Diaby v. Bierman

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
BILLO DIABY, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-00589 (ABJ)
)
HOWARD N. BIERMAN, et al., )
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

Plaintiff Billo Diaby brought this action against Wells Fargo Bank, N.A. (“Wells Fargo”),

American Home Mortgage Servicing, Inc. (“AHMSI”), Howard Bierman, Jacob Geesing, and

Carrie Ward (collectively “defendants”). Defendants have moved to dismiss the complaint for

failure to state a claim upon which relief can be granted. According to plaintiff himself,

“Defendants disparage the Complaint as a poorly drafted, last-ditch effort to stop foreclosure;

and they may be right about that.” Pl.’s Opp. to Mot. to Dismiss at 2. The Court also agrees,

and for the reasons stated below, it will grant defendants’ motion in part and dismiss three of the

four causes of action in plaintiff’s complaint.

I. Background

Plaintiff purchased property located at 5705 Colorado Avenue, Northwest, Washington,

District of Columbia (the “property”), on or about June 19, 1997. Compl. ¶ 7. On August 31,

2006, plaintiff allegedly executed a deed of trust with Wells Fargo, which was recorded at the

District of Columbia Record of Deeds. Id. ¶ 9. Although plaintiff provides almost no detail

about the intervening facts, a foreclosure sale of his home was set for March 25, 2010. Id. ¶ 14.
 On March 24, 2010 – the day before the foreclosure sale – plaintiff brought suit against

defendants in the Superior Court of the District of Columbia. In his complaint plaintiff alleged

four causes of action related to the foreclosure of his property: (1) “Action to Quiet Title”; (2)

“Defective Foreclosure Failure to Provide Accurate Cure Amount”; (3) “Violation of the Make

Home Affordable Program”; and (4) “No Standing to Foreclosure.” Id. ¶¶ 13–42. Wells Fargo

and AHMSI removed the action to this Court on April 14, 2010 and then moved to dismiss the

complaint on April 21, 2010. Defendants Bierman, Geesing, and Ward (collectively, “Trustees”)

answered the complaint on May 4, 2010, denying all of plaintiff’s allegations and asserting that

the complaint fails to state a claim upon which relief can be granted. 1

Plaintiff then moved for leave to amend his complaint on October 20, 2010. The Court

denied leave to amend on June 17, 2011 for failure to comply with Local Rule 7(i), and plaintiff

did not subsequently move to amend in compliance with the Local Rules. The Court will now

address defendants’ motions to dismiss the original complaint pursuant to Fed. R. Civ. P.

12(b)(6) for failure to state a claim upon which relief can be granted.

II. Standard of Review

“To survive a [Rule 12(b)(6)] 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, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two

principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all

1 The Court will treat the Trustees’ answer [Doc. #4] as both an answer and a motion to
dismiss under Rule 12(b)(6). See Fed. R. Civ. P. 12(b) (“No defense or objection is waived by
joining it with one or more other defenses or objections in a responsive pleading or in a
motion.”).

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of the allegations contained in a complaint is inapplicable to legal conclusions.” 129 S. Ct. at

1949. And “[s]econd, only a complaint that states a plausible claim for relief survives a motion

to dismiss.” Id. at 1950. 2

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.” Id. at 1949.

“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. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. at

1949, quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed

liberally in plaintiff’s favor, and the Court should grant plaintiff “the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

In ruling upon a motion to dismiss under Rule 12(b)(6), a court may ordinarily consider only

“the facts alleged in the complaint, documents attached as exhibits or incorporated by reference

in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt

v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

2 The Court notes that plaintiff incorrectly described the proper standard of review under
Rule 12(b)(6). Compare Pl.’s Opp. to Mot. to Dismiss at 2–3, citing Conley v. Gibson, 355 U.S.
41, 45–46 (1957); with Iqbal, 129 S. Ct. at 1944 (stating that the Supreme Court “retired the
Conley no-set-of-facts” test in Twombly).
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 III. Analysis

Plaintiff himself “submits for the Court’s sound discretion the distinct possibility that all

procedures required in carrying out a private foreclosure in the District of Columbia have not

been adhered to properly.” Pl.’s Opp. to Mot. to Dismiss at 5. But plaintiff fails to recognize

that this level of pleading is exactly what the Supreme Court has found inadequate under Rule

12(b)(6): “[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.’” Iqbal, 129 S. Ct. at 1950, quoting Fed. R. Civ. P. 8(a)(2) (emphasis added).

As described below, three of plaintiff’s four causes of action fail to state a claim and will be

dismissed. Only with respect to Count II does plaintiff state a claim upon which relief can be

granted.

