Willis et al v. Tritle et al

Filing 34

ORDER granting defendant Richard Maita's 7 Motion to Dismiss for Failure to State a Claim; granting defendant Chris Jon Dobson's 22 Motion to Dismiss for Failure to State a Claim and claims against both defenda nts are DISMISSED WITH PREJUDICE; granting in part and denying in part defendant Bank of America's 20 Motion to Dismiss and Motion to Dismiss for Failure to State a Claim. The Motion is DENIED with respect to claims asserted against BANA in Counts I and III of Amended Complaint. In all other respects, Motion is GRANTED, and claims against BANA in remaining counts of Amended Complaint are DISMISSED WITH PREJUDICE. Signed by District Judge Martin Reidinger on 02/26/2019. (Pro se litigant served by US Mail.) (ni)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00345-MR

GERI D. WILLIS and CARMEN L.
WILLIS,

)
)
)
Plaintiffs,
)
)
vs.
)
)
WILLIAM W. TRITLE, CHRIS JON
)
DOBSON, RICHARD J. MAITA, and
)
BANK OF AMERICA,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Motions to Dismiss filed by
Defendants Richard J. Maita, Chris John Dobson, and Bank of America
[Docs. 7, 20, 22].
I.

PROCEDURAL BACKGROUND
The Plaintiffs Geri D. Willis and Carmen L. Willis, proceeding pro se,

commenced this action on December 19, 2017, by filing a Complaint against
the Defendants William W. Tritle (“Tritle”), Chris Jon Dobson (“Dobson”),
Richard J. Maita (misidentified in the Complaint and Amended Complaint as
“Richard Matlina” and hereinafter referred to as “Maita”), and Bank of

America (“BANA”).1 [Doc. 1]. Before any of the Defendants made an
appearance or filed an answer, the Plaintiffs filed an Amended Complaint
on February 8, 2018. [Doc. 5].
Defendants Dobson, Maita, and BANA all now move to dismiss the
Plaintiffs’ Amended Complaint for failing to state a claim upon which relief
can be granted.2 [Docs. 7, 20, 22]. The Plaintiffs have responded to each
of these motions. [Docs. 19, 25, 26].
II.

STANDARD OF REVIEW
The central issue for resolving a Rule 12(b)(6) motion is whether the

claims state a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d
186, 189 (4th Cir. 2009). In considering Defendants’ motions, the Court
accepts the allegations in the Amended Complaint as true and construes
them in the light most favorable to the Plaintiffs. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli,
588 F.3d at 190-92. When considering a motion to dismiss, the Court is
obligated to construe a pro se complaint liberally, “however inartfully
While the Plaintiffs name “Bank of America” as a defendant in this action, no such legal
entity exists. Bank of America, N.A. (“BANA”) has appeared in the case on the
assumption that this is a misnomer and that the Plaintiffs intended to name BANA as a
defendant. [See Doc. 20 at 1 n.1].
1

Defendant Tritle has filed an Answer to the Plaintiffs’ Amended Complaint [Doc. 18]
and has not joined in the motions to dismiss filed by his co-defendants.
2
2

pleaded[.]” Booker v. S.C. Dep't of Corr., 855 F.3d 533, 540 (4th Cir. 2017),
cert. denied, 138 S. Ct. 755 (2018) (quoting Erickson v. Pardus, 551 U.S.
89, 94 (2007)), cert. denied, 138 S. Ct. 755 (2018).
Although the Court must accept any well-pleaded facts as true and
construe such facts liberally, it is not required to accept “legal conclusions,
elements of a cause of action, and bare assertions devoid of further factual
enhancement....” Consumeraffairs.com, 591 F.3d at 255; see also
Giacomelli, 588 F.3d at 189.
The claims need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a
cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007);
see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Nor will mere labels and legal conclusions suffice. Id. Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
The complaint is required to contain “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at
1974; see also Consumeraffairs.com, 591 F.3d at 255. “A claim has facial
3

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; see also Consumeraffairs.com, 591 F.3d
at 255.

