–5; Opp. at 6. Finally,
although plaintiff invokes the term “fraud” repeatedly, she
never “state[s] with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b).
8

agrees. This Court has already held that plaintiff failed to
allege that any foreclosure has taken place and defendants have
made clear “that they have not commenced foreclosure
proceedings.” Order, ECF No. 9 at 3. Plaintiff appeared to
concede this in her response to the motions to dismiss, Opp. at
2, and appears to have misunderstood a notice from Midland
Mortgage, which stated that failing to bring her loan current
may result in foreclosure. See supra at 3. Giving plaintiff “the
benefit of all reasonable inferences,” Aktieselskabet AF 21.
November 2001 v. Fame Jeans, 525 F.3d 8, 17 (D.C. Cir. 2008)
(quotation marks omitted), it is not clear how her claim may
persist. The absence of a foreclosure proceeding, moreover,
renders moot the relief requested in plaintiff’s complaint.4
2.

Plaintiff Arguably Alleges a Breach of Contract.

Plaintiff’s Complaint also may raise a claim for breach of
contract. Throughout her pleadings, she references MidFirst
Bank’s alleged failure to credit her for timely mortgage
payments and its imposition of late fees. See Compl. at 2–3, 5;
Opp. at 2, 5. Plaintiff attached to her opposition various latepayment letters from 2009–2013. See Exhibits, ECF No. 17-1 at 1,
32, 62–73, 75–77, 81, 83–84, 86–88, 90, 94–95, 97–100. She
claimed that at least some of the letters were false, and seemed
4

For these reasons, even though defendant First Preference has
not appeared in this case, plaintiff’s wrongful-foreclosure
claim against it will be dismissed, sua sponte.
9

to allege that MidFirst Bank’s imposition of late fees in
connection with these letters “conflict[s] with [the] terms of a
deed set by First Preference.” Opp. at 5. Accordingly, plaintiff
arguably raises a breach-of-contract claim in her pleadings.
MidFirst Bank did not address these allegations in its motion
to dismiss, believing that the Complaint cannot be read to raise
any claim other than wrongful foreclose because it “provides no
reasonable notice as to any other cause of action.” MidFirst
Mot., ECF No. 11 at 3. The Court declines to address whether
plaintiff’s breach-of-contract allegations provide sufficient
notice of her claim, however, because this Court lacks
jurisdiction to do so. Plaintiff’s Complaint contains no federal
causes of action to support jurisdiction under 28 U.S.C. § 1331,
and there is no basis to infer that the amount in controversy is
sufficient to support jurisdiction under 28 U.S.C. § 1332.
Having dismissed plaintiff’s wrongful-foreclosure claim, the
Court is left solely with plaintiff’s apparent dispute over late
fees she claims were unlawfully imposed. Even if all late fees
mentioned in her exhibits were at issue, that would amount to
approximately $1,000.5 It thus “appear[s] to a legal certainty

5

Even if the entire amount plaintiff owes to bring her mortgage
current were at issue, that amount appears to be around $10,000.
See Compl. at 6 (asserting that plaintiff received a letter
“saying that I must pay $10,000 . . . by May 15th”); April 4,
2013 Letter from MidFirst Bank, ECF No. 17-1 at 101 (asserting
that plaintiff was in default in the amount of $8,818.64).
10

that the claim is really for less than the jurisdictional
amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289 (1938); see also Rosenboro v. Kim, 994 F.2d 13, 17
(D.C. Cir. 1993) (a court must “be very confident that a party
cannot recover the jurisdictional amount before dismissing the
case for want of jurisdiction”). For this reason, the Court
lacks jurisdiction over the putative breach-of-contract claim.6
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the motions to
dismiss defendants Kenneth Clark, Midland Mortgage, and MERS
from this case, and GRANTS IN PART AND DENIES IN PART MidFirst
Bank’s motion to dismiss. In addition, the Court, sua sponte,
DISMISSES plaintiff’s wrongful-foreclosure claim against
defendant First Preference. Finally, the Court, sua sponte,
REMANDS this case to the Superior Court of the District of
Columbia. An appropriate Order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
June 19, 2014

6

The Court declines to exercise supplemental jurisdiction over
the claim because it “has dismissed all claims over which it has
original jurisdiction.” 28 U.S.C. § 1367(c).
11