FORD et al v. SUN TRUST MORTGAGE CO. et al

Filing 32

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 10/20/2017. (lcrmc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DELORES FORD, et al.,
Plaintiffs,
v.
SUNTRUST MORTGAGE, et al.,
Defendants.

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Case No. 16-cv-2544-RMC

MEMORANDUM OPINION
Plaintiffs Delores Ford, Alice Freeman, Henry Khanagara, Bettye Tate, Deborah
Johnson, and Darrell Johnson sue Defendants, a collection of financial institutions associated
with mortgage lending. In their Complaint [Dkt. 1] (the Original Complaint or Orig. Compl.),
Plaintiffs allege a basket of both federal and state law claims, which Defendants have moved to
dismiss. In response, Plaintiffs have moved for leave to amend their Original Complaint.
Defendants have, in turn, opposed Plaintiffs’ motion, arguing that the proposed amendments to
Plaintiffs’ Complaint would be futile.
The Court addresses both Defendants’ motions to dismiss and Plaintiffs’ motion
to amend. Because Plaintiffs’ Original Complaint suffers from fatal defects of pleading, and
because the same defects remain in Plaintiffs’ proposed Amended Complaint, the Court will
deny Plaintiffs’ Motion to Amend as futile and grant Defendants’ respective Motions to Dismiss.

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I. BACKGROUND
A. Facts
Plaintiffs are all residents of Washington, D.C., who individually took out
mortgages for specific properties throughout Washington, D.C. at various times between the
years 1989 and 2008.1 Plaintiffs allege in their proposed Amended Complaint that they are “the
purchaser[s] of residential mortgage-backed securit[ies]” for their respective properties. See
Proposed Amended Complaint (Amended Complaint or Am. Compl.) [Dkt. 27-4] ¶¶ 1-5.
Defendants Suntrust Bank, Inc. (Suntrust),2 Bank of America, N.A. (Bank of America), and
Network Funding, L.P. (Network), are all mortgage underwriters who individually underwrote
Plaintiffs’ respective loans. Id. ¶¶ 12-16. Save Darrell and Deborah Johnson, no Plaintiff acted
in concert with any other Plaintiff in taking out their mortgages, and none of the Defendants counderwrote any mortgage loan.3 In other words, beyond the fact that all Plaintiffs took out
mortgages, and all Defendants are mortgage underwriters, no interrelationship or common
factual circumstance exists between them.

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Delores Ford’s mortgage closed on February 16, 2005, with a cutoff date of June 1, 2005, and a
Deed of Trust dated May 16, 2005. Am. Compl. ¶ 12. Alice Freeman’s mortgage closed on
September 27, 2007, with a cutoff date of October 31, 2007, and a Deed of Trust dated
September 27, 2007. Id. ¶ 13. Henry Kahangara’s mortgage closed on July 21, 2006, with a
cutoff date of September 1, 2006, and a Deed of Trust dated July 21, 2006. Am. Compl. ¶ 14.
Bettye Tate’s mortgage closed on April 25, 2008, with a Deed of Trust also dated April 25, 2008.
Am. Compl. ¶ 15. Darrell and Deborah Johnson’s mortgage closed on December 5, 1989, with a
Deed of Trust also dated December 5, 1989. Am. Compl. ¶ 16.
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In both the Complaint and Amended Complaint, Plaintiffs variously identify both Suntrust
Bank, Inc., and Suntrust Mortgage, Inc., a subsidiary of Suntrust Bank, as the named Defendant.
Compare Orig. Compl. ¶ 1 with id. ¶ 10; compare Am. Compl. at 1 with id. ¶ 6. The Court will
refer to both collectively as “Suntrust.”
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As a result, based on the pleadings, not every Plaintiff has claims against every Defendant.
Network Funding underwrote the mortgage for Delores Ford. Am. Compl. ¶ 12. Suntrust
underwrote the mortgages for Alice Freeman; Bettye Tate; and Darrell and Deborah Johnson. Id.
¶¶ 13, 15, 16. Bank of America underwrote the mortgage for Henry Kahangara. Id. ¶ 14.
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While Plaintiffs’ Original Complaint and Amended Complaint are both short on
specifics, the crux of their collective allegations is that Defendants, through their procedures in
repackaging and securitizing Plaintiffs’ mortgage loans, violated certain terms and warranties
contained in their agreements with Plaintiffs and made material false representations to
Plaintiffs. In neither the Original Complaint nor the Amended Complaint do Plaintiffs identify
with particularity which terms were allegedly broken by each Defendant or what specific
statements were allegedly made. Plaintiffs do allege that each Deed of Trust was notarized by a
notary with an expired commission, although it remains unclear whether those notaries were
employees or agents of Defendants, or if Defendants were aware that the commissions were
expired.
B.

