Evans v. Beneficial Financial I, Inc. et al

Filing 31

MEMORANDUM OPINION (c/m to Plaintiff 2/9/15 sat). Signed by Judge Deborah K. Chasanow on 2/9/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
RONDA LYNNETTE SHORT EVANS
:
v.

:

Civil Action No. DKC 14-1994

:
BENEFICIAL FINANCIAL I, INC.,
et al.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this consumer
lending

case

are

a

motion

to

dismiss

filed

by

Defendant

Beneficial Financial I, Inc. (“Beneficial” or “Defendant”) (ECF
No. 20), and a motion for leave to file an amended complaint
filed by pro se Plaintiff Ronda Lynette Short Evans (“Plaintiff”
or

“Ms.

briefed,

Evans”)
and

necessary.

(ECF

the
Local

No.

court
Rule

28).

now

The

rules,

105.6.

issues
no

For

have

hearing

the

been

being

following

fully
deemed

reasons,

Defendant’s motion to dismiss will be granted, and Plaintiff’s
motion for leave to file an amended complaint will be denied.
I.

Background
A.

Factual Background

On December 27, 2005, Plaintiff obtained a home mortgage
refinance loan from Beneficial Mortgage Company of Maryland1 in

1

Plaintiff entered the original loan agreement with
Beneficial Mortgage Company of Maryland. The parties agree that
Beneficial Financial I Inc. is the successor in interest to

the amount of $393,997.28, secured by a Deed of Trust against
property located at 503 Cretia Place, Upper Marlboro, Maryland
(“the Property”).2

(See ECF No. 2-1 & ECF No. 20-2).

The loan

was used to satisfy a preexisting mortgage loan on the Property;
a

Certificate

of

Satisfaction

for

the

preexisting

recorded on February 16, 2006.

(See ECF No. 20-3).

defaulted

December

on

the

loan

and

on

16,

2013,

loan

was

Plaintiff
Beneficial

initiated a foreclosure action against Plaintiff in the Circuit
Court for Prince George’s County.3

(See ECF No. 20-5).

On December 20, 2013, Beneficial sold Plaintiff’s loan to
LSF8 Master Participation Trust.

A “Notice of Sale of Ownership

of Mortgage Loan,” dated January 9, 2014, was sent to Plaintiff,
informing

her

Participation

that

the

loan

was

sold

Trust

and

that

Caliber

to
Home

LSF8

Master

Loans,

Inc.

Beneficial Mortgage Company of Maryland by way of merger.
ECF No. 2 ¶ 3 & ECF No. 20-1, at 3).

(See

2

Plaintiff attaches as an exhibit to her complaint the
December 27, 2005 loan agreement, but not the Deed of Trust. In
her complaint, however, Plaintiff asserts that “[t]he Deed of
Trust is recorded in the land records of Prince George’s County,
Maryland.” (ECF No. 2 ¶ 8). Defendant attaches a copy of the
Deed of Trust as an exhibit to its motion to dismiss, and it may
be considered because it is a matter of public record and is
incorporated by reference in the complaint.
See Terry v.
Mortgage Electronic Registration Systems, Inc., Civ. Action No.
8:13-cv-00773-AW, 2013 WL 1832376, at *2 n.1 (D.Md. Apr. 30,
2013).
3

Plaintiff states in her complaint that her former
husband’s signature was on the Deed of Trust, but he has been
“[q]uit [c]laim [d]eeded off [] the Deed of Trust.” (EC No. 2 ¶
8).
2

(“Caliber”) became the new loan servicer.

(ECF No. 2-2).

On

January 16, 2014, Beneficial mailed Plaintiff its own notice,
informing her to send to Caliber all payments due on or after
February 1, 2014.
sent

a

letter

(ECF No. 2-5).
to

Plaintiff

On February 12, 2014, Caliber

titled,

“Important

Regarding the Servicing of Your Mortgage Loan.”
at 1).

Information

(ECF No. 2-6,

The letter confirmed that the servicing of Plaintiff’s

mortgage loan was transferred from Beneficial to Caliber, and as
of February 1, 2014, Plaintiff should begin sending mortgage
loan payments to Caliber.