The mere possibility that a defendant acted unlawfully is not

sufficient for a claim to survive a motion to dismiss. Consumeraffairs.com,
591 F.3d at 256; Giacomelli, 588 F.3d at 193. Ultimately, the well-pled
factual allegations must move a plaintiff’s claim from possible to plausible.
Twombly, 550 U.S. at 570; Consumeraffairs.com, 591 F.3d at 256.
III.

FACTUAL BACKGROUND
While the Plaintiffs’ allegations are inartfully pled and difficult to

discern, the following is a recitation of the relevant facts based upon the
public record and the well-pled factual allegations asserted by the Plaintiffs.
On December 22, 2006, the Plaintiffs obtained a loan in the amount
of $352,750.00 (the “Loan”) to purchase real property commonly known as
3690 Penland Road, Spruce Pine, North Carolina 28777 (the “Property”).
The Loan was obtained through Professional Lending Services, a business
owned and operated by Defendant Dobson. [Doc. 5 at 9 ¶¶ 5, 6, 9]. The
Plaintiffs were represented by Defendant Maita in this transaction. [Id. at ¶¶
6, 10].

4

To secure the Loan, the Plaintiffs executed a promissory note (the
“Note”) and deed of trust (the “Deed of Trust”)3 in favor of Community
Resource Bank, N.A. (“Lender”). [Doc. 20-2]. The Deed of Trust secures
the Loan by placing a lien on the Property and also names Mortgage
Electronic Registration Systems, Inc. (“MERS”) as its beneficiary as
nominee for the Lender and the Lender’s successors and assigns. [Id.]. On
February 27, 2013, MERS, acting as nominee for the Lender, assigned its
interest in the Deed of Trust to Federal National Mortgage Association
(“Fannie Mae”). [See Doc. 20-3].4
The Plaintiffs allege that at the closing in December 2006, the Loan
that was presented to them contained terms that they had not agreed to.
When the Plaintiffs refused to sign the documents, Defendant Dobson
assured them that Defendant Tritle “would redo [the Loan] over right in the

3

BANA attached a copy of the pertinent Deed of Trust to its Motion to Dismiss. The
Deed of Trust was recorded on March 19, 2013, Book 451, Page(s) 430-44, with the
Mitchell County, North Carolina Register of Deeds. Because it is a public record, this
Court may consider the Deed of Trust without converting the present Motions into ones
for summary judgment. See, e.g., Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180
(4th Cir. 2009) (“In reviewing a Rule 12(b)(6) dismissal, we may properly take judicial
notice of matters of public record.”).
4BANA

also attached the Assignment from MERS to Fannie Mae, which was recorded
on March 19, 2013 in the Register of Deeds for Mitchell County at Book 533, Page(s)
534-36, as an exhibit to its Motion to Dismiss. The Court may also consider this public
record without converting the present motions to one for summary judgment. See
Philips, 572 F.3d at 180.
5

next 3 months to Countrywide.”5 [Doc. 5: Am. Complaint at 4 ¶ III]. The
Plaintiffs then signed the documents. [Id.]. However, the promised “redo”
was never done, thereby causing the Plaintiffs “mental and physical
damages” -- including high blood pressure, a stroke, the loss of
employment, and “great humiliation.” [Id. at ¶¶ III, IV].
The Plaintiffs allege that the “Loan Seller” posed as a conventional
mortgage lender, thereby leading the Plaintiffs “to reasonably believe that
the Loan Seller, the mortgage broker, and the loan originator had an interest
in the success” of the transaction, i.e., the repayment of the loan. [Id. at 10
¶ 14]. The Plaintiffs allege that the “Loan Seller” used an inflated appraisal,
thereby adding “an undisclosed cost to the loan.” [Id. at 10 ¶ 17]. Later in
the Complaint, the Plaintiffs allege that the “Defendants” failed to provide a
HUD-1 Settlement Statement and other disclosures at the closing. [Id. at
12 ¶ 35].
The Plaintiffs state that they have “every reason to believe” that “the
party receiving the payments (Countrywide) is neither the holder in due

