UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS ALSTON, :
:
Plaintiff, : Civil Action No.: 12-2030 (RC)
:
v. : Re Document Nos.: 3, 6
:
FLAGSTAR BANK, F.S.B., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING THE DEFENDANT’S MOTION TO DISMISS WITHOUT PREJUDICE; DENYING THE
PLAINTIFF’S MOTION FOR SANCTIONS
I. INTRODUCTION
The plaintiff is an individual who entered into a Deed of Trust regarding residential real estate
with the defendant, Flagstar Bank. The plaintiff satisfied the debt, and claims that the defendant is in
breach of contract because it failed to subsequently surrender the original note. Further, the plaintiff
claims that because the defendant sent the plaintiff the original note by regular mail, as opposed to a
more reasonable means, and it went missing thereafter, the defendant engaged in negligence. The
defendant has filed a motion to dismiss, and the plaintiff has filed a motion for sanctions. Because the
plaintiff has not advanced a claim that is ripe for adjudication now, his claims are dismissed without
prejudice, with the Court noting that if the harm materializes in the future, he may bring suit again
within the applicable statute of limitations period. Further, because the defendant has not engaged in
any bad faith in filing its meritorious motion to dismiss, the plaintiff’s motion for sanctions is denied.
II. FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND 1
On August 29, 2003, the plaintiff entered into a Deed of Trust 2 (“mortgage contract”) with the
defendant regarding residential real estate located in the District of Columbia. Compl. ¶ 4. On May
27, 2004, the plaintiff obtained a loan from BNC mortgage, and satisfied the mortgage debt with the
defendant. Id. ¶ 6. The defendant did not timely surrender the note after the plaintiff satisfied the debt.
Id. ¶ 7. Over the years, the plaintiff made several unsuccessful requests for the defendant to surrender
the note. Id. ¶ 8. In Janury of 2010, the plaintiff sent the defendant further correspondence, requesting
that the note be returned. Id. ¶ 9. On February 11, 2010, the defendant sent the plaintiff
correspondence via certified mail, which stated that the defendant had forwarded him the original note
via regular U.S. mail, and that it was enclosing a certified true copy of the note. Id. ¶ 10. The plaintiff
alleges that to date, he has never received the original note. Id.
The plaintiff has filed this action, alleging that the defendant breached the contract by failing to
surrender the original note to the plaintiff. The plaintiff further claims that the defendant engaged in
negligence by sending the original note via regular mail, instead of by a more reasonable means. In
response, the defendant has filed a motion to dismiss. The plaintiff has filed a motion for sanctions,
contending that the defendant has engaged in bad faith in filing its motion to dismiss. The court now
turns to the parties’ arguments and the applicable legal standards.
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When considering a Rule 12(b)(6) motion to dismiss, the court accepts as true the plaintiff’s version of
events. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2 Although the Deed of Trust and promissory note fall outside of the pleadings, the Court can nonetheless
consider them here because they are incorporated by reference in the complaint. See MCI Commc'ns, Inc. v.
FDIC, 808 F. Supp. 2d 24, 28 (D.D.C. 2011).
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III. ANALYSIS
A. The Defendant’s Motion to Dismiss
1. Legal Standard for a Rule 12(b)(6) Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency
of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The motion does not test a
plaintiff’s ultimate likelihood of success on the merits, but rather, whether a plaintiff has properly
stated a claim. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The complaint is only required to set
forth a short and plain statement of the claim, in order to give the defendant fair notice of the claim and
the grounds upon which it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C.
Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A court considering this type of motion presumes the factual allegations of the complaint to be
true and construes them liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc.,
116 F. Supp. 2d 131, 135 (D.D.C. 2000). It is not necessary for the plaintiff to plead all elements of
his prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002), or to
plead law or match facts to every element of a legal theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C.
Cir. 2000) (internal citations omitted). Nonetheless, “[t]o survive a motion to dismiss, 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) (internal quotation marks omitted); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 562 (2007). A claim is facially plausible when the pleaded factual content
“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).
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The court need not accept as true inferences unsupported by facts set out in the complaint or
legal conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.
Cir. 2004); Browning, 292 F.3d at 242. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555).
2. The Court Dismisses the Plaintiff’s Claims Without Prejudice
The defendant asserts that the plaintiff has not sufficiently pleaded a breach of contract claim
because the mortgage contract did not obligate the defendant to surrender the original note to the
plaintiff, as opposed to a copy, which the plaintiff does possess. Def.’s Mot. at 5. The defendant
further contends that the plaintiff has suffered no harm and that his damages are speculative because he
has pleaded no facts indicating that anybody has ever demanded payment under the note. Id. at 6. In
the alternative, the defendant argues, the plaintiff’s claims should be dismissed because they are not
ripe for adjudication, as there is no injury that is certain and impending. Id. at 9.
Further, the defendant states that even if a third party attempts to collect payment under the
note, the plaintiff has a full defense to payment because a Discharge of Mortgage/Satisfaction was
executed and recorded in the Land Records of the District of Columbia. Id. In addition, the defendant
argues that the plaintiff has not sufficiently stated a negligence claim because the defendant had no
duty to return the original note to the plaintiff, as opposed to a copy. Id. at 7.