Procedural History
Plaintiffs filed their Original Complaint on January 1, 2017. Defendants

submitted individual Motions to Dismiss. See Bank of America Mot. to Dismiss (Bank of
America MTD) [Dkt. 7]; Network Funding Mot. to Dismiss (Network MTD) [Dkt. 11]; Suntrust
Mot. to Dismiss (Suntrust MTD) [Dkt. 16]. Plaintiffs submitted responses to these motions, see
Pls.’ Opp’ns [Dkts. 18 and 19] and moved to amend their Complaint, see Pls.’ 1st Mot. to
Amend [Dkt. 21].
Because Plaintiffs failed to attach their proposed Amended Complaint to this first
motion, in violation of this District’s Local Rules, the Court denied Plaintiffs’ motion without
prejudice. See 6/30/2017 Minute Order. On July 22, 2017, Plaintiffs then filed a second
Opposition to Defendants’ respective Motions to Dismiss, which included an attached proposed
Amended Complaint, and which the Court therefore construes as a second Motion to Amend.
See 2d Mot. to Amend [Dkt. 27]. All three Defendants opposed this renewed Motion to Amend,
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see Bank of America Mem. in Opp’n [Dkt. 29]; Suntrust Mem. in Opp’n [Dkt. 30]; Network
Mem. in Opp’n [Dkt. 31]. To date, Plaintiffs have filed no reply.
In their Original Complaint, Plaintiffs allege three separate claims against all
Defendants: (1) Civil Penalties for False Statements Within Jurisdiction of United States, (18
U.S.C. § 1001 (2012)), in violation of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (FIRREA), 12 U.S.C. § 1833a; (2) Civil Penalties for False Statements
to Financial Institutions (18 U.S.C. § 1014), also in violation of FIRREA; and (3) Breach of
Contract. See Orig. Compl. at 14-15.4
In their Amended Complaint, Plaintiffs retain both the Original Complaint’s first
FIRREA claim and the breach of contract claim. They replace the Original Complaint’s second
FIRREA claim with a state law negligent misrepresentation claim, and add no additional claims.
See Am. Compl. at 6-7. While neither the Original Complaint nor the Amended Complaint
specifies under which state law Plaintiffs bring their breach of contract and negligent
misrepresentation claims, Plaintiffs are all residents of the District of Columbia and the events
giving rise to this suit substantially occurred in the District of Columbia. See Compl. ¶ 7.
Therefore the Court will apply D.C. law to these claims.
II. JURISDICTION
While Defendants do not challenge jurisdiction, it is incumbent on the Court to
verify its jurisdiction. Relying on their FIRREA claims, Plaintiffs claim jurisdiction under 18
U.S.C § 1331, federal question. “[T]he vast majority of cases brought under the general federal-