BANA admits that is a successor by merger to the “Countrywide” referenced in the
Amended Complaint. In 2007, Countrywide Bank, National Association converted to a
federal savings bank under the title of Countrywide Bank, FSB. In 2009, Countrywide
Bank, FSB converted to a national banking association under the name of Countrywide
Bank, National Association, and immediately thereafter merged with and into BANA.
[Doc. 20-1 at 3 n.5].
6
5

course of the note nor the owner of any rights under the mortgage provisions
of the deed of trust,” and that their “payments are not being forwarded to the
holder in due course of the note nor to any other authorized party.” [Id. at
10 ¶¶ 19, 20].
The Plaintiffs allege that their “alleged loan closing” was in fact a “part
of an undisclosed hidden illegal scheme to issue unregulated securities
(mortgage backed securities) based upon the negotiation of non-negotiable
notes, the terms of which have been changed, altered, amended or modified
AFTER the execution by the Plaintiff[s].” [Id. at 11 ¶ 25]. As part of this
scheme, the Plaintiffs allege that the “Defendants” failed to advise the
Plaintiffs: (1) that the loan “was not in [the Plaintiffs’] best interest”; (2) that
the terms of the loan “were less favorable than the fixed-rate loan which
Defendants previously advised Plaintiff[s] that they qualified for”; (3) that the
loan was “an inter-temporal transaction (transaction where terms, risks, or
provisions at the commencement of the transaction differ at a later time) on
which Plaintiff[s were] providing cover for Defendants’ illegal activities”; (4)
that the Plaintiffs “would likely be placed in a position of default, foreclosure,
and deficiency judgment regardless of whether [they] met [their] loan
obligations once the true lender or true holder(s) in due course appeared;
and (5) that the originating lender “had no intention of retaining ownership
7

interest in the mortgage loan or fully servicing same….” [Id. at 11-12 ¶¶ 2833]. The Plaintiffs allege that they would not have entered into the loan
transaction had “the true nature of this scheme [been] revealed….” [Id. at
11 ¶ 26].
In July 2016, the Plaintiff Geri D. Willis reviewed the mortgage
documents and discovered a supposed “fraudulent transfer of real
property.” [Id. at 8 ¶ 3]. Specifically, the Plaintiffs contend that: “There was
no valid assignment of mortgage, between Community Resource Bank who
had our [mortgage] documents. [sic] On December 22, 2006, where on the
same day we were told that we were really with Countrywide.”

[Id.

(emphasis in original)]. The Plaintiffs further contend that BANA committed
“fraud” and a “breach of contract” by producing “fraudulent, ‘ta-da’
endorsements of promissory notes.” [Id. at 8 ¶ 4].
Based on these allegations, the Plaintiff assert causes of action for:
(1) violations of the Home Ownership Equity Protection Act, 15 U.S.C. §
1639, et seq. (“HOEPA”); (2) violations of the Real Estate Settlement
Procedures Act, 12 U.S.C. § 2601, et seq. (“RESPA”); (3) violations of the
Truth-in- Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”); (4) fraudulent
misrepresentation; (5) breach of fiduciary duty; (6) unjust enrichment; (7)
civil conspiracy; and (8) a civil violation under the Racketeer Influenced and
8

Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”). [Doc. 5 at
13-19]. The Plaintiffs seek compensatory damages [Id. at 19]; a rescission
of the Loan transaction [Id. at 14 ¶ 58(a)]; and a declaration that the Plaintiffs
alone are “the rightful holder[s] of title to the property and that Defendant[s]
. . . be declared to have no estate, right, title or interest in said property.”
[Id. at 18-19 ¶ 108].
IV.

DISCUSSION
A.

