Willis et al v. Tritle et al

Filing 42

MEMORANDUM OF DECISION AND ORDER granting Deft William W. Tritle's 37 Motion for Judgment on the Pleadings, and dismissing with prejudice the claims asserted against Deft Tritle in Pltf's Amended Complaint. Signed by District Judge Martin Reidinger on 7/12/2019. (Pro se litigant served by US Mail.) (ejb)

IN 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
WILLIS,

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

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Defendant William W. Tritle’s
Motion for Judgment on the Pleadings. [Doc. 37].
I.

PROCEDURAL BACKGROUND
The Plaintiffs Geri D. Willis and Carmen L. Willis (collectively

“Plaintiffs”), 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”) (collectively

“Defendants”).1 [Doc. 1]. On February 8, 2018, Plaintiffs filed an Amended
Complaint before any of the Defendants made an appearance or filed an
answer. [Doc. 5].
The Plaintiffs’ Amended Complaint alleges (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 Corrupt Organizations Act, 18
U.S.C. § 1961 et seq. (“RICO”). [Doc. 5 at ¶¶ 39-102]. Defendants Dobson,
Maita, and BANA each moved to dismiss the Plaintiffs’ Amended Complaint
for failure to state a claim upon which relief can be granted. [Docs. 7, 20,
22]. The Plaintiffs responded to each of those motions. [Docs. 19, 25, 26].
On February 26, 2019, this Court granted Defendant Dobson and
Defendant Maita’s Motions to Dismiss.

[Doc. 34].

This Court denied

Defendant BANA’s Motion to Dismiss regarding Counts I and III, which

The Plaintiffs name “Bank of America” as a defendant in this action, but 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]. This Court referred to BANA as the proper Defendant
in the past, [Doc. 34], and will continue to do so here.
1

2

alleged HOEPA and TILA violations, but dismissed the Plaintiffs’ other claims
against BANA. Id.
Unlike the other Defendants, Defendant Tritle, proceeding pro se, filed
an Answer to Plaintiffs’ Complaint on April 5, 2018. [Doc. 18]. On April 24,
2018, counsel for Defendant Tritle filed a Notice of Appearance. [Doc. 23].
Through counsel, Defendant Tritle filed a Motion to Amend his Answer to the
First Amended Complaint on May 18, 2018. [Docs. 28, 29]. On February
22, 2019, this Court issued an Order granting Defendant Tritle’s Motion.
[Doc. 32]. On the same day, Defendant Tritle filed the Amended Answer to
the Amended Complaint. [Doc. 33]. On March 14, 2019, Defendant Tritle
filed this Motion for Judgment on the Pleadings under Federal Rule of Civil
Procedure 12(c) and 12(h)(2) for failure to state a claim upon which relief can
be granted.
II.

STANDARD OF REVIEW
Under Rule 12(c), “[a]fter the pleadings are closed—but early enough

not to delay trial—a party may move for judgment on the pleadings.” Fed.
R. Civ. P. 12(c). Motions under Rule 12(c) can include failure to state a claim
upon which relief can be granted. See Fed. R. Civ. P. 12(h)(2). “Rule 12(c)
motions are governed by the same standard as motions brought under Rule

3

12(b)(6).”

Massey v. Ojaniit, 759 F.3d 343, 347 (4th Cir. 2014) (citing

Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999)).
Therefore, to survive a motion for judgment on the pleadings for failure
to state a claim, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

To be “plausible on its face,” a plaintiff must

demonstrate more than “a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678.
The Court is obligated to construe a pro se complaint liberally,
“however inartfully pleaded[.]” Booker v. S.C. Dep't of Corr., 855 F.3d 533,
540 (4th Cir. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). In
considering the Defendant’s Motion for Judgment on the Pleadings, 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); Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). 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

4

bare assertions devoid of further factual enhancement . . . .”
Consumeraffairs.com, 591 F.3d at 255; see also Giacomelli, 588 F.3d at 189.
Determining whether a complaint states a plausible claim for relief is
“a context-specific task,” Giacomelli, 588 F.3d at 193, which requires the
Court to assess whether the factual allegations of the complaint are sufficient
“to raise the right to relief above the speculative level,” Twombly, 550 U.S. at
555. As the Fourth Circuit has explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the
claim. However, the complaint must allege sufficient
facts to establish those elements. Thus, while a
plaintiff does not need to demonstrate in a complaint
that the right to relief is probable, the complaint must
advance the plaintiff’s claim across the line from
conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal quotation marks omitted).
III.

