Akinkoye v. Wells Fargo Home Mortgage et al

Filing 24

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/12/11. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AKIN AKINKOYE
:
v.

:

Civil Action No. DKC 11-2336

:
WELLS FARGO HOME MORTGAGE,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for review in this diversity
case are two motions:

a motion to dismiss filed by Defendants

(ECF No. 17), and an amended motion for preliminary injunction
filed by Plaintiff (ECF No. 9).

The relevant issues have been

briefed, and the court now rules, no hearing deemed necessary.
Local Rule 105.6.
dismiss

will

be

For the following reasons, the motion to
granted,

and

the

motion

for

preliminary

injunction will be denied.
I.

Background
A.

Factual Background

The following facts are largely taken or inferred from the
complaint.

Some

of

these

facts

are

supplemented

with

information contained in the attachments to Defendants’ motion
to dismiss.1

1

“[W]hen a defendant attaches a document to its motion to
dismiss, ‘a court may consider it in determining whether to
dismiss the complaint [if] it was integral to and explicitly

In 2004, Plaintiff Akin Akinkoye purchased property (“the
Property”) located in Gaithersburg, Maryland, which was secured
by

a

Deed

mortgagor.”
Home

of

Akinkoye’s

(ECF No. 4, at 3).

Mortgage

servicing

Trust.

the

(“Wells
mortgage

wife

was

the

“original

In 2006, Defendant Wells Fargo

Fargo”)

assumed

loan.2

In

July

responsibility
and

August

for
2007,

Akinkoye’s wife, Olakunle Ogundeji, refinanced the mortgage loan
by executing a home equity line of credit for $50,000.00 and a
fixed rate note for $400,000.00 along with two corresponding
Deeds of Trust (“the Loan”).
In 2009, Ogundeji passed away.

Around this same time,

Akinkoye “began to experience financial hardship . . . and began
to struggle to meet his financial obligations.”
2).

(ECF No. 4, at

At some unspecified time after his wife died, Akinkoye

requested an “Assumption of Mortgage” from Defendants to take
over the Loan, but Defendants failed to process the necessary
paperwork.

As

a

mortgage payments.”

result,

Akinkoye

could

not

“resume

making

(Id. at 3).

relied on in the complaint and [if] the plaintiffs do not
challenge its authenticity.’”
Am. Chiropractic Ass’n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (quoting
Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)).
2

The complaint alleges that Defendant Federal National
Mortgage Association (“Fannie Mae”) also serviced the mortgage
loan.
It appears from other allegations, however, that Fannie
Mae was either the lender or the holder of the mortgage loan.
2

Akinkoye then requested assistance under the federal Home
Affordable Modification Program (“HAMP”).
by

offering

Defendants’

a

loan

requests

modification.
for

Defendants responded

Akinkoye

documentation

to

complied
make

the

with
loan

modification permanent, and he began to make payments under the
“Trial Plan.”
of

the

(Id. at 4, 10).

documents

submitted

Defendants, however, lost some
by

Akinkoye.

They

therefore

cancelled the loan modification plan.
On January 14, 2010, the substitute trustee for the Loan
initiated a foreclosure action on the Property on behalf of
Fannie Mae.
B.

Procedural Background

On July 25, 2011, Akinkoye filed a complaint against Wells
Fargo and Fannie Mae in the Circuit Court for Montgomery County,
Maryland.

The complaint contains three counts:

denial

a

of

HAMP

loan

modification;

(2)

(1) wrongful

violation

of

the

Maryland Consumer Protection Act (“MCPA”); and (3) constructive
fraud.

(ECF No. 4).3

After service, Defendants timely removed to this court on
the

basis

of

diversity

of

citizenship.

(ECF

No.

1).

The

pending amended motion for preliminary injunction (ECF No. 9)

3

The constructive fraud claim is styled as Count Four in
the complaint, even though there are only three counts.
For
consistency, this opinion will also refer to the constructive
fraud claim as Count Four.
3

was an open motion that was transferred to this court when the
case was removed.4
6, 2011.

Defendants opposed that motion on September

(ECF No. 16).

Akinkoye did not reply.