Plaintiffs’ Claims for Violations of HOEPA and TILA (Counts
I and III)

In their first and third causes of action, the Plaintiffs allege that the
Defendants failed to provide the Plaintiffs the required TILA and HOEPA
disclosures before the consummation of the Loan transaction in 2006. [Doc.
5: Am. Complaint at 13 ¶¶ 42-47; 14 ¶¶ 50-55; 15 ¶¶ 69-72].
“TILA governs the terms and conditions of consumer credit by, inter
alia, requiring lenders to disclose certain details about loans and loan fees
and costs.” Stephens v. Bank of Am. Home Loans, Inc., No. 5:16-CV-660F, 2017 WL 384315, at *3 (E.D.N.C. Jan. 25, 2017) (citing 15 U.S.C. § 1601
et seq.).

HOEPA, which amended TILA, “requires lenders to make

additional disclosures to borrowers of ‘high-cost’ or ‘high-rate’ loans.”
Cunningham v. Nationscredit Fin. Servs. Corp., 497 F.3d 714, 717 (7th Cir.
9

2007).

“The purpose for enacting TILA and HOEPA was to provide

economic stabilization in consumer credit lending by assuring meaningful
disclosure of credit terms and thus permitting consumers to make an
informed use of credit.” Cetto v. LaSalle Bank Nat’l Ass’n, 518 F.3d 263,
265, n.1 (4th Cir. 2008) (citing 15 U.S.C. § 1601(a)).
TILA, as amended by HOEPA, imposes liability only on “creditors” and
their “assignees.”

Stephens, 2017 WL 384315, at *3.

TILA defines a

“creditor” as “a person who both (1) regularly extends . . . consumer credit .
. . and (2) is the person to whom the debt arising from the consumer credit
transaction is initially payable on the face of the evidence of indebtedness
or, if there is no such evidence of indebtedness, by agreement.” 15 U.S.C.
§ 1602(g). “Because a mortgage broker is not one to whom the initial debt
is payable,” the term “creditor” does not include a mortgage broker or its
agents. Cetto, 518 F.3d at 270.
The Plaintiffs have not made any factual allegations to plausibly claim
that Defendants Dobson and Maita regularly extended consumer credit or
were the persons to whom the Plaintiffs’ mortgage loan debt was payable.
Thus, neither Dobson nor Maita can reasonably be deemed a “creditor”
within the meaning of TILA. Accordingly, the Plaintiffs cannot maintain any
claim against Dobson or Maita under TILA, as amended by HOEPA.
10

While BANA, as successor by merger to Countrywide Bank, does not
contest its role as “creditor” within the meaning of TILA, it nevertheless
contends that any such claims asserted against it necessarily fail because
they are barred by the applicable statute of limitations.
“Ordinarily, a defense based on the statute of limitations must be
raised by the defendant through an affirmative defense, and the burden of
establishing the affirmative defense rests on the defendant.” Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (internal citation omitted).
Therefore, the Court generally cannot reach the merits of an affirmative
defense in ruling on a motion to dismiss under Rule 12(b)(6). Id. Only in
those extraordinary circumstances where all facts necessary to the
affirmative defense “clearly appear[ ] on the face of the complaint,” may the
Court address an affirmative defense at the motion to dismiss stage.
Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250
(4th Cir. 1993).
Here, BANA argues that the Plaintiffs’ right to rescission under TILA
was completely extinguished by the Plaintiffs’ failure to give notice of their
decision to exercise their right to rescission within three years after
consummation of the transaction, and thus, their claims under TILA and
HOEPA are time-barred. [Doc. 20-1 at 11-12]. The Plaintiffs’ Amended
11

Complaint, however, is silent on the issue of notice. Thus, the Court cannot
say that all facts necessary to the resolution of this affirmative defense
“clearly appear” on the face of the Amended Complaint.
Moreover, in addition to seeking rescission, the Plaintiffs also seek
compensatory damages under TILA. [See Doc. 5 at 14 ¶ 63]. Such claims
are subject to a one-year statute of limitations. See 15 U.S.C. § 1640(e).
That limitations period, however, may be “subject to equitable tolling where
a defendant has fraudulently concealed the facts underlying a TILA
violation.” Roach v. Option One Mortg. Corp., 598 F. Supp. 2d 741, 751
(E.D. Va. 2009); Barnes v. West, Inc., 243 F. Supp. 2d 559, 563 (E.D. Va.
2003). Viewing the Amended Complaint in the light most favorable to the
Plaintiffs, and construing the factual allegations asserted therein liberally,
the Court cannot say that the Plaintiffs cannot avail themselves of equitable
tolling on the face of the Amended Complaint. The tolling of the applicable
statute of limitations is an issue which may be subject to resolution at the
summary judgment stage but, if necessary, at trial. Accordingly, BANA’s
motion to dismiss the Plaintiffs’ claims under TILA and HOEPA on the basis
of the applicable statute of limitations is denied.