In response, the plaintiff argues that the Deed of Trust explicitly states that the original note
must be returned to the plaintiff upon satisfaction of the debt, and that the plaintiff therefore has a
cognizable breach of contract claim. Pl.’s Opp’n at 5. The plaintiff also contends that because a third
party may possess the missing original note and would therefore have the right to enforce it against the
plaintiff, the plaintiff is presently liable to the holder of the note. Id. at 6-7. The plaintiff argues that
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his claim is therefore ripe and his damages tangible. Id. Further, the plaintiff avers that he has
sufficiently made out a negligence claim, citing how the defendant thought to send a copy of the note
by certified mail, but did not extend that same care to sending the original note, which was sent only
by regular mail. Id. at 9.
To establish that he has standing to bring suit, a plaintiff “must satisfy three elements: (1) [the
plaintiff] must have suffered an injury in fact that is concrete and particularized and actual or
imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to the challenged
action of the defendant; and (3) it must be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” NB ex rel. Peacock v. District of Columbia, 682 F.3d 77, 81
(D.C. Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)) (internal
quotation marks omitted). Moreover, “[r]ipeness is a justiciability doctrine that is drawn both from
Article III limitations on judicial power and from prudential reasons for refusing to exercise
jurisdiction.” Devia v. Nuclear Regulatory Comm'n, 492 F.3d 421, 424 (D.C. Cir. 2007) (quoting Nat'l
Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807–08 (2003) (internal quotation marks
and brackets omitted). “[R]ipeness is peculiarly a question of timing.” Regional Rail Reorganization
Act Cases, 419 U.S. 102, 140 (1985). “A claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union
Carbide Agricultural Products Co., 473 U.S. 568, 580-581 (1985) (internal quotation marks and
citation omitted).
If a person finds the “lost” note, or indeed, if Flagstar transferred the note before the plaintiff
made payment, the “holder” could attempt to enforce it for the entire amount against the plaintiff.
Regardless of the potential success of such a suit, such action would impose a cost upon the plaintiff to
have to defend himself. But while there is a possibility of such harm, the plaintiff has not alleged
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enough facts to show that the injury is “certainly impending” or “imminent,” which is required to
establish standing. State Na. Bank of Big Spring v. Lew, 2013 WL 3945027, at *7 (D.D.C. Aug. 1,
2013). Further, because the plaintiff contends that the “harmful events may occur,” he alleges a harm
and damages that are “not the result of any present injury, but rather the result of the anticipation of
future injury that has not materialized.” Randolph v. ING Life Ins. and Annuity Co., 973 A.2d 702, 708
(D.C. 2009). His claims are therefore not ripe for adjudication, as they fail to create a cause of action
at this time. Id. (“Speculative harm, or the threat of future harm . . . not yet realized does not suffice to
create a cause of action . . .”) (internal quotation marks and citation omitted).
Based on the foregoing factors, the plaintiff’s claims are dismissed without prejudice at this
time. The Court notes, however, that if a third party attempts to enforce the note against the plaintiff,
he may file suit again within the requisite statute of limitations, which, under District of Columbia law,
begins to run when the plaintiff knows or by exercise of reasonable diligence should know of the
injury, its cause in fact, and some evidence of wrongdoing. See Medhin v. Hailu, 26 A.3d 307, 310
(D.C. 2011).
B. The Plaintiff’s Motion for Sanctions
The plaintiff has filed a motion for sanctions pursuant to 28 U.S.C. § 1927 (“Section 1927”),
contending that the defendant’s motion to dismiss has been filed in bad faith. The plaintiff argues that
the defendant’s motion misrepresents the plaintiff’s allegations in the complaint “in order to conjure a
false premise for attacking” such complaint. Pl.’s Mot. at 3. More specifically, the plaintiff states that
instead of accepting the allegations in the complaint as true, the defendant’s motion contests them,
which it is not allowed to do. Id.
Section 1927 states that “[a]ny attorney or other person admitted to conduct cases in any court
of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously
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may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927. The purpose of Section 1927 is to
“allow the court to assess attorneys’ fees against an attorney who frustrates the progress of judicial
proceedings.” United States v. Wallace, 964 F.2d 1214, 1217 (D.C. Cir. 1992). Here, the plaintiff has
provided no indication that the defendant has multiplied the proceedings unreasonably or vexatiously;
rather, the defendant has filed a meritorious motion to dismiss, so meritorious indeed, that the Court
has granted it. See Huthnance v. District of Columbia, 793 F. Supp. 2d 177, 181 (D.D.C. 2011) (“the
assessment of attorneys' fees and costs under Section 1927 would remain a power which the courts
should exercise only in instances of a serious and studied disregard for the orderly process of justice”)
(internal quotation marks and citation omitted). The plaintiff’s motion for sanctions is therefore
denied.
IV. CONCLUSION
For the foregoing reasons, the Court grants the defendant’s motion to dismiss without
prejudice, and denies the plaintiff’s motion for sanctions. An order consistent with this Memorandum
Opinion is issued this 18th day of September, 2013.
RUDOLPH CONTRERAS
United States District Judge
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