Also on September 6, 2011, Defendants filed the pending
motion to dismiss.

(ECF No. 17).

After Akinkoye failed to

respond in a timely manner, on September 30, 2011, the court
notified the parties of his delinquency and requested a joint
status report.

That same day, Akinkoye requested an extension

of

was

time,

which

Defendants’
October

19,

motion

granted.
on

2011,

Akinkoye

October

6,

Defendants

finally

2011.

replied.

(ECF
(ECF

responded

to

No.

21).

On

No.

22).

On

November 7, 2011, Akinkoye filed a surreply (ECF No. 23), though
he failed to request leave to do so as required by Local Rule
105.2.

Defendants

did

not

object,

however,

so

Akinkoye’s

surreply will be accepted for consideration.
II.

Standard of Review
The

purpose

of

a

motion

to

dismiss

pursuant

12(b)(6) is to test the sufficiency of the complaint.

to

Rule

Presley

v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

A

plaintiff’s complaint need only satisfy the standard of Rule

4

On August 31, 2011, a telephone conference was held during
which Akinkoye’s counsel stated he would report back to the
court by September 6, 2011, as to whether he would request a
hearing on the preliminary injunction motion. That date passed
without any word from Akinkoye’s counsel.
4

8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

Fed.R.Civ.P.

8(a)(2).

requires

Nevertheless,

“Rule

8(a)(2)

still

a

‘showing,’ rather than a blanket assertion, of entitlement to
relief.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3

(2007).

That showing must consist of more than “a formulaic

recitation

of

the

elements

of

a

cause

of

action”

assertion[s] devoid of further factual enhancement.”
v.

Iqbal,

129

S.Ct.

1937,

1949

(2009)

(internal

or

“naked

Ashcroft
citations

omitted).
At this stage, the court must consider all well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
266, 268 (1994), and must construe all factual allegations in
the

light

most

favorable

to

the

plaintiff,

see

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, the court need

not accept unsupported legal allegations.

Revene v. Charles

Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

Nor must it

agree

allegations,

with

legal

conclusions

couched

as

factual

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), or conclusory
factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
5

Cir. 2009).

“[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the
complaint has alleged, but it has not ‘show[n] . . . that the
pleader

is

entitled

to

relief.’”

(quoting Fed.R.Civ.P. 8(a)(2)).

Iqbal,

129

S.Ct.

at

1950

Thus, “[d]etermining whether a

complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.”

Id.

III. Analysis
A.

Standing

Defendants

begin

by

challenging

Akinkoye’s

standing

bring any of the claims asserted in the complaint.

to

“Article III

of the Constitution confines the federal courts to adjudicating
actual ‘cases’ and ‘controversies.’”
737,

750

(1984).

An

essential

Allen v. Wright, 468 U.S.

component

of

the

“case

or

controversy” requirement is that “a litigant have ‘standing’ to
challenge the action sought to be adjudicated in the lawsuit.”
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 471 (1982); see also Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

To satisfy

the requirement for constitutional standing, a plaintiff must
demonstrate that:
(1) [he] has suffered an “injury in fact”
that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or
6

hypothetical; (2) the injury is fairly
traceable to the challenged action of the
defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will
be redressed by a favorable decision.
Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000)).

“[E]ach element of standing ‘must be

supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the
litigation.’”

Equal

Rights

Ctr.

v.

Equity

Residential,

---

F.Supp.2d ---, No. CCB–06–1060, 2011 WL 3022254, at *7 (D.Md.
July

22,

2011)

(quoting

Lujan,

504

U.S.

at

561).

“At

the

pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice, for on a motion to
dismiss

[courts]

presum[e]

that

general

allegations

embrace

those specific facts that are necessary to support the claim.”
Id.

(alterations

in

original)

(internal

quotations

omitted)

(citing Lujan, 504 U.S. at 561).
Here,

all

Defendants’
modification.

of

Akinkoye’s

alleged

claims

wrongful

appear

denial

of

to
the

arise
HAMP

at

of

loan

Count One is appropriately enough styled as a

claim for “Wrongful Denial of HAMP Loan Modification.”
4,

out

2).

misrepresentations

Count
and

Two

alleges

material
7

that

omissions

(ECF No.