12

B.

Plaintiffs’ Claims under RESPA (Count II)

In Count II of their Amended Complaint, the Plaintiffs allege that the
Defendants “accepted charges for the rendering of real estate services
which were in fact charges for other than services actually performed” in
violation of 12 U.S.C. § 2607. [Doc. 5: Am. Complaint at 15 ¶ 66].
Section 2607(b) of RESPA prohibits “any person from giving or
accepting any unearned fees, i.e., charges or payments for real estate
settlement services other than for goods or facilities provided or services
performed.” Freeman v. Quicken Loans, Inc., 566 U.S. 624, 629 (2012). “In
order to establish a violation of § 2607(b), a plaintiff must demonstrate that
a charge for settlement services was divided between two or more persons.”
Id. at 638. Thus, § 2607(b) does not impose liability for “overcharges,”
“unreasonably high fees,” or “a single provider’s retention of an unearned
fee.” Id. at 630-31.
The Plaintiffs’ Amended Complaint is completely devoid of any factual
allegations that any of the Defendants improperly split a fee with any other
persons. In fact, the Plaintiffs do not even allege which settlement charges
were allegedly improper. The Plaintiffs’ generic allegations regarding their
settlement charges are simply insufficient to effectively state a RESPA

13

claim.

For these reasons, the Plaintiffs’ claims for RESPA against

Defendants BANA, Dobson, and Maita are dismissed.
C.

Plaintiffs’ Fraudulent Misrepresentation Claim (Count IV)

In order to state a valid claim for fraud under North Carolina law, a
party must allege a false representation or concealment of a material fact
that: (1) was reasonably calculated to deceive; (2) was made with the intent
to deceive; (3) did in fact deceive the party; and (4) resulted in damages to
the party. Anderson v. Sara Lee Corp., 508 F.3d 181, 189 (4th Cir. 2007).
Under North Carolina law, a three-year statute of limitations applies to fraud
claims. N.C. Gen. Stat. 1-52(9). The limitations period begins to run at the
time of discovery of the facts constituting the fraud or at the plaintiff should
have discovered the fraud in the exercise of reasonable diligence. Mountain
Land Props., Inc. v. Lovell, 46 F. Supp. 3d 609, 624 (W.D.N.C. 2014).
Where a party’s allegations sound in fraud, the allegations also must
satisfy the heightened pleading standards of Rule 9 of the Federal Rules of
Civil Procedure. Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 629 (4th
Cir. 2008). Rule 9(b) provides that when “alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person's mind may be
alleged generally.” Fed. R. Civ. P. 9(b). Rule 9 applies not only to claims
14

asserting common law fraud, but to all claims where the allegations have
the substance of fraud. Cozzarelli, 549 F.3d at 629. A claim is subject to
dismissal under Rule 12(b)(6) for failure to state a claim if it does not comply
with Rule 9(b). Harrison v. Westinghouse Savannah River Co., 176 F.3d
776, 783 n.5 (4th Cir. 1999).
“The standard set forth by Rule 9(b) aims to provide defendants with
fair notice of claims against them and the factual ground upon which they
are based, forestall frivolous suits, prevent fraud actions in which all the
facts are learned only following discovery, and protect defendants' goodwill
and reputation.” McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d 551,
559 (4th Cir. 2013) (citations omitted). Accordingly, the Court should be
hesitant to dismiss a complaint under Rule 9(b) if the Court is “satisfied (1)
that the defendant has been made aware of the particular circumstances for
which [it] will have to prepare a defense at trial, and (2) that plaintiff has
substantial prediscovery evidence of those facts.” Id. (quoting Harrison, 176
F.3d at 784).
Here, the Plaintiffs generally allege that the Defendants “fraudulently
caused Plaintiff[s] to execute predatory loan documents” or “knowingly and
intentionally concealed material information from Plaintiff[s].” [See Doc. 5:
Am. Complaint at 11 ¶ 27; 16 ¶ 74]. The Plaintiffs, however, fail to allege
15