A. Counts I and IV: Standing to Foreclose

Counts I and IV both relate to plaintiff’s allegation that his original note has been sold or

transferred, but no assignment has been recorded. Compl. ¶ 11, 16. As a result, plaintiff brings a

cause of action to quiet title (Count I) and a cause of action 3 alleging that defendants lack

standing to foreclose (Count IV). Both of these causes of action fail to state a claim upon which

relief can be granted.

Courts may hear a common law action to quiet title to prove title, secure title, “or to

remove obstacles which hinder its enjoyment.” In re Tyree, 493 A.2d 314, 317 (D.C. 1985),

quoting Sharon v. Tucker, 144 U.S. 533, 544 (1892); see also Black’s Law Dictionary 34 (9th ed.

3 The Court is unaware of a cause of action for lack of standing to foreclose. Rather, the
Court will treat this as a common law cause of action for wrongful foreclosure.

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2009) (defining an “action to quiet title” as a “proceeding to establish a plaintiff’s title to land by

compelling the adverse claimant to establish a claim or be forever estopped from asserting it.”).

Here, plaintiff alleges that he is the “true and lawful title owner to the property”, Compl.

¶ 14, and that defendant “has wrongfully created a cloud upon the title to the property in

question.” Id. ¶ 17. His concern is that the note he signed has been sold, but there is no record

of that sale in the land records. He alleges that “none of the Defendants are the current note

holder of record and therefore they do not have standing to foreclose on a note or deed of trust

that they cannot prove record ownership to. If the Defendant claims to be the current note holder

Plaintiff demands strict proof thereof.” Id. ¶ 15. For the same reasons, plaintiff alleges

separately in Count IV that defendants lack standing to foreclose. Id. ¶¶ 38–42. 4

Plaintiff elaborates on Count I in his opposition:

An action to quiet title is a claim for which relief may, in theory, be
granted; and whether it is granted in the event will depend on some
modicum of a factual enquiry by the Court. Although Defendants supply
documentation purporting to establish the right of Wells Fargo as trustee
to sell the subject property at auction, Plaintiff demands strict proof of said
right. Plaintiff’s demand stems in no small measure from experience with
the hurried manner by which many foreclosure properties are sold at
private auction in the District in contravention of the homeowner’s right to
redeem.
Pl.’s Opp. to Mot. to Dismiss at 4. But plaintiff does not go on to identify any facts alleged in

his complaint that could give rise to a right to relief, and raising conclusory suspicions in an

4 Defendants Wells Fargo and AHMSI argue that there is no basis for an action to quiet
title because title is not disputed, Defs.’ Reply in Support of Mot. to Dismiss at 4–5. They state
that on July 28, 2006 plaintiff refinanced the property through a loan from Option One Mortgage
Corporation and that he also executed a deed of trust naming Option One Mortgage Corporation
as the beneficiary. Defs.’ Mot. to Dismiss at 1. They also state that plaintiff “has been aware
since June 30, 2009, that his loan with Option One had been placed in a securitized trust for
which Wells Fargo was acting as trustee.” Id. Defendants further argue that plaintiff is “aware
that Wells Fargo, as Trustee, through their counsel Bierman, Geesing & Ward, LLC, was seeking
to foreclose for nonpayment since the summer of 2009.” Id.

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opposition to a motion will not suffice. With respect to Count IV, plaintiff’s opposition makes it

clear that the gravamen of his claims is the alleged failure to record any assignment of the note.

Pl.’s Opp. to Mot. to Dismiss at 5 (“Plaintiff reiterates its claim that the Defendants herein, while

attempting to sell the subject property at auction, do not have a properly recorded interest

therein.”). But the laws of the District of Columbia require that a mortgage or deed of trust be

recorded, not the underlying note. See D.C. Code § 42-801. Therefore, a failure to record an

assignment does not give rise to a cause of action.