Defendants

made

regarding

their

intentions

to

application.

review
(Id.

¶¶

Akinkoye’s
35-38).

And

HAMP

loan

Count

Four

modification
alleges

that

Defendants breached a duty to review fairly Akinkoye’s HAMP loan
modification application.

(Id. ¶¶ 42-47).

To show standing,

therefore, it would seem that Akinkoye’s alleged injury must be
related to the Loan itself.
In

this

regard,

Defendants

assert

that

Akinkoye

“cannot

allege that he has suffered damages or that he has any actual
legal stake in the matter.”

(ECF No. 17-1, at 6).

Defendants

attach the loan documents that form the basis of Akinkoye’s
claims and point out that “Ms. Ogundeji was the sole owner of
the Property and the only obligor under the Note and Deed of
Trust.”

(Id.).

Akinkoye

contests

the

ownership

issue

by

stating that he obtained full ownership of the Property when his
wife died.

(ECF No. 21, at 5).5

He does not contest the fact

that he was not an obligor on the Loan documents.

Indeed, those

documents clearly show only Ogundeji’s signature and no others.
(ECF Nos. 17-2 to -5).

5

As will be discussed, the ownership of the Property is
ultimately of no consequence in resolving the motion to dismiss.
Even if it were, however, Akinkoye has not actually included any
allegations in the complaint that would suggest that he obtained
ownership of the Property.
He alleges this fact for the first
time in his opposition. (ECF No. 21, at 5). Hence, this fact
cannot be considered here.
See Zachair, Ltd. v. Driggs, 965
F.Supp. 741, 748 n.4 (D.Md. 1997) (holding that facts contained
in an opposition to a motion to dismiss but not within the
complaint itself cannot be considered).
8

Akinkoye’s inability to allege that he was a party to the
Loan documents at first appears to be fatal to his entire case.
In Barone v. Chase Home Finance LLC, No. CV 11–08016–PCT–FJM,
2011 WL 3665424 (D.Ariz. Aug. 22, 2011), a plaintiff who owned
title to a property but who was not a signatory on the note or
deed of trust securing the property lacked standing to pursue
any claims “aris[ing] out of a refusal to modify the note and
deed of trust.”
presented

with

Id. at *2.
claims

Significantly, the Barone court was

of

fraud

in

the

inducement,

consumer

fraud, breach of duty of good faith and fair dealing, and unjust
enrichment.

The

Barone

court

nonetheless

looked

at

the

fundamental nature of the claims and focused on the fact that
“there

[was]

no

allegation

obligor or trustor.”

Id.

that

[the

plaintiff]

became

the

Neither the plaintiff’s ownership of

the property nor the fact that her claims sounded ostensibly in
fraud mattered; because the plaintiff was neither an obligor nor
a trustor to the loan, she lacked standing to enforce claims
related to a loan modification.

See id. at *1-2.

Akinkoye actually faces a second hurdle regarding standing:
even if he were a signatory to the Loan documents, he likely
would

still

lack

standing.

Courts

across

the

country

have

consistently held that borrowers lack standing to bring claims
under

HAMP.

See

Edwards

v.

Aurora

Loan

Servs.,

F.Supp.2d 144, 152 (D.D.C. 2011) (collecting cases).
9

LLC,

791

Indeed,

“Congress did not create a private right of action to enforce
the HAMP guidelines.”

See Allen v. CitiMortgage, Inc., No. CCB–

10–2740, 2011 WL 3425665, at *8 (D.Md. Aug. 4, 2011).
Presumably

in

recognition

of

these

obstacles,

Akinkoye

argues that he “does not seek to enforce HAMP directly, but
rather

seeks

to

enforce

the

contracts

permanent HAMP modification.”

that

promise

(ECF No. 21, at 7).

him

a

In his

opposition, Akinkoye refers to a Trial Period Plan (“TPP”) under
which,

in

exchange

for

Akinkoye’s

compliance

with

the

TPP’s

terms, Defendants apparently “agreed that the loan modification
would become permanent at the end of the three months trial
period.”