FACTUAL BACKGROUND
The allegations contained in the Plaintiffs’ Amended Complaint are

inartfully pled and difficult to discern. The following summarizes the relevant
facts based on the public record and the well-pled factual allegations
asserted by the Plaintiffs, which are taken as true.2

The Court also

In reciting the relevant factual allegations, the Court has disregarded all “bare legal
conclusions” asserted in the Complaint, see Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th
Cir. 2011), as well as “[t]he mere recital of elements of a cause of action,” see Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012).
2

5

considered the factual allegations contained in Defendant Tritle’s Amended
Answer to the Complaint, see Rinaldi v. CCX, Inc., No. 3:05–CV–108, 2008
WL 2622971, at *2 n. 3 (W.D.N.C. July 2, 2008), “where and to the extent
they have not been denied or do not conflict with the complaint,” Jadoff v.
Gleason, 140 F.R.D. 330, 331 (M.D.N.C. 1991).
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. [Doc. 5 at
¶¶ 5, 6, 9]. Defendant Tritle was the President of Professional Lending
Services. [Id. at 2].
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 secured
the Loan by placing a lien on the Property and named 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,

3

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. This Court may consider the Deed
of Trust without converting the present Motions into ones for summary judgment because
it is a public record. 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, [the court] may properly take judicial
notice of matters of public record.”).
6

2013, MERS, acting as nominee for the Lender, assigned its interest in the
Deed of Trust to Federal National Mortgage Association (“Fannie Mae”).
[Doc. 20-3].4
The Plaintiffs allege that they had not agreed to terms contained in the
Loan presented to them at closing on December 2006. When the Plaintiffs
refused to sign the documents, Defendant Dobson assured them that
Defendant Tritle “would redo [the Loan] over right in the next 3 months to
Countrywide.”5 [Doc. 5 at ¶ III]. The Plaintiffs then signed the documents.
[Id.]. However, the promised “redo” was never done, which caused 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, leading the Plaintiffs “to reasonably believe that the Loan
Seller, the mortgage broker, and the loan originator had an interest in the

4

The Assignment from MERS to Fannie Mae was recorded on March 19, 2013 in the
Register of Deeds for Mitchell County at Book 533, Page(s) 534-36. As a public record,
this Court may also consider the Assignment from MERS to Fannie Mae without
converting the present motions to one for summary judgment. See Philips, 572 F.3d at
180.
BANA admits that it 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].
5

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success” of the transaction, i.e., the repayment of the loan. [Id. at ¶ 14]. The
Plaintiffs further allege that the “Loan Seller” used an inflated appraisal,
which added “an undisclosed cost to the loan.” [Id. at ¶ 17]. At the closing,
the Plaintiffs allege that the Defendants failed to provide a HUD-1 Settlement
Statement and other disclosures required by TILA. [Id. at ¶ 35].
The Plaintiffs state they have “every reason to believe” that “the party
receiving the payments (Countrywide) is neither the holder in due course of
the note nor the owner of any rights under the mortgage provisions of the
deed of trust,” and their “payments are not being forwarded to the holder in
due course of the note nor to any other authorized party.” [Id. at ¶¶ 19, 20].
The Plaintiffs claim 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 ¶ 25]. As part of this scheme,
the Plaintiffs allege that the Defendants failed to advise the Plaintiffs that: (1)
the loan “was not in [the Plaintiffs’] best interest”; (2) the terms of the loan
“were less favorable than the fixed-rate loan which Defendants previously
advised Plaintiff[s] that they qualified for”; (3) the loan was “an inter-temporal
transaction (transaction where terms, risks, or provisions at the

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commencement of the transaction differ at a later time) on which Plaintiffs
[were] providing cover for Defendants’ illegal activities”; (4) 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) the originating
lender “had no intention of retaining ownership interest in the mortgage loan
or fully servicing same . . . .” [Id. at ¶¶ 28- 33]. The Plaintiffs allege they
would not have entered into the loan transaction had “the true nature of this
scheme [been] revealed . . . .” [Id. at ¶ 26].
In July 2016, Plaintiff Geri D. Willis reviewed the mortgage documents
and discovered what the Plaintiffs now claim was a “fraudulent transfer of
real property.” [Id. at ¶ 3]. Specifically, the Plaintiffs contend that: “[t]here
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)].
Based on these allegations, the Plaintiffs assert causes of action for:
(1) violations of HOEPA; (2) violations of RESPA; (3) violations of TILA; (4)
fraudulent misrepresentation; (5) breach of fiduciary duty; (6) unjust
enrichment; (7) civil conspiracy; and (8) a civil violation under RICO. [Doc.