(Id. at 1-2).

On February 18, 2014,

Caliber sent a letter to Plaintiff informing her that as of
February 13, 2014, she had an outstanding debt of $555,013.76 on
her mortgage.
B.

(ECF No. 2-7).

Procedural History

On May 7, 2014, Plaintiff filed a complaint in the District
Court

of

Defendants
Loans,

Maryland
Fisher

Inc.

Plaintiff

for
Law

Prince
Group,

(“Caliber”),

asserted

PLLC

and

breach

George’s

County,

(“Fisher”),

Beneficial.
of

contract

misrepresentation claims against Beneficial.
15).

naming

Caliber
(ECF

and

No.

as
Home
1).

fraudulent

(ECF No. 2, at 13-

Plaintiff further alleged that Caliber and Fisher each

violated the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692 et seq.

(ECF No. 2, at 15-17).

On June 20, 2014,

the three defendants jointly filed a notice of removal, citing
3

diversity jurisdiction as the jurisdictional basis.4

(ECF No.

1).
Defendants Caliber and Fisher each answered the complaint.5
(ECF Nos. 12 & 15).
on July 25, 2014.

Beneficial moved to dismiss the complaint

(ECF No. 20).

Plaintiff was provided with a

Roseboro notice (ECF No. 21), which advised her of the pendency
of the motion to dismiss and her entitlement to respond within
seventeen (17) days from the date of the letter. Roseboro v.
Garrison,

528

F.2d

309,

310

(4th

Cir.1975)

(holding

pro

se

plaintiffs should be advised of their right to file responsive
material to a motion for summary judgment).

Plaintiff opposed

the motion (ECF No. 24), and Beneficial replied (ECF No. 25).
On September 22, 2014, Plaintiff moved for leave to amend
her complaint.

(ECF No. 28)

Beneficial opposed the motion for

leave to amend, (ECF No. 29), and Plaintiff replied (ECF No.
30).

4

At the same time that Plaintiff filed her action in state
court, she filed an identical complaint in this court. Evans v.
Beneficial Financial I Inc. et al., No. 14-1515 (D.Md. July 16,
2014). Plaintiff acknowledged that the actions “are identical,
containing the same assertions, parties, and legal claims.” On
July 16, 2014, this Court issued an order to consolidate,
informing the parties that Civil Action No. DKC 14-1994 will
proceed, and Civil Action No. 14-1515 will be dismissed.
(ECF
No. 17).
Beneficial states in its motion to dismiss that it
seeks dismissal of all claims against it in both actions, but
Civil Action No. 14-1515 already has been closed.
5

Plaintiff filed a response to Caliber’s answer.
22& 23).
4

(ECF Nos.

II.

Analysis
A.

Defendant’s Motion to Dismiss

1.

Statute of Limitations

Beneficial argues that Plaintiff’s breach of contract and
fraudulent

misrepresentation

claims

are

barred

by

Maryland’s

three-year statute of limitations for common law claims.

(ECF

No. 20-1, at 10-11).
The statute of limitations is an affirmative defense that a
party typically must raise in a pleading under Fed.R.Civ.P. 8(c)
and is not usually an appropriate ground for dismissal.

See

Eniola v. Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md.2002);
Gray

v.

Mettis,

203

F.Supp.2d

426,

428

(D.Md.2002).

Nevertheless, dismissal may be proper “when the face of the
complaint

clearly

reveals

affirmative defense.”

the

existence

of

a

meritorious

Brooks v. City of Winston–Salem, N.C., 85

F.3d 178, 181 (4th Cir.1996); see also Rice v. PNC Bank, N.A.,
No.

PJM

10–07,

2010

WL

1711496,

at

*3

(D.Md.

Apr.26,

2010)

(dismissing as untimely claims under the Truth in Lending Act on
motion to dismiss).

A plaintiff is under no obligation to plead

facts in a complaint to show the timeliness of her claims.

The

burden is on the party asserting the defense to plead and prove
it.