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It seems possible that Count Two, as written, is a scrivener’s error, as it references both parties
and facts that appear nowhere else in the Complaint and are otherwise unrelated to the
allegations. In their introduction, Plaintiffs also allege a violation of the False Claims Act, 31
U.S.C. § 3729-3730, which does not appear as a separate Count. See Compl. ¶ 1.
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question jurisdiction of the federal courts are those in which federal law creates the cause of
action.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Because Plaintiffs
challenge Defendants’ conduct under federal law, the Court may retain jurisdiction over this
case.
III. LEGAL STANDARDS
A. Motion to Dismiss
Defendants move to dismiss Plaintiffs’ Original Complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss for failure to state a
claim challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint
must be sufficient “to give a 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). Although a complaint
does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. A court must treat the complaint’s factual
allegations as true, “even if doubtful in fact,” id., but a court need not accept as true legal
conclusions set forth in a complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state
a claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. A complaint must
allege sufficient facts that would allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678-79. In deciding a motion
under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached
to the complaint as exhibits or incorporated by reference, and matters about which the court may
take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
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B. Futility of Amendment
Defendants challenge Plaintiffs’ Motion to Amend the Complaint on the grounds
that the proposed amendments would be futile. Under Federal Rule of Civil Procedure 15(a), the
court should “freely give leave” to a party to amend its pleading “when justice so requires[.]”
Fed. R. Civ. P. 15(a)(2). “The grant or denial of leave lies in the sound discretion of the district
court.” Adams v. Quattlebaum, 219 F.R.D. 195, 197 (D.D.C. 2004) (citing Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Leave to amend should be granted “[i]n the
absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
[the] amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962); accord Miller v. Gray, No. 132018, 2016 WL 8671830, at *2 (D.D.C. Dec. 16, 2016). A motion to amend a complaint is futile
if “the proposed claim would not survive a motion to dismiss.” Berry v. Coastal Int’l Sec. Inc.,
No. 12-1420, 2015 WL 13216805, *2 (D.D.C. July 24, 2015) (citing James Madison Ltd. v.
Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)).
In other words, if Plaintiffs’ proposed Amended Complaint would fail to state a
claim under the Twombly/Iqbal pleading standard, those proposed amendments would be
“futile.” Because of this, the Court applies the same standard in assessing the claims in the
proposed Amended Complaint as those in the Original Complaint.
IV. ANALYSIS
Plaintiffs’ claims can be separated into two categories, which apply equally to
both the Original and Amended Complaints: (1) Federal law claims brought under FIRREA; and
(2) state law claims for breach of contract and negligent misrepresentation—negligent
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misrepresentation appearing only in the Amended Complaint.5 As detailed below, Plaintiffs’
FIRREA claims fail because FIRREA does not provide a private right of action to individual
plaintiffs. Further, Plaintiffs’ state law claims fail because, in addition to deficiencies in
pleading, all alleged activity for which Plaintiffs provide dates occurred outside the statute of
limitations for any state law claim brought. As such, all counts in both the Original Complaint
and the Amended Complaint fail.
A. FIRREA Counts
Counts One and Two of Plaintiffs’ Original Complaint, and Count One of
Plaintiffs’ Amended Complaint—duplicative of the Original Complaint’s Count One—allege
violations of FIRREA. Based on the text of the counts, Plaintiffs allege that Defendants have
violated 18 U.S.C. § 1001 (Count 1 of both the Original and Amended Complaint) and 18 U.S.C.
§ 1014 (Count 2 of the Original Complaint), and are therefore liable for civil penalties under 12
U.S.C. § 1833a.
None of these potential bases for a suit provides a private right of action, and
therefore all fail to state a claim. 18 U.S.C. §§ 1001 and 1014, both criminal statutes, do not
provide a private civil right of action. See Abou-Hussein v. Gates, 657 F. Supp. 2d 77, 81
(D.D.C. 2009), aff’d, No. 09-5358, 2010 WL 2574084 (D.C. Cir. June 11, 2010) (“Moreover,