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5 at ¶¶ 39-102]. The Plaintiffs seek compensatory damages [Id. at ¶ 109(b)];
rescission of the Loan transaction [Id. at ¶ 58(a)]; and a declaration stating
that the Plaintiffs alone are “the rightful holder[s] of title to the property and
that Defendant[s] . . . have no estate, right, title or interest in said property.”
[Id. at ¶¶ 104, 108].
Defendant Tritle moves for judgment on the pleadings for failure to
state a claim upon which relief can be granted. [Doc. 37].6
IV.

DISCUSSION
A.

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

In Counts I and III, the Plaintiffs allege that Defendant Tritle failed to
provide the required HOEPA and TILA disclosures to the Plaintiffs before the
consummation of the Loan transaction in 2006. [Doc. 5 at ¶¶ 42-47, 50-55,
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
6

The Plaintiffs filed letters on April 1, 2019 within the time period for a response to
Defendant Tritle’s Motion for Judgment on the Pleadings. This Court construes those
letters as responding to Defendant Tritle’s Motion for Judgment on the Pleadings. The
letters do not raise new arguments beyond what already was contained in the previous
filings. [See Doc 41].
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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. 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, only imposes liability 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 do not make any factual allegations to plausibly claim
that Defendant Tritle regularly extended consumer credit or was the person
to whom the Plaintiffs’ mortgage loan debt was payable.

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Rather, the

Plaintiffs allege that Defendant Tritle merely worked for the mortgage broker
that was involved in the transaction.

Thus, Defendant Tritle cannot

reasonably be deemed a “creditor” within the meaning of TILA. Since TILA,
as amended by HOEPA, only imposes liability on “creditors” and their
“assignees, the Plaintiffs cannot maintain any claim against Defendant Tritle
under TILA, as amended by HOEPA. For these reasons, the Plaintiffs’
claims against Defendant Tritle for HOEPA and TILA violations are
dismissed.
B.

Plaintiffs’ Claims for Violations of RESPA (Count II)

In Count II, the Plaintiffs allege that Defendant Tritle “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
at ¶ 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,”

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“unreasonably high fees,” or “a single provider’s retention of an unearned
fee.” Id. at 630-31.
The Plaintiffs’ Amended Complaint fails to identify which settlement
charges were allegedly improper. In addition, the Amended Complaint lacks
any factual allegations that Defendant Tritle improperly split a fee with any
other persons. The Plaintiffs’ generic allegations regarding the settlement
charges are insufficient to effectively state a RESPA claim.

For these

reasons, the Plaintiffs’ claim against Defendant Tritle for RESPA violations
is dismissed.
C.

Plaintiffs’ Fraudulent Misrepresentation Claim (Count IV)

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, there is a three-year statute of limitations for fraud claims. N.C.
Gen. Stat. § 1-52(9). The limitations period begins to run when the plaintiff
discovered the facts constituting the fraud or should have done so with
reasonable diligence. Mountain Land Props., Inc. v. Lovell, 46 F. Supp. 3d
609, 624 (W.D.N.C. 2014).