See Newell v. Richards, 323 Md. 717, 725, 594 A.2d 1152

(1991)

(“As

a

general

rule,

the

party

raising

a

statute

of

limitations defense has the burden of proving that the cause of
5

action accrued prior to the statutory time limit for filing
suit.”).
Plaintiff asserts in the complaint that Beneficial breached
the

December

27,

2005

loan

agreement

and

made

fraudulent

misrepresentations in connection with the loan agreement.
No. 20-1, at 11).

(ECF

Beneficial argues that the loan agreement was

executed on December 27, 2005, thus Plaintiff had until December
27,

2008

to

file

the

breach

of

contract

and

fraudulent

misrepresentation claims within Maryland’s three-year statute of
limitations.
Beneficial

(Id.).

Plaintiff responds that her agreement with

constitutes

a

“specialty”

under

Maryland

law,

and

therefore a twelve-year statute of limitations applies to her
breach of contract and fraud claims under Md. Code, Courts and
Judicial Proceedings § 5-102.

(ECF No. 24-1, at 1-2).

In Maryland, the default statute of limitations for civil
actions is three years “unless another provision of the Code
provides a different period of time.”
Jud. Proc. § 5-101.

Md. Code Ann., Cts. &

C.J. § 5-102(a) provides for a twelve-year

statute of limitations in regard to actions “on” specialties,
including promissory notes and contracts under seal.

See also

Willis v. Bank of America Corp., Civ. Action No. ELH-13-02615,
2014

WL

3829520,

at

*13

(D.Md.

Aug.

1,

2014).

Hollander explained in Willis:
In determining whether § 5-102’s twelve-year
6

As

Judge

limitations
period
is
available
to
plaintiff, a two-step inquiry is required:
(1) Is the contract a specialty? (2) Is the
cause
of
action
“on”
the
specialty?
Wellington Co., Inc. Profit Shar. Plan and
Trust v. Shakiba, 180 Md.App. 576 (2008).
“‘Whether a particular action is on a sealed
instrument must depend on the character of
the action; in order to be within the
statute relating to sealed instruments, the
action must be brought on the instrument
itself. . . .’” Id. (quoting 54 C.J.S.
Limitations of Actions § 54, at 90 (1987)).
A specialty “is a well-known term of the common law which in
Maryland

and

elsewhere

instrument under seal.”

by

judicial

decision

denotes

a

legal

General Petroleum Corp. v. Seaboard

Terminals Corp., 19 F.Supp. 882, 883–84 (D.Md. 1937); see also
The Wellington Co., Inc. Profit Sharing Plan & Trust v. Shakiba,
180 Md.App. 576, 601–02 (2008); Attorney General of Maryland v.
Dickson, 717 F.Supp. 1090, 1104 (D.Md. 1989).
Plaintiff
December

27,

attached
2005

contain a seal.

loan

as

an

exhibit

agreement

(See ECF 2-1).

to

which

her

does

complaint
not

appear

the
to

The Deed of Trust securing the

loan agreement is notarized and sealed in five different places,
however.

(ECF No. 20-2, at 6-8).

Thus, the Deed of Trust may

qualify as a specialty under Maryland law.

See, e.g., Pac.

Mortg. and Inv. Grp. v. Horn, 100 Md.App. 311, 321-22 (1994)
(holding that, under Maryland law, a mortgage note can be an
instrument under seal.).
Beneficial

“never

Plaintiff states in her complaint that

perfected

a
7

security

interest

in

[]

Plaintiff’s

mortgage

[]

because

it

never

loaned

funds,

but

instead exchanged [] the loan agreement for a check, which can
be redeemed for Federal Reserve[] Bank Notes.”

(ECF No. 2 ¶ 9).

She further contends that Beneficial “knew it was not going to
credit

or

loan

any

funds,

but

instead

exchange

[the]

loan

agreement [] for the cash received from the Note being pledged
at the Federal Reserve.”

(Id. ¶ 13).

Thus, Plaintiff believes

that Beneficial “did not fulfill the Loan Agreement.”