The Court also finds that plaintiff fails to offer facts any facts that support his conclusory

allegation that none of the defendants has standing to foreclose. Moreover, that allegation does

not necessarily give rise to a cause of action. Under District of Columbia law, non-judicial

foreclosures are allowed where the deed of trust includes a power of sale clause. See D.C. Code

§ 42-815(b) (providing for a “foreclosure sale under a power of sale provision contained in any

deed of trust, mortgage, or other security instrument” where the holder of the note or its agent

gives written notice to the owner). The power to foreclose may be executed by the lender or its

representative, such as a trustee. See Bryant v. Jefferson Fed. Sav. & Loan Ass’n, 509 F.2d 511,

513 (D.C. Cir. 1974) (“[E]xtrajudicial foreclosure is permissible only when the instrument

executed by the fee owner itself expressly authorizes the mortgagee or trustee to sell the property

at a public auction if the owner defaults in his payments.”); see also Murray v. Wells Fargo

Home Mortg., 953 A.2d 308, 324–25 (D.C. 2008) (“[A]s a general proposition, trustees of deeds

have only those powers and duties imposed by the trust instrument itself, coupled with the

applicable statute governing foreclosure sales in the District of Columbia.”) (internal quotations

omitted); Restatement (Second) of Trusts § 190 (“The trustee can properly sell trust property if

(a) a power of sale is conferred in specific words, or (b) such sale is necessary or appropriate to

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enable the trustee to carry out the purposes of the trust, unless such sale is forbidden in specific

words by the terms of the trust . . . .”). So whether or not defendants are holders of the note is

not dispositive as to whether they have standing to foreclose on the property. And upon review

of the deed of trust itself, 5 the document makes clear that the lender, through trustees, has the

express power to foreclose. Defs.’ Mot. to Dismiss, Ex. B, ¶ 21 (“After the time required by

applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to

the highest bidder at the time and place and under terms designated in the notice of sale in one or

more parcels and in any order Trustee determines.”).

Finally, in his complaint, plaintiff repeatedly refers to “defendant” in the singular form

but fails to specify the defendant to which he refers. See, e.g., Compl. ¶ 17 (“Defendant, by its

actions alleged hereinabove, has wrongfully created a cloud upon the title to the property in

question.”). Without more detail the Court cannot infer more than the mere possibility of

misconduct, and the complaint does not provide the notice required under the Federal Rules.

Iqbal, 129 S. Ct. at 1950. In sum, while the Court must ordinarily grant plaintiff the benefit of

any inferences from the facts alleged, the Court cannot accept those inferences here because they

are unsupported by any allegations of fact. See Kowal, 16 F.3d at 1276. Accordingly, the Court

will dismiss Counts I and IV of the complaint against all defendants without prejudice.

B. Count II: Wrongful Foreclosure for Failure to Provide Accurate Cure
Amount
Plaintiff alleges in Count II that the foreclosure was defective because “Defendant has

failed to provide an accurate figure to cure to [sic] the alleged arrearage” in violation of District

of Columbia law. Compl. ¶¶ 20–21. Under the District of Columbia Code, a borrower in default

5 Because plaintiff refers to the deed of trust in the complaint, Compl. ¶¶ 9–10, the Court
may consider it in analyzing the motion to dismiss under Rule 12(b)(6). See Gustave-Schmidt,
226 F. Supp. 2d at 196.

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is entitled to advance written notice of a foreclosure sale. D.C. Code § 42-815(b). The contents

of the notice of foreclosure are governed by 9 DCMR § 3100, et seq. Among other

requirements, a notice of foreclosure must include at least the “name and address of the holder of

the note and his or her telephone number of person to call if owner wishes to stop foreclosure.”

9 DCMR § 3100.2. 6 The District of Columbia Code further requires that notice must include the

“amount required to cure the default and reinstate the loan, including all past due payments,

penalties, and fees.” D.C. Code § 42-815.02(a)(11)(B)(iv). The Mayor of the District of

Columbia develops the form on which notice must be provided, which is available at the Office

of the Recorder of Deeds. 9 DCMR § 3100.1.

Once the notice of foreclosure is given, the residential mortgage debtor has a right to cure

his default and prevent the sale by (1) paying or tendering the amount required to bring the

account current; (2) performing any other obligation she would have been bound to perform in

6 9 DCMR § 3100.2 states:
The form of the notice of a foreclosure sale of real property shall provide for
furnishing at least the following information concerning the sale:
(a) The name and address of the owner of record of the property, and his
or her telephone number, if known;
(b) The identification of the property;
(c) The lot and square number or the parcel number of the property;
(d) The liber number and folio number of the volume in the Office of the
Recorder of Deeds in which the security instrument is recorded and the
date of such recordation;
(e) The name and last known address of the maker of the note secured by
the security instrument, and his or her telephone number, if known;
(f) The name and address of the holder of the note and his or her telephone
number of person to call if owner wishes to stop foreclosure; and
(g) Provision for a certification by the note holder or his or her agent that
the original of the notice has been sent to the property owner by certified
mail, return receipt requested, and that the note holder understands that no
foreclosure sale may take place until at least thirty (30) days after a copy
of the notice has been received by the Recorder of Deeds, D.C.