what

specific

false

representations

the

Defendants

purportedly

communicated to them, when and where such misrepresentations were
made, how they relied upon those statements, or how they were damaged.
Conclusory allegations that the loan documents were “predatory” or that the
Defendants failed to disclose unspecified “material information” are simply
not sufficient to state a claim for fraud.
To the extent that the Plaintiffs contend that the Defendants
fraudulently concealed facts, the Plaintiffs never specify what facts were
allegedly concealed, nor do they provide a basis for any legal duty of
disclosure. See Dallaire v. Bank of Am., N.A., 367 N.C. 363, 368, 760
S.E.2d 263, 267 (2014) (“the law does not typically impose upon lenders a
duty to put borrowers’ interests ahead of their own. Rather, borrowers and
lenders are generally bound only by the terms of their contract and the
Uniform Commercial Code.”).
The only specific misrepresentation cited by the Plaintiffs in their
Amended Complaint is a statement made by Defendant Dobson at the
closing that Defendant Tritle would redo their mortgage so that it was “right,”
with Countrywide, within three months of closing, but that the Defendants
“never had that done.” [Doc. 5: Am. Complaint at 4 ¶ III]. The Plaintiffs,
however, make no allegation that that Dobson made this statement with the
16

requisite intent to deceive.

Even if Dobson’s statement constituted

actionable fraud,6 however, the Plaintiffs necessarily discovered the falsity
of this statement in 2007, when the mortgage loan had not been “redone”
within three months of the closing. Thus, by their own admission, the statute
of limitations bars any possible fraud claim by the Plaintiffs with respect to
this representation.
For all these reasons, Plaintiffs’ fraud claim must be dismissed with
prejudice.
D.

Plaintiffs’ Claim for Breach of Fiduciary Duty (Count V)

Under North Carolina law, it is well-established that “[a] fiduciary duty
arises when there has been a special confidence reposed in one who in
equity and good conscience is bound to act in good faith and with due regard
to the interests of the one reposing confidence.” Branch Banking & Trust
Co. v. Thompson, 107 N.C. App. 53, 60-61, 418 S.E.2d 694, 699 (citation
and internal quotation marks omitted), disc. rev. denied, 332 N.C. 482, 421
S.E.2d 350 (1992).

“However, an ordinary debtor-creditor relationship

generally does not give rise to such a special confidence: the mere

Dobson’s statement, being promissory in nature, does not constitute a representation
of a subsisting fact. Thus, to support a fraud claim, such statement must have been
made with the then-present intent not to perform. See Gribble v. Gribble, 25 N.C. App.
366, 369, 213 S.E.2d 376, 378 (1975). The Plaintiffs make no such allegation here.
17
6

existence of a debtor-creditor relationship between the parties does not
create a fiduciary relationship.” Id. at 61, 418 S.E.2d at 699 (citation and
internal quotation marks omitted). Nevertheless, the North Carolina Court of
Appeals has noted that “[t]his is not to say . . . that a bank-customer
relationship will never give rise to a fiduciary relationship given the proper
circumstances.” Id. “Rather, parties to a contract do not thereby become
each others’ fiduciaries; they generally owe no specific duty to one another
beyond the terms of the contract and the duties set forth in the U.C.C.” Id.
Here, the Plaintiffs have failed to allege sufficient facts to establish a
fiduciary relationship with any of the Defendants. While the Plaintiffs allege
that the Defendants were “fiduciaries” and that the Plaintiffs “reposed trust
and confidence” in them [Doc. 5: Am. Complaint at 16 ¶ 81], such allegations
are merely conclusory and fail to provide any specific plausible facts to
support their claim. See Synovus Bank v. Coleman, 887 F. Supp. 2d 659,
672 (W.D.N.C. 2012).