(Id. ¶

14).
Although not entirely clear from the allegations in the
complaint,

Plaintiff’s

claims

agreement

with

Beneficial

Property,

and

the

Deed

may

be

pertaining
of

Trust

grounded
to

the

securing

“on”

the

mortgage
the

on

loan.

loan
the
Cf.

Onwumbiko v. JP Morgan Chase Bank, N.A., Civ. Action No. 8:12cv-01733-AW, 2012 WL 6019497, at *3 (D.Md. Nov. 30, 2012) (“In
this case, Plaintiff has not asserted his action on the deed of
trust

in

question.

Rather,

Plaintiff’s

fraud,

consumer

protection, and fair lending claims are almost entirely based on
allegations of false advertising and conspiratorial conduct that
is extraneous to the deed of trust.”).

Thus, a twelve-year

statute of limitations may apply to Plaintiff’s claims and it is
not apparent from the face of the complaint that her claims are
time-barred.

Indeed, in its reply memorandum, Defendant does

not respond to Plaintiff’s argument regarding the application of
8

a twelve-year statute of limitations to her claims.
seen,

however,

Plaintiff’s

claims

against

As will be

Beneficial

do

not

survive dismissal because they fail to state a claim for breach
of contract and fraudulent misrepresentation.
2.

Breach of Contract

a.

Standard of Review

Defendant argues that Plaintiff fails to state a claim for
breach

of

contract

and

fraudulent

misrepresentation.

The

purpose of a motion to dismiss under Rule 12(b)(6) is to test
the

sufficiency

Charlottesville,

of
464

the
F.3d

complaint.
480,

483

Presley
(4th

Cir.

v.

City

2006).

of
A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
9

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, unsupported legal

allegations

not

need

be

accepted.

Revene

v.

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

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

(4th

847

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[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.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”
b.

court

to

draw

on

its

judicial

Id.

Analysis

To state a claim for breach of contract in Maryland, a
plaintiff must allege that a contractual obligation exists and
that

the

defendant

has

breached

that

obligation.

See

Continental Masonry Co. v. Verdel Constr. Co., 279 Md. 476, 480
10

(1977).

Plaintiff alleges that Beneficial never fulfilled its

obligations under the loan agreement because Beneficial did not
loan its own funds to satisfy the loan agreement.
25).

(ECF No. 2 ¶

Plaintiff contends that Beneficial did not actually have

the funds on hand to lend to Plaintiff, but instead “created”
the money by taking Plaintiff’s loan agreement and pledging that
agreement

to

the

Federal

Reserve

in

exchange

for

a

loan

to

Beneficial, which Beneficial then used to loan Plaintiff the
money for her mortgage.

(Id. ¶¶ 9, 11).

Plaintiff argues that

Beneficial used her loan agreement to generate funds in her own
name; therefore, that money belonged to her.

(Id. ¶¶ 13, 51).

Consequently, Plaintiff believes that attempts to foreclose on
her home based on her alleged failure to satisfy her payment
obligations under the loan agreement would be improper.

(Id. ¶¶

48, 49).
Plaintiff’s breach of contract claim is premised on what is
known as the “vapor money” theory.

“The ‘vapor money’ theory

states that any debt based upon a loan of credit rather than
legal tender is unenforceable.”

Andrews v. Select Portfolio

Servicing, Inc., Civil No. RDB-09-2437, 2010 WL 1176667, at *3
(D.Md. Mar. 24, 2010).

As one reviewing court summarized:

Plaintiff alleges that the promissory note
he executed is the equivalent of “money”
that he gave to the bank. He contends that
[the lender] took his “money,” i.e., the
promissory note, deposited it into its own
11

account without his permission, listed it as
an “asset” on its ledger entries, and then
essentially lent his own money back to him.
. . . He further argues that because [the
lender] was never at risk, and provided no
consideration, the promissory note is void
ab initio, and Defendants’ attempts to
foreclose on the mortgage are therefore
unlawful.
Demmler v. Bank One NA, No. 2:05-CV-322, 2006 WL 640499, at *3
(S.D.Ohio. Mar. 9, 2006).