(Id. at 3).

This argument is supported (somewhat

tenuously) by the complaint.

(See ECF No. 4 ¶¶ 17, 45, 46).

Defendants counter that a TPP “was never offered to [Akinkoye]
or

executed

however,

by

anyone.”

Akinkoye’s

At

this

allegations

must

stage
be

of

the

accepted

pleadings,
as

true.6

Therefore, to the extent Akinkoye’s claims arise out of a TPP to
which he was a party, Akinkoye may indeed have standing to bring
his claims.
(holding

that

See CitiMortgage, Inc., 2011 WL 3425665, at *3-4
a

plaintiff

who

was

not

a

signatory

to

a

promissory note securing a mortgage nevertheless had standing to

6

The court notes, however, that Akinkoye concedes he “is
not in possession of the TPP agreement.”
(ECF No. 21, at 3).
Akinkoye offers no explanation for why this is so.
10

bring a claim arising out of a TPP agreement he was alleged to
have been a party to); see also Stovall v. SunTrust Mortg.,
Inc., No. RDB–10–2836, 2011 WL 4402680, at *11 (Sept. 20, 2011)
(agreeing that a plaintiff’s alleged TPP agreement potentially
supports a breach of contract claim).
At
pursuant

most,
to

reasonably
cannot

be

Akinkoye

Counts

be

Two

construed

said

about

may

have

standing

and

Four

because

as

arising

from

Count

One.

to
those

the

assert
claims

TPP.

Akinkoye

claims
could

The

attempts

same
to

characterize his Count One claim as one in which “[i]t is the
contract — not HAMP — that Plaintiff[] seek[s] to enforce” (ECF
No. 21, at 7), but this is simply implausible based on the
allegations in the complaint.

First, Count One itself is styled

as “Wrongful Denial of HAMP Loan Modification,” not “Breach of
Contract.”

Second, the ad damnum clause in Count One strongly

suggests that what Akinkoye seeks here is enforcement of HAMP
itself.

(ECF No. 4 ¶ 28).7

Because Count One seeks enforcement

of HAMP generally, Akinkoye lacks standing to bring this claim.
Accordingly, Count One will be dismissed.

7

For
example,
Akinkoye
seeks
a
declaration
“that
Defendant[s’] conduct is a violation of [the] Home Affordable
Modification Program.” (Id.).
11

B.

Count Two:

Defendants

MCPA

argue

that

even

assuming

that

Akinkoye

has

standing to bring a claim under the MCPA, he fails to plead that
claim with particularity as required by Rule 9(b).

Akinkoye

responds that the complaint conforms to Rule 9(b)’s pleading
requirements.
“Because

the

.

.

.

MCPA

claim

sounds

in

fraud,

it

is

subject to the heightened pleading standards of Federal Rule of
Civil Procedure 9(b).”
*9.

CitiMortgage, Inc., 2011 WL 3425665, at

Rule 9(b) states that “in alleging a fraud or mistake, a

party

must

state

with

particularity

constituting the fraud or mistake.
and

other

conditions

generally.”

Such

of

a

circumstances

Malice, intent, knowledge,

person’s

allegations

the

mind

typically

may

be

“include

alleged

the

‘time,

place and contents of the false representation, as well as the
identity of the person making the misrepresentation and what
[was] obtained thereby.’”

Superior Bank, F.S.B. v. Tandem Nat’l

Mortg., Inc., 197 F.Supp.2d 298, 313–14 (D.Md. 2000) (quoting
Windsor Assocs., Inc. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md.
1983)).
In

cases

involving

concealment

or

omissions

of

material

facts, however, meeting Rule 9(b)’s particularity requirement
will

likely

Williamson

take

Tobacco

a

different

Corp.,

973

form.

See

Shaw

F.Supp.

539,

552

12

v.

Brown

(D.Md.

&

1997)

(recognizing that an omission likely “cannot be described in
terms of the time, place, and contents of the misrepresentation
or

the

identity

of

the

person

(internal quotations omitted)).

making

the

misrepresentation”

A plaintiff who alleges fraud

with regard to nondisclosure of a material fact must nonetheless
show that the defendant owed a duty of care to the plaintiff.
Id. (“[S]ilence as to a material fact (nondisclosure), without
an independent disclosure duty, usually does not give rise to an
action for fraud . . . .”).