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the absence of default; and (3) paying or tendering any expenses associated with the foreclosure

incurred by the mortgagee. D.C. Code § 42-815.01(b)–(c).

The District of Columbia Court of Appeals has held that “the cure amount stated in the

foreclosure notice must be accurate . . . .” Bank-Fund Staff Fed. Credit Union v. Cuellar, 639

A.2d 561, 563–64 (D.C. 1994). The court concluded that the cure amount must be accurate “in

order to fulfill its statutory purpose” of allowing the borrower to bring the account current in

order to cure the default. Id. at 576. Therefore, providing an accurate cure amount is part of the

notice requirement under District of Columbia law, and failure to provide an accurate cure

amount may give rise to an action for wrongful foreclosure.

Here, plaintiff does not allege that he was not given a cure amount, or that he was not

provided an opportunity to cure. He instead alleges that he was not given an accurate amount to

cure. But in doing so, he does not reference the actual notice – instead he refers to two

documents with no bearing on the matter. He states that “Defendant Lender represented in

bankruptcy court that the arrearage was $13,952.35 as of January 20, 2010,” Compl. ¶ 23, but

that figure failed to credit two payments he made for $3,062.25 and $2,150. Id. ¶24. He also

alleges that the “lender provided a past due amount to the organization attempting to obtain a

loan modification for Plaintiff,” and in a “transmission to them the arrearage had mysteriously

ballooned to $27,633.90.” Id. ¶ 26. Defendants’ argument that plaintiff has therefore failed to

state a claim has considerable force, but resolving all inferences in plaintiff’s favor, he has stated

a plausible claim hanging on the slender thread of paragraphs 20 and 27.

Defendants point out that plaintiff “does not dispute the foreclosure notice issued by the

Recorder of Deeds” and that plaintiff instead ignores that notice. Mot. to Dismiss at 5–6.

Defendants then proffer the notice purportedly sent in compliance with District of Columbia law.

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Id. However, the Court cannot rely on that document in evaluating the motion to dismiss under

Rule 12(b)(6) because plaintiff does not refer to it in his complaint and it is not an appropriate

subject of judicial notice. See Gustave-Schmidt, 226 F. Supp. 2d at 196. Whether the notice was

accurate and sufficient may well be a proper subject to address through a motion for summary

judgment, but the Court will not dismiss this count at this stage. See, e.g., Richards v. Option

One Mortg. Corp., 682 F. Supp. 2d 40, 46 (D.D.C. 2010) (entering summary judgment in favor

of the defendant as to whether it had provided an accurate cure amount after evidence

demonstrated that factual assertions to the contrary were “without foundation”); Vines v. Mfrs. &

Traders Trust Co., 935 A.2d 1078, 1086 (D.C. 2007) (affirming summary judgment for the

defendant where the record showed the plaintiff was given proper notice of foreclosure and the

amount necessary to cure her default). This holding is in keeping with the “strict construction of

foreclosure statutes in favor of homeowners.” Bank-Fund, 639 A.2d at 570.

C. Count III: Violation of the Make Home Affordable Program

Plaintiff alleges that Wells Fargo and AHMSI are signatories to the Make Home

Affordable Program (“MHAP”) and that they failed to abide by the MHAP “guidelines.” Compl.

¶¶ 30–36. Specifically, plaintiff alleges that the MHAP requires all foreclosure activity be

suspended “when a lender or servicer accepts or a package is ‘submitted’ for review by the

lender or servicer.” Compl. ¶ 32. Plaintiff alleges that he “‘submitted’ and the servicer and

lender accepted” his “package on March 8, 2010.” Compl. ¶ 33.

But plaintiff now acknowledges that he has no private right to maintain a cause of action

under the MHAP: “Defendants correctly point out that federal courts have found no private right

to initiate or maintain a cause of action against private entities in receipt of Troubled Asset Relief

Program (TARP) funds, such as banks, which subsequently foreclose on homeowners who are

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MHAP participants.” Pl.’s Opp. to Mot. to Dismiss at 4–5. Because plaintiff concedes the point

that he has no standing under the MHAP, the Court will dismiss Count III against all defendants

with prejudice.

IV. Conclusion

For the reasons stated above, the Court will dismiss without prejudice Counts I and IV

against all defendants because plaintiff has failed to state a claim for relief. The Court will also

dismiss Count III against all defendants with prejudice. And the Court will deny the motions

with respect to Count II. A separate Order will issue.

AMY BERMAN JACKSON
United States District Judge

DATE: July 8, 2011

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