Accordingly, the Plaintiffs’ claim for breach of

fiduciary duty must fail.
E.

Plaintiffs’ Claim for Unjust Enrichment (Count VI)

The North Carolina Supreme Court has defined the claim of unjust
enrichment as follows:

18

In order to establish a claim for unjust enrichment, a
party must have conferred a benefit on the other
party. The benefit must not have been conferred
officiously, that is it must not be conferred by an
interference in the affairs of the other party in a
manner that is not justified in the circumstances. The
benefit must not be gratuitous and it must be
measurable.
Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988).
However, it is well-settled under North Carolina law that a claim for unjust
enrichment will not lie where a valid contract exists. Hinson v. United Fin.
Servs., Inc., 123 N.C. App. 469, 473, 473 S.E.2d 382, 385 (1996) (“Unjust
enrichment is based upon the equitable principle that a person should not
be permitted to enrich himself unjustly at the expense of another. Where,
as here, there is a contract which forms the basis for a claim, the contract
governs the claim and the law will not imply a contract.”) (citation and
internal quotation marks omitted); see also Whitfield v. Gilchrist, 348 N.C.
39, 42, 497 S.E.2d 412, 415 (1998) (“Only in the absence of an express
agreement of the parties will courts impose a quasi-contract or a contract
implied in law in order to prevent an unjust enrichment.”); Booe, 322 N.C. at
570, 369 S.E.2d at 556 (“If there is a contract between the parties the
contract governs the claim and the law will not imply a contract.”).

19

Here, the Plaintiffs explicitly acknowledge that they entered into
contracts with each of Defendants Dobson, Maita, and BANA. [See Doc. 5:
Am. Compl. at 8 ¶ 4; 9 ¶¶ 6, 9]. Because North Carolina law cannot impose
an implied contract where an express contract already exists between the
parties, the Plaintiffs cannot state a claim for unjust enrichment against
these Defendants.
In any event, the Plaintiffs have failed to allege the essential elements
of an unjust enrichment claim. Specifically, the Plaintiffs have failed to
allege that Dobson, Maita or BANA received any improper benefits or
amounts from the Plaintiffs.

Rather, they specifically allege that

“Defendants” received payment “from third parties including but not limited
to investors, insurers, other borrowers, the United States Department of the
Treasury, the United States Federal Reserve and Bank of America, N.A.”
[Doc. 5: Am. Complaint at 17 ¶ 89]. Such an allegation is insufficient to
support a claim for unjust enrichment.
For all these reasons, the Plaintiffs’ claim for unjust enrichment
against Defendants Dobson, Maita, and BANA is dismissed.
F.

Plaintiffs’ Claim for Civil Conspiracy (Count VII)

To state a claim for civil conspiracy under North Carolina law, a
plaintiff must allege the following essential elements: “(1) an agreement
20

between two or more individuals; (2) to do an unlawful act or to do a lawful
act in an unlawful way; (3) resulting in injury to plaintiff inflicted by one or
more of the conspirators; and (4) pursuant to a common scheme.” Piraino
Bros., LLC v. Atl. Fin. Group, Inc., 211 N.C. App. 343, 350, 712 S.E.2d 328,
333 (2011), disc. rev. denied, 365 N.C. 357, 718 S.E.2d 391 (2011) (quoting
Privette v. Univ. of N.C., 96 N.C. App. 124, 139, 385 S.E.2d 185, 193
(1989)). However, “there is not a separate civil action for conspiracy in North
Carolina.” Dove v. Harvey, 168 N.C. App. 687, 690, 608 S.E.2d 798, 800
(2005), disc. rev. denied, 360 N.C. 289, 628 S.E.2d 249 (2006). Rather, the
Plaintiffs must be able to state a claim for an underlying tort in order to state
a claim for conspiracy. Id. Here, the Plaintiffs have failed to state a claim
for any underlying tort to support their conspiracy claim.
Moreover, the Plaintiffs fail to support their civil conspiracy claim with
any specific factual allegations. In support of this claim, the Plaintiffs allege,
in pertinent part, as follows:
In connection with the application for and
consummation of the mortgage loan [that is] the
subject of this action, Defendants agreed, between
and among themselves, to engage in actions and a
course of conduct designed to further an illegal act
or accomplish a legal act by unlawful means, and to
commit one or more overt acts in furtherance of the
conspiracy to defraud the Plaintiff[s].
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Defendants
agreed
between
and
among
themselves to engage in the conspiracy to defraud
for the common purpose of accruing economic gains
for themselves at the expense of and detriment to
the Plaintiff[s].
[Doc. 5: Am. Complaint at 17 ¶¶ 92-93]. The Plaintiffs’ allegations lack any
specificity regarding the nature of any agreement between the Defendants,
the nature of the purported common scheme or how they were injured by
such scheme. For these reasons, the Plaintiffs’ claim for civil conspiracy
must be dismissed.
G.