Claims based on “vapor money” theory

have “been consistently rejected by federal courts as frivolous
and insufficient to withstand a motion to dismiss.”

Andrews v.

Select Portfolio Servicing, Inc., No. 09-2437, 2010 WL 1176667,
at

*3

(D.Md.

Mar.

24,

2010);

see

also

Mosley-Sutton

v.

MacFayden, No. 10-1130, 2011 WL 2470083, at *3 (D.Md. Jun. 17,
2011) (“all claims based upon any variation of the vapor money
theory must be dismissed.”); Gallant v. Deutsche Bank Nat. Trust
Co.,

766

F.Supp.2d

714,

722

(W.D.Va.

2011)

(holding

that

complaints based on vapor money, unlawful money, and ultra vires
theories fail to state a cognizable claim against defendant, and
such

claims

CitiMortgage,

are
Inc.,

subject
726

to

dismissal);

F.Supp.2d

201,

218

McLaughlin
(D.Conn.

v.

2010)

(rejecting vapor money claims and holding that a check issued by
a bank or mortgage company does not need to be legal tender for
a loan to be valid); Tonea v. Bank of Am., N.A., 6 F.Supp.3d
1331, 1344-45 (N.D.Ga. 2014) (dismissing claims based on the
“vapor money” theory, calling it a “convoluted and nonsensical
12

argument that a plaintiff does not owe the money advanced by the
lender on his loan because the indebtedness was not funded by
the lender with actual money.”).
Plaintiff’s only basis for arguing that Beneficial breached
the contract deals with the “vapor money” theory.

Plaintiff

does not allege that Beneficial failed to provide a credit line
as part of the loan agreement, nor does she point to a specific
provision of the contract that Beneficial allegedly breached.
Indeed,

before

defaulting,

Plaintiff

pursuant to the loan agreement.

made

monthly

payments

Accordingly, the breach of

contract claim against Beneficial will be dismissed.
3.

Fraudulent Misrepresentation

Plaintiff also asserts a fraudulent misrepresentation claim
against Beneficial.
fraudulent

(ECF No. 2 ¶¶ 53-59).

misrepresentation

under

To state a claim for

Maryland

law,

a

plaintiff

must allege: (1) that the defendant made a false representation
to the plaintiff, (2) that its falsity was either known to the
defendant

or

that

the

representation

was

made

with

reckless

indifference as to its truth, (3) that the misrepresentation was
made for the purpose of defrauding the plaintiff, (4) that the
plaintiff relied on the misrepresentation and had the right to
rely on it, and (5) that the plaintiff suffered compensable
injury resulting from the misrepresentation.

Alleco, Inc. v.

Harry & Jeanette Weinberg Found., Inc., 340 Md. 176, 195 (1995).
13

Plaintiff’s claim alleging fraud also is subject to the
heightened pleading standard of Fed.R.Civ.P. 9(b).

Harrison v.

Westinghouse Savannah River Co., 176 F.3d 776, 783–84 (4th Cir.
1999).

Rule 9(b) states that “in all averments of fraud or

mistake, the circumstances constituting fraud or mistake shall
be stated with particularity.

Malice, intent, knowledge, and

other condition of mind of a person may be averred generally.”
The word circumstances “is interpreted to include 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

Mortgage, Inc., 197 F.Supp.2d 298, 313–14 (D.Md.2000) (quoting
Windsor Assocs. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md.1983)).
Plaintiff states that the loan agreement “contained false,
misrepresentation

as

[Beneficial]

that

knew

misrepresentation”.

to

the

the

(ECF

lender

Plaintiff

No.

2,

at

[Beneficial],
would

¶

rely

15).

The

on

and
such

complaint

broadly states that “[f]raud, unconscionability[,] and egregious
behavior
Trust;

occurred

[]

Plaintiff

transaction.”
specific

in

the
was

formation
coerced

(Id. ¶ 16).

misrepresentations

of

into

the

Note

signing

a

and

Deed

public

of

debt

Plaintiff does not point to any
made

by

Beneficial,

however,

alone with the specificity required under Rule 9(b).

let

In her

opposition to the motion to dismiss, Plaintiff again does not
14

specify the material misrepresentations that allegedly were made
by Beneficial.