“[L]ack of compliance with Rule

9(b)’s pleading requirements is treated as a failure to state a
claim under Rule 12(b)(6).”

Harrison v. Westinghouse Savannah

River Co., 176 F.3d 776, 783 n.5 (4th Cir. 1999).
Here, even a generous reading of Akinkoye’s complaint leads
to the conclusion that he has failed to plead a fraud claim
under the MCPA with sufficient particularity.

At best, the

complaint reads:
35. The Defendant has committed unfair or
deceptive trade practices by:
(i) Making a
false
or
misleading
oral
or
written
statement(s) or other representation of any
kind which had the capacity, tendency, or
effect
of
deceiving
or
misleading
the
Plaintiff; and (ii) failing to state a
material fact and the failure deceived or
tended to deceive the Plaintiffs . . . .
. . . .
37. Despite meeting all of the eligibility
requirements,
the
Defendant
baselessly
denied the Plaintiff’s loan modification.
13

38. The Defendant’s repeated promises to
review the loan modification application
were a mere ploy to show the appearance of
compliance with HAMP, when in reality the
Defendant never intended nor complied with
HAMP requirements.
39. The Plaintiff has been damaged by the
Defendant’s false and misleading statements.
. . .
(ECF No. 4 ¶¶ 35, 37-39).

This is insufficient under Rule 9(b).

Akinkoye fails to allege the bare minimum of facts; there is no
indication

of

the

time,

misrepresentations.
Defendants

is

It

implicated

place,
is
by

also

or

content

not

clear

these

of

which

allegations.

the
of

alleged
the

two

Furthermore,

Akinkoye fails to set forth facts supporting his allegation of a
material omission on the part of Defendants.

Nowhere in the

complaint does he identify what information Defendants had a
duty to disclose — or that Defendants had a duty to disclose any
information at all.

Akinkoye has not met the requirements of

Rule 9(b), and Count Two must therefore by dismissed.8
C.

Count Four:

Assuming

Constructive Fraud

standing,

Defendants

contend

that

although

the

complaint alleges that Defendants had a “legal and equitable”
duty to provide a loan modification to Akinkoye and to conduct a

8

Because Defendants’ motion will be granted as to Count Two
based on Rule 9(b), their argument regarding preemption need not
be addressed at this time.
14

“fair

and

accurate

review”

of

Akinkoye’s

loan

modification

application (ECF No. 4 ¶¶ 42-43), as a matter of law Defendants
did not owe any such duty to Akinkoye under HAMP.

Akinkoye does

not respond to Defendants’ motion as to this final count in
either

his

opposition

or

his

surreply.

In

their

reply,

Defendants note Akinkoye’s failure to address their argument on
this issue.

By his failure to address Defendants’ arguments in

his opposition to the motion to dismiss, Akinkoye has likely
abandoned

this

claim.

See

Ferdinand-Davenport

v.

Children’s

Guild, 742 F.Supp.2d 772, 783 (D.Md. 2010) (citing Mentch v. E.
Sav. Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md. 1997)); Schalk v.
Associated Anesthesiology Practice, 316 F.Supp.2d 244, 250 n.8
(D.Md. 2004).
Even if Akinkoye did not intend to abandon his constructive
fraud claim, Defendants’ motion would still be granted on this
count.

In Maryland, constructive fraud “is a breach of legal or

equitable duty which, irrespective of the moral guilt of the
fraud

feasor,

tendency

to

confidence,

the

law

deceive
or

to

declares

others,
injure

Md.App.

398,

fraudulent

to

violate

public
406

because

public

interests.”

(1979)

(internal

or

of

its

private

Scheve

v.

McPherson,

44

quotations

omitted).

“Neither actual dishonesty of purpose nor intent to

deceive is an essential element of constructive fraud.”
(internal quotations omitted).
15

Id.