Plaintiffs’ Claim for Civil RICO (Count VIII)

RICO “provides a private right of action for treble damages to ‘[a]ny
person injured in his business or property by reason of a violation’ of the
Act’s criminal prohibitions.” Bridge v. Phoenix Bond & Indem. Co., 553 U.S.
639, 641 (2008) (quoting 18 U.S.C. § 1964(c)). A plaintiff seeking civil
damages under RICO must show: “(1) conduct [causing injury to business
or property]; (2) of an enterprise; (3) through a pattern; (4) of racketeering
activity.” Whitney, Bradley & Brown, Inc. v. Kammermann, 436 F. App’x
257, 258 (4th Cir. 2011) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
496 (1985)). A pattern of racketeering activity “requires at least two acts of
racketeering activity.” 18 U.S.C. § 1961(5). The RICO statutes defines
“racketeering activity” as any act or threat of murder, kidnapping, gambling,
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arson, robbery, bribery, extortion, dealing in obscene matter, dealing in a
controlled substance, or any act which is indictable under a series of
enumerated federal criminal statutes. See 18 U.S.C. § 1961(1). To state a
civil RICO claim, a plaintiff must allege “the necessary ‘continuity’ to
establish the required pattern that distinguishes ‘racketeering activity’ under
RICO from ‘garden-variety’ commercial disputes.” Gilchrist v. Cook, No.
7:07-0508-HFF-WMC, 2007 WL 950386, at *3 (D.S.C. Mar. 26, 2007)
(citation omitted). In order to satisfy the “enterprise” element, a plaintiff must
allege “two separate and distinct entities: a ‘person’ and ‘an enterprise’
through which the person acts.” Id. (citation omitted).
Construing the pro se Plaintiffs’ Amended Complaint liberally, the
Court concludes that the Plaintiff has failed to allege the requisite
“enterprise” and “pattern of racketeering activity” necessary to state a RICO
claim.

While the Plaintiffs identify various alleged tortious activities

purportedly committed by the Defendants, the Amended Complaint fails to
establish that an “enterprise” existed separate and apart from these
individuals. Further, the facts as alleged by the Plaintiffs fail to present any
plausible facts to establish the requisite pattern of racketeering activity
necessary to sustain a RICO claim. For all these reasons, the Plaintiffs’ civil
RICO claim is also dismissed.
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ORDER
IT IS, THEREORE, ORDERED that the Motions to Dismiss filed by
Defendants Richard J. Maita and Chris John Dobson [Docs. 7, 22] are
GRANTED, and the claims asserted against these Defendants in the
Plaintiffs’ Amended Complaint are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Motion to Dismiss filed by
Defendant Bank of America (BANA) [Doc. 20] is GRANTED IN PART and
DENIED IN PART. Specifically, the Motion is DENIED with respect to the
claims asserted against BANA in Counts I and III of the Amended
Complaint. In all other respects, the Motion is GRANTED, and the claims
against BANA in the remaining counts of the Amended Complaint are
hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed: February 26, 2019

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