(See ECF No. 24).

Instead, Plaintiff recites

various portions of her complaint, which are immaterial to her
claim

for

fraudulent

misrepresentation.

It

may

be

that

Plaintiff believes that Beneficial was required to disclose how
it would fund Plaintiff’s loan, and to disclose that Beneficial
would use her loan agreement to obtain a loan from the Federal
Reserve.

(ECF No. 2 ¶ 54).

Insofar as the factual allegations

supporting a fraudulent misrepresentation claim are grounded in
the

“vapor

money”

discussed above.

theory,

they

fail

for

the

same

reasons

Moreover, Plaintiff has not pled any of the

elements for a fraudulent misrepresentation claim.

Accordingly,

the fraudulent misrepresentation claim will be dismissed.
B. Motion for Leave to Amend Complaint
After

Defendant’s

motion

to

dismiss

was

fully

briefed,

Plaintiff moved for leave to amend her complaint. (ECF No. 28).
Rule 15(a)(1) permits a party to amend its pleading once as a
matter of course within 21 days after serving it; or 21 days
after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.
“In all other cases, a party may amend its pleading only with
the opposing party’s written consent or the court’s leave.
court

should

freely

Fed.R.Civ.P. 15(a)(2).

give

leave

when

justice

so

The

requires.”

The court should deny leave to amend
15

only when “the amendment would be prejudicial to the opposing
party, there has been bad faith on the part of the moving party,
or

the

amendment

Goldsboro,
internal

178

would

F.3d

quotation

be

231,

marks

futile.”

242

(4th

omitted);

Edwards

Cir.

1999)

Keller

v.

v.

City

(citation
Prince

of
and

George’s

Cnty., 923 F.2d 30, 33 (4th Cir. 1991) (upholding district court
order denying plaintiff leave to amend his complaint to include
claims that were barred by the applicable statute of limitations
because

such

amendment

would

be

futile).

“An

amendment

is

futile when the proposed amendment is clearly insufficient or
frivolous on its face, or if the amended claim would still fail
to

survive

12(b)(6).”

a

motion

to

dismiss

pursuant

to

Fed.R.Civ.P.

El-Amin v. Blom, No. CCB-11-3424, 2012 WL 2604213,

at *11 (D.Md. July 5, 2012) (internal citations and quotation
marks omitted).
Plaintiff moved to amend section three of her complaint
relating to “general allegations facts common to all counts.”
(ECF

No.

28).

Plaintiff

wishes

to

add

“adverse

credit

reporting” and “emotional distress and suffering” as damages for
the alleged breach of contract and fraudulent misrepresentation.6
(ECF No. 28, at 1).

6

Plaintiff also asserts four new claims in her proposed
amendment: fraud; libel; slander of title; and violation of
constitutional rights.
Plaintiff offers no factual allegations
to support any of these claims, however.
16

As

Beneficial

argues,

“Plaintiff’s

proposed,

one-page

amendment lists only new forms of alleged harm” and otherwise
“adds no new facts relevant to her purported fraud or breach of
contract claims.”

(ECF No. 29, at 2).

Plaintiff also includes

an “affidavit of fact” as an exhibit to her motion for leave to
amend.

(ECF

No.

28-1).

The

alleged

facts

set

forth

in

Plaintiff’s affidavit of fact are tied to her “vapor money”
theory, however, and otherwise do not cure the deficiencies in
the

original

complaint

as

to

the

fraudulent misrepresentation claims.

breach

of

contract

and

Accordingly, Plaintiff’s

motion for leave to amend the complaint will be denied.
III. Conclusion
For the foregoing reasons, Beneficial’s motion to dismiss
Counts I and II of the complaint will be granted.

Plaintiff’s

motion for leave to file an amended complaint will be denied.
separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

17

A