13

Where a party alleges 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). A claim is subject to dismissal 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). 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 to all claims where the allegations have the substance
of fraud, not just common law fraud claims. Cozzarelli, 549 F.3d at 629.
“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

14

prediscovery evidence of those facts.” Id. (quoting Harrison, 176 F.3d at
784).
Here, the Plaintiffs generally allege that Defendant Tritle “fraudulently
caused Plaintiff[s] to execute predatory loan documents” or “knowingly and
intentionally concealed material information from Plaintiff[s].” [Doc. 5 at ¶ 27,
74]. The only specific misrepresentation alleged in the Plaintiffs’ Amended
Complaint is that Defendant Dobson said that Defendant Tritle would redo
Plaintiffs’ mortgage with Countrywide so that it was “right” within three
months of closing, but the Defendants “never had that done.” [Doc. 5 at ¶
III].
As an initial matter, this Court has already ruled that any fraud claim
resulting from Defendant Dobson’s statement is barred by the three-year
statute of limitations.7 [Doc. 34]. The Plaintiffs necessarily discovered the
falsity of this statement in 2007, when the mortgage loan was not “redone”
within three months of the closing. [Doc. 5 at ¶ III]. The Plaintiffs’ claim was
filed on December 19, 2017—well outside the three-year statute of
limitations for fraud claims.

Defendant Dobson’s statement, being promissory in nature, does not constitute a
representation of a subsisting fact. Thus, the statement must have been made with the
then-present intent not to perform to support a fraud claim. See Gribble v. Gribble, 25
N.C. App. 366, 369, 213 S.E.2d 376, 378 (1975). The Plaintiffs make no such allegation
here.
7

15

Beyond Defendant Dobson’s statement, the Plaintiffs make no other
allegations that Defendant Tritle or any other Defendant made any statement
that constituted fraud.

To the extent that the Plaintiffs contend that

Defendant Tritle fraudulently concealed facts, the Plaintiffs never 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.”).
Other than the time-barred claim by Defendant Dobson, the Plaintiffs
fail to allege what specific false representations Defendant Tritle 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
Defendant Tritle failed to disclose unspecified “material information” are
insufficient to state a claim for fraud under Rule 9. Therefore, Plaintiffs fail
to state a claim for fraud under Rule 9 of the Federal Rules of Civil Procedure.
For these reasons, Plaintiffs’ fraud claim is dismissed.

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D.

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

Under North Carolina law, “[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 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, “[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 fail to allege sufficient facts to establish a fiduciary
relationship with Defendant Tritle.

While the Plaintiffs allege that the

Defendant Tritle and the other Defendants were “fiduciaries” upon whom
Plaintiffs “reposed trust and confidence,” [Doc. 5 at ¶ 81], such allegations

17

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 be dismissed.
E.

Plaintiffs’ Claim for Unjust Enrichment (Count VI)

The North Carolina Supreme Court has defined the claim of unjust
enrichment as follows:
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).
It is well-settled under North Carolina law that a claim for unjust
enrichment cannot succeed when 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
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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.”).
Here, the Plaintiffs explicitly acknowledge that they entered into a
contract. [See Doc. 5. at ¶¶ 6, 9]. Since an express contract already exists,
the Court cannot imply one here. As such, the Plaintiffs cannot state a claim
for unjust enrichment against Defendant Tritle.
For these reasons, the Plaintiffs’ claim for unjust enrichment against
Defendant Tritle 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 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,

19

“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 to state a claim for conspiracy. Id.
Here, the Plaintiffs fail to state a claim upon which relief can be granted
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]. 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 at ¶¶ 92-93]. The Plaintiffs’ allegations lack any specificity regarding
the nature of any agreement between the Defendant Tritle and another, 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.
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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 define
“racketeering activity” as any act or threat of murder, kidnapping, gambling,
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. 7:070508-HFF-WMC, 2007 WL 950386, at *3 (D.S.C. Mar. 26, 2007) (citation
omitted). To satisfy the “enterprise” element, a plaintiff must allege “two

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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 Plaintiffs fail to allege the requisite “enterprise” and
“pattern of racketeering activity” necessary to state a RICO claim. While the
Plaintiffs assert various activities that are allegedly tortious in nature and
purportedly committed by the Defendants, the Amended Complaint fails to
establish that an “enterprise” existed separate and apart from these
individuals. Further, Plaintiffs’ allegations fail to present plausible facts to
establish the pattern of racketeering activity necessary to sustain a RICO
claim. For these reasons, the Plaintiffs’ civil RICO claim against Defendant
Tritle is also dismissed.
ORDER
IT IS, THEREFORE, ORDERED that the Motion for Judgment on the
Pleadings filed by Defendant William W. Tritle [Doc. 37] is GRANTED, and
the claims asserted against Defendant Tritle in Plaintiffs’ Amended
Complaint [Doc. 5] are hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.

Signed: July 12, 2019

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