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In their Original Complaint, Plaintiffs also make reference to the False Claims Act. Because no
False Claims Act count is listed in any complaint, the Court does not undertake an extensive
analysis of it. If Plaintiffs did intend to bring a False Claims Act claim, however, it would fail.
Before bringing any False Claims Act claim, Plaintiffs are first obligated to notify the federal
government and provide it with an opportunity to assess the allegations and intervene if
appropriate. “A relator bringing a civil action for violations of the FCA must: (1) serve ‘a copy
of the complaint and written disclosure of substantially all material evidence and information on
the Government’; (2) file the complaint in camera and under seal; and (3) refrain from serving
the complaint on any defendant ‘until the court so orders.’” Walsh v. JPMorgan Chase Bank,
NA, 75 F. Supp. 3d 256 (D.DC. 2014)(quoting 31 U.S.C. § 3730(b)(2)). Plaintiffs have provided
no indication they have followed such procedures here.
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plaintiff’s claims of fraud or false statements under 18 U.S.C. § 1001 and conspiracy under 18
U.S.C. § 241 are also barred because these criminal statutes do not expressly create a private
right of action upon which plaintiff may sue defendants.”); see also Prunte v. Universal Music
Grp., 484 F. Supp. 2d 32, 42 (D.D.C. 2007) (“[I]n the criminal context, the Supreme Court has
refused to imply a private right of action in ‘a bare criminal statute.’” (quoting Cort v. Ash, 422
U.S. 66, 79-80 (1975)). While Plaintiffs allege in all FIRREA-based counts that Defendants are
liable for civil penalties under 12 U.S.C. § 1833a, any action under that provision must be
brought by the government. See 12 U.S.C. § 1833a(e) (“ A civil action to recover a civil penalty
under this section shall be commenced by the Attorney General.”). All Plaintiffs’ counts
predicated on FIRREA must therefore fail. Counts 1 and 2 of the Original Complaint will
therefore be dismissed, and Count 1 of Plaintiffs’ Amended Complaint is futile.
B. State Law Counts
Count 3 of the Original Complaint alleges breach of contract, as does Count 2 of
the Amended Complaint. Count 3 of the Amended Complaint alleges negligent
misrepresentation. To state a claim for breach of contract under D.C. law, Plaintiffs must show
“(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3)
a breach of that duty; and (4) damages caused by breach.” Thompson v. HSBC Bank USA, N.A.,
850 F. Supp. 2d 269, 275 (D.D.C. 2012). The statute of limitations for such a claim is three
years. D.C. Code § 12-301(7).
To state a claim for negligent misrepresentation under D.C. law, “the plaintiff
must show that the defendant made a false statement or omitted a fact that he [or she] had a duty
to disclose, that the false statement or omission involved a material issue, and that the plaintiff
reasonably relied upon the false statement or omission to [his or her] detriment.” Jefferson v.
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Collins, 905 F. Supp. 2d 269, 286 (D.D.C. 2012); see also Redmond v. State Farm Ins. Co., 728
A.2d 1202, 1207 (D.C.1999). The statute of limitations for negligent misrepresentation claims in
D.C. is also three years. D.C. Code § 12-301(8); see Clouser v. Temporaries, Inc., 730 F. Supp.
1127, 1131 (D.D.C. 1989).
Plaintiffs’ pleadings suffer from a serious lack of specificity as to the state law
counts. While Plaintiffs recount the basic facts of the mortgages that form the basis for their suit,
see Am. Compl. ¶¶ 12-17, Plaintiffs fail to provide the Court with fundamental facts underlying
their respective claims. Plaintiffs do not identify specific contract terms Defendants are alleged
to have breached nor specific misrepresentations Defendants allegedly made. Plaintiffs speak of
Defendants’ actions collectively, but do not allege that any Defendant acted in concert with one
another. See, e.g., id. ¶ 17. Plaintiffs’ pleadings fall woefully short of the standard necessary to
meet the burden of presenting “plausible” claims. Twombly, 550 U.S. at 570.
Even if Plaintiffs could provide more factual detail, however, their state law
claims would still fail because the latest date any activity is alleged to occur, in any context, is
2008. See id. ¶¶ 12-16. This falls far beyond D.C.’s three-year statute of limitations for both
breach of contract and negligent misrepresentation claims for a lawsuit filed in 2017.
Defendants raised this issue in their original Motions to Dismiss, see, e.g., Network MTD at 6,
and Plaintiffs took no steps to address it in the Amended Complaint. Because Plaintiffs’ claims
are time-barred under D.C. law, and because they otherwise fail to meet their pleading
obligations, Plaintiffs have failed to state a claim on the state law counts in both their Original
Complaint and proposed Amended Complaint.

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CONCLUSION
Because accepting Plaintiffs’ proposed Amended Complaint would be futile for
failure on all counts to state a claim, the Court will deny Plaintiffs’ Motion to Amend the
Complaint. Further, because all counts in Plaintiffs’ Original Complaint fail to state a claim, the
Court will grant Defendants’ respective Motions to Dismiss, dismissing all counts against all
Defendants. A memorializing order accompanies this Memorandum Opinion.

Date: October 20, 2017

/s/
ROSEMARY M. COLLYER
United States District Judge

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