To the extent Akinkoye attempts to maintain a constructive
fraud claim by alleging that Defendants owed him a duty of care
arising out of the TPP, he must identify a duty separate from
that imposed by the putative TPP contract itself.

In Maryland,

a “contractual obligation, by itself, does not create a tort
duty.

Instead, the duty giving rise to a tort action must have

some independent basis.”
Md.

639,

654

(1999)

Jones v. Hyatt Ins. Agency, Inc., 356

(internal

quotations

omitted);

see

also

Silver Hill Station Ltd. P’ship v. HSA/Wexford Bancgroup, LLC,
158 F.Supp.2d 631, 642-43 (D.Md. 2001) (“For a fiduciary duty to
exist,

‘special

circumstances

over

and

above

any

contractual

obligations’ must exist.” (quoting Parker v. Columbia Bank, 91
Md.App.

346,

369

(1992)).

The

bare

fact

that

Akinkoye

and

Defendants may have been in a borrower/lender relationship does
not

impose

any

special

tort

duty.

See

Gephardt

v.

Mortg.

Consultants, Inc., No. JFM–10–1537, 2011 WL 531976, at *5 (D.Md.
Feb. 8, 2011) (“It is well established under Maryland law that,
absent special circumstances, ‘the relationship of a bank to its
customer

in

a

loan

transaction

is

ordinarily

a

contractual

relationship between debtor and creditor, and is not fiduciary
in

nature.’”

(quoting

Yousef

Md.App. 527, 536 (1990))).9

9

In

Parker,

the

Court

v.

Trustbank

Sav.,

F.S.B.,

81

In general, “[c]ourts have been

of
16

Special

Appeals

of

Maryland

exceedingly reluctant to find special circumstances sufficient
to transform an ordinary contractual relationship between a bank
and its customer into a fiduciary relationship or to impose any
duties on the bank not found in the loan agreement.”

Parker, 91

Md.App. at 369.
Here, the complaint does not allege any facts describing
special

circumstances

Defendants

owed

that

Akinkoye

a

would

lead

duty

above

allegedly agreed upon in the TPP.

to

a

and

conclusion
beyond

what

that
was

If Akinkoye believes that a

duty of care related to the TPP was breached, he may have a
straightforward breach of contract claim.
does not have a constructive fraud claim.

But, as alleged, he
Accordingly, this

count will be dismissed.
D.
“A

Preliminary Injunction
preliminary

injunction

is

an

extraordinary

remedy.”

Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d

adopted the reasoning of Tokarz v. Frontier Federal Savings &
Loan Ass’n, 656 P.2d 1089 (Wash.Ct.App. 1982), which provided
examples of special circumstances that would give rise to a
fiduciary relationship above and beyond a contract in the
context of a residential construction loan.
Those examples
described situations where the lender “(1) took on any extra
services on behalf of [the borrowers] other than furnishing the
money for construction of a home; (2) received any greater
economic benefit from the transaction other than the normal
mortgage; (3) exercised extensive control over the construction;
or (4) was asked by [the borrowers] if there were any lien
actions pending.”
Tokarz, 656 P.2d at 1094.
Here, Akinkoye
does not allege any analogous circumstances to support his
constructive fraud claim.
17

342, 345 (4th Cir. 2009), vacated on other grounds by 130 S.Ct.
2371 (2010), and reissued in part, 607 F.3d 355 (4th Cir. 2010).
To obtain a preliminary injunction, a plaintiff must establish
four elements:

“[1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his

favor,

and

interest.”

[4]

that

an

injunction

in

the

public

Id. at 346 (quoting Winter v. Natural Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008)).
must be satisfied.
Here,

is

in

All four requirements

Id.

granting

Defendants’

motion

to

dismiss,

it

is

apparent that Akinkoye has failed to show that he is likely to
succeed on the merits.

See Dickeyville Ass’n v. U.S. Dep’t of

Hous.

636

F.Supp.

request

for

&

Therefore,

Urban

Dev.,

Akinkoye’s

362,

368

preliminary

(D.Md.
relief

1986).
will

be

denied.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendants will be granted, and the motion filed by Plaintiff
for preliminary injunction will be denied.

A separate order

will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
18